CASE OF VEREIN DER FREUNDE DER CHRISTENGEMEINSCHAFT AND OTHERS v. AUSTRIA

No violation of Article 6 - Right to a fair trial;No violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The first applicant is a religious community established in Austria on 11 July 1998, and the four other applicants are members of it. The second applicant is the chair of the Vienna branch of the first applicant, and the fifth applicant is its deputy chair and is a minister in Vienna. The third and fourth applicants are also members of the first applicant’s Vienna branch. The second to fourth applicants are Austrian nationals, and the fifth applicant is a German national. The second to fifth applicants live in Vienna.

On 14 March 1995 the applicants requested the Federal Minister for Education, Arts and Sports (Bundesminister für Unterricht, Kunst und Sport) to recognise the first applicant as a religious society (Religionsgesellschaft) under the 1874 Recognition Act (Anerkennungsgesetz).

On 4 October 1995 the Constitutional Court found that under the 1874 Recognition Act, a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that Act were met and that a decision on this matter should be subject to review by the Austrian courts (see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 21, 31 July 2008).

On 11 March 1996 the applicants filed an application with the Administrative Court (Verwaltungsgerichtshof) against the Minister’s failure to give a decision (Säumnisbeschwerde).

On 26 January 1998 the Administrative Court rejected the application. It noted that, upon the entry into force of the Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as “the 1998 Religious Communities Act”) on 10 January 1998, the applicants’ request for recognition under the 1874 Recognition Act had to be dealt with as a request under section 11(2) of the 1998 Religious Communities Act. Thus, the six-month time-limit for the Minister to give a decision had started again on 10 January 1998 and consequently there had been no failure to give a decision on the part of the Minister. The Administrative Court’s decision was served on the applicants’ lawyer on 11 March 1998.

On 20 July 1998 the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of the 1998 Religious Communities Act as from 11 July 1998. The first applicant, however, was not thereby granted legal personality as a religious society within the meaning of the 1874 Recognition Act.

On 9 September 1998 the applicants lodged a complaint against that decision with the Constitutional Court (Verfassungsgerichtshof), arguing that the refusal to confer legal personality to the first applicant under the 1874 Recognition Act was in breach of Article 9 of the Convention and Article 14 of the Basic Law.

On 17 December 1998 the Federal Minister submitted observations in reply, which arrived at the Constitutional Court on 23 December 1998.

Meanwhile, on 16 July 1998, the applicants had filed another request with the Federal Minister for the first applicant to be recognised as a religious society under the 1874 Recognition Act.

On 1 December 1998 the Federal Minister dismissed the applicants’ request of 16 July 1998. It found that, pursuant to section 11(1) of the 1998 Religious Communities Act, a religious community could only be recognised as a religious society under the 1874 Recognition Act if it had already existed as a registered religious community for a minimum of ten years.

On 12 January 1999 the applicants lodged a complaint against that decision with the Constitutional Court. They submitted that the transitory provisions in the 1998 Religious Communities Act, which introduced new conditions for recognition as a religious society under the 1874 Recognition Act were unconstitutional as being in breach of Article 9 of the Convention and Article 14 of the Basic Law.

On 16 April 1999 the Federal Minister submitted observations in reply to the Constitutional Court.

On 3 March 2001 the Constitutional Court dismissed the applicants’ complaints of 9 September 1998 and 12 January 1999. It found that the ten-year waiting period for registered religious communities as a precondition for a successful application for recognition as a religious society under the 1874 Recognition Act was in conformity with the Federal Constitution. In particular, it served the legitimate aim of ensuring that the competent authority could verify during this period of time whether the religious community was ready to integrate into the existing legal order, for example, whether it performed unlawful activities as a consequence of which legal personality had to be withdrawn (section 9(2) and section 5(1) of the 1998 Religious Communities Act). Examples of such unlawful activities were incitement to commit criminal offences, endangering the psychological development of minors, violating the psychological integrity of persons or using psychotherapeutic methods to disseminate its religious beliefs. That decision was served on the applicants’ lawyer on 4 April 2001.

Under Article 14 of the Basic Law, everybody is granted freedom of conscience and belief. The enjoyment of civil and political rights is independent from religious belief; however, the manifestation of religious belief may not derogate from civic obligations.

Article 15 provides that recognised churches and religious communities have the right to manifest their faith collectively in public, to organise and administer their internal affairs independently, and to remain in possession of acquired institutions, foundations and funds dedicated to cultural, educational and charitable purposes; however, they are, like all other societies, subordinate to the law.

Article 16 entitles the supporters of non-recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra bonos mores.

Article 63 § 1 states that Austria undertakes to ensure full and complete protection of life and liberty to all inhabitants of Austria without distinction on the basis of birth, nationality, race or religion.

Article 63 § 2 guarantees to all inhabitants of Austria the right to manifest publicly and privately their thought, religion and beliefs, unless these are incompatible with the protection of public order or morals.

Section 1 of the Act provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the Act, namely that their teaching, services and internal organisation, as well as the name they choose, do not contain anything unlawful or morally offensive and that the setting up and existence of at least one community of worship (Cultusgemeinde) satisfying the statutory criteria is ensured.

Section 2 provides that if the above conditions are met, recognition is granted by the Minister for Religious Affairs (Cultusminister). Recognition has the effect that a religious society obtains legal personality under public law (juristische Person öffentlichen Rechts) and enjoys all rights which are granted under the legal order to such societies. Sections 4 et seq. regulate the setting up of communities of worship, membership of them, delimitation of their territory, and their bodies and statutes. Sections 10 to 12 deal with the nomination of religious ministers (Seelsorger) of religious societies, the qualifications such persons must have and how their nomination must be communicated to the authorities. Section 15 provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the Act.

The legal personality of the Roman Catholic Church is, on the one hand, regarded as historically recognised, and, on the other hand, explicitly recognised in an international treaty, the Concordat between the Holy See and the Republic of Austria (Federal Law Gazette II, No. 2/1934 – Konkordat zwischen dem Heiligen Stuhle und der Republik Österreich, BGBl. II Nr. 2/1934).

The following are examples of special laws recognising religions societies:

(a) Act on the External Legal Status of the Israelite Religious Society, Official Gazette of the Austrian Empire, No. 57/1890 (Gesetz über die äußeren Rechtsverhältnisse der Israelitischen Religionsgesellschaft, RGBl. 57/1890);

(b) Act of 15 July 1912 on the recognition of followers of Islam [according to the Hanafi rite] as a religious society, Official Gazette of the Austrian Empire No. 159/1912 (Gesetz vom 15. Juli 1912, betreffend die Anerkennung der Anhänger des Islam [nach hanefitischen Ritus] als Religionsgesellschaft, RGBl. Nr. 159/1912);

(c) Federal Act on the External Legal Status of the Evangelical Church, Federal Law Gazette No. 182/1961 (Bundesgesetz vom 6. Juli 1961 über die äußeren Rechtsverhältnisse der Evangelischen Kirche, BGBl. Nr. 182/1961);

(d) Federal Act on the External Legal Status of the Greek Orthodox Church in Austria, Federal Law Gazette No. 229/1967 (Bundesgesetz über die äußeren Rechtsverhältnisse der Griechisch-Orientalischen Kirche in Österreich, BGBl. Nr. 182/1961);

(e) Federal Act on the External Legal Status of the Oriental Orthodox Churches in Austria, Federal Law Gazette No. 20/2003 (Bundesgesetz über äußere Rechtsverhältnisse der Orientalisch-Orthodoxen Kirchen in Österreich, BGBl. Nr. 20/2003).

Between 1877 and 1982 the competent ministers recognised a further six religious societies.

The Religious Communities Act entered into force on 10 January 1998. Pursuant to section 2(3) of the Act, the Federal Minister for Education and Culture has to rule in a formal written decision (Bescheid) on the acquisition of legal personality by the religious community. In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned (section 2(4)). The religious community has the right to call itself a “publicly registered religious community”.

Section 4 specifies the necessary contents of the statutes of the religious community. Among other things, they must specify the community’s name, which must be clearly distinguishable from the name of any existing religious community or society. They must further set out the main principles of the religious community’s faith, the aims and duties deriving from it, the rights and duties of the community’s adherents, including the conditions for terminating membership (it is further specified that no fee for leaving the religious community may be charged), how its bodies are appointed, who represents the religious community externally and how the community’s financial resources are raised. Lastly, the statutes must contain provisions on the liquidation of the religious community, ensuring that the assets acquired are not used for ends contrary to religious purposes.

Under section 5, the Federal Minister must refuse to grant legal personality to a religious community if, in view of its teachings or practice, this is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others; this is in particular the case if its activities involve incitement to commit criminal offences, obstruction of the psychological development of adolescents or undermining of people’s mental integrity, or if the statutes do not comply with section 4.

Under section 7, the religious community must inform the Federal Minister for Education and Cultural Affairs of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay. The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section 5.

Section 9 specifies the reasons for termination of a community’s legal personality. Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked. Reasons for revoking legal personality are set out in subsection (2): for example, if the reasons for granting legal personality no longer subsist or if for more than one year no bodies representing the religious community externally have been appointed.

The Act only regulates the granting of legal personality. Once legal personality has been granted to a religious community, it may pursue the activities referred to in its statutes. There are no specific laws in Austria regulating the acquisition of assets by religious societies or communities, the establishment of places of worship or assembly, or the publication of religious material. However, provisions which contain explicit references to religious societies are spread over various statutory instruments (see below).

Since the entry into force of the 1998 Religious Communities Act on 10 January 1998, non-recognised religious associations may be granted legal personality upon application. A previous application for recognition under the 1874 Recognition Act is to be dealt with as an application under the 1998 Religious Communities Act pursuant to section 11(2).

Section 11(1) of the 1998 Religious Communities Act establishes additional criteria for a successful application under the 1874 Recognition Act, such as the existence of the religious association for at least twenty years in Austria and for at least ten years as a registered religious community; a minimum number of two adherents per thousand members of the Austrian population (at the moment, this means about 16,000 persons); the use of income and other assets for religious purposes, including charity activities; a positive attitude towards society and the State; and no illegal interference as regards the community’s relationship with recognised or other religious societies.

In various Austrian laws specific reference is made to recognised religious societies. The following list, which is not exhaustive, sets out the main instances.

Under section 8 of the Federal School Supervision Act (Bundes-Schulaufsichtsgesetz), representatives of recognised religious societies may sit (without the right to vote) on regional education boards.

Under the Private Schools Act (Privatschulgesetz), recognised religious societies, like public territorial entities, are presumed to possess the necessary qualifications to operate private schools, whereas other persons have to prove that they are qualified.

Under section 24(3) of the Military Service Act, ordained priests, persons involved in spiritual welfare or in religious teaching after graduation from theological studies, members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and, under section 13 of the Civilian Service Act, are also exempt from alternative civilian service.

Under sections 192 and 195 of the Civil Code (ABGB), ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians, and under section 3(4) of the 1990 Act on Juries of Assizes and Lay Judges (Geschworenen- und Schöffengesetz) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court.

Section 18(1)(5) of the Income Tax Act provides that contributions to recognised religious societies are deductible from income tax up to an amount of 100 euros per year.

Section 2 of the Land Tax Act (Grundsteuergesetz) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real-estate tax.

Under section 8(3)(a) of the 1955 Inheritance and Gift Act (Erbschafts- und Schenkungsteuergesetz), which was still in force at the relevant time, donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of 2.5%.


Violation of Article 6 - Right to a fair trial

András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky

The applicants were born in 1919, 1941, 1947 and 1955, and live in Etes, Bátonyterenye, Salgótarján and Etes, respectively.

In a real estate dispute, on 23 June 1994 Mr S. and others brought an action for a servitude (szolgalom) against the applicants.

After three hearings, the preparation of an expert opinion and the identification of a plaintiff's successor, on 18 June 1998 the Salgótarján District Court found for the plaintiffs. On appeal, on 12 November 1998 the Nógrád County Regional Court quashed this decision.

In the resumed proceedings, on 4 March 1999 the plaintiffs changed their action and claimed ownership. Subsequently, the proceedings were suspended pending the outcome of an underlying land register procedure. The latter ended on 8 January 2001. On 23 April 2001 the plaintiffs' representative requested the resumption of the principal case.

The proceedings resumed on 6 June 2001. After several hearings and the opinion of an expert, on 2 December 2003 the District Court dismissed the action.

On appeal, on 11 May 2004 the Regional Court changed this decision and granted the plaintiffs the servitude they sought.

On 20 September 2004 the applicants requested the re-opening of the case. On 27 April 2005 the Regional Court admitted their request.

In the reopened proceedings, on 8 December 2005 the District Court established that the plaintiffs' adverse possession of the servitude in question had not taken place. It ordered the servitude to be deleted from the land register.

On appeal, on 25 April 2006 the Regional Court changed this decision and upheld its decision of 11 May 2004.


Violation of Art. 6-2;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Lack of jurisdiction (injunction to State)

Mr Patrick Allenet de Ribemont is a company secretary. He currently lives in Lamontjoie (Lot-et-Garonne).

On 24 December 1976 Mr Jean de Broglie, a Member of Parliament (département of Eure) and former minister, was murdered in front of the applicant’s home. He had just been visiting his financial adviser, Mr Pierre De Varga, who lived in the same building and with whom Mr Allenet de Ribemont was planning to become the joint owner of a Paris restaurant, "La Rôtisserie de la Reine Pédauque". The scheme was financed by means of a loan taken out by the victim. He had passed on the borrowed sum to the applicant, who was responsible for repaying the loan.

A judicial investigation was begun into the commission by a person or persons unknown of the offence of intentional homicide. On 27 and 28 December 1976 the crime squad at Paris police headquarters arrested a number of people, including the victim’s financial adviser. On the 29th it arrested Mr Allenet de Ribemont.

On 29 December 1976, at a press conference on the subject of the French police budget for the coming years, the Minister of the Interior, Mr Michel Poniatowski, the Director of the Paris Criminal Investigation Department, Mr Jean Ducret, and the Head of the Crime Squad, Superintendent Pierre Ottavioli, referred to the inquiry that was under way.

Two French television channels reported this press conference in their news programmes. The transcript of the relevant extracts reads as follows:

"TF1 NEWS

Mr Roger Giquel, newsreader: ... Be that as it may, here is how all the aspects of the de Broglie case were explained to the public at a press conference given by Mr Michel Poniatowski yesterday evening.

Mr Poniatowski: The haul is complete. All thepeople involved are now under arrest after thearrest of Mr De Varga-Hirsch. It is a very simplestory. A bank loan guaranteed by Mr de Broglie wasto be repaid by Mr Varga-Hirsch and Mr de Ribemont.

A journalist: Superintendent, who was the key figurein this case? De Varga?

Mr Ottavioli: I think it must have been Mr De Varga.

Mr Ducret: The instigator, Mr De Varga, and hisacolyte, Mr de Ribemont, were the instigators of themurder. The organiser was Detective Sergeant Simonéand the murderer was Mr Frèche.

Mr Giquel: As you can see, those statements include a number of assertions. That is why the police are now being criticised by Ministry of Justice officials. Although Superintendent Ottavioli and Mr Ducret were careful to (end of recording).

ANTENNE 2 NEWS

Mr Daniel Bilalian, newsreader: ... This evening, therefore, the case has been cleared up. The motives and the murderer’s name are known.

Mr Ducret: The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche.

Mr Ottavioli: That is correct. I can ...[unintelligible] the facts for you by saying thatthe case arose from a financial agreement betweenthe victim, Mr de Broglie, andMr Allenet de Ribemont and Mr Varga.

Mr Poniatowski: It is a very simple story. A bankloan guaranteed by Mr de Broglie was to be repaid byMr Varga-Hirsch and Mr de Ribemont.

Mr Jean-François Luciani, journalist: The loan was guaranteed by a life insurance policy for four hundred million old francs taken out by Jean de Broglie. In the event of his death, the sum insured was to be paid to Pierre De Varga-Hirsch and Allenet de Ribemont. The turning-point came last night when Guy Simoné, a police officer, was the first to crack. He admitted that he had organised the murder and had lent a gun to have the MP killed. He also hired the contract killer, Gérard Frèche, who was promised three million old francs and who in turn found two people to accompany him. The reasons for their downfall were, first, that Simoné’s name appeared in Jean de Broglie’s diary and, second, that they killed him in front of no. 2 rue des Dardanelles. That was not planned. The intention had apparently been to take him somewhere else, but Jean de Broglie perhaps refused to follow his killer. At all events, that was their first mistake. Varga and Ribemont apparently then refused to pay them. That led to the secret meetings in bars, the shadowing by the police and informers - we know the rest of the story - and their arrest. The second mistake was made by Simoné. Before contacting Frèche he approached another contract killer, who turned down the job but apparently talked to other people about it. To catch the killers, the police realistically based their investigation on two simple ideas. Firstly, the murder was committed in the rue des Dardanelles as Jean de Broglie was leaving De Varga’s home. There was necessarily a link between the killer and De Varga. Secondly, De Varga’s past did not count in his favour and the police regarded him as a rather dubious legal adviser. Those two simple ideas and over sixty investigators led to the discovery of the murderer.

Mr Bilalian: The epilogue to the case coincided with a Cabinet meeting at which the question of public safety was discussed ..."

On 14 January 1977 Mr Allenet de Ribemont was charged with aiding and abetting intentional homicide and taken into custody. He was released on 1 March 1977 and a discharge order was issued on 21 March 1980.

On 23 March 1977 Mr Allenet de Ribemont submitted a claim to the Prime Minister based on Article 6 para. 2 (art. 6-2) of the Convention, inter alia. He sought compensation of ten million French francs (FRF) for the non-pecuniary and pecuniary damage he maintained he had sustained on account of the above-mentioned statements by the Minister of the Interior and senior police officials.

On 20 September 1977 the applicant applied to the Paris Administrative Court for review of the Prime Minister’s implicit refusal of his claim and renewed his claim for compensation. He filed pleadings on 12 October 1977.

On 21 February 1978 the Minister of Justice did likewise. After notice had been served on them by the Administrative Court on 14 March 1978, the Minister of the Interior and the Prime Minister filed pleadings on 21 and 27 April 1978 respectively. Mr Allenet de Ribemont filed more pleadings on 29 March and 24 May 1978.

Further pleadings still were filed on 29 March 1979 by the Minister of Culture, to whom the case file had been sent on 23 January 1979; on 6 June 1979 and 12 August 1980 by the Minister of the Interior; and on 14 May 1980 by the applicant.

After a hearing on 29 September 1980, the Paris Administrative Court delivered a judgment on 13 October 1980 in which the following reasons were given:

"Mr Allenet, known as Allenet de Ribemont, has applied for an order that the State should pay compensation for the damage that the Minister of the Interior of the time allegedly caused him by naming him in statements made on 29 December 1976 during a press conference on the murder of Mr Jean de Broglie.

Although the State may be liable in damages for the administrative acts of a member of the Government, statements that he makes in the course of his governmental duties are not susceptible to review by the administrative courts. It follows that the application is inadmissible.

On 15 December 1980 the Conseil d’Etat registered a summary notice of appeal by Mr Allenet de Ribemont. After a warning on 19 May 1981, he filed his full pleadings on 1 July 1981. On 7 July these pleadings were sent to the Minister of the Interior, who submitted his observations on 13 April 1982. The applicant replied on 7 July 1982.

After a hearing on 11 May 1983 the Conseil d’Etat dismissed the appeal on 27 May 1983, on the following grounds:

"Mr Allenet, known as de Ribemont, claimed compensation for the damage he allegedly sustained on account of statements made to the press on 29 December 1976 by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr Jean de Broglie. Statements made by the Minister of the Interior at the time of a police operation cannot be dissociated from that operation. Accordingly, it is not for the administrative courts to rule on any prejudicial consequences of such statements.

It follows from the foregoing that, although the Paris Administrative Court was wrong to rule in the impugned judgment that the applicant’s claim related to an act performed ‘in the course of governmental duties’ and thus not susceptible to review by the administrative courts, Mr Allenet’s appeal against the dismissal of his claim in that judgment is unfounded."

Mr Allenet de Ribemont brought proceedings in the Paris tribunal de grande instance against the Prime Minister on 29 February 1984 and the Government Law Officer (agent judiciaire du Trésor) on 5 March 1984.

On 25 September 1984 the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only, in his view, be brought in the administrative courts.

After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time-barred, the Government Law Officer replied on 21 September 1984 and on 28 May 1985.

The applicant filed his submissions on 14 November 1984 and 5 April 1985. He requested the court to order two French television companies to hand over video recordings of the press conference of 29 December 1976 and produced press cuttings relating to it.

The court gave judgment on 8 January 1986 as follows:

"Admissibility of the action brought against the Prime Minister

Section 38 of the Act of 3 April 1955 provides that any action brought in the ordinary courts for a declaration that the State is owed or owes payment for reasons unconnected with taxation or with State property must, subject to exceptions provided for by law, be instituted by or against the Government Law Officer, failing which the proceedings shall be void.

It follows that Patrick Allenet de Ribemont’s claim for reparation from the State for damage sustained on account of the statements attributed to the Minister of the Interior should have been lodged only against the Government Law Officer, who is the State’s sole representative before the courts, and not against the Prime Minister, who accordingly must not remain a party to the proceedings.

Jurisdiction

The Paris tribunal de grande instance must be held to have jurisdiction in so far as the statements attributed to the Minister of the Interior can be linked with a police operation and are not dissociable from that operation.

The press conference of 29 December 1976, held by the Minister of the Interior, the Director of the Criminal Investigation Department and the Head of the Crime Squad to inform the press of the results of the police inquiries following the murder of Jean de Broglie, may be considered indissociable from the police operation that was then under way.

The statements complained of

Anyone who complains of any statements, whether defamatory or merely negligent within the meaning of Article 1382 of the Civil Code, must prove that the impugned statements were actually made. It is not for the court to make good any omissions by the parties or to supplement evidence they have adduced, so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance with the adversarial principle.

In this respect, since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence, judgment must be given on the basis of the evidence in the case file.

Patrick Allenet de Ribemont has produced press cuttings describing the press conference of 29 December 1976, some of which are dated the day after the conference or the days following ... The newspapers did not, however, report the statements allegedly made by the Minister of the Interior, as set out in the writ.

However, in publications several years after the event, journalists attributed to the Minister of the Interior remarks about Patrick Allenet de Ribemont’s alleged role, and in Le Point of 6 August 1979, for instance, it is possible to read Michel Poniatowski’s statements, reported as follows:

‘Mr De Varga and Mr de Ribemont were the instigatorsof the murder. The organiser was DetectiveSergeant Simoné and the murderer was Mr Frèche’.

But, however carefully the journalists reported the statements in issue, the press articles relied on by Patrick Allenet de Ribemont cannot be accepted as the sole evidence in view of the objection raised by the defendant on this point.

It may further be observed, as a subsidiary point, that the publications at the time of the press conference in issue merely reported the remarks about Patrick Allenet de Ribemont’s involvement in Jean de Broglie’s murder allegedly made by Superintendent Ottavioli after the Minister of the Interior had spoken.

Accordingly, since the plaintiff has brought proceedings against the State solely on account of the remarks attributed to the Minister of the Interior, the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in Article 11 of the Code of Criminal Procedure, is time-barred.

Mr Allenet de Ribemont appealed to the Paris Court of Appeal on 19 February 1986, and the Government Law Officer cross-appealed on 19 March.

The applicant again requested that the videotapes should be handed over for showing.

On 7 May 1986 the judge in charge of preparing the case for hearing served notice on Mr Allenet de Ribemont to file his submissions, but without success. On 14 October 1986 he requested him to produce his documents by 30 October and to file any submissions by 14 November. On 19 November he sent a final notice before terminating the preparation of the case for trial. The Government Law Officer filed submissions on 28 November and the applicant on 9 December. On 21 December the parties were informed that the order certifying that the case was ready for hearing would be issued on 28 April 1987.

At the hearing of 17 June 1987 Mr Allenet de Ribemont requested an adjournment and, having duly been given leave by the court, filed further submissions on 8 July.

The Court of Appeal held another hearing on 16 September 1987 and gave judgment on 21 October 1987. It found against the applicant for the following reasons:

"The preliminary objection of inadmissibility

It is apparent from the arguments set out below addressing the analysis of the damage that this is an action to establish the State’s liability on the ground that the judicial system has malfunctioned, rather than a civil action for defamation and/or breach of the secrecy of judicial investigations.

The merits

According to the appellant, Mr Poniatowski had made the following statement: ‘Mr De Varga and Mr de Ribemont were the instigators of the murder. The organiser was Detective Sergeant Simoné and the murderer was Mr Frèche’. It was allegedly apparent from the series of statements made by Mr Poniatowski, or by Mr Ducret and Mr Ottavioli under his authority, that all those guilty had been arrested, the haul was complete and the case was solved. These three had allegedly maintained that the motive for the crime was a bank loan obtained by Mr de Broglie to enable Mr de Ribemont to acquire a controlling interest in the Rôtisserie de la Reine Pédauque company.

However, as the court below rightly held, the press cuttings produced by Mr Allenet de Ribemont do not suffice to prove his allegations.

Even supposing, however, that they had been proved, it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements.

It has not been shown that the statements complained of, which were made during the judicial investigation, in themselves caused the alleged damage. In so far as this damage appears to be connected with the existence of criminal proceedings, it still cannot be held that the statements in issue affected the course of the case.

In the absence of any causal link between the impugned statements - should their exact terms be established - and the damage claimed, it is unnecessary to consider the subsidiary application to have the recording produced.

Mr Allenet de Ribemont lodged an appeal on points of law, which the Court of Cassation (Second Civil Division) heard on 4 November 1988 and dismissed on 30 November 1988 on the following grounds:

"The judgment [of the Paris Court of Appeal] has been challenged because it dismissed Mr Patrick Tancrède Allenet de Ribemont’s appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations. It is argued, however, firstly, that the Court of Appeal distorted the meaning of those press cuttings, which proved conclusively that statements had been made by the Minister of the Interior and indicated their exact terms; secondly, that it infringed Article 1382 of the Civil Code by refusing to take into consideration the non-pecuniary damage sustained by Mr Patrick Tancrède Allenet de Ribemont; and, lastly, that it breached Article 13 (art. 13) of the European Convention on Human Rights by denying fair reparation to a man whose reputation had been injured in statements heard by millions of television viewers.

However, the Court of Appeal held in that judgment, adopting the reasoning of the court below, that the cuttings from the newspapers published on the day after the conference and on the following days did not report the statements allegedly made by the Minister of the Interior, as set out in the writ, but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken, and that the remarks attributed to Mr Poniatowski, relating to Mr Patrick Tancrède Allenet de Ribemont’s alleged role as instigator, had been reported in a publication that appeared only several years after the event.

It was in the exercise of its unfettered discretion to assess the evidence before it that the Court of Appeal ruled, without distorting the meaning of the press cuttings, that they did not suffice to prove Mr Patrick Tancrède Allenet de Ribemont’s allegations.

In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law, which were subsidiary considerations - the Court of Appeal justified its decision in law.


Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in 1971 and lives in Plovdiv.

On 27 December 1997 the applicant was arrested, brought before an investigator and detained on rape charges. A prosecutor confirmed the detention on the same day. Later in the course of the investigation he was also charged with abduction.

Between 27 December 1997 and 5 January 1998 the investigator conducted searches in the applicant's apartment, ordered an expert analysis of various traces and objects and questioned the applicant.

On 5 January 1998 the applicant appealed to the Plovdiv District Court against the detention order.

In accordance with the established practice, the appeal was submitted through the investigation authorities, which transmitted it to the District Court on 15 January 1998. The matter was listed for a hearing on 19 January 1998.

On 19 January 1998 the applicant's lawyer requested access to the case file, which was refused by the judge on the same day.

At the hearing on 19 January 1998 the applicant's lawyer requested the withdrawal of the president of the bench as she had recently sought his prosecution for alleged defamatory statements. The lawyer was concerned that the judge's hostility towards him might prejudice his client's interests. The request for the judge's withdrawal was granted and the case adjourned.

On 21 January 1998 the case was assigned to another bench and listed for hearing on 23 January 1998.

On 21 January 1998 the applicant's lawyer reiterated his request for access to the case file. The request was refused on the same day.

The applicant's appeal against his detention was eventually heard on 23 January 1998.

At the opening of the hearing the judge refused to allow the participation of the applicant's lawyer, considering that his written authority form was invalid. The judge stated that the authority had only been signed by the applicant's wife and not by the applicant, that it bore no indication of the lawyer's fees and that it had not been made on a sheet from the usual lawyers' receipt-books.

Thereupon, the applicant, who was also present, handed to the judge another written authorisation, signed by him. The court refused to accept it as the case file number had not been marked on it. As a result, the applicant had to present his case without legal representation.

Having heard the applicant, the court dismissed his appeal against detention, stating that he was charged with a serious criminal offence. The court went on to conclude that the fact that the applicant had refused to sign the minutes of his first interrogations and to comment on the charges right away had demonstrated that he lacked critical judgment of his behaviour, which in turn revealed a danger that he would abscond and re-offend.

On 13 April 1998 the applicant filed a new appeal against detention, referring to passages in a psychiatrists' report concerning his mental state (see paragraph 41 below). On 13 April 1998 the applicant also filed a request for the replacement of the president of the bench, arguing that his partiality had been demonstrated by his behaviour at the hearing on 23 January 1998. The lawyer did not enclose a power of attorney and did not indicate his address and telephone number.

On 27 April 1998 the appeal was forwarded by the prosecution authorities to the District Court, where it was registered on 6 May 1998. A hearing was listed for 11 May 1998. The applicant, but not his lawyer, was summoned.

At the hearing on 11 May 1998 the applicant requested an adjournment as his lawyer was not present. The District Court, sitting in a new composition, noted that the applicant's lawyer had not been summoned as he had not indicated his address. It nevertheless decided to adjourn the case in view of the applicant's request. A second hearing was listed for 21 May 1998.

On 12 May 1998 the applicant's lawyer requested to be given access to the case file.

On 21 May 1998 the Plovdiv District Court heard the prosecutor, the applicant and two lawyers acting for him. The District Court dismissed the lawyers' request for an adjournment to allow consultation of the case file, referring to “the practice” and endorsing the prosecutor's view that it was for the investigator to decide what material should be provided to lawyers.

As to the merits, the applicant argued that his health was unstable, that the conditions of detention were unacceptable and that he had to help his parents, one of whom was ill, in their seasonal agricultural work.

The District Court dismissed the applicant's appeal against detention noting the psychiatrists' conclusion that the applicant was mentally healthy and that other relatives had been taking care of the applicant's sick mother. The court also had regard to the fact that the charges concerned a serious offence, allegedly committed during the operational period of the applicant's suspended sentence for a previous conviction, and concluded that there was a danger that he might obstruct the course of justice and reoffend. As to the conditions of the applicant's detention, the court stated that a transfer to another detention facility could be recommended.

On 8 June 1998, before completing the investigation, the investigator gave the applicant and his lawyer access to all the material in the case. On 11 June 1998 the investigator drew up a report proposing that the applicant be indicted.

The indictment on charges of rape and abduction was prepared by a prosecutor and submitted to the District Court on 28 July 1998.

At the first hearing, held on 1 October 1998, the District Court examined the applicant's renewed appeal against his detention and dismissed it, noting that he was charged with a serious wilful offence which required his remand in custody and that, in any event, the charges concerned an offence allegedly committed during the operational period of the applicant's previous suspended sentence for another offence. This latter fact left no doubt that there was a danger that the applicant would commit further offences. Finally, the court also endorsed the prosecutor's position that there was a reasonable suspicion against the applicant and that the fact that the charges concerned a violent offence should be taken into account.

At the hearing held on 23 November 1998 the applicant submitted another application for release on the grounds that his detention was unreasonably long, that the court failed to conduct a prompt trial and that there was no convincing evidence against him. Ms D., the victim, stated that she feared that if released the applicant may hurt her. She had learned that the applicant's parents had been asking others about her new address. The court ruled against the applicant's release. It noted that under the relevant law remand in custody was required in all cases where the charges concerned serious offences. It further stated that there was a danger that the applicant would obstruct the course of justice in view of the fact that he had been charged with more than one offence and that he had a criminal record. Therefore, the applicant's statements about his good character and family circumstances did not warrant release.

On 18 December 1998 the Plovdiv District Court found the applicant guilty of rape, sentenced him to two years' imprisonment and acquitted him of the charges of abduction. On 30 April 1999 the Plovdiv Regional Court upheld the conviction and sentence.

The applicant produced copies of correspondence in January and March 1998 from the presidents of the Plovdiv District Court and of the Plovdiv Regional Court to the local Bar Association, apparently in reaction to complaints made by lawyers about an existing practice of barring access to case files in cases concerning appeals against pre-trial detention.

The president of the District Court acknowledged that the complaints were well-founded and stated, inter alia, that, “[r]egrettably, District Court judges rely on the hitherto prevailing practice and do not share my opinion ...”

The president of the Regional Court informed the Bar Association that the matter had been discussed at length and that the judges had agreed that, contrary to the opinion of the Chief Public Prosecutor's Office and the Regional Prosecutor's Office in Plovdiv, there were no legal grounds for refusing access to case files in appeals against detention proceedings.

Between 25 December 1997 and 16 June 1998 the applicant was kept in a lock-up at the Regional Investigation Office in Plovdiv.

The cell, where the applicant was detained together with three other people, measured 3 x 3.5m (a surface of 10.5 m²). Since there were no beds, the detainees slept on mattresses on the floor. According to the applicant, the blankets were not washed regularly. The Government disputed that allegation. The cell did not have access to daylight and was equipped with a 100W electric lamp. There was a ventilation system. According to the applicant the ventilation system was only installed “in 1998”. He also submitted that in winter the temperature in his cell did not rise above 1012 Co. According to the Government, the cell was centrally heated and the temperature therein was normal.

The applicant and the other detainees were allowed to leave the cell twice a day, at 6.30 a.m. and 6.30 p.m., for toilet purposes and washing. To relieve themselves outside the time earmarked for toilet visits, the detainees had to use a bucket. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities. They were provided with detergents. Once per week the buckets were disinfected chemically. No possibility for spending time in the open or physical exercise was provided. The detainees could also leave the cell when they received visits or were brought for questioning or taken to court. They showered once per week in winter and twice per week in summer. Apparently hot water was available.

Food was provided three times per day in the cell. It was served in pots or mugs which the detainees had to wash after every meal and which were collected and disinfected periodically. For security reasons, no forks or knives were provided. According to the applicant, the food was of bad quality. The Government stated that meat was available at least once per day.

In April 1998 psychiatry experts who had examined the applicant with a view to verifying his legal capacity to stand trial submitted their report. They noted that a year or two earlier the applicant had undergone periods of depression and violent or inadequate behaviour. He had been admitted for a day to a psychiatric hospital on suspicion of suffering from paranoid schizophrenia. However, the experts concluded that the applicant's mental condition was sound.

On 16 June 1998 the applicant was transferred to the Plovdiv prison where the conditions were better.

The CPT visited Bulgaria in 1995 and again in 1999 and 2003. The Plovdiv Investigation Service detention facility was visited in 1999 and 2003. All reports included general observations about problems in all Investigation Service facilities.

In this report the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a toilet and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to 5-10 minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.

The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery - not even a spoon was provided.

The CPT also noted that family visits were only possible with permission and that as a result detainees' contact with the outside world was very limited. There was no radio or television.

The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation's assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country's difficult financial circumstances.

In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for 30 minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency.

The CPT noted that new rules, providing for better conditions, had been enacted but had not yet resulted in significant improvements.

In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention in Investigation Service premises had remained generally the same as those observed during the CPT's 1995 visit, including as regards hygiene, overcrowding and outof-cell activities. In some places the situation had even deteriorated.

In the Plovdiv Investigation Service detention facility, as well as in two other places, detainees “still had to eat with their fingers, not having been provided with appropriate cutlery”.

In the same detention facility medical supervision was provided by a medical doctor on the premises.

The CPT noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded.

In Plovdiv, only a third of the cells had benefited from a refurbishment which involved making windows in the cell doors, improving the artificial lighting and installing wash basins in the cells. However, the majority of the cells remained in the same inadequate condition as in 1999. The sanitary facilities were not in a satisfactory state of repair.

Despite the CPT's recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”.

Article 69 § 2 of the Code of Criminal Procedure provides that a power of attorney shall be prepared in writing and signed by the defendant and his legal counsel.

The relevant provisions of the Code of Criminal Procedure concerning the powers and functions of investigators and prosecutors are summarised in the Court's judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, §§ 25-29, ECHR 1999-II).


Dr Georges Debled, a urologist of Belgian nationality, lives and practises in Paris.

On 10 September 1982, 5 November 1982, 17 March 1983 and 13 August 1984, at a time when the applicant was still practising in Belgium, patients of his complained to the Brabant Ordre des médecins (medical association) that the fees he charged were excessive. After considering these complaints, the Provincial Council summoned the applicant to appear before it on 5 March 1985. The council’s registered letter of 11 February 1985 also informed him that he would be heard on the following counts:

"1o that on numerous occasions in recent years, despite the council’s warnings, recommendations and cautions, he charged his patients excessive fees, and persisted in doing so, in breach of the principles of moderation and discretion incumbent on medical practitioners ...

2o that, after various complaints from patients regarding excessive fees, he refused to follow the recommendation of the council’s fees disputes committee that the cases be submitted to it;

3o that, through his attitude, he showed total contempt for the council’s warnings, demonstrating by his statements that he was guided in his practice of medicine by concerns of a wholly pecuniary nature;

4o that without valid reason he failed to take part in the [council’s] elections of March 1982."

At the request of the applicant’s lawyer, the hearing was postponed to 2 April 1985.

In pleadings filed on the day of the hearing, Dr Debled, referring inter alia to certain provisions of the Judicial Code and of the Royal Decree of 29 May 1970, challenged, by way of main submission, "the council as a whole" and, in the alternative, five doctors sitting on the council, on the ground that, even before the hearing, they had "individually expressed their opinion concerning Dr Debled’s conduct and had described it in negative terms". He also reserved the right to contest both the admissibility of the case brought against him and its merits. In additional submissions made at the hearing he requested that "the proceedings be stayed ... until the appeal [he] intend[ed] to lodge against the council’s decision had been heard". Finally, he refused to present argument on the merits, despite having been invited to do so by the council, and withdrew from the hearing.

The council gave its decision on 2 April 1985. It first held that the legislative provisions relied on by the applicant had no bearing on the facts of the case and therefore could not constitute the basis for his application challenging its members. It then noted that none of the members of the Ordre whom he had accused of having a "negative attitude towards him" sat on the council to which it fell to determine the disciplinary proceedings. Lastly, it pointed out that four of the council members whom the applicant had challenged had not heard the case in question and that the fifth had only been present in an advisory capacity and had not taken part in the deliberations. It accordingly dismissed the application challenging the council en bloc and ruled that the application concerning the five medical practitioners was inadmissible and ill-founded.

The council gave its decision on the request for a stay of the proceedings in the following terms:

"... quite apart from the inappropriate references to legislation which has no bearing on the case..., [the additional] submissions state in a curiously implausible and contradictory manner that ‘by refusing to give a decision on the challenges, the council dismissed them’;

... at no time did the council refuse to give a decision on the challenges; ... it merely informed Dr Debled and his lawyers that it would rule on the challenges and the merits in a single decision; ... during the hearing it did not take any decision whatsoever on the challenges and ... Dr Debled was consequently acting precipitately and in a way which prejudged a decision that had not been taken when he stated that he intended to appeal against that decision and requested that the proceedings be stayed pending the outcome of that hypothetical appeal.

... there is no reason to grant that request."

With regard to the merits of the case, the council, giving its decision in absentia, considered that most of the charges against Dr Debled had been substantiated and imposed "on [him] the penalty of one year’s suspension of his right to practise medicine".

On 11 April 1985 Dr Debled lodged an appeal against the decision of 2 April 1985 with the French-language Appeals Board of the Ordre des médecins.

On 2 October 1986 he was summoned to a hearing to be held on 20 October. On that date he requested a three-month adjournment to enable his new lawyers to prepare his defence. After deliberating, the Appeals Board apparently allowed him an adjournment until 4 November 1986.

On 21 October 1986 he laid a complaint for falsification and use of falsified documents against the members of the bureau of the council of the Ordre des médecins (Dr Remion, Dr Govaerts, Dr Roose, Dr Farber and Dr Brihaye). He disputed certain entries in the minutes of meetings held on 14 June 1983 and 9 October 1984 to consider the complaints against him. He subsequently also lodged the following complaints:

- on 31 October 1986 against Mrs Beaupain and Mrs Couturier, the judges (magistrats) who had sat on the bureau and council of the Ordre during those meetings;

- on 14 November 1986 against Dr Farber, the vice-president of the Ordre des médecins, concerning statements made to the press on 5 November 1986;

- on 25 November 1986 against the same person for making misleading statements and for breach of confidentiality.

No information has been provided as to what action was taken in response to those complaints.

In the meantime, on 3 November 1986 Dr Debled applied to the Court of Cassation for a transfer of jurisdiction, claiming that there were reasonable grounds for suspecting the Appeals Board of bias (suspicion légitime). He called into question the impartiality of two of the five full members, Dr Raickman and Dr Vossen, and three of the five substitute members, Dr Beernaerts, Dr Daxhelet and Dr Gelin, who were or had been officials of the medical unions.

He first alleged "in general terms" that the medical unions had gradually taken control of the various institutions of the Ordre des médecins with the result that the policy pursued by the association in fact simply reflected the unions’ policies, which were designed purely to safeguard the interests of union members. Consequently, those who opposed this policy through the way in which they practised and the opinions they expressed had good reason to fear that, when hearing a case that concerned them, the union members would not show the impartiality to which everyone was entitled. He maintained, in addition, that the members of the Appeals Board bore a grudge against him personally because of the views he had expressed. In 1981 he had denounced the collusion between the Ordre des médecins and the unions and he had joined the "call of the 300" medical practitioners angered by the Ordre’s backing of a health care strike organised by the unions. Lastly, he pointed out that the capacity of the disciplinary bodies of the Ordre des médecins to conduct proceedings in an objective and impartial manner had been questioned on many occasions by the press, among others, especially in so far as it was possible to be a member of those bodies and a member of the unions’ organs at the same time.

In a judgment of 21 May 1987 the Court of Cassation ruled inadmissible the application for a transfer of jurisdiction. It held that Article 12 para. 1 of the Royal Decree of 10 November 1967 on the Ordre des médecins (see paragraph 22 below) had set up only one French-language Appeals Board and that therefore, as a matter of law, it would be impossible to transfer jurisdiction to another French-speaking Appeals Board. Removing the case from the board without remitting it to another tribunal would, moreover, be tantamount to a denial of justice.

On 29 September 1987 the Appeals Board gave its decision in absentia since Dr Debled had not made any further appearances before it after the hearing of 20 October 1986 (see paragraph 12 above). It annulled the decision of 2 April 1985, on the ground that six doctors who had conducted the preliminary investigation had taken part in the deliberations, and suspended Dr Debled’s right to practise medicine for three months. At the same time it dismissed the applications challenging the council members and requesting a deferral of the proceedings, finding that "in his appeal Dr Debled [had] failed to establish that [his] applications were well-founded as to either the law or the facts".

On 20 October 1987 Dr Debled asked the Appeals Board to set aside its decision of 29 September 1987 pursuant to Article 34 of the Royal Decree of 6 February 1970 (see paragraph 25 below). He alleged, inter alia, that Royal Decree no. 79 on the Ordre des médecins (see paragraph 22 below) and Royal Decree no. 78 on the medical profession, the practice of related professions and the medical committees were manifestly unlawful because certain essential procedural requirements had not been complied with prior to their adoption. In his submissions he requested the Appeals Board to rule as follows:

"Primarily

Declare that the Appeals Board does not legally exist or, at least, that it is unlawfully constituted, and that the same applies to the Brabant Provincial Council of the Ordre des médecins, and accordingly hold that the measure ordered by the Provincial Council against the applicant was unlawful; discontinue the proceedings brought against the applicant or, at least, stay the proceedings until another joint, French-language Appeals Board has been formed in accordance with the Act of 25 July 1938 and more particularly section 11 of that Act.

In the alternative

Stay its proceedings on account of the various complaints laid by the applicant, together with applications to join the proceedings as a civil party filed by him, until the relevant criminal proceedings are concluded, in accordance with the principle that criminal proceedings take precedence over civil proceedings.

In the further alternative

Find that the Appeals Board, which annulled the decision appealed against, could under no circumstances rely on any of the documents produced before the Provincial Council because those documents were inadmissible.

In the even further alternative

... dismiss all the charges and complaints brought against the applicant."

On 12 November 1987 Dr Debled was summoned to appear before the Appeals Board on 19 January 1988. At the hearing he immediately challenged Dr Cattiez, Dr Andri and Dr Raickman. He alleged that they were influential members of the medical unions, which he had consistently opposed - in particular by denouncing the collusion between the Ordre and the unions and by taking part in the "call of the 300". He likewise challenged Judge Thiry on the ground that his son was one of the medical unions’ lawyers. After hearing Dr Debled, the Appeals Board withdrew to deliberate. It then decided to adjourn the proceedings until 2 February 1988 in order to enable it to "reconstitute a full board" in the meantime.

At the hearing on 2 February 1988 Dr Debled filed a further application challenging Mr Thiry. In addition, he challenged Dr Fagnart and Dr Lange, in the latter’s case on the ground that his son was a member of the medical union of the provinces of Liège and Luxembourg. He declared, furthermore, that he intended to persist with the applications he had filed at the hearing on 19 January. After hearing Dr Debled, the Appeals Board decided to join the interlocutory proceedings to the merits, whereupon the applicant asked that the record should state that he reserved his position concerning both the failure to take an immediate decision on the challenges and their joinder to the merits.

On 15 March 1988, at a public hearing, the Appeals Board dismissed the objection based on the alleged unlawfulness of Royal Decrees nos. 78 and 79 and ruled that the application of 20 October 1987 requesting it to set aside its earlier decision was ill-founded (see paragraph 16 above). It noted that the Provincial Council’s decision of 2 April 1985 (see paragraph 10 above) had been annulled and confirmed the decision of 29 September 1987 (see paragraph 15 above) suspending Dr Debled’s right to practise medicine for three months. On the subject of the challenges, it ruled as follows:

"... the president informed each of the challenged members of the existence of a challenge and submitted their individual cases to the board, which in each case took a majority vote on the challenge without the member concerned being present, but after hearing that member;

... with regard to the challenges against Dr Fagnart and Dr Lange, the board notes that the applications are neither dated nor signed; they are thus flawed and hence inadmissible;

... with regard to the challenges against Dr Cattiez, Dr Andri and Dr Raickman and the challenges concerning Judge Thiry, the board notes that they are all based on Article 828, 11o, of the Judicial Code and that the documents produced by Dr Debled do not reveal the slightest trace of any hostility, even less of fundamental hostility; those challenges are accordingly completely unfounded."

On 18 April 1988 Dr Debled appealed on points of law against the decision of 15 March 1988. Two of his five grounds were based on Article 6 para. 1 (art. 6-1) of the Convention and the general principle of law that a judge must be impartial.

In his first submission he also alleged a breach of Article 43 of the Royal Decree of 6 February 1970 governing the organisation and functioning of the councils of the Ordre des médecins and of Articles 2 and 837 of the Judicial Code (see paragraphs 25 and 26 below). Firstly, there was no legal justification for the decision to join the challenges to the merits and, secondly, those members whose impartiality had been called into question could not take part in a decision to postpone a ruling on the applications concerning them without engendering reasonable doubts as to the impartiality of the tribunal required to determine the merits of the challenges and of the charges.

In his second submission Dr Debled complained of the fact that the challenges against Dr Cattiez, Dr Andri, Dr Raickman and Judge Thiry had been considered ill-founded "admittedly without the challenged member being present, but each time in the presence of the other challenged members, whereas the grounds for the challenges [were] identical".

In a judgment of 13 April 1989 the Court of Cassation dismissed the appeal. It observed, in particular, that:

" ... since the members of the Board who had been challenged did not take part in the decision on the individual challenges concerning them, the mere fact that they participated in the decisions on the other challenges, made on the basis of the grounds reproduced in the appeal submission, does not constitute a breach of either the legislation or the general principle of law referred to by the appellant."

The Ordre des médecins is currently governed by Royal Decree no. 79 of 10 November 1967, issued pursuant to an Act of 31 March 1967 "investing the King with certain powers with a view to ensuring economic revival, acceleration of regional reconversion and a stable, balanced budget".

That decree provides in particular:

"1. The French-language Appeals Board and the Dutch-language Appeals Board shall each be composed of:

1o five full members and five substitute members, who are medical practitioners, elected for six years and entitled to stand for re-election. Each Provincial Council shall elect one of the five members of the Appeals Board corresponding to the language it uses. The member shall be elected from among the practitioners of Belgian nationality who have been on the council’s register for at least one year when the election is held ...

2o five full members and five substitute members, who are conseillers (judges) at the Court of Appeal, appointed by the King for six years;

The King shall designate the president and rapporteurs of each board from among the judicial members.

The Appeals Boards shall take cognisance of all aspects of a case, even where only the medical practitioner has appealed.

The Appeals Board must have a two-thirds majority to impose a penalty where the Provincial Council did not so decide or to impose a more severe penalty than that decided by the council."

In accordance with Royal Decree no. 79, the Royal Decree of 6 February 1970, as amended on 9 August 1971 and 3 December 1979, governs the organisation and functioning of the councils of the Ordre.

The councils, which are responsible for "ensuring observance of the rules of medical ethics and upholding the reputation, standards of discretion, probity and dignity of the members of the Ordre", are required to "discipline misconduct by registered members in or in connection with the practice of their profession and serious misconduct committed outside the realm of their professional activity, whenever such misconduct is liable to damage the reputation or dignity of the profession" (Article 6, 2o, of Royal Decree no. 79).

In addition to a warning, censure or reprimand, the councils are empowered to suspend the right to practise medicine for a period not exceeding two years or to strike the practitioner in question off the register of the Ordre (Article 16).

The following provisions are relevant to the instant case:

"The Appeals Boards’ deliberations and decisions shall be valid only if, in addition to the registrar, at least three elected members and three designated members are present.

Without prejudice to the application of the provisions of Article 32 of this decree, the Appeals Boards’ decisions shall be taken by a majority vote."

"An application to the Appeals Board to set aside its own decision given in absentia shall be filed by registered letter addressed to the president of the Appeals Board concerned."

"A medical practitioner may avail himself of his right to challenge the members of the Provincial Council and Appeals Board required to give a decision concerning him."

"Any member of the Provincial Council or Appeals Board may be challenged for the reasons laid down in Article 828 of the Judicial Code."

"If he is not to forfeit his right to challenge the members of the council or board, the medical practitioner must, at the latest before the case is pleaded at the hearing, submit to the president of the competent council or board an application, which must be dated and signed and which shall set out the names of the challenged members and the grounds for the challenge."

"The president of the council or board shall immediately inform the member at whom the challenge is directed; he shall submit the challenge to the council or board, which shall take a majority vote on it, after hearing the challenged member but without that member being present.

The reasoned decision shall be served on the medical practitioner without delay.

An appeal shall lie against a decision by the Provincial Council dismissing a challenge; such an appeal must be lodged within eight days of the notification of the decision."

The relevant provisions of the Judicial Code read as follows:

"The rules set out in this Code shall apply to all proceedings except those governed by legislation that has not been expressly repealed or by principles of law whose application is incompatible with that of the provisions of the Code."

"Any judge may be challenged for the following reasons:

7o if the judge is the guardian (tuteur), auxiliary guardian (subrogé tuteur) or limited guardian (curateur), temporary trustee (administrateur provisoire) or guardian ad litem (conseil judiciaire) ... of one of the parties; if he is an administrator or agent (commissaire) of any establishment, company or association which is a party to the case; ...

11o if there is fundamental hostility (inimitié capitale) between him and one of the parties; if he has made attacks, proffered insults or uttered threats, in speech or in writing, since the commencement of the proceedings or in the six months preceding the challenge."

"From the day on which the judge is notified, all judgments and proceedings shall be suspended.

Nevertheless, if one of the parties maintains that the proceedings are urgent and that the delay involves a risk, that party may request the president of the relevant court to organise a hearing of the interlocutory application; ...

In allowing that request, the president shall order that another judge should deal with the application."

According to Belgian legal theory, "fundamental hostility exists if facts of a sufficiently serious nature clearly reveal that the judge feels real hatred or at least animosity such that his judgment is destroyed or impaired" (Fettweis, Manuel de procédure civile, 1987, p. 429, note 1).


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1955 and is serving a sentence of imprisonment in the Sverdlovsk Region.

The applicant was arrested on 20 January 1998. He was charged with a number of criminal offences, including conspiracy to commit murder.

On 11 May 1998 the applicant was taken to remand centre no. 77/1, also known as “Matrosskaya Tishina”.

In July 1998 the deputy Prosecutor General extended his detention until 18 January 1999. On 2 October 1998 the Preobrazhenskiy District Court of Moscow upheld this extension order.

In September 2000 the criminal case against the applicant was listed for trial. On 29 September 2000 the Moscow City Court held that the measure of restraint in respect of defendants, including the applicant, had been lawful and should remain unchanged.

The City Court subsequently issued further extension orders on 3 July, 30 September, 18 December 2002, 24 March, 30 June and 30 September 2003, referring to the fact that the applicant and his co-defendants had been charged with particularly serious criminal offences. The Supreme Court of the Russian Federation rejected appeals against these remand orders, endorsing the City Court’s reasoning.

On 30 December 2003 the City Court extended the defendants’ detention on remand until 1 April 2004, noting the gravity of the charges against them and the possibility that they might abscond or obstruct justice.

On 30 March 2004 the City Court extended the defendants’ detention on remand until 1 July 2004, indicating that:

“...[the defendants] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons, against whom separate criminal proceedings are pending, and with another person, against whom criminal proceedings were disjoined because his whereabouts are not known; if released, [they] may abscond or obstruct justice”.

On 1 July 2004 the City Court extended the defendants’ detention, reproducing verbatim the reasoning of its earlier decision.

On 22 July 2004 the Supreme Court upheld the decision of 30 March 2004 and endorsed the City Court’s reasoning.

On 19 July 1999 the Moscow city prosecutor approved the bill of indictment and the case was submitted for trial to the City Court. The applicant was charged with multiple counts including conspiracy to commit murder. Similar charges were brought against fifteen other co-defendants.

On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury. However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available.

On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility with the Russian Constitution of the Supreme Court’s interpretation of the jurisdictional rules. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court. She also held that the defendants were to remain in custody because they had been charged with criminal offences of high public danger, classified as serious or particularly serious.

On 13 April 2000 the Constitutional Court held that the decision on the change of venue had been incompatible with the Russian Constitution.

In compliance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court. The Supreme Court decided on 6 September 2000 that the City Court was competent to try the case.

On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a panel consisting of a professional judge and two lay judges, but on that date the hearing was adjourned because the presiding judge was sitting in another case.

In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. Lay judges were replaced several times.

Numerous hearings were scheduled between 2001 and early 2003. All of them were adjourned on various grounds, mainly because the prosecutor, the interpreter and some of the defendants’ lawyers had defaulted, and also owing to the presiding judge’s involvement in other proceedings in May and October 2001, and then in May, September and October 2002.

It appears that consideration of the merits began in March 2003. The absence of several lawyers, including the applicant’s counsel, was one of the reasons for adjourning the hearings listed for 4 March and 29 April 2003.

The illness of the applicant’s counsel was one of the reasons for adjourning the hearings scheduled for 26 January and 2 February 2004. On 10 March 2004 the trial judge ordered the bailiffs to bring the defaulting witnesses and victims to a hearing on 16 March 2004, which was not done in respect of certain witnesses and victims. On a number of occasions between March and July 2004 the judge reiterated his request.

On 12 August 2004 the trial court closed the trial and started deliberations.

On 27 October 2004 the City Court found the applicant guilty of multiple counts including conspiracy to commit murder and sentenced him to ten years’ imprisonment. On 10 November 2004 the judgment was pronounced in public.

The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the judgment.

According to the applicant, from 2 October 2004 to 5 June 2005 and from 11 June to 26 June 2005 he shared a cell with a Mr K. On an unspecified date, the latter tested HIV positive. He was informed so six months later and had another blood test, which was also positive. According to the applicant, on 11 June 2005 Mr K. told him that he had tested HIV positive.

It appears from a report of 20 March 2006, submitted by the Government, that HIV-positive detainees were not segregated from the other detainees in remand centre no. 77/1; the applicant “was informed of the rules for detention of HIV-positive detainees”, including a prohibition of such segregation.

The applicant submitted the following description of the relevant circumstances of his transport and confinement.

Between 2001 and 2004 the applicant had been transported to the Moscow City Court and back to the remand centre no. 77/1 on no less than one hundred days (normally, three days per week). He had been taken out of his cell at 6 a.m. and placed alone in a cell measuring 70 by 70 centimetres, awaiting departure at 9 or 10 a.m. On the day of a court hearing he had not been given any food before departure; nor had he received any meal at the courthouse or in the remand centre upon his return. Since early 2004 the authorities had started to supply a dry ration for the day which he, however, could not consume because no hot water had been provided at the convoy premises in the City Court.

The applicant had been transported in overcrowded vans; the journey from the remand centre to the City Court had normally taken one to three hours.

At the City Court premises the applicant had been held together with several other detainees in a cell measuring 1.2 by 2 metres. After the hearing he had been taken back to that cell where he had waited until 6 to 8 p.m. without any food or drink or access to a toilet.

On the way back the prison van had never gone directly to remand centre no. 77/1, it made a detour to bring detainees to another remand centre where it sometimes stayed for four or five hours. Thus, the return journey had normally taken two to three hours. Upon arrival at facility no. 77/1, the applicant had had to wait for one more hour before being taken to his cell at about midnight.

The Government contested the applicant’s description of his conditions of confinement and transport. According to them, the applicant was taken out of his cell at 6 a.m. and provided with hot breakfast. He was then kept at the assembly section which had eight cells measuring between 12.7 and 17.9 square metres. Each cell had a bench, sanitary facilities, artificial lighting and a window. The applicant remained there for about one hour and a half awaiting departure for the courthouse. He was given a dry ration consisting of two courses for the remainder of the day.

Between 2001 and 2003 the applicant was transported in vans GAZ-2207(3309) and ZIL-4331. The detainees’ section of the GAZ van measured 3.8 m (length) by 2.35 m (width) by 1.6 m (height). Such a van had one individual compartment and two compartments for twelve persons each. The detainees’ section of the ZIL van measured 4.7 m by 2.4 m by 1.64 m and had two individual compartments and two compartments for seventeen persons each. Both types of vans also had three or four seats for convoy officers.

Vans were equipped with fixed benches so that each detainee was provided with individual seating. Van walls had insulating lining. Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running. Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. Given the security considerations, from December 2003 onwards the applicant and his co-defendants were carried by direct transfer between the remand centre and the courthouse.

At the City Court the applicant was kept at the convoy premises which had three compartments with seventeen cells each and a toilet, which detainees could access upon request. Each cell measured 1 m by 1.95 m by 3.1 m. Each cell had seating and was equipped with systems of ventilation, heating and artificial lighting. At the courthouse he was provided with hot water with which to consume the dry ration. He was also allowed to bring food purchased in the prison shop or received from his relatives.

In 2003 the applicant complained about unsatisfactory conditions of transport and confinement at the courthouse.

It appears from the report of the Moscow Department of the Interior dated 16 December 2003, submitted by the Government, that the applicant was taken to court for criminal proceedings which “were dragging on”. Between July and October 2003 he was transported eight times in the prison van ZIL-4331 together with, at times, fifteen to twenty-seven other detainees; the direct transfer from the courthouse did not normally exceed thirty minutes and ended no later than 8 p.m., except on 30 September 2003. From December 2003 onwards the applicant and his co-defendants were taken by direct transfer on account of security considerations. Convoy premises at courthouses were not equipped for catering purposes and “the detainees ate their dry rations when they returned to the remand centre from the courthouse”.

By a letter of 17 December 2003 the Moscow Department of the Interior stated that the time taken for transportation had been “objectively justified”.

For a summary of the applicable national legislation relating to detention on remand, see the Court’s judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005).

On 4 May 2001 the Ministry of Justice adopted the Rules on food supply for convicts and persons detained in remand centres. According to Annex no. 3 to these Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient care institutions or convicted juveniles. Those Rules were amended in 2004 and repealed in 2005.

On 4 February 2004 the Ministry of Justice adopted the Rules on supply of dry ration, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration.

Limitation of a citizen’s rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing propagation of the HIV infection and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code).

According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing propagation of the HIV infection; medical and other staff must not disclose information relating to the detainee’s HIV status (Rules 11 and 13).

Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-infected prisoners.

The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows:

“31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries....

...[T]he act of depriving a person of his liberty always entails a duty of care...

The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned.

...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.

...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...”

The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows:

“13. Medical confidentiality should be guaranteed and respected...

The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medial reasons.

No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40.

Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...”

The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows:

“9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.”

Detention of HIV-infected persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison.

Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons:

“27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners’ rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations...

Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner’s informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration....

Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant, Mr Vadim Viktorovich Vlasenko, is a Ukrainian national who was born in 1962 and lives in Kryvy Rig, Dnipropetrovsk Region, Ukraine. The Ukrainian Government (“the Government”) were represented by Mr Y. Zaytsev.

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

The applicant worked at a joint stock company, “K”. In 1995 he retired.

In July 1995 a medical expert commission recognised the applicant as having a number of work-related illnesses. As a result K paid him a lump sum in compensation and started to pay him a monthly pension.

On 1 July 1998 the applicant instituted civil proceedings in the Tsentralno-Miskyy District Court of Kryvy Rig (“the District Court”) against K, seeking a recalculation of the above-mentioned payments.

On 16 February 1999 the defendant requested the court to order an accountant’s report on the calculation of the payments in question. The court allowed this request.

On 1 March 1999 the expert opinion was read out at a court hearing.

On 18 March 1999 the District Court found for the applicant.

On 25 October 1999, upon an appeal by the defendant, the Dnipropetrovsk Regional Court (since June 2001 the Dnipropetrovsk Regional Court of Appeal) quashed that judgment on the ground that the first-instance court had wrongly calculated the amounts awarded, and ordered a retrial.

The District Court’s hearing scheduled for 8 February 2000 was adjourned at the applicant’s request because he was preparing an additional claim. This claim, apparently for additional payments, was lodged on 22 February 2000. Further additional claims were lodged by the applicant on 11 July 2001 and 4 March 2002.

On 15 March 2000 the District Court ordered, at the defendant’s request, a forensic examination by an accountant. The defendant subsequently refused to bear the costs of the forensic examination in view of lack of funds and the expert terminated the examination. The file was transferred back to the District Court and the next hearing took place on 9 April 2001.

On 17 July 2001 the District Court joined, at the defendant’s request, the local department of the State Social Security Fund (Виконавча дирекція Фонду соціального страхування від нещасних випадків на виробництві і професійних захворювань в м. Кривому Розі) to the proceedings as a co-defendant.

On 20 July 2001 the District Court found for the applicant.

On 10 January 2002, following an appeal by K, the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 20 July 2001 on the ground that the lower court had wrongly calculated the amounts awarded and ordered a retrial.

On 11 June 2002 the District Court found for the applicant.

From 10 July to 31 October 2002 the domestic courts examined the matter of admissibility of the appeal by K against the last-mentioned judgment. Eventually, K lodged an appeal in compliance with the procedural requirements prescribed by law and the proceedings on the merits resumed.

On 27 January 2003 the Dnipropetrovsk Regional Court of Appeal upheld the judgment of 11 June 2002.

On 15 December 2003 the Supreme Court of Ukraine rejected an appeal in cassation by K.