Violation of Art. 8;Just satisfaction reserved

The applicant, who is the eldest daughter of Prince Rainier III of Monaco, was born in 1957. Her official residence is in Monaco but she lives in the Paris area most of the time.

As a member of Prince Rainier’s family, the applicant is the president of certain humanitarian or cultural foundations, such as the Princess Grace Foundation or the Prince Pierre of Monaco Foundation, and also represents the ruling family at events such as the Red Cross Ball or the opening of the International Circus Festival. She does not, however, perform any function within or on behalf of the State of Monaco or any of its institutions.

Since the early 1990s the applicant has been trying – often through the courts – in a number of European countries to prevent the publication of photos about her private life in the tabloid press.

The photos that were the subject of the proceedings described below were published by the Burda publishing company in the German magazines Bunte and Freizeit Revue, and by the Heinrich Bauer publishing company in the German magazine Neue Post.

These photos show her with the actor Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence. The first page of the magazine refers to “The most tender photos of her romance with Vincent” (“Die zärtlichsten Fotos Ihrer Romanze mit Vincent”) and the photos themselves bear the caption “These photos are evidence of the most tender romance of our time” (“Diese Fotos sind der Beweis für die zärtlichste Romanze unserer Zeit”).

The first photo shows her on horseback with the caption “Caroline and the blues. Her life is a novel with innumerable misfortunes, says the author Roig” (“Caroline und die Melancholie. Ihr Leben ist ein Roman mit unzähligen Unglücken, sagt Autor Roig”).

The second photo shows her with her children Pierre and Andrea.

The photos are part of an article entitled “I don’t think I could be a man’s ideal wife” (“Ich glaube nicht, dass ich die ideale Frau für einen Mann sein kann”).

The first photo shows her canoeing with her daughter Charlotte, the second shows her son Andrea with a bunch of flowers in his arms.

The third photo shows her doing her shopping with a bag slung over her shoulder, the fourth with Vincent Lindon in a restaurant and the fifth alone on a bicycle.

The sixth photo shows her with Vincent Lindon and her son Pierre.

The seventh photo shows her doing her shopping at the market, accompanied by her bodyguard.

The article is entitled “Pure happiness” (“Vom einfachen Glück”).

These photos show the applicant on a skiing holiday in Zürs/Arlberg. The accompanying article is entitled “Caroline... a woman returns to life” (“Caroline... eine Frau kehrt ins Leben zurück”).

Seven photos show her with Prince Ernst August von Hannover at a horse show in Saint-Rémy-de-Provence. The accompanying article is entitled “The kiss. Or: they are not hiding anymore” (“Der Kuss. Oder: jetzt verstecken sie sich nicht mehr”).

Four other photos show her leaving her house in Paris with the caption “Out and about with Princess Caroline in Paris” (“Mit Prinzessin Caroline unterwegs in Paris”).

These photos show the applicant on the front page with Prince Ernst August von Hannover and on the inside pages of the magazine playing tennis with him or both putting their bicycles down.

The sequence of photos published in Neue Post magazine (issue no. 35/97) shows the applicant at the Monte Carlo Beach Club, dressed in a swimsuit and wrapped up in a bathing towel, tripping over an obstacle and falling down. The photos, which are quite blurred, are accompanied by an article entitled “Prince Ernst August played fisticuffs and Princess Caroline fell flat on her face” (“Prinz Ernst August haute auf den Putz und Prinzessin Caroline fiel auf die Nase”).

On 13 August 1993 the applicant sought an injunction in the Hamburg Regional Court (Landgericht) against any further publication by

the Burda publishing company of the first series of photos on the ground that they infringed her right to protection of her personality rights (Persönlichkeitsrecht), guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law (Grundgesetz), and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act (Kunsturhebergesetz – “the Copyright Act” – see paragraphs 40-41 below).

In a judgment of 4 February 1993, the Regional Court granted the application only in respect of the distribution of the magazines in France, in accordance with the rules of private international law (section 38 of the Introductory Act to the Civil Code – Einführungsgesetz in das bürgerliche Gesetzbuch) read in conjunction with Article 9 of the French Civil Code.

With regard to the distribution of the magazines in Germany, however, the Regional Court reiterated that it was German law which applied. Under section 23(1) no. 1 of the Copyright Act, the applicant, as a figure of contemporary society “par excellence” (eine “absolute” Person der Zeitgeschichte), had to tolerate this kind of publication.

The Regional Court held that she had failed to establish a legitimate interest (berechtigtes Interesse) justifying an injunction against further publication because, where figures of contemporary society “par excellence” were concerned, the right to protection of private life stopped at their front door. All the photos of the applicant had been taken exclusively in public places.

The applicant appealed against that judgment.

In a judgment of 8 December 1994, the Hamburg Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal and set aside the injunction against subsequent publications in France.

Indeed, like the Regional Court, the Court of Appeal found that the applicant was a contemporary figure “par excellence” and therefore had to tolerate publication without her consent of the photos in question, which had all been taken in public places. Even if the constant hounding by photographers made her daily life difficult, it arose from a legitimate desire to inform the general public.

The applicant appealed on points of law against that judgment.

In a judgment of 19 December 1995, the Federal Court of Justice (Bundesgerichtshof) allowed the applicant’s appeal in part, granting her an injunction against any further publication of the photos that had appeared in Freizeit Revue magazine (issue no. 30 of 22 July 1993) showing her with Vincent Lindon in a restaurant courtyard on the ground that the photos interfered with her right to respect for her private life.

The Federal Court held that even figures of contemporary society “par excellence” were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos. Outside their home, however, they could not rely on the protection of their privacy unless they had retired to a secluded place – away from the public eye (in eine örtliche Abgeschiedenheit) – where it was objectively clear to everyone that they wanted to be alone and where, confident of being away from prying eyes, they behaved in a given situation in a manner in which they would not behave in a public place. Unlawful interference with the protection of that privacy could therefore be made out if photos were published that had been taken secretly and/or by catching unawares a person who had retired to such a place. That was the position here, where the applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the clear aim of being out of the public eye.

However, the Federal Court dismissed the remainder of her appeal on the ground that, as a figure of contemporary society “par excellence”, the applicant had to tolerate the publication of photos in which she appeared in a public place even if they were photos of scenes from her daily life and not photos showing her exercising her official functions. The public had a legitimate interest in knowing where the applicant was staying and how she behaved in public.

The applicant then appealed to the Federal Constitutional Court (Bundesverfassungsgericht), submitting that there had been an infringement of her right to the protection of her personality rights (Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law).

In the applicant’s submission, the criteria established by the Federal Court of Justice regarding the protection of privacy in respect of photos taken in public places did not effectively protect the free development of the personality, be it in the context of private life or family life. Those criteria were so narrow that in practice the applicant could be photographed at any time outside her home and the photos subsequently published in the media.

Given that the photos were not used genuinely to inform people, but merely to entertain them, the right to control the use of one’s image in respect of scenes from private life, which had been recognised by the case-law of the Federal Constitutional Court, prevailed over the right – also guaranteed by the Basic Law – to freedom of the press.

In a landmark judgment of 15 December 1999, delivered after a hearing, the Constitutional Court allowed the applicant’s appeal in part on the ground that the publication of the three photos in issues nos. 32 and 34 of Bunte magazine, dated 5 August 1993 and 19 August 1993, featuring the applicant with her children had infringed her right to the protection of her personality rights guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, reinforced by her right to family protection under Article 6 of the Basic Law. It referred the case to the Federal Court of Justice on that point. However, the Constitutional Court dismissed the applicant’s appeal regarding the other photos.

The relevant extract of the judgment reads as follows:

“The appeal is well-founded in part.

II.

The decisions being appealed do not fully satisfy the requirements of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law.

The provisions of sections 22 and 23 of the KUG [Kunsturhebergesetz – Copyright Act] on which the civil courts based their decisions in the present case are, however, compatible with the Basic Law.

Under Article 2 § 1 of the Basic Law, general personality rights are guaranteed only within the framework of the constitutional order. The provisions concerning the publication of photographical representations of persons listed in sections 22 and 23 of the KUG are part of that constitutional order. They derive from an incident which at the time caused a scandal (photos of Bismarck on his deathbed ...) and from the ensuing politico-legal debate sparked off by this incident ..., and aim to strike a fair balance between respect for personality rights and the community’s interest in being informed ...

Under section 22, first sentence, of the KUG, pictures can only be disseminated or exposed to the public eye with the express approval of the person represented. Pictures relating to contemporary society are excluded from that rule under section 23(1) of the KUG ... Under section 23(2) of the KUG, however, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The protection by degrees under these rules ensures that they take account of the need to protect the person being represented as well as the community’s desire to be informed and the interest of the media which satisfy that desire. That much has already been established by the Federal Constitutional Court ...

(b) In the instant case regard must be had, in interpreting and applying sections 22 and 23 of the KUG, not only to general personality rights, but also to the freedom of the press guaranteed by Article 5 § 1, second sentence, of the Basic Law in so far as the provisions in question also affect those freedoms.

The fact that the press fulfils the function of forming public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinions and entertainment are not opposites. Entertainment also plays a role in the formation of opinions. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment (‘infotainment’). Consequently, many readers obtain information they consider to be important or interesting from entertaining coverage ...

Nor can mere entertainment be denied any role in the formation of opinions. That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement, relaxation, escapism or diversion. Entertainment can also convey images of reality and propose subjects for debate that spark off a process of discussion and assimilation relating to philosophies of life, values and behaviour models. In that respect, it fulfils important social functions ... When measured against the aim of protecting press freedom, entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of application of fundamental rights ...

The same is true of information about people. Personalisation is an important journalistic means of attracting attention. Very often it is this which first arouses interest in a problem and stimulates a desire for factual information. Similarly, interest in a particular event or situation is usually stimulated by personalised accounts. Additionally, celebrities embody certain moral values and lifestyles. Many people base their choice of lifestyle on their example. They become points of crystallisation for adoption or rejection and act as examples or counter-examples. This is what explains the public interest in the various ups and downs occurring in their lives.

As regards politicians, this public interest has always been deemed to be legitimate from the point of view of transparency and democratic control. Nor can it in principle be disputed that it exists in respect of other public figures. To that extent it is the function of the press to show people in situations that are not limited to specific functions or events and this also falls within the sphere of protection of press freedom. It is only when a balancing exercise has to be done between competing personality rights that an issue arises as to whether matters of essential interest for the public are involved and treated seriously and objectively or whether private matters, designed merely to satisfy the public’s curiosity, are being disseminated ...

(c) The decision of the Federal Court of Justice largely stands up to an examination of its compatibility with the constitutional rules.

(aa) The Federal Court of Justice cannot be criticised under constitutional law for assessing the conditions of application [Tatbestandsvoraussetzungen] of section 23(1) no. 1 of the KUG according to the criterion of the community’s interest in being informed and deciding on that basis that the photos showing the appellant outside her representative function in the Principality of Monaco were lawful.

Under section 23(1) no. 1 of the KUG, the publication of pictures portraying an aspect of contemporary society are exempted from the obligation to obtain the consent of the person concerned within the meaning of section 22 of the KUG. Judging from the drafting history of the Act ... and from the meaning and purpose of the words used, the provision in question takes into consideration the community’s interest in being informed and the freedom of the press. Accordingly, the interpretation of this element [Tatbestandsmerkmal] must take account of the interests of the public. Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public: they require the prior consent of the person concerned. The other element that is affected by fundamental rights, that of a ‘legitimate interest’ for the purposes of section 23(2) of the KUG, concerns only – and this must be stressed at the outset – figures of contemporary society and cannot therefore take sufficient account of the interests of the freedom of the press if these have previously been neglected when the circle of the persons concerned was defined.

It is in keeping with the importance and scope of the freedom of the press, and not unreasonably restrictive of the protection of personality rights, that the concept of contemporary society referred to in section 23(1) no. 1 of the KUG should not only cover, in accordance with a definition given by the courts, events of historical or political significance, but be defined on the basis of the public interest in being informed ... The kernel of press freedom and the free formation of opinions requires the press to have, within legal limits, sufficient margin of manoeuvre to allow it to decide, in accordance with its publishing criteria, what the public interest demands, and the process of forming opinion to establish what amounts to a matter of public interest. As has been stated, entertaining coverage is no exception to these principles.

Nor should the Federal Court of Justice be criticised for including in the ‘domain of contemporary society’, within the meaning of section 23(1) no. 1 of the KUG, pictures of people who have not only aroused public interest at a certain point on the occasion of a particular historical event but who, on account of their status and importance, attract the public’s attention in general and not just on the odd occasion. Account should also be taken in this regard of the fact that, compared to the situation at the time the Copyright Act was passed, increased importance is given today to illustrated information. The concept of a ‘figure of contemporary society “par excellence” ’ [‘absolute’ Person der Zeitgeschichte], often employed in this respect in the case-law and legal theory, does not conclusively derive from statute or the Constitution. If, as was done by the Court of Appeal and the Federal Court of Justice, it is interpreted as a shortened expression designating people whose image is deemed by the public to be worthy of respect out of consideration for the people concerned, it is irreproachable from the point of view of constitutional law at least as long as a balancing exercise is carried out between the public’s interest in being informed and the legitimate interests of the person concerned.

General personality rights do not require publications that are not subject to prior consent to be limited to pictures of figures of contemporary society in the exercise of their function in society. Very often the public interest aroused by such figures does not relate exclusively to the exercise of their function in the strict sense. It can, on the contrary, by virtue of the particular function and its impact, extend to information about the way in which these figures behave generally – that is, also outside their function – in public. The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements.

If, on the other hand, the right to publish pictures of people considered to be figures of contemporary society were to be limited to their official functions, insufficient account would be taken of the public interest properly aroused by such figures and this would, moreover, favour a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of socio-political life, having regard to the function of role model of such figures and the influence they exert. The press is not, however, allowed to use every picture of figures of contemporary society. On the contrary, section 23(2) of the KUG gives the courts adequate opportunity to apply the protective provisions of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law ...

(bb) In theory the criteria established by the Federal Court of Justice for interpreting the concept of ‘legitimate interest’ used in section 23(2) of the KUG are irreproachable from the point of view of constitutional law.

According to the decision being appealed, the privacy meriting protection that must also be afforded to ‘figures of contemporary society “par excellence” ’ presupposes that they have retired to a secluded place with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public. The Federal Court of Justice accepted that there had been a breach of sections 22 and 23 of the KUG where this type of picture was taken secretly or by catching the person unawares.

The criterion of a secluded place takes account of the aim, pursued by the general right to protection of personality rights, of allowing the individual a sphere, including outside the home, in which he does not feel himself to be the subject of permanent public attention – and relieves him of the obligation of behaving accordingly – and in which he can relax and enjoy some peace and quiet. This criterion does not excessively restrict press freedom because it does not impose a blanket ban on pictures of the daily or private life of figures of contemporary society, but allows them to be shown where they have appeared in public. In the event of an overriding public interest in being informed, the freedom of the press can even, in accordance with that case-law authority, be given priority over the protection of the private sphere ...

The Federal Court of Justice properly held that it is legitimate to draw conclusions from the behaviour adopted in a given situation by an individual who is clearly in a secluded spot. However, the protection against dissemination of photos taken in that context does not only apply where the individual behaves in a manner in which he would not behave in public. On the contrary, the development of the personality cannot be properly protected unless, irrespective of his behaviour, the individual has a space in which he can relax without having to tolerate the presence of photographers or cameramen. That is not in issue here, however, since, according to the findings on which the Federal Court of Justice based its decision, the first of the conditions to which protection of private life is subject has not been met.

Lastly, there is nothing unconstitutional, when balancing the public interest in being informed against the protection of private life, in attaching importance to the method used to obtain the information in question ... It is doubtful, however, that the mere fact of photographing the person secretly or catching them unawares can be deemed to infringe their privacy outside the home. Having regard to the function attributed to that privacy under constitutional law and to the fact that it is usually impossible to determine from a photo whether the person has been photographed secretly or caught unawares, the existence of unlawful interference with that privacy cannot in any case be made out merely because the photo was taken in those conditions. As, however, the Federal Court of Justice has already established in respect of the photographs in question that the appellant was not in a secluded place, the doubts expressed above have no bearing on the review of its decision.

(cc) However, the constitutional requirements have not been satisfied in so far as the decisions of which the appellant complains did not take account of the fact that the right to protection of personality rights of persons in the appellant’s situation is strengthened by Article 6 of the Basic Law regarding those persons’ intimate relations with their children.

(dd) The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question:

The decision of the Federal Court of Justice cannot be criticised under constitutional law regarding the photos of the appellant at a market, doing her shopping at a market accompanied by her bodyguard or dining with a male companion at a well-attended restaurant. The first two cases concerned an open location frequented by the general public. The third case admittedly concerned a well-circumscribed location, spatially speaking, but one in which the appellant was exposed to the other people present. It is for this reason, moreover, that the Federal Court of Justice deemed it legitimate to ban photos showing the appellant in a restaurant garden, which were the subject of the decision being appealed but are not the subject of the constitutional appeal. The presence of the appellant and her companion there presented all the features of seclusion. The fact that the photographs in question were evidently taken from a distance shows that the appellant could legitimately have assumed that she was not exposed to public view.

Nor can the decision being appealed be criticised regarding the photos of the appellant alone on horseback or riding a bicycle. In the Federal Court of Justice’s view, the appellant had not been in a secluded place, but in a public one. That finding cannot attract criticism under constitutional law. The appellant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone. In accordance with the criteria set out above, the mere desire of the person concerned is not relevant in any way.

The three photos of the appellant with her children require a fresh examination, however, in the light of the constitutional rules set out above. We cannot rule out the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for one or other or all the photos. The decision must therefore be set aside in that respect and remitted to the Federal Court of Justice for a fresh decision.

(d) The decisions of the Regional Court and the Court of Appeal resulted in a violation of fundamental rights by limiting to the home the privacy protected by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law in accordance, moreover, with a rationale that was in keeping with the case-law at the time. The decisions in question do not need to be set aside, however, since the violation complained of has been remedied in part by the Federal Court of Justice and the remainder of the case remitted to that court.

Following the remittal of the case to the Federal Court of Justice in connection with the three photos that had appeared in Bunte magazine (issue no. 32 of 5 August 1993 and no. 34 of 19 August 1993) showing the applicant with her children, the Burda publishing company undertook not to republish the photos (Unterlassungserklärung).

On 14 May 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Burda publishing company from republishing the second series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright Act.

In a judgment of 26 September 1997, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice’s judgment of 19 December 1995.

The applicant appealed against that judgment.

In a judgment of 10 March 1998, the Hamburg Court of Appeal dismissed the applicant’s appeal for the same reasons.

As the Court of Appeal did not grant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions.

In a decision of 4 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice’s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999.

On 5 November 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Heinrich Bauer publishing company from republishing the third series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and the right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act.

The applicant submitted, among other things, a sworn attestation by the director of the Monte Carlo Beach Club to the effect that the swimming baths in question were a private establishment, access to which was subject to a high fee and strictly controlled and from which journalists and photographers were debarred unless they had the express permission of the owner of the establishment. The fact that the photos were very blurred showed that they had been taken secretly, at a distance of several hundred metres, from the window or roof of a neighbouring house.

In a judgment of 24 April 1998, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice’s judgment of 19 December 1995. The court stated that the Monte Carlo Beach Club had to be considered as an open-air swimming pool that was open to the public, even if an entry fee was charged and access restricted.

In a judgment of 13 October 1998, the Hamburg Court of Appeal dismissed the applicant’s appeal for the same reasons.

The Court of Appeal found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling down were not such as to denigrate or demean her in the public’s eyes.

As the Court of Appeal did not grant the applicant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions.

In a decision of 13 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice’s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999.

The Constitutional Court held that the ordinary courts had properly found that the Monte Carlo Beach Club was not a secluded place and that the photos of the applicant wearing a swimsuit and falling down were not capable of constituting an infringement of her right to respect for her private life.

II. RELEVANT DOMESTIC AND EUROPEAN LAW

The relevant provisions of the Basic Law are worded as follows:

“The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.”

“Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [Sittengesetz].”

“1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.

These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [Recht der persönlichen Ehre].”

“1. Marriage and the family enjoy the special protection of the State.

The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them. The State community shall oversee the performance of that duty.”

Section 22(1) of the Copyright (Arts Domain) Act provides that images can only be disseminated with the express approval of the person concerned.

Section 23(1) no. 1 of that Act provides for exceptions to that rule, particularly where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication does not interfere with a legitimate interest (berechtigtes Interesse) of the person concerned (section 23(2)).

The full text of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, is worded as follows:

“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.

On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.

In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media.

The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’.

In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition.

The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.

Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.

Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.

The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.

The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.

The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines:

(i) the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;

(ii) editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;

(iii) when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;

(iv) economic penalties should be envisaged for publishing groups which systematically invade people’s privacy;

(v) following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;

(vi) a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘visual or auditory enhancement devices’ to capture recordings that they otherwise could not have captured without trespassing;

(vii) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;

(viii) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published.

It invites those governments which have not yet done so to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

The Assembly also calls upon the governments of the member states to:

(i) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct;

(ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole;

(iii) foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users’ awareness of what the right to privacy necessarily entails;

(iv) facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims’ rights are better protected.”


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides

The first applicant was born in 1955 and lives in Dillenburg, a town situated in the Federal Republic of Germany. The second applicant lives in Weissenburg, also situated in the Federal Republic of Germany.

On 7 August 1998 at 10.30 a.m. the car of which the applicant is the registered keeper was recorded by a radar speed detector as exceeding the speed limit by 17 k.p.h.

On 12 October 1998 the Deutschlandsberg District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant to disclose within two weeks the full name and address of the person who had been driving his car at the material time and place on 7 August 1998. It noted that an administrative offence had been committed by the driver of the car. The order referred to section 103(2) of the Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis.

On 25 October 1998 the applicant replied that, on the date at issue, he had been on holiday with some friends and could not remember who had been driving the car at the material time.

On 9 November 1998 the District Administrative Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103(2) and 134(1) of the Motor Vehicles Act to pay a fine of 1,500 Austrian schillings (ATS) with two days’ imprisonment in default. It found that the applicant had failed to give the requested information.

On 29 December 1998 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) confirming its previous decision.

The applicant appealed on 20 January 1999, submitting in particular that he had not given any false information but had replied as best as he could. In any case, the obligation under section 103(2) of the Motor Vehicles Act to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention.

On 1 March 1999 the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant’s appeal. It noted in particular that the registered car keeper did not only act contrary to section 103(2) of the Road Traffic Act if he gave false information, but also if he provided incomplete information or no information at all. If need be he was obliged to keep records of the names and addresses of persons who had been driving his car. The applicant had failed to give the information requested by the District Administrative Authority’s order of 12 October 1998. As to the applicant’s complaint that the obligation to disclose the identity of the driver of his car at a given time violated his right not to incriminate himself, the Panel observed that the relevant sentence in section 103(2) had constitutional rank. In this connection it referred to the Constitutional Court’s judgment of 29 September 1988 (see paragraph 32 below).

On 8 June 1999 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant’s complaint. Referring to its judgment of 29 September 1988, it considered that the applicant’s complaint about an alleged violation of his right not to incriminate himself did not offer sufficient prospects of success.

On 5 August 1999 the Administrative Court (Verwaltungs-gerichtshof) refused to deal with the applicant’s complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake. This decision was served on the applicant on 26 August 1999.

No proceedings for speeding were brought against the applicant.

On 25 August 1998 at 3 p.m. the car of which the applicant is the registered keeper was parked illegally in a street in the seventh district of Vienna.

On 3 November 1998 the Vienna Municipal Authority (Magistratsabteilung der Stadt Wien) issued a provisional penal order against the applicant for parking contrary to the provisions of the Vienna Parking Meter Act (Wiener Parkometergesetz) and sentenced him to pay a fine of ATS 500 Austrian schillings with twelve hours’ imprisonment in default.

The applicant filed an objection against this decision. Consequently, the provisional penal order became invalid in accordance with section 49(2) of the Act on Administrative Offences (Verwaltungsstrafgesetz). However, the criminal proceedings against the applicant relating to the offence of illicit parking remained pending.

On 28 December 1998, the Vienna Municipal Authority ordered the applicant pursuant to section 1a of the Vienna Parking Meter Act to disclose within two weeks the full name and address of the person who had parked his car on 25 August 1998 at the above-mentioned place. It noted that an offence under the said Act, namely illicit parking in a short-term parking area, had been committed. The order informed the applicant that failure to provide the information or any incomplete or belated giving of information constituted an offence by virtue of section 1a taken in conjunction with section 4(2) of the Vienna Parking Meter Act. The applicant did not reply.

On 3 March 1999 the Vienna Municipal Authority issued a provisional penal order sentencing the applicant under section 1a taken together with Section 4 § 2 of the Vienna Parking Meter Act to pay a fine of ATS 500 with twelve hours’ imprisonment in default for failure to disclose the identity of the driver of his car.

The applicant lodged an objection against this decision.

On 10 June 1999 the Vienna Municipal Authority dismissed the applicant’s objection and issued a penal order confirming its previous decision.

The applicant appealed on 6 July 1999 submitting, in particular, that the imposition of a fine for failure to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention.

On 6 September 1999 the Vienna Independent Administrative Panel dismissed the applicant’s appeal. It noted in particular that the registered car keeper’s obligation to disclose the identity of the driver of his car pursuant to section 1a of the Vienna Parking Meter Act had to be read in conjunction with Article II of Federal Law no. 384/1986, which provided that the authority’s right to require information shall take precedence over the right to refuse to give information. This provision had constitutional rank and was comparable to the last sentence of section 103(2) of the Motor Vehicles Act.

On 1 February 2000 the Vienna Municipal Authority informed the applicant that the criminal proceedings against him for illicit parking had been discontinued.

On 6 March 2000 the Constitutional Court refused to deal with the applicant’s complaint. Having regard to its case-law relating to section 103(2) of the Motor Vehicles Act, it found that the applicant’s complaint did not offer sufficient prospects of success.

On 15 May 2000 the Administrative Court refused to deal with the applicant’s complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake.

Section 103(2) of the Motor Vehicles Act, as amended in 1986, (Kraftfahrgesetz) provides as follows:

“The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to verify’s right to require such information shall take precedence over the right to refuse to give information.”

The last sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985, quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits, inter alia, that a suspect be obliged on pain of a fine to incriminate himself.

In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103(2) of the Motor Vehicles Act, as amended in 1986, were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the last sentence of that provision, which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the last sentence of section 103(2) was contrary to the guiding principles of the constitution, but had found that this was not the case.

Section 134(1) of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000, or up to six weeks’ imprisonment in default, could be imposed on a person who violates the regulations of that Act.

The Vienna Parking Meter Act regulates the levying of parking fees in specified “short-term parking areas”.

The relevant part of section 1a of the Vienna Parking Meter Act reads as follows:

“(1) The registered keeper of a motor vehicle ... has, if the motor vehicle has been parking in a short-term parking area liable to a fee, to inform the Municipal Authority to whom he has left the motor vehicle ... at a certain time.

(2) The information, which must include the name and address of the person concerned, is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept.”

According to section 4(2) of the Vienna Parking Meter Act, in the version in force at the material time, a fine of up to ATS 3,000 could be imposed for a failure to comply with the obligation laid down in Section 1a.

The relevant part of Article II of Federal Law no. 384/1986 reads as follows:

“Where the Länder, in regulating the levying of fees for the parking of motor vehicles ... oblige the registered keeper ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time, the authority’s right to require such information shall take precedence over the right to refuse to give information.”

This provision was enacted as a provision of constitutional rank.

Pursuant to section 5 of the Act on Administrative Offences (Verwaltungsstrafgesetz) any administrative criminal offence may be committed by negligence, unless provided otherwise.

Pursuant to section 16 of that Act an administrative fine is to be accompanied by a default prison term of up to fourteen days’ imprisonment, unless provided otherwise. The enforcement of a default prison term is regulated by section 54b of the Act on Administrative Offences. It is only admissible if it is established that the fine is not recoverable. The competent authority has to conduct enforcement proceedings, in which the person concerned has the possibility to request a stay of the payment or payment by instalments. Only if the enforcement of the fine proves to be unsuccessful can an order for the enforcement of the default prison term be made. The order must inform the person concerned that payment of the fine can be made at any time in order to avert the execution of the default prison term.


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant, Mr Vladislav Šimka, is a Slovak national who was born in 1956 and lives in Bratislava. He was represented before the Court by Ms V. Strážnická, a lawyer practising in Bratislava.

The applicant held the post of Head of Service Office (vedúci služobného úradu) at the Ministry of the Interior.

On 1 June 2005 the President of the State Civil Service Office (Úrad pre štátnu službu) removed the applicant from that post with effect from 2 June 2005, with reference to section 10(4) and (11)(d) as well as section 27(e) of the State Civil Service Act 2001. The decision indicated that it had been taken at the behest of the Minister of the Interior.

Subsequently the applicant declined the offer of a transfer to a different position within the Ministry of the Interior.

On 8 June 2005 the Ministry of the Interior issued a decision indicating that the applicant had lost the status of State civil servant on that day.

On 15 June 2005 the applicant appealed against the decisions of 1 June 2005. He argued that neither the decision nor the Minister’s letter to which it referred gave any reasons for his removal. The decision interfered with his fundamental rights and was discriminatory. In particular, section 10(11)(d) of the State Civil Service Act 2001 allowed for removal of the then thirteen heads of different ministries Offices solely on the recommendation of the Minister concerned. However, some 40,000 State civil servants holding different posts could only be removed for reasons provided for by the law. The decision to remove the applicant without justification was also contrary to the principles underlying the Administrative Proceedings Act 1967.

On 21 June 2005 the applicant appealed against the decision terminating his status as State civil servant. He gave reasons for his appeal against the decision.

On 29 June and 24 August 2005 respectively the President of the State Civil Service Office dismissed both the applicant’s appeals. Those decisions stated that under section 10(11)(d) of the State Civil Service Act 2001 the President of the State Civil Service Office was obliged to remove the head of a ministry office at the behest of the Minister concerned. There was no requirement for reasons to be given for such a recommendation. The subsequent termination of the applicant’s status as State civil servant conformed to section 40(2)(c) of the State Civil Service Act 2001.

On 30 August 2005 the applicant brought an action with the Supreme Court. He sought a review of the administrative decisions of 1 June and 29 June 2005 removing him from the post of Head of Office at the Ministry of the Interior. He argued that he had been discriminated against in that he had been removed without reasons being given. The applicant proposed that the Supreme Court should stay the proceedings on his action and request the Constitutional Court to examine the conformity of section 10(11)(d) of the State Civil Service Act 2001 with, inter alia, Article 36(b) of the Constitution, Article 14 of the Convention, and directives of the European Union.

On 28 September 2005 the Supreme Court transferred the case to the Bratislava Regional Court for reasons of jurisdiction.

On 30 July 2007 the Bratislava Regional Court stayed the proceedings, as it considered the relevant provision of the State Civil Service Act 2001 to run contrary to the Constitution and Article 14 of the Convention. It referred that issue for determination by the Constitutional Court.

On 9 April 2008 the Constitutional Court discontinued the proceedings, because section 10(11)(d) of the State Civil Service Act 2001 had been repealed with effect from 1 January 2007. The decision stated that the Constitutional Court’s power to review conformity of legal rules with the Constitution extended exclusively to those rules which were actually in force. Three constitutional judges attached a dissenting opinion to that conclusion.

On 2 October 2008 the Bratislava Regional Court dismissed the applicant’s action. It found that the applicant had been removed at the behest of the Minister of the Interior pursuant to section 10(11)(d) of the State Civil Service Act 2001, as in force at the relevant time. There had been no breach of the applicable law in that context.

The applicant appealed. He noted that the Regional Court itself had expressed the view that the provision under which the applicant had been removed ran contrary to the Constitution and international treaties by which Slovakia was bound. In the absence of a decision of the Constitutional Court on conformity with the Constitution of the relevant legal rule, the issue fell to be determined by the ordinary court dealing with the case. To proceed in a different manner would amount to a denial of justice.

On 21 October 2009 the Supreme Court upheld the first-instance judgment. It held that the applicant’s removal from post had been in accordance with the law. The ordinary courts within the administrative judiciary were not called upon to determine conflicts of law. Their role was restricted to examining whether administrative decisions complied with applicable law.

On 13 September 2005 the applicant brought an action with the Supreme Court in which he challenged the decisions of 8 June and 24 August 2005 terminating his status as civil servant. With reference to the reasons for his action of 30 August 2005 seeking review of the administrative decisions, the applicant argued that the contested decisions were unlawful and contrary to the Constitution and international treaties by which Slovakia was bound. As in his previous action, the applicant asked for the proceedings to be stayed and for the Constitutional Court to be petitioned for a review of the constitutionality of the relevant provision of the State Civil Service Act 2001.

On 26 October 2005 the Supreme Court transferred the case to the Bratislava Regional Court for reasons of jurisdiction.

On 2 October 2008 the Regional Court dismissed the action. It noted that, following his removal as Head of Office at the Ministry of the Interior, the applicant had been offered three different posts at that Ministry. After he had declined those offers, his status as State civil servant had been terminated pursuant to section 40(2)(c) of the State Civil Service Act 2001. There had been no breach of the applicable law in that context.

On 30 October 2008 the applicant appealed. He argued that his removal from the position of Head of Office had been unlawful and that judicial proceedings concerning that issue were pending. The applicant asked for the proceedings to be discontinued pending the final determination of the action concerning the lawfulness of his removal.

On 21 October 2009 the Supreme Court upheld the first-instance judgment. With reference to the reasons for its judgment of 21 October 2009 it concluded that the applicant’s status as civil servant had been terminated in accordance with the law.

On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. He alleged that the Supreme Court’s two judgments of 21 October 2009 breached his rights under Articles 6 § 1 and 14 of the Convention, as well as their constitutional equivalents, and also his right under Article 36b of the Constitution to protection against arbitrary dismissal and discrimination in employment. In particular, the applicant asserted that the ordinary courts had decided arbitrarily, while disregarding the discriminatory nature of the legal provision pursuant to which he had been removed.

On 5 February 2010 the Constitutional Court dismissed the complaint. It noted that the primary issue was conformity of the relevant statutory provision with the Constitution and international treaties. However, such decisions lay within the power of the Constitutional Court in plenary session, and they could not be addressed in the context of individual complaints under Article 127 of the Constitution. In those circumstances, both the Constitutional Court and the ordinary courts were bound by the presumption that the relevant statutory provision was in conformity with the Constitution.

The Constitutional Court concluded that in the judgments complained of the Supreme Court had given relevant reasons for its conclusions which were not arbitrary.

Article 7 § 5 provides, inter alia, that international treaties on human rights ratified and promulgated in accordance with the law take precedence over laws.

Article 36(b) guarantees protection for employees against arbitrary dismissal and discrimination.

Pursuant to Article 125 § 1(a), the Constitutional Court decides on conformity of laws with the Constitution, constitutional laws, and international treaties approved by the National Council which have been duly ratified and promulgated.

Article 127 § 1 entitles the Constitutional Court to decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by Slovakia, unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

Article 144 § 1 provides for independence of judges in the exercise of their function. When deciding on cases judges are bound by the Constitution, constitutional laws and international treaties referred to, inter alia, in Article 7 § 5 of the Constitution and laws.

Pursuant to Article 144 § 2, where a court considers that a legally binding legal rule or a part thereof bearing on the matter before it is contrary to the Constitution, a constitutional law, an international treaty within the meaning of Article 7 § 5, or a law, it is to stay the proceedings and petition for proceedings to be brought under Article 125 § 1 of the Constitution. The legal opinion set out in the Constitutional Court’s decision is binding on the court concerned.

Under Article 152 § 4, the interpretation and application of constitutional laws, laws and other generally binding legal rules must conform to the Constitution.

Pursuant to Article 109 § 1(b), a court stays proceedings where, before determination of the merits, it concludes that the generally binding legal rule bearing on the case before it is contrary to the Constitution, a law, or an international treaty by which Slovakia is bound. In such an event it petitions the Constitutional Court for determination of that issue.

At the material time the relevant provisions of the State Civil Service Act 2001 (Zákon o štátnej službe a zmene niektorých zákonov) provided as follows.

Pursuant to section 1(1), the purpose of the Act is to govern legal relations in the context of the State civil service, namely the rights and obligations of the State and the civil servant in that context. Subsection 2 of section 1 lists professionalism, political independence and impartiality among the principles on which the State civil service is built.

Section 7(1)(a) lists ministries and other central State administration bodies as “service offices” (služobný úrad) for the purpose of the Act.

Pursuant to section 10(1), the head of a service office is the hierarchical superior of all the employees working in that service office. Subsection 3 of section 10 provides for appointment of heads of service offices at ministries at the behest of the minister concerned from among applicants who have been successful in the selection process.

Section 10(11) provides for dismissal of a head of a service office at a ministry in the following cases:

(a) failure to meet objectives set;

(b) inability, for health reasons, to carry out the required duties for more than six months;

(c) at his or her own written request;

(d) on the Minister’s written recommendation; and

(e) where the service office concerned has ceased to exist.

Sub-section 12 of section 10 provides for a head of a service office who has been removed to be transferred to a different appropriate civil service post unless a different agreement is reached.

Section 40(2)(c) allows for termination of a person’s status as a State civil servant where a head of a service office who has been removed cannot be transferred to an equivalent post because no such equivalent post exists, and where no other agreement has been reached. Two months’ salary is to be paid to the person concerned in such a case.

With effect from 1 January 2007 the State Civil Service Act 2001 was amended in that, inter alia, subsections 9 to 13 were deleted from section 10. The reports accompanying the draft amendments indicated that their purpose was to eliminate shortcomings resulting from earlier amendments and to harmonise the removal of heads of service offices who fell under the direct managerial responsibility of politically nominated superiors at ministries and other central authorities of the State administration.


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

The applicants, Ms Khalisat Daytbegova and Ms Mariat Magomedova, are Russian nationals who were born in 1967 and 1997 respectively and live in Semriach. They are mother and daughter and are represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna.

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

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

The applicants travelled to Austria via Italy, with the first applicant’s son, born in 2002, and lodged an asylum request there on 23 June 2011. The applicants had not lodged an asylum request in Italy, but they had held a visa for entry into the country, which was valid from 18 to 25 June 2011.

At the request of the Austrian authorities Italy accepted jurisdiction with regard to the applicants’ asylum proceedings, pursuant to Council Regulation (EC) No 343/2003 (hereinafter “the Dublin Regulation”).

In the course of the Austrian proceedings the first applicant claimed to fear refoulement from Italy to Dagestan and lack of access to medical treatment in Italy. Her whole family, with the exception of the youngest boy, was suffering from depression. The second applicant in particular was very ill, uncommunicative, and suffered from headaches. The first applicant claimed that her husband was registered as a suspect with the Russian military services. As a result, he had gone into hiding in the mountains. The first applicant and her family had been repeatedly threatened, to induce them to disclose the whereabouts of her husband’s hiding place.

On 26 August 2011 the Federal Asylum Office (Bundesasylamt) rejected the asylum requests in line with section 5 of the 2005 Asylum Act (Asylgesetz 2005) in conjunction with Article 9 § 2 of the Dublin Regulation, and ordered the applicants’ transfer to Italy.

On 26 September 2011 the Asylum Court (Asylgerichtshof) quashed those decisions and noted that the statements made by the Federal Asylum Office regarding the health of the second applicant were insufficient and that the authority had failed to establish that the second applicant was fit to be transferred to Italy (Überstellungsfähigkeit). Furthermore, the authority had failed to evaluate information regarding access to medical treatment in Italy. Finally, since the applicants must be considered vulnerable persons, the authority needed to get assurances from the Italian authorities regarding housing, related support and access to medical treatment.

On 16 November 2011 the Italian Ministry of Internal Affairs responded to the Austrian request for information concerning the reception conditions by stating in general terms that the reception and lodging of asylum seekers in Italy was guaranteed in governmental asylum centres (CARA or SPRAR). It was further especially referred to the fact that Italy paid particular attention to vulnerable asylum seekers. Therefore, to ensure appropriate medical and welfare support for such vulnerable groups, the Austrian authorities were requested to submit detailed information for each individual case.

On 1 December 2011 the Federal Asylum Office again rejected the applicants’ asylum request pursuant to the 2005 Asylum Act and the Dublin Regulation, and ordered their expulsion to Italy. Referring to relevant country reports, it found that asylum seekers had access to medical treatment in Italy after initial registration with the welfare unit. Vulnerable persons also had special access to lodgings with the “Sistema di Protezione per Richiedenti Asilo e Rifugiati” (Protection System for Asylum Seekers and Refugees, hereinafter “SPRAR”). With reference to the medical documents concerning the second applicant’s health, it found that the fact that the applicants had access to Italian medical services meant that they could count on the necessary support if transferred to Italy. To complement this information, the authority also referred to the fact that at the time of the actual transfer the immigration police (Fremdenpolizei) was called upon to decide whether a transfer was possible or not for medical or psychological reasons.

On 26 January 2012 the Asylum Court rendered one decision with regard to the two applicants and the first applicant’s younger son, dismissing the applicants’ appeal against those decisions as unfounded. The decision featured the three file numbers of all parties concerned and the three separate operative parts referred to the different file numbers by reference number.

In substance it found that the applicants had not sufficiently proved that they would not have access to medical treatment in Italy. Furthermore, the applicants had not even lodged an asylum request in Italy, which weakened their criticism of the Italian asylum system. The general information available to the authority would not warrant the opinion that the applicants would be subjected to treatment contrary to Article 3 if they were returned to Italy. Acknowledging the fact that the second applicant, and also the first applicant, who had less serious symptoms, was suffering from psychological impairments, the Asylum Court found that they had to accept the possibility that their health would deteriorate and that their opportunities to receive medical treatment would be reduced if they were transferred, which was in line with the Court’s case-law. Furthermore, the Austrian authorities would treat the transfer as “problematic” and thus provide medical assistance during the removal attempt. Finally, the Austrian authorities had also declared that they would inform the Italian authorities of the planned transfer in due time, to enable them to prepare the reception of the applicants in Italy.

On 31 January 2012 the first applicant applied for legal aid to lodge a complaint with the Constitutional Court. In the application she referred only to the file number of her proceedings before the Asylum Court. Thereupon, on 3 February 2012, the Constitutional Court (Verfassungsgerichtshof) granted legal aid to the first applicant to lodge a complaint against that last decision. By a decision of 3 April 2012 the first applicant’s complaint was not granted suspensive effect by the Constitutional Court. The complaint proceedings are pending.

The transfer of the applicants and the youngest son was originally planned to take place on 25 January 2012.

In preparation for the transfer the Austrian authorities submitted a quantity of medical information to the Italian authorities on 16 January 2012, including a statement from the Sigmund Freud Hospital dated 9 December 2011 (see paragraph 20 below).

On 23 January 2012 the Italian authorities again requested information regarding the applicants’ medical status. The Austrian authorities responded on 24 January 2012 that there was no new medical information and that all relevant information had already been submitted.

However, on the same day the Austrian authorities had to cancel the applicants’ transfer to Italy because the first applicant’s younger son had disappeared and could not be found by the authorities. Thereupon, the Austrian authorities informed the Italian authorities of the expansion of the transfer period to eighteen months because of the disappearance of the first applicant’s son.

On 24 January 2012 the second applicant was admitted to the secure ward of the Sigmund Freud Psychiatric Hospital in Graz (Landesnervenklinik Sigmund Freud Graz). That admission to the secure ward was approved by the competent court by a decision based on an expert’s diagnosis of acute post-traumatic stress disorder with serious suicidal tendencies and specific thoughts of putting those tendencies into practice. The second applicant was treated in the secure ward until 12 February 2012 and remained in the hospital until 17 February 2012, in the open ward.

Two older psychological statements, commissioned by the Federal Asylum Office and dated 27 July 2011 and 10 October 2011 respectively, diagnosed an adjustment disorder in respect of the second applicant, but no acute suicidal tendencies.

A first psychological statement of the Sigmund Freud Psychiatric Hospital of 9 December 2011 confirmed that the second applicant had been in regular treatment at the hospital since 23 September 2011 and diagnosed post-traumatic stress disorder with distinct symptoms and a traumatic neurosis. In the course of the treatment, a sleep activating anti-depressive therapy had been initiated. However, since the start of the therapy only a slight improvement in the second applicant’s condition had been noticed. The statement recommended a stable environment; cessation of the treatment could lead to aggravation of the symptoms. Furthermore, the second applicant showed suicidal tendencies with some impulses to put them into practice. From a psychiatric point of view it was recommended that the second applicant stay in an environment that she considered safe.

A second statement of the Sigmund Freud Psychiatric Hospital of 19 January 2012 confirmed that pharmacological treatment and psychotherapy had begun; however, no improvement in the second applicant’s condition was yet noticeable. The insecure status of the second applicant’s stay in Austria had led to depression, sleep disorder and continuing weight loss. It further stated that continuing and long-term treatment of the second applicant was essential, and that disruption of the second applicant’s environment could mean a worsening of the symptoms, including the suicidal tendencies. The applicant was treated with Mirtabene, Seroquel and Dominal forte and was in regular psychotherapeutic treatment.

In the course of the proceedings before the Court the applicants provided further medical documentation of 12 July 2012 from the Neuro-Psychiatric Department for children and young persons at the Sigmund Freud Psychiatric Hospital; this indicated that the second applicant remained in outpatient treatment after her release from the hospital in February 2012, and that she was still suffering from post-traumatic stress disorder, manifesting itself with insomnia and a depressed state of mind including suicidal tendencies and weariness. She was continuing to lose weight. The statement continued that on-going and long-term psychotherapeutic treatment was essential, and that security and a sense of safety were important factors that would provide a prospect of improvement. The next steps recommended were drug therapy, regular medical checks, preferably in a familiar environment, continuing trauma-specific psychotherapy, and educational support.

On 10 February 2012 the Court applied the interim measure under Rule 39 and requested the Austrian Government to stay the applicants’ transfer to Italy until further notice.

The first applicant’s husband and elder son entered Austria illegally and lodged asylum requests on 23 January 2012. To secure the union of the family, the Italian authorities agreed on 9 February 2012 to also accept jurisdiction regarding their asylum proceedings. The Federal Asylum Office thereupon rejected the asylum requests; however, an appeal lodged with the Asylum Court against those decisions was awarded suspensive effect on 30 April 2012.

The relevant European and Italian law, instruments, principles and practice have only recently been exhaustively summarised, in Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 3350, 2 April 2013. In the following, only information that is particularly relevant to the present case will be repeated.

Under the Regulation, the member States must determine, on the basis of a hierarchy of objective criteria (Articles 5 to 14), which member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single member State.

Where it is established that an asylum seeker has irregularly crossed the border into a member State, having come from a third country, the member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place.

Where the criteria in the regulation indicate that another member State is responsible, that State is requested to take responsibility for the asylum seeker and examine the application for asylum (Article 17).

By way of derogation from the general rule, each member State may examine an application for asylum lodged with it by a third-country national, even if such an examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the member State responsible and assumes the obligations associated with that responsibility.

Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. When rendering a decision rejecting an application, the authority shall specify which State has jurisdiction in the matter.

According to Section 36, an appeal lodged with the Asylum Court against a decision of the Federal Asylum Office rejecting an asylum request has no suspensive effect. A complaint against a removal order connected with such a decision to reject may be awarded suspensive effect by the Asylum Court within one week (see Section 37).

Reference is made to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41.

In particular, paragraphs 33-36 explain that

“33. A person wishing to apply for asylum in Italy should do so with the border police or, if already in Italy, with the police (questura) immigration department. As soon as an asylum request has been filed, the petitioner is granted access to Italy as well as to the asylum procedure, and is authorised to remain in Italy pending the determination of the asylum request by the Territorial Commission for the Recognition of International Protection.

For petitioners who do not hold a valid entry visa, an identification procedure (fotosegnalamento) is carried out by the police – if need be – with the assistance of an interpreter. This procedure comprises the taking of passport photographs and fingerprints. The fingerprints are checked for matches in EURODAC and the domestic AFIS (Automated Fingerprint Identification System) database. At the end of this procedure, the petitioner is given a notice confirming the first registration (cedolino), on which future appointments are noted, in particular the appointment for the formal registration of the request.

The formal asylum request will be made in writing. On the basis of an interview held with the petitioner in a language which he or she understands, the police will fill out the ‘Standard form C/3 for the recognition of refugee status according to the Geneva Convention’ (Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra), which contains questions on the petitioner’s personal data (name, surname, date of birth, citizenship, name and surname of parents/spouse/children and their whereabouts) as well as the details of the journey to Italy and reasons for fleeing the country of origin and for seeking asylum in Italy. The petitioner will be asked to provide a written paper, which will be appended to the form, containing his or her asylum account and written in his or her own language. The police will retain the original form and provide the petitioner with a stamped copy.

The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent Territorial Commission for the Recognition of International Protection. During this hearing, the petitioner will be assisted by an interpreter.”

The ‘Dublin II Regulation National Report’ on Italy of December 2012 states additionally to the above-mentioned information with regard to access to the asylum procedure for Dublin-returners (pages 18 and 19 of the report):

“At the arrival in the main airports, the applicant finds NGOs/associations which may help him/her to find an accommodation centre and provide him/her with further information on the asylum procedure. At the airport, the Border Police carry out the fotosegnalamento and verify the person’s identity in the EURODAC database. After having undertaken these procedures, the applicant will receive a letter (called “verbale di invito”) saying that s/he has to go to the Questura competent to continue the asylum procedure. The asylum seeker may be addressed to the office of the Questura where s/he was fingerprinted and photographed or to the office where s/he lodged the asylum application or where the documents related to his/her case are kept. The law does not foresee any support for reaching the competent Questura. In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent Prefecture. However, this support is not always guaranteed and often it happens that the NGO does not have information on the real arrival of the asylum seekers and on whether s/he has found an accommodation there.

Once the person is at the Questura, s/he may face different outcomes according to whether s/he did not apply or s/he did apply for asylum when s/he was in Italy previously.

If the person had never applied for international protection before, s/he is able to ask for protection now and is entitled to the same rights as the other asylum seekers. ...”

Both the UNHCR in its “Recommendations on Important Aspects of Refugee Protection in Italy” of July 2012 (page 7) and the Swiss Refugee Council and the Norwegian NGO Juss-Buss in their report ‘Asylum procedure and reception conditions in Italy’ of May 2011 (page 10) inform on incidents in which asylum seekers have had difficulties lodging a formal asylum application with the Questura, or only got an appointment with the Questura several months after their arrival in Italy. In this period of time however, asylum seekers have no access to lodging or subsistence.

The reception scheme and the reception conditions in Italy are summarised again in Mohammed Hussein, cited above, §§ 42-50.

In particular, it is noted in respect of vulnerable asylum seekers that pursuant to Legislative Decree no. 140/2005, implementing Council Directive 2003/9/EC of 27 January 2003 on laying down minimum standards for the reception of asylum seekers, asylum seekers in Italy are entitled to reception facilities. According to Article 8 of this Decree, reception arrangements are to be made on the basis of the specific needs of asylum seekers and their families, in particular the needs of vulnerable persons, namely unaccompanied minors, disabled persons, pregnant women, single parents with minor children, and persons who have been subjected to torture, rape or other forms of serious psychological, physical or sexual violence. Italian domestic law provides for special guarantees for such vulnerable persons, including a reserved quota of places in the SPRAR reception scheme (see ibid., § 42). The Italian authorities specified in their comments on the report by the Council of Europe Commissioner for Human Rights dated 18 September 2012 that the system of reception in the CARA centres, which accommodate asylum seekers, envisaged that a range of services must be provided to migrants, including, inter alia, socio-psychological support, with special attention for persons belonging to vulnerable categories and medical assistance appointments with consultants. Those reception conditions were also guaranteed to Dublin-returners. This category received a preliminary form of reception upon arrival when the services present in the main airports were activated; subsequently they were accommodated in government reception centres. When the transferring country reported an asylum seeker as belonging to a vulnerable category, appropriate medical measures were taken in the centres, intended to provide appropriate reception. Special attention was paid to migrants with physical or [psychological] trauma and to victims of torture, who were entrusted to the medical stations of the reception centres or at a local level to receive treatment and support of a professional and appropriate nature (see ibid., § 45).

As regards medical assistance, the Italian comments established (ibid.) that

“in Italy, foreign citizens, even those not complying with the provisions regulating their presence, are entitled to ordinary and/or urgent treatment through the National Health Service.

In the government centres for migrants the psychic/physical health of guests is recognized as an unalienable right of the individual, which is safeguarded by art. 32 of the Italian Constitution and it has always been put at the forefront when the regulatory and management system of the centres is being prepared.

More specifically, the medical assistance service provided for in the centres for migrants must grant guests the following:

a) Visit upon entry and medical first aid, carried out in a consulting room set up within the facility with medical staff and nurses, whose shifts must be based on the ratio guests/staff as indicated in the tables of the tender specifications;

b) When the need arises, possible transfer of guests to hospitals outside the centres, in compliance with art. 35 of Legislative Decree 286/98 as migrants hosted in CARA centres can benefit from the services of the National Health Service by showing their STP cards (Temporarily Present Alien), issued by the Local Health Service Unit, whereby they can enjoy treatment in the consulting room or in hospitals, when it is urgent or essential in case life is in peril;

c) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance, including for generic conditions of psychological type;

d) Recording of a personal medical file, a copy of which must be handed over to the guest. In this connection it is worth mentioning that doctors, when screening the guests upon entry must also evaluate their psychic-social situation as well as the presence of vulnerability factors (serious psychic-psychological conditions, including previous ones, victims of mistreatment/torture, substance addiction, etc.) in order to prescribe possible drug treatment or psychological counselling.

It is further specified that as provided for by the above mentioned art. 35 of Legislative Decree No. 286/98 (Consolidated Text on Immigration), foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and/or in hospital (both urgent and continuing treatment) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health.

Regardless of the possession of a residence permit, the Italian legislation provides for the social protection and medical assistance to expectant mothers and to mothers, the protection of the psychic-physical health of minors (as a result of the Convention on the Rights of the Child of 1989), interventions of prevention, diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection.

Finally, when aliens not complying with provisions regulating their presence visit public medical facilities, they are not reported to the Police Authorities.

As far as social services are concerned, the principle enshrined in art. 24 of the 1951 Geneva Convention – according to which the status of a refugee is equal to that of a national – is embodied in the Italian legislation also as a consequence of art. 27 of the above mentioned Legislative Decree No. 251 of 19 November 2007, which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as Italian citizens and thus they have access to all services and benefits, including economic ones, covered by the social and medical assistance system.

Furthermore, the projects funded through resources of the ERF include measures to ease the access to social security, particularly on the part of vulnerable groups.”

And finally, with regard to the reception of Dublin-returners, the “Dublin II Regulation National Report” on Italy stated in particular that (ibid., § 49)

“Within this broader category, another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s/he was in Italy.

If returnees (international protection seekers, beneficiaries of international protection or of a permit of stay for humanitarian reasons) had not been placed in reception facilities while they were in Italy, they may still enter reception centres. Due to the lack of available places in reception structures and to the fragmentation of the reception system, the length of time necessary to find again availability in the centres is – in most of the cases - too long. Since, there is no general practice, it is not possible to make a quantification of the time necessary to access to an accommodation. However, in the last years, temporary reception systems have been established to house persons transferred to Italy on the basis of the Dublin II Regulation. However, it concerns a form of temporary reception that lasts until their juridical situation is defined or, in case they belong to vulnerable categories, an alternative facility is found.

Such temporary reception has been set up thanks to targeted projects funded by the European Fund for Refugees. For instance, in Rome, there are currently projects providing assistance to 200 persons – within this broader category 60 places are for vulnerable categories.

However, it happens that Dublin returnees are not accommodated and find alternative forms of accommodation such as self-organized settlements....”


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant, Mr Edgar Kaasik, is an Estonian national who was born in 1988. He is currently serving a prison sentence.

and as they appear from the documents on file, may be summarised as follows.

On 3 December 2008 the Viru County Court convicted the applicant of manslaughter, attempted murder and violent and threatening behaviour. He was sentenced to fifteen years' imprisonment to which an unserved sentence of seven months from an earlier judgment was added.

According to the text of the judgment – which was drawn up in Russian – an interpreter participated in the hearing; the applicant was assisted by a lawyer. It would appear that the proceedings in the County Court were conducted mainly in Russian since the applicant and several other participants in the proceedings were Russian-speakers.

On 15 May 2009 the Tartu Court of Appeal heard the applicant's appeal. The applicant was assisted by a lawyer; an interpreter also participated in the hearing. According to the documents submitted by the applicant, the Court of Appeal informed the participants in the hearing that its judgment would be available on 20 May 2009 at the court's office and explained that any notice of appeal against its judgment had to be submitted to the court's office within seven days of 21 May 2009. The participants in the proceedings confirmed that they had understood the appeal procedure.

By a judgment of 20 May 2009 the Court of Appeal dismissed the applicant's appeal. It appears that the operative part of the judgment was available at the court's office on 20 May 2009. A translation into Russian of the operative part of the judgment was served on the applicant, who was in detention in Viru Prison, on 26 May 2009.

According to the applicant, he had been informed after the examination of his appeal in the Court of Appeal that the court had to be notified of any intention to appeal within seven days and that only a lawyer had the right to lodge an appeal in cassation with the Supreme Court. His lawyer had not come to the prison to discuss further action despite his promise to do so. On an unspecified date he had called his lawyer, who had told him to inform the court of his intention to appeal and to lodge an appeal in cassation.

On 3 June and 4 June 2009 the applicant handed over to the prison authorities applications addressed to the County Court and the Court of Appeal informing them of his intention to appeal.

On 8 June 2009 the Court of Appeal refused to accept the applicant's notification of appeal, finding that the time-limit for submission of any such notification had expired on 2 June 2009, that is, seven days after the applicant had received the translation into Russian of the operative part of the judgment, whereas the applicant's letters had been handed over to the prison authorities too late, on 3 June and 4 June 2009. The Court of Appeal noted that the applicant had not requested that the court restore the time-limit and had not provided any explanation why he had failed to comply with it.

In the meantime, on 4 June 2009, the applicant requested the Supreme Court to restore the time-limit for appeal. By a decision of 29 June 2009 the Supreme Court rejected the application. It noted that pursuant to Article 344 § 3 of the Code of Criminal Procedure both an appeal in cassation and a request for restoration of the time-limit for appeal had to be drawn up by a lawyer. The Supreme Court's decision was sent to the applicant on 20 July 2009.

On 21 June 2009 the applicant lodged a procedural appeal with the Supreme Court against the Court of Appeal's decision of 8 June 2009. On 22 July 2009 the Supreme Court rejected the appeal because it too should have been drawn up by a lawyer. The Supreme Court's decision was sent to the applicant on 21 August 2009.

Article 315 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) concerns the pronouncement of a first-instance court's judgment. Pursuant to Article 343 (see below) it also applies, mutatis mutandis, to appellate court judgments. It reads as follows:

“(1) A judge or ... the presiding judge shall pronounce a judgment at the time announced pursuant to Article 304 of this Code.

(2) If the accused is not proficient in the language of the criminal proceedings, the judgment shall be interpreted or translated for him or her after its pronouncement.

(3) The judge shall ask whether the person acquitted or convicted understands the judgment and explain its content to him or her if necessary.

(4) A court may decide to pronounce only the operative part of the judgment, in which case it shall explain the main reasons for the judgment orally upon its pronouncement.

(5) After the pronouncement of a judgment or its operative part the judge or presiding judge shall:

1) upon the pronouncement of the operative part of the judgment, give notification of the date on which the judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the record of the court hearing;

2) give notification of the term for appeal against the judgment and explain the procedure for appeal provided for in Section 318 of this Code and the possibility to waive the right of appeal;

3) explain that the county court must be notified in writing of the intention to exercise the right of appeal within seven days of the pronouncement of the judgment or its operative part.

(6) Waiver of the right of appeal shall be recorded in the record of the court hearing. A lawyer may waive the right of appeal only with the written consent of the defendant.

(7) If all parties to the court proceedings waive the right of appeal or if during the term provided for in paragraph 5(2) of this Article none of the parties to the court proceedings gives notification of their intention to exercise the right of appeal, only the [introductory part and operative provisions] shall be set out in the judgment.

(8) If the parties to the court proceedings do not waive the right of appeal, the full judgment shall be prepared within fifteen days of the date on which the county court is notified of an intention to exercise the right of appeal.”

Article 317 provides that a court must send a copy of a judgment to a party who was not present at its pronouncement (§ 1). Where the defendant is under arrest, a copy of the judgment must be sent to him or her immediately after its pronouncement or immediately after it is made available at the court's office (§ 2).

Article 342 § 3 (2) provides that if a court of appeal dismisses an appeal and upholds the judgment of the first-instance court, it can limit its judgment to the introduction and operative part and make reference to the provisions of procedural law pursuant to which the judgment was made.

Article 343 provides that after the parties' closing statements a court of appeal must announce the date when its judgment will be available for the parties to the proceedings at the court of appeal's office (§ 1). If the court of appeal pronounces its judgment or the operative part of the judgment immediately after deliberations, the provisions of Articles 315 and 316 apply (§ 2). Paragraph 3 provides that copies of a judgment of the court of appeal must be served in accordance with Article 317.

In Article 344 § 3 the persons entitled to lodge an appeal in cassation with the Supreme Court are listed. That list includes the Prosecutor's Office, a defence lawyer (advokaat) and other parties' lawyers.

Article 345 lays down the rules concerning the time-limit for an appeal in cassation. It provides that a court of appeal must be notified in writing of any intention to appeal in cassation within seven days after its judgment or the operative part of its judgment has been pronounced or made available through the court's office (§ 1). An appeal in cassation must be lodged in writing with the court of appeal within thirty days of the date when the party to the court proceedings has the opportunity to examine the judgment of the court of appeal (§ 2).