Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

HADEP was a political party which had been established on 11 May 1994. At the time of its dissolution on 13 March 2003 its general secretary was the second applicant, Mr Ahmet Turan Demir, who had been elected to that post in February 2003.

In the general election held on 24 December 1995 HADEP received 1,171,623 votes, which represented 4.17% of the total number of votes cast. In the general election held on 18 April 1999 HADEP received 1,482,196 votes. However, as HADEP did not succeed in passing the required threshold of 10%, it was unable to be represented in the Grand National Assembly of Turkey following these two general elections (see HADEP and Others v. Turkey (dec.), no. 51292/99, 13 November 2008). In local elections held on 18 April 1999 HADEP won control of 37 municipalities. It had branches in 47 cities and in hundreds of districts. In 2002 HADEP became a member of the Socialist International.

The applicants submitted that, during a National Security Council (Milli Güvenlik Kurulu) meeting held on 18 December 1996, a decision had been taken to dissolve HADEP. In support of this assertion the applicants submitted to the Court a report which, they claimed, had been adopted by the National Security Council and which had subsequently been leaked to the press. The report, which is classified 'Secret', details a number of recommendations including “the control and pursuit of HADEP by the State in order to quell its activities”. Following this decision HADEP branches had been raided and its administrators had been subjected to physical pressure. In support of this latter argument the applicants submitted to the Court two reports, detailing the physical attacks on and the killings and forced disappearances of dozens of HADEP members, some of which have been examined by the Court (see, inter alia, Tanış and Others v. Turkey, no. 65899/01, ECHR 2005–VIII).

On various dates criminal proceedings were brought against a number of members of HADEP who were holding executive positions within the party. Some of the proceedings were suspended while some ended in convictions. Some of them were convicted of spreading “separatist propaganda”, in breach of section 8 of the Prevention of Terrorism Act, while others were convicted of “incitement to racial hatred and hostility in society on the basis of a distinction between social classes, races or religions”, in breach of Article 312 of the Criminal Code. A number of others were convicted of lending assistance to the PKK in breach of Article 169 of the Criminal Code, for making speeches, allowing hunger strikers to use HADEP premises and for possessing a number of documents prepared by PKK members in a law-firm owned by one of them. Some served their prison sentences while execution of the sentences of a number of others was stayed.

On 29 January 1999 the chief prosecutor at the Court of Cassation brought proceedings before the Constitutional Court and demanded that HADEP be dissolved. The chief prosecutor argued that HADEP had become a “centre of illegal activities against the integrity of Turkey”. In support of his allegations the chief prosecutor referred to the criminal proceedings pending against members of HADEP and a number of activities of its members. One incident relied on by the chief prosecutor was that during HADEP's annual general meeting in 1996 the Turkish flag had been taken down and replaced with a PKK flag.

On 25 February 1999 the chief prosecutor asked the Constitutional Court to render an interim decision banning HADEP from taking part in the forthcoming April general and local elections. The chief prosecutor's request was refused by the Constitutional Court on 8 March 1999.

On 5 April 1999 lawyers for HADEP submitted a written defence to the Constitutional Court. They alleged that the chief prosecutor's request for the dissolution of HADEP had been made as a result of the National Security Council's above-mentioned decision (see paragraph 7). They further argued, inter alia, that as it was not clear what the accusations against HADEP were, it was not possible for them to make full use of their defence rights. The lawyers relied on Articles 6, 9, 10, 11 and 14 of the Convention and Article 3 of Protocol No. 1 to the Convention, and asked the Constitutional Court to take into account the decisions and judgments of the European Court of Human Rights in cases concerning the dissolution of a number of other political parties in Turkey.

The chief prosecutor maintained in his written submissions of 9 April 1999 that HADEP had close ties with the PKK, and alleged that the former was being controlled by the latter. The chief prosecutor also repeated his request for HADEP to be dissolved before the elections which were to be held on 18 April 1999. This request was not accepted by the Constitutional Court.

During the proceedings, in their submissions to the Constitutional Court HADEP's representatives drew attention to the fact that the person who had taken down the flag was not a member of the party. They further stated that, immediately after the incident the HADEP congress had publicly condemned the incident. Since then HADEP had been dissociating itself from the incident and condemning it as an attack on a common symbolic value of the people of Turkey.

In its decision of 13 March 2003 the Constitutional Court decided unanimously to dissolve HADEP. The Constitutional Court based its decision on Articles 68 and 69 of the Constitution and sections 101 and 103 of the Political Parties Act (Law no. 2820). In arriving at its conclusion, the Constitutional Court took account of the activities of certain leaders and members of HADEP and concluded that HADEP had become a centre of illegal activities which included aiding and abetting the PKK.

The Constitutional Court noted, in particular, that during HADEP's annual general meeting in 1996 a non-HADEP member wearing a mask had taken down the Turkish flag and replaced it with a PKK flag and a poster of the then leader of the PKK, Abdullah Öcalan. During the same meeting slogans had also been chanted in support of the PKK and its leader. The then general secretary of HADEP Mr Murat Bozlak, who was present during the meeting on that day, had done nothing to stop the Turkish flag being taken down and had stated during his speech that “the existence of the Kurds in Turkey, who were not allowed to speak their mother tongue, had been denied. The PKK, despite ongoing military operations, massacres and provocations, was holding its ceasefire. Nothing could be resolved with military operations or with occupation.” The Constitutional Court considered the taking down of the Turkish flag as proof of the links between HADEP and the PKK. It further considered that the references made by Mr Bozlak to Turkey's fight against terrorism as an “occupation” and portraying Kurds as a separate nation showed that Mr Bozlak was supporting the PKK.

The Constitutional Court referred to Article 11 of the Convention in its judgment and stated that the rights guaranteed in that provision were not absolute and could be restricted in the circumstances listed in Article 11 § 2 of the Convention. It also referred to Article 17 of the Convention, and reached the following conclusion:

“Carrying out activities, by relying on democratic rights and freedoms, against the indivisible unity of the State with its nation is unacceptable. In such circumstances it is the duty and raison d'être of the State to prevent the abuse of these rights and freedoms. Allowing a political party which supports terrorism and which is supported by terrorism to continue to exist cannot be contemplated.

In statements and speeches made on behalf of the People's Democracy Party and in the course of various meetings, the party's general secretary Murat Bozlak, other party officials and chairmen and members of the party's provincial and district branches have stated that the Kurdish nation was a different nation from the Turkish nation; that the State of the Turkish Republic had been enforcing a policy of pressure and oppression on the Kurdish nation; that there was an ongoing war between the PKK terrorist organisation and the State of the Republic of Turkey; and that the Kurdish nation should take sides with the PKK in this war. Some of these activities have resulted in convictions. These persons have thus aided and harboured the PKK and its leader Abdullah Öcalan, whose aim is to destroy the indivisible unity of the State. The incidents, which are detailed in relevant parts of this judgment and which took place during the Second Congress of the People's Democracy Party on 23 June 1996 in Ankara, as well as the objects and documents found in the party headquarters and in the party's various branches confirm the [above-mentioned conclusion].

Activities by members of the People's Democracy Party and the evidence [in our possession] clearly show the links between the respondent party and the PKK. The following incidents and activities – and many others and judgments rendered by courts – are proof of the connection and support between the People's Democracy Party and the PKK terrorist organisation:

– organisation of various activities – under instructions from the PKK – such as hunger strikes, demonstrations and issuing press releases with a view to protesting against the attempt to assassinate Öcalan and against the work that had been carried out by the State of the Turkish Republic to apprehend Öcalan, and against his subsequent arrest;

– work to create, by referring to concepts such as freedom, brotherhood and peace, a sense of a different nation among the people who live in a certain part of the country or who claim to belong to a certain ethnic group;

– description of the State's struggle against the PKK terrorist organisation as a 'dirty war', as well as taking sides with the PKK in this war by carrying out certain activities and by displaying certain behaviour;

– provision of training to a number of young people, in line with the PKK ideology but under the disguise of in-party training, with a view to recruiting them to the party first and subsequently to the PKK terrorist organisation in order for them to carry out activities on behalf of the PKK terrorist organisation and then sending them to the PKK's mountain camps as armed militants;

– the keeping in the Party's headquarters and in its district and provincial branches, of objects, books, banners and photographs of members of the PKK as well as other PKK terrorist organisation propaganda documents for which the courts have issued confiscation orders;

– the fact of allowing people to watch the organisation's media organ MED TV in these places for propaganda purposes; and

– speeches and activities during HADEP's Second Congress.

In the light of the above, and in accordance with Articles 68 and 69 of the Constitution and section 101 (b) of the Political Parties Act, it is hereby decided to dissolve HADEP, which has become a centre of illegal activities against the indivisible unity of the State with its nation and which has aided and harboured the PKK terrorist organisation.

As an ancillary measure under Article 69 § 9 of the Constitution, the Constitutional Court banned 46 HADEP members and leaders from becoming founder members, ordinary members, leaders or auditors of any other political party for a period of five years. The Constitutional Court also ordered the transfer of HADEP's property to the Treasury.

The decision of the Constitutional Court became final following its publication in the Official Gazette on 19 July 2003.

Article 169 of the Criminal Code in force at the relevant time provided as follows:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment ...”

Article 312 of the Criminal Code in force at the relevant time provided as follows:

“Non-public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months' and two years' imprisonment and a heavy fine of between six thousand and thirty thousand Turkish liras.

A person who incites people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

Section 8 of the Prevention of Terrorism Act provided, in so far as relevant, as follows:

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of between one hundred million and three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.”

Article 68 § 4 of the Constitution provides as follows:

“A political party's programme, statute or activities may not contradict the sovereignty of the State, the indivisible unity of the State with its nation, human rights, equality, principles of rule of law, sovereignty of the nation and democratic and secular principles of the Republic; they may not seek to establish a class-based dictatorship or any dictatorship and they may not incite people to commit offences.”

The relevant paragraphs of Article 69 of the Constitution provide as follows:

“5. A decision to permanently dissolve a political party shall be taken if it is established that its statute and programme are not compatible with Article 68 § 4 of the Constitution;

A decision to permanently dissolve a political party on account of activities which are contrary to Article 68 § 4 of the Constitution can only be taken if the Constitutional Court decides that [the party] has become a centre where such activities are carried out. A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party's congress, its decision-making bodies or its groups within Parliament, or if those activities are carried out directly by the party's organs in a decisive manner;

Depending on the severity of the actions in question, the Constitutional Court may, instead of dissolving the party, decide to fully or partly deprive it of the financial aid it receives from the State;

Founding members or ordinary members whose declarations or actions lead to the permanent dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or auditors of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court;

At the time of the dissolution of HADEP the relevant paragraph of Article 149 of the Constitution provided as follows:

“The Constitutional Court sits with its president and ten members, and adopts its decisions with a simple majority. Cases concerning the annulation of provisions of the Constitution or the dissolution of a political party require a three-fifth majority.

On 7 May 2010 Article 149 of the Constitution was amended. The relevant paragraph now reads as follows:

“...When deciding to dissolve a political party or to deprive it of the financial aid it receives from the State, a two-third majority is required.

Sections 101 and 103 of the Political Parties Act (Law no. 2820) provide as follows:

“The Constitutional Court may decide to dissolve a political party:

(a) where [that party's] programme or statute contradicts the sovereignty of the State, the indivisible unity of the State with its nation, human rights, equality, principles of rule of law, sovereignty of the nation and democratic and secular principles of the Republic [and where they] defend and seek to establish a class-based dictatorship or any dictatorship [and where they] incite people to commit offences;

(b) where it is established by the Constitutional Court that [the] political party has become a centre of activities contrary to Article 68 § 4 of the Constitution; and

(c) where [the party] has received financial assistance from a foreign State, international organisation or from non-Turkish persons and companies.

In cases concerning (a) and (b) above and depending on the severity of the activities concerned, the Constitutional Court may, instead of dissolving the party, deprive it of half or more of the financial assistance provided by the Treasury for one year...”

“The Constitutional Court shall have the power to determine whether a political party has become a centre of activities which are contrary to Article 68 § 4 of the Constitution.

A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party's congress, its decision-making bodies or its groups within Parliament, or if those activities are carried out directly by the party's organs in a decisive manner.”

In its Guidelines on the prohibition and dissolution of political parties and analogous methods (published in January 2000) the European Commission for Democracy through Law (Venice Commission) proposed the following:

“1. States should recognise that everyone has the right to associate freely in political parties. This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers. The requirement to register political parties will not in itself be considered to be in violation of this right.

Any limitations to the exercise of the above-mentioned fundamental human rights through the activity of political parties shall be consistent with the relevant provisions of the European Convention for the Protection of Human Rights and other international treaties, in normal times as well as in cases of public emergencies.

Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution.

A political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities.

The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger.

Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means.

The prohibition or dissolution of a political party should be decided by the Constitutional court or other appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair trial.”

Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on “Restrictions on political parties in the Council of Europe member states” states, in particular, as follows:

...[T]he Assembly believes that in exceptional cases, it may be legitimate for a party to be banned if its existence threatens the democratic order of the country.

In conclusion and in the light of the foregoing, the Assembly calls on the governments of member states to comply with the following principles:

i. political pluralism is one of the fundamental principles of every democratic regime;

ii. restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country;

iii. as far as possible, less radical measures than dissolution should be used;

iv. a party cannot be held responsible for the action taken by its members if such action is contrary to its statute or activities;

v. a political party should be banned or dissolved only as a last resort, in conformity with the constitutional order of the country, and in accordance with the procedures which provide all the necessary guarantees to a fair trial;

vi. the legal system in each member state should include specific provisions to ensure that measures restricting parties cannot be used in an arbitrary manner by the political authorities.”

On 13-14 March 2009 the Venice Commission, acting on a request from the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) asking it “to review the constitutional and legal provisions which are relevant to the prohibition of political parties in Turkey”, adopted the “Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey”. The relevant parts of the Opinion are as follows:

The Venice Commission concludes that, when compared to the common European practice, the situation in Turkey differs in three important respects:

There is a long list of substantive criteria applicable to the constitutionality of political parties, as laid down in Article 68 (4) and the Law on political parties, which go beyond the criteria recognised as legitimate by the ECtHR and the Venice Commission.

There is a procedure for initiating decisions on party prohibition or dissolution which makes this initiative more arbitrary and less subject to democratic control, than in other European countries.

There is a tradition for regularly applying the rules on party closure to an extent that has no parallel in any other European country, and which demonstrates that this is not in effect regarded as an extraordinary measure, but as a structural and operative part of the constitution.

In conclusion, the Venice Commission is of the opinion that the provisions in Article 68 and 69 of the Constitution and the relevant provisions of the Law on political parties together form a system which as a whole is incompatible with Article 11 of the ECHR as interpreted by the ECtHR and the criteria adopted in 1999 by the Venice Commission and since endorsed by the Parliamentary Assembly of the Council of Europe.

The basic problem with the present Turkish rules on party closure is that the general threshold is too low, both for initiating procedures for and for prohibiting or dissolving parties. This is in itself in abstracto deviating from common European democratic standards, and it leads too easily to action that will be in breach of the ECHR, as demonstrated in the many Turkish cases before the European Court of Human Rights.

Because the substantial and procedural threshold for applying the Turkish rules on party prohibition or dissolution is so low, what should be an exceptional measure functions in fact as a regular one. This reduces the arena for democratic politics and widens the scope for constitutional adjudication on political issues. The scope of democratic politics is further eroded by the constitutional shielding of the first three articles of the Constitution, in such a way as to prevent the emergence of political programmes that question the principles laid down at the origin of the Turkish Republic, even if done in a peaceful and democratic manner.

The Venice Commission is of the opinion that within democratic Europe these strict limitations on the legitimate arena for democratic politics are particular to the Turkish constitutional system, and difficult to reconcile with basic European traditions for constitutional democracy.

The Venice Commission recognises and welcomes the fact that in recent years the rules on party prohibition in Turkey have been changed in such a way as to raise the threshold for dissolution. In the 2001 reform, Article 69 was amended to include the qualification that for a party to be in conflict with the criteria of Article 68 (4) the party must be a 'centre' for such activities. At the same time, the requirement of a 3/5 majority of the Constitutional Court for dissolving a political party was introduced into Article 149. This has shown itself to be an important reform, which was decisive for the outcome of the AK party case. While laudable, these reforms have not been sufficient to fully bridge the gap between the Turkish rules and the standards of the ECHR and the Venice Commission Guidelines.

Consequently, the Venice Commission is of the opinion that, although the 2001 revision was an important step in the right direction, it is still not sufficient to raise the general level of party protection in Turkey to that of the ECHR and the European common democratic standards. Further reform is necessary in order to achieve this, both on the substantive and the procedural side.


Remainder inadmissible;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in 1938 and lives in Bucharest.

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

On 16 December 1996 a third party brought criminal proceedings against the applicant for wrongful misappropriation. The third party claimed that the applicant had unlawfully used private funds belonging to his companies in order to increase the capital of a commercial bank (Bankcoop) and become a major shareholder in the said bank.

On 14 January 1997 the Judicial Police attached to the Romanian Ministry of the Interior asked the third party to provide additional information in respect of the unlawful acts allegedly committed by the applicant.

On 19 February 1997, the Adevărul daily newspaper published an article entitled “The investigation files of G.C.P. – strictly secret?” The article quoted statements by D.I.C., one of the prosecutors conducting the investigation against the applicant, of which the most relevant part reads as follows:

“We have been accused of insisting on imposing [on G.C.P.] an order not to leave the city, a measure which is usually taken when there are suspicions that somebody has committed an unlawful act. However, as I already told you and as [can be seen] from checks carried out by the Financial Control Office [Garda Financiară], here there have been unlawful acts committed, not only suspicions. In spite of that, we have proven to be humane, when at his [G.C.P.’s] request we allowed him to leave Bucharest for forty-eight hours.”

On 10 April 1997 the applicant was charged with fraud, forging documents and use of forged documents, embezzlement, using the goods of a commercial company against its interests and undermining the national economy, on account of the fact that, by acting on behalf of the private company (G.C.P. S.A.), which the applicant controlled as the major shareholder, he had allegedly made false statements in an official document submitted to the Romanian National Bank on 31 August 1995 in order to obtain its permission to increase the capital of Bankcoop by the amount of 10,000,000 United States Dollars (USD). More specifically, the applicant was suspected of declaring the aforementioned amount as his personal funds, when in fact it had been obtained as a loan taken out by G.C.P. S.A. from a foreign bank, which was contrary to the National Bank’s regulations on acceptable sources of money used to increase a bank’s capital.

On 2 June 1997 the applicant brought a challenge against the two prosecutors, including D.I.C., charged with the investigation of his case at the time, arguing, inter alia, that press statements made by the said prosecutors on 28 May 1997 in the Evenimentul Zilei daily newspaper – claiming that the applicant’s financial investments were “acts of fraud” – amounted to a breach of his right to the presumption of innocence.

According to the applicant, his challenge of 2 June 1997 against the prosecutors G.M. and D.I.C. was allowed by a final Prosecutor’s Office Order of 23 June 1997 and a new prosecutor was appointed to investigate his case. The applicant failed to include in the file a copy of the order of 23 June 1997.

On 2 July 1997 the Naţional daily newspaper published an article entitled “G.D. states that G.C.P. should have been indicted long ago for two of the proven crimes”. The most relevant part of the article, which quoted statements by G.D., the Romanian Minister of the Interior at the time, reads as follows:

“G.C.P. could be indicted for two already proven crimes, namely the ones connected to the embezzlement through Bancorex, from Chemical Bank to Bankcoop. The 10 million dollars taken by G.C.P. from Chemical Bank for a factory in Arad were embezzled so that he could take over the majority of the shares in Bankcoop. (...) Although there is proof that several crimes have been committed by G.C.P., he is only under investigation for two, and the prosecutor’s investigation is lasting a suspiciously long time. ”

On 3 July 1997, the Evenimentul Zilei daily newspaper published an article entitled “G.C.P. and R.T. accused of undermining the national economy”. Quoting the same prosecutor, D.I.C., the relevant parts of the article read as follows:

“On 1 July 1997 in file no. 180/P/97 of the General Prosecutor’s Office, the file concerning the defendant G.C.P., the criminal investigation was extended with respect to the crime of undermining the national economy, punishable under Article 165 § 1 of the Criminal Code. Hence, between 1994 and 1997, [G.C.P.] used a state-owned public interest bank, Bancorex S.A., in order to obtain certain financial facilities in the amount of 202.6 million dollars, to be used for the reimbursement of certain loans contracted by his commercial company, G.C.P. S.A. This undermined the national economy and disturbed the activity of Bancorex S.A. and, as a consequence, the national economy.”

By letter of 17 November 1997 prosecutor C.M., the prosecutor investigating the applicant’s case at the time, asked the Prosecutor General of Romania to confirm that he could continue the investigation in the case. He expressly stated that he did not have any personal interest or otherwise in respect of the investigation and that he would accept the Prosecutor General’s decision. He informed the Prosecutor General that if he was allowed to continue working on the case he would not be subject to any outside influence or pressure in carrying out the investigation.

On 19 December 1997, the Evenimentul Zilei published an article entitled “S.M. found the solution for destroying the mafia in Romania overseas: The Mexicans should come with bazookas”. The article quoted statements made by S.M., the Prosecutor General of Romania at the time. The most relevant part reads as follows:

“In the case of G.C.P., who knew all about financial tricks [ingineriile financiare] and covered his tracks with lots of documents, the experts’ report is not finished yet. I believe that there is a 99% chance that he will also be sent to trial, but I would make a suggestion to the police to not just stick to the small cases of T. and G.C.P., because the two of them have [done] more than this.”

In addition, the parties agree that a total of around 350 articles containing information on the investigation and the trial against the applicant were published between 1997 and 2002 in all the major national newspapers, including Ziua, Adevărul, Evenimentul Zilei, Cotidianul, Naţional and Libertatea. Some of the most relevant story titles quoted by the applicant in this respect read as follows: “The trap is tightening” (Evenimentul Zilei, 17 March 1997); “Chess at millionaires!” (Evenimentul Zilei, 9 April 1997); “The return of the jackals” (Evenimentul Zilei, 18 August 1997); “Sharks at large” (Evenimentul Zilei, 28 April 1998); “G.C.P.’s companies have filled their bank accounts on Bancorex’s back” (Ziua, 12 February 1999); “Just when the prosecutors were on the point of indicting him, G.C.P. found refuge in a hospital in Switzerland” (Adevărul, 12 March 1999); “G.C.P. ran away in the U.S.A.” (Libertatea, 5 October 1999); and “The heroes G.C.P. and T.” (Evenimentul Zilei, 10 April 2002).

By an order of 30 January 1998 the Prosecutor General dismissed C.M. from his position of Head Prosecutor of the Criminal Department of the Bucharest Prosecutor’s Office and transferred him to the Secretarial and Public Relations Department. At the same time, M.I. was tasked with continuing the criminal investigation against the applicant. The Prosecutor General held that the criminal investigation had been unreasonably lengthy without any objective reasons and that Bancorex, one of the parties involved in the matter, had lodged a challenge and had complained about C.M.

On 17 June 1999 the applicant was indicted for making false statements in an official document, as he had not declared the true source of the money used for increasing the capital of Bankcoop.

The investigation also continued separately in respect of the charge of undermining the national economy and using the goods of a commercial company against its interests. At the same time, the charges concerning fraud, forging documents, use of forged documents and embezzlement were dropped and the part of the criminal investigation covering those charges was closed on the grounds that the applicant’s actions were found to have been lawful.

By a final Prosecutor’s Order of 3 September 2001 the criminal investigation initiated against the applicant for undermining the national economy was discontinued on the grounds that no unlawful act had been committed.

By a judgment of 11 September 2001 the Bucharest District Court decided that the indictment of 17 June 1999 was null and void because the applicant had not been informed of the charges against him, as he had been in the United States of America at the time of his indictment. Consequently, the court ordered the file to be sent back to the Prosecutor’s Office.

The prosecutor submitted an appeal on points of law (recurs) against the judgment of 11 September 2001.

By a judgment of 18 January 2002 of the Bucharest County Court the Prosecutor Office’s appeal was allowed and the case was sent back to the first-instance court for a retrial on the merits. The County Court held that there had been no reason for the indictment to be annulled, as the decision of the investigating prosecutors to send the case before the court without informing the applicant of the charges against him had been in accordance with the legal provisions of the Code of Criminal Procedure applicable to persons avoiding the investigative authorities. In reaching this decision, the court took into account the fact that neither the applicant nor his attorney had provided the investigators with an exact address at which the applicant could be summoned during the investigation.

By a final Prosecutor’s Order of 12 March 2002 the criminal investigation initiated against the applicant for using the goods of a commercial company against its interests was discontinued on the grounds that no unlawful act had been committed.

On 13 May 2002 the first hearing in the retrial of the case was held before the Bucharest District Court following the judgment of 18 January 2002. The applicant was heard by the court. He argued, inter alia, that the criminal investigation against him had been based on political motives, a fact which could be confirmed by the negative media campaign conducted against him and by the public statements made by the Prosecutor’s Office representatives.

By a judgment of 17 June 2002 the Bucharest District Court acquitted the applicant on the grounds that from all the evidence produced it emerged that his actions had been in accordance with the law. The Prosecutor’s Office appealed against the judgment.

By a judgment of 14 November 2002 the Bucharest County Court allowed the Prosecutor Office’s appeal, convicted the applicant of making false statements in an official document and sentenced him to one year of imprisonment, a sentence which was considered pardoned according to the law. The court held that, on the basis of the evidence available in the file, the applicant had made false statements in an official document and had been aware of the legal consequences of his statements. The applicant lodged an appeal on points of law (recurs) against the judgment. He argued that the criminal investigation against him had been politically motivated, a fact confirmed by the alleged failure of the domestic courts to take into account and to examine the evidence submitted by him in his defence. In addition, the applicant argued that the domestic courts had wrongfully assessed the evidence, had misinterpreted the applicable legal provisions and had ignored the fact that the indictment brought against him had been null and void because the investigating prosecutor had failed to inform him of the charges brought against him prior to sending the case before the domestic courts.

By a final judgment of 23 December 2002 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law and his conviction became final. The court held, on the basis of the evidence available in the file, that the lower courts had correctly assessed the evidence and interpreted the applicable legal provisions and that the applicant had been informed of the charges brought against him by the Prosecutor’s Office.

On 26 February, 26 April, 16 July, 21 September, 19 October, 11 November 2004 and on 18 January, 10 February, 17 March and 19 April 2005 the applicant lodged repeated extraordinary appeal of annulment (recurs în anulare) requests against the final judgment of 23 December 2002 with the Public Prosecutor’s Office attached to the Court of Cassation. He argued, inter alia, that his right to the presumption of innocence had been breached on account of an aggressive media campaign led by the Prosecutor’s Office and the Minister of the Interior which had resulted in the criminal investigation being opened against him and in him being indicted.

On 20 April 2005 the applicant’s extraordinary appeal applications were dismissed by the Prosecutor’s Office attached to the Court of Cassation on account of statutory amendments to the applicable rules of criminal procedure abolishing that form of appeal.

The relevant provisions of the Romanian Constitution in force at the relevant time are worded as follows:

A person is considered innocent pending a final court conviction.”

The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time are worded as follows:

“(1) The person accused of or charged with a criminal offence does not have to prove his innocence.

(2) Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.”


COLLOREDO MANSFELDOVÁ v. THE CZECH REPUBLIC

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant, Ms Kristina Colloredo Mansfeldová, is a Czech national who was born in 1940 and lives in Opočno. She was represented before the Court by Mr P. Virag, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

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

The applicant is the daughter and heir of J. Colloredo Mansfeld, a Czech nobleman who died in 1990. On 16 February 1942 during the German occupation of Czechoslovakia, the latter’s estate and castle in Opočno were confiscated by the occupying forces. After the war and after the estate had been returned to the applicant’s family, the former Prague Municipal National Council (zemský národní výbor) confiscated the estate on the ground that the applicant’s father was to be considered German, as he had stated that he was of German origin in a questionnaire during the war.

On 16 December 1948 the Ministry of Agriculture, deciding upon an appeal by the applicant’s late father, quashed the confiscation decision finding that the statutory requirements necessary for the confiscation had not been met in his case. The estate remained in the possession of the State.

In March 1995 the applicant filed an action with the Rychnov nad Kněžnou District Court (okresní soud), whereby she sought to order the State represented by the Pardubice Heritage Institute (památkový ústav) to conclude with her a restitution agreement with regard to the castle and other facilities under the Extra-Judicial Rehabilitation Act. On 27 September 1995 the District Court rejected her action but the Hradec Králové Regional Court (krajský soud) quashed this judgment on 17 October 1997 and sent the case back to the District Court which, in a judgment of 16 March 1999, dismissed the applicant’s action for the second time, finding that she did not meet requirements enshrined in the restitution legislation, including the requirement that the transfer or passing of the ownership of the property occurred in 1942 should have been due to racial persecution.

The judgment was subsequently upheld by the Regional Court.

In judgment no. 28 Cdo 1733/2000 adopted on 31 August 2000 the Supreme Court (Nejvyšší soud), deciding upon the applicant’s appeal on points of law, quashed both judgments. In its view, the confiscation by Germany had been due to the applicant’s Czech origin, as Czechs were regarded by the Nazis as an inferior race, and therefore amounted to racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act. It noted that the estate had been taken under a confiscation measure that applied to Jews. Having regard also to the fact that the estate had been taken from the applicant’s family twice, first by the Nazis and then by the communist regime, the court found that the requirement of section 3(2) of the Act was met. It stated obiter dictum that any interpretation of the term of racial persecution, limiting the application of that notion only to Jews, would be contrary to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and to the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). The court held in particular:

“Having regard to the objectives of the restitution laws, it appears unsustainable to the Supreme Court to interpret the notion of racial persecution in a restrictive manner when the Nazi administration of ... [occupied Czechoslovakia] sanctioned the applicant’s ascendant for “efforts adverse to the Reich”.

On 12 June 2002 the District Court, bound by the Supreme Court’s judgment, found in favour of the applicant and ordered the defendant to conclude a restitution agreement with her and to transfer the ownership of the estate to her. On 13 May 2003 the Regional Court upheld this judgment.

On 15 and 16 July 2003 the applicant concluded with the National Heritage Institute (Národní památkový ústav), successor in title to the Pardubice Heritage Institute, the restitution agreement on the transfer of the estate to her. On 17 July 2003 she was registered as the owner of the estate with the land register and during the same year entered into possession in accordance with the restitution agreement.

On 4 December 2003 the Supreme Court declared inadmissible an appeal on points of law by the Heritage Institute which, on 20 February 2004, made a constitutional appeal alleging an infringement of its property rights and the right to judicial protection under the Charter.

In a judgment of 16 December 2004 the Constitutional Court quashed the lower courts’ decisions and remitted the case to the District Court. It admitted that in civil proceedings, it was incumbent upon the parties to assert their rights and to allege relevant facts, but considered that the ordinary courts were nevertheless obliged to search for and take further evidence on their own initiative. It found that, not having done so, they had breached the Code of Civil Procedure. According to the court, the conclusion of the lower courts that the applicant’s late father had met the conditions set by the Extra-Judicial Rehabilitation Act was erroneous, since he had been registered as German when filling in a questionnaire. It added that, the courts had omitted to take into consideration certain material, including an essay entitled “The Colloredo family and the Colloredo family of Opočno” of which the Constitutional Court took judicial notice, which showed that the applicant’s late father had been disloyal during the war as he had applied for German citizenship.

The court also considered that the confiscation of the estate by the German occupying forces could not be regarded as constituting racial persecution of the applicant’s late father within the meaning of the Extra-Judicial Rehabilitation Act, as the Supreme Court had found on 31 August 2000. It was apparent from sections 2(1)(c) and 3(2) of this Act, from its aim and from the record on the debate preceding the adoption of Act no. 116/1994 in the lower chamber of the Parliament, that the term of “racial persecution” covered in particular Jews who were victims of the Holocaust. This was, however, not the case of the applicant’s father. The court rejected as inappropriate the Supreme Court’s obiter dictum that such a restrictive interpretation would constitute inequality among victims of the period of lack of freedom and would privilege one group of people on the ground of race contrary to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Charter. Indeed, the principle of equality could not be interpreted as an absolute one and equality among citizens could not be construed as an abstract category, but as a relative equality within the meaning of all modern constitutions. A restrictive interpretation of the notion of racial persecution under the Extra-Judicial Rehabilitation Act was not contrary to the principle of equality.

Apparently on 6 April 2005 the District Court asked the parties to the procedure whether they would propose further evidence. It also requested the applicant to specify whether she would propose further evidence in support of her assertions that the confiscation had taken place due to racial persecution and that the estate had been taken away and passed into the ownership of the Czechoslovak State in the relevant period within the meaning of the Extra-Judicial Rehabilitation Act. It also requested the defendant to indicate whether it would propose any further evidence to support its assertion that the Czechoslovak citizenship of the applicant’s late father had legally ceased to exist. Both parties submitted further documentary evidence.

At the hearing of 12 July 2005 the District Court considered extensive documentary evidence, including a historical essay by Dr. Jaroslav Šůla called “The Colloredo family and the Colloredo family of Opočno” (Colloredové a opočenští Colloredové), the so-called administrative record and correspondence between the Municipal National Council and the Ministry of the Interior of 1947 and 1948 when these two authorities were searching for documents concerning the examination of the citizenship of the applicant’s late father.

On 13 September 2005 the District Court, having held another hearing, dismissed the applicant’s action. It found that all the requirements for restitution had been met with the exception of loss of property due to racial persecution. The court underlined that when assessing that requirement it was bound by the ruling of the Constitutional Court of 16 December 2004.

On 5 June 2006 the Regional Court upheld this judgment.

On 6 November 2007 the Supreme Court rejected the applicant’s appeal on points of law, referring to the binding interpretation by the Constitutional Court of the notion of racial persecution.

On 8 February 2008 the applicant appealed to the Constitutional Court, asserting an erroneous interpretation of the notion of racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act and procedural shortcomings in consequence of which she had not put forward any evidence establishing that her father’s mother was of Jewish origin. It appears that her constitutional appeal remains undecided.

On 11 February 2005 the State represented by the National Heritage Institute filed against the applicant an action for determination of ownership of the estate with the District Court.

In a judgment of 23 December 2005 the court granted the State’s action and found it to be the owner of the estate and decided that the Institute was empowered to maintain the estate.

On 11 September 2006 the Regional Court quashed this judgment as to the District Court’s finding that the Institute was empowered to upkeep the estate, stayed the proceedings in this respect and transferred this part of the case to the Ministry of Finance. It noted that the District Court had been bound by the judgment of the Constitutional Court of 16 December 2004. The judgment became final on 11 October 2006.

On 29 January 2007 the State was registered in the land register as the owner of the estate.

The act provides for mitigation of injustices caused by the Communist rule in Czechoslovakia from 25 February 1948 to 1 January 1990 (“the relevant period”).

Under section 2(1) property injustices caused by, inter alia, unlawful practices carried out in the relevant period, are to be mitigated, inter alia, by the surrender of the property, provided that the injustices originated in political persecution or in a practice contravening universally accepted human rights and freedoms (section 2(1)(c)).

Section 3(2) extended the application of the Act to natural persons who had lost their property due to racial persecution during the Second World War and were entitled to restitution of it after the war pursuant to Decree no. 5/1945 or Act no. 128/1946 and in respect of whom the Communist regime established on 25 February 1948 had failed to grant such claims whilst pursuing its policy of political persecution or carrying out practices contrary to universally accepted human rights and freedoms.

Under section 23 if a chamber comes to a legal view differing from that expressed by the court in a previous ruling, it shall submit the issue to the Plenum for its consideration. The latter’s legal view is binding on the chamber in further proceedings.

Under section 72(1)(a), a constitutional appeal may be lodged pursuant to section 87(1)(d) of the Constitution by a natural or legal person, alleging that its fundamental rights or basic freedoms guaranteed by the constitutional law have been infringed as a result of a final decision in proceedings to which it was a party, a measure, or any other infringement by a public authority.

The Constitutional Court rejected a constitutional appeal lodged by a group of MPs seeking to abrogate the adjective “racial” from section 3(2) of the Extra-Judicial Rehabilitation Act. In their view, the term “racial persecution” created inequality on the ground of race among those whose property was adversely affected during the occupation. They asserted that it manifestly contravened the International Convention on the Elimination of All Forms of Racial Discrimination adopted by the UN General Assembly in 1965 and the Charter of Fundamental Rights and Freedoms. In the court’s view the impugned provision had to be interpreted in conformity with these legal instruments. It held, inter alia:

“[I]t is evident that racial discrimination under the Third Reich concerned a much larger group (groups) of people than only those concerned by the Nuremberg Laws [i.e. Jews], and that the legal terms such as “national, racial and political” used in section 1(1) of Decree no. 5/1945 are largely superfluous.”

The Constitutional Court rejected a constitutional appeal lodged by the Office for the Representation of the State in Property Matters. The Office had contested the legal assessment of ordinary courts as to which State body should be held liable to pay compensation to a private individual. Having noted that that issue was governed by public law, the court ruled that the Office could not be regarded as an owner disposing freely of its property, but merely as a State body acting in its public authority, which does not have a standing to appeal to the Constitutional Court.


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants live in various towns of Leningrad and Pskov Regions of Russia.

The applicants, all former or active military servicepersons, were entitled to certain service-related benefits, to be paid by the Ministry of Defence of the Russian Federation. In 2002 they sued the military authorities claiming the arrears related to those benefits.

On the dates set out in appendixes nos. 2, 3 and 4 the domestic courts granted the applicants' claims and ordered the military authorities to pay them the respective amounts. Some of the awards were denominated in Russian roubles (RUB), whereas others were denominated in United States dollars (USD).

On various dates the courts issued writs of execution. The applicants forwarded them with accompanying documents to the treasury office. However, the writs were returned to the applicants unexecuted. The treasury office explained to some of the applicants that the Ministry of Defence (the debtor) had no funds available. The applicants then addressed the writs of execution to the Ministry of Finance. However, the judgments remained unexecuted.

In March-April 2003 some of the applicants wrote letters to the Ministry of Finance and other State bodies seeking the enforcement of the judgments. The Ministry of Finance replied that they had no power to execute the judgments and transfer the money from the accounts of the Ministry of Defence without the consent of the latter. The Ministry of Defence informed the applicants that the judgments could not be executed since no funds had been allocated for that purpose.

On the dates set out in appendix no. 2 the applicants listed therein received the amounts due pursuant to the execution writs. They submitted copies of banking receipts as evidence in that respect.

The applicants listed in appendix no. 3 were awarded various sums of money denominated in USD, to be converted into RUB at a rate applicable on the date of the judgment. However, the payments were made to them at a rate applicable on the date of the execution, which was lower. As a result, they received lesser amounts in RUB than they had expected. The applicants claimed that the judgments in their favour were thus not executed in full. They submitted copies of banking receipts and information on the official exchange rates (those of the Central Bank) on the relevant dates.

Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov were also awarded various amounts denominated in USD (see appendix no. 4). Mr Sedykh was awarded a sum in USD at a rate applicable on the date of execution. The judgments in favour of Mr Kositsyn and Mr Oleg Zakirov did not indicate the exchange rate applicable for the payment. The applicants claimed that the judgments in their favour were not executed in full referring to the same arguments as the applicants listed in appendix no. 3 (see paragraph 10 above). According to the Government the judgments in favour of the applicants listed in appendix no. 3 and in favour of Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov were fully executed.

On 21 January 2003 the lawyer of the above two applicants addressed the writs of execution to the Ministry of Finance. According to the official stamp of the Ministry, they were received on the same day.

On 27 August 2003 the Ministry of Finance returned the documents along with the writ of execution to Mr Nikolaychuk on the ground that his lawyer had not submitted all the necessary supporting documents. According to the applicants all the necessary documents were submitted. In October 2003 the applicants' lawyer re-submitted the documents of Mr Nikolaychuk to the Ministry of Finance.

According to Ms Bobrova, her documents were apparently returned to her address indicated on the writ of execution. Since Ms Bobrova did not live at that address at the time, the post office sent the documents back to the Ministry of Finance. According to the Government, the Ministry of Finance have never received Ms Bobrova's documents.

The judgments in favour of Mr Nikolaychuk and Ms Bobrova (see appendix no. 4) are not executed to date.


The applicant, Mr Johan Verhoek, is a Netherlands national, who was born in 1954 and has no known fixed abode in the Netherlands. He is represented before the Court by Mr M. Moszkowicz Sr., a lawyer practising in Maastricht.

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

In 1991 a combined fiscal and criminal investigation under the code name Kolibrie (hummingbird) was opened into a criminal organisation allegedly engaged in large-scale shipment of drugs from Pakistan to the Netherlands, the Azores and Canada. For this purpose an investigation team was created composed of police officers, fiscal investigation officers and public prosecutors (the Kolibrie-team). Over the years numerous witnesses and suspects were questioned, requests for mutual legal assistance were made to, inter alia, Paraguay, Sweden, the Bahamas, Spain and Switzerland, rafts packed with drugs were seized in Canada, a search operation was carried out in co-operation with the navy and barrels filled with drugs were salvaged by divers off the coast of the Azores.

The investigation concentrated, inter alia, on the following shipments:

the shipment of about 20,000 kilograms of marihuana to the Netherlands aboard the Aquarius/Moana B;

the shipment of about 60,000 kilograms of marihuana to the Netherlands and Canada aboard the Lukas;

the shipment of about 120,000 kilograms of marihuana to Canada and the Azores aboard the Pacific Tide/Giant 4.

In June 1993 a certain K., who was under investigation for his alleged participation in the Pacific Tide/Giant 4 shipment, gave a statement to a Netherlands public prosecutor about one of these shipments. At the time he was being detained in France, where he had been convicted of involvement in another shipment of drugs. He indicated that he was willing to make further statements in exchange for an early extradition to the Netherlands. After he had served his prison sentence in France, K. spent several months in detention pending extradition and in July 1995 he arrived in the Netherlands. He was detained on remand on suspicion of participation in the above-mentioned shipments of drugs. He made further statements to the police. Seven of these statements consisted of falsehoods. According to K., his statements contained falsehoods because he did not trust his lawyer. In August 1995 a written agreement was concluded between K. and the public prosecutors T. and W. According to the agreement, K. undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so. In exchange for his statements he was released from detention on remand and was given an undertaking that if the prison sentence imposed on him exceeded the time he had already spent in detention pending extradition and detention on remand, the sentence would not be executed. Furthermore, the public prosecution service (openbaar ministerie) undertook to take appropriate measures to safeguard his safety as far as possible. If K. reneged on his obligations, the prosecution service reserved the right to use his statements and would no longer be bound to comply with its part of the agreement.

Thereupon, K. continued to make detailed statements about the preparation for and the carrying out of the shipments of drugs as well as about the people involved, including himself and the applicant.

In 1995 the lawyers of a certain A., a suspect in the Kolibrie investigation, contacted the public prosecution service. A. was aware of the fact that he was under investigation in the Netherlands and indicated that he was interested in talking to the prosecution service. An agreement between A. and the public prosecutors T. and W. was concluded and was consigned to writing. A. undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so. In exchange, he was enabled to trade off any criminal prosecution in the Netherlands in respect of the criminal offences to which he had confessed by making a payment of 1,800,000 Netherlands guilders (NLG) (820,000 euros (EUR)). The public prosecution office undertook to inform the authorities of several other countries about A.’s co-operation. The prosecution service reserved the right to use A.’s statements and not to comply with its part of the agreement if A. reneged on his obligations. A. made 23 statements about the organisation of the drugs shipments and the people involved, including himself and the applicant. The first seven statements contained demonstrable falsehoods.

K. and A. were also questioned by the United States Drugs Enforcement Administration (“DEA”) about several shipments of drugs.

In January 1996 the applicant, who was by then suspected of being one of the ringleaders of the criminal organisation responsible for the shipments, was arrested and detained on remand.

The applicant was charged with membership of a criminal organisation and participation in the shipment of drugs aboard the Aquarius/Moana B, the Lukas and the Pacific Tide/Giant 4. Between 22 April 1996 and 24 January 1997, 29 hearings were held before the Regional Court (arrondissementsrechtbank) of Amsterdam. On 7 February 1997 the Regional Court convicted the applicant of all charges and sentenced him to six years’ imprisonment. The applicant lodged an appeal and between 20 June 1997 and 16 January 1998, 20 hearings were held before the Court of Appeal (gerechtshof) of Amsterdam.

In the course of the proceedings before the Regional Court and the Court of Appeal the following relevant events occurred:

K. and A. were questioned extensively before the investigating judge, before the Regional Court and before the Court of Appeal about their motives for testifying, about the falsehoods in their initial statements, about the agreements reached with the public prosecution service and about the contents of their statements. K. was also questioned about the course of events during his imprisonment in France in 1993.

Both K. and A. claimed the right to remain silent in respect of certain questions put by the defence. After having heard the arguments of K. and A. as well as the submissions of the defence and of the prosecution, the domestic courts ordered that K. and A. answer most of these questions. They were excused from answering some questions relating to their contacts with the DEA and their financial situation, since replying to these questions was considered likely to incriminate or endanger them.

Numerous other witnesses were questioned, inter alia, business and personal contacts of K. and A., about the latter witnesses’ reliability and credibility. A French investigating judge was questioned about K.’s situation in 1993. Furthermore, two law professors and an expert who had made a comparative law study on agreements with witnesses were extensively questioned by the Regional Court about all manner of legal issues relating to this kind of agreement. The public prosecutors T. and W. were questioned before the Court of Appeal about the course of the investigation, the agreements with K. and A. and their contacts with several other witnesses.

The Court of Appeal rejected the defence’s request to question Maître Chégin, K.’s lawyer in France in 1993, being of the opinion that his testimony could not have any bearing on any decision to be taken in the case against the applicant. The Court of Appeal reasoned in this connection that the questions which the defence wanted to put to him concerned the agreement concluded between K. and the public prosecution service in August 1995, whereas Maître Chégin had been K.’s lawyer in 1993.

In the course of the proceedings before the Regional Court it became clear that the public prosecution service and K.’s lawyer, Van G., had been in contact and had exchanged correspondence relating to various financial aspects of the agreement concluded between the public prosecution service and K. Part of this correspondence was added to the case file and K., the public prosecutors T. and W. as well as Van G. were questioned before the Court of Appeal about their correspondence.

During the hearings and in their pleadings before the Regional Court and the Court of Appeal, the defence extensively challenged the lawfulness of the agreements and their contents, sought to cast doubt on the credibility of the witnesses K. and A. and complained about the withholding of information relating to the financial aspects of the agreement with K. and the fact that the witnesses had been excused from answering certain questions in spite of the condition in the agreements that they would not invoke their right to remain silent. The defence further alleged that the prosecution had acted in bad faith and had tried to mislead both the defence and the judges on several occasions.

In a judgment of 30 January 1998 the Court of Appeal quashed the Regional Court’s decision, convicted the applicant on all charges and sentenced him to five years and six months’ imprisonment and a fine of NLG 1,000,000 (EUR 453,000).

The judgment contained a lengthy legal analysis of the compatibility of the agreements concluded between the public prosecution service and the witnesses K. and A. with Netherlands law, the political developments on this issue, the principles of proper conduct of proceedings and the requirements of Article 6 of the Convention. The Court of Appeal concluded that the agreements were permissible and lawful except for the undertaking made to K. to the effect that he would not have to serve a possible prison sentence. The Court considered:

“The public prosecution service is free to make decisions about the investigation and prosecution of criminal offences, including the giving of an undertaking to demand that a certain penalty be imposed. The public prosecution service is not free to assume the authority that any penalty which might be imposed on K. by a judge would not have to be executed... The decision to include this undertaking in the agreement with K. is thus ... not lawful. This unlawfulness ... however, is not of such a nature that the prosecution case against the applicant should be declared inadmissible. The present criminal proceedings are characterised by the fact that, for the first time, the conclusion of agreements with co-suspects has been submitted for the full consideration of a judge. No plausible grounds have been made out for concluding that the public prosecution service acted in bad faith, and thus intentionally breached the law, merely in order to frustrate the interests of the integrity of criminal proceedings. Nor have plausible grounds been made for concluding that the public prosecution service entered into the impugned undertaking with the purpose of acting in contempt of the decision of the judge in the present case.”

Although it decided that the prosecution of the applicant was not barred, the Court of Appeal considered that the unlawful undertaking made to K. was one of the factors which should lead to a reduction of his sentence from the seven years’ imprisonment it would have imposed, to five years and six months. The Court of Appeal considered that the remainder of the agreements was permissible under Netherlands law and that the conclusion of the agreements had neither violated the principles of the proper conduct of proceedings nor the applicant’s right to a fair trial. It proceeded to examine whether the statements of K. and A. could be used in evidence:

“The extent to which the statements of K. and A. may be used in evidence nevertheless requires further examination. It has to be examined whether K. and A. made their statements in the absence of pressure or constraint. Partly in view of the agreements underlying the statements, consideration should also be given to the question whether the defence had the opportunity adequately to scrutinise the statements of K. and A.

Such further examination is also necessary because the reliability and credibility of the statements of K. and A. may have been adversely affected by what they felt obliged to do or by what they deemed was in their own best interests, given the contents of the agreements with the public prosecution service. In addition, it should be borne in mind that these witnesses stand accused of offences relating to more or less the same set of facts as the defendant.”

Accordingly, the Court of Appeal went on to examine closely the reliability of K. and A. and the credibility of their statements. In this context, it had regard to the position and personality of both K. and A., the possibilities which the defence had had to examine their statements, the contents of these statements, the other evidence, the impression both witnesses had given the court as well as the applicant’s response to K.’s and A.’s statements. The Court of Appeal considered that their statements were detailed and disclosed concrete reasons for their knowledge. Although K. and A. did not know each other, their statements corresponded and were corroborated by the statements of four other witnesses as well as by other evidence. The Court of Appeal also considered that the applicant had not submitted any facts to challenge the statements of K. and A. Taking these considerations into account, and stating explicitly that this matter had to be treated with particular caution (bijzondere behoedzaamheid), the Court of Appeal found that the statements made by K. and A. were reliable and credible.

The Court of Appeal further considered:

“[The] principles of the proper conduct of proceedings imply above all that the defence, confronted with an agreement concluded by the public prosecution service with a witness, be given complete disclosure – with a view to the exercise of the rights of the defence – about the existence of the agreements, the manner of their conclusion as well as their contents, and also that the defence be given every opportunity to challenge the manner of conclusion and the contents of the agreements.

These requirements have been completely met. The existence of the agreements and the identity of K. and A. were disclosed from the outset. The agreements were put down in writing and were included in the case file together with all relevant documents. In the presence of the defence, K. and A. have been questioned as witnesses on this issue at every stage of the proceedings, and [the prosecutors] T. and W. have been questioned about it at the trial on appeal. It has appeared that no relevant difference of opinion exists between the prosecutors and K. and A. about the meaning of the agreements and the way in which they were concluded. Even apart from that, the defence has been enabled to obtain all necessary information concerning the agreements.”

With regard to the complaint that information about the negotiations between the public prosecution service and K.’s lawyer concerning the financial aspects of the agreement had initially been withheld, the Court of Appeal considered that the applicant had been able to raise this issue both before the Regional Court and the Court of Appeal and to have it examined fully: part of the correspondence between the public prosecution service and Van G. had been added to the case file and counsel for the defence had been able to question K., Van G. and the public prosecutors W. and T. on this issue. The allegation that the prosecution had intentionally misrepresented the amount of the financial reward promised to K. as well as the contents of the negotiations was dismissed as being implausible.

The Court of Appeal further dismissed as unfounded a number of other accusations made by the defence to the effect that the public prosecution service had intentionally violated the rights of the applicant. It convicted and sentenced the applicant as set out above. Apart from the statements made by K. and A., the Court of Appeal also relied on the statements of nine other witnesses, financial documents, several official reports of police officers and the results of the examination of samples of drugs.

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal.

The Supreme Court gave judgment on 6 April 1999. It dismissed the appeal in its entirety.

In response to seven complaints concerning the contents and conclusion of the agreements with K. and A., and with reference to its own case-law (decision of 30 June 1998, Nederlandse Jurisprudentie – Netherlands Law Reports – 1998, no. 799) and to a number of Commission decisions (X. v. the United Kingdom, no. 7306/75, Commission decision of 6 October 1976, Decisions and Reports 7, p. 115; Salmon Meneses v. Italy, no. 18666/91, Commission decision of 30 November 1994, unreported; and Flanders v. the Netherlands, no. 25982/94, Commission decision of 15 January 1996, unreported), the Supreme Court reiterated that, as long as the conclusion of agreements was not regulated by law, the question to be examined was whether the actual circumstances of every case were compatible with the fundamental rights of an accused as guaranteed by Article 6 of the Convention and with the principles of the proper conduct of proceedings derived from, inter alia, Article 6 of the Convention. Noting that the reliability of statements of a suspect in exchange for promises by the prosecution may be adversely affected by what a witness feels obliged to do or by what he or she deems to be in their own best interest, it considered that this kind of witness should be questioned by a judge, preferably in open court, and, where the credibility of a witness was challenged, it should appear clearly from the trial courts’ judgments that this issue had been examined.

The Supreme Court upheld the decisions of the Court of Appeal regarding the agreements and dismissed ten other complaints, adopting mainly summary reasoning.

In the early 1990s serious concerns arose over the methods of criminal investigation used in cases concerning organised crime. A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted, which presented its final report on 1 February 1996. In this report agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion and legislation is now under preparation to regulate agreements with criminal witnesses.

Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering), insofar as relevant, provides that a suspect is not obliged to reply to questions put to him or her by a judge or investigating officer.

Article 219 of the Code of Criminal Procedure provides that a witness is allowed to refrain from answering questions if replying to those questions would expose him or her to the risk of a criminal conviction.