Violation of P1-1;Pecuniary damage - financial award

The applicant is the owner of an apartment in Milan, which he had let to S.P.

In a registered letter of 28 June 1988, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 1 July 1988 and asked her to vacate the premises by that date.

In a writ served on the tenant on 20 February 1991, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 14 March 1991, which was made enforceable on 27 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.

On 30 November 1992, the applicant served notice on the tenant requiring her to vacate the premises. On an unidentified date, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 February 1993.

On 3 December 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his mother.

Between 19 February 1993 and 12 May 1997 the bailiff made twenty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.

On 31 August 1997, the applicant repossessed the apartment.

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


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Mr Valentin Michajlov, is an Austrian national who was born in 1952 and lives in Krems. He is represented before the Court by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

On 4 May 2005 the Vienna Regional Criminal Court (Landesgericht) convicted the applicant of various offences under the Drugs Act and sentenced him to eight years’ imprisonment. It found him guilty of having commissioned various persons between May and November 2001 to import cocaine to Austria and to have sold some seven kilos of cocaine to various individuals in Austria. In fixing the sentence, the court had regard to the fact that the applicant had four previous convictions two of which also concerned offences under the Drugs Act. It also revoked the suspension of a term of three months’ imprisonment resulting from a previous conviction. The applicant’s imprisonment was due to be terminated on 14 November 2011.

The applicant was detained at Sonnberg Prison when he was diagnosed with multiple sclerosis in December 2006. Subsequently, he was regularly taken to the public hospital in St. Pölten, which has an out-patient department specialised in the treatment of multiple sclerosis. Examinations took place on 11 January, 14 March and 25 September 2007 and on 23 January 2008.

By decision of 28 January 2008 the Korneuburg Regional Court, noting that the applicant required more intensive medical treatment and care, ordered his transfer to Stein Prison for the further execution of his sentence, as that prison centre was equipped with a hospital of its own. However, the Regional Court refused the applicant’s request for a suspension of the execution of his sentence pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act (Strafvollzugsgesetz).

The Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal on 3 March 2008. It noted on the basis of a medical expert opinion that the applicant, suffering from multiple sclerosis, was unfit for detention. However, he was to be considered dangerous within the meaning of section 5 § 3 of the Execution of Sentences Act. He had been convicted five times. His last conviction for importing and selling seven kilos of cocaine concerned a particularly serious crime. Although the applicant’s mobility was reduced by his illness, he could use his contacts within the criminal scene to commit or instigate further crimes.

On 3 April 2008 the applicant was transferred to Stein prison. From that date he was detained in the hospital of Stein prison. The Government submitted a statement of the head doctor of the Stein prison: The hospital has its own medical and nursing staff. Doctors carry out daily visits and medical and nursing assistance is available 24 hours per day. All sanitary facilities in the prison hospital are suitable for persons with disabilities. The preparation of food takes special needs into account.

Until 20 January 2009 the applicant was placed in room no. 117 of the prison hospital, which is equipped with sanitary facilities (shower and toilet) suitable for persons with disabilities. Subsequently, he was placed in two other rooms of the prison hospital, namely room no. 129 until 9 May 2009 and room no. 134 until his release. While staying in these rooms the applicant could use the hospital’s common shower room with the assistance of prison staff.

The applicant continued to receive treatment at the multiple sclerosis department at the St. Pölten public hospital. An examination scheduled for 22 April 2008 was refused by the applicant. Further examinations took place on 27 May and 26 November 2008 and on 17 February and 18 June 2009. The applicant’s therapy was fixed and continuously adapted by the specialists of the multiple sclerosis department and was carried out at the prison hospital. Moreover, the applicant was treated by the prison hospital’s pain specialist several times.

In addition to medication, the applicant received physiotherapy from 2009. This was available in the prison hospital. A first set of ten therapy units was prescribed. The applicant underwent five units between 2 and 17 March 2009 but renounced to make use of the remaining units. Subsequently, physiotherapy was resumed and the applicant received eleven therapy units between 4 and 29 May 2009.

On 10 June 2008 the applicant, represented by counsel, requested anew that the execution of his sentence be suspended due to his illness pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act and that he be released.

He joined an opinion by an expert on neurology and psychiatry, Dr. K. According to the expert’s opinion dated 8 January 2008 the applicant was unfit for detention. Since he had been diagnosed with multiple sclerosis in December 2006 his state of health had deteriorated considerably. In particular, the mobility of his arms and hands was restricted and he could no longer perform simple gestures necessary for everyday life, such as handling cutlery for instance. His general mobility on the EDSS scale was 4 (0 being full mobility, 7 meaning dependency on a wheel-chair). He received medication, however this was not sufficient as according to medical opinion a multidisciplinary approach, encompassing neurology, physiotherapy and psychology, was necessary for treating multiple sclerosis. The support by close relatives was also crucial.

As to the question whether there was still a danger that he would commit further offences, the applicant submitted that all his energy was devoted to combating his illness. Should the court have doubts in respect of his dangerousness, he requested that the opinion of an expert be taken.

On 23 July 2008 the Krems Regional Court dismissed the applicant’s request. It noted that according to the prison administration, the applicant’s conduct was good. According to the prison doctor, the applicant’s condition was stable for the time being but could deteriorate at any time. Referring to the expert opinion, the court acknowledged that the applicant was unfit for detention due to his illness. However, he was to be considered particularly dangerous. In that respect, the court referred to the decision by the Vienna Court of Appeal of 3 March 2008, which had found that even if his mobility was reduced there was a danger that the applicant might use his contacts to organise further drug trafficking. Therefore the conditions for suspending the execution of his prison term as laid down in section 133 § 1 taken in conjunction with section 5 § 3 of the Execution of Sentences Act were not met.

The applicant appealed, claiming in particular that his illness had weakened him substantially and all remaining energy was required to cope with the illness. Consequently, it could no longer be assumed that he would commit further offences. In that connection he complained that the Regional Court had assumed that his dangerousness persisted without having taken a further expert opinion.

By decision of 25 August 2008 the Vienna Court of Appeal dismissed the applicant’s appeal. It noted that the applicant suffered from multiple sclerosis and was unfit for detention. However, it confirmed the Regional Court’s view regarding the applicant’s dangerousness. It observed that he had been convicted five times. The prison term he was serving related to the trafficking of a substantial amount of drugs, namely seven kilos of cocaine which he had imported though third persons and sold in Austria. Pursuant to section 5 § 3 of the Execution of Sentences Act, the sentence had to be executed even where the detainee was unfit for detention if he presented a danger to the security of others having regard to the nature of his offences or the motive for which they were committed or in view of his prior conduct. The court referred to the applicant’s recidivism and the large amount of drugs which he had sold, and found that his dangerousness was not offset by the effects of his illness.

In sum, the Court of Appeal found that despite the fact that the applicant was unfit for detention, his substitute confinement (Ersatzhaft) – if need be in a public hospital – was required for the protection of others.

By application of 1 April 2009 the applicant again requested that the execution of his sentence be suspended pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act and that he be released.

He submitted a private expert opinion by Dr. H, a neurologist, psychiatrist and physiotherapist. The opinion, dated 26 March 2009, stated that the danger that the applicant would commit further offences had considerably decreased. While his prior convictions indicated a certain risk, all other relevant factors rather allowed a positive prognosis. His severe and progressive illness required all his energy and had led to a profound change. Moreover, the applicant’s age, his reduced mobility, the need of constant medical treatment and his dependency on help from others made it unlikely that he would commit further offences.

The Krems Regional Court appointed a psychiatric expert Dr. B. In his opinion, dated 15 September 2009, Dr. B. noted that the applicant was detained in the prison hospital and that according to the prison doctor his state of health had deteriorated over the last months. By now he was able to walk only with great difficulty. The expert confirmed that the applicant was unfit for detention due to his illness. Regarding his dangerousness, the expert found that the applicant still made an astonishingly energetic impression. Although his progressive illness and his age could be considered as a factor reducing the probability of a relapse into crime, his personality did not necessarily indicate that he would refrain from committing further offences. In sum, the remaining danger had to be compensated by stabilising factors such as assistance by a probation officer (Bewährungshelfer).

On 12 October 2009 the Krems Regional Court ordered the applicant’s release. It noted that the applicant was detained in the prison hospital. The hospital’s head doctor had submitted comments in favour of release. Furthermore, expert Dr. B. had found that the applicant’s inclination to commit further offences had decreased but not totally disappeared and had recommended that a probation officer be appointed in case of release.

Referring to its previous decision, the Regional Court noted that the applicant suffered from multiple sclerosis and was unfit for detention. While that decision had refused the applicant’s release on account of his dangerousness, the applicant’s good conduct in the meantime and Dr. B.’s expert opinion led to the conclusion that the applicant’s dangerousness had decreased. On the condition that he would reside with his mother and be assisted by a probation officer it could be assumed that he would not commit further offences. The execution of his sentence was therefore suspended pursuant to section 133 § 1 of the Execution of Sentences Act.

In order to allow for the necessary preparations, the court ordered that the applicant be released on 20 October 2009.

The applicant was released on that day.

Section 5 § 1 of the 1969 Execution of Sentences Act provides that the execution of a prison term is to be suspended if the convict is unfit for detention due to invalidity or a physical or mental illness. Pursuant to section 5 § 3 of the said Act a convict who is unfit for detention may nevertheless be deprived of his liberty if he presents a danger to the security of the State or to the security of third persons, having regard to the nature or the motive of the offence committed by him, or in view of his prior conduct. If need be, confinement is to be carried out at a public hospital.

Pursuant to section 133 § 1 the execution of a sentence has to be suspended if a prisoner becomes unfit for detention while serving his prison term. The conditions set out in section 5 apply.


CASE OF PIERSACK v. BELGIUM (ARTICLE 50)

Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 October 1981. The case originated in an application (no. 8692/79) against the Kingdom of Belgium lodged with the Commission on 15 March 1979 by a Belgian national, Mr. Christian Piersack.

By judgment of 1 October 1982, the Court held that there had been a violation of Article 6 § 1 (art. 6-1) of the Convention, in that the impartiality of the "tribunal" which, on 10 November 1978, had determined the "merits" (in the French text: "bien-fondé") of a "criminal charge" against Mr. Piersack - namely, the Brabant Assize Court - "was capable of appearing open to doubt" (Series A no. 53, paragraphs 28-32 of the reasons and point 1 of the operative provisions, pp. 13-17).

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 7 to 17 of the above-mentioned judgment (ibid., pp. 6-10).

At the hearing of 25 March 1982, Mr. Piersack’s lawyer had stated that his client was seeking under Article 50 (art. 50) his immediate release, in accordance with "arrangements to be discussed", and also financial compensation to be used to meet the fees of his lawyers before the Belgian Court of Cassation (50,000 BF) and in Strasbourg (150,000 BF), subject to deduction of certain amounts paid by the Council of Europe by way of legal aid (3,500 FF).

Counsel for the Government had replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction.

In its judgment of 1 October 1982, the Court reserved the question and invited the Commission to submit, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant might have arrived (paragraphs 34-35 of the reasons and point 2 of the operative provisions, ibid., p. 17).

After an extension of the above-mentioned time-limit by the President of the Court, and in accordance with his Orders and directions, the Registrar received:

- on 1 February 1983, from the Secretary to the Commission, brief observations by its Delegate and copies of the correspondence it had exchanged with the Government and the applicant between October 1982 and January 1983;

- on 14 February and 4 May, from the Agent of the Government, certain supplementary remarks;

- on 7 and 24 March, two letters from Mr. Piersack’s lawyer.

These documents revealed that no friendly settlement had been arrived at.

Acting on the President’s instructions, the Registrar wrote to the Agent of the Government on 23 March. The letter, which made reference to the wording of and the case-law on Article 50 (art. 50), enquired - "without prejudice to the decision which the Court might take on the point in question" - whether the Belgian authorities considered that Belgian law provided "any means whereby full reparation can be made for the consequences of the breach found ... by the judgment of 1 October 1982".

In his reply dated 29 April and received at the registry on 4 May, the Agent indicated that two days previously the Belgian Minister of Justice had requested the procureur général (State prosecutor) attached to the Court of Cassation to challenge before the latter Court the judgment of 10 November 1978 whereby the Brabant Assize Court had sentenced the applicant to eighteen years’ hard labour for murder (see paragraph 2 above). The Minister had taken this step pursuant to Article 441 of the Code of Criminal Procedure, which provides as follows:

"Where, on production of formal instructions which he has received from the Minister of Justice, the procureur général attached to the Court of Cassation impugns, before the Chamber hearing appeals on points of law in criminal cases involving serious, lesser and petty offences (en matière criminelle, correctionnelle et de police), judicial acts or judgments as being contrary to the law, such acts or judgments may be annulled. ..."

The subsequent developments in the case appear from letters which the Registrar received from the Agent of the Government on 3 June, 10 October and 7 November 1983 and 16 January 1984.

(a) The procureur général referred the matter to the Court of Cassation on 29 April. In his submissions, he urged that the Court of Cassation had "to recognise that the European Court’s judgment had the force of res judicata" and "consequently to conclude that ... the procedural acts before the [Brabant] Assize Court and the latter’s judgment" had violated Article 6 § 1 (art. 6-1) of the Convention and "were therefore contrary to the law, within the meaning of Article 441 of the Code of Criminal Procedure". He also expressed the view that the fact that Mr. Piersack’s appeal on points of law against the judgment in question had been dismissed on 21 February 1979 (Series A no. 53, p. 10, § 17) did not prevent the Court of Cassation from applying Article 441, notably because at the relevant time it had been unaware of "two facts" on which "the European Court had based ... its decision": "firstly, Mr. Van de Walle, the President of the Assize Court, had until 1 November 1977 been the head of the section in the Brussels public prosecutor’s department that was responsible for Piersack’s prosecution"; "secondly, in that capacity, [he] had in fact played a certain part in the proceedings" (ibid., pp. 15-16, § 31).

On 18 May 1983, the Court of Cassation, adopting these submissions, annulled the procedural acts subsequent to the committal for trial before the Assize Court (16 June 1978; ibid., p. 7, § 13) and the judgment of 10 November 1978 to the extent that it had convicted the applicant of, and sentenced him for, the manslaughter (meurtre sans préméditation) of one Michel Dulon (ibid., pp. 6-7, §§ 8 and 14); with these limitations, the case was referred back to the Hainaut Assize Court.

(b) On 7 and 8 June, Mr. Piersack instituted, before the President of the Mons Court of First Instance, sitting as judge hearing urgent applications (siégeant en référé), proceedings against the Belgian State, the procureur général attached to the Mons Court of Appeal, the procureur du Roi (public prosecutor) attached to the Mons Court of First Instance and the Governor of Mons Prison. He claimed that he had been "arbitrarily detained since 18 May 1983"; accordingly, he requested the President to "order [his] immediate release" and to direct the Belgian State to pay to him 3,000 BF "per day since 18 May 1983, by way of damages for unlawful imprisonment".

The President of the Mons Court of First Instance held on 7 September 1983 that he had no jurisdiction in the matter, since "the defendants ha[d] not committed any manifest illegality (voie de fait)": he found that following the judgment of 18 May 1983 the plaintiff had re-acquired "the status of a detainee on remand"; the legal basis for that detention lay in the judgment of 16 June 1978 by the chambre des mises en accusation (Indictments Chamber) (see Series A no. 53, p. 7, § 13), which judgment had not been annulled by the Court of Cassation.

(c) The Hainaut Assize Court, by seven votes to five, convicted Mr. Piersack on 17 October 1983 and sentenced him to eighteen years’ hard labour, a sentence identical to that which had been imposed on 10 November 1978.

The applicant did not appeal on points of law against this judgment since he considered that "this time" he had received a "fair trial".

On 7 February, 16 March, 22 June and 25 September 1984, the applicant, the Commission’s Delegate and the Government lodged with the registry, in accordance with the Orders and directions of the President of the Court, further observations on the application of Article 50 (art. 50) in the present case in the light of the events described above.

On 17 September, the Registrar also received from the Secretary to the Commission the reply to a request for information which the Registrar had made on 28 June on the instructions of the Court.

After consulting, through the Registrar, the Agent of the Government and the Delegate of the Commission, the Court decided on 26 September 1984 that there was no call to hold hearings.

Mr. Thór Vilhjálmsson and Mr. F. Matscher, substitute judges, replaced Mr. L. Liesch and Mr. J. Pinheiro Farinha, who were prevented from taking further part in the consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).


The applicant was born in 1939 and lives in Bijela Brda.

On 9 April 1984 the applicant brought a civil action in the Beograd Third Municipal Court against a certain N.D., seeking repayment of a loan.

Having heard the applicant in person at a hearing on 20 June 2002, on 5 November 2002 the court gave a judgment accepting the applicant's claim. On 26 November 2003 the Beograd District Court quashed that judgment for factual shortcomings and remitted the case. In its decision, the District Court instructed the first-instance court to hear and confront the parties, as well as to hear the other witnesses proposed by the applicant with a view to establishing, inter alia, whether the loan had been made to N.D. or to his father, whether a part of it had in the meantime been repaid and whether the claim was time-barred.

In the resumed proceedings, the court held a hearing on 16 November 2004, which the applicant did not attend although duly summoned. On that occasion, his lawyer informed the court that the applicant was in poor health and needed surgery. Therefore, the applicant would not be able to attend court hearings, but maintained all his claims, as previously stated in his oral and written submissions to the court.

On 1 April 2005 the applicant submitted a medical certificate, stating that he suffered from paranoid psychosis with signs of hypochondria, and that he was unable to attend court hearings.

The court appears to have held further hearings on 17 June and 7 October 2005, both attended by the applicant's lawyer. It also obtained an expert opinion on 27 May 2005.

The court subsequently ordered the applicant's lawyer to inform it of the exact date and place where the applicant would be medically treated. It further contacted the medical institution which had issued the certificate of 1 April 2005, requesting its opinion on whether the applicant's health allowed him to be a party to the proceedings. It would appear that none of the court orders has ever been complied with.

At the hearing held on 26 September 2006 the applicant's lawyer specified the claim, whereas the respondent submitted that, if the applicant was ill, the court could not continue the proceedings.

The proceedings are still pending before the first-instance court.

The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007).

The relevant provisions of this Act (hereafter referred to as the “CPA”) provide as follows:

“During the course of the proceedings, the court shall ex officio verify whether the person appearing as a party may be party to the proceedings and whether he or she has the capacity to act...”

“Should the court establish that the person appearing as party cannot be party to the proceedings, and that this obstacle cannot be eliminated, it will invite the plaintiff to undertake the necessary amendments to the claim...”

“1. Relevant facts may also be established by hearing the parties.

The court shall decide to hear the parties when there is no other evidence or when, despite the presentation of other evidence, the court deems it necessary with a view to establishing relevant facts.”

“... 2. The court may decide to hear only one of the parties, if the other party refuses to give a statement or does not appear [at the hearing] despite the court summons.

If a party dies in the course of the proceedings, or his or her repeated examination becomes impossible for some other reason, the court will read the minutes containing that party's statement.”

“The party may be heard through another court only if he or she cannot come to the court in person due to obstacles which cannot be eliminated or at extremely high costs.”

“1. The court may not use any compelling measures in respect of the party which did not appear at the scheduled court hearing [for the examination of the parties], nor can a party be forced to give a statement.

's failure to appear or refusal to give a statement.”

“If a hearing is held before a new formation [of judges], the main hearing must recommence, but the chamber may, having consulted the parties, decide not to hear witnesses and expert witnesses or hold an on-site inspection again, but instead read the minutes of the evidence already taken.”

The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).

Sections 242, 243 and 245 of this Code define “abuse of office” (zloupotreba službenog položaja), “judicial malfeasance” (kršenje zakona od strane sudije) and “official malfeasance” (nesavestan rad u službi) as separate criminal offences.

Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows:

“Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law.

Such damages shall be met by the Republic of Serbia or the public authority [in question].”

This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force.

The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25.

Article 170 of the new Constitution provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by the Constitution.

Section 9 of the Constitutional Act on the Implementation of the Constitution (OG RS 98/06) provides that the election of Constitutional Court judges shall be finalised before the end of the first National Assembly.


The first applicant, Ms Knel, is the mother of the second applicant, Veira. Both applicants are resident in Rotterdam.

Ms Knel had a relationship with Veira’s father out of which Veira was born on 17 December 1981. It is alleged that this relationship was terminated soon after Veira’s birth, after which Veira lived with his mother Ms Knel. At that time both applicants were resident in Surinam and had Surinam nationality.

Ms Knel married another man. She and her husband moved to the Netherlands in 1985, leaving Veira with his paternal grandparents. She now has Netherlands nationality. Veira still has Surinam nationality.

In 1987 Ms Knel applied to the Minister for Foreign Affairs for a provisional residence visa (machtiging tot voorlopig verblijf) in Veira’s name. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights.

By a letter dated 12 March 1987 the Visa Service of the Ministry of Justice informed the Netherlands embassy in Surinam that there was no objection to the grant of a provisional residence visa to Veira. The applicants state that they were never informed of any decision, whether favourable or otherwise. They did not, however, take proceedings on the basis of an implied refusal, as they might have done within a reasonable time if it appeared that a decision was not forthcoming. It appears that Veira remained in Surinam.

A new request for a provisional residence visa was lodged in 1992, through the Netherlands embassy in the Surinam capital Paramaribo. On 25 September 1992 the Minister for Foreign Affairs gave a decision refusing such a visa on the ground that Veira, having been resident with his grandparents since 1985, had ceased to be part of his mother’s family unit.

The applicants lodged an objection (bezwaarschrift) against this decision on 20 October 1992. Following a hearing on 21 January 1993 the Minister for Foreign Affairs gave a decision on 15 March 1993 dismissing the objection. This decision was transmitted to the embassy in Paramaribo.

The applicants lodged an appeal with the Judicial Division (Afdeling rechtspraak) of the Council of State (Raad van State) against the Minister’s decision on 8 April 1993. This appeal was withdrawn on 21 June 1995. It is stated that their reason for so acting was that Veira could not obtain a passport from the Surinam authorities, and that without a passport they did not expect the appeal to have any prospects of success.

As alleged by the applicants, the situation in Surinam had become untenable due to the deterioration of Veira’s grandparents’ health. Ms Knel decided to bring Veira into the Netherlands without complying with the formalities, and on 22 October 1993 Veira entered the Netherlands.

On 13 October 1995, nearly two years after Veira had entered the Netherlands, Ms Knel applied in his name for a residence permit. By a decision dated 22 March 1996 the Deputy Minister of Justice refused to grant such a permit.

On 3 June 1996 the applicants lodged an administrative appeal (administratief beroep) against the Deputy Minister’s refusal. This was rejected on 13 December 1996.

The applicants appealed to the Regional Court (Arrondissementsrechtbank) of The Hague on 24 December 1996.

Following a hearing on 17 June 1997 the Regional Court dismissed the appeal on 21 June 1997. The Regional Court considered that Veira could be cared for in Surinam by a sister of Veira’s father, with financial assistance from Ms Knel if need be, and that the applicant’s separation in 1985 had been a consequence of Ms Knel’s choices with regard to the way she had wished to lead her personal life.

It appears from a letter received from the applicants’ representative on 17 June 1998 that the Netherlands authorities were then contemplating removing Veira to Surinam. However, the Court has not been informed that this has taken place.


Violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - financial award (total);Costs and expenses partial award - Convention & domestic proceedings

The applicant, who is a French national of Polish origin, was born in 1950 and lived in Brzeg.

The applicant moved to Poland in about 1984. He was in employment for a number of years and consequently was affiliated to the general social security scheme. The relevant law governing it did not exclude the participation of foreign nationals in the general social security scheme.

On 20 January 1997 the applicant and his wife, who is a Polish national, jointly bought a farm. They took possession of it on 20 November 1997. At about that time the applicant terminated his employment and decided to make his living from the farm.

On 2 December 1997 the applicant requested the Częstochowa branch of the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to admit him to the farmers' social security scheme.

On 16 December 1997 his request was refused on the ground that he was not a Polish national, a condition stipulated in the Farmers' Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). As a result, the applicant did not have social security cover in the event of sickness, occupational injury and invalidity. In addition, he could not pay contributions towards his old-age pension.

In a decision given on the same date, the applicant's wife was admitted to the farmers' scheme.

The applicant appealed against the decision given in his case. He submitted that as a self-employed farmer he was exposed to the risk of work-related accidents. Furthermore, he argued that since he had acquired the farm he had terminated his previous employment and that the farm was intended to provide for his livelihood. The applicant also submitted that when previously employed he had been covered by the general social security scheme despite his foreign nationality. As a result of the refusal, he could not pay his social security contributions, so the relevant time would not be taken into account when calculating his future retirement pension.

He also submitted that he had been informed about an obligation to join the scheme by way of a clause in the notarial deed whereby he had acquired the farm. In addition, the applicant stated that he had been living in Poland for 18 years and that he had had a permanent residence permit for 15 years. He also referred to his Polish origin and his willingness to pay the relevant contributions to the scheme.

On 30 March 1998 the Częstochowa Regional Court dismissed the applicant's appeal, finding that the applicant could not be admitted to the farmers' social security scheme as he did not have Polish nationality. On the other hand, it observed that in the event of a serious occupational injury the applicant could be granted a one-off compensation payment as provided in section 10(1)(2) of the 1990 Act. As regards access to health services, the Regional Court noted that the applicant, as a foreign national permanently residing in Poland, would be provided with such access by a law which was to come into force on 1 January 1999.

The applicant appealed against that judgment. He submitted that the refusal to admit him to the social security scheme for farmers on the basis of his nationality was discriminatory. He alleged a breach of the principle of equality, relying on the Constitution and the International Covenant on Economic, Social and Cultural Rights (“the ICESC”).

On 22 December 1998 the Katowice Court of Appeal dismissed the applicant's appeal. It found that the applicant could not base his claim for admission to the farmers' social security scheme on the Constitution as the latter provided in Article 37 § 2 for statutory limitations on the rights of aliens. Similarly, the Court of Appeal held that the 1948 bilateral treaty concluded between France and Poland in matters of social security was applicable exclusively to employees. The applicant's claim based on the ICESC was also dismissed. The Court of Appeal noted that Article 9 of the ICESC included a provision on the right of everyone to social security. However, it held that the provisions of the Covenant were not self-executing and left States a margin of discretion as to the manner of their implementation in domestic law.

The applicant lodged a cassation appeal against that judgment with the Supreme Court. On 8 February 2000 the Supreme Court dismissed his cassation appeal, relying principally on the same grounds as the Court of Appeal. Additionally, it observed that Article 67 of the Constitution provided that the right to social security was guaranteed only to Polish nationals.

In 1998 the applicant requested the President of the Farmers' Social Security Fund to admit him to the farmers' scheme as an exception to the existing rules. On 7 August 1998 the President of the Farmers' Social Security Fund refused and informed the applicant that the 1990 Act expressly excluded the admission of non-Polish nationals to the scheme. That rule was applicable to farmers, their spouses and members of their household.

In 1998 the applicant petitioned the Ombudsman. On 16 September 1998 the Ombudsman wrote to the Minister of Agriculture, stating that discrimination on the ground of nationality in respect of the provision of social security to farmers was questionable in view of the obligations specified in the ICESC. He requested the Minister to urgently prepare a relevant amendment to the 1990 Act. On 30 September 1998 the Minister informed the Ombudsman that amendments were being prepared. Those amendments would enable farmers of foreign nationality having permanent residence status in Poland to join the farmers' scheme. It was envisaged that the amendments would enter into force on 1 January 1999. The applicant was informed of this by the Ombudsman. However, the amendments were not enacted.

In 2002, in view of the prolonged uncertainty as to his social security cover, the applicant went to the Netherlands, where he obtained a job. From April 2004 to April 2006 the applicant was on sick leave and subsequently he has been in receipt of a sickness allowance.

On 2 April 2004 the 1990 Act was amended in connection with Poland's accession to the European Union (EU). The amendments provided, inter alia, that nationals of EU Member States and foreign nationals in possession of a residence permit could join the farmers' scheme.

The European Social Charter 1961 (“the Social Charter”), which entered into force in respect of Poland on 25 July 1997, provides, as relevant:

“The governments signatory hereto, being members of the Council of Europe, ...

Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin; ...

Have agreed as follows: ...”

“The Contracting Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs. ...”

“With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake:

to establish or maintain a system of social security;

to maintain the social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention (No. 102) Concerning Minimum Standards of Social Security;

to endeavour to raise progressively the system of social security to a higher level;

to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure:

a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties;

b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.”

In accordance with Article 20 of the Social Charter, the Republic of Poland considered itself bound by a number of substantive provisions of the Charter, including Article 12.

Article 37 of the Constitution reads:

“1. Any person within the jurisdiction of the Republic of Poland shall enjoy the freedoms and rights guaranteed by the Constitution.

Exemptions from this principle with respect to aliens shall be specified by statute.”

Article 67 § 1 of the Constitution provides:

“A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidity as well as having attained retirement age. The scope and forms of social security shall be specified by statute.”

The social security scheme for farmers is regulated by the Farmers' Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). At the relevant time section 1(1) of the 1990 Act provided, in so far as relevant:

“The social security [scheme] for farmers shall cover farmers of Polish nationality and Polish members of their household working with them.”

The Social Security (Farmers and Members of their Families) Act of 14 December 1982, which predated the 1990 Act, did not lay down a nationality condition.

The scheme set out in the 1990 Act provides the following benefits: (1) sickness and maternity benefit, (2) benefit in respect of occupational injury and disease, and (3) old-age and invalidity pension. It is operated by the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego), a specialised government agency which is subsidised by the State budget. Depending on the size of their farms, farmers are either required to join the scheme by law or may join at their own request. Each farmer admitted to the scheme is required to pay contributions to it, the amount of which does not depend on the size of the farm or the level of income from it. The precondition for admission to the scheme is to be an owner of a farm, regardless of whether farming is the main source of the farmer's livelihood.

On 2 April 2004 the 1990 Act was amended. The relevant amendment, which entered into force on 2 May 2004, broadened the range of farmers who could be admitted to the farmers' social security scheme by, inter alia, including nationals of the EU Member States and foreign nationals residing in Poland on the basis of a visa or a residence permit.

At the relevant time the rules governing the operation of the general social security scheme for employees were laid down in the Social Security (Organisation and Financing) Act of 25 November 1986 (ustawa o organizacji i finansowaniu ubezpieczeń społecznych). The Act did not provide for any restrictions on admission to the general social security scheme on the basis of an employee's nationality, with the exception of those aliens who did not reside permanently in the country or were employed by foreign diplomatic missions. On 1 January 1999 the Act of 25 November 1986 was repealed and replaced by the Social Security System Act of 13 October 1998 (ustawa o systemie ubezpieczeń społecznych). However, the rule in respect of the admission of employees of foreign nationality to the general social security scheme remains the same.

In 1948 Poland and France concluded the General Convention on Social Security (Konwencja Generalna pomiędzy Polską a Francją o zabezpieczeniu społecznym). However, the provisions of that Convention were applicable exclusively to employees and other workers in comparable positions, as opposed to self-employed persons.


The applicant, Jerzy Tokarczyk, is a Polish national, who was born in 1955 and lives in Lublin.

In 1995 the Lublin District Prosecutor instituted investigations in respect of a person or persons unknown on suspicion of aiding and abetting abortion. On 11 April 1995 the District Prosecutor ordered the interception of the applicant’s telephone calls as he suspected him of having committed a criminal offence of aiding and abetting abortion.

On 12 May 1995 the applicant was remanded in custody. He was released on an unspecified date after approximately four months of detention.

On an unspecified date the applicant appealed against the decision of 11 April 1995, submitting that the interception of his phone calls had exposed his family to harassment by the employees of the State telecommunications service. On 7 June 1995 the Lublin Regional Prosecutor upheld the contested decision, considering that it had been justified by the need to gather evidence in the proceedings. The recorded conversations had served as evidence, which enabled charges to be brought against the applicant. After the applicant was arrested, the interception of his phone calls was terminated on the same day.

By virtue of a judgment of the Lublin District Court of 27 October 1997 the applicant was found guilty on fourteen counts of aiding and abetting abortion in return for payment. He was also convicted of inciting one of the women who had had an abortion, M.Z., to give false evidence. The applicant was sentenced to one and a half years’ imprisonment and a fine of 3,000 Polish zlotys (PLN) was imposed on him.

The court established that from March 1993 the applicant had been regularly placing advertisements in the local newspaper: “Gynaecologist - inducing periods; call after 6 p.m. ”, and giving a phone number of a flat owned by him. Numerous women had telephoned him. He offered a service of taking them by his car to a hospital in Lviv in Ukraine, where abortion remained legal, for a fee of between PLN 700 and PLN 2,000. He had travelled to Lviv ten times, on various dates from 21 January 1995 until 27 April 1995, with fourteen women who had had abortions in the local hospital. The court relied on the testimony of thirty witnesses, including the fourteen women concerned, the staff of the newspaper in which the applicant had placed his advertisements, the persons living in his flat where he had been taking the phone calls, and other persons living in the neighbourhood. The court also relied on numerous documents in the case-file. As regards the charge of inciting M.Z. to give false evidence, the court relied on the transcripts of the applicant’s conversation with her, in which he had suggested that she tell the court that she travelled to Lviv to visit her family. The court further considered that the transcript of the two conversations was consistent with the evidence that this witness had given in the court.

The applicant appealed against that judgment. He submitted, inter alia, that the court had committed an error of fact in that it had failed to order expert medical opinions to establish whether the health of the women concerned had been such as to justify abortion under the law as it had stood at the material time. It was further argued that the court had failed to establish whether the women concerned were in a “difficult personal situation” within the meaning of the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act. The court had limited its considerations in this respect to the women’s financial situation, entirely overlooking all other aspects of what could legitimately be understood as their “personal situation”. The term “personal situation” should have been interpreted as referring to a woman’s situation as a whole, including her subjective feelings. Regard should have been had to the particularly delicate situation of a woman in an unwanted pregnancy, often confronted with the hostility of her environment and having to cope with prejudices and negative opinions in respect of unmarried mothers. Only through a full assessment of all such circumstances could it be established whether the women in the instant case were in a difficult personal situation such as to render voluntary termination of pregnancy lawful under the provisions of the Act. Lastly, the applicant argued that the lower court did not have any credible evidence on which to convict him of inciting M.Z. to give false evidence.

On 10 March 1998 the Lublin Regional Court upheld the contested judgment. The court considered that there was in fact evidence concerning the charge of inciting M.Z. to give false testimony, namely the transcript of the telephone conversations between her and the applicant on 5 May 1995 and 9 May 1995, numbered 10 and 15. As to the health of the women who had had abortions, the court observed that there were no indications that the applicant had been interested in their health when he had offered his services. Therefore it could not be accepted that their health could have been such as to amount to a fact justifying the abortion within the meaning of the Act then in force, or that the applicant had himself had any regard to this factor. Insofar as the applicant argued that the lower court had failed to establish whether the women were in a “difficult personal situation”, the court considered that the assessment made by the lower court was not arbitrary and that it was compatible with ordinary life experience.

The applicant lodged a cassation appeal with the Supreme Court. submitting complaints similar to those advanced in the appeal against the first-instance judgment. On 8 April 1999 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

Subsequently, the applicant applied to the Penitentiary Division of the Lublin District Court to grant him a stay of execution of the sentence as his health necessitated continuous medical care. On 31 August 1998 the court granted him a stay of execution. On an unspecified date the applicant applied again for a stay of execution of the sentence and on 29 June 1999 the Lublin District Court refused, holding that there were no indications that the serving of a prison sentence would entail any deterioration of his health. Subsequently, the applicant applied to the Supreme Court to reopen the criminal proceedings in his case, submitting that the Zamość District Prosecutor had, at his request, instituted criminal proceedings against witnesses who had testified in his case as their testimony had allegedly been false. Simultaneously, he applied for a stay of execution of the sentence.

On 5 August 1999 the Supreme Court refused to grant him a stay of execution.

On an unspecified later date the applicant appealed against the Lublin District Court decision of 29 June 1999 and on 16 August 1999 the Lublin Regional Court granted him a stay of execution of the sentence until 30 October 1999. Apparently, the applicant submitted further applications for a stay of execution and they all were refused.

On an unspecified date the applicant requested the Supreme Court to set a date for the in respect of his application to reopen the proceedings in his case. On 11 July 2000 he was informed in reply that the hearing could not be held until the final decision was given in the criminal proceedings against witnesses, as the decision was of significant importance for the decision on the reopening of the proceedings.

On an unspecified date the Zamość District Prosecutor discontinued the proceedings against the witnesses, finding that they had no case to answer. The applicant appealed against that decision and the Zamość District Prosecutor ordered his appeal to be considered by the Lublin District Court.

Article 198 of the 1969 Code of Criminal Procedure, applicable at the material time, provided that the prosecutor or the court was empowered to order that telephone communications, which could be of potential relevance to criminal investigations, be intercepted. The service of such a decision on the accused could be postponed for a specific period, considered necessary in the interest of the investigations.

Under the Minister of Justice’s Order of 10 May 1983 on the interception of phone calls, recordings of telephone conversations were to be made on the basis of the prosecutor’s or court’s order, within the time-frame and scope specified in that order.

A woman’s right to seek an abortion was introduced in Poland in 1956. From 1956 until 1993 voluntary termination of pregnancy on social grounds was in practice allowed.

The Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act was subsequently adopted by Parliament on 7 January 1993. It seriously limited the grounds on which abortion could be sought. On 4 January 1997 an amended text of the Act entered into force. The law as amended provided that pregnancy could be terminated only in the following cases: where pregnancy endangered the mother’s life or health; whre pre-natal tests or other medical findings indicated a high risk that the foetus could be severely and irreversibly damaged, or be suffering from an incurable life-threatening disease; where there were strong grounds for arguing that the pregnancy was a result of criminal activity (rape or incest); or where the mother was in a difficult personal situation.

On 27 May 1997 the Constitutional Court ruled that Article 1 § 2 of the Act, making human life in its pre-natal stage dependent on the decision of the legislative, did not comply with Article 1 of the 1952 Constitution. That provision stated that Poland was a democratic state ruled by law and implementing the principles of social justice. The Constitutional Court held that Article 2 of the Act was incompatible with Article 79 of the Constitution, which proclaimed the principle that marriage, motherhood and the family were to be placed under the protection and care of the Republic. The Court held that the provision in issue infringed the constitutional guarantees for the protection of human life at each stage of its development.

As a result, further amendments were made in December 1997 to the text of the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act of 1993. In particular, the right to terminate pregnancy where the pregnant woman was in a difficult was abolished. A pregnancy that risks a woman’s life or health, or where the child suffers from a genetic malformation, may only be terminated by a physician in a public health-service institution. A physician other than the one who is to perform the operation must issue the certificate confirming the risk to a woman’s health. If the pregnancy resulted from criminal activity, it may only be terminated by the end of its twelfth week and the prosecutor is required to issue a certificate stating that it is probable that the pregnancy is the result of a crime.

Termination of pregnancy in situations other than those stipulated in the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act is now a criminal offence punishable by imprisonment for up to two years. The person performing the abortion is held criminally responsible, whereas the woman herself is not.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant, Mr Oleg Nikolayevich Liman, is a Ukrainian national, who was born in 1973. Before being imprisoned the applicant lived in Slovyansk, Donetsk Region.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.

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

On 16 August 2002 the applicant and two accomplices attacked and robbed Mr K.S., Ms K.N. and Mr K.Yu. in their home.

On 27 August 2002 the applicant was arrested by police officers after being identified by Ms K.N.

On 30 May 2003 the Slovyansk Town Court (“the Town Court”) found the applicant guilty of robbery and sentenced him to ten years and six months’ imprisonment, with confiscation of his property. The applicant was represented by three lawyers in those proceedings.

On 26 August 2003 and 17 June 2004 the Donetsk Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld the judgment of 30 May 2003.

On 2 July 2004 the Town Court, in the course of civil proceedings, ordered the applicant to pay 84,837.10 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 20,000 in respect of non-pecuniary damage in favour of Mr K.S. and Ms K.N in compensation for the crime he had committed against them.

On 21 July 2004 the applicant appealed against that judgment. The appeal was handwritten.

On 17 September 2004 the Court of Appeal remitted the appeal to the Town Court for a decision on whether it had been prepared in accordance with the procedural requirements.

On 29 September 2004 the Town Court found that the applicant’s appeal had not been properly submitted. The court noted, in particular, that the appeal had not been typewritten; it did not contain the necessary information about the other parties to the proceedings; it was not sufficiently reasoned; no copies thereof had been enclosed for the other parties; and the court fee for lodging an appeal had not been paid. The court therefore invited the applicant to rectify those shortcomings by 18 October 2004.

On 18 October 2004 the Town Court found that the applicant had not rectified the shortcomings in his appeal and returned it to him unexamined.

On 17 November 2004 the applicant submitted a new appeal against the judgment of 2 July 2004. The appeal was again handwritten. No evidence was enclosed suggesting that the applicant had paid a court fee, and the applicant did not request exemption from payment of the court fee.

On 29 November 2004 the Court of Appeal returned the appeal to the Town Court and suggested that it consider whether any steps should be taken to provide the applicant with the requisite facilities to prepare his appeal in accordance with the procedural formalities.

On 20 March 2005 the applicant signed an agreement with lawyer G. according to which that lawyer was to assist him in his criminal case.

On 21 March 2005 the Town Court extended the time-limit for appealing against the judgment of 2 July 2004 and accepted the applicant’s appeal. That hearing was attended by lawyer G.

On an unspecified date the case was sent to the Court of Appeal.

On 11 May 2005 the Court of Appeal found that the applicant’s appeal was again not typewritten. It therefore refused to open appeal proceedings and returned the case file to the Town Court.

The relevant provisions of the Code of Civil Procedure of 18 July 1963 (effective until 1 September 2005, the date when the Code of Civil Procedure of 18 March 2004 came into force) can be found in the judgment of Volovik v. Ukraine (no. 15123/03, §§ 24-31, 6 December 2007).


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in 1912 and lives in Novovoronezh.

On 19 September 2000 the Novovoronezhskiy Town Court of the Voronezh Region granted the applicant’s claim against the Novovoronezh Social Security Service and awarded her 10,300.86 Russian roubles (RUR) for pension arrears.

The judgment was not appealed against and entered into force. On 19 October 2000 a writ of execution was issued.

The judgment was executed on 2 March 2005.


Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Mr Vladimir Alekseyevich Kuznetsov, is a Russian national who was born in 1987 and lives in the town of Nizhniy Novgorod. He was represented before the Court by Ms L. Zhukova, Mr M. Bereza and Mr V. Andreyev, lawyers practising in Nizhniy Novgorod.

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

On 20 June 2006 the Military Commission of the Leninskiy District of Nizhniy Novgorod registered the applicant for compulsory military service and scheduled a medical examination of him by a medical panel comprising a number of specialists in order to determine whether he was fit to serve. With the medical panel finding him fit to perform military service, the applicant was drafted into the army and sent to military unit no. 3256 in Nizhniy Tagil.

In August 2006 the applicant and four other conscripts were sent for two months of training with military unit no. 3275 in the village of Lesnoy, Sverdlovsk Region. According to the applicant, almost immediately upon arrival at that military unit he became the subject of ill-treatment and humiliation by senior conscripts. The treatment included sleep and food deprivation, acts of violence, excessive physical exercise, threats, extortion (including that of money, food and personal belongings), insults and orders to commit theft within the military unit’s premises or in nearby villages. Similar acts of violence and degrading treatment continued upon the applicant’s return to military unit no. 3256 in October 2006.

On 15 November 2006 a senior soldier, sergeant Z., woke the applicant up at night and ordered him to clean the floors of the barrack’s lavatories. In response to the applicant’s refusal, sergeant Z. took him outside, ordered him to put on a military hat, having, beforehand, turned it inside out so that the metal cockade on the hat would press against the applicant’s forehead, and allegedly punched him on the head a number of times, leaving an impression of the cockade on the applicant’s forehead. Although the applicant felt extreme pain and was feeling dizzy and disoriented for almost a week after the incident, he did not seek medical assistance, considering that to be futile. According to the applicant, the incident on 15 November 2006 was not the first occasion on which sergeant Z. had acted violently towards him. For instance, approximately a week before the events on 15 November 2006 sergeant Z. had also hit the applicant when the latter had refused to make coffee for him.

On 29 November 2006 the applicant was granted leave to stay in town with his parents, who had come to visit him. Having noticed the applicant’s poor state of health, on 1 December 2006 his mother took him to a private hospital, the NikoMed Consultative Diagnostic Centre, where, following an ultrasound scan of his kidneys and abdominal cavity and an examination by a neurologist, to whom the applicant complained of severe headache and dizziness, the applicant was diagnosed with the residual effects of concussion and mild diffuse changes in the liver. No injuries were, however, recorded on his body. Having been questioned by the doctor about the cause of the concussion, the applicant explained that he had hit his head against a propeller shaft when cleaning military equipment more than three weeks before the medical examination.

On 19 December 2006 the applicant was admitted to the gastroenterological department of the Yekaterinburg Military Circuit Hospital. The applicant submitted that his doctors had misinterpreted the symptoms of concussion, such as vomiting and dizziness, considering that he had been suffering from an intestinal disease. He was released from the hospital a month later.

Having again been subjected to mockery on his return to the military unit, the applicant left the unit without authorisation when his parents came to visit him on 28 January 2007.

Two days later the applicant lodged a complaint with the military prosecutor of Nizhniy Novgorod Garrison, seeking the institution of criminal proceedings against his commanding officers and senior conscripts.

Having heard the applicant and his mother, having interrogated the personnel of the military unit and conscripts who had come into contact with the applicant and having requisitioned medical records describing the applicant’s state of health, on 19 February 2007 the prosecutor refused to open a criminal case in the absence of any evidence of ill-treatment.

On 22 August 2007 the Military Court of the Nizhniy Tagil Garrison examined the applicant’s appeal against the decision of 19 February 2007 and dismissed it as unfounded. The Military Court studied the materials of the prosecutor’s inquiry and the applicant’s medical history and heard the prosecutor and witnesses, including the alleged perpetrators and the doctors. It endorsed the prosecutor’s conclusion that there was no evidence of ill-treatment: all of the witnesses had denied subjecting or having seen the applicant being subjected to acts of violence or psychological pressure and there was no medical evidence, save for the medical certificate of 1 December 2006, documenting signs of possible violence. The court noted, in particular, that daily medical examinations of soldiers had been performed in the military unit and that injuries had never been discovered on the applicant’s body. Relying on medical expert testimony, the court stressed that the diffuse changes discovered in the applicant’s liver during the examination in the private hospital were linked to illnesses of the digestive system. As to the alleged residual effects of concussion, the court found no reason to doubt the applicant’s statement given to the doctors that he had hit his head against a propeller shaft.

Having been properly informed of the hearings before the Military Court of the Nizhniy Tagil Garrison, the applicant did not attend.

On 8 November 2007 the Military Court of the Ural Circuit dismissed the applicant’s appeal against the judgment of 22 August 2007, having fully endorsed the lower court’s reasoning. At the same time, the appellate court laid particular emphasis on the applicant’s inconsistent description of events and the fact that, having had an opportunity to freely complain to the doctors in the private hospital, he had explained his alleged concussion as an accident.

Without providing the Court with a copy of the decision or indicating when the decision had been issued, the applicant submitted that the prosecutor’s decision of 19 February 2007 had been quashed by a higherranking prosecutor while the appeal proceedings before the Military Court of the Ural Circuit had still been pending. According to the applicant, the new round of the investigation had also ended with a decision not to open a criminal inquiry in view of a lack of criminal conduct.


The applicant is a Turkish national, born in 1975 and currently detained in Kahramanmaraş Prison. He is represented before the Court by Mr Ahmet Odabaş, a lawyer practising in İzmir.

On 8 September 1996 a naked female body was found dead on the seashore in Mersin, a city on the Mediterranean coast. The same day an autopsy was conducted on the body from which hair and blood samples were taken. On 12 September 1996 the body was identified as A.Ö., the wife of a retired colonel. The police was informed that she had been staying at the military officers’ guesthouse in Mersin. The ensuing investigation led to the arrest of the applicant and his two friends (C. and Z.), who were carrying out their military service as receptionists at the officers’ guesthouse.

In his police statement, dated 13 September 1996, the applicant confessed that he had been involved in the killing of A.Ö., and gave a detailed account of the events. He stated that together with his friend C., they had raped the victim, who had been staying alone in the guesthouse. He further stated that they had killed her, when she threatened to file a complaint against them.

On 14 September 1996 the police conducted a survey on the scene of the crime together with the applicant and the other accused persons, and the applicant showed where they had hidden the victim’s personal belongings. A knife was found in the basement, on which there was a thread of hair. The applicant also indicated a piece of cloth stuck on the barbed wire surrounding the guesthouse, which had been torn from the victim’s dress as they carried her to the shore. The hair on the knife was later found to be identical to that of the victim. This survey was recorded on videotape.

On 15 September 1996 the applicant repeated before the public prosecutor the statement he had given to the police. The attorney of the other co-accused, C., was present during the interrogation by the public prosecutor. The same day, the applicant was placed in detention on remand.

On 18 September 1996 after the identification of the victim’s body, the Mersin Public Prosecutor destroyed the blood and hair samples taken from her body. He further declared lack of jurisdiction and transferred the case file to the Military Court Public Prosecutor, as the applicant was a soldier in the Turkish Army.

On 1 October 1996 the Adana Military Court Public Prosecutor initiated criminal proceedings in the Adana Military Court against the applicant and the other two co-accused and charged them with rape and murder. The prosecution requested that the applicant be sentenced to death pursuant to Sections 416, 417, 495 and 497 of the Turkish Criminal Code.

Before the court, the applicant gave a different account of the events and blamed the other co-accused, C., for the alleged offences. According to the applicant’s defence, on the night of the incident, the applicant’s friend C. told him that he wanted to have sexual intercourse with the victim, who had been staying alone in the guesthouse for a couple of days. Together they entered the victim’s room from the balcony window, where C. attempted to rape her. Frightened of being caught by the police, C. told the applicant that they should kill the victim. According to the applicant, at that point, the victim lost consciousness. The applicant and C. carried the victim from her room to the shore, where she regained consciousness and started to struggle with the attackers. C. stabbed her in the back and the applicant also stabbed her. According to the applicant’s statement, when they returned to the guesthouse, C. collected the victim’s personal belongings, including her jewellery, from her room. The applicant further confessed before the court that he had taken a bracelet and a necklace belonging to the victim.

Moreover, the applicant denied his statement taken by the police and alleged that he had been subjected to ill-treatment during police custody. He further maintained that during his interrogation by the public prosecutor, he had been told to repeat his police statement.

The court further took oral evidence from the other two defendants, and they also confessed being involved in the alleged offences. In his statement, Z. maintained that he had been working at the reception at the time of the incident. He stated that, a day before the incident, he had heard the applicant say that he wanted to rape A.Ö. In his statement Z. further explained that he had not seen the other two defendants entering the victim’s room, but had seen them carrying the victim from the guesthouse to the seashore. He confessed that he had helped them carry the victim out of the guesthouse, and that the other two had then carried her to the shore. Z. stated to the court that when they came back after forty minutes later, their clothes were wet and the applicant was holding a screwdriver and a knife. He further stated that, as he was scared, he did not talk about this incident with anyone.

The applicant requested the court to take oral evidence from the victim’s husband. On 11 November 1996 the court refused the applicant’s request on the ground that the victim’s husband was not an eye witness to the crime in question and that his testimony would not in any way have an effect on the elucidation of the case.

On 25 November 1996 a survey of the crime area was conducted by order of the military court.

On 5 December 1996 the Adana Military Court, in view of the defendants’ confessions, the autopsy report, the survey of the crime scene, the blood sample tests and the incident reports, established the facts as follows. The applicant and his friend C., who had planned to rape the victim, entered the victim’s room from an open balcony window, leaving Z. in the reception to watch out. When they entered the room, they found the victim asleep and put a pillow over her head to prevent her from screaming, and then they raped her. When the victim started shouting, the two friends decided to kill her to prevent her from filing a complaint. They first tried to strangle A.Ö with a bathrobe belt, at which point she lost consciousness. Then they took her to the seaside, trying to drown her in the sea. However, the victim gained consciousness and tried to run away. Consequently, they started punching and hit her on the face with a stone. The applicant also stabbed the victim in her back with a screwdriver, whereas C. stabbed her with a knife in the stomach. Then C. tried to kill the victim by cutting her aorta. When A.Ö died, C. slashed the victim’s face in order to prevent the identification of the body. Then, leaving the body on the shore, they returned to the guesthouse. They packed the victim’s personal belongings, took her jewellery and hid them in the basement of the building. Accordingly, the court found it established that the applicant had acted with premeditation in order to rape A.Ö and had then killed her to avoid being caught by the police.

The Adana Military Court also held that the applicant’s allegations of ill-treatment in police detention were unsubstantiated, as there was no evidence in support of these allegations. The court further stated that the applicant had repeated his confession before the public prosecutor in the presence of a lawyer and had not complained about ill-treatment.

Consequently, the Adana Military Court convicted the applicant as charged and sentenced him to death.

The applicant appealed and the Military Court of Cassation held a hearing and examined the case once again. On 20 May 1997 the Military Court of Cassation dismissed the applicant’s appeal, finding the first-instance court’s establishment of the facts and evaluation of evidence in line with the domestic and general principles of law.


Violation of Art. 5-4;Costs and expenses award - Convention proceedings

Mr. Leandro Sanchez-Reisse, an Argentine businessman born in Buenos Aires in 1946, had for some years been resident with his wife and their two children in the United States (Florida). He was arrested in Switzerland with a view to being extradited but objected to his extradition and applied for provisional release, as described below.

On instructions from the Federal Police Office ("the Office"), the Vaud cantonal police arrested the applicant in Lausanne during the night of 12/13 March 1981 and immediately transferred him to Champ-Dollon prison in Geneva.

The authorities of the Argentine Republic had sent radio-telegrams to the authorities of the Swiss Confederation on 10 and 11 March asking for help in identifying the five persons thought to be responsible for kidnapping a Uruguayan banker, K, in Buenos Aires on 19 February. The kidnappers had demanded a ransom and had required K’s wife and sister to go first to Paris, then to Zürich - where the money was placed by them in an account opened in their name with the Crédit Suisse - and then to Geneva.

In a radio-telegram dated 13 March 1981, Interpol Buenos Aires requested the provisional arrest of the suspects with a view to extradition. On 16 March, the Office accordingly issued a warrant for Mr. Sanchez-Reisse’s arrest, and this was served on him on 18 March 1981.

On 16 and 17 March, the Embassy of the Argentine Republic in Bern confirmed Interpol’s request for the arrest of the five Argentine nationals. In "notes verbales" dated 6 April, 29 April and 4 May, it produced various supporting documents. Together, these notes and documents constituted a formal extradition request.

In a letter of 13 May 1981, the Office forwarded the documents received to the Geneva authorities, for consideration at the hearing of the applicant. Copies were sent to the latter’s lawyer and to the Public Prosecutor of the Canton of Geneva ("the Public Prosecutor"). On 18 May, the Public Prosecutor suggested that the Office officially inform the Argentine authorities of offences of receiving stolen goods which Mr. Sanchez-Reisse was charged with having committed in Switzerland, but he pointed out that they had not given rise to any penalties in that country. He refused to institute proceedings in Geneva, and on 6 August the Indictments Chamber of the Canton decided that there were no grounds for opening an investigation there.

At the hearing held in the meantime, which was attended by his lawyer, the applicant had indicated his refusal to be extradited. In a letter of 19 June, the Office gave the lawyer until 17 August 1981 to state the reasons for his client’s objections. It extended this time-limit to 17 September and subsequently to 1 October.

In the meantime, on 26 May 1981, the Embassy of the Argentine Republic submitted letters rogatory to the Office concerning the kidnapping of an Argentine financier, C, in Buenos Aires on 8 May 1979, for which the same group of persons was thought to have been responsible. The letters rogatory were executed in Geneva on 18 June 1981. By "notes verbales" dated 8, 10 and 13 July, the Embassy formally submitted a second request for the extradition of Mr. Sanchez-Reisse, among others.

On 11 August, the Office instructed the Geneva cantonal authorities to hold a second hearing on the applicant’s extradition, this time on the basis of the documents relating to the kidnapping of C. At the hearing the applicant continued to resist extradition.

On 25 September 1981, Mr. Sanchez-Reisse’s lawyer sent the Office a memorandum setting out the reasons for the applicant’s objection to being extradited (see paragraph 14 above). The reasons included the following: the documents submitted in support of the extradition request did not satisfy the formal requirements laid down in the Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina (see paragraph 32 below), since they contained no description of the offences with which the applicant was charged; as regards the two kidnappings of which he was accused by the Argentine authorities, which were moreover of a political character, Mr. Sanchez-Reisse was innocent; if extradition was granted, it would be contrary to Articles 3 and 6 (art. 3, art. 6) of the European Convention on Human Rights, as it would expose the applicant to inhuman treatment and he would have no guarantee of a fair trial.

On 3 November 1982, the Federal Court (1st Public-Law Division) accepted Mr. Sanchez-Reisse’s objection and accordingly decided not to authorise his extradition. It was of the opinion that "the overall circumstances [gave it] serious reason to fear that the treatment which might be accorded to the objectors by the requesting State, either before judgment or during the enforcement of sentence, would violate the rules governing respect for human rights". The Court further decided that the offences mentioned in the extradition request should, with one exception, be the subject of a prosecution and trial by the appropriate Geneva cantonal authorities, pursuant to Article IX, first paragraph, of the Convention on Extradition. Lastly, it directed that the applicant be kept in detention with a view to extradition until the Geneva authorities had ruled on his detention on remand in the criminal proceedings that were to be instituted.

On the following day, the Public Prosecutor ordered that a criminal investigation be opened against Mr. Sanchez-Reisse and the investigating judge preferred charges of, inter alia, attempted extortion against him. As a result, the detention with a view to extradition was transformed into detention on remand.

On 9 December 1982, the Indictments Chamber of the Federal Court instructed the Zürich cantonal authorities to prosecute the applicant and bring him to trial.

On 25 April 1983, the applicant admitted the charges of attempted extortion and blackmail in the K case (see paragraph 10 above). On 29 November 1983, the Supreme Court of the Canton of Zürich (1st Criminal Chamber) sentenced him on these charges to imprisonment for four years and nine months, subject to deduction of the 393 days he had spent in detention on remand.

Having been put under a regime of semi-liberty, the applicant absconded in November 1985. During his detention with a view to extradition, he had on three occasions applied for release.

On 9 November 1981, Mr. Sanchez-Reisse and his wife, who had been arrested at the same time and for the same reasons as he had, had requested the Office to order their provisional release. On 25 November, the Office accepted the request submitted by Mrs. Sanchez-Reisse on payment of a surety of 100,000 SF. In order to facilitate his wife’s release, the applicant had withdrawn his own request.

On 25 January 1982, Mr. Sanchez-Reisse made a fresh request to the Office, arguing: that for almost a year he had been detained with a view to his extradition, whereas he had objected to the latter measure; that he was not guilty of the offences with which he was charged by the Argentine authorities; that the evidence submitted by them was manifestly inadequate; and that his state of health had seriously worsened as a result of his detention.

On 2 February 1982, the Office informed the applicant’s lawyer that it had decided not to grant the request, which would consequently be passed to the Federal Court (see paragraph 34 below). It considered, in the light of information provided by the medical service of Champ-Dollon prison, that the medical supervision and psychiatric treatment being undergone by the applicant were compatible with his remaining in custody. It drafted a 19-page report for the Federal Court on the five Argentinians suspected of the kidnapping of K, together with an aide-mémoire.

On 15 February 1982, the Office forwarded the request for release to the Federal Court, together with the two documents referred to above, "so that a decision could be given by a court in accordance with Article 5 para. 4 (art. 5-4) of the European Convention on Human Rights". At the same time it expressed a negative opinion on the request since release did not seem to it to be "required by the circumstances", within the meaning of section 25 of the Federal Act of 22 January 1892 on Extradition to Foreign States (see paragraph 34 below).

On 25 February 1982, the Federal Court rejected the request. Mr. Sanchez-Reisse was notified of the operative provisions of the decision on the following day and of the reasons therefor on 3 March. The Federal Court took several factors into consideration: the extradition request submitted by the Argentine authorities concerned not only the kidnapping of the Uruguayan banker K but also that of the Argentine financier C, and the possibility that the applicant had been involved in one of these cases could not be ruled out; there was a real risk that he might abscond since he resided in the United States and not in his country of origin; he had not shown that he was unfit to undergo detention and, furthermore, he could obtain the assistance of a doctor in case of need.

In the meantime, on 18 February, Mr. Sanchez-Reisse had written to the Presidents of the Geneva Courts and to the Public Prosecutor requesting immediate release. On 23 February, a President of the Geneva Indictments Chamber said that it was for the Federal Court to give a ruling on requests for release submitted by a person who was detained with a view to extradition. On 9 March 1982, the applicant’s lawyer replied that the proceedings in the Federal Court were entirely in writing and that the Court had taken a month to reach a decision. The requirements of Article 5 para. 4 (art. 5-4) had not been complied with: in particular, the detainee had not appeared in person and a decision had not been rendered speedily. The lawyer therefore confirmed the request for release and asked the Cantonal Court to give an interpretation of the provision in question. In a letter dated 15 March 1982, the three presiding judges of the Geneva Indictments Chamber stated that it was not competent to deal with the applicant’s release as he had been detained with a view to extradition under a Federal arrest warrant.

On 21 May 1982, Mr. Sanchez-Reisse submitted a further request for release to the Office; he claimed that release was justified because of his deteriorating health and he supplied two medical certificates. Although the first of these, dated 18 March, stated that he could still be cared for by the prison authorities, the second, dated 18 May, reported progressive deterioration: "The lack of a frame of reference in <the applicant’s> current surroundings is conducive to the development of his paranoid ideas and problems in evaluating reality."

The request was received by the Office on Monday, 24 May. It had just finished investigating the extradition request and therefore passed the complete file to the Federal Court on that same day. It did not enclose any opinion, but on 2 June 1982 the Court requested it to submit one within ten days.

The President of the 1st Public-Law Division also informed the applicant’s lawyer that the Office had been asked for information about the request for release.

On 6 July 1982, the Federal Court rejected the request, as the Office had recommended in an opinion of 9 June: the Court took the view that Mr. Sanchez-Reisse had provided no new material important enough to warrant making a decision different from that of 25 February 1982 (see paragraph 26 above). This decision was notified on 9 July.

The procedure for extradition between Switzerland and Argentina is governed in the first instance by a bilateral treaty and, subsidiarily, by municipal law.

The Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina, signed on 21 November 1906, has been binding on both countries since 1912. It lays down the formal and substantive conditions applying to extradition between the two countries but does not, either expressly or tacitly, deal with the methods to be used by the courts for supervising detention with a view to extradition. It is therefore Swiss law which applies on this point. At the time of the facts in question and until 31 December 1982, the instrument applicable was an Act of 1892.

The Federal Act of 22 January 1892 on Extradition to Foreign States ("the 1892 Act") instituted a sharing of powers in the field in question between the Federal Council (Central Government) (which, for obvious practical reasons, had delegated its powers to the Federal Police Office) and the Federal Court, the only judicial authority in Switzerland with jurisdiction in extradition matters.

It was to the Office that requests for provisional arrest with a view to extradition and formal extradition requests were addressed. The Office corresponded directly with the accredited diplomatic missions in Bern - without necessarily going through the Federal Department of Foreign Affairs - and with the Secretariat General and the national central offices of Interpol. It decided whether there was a case for arresting the wanted person and, if so, served on that person a "warrant for arrest with a view to extradition", which was immediately enforceable throughout Swiss territory.

Once the person had been arrested, it was the Office which conducted the proceedings. It ordered that he be heard by the appropriate cantonal authorities on the extradition request, appointed counsel to represent him if necessary, corresponded with the lawyers involved and informed them of the time-limits to be observed, checked the detainee’s mail and granted or refused him the right to be visited, authorisation to make telephone calls, and so on.

Above all, it was the Office itself which, in most cases, ruled on extradition requests and requests for provisional release.

The former power (to rule on extradition requests) was conferred by section 22 of the 1892 Act and was exercisable where "the arrested individual [had] indicated his consent to his being handed over without delay and ... there [was] no legal impediment to his extradition, or ... he [had] opposed it only on grounds not based on [the 1892] Act, on the Treaty or a declaration of reciprocity ...".

The second power (to rule on requests for provisional release) was conferred by section 25, second paragraph, and was exercisable in all cases where the matter had not been referred to the Federal Court. The Office could grant release if this appeared to be required by the circumstances (section 25, first paragraph).

Furthermore, whenever the Federal Court was to give a ruling, the Office carried out the requisite investigations. If the Court refused to authorise extradition, the Office was bound by that decision. On the other hand, if the Court authorised extradition, the Office could still, for important reasons of political expediency, refuse to extradite the person concerned.

Lastly, it was for the Office to give instructions for the handing over of the person extradited, arrange the practical details and inform the foreign State of the action taken on its request.

The Federal Court was involved in extradition proceedings in two sets of circumstances.

If the arrested person protested against the extradition itself by raising an objection based on the Act, a treaty or a declaration of reciprocity (section 23), the Federal Court was competent to rule on the merits of the extradition (section 24), if necessary after ordering additional investigations (section 23, second paragraph) and the personal appearance of the detainee (section 23, third paragraph). In the latter event - which was very rare -, the hearing took place in public, unless there were serious reasons to the contrary (section 23, third paragraph), and the detainee could be assisted by a lawyer, assigned by the court if need be.

Where the case had been referred to it (section 25, second paragraph), i.e. if an objection related to the extradition itself, the Federal Court was also responsible for ruling on any request for provisional release lodged by the person who was detained with a view to extradition. It could authorise his release if it appeared that the circumstances so required (section 25, first paragraph).

In a report to the Federal Assembly in 1968, the Swiss Government drew attention to a number of shortcomings in the 1892 Act from the point of view of the European Convention on Human Rights which it was contemplating ratifying:

"Persons provisionally arrested on the orders of the Federal Department of Justice and Police, in compliance with the wishes of the requesting State, have no right of appeal to a court against the decision to arrest them. The Federal Act on Extradition to Foreign States is, however, being revised, and it is planned to take this opportunity to provide for an appeal to a court against arrests, in accordance with Article 5 para. 4 (art. 5-4) of the Convention." (Federal Bulletin, 1968, vol. II, pp. 1102-1103)

The Confederation ratified the Convention on 28 November 1974. Although declared inadmissible by the Commission on 6 October 1976 (Decisions and Reports no. 6, pp. 141-155), the Lynas v. Switzerland application (no. 7317/75) revealed that the extradition law fell short of the requirements of Article 5 para. 4 (art. 5-4). The Government considered that, pending the entry into force of a new Federal Act on international mutual assistance in criminal matters, it should adopt a solution that would meet any difficulty encountered. Taking as its basis the fact that Article 5 para. 4 (art. 5-4) was directly applicable in Switzerland, the Federal Department of Justice and Police took the initiative of exchanging views with the Federal Court. By an exchange of (unpublished) letters dated 27 December 1976, 28 January 1977, 29 April 1977 and 9 May 1977, the two institutions agreed to interpret sections 22 to 25 of the Act, in particular the second paragraph of section 25, in such a way as to establish the general and exclusive jurisdiction of the Federal Court (1) to rule on any objection lodged against arrest with a view to extradition (from then on this legal remedy was expressly mentioned on the back of the arrest warrant, receipt of which had to be acknowledged in writing by the person concerned), and (2) to rule on any request for provisional release, even when, by reason of the absence of any objection to the request for extradition, the Federal Court had no jurisdiction over the merits of the matter.

The transitional arrangements introduced as a result of the exchange of letters were enshrined in the Federal Act of 20 March 1981 on International Mutual Assistance in Criminal Matters ("the 1981 Act"), which came into force on 1 January 1983, that is after the conclusion of the proceedings at issue in the present case. The Indictments Chamber of the Federal Court rules not only on appeals against warrants for arrest with a view to extradition (section 48, second paragraph, taken in conjunction with section 47, first paragraph) but also on appeals against any decision by the Office refusing provisional release (section 50, fourth paragraph; judgment of 8 April 1983, Collection of Judgments of the Swiss Federal Court, vol. 109, part IV, p. 60).

As regards extradition itself, the Office is now competent to rule at first instance (section 55, first paragraph). If, however, the person concerned claims that he "is being proceeded against because of a political offence" or if "the investigation gives serious grounds for thinking that the offence is of a political character", the decision rests with the Federal Court (section 55, second paragraph).

The Office’s decision can be challenged in the Federal Court by way of an administrative-law appeal (section 55, third paragraph).