Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Henry Dudek, is a German national who was born in 1947 and lives in Lohne. He was represented by Noreck Hoyer Dudek, a firm of lawyers practising in Hannover. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

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

The applicant is a dentist and member of the Lower Saxony Association of Contractual Dentists (Kassenzahnärztliche Vereinigung Niedersachsen) (“the Association”), the self-governing body of the contractual dentists practising in the Land Lower Saxony. The Association is responsible for, inter alia, entering into contracts with public health insurers on behalf of its members, checking costs brought to account by its members, distributing reimbursements for contractual work paid by public health insurers, and allocating the effects of austerity measures in the public health sector among its members in conformity with decisions of its council. Contractual dentists are free to treat other patients, in particular those who are insured by private health insurers. The Association is not concerned with remuneration for such work.

The applicant was involved in numerous sets of proceedings against the Association or Committees affiliated with it before the social courts concerning aspects of his remuneration as a contractual dentist.

On 25 August 2009 the President of the Fifth Section communicated the complaints regarding the length of the proceedings to the Government, together with those concerning eleven other sets of domestic proceedings which had been decided or were then still pending before the same judicial formations.

On 4 February 2003 the Association deducted an amount of 97.06 Euros (“EUR”) from expenses for material and laboratory services brought to account by the applicant in regard to the orthodontic treatment of one patient because the applicant had significantly exceeded the initial estimations by the public health insurer concerned in regard to those specific expenses.

On 6 February and 12 June 2003 the applicant made unsuccessful administrative complaints.

On 22 January 2004 he brought an action against the Association before the Hanover Social Court (“the Social Court”).

On 12 January 2009 the applicant requested the Social Court to take additional evidence, namely that the initial calculations of public health insurers were not binding for the dentist concerned and that he had not exceeded the initial global estimations of expenses.

On 14 January 2009 the Social Court held an oral hearing at the end of which it dismissed the action, refused leave to appeal and refused to hear additional evidence.

On 7 February 2009 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Lower-Saxony Bremen Social Court of Appeal (“the Social Court of Appeal”). On the same day he lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 383/09).

On 4 February 2010 the Social Court of Appeal dismissed the complaint; on 1 April 2010 it dismissed the applicant’s appeal for the right to be heard against this decision.

Also on 4 April 2010 it dismissed as inadmissible the applicant’s appeal against the Social Court’s refusal to hear additional evidence; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by the Social Court.

In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and 44,178.98 German marks (“DEM”) (= EUR 22,588.35) in regard to pecuniary damage.

On 14 October 2002 EUR 71.05 were deducted from the expenses for personnel and drugs brought to account by the applicant.

On 12 November 2002 the applicant made an unsuccessful administrative complaint.

On 14 April 2003 he brought an action against the Complaints Committee at the Dentistry Economic Efficiency Office before the Social Court.

On 23 July 2008 the Social Court dismissed the action on the grounds that the deduction had been lawful because the applicant’s expenses had been excessive in comparison to other dental practices.

On 15 September 2008 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal.

On 7 February 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 330/09).

On 28 April 2010 the Social Court of Appeal dismissed the complaint.

In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary and DEM 135,296.12 (= EUR 69,175.81) in regard to pecuniary damage.

On 11 March 2003 EUR 208 were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs.

On 14 April 2003 the applicant made an unsuccessful administrative complaint.

On 15 December 2003 he brought an action against the Complaints Committee at the Association before the Hanover Social Court.

On 12 January 2009 he requested the Social Court to take additional evidence, namely that he was entitled to the expenses requested for the practice overhead; that the expenses brought to account by him were to be calculated using specific criteria; and that the practice overhead of unamortised dental practices such as his was higher than the one of amortised practises.

On 7 February 2009 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal. On the same day he lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 347/09).

On 21 January 2003 EUR 213.16 were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs.

On 23 January 2003 the applicant made an unsuccessful administrative complaint.

On 21 July 2003 he brought an action against the Complaints Committee of the Dentistry Economic Efficiency Office before the Hanover Social Court.

On 22 July 2008 he requested that a scheduled oral hearing be adjourned until a decision on his legal aid request became final.

On 23 July 2008 the Social Court held an oral hearing and dismissed the action.

On 14 September 2008 the applicant lodged a complaint against the refusal to be granted leave to appeal before the Social Court of Appeal, which dismissed the complaint on 28 April 2010.

On 7 February 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained that the Social Court had taken no action. On 3 March 2009 the Federal Constitutional Court declared the constitutional complaint inadmissible, without giving further reasons (1 BvR 382/09).

On 5 May 2004 the Prosthodontics Conciliation Committee (“the Conciliation Committee”) at the Association ordered the applicant to reimburse EUR 312.17 for the defective implantation of a lower jaw prosthesis. On 8 June 2004 the applicant made an unsuccessful administrative complaint. On 4 April 2005 he brought an action against the Conciliation Committee before the Hanover Social Court, which granted the action on 25 February 2009.

In the proceedings before the Court, the applicant requested at least EUR 15,000 in regard to non-pecuniary damage.


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Mammed Useinovich Settarov, is a Ukrainian national of Tatar origin who was born in 1975 and lives in Simferopol. He was represented before the Court by Mr N. Gurepka, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.

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

On 24 April 2002 the applicant was involved in a car accident.

According to a report drawn up by the police on the same day, the applicant had been responsible for the accident.

On an unspecified date the police transferred the case to the Zaliznodorozhnyy District Court of Simferopol for adjudication.

By a resolution of 14 August 2002, the court discontinued the proceedings against the applicant as time-barred. In the same resolution it found that the car accident had been caused by the applicant and that he had committed an offence provided for in Article 124 of the Code on Administrative Offences. The court’s finding was based on the police report, the conclusions of an expert concerning the accident and the victim’s statements. The court did not accept the applicant’s version of the event, though it was confirmed by two witnesses, who had been in the applicant’s car on 24 April 2002.

Subsequently, the applicant asked the prosecutors to lodge a protest against the resolution of 14 August 2002. The prosecutors refused.

The relevant law is summarised in Rybka v. Ukraine ((dec.), no. 10544/03, 17 November 2009).


Violation of Article 6 - Right to a fair trial

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

The applicant was born in 1950 and lives in Budapest.

In the context of complications suffered from plastic surgery, on 13 February 1992 the applicant brought an action in compensation against a hospital.

After having held several hearings and obtained the opinion of an expert, on 11 October 1994 the Pest Central District Court gave an interim judgment, accepting the applicant’s entitlement to compensation. On appeal, on 7 November 1995 the Budapest Regional Court upheld this decision.

Subsequently the proceedings continued before the District Court. In January 1996 the applicant extended her claims. After having held several hearings and obtained an expert opinion, on 27 January 2000 the District Court partly found for the applicant. On 24 January 2001 the Regional Court amended this decision.

On 25 June 2003 the Supreme Court quashed these decisions and remitted the case to the first-instance court.

After several hearings in the resumed first-instance proceedings, on 31 October 2006 the District Court ordered the respondent to pay the applicant 1.9 million Hungarian forints (HUF) in compensation plus accrued interest, together with a monthly allowance in arrears and pro futuro.

On 19 February 2008 the Regional Court upheld this judgment.

On 6 May 2008 the first-instance judgment was rectified.


Violation of Art. 8 (if deportation order executed);Not necessary to examine Art. 3;Lack of jurisdiction (injunction to State)

Mr Nasri, an Algerian national, was born deaf and dumb in June 1960, in Algeria. He is the fourth of ten children, one of whom is deceased and six of whom are French nationals. He came to France with his family in February 1965. He is currently subject to a compulsory residence order pursuant to which he is required to live with his parents, at Nanterre (Hauts-de-Seine).

According to the information provided to the Court, the applicant's schooling may be summarised as follows.

On their arrival in France in 1965 Mr and Mrs Nasri wanted to enrol their son in kindergarten, but he was refused admittance on account of his handicap. They then sought to have him admitted to the Institut Saint-Jacques in Paris, a specialist establishment for the deaf and dumb. The institute could not however take him because of a lack of places and because his intellectual level was not regarded as sufficient. As a result Mr Nasri was not able to attend a school until 1968.

In that year, after a social worker had intervened, he was admitted to the Centre audiométrique médico-psychopédagogique at Boulogne (Hauts-de-Seine) (a school specialising in hearing and speech difficulties). There he underwent therapy for his condition and received training adapted to his needs. On 11 December 1971 he was expelled for violent behaviour.

He then spent a further period with no schooling or training, which lasted until 1974, when he entered a training centre for the deaf and dumb at Tours (Indre-et-Loire). However, as his parents were unable to pay the boarding fees, he was returned to them after seven months.

On 20 September 1976 he began training as a house painter. On 20 October 1977, following various incidents, he was obliged to quit.

The applicant has indicated that he has no proficiency in deaf and dumb sign language, can neither read nor write and expresses himself in elementary fashion through signs that are intelligible only to his immediate circle of family and friends.

As early as 1977 the applicant came to the notice of the police as a result of a number of thefts. He appeared in court on several occasions.

At 10 March 1992 his police file recorded the following convictions:

(a) on 3 November 1981, 2 February 1982 and 21 January 1983 he was sentenced by the Paris Criminal Court to terms of imprisonment ranging from six months to one year for theft and attempted theft;

(b) on 15 May 1986 he was sentenced to five years' imprisonment, two of which were suspended, and five years' probation by the Hauts-de-Seine Assize Court for gang rape;

(c) on 17 September 1987 he was sentenced to one year and three months' imprisonment by the Nanterre Criminal Court for theft with violence;

(d) on 10 November 1988 he was sentenced to ten months' imprisonment by the Paris Court of Appeal for theft with violence;

(e) on 7 September 1989 he was fined two thousand francs by the Paris Criminal Court for assaulting a public official;

(f) on 10 December 1990 he was sentenced to six months' imprisonment by the Versailles Court of Appeal for theft with violence and receiving stolen goods.

In addition, on 21 May 1982 he had been given a suspended sentence of eight days' imprisonment for criminal damage and on 13 May 1992 he was sentenced to eight months' imprisonment for theft. On 31 March 1993 he was convicted of theft with violence, but the Court does not have any further details.

On 21 August 1987 the Minister of the Interior ordered the applicant's deportation on the ground that his presence on French territory represented a threat to public order. The order, which was issued pursuant to sections 23 and 24 of the Order of 2 November 1945 as amended (see paragraph 27 below), cited the applicant's five recent convictions, including that of 15 May 1986 (see paragraph 12 above).

On 10 March 1988 the Versailles Administrative Court quashed the above-mentioned order. It found that the Minister had not been entitled to rely on the 1945 Order as amended by the Act of 9 September 1986, because the provisions of that Act were stricter than those that had previously been in force. To rely on them in the applicant's case, in respect of criminal convictions which all preceded that date, amounted to wrongfully modifying established situations.

On 15 February 1991 the Conseil d'Etat overturned the Administrative Court's judgment and dismissed Mr Nasri's applications for the quashing of the order or for a stay of execution. It took the view that the deportation of an alien was not a sanction, but an administrative measure exclusively designed to prevent disorder and to preserve public safety. Accordingly, the provisions of the Act of 9 September 1986 could be applied as soon as they entered into force to aliens satisfying the conditions laid down therein, whatever the date of the convictions on which the measure was based.

On 30 January 1992 the applicant complied with a summons requiring him to report to the Hauts-de-Seine Prefecture at Nanterre, where he was first taken into police custody and then placed in administrative detention by order of the Prefect, for a period of twenty-four hours, with a view to his deportation to Algeria. As it proved impossible to deport him within that period, the Nanterre tribunal de grande instance issued a compulsory residence order dated 31 January requiring Mr Nasri to live with his parents.

On 31 January 1992, relying on Articles 3, 6, and 8 (art. 3, art. 6, art. 8) of the Convention, Mr Nasri lodged an application with the Paris Administrative Court challenging, inter alia, the deportation order and the detention order.

On 28 October 1992 his application was dismissed. According to the Administrative Court, the applicant's presence on French territory represented a serious threat to public safety in view of his numerous previous convictions, the gravity of the offences committed and his persistent re-offending. The impugned decision had not therefore constituted an infringement of his right to a family life that was "disproportionate to the aims pursued by the measure in question".

The deportation order has so far not been enforced, in compliance with the request for a stay of execution made by the President of the European Commission of Human Rights (see paragraph 29 below).

On 4 February 1992 the Minister of the Interior issued a compulsory residence order requiring Mr Nasri to live with his parents "until such time as he is in a position to comply with the deportation order concerning him". That measure has since been renewed.

In connection with the criminal proceedings brought against the applicant, several expert reports were ordered with a view to studying his personality, his behaviour and his social environment.

A report of a psychiatric examination effected in October 1977 at the request of the investigating judge of the Nanterre tribunal de grande instance presented the following conclusions:

"The accused is an adolescent aged 17; he is deaf and dumb and has not yet acquired the skills needed to cope with his handicap; he is not mentally retarded or mentally ill. He is, however, very easily influenced.

He is not insane within the meaning of Article 64 of the Criminal Code, but his emotional immaturity and intermittent personality disorders, combined with the fact that he is deaf and dumb, mean that his criminal responsibility is diminished to a considerable extent. He is by no means an insane person. He is not dangerous in a psychiatric sense. He can be restored to his family. He is unlikely to respond to a criminal penalty

A medico-psychological report drawn up on 26 November 1982 at the request of the investigating judge of the Paris tribunal de grande instance, stated as follows:

"The subject's personal history is very sketchy, for the very reason that he mimes more than he uses sign anguage. None the less, we learn that he was born in Algeria some twenty-two years ago; he is unable to provide us with his precise date of birth. He indicates that he came from Algeria to France while still a very young child. Both parents are living. His father still works. His mother stays at home and is described as an invalid.

As regards his schooling, [he] indicates that he attended a special school for the deaf and dumb, where he learnt the trade of house painter. He further indicates that he is unable to write and has to ask another deaf and dumb person to assist him in that task. He does not know his parents' address in Paris.

His intellectual level is very low. He is incapable of accurately identifying significant dates in his life. He indicates that he can neither write nor read. The interpreter for the deaf and dumb tells us that he has a very poor knowledge of sign language and that he uses mime more than an appropriate language.

He should receive socio-professional supervision and be helped to find employment genuinely compatible with his condition."

A report of a medico-psychological examination submitted on 21 November 1983 notes:

"Mohamed Nasri appears to us to have only very limited means of communication and of understanding of the world. In his family and in society he has been in a situation apart where he has built up a closed universe for himself. As his communication with the outside world remains rudimentary, it is often expressed in aggressive terms, especially since he is only able to identify with individuals who embody a certain aggressiveness towards a social environment that has not provided him with the means of communication he could expect. He thus appears to have taken refuge in the North African community, the only one to confer any status on him, but one which places him in a situation where he manifests this status by means of criminal or aggressive acts. That is what makes any intervention or assistance difficult.

Mohamed Nasri has the level of understanding and communication of a child. His perception of the world remains rudimentary; his expression and comprehension are poor. The therapy he has received has been unable to equip him with proper and adequate means of communication and he has had to revert, in a way that is regressive, to his milieu of origin, with which he has to identify in order to have a status and an identity. In his milieu of origin, where he is integrated under the nickname which establishes his difference, 'the mute', it is inevitable that [he] should adopt attitudes of criminality and aggression, which in view of his condition are the only means he has of maintaining his status and identity."

A psychiatric report of the same date concluded as follows:

"We know very little of a personal history that has been marked by deaf-mutism and attempts at therapy which have achieved very moderate results ... [He] spent his childhood and his entire adolescence in France and has never returned to Algeria, although he has kept his Algerian nationality ... He lives with his parents, goes out, hangs around, uses the pocket money that his mother gives him; they now live in publicly subsidised housing at Nanterre.

He was sent to prison a year or two ago for picking pockets; while in prison he presented signs of acute anxiety that made it necessary for him to be transferred to a psychiatric ward, where he spent three months.

[His] intelligence, which was no doubt normal at the outset, is now to be assessed in terms of intellectual efficiency, namely he uses a limited number of signs and his technique is rudimentary; his comprehension is inadequate. He therefore has very little understanding of abstract concepts of time, place, etc. ... His scholastic accomplishments are limited: he cannot read, or only titles, street names; he writes his name but nothing else; and he has not mastered the mechanism of addition involving the carrying-over of numbers. Our interpreter sees him as a young deaf and dumb boy aged 7 or 8 who has never had the benefit of specialist attention ..."

According to the findings of a psychiatric report of 31 July 1984:

"He is deaf and dumb and has received practically no therapy. It is well known that such deficiencies, over and above the mere physical defect, affect in a much more general way the whole process of conceptualisation and in particular the acquisition of moral values; it may therefore be concluded that he does not obey the same scales of values as a person who is normally integrated in society and who hears normally; these psychological factors should be taken into account when assessing the offence that he has committed.

An examination of Mr Mohamed Nasri does not disclose any major mental, psychological or behavioral anomalies amounting to insanity; he is nevertheless a person who has been uprooted, who is badly integrated, desocialised and handicapped by his deaf-mutism with the implications that that has for his process of conceptualisation and his understanding of moral rules.

He was not insane within the meaning of Article 64 of the Criminal Code at the material time. From a strictly psychiatric point of view, the anomalies found are not such as to diminish his responsibility.

He is susceptible to the imposition of a criminal sanction. He does not need special treatment, but would benefit from specialised supervision for his deaf-mutism, which might improve the prognosis for his rehabilitation. Placing him in a psychiatric hospital does not appear desirable either in his interests or in those of the community."

According to a medico-psychological report submitted on 18 June 1985:

"The examination reveals nothing to justify the conclusion that [Mr Nasri] is not in a position to understand normally social rules and prohibitions, or that his capacity for self-control has been diminished by a clear pathological process.

It is, on the other hand, evident that the frustration that he feels, the difficulty of communicating, the impossibility of expressing his wishes by word combine to create the psychological conditions in which there is very low resistance to acting out his desires."

A police report of 13 April 1992 concerning the applicant states as follows:

"His handicap, deaf-mutism, is real and does not prevent him from wandering the streets of Villeneuve-la-Garenne and other villages at all hours of the day and night and rom assiduously frequenting the bars where he drinks alcohol, which makes him aggressive or even violent.

He inspires terror in many inhabitants of Villeneuve and also in his accomplices. He has been involved in numerous incidents of theft or violence. This violent and antisocial individual makes no effort whatsoever to be integrated in our society and takes advantage of his handicap and of the favourable provisions of the administrative and justice systems. He is a real danger to public order, especially since he appears to be the leader of the young delinquents of Villeneuve owing to the fear he inspires."

Deportation of aliens is governed by the Order of 2 November 1945 concerning the conditions of entry and residence of aliens in France. Section 23, as amended on 29 October 1981, provides:

"Deportation may be ordered by an order of the Minister of the Interior if the alien's presence on French territory constitutes a serious threat to public order."

An Act of 9 September 1986 had deleted the word "serious" from the above provision, but on 2 August 1990 the wording adopted in 1981 was reinstated.


CASE OF ANTONENKOV AND OTHERS v. UKRAINE

Violation of Art. 6-1 (length of proceedings);No violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in 1967, 1959 and 1970, respectively. All three live in Kyiv.

On 26 June 1996 criminal proceedings against the applicants were instituted.

On 31 June 1996 A.D. was arrested on suspicion of fraud and theft. On 16 August 1996 V.S. and, on 19 August 1996 A.A., were arrested on similar charges. The prosecution’s case was that the applicants had fraudulently (using false documents) converted and subsequently sold an apartment belonging to Mr K.

During the investigation the prosecution authorities obtained several economic expert opinions regarding the suspect transaction.

On 3 March 1997 the Kyiv City Prosecutor approved the indictment and referred the case to the Kyiv City Court, requesting it to determine the territorial jurisdiction in the case. On 5 March 1997 the Kyiv City Court (hereafter “City Court”) remitted the case to the Shevchenkovsky District Court of Kyiv (hereafter “the District Court”). The applicants stood trial on charges of theft, fraud, and embezzlement of official documents (A.D.), fraud and forgery (V.S.) and fraud and theft (A.A.).

On 2 April 1997 the District Court committed the applicants for trial.

On 3 April 1997 the District Court released A.A. and V.S. on bail of UAH 3,000 each (approximately USD 1,500 at the material time) and an undertaking not to abscond. On 19 May 1997 A.D. was also released on bail of UAH 4,000 (approximately USD 2,000) and an undertaking not to abscond. On 27 May 1997 the applicants’ bail was raised to UAH 17,000 (approximately USD 8,500) each.

Between April 1997 and June 1998 the District Court listed 22 hearings (14 between September 1997 and June 1998). Ten hearings were adjourned mainly due to the failure of the victim, witnesses and the applicants’ lawyers to appear in court. In the course of the proceedings on 24 October 1997 the court issued a compulsory summons for the witness F.

On 22 June 1998 the District Court decided to remit the case for further inquiries on account of the insufficiency of the original investigation. The court stated inter alia, that the investigative authorities had failed to establish the whereabouts of one of the key witnesses, F., which made it impossible for the court to summon her to give evidence. The prosecution appealed against this decision. The decision was, apart from one point, quashed by the City Court in its ruling of 6 August 1998 because the flaws in the investigation indicated in this decision could be remedied during the trial. However, the City Court upheld the findings of the District Court that the charges of aggravated embezzlement filed against A.D. needed additional investigation.

The trial resumed on 2 November 1998. During the period November 1998 to April 2000 thirty hearings were scheduled, of which seven were held. Fifteen hearings were cancelled due to the victim’s failure to appear, five hearings were adjourned on account of the applicants’ absence and on two occasions the presiding judge was ill. In particular, the hearing scheduled for 12 May 2000 was adjourned until 17 May 1999 on account of V.S. being on a mission. On 15 March 2000 he lodged with the trial court a successful request for permission to go to the Russian Federation for medical treatment.

On 20 April 2000 the District Court remitted the case for further investigation, referring to the similar circumstances in its decision of 22 June 1998. The prosecution’s appeal out of time was rejected by the City Court on 28 September 2000. On 18 January 2001 the Kyiv City Prosecutor lodged a supervisory protest (an extraordinary appeal) against the decision 20 April 2000. On 29 January 2001 the Presidium of the City Court granted the protest and remitted the case to the first instance court for further consideration.

The District Court resumed the examination of the case on 4 April 2001. Between April 2001 and July 2002 the court listed 23 hearings of which 13 were adjourned due to the failure of the victim (on 9 occasions), the applicants (on 3 occasions) and the prosecutor (on one occasion) to appear. In the course of the proceedings on 24 April and 21 May 2001 the court ordered the compulsory summons of the victim.

On 17 July 2002 the District Court disjoined the proceedings concerning the charges of theft and embezzlement of documents (A.D. and A.A.) and remitted the case in this part for additional investigation.

On 19 July 2002 the District Court terminated proceedings concerning the charges of fraud (all three applicants), embezzlement of documents (A.D.) and forgery (V.S.) as time-barred, lifted the bail condition and ordered the return of the bail money.

According to both parties’ submissions, the criminal proceedings for (presumably) theft against A.D. and A.A. are still pending.

The text of Articles 148, 149 and 150 of the Code of Criminal Procedure of 1960 (general rules on the application of preventive measures) is set out in Merit v. Ukraine, no. 66561/01, 30 March 2004 (Relevant domestic law and practice).

Article 154-1 of the Code (application of bail) is set out in Koval v. Ukraine (no. 65550/01, 10 December 2002).

Article 281 (remittal of a case for additional investigation) is set out in the judgment of 6 September 2005 in the case of Salov v. Ukraine (see no. 65518/01, § 72).

Article 151 of the Code provides that an undertaking not to abscond consists in obtaining from the suspect or the accused an agreement not to leave the place of residence or temporary stay without the permission of an investigator (or a trial judge). In the event of a breach of the written undertaking given by him, a stricter measure of restraint may be applied to the suspect or accused.


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is the owner of an apartment in Torre del Greco, which he had let to A.P.

In a writ served on the tenant on 24 October 1990, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 31 December 1991 and summoned him to appear before the Naples Magistrate.

By a decision of 30 November 1990, which was made enforceable on the same day, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.

On 11 March 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter.

On 19 March 1993, the applicant served notice on the tenant requiring him to vacate the premises.

On 7 April 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 26 April 1993.

Between 26 April 1993 and 16 January 1997, the bailiff made nine attempts to recover possession. Each attempt of the bailiff proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.

On 28 April 1997, the tenant vacated the premises.

The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.


Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant, who was at the time the president of the petroleum workers’ union (Petrol-İş Sendikası), wrote an article entitled “The time has come for the workers to speak out – tomorrow it will be too late” (“Söz işçinin, yarın çok geç olacaktır”) in the 21-28 July 1991 issue of Yeni Ülke (“New Land”), a weekly newspaper published in Istanbul. The article read:

“The steadily intensifying State terrorism in eastern and south-eastern Anatolia is nothing other than a perfect reflection of the imperialist-controlled policies being applied to the Kurdish people on the international plane.

In order to destroy the Kurdish movement in Iraq, US imperialism first stirred up the Kurds against Saddam’s regime and then set that regime on them, having left it strong enough to crush their movement.

As a result, the whole world has been confronted with the heartbreaking sight of tens of thousands of Kurds dying of hunger, exposure and epidemics, tens of thousands more wiped out by the Iraqi army and hundreds of thousands forced to leave their homes and their country.

After shedding crocodile tears over these scenes, which they themselves had created, the imperialists are now sitting back with their arms folded, for the whole world to see, as genocide in Turkey continues to intensify.

The constant increase in the south-east in the numbers of persons executed without trial, of mass arrests and of persons disappearing while in detention, particularly since the passing of the new Prevention of Terrorism Act, is a harbinger of difficult times ahead.

The recent murder in police custody of the president of the Diyarbakır branch of the HEP [People’s Labour Party], probably by anti-guerrilla forces, and the further killings (three according to the police, ten according to local people) at his funeral (the police opened fire on the crowd, injuring hundreds, and took over a thousand people into custody) are the latest examples of State terrorism.

Anyone who examines the Prevention of Terrorism Act closely can easily see that it is aimed at crushing not only the struggle of the Kurdish people, but the struggle of the whole working class and proletariat for subsistence, for freedom and for democracy.

Consequently, not only the Kurdish people but the whole of our proletariat must stand up against these laws and the ‘State terrorism’ currently being practised.

From the trade-union point of view, too, the problem is too important and too vital to be dealt with simply in a few interviews and declarations.

The political authorities and the forces of monopolistic capital use a few vague concepts to enable every action to be presented as a terrorist offence and every organisation as a terrorist group. When they feel the time is right, they will not hesitate to turn that weapon against the working class.

As we have always said, the Turkish working class and its economic and democratic organisations must bring not only their economic, but also their political and democratic demands to the fore and play an effective role in this struggle.

Despite all the hurdles erected by the law, we must unite in action with the democratic mass organisations, political parties and every individual or body with which it is possible to work; we must oppose the bloody massacres and State terrorism, using all our powers of organisation and coordination.

If we fail to do so, the circles of monopolistic capital, which, under imperialist orders, aim to gag and suffocate the Kurdish people, will inevitably turn on the working class and proletariat.

In saying ‘tomorrow it will be too late’, we are calling on all our people and all the forces of democracy to take an active part in this struggle.”

On 16 September 1991, the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) indicted the applicant on charges of non-public incitement to hatred and hostility contrary to Article 312 §§ 1 and 2 of the Turkish Criminal Code (see paragraphs 15-16 below).

In the proceedings in the Istanbul National Security Court, the applicant denied the charges. He submitted that the article was about human rights violations in the south-east of Turkey and maintained that he had not intended to promote separatism or to sow discord or strife amongst the population. According to him, in a democratic society, any subject should be able to be discussed without restriction. He also argued that it was his responsibility as a trade-union leader to express his opinion on the problem of democracy in south-east Turkey.

In a judgment of 3 May 1993, the National Security Court found the applicant guilty of an offence under Article 312 §§ 2 and 3 of the Turkish Criminal Code and sentenced him to one year and eight months’ imprisonment, plus a fine of 100,000 Turkish liras.

The court held that in his article the applicant had alleged that the Kurdish people were being oppressed, massacred and silenced in Turkey. In particular, the court interpreted parts of the fourth and thirteenth sentences of the article as meaning, respectively, that “... genocide [was] being carried out against the Kurds in Turkey ...” and that an attempt was being made to “... gag and suffocate the Kurdish people”.

It reached the conclusion that the applicant had incited the population to hatred and hostility by making distinctions based on ethnic or regional origin or social class.

The applicant appealed to the Court of Cassation, contesting, inter alia, the National Security Court’s interpretation of his article and arguing that it should have obtained an expert opinion as to its meaning. He also submitted that he should have been given only a suspended sentence.

On 14 December 1993 the Court of Cassation dismissed the appeal, upholding the National Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence.

The applicant served his sentence in full. As a consequence of his conviction, he also lost his office as president of the petrol workers’ union as well as certain political and civil rights (see paragraph 17 below).

Article 312 of the Criminal Code provides:

“Non-public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.

A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

Article 311 § 2 of the Criminal Code provides:

“Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …”

The conviction of a person pursuant to Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that Article may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)).

The Government supplied copies of six decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges. One of the cases concerned a person suspected of non-public incitement, contrary to Article 312 of the Criminal Code, to hatred or hostility based in particular on a distinction between religions. The other five concerned persons suspected of making separatist propaganda aimed at undermining the indivisible unity of the State contrary to section 8 of the Prevention of Terrorism Act (Law no. 3713). In three of those cases, in which the offences had been committed by means of publications, one of the reasons given for the prosecutor’s decision was that some of the elements of the offence could not be made out.

Furthermore, the Government submitted a number of National Security Court judgments as examples of cases in which defendants accused of the offences referred to above had been found not guilty. The judgments in question are: for 1996, no. 428 of 19 November and no. 519 of 27 December; for 1997, no. 33 of 6 March, no. 102 of 3 June, no. 527 of 17 October, no. 541 of 24 October and no. 606 of 23 December; and for 1998, no. 8 of 21 January, no. 14 of 3 February, no. 56 of 19 March, no. 87 of 21 April and no. 133 of 17 June. The judgments acquitting authors of works dealing with the Kurdish problem were based, inter alia, on the absence of “propaganda”, one element of the offence.


The applicant was born in 1964 and lives in Zawada, Poland.

The applicant was arrested by the police on 24 June 1999. On the following day the Lubartów District Court (Sąd Rejonowy) ordered his detention on remand for a period of three months on suspicion of armed robbery. It took into account the nature of the offence and the strong likelihood that the applicant would be given a heavy sentence. In addition, it had regard to the fact that the applicant had been previously convicted of a violent crime.

On 14 September 1999 the Lublin Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 23 December 1999, having regard to the strong suspicion that he had committed the offence in question. It also found that the applicant’s detention was justified, given the gravity of the charge and the severity of the likely sentence. The court further held that the investigation could not be concluded within the period of three months because the applicant had to undergo a psychiatric examination.

The applicant underwent a psychiatric examination between 24 September and 1 October 1999. On 18 October 1999 a psychologist and two psychiatrists submitted their report. According to their findings, the applicant was able to understand his acts at the time of the commission of the alleged offence and could participate in the trial.

On 29 October 1999 the applicant was additionally charged with theft.

On 6 December 1999 the Lubartów District Prosecutor (Prokurator Rejonowy) terminated the investigation. On 8 December 1999 the prosecution filed a bill of indictment with the Regional Court. The applicant and his brother were charged with armed robbery and inflicting minor bodily harm. The applicant was additionally charged with theft. The bill of indictment specified that the applicant was subject to the rules on recidivism as in 1989 he had been convicted of assault with intent to rob and inflicting grievous bodily harm and had been sentenced to four years’ imprisonment. In addition, in 1994 the applicant had been convicted of manslaughter and sentenced to eight years’ imprisonment.

On 21 December 1999 the Regional Court ordered that the applicant be kept in custody until 30 June 2000. It observed that the evidence obtained in the proceedings indicated that there was a strong likelihood that the offences in question had been committed by the applicant. It further considered that continuation of his detention was necessary in order to secure the proper conduct of the proceedings, given the nature of the offence and the severity of the likely sentence in respect of the charge of armed robbery.

The applicant’s detention was subsequently prolonged by the Regional Court on 16 June 2000 (until 1 September 2000) and on 30 August 2000 (until 31 December 2000). The court relied on the same grounds as invoked in its earlier decision.

The Regional Court held 7 hearings (6 April, 17 May, 16 June, 20 July, 14 September, 16 October and 16 November 2000). On 23 November 2000 it gave judgment. The applicant was convicted as charged and sentenced to 5 years’ imprisonment. The applicant and the prosecution appealed against the Regional Court’s judgment.

On 28 December 2000 the Regional Court ordered that the applicant be kept in custody until 28 March 2001. On 14 March 2001 the Lublin Court of Appeal (Sąd Apelacyjny) prolonged his detention until 29 June 2001.

On 5 April 2001 the Lublin Court of Appeal quashed the first-instance judgment and ordered a retrial.

It appears that in the course of the retrial the Regional Court ordered that the applicant be examined by a psychiatrist and psychologist. According to their report, at the relevant time the applicant was not suffering from diminished responsibility for his acts, although he was a mentally handicapped person with an unsound personality.

The Lublin Regional Court several times prolonged the applicant’s detention. The relevant decisions were given on 12 June 2001 (prolonging his detention until 31 December 2001), on 11 December 2001 (ordering his continued detention until 30 April 2002), on 20 March 2002 (extending his detention until 20 June 2002), on 18 June 2002 (prolonging that period until 18 September 2002) and on 17 September 2002 (ordering his continued detention until 17 December 2002). In all those decisions, the Regional Court relied on the reasonable suspicion that the offences in question had been committed by the applicant, having regard to the evidence obtained in the proceedings. It further found that his continued detention was necessary in order to secure the proper conduct of the proceedings, given the nature of the charges and the severity of the sentence to which the applicant was liable. In the latter respect, the court found that the offence of armed robbery with which the applicant had been charged constituted a serious social danger and that the applicant was a recidivist offender.

The applicant’s numerous requests for release and appeals against prolongation of his detention were to no avail. The courts, having regard to the relevant medical and court officers’ reports, did not find any reason which would justify the applicant’s release on the grounds specified in Article 259 § 1 of the Code of Criminal Procedure.

The Regional Court held 7 hearings (8 October and 28 November 2001, and 24 January, 27 February, 20 March, 29 May and 2 October 2002). It gave judgment on 8 October 2002. The applicant was convicted of armed robbery and theft and sentenced to 7 years’ imprisonment. He appealed against that judgment.

On 27 May 2003 the Lublin Court of Appeal gave judgment. It acquitted the applicant of theft and upheld the remainder of the Regional Court’s judgment. The applicant lodged a cassation appeal against the Court of Appeal’s judgment. On 21 July 2004 the Supreme Court (Sąd Najwyższy) dismissed his cassation appeal as being manifestly ill-founded.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the conditions governing the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. When imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

an application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years.

Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“ A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

Article 64 §§ 1 and 2 of the Criminal Code of 1997 included in Chapter VII of the Criminal Code of 1997 provide for special rules relating to the sentencing of habitual offenders. The finding that a person is subject to the rules on recidivism within the meaning of Article 64 of the Criminal Code, inevitably results in the sentence of imprisonment to which the accused was liable being increased.


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

In a decision of 27 November 1989 the LabourExpert Medical Commission (“the LEMC” – see paragraph 19 below) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he qualified for second-degree disability. From that point on the applicant was undergoing biannual medical examinations at the LEMC, and each time his diagnosis and degree of disability were confirmed.

Apparently due to a deterioration of the applicant's health, in a decision of 9 December 1997 the competent LEMC revised his disability to firstdegree, without the need for another person's assistance. Later, on 21 May 1998, another LEMC decided that the applicant qualified for firstdegree disability in need of another person's assistance.

The chief expert at the Central LabourExpert Medical Commission (“the CLEMC” – see paragraph 19 below) at the Ministry of Health appealed against the latter decision. On 18 June 1998 the CLEMC overturned the LEMC's decisions of 9 December 1997 and 21 May 1998 and the applicant's disability status was set back to seconddegree.

The applicant lodged an appeal against this decision with the Supreme Administrative Court.

On 6 October 1998 a threemember panel of the court declared the applicant's appeal inadmissible. It held that the appealed decision was not subject to judicial review, in accordance with section 23(c) of the Implementing Regulations of the Labour Code of 1951, section 29a of Regulation no. 36 of the Minister of Health, and section 11(2) of the Implementing Regulations of the Pensions Act (see paragraph 22 below).

The applicant appealed to a fivemember panel of the Supreme Administrative Court, arguing that the refusal of the three-member panel to examine the appeal was contrary to Article 120 § 2 of the Constitution and Article 6 of the Convention. He submitted that the CLEMC's determination directly affected the amount of disability pension that was allotted to him.

The fivemember panel upheld the three-member panel's decision in a final decision of 1 March 1999, holding that under section 23(c) of the Implementing Regulations of the Labour Code of 1951 the CLEMC's decisions were final and not subject to judicial review.

Under Bulgarian law, as it stood at the relevant time, there existed three degrees of disability, differentiated according to the character and the course of the disabling illness, the functional status of the ailing organ and of the organism as a whole, and the requirements of the disabled's profession (section 46(1) of Regulation no. 36 on the expert assessment of longlasting incapacity to work, issued by the Minister of Health in 1975 and superseded in July 2000 by a newer statutory instrument). The first degree of disability was reserved for persons who had, due to their state of health, lost all ability for work, or persons with durable, incurable, or worsening ailments set forth in a special list (section 52 of the Regulation); the second one covered persons who had lost the ability to perform theirs or any other work, but who could be accommodated for work under conditions suitable for their health, or persons with durable, incurable, or worsening ailments set forth in the above list (section 54 of the Regulation); and the third one covered persons who, as a result of their state of health, had to change their profession with one requiring lower qualifications, or who had to change their conditions of work within the same profession (section 55 of the Regulation). If a person was disabled on account of several illnesses, the decision determining his or her disability status had to set forth his or her degree of disability pursuant to each of the separate illnesses, as well as the overall degree of disability (section 50 of the Regulation).

Persons with a firstdegree disability were divided in two subcategories: those who needed another person's assistance, and those who did not. The determination who was in need of such assistance was made on the basis of the findings about that person's need of everyday care, help or supervision (section 53 of the Regulation).

Section 17 of the Pensions Act of 1957, as in force at the material time, provided that the amount of the professional disability pension was to be set pursuant to the degree of disability: those under the first degree were entitled to 70% of their average earnings, those under the second degree to 55%, and those under the third degree to 35%. The amount of the general disability pension was to be likewise set pursuant to the degree of disability: 55%, 40% and 25% respectively (section 20 of the Pensions Act of 1957).

Persons with a firstdegree disability in need of another person's assistance were entitled, in addition to the pension they received, to a further 75% of the amount of the social pension (section 46(2) of the Pensions Act of 1957).

The LEMCs and the CLEMC were established pursuant to the abovementioned Regulation no. 36 under the authority of the Minister of Health (sections 2 and 23 of the Regulation). The LEMCs were responsible for, inter alia, determining the degree of a person's disability (section 13 of the Regulation). The CLEMC heard appeals against decisions of the LEMCs (section 21 of the Regulation).

The presidents and the members of the commissions, who were exclusively medical professionals (section 7a(5) of the Regulation), were remunerated under employment contracts they entered into with the local mayors, the Minister of Health, or the medical directors of the local hospitals (section 7a(2) and (3) of the Regulation).

There were no written rules regulating the procedure before the commissions. Regulation no. 36 provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents, making no provision for witness testimony or other evidence. No hearings were held.

By Article 120 § 2 of the Constitution, all “administrative acts” are subject to judicial review, unless otherwise provided by statute. Section 2 of the Administrative Procedure Act (“the APA”) defines “individual administrative acts” as “acts issued [by public authorities], which create rights or obligations for, or affect rights or legitimate interests of, individuals or legal entities, as well as the refusals to issue such acts”. By sections 33 and 34 of the APA, all “administrative acts”, save those relating to the security of the country or specifically enumerated by statute, are subject to judicial review.

Section 23(c) of the Implementing Regulations of the Labour Code of 1951 provided that the CLEMC's decisions pursuant to appeals by the disabled or the administration were final. So did section 29a of the abovementioned Regulation no. 36 and section 11(2) of the Implementing Regulations of the Pensions Act.

In contrast to the previous practice, in a series of decisions and judgments starting with a reported decision of 4 February 1999 in which it quashed a decision of the Sofia City Court declaring an appeal against the decision of a special medical commission inadmissible, the Supreme Administrative Court started allowing judicial appeals against the decisions of special medical commissions. It reasoned that the general rule under Article 120 § 2 of the Constitution was that administrative acts were subject to judicial review unless otherwise provided by statute. The commissions' decisions affected the individuals' rights and were thus administrative acts within the meaning of Article 120 § 2 of the Constitution and section 2 of the APA. Since the exclusion of judicial review of the commissions' decisions was set out in statutory instruments, it was invalid and their decisions were appealable before a court. In a number of those judgments and decisions the court also relied on Article 6 § 1 of the Convention and, in particular, its access-to-a-court requirement (опред. № 1580 от 4 февруари 1999 г. по адм. д. № 4869/1998 г., ВАС, І о.; опред. № 4491 от 6 август 1999 г. по адм. д. № 937/1999 г., ВАС, І о.; опред. № 446 от 1 февруари 2000 г. по адм. д. № 3513/1999 г., ВАС, І о.; опред. № 3450 от 30 май 2000 г. по адм. д. № 7347/1999 г, ВАС, І о.; реш. № 6475 от 3 юли 2002 г. по адм. д. № 2611/2002 г., ВАС, петчленен състав).

At present section 112(1)(4) of the Health Act of 2004 provides that the decisions of the National Expert Medical Commission (the successor body of the CLEMC) are reviewable by the Sofia City Court.


The applicant, Ms Gabriele Metzger, is a German national who was born in 1957 and lives in Elztal-Dallau. She was represented before the Court by Mr H.-J. Dohmeier, a lawyer practising in Ludwigshafen.

The applicant, an employed bookseller, is a member of the NeckarOdenwald County Council (Kreistag) sitting for the Green party.

On 24 April 1990 she attended as a listener a session of the Billigheim Municipal Council (Gemeinderat), which arranged a public discussion and subsequent vote on the question whether an old people’s home in a residential area of the town should be converted into a foster home for mentally ill persons. A citizens’ initiative with approximately thirty members had been formed by the neighbours of that home and further sympathizers to oppose this project. The members of the initiative argued, inter alia, that neighbours, notably children, would be endangered by the prospective patients, and expressed fear that their real property might lose part of its value. During the public discussion in the Municipal Council, a member of the citizens’ initiative, Ms B., repeated these arguments. The applicant herself supported the conversion project.

Following the session, the applicant was accused in two letters to the editor published in a regional newspaper, the Rhein-Neckar-Zeitung, of having commented Ms B.’s statement by saying in a rather low voice to her neighbour: “But these are Nazis, these are Nazi methods.” Furthermore, she was accused of having said to a group of people belonging to the citizens’ initiative, who were standing close to the town hall after the session: “You Nazis.”

The applicant subsequently instituted civil proceedings in the Mosbach Regional Court both against the four signatories of the letters to the editor and against the editor himself, in the course of which she confirmed in two affidavits that she had never made such statements. On 29 May 1990 the Regional Court granted the applicant an interim injunction prohibiting the defendants to impart the allegation that the applicant had made the impugned statements. On 10 October 1990 the Karlsruhe Court of Appeal quashed the judgment of the Regional Court concerning the editor and dismissed the applicant’s motion for an interim injunction.

Furthermore, on 14 November 1990 the Heidelberg District Court conducted a hearing in proceedings brought by the applicant’s lawyer against the Rhein-Neckar-Zeitung for damages caused by the press coverage concerning the applicant’s alleged statements. In that hearing, the applicant, who testified as a witness, again denied having made the impugned remarks. The District Court subsequently partly allowed the action.

On 2 October 1990 the Mosbach District Court refused to open criminal main proceedings against the applicant for libel. Having regard to the evidence before it, it argued that it was not sufficiently likely that the applicant would be convicted.

Following the public prosecutor’s appeal, the Mosbach Regional Court quashed the judgment of the District Court on 28 December 1990 and opened the main proceedings before the District Court. On 16 July 1991 it allowed the motion of 25 persons to join the proceedings as associated prosecutors (Nebenkläger).

On 21 February 1992 the Mosbach District Court acquitted the applicant of two counts of libel to the detriment of 21 persons, of having made two wrong affidavits (falsche Versicherung an Eides Statt) and of having given false evidence in court (falsche uneidliche Aussage). After having heard twenty-three witnesses, the court came to the conclusion that the applicant had not made the impugned statements. The Public Prosecutor’s Office and 21 associated prosecutors appealed against the judgment.

On 16 June 1993 the Mosbach Regional Court, after having heard most of the witnesses called already by the District Court, quashed the judgment of that court. It convicted the applicant of two counts of libel, of having made two wrong affidavits and of having given false evidence in court and sentenced her to a fine of 4,800 Deutschmarks (DEM) (120 daily rates of DEM 40). She was further ordered to bear the costs of the proceedings. These included the expenses of some DEM 40,000 incurred by the associated prosecutors who had appealed against the District Court’s judgment.

Having assessed the evidence before it, the Regional Court was convinced that the applicant had in fact made the impugned remarks. The court further found that the citizens’ initiative comprised a small group of people whose members were determinable, so that each of these members was affected by the applicant’s remarks.

The court then examined the question whether the applicant’s remark, having regard to her right to freedom of expression guaranteed by Article 5 of the Basic Law, had been justified. It stated that in discussions about vital issues of public interest, there was a presumption that a statement was permitted. Consequently, value judgments were protected under Article 5 even if they were harsh, polemic or exaggerated. However, Article 5 did not cover statements which were aimed at insulting a person in the first place, instead of contributing to the discussion on the subject-matter in dispute. The court found the applicant’s remarks to be falling within that latter category of vituperation (Schmähung) of others. By comparing the members of the citizens’ initiative to Nazis, who had sterilised and killed mentally ill people solely because of their illness, the applicant had severely insulted these persons without having established a direct link to the subject in dispute.

On 25 February 1994 the Karlsruhe Court of Appeal, without giving further reasons, dismissed the applicant’s appeal on points of law against the judgment of the Regional Court as ill-founded.

On 5 August 1999 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged on 5 April 1994. It found that the provision underlying the applicant’s conviction, Section 185 of the Criminal Code, was formulated in a sufficiently precise way, even though not all questions concerning group libel (Kollektivbeleidigung) had already been settled.

The competent criminal courts had not violated the right to freedom of expression. It could be left open whether the impugned remarks had correctly been qualified as vituperation. Even assuming that this was not the case, there was nothing to suggest that, when balancing the competing fundamental rights involved, freedom of expression prevailed.

Pursuant to Section 185 of the Criminal Code, libel is punishable with imprisonment of up to one year or a fine and, if libel has been committed by an assault, with imprisonment of up to two years or a fine.

There is no specific provision in the Criminal Code governing group libel, that is, the defamation of individual members of a group by a statement that only refers to the group as such. Group libel falls to be examined under the general provision of Section 185 of the Criminal Code. According to the well-established case-law of the German courts, notably the Federal Constitutional Court (see, in particular, nos. 1 BvR 1476/91, 1 BvR 1980/91, 1 BvR 102/92 and 1 BvR 221/92, decision of 10 October 1995, Decisions of the Federal Constitutional Court (BVerfGE), vol. 93, pp. 266 et seq., 299-303), it is possible to insult an individual member of a group by a collective term referring to the group as such (Beleidigung unter einer Kollektivbezeichnung), if the insult can be linked to that individual. However, the group must be clearly distinguishable by external signs from the general public, and the victims must be determinable. It is not necessary that the defendant knows every single victim of his defamation.

Pursuant to Section 395 § 1 of the Code of Criminal Procedure, a victim of libel is entitled to join the criminal proceedings against the defendant as an associated prosecutor. Section 472 § 1 of the Code of Criminal Procedure provides that the defendant shall be charged the necessary expenses of an associate prosecutor, if he is convicted for an offence affecting the associate prosecutor. However, the court can wholly or partly abstain from ordering the defendant to pay these expenses, if such an order were inequitable.