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

In July 1993 the applicant was employed at the refinery “T.” as director of a department. From 1993 to 1997 the conditions of his contract of employment were changed several times. On 30 September 1997 the refinery gave notice to terminate the applicant’s contract.

On 7 October 1997 the applicant lodged with the Katowice Regional Court a compensation claim against the refinery, in the amount of PLN 19,273, for unlawful termination of his contract. He also claimed reinstatement. By a decision of 3 December of 1997 the Katowice Regional Court considered that it was not competent to examine his case and transmitted it to the Katowice District Labour Court.

By a judgment of 4 December 1998 the Katowice District Labour Court ordered the refinery to pay the applicant compensation of PLN 5,008.74 for unlawful termination of the employment contract. The compensation corresponded to 3 months’ remuneration. The court dismissed the remaining claims.

Both parties to the proceedings appealed against the first-instance judgment. By a judgment of 18 November 1999 the Katowice Regional Court dismissed their appeals.

On 26 November 1999 the applicant requested the Katowice Regional Court to grant legal aid for the purpose of instituting cassation proceedings. He referred to his difficult financial situation and to the fact that he had been unemployed from November 1997 to May 1999 due to the termination of his employment contract by the defendant company. He also submitted that from May 1999 he had been receiving a net salary of PLN 750 and submitted documents to show the period of his unemployment and his earnings. In December 1999 the applicant, having received no response from the Katowice Regional Court, lodged a cassation appeal himself.

By a decision of 17 January 2000 the Katowice Regional Court dismissed his request for legal aid for the purpose of instituting the cassation proceedings without giving written reasons for its decision.

On the same day, the Katowice Regional Court rejected the applicant’s cassation appeal on the ground that it had not been lodged by a lawyer, as required by the law.

The applicant lodged an appeal against these decisions with the Supreme Court. He also requested the grant of retrospective leave to lodge a cassation appeal out of time. He further asked that court to appoint a lawyer for him in order to assist him in the preparation of his appeal. The applicant argued that the Regional Court had failed to deal within the time-limit with his request for legal aid. This had forced the applicant to lodge the cassation appeal himself. The fact that the cassation appeal had been rejected, combined with the unmotivated refusal of legal aid, had made it impossible to have his interests protected and his arguments properly presented to the cassation court.

By a decision of 25 May 2000 the Supreme Court dismissed his appeal against the decision rejecting the cassation appeal. The court observed that the applicable law clearly provided that a cassation appeal could only be lodged by a lawyer. The Supreme Court further refused to entertain the appeal in so far as it was related to the refusal of legal aid, observing that under the applicable legal provisions an appeal to the Supreme Court against an interlocutory decision of the Court of Appeal was only available against a decision to reject a cassation appeal.

Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living.

Pursuant to Articles 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case.

The Polish Code of Civil Procedure lays down the principle of mandatory assistance of an advocate in cassation proceedings. Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser.

Under Article 3934 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected.

Article 394 of the Code of Civil Procedure guarantees to a party to the proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain interlocutory decisions, specified in this provision. An appeal is available against a refusal of exemption from court fee and, likewise, against a refusal of legal aid, when such decisions were given by a first-instance court.

The Supreme Court held in a number of its decisions that no appeal to the Supreme Court is available against an interlocutory decision on legal aid given by a second-instance court. It observed that a decision on legal aid was expressly mentioned in a list of interlocutory decisions against which an appeal was specifically provided for under Article 394 of the Code of Civil Procedure, but only when they were given by the first-instance court. Furthermore, under this provision an appeal was available against decisions which terminated the proceedings in the case. However, the court noted that a refusal of legal aid could not be regarded as “terminating the proceedings in the case” within the meaning of this provision because this notion had to be reserved for decisions containing a certain element of assessment of the merits of a given claim. The decisions on legal aid issues did not contain such elements. As they did not fall into either of the two principal categories listed in Article 394, the only possible conclusion was that no appeal was available against them (II CZ 9/97, 21 February 1997, unpublished; I CZ 27/97, 4 April 1997, OSNC 1997, No. 9, item 120; I CZ 14/97, 8 April 1997, OSN 1997 No. 9, item 120).

Pursuant to Article 357 of the Code of Civil Procedure, written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision.

Pursuant to Article 169 of the Code, a party to the proceedings may ask for retrospective leave to appeal outside the prescribed time-limit; the appeal shall be submitted simultaneously with the lodging of such a request.


Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

Mr William Goodwin, a British national, is a journalist and lives in London.

On 3 August 1989 the applicant joined the staff of The Engineer, published by Morgan-Grampian (Publishers) Ltd ("the publishers"), as a trainee journalist. He was employed by Morgan Grampian PLC ("the employer").

On 2 November 1989 the applicant was telephoned by a person who, according to the applicant, had previously supplied him with information on the activities of various companies. The source gave him information about Tetra Ltd ("Tetra"), to the effect that the company was in the process of raising a £5 million loan and had financial problems as a result of an expected loss of £2.1 million for 1989 on a turnover of £20.3 million. The information was unsolicited and was not given in exchange for any payment. It was provided on an unattributable basis. The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document. On 6 and 7 November 1989, intending to write an article about Tetra, he telephoned the company to check the facts and seek its comments on the information.

The information derived from a draft of Tetra’s confidential corporate plan. On 1 November 1989 there had been eight numbered copies of the most recent draft. Five had been in the possession of senior employees of Tetra, one with its accountants, one with a bank and one with an outside consultant. Each had been in a ring binder and was marked "Strictly Confidential". The accountants’ file had last been seen at about 3 p.m. on 1 November in a room they had been using at Tetra’s premises. The room had been left unattended between 3 p.m. and 4 p.m. and during that period the file had disappeared.

On 7 November 1989 Mr Justice Hoffmann of the High Court of Justice (Chancery Division) granted an application by Tetra of the same date for an ex parte interim injunction restraining the publishers of The Engineer from publishing any information derived from the corporate plan. The company informed all the national newspapers and relevant journals of the injunction on 16 November.

In an affidavit to the High Court dated 8 November 1989, Tetra stated that if the plan were to be made public it could result in a complete loss of confidence in the company on the part of its actual and potential creditors, its customers and in particular its suppliers, with a risk of loss of orders and of a refusal to supply the company with goods and services. This would inevitably lead to problems with Tetra’s refinancing negotiations. If the company went into liquidation, there would be approximately four hundred redundancies.

On 14 November 1989 Mr Justice Hoffmann, on an application by Tetra, ordered the publishers, under section 10 of the Contempt of Court Act 1981 ("the 1981 Act"; see paragraph 20 below), to disclose by 3 p.m. on 15 November the applicant’s notes from the above telephone conversation identifying his source. On the latter date, the publishers having failed to comply with the order, Mr Justice Hoffmann granted Tetra leave to join the applicant’s employer and the applicant himself to the proceedings and gave the defendants until 3 p.m. on the following day to produce the notes.

On 17 November 1989 the High Court made a further order to the effect that the applicant represented all persons who had received the plan or information derived from it without authority and that such persons should deliver up any copies of the plan in their possession. The motion was then adjourned for the applicant to bring this order to the attention of his source. However, the applicant declined to do so.

On 22 November 1989 Mr Justice Hoffmann ordered the applicant to disclose by 3 p.m. on 23 November his notes on the grounds that it was necessary "in the interests of justice", within the meaning of section 10 of the 1981 Act (see paragraph 20 below), for the source’s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document, obtain an injunction preventing further publication or seek damages for the expenses to which it had been put. The judge concluded:

"There is strong prima facie evidence that it has suffered aserious wrong by the theft of its confidential file. Thereis similar evidence that it would suffer serious commercialdamage from the publication of the information in the fileduring the near future. It is true that the source may notbe the person who stole the file. He may have had theinformation second hand, although this is less likely. Ineither case, however, he was trying to secure damagingpublication of information which he must have known to besensitive and confidential. According to the respondent,having given him the information he telephoned again a fewdays later to ask how the article was getting on. The plaintiff wishes to bring proceedings against the source forrecovery of the document, an injunction against furtherpublication and damages for the expense to which it has beenput. But it cannot obtain any of those remedies because itdoes not know whom to sue. In the circumstance of this case,in which a remedy against the source is urgently needed, Ithink that disclosure is necessary in the interests ofjustice.

... There is no doubt on the evidence that the respondent wasan innocent recipient of the information but the NorwichPharmacal case shows that this does not matter. The questionis whether he had become mixed up in the wrongdoing ...

The respondent has sworn an affidavit expressing the viewthat the public interest requires publication of theplaintiff’s confidential commercial information. Counsel forthe respondent says that the plaintiff’s previous publishedresults showed it as a prosperous expanding company andtherefore the public was entitled to know that it was nowexperiencing difficulties. I reject this submission. Thereis nothing to suggest that the information in the draftbusiness plan falsifies anything which has been previouslymade public or that the plaintiff was under any obligation,whether in law or commercial morality, to make thatinformation available to its customers, suppliers andcompetitors. On the contrary, it seems to me that businesscould not function properly if such information could not be kept confidential."

On the same date the Court of Appeal rejected an application by the applicant for a stay of execution of the High Court’s order, but substituted an order requiring the applicant either to disclose his notes to Tetra or to deliver them to the Court of Appeal in a sealed envelope with accompanying affidavit. The applicant did not comply with this order.

On 23 November 1989 the applicant lodged an appeal with the Court of Appeal from Mr Justice Hoffmann’s order of 22 November 1989. He argued that disclosure of his notes was not "necessary in the interests of justice" within the meaning of section 10 of the 1981 Act; the public interest in publication outweighed the interest in preserving confidentiality; and, since he had not facilitated any breach of confidence, the disclosure order against him was invalid.

The Court of Appeal dismissed the appeal on 12 December 1989. Lord Donaldson held:

"The existence of someone with access to highly confidentialinformation belonging to the plaintiffs who was prepared tobreak his obligations of confidentiality in this way was apermanent threat to the plaintiffs which could only beeliminated by discovering his identity. The injunctionswould no doubt be effective to prevent publication in thepress, but they certainly would not effectively preventpublication to the plaintiffs’ customers or competitors.

... I am loath in a judgment given in open court to give adetailed explanation of why this is a case in which, if thefull facts were known and the courts had to say that theycould give the plaintiffs no assistance, there would, Ithink, be a significant lessening in public confidence in theadministration of justice generally. Suffice it to say thatthe plaintiffs are a, and perhaps the, leader in their veryimportant field, which I deliberately do not identify, withnational and international customers and competitors. They are faced with a situation which is in part the result oftheir own success. They have reached a point at which theyhave to refinance and expand or go under with the loss notonly of money, but of a significant number of jobs. This isnot the situation in which the court should be or be seen tobe impotent in the absence of compelling reasons. The plaintiffs are continuing with their refinancing discussionsmenaced by the source (or the source’s source) ticking awaybeneath them like a time bomb. Prima facie they are entitledto assistance in identifying, locating and defusing it.

That I should have concluded that the disclosure of Mr Goodwin’s source is necessary in the interests of justiceis not determinative of this appeal. It does, however, meanthat I have to undertake a balancing exercise. On the onehand there is the general public interest in maintaining theconfidentiality of journalistic sources, which is the reasonwhy section 10 was enacted. On the other is, in my judgment,a particular case in which disclosure is necessary in thegeneral interests of the administration of justice. If thesetwo factors stood alone, the case for ordering disclosurewould be made out, because the parliamentary intention mustbe that, other things being equal, the necessity fordisclosure on any of the four grounds should prevail. Were it otherwise, there would be no point in having these doorways.

But other things would not be equal if, on the particular facts of the case, there was some additional reason formaintaining the confidentiality of a journalistic source. It might, for example, have been the case that the information disclosed what, on the authorities, is quaintly called `iniquity’. Or the plaintiffs might have been a publiccompany whose shareholders were unjustifiably being kept inignorance of information vital to their making a sensibledecision on whether or not to sell their shares. Such afeature would erode the public interest in maintaining theconfidentiality of the leaked information and correspondingly enhance the public interest in maintaining theconfidentiality of journalistic sources. Equally, onparticular facts such as that the identification of thesource was necessary in order to support or refute a defenceof alibi in a major criminal trial, the necessity fordisclosure `in the interests of justice’ might be enhancedand overreach the threshold of the statutory doorway requiring some vastly increased need for the protection ofthe source if it was to be counterbalanced. Once the[plaintiffs] can get through a doorway, the balancing exercise comes into play.

On the facts of this case, nothing is to be added to eitherside of the equation. The test of the needs of justice ismet, but not in superabundance. The general public interestin maintaining the confidentiality of journalistic sourcesexists, but the facts of this particular case add absolutelynothing to it. No `iniquity’ has been shown. No shareholders have been kept in the dark. Indeed the publichas no legitimate interest in the business of the plaintiffswho, although corporate in form, are in truth to becategorised as private individuals. This is in reality apiece of wholly unjustified intrusion into privacy.

Accordingly, I am left in no doubt that, notwithstanding thegeneral need to protect journalistic sources, this is a casein which the balance comes down in favour of disclosure. Iwould dismiss the companies’ appeals. I can see no reason injustice for doing otherwise with regard to Mr Goodwin’sappeals."

Lord Justice McCowan stated that the applicant must have been "amazingly naïve" if it had not occurred to him that the source had been at the very least guilty of breach of confidence.

The Court of Appeal granted the applicant leave to appeal to the House of Lords.

The House of Lords upheld the Court of Appeal’s decision on 4 April 1990, applying the principle expounded by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases 133, a previous leading case:

"if through no fault of his own a person gets mixed up in thetortious acts of others so as to facilitate their wrongdoinghe may incur no personal liability but he comes under a dutyto assist the person who has been wronged by giving him fullinformation and disclosing the identity of the wrongdoers."

Lord Bridge, in the first of the five separate speeches given in the applicant’s case, underlined that in applying section 10 it was necessary to carry out a balancing exercise between the need to protect sources and, inter alia, the "interests of justice". He referred to a number of other cases in relation to how the balancing exercise should be conducted (in particular Secretary of State for Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued:

"... the question whether disclosure is necessary in theinterests of justice gives rise to a more difficult problemof weighing one public interest against another. A questionarising under this part of section 10 has not previously comebefore your Lordships’ House for decision. In discussing thesection generally Lord Diplock said in Secretary of State forDefence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,350:

`The exceptions include no reference to "the public interest"generally and I would add that in my view the expression"justice", the interests of which are entitled to protection,is not used in a general sense as the antonym of "injustice"but in the technical sense of the administration of justicein the course of legal proceedings in a court of law, or, byreason of the extended definition of "court" in section 19 ofthe Act of 1981 before a tribunal or body exercising thejudicial power of the state.’

I agree entirely with the first half of this dictum. To construe `justice’ as the antonym of `injustice’ insection 10 would be far too wide. But to confine it to the`technical sense of the administration of justice in thecourse of legal proceedings in a court of law’ seems to me,with all respect due to any dictum of the late Lord Diplock,to be too narrow. It is, in my opinion, `in the interests of justice’, in the sense in which this phrase is used insection 10, that persons should be enabled to exerciseimportant legal rights and to protect themselves from seriouslegal wrongs whether or not resort to legal proceedings in acourt of law will be necessary to attain these objectives.Thus, to take a very obvious example, if an employer of alarge staff is suffering grave damage from the activities ofan unidentified disloyal servant, it is undoubtedly in theinterests of justice that he should be able to identify himin order to terminate his contract of employment,notwithstanding that no legal proceedings may be necessary to achieve that end.

Construing the phrase `in the interests of justice’ in thissense immediately emphasises the importance of the balancingexercise. It will not be sufficient, per se, for a partyseeking disclosure of a source protected by section 10 toshow merely that he will be unable without disclosure toexercise the legal right or avert the threatened legal wrongon which he bases his claim in order to establish thenecessity of disclosure. The judge’s task will always be toweigh in the scales the importance of enabling the ends ofjustice to be attained in the circumstances of the particularcase on the one hand against the importance of protecting thesource on the other hand. In this balancing exercise it isonly if the judge is satisfied that disclosure in theinterests of justice is of such preponderating importance asto override the statutory privilege against disclosure thatthe threshold of necessity will be reached.

Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than anissue calling for the exercise of the judge’s discretion,but, like many other questions of fact, such as the questionof whether somebody has acted reasonably in givencircumstances, it will call for the exercise of adiscriminating and sometimes difficult value judgment. Inestimating the weight to be attached to the importance ofdisclosure in pursuance of the policy which underliessection 10 on the other hand, many factors will be relevanton both sides of the scale.

It would be foolish to attempt to give a comprehensive guidance as to how the balancing exercise should be carriedout. But it may not be out of place to indicate the kind offactors which will require consideration. In estimating theimportance to be given to the case in favour of disclosurethere will be a wide spectrum within which the particularcase must be located. If the party seeking disclosure shows,for example, that his very livelihood depends upon it, thiswill put the case near one end of the spectrum. If he showsno more than that what he seeks to protect is a minorinterest in property, this will put the case at or near theother end. On the other side the importance of protecting asource from disclosure in pursuance of the policy underlyingthe statute will also vary within a spectrum. One importantfactor will be the nature of the information obtained fromthe source. The greater the legitimate interest in theinformation which the source has given to the publisher orintended publisher, the greater will be the importance ofprotecting the source. But another and perhaps moresignificant factor which will very much affect the importanceof protecting the source will be the manner in which theinformation was itself obtained by the source. If it appearsto the court that the information was obtained legitimatelythis will enhance the importance of protecting the source.Conversely, if it appears that the information was obtainedillegally, this will diminish the importance of protectingthe source unless, of course, this factor is counterbalancedby a clear public interest in publication of the information,as in the classic case where the source has acted for thepurpose of exposing iniquity. I draw attention to theseconsiderations by way of illustration only and I emphasiseonce again that they are in no way intended to be read as acode ...

In the circumstances of the instant case, I have no doubtthat [the High Court] and the Court of Appeal were right infinding that the necessity for disclosure of Mr Goodwin’snotes in the interests of justice was established. Theimportance to the plaintiffs of obtaining disclosure lies inthe threat of severe damage to their business, andconsequentially to the livelihood of their employees, whichwould arise from disclosure of the information contained intheir corporate plan while their refinancing negotiations arestill continuing. This threat ... can only be defused ifthey can identify the source either as himself the thief ofthe stolen copy of the plan or as a means to lead to theidentification of the thief and thus put themselves in aposition to institute proceedings for the recovery of themissing document. The importance of protecting the source onthe other hand is much diminished by the source’s complicity,at the very least, in a gross breach of confidentiality whichis not counterbalanced by any legitimate interest whichpublication of the information was calculated to serve.Disclosure in the interests of justice is, on this view ofthe balance, clearly of preponderating importance so as tooverride the policy underlying the statutory protection ofsources and the test of necessity for disclosure is satisfied..."

Lord Templeman added that the applicant should have "recognised that [the information] was both confidential and damaging".

In the meantime, on 23 November 1989, the applicant had been served with a motion seeking his committal for contempt of court, an offence which was punishable by an unlimited fine or up to two years’ imprisonment (section 14 of the 1981 Act). On 24 November, at a hearing in the High Court, counsel for the applicant had conceded that he had been in contempt but the motion was adjourned pending the appeal.

Following the House of Lord’s dismissal of the appeal, the High Court, on 10 April 1990, fined the applicant £5,000 for contempt of court.

Section 10 of the Contempt of Court Act 1981 provides:

"No court may require a person to disclose, nor is a personguilty of contempt of court for refusing to disclose thesource of information contained in the publication for whichhe is responsible, unless it be established to thesatisfaction of the court that disclosure is necessary in theinterests of justice or national security or for theprevention of disorder or crime."

Section 14 reads:

"In any case where a court has power to commit a person toprison for contempt of court and (apart from this provision)no limitation applies to the period of committal, thecommittal shall (without prejudice to the power of the courtto order his earlier discharge) be for a fixed term, and thatterm shall not on any occasion exceed two years in the caseof committal by a superior court, or one month in the case ofcommittal by an inferior court."

In Secretary of State for Defence v. Guardian Newspapers Lord Diplock considered the expression "interests of justice" in section 10 of the 1981 Act:

"The exceptions include no reference to the ‘public interest’generally and I would add that in my view the expression’justice’, the interests of which are entitled to protection,is not used in a general sense as the antonym of ‘injustice’but in a technical sense of the administration of justice inthe course of legal proceedings in a court of law ... [The expression `interests of justice’] ... refers to theadministration of justice in particular legal proceedingsalready in existence or, in the type of `bill of discovery’case ... exemplified by the Norwich Pharmacal Co. v. Customsand Excise Commissioners ... a particular civil action whichit is proposed to bring against a wrongdoer whose identityhas not yet been ascertained. I find it difficult toenvisage a civil action in which section 10 of the [1981] Actwould be relevant other than one of defamation or fordetention of goods where the goods, as in the instant caseand in British Steel Corporation v. Granada Television ...consist of or include documents that have been supplied tothe media in breach of confidence."


Violation of Art. 2 (deaths);Violation of Art. 2 (failure to conduct an effective investigation);No separate issue under Art. 13;No violation of Art. 14+2 (alleged act of racial violence);Violation of Art. 14+2 (failure to investigate possible racist motives);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The case concerns the killing on 19 July 1996 of Mr Angelov and Mr Petkov by a member of the military police who was attempting to arrest them.

All the applicants are Bulgarian nationals of Roma origin.

Ms Anelia Kunchova Nachova, who was born in 1995, is Mr Angelov's daughter. Ms Aksiniya Hristova, who was born in 1978, is Ms Nachova's mother. Both live in Dobrolevo, Bulgaria. Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov, who were born in 1955 and 1954 respectively and live in Lom, Bulgaria, are Mr Petkov's parents.

In 1996 Mr Angelov and Mr Petkov, who were both 21 years old, were conscripts in the Construction Force (Строителни войски), a division of the army dealing with the construction of apartment blocks and other civilian projects.

Early in 1996 Mr Angelov and Mr Petkov were arrested for being repeatedly absent without leave. On 22 May 1996 Mr Angelov was sentenced to nine months' imprisonment and Mr Petkov to five months' imprisonment. Both had previous convictions for theft.

On 15 July 1996 they fled from a construction site outside the prison where they had been brought to work and travelled to the home of Mr Angelov's grandmother, Ms Tonkova, in the village of Lesura. Neither man was armed.

Their absence was reported the following day and their names put on the military police's wanted list. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military Police Unit.

At around twelve noon on 19 July 1996, the officer on duty in the Vratsa Military Police Unit received an anonymous telephone message that Mr Angelov and Mr Petkov were hiding in the village of Lesura. On at least one of the previous occasions when he had been absent without leave, it was there that Mr Angelov had been found and arrested.

The commanding officer, Colonel D., decided to dispatch four military police officers, under the command of Major G., to locate and arrest the two men. At least two of the officers knew one or both of them. Major G. apparently knew Lesura because, according to a secretary who worked at the town hall and was heard later as a witness, his mother was from the village.

Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet-proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” (криминално проявени) – an expression used to denote persons with previous convictions or persons suspected of an offence – and that they had escaped from detention. The officers were instructed to use whatever means were dictated by the circumstances to arrest them.

The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was armed with a personal handgun and a 7.62 mm calibre Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation.

The officers were briefed orally by Major G. on their way to Lesura. Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side.

At around 1 p.m. the officers arrived in Lesura. They asked a secretary at the town hall and one of the villagers, Mr T.M., to join them and show them Mr Angelov's grandmother's house. The vehicle drove into Lesura's Roma district.

Sergeant N. recognised the house since he had previously arrested Mr Angelov there for being absent without leave.

As soon as the jeep drew up in front of the house, between 1 and 1.30 p.m., Sergeant K. recognised Mr Angelov, who was inside, behind the window. Having noticed the vehicle, the fugitives tried to escape. The officers heard the sound of a window pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the garden gate, the former going to the west side of the house, and the latter entering the house. Sergeant N. headed towards the east side of the house. Sergeant S. remained with the car, together with the secretary who worked at the town hall and Mr T.M.

Sergeant N. later testified that, having noticed Mr Angelov and Mr Petkov escaping through the window and running towards a neighbour's yard, he had shouted: “Stop, military police!” He had pulled out his gun, but had not fired any shots. The two men had carried on running. Sergeant N. had run out on to the street in an effort to intercept them by cutting past several houses. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I'll shoot!” It was then that the shooting had started.

Major G. stated in his testimony:

“... I heard Sergeant N. shouting: 'Freeze, police' ... I saw the conscripts; they were running and then stopped in front of the fence between Ms Tonkova's and the neighbour's yards ... I saw that they were trying to jump over the [chain-link] fence, so I shouted: 'Freeze, or I'll shoot!' I released the safety catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle upwards with my right hand, almost perpendicular to the ground ... The conscripts climbed over the [chain-link] fence and continued to run, I followed them, then I fired one, two or three more times in the air and shouted: 'Freeze!', but they continued running. I again fired shots in the air with the automatic and shouted: 'Freeze, or I will shoot with live cartridges.' I warned them again, but they continued running without turning back. I fired to the right [of the two men] with the automatic after the warning, aiming at the ground, hoping that this would make them stop running. I again shouted 'Freeze!' when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence. I aimed at their feet. The ground where I stood was at a lower level ... [B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them. The gradient there was a bit steep, [I] was standing on lower ground ... the second fence was on the highest ground, that is why when I fired the first time I aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I aimed at the conscripts, but fired at their feet. Under Regulation 45 we can use firearms to arrest members of the military forces who have committed a publicly prosecutable offence and do not surrender after a warning, but in accordance with paragraph 3 of [that regulation] we have to protect the lives of the persons against whom [we use firearms] – for that reason I fired at [the victims'] feet – with the intention of avoiding fatal injury. The last time that I shot at the conscripts' feet, I was twenty metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down ...They were both lying on their stomachs, and both gave signs of life, ... moaning ... then Sergeant S. appeared, I called him ... and handed him my automatic rifle ...”

According to the statements of the three subordinate officers, Mr Angelov and Mr Petkov were lying on the ground in front of the fence, with their legs pointing in the direction of the house from which they had come. One of them was lying on his back and the other on his stomach.

A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova's house. Then he had heard somebody shout: “Don't run, I am using live cartridges.” He had then heard shots. He had looked into the next yard and seen Mr Angelov, whom he knew, and another man leap over the chain-link fence between Ms Tonkova's and another neighbour's yards. He had not seen the man who had shouted as he was hidden from view behind Ms Tonkova's house. Then he had seen Mr Angelov and Mr Petkov fall to the ground and the man who had shot them emerge, holding an automatic rifle. Mr Z. further stated:

“The other men in uniform then started remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he should not have come with them. Of those who came in the jeep, only the senior officer fired ... I know him by sight, he has relatives in Lesura.”

Sergeant S. stated that on arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house: “Freeze, police!” He had also heard Major G. shout “Freeze, police!” several times from the west side of the house. Then Major G. had started shooting with his automatic weapon, while continuing to shout. Sergeant S. had then entered the yard. He had seen Major G. leap over the chain-link fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Major G. had gone to get the jeep and had reported the incident over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in the vehicle.

The head of the Vratsa Military Police Unit and other officers were informed of the incident at around 1.30 p.m.

Sergeant K. testified that he had entered the house and had been speaking to Mr Angelov's grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to stop. In the house, he had noticed that a window pane in the room overlooking the yard had been broken. He had been on the verge of leaving the house when he heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the fugitives had been wounded. Sergeant K. had then climbed over the chain-link fence and approached the wounded men, who were still alive and moaning. He had found himself holding the automatic rifle, but could not remember how it had come into his possession. He had opened the magazine and seen no cartridges in it. There was only one cartridge left in the barrel.

Immediately after the shooting, a number of people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded men to Vratsa Hospital, while Major G. and Sergeant N. remained at the scene.

Mr Angelov and Mr Petkov died on the way to Vratsa. They were pronounced dead on arrival at the hospital.

Mr Angelov's grandmother, Ms Tonkova, gave the following account of the events. Her grandson and Mr Petkov had been in her house when they had noticed a jeep approaching. She had gone outside and seen four men in uniform. They had all entered the yard. One of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She had been in the yard, pleading with the man who had been shooting to stop. However, he had walked towards the back of the house. Then she had heard shooting in the backyard. She had followed and then seen her grandson and Mr Petkov lying in the neighbours' yard with bullet wounds.

According to another neighbour, Mr M.M., all three policemen were shooting. Two of them had fired shots in the air and the third officer – who had been on the west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps more. Then he had seen the military policemen go to the neighbouring yard, where Mr Angelov and Mr Petkov had fallen. That yard belonged to Mr M.M. and his daughter. On seeing his grandson – a young boy – standing there, Mr M.M. had asked Major G. for permission to approach and to take him away. Major G. had pointed his gun at him in a brutal manner and had insulted him, saying: “You damn Gypsies!” (“мамка ви циганска”).

On 19 July 1996 all the officers involved made separate reports on the incident to the Vratsa Military Police Unit. None of them was tested for alcohol.

A criminal investigation into the deaths was opened the same day, and between 4 and 4.30 p.m. a military investigator inspected the scene. In his report he described the scene, including the respective positions of Ms Tonkova's house, the first chain-link fence, and the spent cartridges and bloodstains found there. He indicated that the structure of the first chain-link fence was damaged and the fence had been torn down in one place.

A sketch map was appended to the report. It showed the yard of Ms Tonkova's house and the neighbouring yard where Mr Angelov and Mr Petkov had fallen. The places where spent cartridges had been found were indicated. The sketch map and the report gave only some of the measurements of the yards. The gradient and other characteristics of the terrain and the surrounding area were not described.

Nine spent cartridges were retrieved. One cartridge was found in the street, in front of Ms Tonkova's house (apparently not far from where the jeep had stopped). Four cartridges were discovered in Ms Tonkova's yard, behind the house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the yard of the neighbour (Mr M.M), close to the place where the bloodstains were found. The exact distance between those cartridges and the bloodstains was not given. A ninth cartridge was found subsequently and handed in to the military police by Mr Angelov's uncle. There is no record of where it was found.

The bloodstains were a metre apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance between the bloodstains and the second fence that Mr Angelov and Mr Petkov had apparently been trying to scale when they were shot was not indicated. Samples of the bloodstains were taken by the investigator.

On 21 July 1996, a pathologist carried out an autopsy.

According to autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to the chest”, the direction of the shot having been “from front to back”. The wound was described as follows:

“There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet with missing tissues, jagged and torn edges turned outwards.”

As regards Mr Angelov, the report found that the cause of death had been “a gunshot wound, which [had] damaged a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated:

“There is a round wound on the left of the buttocks at a distance of 90 cm from the feet ... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval wound of 2.1 cm with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.”

The report concluded that the injuries had been caused by an automatic rifle fired from a distance.

On 22, 23 and 24 July 1996 the four military police officers, two neighbours (M.M. and K.), the secretary who worked at the town hall, and Mr Angelov's uncle were questioned by the investigator. Mr Petkov's mother was also questioned subsequently.

On 1 August 1996 Major G.'s automatic rifle, a cartridge that had been found in it and the nine spent cartridges found at the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report, the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable.

A report by a forensic expert dated 29 August 1996 found an alcohol content of 0.55 g/l in Mr Petkov's blood and 0.75 g/l in Mr Angelov's blood (under Bulgarian law it is an administrative offence to drive with a blood alcohol content of more than 0.5 g/l).

On 20 September 1996 a forensic examination of the bloodstains found at the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the victims' blood groups.

On 20 January and on 13 February 1997 another neighbour (Mr T.M.) and Ms Hristova (one of the applicants) were questioned. On 26 March 1997 Mr Angelov's grandmother and a neighbour, Z., were questioned.

On 7 January 1997 the families of Mr Angelov and Mr Petkov were given access to the investigation file. They requested that three more witnesses, T.M., Ms Tonkova and Z.H. be heard. Their request was granted. The witnesses were heard by the investigator on 20 January and 26 March 1997. The applicants did not ask for any other evidence to be obtained.

On 31 March 1997 the investigator completed the preliminary investigation and drew up a final report. He noted that Mr Angelov and Mr Petkov had escaped from detention while serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He had aimed at them only after seeing that they were continuing to run away and might escape. He had not sought to injure any vital organs. The investigator therefore concluded that Major G. had acted in accordance with Regulation 45 of the Military Police Regulations and made a recommendation to the Pleven regional prosecutor's office that the investigation should be closed as Major G. had not committed an offence.

On 8 April 1997 the Pleven military prosecutor accepted the investigator's recommendation and closed the preliminary investigation into the deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military Police Regulations. He had warned the two men several times and fired shots in the air. He had shot them only because they had not surrendered, as there had been a danger that they might escape. He had sought to avoid inflicting fatal injuries. No one else had been hurt.

When describing the victims' personal circumstances, including details of their family, education and previous convictions, the prosecutor stated in the order that both men originated from “minority families”, an expression mainly used to designate people from the Roma minority.

By an order of 11 June 1997, the prosecutor of the armed forces prosecutor's office dismissed the applicants' subsequent appeal on the grounds that Mr Angelov and Mr Petkov had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations.

On 19 November 1997 the prosecutor from the investigation review department of the armed forces prosecutor's office dismissed a further appeal on grounds similar to those that had been relied on by the other public prosecutors.

In its country reports of the last few years, the Council of Europe's European Commission against Racism and Intolerance (ECRI) has expressed concern regarding racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia.

The report on the situation of fundamental rights in the European Union and its member States in 2002, prepared by the European Union network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of European Union member States, such as Austria, France, Greece, Ireland, Italy and Portugal.

In its second report on Bulgaria, published in March 2000, ECRI stated, inter alia:

“Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma/Gypsy community. ... [T]he Human Rights Project documents in its Annual Report for 1998 numerous ... cases of police misconduct towards ... Roma ... It cites as the most common violations: use of excessive physical force during detention for the purposes of extorting evidence; unjustified use of firearms ... and threats to the personal security of individuals who had complained against the police to the competent authorities. ... The Human Rights Project notes ... that the majority of complaints filed by this non-governmental organisation on behalf of Roma victims of police violence have not been followed up by the authorities. ... [V]ictims seem unwilling to come forward with complaints, particularly when they are awaiting court sentences ... [There is apparently also] some unwillingness on the part of the authorities to admit that problems of police misconduct do exist. ...

ECRI [reiterates its recommendation] that an independent body be set up – acting at central and local level – to investigate police, investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished. ...

ECRI is concerned at the persistence of widespread discrimination against members of the Roma/Gypsy community in Bulgaria. ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards Roma/Gypsy communities, often with the silent collusion of local police.”

In its third report on Bulgaria, published in January 2004, ECRI stated, inter alia:

“[Since ECRI's second report,] there have been no changes in the Criminal Code [to ensure that criminal law provisions fully allow any racist motivation to be taken into account]. ... ECRI recommends that the Bulgarian authorities insert a provision in the Criminal Code expressly stating that racist motivation for any ordinary offence constitute[s] an aggravating circumstance. ...

ECRI is concerned about allegations of instances of excessive use of firearms by the police, which have sometimes led to the death of Roma. ... ECRI strongly recommends that the Bulgarian authorities take steps to restrict the use of firearms by the law enforcement agencies to cases where their use is really necessary. In particular, it urges the Bulgarian authorities to amend the law to this end and ensure that international standards are conformed to in practice in this field.

ECRI is particularly concerned about the findings ... that the proportion of people of Roma origin who state that they have been subjected to physical violence in police stations is three times higher than the proportion of people of Bulgarian origin. ... So far, the Bulgarian authorities have not set up an independent body to investigate illtreatment or acts of discrimination committed by members of the police force. ...

ECRI is pleased to learn that a specialised human rights committee was set up in the National Police Department in August 2000 ... Numerous schemes have been launched to provide human rights training for police officers ...

The Framework Programme for Equal Integration of Roma in Bulgarian Society is unanimously considered, including by Roma representatives, to be well structured and fairly comprehensive ... There is, however, a unanimous feeling within the Roma community and among non-governmental organisations, that, apart from the few initiatives mentioned in this report, the programme has remained a dead letter ... The view in certain quarters is that the government lacks the political resolve to carry through such a programme ... ECRI is very concerned to learn that, four years after the adoption of the Framework Programme, its implementation is still in its early stages. ...”

Non-governmental organisations, such as Human Rights Project and Amnesty International have reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents.

Section 45 of the Regulations (Regulation 45), as in force at the relevant time, provided as follows:

“(1) Military police officers may use firearms ... under the following circumstances:

to arrest a person serving in the army who has committed or is about to commit a publicly prosecutable offence and who does not surrender after being warned ...

(2) The use of force shall be preceded by an oral warning and a shot fired in the air ...

(3) When using firearms military police officers shall be under a duty, as far as possible, to protect the life of the person against whom they use force and to assist the wounded ...

(5) Whenever firearms have been used, a report shall be prepared describing the circumstances which occasioned their use; [the report] shall be transmitted to the superiors of the officer concerned.”

In December 2000 Regulation 45 was superseded by Decree no. 7 of 6 December 2000 on the use of force and firearms by military police (published in Official Gazette no. 102/2000 and amended in 2001). According to Article 21 of the decree, firearms may be used, inter alia, for the arrest of any person who has committed an offence of the category of publicly prosecuted offences. The vast majority of offences under the Criminal Code fall within that category, including, for example, petty theft. According to Articles 2, 4 § 1 and 21 of the decree, the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration.

Article 12 of the Criminal Code regulates the degree of force that may be used in self-defence. It requires essentially that any action in selfdefence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party. Until 1997 there were no other provisions regulating this issue. However, the courts appear to have applied Article 12 in certain cases concerning the use of force to effect an arrest.

To fill that vacuum, in its Interpretative Direction no. 12 issued in 1973, the Supreme Court proclaimed, without further clarification, that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary (12-1973-PPVS).

In its Decision no. 15 of 17 March 1995, the Supreme Court, while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts, considered that the principles to be applied were those that had been identified by legal commentators. In particular, inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence, there were no other means to effect the arrest and the harm caused was proportionate to the seriousness of the offence. The Supreme Court also stated:

“... [Causing harm to an offender in order to effect an arrest] is an act of last resort. If the offender does not attempt to escape or ... does attempt to escape, but to a known hiding place, causing harm will not be justified ...

The harm caused must be proportionate to the seriousness ... of the offence. If the offender has committed an offence representing insignificant danger to the public, his life and health cannot be put at risk. Putting his life or health at risk may be justified, however, where a person is in hiding after committing a serious offence (such as murder, rape or robbery).

The means used to effect the arrest (and the harm caused) must be reasonable in the circumstances. This is the most important condition for lawfulness ...

Where the harm caused exceeds what was necessary ..., that is to say, where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest, ... the person inflicting it will be liable to prosecution ...”

In 1997 Parliament decided to fill the legislative vacuum by adding a new Article 12a to the Criminal Code. It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary. Few judgments interpreting Article 12a have been reported.

Article 192 provides that proceedings concerning publicly prosecutable offences may only be initiated by a prosecutor or an investigator acting on a complaint or ex officio. Under Article 237 § 6, as worded until 1 January 2000, the victim had a right of appeal to a higher-ranking prosecutor against a decision not to proceed with pending criminal proceedings. The victim had no other means of challenging a refusal to prosecute.

When military courts have jurisdiction to hear a case, as for example when it concerns military police officers, the responsibility for conducting the investigation and prosecution lies with the military investigators and prosecutors, whose decisions are open to appeal before the Chief Public Prosecutor.

Article 63 entitles victims of crime to join the criminal proceedings, and in that connection to claim damages, to inspect the case file and take copies of relevant documents. They may also adduce evidence, raise objections, make applications and appeal against decisions of the investigating and prosecuting authorities.

The Protection against Discrimination Act was passed in September 2003 and came into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery to provide effective protection against unlawful discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services.

Section 9 provides for a shifting burden of proof in discrimination cases. Under that section, where the claimant has proved facts from which an inference that there has been discriminatory treatment might be drawn, it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment. The Act also provides for the creation of a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints.

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

Paragraph 9 provides:

“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”

According to other provisions of the Principles, law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (paragraph 5). Also, “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (paragraph 7). National rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”.

Paragraph 23 of the Principles states that victims or their family should have access to an independent process, “including a judicial process”. Further, paragraph 24 provides:

“Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.”

The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council in Resolution 1989/65, provide, inter alia, that there shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions and that the investigation should aim at, inter alia, determining “any pattern or practice which may have brought about” the death.

Paragraph 11 states:

“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.”

Paragraph 17 states:

“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law...”

The relevant parts of Article 4 of the International Convention on the Elimination of all forms of Racial Discrimination, ratified by Bulgaria in 1966, in force since 1969 and published in the Official Gazette in 1992, provide:

“States Parties ... undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, [racial] discrimination and, to this end ...

(a) Shall declare an offence punishable by law ... all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ...”

In its views of 16 March 1993 in Communication no. 4/91, L.K. v. the Netherlands, which concerned racist threats uttered by private individuals against Mr L.K. and the inadequate reaction by the authorities to the victim's complaint, the Committee on the Elimination of All Forms of Racial Discrimination stated, inter alia, that it was incumbent on the State to investigate with due diligence and expedition cases of incitement to racist discrimination and violence.

The relevant part of Article 6 of the Council of Europe's Framework Convention for the Protection of National Minorities, in force in Bulgaria since 1999, provides:

“The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.”

In its decision of 21 November 2002, the United Nations Committee Against Torture (“the CAT”), examining Complaint no. 161/2000 submitted by Hajrizi Dzemajl and others against Yugoslavia, found that a mob action by non-Roma residents of Danilovgrad, Montenegro, who destroyed a Roma settlement on 14 April 1995 in the presence of police officers, was “committed with a significant level of racial motivation”. That fact aggravated the violation of Article 16 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment found in the case. In assessing the evidence, the CAT noted that it had not received a written explanation from the State Party concerned and decided to rely on “the detailed submissions made by the complainants”.

European Union Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively:

“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

Paragraph 1 shall not apply to criminal procedures.

Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”

In 2002 the European Commission published a Proposal for a Council Framework Decision on Combating Racism and Xenophobia, Article 8 of which includes, among measures to be implemented by member States in that area, action to ensure that in criminal law racial motivation is taken into consideration as an aggravating circumstance.

In April 2005 the European Monitoring Centre on Racism and Xenophobia published a comparative overview of racist violence and responses to it in fifteen of the member States of the European Union. It noted, inter alia, that traditionally the criminal law in most of the jurisdictions surveyed did not specifically refer to “racist violence”, the focus not being on the motivation behind acts of violence. However, that tradition was slowly changing as laws began to recognise that crime could be “racially motivated”. In particular, racist motivation was increasingly being considered as an aggravating factor for sentencing purposes under the legislation of some member States. The relevant legislation in the following countries specifically provided for that possibility: Austria, Belgium, Denmark, Finland, France, Italy, Portugal, Spain, Sweden and the United Kingdom. In particular, Article 132-76 of the French Criminal Code, which was introduced in February 2003, provides in its second paragraph for an “objective” definition of racism as an aggravating circumstance leading to an increase in sentence:

“The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim's actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.

The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded, accompanied or followed by written or spoken comments, images, objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.”


The first applicant is a German national, born in 1963 and living in Wiefelstede. He is a lawyer by profession. He also brings the application on behalf of his daughter, born in wedlock in 1985.

A.

In 1991 the applicant and his wife Mrs G. separated. The ensuing divorce proceedings before the Ludwigshafen am Rhein District Court (Amtsgericht), sitting in family matters (Familiengericht), concerned inter alia the question of custody over the spouses’ children Daria and Julian, born in wedlock in 1987, and involved the taking of psychological expert evidence. Divorce was granted on 26 March 1993. Moreover, upon the spouses’ common proposal, custody of the daughter Daria was awarded to the applicant, and custody of Julian was awarded to Mrs G.

Subsequently, Mrs G. remarried. The applicant married again in 1993 and his son Malte was born in October 1993.

In November 1994 Mrs G. applied to the Ludwigshafen District Court to be awarded custody of Daria. She submitted that Daria did no longer wish to live with the applicant. The applicant contested these submissions. It appears that he also requested that he be awarded custody of Julian; these proceedings were conducted separately.

On 23 December 1994 the Ludwigshafen District Court, having twice heard Daria, issued an interim injunction provisionally transferring the right to determine Daria’s place of residence (Aufenthaltsbestimmungsrecht) to Mrs G. Daria has been living with Mrs G. since. On 30 June 1995 the applicant withdrew his appeal following a hearing before the Zweibrücken Court of Appeal (Oberlandesgericht) which had also questioned the child.

On 17 November 1995 the Ludwigshafen District Court amended the decision of 26 March 1993 and awarded the custody of Daria to Mrs G.

The District Court, referring to section 1696 of the Civil Code (Bürgerliches Gesetzbuch) and the case-law of the Federal Court of Justice (Bundesgerichtshof), observed that decisions on custody should only be changed, if there were valid reasons seriously affecting the child. Having heard the parents and in particular Daria, the court found that the child did no longer wish to live with the applicant, but with Mrs G. It considered that Daria’s wish had to be respected. She had unequivocally expressed her wish in court on 20 December 1994 and 27 October 1995. As stated in the opinion submitted by the competent youth office, she had made the same statement when heard at the youth office. In the court’s view, the argument that this wish had been influenced by third persons was not valid. In particular, she had decided to live with her mother although she could expect the difficulties of being involved in court proceedings. Her statements in court had appeared true and genuine, and she had upheld her position over a lengthy period during which she had regularly access to the applicant, including holidays.

On 23 April 1996 the Zweibrücken Court of Appeal dismissed the applicant’s appeal.

The Court of Appeal, having heard the applicant and Mrs G., Daria and an employee of the competent youth office, found that the custody decision had to be changed in the interest of the child. In this respect, it noted that, upon divorce, custody of Daria had been awarded to the applicant in accordance with the spouses’ common proposal. Following the preliminary injunction issued by the District Court in December 1994, after having heard Daria twice, she had been living with Mrs G. In this period, Daria had changed from primary to secondary school without problems. The competent youth offices had confirmed that both parents were capable of educating children. Daria was meanwhile living together with her brother Julian. Given the bonds between brother and sister, as confirmed at the hearing, it was also in Daria’s interest that they grew up together. Moreover, at least in the meantime, a closer relationship had developed between Daria and Mrs G. Daria’s repeated questioning had shown that she felt safer with her mother and had more personal care and definitively wished to live with Mrs G. There was no indication that Daria’s statements had been caused by Mrs G. and did not reflect Daria’s own wish. Although Daria had not yet completed the age of 14 and had no formal right of veto, the statement of her will had to be respected as act of self-determination. In these circumstances, the Court of Appeal regarded as decisive that Daria’s future well-being and development would suffer, if her firm wish to live with Mrs G. was broken and she be forced to return to the applicant. Awarding custody to Mrs G. was, therefore, in the interest of Daria’s well-being.

Furthermore, as regards the applicant’s subsidiary request for joint custody, the Court of Appeal, referring to the case-law of the Federal Constitutional Court (Bundesverfassungs-gericht), observed in particular that joint custody presupposed both parents’ willingness to share the responsibility for the child after divorce. However, Mrs G. had refused joint custody, arguing that the applicant was not ready for cooperation and would impose his will. The Court of Appeal considered that a parent refusing joint custody was in a position to exclude the other parent from custody. However, such a refusal was not necessarily abusive and therefore irrelevant. Rather, the child’s interests were of paramount importance. In the absence of any willingness to cooperate in the child’s education, joint custody could not be regarded as being in the interest of the child’s well-being.

On 23 July 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional appeal.

B. Relevant domestic law and practice

Section 1671 §§ 1 and 2 of the Civil Code, as in force at the relevant time, provided that, in case of the parents’ divorce, the competent court decided on which parent should have custody of a common child, and took the decision which was in the interest of child’s well-being; the child’s bonds, especially to its brothers and sisters, were to be considered. A common proposal by the parents was only to be disregarded if necessary in the interest of the child.

In a decision of 3 November 1982, the Federal Constitutional Court declared unconstitutional paragraph 4, first sentence, of Section 1671, according to which custody had to be awarded to one of the parents in case of divorce. The Constitutional Court considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect, showing their willingness to share the responsibility for their child after their divorce.

According to section 1696 of the Civil Code, as in force at the relevant time, the competent courts may change their decisions relating to custody matters at any time, if necessary in the interest of the child (im Interesse des Kindes).

The relevant legislation has been amended on the basis of the Government Bill of 28 February 1996 on the reform of the law on family matters. This reform of 16 December 1997, which has entered into force on 1 July 1998, harmonises the rules regarding children born in wedlock and children born out of wedlock. Section 1671 of the Civil Code, as amended, provides that, in case of a definite separation of parents who jointly exercise custody, each parent can request for a sole exercise of custody. The competent court will grant the request if (1) the other parent agrees, unless the child having completed the age of 14 disagrees, or if (2) the termination of joint custody and award to the one parent most likely serves best the child’s well-being. According to section 1696, as amended, the competent courts shall change their decisions if there are valid reasons seriously affecting the child (triftige, das Wohl des Kindes nachhaltig berührende Gründe).


The applicant, born in 1952, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. G. Grone, a lawyer practising in Vienna.

A.

On 23 March 1995 officers of the Vienna Federal Police Authority (Bundespolizeidirektion) searched the applicant’s home on the suspicion that he owned and distributed pornographic material involving minors. They informed the applicant that the investigating judge had issued a search warrant orally. A written copy of the search warrant was not served on the applicant until 16 November 1995.

On 24 April 1995 the applicant lodged a complaint with the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat). He submitted that it was not clear in the circumstances whether a search warrant had been issued as claimed by the police officers. Thus, the search of his premises lacked a legal basis and violated his right to respect for his home.

On 21 August 1995 the Vienna Independent Administrative Panel rejected the applicant’s complaint as being inadmissible. It found that the police had acted upon an oral search warrant from the investigating judge and the search of the applicant’s premises was, thus, attributable to the court. Consequently, the review of its lawfulness did not fall within the competence of the Independent Administrative Panel.

On 9 October 1995 the applicant lodged a complaint with the Review Chamber (Ratskammer) of the Vienna Regional Criminal Court (Landesgericht für Strafsachen), claiming that the search of his premises violated his right to respect for his home. He submitted in particular that no written copy of the search warrant had been served on him within the statutory twenty-four hour time-limit.

On 21 December 1995 the Review Chamber of the Regional Criminal Court dismissed the applicant’s complaint as being unfounded. It noted that the court had conducted criminal proceedings against a number of persons on suspicion of sexual abuse of minors. In the course of these proceedings a letter was seized which proved that a certain M. dealt with pornographic material involving minors. Subsequently, since the applicant was identified as the person using the cover name M. Thereupon, the investigating judge issued a search warrant for the applicant’s premises. At the time, a written copy of the search warrant was not issued and, thus, was not served on the applicant. The Review Chamber further noted that the search was carried out in the presence of the applicant who was first informed of the suspicion and was requested to hand over any pornographic material in his possession. As he refused to do so, the search was carried out and extensive pornographic material as well as business correspondence was seized.

Having regard to its above findings, the Review Chamber concluded that there was a reasonable suspicion, as required by S. 139 of the Code of Criminal Procedure (Strafprozessordnung), that objects which were of importance for specific criminal proceedings were to be found on the applicant’s premises. Moreover, the search had, in accordance with S. 140 of the said Code, been ordered by a judicial search warrant. The failure to serve a written copy of the search warrant on the applicant, though contrary to the law, did not affect the lawfulness of the search itself.

On 29 April 1996 this decision was served on the applicant’s counsel.

B. Relevant domestic law

1862 Protection of the Home Act (Gesetz zum Schutz des Hausrechts 1862)

S. 1 of the 1862 Act provides that a search of premises may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours.

S. 139 § 1 of the Code of Criminal Procedure provides that a search of premises may only be carried out if there is a reasonable suspicion that a person suspected of having committed a criminal offence is hiding in the premises concerned, or that there are objects the possession or examination of which is relevant for a particular criminal investigation.

According to S. 140 § 1 a search may, as a rule, only be carried out after the person concerned has been questioned, and if the objects sought are not voluntarily handed over.

S. 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours.


The applicant, Mr Ayaz Mutalibov, is an Azerbaijani national, who was born in 1938 and lives in Moscow. He was represented before the Court by Mr S. Abdullayev, a lawyer practising in Baku.

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

The applicant was the first president of the Republic of Azerbaijan since it gained independence in 1991. He was elected by popular vote on 8 September 1991 and remained in office until 15 May 1992. Thereafter, the applicant left Azerbaijan and settled in Moscow.

At present, a criminal case is pending against the applicant before the Azerbaijani authorities. The government of Azerbaijan had asked the relevant Russian authorities to extradite the applicant to Azerbaijan, but this request was rejected. The applicant remains active in Azerbaijani politics and is a co-chairman of the Social Democratic Party of Azerbaijan.

Before the presidential elections of 15 October 2003, a number of the applicant’s political supporters in Azerbaijan formed a “voters initiative group” that decided to nominate the applicant as a presidential candidate for the upcoming elections. To this effect, on 16 July 2003 they filed an application with the Central Election Commission (the “Commission”). On 21 July 2003 the Commission rejected this application for failure to comply with the election laws and refused to register the applicant as a presidential candidate. No further explanations were given in the Commission’s formal decision.

Thereafter, the voters’ initiative group filed a suit in the Court of Appeal, requesting to quash the Commission’s decision as unlawful. On 24 July 2003 the Court of Appeal rejected this request. Upon an appeal in cassation, on 7 August 2003 the Supreme Court upheld the Court of Appeal’s decision.