Violation of Art. 5-3;Non-pecuniary damage - financial award

The applicant was born in 1982 and lives in Siecie, Poland.

On 15 April 2000 the applicant was arrested. On the following day the Słupsk District Court remanded him in custody until 15 May 2000 on suspicion of homicide and attempted burglary. It relied on the evidence given by the applicant’s co-suspect. In addition, the court held that his detention was justified in order to secure the proper conduct of the proceedings and referred to the severity of the anticipated penalty. Furthermore, having regard to the fact that the applicant had not confessed, the court considered that there was a reasonable risk that he would attempt to induce witnesses to give false testimonies or otherwise interfere with the proceedings.

On 11 May 2000 the District Court prolonged the applicant’s detention until 15 July 2000. It referred to the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty. The court further held that there was a reasonable risk that the applicant would unlawfully obstruct the proceedings, having regard to the fact that his co-suspect had not been detained at the time. Additionally, it relied on the need to obtain further expert evidence. Lastly, the court considered that other preventive measures would not secure the proper conduct of the proceedings.

On 11 July 2000 the Słupsk Regional Court dismissed the prosecutor’s request for prolongation of the applicant’s detention and ordered his release. It found that there had been no other evidence of the applicant’s alleged involvement in the offences in question than the statements of his co-suspect. In addition, the statements of that co-suspect had not been consistent as at the earlier stage of the investigation he had excluded a possibility of the applicant’s involvement in the offences. The applicant was released on 11 July 2000.

On 11 July 2000 the Regional Court ordered the applicant to undergo a six-week psychiatric examination in order to determine whether he could be held criminally responsible.

On 17 July 2000 the prosecutor appealed against the decision refusing his request for prolongation of the applicant’s detention. On 26 July 2000 the Gdańsk Court of Appeal quashed the contested decision for failure to assess all the evidence in favour and against holding the applicant in custody and remitted the case.

Between 10 August and 4 September 2000 the applicant underwent examination in a psychiatric hospital.

On 17 August 2000 the Słupsk Regional Court again refused the prosecutor’s request for prolongation of the applicant’s detention. The prosecutor’s request was based on the evidence given by the applicant’s co-suspect. The Regional Court, however, found it to be unreliable. The prosecutor appealed against the decision of 17 August 2000. On 30 August 2000 the Gdańsk Court of Appeal quashed the impugned decision on procedural grounds and remitted the case.

On 18 September 2000 the Słupsk Regional Court ordered the applicant’s detention for a period of 2 months. It held that the period of the applicant’s examination in a psychiatric hospital should count towards his detention on remand. The Regional Court relied on the statements of the applicant’s co-suspect, which it had found to be consistent. Further, it had regard to a report by the smell recognition expert (opinia osmologiczna) of 10 September 2000 and medical evidence concerning the victim of the homicide. It also relied on the severity of the anticipated penalty. The applicant was re-detained on 22 September 2000.

On 19 October 2000 the bill of indictment against the applicant and three of his co-accused was submitted to the Słupsk Regional Court.

On 20 October 2000 the Regional Court extended the applicant’s detention until 28 January 2001. In addition to the grounds invoked in its previous decision, the court considered that the applicant’s continued detention was necessary in order to secure the proper conduct of the proceedings, given the serious nature of the offences with which the applicant had been charged.

The trial court held hearings on 22, 23 and 24 November and 8 December 2000.

On 15 December 2000 the Słupsk Regional Court convicted the applicant of aggravated homicide and attempted burglary and sentenced him to 15 years’ imprisonment. The applicant appealed against that judgment.

On 22 March 2001 the Gdańsk Court of Appeal quashed the judgment of the Regional Court and remitted the case for retrial. It found that the trial court had exceeded its discretion as to the assessment of relevant evidence, in particular in respect of that given by the applicant’s principal co-accused and the findings of the smell recognition expert.

On the same date the Court of Appeal ordered that the applicant be kept in custody until 30 June 2001. It noted, having regard to the statements of the applicant’s principal co-accused and the report by the smell recognition expert, that there was a strong likelihood that the applicant had committed the offences in question. Furthermore, it relied on the severity of the anticipated penalty.

The applicant’s detention was subsequently prolonged by the Regional Court on five occasions: on 28 June 2001 (until 30 October 2001), on 29 October 2001 (until 30 January 2002), on 15 January 2002 (until 30 April 2002), on 18 April 2002 (until 30 June 2002) and on 14 June 2002 (until 30 August 2002). In all those decisions, the Regional Court reiterated the grounds given in the Court of Appeal’s decision of 22 March 2001. In addition, it referred to the circumstances in which the offences in question had been committed and the need to obtain further expert evidence.

The Regional Court held hearings on 11, 12 and 13 December 2001 and 13 February, 18 March, 18 April and 10 May 2002.

On 10 July 2002 the Słupsk Regional Court convicted the applicant and his co-accused of aggravated homicide and attempted burglary and sentenced him to 15 years’ imprisonment. The applicant appealed against that judgment. On the same date the Regional Court prolonged the applicant’s detention until 30 October 2002.

On 30 January 2003 the Court of Appeal quashed the first-instance court judgment in respect of the applicant on the same grounds as previously and remitted the case.

Subsequently, the applicant’s detention was extended by the Regional Court on five occasions: on 28 April 2003 (until 30 July 2003), on 17 June 2003 (until 30 October 2003), on 10 October 2003 (until 30 December 2003), on 12 December 2003 (until 31 January 2004) and on 15 January 2004 (until 31 March 2004). The Regional Court reiterated the grounds previously given for his detention. In addition, the court held that the applicant’s continued detention was justified by the gravity of the offences with which he had been charged. In the court’s view, the applicant’s detention was the only measure which could secure the proper conduct of the proceedings. In the decision of 17 June 2003 the Regional Court noted that his continued detention was necessary in order to obtain another report of the smell recognition expert.

The applicant’s numerous appeals against the prolongation of his detention and requests to be released were to no avail.

The Regional Court held hearings on 17, 18, 20, 21 November, 10, 12 December 2003 and 15 January and 20 February 2004. In September and November 2003 respectively two reports of the smell recognition experts were submitted to the trial court.

On 27 February 2004 the Regional Court gave judgment and acquitted the applicant. He was released on the same day. On 8 July 2004 the Gdańsk Court of Appeal upheld the judgment of the Regional Court. The prosecution filed a notice of cassation appeal, but subsequently withdrew it.

In February 2005 the applicant filed an application for compensation in respect of his manifestly unjustified detention with the Słupsk Regional Court. These proceedings are pending.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years.

Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant in the first case, Mr Antonio Peruzzo (hereinafter also referred to as “the first applicant”), is an Italian national, who was born in 1957 and lives in Freienbach, Switzerland. He was represented before the Court by the law firm Endriß, Müller, Malek, Phleps & colleagues, Freiburg, Germany.

The applicant in the second case, Mr Uwe Martens (hereinafter also referred to as “the second applicant”), is a German national, who was born in 1976 and lives in Nuremberg.

The instant applications relate to decisions by the domestic courts ordering the taking of cellular material from the applicants, who had both been convicted of criminal offences in the past. The measures were ordered pursuant to Article 81g of the Code of Criminal Procedure (Strafprozessordnung - see Relevant domestic law below) outside pending criminal proceedings at the prosecution authorities’ request with a view to determining the applicants’ DNA profiles for identification purposes on the occasion of future criminal proceedings.

The courts ordered in each case that in the event the applicants should refuse to voluntarily provide cellular material by means of a saliva sample, a blood sample was to be taken from them by a doctor in accordance with Article 81a § 1 of the Code of Criminal Procedure (see Relevant domestic law below). They further specified that any cellular material obtained from the applicants had to be handed over to the expert in charge of its examination without disclosing the applicants’ identity, that the sample was to be used exclusively for the molecular genetic examinations referred to in Article 81g of the Code of Criminal Procedure and that it was to be destroyed without delay once it was no longer required for establishing the applicants’ DNA profiles.

In its related decision of 2 February 2007 with respect to Mr Peruzzo the Freiburg District Court noted that the first applicant had been convicted by a judgment of the Karlsruhe Regional Court dated 25 January 2006 of six counts of drug trafficking and been sentenced to an aggregate prison sentence of five years and nine months. On four occasions the crime had been preceded by the offence of illicit importation of drugs and on two occasions the first applicant had in addition instigated the illicit importation of drugs. The District Court further pointed to two previous convictions of Mr Peruzzo in Switzerland for having infringed the Swiss Narcotics Law. It referred in this context to judgments by the Horgen District Court (Bezirksgericht) dated 10 February 1982 and by the Schwyz Canton Criminal Court dated 22 April 2005 imposing a prison sentence of two years and 8 months and a suspended prison sentence of 15 months respectively.

In view of the seriousness of the offences committed in the past and the resulting negative criminal prognosis for the first applicant, the Freiburg District Court found that the order to take a DNA sample from him and the execution of such measure were proportionate.

By a decision of 25 April 2007 the Freiburg Regional Court, endorsing the Freiburg District Court’s decision, dismissed the first applicant’s related appeal and held that the conditions for the taking of an DNA sample pursuant to Article 81g § 1 of the Code of Criminal Procedure were met in the instant case. In the Regional Court’s opinion the considerable length of the prison sentence imposed on the first applicant by the Karlsruhe Regional Court in 2006 showed that the underlying drug offences constituted serious crimes in the meaning of the said provision. In this connection and in particular in view of the considerable amount of drugs that had been trafficked it was irrelevant that the applicant had “only” dealt with marihuana. The Regional Court further found that there were grounds to assume that criminal proceedings concerning serious offences would have to be conducted against the applicant in the future. The first applicant’s negative criminal prognosis followed in particular from the fact that his conviction in 2006 had not only related to a single spontaneously committed offence of drug trafficking but to a series of offences committed over the period from May 2004 to January 2005. Moreover, he had previously been convicted of similar offences in Switzerland. The fact that his first conviction by the Horgen District Court dated back as long as 1982 did not put into question his negative criminal prognosis. It had been demonstrated by the judgment of the Schwyz Canton Criminal Court dated 22 April 2005 that the applicant had committed further drug-related offences in the period from 2002 to 2003 in Switzerland, i.e. prior to his conviction in Germany in 2006. The Regional Court further specified that the applicant’s potential expulsion to Switzerland did not have an impact on its assessment of the case. Pursuant to German criminal law crimes of the kind at issue were subject to German jurisdiction even when committed abroad. Moreover, the fact that an individual had his place of residence abroad did not prevent him from committing offences in Germany.

By written submissions to the Freiburg Regional Court dated 9 May 2007 the first applicant argued that there was nothing to indicate that he would commit further offences similar to the ones that had been at the origin of his previous convictions. He invoked in particular that the crimes referred to by the Freiburg District Court in its decision of 2 February 2007 dated back several years and that he had already served prison sentences of a considerable duration in this respect. Furthermore, since he was supposed to be expelled to Switzerland after having served half of his prison sentence, it was unlikely that he would reoffend in Germany and take the risk of having to serve the residual term of his prison sentence as a consequence.

On 11 May 2007 the Freiburg Regional Court held that the first applicant’s submissions did not provide any additional arguments that would require it to deviate from its previous decision of 25 April 2007.

By a decision of 14 August 2007 (file no. 2 BvR 1340/07) the Federal Constitutional Court dismissed the applicant’s constitutional complaint without providing reasons.

In its decision of 24 May 2012 with respect to Mr Martens the Nuremberg District Court, referring to the latter’s criminal record since 1999, held that the repeated commission of offences by the second applicant in the past had reached a degree of unlawfulness equal to the commission of an offence of considerable significance within the meaning of Article 81g of the Code of Criminal Procedure. In 1999 the second applicant had been convicted by the Nuremberg District Court of having caused bodily harm by dangerous means (gefährliche Körperverletzung) and had been sentenced to a suspended prison sentence of seven months. By a judgment of 18 May 2006 the Erlangen District Court had found him guilty of two counts of attempted coercion (versuchte Nötigung) and had imposed a fine of 900 euros payable in 60 daily instalments. On 19 March 2008 the same court had convicted the second applicant of a further offence of having caused bodily harm by dangerous means and sentenced him to a suspended prison sentence of one year. Finally, by a judgment of the St. Pölten Regional Court (Landgericht), Austria, of 12 May 2011, he had been found guilty of having persistently stalked a woman and had been sentenced to ten months’ imprisonment. As regards the two incidents involving bodily harm in 1999 and 2008 the Nuremberg District Court specified that the second applicant had sprayed tear or pepper gas into his respective victims’ faces from a short distance leaving one victim with painful skin irritations and the other with an eye inflammation.

In the Nuremberg District Court’s opinion the manner in which the offences had been committed showed that the second applicant had a tendency to compromise considerably the physical well-being of others and that further serious criminal offences were to be expected from him in the future. The court further found that having regard to the intervals in which the offences had been committed, it could be expected that the second applicant would repeatedly commit further offences similar to the ones that had been at the origin of the criminal proceedings instituted against him in the past. Having regard to the nature of the offences at issue it was conceivable that DNA traces would be left at the scene of a future crime and the measure ordered by the court was thus justified and necessary for the purpose of establishing identity and gender on the occasion of future criminal proceedings.

By written submissions dated 26 May 2012 the applicant appealed the District Court’s decision. He maintained in particular that the offences committed by him in the past had not been of a gravity that justified an interference with his personal rights under Article 81g of the Code of Criminal Procedure. He further complained that the District Court had not complied with his request to hear him in person and had not adequately reasoned its decision.

By a decision of 5 July 2012 the Nuremberg-Fürth Regional Court dismissed the appeal holding that the conditions for the taking of a DNA sample pursuant to Article 81g of the Code of Criminal Procedure had been clearly met in the instant case and that the District Court’s order had consequently been proportionate. The Regional Court held that, firstly, the two incidents involving bodily harm that had been at the origin of the second applicant’s convictions in 1999 and 2008 constituted serious offences in the meaning of the said provision. On each of these occasions the second applicant had shown aggressive behaviour towards third persons without having been particularly provoked by the latter. Both offences had been committed in a similar way and demonstrated a significant criminal energy on the part of the second applicant and his potential for aggression.

The Regional Court further recalled that Article 81g of the Criminal Code put the repeated commission of offences on an equal footing with the commission of a serious crime for the purpose of justifying the taking of a DNA sample. The Regional Court pointed out that the legislator had specified in this context that repeated offences in the context of so-called stalking of the type that had been at the origin of the second applicant’s conviction by judgment of the St. Pölten Regional Court in 2011, constituted an example where the repeated commission of an offence reached a degree of unlawfulness that was equal to the commission of a serious offence. The second applicant’s previous convictions further showed that he had a tenacious and incorrigible character which was also reflected in his partly confused and incomprehensible submissions to the Regional Court in the instant proceedings. Having regard to the second applicant’s numerous past convictions, his personality and the circumstances under which the offences had been committed, the Regional Court found that there clearly remained a risk that criminal proceedings concerning similar offences would have to be conducted against him in the future.

On 17 July 2012 the Erlangen District Court, at the prosecution authorities’ request, revoked the suspension of the second applicant’s prison sentence imposed by its judgment dated 19 March 2008 (see paragraph 12 above). With reference to the conviction for stalking by the St. Pölten Regional Court dated 12 May 2011 which had meanwhile become final, the District Court argued that the fact that the second applicant had reoffended in the course of his probationary period demonstrated that a suspended sentence was not sufficient to counter the risk of recidivism.

By a decision of 29 August 2012 (file no. 2 BvR 1934/12) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 24 August 2012 against the Nuremberg-Fürth Regional Court’s decision of 5 July 2012 without providing reasons. It further held that, as a consequence, there was no need to decide on the applicant’s request for interim measures.

While the applicants’ submissions suggest that the court orders were subsequently executed and DNA samples taken from each of them, neither of the applicants has specified on which date the intervention occurred and whether the samples were obtained by means of saliva or blood samples.

Article 81a to f of the German Code of Criminal Procedure (Strafprozessordnung) provide for the taking of DNA samples for the purpose of convicting suspects within the scope of pending criminal proceedings. By contrast, Article 81g regulates the taking of cellular material from suspects and convicts with a view to determining their DNA profile for use in future criminal proceedings. Article 81g § 1 in its current version, as also applicable at the time of the proceedings at issue, provides for such measure if a person is suspected of having committed or has been convicted of a criminal offence of considerable significance (Straftat von erheblicher Bedeutung) or of a crime against sexual self-determination and in the event the nature of the offence or the way it was committed, the personality of the concerned person or other information provide grounds for assuming that criminal proceedings will be conducted against him or her in future in respect of a criminal offence of considerable significance. Under these conditions cellular material may be obtained from the person concerned and subjected to molecular and genetic examination with a view to determining his or her DNA profile (DNA-Identifizierungsmuster) or gender for identification purposes in future criminal proceedings.

It is further specified in the provision that the repeated commission of criminal offences may reach a degree of unlawfulness (Unrechtsgehalt) that is tantamount to a criminal offence of considerable significance. This alternative ground for the taking of cellular material has been introduced into Article 81g § 1 by the Act on the revision of forensic DNA-analysis dated 12 August 2005 (Gesetz zur Novellierung der forensischen DNAAnalyse, Federal Gazette I, p. 2360). According to the explanatory memorandum to the Act the repeated commission of offences does not automatically reach the same level of significance as a serious crime. An order for the taking of cellular material under this alternative is only admissible in the event the circumstances of a particular case taken together provide evidence that the repeated commission of offences reaches the same degree of unlawfulness as a serious crime in the meaning of the provision. While, for instance, repeated fare evasion for public transport would as a rule not reach such threshold, this could, by contrast, be the case in the event of repeated trespassing in the context of stalking.

The second paragraph of Article 81g stipulates that cellular material obtained may be used only for the aforementioned molecular and genetic examination and shall be destroyed without delay once it is no longer required for that purpose. Information other than that required for establishing the DNA profile or the gender may not be ascertained during the examination and tests to establish such information shall be inadmissible. Without the written consent of the person concerned, the taking of cellular material may be ordered only by a court and, in case of imminent danger (Gefahr im Verzug), by the public prosecution authorities including the officials assisting it (section 152 of the Courts Constitution Act). Without the written consent of the person concerned, the molecular and genetic examination of cellular material may be ordered only by a court. The related court order shall specify in each case the determining facts relevant to ascertaining the seriousness of the criminal offence at issue, the information giving rise to the assumption that the accused will be the subject of criminal proceedings in the future, as well as an evaluation of the relevant circumstances.

Pursuant to Article 81g read in conjunction with the second paragraph of Article 81f of the Code of Criminal Procedure the courts shall appoint the experts responsible for the examination of the DNA material and determination of DNA profiles. The experts have to meet certain requirements with a view to ensuring their independence from the investigating authority as well as their professional integrity. They shall provide for the technical and organisational safeguards to ensure that inadmissible molecular and genetic examinations and unauthorised access to data are excluded. The cellular material to be examined shall be given to the expert with no indication of the name, address or date or month of birth of the data subject.

Article 81g § 5 states that the data obtained may be stored at the Federal Criminal Police Office (Bundeskriminalamt) and be used in accordance with the relevant provisions of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz). Data may only be transmitted for the purpose of criminal proceedings, preventive aversion of dangers (Gefahrenabwehr) or international legal assistance in respect thereof.

In the event of the taking of cellular material by means of a blood sample Article 81a of the Code of Criminal Procedure apples mutatis mutandis. The taking of blood samples is to be effected by a physician in accordance with the rules of medical science, provided no detriment to the concerned person’s health is to be expected. Blood samples or other body cells taken may be used only for the purposes set out in the Code of Criminal Procedure and shall be destroyed without delay as soon as they are no longer required for such purposes.

Since 1998 the Federal Criminal Office maintains a national DNA database in which DNA profiles obtained in compliance with Articles 81a to g of the Code of Criminal Procedure are stored. The Federal Criminal Police Office Act contains rules on the storage and use of such DNA profiles. According to section 2 of the Federal Criminal Police Office Act, the Federal Criminal Police Office in its capacity as central agency for police information and intelligence in connection with the prevention and prosecution of criminal offences of federal, international or considerable significance, shall collect and analyse all relevant information for carrying out such task. Pursuant to Section 8 § 5 of the Act a convict’s personal data may be saved in files for the use in future criminal proceedings in the event particular circumstances give reason for believing that the person concerned will commit criminal offences of considerable significance. Personal data taken from an individual suspected of having committed a criminal offence have, as a rule, to be deleted in the event the proceedings against the concerned person have been definitely discontinued or once the suspect has been acquitted (section 8 § 3). The data compiled in the national DNA database may be made available to the Federal and Länder police authorities and according to section 11 of the Act the public prosecution authorities may retrieve information from the database for the purpose of administering criminal justice. Section 32 of the Federal Criminal Police Office Act stipulates that personal data saved in files have to be deleted once their storage has become inadmissible or in the event the retention of the data is no longer necessary for the performance of the Federal Criminal Police Office’

By a judgment of 14 December 2000 (2 BvR 1741/99; 2 BvR 276/00 and 2 BvR 2061/00) the Federal Constitutional Court held that the provision of Article 81g of the Code of Criminal Procedure was constitutional. It emphasised that the scope of the provision was limited to the determination of a suspect’s or convict’s DNA profile for the purpose of establishing identity in future criminal proceedings and that the cellular material obtained in this respect had to be destroyed once the DNA profile was determined. The DNA profile as such did not allow for conclusions to be drawn as regards the personal characteristics of a concerned individual such as his or her hereditary dispositions, character traits or diseases and did not enable for an individual’s personal profile to be established. In the Constitutional Court’s opinion the core area of personality (Kernbereich der Persönlichkeit) that enjoyed absolute protection under constitutional law was thus not affected by the measures permitted under Article 81g.

The Constitutional Court found, however, that the determination, retention and future use of DNA profiles constituted an interference with the constitutionally guaranteed right to self-determination over personal data (informationelles Selbstbestimmungsrecht). Any restriction of such right was only permitted if prescribed by law and in the event it was justified by an overriding public interest and complied with the principle of proportionality. The Constitutional Court specified in this respect that while Article 81g was not aimed at the prevention of future criminal offences, it did however facilitate the investigation of future crimes of considerable significance and thus served the proper administration of justice. The Constitutional Court further held that the provision was sufficiently precise to qualify as a law from a constitutional point of view. The term “criminal offence of a considerable significance” could be found in a number of provisions of the Code of Criminal Procedure and had been defined in the established case law of the domestic courts as comprising crimes of medium gravity (mittlere Kriminalität) which seriously compromised law and order and were of a nature that could considerably affect the population’s sense of legal certainty (Rechtssicherheit).

The court finally held that the precautionary (“vorsorglich”) taking of evidence permitted under Article 81g did not infringe the principle of proportionality. The taking of such evidence could only be ordered in the event the concerned person had previously been convicted of an offence of considerable significance and in the event there were concrete indications that further proceedings concerning criminal offences of considerable significance were to be conducted against him or her in the future. Moreover, by strictly limiting the use of cellular material collected for the purposes defined in the Article and by making its destruction compulsory once the concerned person’s DNA profile was established, the legislator had provided for safeguards to prevent abuse of cellular material obtained.

The Constitutional Court specified that when ordering a measure pursuant to Article 81g the domestic courts had to establish and clarify the circumstances of each particular case. In their assessment they had to take into account the available criminal files and records with respect to the person concerned and had to provide plausible reasons for their assumption that it was likely that the latter would commit further crimes of considerable significance in the future.

By a subsequent judgment dated 14 August 2007 (2 BvR 1293/07) the Federal Constitutional further held that the possibility of ordering the taking of a DNA sample in the event the repeated commission of criminal offences showed a degree of unlawfulness similar to the commission of a serious criminal offence - an alternative introduced by the Act on the revision of forensic DNA-analysis dated 12 August 2005 - did not give rise to concerns from a constitutional point of view. With reference to the explanatory memorandum to the said Act (see above paragraph 19), the Federal Constitutional Court noted that this alternative did not allow the domestic courts to automatically conclude that the repeated commission of offences justified an order for the taking of cellular material. By contrast, the domestic courts were obliged to have regard to the specific circumstances of the individual case and in particular the personality of the person concerned and the manner in which the offences had been committed. On this basis they had to proceed to an overall assessment of the degree of unlawfulness reflected in the offences committed and to be expected in the future while always observing the principle of proportionality in their decision-making.

For a summary of relevant Council of Europe and European Union legal instruments and an overview of relevant national legislation in a selection of Council of Europe member states, reference is made to the Court’s judgment in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 41 to 53, ECHR 2008.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in 1971 and lives in Bucharest.

On 19 February 2001 the applicant was arrested by the Bucharest Police on suspicion of drug trafficking.

The next day he was placed in pre-trial detention by the prosecutor attached to the Bucharest District Court.

On 15 March 2001 the prosecutor committed the applicant for trial.

On 19 November 2001 the District Court convicted the applicant of drug trafficking and sentenced him to ten years and four months' imprisonment.

The sentence was upheld on appeal by the Bucharest County Court (decision of 3 April 2002) and on appeal on points of law by the Bucharest Court of Appeal (final decision of 25 June 2002).

On 30 August 2002 the applicant requested the revision of the judgment, arguing that he was in possession of new relevant evidence that would prove his innocence and that he was willing to deliver it in person to the prosecutor. On 3 February 2003 the Bucharest District Court declared his application inadmissible.

The applicant was held in detention from 19 February 2001 until his release on 19 May 2009.

Between 19 February 2001 and 4 July 2001 he was held in the detention facilities at Bucharest Police Station. From 4 July 2001 he was detained for the most part in Jilava Penitentiary and Rahova Penitentiary in Bucharest. For short periods of time, from March 2008, he served his sentence in the penitentiaries in Mărgineni, Tîrgu Jiu, Craiova and Aiud.

The applicant described the cells in Jilava Penitentiary as overcrowded and dirty, alleging that he contracted skin infections and scabies and caught fleas.

As for Rahova Penitentiary, he claimed that he shared a 6 sq. m room equipped with 10 beds with 11-13 other detainees. The room was infested with bedbugs and the walls were mouldy. Warm water was available once a week for one hour and heating was available in the evenings for one hour. The cell was ventilated through a window, but the door was constantly closed. The window pane was missing and the inmates put up a blanket in order to cover it.

Outdoor exercise was allowed twice a week for one hour.

The food was bad, and meat was available only on Christian holidays and in the event of inspections.

The detainees were taken for medical check-ups once a week and when treatment was needed they were advised to seek medicine from their families.

The Government provided official information, submitted by the Penitentiary authorities, concerning the size and facilities of all the cells that the applicant had occupied during his detention.

In Jilava, he stayed in the following cells: nos. 301, 209, 210, 310 and 314 which were all 32.99 sq. m in size and accommodated 19-44 inmates at the time; no. 510 which was 42.39 sq. m in size and accommodated 41-44 inmates at that time; and in no. 308 which was 51.23 sq. m in size and accommodated 23 inmates.

The official documents did not give the exact number of bunks per cell.

Each cell had a window and separate sanitary facilities with two toilets and a sink with drinking water. Hot water was available only in a special bathing area where the inmates were taken once a week.

Each winter heating was available between 1 November and 31 March, according to a pre-established schedule.

The inmates were responsible for the cleaning of their cells, using products put at their disposal by the penitentiary. Pest control measures and insecticide treatments were carried out each trimester.

The applicant was allowed at least 30 minutes of outdoor exercise per day.

In Rahova Penitentiary, the applicant shared a 19.55 sq. m cell with a maximum of 9 co-detainees. It had 10 bunk beds. A 5.55 sq. m room with a toilet and cold water was attached to the cell. Hot water was available twice a week between 12 noon and 2 p.m. and 5 p.m. and 7 p.m. The cells and the toilets had windows.

As in Jilava, the inmates cleaned their own cells and pest control measures were carried out each trimester.

Outdoor exercise was allowed for one to two hours each day.

According to the prison medical record, the applicant was registered on 19 February 2001 as a drug user, with the last dose being taken eight hours before the consultation. He was also recorded as suffering from posttraumatic stress, as a consequence of bone fractures suffered in 1996.

On 21 and 23 February 2001 he was recorded as suffering from withdrawal syndrome.

From 28 February to 4 March 2001 he went on hunger strike.

On 29 May 2003 the applicant was taken to the medical care centre after having attempted to commit suicide.

Regular check-ups were organised for the 1996 bone fractures. Several investigations were undertaken in the context of his requests for early release. On 5 February 2004 an orthopaedist in Jilava Penitentiary Hospital recommended surgery to remove the internal fixation (osteosynthesis) of the fractures. The repeated examinations and expert reports by the penitentiary doctors and by the Mina Minovici National Institute of Forensic Medicine (Institutul Naţional de Medicină Legală Mina Minovici - “the INML”) consistently concluded that adequate treatment and surgical intervention were possible in the penitentiary medical system.

However, the applicant refused to be operated on in the penitentiary hospitals.

In letters of complaint sent to various authorities and to the Court, the applicant and his wife claimed that the painkillers that he had received in prison had been insufficient for the pain associated with his bone fractures. From 2006 the applicant was given additional medicine for stomach ache, which he attributed to the painkillers prescribed.

On two occasions the applicant requested early release from prison on medical grounds, arguing that the bone fractures he had suffered in 1996 needed further treatment.

His first request was rejected on 21 January 2004 by the Bucharest District Court, based on a medical expert report of 20 January 2004 which had concluded that the applicant's conditions were treatable in the penitentiary hospitals. The applicant appealed. A new expert report ordered in the case also concluded that the applicant was medically fit for detention. Therefore, on 24 June 2004 the Bucharest County Court upheld the above judgment. The County Court also found that, in so far as the applicant's conditions were treatable in the penitentiary hospitals, his repeated requests to be treated in a civilian hospital or abroad were an abuse of process.

His second request for release, filed with the Bucharest District Court on 29 September 2005, was finally rejected on 19 April 2007, after numerous postponements caused by the applicant's refusal to undergo a medical examination. The expert report drafted on 26 March 2007 after the applicant's examination concluded once again that his conditions were treatable in the penitentiary hospitals.

The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) and Law no. 275/2006, is described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.

The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). In particular, the Court notes that in the report on the 2002-2003 visits, the CPT expressed concern at the limited living space available to prisoners and the insufficient space provided by the regulations in place at that date. It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not sufficiently separate from the living space.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Just satisfaction dismissed (out of time)

The applicant was born in 1955 and lives in Lugansk.

On 8 August 2001 the Leninskyy District Court of Lugansk ordered the State Enterprise “Luganskyy Stankobudivelnyy Zavod” to pay the applicant UAH 2,575.34 in salary arrears and compensation for the delay in its payment.

On 13 September 2001 the Leninskyy District Bailiffs' Service of Lugansk instituted enforcement proceedings.

On 13 November 2002 the Bailiffs' Service informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor's lack of funds.

On 19 April 2005 the applicant was paid the amount due to him in full.

In April 2002 the applicant instituted proceedings in the Leninskyy District Court of Lugansk against the same company, seeking compensation for its failure to pay him the judgment debt of 8 August 2001.

On 8 July 2002 the court rejected the applicant's claim as unsubstantiated. On 5 September 2002 and 28 January 2003, respectively, the Lugansk Regional Court of Appeal and the Supreme Court upheld the decision of 8 July 2002.

The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004).


Violation of Art. 2 with regard to death of applicant's son;Violation of Art. 2 with regard to failure to carry out effective investigation;No violation of Art. 3 in respect of applicant's son;Violation of Art. 3 in respect of applicant;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 13;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case, particularly concerning events from 14 October to 9 November 1993 when Muhsin Taş was held in custody by the security forces, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.

The Commission heard witnesses in Ankara from 7 to 8 May 1998. These included the applicant; Atilla Ceyhan, the public prosecutor at Cizre who signed the request for the extension in detention of Muhsin Taş; Dr Zekeiye Palpas, doctor at Cizre State Hospital who treated Muhsin Taş for a bullet wound to the knee; Dr Ahmet Can who examined Muhsin Taş at the Şirnak Military Hospital; Major Cemal Temizöz, the Cizre district gendarme commander who apprehended Muhsin Taş; Sergeant Burhanettin Kiyak who was present at Muhsin Taş’s apprehension; Colonel Erol Tuna, who was in charge of transferring Muhsin Taş from Cizre to Şirnak; Sergeant-Major Kemal Kılıçlı, Sergeant Adem Akyüz and Sergeant Dursun Öztürk, who worked in Şirnak provincial gendarme interrogation department at the time of Muhsin Taş’s arrival at Şirnak; and Nedim Kaya, a “confessor”, who had previously joined the PKK and had later given himself up to the authorities.

The Commission’s findings of fact are set out in its report of 9 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).

In October-November 1993, the Cizre region in the south-east corner of Turkey, close to the Iraq and Syrian borders, was the scene of intense terrorist activity. The town of Cizre was close to the Gabar mountains, where there were numerous PKK camps and shelters. The road between Cizre and Şirnak, the provincial centre, was subject to attack, necessitating military protection for convoys passing on the main road between the two towns.

The district gendarme commander in Cizre at the time was Captain Temizöz. The provincial gendarme headquarters, commanded by a colonel, was located in Şirnak, as was the 23rd gendarme border brigade. Though the two commands were distinct, it appeared from the evidence that the provincial gendarme command headed by a colonel was subordinate to the brigade command under a general. There was an interrogation centre at the provincial gendarme command, where the three interrogators Kemal Kılıçlı, Adem Akyuz and Dursun Özturk worked.

During an operation conducted in or around the Cudi district of Cizre by the police and district gendarmes early in the morning of 14 October 1993, Muhsin Taş was shot in the knee and taken into custody by gendarmes under Captain Temizöz’s command at about 05.00 hours. In the search report of 14 October 1993 detailing this incident, it was stated that Muhsin Taş had been found in possession of a Kalashnikov rifle, handgun and hand grenades. According to this report and the oral evidence of Captain Temizöz, Muhsin Taş immediately revealed to the gendarmes his name, that his code name was “Hanemir” and that he had come to Cizre to carry out actions for the PKK. Captain Temizöz considered that it was apparent from what Muhsin Taş told him that he was a commander. However, he did not recall that Taş made any offer to him to give assistance in finding PKK locations. Sergeant Burhanettin Kiyak, who was also on the scene at this time, heard Taş give his name and code name and say that he was from the mountain. He did not hear Taş volunteer any assistance to the security forces.

After this initial exchange with the gendarmes at the scene of his capture, Muhsin Taş was taken to the Cizre State Hospital where he was admitted for treatment by Dr Palpas at 05.50 hours. Dr Palpas had no recollection of Muhsin Taş but was of assistance in deciphering his report for the Commission Delegates. This recorded that Muhsin Taş had an entry and exit wound to the knee, with injury to the front lower right knee joint. He was conscious and at that point his life was not in danger. Due to the lack of equipment and orthopaedic expertise, Dr Palpas recommended his transfer to Mardin.

At a time unknown the same day, Muhsin Taş was handed over to Captain Erol Tuna, an officer from the Şirnak provincial gendarmerie who was in command of the convoys going between Cizre and Şirnak.

The Commission requested, on numerous occasions, the records which indicated the places and times of Muhsin Taş’s detention following his apprehension. No record was provided indicating where he was held in Cizre between his treatment in hospital and his transfer to the Şirnak convoy. Captain Temizöz thought that Taş must have been entered in the Cizre district gendarme records as he was detained pursuant to the authority of the Cizre public prosecutor. Records provided by the Government from Cizre district gendarmerie contained no entry concerning Muhsin Taş.

The decision to transfer Muhsin Taş to Şirnak was taken by the Şirnak 23rd gendarme border brigade. Captain Temizöz had reported the capture of Taş to the brigade command and they requested his transfer to Şirnak. The transfer record of 14 October 1993 also referred to the brigade’s request. The reason for the transfer was not expressed in that document. Captain Temizöz considered that Taş would have had to go to Şirnak as he was a commander with information about the Gabar mountains and it was the forces in Şirnak who conducted operations in that region.

The only record relating to Muhsin Taş’s detention after his arrival in Şirnak was an entry in the Şirnak Military Hospital polyclinic record. This was dated 14 October 1993, giving no time. Neither Captain Erol Tuna nor the doctor who gave treatment had any recollection of the incident, so were unable to provide any explanations as to exactly when he arrived or to whom he was delivered. Dr Can, who treated Muhsin Taş, considered on the basis of his entry in the hospital record that he would have treated the injury, placing a long leg splint or supervising an assistant in doing so. He was of the opinion that Taş would not have been admitted to the hospital as his notes made no reference to this step being taken or considered necessary. The follow up treatment which he stated would be necessary – antibiotics, which would most likely have been handed to the patient on the spot, and the requirement for the wound to be dressed at three day intervals – did not require continuous hospital care.

Of the three officers identified by the Government as having interrogated Muhsin Taş at the Şirnak provincial gendarme headquarters – Kemal Kılıçlı, Adem Akyüz and Dursun Öztürk – only one, Adem Akyüz, remembered interrogating Muhsin Taş. No logs or records were provided by the Government from the interrogation department recording Muhsin Taş’s interrogation, nor the interrogation notes which the witnesses said would have been taken. The Government denied that these documents existed. The only source of information about the interrogation of Muhsin Taş therefore was the oral evidence of Adem Akyüz and the brief comments which appeared in various gendarme reports following Taş’s alleged escape.

According to Adem Akyüz, he interviewed Muhsin Taş on one occasion, while Muhsin Taş was confined to bed either in the hospital or infirmary. He remembered taking notes which they gave to their superiors. He could recall that the information related to the area where the person had carried out activities but did not mention any alleged offer to assist the security forces by showing locations. The Delegates had also requested the infirmary records concerning Muhsin Taş’s presence and treatment. The Government stated the infirmary records contained no information about Muhsin Taş.

Though the Commission did not exclude that the hospital or infirmary records were inaccurate, it noted that in its experience it had found the records made by doctors to be generally reliable, if sometimes brief, whereas the inaccuracy of, and omissions from, gendarme records had been the subject of adverse findings in a number of cases. Further, it found the testimony of the interrogation officers to be unconvincing, giving the impression of being selective or piecemeal accounts. From their evidence, it was generally expected for the same officers to follow through a suspect’s interrogation to the stage when a statement was taken by the district gendarmerie who had the responsibility at the end of the custody period to deliver the suspect to the public prosecutor for judicial procedures to be followed. Adem Akyüz had no explanation however for why he only visited Muhsin Taş once. While Muhsin Taş’s removal from the interrogation process must have been unexpected or unusual, he apparently knew nothing about it – nor about Taş’s apparent involvement in an operation to locate shelters or his apparent escape afterwards. The Commission was not persuaded that a suspect in respect of whom the provincial gendarmerie had commenced interrogation would or could be transferred elsewhere without some information or explanation being provided to the officers involved in the interrogation. Furthermore, a single, apparently brief interrogation did not account for the two fifteen-day extended custody periods which were requested by the Cizre district gendarmerie on behalf of those holding Muhsin Taş.

The evidence of the interrogation officers was therefore unable to provide any approximate date as to when any interrogation took place or any reliable basis on which to reach any finding as to where Muhsin Taş was held after his examination by Dr Can. Though his wound should have been dressed every three days and Dr Can would have expected himself, or another doctor, to check the patient’s state after a week or ten days, there is no evidence that he received any follow-up medical care after 14 October 1993.

A custody period of 15 days from the date of apprehension was granted by the Cizre public prosecutor at the request of the district gendarme commander. A further period of 15 days was granted by him on 29 October 1993 on the request of the district gendarmerie.

According to a hand written incident report dated 9 November 1993, 16.30 hours, signed by a gendarme captain group commander Şeyhmuz Kara and gendarme first lieutenants Burak Bugra and Tarik Göktürk, both of whom were team commanders, Muhsin Taş escaped from the security forces while assisting them on an operation in the Gabar mountains to find PKK shelters.

According to the evidence of the doctors who treated him, it was probable that Muhsin Taş was not rendered completely immobile by the injury to his knee. With the long leg splint, he would have been able to hobble, with a crutch or assistance. In the early days after the injury, he would have been in considerable pain. By 9 November 1993, a period of 25 days after his injury, he would have been expected to have made some recovery. Dr Can, the orthopaedics expert, estimated that the splint would have had to stay on for three to six weeks and that a patient might be able to run as well as walk within the same range of time. He pointed out that with sufficient motivation a person could run, notwithstanding a high level of pain. In the absence of medical notes, the Commission was unable to reach any firm conclusions as to what state of fitness Muhsin Taş would have been in on 9 November 1993. It found it highly unlikely however that he was fully fit or able to walk or run normally at this date.

The Commission found that the incident report of 9 November 1993 was an unreliable document. The report stated that Muhsin Taş ran off after a clash broke out, under cover of the fading light, precipitation and rocky terrain. It did not mention how many gendarmes were involved in the operation, how many were guarding the suspect and whether – and if not, why not – the suspect was restrained or handcuffed in some way. No details were given of the steps taken to recover the suspect. The times given on the report were particularly implausible. It was stated that the clash broke out at 16.15 hours following which there was a sequence of events – the escape, the discovery of the escape, an unsuccessful search, the monitoring of various radio conversations between terrorist – culminating in the drawing of the report and its signing by the three officers at 16.30 hours.

In these circumstances, the Commission considered that it was of crucial importance that the three signatories of the report gave explanations of the document and what they in fact saw and did. The Delegates in requesting the Government’s assistance in summoning them to give evidence emphasised that the Government should at the same time identify the officers who personally witnessed Muhsin Taş’s escape as the Commission had experience that the signatories of reports did not necessarily have any direct knowledge of the contents. At the taking of evidence in May 1998, the Government Agent informed the Delegates that they had been unable to find three officers who signed the report and that they had recently received information that the names used were code names. In reply to the Delegates’ request for steps be taken to identify the officers who used these code names in November 1993, the Government stated that it was not possible to identify the three officers. The Delegates also requested the other operation records or details which could cast light on the incident. The Government stated that no other records existed.

No document was provided recording authorisation for the transfer of Muhsin Taş to any particular operational command at Şirnak. In particular, there was no contemporaneous document or record indicating that he was transferred from the provincial gendarme interrogation unit elsewhere. It had not been established by the written or oral evidence that Muhsin Taş had in fact offered to show locations during his interrogation.

The Government relied principally on the evidence of two ex-PKK members or “confessors” – the written statements taken from Nedim Kaya and Süleyman Fidan, and the oral evidence of Nedim Kaya – as substantiating the allegation that Muhsin Taş had escaped and rejoined the PKK in the Gabar mountains on 9 November 1993. The Commission however did not find this material to be reliable or, on certain crucial aspects, credible. It referred, inter alia, to the lack of any explanation as to how the two confessors came to be identified at the same time as persons with relevant information about Muhsin Taş; that Nedim Kaya’s and Süleyman Fidan’s statements of 4 November 1995 referred to injuries suffered by Taş in 1992 and made no reference to the injury which he had received in October 1993; and the fact that Nedim Kaya’s statement of 12 January 1996 stated that he joined the PKK in November 1993 becoming a friend of Muhsin Taş before his capture in Cizre, though that latter event occurred on 14 October 1993.

The Commission also found that Nedim Kaya’s oral evidence was inconsistent and unconvincing. His story changed under questioning and gave the impression of embroidery. It was not reconciliable with uncontroverted facts. For example, Nedim Kaya was insistent that he spent a fifteen day training course with Muhsin Taş after he joined the PKK in October, which explanation formed the basis for his claim of forming a close friendship with Taş, whereas Muhsin Taş was apprehended in Cizre in the early hours of 14 October 1993. The Commission were accordingly not satisfied that he had seen Muhsin Taş after 9 November 1993 as asserted. It concluded that the Government’s claim that Muhsin Taş escaped while assisting the security forces on an operation was not substantiated by the evidence given and could not be regarded as established as a fact or a significant probability. There was accordingly no explanation for what happened to Muhsin Taş after he was treated by Dr Can at Şirnak Military Hospital on 14 October 1993.

The applicant was informed on 15 October 1993 that his son had been apprehended and injured in a clash in Cizre. Arriving in Cizre on 17 or 18 October, he went to see the public prosecutor immediately. He was told to come back after the fifteen day extended custody period. Meanwhile, the applicant sought to visit, or discover further information, about his injured son by approaching the gendarmerie in Şirnak and Cizre but was turned away. On the expiry of the fifteen day period, at the end of October or beginning of November, he returned to the public prosecutor handing in a written petition. The public prosecutor signed the petition and he took it to the district gendarme commander who referred him back to the public prosecutor. During the second fifteen day period to end, the applicant returned to the public prosecutor repeatedly seeking for news and on one occasion, the public prosecutor contacted the district gendarmerie by telephone.

On the expiry of the second period, the applicant returned to the public prosecutor. On 18 November 1993, he handed in a further written petition which stated that he had no news although a week had passed from the end of the second custody period. He requested information and stated that he feared for his son’s life. On or about this date, the public prosecutor informed him that it was reported that his son had escaped. The written report from the district gendarmerie to the prosecutor was dated 19 November 1993 but it was possible that the information was received by the public prosecutor prior to this date. The applicant informed the public prosecutor orally that he did not believe this story and that he believed his son had been tortured and killed.

The public prosecutor at Cizre took no steps to investigate the alleged escape of Muhsin Taş while in custody in reaction either to the applicant’s expressed fears or to the fact that a prisoner awaiting judicial procedures had somehow been permitted to escape. On 13 December 1993, the public prosecutor issued a decision of withdrawal of jurisdiction and transferred the file concerning Muhsin Taş as a suspected member of the PKK to the Diyarbakır State Security Court (SSC) public prosecutor. It stated as an apparent fact that he had escaped to rejoin the PKK. The steps taken by the SSC prosecutor were related to investigating his membership of PKK and not related to investigating his disappearance.

The applicant returned to Cizre in January 1994 to see the public prosecutor, who informed him that the case had been transferred to Diyarbakır.

Following the communication of the case to the respondent Government by the Commission in October 1994, it appears that an investigation was briefly pursued by the Cizre public prosecutor (file no. 1995/653) This was limited to an enquiry dated 27 November 1995 to the Cizre district gendarme command for the names of the officers who signed the report of 9 November 1993 to be identified. Following a letter dated 29 November 1995 from the Cizre district gendarmes which stated that enquiries should be addressed to the Şirnak gendarme border regiment command, and that the special operations group command were responsible, the Cizre public prosecutor declined jurisdiction in a decision of 7 December 1995, transferring his file to the Şirnak public prosecutor.

The Şirnak public prosecutor had meanwhile commenced an investigation (prel. 1995/665) under the prompting of Ankara. At this stage, the following steps were taken:

– on 10 December 1995, a request was made to the Şirnak 23rd gendarme border regiment for the identities of the personnel of the special operations group involved in the operation of 9 November 1993 to be identified;

– on 13 December 1995, a statement was taken from the applicant on 13 December 1995 by the Kastamonu public prosecutor;

– on 12 January 1996, a statement was taken from Nedim Kaya by a public prosecutor;

– on 4 April and 25 May 1996, an urgent reminder was sent requiring a response to the above request of 10 December 1995;

– on 27 May 1996, a request for information about the identities of personnel was sent to Şirnak provincial gendarme command who replied on 29 May 1996 that it was the Special Operations Group Command who had taken Muhsin Taş;

– following receipt of a letter on 14 June 1996, in which the Special Operations Group command denied knowledge of the three names on the report of 9 November 1993 but named three officers (Ozaricanlı, Tümöz and Çetin) as being group commander and team commanders at that time, a request was made for those three officers to be asked a list of four specific questions, namely, about whether they were serving in the Special Operations Group Command at the time, whether they or the Special Operations Group Command received Muhsin Taş, whether they knew the names on the report and where it would be possible to identify the names on the report;

– on 8 July 1996, a request was made of the Cizre public prosecutor for the transfer record concerning Muhsin Taş.

On 28 August 1996, the Şirnak public prosecutor issued a decision of withdrawal of jurisdiction, stating that it had not been possible to identify the officers involved in the alleged incident. The decision concluded that the matter should be investigated under the Official Conduct Act as it concerned special operations teams and that the file was to be transferred to the Şirnak provincial administrative council.

The investigation was taken over by the Administrative Council who by letter of 3 September 1996 appointed Major Doğan, a gendarme officer from the provincial gendarme command to investigate the allegations that Muhsin Taş had been killed and to identify the perpetrators. This stage of the investigation lasted until February 1998. During this period, Major Doğan again asked the Special Operations Group Command specifically to identify the three persons who signed the report. He received the reply on 7 February 1997 that the names were not found in the records and that the records had been burned in 1993 with the result that the names of the personnel who were on operation in Gabar at the time could not be determined. Major Doğan requested medical records and transfer details about Muhsin Taş from the Cizre district gendarmerie. Via a rogatory request, he obtained statements from the applicant, Nedim Kaya, Captain Erol Tuna and the three officers previously named as having served in Şirnak special operations at the relevant time. They stated, inter alia, that Muhsin Taş had not been delivered to them and that code names were not permitted, though Captain Ozaricanlı was noted as recognising his signature on the incident report of 9 November 1993. On the basis of this information, Major Doğan found in his report of 12 February 1998, that it was established that Muhsin Taş had been taken to Gabar mountain to locate PKK shelters by teams from the 23rd gendarme border brigade special operations group command and that he had escaped on 9 November 1993. The statements of Nedim Kaya and Süleyman Fidan were referred to as supporting this. The report noted that there were no interrogation records concerning Muhsin Taş though it appeared that Captain Erol Tuna had transferred him to the Interrogation Unit. The report concluded that it was not possible to establish the identities of the suspects, the identities of the persons of the report not being ascertainable due to changes in military personnel, the failure to keep records properly and the destruction of records. In those circumstances, a prosecution could not be brought. The provincial governor accepted this conclusion and the proceedings were terminated.

The investigation documents concerning the enquiries by the Şirnak public prosecutor and Major Doğan, the gendarme officer appointed by the Şirnak Provincial Administrative Council were submitted to the Commission by the Government on 11 August 1998, after the Commission had closed the taking of evidence and invited the parties to submit their oral observations. These documents included information about the possible identification of special operations group officers involved in the Muhsin Taş incident. Though the names of three officers were known to the investigating authorities in 1996, the Government did not bring them to the attention of the Commission or its Delegates who could have taken the decision to call them to give oral evidence. The Commission found that in failing to provide it with this information during the taking of evidence, the Government had fallen short of its obligations under former Article 28 § 1 (a) of the Convention to furnish all the necessary facilities to the Commission in its task of establishing the facts of the case.

Muhsin Taş was apprehended on 14 October 1993 by the security forces during an armed clash with PKK terrorists. During interrogation, Mushin Taş said that he knew certain hideouts used by PKK members in the Gabar mountains. Upon this information, a search team went to the mountains with Muhsin Taş. This area was used frequently by the PKK. A clash started between the PKK and the security personnel. Benefiting from this clash, Muhsin Taş escaped and was lost immediately in the near darkness. He was not handcuffed and knew the area very well. It was very probable that he re-joined the PKK following his escape. He would have been able to run even though his leg was injured.

As Muhsin Taş escaped from the security forces, the Government stated that it was not for them to prove that he is still alive and they cannot give an explanation for his whereabouts.

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.

Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment) or to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants).

The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).

If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).

In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants (sometimes referred to as the Official Conduct Act), which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.

An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court.

By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 45 above) also applies to members of the security forces who come under the governor’s authority.

If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 43 above) or with the offender’s superior.

Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.

Article 125 §§ 1 and 7 of the Constitution provides:

“All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.

Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 49 above), provides:

“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”

Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).

However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).


Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in 1976 and lives in Vác.

In January 2002 the Pest Central District Court found the applicant, a recidivist offender, guilty of attempted blackmail and plunder and sentenced him to eight years’ imprisonment. On appeal, the Budapest Regional Court, on 15 May 2003, re-characterised his actions as offences of “taking the law into one’s own hands”, attempted aggravated assault and a violation of personal liberty, but reduced his sentence to five years’ imprisonment.

In February 2003 the applicant was charged with aggravated assault. In the ensuing proceedings the applicant was assisted by court-appointed defence counsel.

After holding three hearings, the Pest Central District Court found the applicant guilty as charged on 26 February 2004. The District Court took account of the protraction of the proceedings as a mitigating factor and sentenced him to four years’ imprisonment. The District Court relied on documentary evidence, the opinion of a forensic medical expert and the testimony of several witnesses as well as the applicant.

The applicant appealed, seeking acquittal on the ground that the judgment was ill-founded. The Budapest Regional Court notified the applicant’s lawyer that it would determine the appeal at deliberations in camera. In reply, the lawyer put forward his arguments in detail and requested the court to hold a public hearing. He asserted that the court should hear further witnesses in order to establish the facts fully.

On 1 February 2005 the Regional Court held deliberations in camera and upheld the applicant’s conviction. The applicant, his lawyer and the prosecution were not present. The Regional Court reviewed the entirety of the proceedings and upheld their lawfulness. Furthermore, it considered that the findings of fact by the first-instance court were not ill-founded within the meaning of section 351(2) of the New Code of Criminal Procedure, and were thus suitable for appellate review without taking further evidence. This consideration enabled the court to hold deliberations in camera, pursuant to section 360(1) of the Code of Criminal Procedure, without the attendance of either the defence or the prosecution.

Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides, in so far as relevant, as follows:

“... (3) An appeal may concern questions of fact or law.”

“(1) The second-instance court shall base its decision on the facts as established by the first-instance court unless the first-instance judgment is ill-founded....

(2) The first-instance judgment is ill-founded if:

a) the facts have not been explored;

b) the first-instance court has failed to establish the facts or the findings of fact are deficient;

c) the findings of fact are in contradiction with the contents of the documents;

d) the first-instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact.”

“... (2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.”

“(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...”

“(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence.

(2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...”

“(1) The second-instance court shall notify the public prosecutor and – if they are not summoned – ... the defendant and his lawyer of the public session. ...”

“(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.”

“(1) The court’s final decision on the merits is susceptible to a [Supreme Court] review (felülvizsgálat) if ...

c) the decision has been adopted amidst procedural irregularities within the meaning of section 373(1) subparagraphs II to IV.”


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants were born in 1967 and 1969 respectively and live in Budapest.

On 27 February 2007 the applicants exposed, in the course of an event which they considered a “political performance” – necessitated by what they perceived as a general political crisis in the country following the tumultuous events of late 2006 –, several items of dirty clothing on a rope attached to the fence around Parliament in Budapest. They stated that the symbolic meaning of this expression was “to hang out the nation’s dirty laundry”. The applicants spent exactly 13 minutes on the scene, during which time they answered some questions from journalists who appeared on the scene. Afterwards, the applicants left on their own motion.

On the same day, the website of the daily paper Magyar Nemzet published a short article covering the incident, in which the applicants explained that the “performance” was meant to be provocative and for that reason had not been notified to the police. It was specified that the event had been prepared clandestinely, that only a few journalist had been invited and that no other protester had participated.

Subsequently the Budapest V District Police Department fined each applicant 80,000 Hungarian forints (HUF) (approximately 250 euros) for the regulatory offence of abusing the right to peaceful assembly. It was considered that their act had constituted an “assembly” which should have been declared to the authorities three days in advance.

The applicants complained about the decision of the Budapest 5th District Police Department without offering any particular arguments.

On 11 July 2007 the Pest Central District Court upheld the police decision, finding that the applicants, in breach of the relevant legal provisions, had failed to notify the police of their ‘demonstration’ and that the sanction imposed was proportionate to the gravity of the offence and adequate to motivate the applicants to abide by the law in the future. The court relied on the report of the police officer involved, the pictures recorded by the street cameras and the contents of the websites covering the incident.

On 26 July 2007 the applicants requested that a hearing be held in the case. At the hearing of 7 December 2007 the court heard the second applicant and the police officer. The first applicant did not wish to make a statement. The second applicant first made contradictory statements as to who had been notified of the event in advance, but finally confirmed, in reply to a question put by the judge, that an announcement of the event had been published on the website of the applicants’ organisation. In their closing statements, counsel for the applicants claimed that the applicants had not invited anybody to the event and that they had wrongly assumed that their actions had been lawful.

Based on the evidence before it, the District Court was satisfied that the event had been publicly announced and thus it had been an “organised event” falling within the scope of section 6 of the Assembly Act (as opposed to a cultural event as argued by the applicants), that the applicants had been aware that they should have notified the police of their performance and that the fine was necessary to prevent the applicants from further breaches of the law. It therefore upheld the decision of 11 July 2007.

The decision of 7 December 2007 was served on 24 January 2008.

Act No. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides as follows:

“(1) In the framework of the exercise of the right to assembly, peaceful gatherings, marches and demonstrations ... may be held where the participants may freely express their opinion.

(2) The participants of an assembly are entitled to make their jointly formed position known to all interested parties ...”

“The following shall not be covered by the Act:

a) meetings falling within the ambit of the Act on Election Procedure;

b) religious services, events and processions organised in the premises of legally recognised churches;

c) cultural and sport events;

d) events related to family occasions. ...”

“The organisation of an assembly to be held in public shall be notified to the police department having jurisdiction over the venue of the assembly – in Budapest to the Budapest Police Department – a minimum of three days prior to the planned date of the assembly. The obligation to notify the police lies with the organiser of the assembly.”

“If the holding of an assembly subject to prior notification seriously endangers the proper functioning of the representative bodies or the courts, or the circulation of traffic cannot be secured by another route, the police may ban the holding of the assembly at the place or time indicated in the notification, within forty-eight hours of the receipt of the notification.”

Act No. LXIX of 1999 on Administrative Offences (as in force at the relevant time) provides as follows:

“Anyone who organises or holds a gathering, march or demonstration subject to notification without notification or the provision of prior information of the planned new date, or despite a prohibiting decision of the police, may be punished by a fine of up to HUF 100,000...”

According to decision no. 55/2001. (XI.29.)AB of the Constitutional Court:

“[...T]he Constitutional Court holds that the enforcement of the fundamental constitutional right of assembly should be protected not only from undue interferences by the State but also from others, such as persons who dislike a certain demonstration or hold a counterdemonstration, as well as other persons who disturb public order. In other words, the State also has positive obligations in guaranteeing the enforcement of the right of assembly. The judgments of the European Court of Human Rights in cases related to the right of assembly support this view. ...

It follows that the authorities are even allowed to use force, where needed, in order to secure the holding of lawful assemblies, and they shall prevent others from disturbing such assemblies. ...

... The necessity of the obligation of notification to assemblies to be held on public premises is justified by the fact that ... such premises constitute an area, road, street or square with unlimited access for everyone. This means that both the participants of the assembly and everyone else who does not participate should have equal access to the public ground. ... The State’s obligation to respect and protect fundamental rights is not limited to abstaining from violating such rights but includes the obligation of guaranteeing the conditions necessary for their enforcement ...; in order to prevent a potential conflict between two fundamental rights ... the authority should be statutorily empowered to ensure the enforcement of both fundamental rights ... This requirement justifies the obligation of notifying the authority in advance of the assembly to be held on public ground...

... The aim and the agenda of the assembly are pieces of information necessary for the authority partly for the assessment of whether the planned assembly is to be prohibited on the ground of seriously endangering the operation of the representative organs or of the courts, or on the ground of causing disproportionate prejudice to the order of traffic ..., and partly for determining the probability of [any incident occurring during the event warranting police intervention or dispersal]. ...

... The failure to notify the authorities of an assembly – or the holding of an assembly in a manner significantly different from that specified in the notification – cannot be interpreted as an insignificant administrative omission. Such a failure deprives the authority of the opportunity to assess whether the planned assembly would seriously disturb the operation of the representative organs or of the courts, or the order of traffic. To impose no sanction on holding the assembly at a time, location, or route other than that notified would make it useless to require a notification and would allow for abusing the right of assembly...”

According to decision no. 4/2007. (II.13.)AB of the Constitutional Court:

“...The aim of assemblies held on the basis of the right to assembly is to enable the citizens exercising their right to assembly to form joint opinion and to share their views with others or jointly express those views.”

According to Decision no. 75/2008. (V.29.)AB of the Constitutional Court:

“III. [The term ‘assembly’], as used in the Constitution ..., refers to joint expressions of opinions within fixed time-limits. ... The bodies applying the law must assess whether the notification pertains to a peaceful, joint expression of opinions falling under the scope of [the Assembly Act] or to a different use of the public area.

IV. ... In today’s constitutional democracies, the primary purpose of assemblies held on public ground is the joint representation and demonstration of the opinions and views already formed. The main connection between freedom of expression and freedom of assembly is the joint, public expression of the opinion. The significance of the right of assembly as a communication right is increased by the fact that, in contrast with the press, it ensures for everyone the right to participate directly, without access barriers, in forming the political will. ...

3.1. ... Several types of assemblies on public ground may fall within the category of peaceful spontaneous assemblies. Indeed, spontaneous assemblies are not generated in a previously planned and arranged manner since they are the result of the actions of several persons who act, more or less, independently. ...

5.1. In the system of [the Assembly Act], assemblies not requiring notification include, on the one hand, events excluded from the scope of [the Act] (events of electoral, religious, cultural, sport or family nature). On the other hand ... it is not necessary to file a notification of assemblies falling under [the Act]. but not held on public ground... Furthermore, Section 6 of [the Act] does not apply to spontaneous assemblies held without prior organisation. Namely, the provision at issue requires the notification of “organising an assembly” to be held on public ground, and the statutory obligation is imposed on the organiser.

... The notification obligation ... forms a constitutional restriction on the right of assembly. This statutory provision is justified, on the one hand, by the need to have the public order secured by the police ... The notification and its confirmation by the police is a guarantee that the police shall implement the necessary tasks related to the security of the event. ...”

The Guidelines on Freedom of Peaceful Assembly Adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010) provide as follows:

“... For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose...

An assembly, by definition, requires the presence of at least two persons.”