Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 (conviction);Violation of Art. 6-1 and 6-3-c;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1971 and lives in Moscow.

On 3 June 1998 the applicant was arrested and taken to the Kapotnya district police station in Moscow, where he was searched and found to be in possession of a sachet of heroin. In a decision of 4 June 1998 the head of the Kapotnya district police department held that the applicant had committed an act of petty hooliganism and ordered him to pay an administrative fine. He was released on 5 June 1998, according to his submissions, and on 4 June 1998, according to the Government. On 5 June 1998 criminal proceedings were brought against the applicant on suspicion of procuring and storing drugs. The investigation resulted in the indictment of the applicant for procurement, storage and sale of drugs, punishable under Article 228 § 4 of the Criminal Code.

On 2 April 1999 the Lyublinskiy District Court of Moscow convicted the applicant and SZ under Article 228 § 4 of the Criminal Code of having unlawfully procured, stored with a view to their sale and sold drugs in “particularly large” quantities. The applicant was sentenced to seven years’ imprisonment and a confiscation order was made. Further to a medical report, he was ordered to undergo compulsory psychiatric treatment for drug addiction.

At the hearing before the District Court the applicant stated that on 2 June 1998 he had telephoned SZ. He asked SZ to obtain drugs for him. SZ said that he would try to do so and they agreed that the applicant would go to SZ’s flat. Shortly afterwards, OZ called the applicant and asked him to buy heroin for her. She complained that she badly needed drugs as she was suffering from withdrawal symptoms. Frightened that she might commit suicide, the applicant agreed and arranged to meet her near the block of flats where SZ lived. They met later in the evening. He received 200 roubles (RUR) from OZ and went to SZ’s flat, where SZ sold him one sachet of heroin at a cost of RUR 300. Since the amount of heroin bought from SZ was insufficient even for his own needs, he decided not to share it with OZ. The applicant further submitted to the court that he had subsequently given OZ a soporific, telling her that the narcotic was of bad quality and that he would repay her money later. As he left, he saw people approaching who were, as he subsequently learned, police officers. He escaped from them, throwing the drugs away. Later that night he returned and found the drugs. The next day, with the drugs still in his possession, he went to work, where he was arrested by the police. They found the drugs in his possession and seized them.

The applicant’s codefendant SZ also submitted at the hearing before the District Court that he had sold the applicant one sachet of heroin for RUR 300.

The District Court observed that the applicant’s testimony in court differed from that which he had consistently given throughout the pre-trial investigation, when he had pleaded guilty to buying two sachets of heroin from SZ, one for OZ and the other for himself, for RUR 400, of which RUR 200 had been received from OZ. He also admitted that he had repeatedly bought drugs from SZ. Similarly, SZ stated throughout the pretrial investigation that he had sold two sachets of heroin to the applicant for RUR 400.

The District Court heard EF and MB, police officers from the criminal investigation department of the Kapotnya district police of Moscow, who submitted that the police had information that the applicant was involved in selling drugs. OZ, who knew the applicant and could obtain drugs from him, was selected to verify that information. She agreed to take part in a “test purchase” of drugs, to be organised by the criminal investigation department. OZ was given RUR 200 in cash for that purpose. She was searched and no narcotics were found on her before her meeting with the applicant. She then made an appointment with the applicant. OZ was placed under permanent surveillance, in the course of which EF and MB saw the applicant and OZ meet, enter the block of flats in which SZ lived and leave the building some time later. OZ gave a previouslyagreed sign indicating that she had purchased drugs from the applicant. The police officers tried to apprehend the applicant but he escaped. OZ was brought to a police station where, in the presence of witnesses, she handed over a sachet of heroin which she claimed had been sold to her by the applicant, who had procured it from SZ. On the following day, the applicant was brought to the Kapotnya district police station, where he was searched and found to be in possession of a sachet of heroin.

Witness OZ explained to the District Court that she had voluntarily assisted the police in exposing drug trafficking by the applicant. Her evidence was similar to that of police officers EF and MB.

According to expert reports, the substance contained in the sachet handed to the police by OZ was heroin, weighing 0.008 grams, and the substance contained in the sachet found by the police in the applicant’s possession, in the circumstances described above, was also heroin, weighing 0.31 grams.

The District Court examined written evidence and statements by other witnesses, including a witness who had seen the applicant with a girl near the block of flats where SZ lived at the time of events in question.

The District Court held that statements by the applicant and SZ during the pre-trial investigation were corroborated by witnesses’ testimony, expert opinions and written evidence in the case. It found that all the evidence in the case had been obtained in accordance with the law and that the applicant’s defence rights, including the right to legal assistance, had been properly secured by the investigating authority. It concluded that on 2 June 1998 the applicant had procured two sachets of heroin from SZ, had sold one of them to OZ and had kept the other with a view to its sale.

The applicant appealed against the District Court’s judgment of 2 April 1999, complaining of violations of the criminal procedural law at the pre-trial investigation stage, including a violation of his defence rights. He also pointed out the lack of evidence of his guilt in the sale of drugs and asked that his actions be re-classified as the illicit procurement and storage of drugs without intent to sell, punishable under Article 228 § 1 of the Criminal Code. On 17 May 1999 the Moscow City Court upheld the findings of the District Court and dismissed the appeal. It found that the applicant’s guilt had been fully proven by his own statements and the other evidence in the case and that there had been no substantial violations of the criminal procedural law during the pre-trial investigation or at the trial which would require the quashing of the judgment.

On 10 November 2000 the Deputy President of the Supreme Court of the Russian Federation lodged an application with the Presidium of the Moscow City Court to review the case in supervisory proceedings (протест). The grounds for the request were that the applicant’s actions should have been classified as the illicit procurement and storage of drugs without intent to sell, punishable under Article 228 § 1 of the Criminal Code. The application called for the judgment of 2 April 1999 and the appeal decision of 17 May 1999 to be amended so that the applicant would be convicted under Article 228 § 1 of the Criminal Code, sentenced to two years’ imprisonment and released from that sentence pursuant to the relevant amnesty law.

On 16 November 2000, at the request of the Deputy President of the Supreme Court, the Presidium of the Moscow City Court, composed of seven judges, reviewed the case under the supervisory review procedure (пересмотр в порядке надзора). The applicant and his counsel were not informed of the application for supervisory review or the hearing before the Presidium of the Moscow City Court. They did not attend the hearing.

The court heard submissions from an acting public prosecutor of Moscow, who considered it necessary to reclassify the applicant’s actions under Article 228 § 1 of the Criminal Code.

The court noted that the applicant had been found guilty under Article 228 § 4 of the Criminal Code, in that he had procured drugs from SZ for RUR 400, with a view to their sale, and had kept “particularly large” quantities in his possession, namely heroin weighing 0.318 grams in two sachets; that he had then sold one sachet containing “particularly large” quantities of heroin – 0.008 grams – to OZ for RUR 200 and had kept the remaining “particularly large” quantity of heroin – 0.31 grams – in his possession until his arrest by police on 3 June 1998.

The Presidium of the Moscow City Court held:

“... having correctly established the facts of the case, the court gave an incorrect legal assessment thereof in the judgment. In procuring the narcotics for his personal consumption and also for [OZ], at her request and with her money, in storing the narcotics and in handing over part of the heroin to [OZ] and keeping part of it for himself, G.A. Vanyan did not act with a view to selling [drugs] and he did not sell [drugs] but was acting as an accomplice to [OZ], who purchased heroin for her personal consumption.”

It maintained that, in those circumstances, the applicant’s actions should be classified under Article 228 § 1 of the Criminal Code as joint participation in the procurement and storage of “particularly large” quantities of drugs without intent to sell.

The Presidium of the Moscow City Court held that the judgment of 2 April 1999 and the decision of 17 May 1999 in the applicant’s case should be varied, convicted him under Article 228 § 1 and sentenced him to two years’ imprisonment. It upheld the judgment and decision in the remaining part. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence and, consequently, from custody.

Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed.

Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment enters into force and is subject to execution as of the day when the appeal (cassation) instance pronounces its judgment or, if it has not been appealed against, when the time-limit for appeal has expired.

“The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not entered into force on cassation appeals].”

“The grounds for quashing or changing a judgment on appeal are as follows:

(i) prejudicial or incomplete inquest, investigation or court examination;

(ii) inconsistency between the facts of the case and the conclusions reached by the court;

(iii) grave violation of procedural law;

(iv) misapplication of [substantive] law;

(v) inadequacy of the sentence to the gravity of offence and the convict’s personality.”

Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review.

According to Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960, the request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments.

Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal qualification of a conviction or sentence to the defendant’s benefit. If it found a sentence or legal qualification too lenient, it had to remit the case for a new examination.

Under Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in a hearing before a supervisory review instance. A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that the above provision was incompatible with the federal Constitution where the grounds for supervisory review of a case were to the detriment of a convicted person.

Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to that effect.

Illicit procurement or storage of drugs without intent to sell is punishable under Article 228 § 1 of the Criminal Code of 1996, in force at the material time. Illicit procurement or storage of drugs with intent to sell and the sale of drugs in “particularly large” quantities are punishable under Article 228 § 4 of the Criminal Code.

Under Article 84 § 2 of the Criminal Code, convicted persons can be released from punishment by an amnesty act. Under Article 86 § 2 of the Code, a person is considered not to have been convicted if he or she released from punishment.

Section 6 of the Operational-Search Activities Act of 1995 lists a number of techniques that may be used by law-enforcement or security authorities for the purposes of, inter alia, investigating and preventing offences. In particular, the police may carry out a “test purchase” (проверочная закупка) where, inter alia, a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police and the available data are insufficient for bringing criminal proceedings (section 7). The taking of operational-search measures which interfere with individuals’ constitutional rights to respect for their correspondence, telephone communications and home is allowed if authorised, as a general rule, by a court (section 8). The “test purchase” of goods, the free sale of which is prohibited, and certain undercover operations by agents or persons assisting them, are carried out on the basis of a decision sanctioned by the head of an agency engaged in operational-search activities (section 8). Results of operational-search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure (section 11).


The applicants were born in 1965 and 1936 respectively and live in Hatay.

On various dates, the applicants bought plots of land (nos. 1879 and 1878 respectively) near the coast in Hatay. The first applicant opened a wedding hall on the premises. The second applicant ran a cafeteria and a boarding house.

In 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance to determine whether the applicants’ plots of land were located within the coastline. A group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that they were located within the coastline.

Following the conclusions of the experts’ report, the Treasury filed two separate actions before the Samandağ Court of First Instance, requesting the annulment of the applicants’ title deeds to the lands on the ground that they were located within the coastline.

On 30 December 1999 and 24 December 1999 respectively, the Samandağ Court of First Instance, after having obtained additional experts’ reports, upheld the request of the Treasury and decided to annul the title deeds of the applicants to the plots of land. In its decisions, the court held that, pursuant to domestic law, coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides and on the fact that they had constructed buildings on the site. The Court of Cassation dismissed the applicants’ appeals on 10 July 2001 and 3 October 2000 respectively.

On various dates the applicants requested the Court of Cassation to rectify its decision submitting, inter alia, that the right to property was protected under international conventions, the constitution and the domestic law, and that the domestic courts had deprived them of their property rights without proper examination. The Court of Cassation dismissed the applicants’ requests on 17 January 2002 and 19 April 2001 respectively. These decisions were served on the applicants on 18 February 2002 and 24 May 2001 respectively.

The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006).


Violation of Art. 10;Pecuniary and non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Jerzy Wizerkaniuk, is a Polish national who was born in 1952 and lives in Kościan. At the material time he was a chief editor and a co-owner of the local newspaper “Gazeta Kościańska”, published in Kościan.

On 24 February 2003 two journalists working for the applicant’s newspaper interviewed a local M.P., Mr T. M. The interview, arranged during a chance meeting between one of the journalists and the M.P. several days earlier, at a session of the Kościan Municipal Council, took place in the M.P.’s office in Kościan and lasted about two hours. All questions and answers were tape-recorded. It related to the M.P.’s public and business activities. After the meeting the M.P. requested that the text of the interview be submitted for his authorisation (autoryzacja) before its publication, as provided for by Section 14 of the 1984 Press Act (Prawo Prasowe) (see paragraph 29 below).

The verbatim transcript of the interview, subsequently prepared by the two journalists, ran to forty standard pages. The applicant requested P.S., the editing journalist of the newspaper, to prepare an edited version of the interview, fit for the publication purposes. That version ran to three standard pages. The latter version was subsequently presented to the interviewee, approximately a month after the conversation. He read it and informed an employee of his office, Mr K. P., that he would not give his consent to the publication of the text. He was of the view that the text did not correspond to the conversation he had had with the two journalists and that many important statements he had made were not included. He asked Mr K.P. to inform the applicant of his refusal. Shortly afterwards, the applicant called the M.P. who reiterated his refusal.

In an undated letter to the applicant, served on him on 5 May 2003, the M.P. stated:

“It is true that in February I talked to two representatives of “Gazeta Kościańska”. During that conversation, which was in any event very informal, I replied to a number of questions. However, the text submitted for my authorisation only after a month, failed to include many of my important statements and to reflect the character and contents of my statements, [a state of affairs] which I cannot accept.”

On 29 April 2003 the newspaper published a short text asking the readers whether they would be interested in having an interview with Mr T.M., the local M.P., published.

On 7 May 2003 parts of the verbatim records of the interview, edited by P.S. and accompanied by photos made when the interview was conducted, were published by “Gazeta Kościańska”. The text carried a lead informing the reader that the M.P. had refused to grant his authorisation for the publication of the interview and that the newspaper was publishing parts of the interview as recorded on the tape, including in its original grammatical form.

On 19 May 2003 the M.P. informed the Kościan District Prosecutor that the applicant had committed a criminal offence by publishing parts of the interview without his authorisation and against his will.

On the same day criminal proceedings were instituted against the applicant on a charge of publishing an interview with the M.P. in spite of the latter’s refusal to authorise its publication. During the investigation the M.P. submitted that he had talked to the two journalists from the applicant’s newspaper. They had had a casual conversation rather than a formal interview. A month later he had been given the text to be published which, in his view, failed to reflect many of his important assertions. Moreover, he was of the view that the text failed to convey both the character and the substance of his statements.

By a judgment of 30 April 2004 the Poznań District Court found the applicant guilty as charged. The court established the facts of the case as summarised above (see paragraphs 7-11 above). It further found that the applicant had published the interview despite the M.P.’s refusal to authorise its publication. This in itself amounted to a criminal offence punishable under section 14 read together with section 49 of the 1984 Press Act (see paragraph 29 below). The court observed that it was possible for the interviewed person to renounce his or her right to grant authorisation for the text to be published, but such a declaration had to be unequivocal.

The court noted the submission made by P.S., who was heard as a witness. According to P.S., the newspaper had not published the three-page summary which had initially been submitted for the M.P.’s approval. It had published parts of the interview quoted verbatim. The court found his statement credible.

The court further noted that M.P.’s photographs taken during the interview had also been published together with the interview. The applicant had failed to indicate which photographs he intended to publish and to show them to M.P. before the publication.

The court further observed that the applicant had failed to comply with his obligation, under the Press Act, to obtain the authorisation of the interviewed person. It was of the view that the fact that the interview had been published without the required authorisation breached the interviewee’s personal rights. The applicant had acted with intent to break the law, but he had been motivated by his wish to fulfil his journalistic duties by making the interview available to the public. Having regard to the latter factor, the court concluded that the offence concerned could not be regarded as serious.

Consequently, and having regard also to the fact that it was not open to any doubt that the applicant was a law-abiding citizen and that his conduct had always been irreproachable, the court conditionally discontinued the proceedings, obliged the applicant to pay 1,000 zlotys (PLN) to a charity and ordered him to bear the costs of the proceedings.

By a judgment of the Poznań Regional Court of 6 October 2004, served on the applicant on 15 November 2004, the first-instance judgment was upheld. The court noted, inter alia, that the photographs taken during the interview constituted its inherent part. The applicant, by publishing them without the interviewee’s consent, had breached his personal rights within the meaning of Article 23 of the Civil Code.

The applicant subsequently lodged a constitutional complaint with the Constitutional Court, challenging the compatibility with the Constitution of section 14 in conjunction with section 49 of the Press Act 1984, in so far as they provided for a fine or for restriction of liberty to be imposed on a journalist or publisher for failing to ask an interviewee for his or her authorisation. He relied on Article 54, guaranteeing the right to freedom of expression, and Article 31 of the Constitution, providing for the principle of proportionality in respect of restrictions on constitutional rights.

In the ensuing constitutional proceedings the Constitutional Court sought the opinions of the Ombudsman (Rzecznik Praw Obywatelskich), the Prosecutor General (Prokurator Generalny) and the Speaker of the Parliament (Marszałek Sejmu). In their opinions submitted to that court they concluded that section 49, read together with section 14 of the Press Act, was incompatible with the constitutional guarantees of freedom of expression. They were of the view, in particular, that the restriction on the exercise of that right by imposition of a criminal penalty was incompatible with Article 31 of the Constitution, which enshrined the principle of proportionality in respect of restrictions imposed on the exercise of civil rights and freedoms (see paragraph 27 below). They further referred to the existing civil law instruments available for the purposes of effective protection of personal rights (see paragraphs 30-32 below).

The Constitutional Court gave a judgment on the merits of his constitutional complaint on 29 September 2008. It held that the contested provisions of the Press Act were compatible with Article 54 of the Constitution read together with its Article 31.

The court noted that it was proposed in a public debate to do away with the obligation to seek and obtain the authorisation provided for by the Press Act. However, the opinions pointing to the potential danger of such a legislative measure could not be overlooked. The Constitutional Court was of the view that abrogating the authorisation requirement would, on the one hand, expose persons interviewed by the press to the risk of having their personal rights breached by having their words distorted and, on the other, be dangerous for the exercise of the freedom of expression. The essence of the authorisation was not only to ensure that statements made by interviewees were rendered literally, but also to protect the integrality of such statements. This, in turn, ensured that the intentions of the speaker were faithfully conveyed.

Therefore, the applicant’s argument that the authorisation requirement gave the interviewee an opportunity to block the publication of a statement indefinitely was incorrect.

The judgment further read:

“Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The press has a duty to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. This duty is closely intertwined with the right of the public to receive information. (...)

Statements made public by the media could, as they have a great power of persuasion, lead to the infringement of the personal rights of the individuals concerned. In certain cases the post factum remedies available under law are insufficient to provide effective redress for such infringements, and in some cases the damage could indeed be irreparable. However, a publicly made statement not only could be an instrument of an infringement, but could also be unlawfully distorted. This was why the legislature decided to grant additional protection to statements made in the context of interviews by creating the authorisation requirement. Assuming that this requirement amounted to a restriction on freedom of expression as it obliged journalists to obtain authorisation from the author of literally quoted statements, its necessity in a democratic society has to be examined. [The] freedom of expression is not ius infinitum and could therefore be limited. However, it is necessary that restrictions on its exercise are compatible with the principle of proportionality set out in Article 31 of the Constitution. This provision allows for restrictions imposed on individual rights only when they have statutory legal basis and are necessary in a democratic state in the interests of national security or public safety, for the protection of environment, health or morals, for the protection of rights of others. These restrictions cannot not impair the essence of rights and freedoms. (...)

Article 47 of the Constitution provides for everyone’s right to the legal protection of one’s private and family life, of one’s honour and good reputation, and for the right to decide about one’s personal life. No restrictions can be imposed on the exercise of these rights (...). On the contrary, the freedom of expression can be restricted. The obligation to obtain the interviewee’s consent amounted to a restriction. However, such restriction cannot be seen as impairing the essence of the freedom of expression, because it concerns only statements quoted verbatim in press publications. It does not restrict or limit journalists’ right to inform the public of the content of such a statement by summarising it. When a journalist chooses to summarise or otherwise convey the content of a statement made by the interviewee, he or she is not obliged to seek the interviewee’s authorisation or to inform them of the intended publication. Nor, therefore, does it restrict the right of the public to obtain information.

[...] that requirement is also necessary in a democratic society to protect the personal rights of journalists’ sources. Hence, not only it is not in breach of any constitutional right but, on the contrary, it had to be regarded as a guarantee of the effective exercise of constitutional rights.

Furthermore, this requirement is justified not only by the necessity to protect individual rights [...] but it derives its legal foundation from other elements which, taken together, formed the constitutional notion of the public interest. As the authorisation serves to establish with full clarity the authorship of a given statement made public, it contributes to the clarity and transparency of public debate. It makes it possible for the reader to be certain that the speaker identifies himself with the statement’s content and would not try to change it or to distance himself from it. It is therefore in the reader’s interest to maintain it. Without this requirement, readers could not be sure whether statements purportedly made in the context of interviews are really authentic.

In the Constitutional Court’s opinion the authorisation requirement was therefore a means of guaranteeing the reader’s right to obtain reliable, credible, truthful, honest, clear, not misleading and responsible information. This right has not been expressly guaranteed by the Constitution, but it was anchored in it. [...]”

In so far as the criminal sanction for failure to obtain the authorisation was concerned, the Constitutional Court observed that it aimed at ensuring that the citizen’s right to reliable information was respected. Authorisation was the simplest way to ensure the veracity of the message, whereas statements published without authorisation could be distorted, which was clearly undesirable.

The Constitutional Court referred to the legal provisions penalising defamation. It was of the view that while the offence of defamation was directed against an individual’s reputation, in the same way the offence penalised by section 14 read together with section 49 of the Press Act was aimed at obtaining compliance with the obligation to quote and report statements made by interviewees in a fair and accurate manner, in order to protect their personal rights. The penal sanction provided for by these provisions thus respected the principle of proportionality.

A dissenting opinion of Justice Rzepliński was attached to that judgment. He had regard, firstly, to considerations which could be said to have constituted the ratio legis of the Press Act when it had been adopted in 1984. He noted that the 1952 Constitution, in force at that time, guaranteed neither the right to freedom of expression nor the right to respect for family and private life in any form comparable to the current constitutional regulations. At that time all media had been subject to preventive censorship and it was ultimately the State which decided what could be published or broadcast. The opinion further read, inter alia:

“The provisions of the Press Act regarding the authorisation requirement were only, at that time, an additional safeguard against the press publishing any information given to journalists by the communist party or State agents if such information was capable of jeopardising the interests of then political power.

[Given that constitutional background, it is only natural that] the Press Act did not provide for any distinction in respect of the authorisation requirement between the persons exercising public functions and all other persons. Thus, that Act provided for identical protection, by way of the criminal law, of persons holding public offices who were, for that reason, obliged to provide information about their acts to journalists, playing the role of “watchdogs” of the public powers on behalf of public opinion, and all other, “private”, persons. (...)

Moreover, the Press Act failed to indicate any time-limit within which a journalist could reasonably expect that authorisation would be granted or refused. (...)

While it is true that during the last years of the ancien régime, in 1998/89, State censorship became less strict, the origin of the examined provisions of the Press Act and the place they had in the legal order at that time cannot be ignored.”

Justice Rzepliński further disagreed with the Constitutional Court in so far as it had held that the restrictions imposed by the impugned provisions satisfied the test of proportionality, enshrined in Article 31 of the Constitution. In this context, he stated that the freedom of speech standards developed by the European Court of Human Rights in its judgments could not be overlooked. The dissenting opinion further read:

“The impugned provisions [seen in this light] amounted to an unnecessary and excessive interference with the freedom of the press in the interest of the personal rights of persons providing information to the press. These provisions were not necessary for that purpose at the time they were adopted and are still less necessary in a democratic State governed by the rule of law.

Authorisation to publish information quoted verbatim is unknown to the legal systems of other States of the European Union. (...)

The authorisation requirement amounts to censorship which makes it impossible for the reader to know the original statement made by the interviewee. It may dissuade journalist who is wishing to obtain an interview for their newspaper with a politician important in a national or local context from asking uncomfortable, searching questions. (...)

In a democratic state a politician, a public person, has no right to manipulate his or her statements post factum. If he or she resorts to such manipulation, the public opinion is entitled to know this because it is an important element relevant for public image of a politician if he or she tampers with his or her public statements. The requirement of authorisation makes it impossible for the public to acquire such knowledge. Citizens expect politicians to have the courage to make wise decisions in difficult situations. If a politician is unsure of the choice of words to be used when speaking in a public situation it might be a signal to the public that he or she is unable to cope with stressful circumstances. It is something that public opinion is entitled to know. (...)

I do not share the view expressed by the Constitutional Court in the present case that a journalist, when refused authorisation to publish a verbatim quotation, can resort to paraphrasing the statements concerned; that the Press Act therefore does not in any way restrict the journalist’s right to convey the interviewee’s thoughts and the right to inform the public thereof (...). I am of the view that public opinion always has a right to be informed of the interviewee’s statements quoted verbatim always where a journalist deems it necessary to convey information which is interesting for readers. I am also of the opinion that that descriptive technique is manipulative and makes it possible for both a journalist and an interviewee to shirk responsibility for the words they use. Furthermore, the fact that the impugned provisions of the Press Act make it possible to use such “techniques” and “evasions” demonstrates that they do not meet the standards required of a fair-minded legislator. (...)

There is no right in the Constitution or in a democratic society to “true” or “right” information. A journalist is not obliged to provide such information; if only because he or she does not exercise public powers. His or her professional duty is to seek and disseminate information, views and judgments. Only persons receiving information, readers, listeners, TV watchers or internet users are to decide whether information is true or not. (...)

The authorisation requirement is not, as such, wrong. A journalist, when talking to experts, may have, at the editing stage, some doubts whether he or she has properly understood what they said, even where the interview was recorded. In practice, in such situations journalists themselves request the persons interviewed to read the text and to correct or supplement it. A journalist is well aware that errors he committed in gathering specialist information could jeopardise his position on the market. What then is a sword of a criminal sanction needed for? (...)

The mere fact that section 49 of the Press Act has practically never been applied recently by the courts (...) does not mean that it does not play in the Polish legal system a negative role, with a chilling effect on public debate. No one challenges the constitutionality of the provisions of civil law applied by the courts in the context of disagreements arising out of press publications.”

Article 54 of the Constitution provides:

“1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone.

Preventive censorship of means of social communication and licensing of the press shall be prohibited.”

Article 31 of the Constitution reads:

“Freedom of the person shall receive legal protection.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 61 of the Constitution provides that a citizen shall have the right to obtain information on the activities of organs of public authority as well as those of persons discharging public functions.

Section 14 of the Press Act 1984 reads:

“1. Publication or dissemination in another manner of information that has been preserved by way of phonic or visual recording requires the consent of the persons providing the information.

It is obligatory for a journalist to submit the text of a statement cited verbatim, if it has not been published previously, for authorisation by the person providing the information.”

Section 49 of the Press Act provides:

“Anybody who infringes the provisions of Articles 3, 11 paragraph 2, Articles 14, 15 paragraph 2 and Article 27 – shall be subject to a fine or the penalty of limitation of liberty.”

Under section 31 of that Act an editor-in-chief of a newspaper is obliged to publish a disclaimer to rectify false information, or a matteroffact reply to an article, if the requesting person considers that that article has breached his or her personal rights.

Various provisions of the Press Act adopted in 1984 were subsequently amended by Parliament (Sejm) on twelve occasions. Neither section 14 nor 49 have been amended.

Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states:

“The personal rights of an individual, such as, in particular, health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:

“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”

Under Article 66 §§ 1 and 2 of the Criminal Code of 1997, criminal proceedings may be conditionally discontinued if the seriousness of the offence, punishable by a prison sentence of less than three years, is not significant, the circumstances in which it was committed have been established beyond reasonable doubt, the perpetrator does not have a criminal record and his personal circumstances and qualities suggest that he will abide by the law during the probation period.

Under Article 68 §§ 2 and 3 of the Code, when deciding to discontinue the proceedings for the period of probation, lasting from one to two years from the date on which the judgment becomes final, the court can impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest.

Under Article 67 § 1 of the Code, the court can fix a probation period of between one and two years, running from the date on which the judgment became final. Criminal proceedings may be resumed if during the probation period the offender disregards the obligations imposed by the court, acts in flagrant breach of public order, or, in particular, commits a new criminal offence.


The applicant, Ryszard Maciejewski, is a Polish national, born in 1949 and living in Leszno Górne, Poland.

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

On 3 September 1993 the Agricultural Co-operative “N” lodged with the Słubice District Court (Sąd Rejonowy) an action in which it sought the dispossession of the applicant of a property situated in Kunowice. The property consisted of a detached house located on a plot of land.

The first hearing was held on 17 September 1993 but it was adjourned as the plaintiff had submitted to the court a wrong address for the applicant and he had not been served with a summons.

Between 19 October 1993 and 7 July 1994 the court adjourned three hearings because of the ill-health of the applicant and the presiding judge, and held seven hearings. The applicant failed to attend two of them.

In the meantime, on 16 June 1994, the applicant asked the court to stay the case as he had initiated administrative proceedings concerning the contested property.

On 25 August 1994 the Słubice District Court delivered a judgment in which it ordered the dispossession of the applicant. The court pointed out that on 18 August 1993 the applicant had moved into the house after it had been abandoned by a certain Mr A. Ł. However, the property belonged to the Co-operative, which had never agreed that the applicant should acquire its tenancy.

On 14 November 1994 the applicant filed with the Gorzów Wielkopolski Regional Court (Sąd Wojewódzki) an appeal against the judgment of the District Court.

On 17 January 1995 the Gorzów Wielkopolski Regional Court quashed the judgment of 25 August 1994 and remitted the case to the Słubice District Court, instructing it to take additional evidence.

The applicant was absent during the hearings held on 19 June and 7 September 1995. On the latter occasion his absence was caused by ill-health.

The applicant was absent during the hearing held on 5 October 1995 because he refused to collect a summons.

During the hearing held on 20 November 1995 the plaintiff changed its claim and asked the court to order the eviction of the applicant. It also requested the court to stay the case pending the outcome of the administrative proceedings instituted by the applicant, which request was granted.

On 7 July 1999 the Słubice District Court decided to resume its examination of the case in view of the fact that the administrative proceedings and those concerning the title to the property, which the applicant had initiated on 10 September 1996, had been terminated.

The applicant failed to attend the hearing held on 26 August 1999. On 23 September 1999 he sent to the court a letter which included the following statement:

“The refusal to take part in the proceedings will prevent a scandal which the court intends to cause. The betrayal of their independence by the courts in Słubice and Gorzów Wielkopolski allowed me to apply to the European Court of Human Rights in Strasbourg, where I already await the examination of my complaint. Therefore I am returning the served summons.”

On 28 September 1999 the Słubice District Court delivered a judgment ordering the eviction of the applicant. He failed to lodge an appeal against that decision in accordance with the relevant formalities.


Violation of Art. 3;No separate issue under Art. 13

The applicant was born in 1945. He is currently in prison.

In 1973 the applicant was convicted of the murder of his wife and sentenced to twenty years imprisonment. He was released in 1984.

On 8 December 1989 the applicant was convicted of the murder of his second wife, committed in a cruel manner, the case having been qualified as a “dangerous recidivism” within the meaning of Article 116 § 11 of the Penal Code. The applicant was sentenced to the death penalty. By judgment of 28 July 1990 the Supreme Court dismissed the applicant's ensuing appeal and upheld the death sentence.

On 20 July 1992 the applicant filed a petition for review to a five-member chamber of the Supreme Court. Following a hearing on 23 November 1992, the petition was refused on 11 January 1993.

Article 375 § 5 of the Code of Criminal Procedure as in force at the time, provided that no execution could be carried out prior to the President's decision whether or not to exercise his power of pardon.

The last executions of persons sentenced to the capital punishment were carried out in Bulgaria in November 1989.

Following a period of a de facto moratorium on executions, on 20 July 1990 the Parliament adopted a decision “on deferral of the execution of death sentences” which read:

“The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in Bulgaria.”

Since the capital punishment remained in the Penal Code, the courts continued sentencing convicted persons to death or - as in the applicant's case - upholding on appeal death sentences delivered before 20 July 1990.

Although no explicit undertaking by Bulgaria to abolish the death penalty was made at the moment of Bulgaria's accession to the Council of Europe on 7 May 1992, such a requirement was regarded as implied in the general undertaking to comply with Article 3 of the Statute of the Council of Europe (see the reports of the Parliamentary Assembly's commission on Bulgaria's compliance with its obligations and undertakings (report of 2 September 1998, Doc. 8180, §§ 5 and 12529 (urging the abolition as an implied obligation), and report of 17 January 2000, Doc. 8616, § 110 (noting with satisfaction the abolition of the death penalty)).

On 8 March 1993 the President of the Supreme Court submitted the applicant's case to the President of the Republic for a decision whether or not to pardon him. In the accompanying letter the President of the Supreme Court expressed his opinion that the applicant should be pardoned and his death sentence replaced by a term of imprisonment. He argued that due consideration should be given to the fact that the applicant was a person of limited self-control abilities and had acted under distress when murdering his wife. The President of the Republic did not make a decision, leaving the question of pardon pending.

In 1997 the applicant wrote to the President of the Republic requesting to be pardoned and to the prosecution authorities seeking reopening of the criminal case. He stated, inter alia, that his continued detention under threat of execution was inhuman and degrading and violated the Convention.

On 10 December 1998 Parliament abolished the death penalty replacing it by life imprisonment without parole eligibility.

By decision of 25 January 1999 the applicant's death sentence was commuted to life imprisonment without parole eligibility.

On 29 September 1999 Bulgaria ratified Protocol No. 6 to the Convention.

The death penalty was an issue often debated between 1990 and 1998. A number of members of Parliament expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty. The media periodically discussed the topic. It was widely known that the abolition of the death penalty was urged by the Council of Europe and other international organisations and was a step towards Bulgaria's European integration.

During the relevant period the Penal Code was amended several times. Some amendments expanded the scope of the death penalty. At the same time, work started on a draft Penal Code which excluded the death penalty. In 1995 an amendment to the Penal Code introduced for the first time life imprisonment.

The following attempts to reintroduce executions were made by supporters of the death penalty:

On 27 May 1992 the Chair of the Parliamentary Legislative Committee and another member of Parliament introduced a motion proposing the annulment of the Parliament's decision of 20 July 1990.

On 22 November 1993 a similar proposal was introduced in Parliament by a minority parliamentary group, the New Democracy Alliance. Two parliamentary committees discussed the issue and voted against reintroducing executions. On 1 February 1994 the Legislative Committee held a hearing on both proposals which were defeated.

The issue of reintroducing executions was discussed several times in the Parliament elected at the end of 1994. There were four motions: two for a parliamentary vote on restarting executions and two for calling a referendum.

The first proposal was discussed by the Parliamentary Committee on Government Institutions, which supported the idea of reintroducing executions by a majority of seven votes to six. Thereafter, a member of Parliament on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the Parliament. On one occasion the motion gathered the required number of votes to be entered on the weekly agenda, but eventually was not discussed. Most proposals to include the issue on the agenda of the Parliament's plenary session were defeated through abstention votes.

The first motion for a referendum was defeated on a procedural ground as the proposed date in 1995 did not allow sufficient organisation time. The second proposal for a referendum, filed on 5 December 1995, was considered by the Human Rights and Religions Committee on 6 March 1996 and was defeated by eight votes to two, with two abstentions.

On 29 January 1996 a proposal for restarting executions was introduced by opposition deputies. It was discussed by the Human Rights and Religions Committee and was defeated on 13 March 1996 by eight votes to three.

According to section 130 of the Execution of Sentences Act, as in force at the time of the moratorium on executions, persons awaiting execution were to be detained in complete isolation, correspondence and visits being only possible if permitted by the competent prosecutor.

On 2 August 1990 the Deputy Director of the Central Prisons Board instructed prisons administrations that the Parliament's decision suspending executions also suspended by implication this restrictive regime of detention.

The instruction stated, in so far as relevant, that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “special regime” (the regime of detention of recidivists and, after 1995, persons sentenced to life imprisonment: sections 43 and 127b of the Execution of Sentences Act as in force at the time). Inmates should have a bed, bedcover, a bed-side piece of furniture and a centrally operated radio loudspeaker. They should be allowed unlimited correspondence, newspapers and books, one visit per month, one hour of daily outdoor walk without contact with other categories of prisoners and the receipt of one food parcel every six months and a small amount of money. If possible, they could work in the cell.

On 26 July 1996, the Director of the Central Prisons Board and a prosecutor of the Chief Public Prosecutor's Office issued an instruction which stated that, “in view of the continuing moratorium on executions”, persons sentenced to death should be allowed unlimited correspondence, one hour daily outdoor walk, one visit per month and the receipt of two food parcels and 30 packs of cigarettes per month and small amounts of money.

The applicant was detained in the Sofia prison, in a wing for prisoners under the “special regime” provided for by section 56 of the Regulations on the Application of the Execution of Sentences Act, approximately twenty inmates. He was moved several times, but was always in cells measuring 4 by 2.5 metres.

It appears that during most of the above period the applicant was alone in a cell. Other prisoners sentenced to death and detained in the same prison as the applicant were allowed to share a cell between 1990 and June 1995. It is unclear whether it was possible for the applicant to request to share a cell with another prisoner.

The applicant's cell invariably had one bed with a mattress, two blankets, a metal chamber pot and a centrally operated radio loudspeaker. There was no chair or a table. Until October 1998, when all cell windows were replaced by larger ones, the window in the applicant's cell was very small, covering 0.6 square metres, and did not allow sufficient light and fresh air.

There was one 60Watts electric bulb in the cell. As it was installed on the wall above the door, its light was insufficient.

The central heating pipes in cells for special regime prisoners were covered by a layer of bricks. According to the applicant that impeded the normal heating and as a result it was often cold in winter. According to the Government the bricks accumulated heat and released it normally.

Inmates were given one hour out-of-cell time in the morning in an open yard. There they could walk together with other inmates from the special regime wing.

The cells of special regime prisoners had no electrical sockets. Despite an amendment of the relevant instructions in 1996 which authorised the use of radio and television receivers by special regime prisoners, such devices could therefore only be used on batteries.

As they were considered to be high risk prisoners, inmates sentenced to death were not eligible for outside work assignment. As a result, the applicant used to spend almost twenty three hours a day on his own in his cell. Food was delivered three times a day in the cell. The applicant was permitted to leave his cell during the one-hour morning walk, again in the evening for several minutes for use of the sanitary facilities, and when receiving visits or for medical consultations. Also, inmates could have a shower once per week, for several minutes.

One or two visits of one-half hour were allowed per month. Visits by lawyers were not limited. At least on one occasion the applicant was visited by journalists.

During the relevant period there has been no limitation on correspondence. The applicant could also receive food parcels and money. He could buy small food and toilet items from the prison shop, if he had the money to do so. He could borrow books from the prison library.

The applicant received the same medical service as all other prison inmates. Between 1992 and 1998 he was seen fourteen times by a dentist and many times by other medical doctors. There is an infirmary opened eight hours per day.

Ever since his imprisonment in 1989 the applicant has been monitored by the prison psychological service. An assessment written by one of its employees on 4 December 1998 and submitted by the Government stated, inter alia:

“[I]n crucial moments, such as the moratorium on executions and the ensuing period of debates about the abolition of the death penalty ... [the applicant] was unable to cope on his own with the fear and anxiety that had gripped him: his neurotic and depressive complaints reappeared, as well as his ... defence reactions ( ... denial of any guilt ...).

During that period a number of psychological consultations and examinations were carried out with the [applicant] ... [These] brought about a temporary improvement: his neurotic and depressive reactions and his fright phased out but may reappear if the situation changes...

[The applicant]'s personality is characterised by contradictions, domineering tendencies and aspirations... He ... seeks justifications [in respect of the murder] and aspires to preserve his self-respect, adopting the pose of a victim...

The [applicant's] current need of self assertion - which on a behavioural level is manifested by an aspiration for increased physical and psychological activity and a pursuit of positive social reactions - may, in the situation where there are no changes in his legal status, provoke negative psychological developments by reactivating his pessimistic attitude and the feeling of lack of prospects... ”

The applicant has also been seen several times by psychiatrists at the prison hospital and by outside psychiatrists. They were unanimous that the applicant did not have a mental disorder but displayed signs of “psychopathy and emotional and volitional instability [typical of] a primitive personality”.

In June 1991, June-July 1993, January-February 1995 and again in AprilMay 1997 the applicant was admitted to the prison hospital and treated against neurosis, sleeplessness and loss of appetite. The applicant also complained that he was hearing voices and suffered from feelings of fear. He was treated with sedatives and other medicaments. The examinations revealed his good general condition. The doctors recommended frequent visits to the psychologist.

On an unspecified date he was examined as a matter of emergency as he had stated that he would hang himself. The psychiatrist at the prison hospital directed the applicant to a psychiatric hospital for treatment while noting that his behaviour disclosed a demonstrative element. On several occasions the doctors who examined the applicant noted that he simulated sensory disorders.

The CPT has not visited the Sofia prison where the applicant was detained.

In 1995 it visited, however, two inmates sentenced to death and detained in the Stara Zagora prison facilities and described the conditions of detention as follows:

“The material conditions in the cells left a great deal to be desired: mediocre access to natural light and weak artificial lighting; inadequate heating; cell furnishings in a poor state of repair; dirty bed linen, etc. As regards out-of-cell activities, they were limited to 15 minutes per day for use of the sanitary facilities, one hour outdoor exercise (which the prisoners alleged was not guaranteed every day) and one visit per month. The two prisoners were not allowed to work (not even inside their cells), nor to go to the library, the cinema room or the refectory (their food was brought to the cell). In short, they were subject to an impoverished regime and, more particularly, were offered very little human contact. The latter consisted essentially of the possibility to talk to each other during outdoor exercise (which they took together), and occasional dealings with prison officers. Practically the only forms of useful occupation at their disposal were reading newspapers and books, and writing letters.

The above-described situation is in accordance with the rules concerning prisoners sentenced to death, adopted after the moratorium on the execution of the death penalty... Nevertheless, in the CPT's view it is not acceptable.

It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. The delegation found that the regime applied to prisoners sentenced to death in Stara Zagora Prison did not provide such stimulation.

The CPT recommends that the regime applied to prisoners sentenced to death held in Stara Zagora Prison, as well as in other prisons in Bulgaria, be revised in order to ensure that they are offered purposeful activities and appropriate human contact. Further, the CPT recommends that steps be taken to improve the material conditions in the cells occupied at Stara Zagora Prison by prisoners sentenced to death.”

Historically, most Member States of the Council of Europe approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition. States which became members of the Council of Europe during the 1990s were urged by the Parliamentary Assembly to introduce moratoria on executions as a first step towards the abolition of the death penalty (see, Report on the abolition of the death penalty in Europe, PA Doc. 7589 (25 June 1996)).

The Committee has held that “in the absence of further compelling circumstances” prolonged detention on death row per se does not constitute a violation of Article 7 of the International Covenant on Civil and Political Rights (prohibition of cruel, inhuman or degrading treatment) (see Hylton v. Jamaica, Views of 16 July 1996, communication no. 600/1994, Errol Johnson v. Jamaica, Views of 22 March 1996, communication no. 588/1994; and Michael Wanza v. Trinidad and Tobago, Views of 26 March 2002, communication no. 683/1996).

The Commission, when examining complaints by persons on death row, has found violations of Article XXVI of the American Declaration of the Rights and Duties of Man (prohibiting cruel, infamous or unusual punishment of persons accused of offences) and Article 5 §§ 1 and 2 of the American Convention on Human Rights (right to humane treatment and prohibition of torture, cruel, inhuman or degrading punishment or treatment) mainly on the strength of facts concerning irregularities in the sentencing process, the material conditions and regime of detention and ill-treatment in prison, while also taking into account the length of the period spent on death row (Andrews v. the United States of America, Case No. 11.139, Report No. 57/96, OEA/Ser/L/V/II.98, §§ 17883; Joseph Thomas v. Jamaica, Case No. 12.183, Report 127/01).

The Privy Council, examining cases from Caribbean Commonwealth States, had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those States' Constitutions. Initially, the Privy Council considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings (de Freitas v. Benny [1976] A.C. 239, Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342), or indeed about any delay, “whatever the reasons”, including a temporary moratorium on executions which had been lifted (Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719).

In 1993, departing from its earlier decisions, the Privy Council held that to execute the appellants, who had spent almost fourteen years on death row and had on three occasions lived through last minutes stays of execution, would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment (Pratt and Morgan v. The Attorney General for Jamaica and another [1994] 2 A.C. 1).

In Pratt and Morgan, part of the relevant period was taken up by a temporary moratorium on executions.

“[P]olitical debate on the desirability of retaining the death sentence in Jamaica ... resulted in a resolution of the Senate on 9th February 1979 to suspend all executions for a period of eighteen months pending the report of a Committee of inquiry. The Committee of Inquiry was appointed in June 1979. Before the Committee reported, an execution took place on 27th August 1980 which drew a protest to the Jamaican Privy Council from the Chairman of the Committee. No further executions took place before the Committee reported in March 1981. On 12th May 1981 executions were resumed” (Pratt, § 16).

The judgment in Pratt and Morgan stated, inter alia:

“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as 'inhuman or degrading punishment or other treatment' within the meaning of section 17(1) [of the Jamaican Constitution] there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime...

In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence...

There may of course be circumstances which will lead the Jamaican Privy Council to recommend a respite in the carrying out of a death sentence, such as a political moratorium on the death sentence, or a petition on behalf of the appellants to [international human rights bodies] or a constitutional appeal to the Supreme Court. But if these respites cumulatively result in delay running into several years an execution will be likely to infringe section 17(1) and call for commutation of the death sentence to life imprisonment.”

Further, calculating the normal length of relevant appellate proceedings in Jamaica and taking into consideration the time necessary for examination of applications to the Inter American Commission of Human Rights and the UN Human Rights Committee, the Privy Council held that:

“in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment”.

In cases which followed the Privy Council accepted a claim that a period of four years and ten months also warranted a finding in favour of the appellant (Guerra v. Baptiste and Others [1996] 1 A.C. 397) but dismissed appeals concerning shorter periods (Henfield v. The Attorney General of the Commonwealth of The Bahamas [1997] A.C. 413; Fischer (No. 1) v. The Minister of Public Safety and Immigration and Others (Bahamas) [1998] A.C. 673; and Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55) and held that save in exceptional circumstances, periods of pre-sentence detention should not be taken into account since, inter alia, “the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution, but ... anxiety and concern of the accused”(Fisher, § 14). In Higgs and David Mitchell, the Privy Council stated, inter alia:

“If a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death... In Pratt ... the [Privy Council] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair. It is not the delay in itself which is a cruel and unusual punishment..., 'it is the act of hanging the man that is rendered cruel and unusual by the lapse of time”.

The Supreme Court of India found that execution following inordinate delay after sentence of death violated Article 21 of the Indian Constitution which provides that “no one shall be deprived of his life or personal liberty except according to procedure established by law” and that the reasons for the delay were immaterial (Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348, Sher Singh and Others v. the State of Punjab [1983] 2 S.C.R. 582 and Smt. Treveniben v. State of Gujarat [1989] 1 S.C.J. 383) .

The United States' Supreme Court has refused to accept claims that lengthy detention on death row violated the prohibition, contained in the Eight Amendment to the Constitution of the United States of America, of cruel and unusual punishment, emphasising that the delay is due to the convicted person's own decision to make use of all possibilities to appeal (Knight v. Florida, 528 US 990).

The Supreme Court of Canada has held that Canadian constitutional standards did not bar extradition to the United States of America of a defendant facing the death penalty (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779). However, in 2001 it changed its approach and held that if the person being extradited could face the death penalty, constitutional standards required that in all but exceptional cases assurances must be sought from the United States of America that the death penalty would not be imposed or, if imposed, would not be carried out (United States v. Burns, [2001] 1 S.C.R. 283).


The applicant, Mr Troels Petersen, is a Danish national, who was born in 1964 and lives in Kokkedal. He is represented before the Court by Mr Søren Beck, a lawyer practising in Copenhagen. The Goverrnment are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice.

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

In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts.

I.

On 15 April 1994 the Tax Authorities reported to the Public Prosecutor for Serious Economic Crime (Statsadvokaten for Særlig Økonomisk Kriminalitet) that allegedly, a person henceforth called JM, and three other persons had participated in the acquisition and stripping of seventy private limited companies (the Centra Finans case). The Tax Authorities made a reservation to increase the number of persons involved and submitted at the same time a note in which the applicant's name figured and his role as vendor of private limited companies was described.

In December 1994 the Copenhagen City Court (Københavns Byret) issued a warrant of arrest against JM, who was staying abroad.

On 11 May 1995 the Copenhagen City Court issued a search warrant for the premises of the applicant, who was neither provisionally charged (sigtet) nor charged (tiltalt). The search was carried out on 23 May 1995 and the applicant was interviewed by the police without being charged.

On 10 August 1995 JM was remanded in custody, from which he escaped on 3 October 1995. He was arrested in France in April 1996, and served a sentence there before he was surrendered to the Danish police on 29 May 1997.

In the meantime the Copenhagen Police had questioned the applicant on 5 October 1995. An order for surrender of details on bank accounts in Britain was issued on 23 February 1996. Another search warrant against the applicant was issued by the Copenhagen City Court on 18 October 1996. It was carried out on 24 October 1996, and the applicant was formally charged with tax asset stripping allegedly having been committed in six cases during the spring of 1993 with a risk of loss to the Treasury of approximately thirty million Danish kroner (DKK). JM was charged with tax asset stripping in twenty-seven cases. The police also investigated other persons in connection with the case, but their criminal cases were conducted separately. In the spring of 1997 the applicant gave permission that the police obtain details from his accounts with his bank in Switzerland. The latter and account details from the bank in Britain were submitted to the police in June 1997.

On the prosecutions' request a hearing was held before the Copenhagen City Court on 18 August 1997 in order to plan the course of the proceedings. Dates for the trial were agreed on. It appears from the court records that the judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster. Counsel stated that this was not possible since they were occupied by other matters, including hearings already scheduled in other proceedings.

An indictment was issued by the prosecution on 11 September 1997 and the trial before the City Court commenced on 23 October 1997. Fifty-eight hearings were held altogether. The applicant, JM and forty-five witnesses were heard, including a state-authorised public accountant, who gave evidence over two court days in which he elaborated the audit reports, etc. In addition, a considerable amount of other documentary evidence was presented e.g. about questions such as constructions with Danish and foreign companies and money transaction in Danish and foreign banks (in Britain, Switzerland and the United States). Each set of exhibits for the case took up fifty-three A4 binders, which included four audit reports, two supplementary reports and two statements of transaction prepared for the case by the state-authorised public accountant.

The closing speech of the applicant's counsel took about two and a half day, that of the JM's counsel a little more than two days, and that of the prosecutor about three days.

The City Court, sitting with six lay judges, met six times and deliberated for altogether three and a half days. By judgment of 9 March 1999, which ran to one hundred and thirty-five pages, the City Court convicted the applicant of participation in tax assets stripping as to DKK 29,748,769. He was sentenced to three years' imprisonment; an amount of DKK 3,800,000 was seized; and in addition for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. JM was convicted by the same judgment.

The City Court rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time, stating among other things:

“...on the material before it the court cannot find it established that the investigation laid unnecessary idle during the periods, on which [the applicant] specifically has relied [i.e. de facto from April 1994 until October 1996].

Furthermore, the court notes that the nature and scope of the offences must be taken into account when assessing the total length of the proceedings ... In this connection it should be taken into consideration that the proceedings ...have shown, inter alia, that it has been time-consuming and difficult to procure various details for the case from foreign authorities and banks in general, i.e. also during the investigation, not least concerning [the applicant]. The length of the proceedings is not due only to the affairs of [JM], but also due to the need [during the investigation and the trial] of illuminating the role of [the applicant] Moreover, the investigation concerning both [JM and the applicant] was rendered difficult by the fact that [JM] had left Denmark and stayed abroad without notifying the Danish authorities of his residence in the period from June 1993 until 9 August 1995 and later escaped from custody and fled abroad in the period from 3 October 1995 until 11 April 1996, whereupon he was furthermore remanded in custody and served a sentence in France from 11 April 1996 until 29 May 1997.”

On 14 April 1999 the applicant lodged an appeal against the judgment to the High Court (Østre Landsret), before which 20 hearings were held. By judgment of 27 September 2000 the High Court upheld the City Court's judgment. The appeal court also rejected the applicant's complaint that the length of the proceeding had exceeded a reasonable time. It stated inter alia:

“The High Court finds that there are no major periods of time during the proceedings with the police, the prosecutor, the City Court or the High Court when the case has not been duly expedited. It should be noted that it is solely due to the circumstances of [the applicant] and his counsel that the case could not be tried by the High Court in the autumn of 1999. Accordingly, and in view of the nature and the scope of the crime, which has necessitated comprehensive investigation, the total length of the proceedings does not involve any violation of Article 6 § 1 of the Convention.”

On 15 February 2001 the applicant requested leave to appeal against the High Court judgment to the Supreme Court (Højesteret). His request was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 3 April 2001.

II.

In the early 1990s the Police in Frederikssund with the assistance from a special crime squad carried out investigation of several tax assets stripping cases, which resulted inter alia in eight persons being indicted in July 1996. As part of the investigations accountants had been asked to draw up statements of accounts. Those were submitted on 7 July 1997 and led the police's attention to other persons involved. On 7 November 1997 the applicant was provisionally charged with participation in tax assets stripping having been committed in 1992-1993 and by indictment of 17 December 1997 prosecution was initiated against him and five coaccused (the Lacewood case). On the same date the indictment was forwarded to the City Court of Frederikssund (Retten i Frederikssund) although the investigation had not been completed.

It emerges from the court records of 29 April 1998 that the parties discussed the scheduling of the trial. The applicant's counsel was not able to attend the trial until after November 1998 and some of the other counsel were unable to appear until after April 1999.

By request of counsel for two co-accused, on 12 May 1998 the City Court of Frederikssund decided to transfer the case to Copenhagen City Court being the proper venue. The public prosecution appealed in vain against this decision. Thus, the High Court found against the public prosecution on 3 June 1998, and the latter's request for leave to appeal to the Supreme Court was refused by the Leave to Appeal Board on 7 August 1998.

The Copenhagen City Court received the case on 4 September 1998.

On 1 October 1998 an audit “liquidity statement” requested by the prosecution was completed and included in the case file.

At a court session held on 2 December 1998 the trial was scheduled to commence in the spring of 1999. From the court records of 17 February 1999 it emerges that the trial was to take place in another building rented for the purpose of trying a number of major cases before the Copenhagen City Court, and that therefore the trial could not start until 9 August 1999. Five hearings already scheduled for April and June 1999 were maintained and reserved for various requests made by counsel. It appears, however, that the said five hearings were subsequently cancelled. A supplementary indictment was issued on 20 July 1999.

In the period between 9 August 1999 and 1 December 2000 altogether one hundred and five court sessions were held before the Copenhagen City Court. The applicant, the co-accused, and more than one hundred witnesses were heard. In addition, the above “liquidity statement” and a considerable amount of other documentary evidence were presented, thus about thirty A4 binders were read out during the trial.

On 18 December 2000 the case was set down for judgment, which was pronounced on 2 March 2001 and ran to two hundred and twenty-two pages, and by which the applicant and the co-accused were convicted. As to the metering out the applicant's sentence, the court found that the sentence previously imposed on the applicant, upheld by the High Court on 27 September 2000 (see under I.), would not have been increased, had the two trials against him been joined. Thus, no additional sentence was imposed on the applicant. He was, however, deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval.

“The [crimes] were committed in the period from 1991 until 1994. Prosecution was initiated by the indictment of 17 December 1997 and the supplementary indictment of 20 July 1999. The defendants were originally indicted before the City Court of Frederikssund, but the case was referred to the Copenhagen City Court by order of 12 May 1998 passed by the City Court of Frederikssund. This order was appealed against to the High Court, which dismissed the appeal by order of 3 June 1998. On 7 August 1998 the Leave to Appeal Board refused to grant the prosecutor leave to appeal to the Supreme Court. The Copenhagen City Court received the case on 4 September 1998, and during a court session held on 2 December 1998 dates were fixed for the trial. [The court sessions scheduled to take place in the spring of 1999] were later cancelled, and the trial took place as from 9 August 1999 and onwards.

According to the information available, the time spent on investigation and initiation of prosecution by the prosecutor cannot be blamed the latter. In this connection, importance has been attached to the not uncomplicated nature of the case and to the need for investigation abroad. Accordingly, Article 6 of the Convention has not been breached”

The applicant did not appeal against the judgment.


Violation of Article 8 - Right to respect for private and family life;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in 1942 and lives in the United Kingdom.

The applicant claimed that until 14 August 1974 he and his family used to live in Morphou (Cyprus) in a detached house with a yard (area: 229 sq. m). This property was registered in the name of the applicant’s wife under plot no. 315, sheet/plan 19/32.5.2. On 14 August 1974, as the Turkish forces were advancing, the applicant and his family fled their home leaving behind all its contents, including precious personal belongings.

The applicant also claimed that he was the owner of the following plots of land in northern Cyprus:

(a) Nicosia/Kapouti, plot no. 576, sheet/plan 19/16, field, area: 5,017 sq. m;

(b) Kyrenia/Livera, plot no. 39/1, sheet/plan 5/62W1, field, area: 112,149 sq. m;

(c) Kyrenia/Livera, plot no. 14, sheet/plan 5/62W2, field, area: 171,549 sq. m;

(d) Kyrenia/Livera, plot no. 34, sheet/plan 5/63W1, field, area: 22,074 sq. m;

(e) Kyrenia/Livera, plot no. 45, sheet/plan 5/63W1, field, area: 11,582 sq. m.

In support of his claim of ownership the applicant produced the relevant certificates of registration and affirmations of ownership issued by the Republic of Cyprus.

The applicant alleged that from 14 August 1974 onwards he had not been able to return to his house and had been continuously prevented from exercising his property rights and enjoying his properties.


The applicant, Mr E. Strömblad, is a Swedish national, born in 1950 and living in Kristianstad, Sweden. He is represented before the Court by Mr O. Larsson, a lawyer practising in Hässleholm.

The respondent Government are represented by their Agent, Mr Lars Magnuson of the Ministry for Foreign Affairs.

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

The applicant is the father of three children born in 1985, 1986 and 1990 respectively. The children live permanently with their mother from whom the applicant is divorced. Since they did not live with both their parents, each of his children were entitled under the Maintenance Support Act (lagen om underhållsstöd, lag 1996:1030 -hereinafter “the 1996 Act”, which entered into force on 1 December 1996) to a monthly maintenance allowance (underhållsbidrag) of SEK 1,173 from the Social Insurance Office. The 1996 Act obliged the parent who under civil law was liable for maintenance to repay, in whole or in part, the community’s costs for the maintenance support provided to the children. The amount to be repaid was determined as a percentage of the income of the person liable for maintenance. If the liable parent had 3 children, as was the applicant’s case, he should repay 5% of his income for each child.

On 20 January 1997 the Social Insurance Office (försäkringskassan -hereinafter “the Office”) of the County of Kristianstad decided that the applicant should repay a total sum of SEK 2,247 every month for the community’s costs for the maintenance support with respect to his 3 children. In other words, the applicant should repay SEK 749 per month for each child. In accordance with section 25 of the 1996 Act (as in force at the relevant time), the Office determined the amount of the applicant’s income as specified in the most recent tax assessment decision.

By letter of 23 January 1997 the applicant requested the Office to reconsider its decision. He argued that the Office had failed to estimate correctly his ability to pay the amount in question and should have based its calculations on his current income, not that indicated in the most recent tax assessment decision. On 7 March 1997 the Office found that there was no ground for altering its earlier decision.

The applicant appealed to the County Administrative Court (länsrätten) of the County of Skåne. He maintained that his income was insufficient for paying the amount fixed by the Office. He pointed out that since the calculations regarding his ability to repay maintenance support were based on his income before the 1996 Act came into force, the decision had a retroactive effect and was thus incompatible with the Swedish Constitution (Regeringsformen). Furthermore, the Office had calculated his income erroneously thereby obtaining a result which did not reflect his real ability to repay the maintenance support.

In his appeal the applicant also requested the County Administrative Court to hold an oral hearing in the case. He wished to participate in person at an oral hearing in order to present arguments on the issue of principle in the case and on the great economic impact a judgment could have on him. He underlined that his main argument in the case was the unconstitutional retroactive application of the 1996 Act by the Office.

On 8 April 1997 the County Administrative Court informed the applicant as follows:

“The proceedings before [the court] consist of a written procedure. They may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the benefit of the proceedings or that it promotes a speedy determination of the case. An oral hearing shall be held if requested by an individual party to the proceedings, if such a hearing is not unnecessary and there are no particular reasons against it...

...It appears that you do not wish to submit any new information at the hearing but rather conduct a legal argumentation about the retroactivity of the legislation concerned and on how your deficit from earlier years’ taxation should be taken into account when determining the amount that should be repaid. Having regard to these circumstances [the court] finds that the examination of the case is limited to issues concerning the application of the law. Therefore, [the court] finds an oral hearing unnecessary.

[The court] hereby gives you the opportunity to submit, no later than 22 April 1997, your final observations in the case. If no response is submitted to [the court], the case will be determined on the basis of the material available.”

The applicant made further submissions in the case and reiterated his request for an oral hearing, claiming that the court had failed to give any special reasons for dispensing with an oral hearing.

On 18 June 1997 the County Administrative Court delivered its judgment confirming the Office’s decision. It found that the calculation of the applicant’s income was done in accordance with the rules set out in the 1996 Act. While it was true that the calculation of the applicant’s income was based on the most recent tax assessment decision, the amount that he was obliged to repay concerned future maintenance support. Therefore, the court did not consider the decision as retroactive within the meaning of the Constitution.

As regards the applicant’s request for an oral hearing the Court held:

“The court cannot omit to hold an oral hearing without having found after careful consideration that this is unnecessary or that there are special reasons against doing so. Considering [the applicant’s] arguments in the case, [the court] finds that its examination is limited to issues concerning the application of the law. In view of this [the court] considers an oral hearing unnecessary.”

The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Gothenburg, complaining about the lack of an oral hearing before the County Administrative Court and maintaining all his other submissions and requests. By decision of 28 January 1998 the Administrative Court of Appeal refused leave to appeal.

The applicant appealed to the Supreme Administrative Court (regeringsrätten) which, on 17 September 1998, also refused leave to appeal.

The 1996 Act, which entered into force on 1 December 1996, applied in relation to maintenance support and duty of repayment. The 1996 Act replaced previous legislation in the relevant area.

According to the 1996 Act (as in force at the relevant time; January 1997) a child was entitled to maintenance support, at a rate of SEK 1,173 per month, if the parents did not live together. The parent who was liable under civil law for maintenance should repay to the State, in part or in whole, the amount corresponding to the maintenance support. According to its sections 24 and 25, the duty of repayment was determined as a certain percentage of the liable parent’s income according to the most recent tax assessment decision after a deduction of SEK 72,000. If the liable parent had 3 children who received maintenance support, he or she should repay 5% of his income for each child. The duty of repayment should be reviewed when a new decision on annual tax assessment had been taken and when there was a change in the grounds for the applicable percentage.

In the event that the liable parent considered that he or she was unable to to repay the amount fixed, he or she could appeal for respite for discharge of the duty. If there were exceptional reasons relating to the liable parent’s economic or personal circumstances, the Social Insurance Office could remit the debt, entirely or partially, upon application from the liable parent.

A decision by the Social Insurance Office under the 1996 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. Appeals to the two latter courts are subject to leave to appeal proceedings.

The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (förvaltningsprocesslagen, lag 1971:291 -hereinafter “the 1971 Act”). Section 9 provides:

“The proceedings are in writing.

An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.

In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.

According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).

It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).