The applicant, Mr Zvonko Nogolica, is a Croatian citizen, who was born in 1962 and lives in Zagreb. He is represented before the Court by Ms Marta Marić, a lawyer practising in Zagreb.

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

On 5 October 1995 the applicant filed two civil actions for damages with the Zagreb Municipal Court (Općinski sud u Zagrebu), one against the newspaper “Arena” and the other against the newspaper “Globus International”, claiming that these newspapers had published libellous articles about him.

On 22 February 1996 and 9 June 1997 the first instance court held hearings.

At the hearing on 17 October 1997 the Court heard the applicant.

At the hearing on 1 October 1998 the court heard one witness.

The hearing scheduled for 19 November 1998 was adjourned for 12 March 1999 when the court heard another witness and an expert.

At the next hearing on 2 February 2000 the court heard yet another witness and concluded the trial.

The first instance judgment, rejecting the applicant’s claim, was served on the applicant on 10 April 2000.

On 24 April 2000 the applicant filed an appeal against the judgment.

On 5 March 2001 the case-file was transferred to the Zagreb County Cout (Županijski sud u Zagrebu) as the appellate court.

The proceedings are presently pending before the appellate court.

The first instance court held a hearing on 1 April 1996.

At the hearing on 17 April 1998 the defendants submitted their replies to the applicant’s claim.

At the next hearing on 13 April 1999 the court heard the applicant.

The hearings scheduled for 27 September 1999 and 26 November 1999 were adjourned because the witnesses summoned for these hearings did not appear.

On 28 February 2000 the court heard one witness and concluded the trial. Four months later the first instance judgment, rejecting the applicant’s claim, was served on the applicant.

On 6 June 2000 the applicant appealed against the first instance judgment.

On 5 March 2001 the case-file was transferred to the Zagreb County Court as the appellate court.

Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 - hereinafter “The Act of 15 March 2002” - Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section read as follows:

(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...

(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.


On 14 June 1991 the Hamburg Regional Court convicted the applicant, a German national born in 1966, on charges of receiving stolen goods and theft and sentenced him to two years' imprisonment. The execution of the sentence was suspended on probation for a period of four years.

On 18 March 1993 the Ahrensburg District Court convicted the applicant on charges of negligent drunken driving and negligent driving without licence and imposed a fine. Thereupon, the Hamburg Regional Court decided to prolong by two years the applicant's probationary period.

On 15 September 1995 the Hamburg Prosecutor's Office charged the applicant and two co-accused with several counts of fraud, committed between March 1993 and April 1994.

Moreover, on 28 September 1995 the applicant was issued with a penal order (Strafbefehl) by the Hamburg District Court in the framework of a summary procedure. He was sentenced to a fine of 30 German marks (DEM - approximately 15 Euro) per day for thirty days for an offence of fraud, committed in February 1994 to the detriment of Mr H. Upon the applicant's objection, lodged with the assistance of Mr Klingbeil, main proceedings were instituted before the District Court. On 24 November 1995 these proceedings and the proceedings concerning the charges of September 1995, were joined.

In May 2000 the Hamburg District Court convicted the applicant of fraud and sentenced him to ten months' imprisonment. The proceedings concerning the charge of fraud to the detriment of Mr H. were provisionally stayed pursuant to section 154 (2) of the Code of Criminal Procedure as it appeared unnecessary to sanction the offence in question separately, the applicant having been sentenced to ten months' imprisonment in respect of the other fraud offences.

On 21 December 1995 the Kiel District Court issued a penal order against the applicant, convicting him of fraud, committed in August 1994. He was sentenced to a fine of DEM 20 per day for fifty days.

When the postman found nobody at the applicant's home, the order was served in accordance with the relevant legal provisions, by way of a notification in his letter-box on 10 January 1996 to collect the said decision deposited at the local post office in his absence. Since the applicant did not lodge an objection in time, the penal order acquired legal force as the final judgment in the matter on 25 January 1995. On 11 October 1996 the Rendsburg District Court granted the applicant's request for retrial.

On 2 April 1996 the Hamburg Regional Court informed the applicant of its intention to revoke the suspension of his sentence of 1991 and invited him to comment within a period of one week after service of the letter. Due to the applicant's absence from home, the letter was served by way of a notification in his letter-box on 6 April 1996 to collect the said letter at the local post office.

On 18 April 1996 the Hamburg Regional Court revoked the suspension of the applicant's sentence to two years' imprisonment, imposed on 14 June 1991.

In the reasons given for its decision, the Regional Court, referring to section 56f (1)(1) of the Penal Code, found that the applicant had committed criminal offences during the period of probation and had thereby shown that he did not fulfil the expectations upon which the suspension of the sentence was based.

The Regional Court noted that, subsequent to the said suspension, the applicant had been convicted of further criminal offences and that these convictions had become final. Thus he had been convicted of traffic offences by the Ahrensburg District Court on 18 March 1993 and of fraud by the Kiel District Court on 21 December 1995. The court considered that in particular the applicant's conviction of another offence relating to property had shown that he did not fulfil the expectations upon which the suspension of his sentence was based. Taking into account that the period of suspension had already once been prolonged, other, more lenient measures than revoking the suspension were not possible.

Due to the applicant's absence, the order was also served by way of a notification in his letter-box on 23 April 1996 to collect the decision of 18 April 1996 deposited at the local post.

On 17 May 1996 the applicant, assisted by Mr Klingbeil, submitted an application for the reinstatement of the proceedings against the decision of 18 April 1996 and lodged an appeal against the said decision.

By letter of 15 August 1996 the Hamburg Court of Appeal informed the applicant's counsel that, considering the Public Prosecutor's decision to stay the execution of the sentence (Vollstreckungsaufschub) until 4 August 1996, it would await the outcome of the proceedings before the Kiel District Court regarding his request for reinstatement.

On 22 August 1996 the Court of Appeal decided to grant the applicant's request for reinstatement and adjourned the appeal proceedings to await the final outcome of the Kiel proceedings relating to his request for reinstatement. The Court of Appeal considered that the question whether or not the applicant had committed a further offence of fraud was decisive for its decision on revoking his suspension. It noted that this request had been unsuccessful at first instance, but appeal proceedings were pending. The Court of Appeal dismissed the applicant's request to await the outcome of the proceedings relating to his request for retrial.

On 24 September 1996 the Court of Appeal informed the applicant that, following deliberations, the case remained adjourned to await the outcome of the Kiel proceedings for reinstatement.

On 14 October 1996 a hearing took place before the Court of Appeal, which heard the statements made by Mr H. and the further witness, police officer B., in the presence of the applicant's counsel. The applicant, waiting outside the court building, did not attend the hearing in order not to be seen in case of a confrontation with Mr H., as suggested by his counsel.

Following the hearing, the Court of Appeal dismissed the applicant's appeal against the decision of 21 December 1995 on the ground that the reasons given in that decision were correct in their conclusion.

According to the Court of Appeal, the applicant “had not fulfilled the expectations upon which the suspension of his sentence ... was based, as he committed new offences during the period of suspension” (“hat die Erwartungen, die der ... Strafaussetzung zugrunde lagen, nicht erfüllt, weil er in der Bewährungszeit neue Straftaten begangen hat”).

In its reasoning, the Court of Appeal noted the applicant's final conviction by the Ahrensburg District Court on 18 March 1993.

As regards the penal order issued by the Kiel District Court on 21 December 1995, it considered that the applicant's pending request for retrial might result in the hearing of numerous witnesses. As the prolonged period of suspension had already expired four months ago, the Court of Appeal found that it could not await the outcome of these proceedings.

The Court of Appeal turned next to the proceedings pending before the Hamburg District Court. It noted that, following the applicant's successful appeal against the penal order of 28 September 1995, the District Court had joined these and further criminal proceedings involving the applicant and two other accused and relating to several charges of fraud. In the latter proceedings, trial proceedings had not yet been opened on account of difficult investigations. The Court of Appeal stated that it would not await the outcome of these proceedings either. Rather, it opted for a procedure under section 308 of the Code of Criminal Procedure to examine the question whether or not, in addition to the conviction by the Ahrensburg District Court of 1993, the applicant's criminal offence to the detriment of Mr. H. could constitute a reason for revoking the suspension of his sentence.

The Court of Appeal considered that, having questioned Mr. H. and a further witness, the police officer B., in presence of the applicant's defence counsel, “it had been able to obtain certainty that the applicant was guilty of fraud to the detriment of witness ... [H.] (section 263 of the Penal Code)” (“hat dem Senat ... die Gewissheit verschafft, dass sich der Beschwerdeführer gegenüber dem Zeugen ... [H.] des Betruges schuldig gemacht hat (§ 263 StGB)”).

In this respect, the Court of Appeal took note of both witnesses' indications as to the circumstances of the offence in question as well as to the criminal information laid by the victim H. and the subsequent investigations. Thus, the Court of Appeal found that the applicant had offered H. a mobile phone and a video camera at a low price. When the transaction was to be carried out some time later at a parking place on the motorway, the applicant had taken H.'s money and disappeared without handing over the promised goods. While H. had not identified the applicant on police photographs shown to him at the police department the day after the offence, he did recognise him in a collection of police photographs which had been presented to him by the police officer B. The Court of Appeal considered that both witnesses' statements were true. The court argued that H. had openly talked about his bad conscience regarding the low price of the two objects and he had also admitted that, because he was ashamed, he had not told the truth as to the circumstances of the applicant's disappearance on the occasion of his questioning by the police. Moreover, police officer B. had remembered many details and had also explained an amendment to the minutes of H.'s questioning.

Furthermore, the Court of Appeal indicated that it had inspected the files of the proceedings pending before the Hamburg District Court inasmuch as the collection of police photographs was concerned. The Court of Appeal noted that, when the scene of identifying the applicant had been re-enacted, the witness H., following an initial hesitation as to a photograph showing another person, had clearly recognised the photograph showing the applicant. In these circumstances, the Court of Appeal considered not necessary to re-enact the consultation of police photographs, which had been taken place at the police department one day after the offence.

The Court of Appeal did not take up the suggestion of the applicant's counsel for an open confrontation between the witness H. and several persons, including the applicant. It considered that so much time had elapsed since the offence that the applicant's appearance could have considerably changed. Furthermore, it had not been sure whether the applicant would have participated in such a confrontation. In this situation, it rather relied on the memory of the witness H.

The Court of Appeal concluded that the strict conditions were met for considering an offence, prior to final conviction, as a reason for revoking a suspension. In cases as the present one, awaiting the final conviction would, on account of the considerable possibilities of delay, lead to the unbearable result that criminal offenders could commit further offences during the probationary period without any risk of suffering disadvantages.

According to the Court of Appeal, the applicant's conviction by the Ahrensburg District Court and his criminal offence against H. had shown that, contrary to the initial prognosis, the applicant was not able to live a law-abiding life. While the conviction by the Ahrensburg District Court merely disclosed a general lack of reliability and could not, taken alone, justify revoking the suspension, the applicant had proceeded in the case H. in a way similar to that followed for the offence underlying his 1991 conviction. Accordingly, the suspended prison sentences had had no impact on the applicant. More lenient measures could not therefore be envisaged.

The decision was served on the applicant's counsel on 18 October 1996.

On 22 January 1997 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.

Subsequently, the Pardon Division at the Hamburg Court of Appeal suspended the execution of the sentence pending the proceedings before the Court.

Sections 56 to 58 of the Penal Code govern the suspended execution of sentences. Section 56 concerns the conditions for suspension and reads as follows:

“1. Upon a sentence of imprisonment of no more than one year, the court shall suspend the execution of the punishment and grant probation if it can be expected that the sentence will serve the convicted person as a warning and he will commit no further crimes in the future even without the influence exerted by serving the sentence. Particularly to be considered are the personality of the convicted person, his previous history, the circumstances of his offence, his conduct after the offence, his living conditions and the effects which can be expected as a result of the suspension.

(2) The court may also suspend the execution of a longer term of imprisonment which does not exceed two years under the provisions of subsection (1) and grant probation if a comprehensive evaluation of the offence and personality of the convicted person reveals the existence of special circumstances. In making the decision the efforts of the convicted person to make restitution for the harm caused by the offence should particularly be considered.”

According to section 56a, the competent court determines the period of probation of between two and five years. It may subsequently be reduced to the minimum or prolonged to the maximum before its expiration. The court may impose conditions on the convicted person (section 56b), and may issue instructions to the convicted person for the duration of his period of probation (section 56c) or place the convicted person under the supervision of a probationary officer (section 56d). According to section 56e, such decisions may be taken or amended at a later stage.

As regards the revocation of a suspension, section 56f of the Penal Code provides inter alia that

“1. The court shall revoke the suspension of a sentence if the convicted person commits a criminal offence during the period of probation and, thereby, shows that he did not fulfil the expectations upon which the suspension of the sentence was based

The court shall, however, refrain from revocation when it suffices:

(1.) to impose further conditions or instructions, in particular to place the convicted person under the supervision of a probation officer; or

(2) to prolong the period of probation ...”

Section 154 of the Code of Criminal Procedure provides for the provisional stay of the prosecution in the following terms:

“1. The public prosecutor may decide not to prosecute

(1) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ... ...

Once proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor. ....”

Court decisions other than conviction and sentence may be challenged in proceedings instituted under section 304 of the Code of Criminal Procedure. In such proceedings, the appellate court may order investigations or proceed to own investigations (section 308 (2)).


Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione temporis;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

On 23 August 1939 the Foreign Ministers of the Nazi Germany and the Soviet Union signed a non-aggression treaty (known as the MolotovRibbentrop Pact) which included an additional secret protocol whereby the parties agreed to settle the map of their “spheres of interests” in the event of a future “territorial and political rearrangement” of the then independent countries of Central and Eastern Europe, including Poland. According to the protocol, the eastern part of Polish territory was “to fall to” the Soviet Union.

On 1 September 1939 Germany invaded Poland, starting the Second World War. On 17 September 1939 the Soviet Red Army marched into Polish territory, allegedly acting to protect the Ukrainians and Belarusians living in the eastern part of Poland because the Polish State had collapsed under the German attack and could no longer guarantee the security of its own citizens. The Polish Army did not offer any military resistance. The USSR annexed the territory newly under its control and in November 1939 declared that the 13.5 million Polish citizens who lived there were henceforth Soviet citizens.

In the wake of the Red Army’s advance around 250,000 Polish soldiers, border guards, police officers, prison guards, State officials and other functionaries were detained. After they had been disarmed, about half of them were set free; the others were sent to special prison camps established by the NKVD (People’s Commissariat for Internal Affairs, a predecessor of the KGB) in Kozelsk, Ostashkov and Starobelsk. On 9 October 1939 it was decided that the Polish officer corps should be billeted at the camps in Kozelsk and Starobelsk and the remaining functionaries, including the police officers and prison guards, in Ostashkov.

In early March 1940 Mr Lavrentiy Beria, head of the NKVD, submitted to Joseph Stalin, Secretary General of the USSR Communist Party, a proposal to approve the shooting of Polish prisoners of war on the grounds that they were all “enemies of the Soviet authorities and full of hatred towards the Soviet system”. The proposal specified that the prisoner-of-war camps held 14,736 former Polish officers, officials, landowners, police officers, gendarmes, prison guards, settlers and intelligence officers, and that the prisons in the western regions of Ukraine and Belarus accommodated a further 18,632 former Polish citizens who had been arrested.

On 5 March 1940 the Politburo of the Central Committee of the USSR Communist Party, the highest governing body of the Soviet Union, took the decision to consider “using a special procedure” and employing “capital punishment – shooting” in the case of 14,700 former Polish officers held in the prisoner-of-war (POW) camps, as well as 11,000 members of various counter-revolutionary and espionage organisations, former landowners, industrialists, officials and refugees held in the prisons of western Ukraine and Belarus. The cases were to be examined “without summoning the detainees and without bringing any charges, with no statement concluding the investigation and no bill of indictment”. Examination was delegated to a three-person panel (“troika”) composed of NKVD officials, which operated on the basis of lists of detainees compiled by the regional branches of the NKVD. The decision on the execution of the Polish prisoners was signed by all the members of the Politburo, including Stalin, Voroshilov, Mikoyan, Molotov, Kalinin and Kaganovich.

The killings took place in April and May 1940. Prisoners from the Kozelsk camp were killed at a site near Smolensk, known as the Katyn Forest; those from the Starobelsk camp were shot in the Kharkov NKVD prison and their bodies were buried near the village of Pyatikhatki; the police officers from Ostashkov were killed in the Kalinin (now Tver) NKVD prison and buried in Mednoye. The circumstances of the execution of the prisoners from the prisons in western Ukraine and Belarus have remained unknown to date.

The precise numbers of murdered prisoners were given in a note which Mr Shelepin, Chairman of the State Security Committee (KGB), wrote on 3 March 1959 to Nikita Khrushchev, Secretary General of the USSR Communist Party: “All in all, on the basis of decisions of the Soviet NKVD’s special troika, a total of 21,857 persons were shot, 4,421 of them in Katyn Forest (Smolenskiy district), 3,820 in the Starobelsk camp near Kharkov, 6,311 in the Ostashkov camp (Kalininskiy district) and 7,305 in other camps and prisons in western Ukraine and Belarus”.

In 1942 and 1943, first Polish railroad workers and then the German Army discovered mass burials near Katyn Forest. An international commission consisting of twelve forensic experts and their support staff from Belgium, Bulgaria, Croatia, Denmark, Finland, France, Hungary, Italy, the Netherlands, Romania, Slovakia and Sweden was set up and conducted the exhumation works from April to June 1943. The remains of 4,243 Polish officers were excavated, of whom 2,730 were identified. The commission concluded that the Soviets had been responsible for the massacre.

The Soviet authorities responded by putting the blame on the Germans who – according to Moscow – had in the summer of 1941 allegedly taken control of the Polish prisoners and had murdered them. Following the liberation of the Smolensk district by the Red Army in September 1943, the NKVD set up a special commission chaired by Mr Burdenko which purported to collect evidence of German responsibility for the killing of the Polish officers. In its communiqué of 22 January 1944, the commission announced that the Polish prisoners had been executed by the Germans in the autumn of 1941.

On 14 February 1946, in the course of the trial of German war criminals before the Nuremberg Military Tribunal, the Soviet prosecutor cited the Burdenko commission’s report in seeking to charge the German forces with the shooting of up to 11,000 Polish prisoners in the autumn of 1941. The charge was dismissed by the US and British judges for lack of evidence.

On 3 March 1959 Mr Shelepin wrote the above-mentioned note to Mr Khrushchev, recommending “the destruction of all the [21,857] records on the persons shot in 1940 in the ... operation... [T]he reports of the meetings of the NKVD USSR troika that sentenced those persons to be shot, and also the documents on execution of that decision, could be preserved.”

The remaining documents were put in a special file, known as “package no. 1”, and sealed. In Soviet times, only the Secretary General of the USSR Communist Party had the right of access to the file. On 28 April 2010 its contents were officially made public on the website of the Russian State Archives Service (rusarchives.ru). The file contained the following historical documents: Mr Beria’s note of 5 March 1940, the Politburo’s decision of the same date, the pages removed from the minutes of the Politburo’s meeting and Mr Shelepin’s note of 3 March 1959.

The first applicant, Mr Jerzy-Roman Janowiec, was born in 1929. He is the son of Mr Andrzej Janowiec, born in 1890, who was a lieutenant in the Polish Army before the Second World War.

The second applicant, Mr Antoni-Stanisław Trybowski, was born in 1940. He is the grandson of Mr Antoni Nawratil, born in 1883, a lieutenantcolonel in the Polish Army.

Both Mr Andrzej Janowiec and Mr Antoni Nawratil were taken prisoner of war during the Soviet invasion of Poland in September 1939 and sent to the Starobelsk camp in the USSR. Mr Janowiec was listed as no. 3914 among the prisoners in the camp, and Mr Nawratil as no. 2407. They were subsequently transferred to a prison in Kharkov and executed in April 1940.

The first and second applicants, Ms Witomiła Wołk-Jezierska and Ms Ojcumiła Wołk, were born respectively in 1940 and 1917. They are the daughter and wife of Mr Wincenty Wołk, born in 1909, who was a lieutenant in a heavy artillery unit of the Polish Army before the Second World War. He was taken prisoner of war by the Red Army in the night of 19 September 1939 and held in Kozelsk special camp (listed in position 3 on NKVD dispatching list 052/3 04.1940). He was killed on 30 April 1940 and buried in Katyn. His body was identified during the 1943 exhumation (no. 2564).

The third applicant, Ms Wanda Rodowicz, was born in 1938. She is the granddaughter of Mr Stanisław Rodowicz, born in 1883, who was a reserve officer in the Polish Army. He was taken prisoner of war by the Red Army at the Hungarian border on around 20 September 1939 and held in Kozelsk special camp (listed in position 94 on list 017/2). He was killed and buried in Katyn. His body was identified during the 1943 exhumation (no. 970).

The fourth applicant, Ms Halina Michalska, was born in 1929. She is the daughter of Mr Stanisław Uziembło, born in 1889. An officer of the Polish Army, Mr Uziembło was taken POW by the Soviets near Białystok, Poland, and detained in the special NKVD camp at Starobelsk (pos. 3400). He was presumed killed in Kharkov and buried at Pyatikhatki near Kharkov (now Ukraine).

The fifth applicant, Mr Artur Tomaszewski, was born in 1933. He is the son of Mr Szymon Tomaszewski, born in 1900. The fifth applicant’s father, a commander of the police station at the Polish-Soviet border in Kobylia, was arrested there by Soviet troops and taken to the special NKVD camp at Ostashkov (position 5 on list 045/3). He was killed in Tver and buried in Mednoye.

The sixth applicant, Mr Jerzy Lech Wielebnowski, was born in 1930. His father, Mr Aleksander Wielebnowski, born in 1897, was a police officer working in Luck in eastern Poland. In October 1939 he was arrested by Soviet troops and placed in the Ostashkov camp (position 10 on list 033/2). He was killed in Tver and buried in Mednoye.

The seventh applicant, Mr Gustaw Erchard, was born in 1935. His father, Mr Stefan Erchard, born in 1900, was headmaster of a primary school in Rudka, Poland. He was arrested by the Soviets and detained at the Starobelsk camp (pos. 3869). He was presumed killed in Kharkov and buried in Pyatikhatki.

The eighth and ninth applicants, Mr Jerzy Karol Malewicz and Mr Krzysztof Jan Malewicz, born respectively in 1928 and 1931, are the children of Mr Stanisław August Malewicz. Their father was born in 1889 and served as a doctor in the Polish Army. He was taken prisoner of war at Równe, Poland, and held at the Starobelsk camp (pos. 2219). He was presumed killed in Kharkov and buried in Pyatikhatki.

The tenth and eleventh applicants, Ms Krystyna Krzyszkowiak and Ms Irena Erchard, born respectively in 1940 and 1936, are the daughters of Mr Michał Adamczyk. Born in 1903, he was the commander of the Sarnaki police station. He was arrested by the Soviets, detained at the Ostashkov camp (position 5 on list 037/2), killed in Tver and buried in Mednoye.

The twelfth applicant, Ms Krystyna Mieszczankowska, born in 1930, is the daughter of Mr Stanisław Mielecki. Her father, a Polish officer, was born in 1895 and was held at the Kozelsk camp after his arrest by Soviet troops. He was killed and buried in Katyn; his body was identified during the 1943 exhumation.

The thirteenth applicant, Mr Krzysztof Romanowski, born in 1953, is a nephew of Mr Ryszard Żołędziowski. Mr Żołędziowski, born in 1887, was held at the Starobelsk camp (pos. 1151) and was presumed killed in Kharkov and buried in Pyatikhatki. A list of Starobelsk prisoners which included his name was retrieved from the coat pocket of a Polish officer whose remains, with gunshot wounds to the head, were excavated during a joint Polish-Russian exhumation near Kharkov in 1991.

On 13 April 1990, during a visit by Polish President Mr Jaruzelski to Moscow, the official news agency of the USSR published a communiqué which affirmed, on the basis of newly disclosed archive materials, that “Beria, Merkulov and their subordinates bore direct responsibility for the crime committed in Katyn Forest”.

On 22 March 1990 a district prosecutor’s office in Kharkov opened, on its own initiative, a criminal investigation following the discovery of mass graves of Polish citizens in the city’s wooded park. On 6 June 1990 the Kalinin (Tver) prosecutor’s office instituted a criminal case into “the disappearance” in May 1940 of the Polish prisoners of war held in the NKVD camp in Ostashkov. On 27 September 1990 the Chief Military Prosecutor’s Office joined the two criminal cases under the number 159 and assigned it to a group of military prosecutors.

In the summer and autumn of 1991, Polish and Russian specialists carried out exhumations of corpses at the mass burial sites in Kharkov, Mednoye and Katyn. They also reviewed the archive documents relating to the Katyn massacre, interviewed no fewer than forty witnesses and commissioned medical, graphology and other forensic examinations.

On 14 October 1992 Russian President Yeltsin revealed that the Polish officers had been sentenced to death by Stalin and the Politburo of the USSR Communist Party. The director of the Russian State Archives handed over to the Polish authorities a number of documents, including the decision of 5 March 1940. During an official visit to Poland on 25 August 1993, President Yeltsin paid tribute to the victims in front of the Katyn Cross in Warsaw.

In late May 1995 prosecutors from Belarus, Poland, Russia and Ukraine held a working meeting in Warsaw, during which they reviewed the progress of the investigation in case no. 159. The participants agreed that the Russian prosecutors would ask their Belarusian and Ukrainian counterparts for legal assistance to determine the circumstances of the execution in 1940 of 7,305 Polish citizens who had been arrested.

On 13 May 1997 the Belarusian authorities informed their Russian counterparts that they had not been able to uncover any documents relating to the execution of Polish prisoners of war in 1940. In 2002 the Ukrainian authorities produced documents concerning the transfer of Polish prisoners from the Starobelsk camp to the NKVD prison in the Kharkov Region.

In 2001, 2002 and 2004 the President of the Polish Institute for National Remembrance (INR) repeatedly, but unsuccessfully, contacted the Russian Chief Military Prosecutor’s Office with a view to obtaining access to the investigation files.

On 21 September 2004 the Chief Military Prosecutor’s Office decided to discontinue criminal case no. 159, apparently on the ground that the persons allegedly responsible for the crime had already died. On 22 December 2004 the Interagency Commission for the Protection of State Secrets classified thirty-six volumes of the case file – out of a total of 183 volumes – as “top secret” and a further eight volumes as “for internal use only”. The decision to discontinue the investigation was given “top-secret” classification and its existence was only revealed on 11 March 2005 at a press conference given by the Chief Military Prosecutor.

Further to a request from the Court for a copy of the decision of 21 September 2004, the Russian Government refused to produce it, citing its secrecy classification. However, it transpired from their submissions that the investigation had been discontinued on the basis of Article 24 § 4 (1) of the Code of Criminal Procedure in connection with the suspects’ death.

From 9 to 21 October 2005 three prosecutors from the INR conducting the investigation into the Katyn massacre and the chief specialist of the Central Commission for the Prosecution of Crimes against the Polish Nation visited Moscow at the invitation of the Chief Military Prosecutor’s Office. They examined the sixty-seven volumes of case no. 159 which were not classified, but were not allowed to make any copies.

On 8 May 2010 the Russian President conveyed to the Speaker of the Polish Parliament sixty-seven volumes of the Katyn investigation files. In total, according to the information submitted by the Polish Government, the Russian authorities handed over to them certified copies of 148 volumes that contained approximately 45,000 pages.

In 2003, Mr Szewczyk – a Polish lawyer retained by the applicant Mr Janowiec and by the applicant Mr Trybowski’s mother – applied to the Prosecutor General of the Russian Federation with a request to be provided with documents concerning Mr Andrzej Janowiec, Mr Antoni Nawratil and a third person.

On 23 June 2003 the Prosecutor General’s Office replied to counsel that the Chief Military Prosecutor’s Office was investigating a criminal case concerning the execution of Polish officers in 1940. In 1991 the investigation had recovered some two hundred bodies in the Kharkov, Tver and Smolensk regions and identified some of them, including Mr Nawratil and Mr Janowiec. Their names had also been found on the list of prisoners in the Starobelsk camp. Any further documents concerning them had been previously destroyed.

On 4 December 2004 Mr Szewczyk formally requested the Chief Military Prosecutor’s Office to recognise Mr Janowiec’s and Mr Trybowski’s rights as relatives of the executed Polish officers and to provide them with copies of the procedural documents and also of personal documents relating to Mr Antoni Nawratil and Mr Andrzej Janowiec.

On 10 February 2005 the Chief Military Prosecutor’s Office replied that Mr Antoni Nawratil and Mr Andrzej Janowiec were listed among the prisoners of the Starobelsk camp who had been executed in 1940 by the NKVD and buried near Kharkov. No further materials concerning those individuals were available. Copies of the procedural documents could only be given to the officially recognised victims or their representatives.

Subsequently the applicants Mr Janowiec and Mr Trybowski retained Russian counsel, Mr V. Bushuev. On 9 October 2006 he asked the Chief Military Prosecutor’s Office for permission to study the case file.

On 7 November 2006 the Chief Military Prosecutor’s Office replied to Mr Bushuev that he would not be allowed to access the file because his clients had not been formally recognised as victims in the case.

Counsel lodged a judicial appeal against the Chief Military Prosecutor’s Office’s refusals of 10 February 2005 and 7 November 2006. He submitted, in particular, that the status as a victim of a criminal offence should be determined by reference to the factual circumstances, such as whether or not the individual concerned had sustained damage as a result of the offence. From that perspective, the investigator’s decision to recognise someone as a victim should be viewed as formal acknowledgement of such factual circumstances. Counsel sought to have the applicants Mr Janowiec and Mr Trybowski recognised as victims and to be granted access to the case file.

On 18 April 2007 the Military Court of the Moscow Command rejected the complaint. It noted that, although Mr Antoni Nawratil and Mr Andrzej Janowiec had been listed among the prisoners in the Starobelsk camp, their remains had not been among those identified by the investigation. Accordingly, in the Military Court’s view, there were no legal grounds to assume that they had died as a result of the offence in question. As to the materials in the case file, the Military Court observed that the decision to discontinue the criminal proceedings dated 21 September 2004 had been declared a State secret and, for that reason, foreign nationals could not have access to it.

On 24 May 2007 the Supreme Court of the Russian Federation upheld that judgment on appeal, reproducing verbatim the reasoning of the Military Court.

On 20 August 2008 counsel for the applicants filed a judicial appeal against the prosecutor’s decision of 21 September 2004. They submitted that the applicants’ relatives had been among the imprisoned Polish officers whose execution had been ordered by the Politburo of the USSR Communist Party on 5 March 1940. However, the applicants had not been granted victim status in case no. 159 and could not file motions and petitions, have access to the file materials or receive copies of the decisions. Counsel also claimed that the investigation had not been effective because no attempt had been made to take biological samples from the applicants in order to identify the exhumed human remains.

On 14 October 2008 the Military Court of the Moscow Command dismissed the appeal. It found that in 1943 the International Commission and the Technical Commission of the Polish Red Cross had excavated the remains and then reburied them, without identifying the bodies or counting them. A subsequent excavation in 1991 had only identified 22 persons and the applicants’ relatives had not been among those identified. The Military Court acknowledged that the names of the applicants’ relatives had been included in the NKVD lists for the Ostashkov, Starobelsk and Kozelsk camps; however, “the ‘Katyn’ investigation ... did not establish the fate of the said individuals.” As their bodies had not been identified, there was no proof that the applicants’ relatives had lost their lives as a result of the crime of abuse of power (Article 193.17 of the 1926 Soviet Criminal Code) referred to in the decision of 21 September 2004. Accordingly, there was no basis for granting victim status to the applicants under Article 42 of the Code of Criminal Procedure. Moreover, classified materials could not be made accessible to “representatives of foreign States”.

Counsel submitted a statement of appeal in which they pointed out that the lack of information about the fate of the applicants’ relatives had been the result of an ineffective investigation. The twenty-two persons had been identified only on the basis of the military identity tags found at the burial places and the investigators had not undertaken any measures or commissioned any forensic examination to identify the exhumed remains. Furthermore, it was a publicly known fact that the 1943 excavation had uncovered the remains of 4,243 people, of whom 2,730 individuals had been identified. Among those identified were three persons whose relatives had been claimants in the proceedings. The granting of victim status to the claimants would have allowed the identification of the remains with the use of genetic methods. Finally, counsel stressed that the Katyn criminal case file did not contain any information supporting the conclusion that any of the Polish officers taken from the NKVD camps had survived or died of natural causes.

On 29 January 2009 the Supreme Court of the Russian Federation upheld the judgment of 14 October 2008 in its entirety. It repeated verbatim extensive passages of the findings of the Moscow Military Court, but also added that the decision of 21 September 2004 could not be quashed because the prescription period had expired and because the proceedings in respect of certain suspects had been discontinued on “rehabilitation grounds”.

On 26 March 2008 Memorial, a Russian human-rights non-governmental organisation, lodged an application with the Chief Military Prosecutor’s office to declassify the decision of 21 September 2004. In its answer dated 22 April 2008, the prosecutor’s office informed Memorial that it was not competent to set aside the classified status which had been approved on 22 December 2004 by the Interagency Commission for the Protection of State Secrets (“the Commission”).

On 12 March 2009 Memorial applied to the Commission for declassification of the decision of 21 September 2004, claiming that the classification of the materials of the Katyn investigation was morally and legally unacceptable and that it had also been in breach of section 7 of the State Secrets Act which precluded classification of any information about violations of human rights. By letter of 27 August 2009, the Commission replied to Memorial that their application had been examined and rejected, without providing further details.

Memorial challenged the Commission’s refusal before the Moscow City Court. At the hearing on 13 July 2010 the court read out the Commission’s letter of 25 June 2010 addressed to the presiding judge. The letter stated that the Commission had not made any decision on 22 December 2004 to classify the decision of the Chief Military Prosecutor’s office from 21 September 2004.

To ascertain which authority was actually responsible for the classification of the decision of 21 September 2004, the court summoned representatives of the Commission and of the Chief Military Prosecutor’s office to the following hearing. That hearing was held in camera and the participants were forbidden to reveal any information from the hearing. However, it became publicly known that Memorial requested the City Court to summon representatives of the Federal Security Service.

On 2 November 2010 the Moscow City Court rejected, following another in camera sitting, Memorial’s application to declassify the decision of 21 September 2004. A copy of the City Court’s decision was not made available to the Court.

Most applicants repeatedly applied to different Russian authorities, first and foremost the Chief Military Prosecutor’s Office, for information on the Katyn criminal investigation and for the rehabilitation of their relatives.

By a letter of 21 April 1998 sent in response to a rehabilitation request by Ms Ojcumiła Wołk, the Chief Military Prosecutor’s Office confirmed that her husband Mr Wincenty Wołk had been held as a prisoner of war in the Kozelsk camp and had then been executed, along with other prisoners, in the spring of 1940. It was stated that her application for rehabilitation would only be considered after the conclusion of the criminal investigation.

Following the discontinuation of the investigation in case no. 159, on 25 October 2005 Ms Witomiła Wołk-Jezierska asked the Chief Military Prosecutor’s Office for a copy of the decision on discontinuation of the investigation. By letter of 23 November 2005 the prosecutor’s office refused to provide it, citing its top-secret classification. On 8 December 2005 the Polish Embassy in Moscow asked the prosecutor’s office for an explanation concerning the rehabilitation of Mr Wołk. In a letter of 18 January 2006, the prosecutor’s office expressed the view that there was no legal basis for the rehabilitation of Mr Wołk or the other Polish citizens because the investigation had not determined which provision of the 1926 Criminal Code had been the basis for their repression. A similarly worded letter of 12 February 2007 refused a further request to the same effect by Ms Wołk.

On 13 March 2008 the Chief Military Prosecutor’s Office rejected a request for rehabilitation submitted by counsel on behalf of all the applicants. The prosecutor stated that it was not possible to determine the legal basis for the repression against Polish citizens in 1940. Despite the existence of some documents stating that the applicants’ relatives had been transferred from the NKVD camps at Ostakhkov, Kozelsk and Starobelsk to Kalinin, Smolensk and Kharkov, the joint efforts by Belarusian, Polish, Russian and Ukrainian investigators had not uncovered any criminal files or other documents relating to their prosecution in 1940. In the absence of such files it was not possible to decide whether the Rehabilitation Act would be applicable. Furthermore, the prosecutor stated that the remains of the applicants’ relatives had not been discovered among the human remains found during the exhumation works.

Counsel lodged a judicial appeal against the prosecutor’s refusal.

After several rounds of judicial proceedings, on 24 October 2008 the Khamovnicheskiy District Court of Moscow dismissed the appeal. While the court confirmed that the names of the applicants’ relatives had featured on the NKVD lists of prisoners, it pointed out that only twenty bodies had been identified as a result of the exhumations conducted in the context of case no. 159 and that the applicants’ relatives had not been among those identified. The court further found that there was no reason to assume that the ten Polish prisoners of war (the applicants’ relatives) had actually been killed, and that Russian counsel had no legal interest in the rehabilitation of Polish citizens.

On 25 November 2008 the Moscow City Court rejected, in a summary fashion, an appeal against the District Court’s judgment.

On 26 November 2010 the State Duma, the lower chamber of the Russian Parliament, adopted a statement entitled “On the Katyn tragedy and its victims” which read, in particular, as follows:

“Seventy years ago, thousands of Polish citizens held in the prisoner-of-war camps of the NKVD of the USSR and in prisons in the western regions of the Ukrainian SSR and Belarusian SSR were shot dead.

The official Soviet propaganda attributed responsibility for this atrocity, which has been given the collective name of the Katyn tragedy, to Nazi criminals... In the early 1990s our country made great strides towards the establishment of the truth about the Katyn tragedy. It was recognised that the mass extermination of Polish citizens on USSR territory during the Second World War had been an arbitrary act by the totalitarian State...

The published materials that have been kept for many years in secret archives not only demonstrate the scale of this terrible tragedy but also attest to the fact that the Katyn crime was carried out on the direct orders of Stalin and other Soviet leaders...

Copies of many documents which had been kept in the closed archives of the Politburo of the Communist Party of the Soviet Union have already been handed over to the Polish side. The members of the State Duma believe that this work must be carried on. It is necessary to continue studying the archives, verifying the lists of victims, restoring the good names of those who perished in Katyn and other places, and uncovering the circumstances of the tragedy...”

The Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907), to which the Republic of Poland but not the USSR was a party, provided as follows:

“Art. 4. Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.

They must be humanely treated.

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden –

(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion...

Art. 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”

The Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929) provided as follows:

“Art. 2. Prisoners of war are in the power of the hostile Government, but not of the individuals or formation which captured them.

They shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity.

Measures of reprisal against them are forbidden.

Art. 61. No prisoner of war shall be sentenced without being given the opportunity to defend himself.

No prisoner shall be compelled to admit that he is guilty of the offence of which he is accused.

Art. 63. A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power.”

The Charter (Statute) of the International Military Tribunal (Nuremberg Tribunal), set up in pursuance of the agreement signed on 8 August 1945 by the Governments of the USA, France, the United Kingdom and the USSR, contained the following definition of crimes in Article 6:

“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) war crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

The definition was subsequently codified as Principle VI in the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, formulated by the International Law Commission in 1950 under United Nations General Assembly Resolution 177 (II) and affirmed by the General Assembly.

The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968), to which the Russian Federation is a party, provides in particular as follows:

“No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations ...

(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations ...”

“The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.”

The Vienna Convention on the Law of Treaties (23 May 1969), to which the Russian Federation is a party, provides as follows:

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ...”

“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”

The Human Rights Committee’s General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004 (2187th meeting), reads as follows:

“4. The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in Article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ ...”

Article 7 of the Covenant, to which the Russian Federation is a party, reads as follows:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

At its meeting on 3 April 2003 the Human Rights Committee, established under Article 28 of the Covenant, expressed the following views upon consideration of communication No. 886/1999, submitted on behalf of Ms Natalia Schedko and Mr Anton Bondarenko against Belarus:

“10.2 The Committee notes that the author’s claim that her family was informed of neither the date, nor the hour, nor the place of her son’s execution, nor of the exact place of her son’s subsequent burial, has remained unchallenged. In the absence of any challenge to this claim by the State party, and any other pertinent information from the State party on the practice of execution of capital sentences, due weight must be given to the author’s allegation. The Committee understands the continued anguish and mental stress caused to the author, as the mother of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. The complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the Covenant.”

At its meeting on 28 March 2006 the Human Rights Committee expressed the following views upon consideration of communication No. 1159/2003, submitted on behalf of Mariam, Philippe, Auguste and Thomas Sankara against Burkina-Faso:

“6.2 The Committee noted the State party’s arguments concerning the inadmissibility of the communication ratione temporis. Having also noted the authors’ arguments, the Committee considered that a distinction should be drawn between the complaint relating to Mr. Thomas Sankara and the complaint concerning Ms. Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara’s death certificate of 17 January 1988, stating that he died of natural causes - contrary to the facts, which are public knowledge and confirmed by the State party ... - and the authorities’ failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. Sankara and her children...

12.2 Concerning the alleged violation of article 7, the Committee understands the anguish and psychological pressure which Ms. Sankara and her sons, the family of a man killed in disputed circumstances, have suffered and continue to suffer because they still do not know the circumstances surrounding the death of Thomas Sankara, or the precise location where his remains were officially buried. Thomas Sankara’s family have the right to know the circumstances of his death, and the Committee points out that any complaint relating to acts prohibited under article 7 of the Covenant must be investigated rapidly and impartially by the competent authorities. In addition, the Committee notes, as it did during its deliberations on admissibility, the failure to correct Thomas Sankara’s death certificate of 17 January 1988, which records a natural death contrary to the publicly known facts, which have been confirmed by the State party. The Committee considers that the refusal to conduct an investigation into the death of Thomas Sankara, the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. Sankara and her sons, in breach of article 7 of the Covenant...”

Article 24 sets out the grounds for discontinuation of criminal proceedings. Paragraph 1 (4) specifies that the proceedings are to be discontinued, in particular, in the event of the suspect or defendant’s death.

Article 42 defines a “victim” as an individual who has sustained physical, pecuniary or non-pecuniary damage as the result of a crime. The decision to recognise the individual as a “victim” must be made by the examiner, investigator, prosecutor or court.

According to the preamble, the purpose of the Rehabilitation Act is the rehabilitation of all victims of political repression who were prosecuted on the territory of the Russian Federation after 7 November 1917, and restoration of their civil rights. Political repression is defined as any measure of restraint, including a deprivation of life, which was imposed by the State for political motives (section 1). Section 3 describes the categories of persons who are eligible for rehabilitation; section 4 contains the list of criminal offences, such as high treason, espionage, violence against prisoners of war, murder, robbery, war crimes, crimes against humanity, in respect of which no rehabilitation is allowed.

Section 7 of the State Secrets Act (Law no. 5485-I of 21 July 1993) contains a list of information which may not be declared a State secret or classified. The list includes in particular information about violations of rights and freedoms of individuals and citizens and information on unlawful actions by the State authorities or officials.

On 2 August 1997 the Government adopted the Regulation on preparing State secret information for transfer to foreign states and international organisations (no. 973). It provides that a decision on transferring such information may be made by the Russian Government on the basis of a report prepared by the Inter-agency Commission on the Protection of State Secrets (§ 3). The recipient party must undertake an obligation to protect the classified information by way of entering into an international treaty which would establish, among other matters, the procedure for transferring information, the confidentiality clause and the dispute resolution procedure (§ 4).

Chapter 34 contains a list of crimes against peace and security of humankind. Article 356 prohibits in particular “cruel treatment of prisoners of war or civilians”, an offence punishable by up to twenty years’ imprisonment.

Article 78 § 5 stipulates that the offences defined in Articles 353 (War), 356 (Prohibited means of war), 357 (Genocide) and 358 (Ecocide) are imprescriptible.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On the evening of 14 May 1994 the applicant, at that time aged fourteen, went out with several friends in the centre of Vidin to play electronic games. On the way back he left the main group to see a classmate of his and her sister to their door. After he had walked the girls home at about 9.40 p.m., he ran back to rejoin his friends. The applicant was wearing shorts, a yellow teeshirt and a green sleeveless jacket.

On the same evening, some time after 9.00 p.m., the Vidin police received a report that an icecream booth in the centre of the town had been vandalised by two individuals. A police patrol was dispatched to the scene and arrested the first of them, but the second managed to get away. All patrols in the area were put on alert and ordered to track him down. The description given over the police radio was of a man wearing short pants and a lightcoloured teeshirt.

At that time Mr G.G. and Mr V.E., both trainee police officers, were in the area of the incident, patrolling in Mr V.E.'s private car. Although they were supposed to be accompanied by a supervising police officer, chief sergeant A., they were patrolling by themselves, as sergeant A. had been dispatched elsewhere. Their car was in a street which was not well lit. Seeing the applicant running past the car, they assumed that he was the offender at large. They got out of the car and gave chase. The applicant heard their steps, but, seeing that they had come out of an unmarked rather than a police car, kept on running. It was disputed whether or not Mr G.G. and Mr V.E. had shouted “Stop! Police!” after the applicant. They submitted that they had done so, whereas the applicant and several witnesses stated that they had not heard the officers shouting. The chase continued for about a minute. The applicant ran by a Mr I.P. Shortly afterwards, Mr G.G. caught up with the applicant in front of a beauty parlour and apparently tripped him over. The applicant fell on the ground, face down. Mr G.G. then started hitting the applicant's back and legs with a truncheon and kicking his torso. Soon after that Mr V.E. caught up with them and also started hitting the applicant's back and legs with a truncheon and kicking his torso. The applicant averred that Mr V.E. had sat on his back and had delivered several truncheon blows to his head. The applicant was crying and begging the officers to stop, insisting that he had done nothing wrong. Mr I.P. was an eyewitness to the incident, and so were a Mr P.S. and a Mr V.K.

Shortly afterwards, chief sergeants A.K. and I.G. arrived at the scene. By that time the physical assault on the applicant had stopped. The applicant was lying on the ground and Mr G.G. and Mr V.E. were standing beside him. The applicant's teeshirt was soaked with blood coming from the neck area.

Chief sergeants A.K. and I.G. helped the applicant get into their patrol car. On the way to the hospital they stopped at a fountain and told him to wash the blood off his neck. The applicant told the officers that he felt pain in his legs and in his right lumbar area.

The applicant was admitted to the emergency ward of the Vidin Regional Hospital at 10.01 p.m. Upon his admission he stated that he could not see. His blood pressure was measured to be 70/0. It was found that he had a traumaticlacerated injury on the back of his head. He was also complaining of severe pain in the area of the right kidney. He was taken to the surgical ward and the injury on his head was treated.

From the hospital the applicant was taken to the police station, where he was questioned at about 10.30 p.m. It was established that he had nothing to do with the breaking of the icecream booth. After the questioning an officer took the applicant home. When the applicant's mother saw the state the applicant was in, she asked a friend to drive the applicant and herself back to the emergency ward of the Vidin Regional Hospital. There she was informed that the applicant had already been treated and that there was nothing more the staff could do, as there were no doctors on the ward at that time, only paramedics.

The applicant and his mother then went to the police station to find out why he had been beaten and apprise the police of the names of the eyewitnesses to the incident. They were given the names of the officers who had assaulted the applicant and sometime around midnight left the station and went home.

When the severe pain in the applicant's right lumbar area continued through the night and blood showed up in his urine, a doctor was called in and examined the applicant at 2.10 a.m. on 15 May 1994. He found that the applicant had a reddening of the skin in the groins, parallel traces of blood suffusions and grazes on the calves, three on the left leg and two on the right leg, and a head injury.

At 9.15 a.m. on 15 May 1994 the applicant went once more to the emergency ward of the Vidin Regional Hospital. At 10 a.m. he was admitted to the surgical ward. He was diagnosed as suffering from contusion in the right lumbar area, commotion of the right kidney and haematuria (blood in the urine), and was treated with styptics and antibiotics. He remained in hospital until 28 May 1994.

Two days later, on 30 May 1994, the applicant was urgently admitted to the urology centre of the Medical Academy in Sofia because of macroscopic haematuria (high levels of blood in his urine) and sustained dull pain in his right lumbar area. His right kidney was found to be surrounded by a haematoma and retaining liquid. It was established that his blood pressure was 140/100 because of, among other reasons, the pressure from the haematoma on the kidney. The applicant was treated with spasmolytics, analgesics and antibiotics. The applicant had to be released on 13 June 1994 due to an inhospital infection outbreak.

Throughout the following years the applicant underwent numerous examinations of his right kidney.

On 15 July 1996 the applicant was admitted to the urology ward of the National Institute for Urgent Medical Care “Pirogov”, after complaining from dull pain in his right lumbar area. He was diagnosed as suffering from hydronephrosis of the right kidney (pathological chronic enlargement of the collecting channels of a kidney, leading to the compression and the eventual destruction of kidney tissue and the deterioration of the kidney function). On 22 July 1996 he underwent surgery and his right kidney was removed. On 9 August 1996 he was released from hospital.

On 14 May 1994 the applicant's mother complained about his beating to the Vidin Regional Prosecutor's Office. On 16 May 1994 the applicant's father also lodged a complaint with the Vidin District Prosecutor's Office.

On 21 June 1994 the Pleven Military Prosecutor's Office, which was competent to deal with offences allegedly committed by police officers, opened criminal proceedings against Mr G.G. and Mr V.E.

The investigator to whom the case was assigned conducted a series of interviews on 27, 28 and 29 June 1994. He questioned the applicant, Mr I.P., Mr V.K. and several other witnesses. On 16 and 17 August 1994 the investigator questioned chief sergeant A.K. and two other police officers.

On 17 August 1994 Mr G.G. and Mr V.E. were charged and questioned. During questioning Mr G.G. stated that he had tripped the applicant but had not subjected him to any other violence. Mr V.E. stated that he had only hit the applicant once with a truncheon on the legs, but had not subjected him to any other violence.

On an unspecified date the investigator ordered a medical expert report to determine the extent of the applicant's injuries. The report was drawn up by Dr A.I., head of the forensic medicine ward of the Vidin Regional Hospital. She found that the applicant had had a wound on his head, haematomas and grazing on his legs, contusion of the right lumbar area and haematuria. She concluded that the beating had caused the applicant a shortterm lifethreatening health disorder, due to a traumatic-haemorrhagic shock resulting from the contusion of the right kidney and a massive haematoma around the kidney.

On 6 July 1995 the applicant's mother, acting for the applicant, who was still underage, submitted a civil claim against Mr G.G. and Mr V.E. She sought 400,000 old Bulgarian levs (BGL) on the applicant's behalf.

Another series of interviews was conducted on 20 September 1995 by another investigator at the Pleven Regional Military Prosecutor's Office. Mr V.K. and Mr P.S. were questioned.

On 3 November 1995 the Pleven Military Prosecutor's Office submitted to the Pleven Military Court an indictment against Mr G.G. and Mr V.E., charging them with causing intermediate bodily harm to the applicant. On 6 November 1995 the case was set down for hearing.

The first hearing took place on 12 February 1996. Mr G.G. and Mr V.E. were represented by Mr L.I., a former military prosecutorgeneral. The applicant, who was also represented by counsel, amended his civil claim, seeking interest as from the date of the beating and naming the Vidin Regional Directorate of Internal Affairs as a third defendant. The court heard Mr G.G., Mr V.E., the applicant, the applicant's mother, chief sergeant A.K., several other police officers, Mr I.P., Mr V.K. and Mr P.S. Noting that the statements of the accused differed from those of the eyewitnesses, the court carried out a confrontation. Finally, the court heard Dr A.I., the medical expert who had given an opinion about the extent of the applicant's injuries. The accused disputed Dr A.I.'s conclusions and requested a new medical report to be drawn up by three experts, excluding Dr A.I. The court acceded to the request and ordered a new expert report, to be drawn up by three medical experts.

In their report the three medical experts (Dr P.L., head of the forensic medicine and ethics department of the High Institute of Medicine in Pleven, Dr V.G., head of department at the Urology Clinic of the Institute, and Dr K.P., senior assistant at the anaesthesiology and intensive care departments of the Institute) concluded that as a result of the 14 May 1994 incident the applicant had suffered a contusion of the right kidney, haematomas and grazing of the two legs, a wound on the head and a reddening in the right part of the groins. Unlike Dr A.I., they concluded that the traumaticneurogenic shock suffered by the applicant had not become truly lifethreatening. They also found that before the incident the applicant had been suffering from a congenital kidney anomaly, which had been the reason for the applicant's haematuria after the incident. In the experts' view, the applicant's kidney injury had not been lifethreatening and had had no longlasting effects on his health. The beating had caused the applicant only a temporary (two or threeweek) health problem.

The next hearing took place on 19 June 1996. The court heard the three medical experts, who stated that they adhered to the conclusions given in their report. The prosecutor noted that the first report, drawn up by Dr A.I., and the second report, drawn up by the three medical experts, substantially differed on the issue of the extent of the injuries suffered by the applicant. He therefore requested an additional expert report, to be drawn up by five experts, including Dr A.I. The court acceded to the request.

On 20 May 1997 the report of the five medical experts was ready. They concluded that the applicant had suffered a traumaticneurogenic shock, which, however, had not deteriorated and had not become lifethreatening. They also concluded that before the incident the applicant had been suffering from a congenital kidney anomaly, which had been the reason for his haematuria after the incident. In the experts' view, the applicant's kidney injury had not become lifethreatening. As regards the later surgical removal of the kidney and its potential causal link with the beating, the experts were of the opinion that, in view of the long time-span between the beating (14 May 1994) and the surgery (22 July 1996) and the nature of the injury, it could not be concluded that the removal of the kidney had been a direct and proximate consequence of the beating. Additionally, the applicant's congenital kidney anomaly had been prone to natural deterioration and could have led on its own to a decline in the kidney function, which was what had made the removal necessary. It could not be categorically established that the beating had not contributed to the need for the removal of the kidney, but the main factor had been the congenital anomaly.

After several adjournments due to difficulties with the attendance of all five medical experts, the Pleven Military Court listed a hearing for 26 January 1998. At that hearing the court heard all five medical experts. Four of them stated that they adhered to the conclusions made in their report. By contrast, Dr A.I. stated that she did not agree with the conclusions of the report and that she still maintained the opinion expressed in her initial report. The applicant presented Xrays of his kidneys and, after examining them, the four experts stated that they still adhered to the conclusions reached in their report. The applicant increased his civil claim to BGL 10,000,000. In his concluding argument the public prosecutor stated that, in view of the experts' opinion, he did not pursue the charge of intermediate bodily harm, and urged the court to characterise the officers' act as inflicting minor bodily harm.

In a judgment of 26 January 1998 the Pleven Military Court found Mr G.G. and Mr V.E. guilty of inflicting the applicant minor bodily harm and not guilty of inflicting him intermediate bodily harm. It sentenced them to five months' imprisonment, suspended for three years. The court also partially allowed the applicant's claim for damages, awarding him BGL 300,000, to be paid jointly and severally by the two officers and the vicariously liable Regional Directorate of Internal Affairs in Vidin.

The court found that Mr G.G. had tripped the applicant and that the applicant had fallen on the ground face down. After that Mr G.G. had delivered a number of blows on the applicant's back and legs with a truncheon and had kicked several times his torso. When Mr V.E. had arrived he had also hit the applicant's back and legs with a truncheon and had kicked his torso. During the beating the applicant had told the two accused that he had done nothing wrong. The court stated that it did not find the accused's averment that they had not beaten the applicant persuasive, because it was disproved by the testimony of two eyewitnesses – Mr I.P. and Mr V.K. – and of the applicant himself. The court considered that the eyewitnesses' and the applicant's testimony was consistent and reliable.

The court also examined the officers' assertion that they had acted lawfully, in a situation calling for the arrest of a suspect, and that they had inflicted bodily harm in their efforts to subdue the applicant. In that connection, it noted that the accused were substantially stronger physically than the applicant, that Mr I.P., Mr V.K. and chief sergeant A.K. had testified that the applicant had not tried to resist, and that at the time of the incident the applicant had been fourteen years old. The court accordingly rejected the assertion.

As regards the extent of the applicant's injuries, the court held that the opinion of the four medical experts, which appeared objective, impartial, consistent, wellreasoned and in conformity with the medical documents in the case file, should be given more credit than that of Dr A.I. In the court's view, the four experts' arguments confuted her opinion. The court therefore held that as a result of the beating the applicant had suffered a temporary (two or threeweek) nonlifethreatening health disorder, which amounted to minor bodily harm within the meaning of Articles 128 to 130 of the Criminal Code of 1968 (“the CC”).

Finally, the court rejected Mr G.G. and Mr V.E.'s defence under Article 12a of the CC that they had only used the force necessary to arrest a presumed offender, injuring the applicant in the process of subduing his resistance. The court acknowledged the great disparity in terms of physical strength between the two policemen and the applicant. Moreover, the other witnesses had clearly indicated that the applicant had not put up any resistance requiring the use of force. Finally, at the time of the incident the applicant had been only fourteen years old and his age was visible from his physical features.

Mr G.G. and Mr V.E. appealed, arguing that their actions had not constituted an offence, as they had acted within the bounds allowed by the National Police Act of 1993. In the alternative, they submitted that the sentences imposed on them were too harsh. The applicant also appealed, arguing that the amount of damages awarded to him was too low.

The Military Court of Appeals held a hearing on 8 June 1998. The officers were represented by their counsel, Mr L.I. The applicant was represented by two lawyers.

In a judgment of 8 June 1998 the Military Court of Appeals upheld the Pleven Military Court's judgment. It held that the manner in which the applicant's injuries had been caused had been correctly established by the lower court. There existed direct evidence that the applicant had been subjected to violence even after he had been brought to the ground and had not had the possibility to resist or run away. Even if the officers had misidentified the applicant, this had not legally justified the physical assault that they had inflicted on him. Moreover, the use of force had continued after the applicant had been subdued. There existed a direct causal link between the violence and the injuries sustained, as confirmed by all of the medical expert reports. The court went on to state that it did not agree with the lower court's conclusion as regards the extent of the applicant's injury. To exclude the causal link between the surgical removal of the applicant's right kidney and the incident of 14 May 1994, the Pleven Military Court had relied on the conclusion of four medical experts and had rejected as illogical the conclusion of Dr A.I. However, that court had disregarded that conclusion on purely formal grounds, without discussing its main points. It was unclear whether the opinion of the four experts was in fact based on the raw medical data, which in turn cast doubt on its correctness. The court concluded that if the lower court had taken into account these considerations, it could have made a different finding as to the reason for the surgical removal of the applicant's right kidney. However, since no appeal had been lodged by the prosecution, the court only noted this factual mistake and did not correct it in its judgment by holding that the applicant had suffered intermediate bodily harm, as that would worsen the accused's position.

Mr G.G. and Mr V.E. appealed on points of law to the Supreme Court of Cassation. The applicant also appealed, requesting an increase in the amount of damages awarded.

The Supreme Court of Cassation held a hearing on 17 September 1998. It heard the applicant's and the officers' oral argument and accepted their written pleadings for consideration. The prosecutor present at the hearing submitted that both appeals were groundless and should be dismissed.

In a final judgment of 11 November 1998 the Supreme Court of Cassation reversed Mr G.G.'s and Mr V.E.'s convictions and acquitted them. It also dismissed the applicant's civil claim. Its opinion read as follows:

“...The courts below arrived at the erroneous conclusion that the two [officers]' act had been wrongful and contrary to Article 131 [§ 1] (2) of the CC...

This is so for the following reasons:

The [officers'] act does not amount to an offence, as they acted under the prerequisites of section 40(1), points 1 and 2 of the National Police Act [of 1993] and within the bounds set by this Act on the use of physical force, namely information about the perpetration of a publicly prosecutable offence in the centre of Vidin, which was broadcast over the [police] radio station and was received by [Mr G.G.] and [Mr V.E.]. Moreover, the description of the perpetrator who had fled from the crime scene coincided with the appearance of the [applicant], and for this reason the ... officers mistook him for the wanted offender. What is more, the [applicant] did not obey and through his actions refused to comply with the lawful order of the [officers], who tried to stop him by shouting 'Stop! Police!' Instead, he tried to escape, in order to avoid arrest by the [police], who, in line with their duties, gave chase with a view to arresting the suspect. As it were, not only did the [applicant] not obey, but he also resisted the [police officers]. Finally, the injuries he sustained upon his arrest are within what is permissible under sections 40 and 41 of the [National Police Act of 1993].

The overall situation, including the [applicant]'s inadequate behaviour, led the [officers] to conclude that he was the offender who was being sought after and who had to be caught, overawed and apprehended. This conclusion and the lawful actions of the officers, including the use of force with its consequences for the [applicant], rule out the criminality of their act. [To hold o]therwise [would mean to render] the abovementioned provisions of the [National Police Act of 1993] nugatory.”

Section 40(1) of the now repealed National Police Act of 1993 („Закон за националната полиция“) read, as relevant:

“... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of:

resistance or refusal [by a person] to obey a lawful order;

arrest of an offender who does not obey or resists the police [officers]; ...”

By section 41(2) of the Act, the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained.

Article 12a § 1 of the CC, adopted in 1997, provides that the injuring of alleged offenders during their arrest is not a criminal act, provided that there exists no other way for their apprehension and the measures used during the arrest do not exceed what is necessary and lawful. By paragraph 2 of this Article, there is such an excess where there exists an obvious disproportion between the character and the gravity of the offence allegedly perpetrated by the arrestee and the circumstances of the arrest, and also where the arrestee is unnecessarily and excessively harmed. The persons effecting the arrest are criminally liable only if they cause the harm wilfully.

Articles 128, 129 and 130 of the CC make it an offence to inflict grievous, intermediate or minor bodily harm on another person. The CC defines intermediate bodily harm as, inter alia, one which involves a temporary lifethreatening health disorder or a permanent nonlifethreatening health disorder (Article 129 § 2 of the CC). Minor bodily harm is one which does involve a health disorder, but is not specifically referred to in Articles 128 § 2 and 129 § 2 of the CC (Article 130 § 1 of the CC).

If the bodily harm is inflicted by a police officer in the course of or in connection with the performance of his duties, the offence is an aggravated one (Article 131 § 1 (2) of the CC). It is publicly prosecutable (Article 161 of the CC).

Criminal proceedings for publicly prosecutable offences could be instituted only by the decision of a prosecutor or an investigator (Article 192 of the CCP, as in force at the relevant time). The prosecutor or the investigator had to open an investigation whenever they received information, supported by sufficient evidence, that an offence had been committed (Articles 187 and 190 of the CCP, as in force at the relevant time).

Before 1993 the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction in respect of such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000). If a case falls within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors.

Section 45(1) of the Contracts and Obligations Act of 1951 („Закон за задълженията и договорите“) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another person. Section 49 of the Act provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant, a Swiss citizen born in 1941, is a businessman residing in Gersau in Switzerland.

The applicant’s son founded the R.AG, a construction company, whereby the applicant acted as guarantor (Bürge) for a credit. He also assisted his son in various administrative tasks concerning the company.

In 1994, the R.AG company went bankrupt. The Compensation Office (Ausgleichskasse) of the Canton of Schwyz suffered losses in particular as to contributions of the company to the old age insurance scheme. The Compensation Office regarded the applicant as being the administrative and commercial manager of the company and therefore liable for the sum of 13,925.05 Swiss francs (CHF).

The applicant objected, whereupon on 28 January 1995 and 3 January 1996 the Compensation Office introduced a compensation action against the applicant.

The action was upheld on 11 December 1996 by the Administrative Court (Verwaltungsgericht) of the Canton of Schwyz which nevertheless reduced the amount to CHF 12,462.15.

In its decision, the Administrative Court referred, inter alia, to the statement of a certain R.H., a former member of the board of the company, according to which the applicant had granted the company an advance payment. The Court then examined whether the applicant had in fact had the position of an executive (Organ) of the company and whether in this respect it was necessary to hear the witnesses Ch.R and R.H. The decision referred, inter alia, to two letters of the applicant to the Compensation Office, i.e., of 24 December 1993 in which he stated that the company no longer had any assets, and of 27 July 1994 in which he had signed "as a representative". As a result, the Court concluded that the applicant had in fact had the position of an executive of the company, for which reason further evidence was not necessary.

On 31 January 1997 the applicant filed an administrative law appeal with the Federal Insurance Court (Eidgenössisches Versicherungsgericht), contesting the action, and requesting the hearing of various witnesses, inter alia, Ch.R. and R.H. as well as the March District Court where he had introduced proceedings against a certain R.H.

The applicant’s appeal was transmitted for observations to the Administrative Court of the Canton of Schwyz, the Compensation Office of the Canton of Schwyz, and the Federal Social Insurance Office (Bundesamt für Sozialversicherung).

On 28 February 1997, the Administrative Court of the Canton of Schwyz submitted its observations on the applicant’s administrative law appeal to the Federal Insurance Court, the statement numbering five pages. The Administrative Court proposed in particular the dismissal of the applicant’s appeal.

In its statement the Administrative Court commenced with a "preliminary remark" according to which the applicant had not, in the administrative proceedings, referred to the separate procedure before another court concerning a certain R.H. As a result, the Court had not regarded it necessary to consult that case-file, and it could not be said that the Administrative Court had not sufficiently examined the facts. The Administrative Court further stated that the applicant had implicitly admitted that he was an executive of the R.AG company when filing the letters of 24 December 1993 and 27 July 1994.

According to the submissions of the Administrative Court, it further transpired from separate execution proceedings that various foreign currency deals had been transacted by the applicant’s family over the R.AG, leading to returns of CHF 65,989.40. However, the R.AG was concerned with constructions, not with foreign currency deals. It could not be said that the applicant had not been in a position to take decisions with binding legal effect. The Administrative Court also considered it unnecessary to hear the witnesses Ch.R. and R.H. Thus, in its decision it had considered that the two witnesses were quarrelling with each other, and the applicant had not shown in what respect the hearing of these witnesses would be useful.

The Compensation Office submitted a similar statement, whereas the Federal Social Insurance Office did not file any submissions.

On 2 May 1997 the Federal Insurance Court transmitted the statement of the Administrative Court of the Canton of Schwyz to the applicant for information, expressing its regret that it had by mistake not done so earlier on.

On 15 May 1997 the applicant submitted a statement on the submissions of the Administrative Court of 28 February 1997. The front page read:

"the observations contain three important new points which were not contained in the decision of the Administrative Court. I could not therefore make any observations thereupon in my administrative law appeal of 31 January 1997. As a result, it must be possible for me now to make such observations which I am herewith submitting."

The applicant then pointed out that the Administrative Court had stated that he had never mentioned a further set of proceedings against a certain R.H. This was a new point. He had only found out about R.H. in the decision of the Administrative Court itself, for which reason he could not have commented thereupon in the proceedings before the Administrative Court. The applicant furthermore pointed out that the Administrative Court had made new submissions when stating that in view of his letters of 24 December 1993 and 27 July 1994 he had effectively accepted having the position of an executive of the R.AG company.

Finally, the applicant explained that the Administrative Court’s submissions were also new to the extent that reference was made to foreign currency deals. This information came from the separate proceedings before another District Court, the March District Court, and not from him. To the extent that the Administrative Court concluded on the basis of this information that the applicant had, in fact, had the position of an executive, he should have been permitted to comment on this point.

The Federal Insurance Court dismissed the applicant’s administrative law appeal on 10 June 1997.

The decision first recalled the procedure before the Federal Insurance Court itself, noting in particular that the applicant had submitted further observations on 15 May 1997 without being requested to do so. The court then noted that according to Section 110 § 4 of the Federal Judiciary Act (Organisationsgesetz), observations were only exceptionally exchanged a second time between the parties. The decision continued:

"(Such a second exchange of observations) will be required for reasons of a fair hearing if in the observations new factual statements have been made, the correctness of which does not immediately transpire from the case-file and which are of relevance for the decision. As regards new legal arguments it must be borne in mind that the Federal Insurance Court is called upon ex officio to apply the correct law. The mere fact that these observations refer to supporting arguments in addition to those mentioned in the contested decision cannot justify the possibility to reply thereto. It would be different, if the Federal Insurance Court were of the opinion that the contested decision could be upheld, not with the reasons originally given, but with other reasons, now mentioned in the observations ...

In the light of these principles the applicant’s request along these lines, namely to have a second exchange of observations, appears unfounded. It is irrelevant in this respect that the observations of the Administrative Court were only submitted belatedly (nachträglich). Thus, in those observations no new factual or legal points were raised: Rather, the circumstances mentioned by the applicant (statement of R.H. about advances paid to the capital of the company; profits from currency deals) disclose that they were already known in the case-file stemming from the proceedings of the Gersau and Lachen execution authorities and thus clearly transpired from the file. Therefore, the applicant could, and ought to, have prepared everything necessary in order to avoid a second exchange of observations ... Furthermore, the new point of the previous court which he has mentioned, regarding his executive position, merely concerns an additional argument which further supports the grounds mentioned in the contested decision. This does not warrant the possibility of a further reply. As a result, the applicant’s observations, submitted without being so requested, cannot be legally considered (aus dem Recht zu weisen)."

Insofar as the applicant complained that certain witnesses had not been heard, the Federal Insurance Court considered, inter alia, that the Administrative Court had pertinently mentioned the circumstances under which a company executive became liable for the company’s debts. In respect of the witnesses Ch.R. and R.H., the hearing of which had been requested by the applicant, the Court referred to the accurate observations filed by the Administrative Court on 28 February 1997.

According to Section 128 of the Federal Judiciary Act (Organisationsgesetz), the Federal Insurance Court is called upon to examine administrative law appeals against cantonal decisions in last resort concerning matters of social insurance. In principle, the court is free to establish the facts. However, according to Section 105 § 2 of the Act, it considers itself bound by the facts if the lower instance which determined them was a court to the extent that the determination is not manifestly incorrect, incomplete or in breach of essential procedural rules. As a result, there is only a limited possibility to put forward new facts in the proceedings before the Federal Insurance Court (see Bundesgerichtsentscheide [BGE] 120 V 485).

In the administrative law proceedings before the Federal Insurance Court there is, in principle, only one exchange of statements in which the other parties and instances concerned may file their observations on the administrative law appeal (Section 110 § 4 of the Federal Judiciary Act). According to the practice of the Federal Insurance Court, a second exchange of statements will take place if new facts transpire in the observations the correctness of which cannot be established in the case-file and which observations appear pertinent for the final decision. If new legal considerations are raised for the first time in these observations, a second exchange of statements will take place if the contested decision can no longer be based on the reasons given by the lower court (see BGE 119 V 323; 114 Ia 314; 111 Ia 3; 94 I 662).