Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

On 7 August 2000 a mother contacted the police on account of a suspicion that her children, a girl born in 1991 and a boy born in 1993, had been sexually abused by a neighbour, the applicant. On 10 August and 2 September 2000 the siblings were interviewed by a police officer experienced in investigating sexual abuse of children. The applicant was also suspected of having abused two other girls, both friends of the siblings and born in 1991. The girls were interviewed by the police on 11 August and 18 August respectively and again on 3 September 2000. All the interviews were recorded on videotape.

At the time of the first interviews, i.e. on the morning of 10 August 2000, the applicant had not been informed of the suspicions against him and no defence counsel had yet been appointed for him. Neither the applicant nor his counsel was present during the later interviews. The siblings and one of the other girls underwent a psychological examination in the Family Advice Centre with a view to assessing whether their testimonies during the pre-trial investigation were reliable.

Meanwhile, on the afternoon of 10 August 2000 the applicant was questioned by the police. Before the questioning he was notified of the suspicions against him and it appears that he did not exercise his right to have his counsel present. The applicant was in detention from that day until 7 September 2000 when travel restrictions were imposed on him. He was accompanied by counsel when questioned again on 17, 18, 19 and 23 August and 6 September 2000. He was questioned alone on 12 January 2001.

Prior to the close of the pre-trial investigation, in his closing statement the applicant requested, on 7 December 2000, having watched the above-mentioned video recordings, that the siblings be questioned again and that his questions be put to them about how and where they had learnt about the sexual things they had mentioned to him and, in particular, if they had been subjected to sexual acts at a place other than the applicant's home. His request was however refused on 21 January 2001. According to the Government, this was because their mother had refused to allow any further questioning of the children, now aged 7 and 9.

The applicant was charged before the District Court (käräjäoikeus, tingsrätten) with having sexually abused the four children during the summer of 2000. He denied the charges. He however admitted having tapped two of the girls on their buttocks.

In February 2001 the District Court held an oral hearing during which the applicant, the parents of the siblings and the mothers of the other two girls gave evidence. The children were not heard in person. The videotaped interviews with the children were shown during the hearing. The court also heard evidence from a psychologist on the reliability of the statements of the siblings and of one of the other girls. The applicant did not request that the children give evidence at the hearing.

The mother of the siblings testified that they had told her about the improper touching in the same manner as they had done on the videotape. When the touching had become known, on 1 August 2000, her son had reacted intensely by crying and slamming doors. He had also suffered from sleeping problems and her daughter had suffered from headaches. Neither of these ailments had occurred before. According to two written opinions of the Family Advice Centre, the siblings' accounts of the events were considered credible given their detailed and precise nature. There was nothing to suggest that they were the siblings' own inventions. The mothers of the two other girls testified that they had told them about the improper touching in the same manner as they had done on the videotape.

In its judgment of 28 February 2001 the District Court observed that the evidence was mainly of an indirect nature and that the sole direct evidence was the testimony of a psychologist, who had testified as to the children's credibility.

The court noted that the applicant had argued that the main evidence in the case was flawed due to the fact that he had not been afforded an opportunity to put questions to the children and that the authorities had put leading questions to them. He had also argued that there were shortcomings insofar as the psychological examinations carried out by the Family Advice Centre were concerned. The court however found no such flaws as would significantly have reduced the evidentiary value of the examinations.

The court then stated that the case turned on an assessment of the credibility of the children's statements. While it was true that the pre-trial statements' probative value was weakened by the fact that the applicant had not been able to put questions to the children, these statements were nonetheless reliable as the children had provided details about the events and as their young age gave no reason to believe that they would have sought to lie about the events. Although some leading questions may have been put to the children, there was nothing to suggest that they would have sought to please the interviewer and adapted their replies accordingly. This being so, the court found that questioning the children in court would not have added anything significant to the case. Having regard to their best interests, the questioning of children of such a young age before a court could not be considered justifiable. The court found that the testimonies of the psychologist and the parents supported the credibility of the children's accounts.

It convicted the applicant of having sexually abused the four children and sentenced him to two years and three months' imprisonment.

The applicant appealed, alleging inter alia a breach of Article 6 § 3 (d) of the Convention in that he had not been afforded an opportunity to put questions to the children.

The Court of Appeal (hovioikeus, hovrätten) held an oral hearing and was presented with the same evidence as had been before the District Court. The parties agreed that it was in the best interests of the children that they should not be heard before the court. The applicant however rejected the admission of the children's pre-trial statements as evidence since he had not been afforded an opportunity to put questions to them.

In its judgment of 6 November 2001 the Court of Appeal noted that the children had been interviewed twice during the pre-trial investigation and all but one of the girls had been examined in the Family Advice Centre using tests and interviews. As the questioning of the children, now aged 8 to 10, before the court would probably have caused them suffering, it was possible to use in evidence their pre-trial statements, although the applicant's minimum rights under, inter alia, Article 6 § 3 (d) of the Convention would thereby be violated. In evaluating the weight to be attached to the children's statements, the court found that it had to take into account the discrepancies pointed out by the applicant and the fact that the police had not put to the children the questions proposed by him in his pre-trial closing statement.

In its assessment of the evidence the appellate court reached the same conclusions as the lower court and upheld the conviction. It however reduced the sentence to one year and eight months' imprisonment, which it considered fair, having regard to the fact that the applicant had not forced the children into doing anything, the relevant sentencing practice and the fact that the applicant had no previous convictions.

The applicant requested leave to appeal, maintaining, inter alia, that there had been a breach of Article 6 § 3 (d) of the Convention. He did not submit any request for the children to be heard.

On 28 February 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.

The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).

The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3), Act no. 692/1997). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8).

The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1), Act no. 692/1997). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34, Act no. 692/1997).

Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42).

The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony.

A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit such a statement as evidence, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948).

If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten.

At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence.

The Code of Judicial Procedure was amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence.

Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows:

“(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and:

(i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and

(ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development.

(2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997).

(3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.”

In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows:

“The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.”


Remainder inadmissible;Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

At about 3 p.m. on 30 December 2003 the applicant and his father went to the District Prosecutor’s Office in Tsarevo to obtain a copy of a document. The clerk refused to give it to them. A quarrel ensued. A prosecutor came in and ordered the applicant to leave the premises. A brawl ensued. The police, who had been called in, drew up a procès-verbal saying that, by insulting the prosecutor and trying to hit him, the applicant had committed an offence under the 1963 Decree on Combating Minor Hooliganism (“the 1963 Decree” – see paragraphs 1011 below). The applicant refused to sign the procès-verbal, saying that he would present his objections before a court.

About half an hour later the police made an order for the applicant’s detention under section 70(1)(8) of the Ministry of Internal Affairs Act 1997, then in force. The order said that the applicant was being detained for committing an offence under the 1963 Decree.

At 10 a.m. on 31 December 2003 the applicant was brought before the Tsarevo District Court. He was assisted by two counsel. The court heard the applicant, two witnesses, and the applicant’s counsel. In a decision of the same day it found the applicant guilty of an offence under Article 1 § 2 of the Decree for insulting and trying to hit the prosecutor, and sentenced him to fifteen days’ detention in the premises of the Ministry of Internal Affairs. The court went on to order, by reference to Article 8 § 2 of the Decree (see paragraph 12 below), that during his detention the applicant was to carry out socially useful work adapted to his health, age and professional skills; he was to take part in public works on the territory of the Tsarevo Municipality. The decision was final and immediately enforceable.

The applicant was released at 11 a.m. on 14 January 2004. It is unclear what work exactly was carried out by him during his detention.

Decree No. 904 of 28 December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It was published in the State Gazette on 31 December 1963, as required under section 37(1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same force as an Act of Parliament (опр. № 9959 от 7 ноември 2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10 декември 2004 г. по адм. д. № 9761/2004 г., ВАС, петчленен св; опр. № 14673 от 3 декември 2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; опр. № 12764 от 1 ноември 2010 г. по адм. д. № 13284/2010 г., ВАС, I о.).

Article 1 § 2 of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords, insults or other offensive words in a public place and in front of many people, in an offensive attitude towards other citizens or public officials, or in a quarrel, fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism. Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days’ detention in the premises of the Ministry of Internal Affairs or a fine (Article 1 § 1).

Under Article 8 § 2 of the Decree, the penalty of detention in the premises of the Ministry of Internal Affairs must be accompanied by work determined in accordance with the detainee’s health, age and abilities. That work is not remunerated.

Cases under the Decree fall under the jurisdiction of the district courts (Articles 3 and 4). Until May 2011 Article 7 provided that the court’s decision was not subject to appeal. On 4 May 2011 (реш. № 3 от 4 май 2011 г. по к. д. № 19 от 2010 г., обн., ДВ, бр. 38 от 17 май 2011 г.) the Constitutional Court declared that rule unconstitutional. As a result, in November 2011 Article 7 was amended and now provides, in paragraph 2, that the district court’s decision to impose an administrative penalty may be appealed on points of law before the regional court within twenty-four hours. The case must be listed for hearing before the regional court not more than three days after the district court’s decision (paragraph 1, as amended), and the regional court must rule, by means of a final decision, on the day it receives the appeal (paragraph 3, as amended). In the explanatory notes to the amendment bill the Government referred to, inter alia, the need to bring the Decree into line with the Convention and this Court’s caselaw.

Under section 25 of the Execution of Punishments Act 1969, persons serving a custodial sentence following their conviction of a criminal offence were entitled to receive at least thirty per cent of the remuneration due for their work.

Section 78(1) of the Execution of Punishments and PreTrial Detention Act 2009, which superseded the 1969 Act in June 2009, provides that persons serving a custodial sentence following their conviction of a criminal offence are entitled to receive at least thirty per cent of the remuneration due for all work carried out by them except voluntary unpaid work and regular shifts to maintain order and hygiene.

The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by those rules in legislation and policies.

The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted on 12 February 1987.

Rule 76.1 provides that “[t]here shall be a system of equitable remuneration of the work of prisoners”.

The commentary in the Explanatory memorandum to the Rules says:

“This rule recognises the importance and value of an adequate and equitable payment system in the context of treatment regimes. No provision to encourage the development of wages systems towards levels that apply for similar work in the community has been made in the rule itself as that would have been premature at this stage. However, a great deal of progress has been made in that respect in a number of countries and that is to be encouraged. ...”

On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”.

Rule 26.10 provides that “[i]n all instances there shall be equitable remuneration of the work of prisoners”.

The commentary on the 2006 Rules (drawn up by the European Committee on Crime Problems) says that the level of remuneration of prisoners should be guided by the principle of mirroring conditions for workers on the outside, and that ideally all prisoners should be paid wages that are related to those in society as a whole.


The applicant, Mr Talip Köklü, is a Turkish national who was born in 1940 and lives in Ordu. He is represented before the Court by Mr Vural Soytekin, a lawyer practising in Istanbul.

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

On 3 September 1996 the applicant applied to the Giresun Forestry Management Directorate in order to cut 1/3 of the trees on his land. On 26 May 1997 the administration rejected his application on the ground that this part of the land was classified as forestland, therefore cutting of the trees therein was prohibited pursuant to the relevant legislation.

On 27 May 1997 the applicant brought an action before the Trabzon Administrative Court to annul the administration’s decision.

On 9 June 1997 the court notified the applicant’s lawyer in writing that the court charges have not been paid.

On 6 October 1997 the court further notified the applicant’s lawyer that the adjudication of the case would be discontinued until the court’s receipt of the relevant charges pursuant to Article 6/4 of the Code on Administrative Procedures. On 12 November 1997 the applicant’s lawyer paid the court charges.

On 17 June 1998 a new administrative court was established in Ordu to adjudicate on the legal claims in Ordu and Giresun provinces with a view to lightening the case-load of the Trabzon Administrative Court.

On 3 July 1998 the case was transferred to the newly established Ordu Administrative Court which immediately started the proceedings by requesting the Ankara General Directorate of Forestry to submit their observations on the merits of the case.

On 18 February 1999 the Ankara General Directorate of Forestry submitted their arguments on the merits of the case together with a report on the classification of the location of the applicant’s land supported by the relevant evidence.

On 13 July 1999 the Ordu Administrative Court rejected the applicant’s claim for annulment of the administration’s decision.

On 22 October 1999 the applicant appealed against this judgment before the Supreme Administrative Court.

On 26 October 1999 the Supreme Administrative Court notified the applicant’s lawyer that the court charges had not been paid and informed him that the adjudication of the case would be discontinued until the court’s receipt of such payment. On 9 November 1999 the applicant’s lawyer paid the said charges.

On 8 November 2001 the Supreme Administrative Court rejected his appeal against the administrative court’s judgment.

On 3 December 2001 the administrative court’s judgment was communicated to the applicant.


Violation of Article 10 - Freedom of expression -{General}

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

The applicant was born in 1960 and lives in Saratov.

On 9 January 2003 the applicant published an article under the headline “The Political Scene in 2002: Old Faces and New Times” (Политические расклады 2002 года: старые лица и новые времена) in issue no. 1 (10) of the Nedelya Oblasti newspaper. The article examined the interplay of political groups in the Saratov Region and, in particular, the part played by the prosecutor's office of the Saratov Region and B., the Saratov Regional Prosecutor.

B. sued the applicant and the editorial board for defamation before the Kirovskiy District Court of Saratov. He claimed that the following extract from the article had damaged his honour, dignity and professional reputation:

“Probably, only this [the political union between the town hall and the regional prosecutor's office] can account for the regional prosecutor's office's perseverance in instigating criminal proceedings against members of the regional government..., while at the same time shielding the serving officials of the town hall and the town legislature from criminal prosecution. For example, in the corruption-ridden case of the “Town Charity Fund for Health Care Support”, charges had been brought against only one member of the town legislature, Mr K[.], but shortly thereafter he was acquitted. And the mayor's close circle, headed by Mr A[.] in person, was spared responsibility. In gratitude for support the town hall started supplying the prosecutor's offices with 'gifts' in the form of foreign-made cars and furniture. As to the regional prosecutor Mr B[.], the town hall allocated to him under a 49-year lease agreement (!) a plot of land in the courtyard of the block of flats where he lives (allegedly for development).”

The District Court commissioned a linguistic examination of the impugned extract by four experts from Saratov State University.

On 12 September 2003 the panel of four experts returned their unanimous findings. In their assessment, the article did not give an appraisal of B.'s character, nor did it damage his honour or professional reputation. The publication might create the impression that the prosecutor's actions had been unseemly and cast doubt on the lawfulness of a lease agreement for such a long term and the validity of its purpose. However, these issues called for a legal rather than a linguistic examination. The experts concurred that the words “probably”, “only this can account for...” and “in gratitude for support” were expressions of the journalist's personal opinion rather than statements of fact. The author did not allege that prosecutor B. had received any benefits for his support of the town hall. The journalist merely supposed that the prosecutor had not been impartial and that criminal charges against officials had been brought selectively.

On 14 November 2003 the Kirovskiy District Court of Saratov gave judgment, finding against the applicant for the following reasons:

's article] the plaintiff Mr B. cannot be viewed as a private individual because in the public perception – having regard to the fact that the plaintiff is a public figure – the plaintiff is Mr B., the citizen who holds the office of the Saratov Regional Prosecutor and must observe higher standards in his personal and professional image and his daily actions.

The court further considers that the term 'prosecutor's offices' employed in the article also referred to the plaintiff because, by virtue of his office, he is responsible for the operation of all the prosecutor's offices in the entire Saratov region.

Having regard to the above, the court considers that the excerpt from the article at issue is nothing but statements (сведения) disseminated about the plaintiff that are damaging to his honour, dignity and professional reputation...

The court does not consider proven the defendants' argument that they disseminated a journalist's opinion based on facts, because the author's opinion must not only be founded on specific statements, but must also not damage the plaintiff's reputation or honour and must not contain statements about the plaintiff's unlawful conduct.

Since the purpose of expressing an opinion is to convey it to third parties, the form of its expression must exclude the possibility of misleading a reasonable third party as to whether such information is an opinion or a statement of fact.

The court considers that in the present case the defendants have failed to meet these requirements and the statements contained in the article are statements of fact amenable to proof in judicial proceedings...”

The District Court noted that the underlying facts in the impugned excerpt were not disputed. Thus, criminal proceedings were indeed brought against certain members of the regional government, including the member of the town legislature K. Mr B. had received a plot of land under the conditions indicated by the applicant, and the Saratov town hall had put at the disposal of the prosecutor's offices, free of charge, a Hyundai car, six tables and nine filing cabinets.

However, in the District Court's view, the applicant had failed to show that the mayor's close circle had been “spared responsibility” and that furniture, a foreign-made car or a land plot had been offered “in gratitude for support”.

The District Court held that the entire extract had been defamatory, ordered the newspaper to publish a rectification, and recovered 5,000 Russian roubles each from the applicant and the newspaper.

On 19 December 2003 the Saratov Regional Court, on an appeal by the applicant, upheld the judgment.

Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.

Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (сведения) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.

The Resolution (in force at the material time) provided that, in order to be considered damaging, statements (сведения) had to be untrue and contain allegations of a breach, by a person or legal entity, of laws or moral principles (commission of a dishonest act, improper behaviour in the workplace or in everyday life, etc.). Dissemination of statements was understood to mean the publication of statements or their broadcasting, inclusion in professional references, public speeches or applications to State officials, and communication in other forms, including oral, to at least one other person (section 2).

Section 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff had to show that the statements had indeed been disseminated by the defendant. The defendant had to prove that the disseminated statements were true and accurate.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1977 and lives in Stara Zagora.

According to the judgment of 30 November 2005 of the Stara Zagora District Court, in the afternoon of 29 March 1991 the applicant, then aged thirteen, was invited to a party at the home of Mr T.Z. There were several young people in the apartment. After some time Mr D.I., then aged seventeen, took the applicant to a separate room and threatened her, after which he raped her. Then he went out and Mr T.Z., who was twenty-one years old, entered the room. He beat the applicant and attempted to rape her but was interrupted by his mother ringing the doorbell. Mr T.Z. asked the applicant and the other guests to leave.

The applicant told her parents that she had been raped, and they took her to the doctor and informed the police.

In a medical expert report of the same date two experts of the Stara Zagora Military Medical Institute established that there was an injury to the applicant’s hymen and that she had several bruises on her head.

On 4 April 1991 the applicant’s mother lodged a written complaint with the police authorities against Mr T.Z. and Mr D.I.

The police carried out an inquiry, in the course of which it took statements from the applicant, Mr T.Z. and Mr D.I. The two suspects gave their addresses.

On 27 January 1992 the Stara Zagora district prosecutor opened criminal proceedings against Mr T.Z. and Mr D.I.

On 9 April 1992 Mr T.Z. was charged with attempted aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On the same day the investigator questioned him, the applicant and a witness.

In a letter of 10 April 1992 the investigator requested the police to establish the full names and addresses of four witnesses.

On 28 April 1992 the investigator established that Mr D.I. had not appeared before him, although he had been duly summoned, and that the whereabouts of certain witnesses were unknown. He proposed that the criminal proceedings be stayed. By a decree of 24 November 1992 the district prosecutor stayed the criminal proceedings against Mr T.Z. and Mr D.I., on the ground that the latter’s whereabouts were unknown.

There is no information as to whether the authorities took any steps to find the persons concerned.

In a report of 8 September 2000 a police officer stated that Mr D.I. had been found. The address specified in the report was the same as the one Mr D.I. had given in his written statement of 1991. In a statement of 8 September 2000 Mr D.I. said that he had not changed his place of residence and that he had never been summoned by the investigator.

On 19 December 2000 the district prosecutor resumed the criminal proceedings against Mr T.Z. and Mr D.I.

In a letter of 26 February 2001 the investigator asked the district prosecutor to extend the period of investigation by six months, stating that the work on the case had not been completed on time because of his involvement in other cases. On 19 March 2001 the district prosecutor granted a two-month extension.

In a letter of 28 June 2001 the district prosecutor instructed the investigator to take urgent measures to complete the investigation, informing him that the case would be subject to special monitoring.

On 5 November 2002 Mr D.I. was charged with aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On 14 November 2002 he was questioned before a judge.

In the period between 7 November and 5 December 2002 the investigator questioned twelve witnesses, and appointed two experts to make a psychiatric and psychological assessment of Mr T.Z., Mr D.I. and the applicant, as well as a medical expert, who, on the basis of the documents in the file, confirmed the conclusions of the medical report of 29 March 1991.

The results of the preliminary investigation were communicated to Mr T.Z. and Mr D.I. on 4 March 2003.

On 6 March 2003 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that the two accused should be put on trial.

In a decree of 30 September 2003 the district prosecutor terminated the criminal proceedings in respect of Mr D.I. as time-barred. He found that a shorter prescription period was applicable to him because he had been under age at the time of the offence.

In a decree of 29 March 2004 the district prosecutor terminated the criminal proceedings in respect of Mr T.Z., finding that the charges against him had not been proved and that it would be practically impossible to gather any new evidence in view of the period of time which had elapsed since the events.

Following an appeal by the applicant, on 20 April 2004 the Stara Zagora District Court quashed the decree of 29 March 2004 and resumed the proceedings in respect of Mr T.Z. It found that the district prosecutor should have ordered witness confrontations.

On 30 April 2004 the district prosecutor referred the case back to the investigator for further examination.

In the period from 7 to 11 June 2004 the investigator carried out four witness confrontations.

A second psychiatric and psychological report was submitted in respect of the applicant on 22 June 2004. It confirmed that she had been able to understand the events of 29 March 1991 and that she had not been able to effectively resist the mental and physical violence against her. It was unlikely that the applicant had testified under the influence of her parents.

On 9 June 2004 the investigator ordered an expert examination of the clothes allegedly worn by the applicant on the day of the incident, as well as of other items. Several expert reports were prepared in the period from 16 to 22 June 2004.

On 25 June 2004 the results of the preliminary investigation were presented to Mr T.Z. On the same date the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr T.Z. should be tried for attempted rape.

On 19 July 2004 the district prosecutor once again terminated the criminal proceedings against Mr T.Z. for lack of direct evidence.

Following an appeal by the applicant, on 25 August 2004 the Stara Zagora regional public prosecutor’s office upheld the decree of 19 July 2004. The applicant appealed further.

In a decree of 21 September 2004 the Plovdiv appeals public prosecutor’s office quashed the decrees of 25 August 2004, 19 July 2004 and 30 September 2003 (see paragraph 24 above) and referred the case back to the district prosecutor for further investigation. The district prosecutor was ordered to monitor the case and see to the lawful and timely completion of the investigation within two months. The decision further stated that the applicant’s account of the events had been corroborated by numerous pieces of circumstantial evidence and that the prescription period for prosecuting Mr D.I. had not expired because there was evidence of complicity between the two accused which affected the legal characterisation of the charges.

On 5 October 2004 the district prosecutor referred the case back to the investigator with instructions to gather additional evidence within thirty days. On 8 November 2004 this deadline was extended by thirty days.

In a letter of 3 January 2005 the district prosecutor instructed the investigator to send him the file as soon as possible. In a note of 12 January 2005 the district prosecutor stated that he had reached an agreement with the investigator that the file would be sent by 31 January 2005.

A confrontation between the applicant and Mr T.Z. was carried out on 17 January 2005.

On 18 January 2005 the applicant was questioned before a judge.

On 21 January 2005 Mr D.I. and Mr T.Z. were charged with aggravated rape and attempted aggravated rape respectively, committed in complicity, and were ordered not to leave the town pending the criminal proceedings. They were questioned on the same day.

A confrontation between the applicant and Mr D.I. was carried out and two witnesses were questioned before a judge between 24 and 26 January 2005.

An expert report concerning a tear in the jeans allegedly worn by the applicant on the date of the incident was submitted on 31 January 2005.

The results of the preliminary investigation were communicated to Mr D.I. and Mr T.Z. on 2 and 3 February 2005 respectively.

On 9 February 2005 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr D.I. and Mr T.Z. should be tried on the charges.

An indictment against the two accused was filed with the Stara Zagora District Court on 22 February 2005.

Two hearings scheduled for 14 April and 22 June 2005 were postponed because one of the accused and the lawyer of the other accused had fallen ill.

A hearing was held on 11 July 2005. The applicant joined the proceedings as a private prosecutor. She did not bring a civil action.

On 12 October and 30 November 2005 the District Court held hearings. The defendants did not plead the statute of limitations but asked the court to pronounce a judgment.

In a judgment of 30 November 2005 the District Court convicted Mr D.I. of aggravated rape but relieved him from liability and punishment. It reasoned that although Mr D.I. had not pleaded the statute of limitations, the latter was nevertheless an absolute obstacle to his punishment. It further convicted Mr T.Z. of attempted aggravated rape and sentenced him to three years’ imprisonment. It found that the long lapse of time since the rape represented a mitigating factor which must be taken into account in determining his punishment. The court acquitted the two accused of the complicity charges.

Upon appeals by the applicant, the district prosecutor and Mr T.Z., on 20 October 2006 the Stara Zagora Regional Court upheld the judgment of 30 November 2005 in respect of Mr D.I. This part of the judgment was not subject to appeal and became final.

The Regional Court further terminated the criminal proceedings against Mr T.Z. as time-barred, finding that the prescription period for his prosecution had expired meanwhile.

On 18 May 2007 the applicant’s lawyer was informed of the judgment and of the applicant’s right to appeal against the termination of the criminal proceedings against Mr T.Z. The applicant did not appeal.

Pursuant to the 1974 Criminal Procedure Code, in force at the relevant time and until 2006, as well as the constant case-law of the Supreme Court of Cassation, the courts had to terminate criminal proceedings upon expiry of the statutory period of limitation. Nevertheless, the accused could request their continuation (Article 21). In such a case, the court could find him guilty but could not punish him (Article 303).


BREINESBERGER AND WENZELHUEMER v. AUSTRIA

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants, Mr Walter Franz Breinesberger and Mr Hermann Wenzelhuemer, are Austrian nationals who were born in 1942 and 1948 respectively and live in Eferding. They were represented before the Court by Haslinger/Nagele Rechtsanwälte GmbH, lawyers practising in Linz.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

The first applicant had been employed by the Sparkasse Eferding bank since 1962 and became a member of the board of directors (Vorstand) in 1991. The second applicant became a member of the board of directors of the same bank in 1993.

In the year 2000 preliminary investigations (Vorerhebungen) were initiated concerning the applicants on suspicion of aggravated fraud. The applicants were taken into pre-trial detention on 28 August 2000 and were released again on 11 September 2000.

On 20 March 2002 the Wels public prosecutor issued a bill of indictment charging the applicants with the offence of aggravated fraud, alleging that from March 1994 onwards the applicants had failed to repay commissions on loans to customers in 190 cases, had failed to reimburse legal fees by recording them under the headings “final entry” or “loan interest” in four cases and had charged higher interest on overdrafts than had been agreed in 127 cases.

On 19 October 2004, and after forty days of hearings held between 24 June 2003 and 19 October 2004, the Wels Regional Court, sitting as a court with two professional and two lay judges (Schöffengericht), convicted the applicants of aggravated fraud in respect of the first two events, namely failure to repay loan commissions in 179 cases and legal fees in four cases, and sentenced each of them to twenty-four months’ imprisonment, sixteen months of which were suspended with probation. The judgment was delivered in public at the end of the fortieth day of hearings.

On 24 May 2005 the applicants filed an application for acceleration of the proceedings (Fristsetzungsantrag) under section 91 of the Courts Act (Gerichtsorganisationsgesetz), requesting that a time-limit be set within which the Regional Court must send them the minutes of the last hearing and the written judgment.

The written judgment of 236 pages was served on the applicants’ counsel on 17 June 2005.

On 20 June 2005 the applicants lodged an application under Article 285 § 2 of the Code of Criminal Procedure (Strafprozeßordnung) seeking to extend the time-limit for lodging a plea of nullity and an appeal against the sentence, owing to the complexity of the case. By a decision of 23 June 2005 the Wels Regional Court granted the application, referring to the complexity and volume of documentation in the case, and extended the time-limit for exercise of the remedies by a further four weeks.

On 11 August 2005 the applicants lodged a plea of nullity and an appeal against the sentence.

With a decision dated 10 November 2005 the time limit for the Wels public prosecutor to submit observations on the plea of nullity was extended by a further four weeks. On 5 January 2006 the Wels public prosecutor submitted comments on the plea of nullity. The plea of nullity was transferred to the Supreme Court on 12 January 2006. On 6 March 2006 the Supreme Court forwarded the file to the Attorney-General’s Office (Generalprokuratur) for observations. The Attorney-General’s Office submitted its comments on 29 November 2006, which were served on the applicants on 4 January 2007, together with the information that they could lodge their observations on the comments within fourteen days.

On 11 January 2007 the applicants made an application seeking to extend the time-limit in which to submit observations on the AttorneyGeneral’s Office’s comments by a further two weeks. The application was granted by the Supreme Court on 16 January 2007.

On 31 January 2007 the applicants submitted their comments on the Attorney General’s Office’s observations.

In a judgment of 15 February 2007 concerning the plea of nullity, served on counsel on 4 May 2007, the Supreme Court quashed the parts of the conviction that related to eight counts of alleged fraud regarding the failure to repay commissions on loans to customers, but dismissed the remainder of the plea of nullity as unfounded. However, in accordance with its decision on the eight counts in question, the Supreme Court also quashed the sentence passed by the Regional Court and referred the case back to the first-instance court for a retrial with regard to the eight counts and for sentencing.

The Wels public prosecutor subsequently withdrew the bill of indictment in so far as it concerned those eight counts.

On 20 July 2007 the Wels Regional Court, to which it only remained to decide on the overall sentence in respect of the applicants, sentenced each of the applicants to two years’ imprisonment, suspended with probation for one year. The case was then sent to the Linz Court of Appeal for determination of the appeal against the sentence.

On 15 November 2007 the Linz Court of Appeal partly upheld the public prosecutor’s appeal and sentenced each of the applicants to twentyfour months’ imprisonment, twenty months of which were suspended with probation for one year.

That judgment was served on the applicants’ counsel on 31 January 2008.

Article 285 § 1 of the Code of Criminal Procedure (Strafprozeßordnung) at the material time provided that a complainant could submit a plea of nullity, giving reasons, within four weeks after service of the written first-instance judgment.

Paragraph 2 of the provision provided at the material time as follows:

“Where the proceedings are on an extremely large scale the first-instance court shall, if the applicant so requests, extend the time-limit referred to in paragraph 1 by the length of time required – particularly in view of the exceptional length of the trial or the exceptional volume of the minutes of the proceedings, the remainder of the case file or the written judgment – in order to ensure adequate preparation of the defence (Article 6 § 3 (b) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette No. 210/1958, and Article 2 of Protocol No. 7 thereto, Federal Law Gazette No. 628/1988) or of the prosecution of the case.”


The applicant was born in 1942 and lives in Birmingham.

The applicant, aged sixty three, would not become eligible for a State pension until he was sixty five, whereas a woman could claim a State pension from age sixty. He was currently unemployed but if he returned to work he and any potential employer would be liable to make national insurance contributions.

On 4 February 2002, the applicant issued proceedings for damages in the High Court against the Benefits Agency, alleging inter alia that the refusal to pay him a pension from the age of sixty was discriminatory. On 2 October 2002, the applicant’s claim was struck out on the basis that the particulars of claim disclosed no reasonable grounds for bringing the claim (Civil Procedure Rule 3.4.2.). On 27 February 2003, permission to appeal was refused.

Section 122 of the Social Security Contributions and Benefits Act 1992 defines “pensionable age” as:

“(a) the age of 65, in the case of a man; and

(b) the age of 60, in the case of a woman”.

Section 126 of the Pensions Act 1995 provides for the equalisation of State pension ages for men and women to the age of 65. The State pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay national insurance contributions will gradually increase in line with the increase in the State pension age.

Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences therefore for other benefits”.

In Case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR 1-4297 (“the EOC case” concerning a reference for a preliminary ruling from the High Court), the European Court of Justice found that:

Article 7(1)a had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference;

Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age;

In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)a were to be interpreted restrictively.


The applicant is a German national, born in 1925 and living in Heidesheim (Germany). The respondent Government are represented by their Agent Mr K. Stoltenberg, Ministerialdirigent, of the Federal Ministry of Justice.

On 31 January 1994 the Bingen District Court (Amtsgericht) convicted the applicant, a recidivist offender, of having driven a motor vehicle without a driving licence and, having regard to his preceding conviction of such offences, it fixed a global sentence of one year’s imprisonment. The execution of the sentence was suspended until 3 May 1998. The court further ordered that the applicant should not be issued a driving licence before 3 November 1995. The applicant’s appeal was dismissed by the Mainz Regional Court (Landgericht) on 14 November 1994. On 20 November 1994 the applicant left Heidesheim and moved to the Netherlands, where he officially took residence in Brummen. On 14 June 1995 he was issued a Dutch driving licence. On 1 July 1995 he moved back to Germany and took residence at his previous address in Heidesheim.

On 16 March 1997 the applicant was stopped by the police when driving a car. Having only the Dutch driving licence, criminal proceedings were commenced against the applicant on the suspicion of having driven a motor vehicle without a valid driving licence. In these proceedings, he was assisted by defence counsel.

By indictment of 30 June 1997, the Mainz Public Prosecutor’s Office (Staatsanwaltschaft) charged the applicant of having driven a motor vehicle without a valid driving licence. It further requested the competent Bingen District Court to seize the car in question as there were strong reasons to assume that it was liable to forfeiture and to consider the question of a resale (Notveräusserung).

On 16 July 1997 the Bingen District Court issued a warrant to search the applicant’s premises and his cars and to seize the applicant’s car with the registration number MZ-E6605. The court found that there was a strong suspicion that on 16 March 1997 the applicant had driven this car without a valid driving licence. In this respect the court considered that, following his conviction of driving without licence in 1994, he should not have been issued a new one before November 1997. When stopped, he had shown a Dutch driving licence, passed in the Netherlands in June 1995. This licence was, according to the court, not valid in Germany as, at the relevant time, though not having been registered in Heidesheim between 20 November 1974 and 1 July 1975, he had in fact been living there. The car was to be seized as object used when committing the offence, liable to forfeiture on account of his recidivism. The measures were carried out on 17 July 1997.

On 25 September 1997 the Public Prosecutor’s Office informed the applicant that, taking into account the costs of storage and the value of the car, its resale was envisaged. The applicant’s representative objected on 17 October 1997.

On 2 December 1997 the Bingen District Court committed the applicant for trial. Subsequently, it ordered an opinion as to the value of the car.

On 23 December 1997 the District Court ordered the sale of the seized car under section 111 lit. l (1) of the Code of Criminal Procedure (Strafprozessordnung), as the costs of storage by far exceeded its value. In this respect, the court had regard to the opinion of a technical expert according to which the remaining value was zero, whereas at the relevant time the costs amounted to more than 800 DEM and were increasing at a daily rate of DM 5.

On 5 January 1998, upon the applicant’s objection, the District Court suspended the resale.

On 13 January 1998 the Mainz Regional Court (Landgericht) dismissed the applicant’s appeal, confirming the District’s Court reasoning. It added that in assessing the value of the car, objective criteria were relevant and not the applicant’s subjective impression.

On 6 February 1998 the trial opened before the Bingen District Court. Having heard the applicant, an expert and several witnesses, the competent judge proposed to adjourn the proceedings in order to conduct further investigations. The same day, a decision to stay the proceedings provisionally, pursuant to section 154 of the Code of Criminal Procedure, was issued.

On 9 February 1998 the District Court ordered the seizure of the applicant’s bank statements to investigate whether he had stayed for a longer period in the Netherlands and issued checks there.

The same day, the court ordered that the resale of the car be continued, as the suspicion against the applicant had not been dissipated at the hearing of 6 February 1998. The applicant’s assertion that he had repeatedly returned to Heidesheim in order to fetch his mail was not convincing. On 11 February 1998 the bailiff was instructed to proceed to the resale. Upon the applicant’s objection, the resale procedure was suspended pending the outcome of these proceedings.

On 2 March 1998 the Mainz Regional Court dismissed the applicant’s appeal against the decision of 9 February 1998. The Regional Court confirmed the reasons advanced by the District Court. It also found that the resale could be continued irrespective of the provisional discontinuation of the trial. It considered that the reference to section 154 had been erroneous. Section 154 provided that, upon the prosecutor’s request, proceedings could be provisionally stayed where the penalty to be expected in the case of a conviction was almost negligible in comparison with a penalty for another offence. However, the Prosecutor’s Office had not made such a request. Rather, the correct interpretation of the decision at issue was that the District Court had adjourned the proceedings sine die for the purpose of further investigations, which it had ordered the same day.

The car was sold on 20 March 1998 for 100 DEM, paid to the Justizkasse.

On 27 March 1998 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).

On 18 May 1998, in the context of another set of criminal proceedings pending before the Mainz Regional Court, the applicant was sentenced to two years and six months’ imprisonment. He was found guilty of, inter alia, several offences in connection with having illegally run a dump for dangerous waste, offences under the Firearms Act and twelve counts of driving without licence, committed between November 1994 and April 1996.

On 9 July 1998 the Mainz Public Prosecutor’s Office, referring to the applicant’s conviction of 18 May 1998, requested that the proceedings before the Bingen District Court be provisionally stayed pursuant to section 154 § 2 of the Code of Criminal Procedure.

On 15 July 1998 the proceedings were provisionally stayed.

In the meantime, on 21 April 1998, the Mainz-Bingen District Administrative Authority (Kreisverwaltung), having regard to the Dutch driving licence obtained in June 1995, issued the applicant a German driving licence.

According to section 21(1) lit. 1 of the Road Traffic Act (Strassen-verkehrsgesetz), driving a motor vehicle without the requisite licence is a criminal offence punishable with imprisonment not exceeding one year or with a fine. In such cases, the motor vehicle to which the offence relates may be confiscated if the perpetrator drove the vehicle although, inter alia, his driving licence had been withdrawn (section 21(3)(1)).

Driving a motor vehicle with a foreign driving licence is governed by section 4 of the Regulations on International Road Traffic (Verordnung über den internationalen Kraftfahrverkehr). According to its paragraph 1 lit. b, a person with a driving licence issued in a Member State of the European Communities is entitled to drive a motor vehicle in Germany if not permanently resident there. According to paragraph 2 lit. a are excepted from this general rule persons who had their permanent residence in Germany at the time when the foreign licence was issued. Persons have their permanent residence where they effectively live for a period of at least 185 days.

Section 74 of the Code of Criminal Procedure, as in force at the material time, provided for the confiscation of objects generated by or used or intended for use in the commission of preparation of a criminal offence. Such confiscation was only permissible if, inter alia, the perpetrator owned the object in question (section 74(1) lit. 1).

According to section 74b of the Code of Criminal Procedure, as in force at the material time, confiscation of an object under, inter alia, section 74(1) lit.1 should not be ordered if disproportionate to the importance of the offence in question.

Confiscation may also be ordered in cases where, for factual reasons, no specific person can be prosecuted or convicted or where the court discontinues the proceedings under provisions granting the prosecutor’s office or the court discretion for doing so (section 76 a of the Code of Criminal Procedure).

According to section 111 b, as in force at the material time, objects may be seized pursuant to section 111c, if there are compelling reasons to assume that the conditions for their forfeiture or confiscation are met. Section 111 c provides that the confiscation of movable assets is effected in taking them into public custody or indicating the seizure by seal or in some other way (section 111 c(1)); that objects so seized may be resold before a final judgment inter alia if the cost of storage is excessively expensive or difficult, the proceeds being substituted for the object in question (section 111 l (1)).

Section 154 of the Code of Criminal Procedure provides that the public prosecutor may decide not to prosecute where the penalty to be expected if a conviction is secured is almost negligible in comparison with a penalty imposed on the defendant - or which he must expect to be imposed - for another offence (section 154(1)). Once the proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor (section 154(2)).


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1939 and lives in Rab.

On 10 June 1996 a company J. (“the company”) instituted civil proceedings against the applicant in the Rijeka Commercial Court (Trgovački sud u Rijeci) seeking restitution of business premises in the applicant's possession and payment of rent.

On 7 August 1996 the applicant filed a counterclaim against the company seeking payment of a certain amount of money on the basis of his investments in the business premises.

The two cases were joined.

On 2 October 1996 the Rijeka Commercial Court decided in the company's favour. At the same time it dismissed the applicant's claim as inadmissible because the company had meanwhile gone bankrupt and the applicant failed to report his claim in bankruptcy.

The applicant appealed against that decision. On 11 February 1997 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) upheld the first instance judgment.

On 27 March 1997 the applicant filed a request for revision on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske).

On 11 December 2001 the Supreme Court dismissed the applicant's request on its merits. That decision was not served on the applicant until 6 May 2002.

Meanwhile, on 22 March 2002 a new section 59 (a), which subsequently became section 63 of the Constitutional Court Act entered into force, introducing a domestic remedy for length of proceedings in form of a constitutional complaint.

In line with the new legislation, on 11 April 2002 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the proceedings.

On 2 October 2002 the Constitutional Court dismissed the applicant's complaint because the Supreme Court had meanwhile decided his case.

Article 29 of the Constitution guarantees, inter alia, the right to a court which shall decide on an individual's rights and obligations within a reasonable time.

The relevant part of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:

“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation for a criminal act, has violated his or her human rights or fundamental freedoms guaranteed by the Constitution, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right)...

If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.

In matters in which an administrative action or, in civil and non-contentious proceedings, a revision on points of law are allowed, remedies are exhausted only after the decision on these legal remedies has been given.”

The relevant part of section 63 of the Constitutional Court Act reads as follows:

“1. The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...

If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...

In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01) in the relevant part reads as follows:

Section 382 provides that a request for revision on points of law may be filed against the second instance judgment within 30 days following its service on the party. It also enumerates cases in which such a request is allowed.

Sections 395 and 396 provide that the Supreme Court, in case it finds a request for revision on points of law well-founded, may quash the second instance judgment and remit the case or, in certain cases, it may also reverse the second instance judgment.