The applicant, Mr Konstantin Vladimirovich Lozhkin, is a Russian national who was born in 1971 and lives in the town of Kandalaksha in the Murmansk Region. He was represented before the Court by Mr A. Kovalev, a lawyer practising in Murmansk. The Russian Government (“the Government”) were represented by Mr P. Laptev, 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.

In 1998 the applicant decided to purchase a car in the Republic of Belarus. According to the applicant, he applied to the Kandalaksha Customs Office (Кандалакшская таможня, “the Customs Office”) for information concerning the applicable customs regulations and fees and was informed that the customs border between the two states had ceased to exist, customs restrictions had been abolished, and therefore the Russian customs authorities no longer collected duties in respect of motor vehicles imported from Belarus into Russia.

On 26 October 1998 the applicant purchased a second-hand German car in the Republic of Belarus.

On 2 November 1998 he brought the vehicle into Russia and passed through customs control in the Customs Office without being required to pay any duties. The inspector in charge stamped the invoice for the purchase of the car to indicate that the customs formalities had been accomplished and no customs clearance was needed.

On 16 January 1999 the State Road Traffic Inspectorate registered the applicant’s vehicle.

On 27 October 1999 the Customs Office informed the applicant that he had failed to comply with clearance requirements when he imported his motor vehicle into Russia and had to present his car to the Customs Office before 30 November 1999 to obtain clearance.

By a letter of 30 November 1999 the Customs Office notified the applicant that he had failed to pay customs duties and other related taxes on his imported car totalling RUR 27,111.46 (approximately EUR 1,000) in time. In the same letter it required the applicant to pay a daily penalty (пеня) for the delay in the payment of the above sum starting from the date on which the vehicle had entered Russia. The penalty amounted to RUR 16,339.17 (approximately EUR 600) and continued to accrue. The sums were payable before 20 December 1999.

The applicant refused to comply with these decisions and challenged the above order before the director of the Customs Office.

By a letter of 16 December 1999 one of the deputy directors of the Customs Office informed the applicant that an investigation had been started into the alleged failure of an unidentified person to make a proper declaration in respect of a motor vehicle that had been imported from Belarus into Russia and registered by the State Road Traffic Inspectorate on 16 January 1999. The investigation established that the car in question had been purchased by the applicant, who had then applied for its registration. The applicant had allegedly repeatedly been summoned as a witness but had failed to appear.

The letter further stated:

“... it is true that the papers on the car which you have imported contain checks by the Kandalaksha Customs Office – a stamp stating ‘customs control accomplished; customs clearance not required’, signed by a customs officer and sealed with his personal stamp. Yet the vehicle is not registered at the customs registry [and] the customs control has not, in fact, been performed. According to the directive issued by the State Customs Committee of the Russian Federation on 28 November 1996 ..., a customs control cannot be finalised unless there is proof of the transfer of customs duties and other taxes collected in Belarus to the federal budget of the Russian Federation. The customs officer sent no such request to the Belarusian authorities and, accordingly, such proof is missing.

The customs officer, who checked and stamped your documents did, therefore mislead you ... and will take responsibility for this. However, this does not absolve you of the obligation to clear duly the motor vehicle through customs in the proper manner.

As you failed to produce the vehicle within the fixed time-limit and did not perform the customs clearance in the Kandalaksha Customs Office in compliance with [our] orders of 19 October 1999 and 27 October 1999, administrative proceedings for breach of customs regulations have been brought against you ...”

The applicant stated that he had never received the order of 19 October 1999 and that he had attended the Customs Office once, on receipt of the first summons.

The applicant challenged the decision of the Kandalaksha Customs Office concerning the imposition of the duties and a fine in court.

On 14 February 2000 the Kandalaksha Town Court of the Murmansk Region (Кандалакшский городской суд Мурманской области) gave a judgment in the applicant’s favour.

It found that the applicant’s vehicle pertained to a category of goods originating in a third country that had been duly released into free circulation on the territory of Belarus. It then had regard to Decree no. 525 issued by the President of Russia on 25 May 1995, the resolution of the Government of Russia no. 583 of 23 June 1995, Directive no. 01-14/1310 issued by the State Customs Committee on 28 November 1996 and other relevant instruments (see the “Relevant domestic law”) and held that they had abolished customs control and customs clearance in respect of the said category of goods.

The court rejected the defendant’s argument that the requirement to pay the customs duties in the present case was justified by the fact that the implementation of the customs union between the two states was not yet complete. With respect to the defendant’s argument that the applicant had failed to present the necessary documents when passing through customs control as prescribed by the directive of the State Customs Committee of 28 November 1996, the court noted that the directive in question was unclear and the Kandalaksha Customs Office had misconstrued it.

The court concluded that the applicant was, therefore, exempt from the customs duties and other fees and that the customs authorities’ order was unlawful.

On 6 September 2000, on an appeal by the Kandalaksha Customs Office, the Murmansk Regional Court quashed the above judgment and substituted its own decision.

It agreed with the finding of the court below that the applicant’s car had originated in a third country and been duly released in Belarus, and the applicant had properly declared it and passed through customs control in Russia. However, the Regional Court considered that the Town Court had erred in law in holding that the category of goods to which the applicant’s car belonged was unconditionally exempt from customs clearance. It referred to the incomplete implementation of the customs union and the applicant’s failure to produce the documents required by the aforementioned directive of the State Customs Committee and ruled that the claims of the Kandalaksha Customs Office were well-founded. It accordingly dismissed the applicant’s complaint.

On an unspecified date the Customs Office brought a court action against the applicant for the recovery of the amounts due in respect of the customs duties and surcharges.

On 25 December 2000 the Town Court granted its claims in part. It noted that the court decision of 6 September 2000 was res judicata in the applicant’s case and therefore the applicant was under an obligation to pay the customs duties amounting to RUR 26,724.29 (approximately EUR 760). However, it absolved the applicant of payment of the surcharges after noting that his failure to pay the customs duties in time had been due to the general uncertainty and ambiguity of the regulations governing the import of goods from Belarus to Russia.

On 11 April 2001 the Regional Court upheld the first instance judgment on appeal.

According to the applicant, he had to pay the sum due by instalments because of its size. He discharged his obligation in full in November 2003.

Article 4 § 1 of the Agreement provides, as follows:

“Import customs duties, taxes and contributions of equivalent value on goods originating in a third country shall be levied in the budget of the High Contracting Party which is the country where such goods are consigned.”

Article 6 § 2 of the Agreement provides, so far as relevant, as follows:

“The Contracting Parties ... shall abolish customs control at the border between them ... provided that reliable customs control is exercised at their external borders”.

In line with the Agreement, on 25 May 1995 the President of Russia issued decree no. 525 abolishing customs control at the border between Russia and Belarus.

On 23 June 1995 the Government of Russia adopted resolution no. 583 implementing the above decree. In particular, it ordered that the State Customs Committee to abolish customs control and customs clearance at the border between Russia and the Republic of Belarus in respect of, inter alia, goods originating from Belarus or that had been released into free circulation in Belarus.

On 28 November 1996 the State Customs Committee of Russia issued directive no. 01-14/1310 exempting goods originating in a third country and duly released into free circulation in the Republic of Belarus from customs duties in Russia. In order to obtain the exemption a document had to be produced proving that the import duties paid to the Belarusian customs authorities had been transferred into the budget of Russia. Failure to provide such proof would result in the imported goods of the said category being subject to customs clearance in Russia.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1964 and lives in Split. She is unemployed and unwaged.

From October 1996 the applicant occupied a room and common premises of a privately owned flat in Split together with other tenants. On 2 August 1999 the applicant found that the lock of the entrance door to the flat had been changed and that her belongings had been removed from the flat. The applicant called the police, who drew up a report. On 3 August 1999 the applicant brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against two individuals, M.P. and I.P., seeking protection against the disturbance of her occupation of a room and common premises in the flat.

After a first-instance judgment by default of 16 September 1999 had been quashed at a hearing held on 9 November 1999 before the Split Municipal Court, subsequent hearings were held on 21 December 1999, 22 February, 28 March, 3 May and 7 June 2000, when a fresh judgment, allowing the applicant’s claim, was adopted. It was, however, quashed by the Split County Court (Županijski sud u Splitu) on 17 August 2000 and the case was remitted to the Municipal Court.

In the fresh proceedings the Municipal Court held hearings on 7 June, 5 September and 22 November 2001 and 22 January, 26 February, 3 April and 14 May 2002. On this latter date a judgment ordering that the applicant was to regain her co-occupation of the flat in question was adopted. A subsequent appeal by the defendants was declared inadmissible in a decision of the Split Municipal Court, adopted on 24 May 2002, which was upheld by the Split County Court on 7 March 2003.

Since the defendants in the civil proceedings had failed to comply with the judgment of 14 May 2002, the applicant applied to the Split Municipal Court on 31 March 2003, seeking an enforcement order. The order was issued on 10 April 2003. The defendants lodged an appeal. The execution of the order was scheduled for 5 June 2003. It was duly carried out. However, on 6 June 2003 the applicant was thrown out of the flat (see paragraph 13 below). Accordingly, on 2 July 2003 she requested the Split Municipal Court to resume the enforcement proceedings.

On 26 August 2004 the Split County Court allowed the defendants’ appeal, quashed the enforcement order of 10 April 2003 and remitted the case to the Split Municipal Court. The latter, on 18 March 2005, invited the applicant to amend her request. The applicant submitted an amended request on 26 April 2005. On 29 March 2007 the Municipal Court again invited the applicant to amend her request. The applicant submitted the amended request on 13 April 2007. On 24 April 2007 the Municipal Court invited the applicant to adjust her request within eight days. On 8 January 2008 the Split Municipal Court dismissed the applicant’s request for the enforcement proceedings to be resumed.

On 9 August 2002 the applicant complained to the Constitutional Court (Ustavni sud Repbulike Hrvatske) about the length of the civil proceedings described above. In a decision of 18 March 2005 the Constitutional Court dismissed the complaint as ill-founded, finding that the proceedings had been concluded within a reasonable time.

On 10 April 2007 the applicant lodged a complaint about the length of the enforcement proceedings with the Split County Court. On 31 March 2008 the County Court allowed the complaint, found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 5,000 Croatian kunas (HRK) in compensation and ordered the Municipal Court to complete the enforcement proceedings within three months, although in fact those proceedings had already ended with the Split Municipal Court’s decision of 8 January 2008. The County Court examined the length of the enforcement proceedings with reference to the period from 31 March 2003 until 31 March 2008.

On 6 June 2003, the day after the applicant had regained possession of the flat in question, she was attacked by three individuals, two women and a man, upon her arrival in front of the flat. During the incident of 6 June 2003 the police were called and arrived on the scene. They interviewed the applicant and drew up a report. The relevant part of the report reads as follows:

“[The applicant] stated that at about 8 p.m. she had been verbally and physically attacked by three individuals when she had attempted to enter a flat ... The attackers had pulled her hair, hands and clothes and thrown her down the stairs from the first floor. They had also insulted her by shouting obscenities ... She further stated that they had threatened to kill her if she came back.

There were visible bruises and contusions on Sandra’s right hand and her shirt was torn at the back. She asked for medical assistance after the interview.

On 10 June 2003 the police lodged a complaint with the Split Minor-Offences Court against three individuals, including J.M., for disturbance of public peace and order, alleging that they had physically attacked the applicant, kicked her entire body, pulled her by the hair and pushed her down the stairs, all the while shouting obscenities at her. The first hearing in the proceedings was held on 4 February 2005.

In a decision of 11 May 2005 the Split Minor-Offences Court found all three defendants guilty of insulting the applicant with defamatory expressions and sentenced them to a fine in the amount of HRK 375. As to allegations of the physical assault on the applicant they found that there were insufficient evidence in that respect.

However, this decision did not become final since the applicant lodged an appeal, complaining that the Minor-Offences Court had not addressed her allegations of physical assault. On 8 June 2005 the same Minor-Offences Court terminated the proceedings on the ground that the prosecution in respect of the offences with which the defendants were charged had meanwhile become time-barred. The applicant lodged an appeal. Both appeals lodged by the applicant were dismissed on 12 February 2007 by the High Minor-Offences Court.

In a detailed criminal complaint of 2 October 2003 filed against seven individuals with the Split Municipality State Attorney’s Office (Općinsko državno odvjetništvo Split) the applicant alleged, inter alia, that on 6 June 2003 at about 8 p.m., when she had arrived in front of the flat in question, three individuals, J.M., N.M and J.M.L., had come out of the flat, shouting at her and preventing her from entering the flat. They had attacked her physically, insulted her and threatened her, telling her not to come back or she would disappear and “be disposed of”. The applicant also submitted medical evidence showing that she had sustained blows to her elbow and tailbone.

In a decision of 11 November 2003 the State Attorney’s Office decided not to open an official investigation on the ground that the act in question qualified as a criminal offence of inflicting bodily injuries of a lesser nature and that a prosecution for that offence had to be brought privately by the victim. The decision, inter alia, stated:

“In her criminal complaints [the applicant] stated that on 6 June 2003 about 8 p.m. in front of a flat in Split ..., the suspects had verbally attacked her and insulted her, kicked her with their hands and legs all over her body, pulled her hair and pushed her down the stairs while J.M. had also threatened her not to come back to the flat or otherwise she would disappear.

The applicant was also instructed to proceed accordingly and to lodge within eight days a request for an investigation with a Split County Court investigation judge.

The applicant complied with the said instruction on 3 December 2003 and submitted a request to a Split County Court investigation judge seeking to have an investigation opened in connection with the above event. She sought an investigation in respect of seven individuals, including J.M., N.M. and J.M.L., listing their names and addresses. She proceeded to describe the event in question in detail, specifying the acts carried out by her three attackers. She made a list of evidence in support of her allegations, including medical documentation about the injuries she had sustained and the police report issued on 6 June 2003. She further alleged that these acts constituted, inter alia, the criminal offence of making threats under Article 129 of the Criminal Code and the criminal offence of violent behaviour under Article 331 of the same Code. She specified her allegations in respect of each of the individuals concerned.

On 5 January 2005 the Municipal Court invited the applicant to amend her request within eight days so as to include a description of the offence, the legal classification of the offence and circumstances showing that there was a well-founded suspicion that the individuals in question had committed criminal offences, as well as evidence supporting her allegations. On 26 January 2005 the applicant submitted an amended request, repeating in essence the same allegations as in her initial request. In her further submissions of 30 May 2005 the applicant submitted some documents from the minor-offences proceedings.

On 19 September 2005 the Split County Court investigation judge declared the applicant’s request for an investigation (istažni zahtjev oštećene kao tužiteljice) inadmissible. The relevant part of this decision reads:

“The injured party, acting as subsidiary prosecutor (oštećena kao tužitelj), has lodged with this court a request for an investigation in respect of J.M. and others ...

Pursuant to Article 71, paragraph 3, of the Code of Criminal Procedure, this court invited the injured party acting as subsidiary prosecutor on 5 January 2005 and once again orally, to amend her request and warned her that it would be declared inadmissible if she did not comply with the instruction within the set time-limit. The injured party acting as subsidiary prosecutor answered both calls but has failed to amend her request for an investigation in accordance with the court’s instruction. The court considers the injured party’s submission incomprehensible and incomplete. Therefore, it has to be declared inadmissible pursuant to Article 71, paragraph 3, of the Code of Criminal Procedure.”

On 16 January 2006 the applicant lodged an appeal against the above decision with the Split County Court. She claimed that she had fully complied with the instructions given in the court’s letter of 5 January 2005 amending her initial request for an investigation so that it contained all the necessary information. She further contended that she had never received an oral invitation. On 9 February 2006 the Split County Court dismissed the applicant’s appeal, finding that “the submissions lodged by the subsidiary prosecutor are incomprehensible and incomplete”. The applicant lodged a further appeal against that decision.

On 23 April 2007 the applicant also complained to the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the criminal proceedings. On 20 September 2007 the applicant’s complaint was dismissed and she was instructed to lodge such a complaint with the Constitutional Court. On 21 November 2007 the applicant lodged a complaint about the length of proceedings with the Constitutional Court, before which it is still pending.

The applicant’s appeal was declared inadmissible by the Split County Court on 17 June 2008. On 23 June 2008 the applicant lodged a fresh appeal, which is still pending.

The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows:

“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.

(2) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private prosecution or that the State Attorney’s Office should institute criminal proceedings upon [a private] application.”

“Whoever inflicts bodily injury to another person or impairs another person’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.”

“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.”

“(1) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.

(2) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.

(4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.”

“A public official, or another person acting at the instigation or with the explicit or tacit acquiescence of a public official, who inflicts on another person pain or grave suffering, whether physical or mental, 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, shall be sentenced to imprisonment for a term from one to eight years.”

“Whoever for such purposes as violent abuse, ill-treatment or particularly insolent behaviour in public submits another person into a degrading position shall be sentenced to imprisonment for a term from three months to three years.”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:

“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...

(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.

(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”

Article 13 obliges the court conducting the criminal proceedings to instruct a participant in those proceedings who may be ignorant in such matters about his or her rights and the consequences of a failure to undertake a requisite procedural step.

Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute.

“(1) A request to prosecute shall be lodged with the competent State Attorney’s Office and a private prosecution with the competent court.

(2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute.

(3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted upon a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if they have been submitted within the time-limit prescribed for [bringing] a private prosecution...”

Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken.

(2) Where the criminal proceedings are conducted upon a request by the injured party acting as a subsidiary prosecutor in respect of a criminal offence punishable with more than three years’ imprisonment, he or she may ask to have legal counsel appointed free of charge where this is in the interests of the proceedings and where the injured party lacks the means to bear the expenses of legal representation ...”

“(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law.

(2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them.

(3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible.

(4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instruction.”

“(1) Citizens shall report criminal offences subject to public prosecution.

“(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally.

“Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution, the competent State Attorney shall declare it inadmissible in a reasoned decision ...”

Article 188 governs, inter alia, the required contents of a request for an investigation, namely: identification of the person in respect of whom the request is submitted, a description and the legal classification of the offence at issue, the circumstances confirming a reasonable suspicion that the person concerned has committed the offence at issue, and the existing evidence.

Article 205, paragraph 1, allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigation judge of a competent court a request for prosecution and other submissions.


The applicant, Mrs Lyubov Yevgenyevna Kuznetsova, is a Russian national who was born in 1957 and lives in Volgograd. The Russian Government were represented by Mr P. Laptev, 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.

The applicant purchased a flat from a private company. It subsequently transpired that the flat was under charge. On 6 October 1999 and 9 March 2000 the Commercial Court of the Volgograd Region declared the sale of the flat to the applicant void ab initio and transferred the title to it to a Mrs S.

On 31 May 2000 the applicant sued the original seller, claiming recognition of her title to the flat. By judgment of 28 June 2000 the Krasnooktyabrskiy District Court of Volgograd accepted her claim. This judgment became final. On 3 October 2000 it was set aside because the judgment of 9 March 2000 had not been taken into account, and the proceedings resumed.

Having re-examined the applicant’s claim against the original seller, on 26 December 2000 the District Court discontinued the proceedings for lack of jurisdiction. On 31 May 2001 the Presidium of the Volgograd Regional Court re-opened the proceedings by way of supervisory review. On 13 July 2001 the District Court issued a new decision discontinuing the proceedings, which was again quashed by way of supervisory review on 24 August 2001 for similar reasons.

Between 8 October 2001 and 22 January 2002, and then between 18 February and 27 March 2002 the proceedings were either adjourned or stayed upon the applicant’s requests. On 4 April 2002 the Krasnooktyabrskiy District Court rejected the applicant’s claim for recognition as a good faith purchaser of the flat. The applicant appealed to the Volgograd Regional Court. After she had complied with the formal requirements, her appeal was scheduled for hearing. On 25 September 2002 its examination was adjourned until 9 October 2002 due to the applicant’s illness. On 9 October 2002 the Volgograd Regional Court quashed the judgment of 4 April 2002 and remitted the case for a re-examination. It found that the District Court had failed to examine some of the applicant’

In November and December 2002 and January 2003 the proceedings were stayed at the other party’ requests. The applicant did not challenge these suspensions of the proceedings.

By judgment of 12 March 2003 the Krasnooktyabrskiy District Court dismissed again the applicant’s claim. On 25 March and 23 May 2003 the judgment was rectified. On 30 July 2003 the Volgograd Regional Court quashed the judgment and remitted the matter to the district court for a fresh decision. The proceedings were stayed on 30 September until 28 November 2003 due to Mrs S.’s illness. The hearings scheduled for 25 February and 3 March 2004 were adjourned because the presiding judge T. was involved in another case or had a meeting in the town hall.

On 31 March 2004 the Krasnooktyabrskiy District Court stayed the proceedings at the other party’s request. On 11 August 2004 the Volgograd Regional Court quashed that decision. On 3 September 2004 the District Court rejected as unfounded the applicant’s bias complaint in respect of judge T. and adjourned the hearing at the other party’s request.

By judgment of 9 September 2004 the Krasnooktyabrskiy District Court declared the sale of the flat void ab initio and ordered the respondent company to pay 405,935 Russian roubles to the applicant. The Volgograd Regional Court upheld that judgment on 3 February 2005.

In a litigation between the original seller and third persons, including Mrs S., on 8 December 2000 the Krasnooktyabrskiy District Court upheld Mrs S.’s title to the flat. The court refused to process the applicant’s appeal against the judgment on the ground that she had no standing in those proceedings. Apparently, the applicant did not appeal against this refusal.


CASE OF İLBEYI KEMALOĞLU AND MERIYE KEMALOĞLU v. TURKEY

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicants were born in 1965 and 1974 respectively, and live in İstanbul. They are the parents of Atalay Kemaloğlu, who died in 2004, when he was seven years old.

On 22 January 2004 Istanbul was hit by a heavy snow storm. Consequently, upon the instructions of the Ministry of Education, schools in Istanbul broke up for the winter beak a day earlier than scheduled. On that day, Atalay had gone to his primary school on the municipality’s shuttle, which travelled between his home and the school. After the school bulletins had been distributed, classes were dismissed at the beginning of the afternoon, before the normal school day was over.

According to the information in the case file, Atalay had not enrolled for the paid school bus, but was using the shuttle that was operated for free by the municipality. As the early dismissal of the classes had not been notified to the municipality, the shuttle did not come when the school was closed. Atalay therefore tried to walk back home, which was 4 km away from his school. Late in the afternoon, when he did not return from school, the applicants called the police. However, it was not possible to find Atalay. His body was found the following day, frozen near a river bed.

Following the incident, the Primary School Inspectors’ Presidency of the Istanbul Education Directorate (İstanbul Valiliği İl Milli Eğitim Müdürlüğü İlköğretim Müfettişleri Başkanlığı) initiated an investigation, during which the inspectors took the statement of the driver of the municipality’s shuttle. He explained that on the day of the incident he had taken seven students from their homes and had left them in front of the school. Every day, he took them back around 5.30 p.m. On that day, no one informed him that the school would be closed at 2.00 p.m. Therefore, when he went to the school, everyone had already left. The inspectors prepared a report on 27 January 2004 and found that the deputy headmaster of the school had been at fault for not informing the municipality about the early closure of the schools. On 18 February 2004 the Presidency concluded that the deputy headmaster of the school had been at fault for neglecting to inform the municipality’s shuttle service of the early dismissal of the classes. It accordingly decided to issue a warning to the deputy headmaster as a disciplinary sanction.

On 6 August 2004 the applicants filed two separate actions with the Istanbul Administrative Court against the Ministry of Education, Yenidoğan Municipality and Istanbul Municipality. Alleging that their son had lost his life due to the negligence of the domestic authorities, the first applicant requested 375,000,000,000 Turkish liras (TRL) (approximately 207,000 euros (EUR) at the time) and the second applicant TRL 324,000,000 (approximately EUR 188,000 at the time) covering both pecuniary and non-pecuniary compensation. They also requested legal aid for the court fees.

On 30 September 2004 the Istanbul Administrative Court requested the applicants to complete the case file by submitting relevant documents in support of their legal aid claim within one month.

In support of their legal aid claim, both applicants submitted to the Istanbul Administrative Court certificates from the office of the headman (muhtarlık) attesting to their indigence, certificates from the District Governor confirming that they did not own any immovable property and certificates indicating that they were in debt to the Tax Office.

On 8 June 2005 the Istanbul Administrative Court dismissed the applicants’ request for legal aid without giving any specific reasons.

Subsequently, on 8 August 2005 the applicants were notified that they were required to pay TRL 5,072,600,000 (approximately EUR 3,000 at the time) and TRL 4,384,100,000 (approximately EUR 2,600 at the time) respectively for the court fees within one month in order for the proceedings to be continued.

On 29 December 2005 the Istanbul Administrative Court decided to discontinue the proceedings as the applicants had failed to pay the relevant court fees.

In the meantime, on 27 February 2004 the applicants filed a criminal complaint with the Ümraniye Public Prosecutor against the school headmaster, the deputy headmaster and Atalay Kemaloğlu’s class teacher. On an unspecified date, pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials) the Ümraniye Public Prosecutor referred the file to the Ümraniye District Governor’s office and requested authorisation to prosecute the accused persons.

On 16 April 2004 the Ümraniye District Governor refused to authorise the public prosecutor to initiate criminal proceedings against the school headmaster, the deputy headmaster and the class teacher, on the basis of a report prepared by the headmaster of the Ümraniye High School, who stated that no fault could be attributed to the accused persons.

On 13 May 2004 the applicants lodged an objection against the decision of the Ümraniye District Governor’s office.

On 25 June 2004 the Istanbul Regional Administrative Court annulled the decision of the Ümraniye District Governor and held that there was sufficient evidence in the case file to initiate criminal proceedings against the accused headmaster, deputy headmaster and class teacher.

Accordingly, on 4 October 2004 the Ümraniye Public Prosecutor filed an indictment with the Ümraniye Criminal Court against S.Ç (the deputy headmaster of the school), S.Ö. (Atalay’s class teacher) and Ö.Ö (the school headmaster), accusing them of misconduct in office under Article 230 of the former Criminal Code. The applicants joined the criminal proceedings as civil parties and reserved their right to claim compensation.

During the proceedings, the court heard the defence statements of the accused. Atalay’s class teacher, Ms S.Ö., maintained that a day before the incident she had told her students that their parents should be present on 22 January 2004 as school bulletins would be distributed. The court also obtained an expert opinion from a psychologist, who stated that a seven year old child could not be expected to find effective solutions when faced with extraordinary situations. In this connection, she stated that the child could not have foreseen the dangers he would face when he tried walking home alone in the heavy snow storm.

On 28 June 2006 the Ümraniye Criminal Court acquitted the accused persons of the charges against them. In its decision, the court held that the death of Atalay had not been the result of a deliberate action. The reasoning stated that there were 2,400 pupils in the school, and that it could not be considered reasonable to expect the school authorities to control where the pupils went after the classes were dismissed. The court further held that in order to conclude that there had been misconduct in office, the public officer had to have wilfully neglected performing his duty. According to the court, in the instant case the school authorities could not be reasonably expected to foresee that Atalay would be frozen to death on his way back home. The court also decided that it did not have jurisdiction to examine whether or not there had been a service-related fault (hizmet kusuru) in the circumstances of the present case.

On 11 November 2010 the Court of Cassation quashed the judgment of the Ümraniye Criminal Court, without examining the merits of the case, for procedural reasons, namely due to the absence of the signature of the court’s clerk on the minutes of a hearing which had been held on 2 February 2005. The case file was accordingly remitted to the Ümraniye Criminal Court.

On 13 May 2011 the Ümraniye Criminal Court once again acquitted S.Ç., S.Ö and Ö.Ö of the charges against them on the basis of the same reasoning as given in its previous judgment of 28 June 2006.

The appeal proceedings are still pending before the Court of Cassation.

A full description of the relevant domestic law regarding legal aid may be found in Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 19-22, 17 July 2007

In August 2004, the minimum wage in force was TRL 444,150,000 (approximately EUR 245 at the time) a month.


The applicant was born in 1944 and lives in Istanbul.

On 22 March 1994 the applicant was granted a lease by the Istanbul Municipality to run a car park on a plot of land by the coast in the Kadıköy district of Istanbul.

On 14 and 27 July 1999 and 24 March 2000 the National Estate Directorate attached to the Istanbul Revenue Office issued three orders requesting the applicant to pay compensation for occupying the car park between 1 March 1998 and 31 December 1999.

On 11 August 1999, 29 September 1999 and 14 April 2000 respectively the applicant filed three separate cases with the Istanbul Administrative Court against the Istanbul Revenue Office, requesting that the orders be annulled. The first case concerned the period between 1 March and 31 December 1998, the second case concerned the period between 1 January and 1 August 1999 and the third case concerned the period between 1 August and 31 December 1999.

On 25 May 2000 the Istanbul Administrative Court annulled the orders dated 14 July 1999 and 27 July 1999. The administrative authority appealed. Subsequently on 17 December 2004 the Supreme Administrative Court quashed the respective judgments of the Istanbul Administrative Court.

On 24 June 2005 the Istanbul Administrative Court followed the reasoning set out in the Supreme Administrative Court's decision and dismissed the cases. The applicant appealed.

On 13 March 2006 the Supreme Administrative Court quashed the respective judgments of the Istanbul Administrative Court once again.

On 13 November 2006 the Istanbul Administrative Court decided to annul the respective compensation orders.

According to the information in the case file based on the latest submissions by the parties, both actions are apparently still pending before the Supreme Administrative Court.

On 23 February 2001 the Istanbul Administrative Court annulled the compensation order dated 24 March 2000. The administrative authority appealed and subsequently on 4 February 2005 the Supreme Administrative Court quashed the judgment of the Istanbul Administrative Court.

On 18 April 2006 the Istanbul Administrative Court followed the reasoning set out in the Supreme Administrative Court's decision and dismissed the case. According to the information in the case file, this action is still pending before the Supreme Administrative Court.


The applicant is an Iranian national, born in Teheran in 1969 and, according to the most recent information contained in the file, living in the Netherlands.

He is represented before the Court by Ms C. Fedee-Dreessen, a lawyer attached to the ‘s-Hertogenbosch Foundation for Legal Assistance to Asylum Seekers (Stichting Rechtsbijstand Asiel ‘s-Hertogenbosch) based in Eindhoven.

The proceedings in question in the present case concern the applicant’s application for recognition of his refugee status in the Netherlands.

The following is a summary of the proceedings:

The applicant entered the Netherlands on 2 October 1994 on a valid Iranian passport bearing his own name. A photocopy of the passport was made by the immigration authorities before it was handed back to the applicant. The applicant applied for recognition of his refugee status (or in the alternative, a residence permit on humanitarian grounds) the following day.

According to the report of the interrogation referred to in the following paragraph, the passport contained a Ukrainian visa.

The applicant was interrogated (nader gehoor) by an official of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry of Justice on 10 October 1994. No lawyer or other assistant was present. The applicant spoke his own language, Farsi, and was assisted by an interpreter.

The applicant stated that the Ukrainian visa had been arranged for him by an acquaintance called M. whose address he did not know. M. was an active member of the Mujahedin organisation, which is illegal in Iran, but the applicant was unable to state particulars on M.’s activities. After arriving at Amsterdam Airport the applicant had given his passport to an assistant of the person who had arranged his journey for him. He had not had to pay for his journey; M. had done that, apparently on the instructions of the Mujahedin.

None of the applicant’s relatives – parents, siblings – had ever been in trouble with the Iranian authorities or with any organisations or groups in Iran. Neither had the applicant himself.

The applicant claimed to be a member of the Mujahedin but held no membership card. His activities in Iran had consisted of writing “code-like slogans” (code-achtige leuzen) on walls, on the instructions of one H. who was his contact with the party. He was unable to explain the meaning of these code-like slogans.

In addition, he had taken part in a demonstration in the town of Qazwin on 14 August 1994 aimed at obtaining provincial autonomy for that locality. This demonstration, in which 300 to 400 persons had participated, had been indirectly organised by the Mujahedin. It had resulted in the wrecking of a public building. The demonstration had been video taped. On 21 September 1994 the applicant’s contact H. had failed to turn up for an appointment and on 24 September 1994 the applicant had gone into hiding.

The applicant had been warned by M. on 30 September 1994 that H. had been arrested and that his (the applicant’s) life would be in danger if H. mentioned him to the authorities.

The applicant had been able to leave Iran on his own passport because M. had contacts who could influence the passport officials via the Mujahedin organisation. M. himself had come to Teheran airport to see the applicant off.

The applicant stated that he had nothing further on which to base his request for recognition of his refugee status. He feared that, if returned to Iran, he would be imprisoned and made to tell the authorities everything he knew about the Mujahedin, after which he would be executed.

The Mujahedin are an organisation outlawed in Iran. It follows a Communist ideology and is opposed to the present Iranian government.

On 26 October 1994 the Deputy Minister of Justice gave a decision refusing the applicant’s applications. Firstly, he did not consider it credible that the applicant had ever been involved in the activities of the Mujahedin, given that he had never held a party card and was unable to explain the code-like slogans which he had allegedly written on walls. The applicant’s participation in the demonstration in Qazwin on 14 August 1994 was in itself not decisive, in view, especially, of the large number of participants and the fact that the applicant was not among its leaders. Secondly, the applicant had been able to return to his home and remain there in perfect safety at least until 24 September; if the Iranian authorities had wanted to prosecute him they would presumably have arrested him immediately. Thirdly, the applicant had left Iran travelling under his own name and on a valid passport which was checked by the authorities at his departure. In view of these circumstances the applicant’s application for recognition of his refugee status was manifestly ill-founded. Finally, no cogent reasons of a humanitarian nature to grant the applicant a residence permit had been suggested, nor were any such reasons apparent.

The applicant lodged an objection (bezwaarschrift) to the Deputy Minister against this decision. In so far as it was directed against the refusal of recognition of his refugee status, against which no objection was possible, the applicant’s objection was transmitted to the Regional Court of The Hague to be dealt with on the basis that it constituted an appeal.

The applicant also applied directly to the President of the Regional Court of The Hague for an interim measure consisting of a decision preventing his expulsion pending the further proceedings.

A single-judge chamber of the Regional Court of The Hague, sitting in Haarlem, dealt with all three of the remedies instituted by the applicant – the objection against the refusal of a residence permit, the appeal against the refusal of recognition of his refugee status, and the application for an interim measure – together. A hearing was held on 19 September 1996. The applicant had not been expelled in the meanwhile.

The Regional Court gave a decision on 11 October 1996. It held that the applicant’s story was not credible, and in so far as it was true, insufficient in any case to grant him recognition of his refugee status. The applicant was not able to provide any information at all about the Mujahedin – an organisation which, in any event, was active mostly outside Iran –, he had never even seen a party card and could not state whether other members had such a card or not, and he was unaware of the meaning of the slogans he had allegedly written on walls; on these grounds it was held unlikely that he had been a member of that organisation. Moreover, the slogans were allegedly intelligible only for a select group, and the applicant had never been arrested in connection with his activities. That H. might betray the applicant was no more than a supposition and had not been substantiated. In so far as the applicant’s fears were based on his participation in the demonstration in Qazwin, it was noted that the applicant had not been able to substantiate his allegation that the authorities were aware of it, and he had moreover not found it necessary to flee until 2 October 1994. He had, moreover, been able to remain at his own home all that time. The objection, the appeal and the application for an interim measure were therefore all dismissed.


The applicant is an Austrian national, born in 1939 and living in Köflach. She is represented before the Court by Mr Peter Bartl, a lawyer practising in Graz.

A.

On 12 and 13 December 1989 criminal proceedings were opened against the applicant and her husband, H.S., respectively, on suspicion of their having brought into circulation large amounts of narcotic drugs (Inverkehrsetzen grosser Mengen Suchtgift). On 13 August 1990 the investigating judge discontinued the proceedings against the applicant. He noted that the applicant had denied being involved in any criminal act. As H.S. had availed himself of the right not to give evidence against his wife (Zeugenentschlagungsrecht), it was unlikely that the applicant’s defence would be disproved.

On 6 March 1991 the Munich Regional Court convicted H.S. amongst others of the above charges. In its reasoning, the court, referring to statements made by H.S., noted several times that the applicant had contributed to the commission of the offence at issue.

Having regard to the above judgment, the Graz Public Prosecutor’s Office (Staatsanwaltschaft) requested the re-opening of the proceedings against the applicant on 8 January 1992. The Public Prosecutor’s Office noted that H.S. had previously availed himself of the right not to give evidence against his wife. His statements in the proceedings before the Munich Regional Court therefore constituted new evidence.

On 11 March 1992 the Review Chamber (Ratskammer) of the Graz Regional Criminal Court (Landesgericht für Strafsachen) granted the re-opening request.

On 24 July 1992 the applicant was arrested. Subsequently, the investigating judge ordered her detention on remand, finding that there was a suspicion of her having committed the above offence, as well as a danger of absconding. On 6 August 1992 she was released on bail.

On 29 October 1992 the Graz Court of Appeal (Oberlandesgericht) quashed the order to re-open the proceedings and referred the case back to the Graz Regional Criminal Court. It found that the latter should have carried out further investigations into the precise contents of H.S.’s statements before the Munich Regional Court. On 16 February 1994 the Review Chamber of the Graz Regional Court again decided to re-open the proceedings. The applicant’s appeal against this decision was dismissed by the Graz Court of Appeal on 13 April 1994. She was finally acquitted on 31 August 1995.

On 12 September 1995 the applicant filed an action claiming compensation for unlawful detention under section 2 § 1 (a) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz). She argued that her detention between 24 July 1992 and 6 August 1992 had been unlawful as she had been arrested before the order to re-open the criminal proceedings had become final.

On 19 December 1995 the Graz Court of Appeal granted the applicant’s action, finding that she was entitled to compensation. It held that, as a general rule, arrest and detention of a suspect could lawfully be ordered even before the re-opening order became final as the appeal against it had no suspensive effect. The investigating judge was bound by the order to reopen the proceedings. Furthermore, the Court of Appeal noted that, at the time the applicant’s detention was ordered, there was a reasonable suspicion against her as H.S. had incriminated her in the proceedings before the Munich Regional Court. Having regard to the sentence she risked incurring, namely one to fifteen years’ imprisonment, and to the fact that she was unemployed at that time and not well integrated in society, the court also found that at that time a danger of absconding had properly been assumed by the investigating judge. However, it followed from the decision of 29 October 1992 that the order to re-open the proceedings had been premature and therefore unlawful. The court accordingly concluded that the applicant’s detention, being based on that defective order, had likewise been unlawful.

On 18 April 1996 the Supreme Court (Oberster Gerichtshof) allowed the appeal of the Public Prosecutor’s Office and dismissed the applicant’s action. It noted that the order to re-open proceedings which had been discontinued meant that they were resumed at the stage of the preliminary investigation. The re-opening order served as a legal basis for the continuation of the proceedings and also for the suspect’s arrest and detention, even before it became final, as the appeal against it did not have suspensive effect. The investigating judge was bound by that order and had no competence to review its lawfulness. The fact that, in the present case, the order had later been quashed by the appellate court did not retrospectively render unlawful the applicant’s detention, which had duly been based on a reasonable suspicion and the danger of absconding. The decision was served on 22 May 1996.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure (Strafprozessordnung), in the version in force in 1992, provided as follows:

According to section 352, the Review Chamber of the competent criminal court could, upon the Public Prosecutor’s request, re-open proceedings against a specific suspect which had been discontinued, if criminal liability for the offence had not become statute-barred and new evidence was adduced which appeared likely to lead to the suspect’s conviction (paragraph 1). An appeal against the Review Chamber’s decision could be lodged with the Court of Appeal (paragraph 2).

As section 352 was silent on the question whether or not such an appeal had suspensive effect, the general rule laid down in section 114 § 2 applied, namely that an appeal against the decision of the Review Chamber had no suspensive effect.


Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant, Mr Michael Boyce, is an Irish national, who was born in 1944 and lives in Mullingar, Ireland. He was represented before the Court by Mr P.J. Groarke, a lawyer practising in County Longford, Ireland.

On 10 July 1996 the applicant was arrested under section 4 of the Criminal Justice Act 1984 on suspicion of rape of the complainant at her home in 1989. A police officer (an officer of An Garda Síochána) cautioned him to the effect that he was not obliged to speak but anything he might say might be given in evidence. He was taken to a police station where he was informed by the police that they had information that he had been involved in other sexual offences against the same complainant. The applicant denied any involvement in the alleged offences.

A police officer asked the applicant whether he would provide a sample of his blood and the applicant agreed. The sample was taken in the police station by a medical doctor with the consent of the applicant. The applicant was released from custody. He was then charged with nine sexual offences contrary to, inter alia, the Criminal Law (Rape) Act 1981 against the complainant. Those offences took place over a period of over 10 years (1983 to 1994) while the complainant was 55-66 years of age. The applicant did not dispute during his trial (see below) that he had provided the sample voluntarily but he argued that he had not been cautioned about the use that could be made of the sample. The trial judge found that he had been given the appropriate caution (that he was not obliged to give any sample but that any tests carried out on the blood sample might be admitted in evidence against him) and that he had fully understood it. It was not disputed that the sample had been taken under the common law and not pursuant to the Criminal Justice (Forensic Evidence) Act, 1990 (“the 1990 Act”).

In October 1997 he was re-arrested and returned for trial before the Central Criminal Court (“CCC”). His trial began on 16 October 2000.

The trial judge tried, as a preliminary issue in the absence of the jury, the admissibility of the DNA evidence drawn from the blood sample. The applicant had argued that he had not been properly cautioned and that the sample had been unlawfully taken because the common law power, on which the police relied, had been ousted by the 1990 Act. The trial judge heard oral evidence from relevant police officers, the applicant and the relevant doctor: the trial judge found that the applicant had been cautioned by the police (that he was not required to provide a sample but that, if he did so, the sample could be analysed and the results admitted against him at trial) and that he had understood the caution. The trial judge noted that, having given a sample, the applicant had then signed a statement, after he had consulted his solicitor, in which he accepted that he had volunteered the sample after such a caution. The trial judge concluded that he had been properly cautioned prior to giving the sample. He also found that the common law power to obtain a blood sample remained and co-existed alongside that of the 1990 Act so that the common law was a valid legal basis for the taking of the voluntary blood sample. The trial judge, in his ruling admitting the evidence, did so principally on the basis of section 2(11) of the 1990 Act: it stated that the powers conferred on the police under the Act were without prejudice to other powers exercised by them which meant that the power of the police to invite persons to voluntarily provide a blood sample applied in this case and was unaffected by the provisions of the 1990 Act.

The complainant did not identify the applicant in her evidence but stated that the offences had been committed by the same man since, inter alia, the perpetrator referred to earlier incidents when later assaulting her. The DNA evidence was key: the prosecution’s case was that the DNA evidence linked the applicant to two of the offences (1989 and 1991) and, if the jury were to find that the DNA evidence established his guilt for those two offences, it was also entitled to conclude that the same person committed all or any one of the other offences. The trial ended on 17 November 2000 when the applicant was convicted by jury on six counts of rape, attempted rape, indecent assault or sexual assault from 1983-1994. In March 2001 he was sentenced to concurrent terms of 8 years’ imprisonment.

On 9 March 2001 the applicant applied for leave to appeal to the CCA mainly contesting the lawfulness of the blood sample arguing that the only lawful basis for it being obtained, retained and used was the 1990 Act. Of the 21 grounds of appeal, the first and last referred to the applicant’s constitutional rights: that the trial judge had erred in finding that the sample had been lawfully taken under the common law and thus failed to vindicate his constitutional right to bodily integrity; and that the police had failed to inform the applicant that his sample would be used to investigate offences other than that relating to 1989 contrary to his rights to bodily integrity, to privacy, not to incriminate himself and to fair procedures.

His appeal to the CCA was heard on 23 and 24 June 2003. Further submissions were requested and filed in October 2003. On 17 February 2005 he was released from prison.

By judgment of 21 December 2005 the CCA rejected his appeal. It reviewed in some detail and confirmed the trial court’s factual findings as regards, inter alia, the caution given to the applicant prior to giving the sample. It also underlined the legality under the common law of collecting forensic evidence on a voluntary basis from person in custody:

“While the conduct of criminal investigations by the [police] must be carried out within the ambit of the law and in accordance with the law, many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute. The interviewing and taking of statements from witnesses to a crime, the entry upon the scene of a crime, its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned. ... An example would be where a householder permits a [police officer] to enter or enter and search premises without the need for a search warrant.

Cooperating citizens may willingly provide the [police] with forensic evidence such as fingerprints, clothing or blood samples to assist them in their inquiries. A rape victim may willingly provide a sample of pubic hair so that the [police] may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which, if matched, may implicate a suspect. Of course the gathering of such evidence and its use at a criminal trial from persons, who at the trial have the status of witnesses rather than that of an accused, is rarely a source of controversy. ... Inevitably, ... the obtaining of forensic evidence from persons in custody may often be a source of legal controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature. ... It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided that it was obtained voluntarily and with the full consent of the person in custody. Provided consent is fully and voluntarily given and the person in custody is of full age and not otherwise suffering from any legal or other incapacity, they may give a forensic sample, including in response to a [police] Garda request, and the [police] may take it or receive it. That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from persons in custody. ...

It would indeed be extraordinary if [parliament] contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the [police] which was lawful before the passing of the Act should be considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused.”

The CCA went on to find that the 1990 Act created a statutory regime distinct from the common law and, further, that that regime did not have the effect of abolishing the existing common law power. Both legal bases, statutory and common law, subsisted. The 1990 Act extended existing law; it did not abrogate it. The DNA evidence, drawn from the sample taken under the common law, was admissible. Finally, the CCA did not consider tenable the factual presumption underlying the 21st ground of appeal because the applicant had never disputed that he had given the sample voluntarily and it was the uncontested evidence of the prosecution that the police had informed him that they were investigating, not only a sexual offence committed against the complainant in 1989, but also his involment in other sexual offences against her.

By perfected order (not submitted) of the CCA of 22 October 2007, the CCA gave leave to appeal pursuant to section 29 of the Courts of Justice Act 1924 on a point of law of general public importance desirable in the public interest to be examined by the Supreme Court. The Supreme Court judgments recorded the text of the question certified by the CCA as follows:

“Is it lawful for a member of An Garda Siochana, when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of Section 2 of the Criminal Justice (Evidence) Act, 1990?”

By Notice of Motion dated 28 May 2008 (grounded upon an affidavit of the same date and a Notice of Appeal dated 24 October 2007), the applicant requested, pursuant to section 59 of the Criminal Justice (Amendment) Act 2007, leave to add 7 grounds of appeal for the Supreme Court’s consideration. The first two and last grounds read as follows:

“1. That the Court of Criminal Appeal erred in law or erred on a question of mixed fact and law in holding that Section 2 of the [1990 Act] did not preclude [the police] from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said Act and that the said section of the 1990 Act was designed to enable [the police] to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal, and that the neglect, failure or refusal by the [police] to take the said sample under the aegis of the said Act was ultra vires, contrary to Article 15.2.1 and Article 40.3.1 and 2 of the Constitution.

That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence, that it was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic Evidence) Act 1990, and thereby failed to vindicate the Accused’s Constitutional Rights to his bodily integrity. ...

On 18 November 2008 the Supreme Court rejected (by a majority) the appeal. All judges agreed that it had been long accepted that the police could, under the common law, obtain information and samples from a person so long as that person’s consent was given voluntarily. Indeed, even the judge who dissented on the question of the effect of the 1990 Act noted that the applicant had accepted that there had been a power to take samples by consent under the common law, he referred to the CCA judgment on the issue cited at paragraph 10 above and he added:

“22. Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual, though these are personal rights which enjoy constitutional protection, prevents individuals from agreeing to provide access to the one and samples from the other. Most citizens will perceive it as their duty to assist in the investigation of crime. Many will wish to eliminate themselves from suspicion; many others will wish to assist in finding the perpetrator of a crime. Where evidence is thus freely and voluntarily provided by a person at liberty, no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject-matter of evidence at a criminal trial against the provider.”

The Supreme Court found that the 1990 Act did not deprive the police of their ability to take samples under the common law since both the statutory and common law schemes for taking samples co-existed. It was satisfied that the matter in issue was not the application of a policy of the Director of Public Prosecutions (“DPP”), (whereby he had advised that, after the coming into force of the Act, the police could still take samples that were provided voluntarily and on consent) or whether that policy was appropriate or not. Rather, the matter in issue was a question of law. The advice of the DPP was an interpretation of the 1990 Act. The issue was whether that interpretation was correct. The Supreme Court conducted a detailed construction of the 1990 Act in order to ascertain the intention of the legislature. It noted that the common law approach to obtaining information by consent was well established. It was a fundamental aspect of the approach to investigating crime. It was a practical approach. Any alteration to such a fundamental aspect of criminal investigation would require a clear expression of an intention to change. No such approach was apparent from the words of the Act.

It further noted that section 2(11) of the 1990 Act expressly stated that the powers conferred by that section were without prejudice to any other powers exercisable by a member of the Garda Síochána: it thereby expressly retained powers of the Garda Síochána. The Supreme Court went on to note the detrimental consequences to a ‘person’ under the 1990 Act and it gave, as an example, the ‘inference’ which might be raised at the trial, and upon which a jury might rely for corroboration. There was also the possibility of the offence of obstruction under section 2(9) of the 1990 Act. No such detrimental consequences arose under the common law. Therefore it considered that to apply the statutory scheme in the absence of a clear mandatory requirement under statute would be a step too far. The Supreme Court was satisfied that the Oireachtas did not intend to exclude the common law when it passed the 1990 Act and that the common law might also be applied to a person detained or in prison as referred to in section 2 of that Act.

Finally, the Supreme Court noted two other grounds of appeal (Nos. 5 and 6) which the applicant’s counsel had highlighted in his oral submissions and which it rejected.

One judge dissented on the effect of the 1990 Act and considered that, when a person was in custody, it would be absurd, “inconsistent and potentially unfair” to ignore the statutory regime which he considered the Government to have intended would apply in such circumstances. He regarded the first three grounds of the applicant’s appeal as concerning the question of the “admissibility of the evidence”. He found that the failure to apply the 1990 Act was not an interference with the constitutional rights of the applicant since he had freely agreed to provide a sample of his blood. He also considered that this failure to follow the statutory regime did not impact on the admissibility of the DNA evidence: while the blood sample had been obtained unlawfully, it had led to the production of objective material evidence linking the applicant to the offences so that “no breach of a constitutional right was involved”.

The Constitution

Article 15 concerns the constitution and powers of Parliament (the Oireachtas) and, in so far as relevant, provides as follows:

“2.1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

Article 40 is entitled “Personal Rights” and, in so far as relevant, reads as follows:

“40.3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

40.3.2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

Section 4(2) of the 1984 Act provides as follows:

“Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.”

The police may obtain samples on a voluntary basis from persons in custody under the common law. There are no specific rules laid which regulate the taking, use, retention or destruction of such samples. No inferences may be drawn from a refusal to provide a sample.

The 1990 Act also permits the taking of samples from persons in custody. It provides for authorisation to request samples on a consent basis, it allows the drawing of inferences in case of a refusal and it governs the use of samples pre-trial and post-trial including destruction.

In 1995 a circular of the Director of Public Prosecutions (“DPP”) advised that, after the coming into force of the 1990 Act, the police could still take samples that were provided voluntarily and on consent. If consent was obtained, the sample was taken under common law rules. If the person refused, a written consent was requested. If obtained, the sample was taken under the 1990 Act and, if refused, the provisions of the 1990 Act on negative inferences could come into play.

The long title to the 1990 Act states it to be “An Act to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences”. It came into force on 5 June 1992 and it applies only to persons in custody under section 30 of the Offences Against the State Act 1937 and under the 1984 Act.

Section 2 provides the primary power to take samples:

“(1) Subject to the provisions of subsections (4) to (8) ..., where a person is in custody ..., a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely -

(a) a sample of -

(i) blood, ...

(4) A sample may be taken under this section only if -

(a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

(b) in the case of a sample mentioned in subparagraph (i), ... of paragraph (a) of subsection (1) of this section ... the appropriate consent has been given in writing. ...

(6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person-

(a) of the nature of the offence in which it is suspected that that person has been involved,

(b) that an authorisation has been given under subsection (4)(a) of this section and of the grounds on which it has been given, and

(c) that the results of any tests on the sample may be given in evidence in any proceedings. ...

(11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.”

According to Section 3, where consent required under section 2 is refused without good cause following an appropriate caution, then a trial court may draw inferences from that refusal and the refusal with such inferences can amount to corroboration of any evidence in relation to which the refusal is material. Section 4 of the Act provides for the destruction of records and samples where proceedings are not instituted within 6 months of taking the sample or where the person is acquitted or discharged or the proceedings are discontinued.


The applicant, Mr Klaus-Dieter Jöcks, is a German national who was born in 1944 and lives in Kiel. From 1978 to 1998 he worked as a judge at the Neumünster District Court (Amtsgericht).

On 18 March 1999 the Kiel District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed thirty-one criminal offences, including eleven counts of fraud, one count of instigation to falsification of official records, one count of bodily injury, one count of perversion of justice in connection with judicial bribery, one count of illegal arms trade and sixteen counts of having failed to pay contributions to the social security on behalf of a company’s employees. According to the preliminary investigations, the applicant was suspected of having been involved in a number of fraudulent real-estate transactions. He was further suspected of having, in his capacity as a District Court Judge, unlawfully released one of his suspected co-offenders from detention on remand.

On 29 March 1999 the applicant was arrested and subsequently detained on remand.

On 16 August 1999 the Kiel Public Prosecutor brought an indictment against the applicant, which had an overall length of more than 350 pages.

The hearing before the Kiel Regional Court began on 18 November 1999 and ended on 23 November 2004. During that time, the trial took place on 345 days during which numerous witnesses were heard.

On 21 May and 1 October 1999, 25 July 2000, 25 April and 10 September 2001 and 14 January 2002 the Kiel Regional Court upheld the arrest warrant and ordered the applicant’s continued detention on remand.

On 2 August 1999, 1 October 1999, 19 October and 20 December 2000, 3 July and 25 October 2001 and 21 March 2002 the Schleswig-Holstein Court of Appeal (Oberlandesgericht) rejected the applicant’s complaints against the continuation of his detention on remand.

On 2 August 1999, in a reasoned decision of a total length of thirty-five pages, the Court of Appeal found that the preliminary examination had confirmed a strong suspicion against the applicant. This assessment had been based on numerous witness statements, which were corroborated by numerous documents and further circumstantial evidence.

The Court of Appeal considered that there was a risk of collusion (Verdunkelungsgefahr) within the meaning of section 112 of the Code of Criminal Procedure (Strafprozessordnung, see relevant domestic law below), on the ground that if the applicant was released, he might try to influence other accomplices or witnesses. This was corroborated by the strong suspicion that the applicant had, in the past, built up a smoke screen which was aimed at preventing possible controls by hiding the real facts. The applicant was suspected of having employed a front man (Strohmann) in order to disguise his own role in the real estate business. According to the results of the preliminary investigations, there was specific evidence that the applicant and his co-offenders had, in the past, intimidated both business partners and accomplices by use of threats and violence. There were further indications that the applicant had influenced witnesses before his arrest.

On 1 October 1999 the Kiel Regional Court ordered the applicant’s continued detention. It found that the reasons to suspect him of the alleged crimes, as laid down in the arrest warrant, persisted. While the risk of collusion did not persist, as the evidence was sufficiently secured by the Public Prosecutor’s preliminary investigations, there was the danger of the applicant’s absconding. In case of his conviction, the applicant would have to face a severe prison sentence. Furthermore, he had been disallowed part of his income in disciplinary proceedings. In case of his conviction he would risk removal from office and the loss of his pension claims, which would mean the destruction of his social, professional and economical basis. As the applicant’s children were already grown up, his social bonds were not of such a weight as to prevent him from absconding. On the other hand, the applicant had declared that his wife possessed considerable property. Under these circumstances, there was no less intrusive measure possible to prevent the applicant from absconding than the further continuation of his detention on remand.

Also on 1 October 1999, the Court of Appeal ordered the continuation of the detention on remand. Referring to its earlier decision of 2 August 1999, that court found that the risk of collusion persisted. It further found that the duration of the detention was justified by the exceptional extent of the investigations.

On 19 October 2000 the Court of Appeal rejected the applicant’s fresh complaint against his continued detention. Referring to its decision of 2 August 1999 and examining the new arguments put forward by the applicant, it found that the grounds of suspicion against the applicant persisted. The Court of Appeal further maintained that the danger of collusion persisted, as the raising of evidence before the Regional Court had not yet considerably advanced.

Furthermore, the danger of absconding persisted, as the applicant tried to evade the proceedings by rendering himself unfit to plead. In this respect, the Court of Appeal referred to the Public Prosecutors submissions of 16 October 2000, which read as follows:

“In this respect the Chamber [of the Regional Court] has rightly pointed out that the accused, on 5 January 2000, had rendered himself unfit to plead and that he, on another occasion, refused to take his medication, which led to similar results. Furthermore, the Chamber could take into consideration that the accused’s and his lawyer’s behaviour did not give the impression that the accused was interested in a swift termination of the proceedings. This is confirmed by the fact that, during 62 days of hearings, the accused respectively his lawyer had lodged a total of 37 motions for bias against the court, which have so far all been rejected as being unfounded. It is therefore acceptable if the Chamber deduces that there is the concrete danger that the accused would try to render himself unfit to plead if he were released from the supervision of detention on remand...”

The Court of Appeal followed these submissions.

On 12 April 2001 the applicant submitted a medical attestation according to which it was indicated to discontinue treatment with antidepressant medicine, as his state of health had stabilised and requested, once again, to be released from detention.

On 25 April 2001 the Regional Court rejected the applicant’s fresh request inter alia for the following reasons:

“As the Chamber has just pointed out in its decision of 1 February 2001 on the applicant’s fifty-third motion for bias, the accused and his defendants pursue a procedural strategy which is primarily aimed at obstructing the proceedings. Accordingly, the Chamber continues to expect that the applicant, if released, would do everything to evade the proceedings. It is obvious that such cannot only be done by overdosing or refusing prescribed medication. Accordingly, the medical attestation ...was not fit to disprove the Chamber’s expectations. The danger that the accused would abscond from the proceedings had been further increased by the fact that the evidence presented so far has not yielded any facts in the applicant’s favour...”

In his complaint, the applicant contested that he had put himself into a state of being unfit to plead and that there had not been any evidence in his favour. Furthermore, the Regional Court had failed sufficiently to expedite the proceedings.

On 3 July 2001 the Court of Appeal rejected the applicant’s complaint. Referring to its former decisions and examining the new arguments put forward by the applicant, that court confirmed that a strong suspicion against the applicant persisted and that there remained the risk of the applicant’s absconding and of collusion. With regard to the conduct of the Regional Court, the Court of Appeal found as follows:

“There is no indication that the Court of Appeal failed sufficiently to expedite the proceedings, as prescribed by Article 5 § 3 sentence 2 of the Convention. The latter provides that a detained person is entitled to trial within a reasonable time. As the Regional Court correctly pointed out, the proposed dates for hearings could not be used because either the accused or his counsel were unable to attend.”

On 3 September 2001 the applicant lodged a further complaint against the arrest warrant, alleging, inter alia, that the Regional Court had failed sufficiently to expedite the proceedings. He complained, in particular, that two dates for hearings had been cancelled because of a judge’s holidays and a lay judge’s attendance of a funeral.

On 10 September 2001 the Regional Court rejected the complaint, pointing out that the cancellation of the hearings had been justified and that the Chamber had offered alternative dates for hearings, which could not take place as the accused’s counsel had been unable to attend.

On 25 October 2001 the Court of Appeal confirmed the Regional Court’s decision.

On 7 January 2002 the applicant lodged a further request to quash the arrest warrant. Referring to the Court’s judgment in the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the applicant maintained that only compelling reasons could justify his detention on remand for a period of more than two years. According to the applicant’s allegations, the domestic courts had failed to conduct the proceedings with due diligence.

The applicant maintained that there had never been a strong suspicion against him. Furthermore, there had never been facts confirming a risk of collusion. He further maintained that there had not been any danger of his absconding, as he entertained close contacts to his wife and to his two grown-up children. He pointed out that he had at no occasion attempted to evade. Finally, the applicant maintained that the Regional Court had failed to hold hearings at all available dates. In this respect, he pointed out that the chamber had heard another criminal case on seventeen days from 13 October 2000 to 2 January 2001.

On 14 January 2002 the Kiel Regional Court rejected the applicant’s motion. It found, first, that there existed the risk that the applicant might attempt to make himself unfit to plead by abuse of medication. In this respect, the Regional Court stated that the applicant’s medical condition on 5 January 2000 had necessitated extensive medical treatment in order to restore his fitness to plead. A blood examination had revealed a toxic overdose of medication. The strong suspicion against the applicant had been confirmed by the evidence taken.

With respect to the applicant’s complaint about an alleged lack of diligence, the Regional Court pointed out that, until 9 January 2002, it had held hearings on 145 days. The parallel proceedings had been conducted with a partially differing composition of the Chamber.

The Regional Court further maintained that the applicant had delayed the taking of evidence. A large part of the length of the proceedings was imputable to the applicant’s own conduct.

On 21 March 2002 the Schleswig-Holstein Court of Appeal rejected the applicant’s complaint. Referring to the Public Prosecutor’s comments in the complaint proceedings and to its previous decisions of 2 August 1999, 19 October and 20 December 2000, 3 July and 25 October 2001, the Court of Appeal confirmed that the strong suspicion that the applicant had committed the offences he was accused of persisted and that he was likely to tamper with evidence or abscond if released. With regard to the applicant’s complaint under Article 5 § 3 of the Convention, the Court of Appeal found that the domestic authorities had displayed special diligence given the complexity of the case. They had expedited the investigations following the applicant’s arrest in March 1999 and continuously held hearings in the applicant’s case since November 1999. The chamber had generally held hearings at two days per week. There was no indication that the Regional Court could have considerably expedited the proceedings.

The Court of Appeal finally found the applicant’s continued detention to be proportionate, given both the conviction the applicant was likely to face and the general interest in the integrity of the judicial system.

On 16 April 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for lack of prospect of success.

On 18 December 2002 the further execution of the arrest warrant was suspended (Haftverschonung) and the applicant released.

On 21 July 2002 the applicant, who was at that time detained on remand, wrote a letter to the journalist G. He alleged that a prosecution witness had stated during a public hearing that he had been induced by the Public Prosecutor’s Office to give false evidence against the applicant. In return, the Public Prosecutor’s Office had discontinued prosecution in two criminal proceedings directed against that witness. The applicant added that the Public Prosecutor’s actions had been unfair (“unlautere Mittel”).

On the same day, the applicant wrote another letter to the journalist M. in which he repeated his allegations. He added that the Regional Court had refused to hear the respective witness on these allegations.

On 29 July 2002 the Kiel Regional Court ordered under section 119 § 2 of the Code of Criminal Procedure in conjunction with rule 34 § 2, no. 3, of the Rules on the Execution of Detention on Remand (Untersuchungshaftvollzugsordnung, see relevant domestic law below) that the two letters should not be delivered, but returned to the applicant. It found that both letters contained allegations of prosecution of innocent persons and defamatory statements directed against the Public Prosecutor and – with respect to the second letter – also against the Chamber of the Regional Court.

On 1 August 2002 the applicant lodged a complaint. He maintained, in particular, that his allegations had been true.

On 22 August 2002 the Schleswig-Holstein Court of Appeal rejected the applicant’s complaint. It found that the content of the letters had been designed to jeopardise the purpose of detention on remand (section 119 § 3 of the Code of Criminal Procedure), as the applicant had accused the Public Prosecutor’s Office of having employed illegal means. The transmission of the letters was also apt to disturb the prison order, as it could set an example for other prisoners. The Court of Appeal further pointed out that it was not established that the applicant’s allegation had been true. The applicant was in a position to pursue his interests by the means provided to him in the criminal proceedings.

On 24 October 2002 the Federal Constitutional Court refused to admit the applicant’s complaint.

On 23 November 2004 the Kiel Regional Court sentenced the applicant to six years and nine months’ imprisonment.

The admissibility of detention on remand is governed by the Code of Criminal Procedure (Strafprozessordnung), the relevant provisions of which read as follows:

Section 112

“(1) Detention on remand may be ordered against the accused if he is strongly suspected of the offence and if there is a ground for arrest. It may not be ordered if it is disproportionate to the significance of the case or to the penalty ... likely to be imposed.

(2) A ground for arrest shall exist if on the basis of certain facts:

it is established that the accused has fled or is hiding;

considering the circumstances of the individual case, there is a risk that the accused will evade the criminal proceedings (risk of flight); or

the accused’s conduct gives rise to the strong suspicion that he will

a) destroy, alter, remove, suppress, or falsify evidence,

b) improperly influence co-accused, witnesses, or experts, or

c) cause others to do so,

and if, therefore, the danger exists that establishment of the truth will be made more difficult (risk of collusion, Verdunkelungsgefahr).

Section 119

(3) Only such restrictions may be imposed on the arrested person as are required by the purpose of detention on remand or by the need for order in the prison.

Rule 34 § 1 of the Rules on the Execution of Detention on Remand (Untersuchungshaftvollzugsordnung) provides that a judge is entitled to stop a letter, if the delivery of that letter is suited to jeopardise the prison order. According to rule 34 § 2, no. 3, this can inter alia be the case if the delivery of the letter – in the knowledge of its content - would constitute an offence.