Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1974 and lived until his arrest in the town of Kyzyl in the Tyva Republic of the Russian Federation.

On 21 January 2000 criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery. On the following day he was arrested. Three days later, however, his release was authorised on condition that he did not leave his town of residence.

On 3 March 2000 the head of the investigative unit of the Ministry of Internal Affairs of the Tyva Republic authorised the applicant’s arrest in a decision which, in so far as relevant, read:

“On the night of 20-21 January 2000, at approximately midnight, [the applicant], who is unemployed, acting with mercenary intent for the purpose of stealing another’s property, in collusion with Mr O. and unidentified persons, arrived by car... at the village of Khalbus-Dash... [and], having unlawfully entered a house and used weapons, attacked Mr Kh. and Mr D. After beating the victims Mr Kh. and Mr D. and having tied their hands, [the applicant], Mr O. and unidentified individuals, issuing threats of murder, killed 14 [cows], placed their bodies in the cars and stole property, thus causing the victims Mr O., Mr Or. and Mr D. pecuniary damage in the amount of 78,430 roubles, and fled the crime scene.

Having regard to the threat which the committed criminal offence poses to society and taking into account that [the applicant], if at liberty, may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court...

[I] ORDER:

That a measure of restraint in the form of arrest should be applied to [the applicant], who is to be informed of this, against his signature on a copy of the present decision...”

The decision bore the applicant’s signature under the last printed paragraph, confirming that the decision had been served on him on 17 May 2000.

On 4 March 2000 the head of the investigative unit placed the applicant on the wanted persons list. The relevant part of the decision read:

“On 3 March 2000 a decision charging [the applicant] with having committed a crime proscribed by Article 162 § 3 (b) of the Russian Criminal Code and a warrant for his arrest were issued, given the particular gravity and dangerous nature of the crime committed by him. On the same day [police officers] were authorised to bring [the applicant] to the pre-trial investigating authorities for the reading out of the charges and his questioning as an accused. However, the accused, [the applicant], was not found at his place of residence... [It] was established that he left for the Barun-Khemchinskiy District in the Tyva Republic. His exact location was not discovered.”

On 6 March 2000 the applicant was arrested. On the following day the Kyzyl District Prosecutor authorised his detention on remand.

On 9 June 2000 the acting Prosecutor of the Tyva Republic, by the same decision, extended the applicant’s and his co-defendant’s detention until 21 July 2000, relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released.

The applicant’s and his co-defendants’ detention was further extended on 13 July, 10 and 23 October 2000 until 21 October and 6 November 2000 and 21 January 2001 respectively, with reference to the same grounds as in the decision of 9 June 2000.

On 20 January 2001 the applicant was committed for trial before the Supreme Court of the Tyva Republic. According to the Government, the applicant’s detention from 21 January to 20 March 2001 was not covered by any legal order as the domestic authorities were not required to issue one under the legislation governing criminal procedure.

On 15 February 2001 the Supreme Court of the Tyva Republic adjourned the examination of the criminal case because one of the applicant’s co-defendants had violated the conditions of his release on bail and had absconded. The case file was sent to the Prosecutor of the Tyva Republic. The Supreme Court also noted that the prosecution authorities were to “determine the issue of the application of a measure of restraint [in respect of the applicant and his co-defendants]”.

The Supreme Court of the Tyva Republic resumed proceedings on 5 March 2001 and fixed a hearing for 12 March 2001. That hearing was adjourned because the victims and a lawyer failed to appear.

On 20 March 2001 the Supreme Court of the Tyva Republic returned the case file to the prosecution authorities with an order to correct certain serious procedural defects, noting that the defence rights had been violated. In the same decision the Supreme Court held that the measure of restraint applied to the co-defendants, including the applicant, should “remain unchanged” due to the gravity of the charges against them.

On 13 June 2001 the Supreme Court of the Russian Federation, acting on appeals from the applicant’s co-defendants, upheld the decision of 20 March 2001, endorsing the reasons given by the lower court.

On 20 July 2001 the acting Prosecutor of the Tyva Republic, relying on the gravity of the charges and the defendants’ liability to abscond, pervert the course of justice and re-offend, in a single decision, extended the applicant’s and his co-defendants’ detention until 20 August 2001. A further extension until 20 September 2001 was ordered by a deputy Prosecutor General of the Russian Federation, with reference to the same grounds.

On 14 September 2001 the prosecution authorities returned the case file to the Supreme Court of the Tyva Republic, which on 2 October 2001 remitted the case again for additional investigation, noting serious violations of the defence rights, which had not been remedied during the previous referral of the case file to the prosecution authorities. The Supreme Court also noted that the defendants should remain in custody, given the gravity of the charges against them.

Having received the case file, on 11 October 2001 the first deputy prosecutor of the Tyva Republic extended the applicant’s and co-defendants’ detention until 11 November 2001, relying on the previously used grounds, namely the gravity of the charges and the defendants’ liability to abscond, reoffend and pervert the course of justice.

On 8 November 2001 the additional investigation ended and the Supreme Court of the Tyva Republic received the case file. It fixed the first hearing for 6 December 2001. As follows from copies of court minutes presented by the Government, the hearing of 6 December 2001, and the following hearings scheduled for 10 January and 12 March 2002, were adjourned because the presiding judge was involved in other unrelated proceedings.

In the meantime, the composition of the bench changed: a new presiding judge and lay assessor were assigned to the case. Between 12 March and 13 June 2002 the Supreme Court of the Tyva Republic fixed five hearings, of which three were adjourned because the co-defendants’ lawyers failed to appear, one hearing was rescheduled because the victims did not attend and one hearing was adjourned because it was necessary to serve a co-defendant with a copy of the indictment bill in a language he understood.

On 13 June 2002 the Supreme Court of the Tyva Republic, having found that the prosecution authorities had committed serious procedural violations at the indictment stage, referred the case back for additional investigation with an order to respect the rights of the defendants, including their right to the services of an interpreter, etc. The Supreme Court also stressed that the defendants should remain in detention.

On 15 November 2002 the Supreme Court of the Russian Federation quashed the decision of 13 June 2002 in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by the Supreme Court of the Tyva Republic. At the same time the Supreme Court of the Russian Federation held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody.

After having received the case file on 4 February 2003, the Supreme Court of the Tyva Republic fixed the first hearing for 12 February 2003. That hearing was adjourned because the co-defendants’ counsel failed to appear. The subsequent two hearings, listed for 3 and 19 March 2003, were postponed for the same reason.

On 24 March 2003 the Supreme Court of the Tyva Republic authorised an extension of the defendants’ detention for an additional three months, until 24 June 2003, holding as follows:

“Taking into account the prosecutor’s arguments that [the defendants] are charged with a criminal offence which belongs to the category of particularly serious [offences], punishable by a maximum of 10 years’ imprisonment, [and] having regard to the particular complexity of the criminal case and [the fact] that the release from custody of the defendants, who pose an increased danger to society, may impede considerably a

Of the three hearings scheduled between 26 March and 24 June 2003 by the Supreme Court of the Tyva Republic, two were adjourned because the co-defendants’ lawyers and the victims failed to appear and one hearing was postponed to provide counsel with additional time to study the materials of the case file.

On 24 June 2003 the Supreme Court of the Tyva Republic, using identical wording as that in the decision of 24 March 2003, extended the defendants’ detention until 24 September 2003.

Between 24 June and 25 September 2003 the Supreme Court of the Tyva Republic fixed four hearings, of which two were adjourned because the defence counsel failed to appear or were on annual leave, one hearing was postponed because a co-defendant was ill and one was rescheduled due to a victim’s failure to attend.

On 25 September 2003 the Supreme Court of the Tyva Republic once again extended the defendants’ detention for an additional three months, until 24 December 2003, invoking the same grounds as in the previous two detention orders of 24 March and 24 June 2003.

The applicant’s lawyer appealed against the detention order of 25 September 2003, arguing that the applicant’s detention from 24 to 25 September 2003 had not been covered by any legal order, in violation of the requirements of the Russian Code of Criminal Procedure and that the detention in general was excessively long.

On 4 December 2003 the Supreme Court of the Russian Federation upheld the detention order of 25 September 2003, noting that the applicant’s and his co-defendants’ detention had been regularly extended in compliance with the requirements of the Russian legislation on criminal procedure. It further stressed that in extending the defendants’ detention the Supreme Court of the Tyva Republic had correctly relied on the gravity of the charges. As regards the detention from 24 to 25 September 2003, the Supreme Court of the Russian Federation held that the detention had been lawful, since the prosecution authorities had submitted the application for the extension before 24 September 2003 and the Supreme Court of the Tyva Republic had merely scheduled the hearing for 25 September 2003.

In the meantime, the Supreme Court of the Tyva Republic listed nine hearings between 25 September and 4 December 2003. Of those hearings, two were adjourned because the victims failed to appear, three hearings were rescheduled because the co-defendants’ counsel were either involved in other proceedings or failed to appear, one hearing was postponed because the presiding judge was ill, one was postponed on the applicant’s lawyer’s request and two were cancelled because it was necessary to determine the issue of the defendants’ representation.

On 18 December 2003 the Supreme Court of the Tyva Republic, relying on the same grounds as in the detention orders issued in 2003, issued a collective decision in respect of all the defendants, extending their detention until 24 March 2004. Subsequent identically-worded detention orders were issued by the Supreme Court of the Tyva Republic on 19 March and 18 June 2004, extending the defendants’ detention until 24 June and 24 September 2004 respectively. The detention orders of 18 December 2003, 19 March and 18 June 2004 were amenable to appeal. Neither the applicant nor his lawyer made use of the appeal procedure.

Of the sixteen hearings scheduled between January and 25 August 2004, nine hearings were adjourned because either witnesses or co-defendants’ and victims’ counsel failed to appear, two were postponed because the applicant’s lawyer did not attend, two were rescheduled because the co-defendants’ counsel were involved in other proceedings and one was cancelled following a co-defendant’s request to consult a lawyer.

On 25 August 2004 the Supreme Court of the Tyva Republic found the applicant guilty of aggravated robbery and aggravated theft of weapons and sentenced him to eight years’ and two months’ imprisonment. The applicant decided not to lodge an appeal.

Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).

“Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP).

The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).

Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).

The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6).

When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).

Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment, if they had previously defaulted, had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.

The Codes make a distinction between two types of remand in custody: the first being “during investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different.

After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).

The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).

Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.

Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97).

From the date the prosecutor refers the case to the trial court, the defendant’s detention is classified as “before the court” (or “during judicial proceedings”).

Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.

The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).

Under the old CCrP, the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1). An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 96 below) (Article 331 in fine).

Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10).

Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP).

At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).

An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below).

Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.

The duration of the entire trial proceedings is not limited in time.

Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible.

The new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374).


Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr Lehideux, the first applicant, who was born in 1904 and died on 21 June 1998 (see paragraph 8 above), was formerly an administrator and later a director of several companies – including Renault France – and lived in Paris. From September 1940 to April 1942 he was Minister for Industrial Production in the Government of Marshal Pétain and, from 1959 to 1964, a member of the Economic and Social Committee. He was the President of the Association for the Defence of the Memory of Marshal Pétain.

The second applicant, Mr Isorni, who was born in 1911 and died on 8 May 1995 (see paragraph 2 above), was formerly a lawyer practising in Paris. As First Secretary of the Conference of Pupil Advocates of the Paris Bar, he was officially appointed to assist the President of the Bar Association in defending Marshal Pétain at his trial before the High Court of Justice. On 15 August 1945 the High Court of Justice sentenced Philippe Pétain to death and forfeiture of his civic rights for collusion with Germany with a view to furthering the designs of the enemy.

On 13 July 1984 the daily newspaper Le Monde published a one-page advertisement bearing the title “People of France, you have short memories” in large print, beneath which appeared in small italics, “Philippe Pétain, 17 June 1941”. The text ended with an invitation to readers to write to the Association for the Defence of the Memory of Marshal Pétain and the National Pétain-Verdun Association.

The text, which was divided into several sections each beginning with the words “People of France, you have short memories if you have forgotten…” in large capitals, recapitulated, in a series of assertions, the main stages of Philippe Pétain’s life as a public figure from 1916 to 1945, presenting his actions, first as a soldier and later as French Head of State, in a positive light.

In respect of the 1940–45 period, the text contained the following passage:

“PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES

– IF YOU HAVE FORGOTTEN...

– That in 1940 the civil and military authorities had led France to disaster. Those responsible begged him to come to its assistance. By his call to the nation of 17 June 1940 he secured an armistice and prevented the enemy from camping on the shores of the Mediterranean, thereby saving the Allies. Power was then legally conferred on him by the Parliamentary Assemblies, in which the Popular Front had a majority. The grateful French people rightly saw him as their saviour. There were ‘forty million Pétainists’ (Henri Amouroux).

How many no longer remember this and how many have disavowed it?

– That in the thick of difficulties which no French Head of State had ever known, Nazi atrocities and persecutions, he protected them against German omnipotence and barbarism, thus ensuring that two million prisoners of war were saved.

– That he provided daily bread, re-established social justice, defended private schools and protected a pillaged economy.

– That, through his supremely skilful policy, he managed to send a personal representative to London on the very same day that he went to Montoire, thereby allowing France, in defeat, to maintain its position between the contradictory demands of the Germans and the Allies and, through his secret agreements with America, to prepare and contribute to its liberation, for which he had formed the army of Africa.

– That he preserved for France virtually every part of what people then still dared to call the French Empire.

– That he was threatened by Hitler and Ribbentrop for resisting their will, and that on 20 August 1944 German troops carried him off to Germany.

PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES

– IF YOU HAVE FORGOTTEN...

– That, while he was a prisoner of the enemy, Philippe Pétain was prosecuted on the orders of Charles de Gaulle for betraying his country, whereas he had done all he could to save it.

– IF YOU HAVE FORGOTTEN...

– That, having escaped from Germany, he returned to France, however great the personal risk to himself, to defend himself against that monstrous accusation and to try to protect, by his presence, those who had obeyed his orders.

– IF YOU HAVE FORGOTTEN...

– That the prosecution, with the collusion of persons in the highest authority, used a forgery, as in the Dreyfus case, to secure his conviction and that at ninety years of age he was condemned, in haste, to death...”

On 10 October 1984 the National Association of Former Members of the Resistance filed a criminal complaint, together with an application to join the proceedings as a civil party, against a Mr L., the publication manager of Le Monde, for publicly defending the crimes of collaboration with the enemy, and against Mr Lehideux as President of the Association for the Defence of the Memory of Marshal Pétain, Mr Isorni as the author of the text complained of and a Mr M., as President of the National Pétain-Verdun Association, for aiding and abetting a public defence of the crimes of collaboration with the enemy.

The civil party argued that the text was an apologia which contravened the criminal law since it tended to justify the policy of Marshal Pétain, who had been found guilty by the High Court of Justice on 15 August 1945 (see paragraph 9 above).

The applicants denied that their advertisement constituted a public defence of the crimes of collaboration with the enemy, but acknowledged that the spirit of the text was consistent with their aim of having the judgment of the High Court of Justice overturned and rehabilitating Marshal Pétain.

On 29 May 1985 the public prosecutor filed his final submissions recommending that the charges be dropped on the ground that the offence had not been made out.

He considered that “the political and historical light” in which the applicants had portrayed Philippe Pétain’s policy during the period 1940 to 1944 was “radically different from the approach adopted by the High Court of Justice”: “far from glorifying the policy of collaboration, the defendants ... [gave] credit to Marshal Pétain – the fact that their historical perception [might] appear incorrect, misguided or partisan being of little consequence – for his endeavours and actions to protect France and its people and his contribution to the country’s liberation...”. He added that, although their aim had been to enhance Philippe Pétain’s image and praise his conduct during the Second World War, this positive assessment could be construed as a public defence of his actions “only by arbitrarily separating the image thus embellished from its supporting text and its link with the purely extrinsic information which, for the most part, was contained in the documents on the High Court’s file”. He concluded that “it might appear strange to commit for trial before the Criminal Court the authors and producers of a text which glorifies an individual, not for the crimes of which he was convicted, but for the beneficial actions which he is deemed to have performed for the good of France, its people and, secretly, the Allies”.

The investigating judge did not follow the public prosecutor’s submissions. In an order of 4 June 1985, he committed Mr L., the applicants and Mr M. for trial before the Criminal Court on charges, against the first defendant as principal and the others as accomplices, of making a public defence of the crimes of collaboration with the enemy, defined in section 24(3) of the Freedom of the Press Act of 29 July 1881.

The investigating judge observed: “a public defence means a speech or text which tends to defend or vindicate a doctrine or an action”. He noted that the applicants had presented Marshal Pétain’s policy during the period 1940 to 1944 in a favourable light, crediting him with endeavours and actions to protect France and its people, whereas the same events had been the subject of lengthy, detailed reasoning in the judgment of the High Court of Justice convicting Marshal Pétain. He therefore considered that the part of the published text referring to the 1940–45 period incorporated, developed and glorified the grounds of defence submitted by Pétain at his trial before the High Court of Justice and therefore amounted to a “justification of the actions and policies of Marshal Pétain, convicted under Articles 75 and 87 of the Criminal Code” then in force.

On 27 June 1986 the Paris Criminal Court, the proceedings before which had been joined by the Resistance Action Committee and the National Federation of Deported and Interned Members of the Resistance and Patriots, as civil parties, acquitted the defendants and ruled that it lacked jurisdiction to deal with the civil parties’ application.

The court stated that its task was “not to take sides in the historical controversy which, for more than forty years, has pitted the Resistance associations against Philippe Pétain’s supporters”, but to determine whether the offence had been made out in the instant case. In that connection, the court specified that, “according to the civil parties’ and the public prosecutor’s own submissions, the defendants [were] being prosecuted for their opinions...” and that “no restrictions [could] be imposed on freedom of expression other than those derived from statute, strictly interpreted...”.

The court held that only the part of the text referring to the 1940–45 period could be construed as a public defence of the crimes of collaboration with the enemy. It noted that this part of the text was clearly a eulogy of Philippe Pétain, an appeal in his defence designed to create a shift in public opinion favourable to the reopening of his case. It considered, however, that the offence had not been made out, for the following reasons: the text contained “no attempt to justify collaboration with Nazi Germany”, but stated that Marshal Pétain’s aim had been to “facilitate the Allies’ victory”; Marshal Pétain’s collaboration with Nazi Germany was neither acknowledged nor presented in a favourable light; the fact that the judgment of the High Court of Justice constituted res judicata did not in any way prevent the defenders of Marshal Pétain’s memory from criticising it; the text was part of a campaign in which the second applicant had been engaged since 1945 to have the judgment of the High Court of Justice overturned, an objective which was “perfectly legal”.

The court emphasised, “for the avoidance of any doubt”, that its judgment “should not be deemed to favour one of the arguments put forward in the historical controversy”.

The National Association of Former Members of the Resistance and the Resistance Action Committee appealed.

In a judgment of 8 July 1987 the Paris Court of Appeal held, firstly, that the combined effect of Article 2 § 5 of the Code of Criminal Procedure and the Freedom of the Press Act of 29 July 1881 was that the civil parties did not have standing to trigger a public prosecution and, secondly, that the prosecutor’s submissions on their complaint did not satisfy the formal requirements laid down on pain of nullity in the same Act. The court therefore declared the prosecution and subsequent proceedings null and void.

The National Association of Former Members of the Resistance and the Resistance Action Committee appealed on points of law against the above judgment.

In a judgment of 20 December 1988 the Court of Cassation (Criminal Division) held that the Paris Court of Appeal had erred in law. Accordingly, it quashed the judgment of 8 July 1987 in its entirety and remitted the case to the same Court of Appeal with a differently constituted bench.

On 26 January 1990 the Paris Court of Appeal declared the two civil party applications admissible, set aside the acquittals and awarded the civil parties damages of one franc. It also ordered the publication of excerpts from the judgment in Le Monde.

In its judgment it held that the three constituent elements of the offence of making a public defence of the crimes of collaboration had been made out.

It found, firstly, that the public element had been made out owing to the fact that the text in question had been published in Le Monde.

It went on to say that the text contained an “apologia” for the crimes of collaboration, and that the mental element had been made out, for the following reasons:

“The glorification of Pétain by the authors of this manifesto is conveyed by the celebration of what they seek to portray as great deeds; thus, equal prominence is given, for example, to the victory at Verdun and the defeat at Abd-el-Krim, attributed to Pétain like the securing of the armistice in 1940 and ‘his policy’, described as ‘supremely skilful’: ‘He managed to send a personal representative to London on the very same day that he went to Montoire, thereby allowing France, in defeat, to maintain its position between the contradictory demands of the Germans and the Allies and, through his secret agreements with America, to prepare and contribute to its liberation, for which he had formed the army of Africa’. Praise of the Montoire policy is thus magnified by reference to its supposed results. This is indeed an unreserved eulogy of a policy which is none other than that of collaboration. The significance of the meeting between Pétain and Hitler at Montoire on 24 October 1940 to which the authors of the advertisement refer were specified as follows in a radio broadcast by Pétain of 30 October 1940:

‘It is in honour and in order to maintain French unity, a ten-centuries-old unity, within the framework of constructive action for a new European order that I today embark upon the path of collaboration.’

The order referred to here was none other than the Hitlerian order based on racism defined in Mein Kampf, to which Pétain had just officially subscribed in advance by signing, on 3 October 1940, the so-called Act relating to aliens of Jewish race, who were later to be interned in camps set up in France for that purpose, in order to facilitate their conveyance to the Nazi concentration camps which were their intended destination.

Through the absence from the text of any criticism of these artfully concealed facts or even any attempt to distance its authors from them, this manifesto does indeed, therefore, implicitly but necessarily, contain an apologia for the crimes of collaboration committed, sometimes with the active participation and sometimes with the tacit consent of the Vichy Government, that is of Pétain and his zealots, in the very ‘atrocities’ and ‘Nazi persecutions’ to which the text refers.

The court is forced to the above conclusion without taking sides in the historical controversy between those who think that Pétain was really playing a double game supposedly beneficial to the French and those who place reliance only on Pétain’s avowed policies and publicly announced official decisions, regardless of the excuses that he was able to put forward or that his supporters now seek to cloak him in. Accordingly, this court finds that the advertisement in issue did contain the apologetic element of the offence charged.

In addition, for the offence to be made out, the mental element must be established.

The accused, headed by Jacques Isorni, the author of the manifesto, are seeking revision of the judgment given by the High Court of Justice on 14 August 1945, which sentenced Pétain to death, forfeiture of his civic rights and confiscation of his possessions for collusion with Germany, a power at war with France, with a view to furthering the enemy’s designs, this conduct constituting offences defined by and punishable under Articles 75 and 87 of the Criminal Code.

The accused, with the exception of [Mr L.], all claim responsibility for the text in issue and maintain that their object in publishing it was to create a shift in public opinion which, in their view, would increase support for a decision to reopen the case.

This goal, pursued unremittingly by Jacques Isorni in particular, Pétain’s former defence counsel before the High Court, who seeks to have a new judicial decision substituted for the High Court’s judgment, is considered by that lawyer to be a sacred duty of the defence. However legitimate on his part and the part of those who expressed their support for his action their intention to have the case reopened may have been, it did not justify the use of unlawful means to further that aim, since they knew that by putting forward an unqualified and unrestricted eulogy of the policy of collaboration they were ipso facto justifying the crimes committed in furtherance of that policy, and therefore cannot have acted in good faith.”

The applicants, Mr M. and Mr L. appealed on points of law against the above judgment. In their statement of the grounds of appeal they relied on Article 10 of the Convention and complained that they had been convicted for their opinions. Their aim had been to defend what they considered to be just in the action of a convicted person, without glorifying war crimes or the crimes of collaboration of which he had been convicted in the judgment which they were seeking to have overturned. They asserted that the Court of Appeal had found them guilty of making an “implicit apologia”, constituted more by what they had not said than by the content of the text itself, holding that the manifesto in issue “implicitly but necessarily” contained an apologia for the crimes of collaboration and convicting them for what they had not written and the criticisms they had not made, despite the fact that they had referred in their text to Nazi atrocities and barbarism.

On 16 November 1993 the Criminal Division of the Court of Cassation dismissed the appeals on the following grounds:

“Having regard [to the] findings [of the Court of Appeal] the Court of Cassation, whose task is to determine whether the text prosecuted under section 24(3) of the Act of 29 July 1881 constitutes a public defence of the crimes contemplated in that Act, is satisfied from its examination of the article in question that the passage referred to by the Court of Appeal falls within the contemplation of the aforementioned Act. In presenting as praiseworthy a person convicted of collusion with the enemy, the text glorified his crime and, in so doing, publicly defended it. The mental element of the offence can be inferred from the deliberate nature of the acts on account of which the defendants were charged.

In delivering that judgment, the Court of Appeal did not exceed its powers. Nor did it infringe the right to freedom of expression protected by Article 10, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms, since the exercise of that right may, under paragraph 2 of that Article, be subject to certain restrictions prescribed by law, where these are necessary, as in the instant case, in the interests of national security, territorial integrity or public safety.”

In 1984 section 23 of the Freedom of the Press Act of 29 July 1881 read as follows:

“Where a crime or major offence is committed, anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto.”

At the same time, section 24 provided that “anyone who, by one of the means set out in section 23, has made a public defence of ... the crimes of collaboration with the enemy” was to be liable to one to five years’ imprisonment and a fine of from three hundred to three hundred thousand francs.

The French courts have gradually clarified the conditions for the application of the provisions making public defence of a crime a criminal offence.

The Court of Cassation has ruled that public defence of the crimes defined in section 24(3) of the Act of 29 July 1881 is a separate offence from unsuccessful incitement to commit one of the crimes listed in sub-sections 1 and 2 of the same section and that the constituent elements of each of those offences must not be confused (Crim. 11 July 1972, Bull. crim. no. 236).

As early as 1912 the Criminal Division of the Court of Cassation held that public defence of a criminal amounted to public defence of his crime (Crim. 22 August 1912, Bull. crim. no. 46). That case-law was upheld by a decision to the effect that the glorification of a person on the basis of facts constituting one of the crimes or major offences listed in section 24(3) of the 1881 Act constituted the crime of public defence defined in and punishable under that Act (Crim. 24 October 1967, Bull. crim. no. 263).

Publication of a text which is likely to incite any reader to judge favourably the German National Socialist Party leaders convicted of war crimes by the Nuremberg International Tribunal and constitutes an attempt to justify their crimes in part is a public defence of war crimes (Crim. 14 January 1971, Bull. crim. no. 14).

A public defence of the crime of theft is made out where an article is published which, far from merely relating a criminal theft, presents it as a praiseworthy exploit and expresses the hope that the perpetrator will escape all punishment (Crim. 2 November 1978, Bull. crim. no. 294).

The offence is made out where an apologia is presented in indirect form (Paris, 25 February 1959, D. 1959. 552).

Lastly, it is the Court of Cassation’s task to determine whether a text prosecuted under section 24(3) of the Act of 29 July 1881 partakes of the nature of a public defence of crime as defined therein (Crim. 11 July 1972, Bull. crim. no. 236).

Law no. 90-615 of 13 July 1990 (“the loi Gayssot”) added to the Freedom of the Press Act a section 24 bis making liable to one year’s imprisonment and a fine of 300,000 French francs, or one of those penalties only, those who “deny the existence of one or more crimes against humanity as defined in Article 6 of the Statute of the International Military Tribunal annexed to the London agreement of 8 August 1945 which have been committed either by the members of an organisation declared criminal pursuant to Article 9 of the Statute or by a person found guilty of such crimes by a French or international court”.

Section 48-2 of the Freedom of the Press Act, also inserted by the loi Gayssot, provides: “Any association which has been lawfully registered for at least five years at the relevant time, and whose objects, according to its articles of association, include the defence of the moral interests and honour of the French Resistance or deportees, may exercise the rights conferred on civil parties in connection with public defence of war crimes, crimes against humanity or the crimes of collaboration with the enemy and in connection with the offence defined in section 24 bis.”

Articles 75 and 87 of the Criminal Code, applied by the High Court of Justice in its judgment of 15 August 1945 convicting Marshal Pétain, provided at that time:

“Any French citizen who colludes with a foreign power with a view to inciting it to engage in hostilities against France, or provides it with the necessary means, either by facilitating the penetration of foreign forces into French territory, or by undermining the loyalty of the army, navy or air force, or in any other manner, shall be guilty of treason and sentenced to death.”

“Any attempt to overthrow or change the government ..., or to incite citizens or inhabitants to take up arms against the imperial authority shall be punishable by deportation to a military fortress.”


The applicant, Mr Walter Meischberger, is an Austrian national, who was born in 1959 and lives in Vienna. He is represented before the Court by Mr J. Hintermayr, a lawyer practising in Linz.

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

On 13 October 1994 the Innsbruck Public Prosecutor’s Office opened preliminary proceedings against N.M. on suspicion of tax evasion.

On 28 October 1994 the Innsbruck Regional Court (Landesgericht) extended these proceedings to four other suspects including the applicant. He was suspected of having, in June 1994, as the representative of football player P.S., incited N.M. who was then the president of the Tirol Football Club to declare P.S.’s salary at a relatively low level and to pay him 3 million Austrian schillings (ATS) without declaring them, thus, avoiding salary tax to be paid. The applicant was represented by counsel in these and the subsequent proceedings.

Also on 28 October 1994, the Public Prosecutor requested the Regional Finance Directorate (Finanzlandesdirektion) to investigate the case.

On 6 February 1995 the Regional Finance Directorate, after having questioned the applicant as a suspect, submitted the minutes. Subsequently, after having carried out tax assessment proceedings concerning the Tirol Football Club, it submitted an interim report on its investigations.

On 28 November 1995, the Regional Finance Directorate submitted its final investigation report.

On 12 February 1996 the investigating judge summoned the applicant as a suspect to appear on 27 February 1996 for questioning. Upon the applicant’s request the hearing was postponed to 1 March. The applicant did not appear and the questioning took place a week later, on 8 March 1996.

Meanwhile, the investigating judge had requested the Vienna Regional Criminal Court to question two witnesses by way of judicial assistance.

On 3 June 1996 the Vienna Regional Court returned the file to the Innsbruck Regional Court, which submitted it to the Public Prosecutor on the following day.

On 12 June 1996 the Public Prosecutor requested the Regional Tax Office to submit further information, which it did on 3 July.

On 23 July 1996 the preliminary investigations against N.M. were extended to include a further charge. N.M. unsuccessfully appealed against this decision.

On 6 December 1996 the indictment against the applicant and four coaccused was preferred. The applicant was charged with aiding and abetting salary tax evasion contrary to sections 11 and 33 § 2 (b) of the Tax Offences Act (Finanzstrafgesetz).

On 28 January 1997 the Innsbruck Court of Appeal (Oberlandesgericht) dismissed the applicant’s objection (Einspruch) against the indictment.

On 10 February 1997 the presiding judge fixed 6 May as date for the trial.

On 12 February 1997 the applicant and one of his co-accused requested that the proceedings be transferred to the Vienna Regional Criminal Court. Thereupon, the trial scheduled for 6 May 1997 was cancelled.

On 16 April 1997 the Supreme Court (Oberster Gerichtshof) dismissed the request for transfer.

On 5 August 1997 the Innsbruck Regional Court held the trial against the applicant and his co-accused. The applicant pleaded not guilty. The Public Prosecutor submitted an expert opinion concerning questions of tax law and a number of witnesses were heard. Further, the applicant submitted an expert opinion on questions of tax law. At the close of the hearing the court convicted the applicant of aiding and abetting salary tax evasion contrary to sections 11 and 33 § 2 (b) of the Tax Offences Act and imposed a fine of ATS 500,000 on him, part of which was suspended on probation.

On 10 October 1997 the applicant filed a request for rectification of the trial minutes.

On 20 October 1997 the Innsbruck Regional Court partly granted the applicant’s request and made a number of additions to the minutes.

On 29 October 1997 the written version of the Innsbruck Regional Court’s judgment of 5 August was served on the applicant.

On 30 October 1997 the applicant filed a second request for rectification of the minutes, which remained unsuccessful.

On 26 November 1997 the applicant filed a plea of nullity and an appeal.

On 23 February 1998 the applicant, represented by a second counsel, supplemented his plea of nullity.

On 16 December 1998 the Supreme Court held a hearing and dismissed the applicant’s and his co-accused’s pleas of nullity and their appeals.

The Supreme Court noted at the outset that one of the applicant’s coaccused had complained that section 33 § 2 (b) of the Tax Offences Act referred to provisions of the Income Tax Act 1972 and was, thus, no longer applicable at the time of the offences, as meanwhile the Income Tax Act 1988 had entered into force. It observed that if this assertion was correct it would affect the convictions of all five co-accused. However, the Supreme Court found that section 33 § 2 (b) of the Tax Offences Act contained a so-called dynamic reference, i.e. at any given time it referred to the Income Tax in the version in force at that time. Moreover, it had to be read in conjunction with section 111 of the Income Tax Act 1988 according to which the provisions of that Act replaced the corresponding provisions of the Income Tax Act 1972 referred to in any other law. Thus, the legal basis for all co-accused’s conviction was sufficiently clear.

The Supreme Court’s decision was served on the applicant on 1 February 1999.


Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant, Mr Christian Obrist, is an Austrian national, who was born in 1954 and lives in Zell am See.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.

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

On 3 March 2003 the applicant, a practising lawyer, was served with a decision dated 25 February 2003 by the Zell am See Tax Authority (Finanzamt Zell am See als Finanzstrafbehörde I. Instanz) informing him that proceedings had been initiated against him on suspicion of evasion of both income and turnover tax, through his submission of incorrect declarations of earnings in both the years 1999 and 2001.

The panel at the Salzburg Stadt Tax Authority (Spruchsenat beim Finanzamt Salzburg-Stadt) held five hearings, namely on 20 April 2004 and 9 February, 6 April, 14 September and 18 October 2005, of which only the first two were attended by the applicant. The applicant was aware that his former employee, witness X, would be required to testify in the proceedings; however three hearings were postponed when witness X failed to appear. When X finally appeared at the hearing of 18 October 2005 it transpired that the applicant had relied on X’s duty of confidentiality on account of his previous employment contract with the applicant, and X could not then testify.

The applicant did not receive a transcript of the hearing. The applicant had not lodged a request to receive the transcript until the hearing was under way.

On 18 October 2005 the Tax Authority panel found the applicant guilty of having evaded tax in the amount of almost 51,000 euros (EUR) and ordered him to pay a fine of EUR 20,000, which would be replaced, in the event of default, by a prison term of four weeks. The applicant was, however, acquitted of having evaded turnover tax in 1999. In fixing the amount of the fine, the panel considered the following to be mitigating factors: the applicant’s lack of any prior convictions, his partial payment of the money owed, his confession in respect of part of the charges and the long period of time that had elapsed since the offences had been committed. It did not find any aggravating factors. The written decision of 18 October 2005 was served on the applicant on 18 May 2006.

On 19 June 2006 the applicant appealed to the Independent Finance Panel (Unabhängiger Finanzsenat), which delivered its decision orally after a hearing on 6 December 2007. The Independent Finance Panel reduced the amount of the fine to EUR 12,500, with sixteen days’ imprisonment in the event of default. Among the reasons given by the Independent Finance Panel for the reduction of the fine was the applicant’s low income, and it cited the long duration of the proceedings as a further mitigating factor in addition to those already put forward by the Tax Authority panel. On the other hand, it considered that the fact that the applicant was a practising lawyer constituted an aggravating factor. The written decision was served on the applicant on 14 August 2008.

The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) on 25 September 2008 against the decision of the Independent Finance Panel. In a decision dated 8 October 2008 the Constitutional Court declined to consider the case for its lack of prospects of success and sent it to the Administrative Court (Verwaltungsgerichtshof). The decision of the Constitutional Court was served on the applicant on 14 October 2008.

The applicant filed additional observations in support of his complaint to the Administrative Court as requested. On 8 July 2009 the Administrative Court dismissed the applicant’s complaint as ill-founded. It held that the Independent Finance Panel had acted appropriately in taking the unreasonably lengthy duration of the proceedings and the applicant’s poor financial situation into consideration and had set the fine accordingly and in line with the domestic courts’ jurisprudence. It also held that the applicant should have applied to receive a transcript of the hearing by the time it had started, as was provided for by law.

The decision was served on the applicant’s counsel on 27 August 2009.

The jurisdiction of the tax authorities as regards proceedings relating to tax offences and the conduct of such proceedings are regulated in the Tax Offences Act (Finanzstrafgesetz).

In accordance with section 135 of the above-mentioned Act, in force at the relevant time, oral hearings are to be recorded by the court reporter. Its subsection 3 provides that the transcript of the hearing is to be signed by the presiding member of the panel and the court reporter and then handed over to the defendant if he or she has lodged a prior request for it which has to be submitted, at the latest, just after the opening of the oral hearing.

Section 33 § 5 of the Tax Offences Act provides, as a maximum penalty for the offence of tax evasion, for the imposition of a monetary fine of double the amount of tax evaded. It also provides for the imposition of a sentence of imprisonment for up to two years.