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

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicants were born in 1966, 1977, 1979 and 1965 respectively.

On 30 November 1999 the applicants were arrested by police officers from the Anti-Terrorist Branch of the Ankara Police Headquarters. On the same day the applicants' representatives applied to the principal public prosecutor's office at the Ankara State Security Court seeking information about the applicants' arrest and the duration of their custody, as well as authorisation to provide them with legal assistance during their questioning by the police. The principal public prosecutor informed them that, under section 16 of Law no. 2845 and sections 30 and 31 of Law no. 3842, the applicants were not entitled to receive legal assistance during their police custody.

On 3 December 1999 the applicants were brought before a public prosecutor at the Ankara State Security Court and questioned about their alleged affiliation with the Turkish Communist Party/MarxistLeninist - Turkish Workers and Peasants' Liberation Army - Marxist-Leninist Youth Union of Turkey (“the TKP/ML-TIKKO-TMLGB”), an armed, illegal organisation. Before the public prosecutor, Mr Ercan Gül stated that he was not a member of the organisation in question. He maintained that the periodicals found in his apartment were legal publications and that the poster allegedly found there did not belong to him. He had therefore refused to sign the arrest and search report. The applicant further stated that he was one of the founders and directors of the Tüm Maliye-Sen (Tüm Maliye Çalışanları Sendikası – the Financial Sector Trade Union) and that, consequently, as a member of this trade union, he had participated in several demonstrations, such as the one on May Day and demonstrations to commemorate the 1993 Sivas Massacre. Mr Ercan Gül lastly contended that he had never shouted slogans in support of the TKP/ML-TIKKO-TMLGB.

Mr Erkan Aslanbenzer stated before the public prosecutor that he was not a member of the organisation in question. He maintained that the periodicals found in his apartment were legal publications and not propaganda tools for the TKP/ML-TIKKO-TMLGB. He further contended that he was a member of the Confederation of Public Employees' Trade Unions (“KESK”) and that he had participated in several demonstrations. When the applicant was shown a photograph, allegedly of him at a demonstration behind a banner bearing the name Partizan, a periodical, he maintained that the person in the photograph could not have been him. Lastly, he stated that he did not remember whether on 2 July 1998 he had participated in the demonstration to commemorate the 1993 Sivas Massacre.

Mr Deniz Kahraman maintained that he had no affiliation with the TKP/ML. He said that he had taken part in the May Day Workers demonstration in 1997 and in the demonstration of 2 July 1998. When the applicant was shown a photograph allegedly of him at a demonstration behind a Partizan banner, he maintained that the person in the photograph was not him.

Finally, Ms Zehra Delikurt stated that she was not a member of the TKP/MLTIKKO-TMLGB. She denied the allegation that she had written slogans in favour of the TKP/ML-TIKKO on the walls of schools in Ankara. When she was shown a photograph in which she was allegedly carrying a picture of the general secretary of the TKP/ML-TIKKO, Ms Zehra Delikurt contended that she had participated in the demonstration of 2 July 1998 and that she did not know the person in the picture.

On the same day the applicants were brought before a single judge at the Ankara State Security Court, where they repeated their statements made to the public prosecutor. The judge ordered Ms Delikurt's detention and the other applicants' release.

On 21 December 1999 the public prosecutor at the Ankara State Security Court filed a bill of indictment against ten persons, including the applicants. The public prosecutor charged Ms Zehra Delikurt with membership of an illegal organisation and the other applicants with aiding and abetting members of an illegal organisation, under Articles 168 and 169 of the former Criminal Code respectively. The public prosecutor alleged that Ms Zehra Delikurt had shouted slogans in support of the TKP/ML-TIKKO during the May Day demonstrations in 1997 and 1999 as well as the demonstration of 2 July 1998, where she had been behind the Partizan banner and carried a poster of the general secretary of the TKP/ML-TIKKO. It was alleged that during the said demonstrations Ms Delikurt had shouted:

“Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “Marks, Lenin, Mao, Önderimiz IBO, Savaşıyor Tikko (Marx, Lenin, Mao, our leader is Ibo; TIKKO is fighting)”.

It was also alleged that she had written TKP/ML-TIKKO slogans on school walls in Ankara, such as “TKP-ML TIKKO”, “IBO yaşıyor, TIKKO savaşıyor (IBO is alive, TIKKO is fighting)”; “Yaşasın partimiz TKP-ML TIKKO (Long live our party TKP-ML, TIKKO)”; “Gerillalar ölmez, yaşasın halk savaşı (Guerrillas don't die; long live the people's war)”; “Parti ve devrim şehitleri ölümsüzdür (the martyrs of the party and revolution are immortal)”; “TKP-ML TIKKO işçi köylü elele demokratik devrime (TKP-ML, TIKKO, workers and peasants hand in hand, towards democratic revolution)”. The applicant was also alleged to have participated in seminars held in cultural centres and in the headquarters of a left-wing political party and a trade union. Furthermore, the applicant was suspected of having sold the periodical Özgür Gelecek.

As regards Mr Ercan Gül, the public prosecutor noted that he had participated in the May Day demonstration of 1997, where slogans in support of the TKP/ML-TIKKO had been shouted, such as “Liderimiz Ibrahim Kaypakkaya (Our leader is Ibrahim Kaypakkaya)”; “Yaşasın Halkın Adaleti (Long live the people's justice)”; “Yaşasın parimiz TKP-ML (Long live our party TKP-ML)”; “İktidar namlunun ucundadır (Political power grows out of the barrel of the gun)”; “Marks Lenin Mao önderimiz Ibo, Savaşıyor TIKKO (Marx, Lenin, Mao, Our leader is IBO; TIKKO is fighting)”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “Liderimiz İbrahim Kaypakkaya, işçi, köylü, gençlik halk savaşında birleştik (Our leader is İbrahim Kaypakkaya; workers, peasants and youth, we are all united in the people's war)”. The public prosecutor alleged that Mr Ercan Gül had also shouted illegal slogans in the demonstration of 1999. Furthermore, it was noted that some periodicals, a picture of a member of the TKP/ML-TIKKO and a book had been found in his apartment.

The public prosecutor alleged that Mr Erkan Arslanbenzer had participated in the May Day demonstrations of 1996 and 1997, the Newroz celebrations in 1998 and the demonstrations of 1997 and 1998 to commemorate the Sivas Massacre, where he had shouted slogans in favour of the TKP/MLTIKKO, such as “Yaşasın partimiz TKP/ML (Long live our party TKP-ML)”; “Faşizme isyan, halka önder partisan (Revolt against fascism; the leader is Partizan)”; “İktidar namlunun ucundadır (Political power grows out of the barrel of the gun)”; “Umudun adı TKP-ML (TKP-ML is our hope)”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “Kızılordu, TIKKO TMLGB (Red Army, TIKKO, TMLGB)”; “Faşist devlet, yıkacağız elbet (Fascist State will surely be demolished)”; “Bizde hesapları namlular sorar (It is the barrel of the gun that will call to account)”. He further noted that periodicals and books in support of that organisation had been found in the applicant's apartment.

Finally, the public prosecutor stated that Mr Deniz Kahraman had taken part in the May Day demonstrations of 1997 and 1998 and the demonstration of 2 July 1998, where he had shouted TKP/MLTIKKO slogans including “Faşisme isyan, halka önder Partizan (Revolt against fascism; the leader is Partizan)”; “Yaşasın parimiz TKP-ML (Long live our party TKP-ML)”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz (We are the brave voice of the workers and peasants; we are the public's bullet lodged in the barrel of a gun)”; “işçi, köylü, gençlik halk savaşında birleştik (workers, peasants and youth, we are all united in the people's war)”; “Bizde hesapları namlular sorar (It is the barrel of the gun that will call to account)”. The public prosecutor also noted that certain periodicals had been found in the applicant's apartment.

On 26 January 2000 the Ankara State Security Court held the first hearing on the merits of the case and heard the accused. The applicants reiterated their statements made before the public prosecutor and the single judge on 3 December 1999 and retracted their statements taken by the police. On the same day, the first-instance court ordered Ms Zehra Delikurt's release from prison.

The Ankara State Security Court held eight hearings and on 9 August 2000 gave its judgment. The court convicted the applicants under Article 169 of the former Criminal Code, which read as follows at the material time:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment...”

The first-instance court sentenced the applicants to three years and nine months' imprisonment. It found it established that the applicants had participated in the demonstrations behind TKP/MLTIKKO banners and shouted slogans in support of that illegal organisation. The court based its judgment on the transcriptions of video recordings of demonstrations made by the Anti-Terrorist Branch of the Ankara Police Headquarters, photographs taken by the security forces and the applicants' “evasive” statements made to the police, the public prosecutor and the single judge at the Ankara State Security Court, as well as the arrest and search reports, according to which periodicals used as propaganda tools for the TKP/ML-TIKKO had been found in the applicants' apartments. The court also noted that some of the periodicals were illegal as the distribution of certain issues had been suspended by court decisions.

On 16 April 2001 the Court of Cassation upheld the judgment of 9 August 2000.

Following the enactment of Law no. 4963, which came into force on 7 August 2003, the phrase “or facilitates its operations in any manner whatsoever” was removed from the text of Article 169 of the former Criminal Code.

Subsequently, the case against the applicants was reopened at the request of both the applicants' representative and the public prosecutor at the Ankara State Security Court.

On an unspecified date Ms Zehra Delikurt filed a request with the Ankara State Security Court to benefit from the Reintegration of Offenders into Society Act (Law no. 4959), which came into force on 6 August 2003.

In the meantime, on 29 April 2004 Ms Zehra Delikurt started serving her prison sentence.

By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicants was transferred to the Ankara Assize Court.

On 21 July 2004 the Ankara Assize Court delivered its judgment. It allowed Ms Zehra Delikurt's request and decided not to convict her, in conformity with section 4 of Law no. 4959. As a result, she was released from prison. As regards the other applicants, the Assize Court held that, following the amendment to Article 169 of the former Criminal Code, the acts committed by them could not be considered to constitute the offence defined in that provision. The court nevertheless found Mr Ercan Gül, Mr Erkan Arslanbenzer and Mr Deniz Kahraman guilty of disseminating propaganda related to an illegal armed organisation through incitement to use violent methods, an offence proscribed by section 7 § 2 of the Prevention of Terrorism Act. It sentenced them to ten months' imprisonment.

On 26 February 2006 the principal public prosecutor at the Court of Cassation sent the case file back to the Ankara Assize Court for the reconsideration of its judgment of 21 July 2004 since, in the meantime, a new Criminal Code had entered into force (Law no. 5237).

On 15 December 2006 the Ankara Assize Court once again convicted Mr Ercan Gül and Mr Erkan Arslanbenzer under section 7 § 2 of the Prevention of Terrorism Act of disseminating the propaganda of an illegal armed organisation through incitement to use violent methods, and sentenced them to ten months' imprisonment.

Mr Ercan Gül and Mr Erkan Arslanbenzer appealed. According to the latest information in the case file, the proceedings are still pending before the Court of Cassation.

The relevant provision of the former Criminal Code reads as follows:

Article 169

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment...”

Under Section 7 § 2 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years.

Finally, Law no. 4959 on the Reintegration of Offenders into Society Act applies to members of terrorist organisations who surrender to the authorities without armed resistance, either directly, on their own initiative, or through intermediaries, those who can be considered to have left a terrorist organisation, and those who have been arrested. The law also applies to those who, despite being aware of the aims pursued by the terrorist organisation, provided shelter, food, weapons, ammunition or any other kind of assistance. An important feature of the rehabilitation law is that it provides the possibility of reducing the sentences of those who wish to take advantage of the law by providing relevant information and documents on the structure and activities of the terrorist organisation.


Violation of P1-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants are:

(1) Mr Nikolay Ivanovich Malysh, born in 1949,

(2) Mr Vasiliy Aleksandrovich Bogomolov, born in 1944,

(3) Mr Sergey Stepanovich Iglin, born in 1949,

(4) Ms Zinaïda Aleksandrovna Sannikova, born in 1954,

(5) Ms Lyubov Vasilyevna Nazarenko, born in 1953, and

(6) Mr Sergey Nikolaevich Malysh, born in 1979.

All the applicants are Russian nationals living in the Amur Region. They are all holders of Urozhay-90 bonds.

In 1987 the General Secretary of the USSR Communist Party Mikhail Gorbachev presented his “basic theses”, which laid the political foundation for economic reform heralding the transition to a market economy. Several laws were enacted which opened up the State-dominated planned economy to private enterprise. However, the Government preferred to keep control over consumer prices rather than leaving them to be determined by the free market.

By 1990 Government spending increased sharply as a growing number of unprofitable enterprises required State support, whereas more resources were diverted to subsidise consumer prices. At the same time, the elimination of central control over production decisions, especially in the consumer-goods sector, led to a breakdown in traditional supply-demand relationships. This resulted in pervasive shortages of food and basic consumer goods. The Government reacted by introducing ration stamps for food and certain hygiene articles.

In addition to ration stamps, the Government of the Russian Socialist Federative Soviet Republic (RSFSR) put into circulation several types of so-called “commodity bonds” (товарные чеки) which gave their bearers the right to purchase consumer goods, such as refrigerators, washing machines, tape recorders and passenger cars. The Urozhay-90 (“Harvest-90”) bonds were one of many types of bonds; they were distributed among agricultural workers and companies which had sold grain and other agricultural produce to the State in 1990 and 1991. Those bonds were designed to encourage agricultural workers to sell produce to the State in exchange for the right to priority purchasing of goods in high demand (see paragraph 43 below). The State paid workers for the produce at fixed prices and also gave them bonds in amounts proportionate to the value of the produce sold.

The Urozhay-90 bonds were not legal tender, but they had a certain nominal value indicated on their face. That value determined the maximum purchase price of consumer goods which could be sold on production of the bonds. The bonds were not intended for payment but merely for certification of the right to purchase specific goods; the sale of goods was conditional on payment of the full purchase price by the bond-holder and production of the bonds for the same amount. The bonds were not registered in the person's name or otherwise personalised and the Government Resolution did not prevent them from being transferred among individuals and legal entities.

On 2 January 1992 the Russian Government decided to put an end to the regulation of retail prices. Shops began to fill up with merchandise but prices increased at a staggering speed (the inflation rate in 1992 was 2,600%). In March 1992, the Government established that goods available under the bonds would be sold at the prices fixed before 2 January 1992 (see paragraph 44 below).

In August 1992 the Government introduced the possibility of buying out the bonds with a coefficient of 10. In 1994, the coefficient was raised to 70 (see paragraphs 45 and 46 below). It appears that a significant number of bonds were bought out by the State before the buyout operations were stopped in 1996 (see paragraph 48 below).

In 1995 the status of the commodity bonds was codified in the Commodity Bonds Act passed by Parliament (see paragraph 47 below). Its text was very laconic, shorter than one page, but it purported to cover every type of commodities bonds issued in previous years. Section 1 recognised the commodity bonds as part of the internal debt of the Russian Federation; section 2 fixed at ten years the limitation period for the obligations arising out of commodity bonds (the starting date was not specified); section 3 required the Government to adopt a programme for settlement of the internal debt.

In 2000 the Government presented the programme for settlement of the internal debt (see paragraph 50 below). It covered every type of commodity bond, save for the Urozhay-90 bonds. A few months before the Commodity Bonds Act was amended so as to provide that the settlement of the debt under the Urozhay-90 bonds would be regulated by a special federal law (see paragraph 49 below).

Between 2003 and 2009 the application of section 1 of the Commodity Bonds Act was suspended in the part concerning the Urozhay-90 bonds, in accordance with the laws on the federal budget for each successive year (see paragraph 51 below).

In 2009 Parliament passed a law on the buyout of the Urozhay-90 bonds and the Government issued implementing regulations which set out a detailed procedure for buyout of the bonds (see paragraphs 52 and 53 below).

The applicants Mr Nikolay Malysh and Mr Vasiliy Bogomolov are holders of Urozhay-90 bonds with a total nominal value of 30,110 and 30,000 non-denominated Russian roubles (RUR) respectively.

In 2001 Mr Nikolay Malysh and Mr Bogomolov brought an action against the Russian Government and the Ministry of Finance, seeking compensation for the damage incurred through the State's continued failure to effect payment under the bonds.

After several rounds of judicial proceedings, on 13 January 2003 the Tambovskiy District Court of the Amur Region refused their claim for the following reasons:

“At present the State programme for settlement of the internal debt in the period 2001 to 2004 has been developed and is being implemented. The Commodity Bonds Act described the debt arising out the Urozhay-90 bonds as a medium-term debt. Accordingly, pursuant to Article 98 § 2 of the Budget Code of the Russian Federation, the maturity date has not yet occurred. It follows that the executive bodies of the Russian Federation are now taking measures for the settlement of the debt to the plaintiffs. In these circumstances, the court cannot find that any acts or failures to act on the part of the defendant have caused any damage to the plaintiffs.”

On 19 February 2003 the Amur Regional Court upheld that judgment on appeal.

The applicant Mr Nikolay Malysh also holds Urozhay-90 bonds with a total nominal value of RUR 582,665.

On 5 December 2002 he sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds.

On 4 March 2003 the Tambovskiy District Court of the Amur Region refused his claim for the same reasons as those given in the above-quoted judgment of 13 January 2003.

On 23 April 2003 the Amur Regional Court upheld the judgment on appeal.

The applicant Mr Sergey Iglin is the holder of Urozhay-90 bonds with a total nominal value of RUR 152,200.

On 20 February 2003 the Tambovskiy District Court of the Amur Region refused his claim for the same reasons as those given in the above-quoted judgment of 13 January 2003.

On 28 March 2003 the Amur Regional Court upheld the judgment on appeal.

The applicant Ms Zinaïda Sannikova is the holder of Urozhay-90 bonds with a total nominal value of RUR 223,170.

On 5 December 2002 she sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds.

After several rounds of judicial proceedings, on 1 July 2003 the Blagoveshchensk Town Court of the Amur Region refused her claim because a federal law governing the procedure for the settlement of the debt arising out of the Urozhay-90 bonds had not yet been adopted and because the law on the 2003 federal budget had suspended the application of the Commodity Bonds Act in the part concerning Urozhay-90 bonds.

On 6 August 2003 the Amur Regional Court upheld the judgment on appeal.

The applicant Ms Lyubov Nazarenko is the holder of Urozhay-90 bonds with a total nominal value of RUR 271,855.

On 19 March 2003 the Blagoveshchensk Town Court of the Amur Region refused her claim because a federal law governing the procedure for the settlement of the debt arising out of the Urozhay-90 bonds had not yet been passed and because the law on the 2003 federal budget had suspended the application of the Commodity Bonds Act in the part concerning Urozhay-90 bonds.

On 18 April 2003 the Amur Regional Court upheld the judgment on appeal.

The applicant Mr Sergey Malysh is the holder of Urozhay-90 bonds with a total nominal value of RUR 222,820.

After several rounds of judicial proceedings, on 27 March 2003 the Blagoveshchensk Town Court of the Amur Region refused his claim. It referred to the case-law of the Constitutional Court to the effect that:

“...the balance between the rights and lawful interests of persons who are creditors of the State, on the one hand, and all other persons, on the other hand, may only be fixed in the form of an act of the federal legislature.” (decision of 21 December 2000)

As no such act had yet been passed, the court dismissed Mr Sergey Malysh's action.

On 7 May 2003 the Amur Regional Court upheld the judgment on appeal.

On 26 July 1990 the RSFSR Council of Ministers adopted Resolution no. 259 on urgent measures for increasing the purchase of agricultural products harvested in 1990 and for ensuring their safe keeping. Its relevant parts resolved as follows:

“1. To authorise all manufacturers of agricultural produce to sell the surplus of such produce that remains after delivery under existing agreements ... to procurers or other consumers at negotiated prices...

To declare inadmissible any restrictions on the sale or shipment of agricultural produce to consumers in autonomous districts or regions of the RSFSR under paragraph 1 of the present resolution... Should local councils introduce such restrictions in their territories, the RSFSR Council of Ministers may stop issuing Urozhay-90 bonds or delivering goods on the basis of them in those territories...”

“7. To begin issuing, in 1990, Urozhay-90 bonds to employees of collective and Soviet farms, other agro-industrial enterprises and organisations, peasants' farms and owners of personal subsidiary land plots in respect of agricultural produce sold to the State.

To determine that the bonds certify the right to purchase goods in high demand at retail prices in trade outlets. The said bonds are not legal tender.

The RSFSR Ministry of Finance and the RSFSR Ministry of Agriculture and Food will, until 1 September 1990, print and put into circulation through the branches of the RSFSR State Bank Urozhay-90 bonds for a total amount of 10 billion roubles. The bonds are to be used before 1 October 1991.

To establish that Urozhay-90 bonds are issued by the branches of the RSFSR State Bank:

- to all producers who sold standard products to the State between 1 July 1990 and 30 June 1991 ... in an amount equivalent to 10% of the value of the products sold...

The Russian Consumers' Association is to submit to the RSFSR Ministry for Foreign Economic Relations requests for those goods in high demand which are to be sold on production of the Urozhay-90 bonds, and organise their sale, on advance orders by citizens and organisations, at regional fairs and exhibitions and in specialised trade outlets. The Consumers' Associations is to deliver goods to the consumers on the basis of the Urozhay-90 bonds no later than 1 January 1990 [sic]. In 1991 orders under the said bonds will be executed within two months.”

On 15 March 1992 the Russian Government issued Resolution no. 161, intended to compensate the owners of Urozhay-90 bonds for an increase in retail prices. It resolved, in particular:

“1. To establish that passenger cars and other consumer goods which are made available to citizens as a reward for the grain and other agricultural produce that was sold to the State in 1990 and 1991 are to be sold at the retail prices that prevailed before 2 January 1992...

To extend the period of validity of the Urozhay-90 bonds until the end of 1992...”

On 10 August 1992 the Government adopted Resolution no. 1442-r. It required the Russian ministries to allocate substantial amounts for the purchase of goods that were to be sold on production of the Urozhay-90 bonds. It further provided:

“4. The Ministry for Trade and Material Resources, in cooperation with the Central Consumers' Union, shall define, within two weeks, the list of goods intended for the implementation of the Urozhay-90 bonds...

The Prices Committee of the Ministry of the Economy shall determine the increase in prices of domestic and imported goods since 1990... The price difference shall be reimbursed from the republican budget.

The Ministry of Agriculture shall carry out an inventory of bonds held by agricultural enterprises and organisations and private individuals as on 1 September.

The Ministry of Finance and the Ministry of Agriculture shall, within two weeks, lay down the procedure for the buyout of the Urozhay-90 bonds through the branches of the Savings Bank. It is to be taken into account that these bonds may be either used for purchasing goods or bought out by the State with a coefficient of 10.”

On 16 April 1994 the Government approved Regulation no. 344 on State commodity bonds, which provided as follows:

“With a view to redeeming the State commodity bonds and preventing accrual of the State's liability to compensate for price differences, the Government of the Russian Federation resolves:

The Ministry of Finance of the Russian Federation –

– will buy out ... the Urozhay-90 bonds at a price equivalent to their nominal value multiplied by 70 and credit that amount into a bank account...”

On 1 June 1995 the Commodity Bonds Act (no. 86-FZ, ФЗ «О государственных долговых товарных обязательствах») was enacted. It provided that State commodity bonds, including Urozhay-90 bonds, would be recognised as part of the internal State debt of the Russian Federation (section 1). The obligations arising out of the commodity bonds would be settled in accordance with the general principles of the Russian Civil Code, the limitation period being set at ten years (section 2). The original wording of section 3 provided:

“The Government of the Russian Federation shall draft, in 1995-1997, the State Programme for settlement of the internal debt of the Russian Federation described in section 1, based on the principle of full compensation. The Programme shall provide for redemption terms ... convenient for citizens, including, according to their choice: provision of goods designated in ... the State bonds issued to agricultural suppliers ...; redemption of State commodity bonds at consumer prices prevailing at the time of the redemption ...; conversion of the debt into State securities...”

On 16 January 1996 the Government adopted Resolution no. 33, by which it annulled Regulation no. 344 and instructed the Ministry of Finance to redeem the State commodity bonds within the amounts allocated for that purpose in the federal budget.

On 2 June 2000, section 3 of the Commodity Bonds Act was amended to provide that the procedure for implementation of the State's obligations to holders of the Urozhay-90 bonds would be determined in a special federal law.

On 27 December 2000 the Government adopted the State Programme for settlement of the internal debt of the Russian Federation. Paragraph 14 of the Programme provided that the procedure for payments in respect of the Urozhay-90 bonds would be determined in a special federal law.

In 2003 the application of section 1 of the Commodity Bonds Act was for the first time suspended in the part concerning the Urozhay-90 bonds. The suspension clause was maintained in the following years (Federal Law no. 176-FZ of 24 December 2002; no. 186-FZ of 23 December 2003; no. 173-FZ of 23 December 2004; no. 189-FZ of 26 December 2005; no. 238-FZ of 19 December 2006; and no. 198-FZ of 24 July 2007).

On 19 July 2009 a federal law governing the procedure for the buyout of the Urozhay-90 bonds was adopted (no. 200-FZ – “the Buyout Act”). It established that holders of the bonds would be paid, in the period between 15 December 2009 and 31 December 2010, an amount equivalent to the nominal value of the bonds divided by 1,000 (section 2). The law also amended the Commodity Bonds Act by removing the reference to the Urozhay-90 bonds from section 1 of that Act.

On 15 September 2009 the Government issued Resolution no. 749, setting out the detailed procedure for payments in exchange for the production of Urozhay-90 bonds.

On 15 December 2000 the Constitutional Court gave a decision on an application lodged by the Parliament of the Sakha (Yakutiya) Republic, which had claimed that the amendments of 2 June 2000 (see above) had indefinitely delayed the implementation of the State's obligations towards the bearers of the Urozhay-90 bonds. The Constitutional Court declared the application inadmissible for the following reasons:

“In its [previous decisions] the Constitutional Court has already determined that a unilateral change in the scope of the State's obligations towards individuals, including the obligation to sell goods in exchange for commodity bonds, is impermissible. This does not exclude, however, the possibility of imposing restrictions on the property rights of individuals – in an established form and within the constitutional limits – in the matter of State obligations, which is compatible with Article 55 § 3 of the Constitution.

In particular, it follows from the case-law of the Constitutional Court ... that implementation of the rights and lawful interests of individual citizens or groups of citizens should not excessively and adversely affect the budgetary resources allocated for satisfying the rights and interests of society as a whole. This principle becomes particularly relevant in a situation where budgetary resources are insufficient to resolve many social problems relating to the exercise of the rights to life and personal dignity. It follows that the balance between the rights and lawful interests of the individuals who act as creditors for the State in property relationships, on the one hand, and everyone else, on the other hand, may, in principle, be struck only in the form of an act of Parliament.

Hence, given that the legislature may restrict individual rights and freedoms (including property rights) for the purpose of the protection of the rights and lawful interests of others, a review of the federal law amending section 3 of the Commodity Bonds Act by the Constitutional Court would imply an assessment of the financial and economic justification for the legislative decision on the procedure for settlement of State commodity bonds, which ... falls outside the jurisdiction of the Constitutional Court.

When examining claims relating to settlement of the State commodity bonds, courts of general jurisdiction have the right and duty to interpret the legislative provisions in the light of the interests of the individual (Articles 2 and 18 of the Constitution) and be guided, in particular, by section 2 of the Commodity Bonds Act, which establishes that State commodity bonds are to be settled in an appropriate form and in accordance with the Civil Code of the Russian Federation.”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

On 20 December 1996 the applicant was accused of an offence of attempting to sell explosives.

On 28 January 1997 he was arrested in the context of the criminal proceedings. On 30 January 1997 a judge ordered his release.

On 3 February 1997 the Minister of the Interior dismissed the applicant from the police. The decision referred to the conclusions reached by the Police Corps Inspection Office according to which the applicant had offered to sell explosives, and that on 8 June 1996 he had driven a car in which the police later found explosives.

On 26 March 1997 an expert opinion on the applicant’s mental health was submitted to the Žilina Regional Office of Investigation in the context of the criminal proceedings.

On 28 May 1997 the Žilina Regional Prosecutor indicted the applicant, charging him with two offences of involvement in the unauthorised transport of explosives before the Žilina Regional Court.

On 11 June 1997 the case was assigned to a different judge as the judge to whom the case had originally fallen to be examined was an acquaintance of the applicant.

On 25 November 1997 the Regional Court judge requested the Prievidza District Court to submit decisions concerning one of the accused.

On 16 April 1999 the Regional Court returned the case to the public prosecutor for further investigation. The prosecutor appealed on 27 April 1999. On 11 May 1999 the case was submitted to the Supreme Court. On 18 August 1999 the latter quashed the Regional Court’s decision of 16 April 1999 and ordered the first instance court to proceed with the case. The case file was returned to the Regional Court on 11 October 1999.

A hearing scheduled for 12 January 2000 had to be adjourned as one of the accused persons’ lawyers was absent.

Hearings were held on 17 February 2000, on 10 March 2000, on 16 June 2000 and on 27 July 2000. The case was adjourned as it was necessary to hear further witnesses.

On 13 September 2000 and on 26 October 2000 the case had to be adjourned as witnesses failed to appear.

On 29 November 2000 the Regional Court heard three witnesses. The case was adjourned as the court considered it necessary to hear another witness in respect of whom an arrest warrant had been issued. On 1 and 22 December 2000 and on 3 April 2001 the Regional Court asked the police to establish the whereabouts of the witness.

On 14 February 2001 the president of the Žilina Regional Court informed the applicant that the case had not been proceeded with in January 2001 as the presiding judge was ill.

On 10 May 2001 the Žilina Regional Court acquitted the applicant. On 17 August 2001 the public prosecutor appealed. One of the applicant’s co-accused also filed an appeal. The case file was transmitted to the Supreme Court on 27 August 2001. On 15 November 2001 one of the accused submitted observations on the public prosecutor’s appeal.

A hearing before the Supreme Court scheduled for 12 December 2001 was cancelled.

On 30 January 2002 the Supreme Court dismissed the appeals. The decision became final on the same day.

Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.

As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.

In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

The text of the above amendment was adopted on 23 February 2001 and published in the Collection of Laws on 17 March 2001.

The implementation of the above constitutional provisions is set out in more detail in Sections 49-56 of Act no. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.

After that date the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred. The Constitutional Court has held that it can examine complaints about delays in proceedings only when the proceedings complained of were pending at the moment when the constitutional complaint was filed.

Section 18 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can only be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.

Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration of a person’s health. In such cases the amount of compensation is governed by Regulation No. 32/1965.


Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicants, Mr Cumpănă and Mr Mazăre, were born in 1951 and 1968 respectively and live in Constanţa.

In decision no. 33 of 30 June 1992, Constanţa City Council, implementing government decision no. 147 of 26 March 1992, introduced a fine for drivers of illegally parked vehicles and entrusted the task of removing, towing away and impounding such vehicles to S.C. CBN, a company based in Constanţa.

By order no. 163 of 30 June 1992, the mayor of Constanţa authorised a private company, Vinalex, to perform the services of removing, towing away and impounding illegally parked vehicles.

A partnership contract was signed on 16 December 1992 by the city authorities and the company in question, the signatories on behalf of the authorities being the deputy mayor (hereinafter “D.M.”) and the council’s legal expert (“Mrs R.M.”). In a letter of 1 April 1994, the mayor of Constanţa requested Vinalex to cease its activities under the contract and informed it that it was considering terminating the contract.

On 12 April 1994 the applicants, who are journalists by profession, published an article in the local newspaper Telegraf, of which the second applicant was the editor, with the headline “Former Deputy Mayor [D.M.] and serving judge [R.M.] responsible for series of offences in Vinalex scam”. The names of the former deputy mayor and of the city council’s former legal expert, Mrs R.M., who had subsequently become a judge, were printed in full in the headline and in the article itself.

The article, which appeared under the byline of both applicants, was worded as follows:

“In decision no. 33 of 30 June 1992 Constanţa City Council entrusted a commercial company, S.C. CBN S.r.l., with the task of impounding illegally parked vehicles or trailers ... It was the duty of the city authorities’ specialist departments to lay down the practical arrangements for implementing the council’s decision. But things did not turn out that way. Six months after decision no. 33 was adopted, the city authorities, knowingly breaching the provisions of Law no. 69/1991, illegally concluded a partnership contract ... with S.C. Vinalex S.r.l., a company having no connection with the one initially chosen. It is worth noting, however, that the contract in question was signed by the deputy mayor, [D.M.], in place of the mayor, ... and by a certain [M.] instead of the legal expert [M.T.].

By what miracle did S.C. Vinalex enter into a partnership with the city authorities when, in decision no. 33 of 30 June 1992, the city council had authorised CBN S.r.l. to provide a straightforward service? What is striking is that there is no evidence that CBN agreed to give up the task of towing away illegally parked vehicles! ... The crook [D.M.] (the former deputy mayor, now a lawyer) granted Vinalex’s irresponsible employees the power to decide when a vehicle is illegally parked – in other words, to treat citizens and their property with contempt. What form did the fraud take? Sections 89 and 29 of Law no. 69/1991 provide that no partnership contract with a commercial company may be signed without a prior decision by the local council, adopted by a two-thirds’ majority of the total number of councillors. Before a contract is signed, it must be referred to all the local council’s specialist committees for their opinion ... The contract with Vinalex was negotiated and signed illegally, as the signatories based it on the decision [of 30 June 1992], which, as has already been shown, referred to a different company without envisaging any other partnership.

Given that the city authorities had already signed four other contracts before that one, the signatories cannot claim ignorance of the law, but only an intentional breach of it! And because any intentional breach of the law pursues an end in itself – generally that of securing material advantages – it is clear that in this case the former deputy mayor, a lawyer by profession, received backhanders from the partner company and bribed subordinates, including [R.M.], or forced them to break the law.

The Constanţa Audit Court detected this blatant fraud, which has generated considerable profits for the briber (S.C. Vinalex) ... The offending company [S.C. Vinalex] has never shown that it had adequate means to impound illegally parked vehicles. This explains why large numbers of privately owned vehicles have been damaged and, as a result, thousands of complaints have been made on the subject.

Furthermore, the alleged partnership contract was valid for one year, until 16 December 1993. From that date [S.C. Vinalex] no longer had any right to interfere with citizens’ private property! It has nevertheless continued to tow vehicles away and illegally collect money ... It is incomprehensible how the police could have provided it with assistance for the past four months.

Let us briefly consider the conduct of the council’s former legal expert, [R.M.], who is now a judge. Either she was ignorant of the law when she signed the contract, in which case it is hard to understand how she can subsequently have been appointed as a judge (delivering justice on the basis of the same laws which she does not know), or she accepted bribes and may continue to do so in future! It is no surprise that the same judge should have been investigated by the Audit Court for a further illegal act, also committed while she was at the city council (as we reported at the time). Ironically, the Court’s president did not take any action against her on the ground that the sum received was not ... large enough.

Apparently becoming aware that the matter was likely to be uncovered, the city authorities’ coordination department ... notified S.C. Vinalex in writing of the possibility of the contract being terminated on the following grounds: ... ‘You have not supplied any documents showing that you have purchased the platform-type equipment necessary for carrying out the activity properly’ (as stipulated in clause 3 of the contract ...). In the same letter the city authorities informed S.C. Vinalex: ‘As you have not proved that you have the appropriate equipment, we would assess your contribution to the partnership at the level of your company’s capital, that is 110,000 lei. Your share in the partnership’s net income will have to be recalculated in relation to the parties’ contributions.’

Facts are facts, and the documents in our possession speak for themselves of the illegal Vinalex scam.”

The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away, photocopies of extracts from the partnership contract and from Constanţa City Council’s decision of 30 June 1992, and certain passages of Law no. 69/1991 concerning the responsibilities and powers of mayors, prefects and city and county councils.

The article was also accompanied by a cartoon showing a man and a woman arm in arm, carrying a bag marked “Vinalex” which was full of banknotes. The two characters were depicted as saying to each other:

“Hey, [R.] [diminutive form of Mrs R.M.’s first name], you’ve done a good job there! When I was deputy mayor we made quite a bit, enough to go to America ...”

“[D.] [diminutive form of the former deputy mayor’s first name], if you become a lawyer, I’ll become a judge and we’ll have enough to travel round the world ...”

In June 1994 the Financial Control Department of the County Audit Court examined a report submitted on 26 May 1994 by several auditors who had conducted a review of Constanţa City Council’s budget for 1992 and had made the following findings:

(a) The city council’s decision of 30 June 1992 to award S.C. CBN the contract for towing away illegally parked vehicles had not been justified by any bid submitted in writing by the company or by the company’s aims as set forth in its articles of association.

(b) The city council had not given its opinion on the partnership contract signed between the city authorities and Vinalex, and no expert valuation of Vinalex’s assets had been carried out or submitted to the council for approval, contrary to the provisions of the Local Public Administration Act (Law no. 69/1991).

(c) The distribution of the proceeds among the parties as agreed in the contract – 70% to Vinalex and 30% to the city council – had not corresponded to the partners’ respective contributions on the date on which the contract had been signed – 76.4% by the city council and 23.6% by Vinalex – resulting in a loss of income for the city council.

The Financial Control Department considered it necessary to urge the mayor of Constanţa, as the official responsible for authorising appropriations, to “ensure compliance with the law” as regards the parties’ obligations under the contract and to be more efficient when entering into such partnerships with private entities in future. A formal decision to that effect was adopted on 8 June 1994 by the head of the department.

The applicants produced to the Court a report dated 17 March 1994 by the same Audit Court auditors, which likewise referred to the irregularities described in paragraph 23 above in the signing of the partnership contract between the city authorities and Vinalex, and indicated that the contract should be terminated. The applicants did not mention the existence of such a report during the criminal proceedings instituted against them following the publication of the impugned newspaper article.

On 14 April 1994, following the publication of the article, Mrs R.M. instituted proceedings against the applicants in the Constanţa Court of First Instance for insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. She complained, in particular, of the cartoon accompanying the article, which had depicted her as a “woman in a miniskirt, on the arm of a man with a bag full of money and with certain intimate parts of her body emphasised as a sign of derision”. She submitted that the article, the cartoon and the dialogue between the characters had led readers to believe that she had had intimate relations with D.M., and pointed out that she and the former deputy mayor were both married.

At a hearing on 13 May 1994, the court adjourned the case as the applicants were not present and, scheduling a further hearing for 27 May 1994, directed that they should be brought before the court on that date.

On 27 May 1994 the second applicant stated at the hearing that, as editor, he assumed full responsibility for what had been published in the newspaper. He explained that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the claimant’s reputation. In reply to a question from the court, he admitted having known that, by order of the mayor of Constanţa, Vinalex had been authorised to tow away illegally parked vehicles. He stated, however, that he had not thought it necessary to publish that information. Lastly, he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article in her favour provided that she could prove that what he had published was untrue.

On 10 June 1994 the applicants applied to have the case transferred to a court in another county. They also requested an adjournment of the proceedings, arguing that because the claimant was a judge it was impossible for them to find a member of the Constanţa Bar who would agree to represent them.

On an unspecified date the Constanţa Bar, in reply to a question from the court, attested that the applicants had not met with a refusal on the part of all of its members and that, in any event, the matter had not been referred to its executive.

On 15 June and 1 July 1994 the court adjourned the case as the applicants were not present.

In an interlocutory decision of 21 July 1994, the Supreme Court of Justice ordered the referral of the case to the Lehliu-Gară Court of First Instance.

On 15 November 1994 the case was entered on that court’s list of cases for hearing. Public hearings were held on 21 December 1994 and on 25 January, 27 February, 20 March, 17 April and 17 May 1995.

On 21 December 1994 and 25 January 1995 the applicants did not attend the hearings, although they had been duly summoned. The court summoned them to appear at the hearings on 25 January and 27 February 1995. The applicants did not comply with the summonses.

At the hearings on 27 February and 20 March 1995, representatives of Telegraf applied for an adjournment on behalf of the applicants, who were not present. The court allowed the application.

On 20 March 1995 a member of the Bucharest Bar, N.V., agreed to represent the applicants.

At the hearing on 17 April 1995 in the morning, N.V. asked the court to consider the case after 11.30 a.m. The court granted his request. However, when it sat to examine the case at 12 noon and, subsequently, at 2.30 p.m. it noted that neither the applicants nor their counsel were present in the courtroom. It accordingly adjourned the case until 17 May 1995.

At the hearing on 17 May 1995 the court reserved judgment, after noting that neither the applicants – despite their having been duly summoned – nor their counsel had appeared. In a judgment delivered on the same day, the court found the applicants guilty of insult and defamation – offences under Articles 205 and 206 respectively of the Criminal Code. It sentenced them to three months’ imprisonment for insult and seven months’ imprisonment for defamation, and ordered them both to serve the heavier sentence, namely seven months’ immediate imprisonment. As well as this main penalty, the court imposed the secondary penalty of disqualification from exercising all the civil rights referred to in Article 64 of the Criminal Code (see paragraph 58 below).

It also prohibited the applicants from working as journalists for one year after serving their prison sentences, a security measure provided for in the first paragraph of Article 115 of the Criminal Code (see paragraph 59 below).

Lastly, it ordered them to pay Mrs R.M. 25,000,000 Romanian lei (ROL) (equivalent to 2,033 euros at the exchange rate applicable at the material time) for non-pecuniary damage.

In stating its reasons for the judgment, the court observed, firstly:

“The Court notes that the injured party has always been present, both in the Constanţa Court of First Instance and in the Lehliu-Gară Court of First Instance, whereas the defendants have generally been absent without justification, despite having been lawfully summoned. In support of her prior complaint, the injured party, Mrs [R.M.], sought leave to produce documentary evidence. Mrs [R.M.] submitted a copy of the 12 April 1994 edition of the local newspaper Telegraf, containing the article referred to in her complaint and the cartoon in which she was ridiculed.

The Court notes that the defendants and the party liable to pay damages, despite being lawfully summoned, have not attended any hearings, and that only the injured party has been present.

The Court notes that the defendants R. Mazăre and C. Cumpănă were informed of the charges against them and of the hearing dates, and that they were assisted by a lawyer of their choosing (who asked the Court first for an adjournment and subsequently for consideration of the case to be postponed until the second sitting, after 11.30 a.m.).

The Court observes that the defendant R. Mazăre gave evidence to the Constanţa Court of First Instance at a public hearing on 27 May 1994, and notes the following from his testimony: the defendant considered that it was not compulsory to have studied at journalism college to work as a journalist; he refused to reply when asked whether he had had access to any other documents on which Constanţa City Council’s decision no. 33 had been based; he understood by ‘series of offences’ the fact of committing several offences; he understood by ‘a multiple breach of the criminal law’ the commission of several offences; he considered that the injured party, in signing the contract in her capacity as a legal expert at the city council, had infringed a number of the provisions of Law no. 69/1991; he pointed out that he could not give the precise legal classification of the offences committed by the injured party, as that did not come within his sphere of competence; he stated that he had said everything there had been to say about the injured party in the newspaper article; he submitted that cartoons were used everywhere and maintained that he had not (through the cartoon) damaged anybody’s reputation (specifically, that of the injured party).

[The Court] notes that the defendant R. Mazăre stated that he assumed full responsibility for everything published in his newspaper, as its editor; ... that he stated that he was aware of the constitutional provisions on the right of journalists to impart information to the public; that he had read the government decision in its entirety but had not published it for lack of space; that he also stated that he had read the full text of the partnership contract entered into by the city authorities and signed by the injured party, Mrs [R.M.], but that he did not know whether the government decision had referred to partnership contracts; ... that the defendant had been aware that the Vinalex company had been authorised by order of the mayor of Constanţa to provide the service of towing away illegally parked vehicles, but that he had not thought it necessary to publish that information in the newspaper; and, lastly, that he stated: ‘In view of the seriousness of the offences committed, I do not think that it was necessary to discuss the matter with the injured party beforehand. Should any documents prove that my statements are unfounded, I am prepared to publish an article in the injured party’s favour.’ ”

With regard to the documentary evidence on which the injured party intended to rely in support of her allegations, the court observed:

“Apart from the article published in Telegraf, the injured party, Mrs [R.M.], produced Constanţa City Council’s decision no. 33 – adopted in accordance with government decision no. 147 of 26 March 1992 – in which it was decided to tow away illegally parked vehicles; order no. 163 of 30 June 1992 by the mayor of Constanţa ... authorising the Vinalex company to remove, tow away and impound illegally parked vehicles (‘The conditions for the performance of these services shall be laid down in the partnership contract to be drawn up’); government decision no. 147 of 26 March 1992, in which mayors were empowered to order the removal, towing away and impounding of illegally parked vehicles by duly authorised specialist companies; and order no. 369 of 1 July 1994 by the mayor of Constanţa, in which Vinalex was authorised to provide such services.”

With regard more particularly to the article and cartoon in issue, the court held:

“... the article, by the defendants R. Mazăre and C. Cumpănă, was directed at the injured party, tarnishing her honour, dignity and public image and injuring her own self-esteem by means of the (written) accusations conveyed through signs and symbols targeted specifically at her.

The Court considers that these acts took place, that they are punishable under the criminal law, and that they posed a danger to society, not so much because of their practical effect (physical distortion of outward reality) but above all because of the psycho-social consequences resulting from the provision of misleading or incorrect information to the public, giving rise to inaccurate judgments about facts and individuals, establishing a false scale of values in view of the role and public impact of the media, and causing psychological trauma to the injured party. In making its assessment, the Court has had regard to the particular status of the parties to the proceedings: the injured party, Mrs [R.M.], being a lawyer and a representative of the judiciary, and the defendants, Mr R. Mazăre and Mr C. Cumpănă, being representatives of the media.

The Court notes that the defendant R. Mazăre, while realising the seriousness of the acts he had committed, irresponsibly stated that he had been ‘aware of the fact that Vinalex had been authorised by order of the mayor, but did not consider it necessary to publish that order (as well)’...

The Court considers that publication of the article in the newspaper cannot have been justified by a ‘legitimate interest’ in that it was not based on actual facts and the provision of accurate information to the public. It concludes that the defendants ... ‘forgot’ the content of Article 30 § 6 of the Constitution: ‘Freedom of expression shall not be prejudicial to a person’s dignity, honour and private life or to the right to one’s own image’, and of Article 31 § 4 of the Constitution: ‘Public and private media shall be required to provide the public with accurate information.’

It follows from the written submissions filed by the injured party ... that it was always her wish that the criminal proceedings be terminated by a friendly settlement, provided that the defendants agreed to retract the allegations made in the article.

The Court notes that the injured party is a public figure and that, following the publication of the article, her superiors and the authority above them asked her to explain herself regarding the trial, particularly in view of the fact that she was due to take the professional examination to obtain permanent status.”

On an unspecified date the applicants appealed against the first-instance judgment of 17 May 1995.

At a hearing on 2 November 1995, the Călăraşi County Court reserved judgment, having noted that the case was ready for decision and that the applicants had not appeared in court, despite having been duly summoned, and had not stated any grounds for their appeal.

In a judgment of 2 November 1995, the court, after examining all the aspects of the case against the applicants, as required by Article 3856 of the Code of Criminal Procedure, upheld the first-instance judgment, finding it to have been correct. The County Court’s judgment, sent to the archives on 23 November 1995, was final and binding and no ordinary appeal lay against it.

On 10 April 1996 the Procurator-General applied to the Supreme Court of Justice to have the judgments of 17 May 1995 and 2 November 1995 quashed. He submitted the following arguments.

(a) The courts’ legal classification of the facts had been incorrect. Pointing out that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of certain city council officials, he accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in Article 205 of the Criminal Code.

(b) The amount the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified.

(c) Lastly, the requirements of the first paragraph of Article 115 of the Criminal Code, by which the courts could prohibit persons who had committed unlawful acts from practising a particular profession on account of their incompetence, lack of training or any other ground making them unfit to practise the profession, were not satisfied in the applicants’ case, as there was no unequivocal proof that the applicants were incompetent to continue working as journalists or that their doing so entailed a potential danger.

In a final judgment of 9 July 1996, the Supreme Court of Justice dismissed the Procurator-General’s application as being manifestly ill-founded, for the following reasons:

“It has been established from the evidence adduced in the present case that on 12 April 1994 the accused, R. Mazăre and C. Cumpănă, published an article in the Constanţa newspaper Telegraf entitled ‘Former Deputy Mayor [D.M.] and serving judge [R.M.] responsible for series of offences in Vinalex scam’, in which it was asserted that in 1992, while she was employed as a legal expert at Constanţa City Council, the injured party, Mrs [R.M.], had been involved in fraudulent activities on the part of a commercial company, Vinalex.

The Supreme Court further notes that, alongside the above-mentioned article, the accused published a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money on his back, and that this was likely to tarnish the injured party’s honour, dignity and public image.

It follows that in publishing the article in Telegraf, the accused attributed specific acts to the injured party which, had their allegations been made out, would have rendered her criminally liable; the two lower courts were therefore correct in finding the accused guilty of defamation under Article 206 of the Criminal Code.

The fact that the accused published alongside the above-mentioned article a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money, in such a way as to tarnish her honour and reputation, constitutes the offence of insult as defined in Article 205 of the Criminal Code ...”

With regard to the amount which the applicants had been ordered to pay in damages, the Supreme Court held:

“... the requirement for the accused to pay 25,000,000 lei for non-pecuniary damage was justified, since it is beyond dispute that in publishing the article on 12 April 1994 in a mass-circulation newspaper, the accused seriously offended the dignity and honour of the injured party.”

The Supreme Court held, lastly, in relation to the alleged unlawfulness of the temporary prohibition on the applicants’ working as journalists:

“... since the application of security measures in circumstances other than those provided for by law does not feature on the exhaustive list of cases in which the law permits the Procurator-General to apply to have a decision quashed, it cannot form a legal basis for quashing the judgments in issue.”

The applicants did not serve the prison sentence they had received in the judgment of 2 November 1995, since immediately after the judgment had been delivered the Procurator-General suspended its execution for eleven months by virtue of Article 412 of the Code of Criminal Procedure (see paragraph 61 in fine below).

In a letter of 30 September 1996, the Procurator-General at the Supreme Court of Justice informed the applicants that he had extended the stay of execution until 27 November 1996.

On 22 November 1996 the applicants were granted a presidential pardon dispensing them from having to serve their prison sentence. By virtue of Article 71 of the Code of Criminal Procedure, the pardon also waived their secondary penalty of disqualification from exercising their civil rights (see paragraph 58 in fine below).

It appears from the first applicant’s employment record (cartea de muncă), of which he submitted a copy to the Court, that, following the Călăraşi County Court’s judgment of 2 November 1995:

(a) he continued to work for Telegraf as editor of the “Events” section until 1 February 1996, when he was transferred for administrative reasons to the C. company, occupying the same position and receiving the same salary as before;

(b) while working for C., he was awarded a pay rise;

(c) he ceased to work for C. on 14 April 1997 on account of staff cutbacks by his employer, a ground for dismissal provided for in Article 130 (a) of the Labour Code as worded at the material time;

(d) thereafter, he was not gainfully employed until 7 February 2000, when he was recruited on a permanent contract by the A. company as deputy editor.

Following the final and binding judgment of 2 November 1995, the second applicant continued to work as editor of Telegraf, as indicated in a letter he sent to the Court on 19 January 2000.

Between 1 September 1997 and 30 November 1999, while he was a member of the Romanian parliament, the sum of ROL 25,000,000 was deducted from his parliamentary allowance and transferred to Mrs R.M.’s bank account, pursuant to the Lehliu-Gară Court of First Instance’s judgment of 17 May 1995 (see paragraph 37 in fine above).

On an unspecified date after that judgment, he was elected mayor of Constanţa, a position he still holds.

At the material time the relevant provisions were worded as follows:

“Anyone who tarnishes the reputation or honour of another through words, gestures or any other means shall be liable to imprisonment for between one month and two years or to a fine.”

“Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium shall be liable to imprisonment for between three months and three years or to a fine.”

In Resolution no. 1123 of 24 April 1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe observed that Articles 205 and 206 of the Romanian Criminal Code were unacceptable and seriously compromised the exercise of fundamental freedoms, in particular the freedom of the press. The Assembly therefore called on the Romanian authorities to amend those provisions without delay.

Following a process of legislative reform, the New Romanian Criminal Code Act (Law no. 301 of 28 June 2004) provides that the offence of defamation is punishable solely by a fine (Article 225 of the New Criminal Code) and no longer classifies insult as a criminal offence. These legislative amendments will come into force on 29 June 2005.

The relevant provisions are worded as follows:

“Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:

(a) the right to vote and to be elected to bodies of a public authority or to public elective office;

(b) the right to occupy a position entailing the exercise of State authority;

(c) the right to perform a duty or practise a profession or activity by means of which the convicted person carried out the offence;

(d) parental rights;

(e) the right to act as a child’s guardian or statutory representative.”

“The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.

A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...”

The relevant provision is worded as follows:

“Anyone who has committed an [unlawful] act through incompetence, lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or activity may be prohibited from performing those duties or practising that profession or activity. Such a measure may be revoked on request after one year if the grounds on which it was imposed are no longer valid.

“A pardon shall have the effect of waiving the execution of a sentence. ... A pardon shall have no effect on security measures or educational measures.”

“A person sentenced to a term of imprisonment of less than one year shall be legally rehabilitated if he does not commit any further offences for three years.”

“The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final decision to be quashed.”

“An application to have a final conviction ... quashed may be made:

I. ...

where the penalties imposed fell outside the limits prescribed by law;

where the offence was incorrectly classified in law ...”

“Before applying to have a decision quashed, the Procurator-General may order a stay of its execution.”


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

The applicants are the co-owners of a plot of land in Drafi. Adjacent to their plot, but separated by a road, there are three plots of land owned by a co-operative of civil servants of the Ministry of Agriculture, Mr M and Mr Y respectively. On 11 May 1974 an area comprising the three plots of land in question was included in the town plan. The applicants’ plot was not. In September 1977 a decision drawing the exact limits of the area covered by the town plan was issued.

On 1 June 1989 the applicants obtained a permit for the reconstruction of a house on their plot of land.

On 15 February 1992 the forests’ inspector requested the authorities to revoke the applicants’ reconstruction permit on the ground that their plot of land was in a forest area. On 20 February 1992 the first applicant lodged with the Council of State an application for judicial review of the forests’ inspector’s request.

On 6 April 1993 the first applicant lodged with the Council of State an application for judicial review of a series of acts in essence preparing the modification of the town plan of 11 May 1974.

On 19 July 1993 the authorities proposed a modification of the town plan. The applicants objected.

On 12 January 1994 the authorities informed the applicants that they were not entitled to compensation for the expropriation of part of their plot of land that would result from the 19 July 1993 modification of the town plan. As a result, the expropriation in question needed not be revoked.

On 31 January 1994 the prefect decided that the applicants’ plot of land was part of an area that should be turned back into a forest.

On 22 April 1994 the applicants applied to the Council of State for judicial review of the refusal of the authorities to revoke the expropriation plan. The proceedings are still pending.

On 5 May 1994 the prefect issued a second decision to the effect that the applicants’ plot of land was part of an area that should be turned back into a forest.

On 4 July 1994 the applicants applied to the Council of State for judicial review of the prefect’s decision of 5 May 1994. The proceedings are still pending.

On 2 November 1994 the applicants applied for judicial review of the prefect’s decision of 31 January 1994. The proceedings are still pending.

On 2 October 1995 the head of the district (periferiarhis) issued a decision confirming the decisions of 31 January 1994 and 5 May 1994 of the prefect. On 27 November 1995 the applicants applied to the Council of State for judicial review of this decision. The proceedings are still pending.

On 12 September 1996 the applicants intervened in the proceedings instituted in the Council of State by the co-operative against the forests’ inspector.

On 9 July 1997 the Council of State at the request of the minister examined a draft decree with a new proposed modification of the town plan. It found it to be illegal.

On 15 May 1998 Y obtained a new building permit. On 1 October 1998 the applicants applied to the Council of State for judicial review of the relevant decision. The proceedings are still pending.

On 5 January 1994 the first applicant submitted additional observations for the judicial review of the modification of the town plan. The Council of State fixed the date of the hearing for 7 December 1994, but on that date it decided to adjourn the case until 5 April 1995 and then until 29 November 1995 and 8 May 1996. On 22 April 1996 the applicant submitted fresh observations whereby he declared that he also challenged another act, the Presidential Decree which approved the modification of the town plan. Moreover, the first applicant rebutted the arguments of the cooperative (which had intervened in the proceedings in favour of the State on 22 March 1995) and submitted thirty-nine new documents for consideration by the Council of State.

As a result, the hearing was adjourned again until 18 December 1996 and then until 8 January 1997, 12 March 1997, 21 May 1997 and 15 October 1997. On 25 September 1997 and again on 6 October 1997 the applicant submitted additional observations and evidence. On 13 October 1997 he challenged the reporting judge and another judge of the bench of the Council of State and thus the hearing was adjourned until 5 November 1997. On that date the Council of State dismissed the challenge.

On 19 November 1997, the first applicant submitted further observations and further evidence.

On 29 June 1998 the Council of State rejected the first applicant’s application (judgment no. 2777/1998) on the ground that “preparatory acts” could not be challenged. The applicant received a copy of the judgment on 1 October 1998.

On 27 October 1998 the applicant asked for the reopening of the proceedings concerning his application of 6 April 1993 on the ground that the Council of State had not taken into consideration certain documents which had been missing from the file.

On 26 March 1999 the President of the Fifth Chamber of the Council of State decided that the application would be heard on 20 October 1999. Thus the Council of State granted the applicant’s request to join this application to the application which he had lodged with his wife on 22 April 1994. On 29 September 1999 the applicant submitted observations in regard to this latter application. On 20 October 1999 the case was adjourned until 2 February 2000. However, on 17 January 2000 the reporting judge resigned and the Council of State adjourned the examination of the case until 17 May 2000. On that date a new reporting judge was appointed and the hearing fixed on 22 November 2000.

On 22 April 1994 the applicants applied to the Council of State for judicial review of the refusal of the authorities to revoke the expropriation plan. A hearing was listed for 5 April 1995. On that date the Council of State adjourned the consideration of the case until 13 December 1995, 5 June 1996, 13 November 1996, 2 April 1997, 24 September 1997 and 8 April 1998. According to the Government, these adjournments were decided by the Council of State in agreement with the applicants who wanted the Council of State to consider first their application introduced on 6 April 1993.

On 2 December 1998 the hearing was adjourned again because the reporting judge was on sabbatical leave. As a result, the presiding judge appointed another reporting judge and adjourned the consideration of the case until 12 May 1999.

In view of the new date of the hearing, the applicants submitted additional observations whereby they challenged three more acts, in addition to those indicated in their application of 22 April 1994. Consequently, the hearing was adjourned until 20 October 1999, when the Council of State would examine the application made by the first applicant on 27 October 1998.

On 19 January 2000 the case was struck off the list and returned to be heard by the Administrative Court of Appeal, by virtue of article 29 § 1 of Law no. 2721/1999.

When the Government submitted their observations to the Court, the case file had not been transmitted to the Administrative Court of Appeal because, on 25 January 2000, the applicants invited the Council of State to hold a hearing for both applications of 22 April 1994 and 27 October 1998. The hearing was set down for 27 September 2000 but was adjourned until 22 November 2000, in order for the applicant’s request for a joint hearing with his applications of 6 April 1993 and 27 October 1998 to be satisfied.