Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Alvina Gyulumyan;András Baka;Christos Rozakis;Elisabet Fura;Georg Ress;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Rait Maruste;Snejana Botoucharova

The applicant was born in 1965 and lives in Cologne (Germany).

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

On 29 October 1993 four plain-clothes policemen observed the applicant on at least two different occasions take a tiny plastic bag (a socalled “bubble”) out of his mouth and hand it over to another person in exchange for money. Believing that these bags contained drugs, the police officers went to arrest the applicant, whereupon he swallowed another bubble he still had in his mouth.

The police officers did not find any drugs on the applicant. Since further delay might have frustrated the conduct of the investigation, the public prosecutor ordered that emetics (Brechmittel) be administered to the applicant by a doctor in order to provoke the regurgitation of the bag (Exkorporation).

The applicant was taken to a hospital in Wuppertal-Elberfeld. According to the Government, the doctor who was to administer the emetics questioned the applicant about his medical history (a procedure known as obtaining an anamnesis). This was disputed by the applicant, who claimed that he had not been questioned by a doctor. As the applicant refused to take the medication necessary to provoke vomiting, he was held down and immobilised by four police officers. The doctor then forcibly administered to him a salt solution and the emetic ipecacuanha syrup through a tube introduced into his stomach through the nose. In addition, the doctor injected him with apomorphine, another emetic that is a derivative of morphine. As a result, the applicant regurgitated one bubble containing 0.2182 grams of cocaine. Approximately an hour and a half after being arrested and taken to the hospital, the applicant was examined by a doctor and declared fit for detention.

When visited by the police in his cell two hours after being given the emetics, the applicant, who was found not to speak German, said in broken English that he was too tired to make a statement about the alleged offence.

Pursuant to an arrest warrant that had been issued by the Wuppertal District Court, the applicant was remanded in custody on 30 October 1993.

The applicant maintained that for three days following the treatment to which he was subjected he was only able to drink soup and that his nose repeatedly bled for two weeks because of wounds he had received when the tube was inserted. This was disputed by the Government, who stressed that the applicant had failed to submit a medical report to prove his allegation.

Two and a half months after the administration of the emetics, the applicant underwent a gastroscopy in the prison hospital after complaining of continuous pain in the upper region of his stomach. He was diagnosed as suffering from irritation in the lower area of the oesophagus caused by the reflux of gastric acid. The medical report did not expressly associate this condition with the forced administration of the emetics.

The applicant was released from prison on 23 March 1994. He claimed that he had had to undergo further medical treatment for the stomach troubles he had suffered as a result of the forcible administration of the emetics. He did not submit any documents to confirm that he had received medical treatment. The Government, for their part, maintained that the applicant had not received any medical treatment.

In his submissions dated 20 December 1993 to the Wuppertal District Court, the applicant, who was represented by counsel throughout the proceedings, objected to the use at his trial of the evidence obtained through the administration of emetics, a method he considered to be illegal. By using force to provoke the regurgitation of the bubble of cocaine, the police officers and the doctor concerned were guilty of causing him bodily harm in the course of their duties (Körperverletzung im Amt). The administration of toxic substances was prohibited by Article 136a of the Code of Criminal Procedure (see paragraph 34 below). His bodily functions had been manipulated, since bodily activity had been provoked by suppressing the control reactions of the brain and the body. In any event, administering emetics was a disproportionate measure and therefore not authorised by Article 81a of the Code of Criminal Procedure (see paragraphs 33 and 35-40 below). It would have been possible to obtain evidence of the alleged offence by waiting for the bubble to pass through his system naturally. The applicant further argued that the only other method authorised by Article 81a of the Code of Criminal Procedure would have been irrigation of the stomach.

On 23 March 1994 the Wuppertal District Court convicted the applicant of drug trafficking and sentenced him to one year’s imprisonment, suspended, and probation. It rejected the defence’s argument that the administration of emetics under Article 81a of the Code of Criminal Procedure was a disproportionate means of recovering a bubble containing just 0.2 g of cocaine.

The applicant appealed against the judgment.

On 17 May 1995 the Wuppertal Regional Court upheld the applicant’s conviction but reduced the length of the suspended prison sentence to six months. It further ordered the forfeiture (Verfall) of 100 German marks that had been found on the applicant at the time of his arrest on the ground that it was the proceeds of sale of two drug bubbles.

The Regional Court found that the evidence obtained following the public prosecutor’s order to provoke the regurgitation of the bubble of cocaine was admissible. The measure had been carried out because further delay might have frustrated the conduct of the investigation. Pursuant to Article 81a of the Code of Criminal Procedure, the administration of the substances in question, even if effected against the suspect’s will, was legal. The procedure had been necessary to secure evidence of drug trafficking. It had been carried out by a doctor and in compliance with the rules of medical science. The defendant’s health had not been put at risk and the principle of proportionality had been adhered to.

The applicant appealed against this judgment on points of law. He argued in particular that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics, as it did not permit the administration of life-threatening substances by dangerous methods. Furthermore, Article 81a prohibited measures such as the one in question that resulted in a suspect effectively being forced to contribute actively to his own conviction. He further submitted that the impugned measure had violated Articles 1 and 2 of the Basic Law (Grundgesetz – see paragraphs 31-32 below), and disregarded in particular the right to respect for human dignity.

On 19 September 1995 the Düsseldorf Court of Appeal dismissed the applicant’s appeal. It found that the Regional Court’s judgment did not contain any error of law that was detrimental to the accused.

The applicant lodged a complaint with the Federal Constitutional Court. He reiterated that the administration of emetics was a disproportionate measure under Article 81a of the Code of Criminal Procedure.

On 15 September 1999 the Federal Constitutional Court declared the applicant’s constitutional complaint inadmissible under the principle of subsidiarity.

It considered that the administration of emetics, including apomorphine, a morphine derivative, raised serious constitutional issues with respect to the right to physical integrity (Article 2 § 2 of the Basic Law – see paragraph 32 below) and to the principle of proportionality which the criminal courts had not yet addressed.

The Federal Constitutional Court found that the applicant had not availed himself of all the remedies at his disposal (alle prozessualen Möglichkeiten) to contest the measure before the criminal courts in order to avoid any underestimation of the importance and scope of the fundamental right laid down in Article 2 § 2, first sentence, of the Basic Law (um eine Verkennung von Bedeutung und Tragweite des Grundrechts des Art. 2 Abs. 2 Satz 1 GG zu verhindern).

It further stated that the administration of emetics did not give rise to any constitutional objections of principle either with respect to human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination guaranteed by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law.

Article 1 § 1 of the Basic Law reads as follows:

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

Article 2, in so far as relevant, provides:

“1. 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].

Every person shall have the right to life and physical integrity. ...”

Article 81a of the Code of Criminal Procedure, in so far as relevant, reads as follows:

“1. A physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. To this end, blood samples may be taken and other bodily intrusions effected by a doctor in accordance with the rules of medical science for the purpose of examination without the accused’s consent, provided that there is no risk of damage to his health.

Power to make such an order shall be vested in the judge and, in cases in which delay would jeopardise the success of the examination, in the public prosecutor’s office and officials assisting it ...”

Article 136a of the Code of Criminal Procedure on prohibited methods of interrogation (verbotene Vernehmungsmethoden) provides:

“1. The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited.

Measures which impair the accused’s memory or ability to understand and accept a given situation [Einsichtsfähigkeit] shall not be permitted.

The prohibition under sub-paragraphs 1 and 2 shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.”

German criminal courts and legal writers disagree as to whether Article 81a of the Code of Criminal Procedure authorises the administration of emetics to a suspected drug dealer who has swallowed drugs on arrest.

The view taken by the majority of the German courts of appeal (see, inter alia, the decision of the Bremen Court of Appeal of 19 January 2000, NStZ-RR 2000, p. 270, and the judgment of the Berlin Court of Appeal of 28 March 2000, JR 2001, pp. 162-64) is that Article 81a of the Code of Criminal Procedure can serve as a legal basis for the administration of emetics in such circumstances.

For example, in its judgment cited above, the Berlin Court of Appeal had to deal with the case of a suspected drug dealer who agreed to swallow ipecacuanha syrup after being threatened with its administration through a nasogastric tube if he refused. It found:

“Pursuant to Article 81a § 1, first sentence, of the Code of Criminal Procedure, a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. ...

(a) Contrary to the view taken by the appellant, legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs the accused has swallowed involves a bodily intrusion within the meaning of that provision (see HK-Lemke, StPO, 2nd edition, § 9; Dahs in LöweRosenberg, StPO, 24th edition, § 16; KK-Senge, StPO, 4th edition, §§ 6, 14; see, with regard to Article 81a of the Code of Criminal Procedure, Rogall, SKStPO, Article 81a, § 48 and NStZ 1998, pp. 66-67, and Schaefer, NJW 1997, pp. 2437 et seq.; contrast Frankfurt Court of Appeal, NJW 1997, p. 1647 with note by Weßlau, StV 1997, p. 341).

This intrusion also does not violate human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination contained in Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. Pursuant to Article 2 § 2, third sentence, of the Basic Law, interferences with these basic rights are permitted if they have a statutory basis. The Federal Constitutional Court has already found on several occasions that, as a statutory provision enacted by Parliament, Article 81a of the Code of Criminal Procedure meets this requirement ... Furthermore, it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either (see Federal Constitutional Court, StV 2000, p. 1 – the decision in the present case). It did not, therefore, find it necessary to discuss in detail the opinion expressed by the Frankfurt (Main) Court of Appeal (NJW 1997, pp. 1647-48) which is occasionally shared by legal writers (see Weßlau, StV 1997, pp. 341-42), ... that the administration of emetics forces the accused to contribute to his own conviction and to actively do something he does not want to, namely regurgitate. This Court does not share the [Frankfurt Court of Appeal’s] view either, as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes ‘involuntary bodily reactions’. ...

(e) ... this Court does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force. That point is not in issue in the present case ... The Regional Court ... stated that [on the facts of] the case decided by the Frankfurt (Main) Court of Appeal it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure. It did, however, expressly and convincingly demonstrate that the facts of the present case were different.”

In its judgment of 11 October 1996, however, the Frankfurt (Main) Court of Appeal held that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics. The case concerned the administration of an overdose of ipecacuanha syrup to a suspected drug dealer by force through a nasogastric tube and his injection with apomorphine. The court found:

“The forced administration of emetics was not covered by the Code of Criminal Procedure. Even Article 81a does not justify the administration of an emetic by force. Firstly, the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision. It is true that searching for foreign objects may be justified by Article 81a ... However, the emetic was used not to search for foreign objects, but to retrieve objects – whose presence was at least probable – in order to use them in evidence ... This aim was more akin to searching for or seizing an object within the meaning of Articles 102, 94 et seq. of the Code of Criminal Procedure than to a physical examination ... – although those provisions do not, on the face of it, include forcible interference with a person’s physical integrity as a possible measure. ...

Secondly, an accused is not the object of criminal proceedings ... The forced administration of emetics violates the principle of passivity [Grundsatz der Passivität], since its purpose is to force the accused actively to do something that he is unwilling to do, namely regurgitate. This is neither permitted under Article 81a of the Code of Criminal Procedure nor compatible with the position of the accused in criminal proceedings. ...

Consequently, the conduct of the prosecuting authorities constitutes unlawful interference with the accused’s physical integrity (Article 2 § 1, first sentence, of the Basic Law). ...

The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused’s general personality rights (Articles 1 § 1 and 2 § 1 of the Basic Law). ...

The prohibition on obtaining the evidence [in that manner] ...”

According to many legal writers, Article 81a of the Code of Criminal Procedure authorises the administration of emetics to suspected drug dealers in order to obtain evidence (see also the authors cited above at paragraph 37). This view is taken, for example, by Rogall (NStZ 1998, pp. 66-68 and Systematischer Kommentar zur Strafprozeßordnung und zum Gerichtsverfassungsgesetz, München 2005, Article 81a StPO, § 48) and by Kleinknecht and Meyer-Goßner (StPO, 44th edition, Article 81a, § 22 – administration of emetics permitted for the investigation of serious offences).

A considerable number of legal writers, however, take the view that the Code of Criminal Procedure, Article 81a in particular, does not permit the administration of emetics. This opinion is held, for example, by Dallmeyer (StV 1997, pp. 606-10, and KritV 2000, pp. 252-59), who considers that Article 81a does not authorise a search – as opposed to an examination – of the interior of a defendant’s body. Vetter (Problemschwerpunkte des § 81a StPO – Eine Untersuchung am Beispiel der Brechmittelvergabe im strafrechtlichen Ermittlungsverfahren, Neuried 2000, pp. 72-82, 161) considers that the forcible administration of emetics through a nasogastric tube is irreconcilable with the rules of medical science, disproportionate and liable to damage the defendant’s health.

Medical experts disagree as to whether the forcible administration of emetics through the insertion of a nasogastric tube is advisable from a medical point of view. While some experts consider that emetics should be administered to a suspect in order to protect his health even if he resists such treatment, others take the view that such a measure entails serious health risks for the person concerned and should not therefore be carried out.

The medical experts who argue in favour of the forcible administration of emetics stress that even if this measure is not primarily carried out for medical reasons, it may nevertheless serve to prevent a possibly life-threatening intoxication. As the packaging of drugs swallowed on arrest is often unreliable, it is preferable from a medical standpoint for emetics to be administered. This measure poses very few risks, whereas there is a danger of death if the drugs are allowed to pass through the body naturally. Drugs can be extracted from the stomach up to one hour, in some cases two, after being swallowed. Administering emetics is a safe and fast method (the emetic usually takes effect within 15 to 30 minutes) of retrieving evidence of a drugs offence, as it is rare for them not to work. Even though the forcible introduction of a tube through the nose can cause pain, it does not pose any health risks as the act of swallowing can be induced by the mechanical stimulus of the tube in the throat (see, inter alia, Birkholz, Kropp, Bleich, Klatt and Ritter, “Exkorporation von Betäubungsmitteln – Erfahrungen im Lande Bremen”, Kriminalistik 4/97, pp. 277-83).

The emetic ipecacuanha syrup has a high margin of safety. Sideeffects to be expected merely take the form of drowsiness, diarrhoea and prolonged vomiting. Rare, more serious complications include Mallory-Weiss syndrome or aspiration pneumonia. These may occur if the person concerned has sustained previous damage to his or her stomach or if the rules governing the administration of emetics, notably that the patient is fully alert and conscious, are not observed (see, for example, Birkholz, Kropp, Bleich, Klatt and Ritter, cited above, pp. 278-81, and American Academy of Clinical Toxicology/European Association of Poisons Centres and Clinical Toxicologists, “Position Paper: Ipecac Syrup”, Journal of Toxicology, Clinical Toxicology, vol. 42, no. 2, 2004, pp. 133-43, in particular, p. 141).

Those medical experts who argue against the administration of emetics by force point out in particular that the forcible introduction of emetics through a nasogastric tube entails considerable health risks. Even though it is desirable for drugs to be eliminated from the suspect’s body as quickly as possible, the use of a nasogastric tube or any other invasive method can be dangerous because of the risk of perforation of the drug packaging with potentially fatal consequences. Furthermore, if the tube is badly positioned liquid may enter the lungs and cause choking. Forced regurgitation also involves a danger of vomit being inhaled, which can lead to choking or a lung infection. The administration of emetics cannot therefore be medically justified without the consent of the person concerned, and, without this consent, this method of securing evidence will be incompatible with the ethics of the medical profession, as has been illustrated in particular by the death of a suspect following such treatment (see, inter alia, Odile Diamant-Berger, Michel Garnier and Bernard Marc, Urgences MédicoJudiciaires, 1995, pp. 24-33; Scientific Committee of the Federal Medical Council, report dated 28 March 1996 in response to the Federal Constitutional Court’s request to assess the dangers involved in the forcible administration of emetics; and the resolution adopted by the 105th German Medical Conference, Activity Report of the Federal Medical Association, point 3).

There is no uniform practice on the use of emetics to secure evidence of a drugs offence in the German Länder. Since 1993, five of the sixteen Länder (Berlin, Bremen, Hamburg, Hesse and Lower Saxony) have used this measure on a regular basis. Whereas some Länder discontinued its use following the death of a suspect, others are still resorting to it. In the vast majority of cases in which emetics have been used, the suspects chose to swallow the emetic themselves, after being informed that it would otherwise be administered forcibly. In other Länder, emetics are not forcibly administered, partly because, on the basis of medical advice, it is regarded as a disproportionate and dangerous measure, and partly because it is not considered a necessary means of combating drugs offences.

There have been two fatalities in Germany as a result of the forcible administration of ipecacuanha syrup to suspected drug dealers through a tube introduced through the nose into the stomach. In 2001 a Cameroonian national died in Hamburg. According to the investigation, he had suffered a cardiac arrest as a result of stress caused by the forcible administration of emetics. He was found to have been suffering from an undetected heart condition. In 2005 a Sierra Leonean national died in Bremen. The investigation into the cause of his death has not yet been completed. The emergency doctor and a medical expert suggested that the applicant had drowned as a result of a shortage of oxygen when water permeated his lungs. Criminal investigations for homicide caused by negligence have been launched against the doctor who pumped the emetic and water into the suspect’s stomach and against the emergency doctor called to attend to him.

As a consequence of the fatality in Bremen, the Head of the Bremen Chief Public Prosecutors (Leitender Oberstaatsanwalt) has ordered the forcible administration of emetics to be discontinued in Bremen for the time being. Pending the outcome of the investigation, a new procedure has been set up by the Senators for Justice and the Interior. Under this procedure, a person suspected of swallowing drugs must be informed by a doctor about the risks to his health if the drugs remain in his body. The suspect can choose to take emetics or a laxative if a medical examination discloses that it poses no risks to his health. Otherwise, he is detained in a specially equipped cell until the drug packages are passed naturally.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides:

“For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.”

In Rochin v. California (342 US 165 (1952)), the United States Supreme Court reversed the petitioner’s conviction for unlawful possession of drugs. On the basis of information that the petitioner was selling narcotics, three state officers entered his home and forced their way into his bedroom. They unsuccessfully attempted to extract by force drug capsules which the petitioner had been observed to put into his mouth. The officers then took him to a hospital, where an emetic was forced through a tube into his stomach against his will. He regurgitated two capsules which were found to contain morphine. These were admitted in evidence in the face of his objection. The Supreme Court held on 2 January 1952 that the conviction had been obtained by methods in violation of the Due Process Clause in the Fourteenth Amendment.

Mr Justice Frankfurter, delivering the opinion of the Court, found:

“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.

It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. ... It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.

To attempt in this case to distinguish what lawyers call ‘real evidence’ from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.”

In State of Ohio v. Dario Williams (2004 WL 1902368 (Ohio App. 8 Dist.)), the Ohio Court of Appeals held on 26 August 2004 that the pumping of the defendant’s stomach in the face of his objections was not an unreasonable search and seizure. The defendant was observed engaging in a hand-to-hand transaction typical of drug dealing. When police officers ordered the defendant to their vehicle, he put something in his mouth and ran off. In the opinion of the court, flushing out the defendant’s stomach by gastric lavage by a physician in a hospital setting was not an unreasonable measure, even though the defendant violently objected to the procedure and had to be sedated. Swallowing the cocaine, which had been seen in the defendant’s mouth, put his life in jeopardy and he was destroying evidence.

Mr Justice T.E. McMonagle, delivering the Court of Appeals’ opinion, found:

“19. Williams directs us to Rochin v. California, 342 US 165 (1952), ... one of the prominent cases on intrusive searches.

Rochin is not dispositive, however. After Rochin, the United States Supreme Court decided Schmerber v. California, 384 US 757 (1966), 86 S.Ct. 1826, 16 L.Ed.2d 908, in which a police officer ordered an individual suspected of driving while intoxicated to submit to a blood test at the hospital where he was being treated for injuries sustained in an automobile collision. The Supreme Court noted that ‘the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner’. ... Finding no Fourth Amendment violation, the Court set forth several criteria to be considered in determining the reasonableness of an intrusive search: 1) the government must have a clear indication that incriminating evidence will be found; 2) the police officers must have a warrant, or, there must be exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and 3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner.

Applying the Schmerber factors to the facts of this case, it is apparent that the pumping of Williams’ stomach was a lawful search and seizure. First, the officers observed Williams in an area known for illegal drug activity engage in a hand-to-hand transaction indicative of drug activity. When he saw the officers, he put whatever was in his hand in his mouth and then ran away. This behavior was a ‘clear indication’ to the officers that Williams had secreted drugs in his mouth. Moreover, it was reasonable for the officers to conclude that Williams’ life could be in jeopardy after they observed crack cocaine in his mouth and saw him trying to chew it and swallow it. Furthermore, Williams was destroying the evidence necessary to convict him of drug possession. Accordingly, this case falls within the exigent circumstances exception to the warrant requirement.

Finally, it is apparent that the method and manner of the search were not unreasonable. The facts indicate that a physician administered Williams’ medical treatment in a hospital setting, according to accepted medical procedures ...

In Schmerber, the United States Supreme Court expressed an acceptance of a search conducted in a reasonable manner by a physician. The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening.

Assuming that [a defendant] swallowed the cocaine, if the drugs were packaged in such a way as to be impervious to intestinal processes, the physician would certainly be in a position to pump the stomach of the [defendant], which is a reasonable medical procedure less traumatic than the forced emetic in Rochin. Again, this is the kind of conduct that Schmerber finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision.”

The Government submitted a survey based on information obtained from the governments of the member States of the Council of Europe via their Agents or, if the government concerned had not provided information, from the German Embassy in the country concerned. According to the survey, emetics are forcibly administered to suspected drug dealers in practice in four countries (Luxembourg, Norway, “the former Yugoslav Republic of Macedonia” and Germany). In thirty-three countries emetics are not used against a suspect’s will to retrieve drug bubbles that have been swallowed (Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Moldova, the Netherlands, Portugal, Romania, Russia, Serbia and Montenegro, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom). In three countries (Croatia, Poland and Slovenia) there is a legal basis for the use of emetics, but no information was supplied as to whether this measure is applied in practice. No information with respect to the use of emetics in practice was obtained from six member States (Andorra, Azerbaijan, Bulgaria, Liechtenstein, San Marino and Monaco).

The applicant partly contested the Government’s findings. He noted that the Government had said that three countries other than Germany (Luxembourg, “the former Yugoslav Republic of Macedonia” and Norway) permitted the administration of emetics to suspected drug dealers and used the measure in practice. However, he said that the Government had failed to adduce any evidence of emetics being administered by force against the accused’s will in those member States. With respect to Norway in particular, the applicant disputed that the forcible introduction of a nasogastric tube as in his case was legal. As regards the administration of emetics in Croatia, Poland and Slovenia, he contested the existence of any legal basis for such a measure in those countries, irrespective of the position in practice. Consequently, Germany was the only Contracting State which was proven to actually resort to the impugned measure. In all the other member States the authorities waited for the drugs to pass through the body naturally.

Other materials before the Court confirm the parties’ findings that emetics are not forcibly administered in practice in several Convention States examined (Belgium, Estonia, France, Ireland, the Netherlands, Spain and the United Kingdom). In these States, the authorities wait for the drugs to pass through the body naturally. Use is routinely made of special toilets to recover and clean drugs that have been swallowed. The materials further indicated that in Norway special toilets (so-called Pacto 500 toilets) are generally used in order to recover ingested drugs. However, during its visit to Norway in 1993, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) witnessed the administration of an emetic (brine) to a detainee in Oslo police headquarters (see the CPT report on its visit to Norway in 1993, § 25). With respect to Poland, it has not been confirmed whether emetics are administered by force in practice.


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

The applicant was born in 1962 and lives in Lublin.

By a judgment of 19 November 2003 the Lublin Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision of 25 March 2003 by which the second-instance authority had refused to acknowledge that the applicant’s ailment was of an occupational character.

This judgment was served on the applicant on 27 January 2004.

On 27 February 2004 the applicant requested to be granted legal aid.

On an unspecified date the Lublin Bar Association refused to assign a lawyer to the case. Subsequently, on 26 March 2004 it allowed the applicant’s request after the Supreme Administrative Court had instructed it that it had no right to refuse.

On 19 November 2004 the lawyer assigned to the case had effective access to the case-file. On 1 December 2004 the lawyer lodged a cassation appeal together with a request for retrospective leave to appeal out of time with the Lublin Administrative Court.

By a decision of 1 April 2005 that court rejected the cassation appeal. It noted that the seven-day time-limit for lodging a request for leave to appeal out of time had started, at the latest and if counted in a manner most advantageous to the applicant, on the day when the legal-aid lawyer had had an opportunity to have effective access to the case file. In the present case that time-limit had started to run on 19 November 2004, while the request had been lodged with the court on 1 December 2004. It had therefore to be rejected for failure to comply with the time-limit.

The lawyer appealed. On 1 April 2005 the Supreme Administrative Court upheld the contested decision and shared the legal view expressed by the regional court.

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010.

In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination.

When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legallyaided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007).

In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant caselaw of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case. The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legalaid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).


Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Vitaliy Sergeyevich Petrov, is a Russian national who was born in 1948 and lives in Orsk. He is represented before the Court by Mr S. Kiryukhin, a lawyer practising in Orsk, Orenburg region.

The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

On 19 August 2008 the Orenburg Region Department of the Interior opened a criminal investigation of the activities of Volna LLC. Yu., the director of the said company, testified that S. Kiryukhin was de facto in charge of the company’s activities.

The investigator established that Mr Kiryukhin had visited a certain law office on several occasions, and asked the court to authorise a search of its premises in order to seize the company’s financial documents and stamps.

On 27 August 2004 the Orsk Leninskiy District Court granted the investigator’s request. The court order referred to a search of a law office located in a block of flats. Neither the applicant’s name nor specific flats owned by him were indicated. The applicant’s flats were searched the same day on the basis of the court order.

On 7 September 2004 the applicant complained to the court. He sought to have the search declared unlawful.

On 4 November 2004 the District Court dismissed the applicant’s complaint. The court found that the search had been carried out in accordance with the applicable provisions of the rules of criminal procedure. The applicant appealed, alleging that the court had erred in matters of law.

On 14 December 2004 the Orenburg Regional Court upheld the decision of 4 November 2004 on appeal. The court dismissed the applicant’s allegations as unsubstantiated and found no violation of any applicable law. The court noted that the search had been subject to prior judicial approval and had been conducted by authorised persons.

On 27 April 2009 the Presidium of the Orenburg Regional Court quashed, by way of supervisory review, the decisions of 4 November and 14 December 2004 and remitted the matter for fresh consideration.

On 14 May 2009 the District Court allowed the applicant’s claim and found the search of the applicant’s flats to be in contravention of Article 25 of the Constitution of the Russian Federation. The court established that the order of 27 August 2004 had not authorised a search of the applicant’s flats. It also accepted the applicant’s argument that police officer A., who had conducted the search of the flats, had not been authorised to do so.

On 23 June 2009 the Regional Court upheld the decision of 14 May 2009 on appeal.

The Constitution of the Russian Federation establishes that the home is inviolable. No one shall enter a dwelling against the will of those living there, unless otherwise established by a federal law or in accordance with a court order (Article 25).


Violation of Art. 3 (substantive aspect)

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicants were born in 1977 and 1979 respectively.

On 29 June 2004 a large group of demonstrators, including the applicants, gathered in Istiklal Street in front of the Galatasaray High School in Istanbul to attend the reading out of a statement to the press in protest against the NATO summit which was being held in Istanbul on 28-29 June 2004. The demonstration was organised by KESK (Kamu Emekçileri Sendikaları Konfederasyonu – The Confederation of Public Employees’ Trade Unions). A large group of police officers, all wearing helmets and gas masks and equipped with the necessary material, was also deployed to the area. Nearly 500 demonstrators took part in the demonstration and slogans were chanted against NATO. After the statement was read out by the representative of KESK, the demonstrators started to disperse. A small group of demonstrators, carrying the flags of their non-governmental organisation Halkevleri Derneği (Peoples’ Houses), walked towards the police officers who had blocked Istiklal Street to prevent the group from approaching Taksim Square. The demonstrators attacked the police officers with sticks and stones and the police officers used tear gas and truncheons to disperse the group. Some of the nearby shops and vehicles were damaged during the incident. According to the incident report, six police officers were wounded during the incident.

The applicants, who had listened to the press statement, were arrested during this incident. According to the applicants, they were beaten and insulted during and after their arrest. The same day, they were taken to the Bayrampaşa Health Clinic for a medical examination. According to the applicants, the doctor examined them in the presence of the police officers. A copy of the medical report is not included in the case file.

On 30 June 2004 the applicants were taken to the Beyoğlu Forensic Medicine Institute for a further medical examination. The doctor who examined the applicants concluded that both of them were unfit to work for seven days. The following findings were noted in the medical report:

– Serdar Güler: Large bruises on the back of the upper left arm, bruises on the back, bruises on the shoulders and on the waist, bruises on the right shoulder, bruises on the left gluteal region, tenderness of the left leg.

– Savaş Kurtuluş Öngel: Several bruises on the back of the left shoulder, bruise on the upper side of the right shoulder blade, bruises on the left and right sides of the back, a bleeding wound on the left elbow, a bruise on the right knee, bruises on the left knee. The doctor also noted that the applicant had a nose bleed.

The same day, the applicants were released upon the order of the Beyoğlu Public Prosecutor.

On 18 July 2004 the applicants filed a petition with the Beyoğlu public prosecutor against the police officers who had carried out their arrest. In their petition, the applicants complained, inter alia, that their arrest had been unlawful and that the police officers had used excessive force during and after the arrest.

On 2 November 2004 the Beyoğlu public prosecutor issued a decision of non-prosecution in respect of the police officers who had been on duty at the relevant time. In his decision, the public prosecutor considered that the force used by the security forces had been in line with Article 16 of Law no. 2559 on the Duties and Powers of the Police and had not been excessive. In the public prosecutor’s opinion, the injuries sustained by the applicants had been caused by a use of force which was proportionate. In delivering this decision, the public prosecutor had regard to the fact that after the press statement had been read out, a group of seventy people had not dispersed and had attacked the police officers with sticks and stones, also causing damage to nearby shops and vehicles. In the public prosecutor’s opinion, the force used by the police had therefore been proportionate.

On 29 December 2004 the applicants filed an objection against the public prosecutor’s decision.

On 13 December 2005 the Istanbul Assize Court dismissed the applicants’ objection.

In the meantime, on 30 June 2004, the Beyoğlu public prosecutor filed a bill of indictment against eighteen accused, including the applicants, with the Beyoğlu Criminal Court and accused them under Article 32 of Law no. 2911 of taking part in an illegal demonstration without prior authorisation and of not dispersing despite the police officers’ warning. Five police officers, who had been wounded during the incident, joined the proceedings as intervening parties.

On 7 March 2006 the Beyoğlu Criminal Court acquitted the applicants of the charges against them. In delivering its decision, the Criminal Court had regard to a video recording of the incident, to witness statements and to the submissions of the intervening parties. The court found it established that the applicants were not amongst the demonstrators who had been carrying “Halkevleri” flags and had attacked the police officers. The court accordingly stated that there was no evidence in the file to support a finding that the applicants had violated Law no. 2911 or resisted the police officers as alleged.

Article 16 of Law no. 2559 on the Duties and Powers of the Police provides:

“The police may use firearms:

(a) In self defence, ...;

(h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.”

“In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary, threat of attack or an attack, the police may use force to subdue these actions.

Use of force refers to the use of bodily force, physical force and all types of weapons specified in the law and may gradually increase according to the nature and level of resistance or attack with a view to restoring calm.

In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force.”


PREUSSISCHE TREUHAND GMBH AND CO. KG A. A. v. POLAND

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Preußische Treuhand GmbH & Co. KG a.A. (“the applicant company”), is a German legal person – a limited partnership – with its registered office in Düsseldorf. It pursued the application on behalf of, and in connection with facts concerning, twenty-three natural persons (“the individual applicants”), its shareholders, all German nationals who authorised the applicant company to act for them in the proceedings before the Court. Their names and personal details are listed in an annex attached to the present decision. The applicant company was represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.

The Nazi authorities prepared plans for the evacuation of German civilians from eastern Europe, including from what are now the western and northern parts of Poland situated east of the Oder-Neisse line, towards the end of the Second World War. The implementation of the plans started on various dates. Most of the evacuation began in January 1945 and continued throughout March or even April 1945.

The evacuation of East Prussia was effected in three stages. The first took place in July 1944, the second in October 1944. The population was evacuated to Pomerania and Saxony. The third stage started on 20 January 1945, during the Soviet offensive, and was carried out throughout that month. The capital city, Königsberg, surrendered to the Soviets on 9 April 1945. The Red Army took control of this territory in May 1945. It was later annexed to the Soviet Union and at present belongs to the Russian Federation.

The evacuation of Pomerania started in January 1945 but was delayed and further suspended (at the end of February 1945) on account of the fact that massive groups of people evacuated from East Prussia had filled the territory.

The evacuation of Silesia began on 19 January 1945. The population was evacuated to Saxony and Bohemia.

The evacuation of East Brandenburg (Neumark) and Greater Poland (Wielkopolska) started on 20 January 1945.

The Polish State, by virtue of several laws enacted in 1945 and 1946, formally expropriated the property left behind by Germans following their evacuation or expulsion or still occupied by them in the former German territories east of the Oder-Neisse line. The expropriation laws concerned agricultural and forest land, industry and enterprises and other “post-German” property (see paragraph 39 below).

They included laws not addressed exclusively to Germans, for instance decrees on the takeover by the State of certain forests and the 1946 nationalisation law, whereby most private owners either had their property expropriated entirely (with or without compensation) or could retain only a certain proportion of it. However, Germans were treated differently since size limitations did not apply to their property, which was expropriated without compensation.

The second group of laws specifically concerned the takeover of German property, with a separate set of regulations regarding the “Regained Territories” and the confiscation of property belonging to persons – Germans or others – who were disloyal to the Polish State or nation during the war. They included the Law of 6 May 1945 on Abandoned and Derelict Property (ustawa o majątkach opuszczonych i porzuconych – “the 1945 Act”), the Decree of 8 March 1946 on abandoned or post-German property (dekret o majątkach opuszczonych i poniemieckich – “the March 1946 Decree”), the Decree of 6 September 1946 on the agrarian system and settlement in the Regained Territories and the former Free City of Gdańsk (dekret o ustroju rolnym i osadnictwie na obszarze Ziem Odzyskanych i byłego Wolnego Miasta Gdańska – “the September 1946 Decree”) and the Decree of 15 November 1946 on the seizure of property of States at war with the Polish State in the years 1939-45 and of property of legal persons and citizens of those States and on the receivership of such property (dekret o zajęciu majątków państw pozostających z Państwem Polskim w stanie wojny w latach 1939-45 i majątków osób prawnych i obywateli tych państw oraz o zarządzie przymusowym nad tymi majątkami).

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

In January 1945, having learned of the Allies' decision to divide Germany into occupation zones, the applicant's family left their farm in Dammfelde (at present Dąbrówka Mała), owned by the applicant's father, H.L., before the advancing Red Army arrived. They reached the British occupation zone. The applicant submits that he has still not been allowed to return to his home and has been refused restitution of his property.

M.B., the applicant's mother, was driven from her family farm in Rohnstock (at present Roztoka) and died, while fleeing, on 12 or 16 April 1945. The applicant, as his mother's heir, has still not been allowed to return to the family's home and has been refused restitution of his property.

At the end of January 1945 the applicant and her brothers and sisters, together with an aunt and her family, left their place of residence, Wisenthal-Röhrsdorf (at present Osowa Sień), in the district of Fraustadt (at present the Wschów District) in Lower Silesia to escape the advancing Red Army. They and the other Germans had an hour to join a convoy of horse-drawn vehicles in the neighbouring village of Röhrsdorf. The applicant's grandfather, E.G., after the applicant and her family had been forced to leave, was shot or beaten to death by Soviet troops on his own farm, and the farm buildings were burned. The house, however, survived.

After spending a long time on the road and enduring severe hardship, the applicant and her family reached Saxony. They have still not been allowed to return to their home and have been refused restitution.

In late January or early February 1945, the applicant and his family were forced to leave their farm in Ziegellscheune (at present Wszewniki). Each person was allowed to take only one suitcase. From the railway station at Militsch (at present Milicz), they were taken west in cattle wagons, experiencing the bombing of Dresden on the way. The applicant and his family eventually reached Altenroda (Thuringia). In June 1957 he left the former German Democratic Republic and moved to the Federal Republic of Germany. He has still not been allowed to return to his property and has been refused restitution.

On 4 March 1945, the applicant's parents and their children were forced to leave their house in Massow (at present Maszewo) since the Red Army was some 20 kilometres away and their evacuation was ordered. Nonetheless, they later returned to Massow, where, according to him, looting, rape and so on were daily occurrences.

In September and October 1945 the first Poles arrived, taking over homes and farms. At the end of October 1945 the family's farm was confiscated by the Polish militia. The applicant's father was later arrested by Poles, and taken without reason to the police station at Stettin (at present Szczecin), where he suffered ill-treatment for six weeks. He was then brought before a judge and released. The applicant himself, whose arrest had also been planned, was forced to work for nothing on the farm without any help. Early in 1946, the Poles began to deport the Germans from Stolzenhagen (at present Stolczyn). Since the family's residence permits were due to expire on 31 May 1946, they first went to Odermünde and then to Pölitz, finally reaching the British occupation zone in July 1946. They have still not been allowed to return to their property and have been refused restitution. The family also left behind property in Stettin-Stolzenberg (at present Szczecin-Stołczyn).

In January 1945, the applicant's grandparents were expelled from Zoppot (at present Sopot). They went overland westwards.

The applicant has still not been allowed to return to his family home and restitution has been refused.

In 1946 the applicant's mother and her family were expelled from their farm in Ober Ohlisch (at present Olszówka Górna) by the Polish militia. They were not allowed to take anything with them. The applicant and her mother went first to Polish neighbours, who gave them a room. The applicant's mother had previously been denounced and falsely accused of stealing a horse's harness from a Pole. For three weeks, she was required to report daily to the militia, where she spent the day cleaning toilets and other rooms in the barracks, and looking on while other Germans were questioned and beaten. The applicant and her mother then went back to their home, which had been given to another Pole in the meantime. They were given the room in which the grandmother was still living, but were not allowed to use the toilet or water, and stones were thrown through their window. They also had to pay rent. Having found other quarters, they finally left in 1956.

They remained in Poland until 24 June 1989, and then travelled on a visitor's visa to the Federal Republic of Germany, where they decided to stay and where they still live.

The applicant submits that they have repeatedly applied to the Polish authorities for restitution of their property, but have been refused on the ground that, as Germans, they have not been rehabilitated. The applicant has not submitted any documents or other evidence showing that she submitted her claims to any Polish administrative, judicial or other authority.

In May 1946, the applicant's father and his family were visited by Polish militiamen in their house in Bad Charlottenbrunn (at present Jedlina Zdrój) and told that they were to be deported at once. They were given about an hour to pack essentials, and each was allowed to take only 20 kilograms of luggage. They marched five kilometres to the station and were loaded onto open goods wagons. As the journey went on, many people were robbed of their last belongings. There were repeated body-searches, and Germans were ordered by loudspeaker to hand over valuables, such as savings books, and threatened with severe punishment if they failed to comply. The applicant's father and his family eventually succeeded in reaching the Western occupation zone. The applicant has still not been allowed to return to his family home and has been refused restitution.

On 20 January 1945, following an order for Germans to leave Stołężyn and report in Schwarzacker, the applicant and other members of his family fled their home. They stopped in Czarnikau (at present Czarnków), where all the roads were blocked, and they could proceed no further. Red Army soldiers suddenly turned up and were on the point of shooting the applicant – even old people and children had been killed simply because they were German – but a Pole stepped in to protect him. All their belongings were taken, but the family escaped alive.

On 23 January 1945 the Soviets ordered the family to return to their home, which they reached on 25 January 1945. The house had been looted. In February 1945, Polish militiamen expelled them again, and they were taken to an internment camp at Elsenau (at present Damasławek), where the last of their belongings were taken, and where they were seriously maltreated. Eventually, they were forced to leave their homeland. They have still not been allowed to return to their home and have been refused restitution.

The applicant's grandmother P.N. wished to stay on the family farm in Ridbach (at present Rzeck), but the applicant, his mother and his sister had left by ship in 1945 before the Red Army arrived. The grandmother was shot on the farm shortly afterwards by Red Army soldiers.

Since the end of the war the applicant and other members of his family have not been allowed to return to their home and have been refused restitution.

In August 1946 the applicant's father and his family were driven at gunpoint from their house and market garden in Bad Charlottenbrunn (at present Jedlina-Zdrój) in Lower Silesia. Polish militiamen told them that they had to be in the street and ready to leave within an hour. They marched with others under police escort to the railway station, some five kilometres away, and various pieces of their luggage were stolen on the way. They were taken in goods wagons to the district town, Waldenburg (at present Wałbrzych), where they were again searched and lost more of their belongings. They were taken towards the Oder-Neisse crossing and from there to the Soviet occupation zone. The applicant has still not been allowed to return to his home and restitution has been refused.

The applicant submits that his parents' names had been entered in the Beuthen (at present Bytom in Poland) property register as half-share owners of two houses. They lived in, and did not flee, their home in Königsberg (at present Kaliningrad, in Russia) when the war ended. The applicant has never been able to find out what happened to his mother when the Red Army entered Königsberg. She was probably sentenced to forced labour and died in 1947. The applicant has still not been allowed to return to his property and restitution has been refused.

In February 1945 the applicant's grandparents still lived on their farm in Ober-Görrisseiffen (at present Płóczki Górne), in an area already occupied by Soviet troops. One evening, anti-aircraft batteries opened up in the area and the grandparents were ordered to start moving east. They packed essentials and secretly headed west, in the hope of joining other members of the family, following the German army as it retreated. When the war ended on 8 May 1945, they returned to Löwenberg (at present Lwówek Śląski), where their house was the only one not yet looted. At the end of June 1945, given the time to pack only the barest of essentials, they were taken away. Those who wanted to stay were arrested or immediately shot. After stopping in various places on the way, they eventually reached the West, getting as far as the Rhineland.

The applicant has still not been allowed to return to her lost homeland and has been refused restitution.

On 3 March 1945 the applicant and his parents fled their property in Pomerania with other landowners to escape the approaching Red Army. They reached Testorf in Holstein on 23 March 1945. The applicant has still not been allowed to return to his home and has been refused restitution.

Until the end of the War, the applicant's mother lived on her farm in Schönhorst (at present Gniazdowo) in the region of the former Free City of Danzig. On 24 January 1945 she was ordered to leave. She fled with carts, heading west, eventually reaching Sittensen, in the Bremervörde district, in March 1945. The applicant has still not been allowed to return to her family home and restitution has been refused.

The applicant and her family were forced to leave their home in Treuburg (at present Olecko) to escape the advancing Red Army in January 1945. They fled, eventually reaching Berlin. They headed further west, and were overtaken by Soviet troops in Mecklenburg. They have still not been allowed to return to their home and have been refused restitution.

On 9 July 1947, the applicant's father and his family were forced to leave their 27.14 hectare farm in Lokau (at present Tłokowo). The applicant has still not been allowed to return to her home area, and has been refused restitution.

The applicant submits that his family were among those Germans who had not been deported by the Soviets but were expelled by the Poles from areas east of the Oder on 27 June 1945. They were allowed to take only bare essentials with them. The applicant's uncle (later declared dead on 31 December 1945) was not in Stolzenfelde (at present Stołeczna) at the time, and his wife had died there on 20 February 1945. They did not experience the expulsion – unlike the applicant and his surviving relatives, who have so far been refused rehabilitation and restitution.

The applicant's great-aunt and her family survived the heavy air raid on Swinemünde (at present Świnoujście), which took place on 12 March 1945, and were also left unharmed when the Red Army arrived on 5 May 1945. On 6 October 1945 Poland took over Swinemünde and Polish civilians started to attack and rob Germans. In April 1946 the Polish militia ordered the applicant and his mother to leave, taking only the barest personal essentials with them. The applicant's great-aunt and grandmother were at first unwilling to leave, but the threat of violence left them no choice and they eventually reached Stralsund in summer 1947. The applicant and his mother had already fled to Stralsund in April 1946.

All members of his family have consistently been refused rehabilitation and restitution.

On 22 October 1944 the applicant and her parents fled their home village Moschenen (at present Możne) in the Treuburg District (at present the Olecko District). They reached the Sensburg (at present Mrągowo) District in East Prussia, but could get no further, since all the roads were blocked by refugees. They decided to return to the lodgings they had found in the Sensburg district, where they saw German civilians murdered when the Red Army arrived. One of the victims was the applicant's father, who was shot in early February 1945.

In June 1945, the applicant and her mother set off for their home village of Moschenen, to see if their farm was still there, but the Poles who were already in possession of it immediately reported their arrival to the Soviet authorities in Treuburg. Threatened with shooting and unable to reclaim their farm, their only choice was again to flee.

The family have been refused rehabilitation and restitution.

On 29 January 1945 the applicant and his parents fled their home in Heilsberg (at present Lidzbark Warmiński), escaping the advancing Red Army, first to Heiligenbeil (at present Mamanowo) and then, at the beginning of February 1945, to Danzig. When the Red Army entered on 27 or 28 March 1945 all refugees were ordered back to their homes. At the end of May 1945, the family set out on foot, with a handcart, for their home in Heilsberg. The parents' houses were still occupied by Soviet troops and the refugees were housed by relatives. At the end of July 1945 they were expelled from Poland, and taken by goods train via Bischoffsstein (at present Bisztynek) to Berlin, losing various belongings to thieves on the way. They eventually arrived at Beckum in Westphalia on 1 February 1946.

The applicant, like his deceased relatives, has been refused rehabilitation and restitution.

Preußische Treuhand was founded in 2000 as a self-help organisation of “displaced persons from private German properties in the expulsion territories”. It seeks to secure and execute the restitution of the confiscated properties of Germans expelled from territories which after the Second World War became parts of various eastern European States, including Poland. Preußische Treuhand proclaims that it represents and promotes the ownership rights of single individuals and asserts them legally and commercially.

The Yalta Conference, which was held by the Allied leaders, Churchill, Roosevelt and Stalin, from 4 to 11 February 1945, was devoted to the final strategy of the Second World War and the proposed future occupation of Germany. It was agreed that the new border between Poland and the Soviet Union would be drawn along the Curzon line, which meant that part of Poland's eastern border was to be fixed along the Bug River, whose central course formed part of that line, and that the Polish eastern provinces (at present, parts of Belarus, Lithuania and Ukraine) were to be annexed to the Soviet Union (see also paragraph 3 above). Poland was to be granted territorial compensation in the west. Stalin proposed the Oder-Neisse line as a new Polish-German border but the matter was eventually left for decision at the further conference, which was held in Potsdam.

The Potsdam Agreement, an agreement on policy for the occupation and reconstruction of Germany after the Second World War and the German surrender of 8 May 1945, adopted by the Three Heads of Government of the United States (USA), the United Kingdom (UK) and the Union of Soviet Socialist Republics (USSR) (“the Three Powers”), set out, among other things, the principles governing war reparations from Germany (Chapter III: “Reparations from Germany”), the delimitation of the border with Poland (Chapter VIII B: “Western frontier of Poland”) and the repatriation of German nationals to Germany (Chapter XII: “Orderly transfer of German population”).

The provisions of the chapter “Reparations from Germany” read, in so far as relevant, as follows:

“1. Reparation claims of the USSR shall be met by removals from the zone of Germany occupied by the USSR and from appropriate external German assets.

The USSR undertakes to settle the reparation claims of Poland from its own share of reparations.”

The sub-chapter “Western frontier of Poland” reads, in so far as relevant, as follows:

“The three heads of Government agree that, pending the final determination of Poland's western frontier, the former German territories east of a line running from the Baltic Sea immediately west of Swinemünde, and thence along the Oder River to the confluence of the Western Neisse River and along the Western Neisse to the Czechoslovak frontier, including that portion of East Prussia not placed under the administration of the Union of Soviet Socialist Republics in accordance with the understanding reached at this conference and including the area of the former Free City of Danzig, shall be under the administration of the Polish State and for such purposes should not be considered as part of the Soviet zone of occupation in Germany.”

The chapter “Orderly transfer of German populations” reads, in so far as relevant, as follows:

“The Three Governments, having considered the question in all its aspects, recognise that the transfer to Germany of German populations, or elements thereof, remaining in Poland, Czechoslovakia and Hungary, will have to be undertaken. They agree that any transfers that take place should be effected in an orderly and humane manner.

Since the influx of a large number of Germans into Germany would increase the burden already resting on the occupying authorities, they consider that the Control Council in Germany should in the first instance examine the problem, with special regard to the question of the equitable distribution of these Germans among the several zones of occupation. They are accordingly instructing their respective representatives on the Control Council to report to their Governments as soon as possible the extent to which such persons have already entered Germany from Poland, Czechoslovakia and Hungary, to submit an estimate of the time and rate at which further transfers could be carried out having regard to the present situation in Germany.

The Czechoslovak Government, the Polish Provisional Government and the Control Council in Hungary are at the same time being informed of the above and are being requested meanwhile to suspend further expulsions pending an examination by the Governments concerned of the report from their representatives on the Control Council.”

The issue of war reparations for Poland, which in accordance with the Potsdam Agreement were to be settled by the Soviet Union from its share (see paragraph 32 above), was resolved by a bilateral treaty between the USSR and Poland, namely the Agreement of 16 August 1945 between the Polish Provisional Government of National Unity and the government of the USSR on compensation for financial losses sustained during the German occupation (umowa między Tymczasowym Rządem Jedności Narodowej RP a Rządem ZSRR o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką). Under the terms of the agreement, the USSR relinquished to Poland all its claims to German assets located on Polish territory, including the portion of German territory east of the Oder-Neisse line that was to be assigned to Poland. It was assumed that this treaty constituted an instrument for the implementation of the Potsdam Agreement and a basis for Poland's takeover of German property located in Poland within the borders as fixed by that Agreement.

The so-called “Treaty of Zgorzelec”, that is, the Agreement concerning the demarcation of the established and the existing Polish-German State frontier, was signed by the heads of government of the Polish People's Republic and the German Democratic Republic (“the former GDR”) in Zgorzelec (in German, Görlitz) on 6 July 1950. It recognised and acknowledged the Oder-Neisse line as referred to in the Potsdam Agreement as the border between Poland and the former GDR. The treaty, although considered valid and binding by the Contracting States, was not accepted by the authorities of the former Federal Republic of Germany (“the former FRG”).

The Treaty between the German Democratic Republic and the Polish People's Republic on the Delimitation of the Sea Area in the Oder Bay, concluded on 22 May 1989, was a subsequent instrument aimed at the implementation of the provisions of the Treaty of Zgorzelec concerning the Polish-German state border. It concerned the delimitation of the territorial sea, the continental shelf and the fishery zones of both States.

The Agreement between the Polish People's Republic and the Federal Republic of Germany concerning the basis for normalisation of their mutual relations, also called the Treaty of Warsaw (in German, Warschauer Vertrag), was an agreement concluded by the former FRG and Poland on 7 December 1970. It was ratified by the FRG's Parliament (Bundestag) on 17 May 1972. Under the terms of that Treaty, the parties committed themselves to non-violence, affirming that any disputes between them were to be resolved by peaceful means, that they would refrain from the use, or the threat, of force and that they would take steps aimed at full normalisation and further development of their mutual relations.

Article 1 of the Treaty read:

“(1) The Federal Republic of Germany and Polish People's Republic state in mutual agreement that the existing boundary line, the course of which is laid down in Chapter IX of the decisions of the Potsdam Conference of 2 August 1945 as running from the Baltic Sea immediately west of Swinemünde, and thence along the Oder River to the confluence of the Western Neisse River and along the Western Neisse to the Czechoslovak frontier, shall constitute the western State frontier of the Polish People's Republic.

(2) They reaffirm the inviolability of their existing frontiers now and in the future and undertake to respect each other's territorial integrity without restriction.

(3) They declare that they have no territorial claims whatsoever against each other and that they will not assert such claims in the future.”

After German reunification by virtue of the Unification Treaty (Einigungsvertrag) of 31 August 1990, the frontier between Poland and Germany, as established under the Potsdam Agreement and endorsed by further treaties with former separate German States, was confirmed by the Treaty of 14 November 1990 in the following way:

“The Contracting Parties reaffirm the frontier between them, whose course is defined in the Agreement between the Polish Republic and the German Democratic Republic concerning the demarcation of the established and existing Polish-German State frontier of 6 July 1950 and agreements concluded with a view to implementing and supplementing the Agreement (Instrument confirming the demarcation of the State frontier between Poland and Germany of 27 January 1951; Agreement between the Polish People's Republic and the German Democratic Republic regarding the delimitation of the sea areas in the Oder Bay of 22 May 1989, as well as the Agreement between the Polish People's Republic and the Federal Republic of Germany concerning the basis for normalisation of their mutual relations of 7 December 1970).”

“The Contracting Parties declare that the frontier between them is inviolable now and in future and mutually pledge to respect unconditionally their sovereignty and territorial integrity.”

“The Contracting Parties declare that they have no territorial claims against each other and they shall not put forward such claims in future.”

Under section 1 of the 1945 Act, any movable or immovable property which in connection with the war that began on 1 September 1939 was not in the possession of its owners or their legal heirs or representatives was considered abandoned property. Section 2 stated that any movable or immovable property which had been owned or possessed by the German State and on the date of the entry into force of the 1945 Act had not yet been taken over by the Polish authorities, as well as property of German citizens or persons who had defected, was considered “derelict property” for the purposes of that Act. Under section 5 of the 1945 Act, all abandoned or derelict property was placed under State administration. In contrast to German – “derelict” – property, abandoned property could be repossessed by the owners or their close relatives on application.

The March 1946 Decree replaced the 1945 Act. It entered into force on 19 April 1946 and was repealed on 1 August 1985.

As regards the two types of property referred to therein, “abandoned” covered mostly property owned by Jews in Poland, possession of which they had lost in consequence of the war and the Holocaust, whereas “post-German” covered property owned by the German Reich and German natural and legal persons.

“Abandoned property” was defined by section 1 of the March 1946 Decree. This provision read, in so far as relevant, as follows:

“1(1). Any property (movable or immovable) of persons who in connection with the war that began on 1 September 1939 lost and did not subsequently recover possession of it shall be considered abandoned property within the meaning of this Decree.”

Under sections 15 et seq., owners of abandoned property could apply for, and obtain, its restoration. The deadline for making such applications was set at 31 December 1948. The State acquired ownership of such property by prescription within five years (as regards movables) and ten years (as regards immovable property), which started running “at the end of the calendar year in which the war ended”.

Pursuant to section 2, “post-German” property was to be taken over by the State and neither compensation nor restoration procedures applied. Section 2 read, in so far as relevant, as follows:

“2(1). By virtue of the law, any of the following kinds of property shall, in its entirety, be taken over by the State Treasury:

(a) belonging to the German Reich and the former Free City of Gdańsk;

(b) belonging to citizens of the German Reich and the former Free City of Gdańsk;

(c) belonging to German and Gdańsk legal persons, except public-law legal persons;

(d) belonging to companies controlled by German or Gdańsk citizens or by the German or Gdańsk administration;

(e) belonging to persons who have defected.

2(2) The preceding provision shall not apply to the necessary personal items belonging to the persons referred to in subsections (a) and (b).”

The September 1946 Decree entered into force on 14 October 1946 and, although amended on several occasions, has not yet been repealed.

Pursuant to section 1, all agricultural and forest land (the latter if its surface exceeded 25 hectares), except for land already owned by natural persons, was designated for securing a pool of property for Polish citizens who moved there within the framework of the “settlement action” carried out by the authorities. The action concerned mostly persons resettled from the former eastern provinces of Poland beyond the Bug River, taken over by the Soviet Union (see paragraph 3 above).

This was the final decree on the expropriation of property of German persons. Its purpose was to secure the definite takeover of property which might not have been covered by the previous expropriation laws.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

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

In 1951 the State authorities took more than three hectares of land from a relative of the applicants. No compensation was paid to the owner.

The applicants unsuccessfully claimed restitution of the land under Law no. 503/2003. In particular, in a judgment of 13 December 2006 the Supreme Court held, in a review of the decisions made at lower levels of jurisdiction, that the land had been formally transferred to the State pursuant to Ordinance 15/1959. Section 3 of Law no. 503/2003 did not include such a situation as grounds for restitution of property. The applicants could have claimed restitution of the land earlier, under Law no. 403/1990, but they had not done so.

On 23 April 2007 the applicants lodged a complaint with the Constitutional Court. They alleged a breach of Article 6 § 1 of the Convention, and also of their constitutional right to own property.

In particular, the applicants argued that the land had been expropriated without compensation. It was therefore liable to restitution under section 3(1)(m) and (n) of Law no. 503/2003, irrespective of the fact that that law contained no reference to Ordinance 15/1959. They referred to the Supreme Court’s judgment 3SžoKS 130/2005 of 9 June 2006, which found that a situation similar to that of the applicants fell under Law no. 503/2003.

On 25 October 2007 the Constitutional Court dismissed the complaint (decision III. ÚS 287/07). It held that the Supreme Court had given sufficient reasons for its judgment, which was neither arbitrary nor otherwise contrary to the constitutional principles. It was not for the Constitutional Court to review the way in which ordinary courts interpreted and applied the law unless it resulted in a breach of the Constitution.

The decision was served on 18 December 2007.

Law no 503/2003 governs restitution of agricultural land and forests.

Cases in which land is to be restored to owners or their successors are listed in section 3. In particular, sub-section 1(m) of section 3 refers to situations where land has been expropriated without compensation. Subsection 1(n) refers to nationalisation contrary to the legal rules then in force or without compensation.

In its judgment 3SžoKS 130/2005 of 9 June 2006 the Supreme Court held that transfer of property under Ordinance 15/1959 without compensation was to be qualified as a reason for restitution of such property under section 3(1)(m) of Law no. 503/2003. Any other interpretation of that provision would run contrary to the Constitution.

The same conclusion was reached in judgment 6 Sžo 240/2008 of 14 October 2009 as rectified by the decision under the same file number of 27 November 2009.

In an unspecified number of other decisions the Supreme Court expressed a different view on the matter, namely the same as expressed in the above judgment on the applicant’s case of 13 December 2006.

In judgment IV. ÚS 209/2010 of 16 September 2010 the Constitutional Court found, with reference to the Supreme Court judgments 3SžoKS 130/2005 of 9 June 2006 and 6 Sžo 240/2008 of 14 October 2009 (see paragraphs 13 and 14 above), that the varying practice on the part of the Supreme Court when determining whether expropriation of land under Ordinance 15/1959 fell under Law no. 503/2003 ran contrary to the principle of legal certainty. That in itself justified the conclusion that the plaintiff’s constitutional rights had been breached.

In the same judgment the Constitutional Court further found that the Supreme Court’s view, that land expropriated under Ordinance 15/1959 could not be restored under Law no. 503/2003, was formalistic and contrary to the purpose of that Law. The explanatory report to Law no. 503/2003 specified that it extended to individuals who could have, but had not, submitted their claim within time-limits set in different pieces of legislation which had been enacted previously.

The Constitutional Court quashed the Supreme Court’s judgment in issue and returned the case to the latter.

Subsequently, similar views and conclusions were reached in other judgments of the Constitutional Court (III. ÚS 212/2010, III. ÚS 185/2010 or I. ÚS 407/2010).


The applicant, Ms Irina Ščiukina, is a Lithuanian national who was born in 1958 and lives in Klaipėda. She was represented before the Court by Mr L. Zubanovas, a lawyer practising in Klaipėda. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

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

On 19 April 1999 the applicant’s dog, a pit-bull terrier, attacked an 11 year old child, severely biting and injuring him. The prosecution instituted criminal proceedings under Article 115 of the Criminal Code (causing medium bodily harm by negligence), which were subsequently discontinued, as no evidence of a crime was disclosed.

Nevertheless, in its decision of 15 July 1999, the police found the applicant guilty of an administrative offence. The decision stated that the applicant’s dog had bitten the child, and thus the applicant was liable under Article 110 § 2 of the Code of Administrative Offences (a breach of the pet-keeping rules, causing an injury). She was fined LTL 300 (about EUR 90). The applicant did not dispute that decision, and paid the fine.

On 15 November 2000 the prosecution re-opened the criminal proceedings against the applicant.

On 22 November 2000 a fresh medical expert examination confirmed the seriousness of the injuries caused to the boy, finding that he would need plastic surgery.

On 14 December 2000 the applicant was charged with causing medium bodily harm by negligence (Article 115 of the Criminal Code) and remanded on bail, with a written obligation not to leave her place of residence. The applicant did not appeal against this restriction.

On 19 March 2001 the Klaipėda City District Court acquitted the applicant. It was established that the applicant was not guilty of a criminal offence but rather of an administrative violation for which she had already been punished.

On 29 May 2001 the Klaipėda Regional Court reversed this judgment, finding the applicant guilty. The appellate court noted the gravity of the injuries sustained by the boy (bite wounds on his nose, forehead, cheeks, arm and leg). The court also found that the applicant’s behaviour had been negligent, in that she had walked her dog without a muzzle, although the animal was of a dangerous breed. In view of these factors, the court concluded that the applicant’s acts must attract criminal rather than administrative responsibility. The applicant was sentenced to nine months’ imprisonment, but the sentence was rescinded by virtue of an amnesty act. The applicant lodged a cassation appeal.

On 13 November 2001 the Supreme Court upheld the applicant’s conviction. It established that the applicant had been criminally liable for having caused medium bodily harm by negligence.

The Supreme Court noted that in cases where the same acts attracted both criminal and administrative liability, the nature of the offence was a criterion determining which procedure ought to be applied. In particular, if the nature of the act made it punishable under the criminal law, the person should be held liable under criminal law. If the nature of the offence was not such as to attract criminal liability, a person would be held liable under the administrative law. The Supreme Court went on to say:

“It was established that the applicant had caused medium bodily harm by negligence, therefore, she has been rightly convicted under Article 115 of the Criminal Code.

The fact that [the applicant] has been punished for the same acts by way of an administrative procedure is not a valid ground to discontinue the criminal proceedings, since such a ground is not foreseen by the Code of Criminal Procedure. However, a person cannot be punished twice for the same offence, because it is contrary to Article 31 § 5 of the Constitution and Article 3 § 4 of the Code of Criminal Procedure. Since [the applicant] has been reasonably convicted under Article 115 of the Criminal Code, the issue of the lawfulness of the administrative decision to fine [the applicant] can be reconsidered in accordance with the [Code of Administrative Offences].”

Article 31 of the Constitution of the Republic of Lithuania states as follows:

“...Punishment may be imposed or applied on the grounds established by law. No one may be punished for the same criminal offence twice. ...”

Article 3 of the Criminal Code (as then in force) stipulated:

“A person shall be held liable only when the act committed is forbidden by a criminal statute which came into force before the commission of the offence ...

No one shall be punished for the same criminal act twice ...”

The then Article 115 of the Criminal Code provided for criminal liability for causing serious or medium bodily harm by negligence.

Article 110 of the Code of Administrative Offences (as then in force) provided:

“Any person who breaches pet-keeping rules - approved by the Municipal Council - shall be punished by a warning or fine of up to 100 litai. The same act, committed repeatedly or when causing damage to the health or property of others - shall be punished by a fine between 100 to 3,000 litai.”

The then Article 291 of the Code of Administrative Offences provided for a right of appeal against a decision to impose an administrative penalty.

The then Article 301 of that Code stipulated:

“Where a decision finding a person liable for an administrative offence has been quashed, the [fine] paid shall be reimbursed ... and other restrictions relating to the [administrative penalty] shall be repealed.”