No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

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

The applicant was provost of the Eisgarn monastery and principal (Regens) of the St Pölten seminary, where future Roman Catholic priests are trained. He resigned from his post as principal on 4 July 2004.

In the issue of the weekly news magazine Profil of 5 July 2004 an article was published on searches carried out by police in the St Pölten seminary. According to the article, police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet. The article further stated that, according to rumours, police had also found photographs showing seminarians engaging in homosexual activities, and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority. The article was accompanied by a photograph of the applicant, showing him standing in a garden, and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian. He denied involvement in any such incidents.

In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”

The article stated that the applicant and the deputy principal had had sexual relations with seminarians and that two of them had regularly spent weekends or longer periods with the applicant at the Eisgarn monastery. It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported earlier. The article further reported that some seminarians had downloaded pornography and child pornography onto their computers. According to the article, the existence of homosexual relations was well-known within the seminary and was even known to the bishop, who had tried to “hush up” the case at first. The article contained a photograph showing the applicant with his left arm around one of the seminarians, holding the seminarian’s wrist with his left hand and with his right hand on the man’s crotch. This picture had been taken by one of the seminarians at a birthday party and the applicant was shown looking into the camera, apparently aware that he was being photographed. In the article the applicant was identified by name while the seminarians’ identities were not disclosed. Likewise, in the published photograph, the applicant’s face was visible while that of the seminarian was blurred. The article was also accompanied by a statement from the applicant saying that the photograph could be interpreted in different ways.

On 6 August 2004 the applicant initiated proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News GmbH, the publisher of Profil, in relation to the article published on 12 July 2004. Relying on sections 6 and 7 of the said Act, he requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photograph and the impugned article, especially the following passages:

“‘Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray.’; ‘A painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s private secretary and legal adviser ...’; ‘Photos showing, among others, seminarians from St Pölten in kinky situations, in some cases with their superiors ... and because they were doing it with the boss and his deputy too, it was all quite normal and they felt perfectly safe ...’; and ‘In June of the previous year principal Ulrich Küchl allegedly performed a kind of ‘sacrament of marriage’ between H. and Polish priest A. in a St Pölten restaurant.’”

The publisher of Profil replied that the content of the article was true. The company also argued that in the light of the Roman Catholic Church’s position condemning homosexuality, and the fact that the applicant was responsible for the training of future priests in the seminary, the public had an interest in knowing about the facts published in the article and there was a direct connection with public life. The article was thus lawful by virtue of the right to freedom of expression guaranteed by Article 10 of the Convention.

On 15 September 2005, after holding several hearings at which evidence was heard from a number of witnesses, the Vienna Regional Criminal Court (Landesgericht, hereinafter “the Regional Court”) dismissed the applicant’s request for compensation.

The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion. Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians, and that there existed photographs to support this. The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts. It represented the applicant with his left arm around the seminarian and his hand on the man’s crotch and conveyed the impression that the latter consented to this close embrace.

Giving a detailed evaluation of various witness statements, the Regional Court found it established that the applicant had had consensual homosexual relationships with several seminarians, one of whom had repeatedly spent weekends at Eisgarn monastery; this had led to an explicit instruction from Bishop Krenn prohibiting such visits by seminarians. Furthermore, the court found that the applicant had spent a holiday with a seminarian during which they shared an apartment in a hotel. It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of “sacrament of marriage” on two seminarians. Moreover, the statements of the witnesses had confirmed that the published photograph had been taken in the applicant’s apartment at Eisgarn monastery during a birthday party for one of the seminarians. The Regional Court therefore held that the facts contained in the article were in essence true.

Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in being informed about what was going on within the Church. The public also had an interest in knowing what happened in the seminary, especially since it had become known that pictures containing child pornography had been downloaded from the Internet. The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life. The applicant, as the head of the seminary, was a public figure in that capacity. Even though the impugned picture had been taken in his private residence there was a connection to his public life. While accusing a dignitary of the Roman Catholic Church of having homosexual contacts constituted the actus reus of defamation within the meaning of section 6 of the Media Act and exposed his strictly personal sphere within the meaning of section 7 of the said Act, the publisher had proved that the reported facts were essentially true. Accordingly, the applicant’s claim for compensation had to be dismissed.

The applicant lodged an appeal on points of law and fact with the Vienna Court of Appeal (Oberlandesgericht). The Court of Appeal, after holding a hearing, dismissed the appeal in a judgment of 24 May 2006.

The Court of Appeal upheld the judgment of the Regional Court, ruling that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true. Regarding the complaint concerning the performance of a sort of sacrament of marriage, the Court of Appeal found that it had not been proven that this allegation was true; however, the allegation in question made up only a minor part of the article and thus would not render the judgment void. Furthermore, the Court of Appeal held that, in reporting on photographic evidence of seminarians in “kinky situations”, the publisher had provided proof that the statements were true. The average reader of the magazine would understand the term “kinky” to mean a deviation from what was considered normal, which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as sinful. The Court of Appeal went on to state as follows:

“The court cannot accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life. The Catholic Church, to which the majority of the Austrian population belongs and which, according to Article II of the Concordat (BGBl. II No. 2/1934), has public-law status, has a level of importance in Austria going beyond that of a small association, as is clear from the overall content of the Concordat and the circumstances in which it was ratified. Accordingly, conduct on the part of Church dignitaries which is in flagrant contradiction with Catholic teachings may very well be of public interest, particularly where – as in the present case – homosexual contacts take place and are maintained, albeit on a consensual basis, between staff and students in an educational establishment and between students themselves. The Catholic Church strives for acceptance and credibility among the public at large, and the activities of a principal and a deputy principal, particularly those in charge of a training college for future priests, are directly related to public life. The Catholic Church is engaged in public relations work in many spheres and regularly makes its views on (sexual) morality known to the population as a whole, with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach, condemning homosexuality as a sin in public while practising it in private, even between staff and students. It should also be taken into consideration that the teachings of the Catholic Church on the subject of homosexuality are contrary to the fundamental right to sexual self-determination under Article 8 of the European Convention on Human Rights and to the prohibition on discrimination; hence, on this basis also, there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their Church’s teachings on sexual morals. This is even more so where the reports concern homosexual contacts between a teacher and his students. Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students. The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law.

The exposure and public condemnation of such misconduct is thus in any event in the public interest; the same is true of the reports identifying those concerned, without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “public watchdog”. The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails. The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the Church; the Catholic Church has an important and, in some respects even a State role, and the credibility of its officials, who demand moral standards from the population and compliance with the Church’s rules of community life, occupies an important position in that regard. In particular, the fact that the events involved students who, as future officials of the Catholic Church are supposed to be taught these moral precepts by example, lends those events a public-interest dimension extending beyond the Church itself and affects all sections of the population...”

The Court of Appeal concluded that since the article had reported essentially true facts and there was a public interest in their being reported, the Regional Court had rightly rejected the applicant’s request for compensation. The judgment was served on the applicant’s counsel on 12 June 2006.

On 9 July 2004, after publication of the first article in Profil (see paragraph 6 above), the applicant brought proceedings against the publisher and the editor-in-chief under the Copyright Act (Urheberrechtsgesetz) and the Civil Code (Allgemeines Bürgerliches Gesetzbuch). Those proceedings are the subject of application no. 59631/09, Verlagsgruppe News and Bobi v. Austria. They are summarised here, in so far as is necessary for the examination of the present case.

Relying on section 78 of the Copyright Act the applicant asked the Vienna Commercial Court (Handelsgericht) to order the publisher of Profil and its editor-in-chief to

(i) refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and

(ii) refrain from publishing photographs of the applicant which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to his honour and reputation.

The applicant also requested the Commercial Court to issue an interim injunction prohibiting the publisher and the editor-in-chief of Profil from publishing the above-mentioned statements and pictures.

After publication of the second article in the issue of Profil of 12 July 2004, showing for the first time the photograph of the applicant with his hand on the seminarian’s crotch, the applicant notified the Commercial Court of the further statements contained in that article and of the fact that the photograph had been published. He repeated the requests made on 9 July 2004.

In so far as relevant in the context of the present case, the applicant’s request for an interim injunction was rejected by the Vienna Commercial Court, which gave its decision on 29 March 2005, and by the Vienna Court of Appeal, which gave its decision on 18 June 2005.

In a decision of 15 December 2005 the Supreme Court varied the lower courts’ decisions, granting point (ii) of the applicant’s request for an interim injunction. The publisher and the editor-in-chief of Profil were thus prohibited from publishing photographs of the applicant, in particular in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to the applicant’s honour and reputation. However, the Supreme Court dismissed point (i) of the applicant’s request, namely that the defendants be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the applicant having homosexual contacts or appeared to show that he was homosexual.

The Supreme Court (Oberster Gerichtshof) held that even the publication of true statements was capable of interfering with a person’s right to privacy and thus might become unlawful. In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information. Referring to the Court’s case-law under Article 10 of the Convention, the Supreme Court noted the importance of freedom of the press, in particular where the latter reported on issues of general interest. In the present case, information about the homosexuality of officials of the Roman Catholic Church was an important issue and as such was often the subject of public attention and discussion. It was the media’s task to report and comment on actual cases. Thus, the applicant’s interest was outweighed by the publisher’s right to publish the statements, the truth of which was not in dispute.

As to the publication of the photograph, the Supreme Court held as follows:

“1. The publication of images that would cause injury to legitimate interests is prohibited (section 78(1) of the Copyright Act). The injury must arise out of the actual publication of the image (RIS-Justiz RS0077782). However, not only the image itself must be assessed, but also the manner of its dissemination and the context in which it is set (RS0078077). The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection (4 Ob 165/03y = MR 2003, 377 with further references).

On the basis of these principles, the interests of the claimant in the present case should be considered worthy of protection, contrary to the Court of Appeal’s view.

The accompanying text portrays the claimant in a negative light. He is neither a ‘figure of contemporary society ‘par excellence’’ (to use the terminology of the German case-law) nor a ‘public figure’ (the term used in Austrian legal practice) whose appearance was already known to the general public before the picture was published (4 Ob 15/93). It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text, which is damaging to the honour of the person concerned (‘pillorying effect’). In such cases, therefore, publication of the picture can be justified only if, after the required weighing of interests, the interest of the publisher in publishing is found to prevail (RIS-Justiz RS0077767). However, that is not the case here. The protection of the intimate sphere of the claimant’s private life carries greater weight in this case than the public interest in being informed of the image, in contrast to the case already examined concerning the text of the article. Of course, there is some force to the Court of Appeal’s argument that publication was designed to some extent to ‘prove the claimant guilty’ after he had denied the accusations as ‘slander’, and thus to allow the public to make up its own mind on the basis of the photograph. In the Supreme Court’s view, however, this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant’s private life and providing documentary ‘evidence’ of the allegations denied by the claimant. It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by Article 8 of the ECHR. If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the Constitution, then this must also apply in principle to members of religious organisations and Church officials, even if the practice of that sexual freedom is contrary to the Church’s teachings. Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree. There is no overriding interest for the public at large to be informed of the claimant’s appearance and to identify him via publication of his photograph. Even when publication takes place in connection with a criminal offence, the principle of proportionality of the interference applies. Likewise, even a genuine need to inform must not go beyond what is strictly necessary, so that it cannot be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person (RIS-Justiz RS0077883). The interest in dissemination of a picture can only take precedence if the picture has a particular news value – for instance, to warn the public about an escaped criminal (4 Ob 63/95 = SZ68125 4 Ob 1013/96). In any case, the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal. The interest in being informed can be sufficiently met without publication of an image, simply by reporting the facts and referring to the existence of a photograph (several photographs) as evidence.”

On 4 July 2006 the applicant narrowed his previous claim to the publication of pictures, amended the wording of the injunction sought and added a claim for damages. He thus requested the court to order the publisher of Profil and its editor-in-chief to refrain from publishing photographs of him which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority, and/or of engaging in sexual antics or “kinky” situations with seminarians or similar allegations.

In a judgment of 18 June 2007 the Vienna Commercial Court rejected the claims.

In a judgment of 13 December 2007 the Vienna Court of Appeal partly granted the applicant’s appeal. Relying on section 78 of the Copyright Act, it prohibited the publication of photographs of the applicant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians, especially involving abuse of authority, and of engaging in sexual antics or “kinky” situations with seminarians or similar accusations. However, it dismissed the claim for compensation.

The Court of Appeal summarised the content of the articles published in Profil on 5, 12 and 19 July 2004 and the reasoning set forth by the Supreme Court in its decision of 15 December 2005 in the interim injunction proceedings. It went on to state as follows:

“No factual circumstances came to light in the main proceedings which would cause the Supreme Court to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings.

It was established that the photograph was taken in Eisgar monastery at the birthday party of one of the seminarians, attended by the claimant and four or five students of the seminary. The party was held in a meeting room and a ‘reception room’ of the apartment made available to the claimant in his capacity as provost of the monastery.

Protection of the private sphere encompasses all matters which, on the basis of their information content, are typically classified as private. This covers individuals in their home, family or other environment removed from the public gaze (Neukamm, Bildnisschutz in Europa, 118). The right to protection of one’s private sphere encompasses the spaces in which the individual can rest, relax or simply let go. This includes any premises from which the individual can exclude outsiders and escape the public gaze (Neukamm, loc. cit., 120).

On that basis, there can be no doubt that the birthday party in the claimant’s apartment fell within the private sphere, despite the fact that it was attended by seminarians and took place (partly) in a ‘reception room’ in the claimant’s apartment.

Neukamm, loc. cit., 213). Hence, it is beyond dispute that the photograph in question falls (exclusively) within the claimant’s private sphere.

Furthermore, the Supreme Court previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned.

The publication of pictures depicting private conduct is not justified on the grounds of the public’s interest in being informed (Neukamm, op. cit., 233, and ECtHR judgment of 11.1.2000, application no. 31457/96 – News Verlag GmbH). This applies also to articles concerning private-life matters (Neukamm, op. cit., 235). If the publication of photographs serves the public’s interest in being informed, that interest must be weighed against the personality rights of the person depicted. As a general rule, the latter should prevail (Neukamm, op. cit., 236).”

The Court of Appeal also upheld the Commercial Court’s decision in so far as the latter had dismissed the applicant’s claim for damages. It noted that damages under the Copyright Act were to be awarded only if the general requirements laid down in the Civil Code were met. In particular, it was necessary for the publisher to have acted culpably, with at least minor negligence. In the present case, the defendants had based their decision to publish the photograph on an arguable legal opinion. It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the applicant’s legitimate interests. In the preliminary injunction proceedings the Commercial Court and even the Court of Appeal had come to the opposite conclusion, holding the view that the publication of the picture had an information value of its own, while the Supreme Court had overturned their decisions. In these circumstances, the defendants were entitled to believe that the publication of the picture was admissible, and they had therefore not acted culpably.

The applicant and the defendants lodged extraordinary appeals on points of law with the Supreme Court.

The Supreme Court rejected the extraordinary appeals in a judgment of 26 March 2009, holding that the prerequisite for it to deal with the case, namely a question of law which was of fundamental importance for the unity of the law, was not met. With regard to the defendant’s appeal it noted that it had already given detailed reasons in its decision of 15 December 2005 explaining why, as far as the publication of the photograph was concerned, the applicant’s interests in the protection of his private sphere under Article 8 of the Convention outweighed the freedom to impart information protected by Article 10 in the circumstances of the present case. The Vienna Court of Appeal had followed that reasoning in the main proceedings.

Finally, the Supreme Court dismissed the defendant’s argument that the courts’ decisions in the proceedings under sections 6 and 7 of the Media Act were binding on the courts in the present case. It held that a decision taken under sections 6 and 7 of the Media Act did not resolve a preliminary question (Vorfrage) in relation to the claim under section 78 of the Copyright Act. There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section 78 of the Copyright Act while on the same facts dismissing a compensation claim under sections 6 and 7 of the Media Act. The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section 78 of the Copyright Act.

Section 6 of the Media Act provides for the strict liability of the publisher, inter alia in cases of defamation. The victim can thus claim damages from the publisher. Section 6 reads as follows:

“(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...”

(2) The right referred to in paragraph 1 above shall not apply ...

in the case of defamation

(a) [where] the statements published are true or

(3) Where the publication concerns the strictly personal sphere, a claim under subsection 1 shall be excluded only on the grounds set forth in ... subsection 2(2)(a) ...; in the case of subsection 2(2)(a), this shall not apply where the published facts are directly related to public life.”

Section 7 of the Media Act provides for a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. It reads as follows:

“(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation from the media proprietor (publisher) for the damage sustained. ...

(2) The right referred to in paragraph 1 above shall not apply where

(i) ...

(ii) the statements published are true and are directly related to public life;

(iii) ...”

For the purpose of Section 6 of the Media Act “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch), which reads as follows:

“(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...

(2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...

(3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”

Section 78 of the Copyright Act, in so far as relevant, reads as follows:

“(1) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or, if they have died without having authorised or ordered publication, those of a close relative.”

Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:

“(1) Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.

(2) The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and the publication thereof ...”

The Court refers to this resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. Its relevant passages are reproduced in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 71, ECHR 2012).


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1937 and lives in Śrem.

In 1995 the applicant’s husband died on a pedestrian crossing after being hit by a car. The car was being driven by a certain B.M.

On 20 July 1998 the applicant filed a claim against B.M. and the “Warta” Insurance Company with the Poznań Regional Court, seeking compensation in the amount of 50,000 Polish zlotys (PLN). At the same time the applicant requested the court to give her a full exemption from the costs of the proceedings. She submitted that she received only a small pension and that her health had significantly deteriorated.

On 21 June 1998 the Regional Court partly granted the applicant’s request. It exempted her from the court fee for processing her claim (wpis od pozwu).

On 25 November 1999 the Śrem District Court in the course of criminal proceedings convicted B.M. of having caused a traffic accident which resulted in a fatality and sentenced him, inter alia, to a suspended prison term.

In January 2001 the applicant filed her amended claim with the Regional Court. She sought an award of PLN 130,000 in compensation and PLN 500 as a supplementary monthly allowance.

On 28 December 2001 the Poznań Regional Court awarded the applicant PLN 20,000 to be paid jointly and severally by the defendants and dismissed her further claims. The applicant was ordered to pay the costs of the defendants in the amount of PLN 3,726.10.

On 18 January 2002 the applicant lodged an appeal against the firstinstance judgment. On the same day the Regional Court ordered the applicant to pay PLN 7,100 in court fees for proceeding with her appeal.

On 29 January 2002 the applicant asked the Regional Court for an exemption from the relevant fees. She submitted that her income consisted only of a monthly pension in the amount of PLN 800 and that she did not have any property or valuable movables. She also claimed that her health had significantly deteriorated since her husband’s death.

On 5 February 2002 the Poznań Regional Court dismissed her request. It considered, in so far as relevant:

“(...) It should be underlined that the obligation to demonstrate the preconditions for an exemption from the costs rests with the claimant.

Examining the claimant’s request, the court considers that it cannot be granted. The claimant did not demonstrate that she was unable to bear the [relevant] costs without entailing a substantial reduction in her and her family’s standard of living.

A person requesting exemption from costs should submit a declaration of means that she is unable to pay the costs, including detailed information about her family status, her assets and her income, which have to be supported by relevant documents.

In a case where a person seeking exemption from costs has a representative who is an advocate, that representative has an obligation to inform his client about the requirements attached to a declaration of means and the necessary information which must be included therein. In that case, the court is not required to summon the representative of a party seeking exemption from costs to submit an additional declaration.

For these reasons, considering that the claimant’s request did not contain the required declaration of means, which implies that there is no information enabling [the court] to examine the merits of the request, the court, pursuant to Article 113 § 1 of the Code of Civil Procedure, held as in the operative part of the decision.”

The applicant appealed. She relied on the same arguments as before the Regional Court.

On 23 April 2002 the Poznań Court of Appeal dismissed her interlocutory appeal. It found, in so far as relevant:

The Court of Appeal considers that the grounds of appeal do not justify a departure from the findings of the first-instance court in respect of the appellant’s ability to pay the [relevant] costs.

The Court of Appeal draws attention to the fact that the claimant received the whole amount of compensation awarded [by the first-instance court]. Thus, there were no grounds to hold that she was unable to bear the costs without a reduction in her own necessary support.

As a result, the applicant was prevented from lodging an appeal against the judgment of the Poznań Regional Court of 28 December 2001.

The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-39).


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Educational supervision);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants were born in 1993 and 1974 respectively and live in Lublin.

On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents.

Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no. 4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14 April 2008.

The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education.

On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance.

On 20 May 2008 the District Prosecutor, referring to section 4 (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age.

The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary.

The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused.

The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital.

On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital.

On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2 June. She then called the second applicant separately to her office and asked her to sign the following statement: “I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death.” On the same day the first applicant was discharged from the hospital for the weekend.

On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working.

The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it.

The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest.

During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest.

When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby.

Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion.

The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning (Federacja na rzecz Kobiet i Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion.

On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’

The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet.

On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph 10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion.

On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms H.W., an antiabortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her.

On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion.

On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station.

At the police station the applicants were questioned on the same day, from approximately 4 p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below).

Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6 June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church.

A psychologist and an education specialist talked to her. She summarised the conversation thus:

“They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.”

Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her.

On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a nonidentified authority, apparently a court supervisor (kurator), also on 3 June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights.

In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist.

Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene.

On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article 109 para 1 (5) of the Family Code.

On 6 June 2008 the second applicant appealed against that decision. On 9 June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10 June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it.

On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14 June 2008 she was discharged from the hospital.

On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter.

On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings.

Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised.

On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin.

On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m.

On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25 September 2008.

On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator.

On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10 June 2011.

On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs W. N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion.

A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used.

The second applicant appealed against that decision.

On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19 September 2009 the WarsawŚródmieście District Court dismissed the applicants’ appeal.

On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26 May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer.

On 31 October 2008 the LublinPółnoc District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31 March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct.

On 12 November 2008 the LublinPółnoc District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public.

On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases.

The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v. Poland, no. 5410/03, 20 March 2007, and R.R. v. Poland, no. 27617/04, 26 May 2011.

In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”.

Section 4(a) of the 1993 Act reads, in its relevant part:

“1. An abortion can be carried out only by a physician and where

1) pregnancy endangers the mother’s life or health;

2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable lifethreatening ailment;

3) there are strong grounds for believing that the pregnancy is the result of a criminal act.

In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy.

In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital.

The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor. .”


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant, who is of Nigerian origin, was born in 1977 and has been lawfully resident in Spain since 2003.

On 15 July 2005 the applicant was on the public highway in the El Arenal district near Palma de Mallorca, where she worked as a prostitute, when two officers of the national police force asked to see her identity and then ordered her to leave the premises, which she did immediately.

The applicant alleged that later the same day, after returning to the same place, she had noticed the same police officers coming towards her and had attempted to flee. The police officers had caught up with her, struck her on the left thigh and on her wrists with a truncheon and again demanded to see her identity papers. She alleged that during the altercation, which had been witnessed by a number of people including two taxi drivers and the security guards of a nearby discotheque, one of the police officers had insulted her, saying things like “get out of here you black whore”. She was released after presenting her papers to the police officers.

Again according to the applicant, on 21 July 2005 the same police officers stopped her again and one of them hit her on the left hand with his truncheon.

That day the applicant lodged a formal verbal complaint with Palma de Mallorca investigating judge no. 8 and went to hospital to have her injuries treated. The doctors observed inflammation and mild bruising of the left hand.

The file was allocated to Palma de Mallorca investigating judge no. 9, who decided to open a judicial investigation and requested an incident report from the police headquarters. In his report of 11 October 2005 the chief of police of the Balearic Islands explained that police patrols were common in the district concerned on account of the numerous complaints of theft or physical attacks regularly received from the local residents and the resulting damage done to the district’s image. He added that foreign female citizens present in the area often attempted to escape from the police because the latter’s presence hindered them in their work. In the present case the applicant had attempted to avoid inspection by the police but had been stopped by the officers, who had asked her to show her papers without at any time making any humiliating remarks or using physical force. With regard to the identity of the officers, the head of police indicated that the ones who had stopped and questioned the applicant the first time were from the patrol formed by the police officers Rayo 98 and Rayo 93 (code names given to the officers). Contrary to the applicant’s assertions, those who had stopped her on 21 July 2005 belonged to a different patrol, called Luna 10.

In a decision of 17 October 2005 Palma de Mallorca investigating judge no. 9 issued a provisional discharge order and decided to discontinue the proceedings on the ground that there was insufficient evidence that an offence had been committed.

That decision was served on the applicant or her representative on 23 April 2007, at the latter’s request.

The applicant applied to Palma de Mallorca investigating judge no. 9 to have the decision reversed, and subsequently appealed. She complained of the discriminatory attitude of the police officers and requested that various evidence-gathering measures be taken, such as identification of the officers in question and taking witness statements from the persons who had been present during the incidents. In a decision of 10 June 2007, investigating judge no. 9 refused to reverse his decision on the grounds that the applicant’s allegations had not been corroborated by objective evidence in the file. The judge observed that

“the medical report [provided by the applicant] contains no date and, in any event ... mentions only inflammation and bruising of the hand, with no mention of any injury to the thigh.

[The facts submitted] merely show that the applicant repeatedly failed to obey police orders given in the course of their duties, designed to prevent the shameful spectacle of prostitution on the public highway.”

An appeal by the applicant was examined by the Balearic Islands Audiencia Provincial, which gave a decision on 16 October 2007 allowing the appeal in part, setting aside the discharge order and ordering proceedings for a minor criminal offence to be instituted before the investigating judge against the two police officers, who had been identified on the basis of the information contained in the report drawn up by the police headquarters.

In the context of those proceedings the applicant asked to be able to identify the officers through a two-way mirror. Her request was rejected on the grounds that this was an unreliable method of identification given the length of time that had already elapsed since the incidents and the fact that the officers in question had been wearing helmets throughout, as the applicant had acknowledged. No evidence against the accused was taken during the trial.

On 11 March 2008 investigating judge no. 9 gave judgment at the end of a public hearing during which evidence was heard from the police officers charged, who were not formally identified by the applicant. In his judgment the judge observed that during the judicial investigation an incident report had been requested from the police headquarters according to which the officers involved had stated that no incident had occurred when they had stopped and questioned the applicant. The judge drew attention to the fact that the medical report provided by the applicant did not specify the date on which it had been drawn up. Furthermore, the findings in the report were not conclusive as to the cause of the injuries. Lastly, the judge reproduced verbatim the grounds of the decision of 10 June 2007 relating to the applicant’s conduct and the purpose of the intervention by the police and concluded that her allegations were not objectively corroborated. In the light of those arguments, the judge acquitted the police officers.

The applicant appealed. She challenged the refusal to allow her to identify the perpetrators through a two-way mirror and criticised the fact that the only investigative measure taken by the investigating judge in response to her complaint had been to request a report from the police headquarters.

In a judgment of 6 April 2009, the Palma de Mallorca Audiencia Provincial dismissed her appeal and upheld the investigating judge’s judgment. It pointed out that the right to use a range of evidence-gathering measures did not include the right to have each and every proposed measure accepted by a court. In the instant case identification through a two-way mirror would not have added anything to the evidence on the file.

Relying on Articles 14 (prohibition of discrimination), 15 (protection of physical integrity) and 24 (right to a fair trial) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 22 December 2009, the Constitutional Court dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised.

The applicant was stopped and questioned again on 23 July 2005. On the same day she went to the casualty department of a public medical centre, where the doctor observed abdominal pain and bruising on the hand and knee.

On 25 July 2005 she lodged a criminal complaint with Palma de Mallorca investigating judge no. 2, alleging that one of the police officers had struck her on the hand and knee with a truncheon and that the officers had singled her out on account of her racial origin and had not stopped and questioned other women carrying on the same activity. She also stated that she had subsequently been taken to the police station, where she had refused to sign a statement drawn up by the police saying that she admitted having resisted police orders. Referring to the incidents that had occurred during the first episode, the applicant requested the removal of the police officer who had assaulted her and that her complaint be joined to the one previously lodged with investigating judge no. 8. Neither of her requests was granted.

The case was allocated to Palma de Mallorca investigating judge no. 11, who decided to open a judicial investigation. The applicant requested certain evidence-gathering measures, including obtaining from the police the identification numbers of the officers who had been on duty on 15 and 23 July. In the alternative, should that information not permit identification of the police officers responsible, the applicant requested that all the police officers who had patrolled the area during those days be summoned so that they could be identified through a two-way mirror. Her request was rejected.

In the course of the judicial investigation, investigating judge no. 11 requested an incident report from the police headquarters.

A report by the Balearic Islands chief of police dated 28 December 2005 explained, firstly, that the applicant had admitted working as a prostitute in the area in question, which was an activity that had given rise to numerous complaints from local residents. In that connection he considered that the sole purpose of the applicant’s complaints (including the one of 15 July) had been to allow her to pursue her occupation unhindered by the police. With regard to the identity of the officers in question, the chief of police observed that the computer records had not registered any intervention on 23 July; only those of 15 and 21 July had been recorded in respect of that area.

On 22 February 2006 investigating judge no.11 issued a provisional discharge order and decided to discontinue the proceedings on the grounds that there was insufficient evidence that an offence had been committed.

The applicant sought to have that decision reversed by the judge and subsequently appealed. The judge dismissed her request by a decision of 31 July 2006. Subsequently, the Palma de Mallorca Audiencia Provincial dismissed her appeal on 7 March 2007. The Audiencia referred both to the report of the police headquarters in which there was no record of an intervention by the police on the alleged date and the statements in the report regarding the applicant’s true motives in lodging her complaints. It also considered that the medical report supplied by the applicant did not enable the cause of the injuries to be unequivocally established.

Relying on Articles 10 (right to dignity), 14 (prohibition of discrimination), 15 (right to physical and mental integrity) and 24 (right to a fair trial) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 14 April 2008, the Constitutional Court dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised.


The applicant is a Slovenian national of Serbian origin. He was born in 1944 and lives in Ljubljana. He was employed as a medical technician in the Yugoslav People’s Army. In the summer of 1991, after Slovenia became independent following the dissolution of the former Yugoslavia, the applicant worked in the Federal Army Hospital in Ljubljana.

As the Federal Army withdrew from Slovenia in October 1991, the applicant, who had been declared disabled, applied for an invalidity pension. In December 1991 the Federal Military Social Security Fund in Belgrade granted him the right to retire on grounds of invalidity and paid him a pension until April 1992.

Following the dissolution of the former Yugoslavia and in the absence of an agreement on the succession or any relevant bilateral treaty, the Government of the Republic of Slovenia decided to provide for an advance payment of military pensions, since the Belgrade fund had ceased to pay former servicemen living in Slovenia. The purpose of this regulation was to find a temporary solution for retired military personnel and some other categories of military benefiting from the scheme, until the issues of the State succession had been settled.

The proceedings in question in the present case concern the applicant’s claim for an advance on his military pension.

On 5 June 1992 the applicant applied for an advance on his military pension under the Advance on Payment of Military Pensions Decree (Official Gazette no. 4/92 of 25 January 1992).

On 9 July 1992 the Pension and Invalidity Insurance Fund (Skupnost pokojninskega in invalidskega zavarovanja) found that the applicant had no right to advance payments. On 3 November 1992 the Pension and Invalidity Insurance Fund dismissed the applicant’s appeal. The applicant sought judicial review of those decisions.

On 2 March 1993 the Labour and Social Court in Ljubljana (Sodišče združenega dela pokojninskega in invalidskega zavarovanja Slovenije) dismissed the applicant’s action. On 7 July 1994 the Higher Labour and Social Court (Višje delovno in socialno sodišče) in Ljubljana upheld the lower court’s decision. The second-instance decision was served on 30 July 1994.

On 29 August 1994 the applicant lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče) alleging breaches of his constitutional rights in the aforementioned proceedings.

On 23 May 1995 the Constitutional Court invited the applicant to complete his appeal. The Ljubljana Labour and Social Court and the Pension and Invalidity Insurance Fund were requested to submit records. The applicant filed supplementary submissions on 6 June 1995 but the Constitutional Court did not receive them until 13 June 1995.

On 6 October and 20 December 1995 a panel of three judges considered the case in the preliminary proceedings. On 20 December 1995 the Constitutional Court declared the applicant’s constitutional appeal admissible.

On 21 December 1995 the Constitutional Court asked the Higher Labour and Social Court to submit a statement, which was supplied on 17 January 1996.

On 5 December 1996 the plenary court began consideration of the merits of the applicant’s case.

In addition, the Pension and Invalidity Insurance Fund was asked on 6 December 1996 to submit its opinion. They complied with the request on 3 January 1997.

On 20 March, 10 April and 17 April 1997 the plenary Court held further deliberations.

On 17 April 1997 the Constitutional Court, by a majority, rejected the constitutional appeal as being manifestly ill-founded. The decision was served on 17 May 1997.

On 12 February 1999 the applicant applied for a pension under general pension and invalidity insurance regulations.

On 14 February 2000 the Pension and Invalidity Insurance Fund granted the applicant the right to his pension from 1 September 1998 onwards.

Article 160 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads, so far as it is relevant:

...on constitutional appeals of violation of human rights and fundamental freedoms by specific acts; ...

Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”

“Proceedings before the Constitutional Court shall be regulated by law.

The law shall determine who may require proceedings to be instituted before the Constitutional Court. Anyone who demonstrates a legal interest may request the institution of proceedings before the Constitutional Court.

The Constitutional Court shall decide on a majority vote of all its judges unless otherwise provided for in individual cases by the Constitution or by statute. The Constitutional Court may decide whether to institute proceedings following a constitutional appeal with such lesser number of judges as may be provided by statute.”

The Constitutional Court Act (Zakon o Ustavnem sodišču) governs the composition and functioning of the Constitutional Court.

“The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms…

Decisions of the Constitutional Court are legally binding.”

Sections 50 to 60 of that Act concern constitutional appeals by individuals (see paragraph 26 above).

“Any one who believes that his or her human rights and basic freedoms have been violated by a particular act of a state body, local community body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...”

“A constitutional appeal may be lodged only after all legal remedies have been exhausted.

Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and if certain irreparable consequences for the appellant would occur as a result of the implementation of a particular act.”

“A constitutional appeal shall be lodged within sixty days after the date of the decision against which the constitutional appeal lies.

In specially founded cases the Constitutional Court may exceptionally hear a constitutional appeal lodged after the expiry of the time-limit stated in the first paragraph of this section.”

“The constitutional appeal must indicate the particular act which is the subjectmatter of the appeal and the facts that give rise to the allegation of a violation of human rights and basic freedoms on which the appeal is based.

A constitutional appeal shall be lodged in writing. There shall be enclosed with it a copy of the particular act that is the subject-matter of the appeal and all documents forming the basis of the appeal.

The appeal and annexed documents shall be lodged in triplicate.”

Sections 54 and 55 govern the preliminary procedure.

“A decision on whether a constitutional appeal is admissible and to institute proceedings shall be taken in private by a committee of three judges of the Constitutional Court.

If the appeal is incomplete or if the Constitutional Court is unable to examine it because it does not contain all the required information or documents referred to in the preceding section of this act, the Constitutional Court shall require the appellant to complete the appeal within a specified time.”

Sections 56 to 60 set out the procedure for the adjudication of the constitutional appeal and provide:

“If the constitutional appeal is found to be admissible, it shall be sent to the body which issued the act and against which the constitutional appeal has been lodged, so that it may reply to the constitutional appeal within a determined period.”

“If a constitutional appeal is admissible, it shall be examined by the Constitutional Court in private unless the Constitutional Court decides to hold a public hearing.”

“The Constitutional Court shall issue a decision declaring that the appeal was unfounded or shall accept the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part, and return the matter to the competent body. ...”

Section 60 concerns the Constitutional Court’s decision if the appeal is upheld and reads:

“If the Constitutional Court quashes an individual act, it may also decide a contested right or freedom if such procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record.”


The applicant is a British national living in Northern Ireland. She is represented before the Court by Messrs McClure and Company, a solicitors’ firm in Belfast

The applicant is a social worker working with children under five years old. She also works on a voluntary basis as a classroom assistant in a local school. She is homosexual and her sexual orientation is known to her employer and to the school where she assists. The applicant has two children aged 11 and 12.

The applicant has been involved in a homosexual relationship with L since 1990. L obtained a divorce in February 1993 but the custody and care of L’s four children (born in 1978, 1980, 1984 and 1986, respectively) were the subject of High Court proceedings. In or around December 1993 L and her former husband agreed interim shared care arrangements according to which the children would spend alternative weeks with each parent.

On 10 May 1994 L and her former husband settled the High Court proceedings. L’s former husband would have custody of the children and her access to them would continue on the basis of the shared care arrangement. L also agreed that she would not permit the children to come into contact with or remain in the company of the applicant or of any other person known to L to be lesbian. The High Court made an order on the same day in the terms of this agreement. As a result of difficulties surrounding the applicant’s contact with L, the matter was brought before the High Court on 7 June 1995 when L again undertook to the Court that she would comply with the order of 10 May 1994. Following another summons issued by L’s former husband, on 25 January 1996 L undertook to the High Court that she would instruct the applicant not to call at her home at any time when she had access to the children, and she undertook not to answer or open the door if the applicant called at her house during a scheduled access visit. The High Court recorded L’s undertakings in its order of the same day and dismissed the summons. Since then L lives one week at her own address with her children and the other week with the applicant.

During the course of the custody proceedings, social work and psychologist reports were submitted to the High Court dealing, inter alia, with the applicant’s position in relation to L and her children.

The detailed report of a child and adolescent psychiatrist, Dr Gallagher, of September 1993 concluded that research showed there was no evidence that children living with lesbian mothers were adversely affected in terms of their sexual identity, personal development, peer relationships or social adjustment. He considered that there was no evidence that L’s sexual orientation posed a threat to the children or that L’s relationship with the applicant would adversely affect the children. The evidence was that cohabitation between L and the applicant, provided that relationship was good, would have a positive effect on the children. Given the acrimonious relationship between L and her former husband, the children’s need for stability and security, the difficulties L’s husband experienced with the shared care arrangements and since L was the main care giver, it was that expert’s opinion that L should be granted custody with frequent access being given to L’s former husband.

A social work report of November 1992 indicated that there was nothing to suggest that L could not provide adequate care and protection for the children. Given the parents’ acrimonious relationship and the children’s need for stability, custody was recommended in favour of L with regular access in favour of L’s husband. A further social work report of June 1993 highlighted the husband’s concern about L’s relationship with the applicant. Having considered all of the care and custody options, the social worker indicated that he was unable to assess the children’s views on their mother’s homosexuality and that there was a lack of definitive research on the possible effects on the children’s developments of being in the custody of L who was homosexual. He found it extremely difficult to make a definite recommendation, but considered that custody should be given to L, her husband’s condition as regards the children having no contact with the applicant being considered “untenable”.

Dr Harbinson, a consultant psychiatrist, did not agree with Dr Gallagher’s report of September 1993. In his report of November 1993, he considered that it was difficult to dismiss the vital importance of parents as role models for their children and the stigmatisation attached in our society to homosexuality. He considered that it would not be wise to raise the issue of L’s homosexuality with the children at that stage.

Dr Gallagher produced an addendum to his report in December 1993 pointing out that Dr Harbinson had done limited research on lesbian couples and children and had misinterpreted the research quoted. He repeated that it was not the sexual orientation of parents that was the issue but rather the quality of the parents’ relationship. He added that psychological studies had shown that where the mother (the main care giver) was living with her lesbian partner, the mother was psychologically more secure and stable and this was, in turn, beneficial for the children. He confirmed his recommendation that L have custody of the children, with her husband having regular access.


Violation of Art. 8;Non-pecuniary damage - award

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

The applicant, Ms Tibor Ipolyné Daróczy, is a Hungarian national who was born in 1933 and lives in Budapest.

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

In 1950 the applicant married Mr Tibor Ipoly Daróczy. According to birth certificate no. 1786/1927 Mr Daróczy was entitled to bear the two above-mentioned forenames from the very moment of his birth. Her husband signed the marriage certificate as “Tibor Daróczy”. The applicant chose to bear her husband’s name by putting the suffix “-né” referring to the marriage (házasságra utaló toldás) after the first given name (Tibor) of her husband. In accordance with the widespread custom in Hungary, the latter only used his first given name even in official contexts. The applicant’s married name was registered as Tiborné Daróczy on the marriage certificate.

The official before whom the marriage took place did not observe that the name chosen was against the law since, at the material time, a woman could only choose to bear the whole name of her husband, including all the given names. In the present case, the applicant’s correct married name should have been Tibor Ipolyné Daróczy.

The mistake was not revealed in 1954 when identity cards were introduced in Hungary. The applicant’s renewed identity card issued in 1974 also contained the name Tiborné Daróczy. The applicant used this name in all official and private business. In particular, her social security card and tax identification certificate were issued in the name Tiborné Daróczy.

In 1984 Hungary introduced electronic data recording. In the new State Registry (Állami Népességnyilvántartó) the applicant’s name was automatically entered in the manner prescribed by law, as Tibor Ipolyné Daróczy. However, she did not receive any official notification of this fact. In 1994 she and her husband were entered on the electoral register (választói névjegyzék) under the names Tibor Daróczy and Tiborné Daróczy. This database relied on the general State Registry.

In 1996 the applicant’s husband died. The applicant then used the name Tiborné Daróczy with the prefix “özv.” indicating that she was a widow.

In 2004 the applicant lost her identity card. Based on the State Registry, the Registry Office issued a new card which indicated her name as the widow of Tibor Ipoly Daróczy (özv. Tibor Ipolyné Daróczy). On 13 January 2005 the applicant obtained an official certificate containing this name. The certificate’s only function was to enable her to access her bank account since her new identity card contained a name that was different from the one she had used when opening the account. The text of the certificate expressly stated that it had been issued for one-time use.

The applicant lodged a complaint with the Ministry of the Interior, seeking permission to bear the name Tiborné Daróczy. In November 2004 the Ministry informed her that, since her husband’s official name was Tibor Ipoly Daróczy, she was entitled and obliged to bear that name in its entirety as a widow, and that it was not possible to change it to another form. Her name is at present registered as Tibor Ipolyné Daróczy.

“(3) As a general rule, women should be entered in the registry under their family name (birth name) and forename. Exceptions, having to bear their husbands’ as well as their own family name and forename:

(a) married women, widows...”

“(1) After the marriage, the wife shall bear

a) her whole maiden name, or

b) the whole name of her husband with the suffix referring to the marriage, to which she may attach her whole maiden name, or

c) her husband’s family name with the suffix referring to the marriage, to which she attaches her whole name, or

d) her husband’s family name to which she attaches her first name. ...”

“(6) A person bearing his/her spouse’s name cannot alter it by way of a name-change (névváltoztatás).”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1935 and lives in Siyazan. He is a farmer.

Following a dispute over ownership rights to a plot of land between the applicant and the Sadan Municipality in the district formerly known as Davachi (“the Municipality”), criminal proceedings were instituted against the applicant.

On 29 December 2004 the Davachi District Court convicted the applicant under Article 188 of the Criminal Code (violation of a lawful owner’s right to a plot of land, by means of unauthorised occupation, alteration or cultivation thereof) and sentenced him to a fine in the amount of one hundred conventional financial units (550,000 old Azerbaijani manats, equivalent to 110 new Azerbaijani manats (AZN), which according to the official exchange rates published by the Central Bank of the Republic of Azerbaijan amounted to approximately 84 euros (EUR) at the relevant time). The court found that the applicant had unlawfully occupied and cultivated a plot of land of 0.8 hectares owned by the Municipality. The Court based its findings on witness statements and information provided by the State Committee of Land and Cartography (“the SCLC”).

On an unspecified date, the applicant appealed against the judgment of 29 December 2004, arguing that the plot of land in question was part of a larger parcel of land measuring 50 hectares belonging to his family farming business. On 18 March 2005 the Court of Appeal upheld the first-instance court’s judgment.

The applicant lodged an appeal on points of law, alleging that the lower courts had erred in their assessment of the facts. On 9 August 2005 the Supreme Court, composed of a panel of three judges including judge N.H., quashed the judgment of the Court of Appeal of 18 March 2005 and remitted the case for a new examination to the Court of Appeal. The Supreme Court noted, in particular, that the conviction was based on insufficient evidence.

Taking into consideration the findings of the Supreme Court, the Court of Appeal sent a new request to the SCLC and the Municipality requesting detailed information about the exact location, measurements and ownership of the plot of land. The Municipality submitted that, according to the official records, the plot in question belonged to the Municipality and not the applicant. The SCLC conducted an on-site inspection of the plot of land and submitted to the court that the plot in question was part of the Municipality’s estate. On 12 July 2006 the Court of Appeal delivered a new judgment upholding the Davachi District Court’s judgment of 29 November 2004 convicting the applicant. The court held that the disputed plot of land which the applicant cultivated belonged to the Municipality and that the relevant law had been applied correctly.

The applicant appealed. On 10 October 2006 the Supreme Court, composed of a panel of three judges including judge N.H., examined the applicant’s appeal. It found that the Court of Appeal had examined all the relevant and available evidence and had committed no breaches of substantive or procedural law. Accordingly, the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 12 July 2006.

The relevant provisions of the Code of Criminal Procedure of 2000 (“the CCrP”) concerning the disqualification of judges provided as follows:

Article 109. Objection to a judge

“109.1. An objection to a judge (or judicial formation) must state reasons ... An objection to a judge may be considered justified and be granted unconditionally if there exists at least one of the following grounds precluding a person’s participation in a criminal proceedings as a judge:

109.1.6. if the judge had participated as a judge in the examination of the same criminal case or another prosecution matter in a court of first instance or appeal or before the Supreme Court, or on the basis of newly discovered facts (the judge’s examination of the file at the pre-trial stage by way of judicial supervision, or the initial hearing of the case, shall not preclude his subsequently examining the case as a member of the court of first instance or appeal or the Supreme Court);

109.2. In any of the cases covered by Article 109.1 of this Code, the judge shall disqualify himself or herself.”

The following are the relevant provisions of the CCrP concerning the review of the relevant decisions delivered in domestic proceedings and reopening of the domestic proceedings following a finding by the Court of a violation of the Convention:

Article 455. Grounds for review of judicial decisions in connection with the violation of rights and freedoms

“455.0. The following are grounds for review of judicial decisions in connection with the violation of rights and freedoms:

455.0.2. finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings, simplified pre-trial proceedings or proceedings involving a complaint under the private prosecution procedure, conducted by courts of the Republic of Azerbaijan; ...”

Article 456. Procedure for review of judicial decisions in connection with the violation of rights and freedoms

“456.1. The Plenum of the Supreme Court of the Republic of Azerbaijan is vested with the competence to review judicial decisions in connection with the violation of rights and freedoms.

456.2. Where grounds exist under Articles 455.0.1 and 455.0.2 of this Code, the Plenum of the Supreme Court examines the cases only on points of law, in connection with the execution of judgments of the Constitutional Court of the Republic of Azerbaijan and the European Court of Human Rights. After a judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court, the President of the Supreme Court assigns the case to one of the [Supreme Court] judges for preparation and presentation of the case at the Plenum [of the Supreme Court]. The case shall be reviewed at a hearing of the Plenum of the Supreme Court no later than three months after the judgment of the Constitutional Court or the European Court of Human Rights is received by the Supreme Court. ...”

Article 459. Decision taken after review in connection with the finding by the European Court of Human Rights of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in the criminal proceedings conducted by courts of the Republic of Azerbaijan

“459.0. Having conducted a review in cases stipulated by Article 455.0.2 of this Code, the Plenum of the Supreme Court has competence to deliver one of the following decisions:

459.0.1. to quash, fully or partially, judicial decisions of the first-instance, appellate and cassation courts, as well as judicial decisions delivered under the procedure of additional cassation ..., and to remit the criminal case, the case materials of simplified pre-trial proceedings, or the case materials of proceedings involving a complaint under the private prosecution procedure, for re-examination by the relevant firstinstance or appellate court;

459.0.2. to amend a decision of the court of cassation and/or additional cassation in situations stipulated in Articles 421.1.2 and 421.1.3 of this Code;

459.0.3. to quash a decision of the court of cassation and/or additional cassation and to deliver a new decision.”

In its decision no. 3 of 24 November 2005 concerning the courts’ practice on implementation of the rules concerning objections to a judge or the bench, the Plenum of the Supreme Court held that when relevant legal grounds for disqualification exist, a judge must withdraw from the examination of the case of his or her own accord, even when the parties to the proceedings have not raised an objection. This requirement to withdraw is defined by the Plenum as the judge’s “legal duty” (paragraph 3.2). A judge who has already heard a criminal case in a court of first instance, appeal or cassation, cannot take part in the re-examination of the same criminal case (paragraph 13).