Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in 1975 and lives in Brăneşti. He was represented before the Court by Mr S. Burduja, a lawyer practicing in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

The applicant was charged with indecent acts committed on a fiveyear old girl, following a report made by her mother on 7 April 2003. On 30 October 2003 the Criuleni District Court acquitted him of all charges, finding that there had been no evidence that he had committed an offence. The court noted that the girl’s mother had testified before it that she had had a dispute with the applicant on the morning in question and had filed the complaint against him in revenge, and not because he had in fact committed any offence. She had also coached her daughter on how to testify in order to incriminate the applicant. However, the court noted that both mother and daughter had later withdrawn their statements.

The judgment was upheld by the Chişinău Court of Appeal on 26 February 2004. The court noted the discrepancies between the statements made on 7 April 2003 by the child and her mother and the subsequent change to their statements. It also noted that a psychiatric report on the girl had shown that she was prone to adult influence, while the testimony given by the girl to the investigating authority had ended after a teacher assisting the girl had noted her difficulty in formulating phrases and logically explaining her thoughts, which had made the continuation of the interview pointless. Statements made by two witnesses during the investigation had confirmed the girl’s tendency to be influenced by adults, but the prosecutor had not asked for their presence at the court hearing and they had therefore not been able to be questioned about their statements.

On 1 June 2004 the Supreme Court of Justice quashed the judgment of 26 February 2004 and ordered a rehearing of the case by the Chişinău Court of Appeal. The reason for the rehearing was that the lower court had failed to directly examine all the relevant evidence, such as hearing from the victim, her representative and other witnesses, but rather had simply relied on the documents in the case file.

The victim and her mother were summoned to the hearing at the Chişinău Court of Appeal on 22 September 2004, but they did not appear. In the meantime, on 9 September 2004, the mother sent a letter to the court stating that she fully supported her statements and those made by her child during the investigation. She did not ask for the case to be tried in her absence.

On 22 September 2004 the Chişinău Court of Appeal found the applicant guilty of the crime with which he had been charged. The applicant was absent from the hearing, even though he had been summoned to attend it. He claims that he never received the summons. A court-appointed defence lawyer was present.

The court did not hear any witnesses, including the girl and her mother. After the applicant’s conviction, the mother wrote to the Supreme Court of Justice stating that she had never received a summons for the hearing of 22 September 2004 and that she withdrew her declaration of 9 September 2004. The applicant claimed that the letter of 9 September 2004 had been written by someone else, because the mother could not write in Latin script, yet the letter had been written in Latin script. No expert report to verify whether she had written the letter was ordered.

On 6 December 2004 the lawyer appointed by the applicant lodged an appeal on points of law. In his appeal, the lawyer drew the court’s attention to the reason for which the Supreme Court of Justice had sent the case for a rehearing on 1 June 2004, namely the failure of the Court of Appeal to directly examine all the evidence. However, that court had allowed the same irregularity to occur in convicting the applicant. He also submitted that the absence of the victim, the mother and other witnesses, as well as the applicant, from the court hearing of 22 September 2004 had prevented the defence from properly challenging the prosecutor’s evidence. The prosecutor had simply read out the statements made by various individuals during the investigation, and the court had ignored the statements made by the mother and daughter before the first-instance court rejecting their previously made statements. The lawyer questioned the authorship of the letter of 9 September 2004. He finally relied on Article 6 of the Convention.

On 1 February 2006 the Supreme Court of Justice upheld the judgment adopted by the lower court, finding that it had fully examined the case. The court referred to the same evidence as that examined by the Court of Appeal on 22 September 2004. The parties had been summoned but had failed to appear. However, their absence from the hearing had not prevented the court from continuing to examine the case. Moreover, the mother had signed a declaration in Latin script on 16 April 2003, which proved that she could write in that script and thus could have been the author of the letter of 9 September 2004.

On 12 June 2008 the applicant was conditionally released from prison, 17 months and 17 days before the expiry of his prison term.

After communication of the present application to the respondent Government, on 10 April 2009 the Prosecutor General’s Office asked the Supreme Court of Justice to reopen the proceedings in the applicant’s case.

On 11 May 2009 the Supreme Court of Justice accepted that request. It found that the Chişinău Court of Appeal and the Supreme Court of Justice in their judgments of 22 September 2004 and 1 February 2006 respectively had breached the applicant’s rights guaranteed under Article 6 of the Convention, as well as under domestic law, by failing to directly examine witnesses and evidence before overturning the first-instance court’s judgment. Moreover, they had examined the case in the applicant’s absence despite the absence of evidence that he had been properly summoned and all reasonable measures had been taken to ensure his presence in court, and had done so in the absence of a clear waiver of the applicant’s right to be heard by the courts. Moreover, the Court of Appeal had failed to follow the indications made by the Supreme Court of Justice in its decision of 1 June 2004, which had been aimed precisely at ensuring the observance of procedural rules and at preserving the rights of the accused to a fair trial. The court therefore annulled the judgments of 22 September 2004 and 1 February 2006 and ordered a rehearing of the case.

On 10 November 2009 the Chişinău Court of Appeal found the applicant guilty as charged. In reaching this conclusion, the court heard the applicant and his lawyer, the victim and her mother, as well as a teacher and has examined the psychiatric report made on the victim’s intellectual development. In view of the expiry of the limitation period for the offence he had committed, the court did not impose any sanction on the applicant.

By the final judgment of the Supreme Court of Justice adopted on 18 January 2011, the applicant’s appeal was declared inadmissible due to his failure to lodge it within the statutory time-limit of two months from the date of adoption of the lower court’s judgment.

The relevant domestic law has been set out in Popovici v. Moldova (nos. 289/04 and 41194/04, §§ 34 and 35, 27 November 2007).

In a series of its judgments, the Supreme Court of Justice awarded compensation to persons whose cases had been communicated to the respondent Government and in which the latter acknowledged a violation of Convention rights (see Ungureanu v. Moldova (dec.), no. 78077/01, 3 October 2006; Diviza and Others v. Moldova (dec.), no. 24316/02, 21 November 2006; Grosu and Others v. Moldova (dec.), no. 21118/03, 13 March 2007; Cumatrenco v. Moldova (dec.), no. 28209/03, 20 March 2007; and Guranda v. Moldova (dec.), no. 28412/03, 20 March 2007). In adopting these judgments, the Supreme Court of Justice expressly relied on the Convention as the legal basis for awarding compensation. The Court accepted that that the amounts awarded had been consistent with those it had made in similar cases in respect of Moldova and thus struck those cases out of its list of cases.


CASE OF SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50)

The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the Swiss Confederation ("the Government") on 25 May and 5 August 1992, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 14518/89) against the Swiss Confederation lodged with the Commission under Article 25 (art. 25) by a Swiss national, Mrs Margrit Schuler-Zgraggen, on 29 December 1988.

In a judgment of 24 June 1993 ("the principal judgment") the Court found that there had been a breach of Article 14 of the Convention taken together with Article 6 para. 1 (art. 14+6-1), as the assumption that women gave up work when they gave birth to a child had been the sole basis for the reasoning in a judgment of the Federal Insurance Court and had introduced a difference of treatment on the ground of sex only, a difference that lacked any reasonable and objective justification (Series A no. 263, pp. 20-22 and 24, paras. 61-67 and point 5 of the operative provisions).

The Court ruled that its judgment constituted in itself sufficient just satisfaction in respect of the alleged non-pecuniary damage and that the respondent State was to pay the applicant, within three months, 7,500 Swiss francs (CHF) in respect of costs and expenses (ibid., pp. 22-24, paras. 69 and 76 and points 6-7 of the operative provisions).

As the question of the application of Article 50 (art. 50) was not ready for decision as regards the pecuniary damage, it was reserved in the principal judgment. The Court invited the Government and the applicant to submit their written observations within six months and, in particular, to notify the Court of any agreement they might reach (ibid., pp. 23 and 24, para. 74 and point 8 of the operative provisions).

On 7 April 1994 the Agent of the Government informed the President that in a judgment of 24 March 1994 the Federal Insurance Court had concluded the rehearing proceedings commenced under section 139a of the Federal Judicature Act. Its own judgment of 21 June 1988 had been set aside, together with the decision of the Canton of Uri Appeals Board for Old Age, Survivors’ and Invalidity Insurance of 8 May 1987 and the decision of the Invalidity Insurance Board of the Canton of Uri of 21 March 1986; and the applicant had been granted a full invalidity pension with effect from 1 May 1986.

On 27 April 1994 counsel for the applicant advised the Registrar that his client did not consider that the proceedings in Switzerland were terminated and that she had submitted to the Department of Finance a claim for compensation in the amount of CHF 40,933.64 based on section 3 of the Act on the liability of the Confederation.

On 25 May 1994 the Secretariat of the Commission informed the Registrar that the Delegate wished to leave the question of Article 50 (art. 50) to the Court’s discretion.

On 14 September 1994 the applicant’s representative sent the Registrar a copy of the Federal Council’s decision of 12 June 1994 whereby the compensation claim was refused; he asked the Court to consider the possibility of ruling on his client’s claims as an agreement with the Government seemed unlikely.

On the President’s instructions, the Registrar consulted the Agent of the Government and the Delegate of the Commission. On 12 October 1994 the Agent said he had nothing to add to the Federal Council’s decision of 12 June 1994. On the following day the Delegate made it known that he was leaving the matter to the Court’s discretion.

On 25 October 1994


Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings (total)

András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant was born in 1961 and lives in Berlin.

He is a journalist on the German weekly magazine Stern. From 1 August 1999 until 31 July 2004 he was assigned to Brussels to report on the policies of the European Union and the activities of the European institutions.

On 27 February and 7 March 2002 Stern published two articles by the applicant based on confidential documents from the European Anti-Fraud Office (OLAF). The first article reported on allegations by a European civil servant concerning irregularities in the European institutions. The second concerned the internal investigations OLAF had carried out into those allegations.

A rumour began to circulate within OLAF that the applicant had paid 8,000 euros (EUR) or German marks (DEM) to a European civil servant in exchange for this information.

On 12 March 2002 OLAF, suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the European institutions, opened an internal investigation to identify the person who had disclosed the information to the applicant.

The minutes of an OLAF Supervisory Committee meeting held on 9 and 10 April 2002 stated in particular:

“The members of the Supervisory Committee noted that the journalist’s articles were not at all aggressive in tone but hinted at the real situation, as was often the case with individuals. They were surprised that OLAF’s press release referred to a payment for such information. Consequently, they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard.”

In a letter of 24 March 2003 written in the course of his inquiry into a complaint (no. 1840/2002/GG) filed by the applicant against OLAF, the European Ombudsman indicated that the suspicions that the applicant had bribed an OLAF official had originated from “information from reliable sources, including members of the European Parliament”.

On 30 September 2003 OLAF issued a press release entitled “OLAF clarification regarding an apparent leak of information”. The press release was worded as follows:

“On 27 March 2002, the European Anti-Fraud Office (OLAF) issued a press release announcing that it had opened an internal investigation under Regulation 1073/1999 into an apparent leak of confidential information included in a report prepared within OLAF. It stated that according to information received by the Office, a journalist had received a number of documents relating to the so-called ‘... affair’, and that it was not excluded that payment might have been made to somebody within OLAF (or possibly another EU institution) for these documents. OLAF’s enquiries have not yet been completed but to date, OLAF has not obtained proof that such a payment was made.”

On 30 November 2003 the European Ombudsman issued his decision. He had already submitted a draft recommendation to OLAF on 18 June 2003. The decision, which essentially reproduced the conclusions set out in the draft, stated in particular:

1.7 ... by publishing this press release, OLAF has not adequately implemented the Ombudsman’s draft recommendation. Instead of withdrawing the allegations of bribery, OLAF simply states that ‘to date’ it has not found sufficient evidence to support these allegations. The wording of this press release thus implies that OLAF considers it possible that evidence supporting these allegations could still emerge. In these circumstances, the action taken by OLAF is manifestly inadequate to remedy the instance of maladministration that the Ombudsman has identified. A critical remark will therefore be made in this respect.

Conclusion

4.1 On the basis of the Ombudsman’s inquiries into this complaint, it is necessary to make the following critical remark:

By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration.”

On 11 February 2004 OLAF lodged a complaint with the Belgian judicial authorities, submitting a report on the internal investigation it had carried out. It also referred the matter to the German judicial authorities.

Consequently, on 23 February 2004, an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant.

On 19 March 2004, at the request of the investigating judge, the applicant’s home and workplace were searched by the Belgian judicial authorities. Almost all of the applicant’s working papers and tools were seized and placed under seal (sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet). It appears that the search warrant was not handed to the applicant but was read out to him. No inventory of the items seized was drawn up. On that occasion, the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by OLAF, which suspected him of having bribed a European civil servant in order to obtain confidential information. According to the applicant, the authorities subsequently lost a whole crate of papers, which was not found until more than seven months later, in November 2004.

On 29 March and 15 April 2004 the applicant applied to the Principal Public Prosecutor at the Brussels Court of Appeal for leave to consult the investigation file. His application was refused in a letter dated 17 June 2004.

The applicant applied again on 28 June 2004, to no avail.

In the meantime, on 24 March 2004, he had applied to the investigating judge to have the measures relating to the seizure discontinued.

By an order of 8 April 2004 the investigating judge rejected his application.

The applicant appealed, alleging, inter alia, a breach of Article 10 of the Convention.

The Indictment Division upheld the order on 22 September 2004, holding as follows:

“The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom, and, if so, whether that right has an absolute value or is subject to restrictions, has not yet been established in law.

The actual wording of Article 10 of the European Convention on Human Rights does not recognise the protection of journalistic sources, a right which has developed through the case-law of the European Court of Human Rights, albeit without having been enshrined as an absolute value according to legal authorities (see, to this effect, the judgment of the European Court of Human Rights in the case of Ernst and Others v. Belgium, 15 July 2003, no. 33400/96, Human Rights Information Bulletin no. 60, July-October 2003, pp. 4-5).

Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information, although the exercise of this right does not give rise to immunity from prosecution or from civil liability (see in this connection the Bill granting journalists the right not to disclose their sources of information, passed by the Belgian House of Representatives on 6 May 2004, and the opinion of the National Council of Justice on the legislative proposals to grant journalists the right to protect their sources of information, approved by the General Assembly on 4 February 2004).

The investigative measure complained of is, admittedly, an interference in the rights guaranteed by Article 10 of the ECHR. It was, however, lawfully ordered by the competent investigating judge in connection with the matter referred to him.

It pursues legitimate aims since, in the context of the information in the case file brought to the attention of the court, whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information, its purpose is to ‘verify whether the protection of confidentiality applies to a lawful or unlawful source; the latter must be overridden by a superior value, namely the prevention of crime’ (written application by the Principal Public Prosecutor of 18 June 2004, p. 14).

As is rightly noted by the investigating judge, it is not acceptable that the right to protect sources can be used to cover up offences, since this would deprive that right of its purpose, notably the provision of accurate and reliable information to the public, and would be likely to jeopardise public safety by creating de facto impunity (see to this effect the judgment of the European Court of Human Rights of 15 July 2003, JLMB, 2003, p. 1524).

In the instant case, as the investigating judge noted in the order appealed against, in particular on page 3, paragraph 2.3.1, the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained, being justified by the ongoing duty to investigate, the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge.

The arguments advanced by the applicant in his submissions to this court, which cannot substitute its own findings for those of the court below, do not give rise to any doubt in this respect.

It follows that the appeal is unfounded.”

The applicant appealed on points of law. Relying in particular on Articles 6, 8 and 10 of the Convention, he submitted that freedom of expression included the freedom to seek out and collect information, essential aspects of journalistic activity. According to the applicant, that meant that journalists’ sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources. The applicant also complained that since he had not had access to the investigation file, he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search.

By a judgment of 1 December 2004 the Court of Cassation dismissed the appeal. It held that Article 10 of the Convention authorised restrictions on freedom of expression, that the search and seizure were provided for by the Code of Criminal Procedure and that the Indictment Division had given sufficient and adequate reasons for its decision. The Court of Cassation further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out. It was sufficient for the investigating judge to have evidence suggesting that that these premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant. Consequently, the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under Article 416 § 2 of the Code of Criminal Procedure, and was therefore inadmissible.

In the meantime, on 1 and 4 June 2004, the applicant had lodged two applications with the Court of First Instance of the European Communities. The first sought the annulment of the complaint filed by OLAF and compensation for the harm allegedly caused to the applicant’s career and reputation. The second sought a temporary injunction prohibiting OLAF from inspecting any document seized during the searches at issue. By an order of 15 October 2004 the President of the court dismissed the applications. The President ruled that OLAF’s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment. He stressed in particular that OLAF’s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings, given that the competent authorities remained free to decide on the action to be taken in relation to the report. As regards the applicant’s application for interim measures, he ruled that there was no causal link between the alleged harm and OLAF’s action and that it had not been established that OLAF had acted in breach of the principles of good administration and proportionality.

The applicant appealed. By an order of 19 April 2005 the President of the Court of Justice of the European Communities upheld the order.

In the context of those proceedings, the applicant received a copy of OLAF’s complaint but not of the other documents in the criminal file. At that time, he had not been charged in Belgium. On 17 November 2006 the Hamburg public prosecutor informed the applicant’s counsel that the investigation in Germany had been closed without any charges being brought.

On 12 May 2005 the European Ombudsman drafted a special report for the European Parliament following the draft recommendation he had addressed to OLAF in connection with a fresh complaint filed by the applicant (2485/2004/GG). In the complaint the applicant alleged that during the inquiry into complaint no. 1840/2002/GG, OLAF had provided incorrect information that was prone to mislead the Ombudsman; he requested the latter to conduct a new inquiry.

In his above-mentioned report, the Ombudsman stated that the alleged remarks by the members of the European Parliament (see paragraph 11 above) had probably never been made. They were rumours circulated by another journalist, Mr G., which the Director General of OLAF had not bothered to check with the members of the European Parliament concerned.

In his recommendation, the Ombudsman concluded that OLAF should acknowledge that it had made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter’s inquiry into complaint no. 1840/2002/GG.

Article 458 of the Belgian Criminal Code provides:

“Medical practitioners, surgeons, health officers, pharmacists, midwives and all other persons who, by reason of their status or profession, are guardians of secrets entrusted to them and who disclose them, except where they are called to give evidence in legal proceedings (or to a parliamentary commission of inquiry) or where the law requires them to do so, shall be liable to imprisonment for between eight days and six months and a fine ranging from one hundred to five hundred francs.”

The relevant provisions of the Code of Criminal Procedure read as follows:

“The investigating judge may, if required to do so or of his own motion, visit the home of the accused to search papers, effects and, in general, any items that may be deemed useful in establishing the truth.”

“Similarly, the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden.”

Article 8 of Regulation EC No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF provides as follows in respect of confidentiality and data protection:

“1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions.

Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities.

Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity.

Article 16 of the same Regulation provides that it is binding in its entirety and directly applicable in all Member States.

Paragraph 4 of Article 280 of the EEC Treaty states as follows;

“The Council, acting in accordance with the procedure referred to in Article 251, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States. These measures shall not concern the application of national criminal law or the national administration of justice.”


The applicant, Dragomir Hadžić, is a Croatian citizen, born in 1931 and living in Zagreb. He is represented before the Court by Mr Milorad Lukač, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.

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

The applicant served as a dentist in the Yugoslav People’s Army (YPA) from 1959 to 1991. His post was in Zagreb, Croatia.

By an order of the Commander of the Fifth Military Zone of the Socialist Federal Republic of Yugoslavia of 4 June 1991 it was decided that, due to his age, the applicant’s military service would end on 31 December 1991. Subsequently, by a decision of the Belgrade Military Social Security Fund (Zavod za socijalno osiguranje vojnih osiguranika) of 25 December 1991, the applicant’s right to an old-age pension was recognised as from 1 January 1992.

The applicant’s pension was subsequently paid from the Yugoslav Federal Military Social Security Fund in Belgrade until 31 December 1993.

According to the Government the payments stopped on that date at the applicant’s personal request, as he had decided to file an application for a pension in Croatia.

According to the applicant on 4 January 1994 he obtained Croatian citizenship and, consequently, only then fulfilled the requirements to apply for a pension in Croatia.

On 4 January 1994 the applicant filed an application for an old-age pension in Croatia. As a reason for this request the applicant submitted that he had previously fulfilled the conditions for an old-age pension and also obtained the Croatian citizenship.

By a decision of 25 February 1994 the Croatian Social Security Fund - Zagreb Office (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske - Područni ured Zagreb) rejected his request, stating that the applicant did not fulfil the requirements for a pension as he had failed to join the Croatian army prior to 31 December 1991.

The applicant unsuccessfully appealed against that decision and after his appeal was rejected on 5 April 1994, he instituted proceedings before the Administrative Court (Upravni sud Republike Hrvatske). He maintained that the decision to reject his request for an old-age pension had not been adequately reasoned and had failed to state laws on which it had been based. He maintained also that the law requesting the former YPA officers to make themselves available for the service in the Croatian army prior to 31 December 1991 had been enacted on 24 July 1992, after he had already fulfilled the conditions for an old-age pension. Furthermore, as that law had been enacted only in 1992 he could not have known the above requirement prior to his retirement form service.

On 22 December 1994 the Administrative Court rejected his claim. It noted that the applicant’s active military service in the YPA had come to an end on 31 December 1991 and that at that moment he fulfilled the requirements for the old-age pension according to the Yugoslav Federal law. It found furthermore that the applicant had failed to make himself available for service in the Croatian army prior to 31 December 1991, as prescribed by the 1993 Former Yugoslav People’s Army Officers’ Pensions Act. Therefore, he had failed to fulfil the requirements for recognition of his pension rights in Croatia, as prescribed by law.

On 1 March 1995 the applicant lodged a constitutional complaint claiming that his right to property was violated by the Administrative Court’s decision in so far as his right to pension in Croatia was denied. He argued in particular that the 1993 Former Yugoslav People’s Army Officers’ Pensions Act had not required that he join the Croatian army.

On 30 June 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) rejected the applicant’s complaint. It followed the reasoning set out in the Administrative Court’s decision of 22 December 1994 and found that the applicant’s constitutional rights had not been violated.

The relevant parts of the Former Yugoslav People’s Army Officers’ Pensions Act (1993 - Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše JNA, Official Gazette no. 96/1993) read as follows:

“A person whose status as an active officer in the former YPA in the territory of the Republic of Croatia ended prior to 31 December 1991, and who had not until that date obtained rights from pension and invalidity insurance may obtain such rights if he fulfils the conditions required of army personnel in order to obtain rights concerning pension and invalidity insurance in accordance with the Military Personnel Pensions Act (Zakon o mirovinskom i invalidskom osiguranju vojnih osiguranika – Official Gazette no. 53/91, 73/91, 18/92 and 71/92) and if:

– he had made himself available for the service in the Croatian army prior to 31 December 1991...”

By its decision of 16 October 1991 the Croatian Government, inter alia, guranteed to the Yugoslav People’s Army officers and soldiers who voluntarily left the YPA troops based on Croatian territory prior to 10 November 1991 at midnight the following: personal safety, the same status as they had in the YPA and an organised and unhindered possibility to leave the territory of Croatia for those who wished to do so.


Violation of Art. 5-1;No separate issue under Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in Leicester, England, in 1947.

The applicant was convicted at Leicester Crown Court on 8 August 1984 of causing actual bodily harm to a woman passer-by in a random and unprovoked attack. He punched her in the head and in the abdomen and then walked off. Unbeknownst to the applicant, the woman was three months pregnant. The applicant had previous convictions for unprovoked assaults: in April 1974 he was sentenced to eighteen months’ imprisonment for an assault on his mother; in December 1977 he was sentenced to four years’ imprisonment for an assault in which he had struck a woman passer-by with a housebrick; in July 1981 he was sentenced to eighteen months’ imprisonment for assaulting two girls walking along a city street. He also had convictions for robbery, criminal damage and various driving offences. The maximum sentence which the court could have imposed under section 47 of the Offences against the Person Act 1861 in respect of the current offence was a term of imprisonment of five years.

While on remand in Leicester Prison the applicant was diagnosed as suffering from “mental illness”, manifested in delusions of conspiracy and victimisation and an obsession with astral projection. The precise diagnosis was of schizophrenia superimposed on a psychopathic personality. The applicant had a history of alcohol and drug abuse. He had never previously been diagnosed as mentally ill within the meaning of the Mental Health Act 1983 although, when on remand on a previous charge of actual bodily harm, he had been assessed for psychiatric treatment but had been found to be unsuitable.

The applicant’s diagnosis (see paragraph 8 above) was confirmed by two psychiatrists. The Crown Court accordingly imposed a hospital order on him under section 37 of the 1983 Act. He was also made subject to a restriction order without limit in time under section 41 of the same Act, the court being satisfied that this order was necessary for the protection of the public from serious harm.

On 15 August 1984 the applicant was admitted to Rampton Hospital, a maximum security psychiatric institution. Between the date of his admission and up to 2 November 1987 he remained under the supervision of Dr J. McConnell, the responsible medical officer (“RMO”). Dr I. Wilson acted as his RMO from 3 November 1987 until the date of his final discharge.

When the applicant was admitted to Rampton Hospital Dr McConnell recorded that he was suffering from schizophrenia superimposed on a psychopathic personality. Soon after his admission the applicant was administered antipsychotic drugs, and it would appear that he responded well to treatment to the extent that by 29 May 1985 he had developed full insight into his mental illness. The applicant ceased taking medication in March 1988 (see paragraph 33 below).

The applicant’s detention was reviewed on several occasions between December 1986 and January 1993 by a Mental Health Review Tribunal (“the Tribunal”) pursuant to the provisions of section 70 of the 1983 Act.

The first review was held in December 1986. The Tribunal had before it the psychiatric report of Dr McConnell, the applicant’s RMO at the time, as well as a similar report drawn up by Dr J.D. Earp, a consultant psychiatrist, at the request of the applicant’s solicitor.

While noting the applicant’s great progress since the date of his admission to Rampton Hospital (see paragraph 11 above), Dr McConnell stated that he was still suffering from schizophrenia, superimposed on a psychopathic personality. He was also reported to be devious in his attitude to the staff at the hospital. Dr McConnell concluded that the applicant continued to require treatment and was unfit to be discharged. Dr Earp expressed the opinion that the applicant showed ample signs of psychopathic disorder with superimposed mental illness and that the mental illness had the characteristics of a paranoid schizophrenic condition. He did not recommend any change in the applicant’s current status.

In its decision of 17 December 1986, the Tribunal stated that it was satisfied that the applicant was suffering from mental illness or a form of that disorder of a nature or degree which made it appropriate for him to be liable to be detained and that it was necessary for his health or safety and for the protection of other persons that he should receive medical treatment in Rampton Hospital.

The applicant continued therefore to be detained after that date.

The applicant’s case came up for review on 14 August 1987 and again on 10 February 1988. On both occasions the Tribunal decided to make no direction for his discharge or reclassification of his illness, believing that it was necessary for his own health and safety as well as for the protection of other persons in the community at large that he continue to receive medical treatment for his condition in hospital.

A fourth review took place in June 1989. The Tribunal had before it a psychiatric report drawn up on 5 October 1988 by Dr Wilson who had taken over from Dr McConnell as the applicant’s RMO following her retirement; an assessment of the applicant’s condition prepared on 29 March 1989 by Dr D. Cameron, a consultant psychiatrist, based on, inter alia, an interview with the applicant on 16 March 1989; and a further assessment dated 5 May 1989 drawn up by Dr Earp, who had interviewed the applicant on 20 April 1989.

Dr Wilson and Dr Earp both concluded that the applicant was free of symptoms of mental illness. Dr Earp’s view was that the applicant was no longer detainable under the 1983 Act. While recommending a discharge, Dr Earp noted that arrangements were being made by Dr Cameron (see below) to secure accommodation for the applicant in a hostel for persons suffering from drink-related problems. Dr Wilson for his part felt that the applicant still needed to undergo a period of rehabilitation and was not fit for discharge at that time. In his report Dr Cameron concluded that the applicant was best described as “a schizoid personality with a history of explosive anti-social behaviour induced by intoxication” and that he could benefit from a stay in a hostel for people with drink-related problems following his discharge from Rampton Hospital. Dr Cameron offered to facilitate the applicant’s transfer to a hostel which he had in mind and to act as his psychiatric supervisor.

The Tribunal ruled on 15 June 1989 as follows:

“The Tribunal accepts the medical evidence that the patient is not now suffering from mental illness. The episode of mental illness from which he formerly suffered has come to an end. He is not now in receipt of any psychotropic medication.”

However the Tribunal continued:

“The [applicant] had an unrealistic opinion of his ability to live on his own in the community after nearly five years in Rampton Hospital and required rehabilitation under medical supervision and that such rehabilitation (and its associated support) can be provided only in a hostel environment. Further, the Tribunal is of the opinion that the recurrence of mental illness requiring recall to hospital cannot be excluded until after successful rehabilitation of that nature.”

On that basis, the Tribunal ordered the applicant’s conditional discharge, the conditions being that the applicant be subject to the psychiatric supervision of Dr Cameron and to the social-worker supervision of a nominated psychiatric social worker, and reside in a supervised hostel approved by Dr Cameron and the nominated psychiatric social worker.

The applicant’s discharge was to be deferred until arrangements could be made for suitable accommodation.

Following the 1989 review, considerable efforts were made to secure hostel accommodation for the applicant, but to no great avail. In the report of a senior social worker dated 6 October 1989, it was noted that no progress had been made on account of, inter alia, the limited number of hostel placements in the area catering for the applicant’s specific needs. The applicant himself also seemed intent on portraying himself in a negative light when visiting hostels, with the result that he confirmed their initial anxieties about accepting him.

The nominated psychiatric social worker (see paragraph 19 above), Mr D. Patterson, contacted a number of hostels. In his report of 4 April 1990, Mr Patterson described how his search for hostel accommodation for the applicant had been “a time-consuming, lengthy and frustrating” experience both for himself and the applicant. One hostel visited had rejected the applicant almost immediately. Another rejected him without seeing him and the housing associations running hostels in conjunction with the Probation Service also felt unable to offer him accommodation for some time on account of staff composition. It would appear that all potential hostels expressed concern about the applicant’s drinking problem and his previous history of assaults on women which might present a threat to female residents and members of staff. Mr Patterson indicated that the applicant during this time had not always shown a realistic appreciation of the lifestyle needed to achieve a successful rehabilitation.

However, one hostel, Ashcroft, did express interest in accepting the applicant on condition that he agree to and successfully complete an eight-week trial period in an open ward in a local hospital. Mr Patterson believed that Ashcroft was the only viable option, although the applicant remained rather ambivalent about exploring this possibility.

On 19 January 1990 the applicant applied to the Tribunal to have his detention reviewed, hoping for an absolute discharge. The Tribunal met in May 1990 and heard the applicant in person. It had before it Mr Patterson’s report on attempts to find suitable accommodation for the applicant (see paragraph 21 above), as well as his views on the applicant’s suitability for absolute discharge. Mr Patterson had concluded that he would be fearful of granting an absolute discharge since the applicant, if left to his own devices and without suitable support, could quickly find himself in trouble again. He was in favour of the applicant spending an eight-week trial period in a local hospital, which would provide the basis for acceptance by the Ashcroft hostel.

The Tribunal also considered a report prepared by Dr Wilson, dated 12 February 1990. Dr Wilson confirmed in this report that the applicant was no longer mentally ill. He stated that the terms of the earlier conditional discharge were still being pursued but that it had not yet been possible to find suitable accommodation. He recommended that the applicant be discharged as soon as appropriate arrangements could be made.

The Tribunal noted in its ruling of 9 May 1990 that the necessary arrangements for supervised accommodation had not been easy to make “probably because the patient is himself not easy to please”. The Tribunal accepted the reasoning of the 1989 Tribunal (see paragraph 18 above). Although acknowledging that the applicant’s clear preference was for an absolute discharge, the Tribunal considered that it was in the interests of the applicant and the public that “he remain liable to hospital recall and to have the support that is assured by a discharge that is conditional”.

Accordingly, the Tribunal once again directed the applicant’s conditional discharge but deferred the discharge until suitable arrangements had been made for supervised accommodation.

On 10 September 1990 the applicant commenced trial leave at another hospital, Carlton Hayes, which was less secure than Rampton Hospital (see paragraph 22 above). He was allowed increasing freedom in the form of time away from the hospital. On 9 October 1990, after drinking in a local pub, he returned to the hospital late at night and assaulted a patient whom he alleged had provoked him. Thereafter the placement began to break down completely. In a report dated 12 December 1990, Dr Cameron, the supervising psychiatrist, noted that the applicant had terrorised the nursing staff and had began to reject the rehabilitation plans which had been foreseen for him. He was returned to Rampton Hospital on 22 October 1990.

Back in Rampton Hospital, the applicant was given the choice to return to the pre-discharge unit there, where he could pursue other pre-discharge possibilities, or to go to another ward containing more long-term patients. The applicant chose the latter option.

A sixth review was carried out in April 1991. The Tribunal considered a progress report drawn up by Dr Wilson on 4 January 1991, the report prepared in December 1990 by Dr Cameron (see paragraph 25 above) and a report of Mr Patterson dated 22 January 1991.

Dr Wilson noted in his report the failure of the trial-leave period (see paragraph 25 above) and the difficulty in rekindling the applicant’s motivation. Dr Wilson concluded:

“[the applicant] is not mentally ill and does not require to remain in Rampton Hospital. Since June 1989 attempts to obtain his conditional discharge have been foiled by his inability to cooperate with the arrangements made and it is now difficult to envisage any conditions of his discharge that would be acceptable to [the applicant].”

Dr Cameron’s report of 12 December 1990 expressed pessimism about the applicant’s future in the light of the failure of the trial-leave period. He indicated that the applicant suffered from an explosive disorder of personality which meant that “when he is not in the middle of an explosion he is not in the formal sense mentally ill”. Dr Cameron had no doubt that intoxication had played some part in the breakdown of the rehabilitation process and was convinced that the applicant’s intoxicated explosions would likely recur whenever he was granted freedom into the community with access to intoxicants. Dr Cameron also considered that any further attempt at rehabilitation through general psychiatric routes would be inappropriate and for this reason was reluctant to continue as his psychiatric supervisor.

In his report Mr Patterson noted that the applicant’s failure to complete successfully the trial-leave period ruled out any prospect of his acceptance by the Ashcroft hostel.

On 9 April 1991 the Tribunal found that the applicant was not suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment. However, the Tribunal was satisfied that it was appropriate for the applicant to remain liable to be recalled to hospital for further treatment. The reasons given were that the applicant did not accept sufficient responsibility for his own behaviour to be able to cope with the pressures of life in the community without a considerable degree of supervision and support. Hence the applicant was again ordered to be conditionally discharged, such discharge to be deferred until alternative supervised accommodation could be found.

The applicant’s final review took place in January 1993. He was assessed prior to this review by Dr Wilson, who indicated that the applicant had no symptoms of mental illness and, provided that the topic of rehabilitation was avoided, he was constantly pleasant, friendly and cooperative. Dr Wilson concluded:

“There is no basis for [the applicant] continuing to be classified as suffering from mental illness and with the benefit of hindsight it appears unlikely that he ever experienced more than a drug-induced psychosis ... He does not require to remain in Rampton Hospital but it is difficult to envisage any conditions of his discharge that would be acceptable to him and his current application for an absolute discharge must now be considered on its merits.”

On 12 January 1993 the Tribunal ordered the applicant’s absolute discharge on the basis that the applicant

“is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment”.

In reaching this conclusion the Tribunal had regard to Dr Wilson’s oral evidence. It noted from his evidence that the applicant had not suffered from mental illness since 1987 and was not suffering from any other form of mental disorder. Medication had been withdrawn in March 1988. The applicant had shown consideration and kindness to other patients in his ward and he was “often acting more like a member of staff than a patient”.

Furthermore, the Tribunal noted that Dr Wilson considered that the index offence was not to be regarded as a result of mental illness but of a likely combination of drugs and alcohol. The applicant had suffered a psychotic episode whilst on remand which Dr Wilson attributed to the stress of prison and the withdrawal of drugs and alcohol. According to Dr Wilson there was no evidence that this illness was likely to recur and there was no medical basis to believe that the applicant would be dangerous if released.

While having regard to the view of the Secretary of State that only a conditional discharge was appropriate at that stage, the Tribunal concluded that it was proper and in the interests of justice to grant the applicant an absolute discharge.

The applicant was released from Rampton Hospital on 21 January 1993. Since then, he has not relapsed into mental illness. At the hearing the Court was informed that the applicant had recently been given a conditional discharge following his conviction of a minor public-order offence arising out of an altercation with a neighbour. He was also facing a charge of cultivating cannabis.

Section 1 (2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. A personality disorder would not, of itself, justify detention unless it came within the definition of psychopathic disorder, namely “a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive behaviour or seriously irresponsible conduct on the part of the person concerned”.

Under section 1 (3) of the Act, dependence on alcohol or drugs is not to be construed as a form of mental disorder.

Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”).

The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 35 above) and that

“the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37 (2) (a) (i))

and

“the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37 (2) (b) (ii)).

Under section 37 (7) a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners.

Section 41 of the 1983 Act empowers a court to make a restriction order (with or without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if still at large, that it is necessary for the protection of the public from serious harm to make the order. A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of the Mental Health Review Tribunal (see paragraph 39 below) to order release more narrowly than in the case of an ordinary mental patient.

Under section 70 of the 1983 Act, a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, may apply to the Tribunal after six months’ detention for a review of his detention. After twelve months’ detention such applications may be made annually. The Secretary of State may at any time refer the case of a restricted patient to the Tribunal (section 71 of the 1983 Act). Tribunals are made up of a legally qualified member who sits as the chairperson, a medically qualified member who interviews the patient and a lay member.

Under section 73 (1) and (2) of the 1983 Act, read in conjunction with section 72 (1), where an application is made to the Tribunal by a restricted patient or where his case is referred to the Tribunal by the Secretary of State, the Tribunal is required to direct the absolute discharge of the patient if it is satisfied

(a) (i) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or

(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment (section 73 (1) of the 1983 Act); and

(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73 (2) of the 1983 Act).

Pursuant to section 73 (3), where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.

Under section 73 (2) of the 1983 Act, where the Tribunal is satisfied as to either of the matters referred to at (a) in paragraph 40 above but not as to the matter referred at (b) in paragraph 40 above, it is required to direct the conditional discharge of the patient. Lady Justice Butler-Ross, giving judgment in the case of R. v. Merseyside Mental Health Review Tribunal, ex parte K ([1990] 1 All England Law Reports, Court of Appeal), explained the nature of this power as follows:

“Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.”(at pp. 699–700)

By virtue of section 73 (4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State and must comply with the conditions attached to his discharge. In contrast to absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.

Under section 73 (7) of the 1983 Act, a tribunal can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to their satisfaction. However, in the case of restricted patients, whose discharge has been accordingly deferred, the Tribunal does not have the power to direct the discharge if the specified conditions are not fulfilled or to adjourn its consideration of the case to await further developments or to recommend that the patient be granted leave of absence or to specify a time within which the conditions are to be complied with and to reconvene the proceedings failing such compliance with the time fixed. However, once the case comes back before the Tribunal on an application by the patient (which at the earliest will be the following year) or on a reference from the Secretary of State (which may be at any time) the Tribunal must consider the case afresh. In Secretary of State for the Home Department v. Oxford Regional Mental Health Review Tribunal and another ([1987] 3 All England Law Reports, House of Lords), Lord Bridge noted that there was no basis in the 1983 Act or in the rules of the Mental Health Review Tribunal to defer a conditional discharge until a fixed date. He stated:

“...it is impossible for a tribunal in making a deferred direction for conditional discharge to predict how long it will take to make the necessary arrangements. The decision should simply indicate that the direction is deferred until the necessary arrangements have been made to the satisfaction of the tribunal and specify what arrangements are required, which can normally be done, no doubt, simply by reference to the conditions to be imposed. Whoever is responsible for making the arrangements should then proceed with all reasonable expedition to do so and should bring the matter to the attention of the tribunal again as soon as practicable after it is thought that satisfactory arrangements have been made ...”(at p. 13)

The Secretary of State may also order a patient’s conditional or absolute discharge (section 42 of the 1983 Act).


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Damage - finding of violation sufficient;Costs and expenses partial award

On 27 June 1991 the Jastrzębie Zdrój District Prosecutor issued a warrant of arrest against the applicant who was suspected of attempted manslaughter, robbery and rape. He was arrested on the same day.

On 23 September 1991 the Katowice Regional Court (Sąd Wojewódzki) prolonged the detention on remand until 30 November 1991 finding a reasonable suspicion that the applicant had committed the crimes in question. The Court considered that certain witnesses had to be heard and that expert opinions should be taken.

On 29 November 1991 the Katowice Regional Prosecutor transmitted the bill of indictment to the Katowice Regional Court. The applicant was charged with attempted manslaughter, assault, causing severe bodily harm, use of a dangerous weapon, aggravated theft, rape and theft.

On 14 January 1992 the applicant requested the Katowice Regional Court to release him. On 20 January 1992 the Court refused to order the applicant's release in view of the seriousness of the offences concerned.

On 4 March 1992 the first hearing was held before the Katowice Regional Court. The applicant requested that the case be transmitted to the Jelenia Góra Regional Court as most witnesses lived nearby. He requested access to the case-file in order to read it in a detailed manner. The Court refused the first request and complied with the second.

On 2 April 1992 the applicant failed to appear before the Court. It transpires from the minutes of the hearing that he had refused to leave the prison cell as he felt unwell. A prison physician stated that there were no medical objections to the applicant's participation in the hearing. The hearing set for 20 May 1992 was not held for the same reason.

On 30 June 1992 the Court heard the applicant, who denied his involvement in the crimes concerned, and another accused. The hearing was adjourned for 24 September 1992. At this date the court heard four witnesses and further questioned the applicant. On 25 September 1992 five further witnesses were heard. The hearing was adjourned until 18 November 1992.

Subsequently the judge rapporteur fell ill. He remained on sick leave from 10 November 1992 to 31 August 1994. The case was assigned to a new panel of judges.

On 16 April 1993 the applicant complained to the Minister of Justice about the length of the proceedings.

The hearing fixed on 18 June 1993 was adjourned as the applicant's officially appointed counsel requested that the case be assigned to another lawyer in view of his bad health.

On 2 August 1993 the hearing was recommenced in view of the change in the composition of the court. The court questioned the applicant and another co-accused. The hearing was adjourned for 8 and 14 September 1993.

On 5 August 1993 the officially appointed lawyer informed the court that the applicant had withdrawn his power of attorney. At the hearing set for 8 September 1993 this lawyer was not present. The Court adjourned the hearing until 14 September 1993 and assigned two new lawyers for the applicant's defence. As they failed to appear at the hearing on 14 September 1993, the Court adjourned the hearing until 4 October 1993.

On 4 October 1993 one of the officially appointed lawyers requested that the hearing be recommenced. The Court complied with this request and again questioned the applicant and another co-accused.

On 3 November 1993 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the length of the proceedings in his case and on 18 November 1993 to the Minister of Justice.

At the hearing on 19 and 22 November 1993 the court heard sixteen witnesses. At the hearing on 7 January 1994 only two out of fifteen witnesses who were to be heard on that day complied with the summonses. The Court imposed fines on some of them.

On 15 December 1993 the President of the Katowice Regional Court requested the President of the Criminal Division of that Court to follow closely the progress in the case and to prepare each month a progress report, with a first date set for 7 January 1994.

By a letter of 7 February 1994 the applicant requested the court to recall two of the counsel assigned to his case under the legal aid scheme and to assign the case to the lawyer who had been representing him at the beginning of the proceedings. On 21 February 1994 the court refused, having noted that the first officially appointed counsel had fallen ill; subsequently the applicant had withdrawn the power of attorney of the second counsel; and the third counsel had retired. The court further pointed out that granting the applicant’s request would have resulted in a fifth lawyer financed by the legal aid scheme representing the applicant in the proceedings.

On 23 February 1994 three witnesses were heard. On 28 February 1994 the hearing was adjourned as the president of the court fell ill.

On 14 March 1994 the President of the Katowice Regional Court reiterated his request to the President of the Criminal Division to supervise the proceedings and to present a first report on the progress by 10 May 1994.

On 30 March 1994 the Ombudsman requested the President of the Katowice Regional Court to inform him about the progress in the case.

At a hearing on 23 May 1994 five witnesses out of eighteen summoned for that date complied with the summonses. The applicant requested to be released. The court, having heard the prosecutor’s argument in reply, refused to release him in view of the seriousness of the crimes he was charged with. The court further considered that there was the risk of collusion. On 25 May 1994 the applicant lodged an appeal against this decision with the Katowice Court of Appeal. On 1 June 1994 the Katowice Court of Appeal upheld the contested decision. The Court observed that the applicant was suspected of serious crimes and that there was a risk of collusion. The Court noted that there was progress in the case as hearings were being held. Thus, even regard being had to the fact that the applicant had been detained on remand for three years, there were no reasons which would justify his release.

On 5 June 1994 the applicant again requested that his counsel be changed.

On 7 June 1994 the Ombudsman again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand.

On 20 June 1994 the Regional Court ordered that accused Z.P. be released in view of his poor health.

On 28 June 1994 the applicant requested his release, relying on his rights guaranteed by the European Convention on Human Rights.

On 4 July 1994 the Katowice Regional Court refused to release the applicant. The Court noted that the applicant was suspected of dangerous crimes. It also considered that there was a risk of collusion and that, if released, the applicant would jeopardise the criminal proceedings by trying to bear pressure on witnesses and by contacting another co-accused who was not detained.

On 16 July 1994 the applicant complained to the Minister of Justice about the length of the proceedings.

From June to September 1994 the Court composed a list of the addresses of witnesses who had failed to appear on 23 May 1994. In particular, the court had to establish the address of the rape victim.

On 11 October 1994 three witnesses out of the eighteen summoned for that date complied with the summonses. The applicant requested a medical examination in view of his gastrological problems. The court ordered the medical services of the Krakow Detention Centre to submit a medical opinion as to their gravity. Another coaccused, who had been released on 23 June 1994 in view of his illhealth, failed to appear.

On 28 October 1994 the applicant refused to leave the prison cell. A medical opinion of 14 November 1994 stated that he suffered from chronic gastritis, but could be treated in the prison.

In a letter of 10 November 1994 the applicant challenged the judges. He referred to the fact that on 11 October 1994 the court had ordered the police to force him to leave his cell in order to attend the hearing. On 12 December 1994 the Katowice Regional Court refused to comply with this request.

At the hearing on 10 January 1995 two out of ten witnesses appeared before the court. On 31 January 1995 three witnesses were heard. On 7 February 1995 the applicant refused to leave the prison cell, declaring that he felt unwell and he had not received the summons. The court adjourned the hearing in order for a physician to established whether the applicant’s condition prevented him from attending the hearing. Having examined the applicant, the physician stated that there were no medical objections to the applicant’s participation in the hearing.

Further hearings were held on 7 March and 22 March 1995. On 22 March 1995 the Court convicted the applicant of attempted manslaughter, rape and aggravated theft and sentenced him to twentyfive years' imprisonment.

On 19 October 1995, following the applicant’s appeal, the Katowice Court of Appeal in part quashed the first-instance judgment and ordered that the case be reconsidered. On 27 May 1997 the Katowice Regional Court again convicted the applicant and imposed a sentence of twenty-five years’ imprisonment.

The Polish Code of Criminal Procedure, enacted in 1969 applicable at the material time, listed as so-called “preventive measures”, inter alia, detention on remand, bail and police supervision. The authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Code, which read as follows:

"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)."

"1. A decision concerning preventive measures may be appealed [to a higher court] ....

A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...."

The courts, when ruling on the prosecutor’s request submitted in pursuance of Article 222 of the Code, were under an obligation to determine the period for which detention could be prolonged. If the court refused to grant the prosecutor’s request for prolongation of detention or if the prosecutor had failed to submit a request for such prolongation before or on the expiry of the last detention order, the detained person had to be released.

Article 213 of the Code provided that a preventive measure should be immediately quashed or altered if the basis therefor had ceased to exist or if new circumstances had arisen which justified quashing or replacing a given measure which a more or less lenient one.

Under Article 217 § 1 (2) and (4) of the Code, detention on remand could be imposed if there was a reasonable risk that an accused would attempt to induce witnesses to give false testimony or to obstruct the due course of the proceedings by any other unlawful means, or if the accused had been charged with an offence posing a serious danger to society.

Under the provisions of the 1969 Code there were three different legal avenues whereby a detained person could challenge the lawfulness of his or her detention and thus possibly obtain release. Under Article 212. § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see § 41 above). Under Article 222 §§ 2(1) and 3 he could lodge an appeal against a further decision by that court prolonging his detention at a prosecutor's request. Finally, Article 214 of the Code stated that an accused could at any time apply to the authority conducting the criminal proceedings, i.e. the prosecutor or the court, depending on the stage the proceedings had reached, to have a preventive measure quashed or altered.

Imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in proceedings held in camera. The presence of the parties at court sessions other than hearings, including sessions held in proceedings concerning review of detention on remand, was regulated in Articles 87 and 88 of the Code of Criminal Procedure, which, insofar as relevant, provided:

"The court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..."

"A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it."

A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. It entered into force on 1 September 1998. Pursuant to Article 249 of the new Code, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.

The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.


The applicant, Mr Ivica Gregurinčić, is a Croatian national who was born in 1967 and lives in Petrinja, Croatia. He is represented before the Court by Mr B. Spiz, a lawyer practising in Zagreb. The respondent Government were represented by successive Agents: Ms L. Lukina-Karajković and Ms Š. Stažnik.

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

On 18 August 1995 a member of the Croatian Army allegedly damaged the applicant’s car.

On 3 October 1995 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the State.

The court held hearings on 15 April 1996, 2 April 1998 and on 8 December 1998.

On 6 November 1999 the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima) entered into force. It provided that proceedings for damage caused by members of the army and the police from 17 August 1990 to 30 June 1996 would be stayed.

The court held hearings thereafter: on 18 March 2002, 11 March 2003, 2 March 2004 and on 10 December 2004. It would appear that the proceedings in issue are still pending.

The Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”) entered into force on 6 November 1999. It provided, inter alia, that proceedings instituted against the State for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation. The Act also imposed an obligation on the Government to submit to the Parliament such special legislation no later than 6 May 2000.

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:

“Proceedings shall be stayed:

(6) where another statute so prescribes.”

The “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1999 Act will resume and defines circumstances in which the State is liable for damage caused by members of the army and the police during the war.

The relevant part of section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske, its consolidated text was published in the Official Gazette no. 49/2002), as amended on 15 March 2002, reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”


The applicant is a British national, born in 1945 and living in Rome.

The applicant's mother, born in 1906, used to live in Antella, near Florence, assisted on a daily basis at her domicile by R.O.

On an unspecified date near the end of September 1989 the applicant's mother telephoned to the public care doctor, Mr. G.T., requesting his assistance because her lower abdomen was painful and swelling. The doctor, allegedly without visiting her, wrote a medical prescription recommending x-rays of the applicant's abdomen; he left the prescription with the local pharmacy, where R.O. went to fetch it on behalf of the applicant’s mother.

On 28 September 1989 the applicant's mother went to the local public hospital Santa Maria dell'Annunziata to have x-rays of her abdomen; she was accompanied by R.O. She was made to drink barium before undergoing the examination; X-rays were taken of her stomach. She collapsed during the examination; however, despite her serious health condition, she was subsequently discharged from hospital and sent back home in a wheel-chair. The x-ray plates bear the stamp of the Radiology Department but were not signed by the radiologist who carried out the examination, nor was his name indicated.

The next morning, on 29 September 1989, the applicant's mother was seized by extremely severe pain. She was taken by ambulance to the above hospital at 13h10, where she died at 14h00 of an intestinal occlusion.

The applicant learned about his mother's death on that same day.

In February 1992 the applicant happened to discuss the circumstances of his mother's death in detail with a doctor friend of his, who requested to examine the x-ray plates taken of the applicant's mother on 28 September 1989. The applicant obtained from the hospital copy of his mother's medical file including the x-ray plates and subsequently submitted them to the doctor, who on 25 September 1992 drafted a medical report according to which the x-ray plates clearly showed that the applicant's mother had an intestinal occlusion. Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous.

The applicant obtained a second medical report from another doctor, dated 31 October 1992 and supporting the findings of the first.

A third medical report was drafted by a third specialist on 11 January 1993.

On 23 January 1993 the applicant filed a criminal complaint with the Magistrate's Court of Florence, claiming that Mr. G.T., the public care doctor who had recommended an x-ray examination of the applicant's mother without examining her beforehand, was to be held responsible for her death and seeking that the identity of any other person responsible for his mother's death be established and that they all be prosecuted for manslaughter.

Investigations were opened against G.T. and other unidentified persons under file no. 4800/93.

On 7 June 1993 the Florence Public Prosecutor interrogated G.T. in the presence of his counsel. He claimed that he had visited the applicant's mother before recommending x-rays of her abdomen and that he had left the prescription with her. He said he had suspected a tumour but not an intestinal occlusion. He further stated that, after being informed of the applicant's mother's death, he had learned that she had collapsed during the x-ray examination but had not been kept in hospital, which he had found unreasonable on the part of the hospital. He stated that he did not know the identity of the radiologist who had carried out the examination.

On 27 June 1994 the Florence Public Prosecutor heard R.O. as a witness; she described the circumstances of the applicant's mother's death and claimed that the applicant's mother had not been visited by the doctor G.T. on the day at issue and that she herself had gone to the pharmacy to fetch the prescription for the X-rays.

F.P., a doctor who was on duty at the hospital on 29 September 1989, was also heard as a witness on an unspecified date.

On 10 October 1994 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court ("gli elementi raccolti non sono sufficienti ed idonei a sostenere l'accusa in giudizio").

On 3 February 1995 the applicant filed an objection to the request to discontinue the investigations (opposizione alla richiesta di archiviazione). He underlined that the Public Prosecutor had not sought to establish the identity of the radiologist who had carried out the x-ray examination of his mother and requested that L.T., the director of the Radiology Department of the hospital, be heard in order to ascertain which radiologists had been on duty on 28 September 1989. He further pointed out significative inconsistencies in the testimony of G.T.

By a decision of 7 April 1995 the Florence Judge for the Preliminary Investigation ruled that the investigation be discontinued on the ground that, in the light of the investigations carried out, the elements of the alleged negligence of G.T. and of the unidentified radiologist were insufficient to support an accusation in court.

On 3 July 1995 the applicant requested the Florence Judge for the Preliminary Investigation to reopen the investigations. This request was granted on 6 October 1995 in respect of the unidentified radiologist.

On 6 November 1995 the Florence Public Prosecutor requested the police to take evidence from all employees of the Radiology Department of the hospital who had been present on 28 September 1989, with a view to identifying the author of the medical report which was drawn up after the x-rays had been taken, and establishing which typing machine had been used.

Four of the hospital employees - T.B., F.N., R.C., M.M. - were heard by the police on 27 November 1995. They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine. Urgent medical reports were written by hand by the doctors immediately after the examination, whereas non-urgent ones were dictated by doctors and only subsequently typed by an employee, M.T.. Doctors would sometimes type their reports themselves, in particular the Director of the Department. The witnesses were shown the medical report on the condition of the applicant's mother, drafted on 28 September 1989, and found it unusual; they declared that that kind of x-ray examination was always carried out by a doctor assisted by a technician. They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the Department. Some of them thought that it had been typed on the ordinary typing machine and not on the computer.

M.T., the employee who used to type non-urgent medical reports, was interrogated by the police on 28 November 1995. She explained that the ordinary typing machine was kept in the doctors' room. She further explained that she used to type the medical reports on behalf of the doctors, who would sign them at the end of the day; the reports would not be stamped with the Department's name. She was shown the report drafted on 28 September 1989 and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor.

On 1 February 1996 M.C., a radiologist, was examined by the police. He confirmed that non-urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors; only the Director of the Department used to type his reports himself. He was shown the report drafted on 28 September 1989 and confirmed that such kind of examination would be carried out by a doctor assisted by a technician, but could not remember whether he had carried it out himself although he thought he had not, as the report did not have the same characteristics as his usual ones. He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed, and that it had been stamped with the name of the Department, which was unusual. He further said that if he had been aware of a situation similar to that described in the medical report at issue, he would have tried to contact the patient's family or family doctor to point out the gravity of the situation.

On 15 January 1996 L.T., the Director of the Radiology Department, was interrogated by the police. He stated that he had been informed of the case of the applicant's mother only in 1992, when the applicant had requested certain information from him which he could not provide. He explained that in September 1989 radiologists and technicians were organised in shifts; the shift tables used to be thrown away after the end of the relevant week, as they were used only for the purpose of internal organisation. He examined the report of 28 September 1989 and noticed the absence of the responsible doctor's name and signature; he stated that doctors did not type medical reports themselves, but wrote them by hand in urgent cases.

On 12 March 1996 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the "extremely accurate" investigations carried out by the police had not led to the precise but only to the "probable" identification of the radiologist who had carried out the examination of the applicant's mother without realising her serious medical condition. The Public Prosecutor considered, however, that the gathered elements, although credible, were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence. On the other hand, the Public Prosecutor considered that the testimonies did not entirely support the deductions of the police.

On 9 April 1996 the applicant filed an objection to the request to discontinue the investigations. He requested in the first place that further investigations be carried out in respect of G.T. He further underlined certain inconsistencies in the testimony of L.T. He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue, given that it was obviously unusual to stamp medical reports with the name of the Department and about the characteristics of the reports drafted by L.T. He finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor.

By a decision dated 17 October 1996, the Florence Judge for the Preliminary Investigations ruled that the investigations against unknown persons for the manslaughter of the applicant's mother be discontinued. The judge pointed out in the first place that, by decision of 6 October 1995, the investigations had been reopened only in respect of unknown persons and not also in respect of G.T.. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth.

The applicant appealed to the Court of Cassation against this decision. By a decision dated 24 December 1996, the Court of Cassation rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent Public Prosecutor's margin of appreciation.