Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Krzysztof Wojtyczek;Vincent A. De Gaetano

The applicant is a limited liability company registered under Hungarian law, with its seat in Budapest.

On 24 November 1998 the applicant initiated a civil lawsuit against two companies requesting the court to declare invalid a real estate sale and purchase agreement concluded between these two companies.

The Budapest Regional Court dismissed the applicant’s claim on 26 February 2004. On appeal, the Budapest Court of Appeal quashed the judgment on 5 November 2004.

The first-instance court re-heard the case and dismissed the applicant’s claim on 13 October 2005. On appeal, the second-instance court upheld the judgment on 9 November 2006. The applicant challenged the judgment before the Supreme Court which quashed it on 13 September 2007.

In the resumed proceedings the Budapest Court of Appeal quashed, on 20 March 2008, the first-instance court’s judgment.

On 18 March 2009 the Budapest Regional Court as firstinstance court dismissed the applicant’s claim. On appeal, the Budapest Court of Appeal upheld the judgment on 17 December 2009. The applicant challenged the judgment before the Supreme Court but to no avail. The Supreme Court upheld the final and binding judgment on 13 September 2010 (served on 27 October 2010).


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in 1968 and lives in Komsomolskoye village in the Kharkiv Region.

In May 1999 the Pavlograd Police placed the applicant on the wanted list in connection with their criminal investigation into a violent burglary in Pavlograd and the infliction of grave bodily injuries on B.’s daughter P., who was a minor.

On 28 January 2000 the applicant was arrested in Russia on suspicion of having committed an unrelated crime in that country, for which he was subsequently convicted by a Russian court to a term of imprisonment that was due to end on 27 July 2004.

On 1 June 2004 a Russian court ordered the applicant’s retention in custody pending his extradition to Ukraine.

On 1 December 2004 the applicant was extradited to Ukraine and placed in a pre-trial detention facility.

At 5.20 p.m. on 16 January 2005 the applicant was presented with an arrest report stating that he had been arrested on suspicion of having committed aggravated burglary. He was informed of his right to have access to a lawyer as from the first interrogation. The applicant signed this report, stating that he generally disagreed with its content and that he wished to have a lawyer as from the first interrogation.

At the same time on the same day the applicant also signed a record confirming that he had been informed about his rights as a suspect, in particular the right to remain silent and to consult a lawyer. The applicant signed the report and added by hand in the relevant field provided on the pre-printed form that he had “refused the assistance of a defence counsel and would defend himself, not for financial reasons” (свои права буду защищать самостоятельно, не по материальным причинам). The applicant alleged that he had been compelled to sign this and subsequent waivers because the police had told him that they would not provide him with a lawyer, as he had initially requested.

On 17 January 2005 the applicant signed another record confirming that he had been informed about his rights as a suspect and stating ‒ using the same wording ‒ that he would defend himself.

On the same day he was questioned twice. He denied any involvement in the alleged offence.

On 25 January 2005 the applicant was formally charged with aggravated burglary. On the same day he signed a record confirming that he had been informed about his rights as an accused person and stated ‒ using the same wording ‒ that he would defend himself.

On 27 January 2005 he signed another such record using the same wording. On the same day the investigator announced to the applicant that the pre-trial investigation was complete and gave him the criminal case file to study.

On 29 January 2005 the Pavlograd Prosecutor signed the final bill of indictment, charging the applicant with aggravated burglary. The indictment contained a request that the victims, B. and P., and two other witnesses be called at the trial.

On 1 March 2005 the applicant stood trial before the Pavlograd Court sitting in a single judge formation, assisted by a clerk. According to the trial record, the trial unfolded as follows:

According to the applicant, this record of the trial was inaccurate. In particular, the applicant did not initially plead guilty. It was only after B. had departed that the judge persuaded him to plead guilty and to agree to abbreviated proceedings in exchange for a lenient sentence.

At the close of the trial on the same day, the court delivered its judgment. It convicted the applicant as charged and sentenced him to six and a half years’ imprisonment, to be counted from 28 January 2000, the date of his arrest in Russia, with one year and about five months therefore remaining to be served. The court relied on his guilty plea in the course of the trial and his consent to dispensing with the examination of evidence. It also stated that the applicant’s guilt was proven by a number of documents in the file. In particular it referred to the identification reports, according to which P. and another eyewitness had identified the applicant as the person who had attacked P.

On 4 March 2005 B. appealed, maintaining that the sentence was too lenient. She argued that the term of imprisonment should be calculated from the date of the applicant’s arrest in Ukraine rather than from the date of his arrest in Russia for an unrelated crime. She also maintained that the prosecutor had not been present at the trial and that the applicant had never repented or admitted his guilt and had behaved defiantly at the trial.

The applicant replied to the appeal, submitting that his guilty plea and remorse for the crime had been genuine and that the sentence imposed by the trial court had been correct and justified.

On 20 May 2005 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) held a hearing in the presence of a prosecutor, B. and the applicant. At the hearing the applicant reaffirmed his initial submissions, said that he regretted the offence he had committed, and requested that the trial court’s verdict be left in force. According to the applicant, he had requested the presence of a lawyer at this hearing but his request had not been granted.

On the same date the Court of Appeal quashed the sentence of the Pavlograd Court as unduly lenient, taking into account the seriousness of the offence and the applicant’s personality. It also found that the trial court had misinterpreted the law regulating the calculation of sentences with regard to the time served in prison in Russia. In particular, it had failed to take into account the fact that Ukraine had made a reservation to the Protocol to the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 concerning the effect given to sentences rendered in other States Parties to the Protocol. Accordingly, the Court of Appeal sentenced the applicant to twelve years’ imprisonment to be calculated from 16 January 2005, the date of his arrest in Ukraine.

The applicant lodged an appeal on points of law, arguing that he was in fact innocent. He alleged that at the trial he had initially denied his guilt and pointed out what he believed to be gaps and inconsistencies in the prosecution’s case. However, he had then pleaded guilty because of pressure from the trial judge and because he had wished to be released sooner and had no funds to pay for a lawyer. No prosecutor had been present at his trial and in these circumstances he had not been convinced of the judge’s impartiality or that there had been a fair examination of evidence. When the judge had assured him that he would receive a lenient sentence if he pleaded guilty, he had followed the judge’s instructions. The applicant also alleged that the Court of Appeal had erred in failing to take into account the time he had served in prison in Russia.

On 30 August 2005 the Supreme Court rejected the applicant’s appeal and found that, taking due account of the adequacy of the written evidence collected by the prosecution, the applicant’s conviction had a sufficient factual and evidentiary basis. It furthermore found that the Court of Appeal had been correct in its calculation of the applicant’s prison term from 16 January 2005, but reduced the sentence to nine years.

On 10 March 2009, at the request of the prosecutors’ office, the Court of Appeal ordered that the term of the applicant’s imprisonment be calculated from 1 June 2004 (the date of the decision to remand him in custody pending consideration of the extradition request).

On 30 September 2011 the applicant was released.


CASE OF BADRETDINOV AND OTHERS v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

All the applicants were convicted by Russian courts and given custodial sentences.

They served their sentences in penitentiary facilities which were overcrowded and suffered from a shortage of sanitary installations.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra

The applicant was born in 1940 and lives in Dubrovnik.

On 18 February 2003 the Municipal Court (Opštinski sud) in Gornji Milanovac ordered V.T. (“the debtor”) to pay to the applicant 2,500 Euros (“EUR”) plus statutory interest on account of debt and 187,750 Serbian dinars (“RSD”), which was approximately EUR 3,028 at the time of the delivery of the judgment, for the costs of the civil proceedings.

On 23 August 2003 the District Court (Okružni sud) in Čačak, on appeal, reduced the award in respect of costs to RSD 97,250 (approximately EUR 1,568) and upheld the first-instance judgment for the remainder.

The judgment of 18 February 2003, as amended on 23 August 2003, became final on 5 September 2003.

On 23 October 2003, at the applicant’s request, the Municipal Court ordered the enforcement of the judgment by seizure and sale of the debtor’s movable assets.

Following three failed attempts at seizure of the debtor’s movable assets, on 21 December 2004 the Municipal Court informed the applicant that the enforcement by seizure and sale of the judgment debtor’s property was impossible due to the debtor’s indigence.

On 13 July 2005 the Municipal Court terminated the enforcement proceedings. This decision was quashed on appeal on 24 October 2005 by the Municipal Court.

Following a further attempt at seizure of the debtor’s movable assets, on 11 October 2007 the Municipal Court stayed the enforcement proceedings (prekida se postupak izvršenja) because of the debtor’s death in the meantime.

On 3 June 2008 the applicant proposed that the enforcement proceedings be continued by seizure and sale of the deceased debtor’s movable and immovable estate. In support of his request, the applicant submitted a court decision of 2 October 2001 by which the debtor and two other persons had previously inherited a house with a plot of land. He also requested the court to appoint a temporary representative for the debtor’s heirs in accordance with Article 32 of the Enforcement Procedure Act. On 20 June 2008 the Municipal Court rejected the applicant’s request. This decision was quashed on appeal on 27 March 2009 by the Municipal Court.

On 16 April 2009 the Municipal Court invited the applicant to provide the names and the addresses of proposed debtors, indicate the debtor’s heirs, propose the means of enforcement and details and proof of ownership concerning immovable assets, all within three days, failing which his request would be rejected. It was further specified that no appeal was allowed against this decision. In the reasoning, the court found that the names and the addresses of the debtor’s potential heirs were available from the decision of 2 October 2001, and that therefore, there was no need for the appointment of a temporary representative. On 8 June 2009, however, the Municipal Court instructed the applicant to advance the costs for a temporary representative within eight days. It was also specified that no appeal was allowed against this decision.

On 27 August 2009 the Municipal Court rejected the applicant’s request for continuation of the enforcement proceedings because of his failure to abide by the orders of 16 April and 8 June 2009. This decision was upheld on appeal on 13 October 2009.

According to the Government, there are eight heirs of the deceased debtor, the names and addresses of which have been known.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1960 and lives in Budapest.

The applicant was placed in retirement on grounds of disability and received a disability pension as of 1 November 2006, the amount of which was 91,363 Hungarian forints (HUF) (approximately 305 euros (EUR)) per month. The entitlement was based on a final decision of the Supreme Court. At the material time the medical board rated her state of health at 46 per cent.

The methodology for disability assessment changed as of 1 January 2008.

Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity was enacted on 29 December 2011 and entered into force as of 1 January 2012. It introduced a new system of allowances and beneficiaries of the old scheme were invited to re-apply under the new rules.

The applicant lodged a fresh application for disability allowance under the new law.

Pending approval of her new application, she continued to receive a monthly disability allowance in the amount of HUF 89,925 (approximately EUR 300) on the strength of the fact that on the day the new law entered into force, she had been in receipt of a disability benefit.

On 29 June 2012 the National Rehabilitation and Social Authority assessed the applicant’s state of health at 59 per cent. She was categorised as a person suitable for rehabilitation on the basis of that assessment. However, owing to the applicant’s other circumstances, her rehabilitation was not recommended.

In application of the relevant rules, the applicant’s rehabilitation allowance was established at 45 per cent of the minimum wage, that is, in the amount of HUF 41,850 (approximately EUR 140), by a decision of the Budapest Governmental Office (Directorate of Pension Insurance) given on 19 September 2012 and effective as of 1 December 2012.

The applicant appealed.

A medical assessment carried out in the course of the second-instance administrative proceedings resulted in the finding that the applicant’s state of health was at 58 per cent. It was reaffirmed that her rehabilitation was not recommended. Since the minor difference in the scores did not alter the calculation of the allowance, the National Rehabilitation and Social Authority upheld the first-instance decision on 17 January 2013.

The applicant sought a judicial review.

On 23 February 2016 the Budapest Administrative and Labour Court dismissed her action. Having obtained fresh medical assessments and the opinion of the national forensic body, the court was satisfied that the applicant’s state of health was at 54 per cent (her locomotor, digestive and endocrinological conditions were calculated cumulatively as per the method prescribed in Annex 1 to Decree no. 7/2012 (II. 14.) NEFMI).

Again, the minor difference in the scores had no bearing on the calculation of the allowance. The court upheld the administrative decisions.

On 12 September 2016 the Kúria dismissed the applicant’s petition for review. It observed in particular that the lower courts had found that the applicant’s state of health (for the purposes of the application of rules of disability benefits) had improved and that the applicant had challenged that finding. It pointed out that such an improvement did not necessarily correspond to actual healing from a condition, but could also result from a change in, or stricter application of, the relevant rules of medical assessment.

The applicant submitted that, as of August 2015, she no longer received any benefits. The legal or factual circumstances underlying this state of affairs are not known.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1973 and is currently serving a prison sentence in Tokat Prison.

On 30 September 2001 the applicant was arrested on suspicion of membership of an illegal organisation, namely the Hizbullah. According to the arrest report, signed by four police officers, during his arrest the applicant attempted to swallow some pieces of papers and resisted the police officers who tried to take the papers out of his mouth.

On the same day, the applicant was examined by a doctor at the Diyarbakır State Hospital. The doctor noted, on a police document, that the applicant had a widespread bruised area under his left eye, oedema under his right eye, a scratch on his left wrist, red patches behind his left ear and bleeding on his right ear.

On 7 October 2001 the applicant was examined by a doctor who diagnosed him with pharyngitis and prescribed him medication.

On 8 October 2001 the applicant was questioned at the anti-terror branch of the Diyarbakır security directorate and confessed to his involvement in Hizbullah.

On 9 October 2001 at 2.45 p.m. the applicant was sent for a medical examination at the Diyarbakır Health Clinic. In a document of the police directorate in which the applicant’s name was put, the doctor who examined the applicant noted that he had a widespread bruised area under his left eye and small scratches on his left wrist.

On the same day, the applicant was questioned by both a public prosecutor and an investigating judge. Before the public prosecutor, the applicant responded to the questions by nodding. The public prosecutor noted that the applicant was unable to speak and therefore could not make statements. Before the investigating judge, the applicant wrote down on a piece of paper that his throat and internal organs hurt and that he was unable to speak. He further noted that he would examine his police statements and the evidence against him in detail and make his defence submissions before the trial court.

On the same day the investigating judge authorised the applicant’s detention at the anti-terror branch of the Diyarbakır security directorate for a further period of ten days on the basis of Legislative Decree no. 430 in force at the material time.

Later that day, at 9 p.m., the applicant was examined at the Diyarbakır State Hospital. The doctor who conducted the examination stated in a police document that the applicant had a bruise, measuring 2x3 cm, under the left orbital region and was suffering from tonsillitis.

On 10 October 2001 the applicant was referred to the emergency room of the state hospital in Diyarbakır, where the doctors considered that he should be examined by a doctor at the otolaryngology department of the hospital. The applicant was subsequently subjected to a number of auditory examinations and at 2.30 p.m. on the same day an otolaryngologist stated, in a letter sent to the hospital by the police, that the applicant suffered from otitis in his right ear and tympanic membrane perforation in his left ear which could have occurred as a result of trauma. The doctor further noted that the applicant suffered from hearing loss.

On 18 October 2001 the applicant made further statements to the police. According to the document containing his police statement, he had already made statements concerning his relations with the illegal organisation and he did not wish to make any further submissions as to the content of the documents that he had attempted to swallow during his arrest.

On the same day the applicant was once again examined by a doctor at the Diyarbakır Health Clinic. The doctor stated in a letter sent to the hospital by the Diyarbakır security directorate concerning the applicant that the latter looked weak but did not bear any signs of physical violence on his body.

On the same day the applicant was transferred to the Diyarbakır prison, where he was detained on remand.

On 2 November 2001 and 14 December 2001 the applicant was subjected to medical examinations at the Diyarbakır State Hospital and received treatment for breathing and indigestion problems while detained in the Diyarbakır prison.

On 12 October 2001 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant of membership of the Hizbullah under Article 168 of the former Criminal Code.

The proceedings commenced before the Diyarbakır State Security Court. On an unspecified date, the case against the applicant was joined with another case which was pending before the Van State Security Court and which had been brought against a number of other persons who were charged with membership of the Hizbullah.

On 6 May 2003 the Van State Security Court found the applicant guilty of attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code and sentenced him to life imprisonment. On 8 June 2004 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds.

In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Van Assize Court acquired jurisdiction over the case.

On 11 May 2006 the Van Assize Court sentenced the applicant to life imprisonment for membership of the Hizbullah and for his involvement in activities attempting to undermine the constitutional order by force

On 16 May 2006 the applicant’s lawyer lodged an appeal against the judgment of 11 May 2006.

On 15 March 2007 the Court of Cassation held a hearing during which the applicant’s lawyer was present and made defence submissions. On the same day, the Court of Cassation upheld the judgment of the firstinstance court in so far as it concerned the applicant’s criminal conviction.

On 21 March 2007 the Court of Cassation pronounced its decision.

Following the deposit of the decision of the Court of Cassation with the registry of the first-instance court, on 14 June 2007 the Bitlis public prosecutor issued a committal order concerning the execution of the sentence (müddetname). On 21 June 2007 the committal order was served on the applicant.

On 24 December 2001 the applicant lodged two petitions with the public prosecutor’s office at the Diyarbakır State Security Court and stated that he had been subjected to illtreatment before and during his detention in police custody. In this connection, he alleged that he had been beaten before he was taken to the hospital on the day of his arrest and that the injuries that he had sustained on his face were the result of those beatings. He further maintained that he had been stripped naked, blindfolded, insulted, threatened, strangled, subjected to electroshocks and suspended by his arms, hosed with pressurised cold water and had his testicles squeezed. The applicant further submitted that the police officers had put pressure on the injuries he had sustained under his eyes with a view to making him suffer. The applicant noted in his petition that he had suffered from tympanic membrane perforation as a result of his ill-treatment. He finally submitted that he had not made a statement before the public prosecutor and the investigating judge on 9 October 2001 as he had been unable to speak due to the ill-treatment that he had suffered at the hands of the police.

On 16 January 2002 the public prosecutor at the Diyarbakır State Security Court transferred the applicant’s petition to the Diyarbakır public prosecutor’s office, noting that he did not have jurisdiction to investigate the applicant’s allegations.

On 28 January 2002 the Diyarbakır public prosecutor sent letters to the public prosecutor at the Diyarbakır State Security Court and the anti-terror branch of the Diyarbakır security directorate requesting them to submit to him the medical reports issued in respect of the applicant and his police statements.

On the same day the public prosecutor also requested the Diyarbakır prison authorities to bring the applicant to his office for his statement to be taken.

On 4 February 2002 the Diyarbakır public prosecutor took a statement from the applicant regarding his complaint. The applicant contended that he had been tortured during the first phase of his detention in police custody, that is to say, between 30 September and 9 October 2001. He noted that he had been stripped naked, blindfolded, insulted, subjected to electroshocks and hosed with pressurised cold water on his testicles and his ears, which had resulted in the injury to his ears. He also reiterated his allegation that the officers had put pressure on the injuries that he had sustained to his face at the time of his arrest. He finally complained that between 9 and 18 October 2001 he had been subjected to psychological pressure by the police.

On the same day the applicant was examined at the Diyarbakır branch of the Forensic Medicine Institute upon the request of the Diyarbakır public prosecutor. According to the report issued as a result of this examination, there was no sign of physical violence on the applicant’s body. The medical expert however noted that as regards the applicant’s allegations of ill-treatment, he could draft a further report after obtaining the reports issued during and after the applicant’s detention in police custody.

On 6 February 2002 the applicant was subjected to a medical examination at the Diyarbakır state hospital as a result of which a report was issued. According to that report, the tympanic membrane of the applicant’s left ear was intact.

On 29 May 2002 the Diyarbakır branch of the Forensic Medicine Institute issued a report in respect of the applicant upon the request of the Diyarbakır public prosecutor for an opinion as to whether the applicant could have sustained the injuries noted in the medical reports as a result of ill-treatment. The report noted that there was a contradiction between the report of 6 February 2002, which stated that the tympanic membrane of the applicant’s left ear was intact, and that of 10 October 2001, according to which the applicant suffered from tympanic membrane perforation in his left ear. The medical expert who prepared the report opined that in order to issue a final report, the applicant should be subjected to a medical examination and an enquiry should be conducted.

Between 30 July and 26 November 2002 the Diyarbakır public prosecutor sent letters to the authorities of several prisons asking the latter to send the applicant for a medical examination. On each occasion, the prison directors informed the public prosecutor that the applicant had been transferred to another prison.

On 19 December 2002 the applicant was subjected to a medical examination of his ears at the Van University Research Hospital upon the request of the Diyarbakır public prosecutor. The report issued in respect of the applicant did not make any reference to a perforation in the applicant’s left ear.

On 7 March 2003 the Diyarbakır public prosecutor once again requested the Diyarbakır branch of the Forensic Medicine Institute to prepare a report containing an opinion as to whether the applicant could have sustained his injuries as a result of ill-treatment.

On 7 March 2003 a doctor from the Diyarbakır branch of the Forensic Medicine Institute sent a letter to the Diyarbakır public prosecutor informing him that a final opinion could be provided only following a detailed otolaryngological examination of the applicant.

On 1 July 2003 the applicant was examined by a doctor at the Van state hospital upon the request of the Diyarbakır public prosecutor. The medical expert who examined the applicant noted that the tympanic membrane of the applicant’s left ear was intact.

On 5 February and 22 April 2004 the Diyarbakır public prosecutor requested the Van State Security Court to submit to him a copy of the applicant’s police statements, the arrest and search reports and the medical reports issued in his respect which were in the file of the case brought against him. On 4 May 2004 the president of the Van State Security Court sent a letter to the public prosecutor informing him that the case file was at the Court of Cassation as the appeal proceedings were pending. On 22 August 2005 and 5 January and 20 September 2006 the public prosecutor reiterated his requests as he had not received the documents asked for. On 20 September 2006 the president of the first-instance court, which, in the meantime, had became the Van Assize Court, reiterated his previous reply. On an unspecified date in 2007 the Diyarbakır public prosecutor received a copy of the case file.

In the meantime, on 6 April 2004 the applicant sent a letter to the Diyarbakır public prosecutor and asked for information on the outcome of the investigation into his allegations of ill-treatment. Stating that he had not been informed of the progress of the investigation during the previous two years, he submitted that the investigation and his medical examinations focused only on the injury to his left ear, whereas he suffered from other injuries and illnesses as a result of his illtreatment in police custody. The applicant requested that he undergo a thorough examination at the Forensic Medicine Institute. He received no response to his petition.

22 April 2004 the Diyarbakır public prosecutor requested the antiterror branch of the Diyarbakır security directorate to send him the documents pertaining to the applicant’s police custody and information as to the place of duty of the suspected police officers. On 20 May 2004 the antiterror branch of the Diyarbakır security directorate sent the documents and information requested.

On 19 October 2004 the applicant maintained before the Van Assize Court that he had lodged a petition complaining about ill-treatment that he had endured in police custody and asked to be informed of the outcome of the investigation initiated into his allegations.

On 18 December 2005 the applicant was once again subjected to an auditory examination at the Van University Research Hospital. The doctor who prepared the medical report noted that the applicant suffered from slight hearing loss.

On 11 May 2006 the applicant once again requested to be informed of the outcome of the investigation into his allegations of ill-treatment before the Van Assize Court. He received no response.

On 26 June 2007 the applicant submitted a petition to the prison administration to be sent to the Diyarbakır public prosecutor’s office. He received no reply. On 23 June 2009 the applicant was informed that his petition had been received and no response had been given. It should be noted that the content of the applicant’s petition is not available in the case file.

On 8 August 2007 the Diyarbakır public prosecutor asked the Diyarbakır branch of the Forensic Medicine Institute to provide a report on whether the applicant could have sustained the injuries observed on his body as a result of the use of force by the police.

By letters dated 2 October 2007 and 14 May 2008 the public prosecutor further asked the Diyarbakır branch of the Forensic Medicine Institute to provide a medical opinion as to whether the applicant could have sustained his injuries as a result of proportionate use of force and as to whether there had been a difference between the medical reports issued at the beginning and the end of the applicant’s detention in police custody. On 23 May 2008 an expert from the Diyarbakır branch of the Forensic Medicine Institute informed the public prosecutor that the documents in the case file should be sent to the 2nd Section of Expertise of the Forensic Medicine Institute in Istanbul.

Meanwhile, on 13 March 2008 the Diyarbakır public prosecutor requested the Dicle University Research Hospital to assign a medical expert to prepare a report containing an opinion on the veracity of the applicant’s allegations on the basis of the medical reports issued in respect of the applicant.

On 12 May 2008 a medical expert from the Dicle University Research Hospital sent a report to the public prosecutor’s office. According to the doctor, it was possible that the tympanic membrane perforation in the applicant’s left ear had recovered over time. He also considered that the perforation could have occurred as a result of trauma during the applicant’s arrest or when he had been in police custody.

On 26 May 2008 the applicant submitted a petition to the Diyarbakır public prosecutor’s office and requested to be informed of the outcome of the investigation. By a letter dated 3 June 2008 the Diyarbakır public prosecutor informed the applicant that the investigation file had been sent to the 2nd Section of Expertise of the Forensic Medicine Institute and the investigation was pending.

On 27 May 2008 the Diyarbakır public prosecutor requested that the applicant be examined by the 2nd Section of Expertise of the Forensic Medicine Institute. Between 15 July and 28 October 2008 the public prosecutor sent letters to the Diyarbakır prison, where the applicant had been transferred, and asked the prison authorities to send the applicant to Istanbul for a medical examination at the Forensic Medicine Institute.

On 12 November 2008 the applicant was examined at the Forensic Medicine Institute. During his examination, the applicant stated that he had been beaten at the time of his arrest. He also maintained that he had been illtreated while in police custody.

On 31 December 2008 the 2nd Section of Expertise of the Forensic Medicine Institute issued a report. In this report, reference was made to the arrest protocol, dated 30 September 2001, which stated that the police officers had had to use force to apprehend the applicant, since he had resisted arrest. The Forensic Medicine Institute also took into consideration the aforementioned medical reports dated 30 September 2001, 9, 10 and 18 October 2001, 4 and 6 February 2002, 7 March and 1 July 2003 and 12 May 2008. On the basis of these reports and the medical examination of the applicant carried out on 12 November 2008, the 2nd Section of Expertise of the Forensic Medicine Institute established that the injuries observed on the applicant’s body had not been life-threatening, but would have prevented him from continuing his daily activities for fifteen days. It was further indicated that the injuries on the applicant’s face and ear could have been caused by a blow with a blunt object during the applicant’s arrest. The report further stated the applicant had not been subjected to an examination of his ear between 30 September and 10 October 2001 and that the red patches behind the applicant’s left ear noted in the report of 30 September 2001 could have been caused by physical trauma which could have also led to the tympanic membrane perforation in his left ear. The 2nd Section of Expertise finally noted that there was no medical evidence demonstrating that the applicant had been subjected to physical trauma during his detention in police custody.

On 15 October 2009 the Diyarbakır public prosecutor decided to close the investigation into the applicant’s allegations of ill-treatment. In his decision, he relied on the report of the 2nd Section of Expertise of the Forensic Medicine Institute and held that the injuries observed on the applicant’s body had been sustained during the scuffle at the time of his arrest. The public prosecutor noted that the injuries observed on the applicant’s person had been caused by the force used to arrest the applicant, which had been in compliance with the Law on the Duties and Powers of the Police (Law no. 2559) and that there was no report or other evidence showing that the police officers had exceeded the limits of their powers on the use of force. The public prosecutor further considered that there was no evidence, such as medical reports or witness statements, demonstrating that the applicant had been ill-treated while detained in police custody. He also stated that the length of the applicant’s detention in police custody had been in accordance with the legislation at the material time. The public prosecutor thus concluded that there was no evidence to support the applicant’s allegation that he had been subjected to ill-treatment while in police custody.

On 4 November 2009 the applicant lodged an objection with the Siverek Assize Court against the decision of 15 October 2009. In his petition, the applicant submitted that his medical examination by the 2nd Section of Expertise of the Forensic Medicine Institute had been conducted too late. He also contended that his medical examinations had been superficial. For instance, no examination had been carried out in relation to his allegation of being subjected to electroshocks. The applicant finally submitted that he had had to be taken to the emergency service while in police custody due to his problems with his ear.

On 29 March 2010 the Siverek Assize Court rejected the applicant’s objection, holding that there was no evidence showing that the applicant had been subjected to ill-treatment.

On 22 May 2002 the applicant lodged an application with the Court alleging a violation of, inter alia, Article 3 of the Convention. The applicant alleged that he had been subjected to ill-treatment during his arrest and while in detention in police custody.

On 13 December 2005 the Court, sitting as a Committee of three judges, declared the applicant’s complaint under Article 3 inadmissible for non-exhaustion of domestic remedies.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


CASE OF RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA (No. 3)

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra

The applicant company is a multimedia publishing house which was established under the laws of Slovakia in 1999. It is constituted as a jointstock company and its head office is in Bratislava.

The applicant company’s legal predecessor in respect of the events giving rise to the present application was a limited-liability company established under the laws of Slovakia in 1994 and registered in Bratislava. The latter company was the publisher of a popular daily newspaper, Nový Čas, which has national coverage and was later acknowledged by the courts to be one of the most widely read newspapers in Slovakia.

Prior to the proceedings described below, in 2004, the applicant company’s legal predecessor was merged with the applicant company. For ease of reference, henceforth in this judgment “the applicant company” includes the applicant company’s legal predecessor.

The present case revolves around the participation by an individual, A., in a “Who Wants To Be A Millionaire?” type of knowledge quiz in March and April 2004.

The quiz was broadcast by a popular national TV channel.

For the assessment of certain aspects of this case, it may be of relevance that A. was a student of information technology and was also a co-owner and the statutory representative of a limited liability company specialising in, inter alia, the purchase, sale and repair of mobile phones.

A. was doing remarkably well in the quiz and had answered thirteen questions correctly, until he failed to answer the fourteenth question right, which was worth the equivalent of some 50,000 euros (EUR). A. was thereby excluded from the quiz with the equivalent of some EUR 2,500 worth of winnings.

A. subsequently complained to the organisers of the quiz, arguing that the fourteenth question had been formulated in an ambiguous way and that, in the circumstances, his answer had been correct. The complaint was however dismissed.

On 19 May 2004 the organiser of the quiz lodged a criminal complaint on the basis of a suspicion that, in connection with the quiz, A. or other persons unknown had committed the offence of fraud.

On 15 May 2006 the investigation of the criminal complaint was stayed, on the ground that it had not been possible to establish any matters of fact justifying the bringing of charges against any specific person.

The controversy over the fourteenth question as well as the suspicion against A. received wide media coverage in Nový Čas and other press in Slovakia and abroad, inter alia presenting amply A.’s position.

Both topics were also the subject of lively debate on various Internet fora.

Meanwhile, in addition to the coverage mentioned above, on 11, 18 and 22 May 2004 the applicant company had published three feature articles in Nový Čas about the incident. The titles and the introductory paragraphs of these articles appeared on the front pages of the issues published on those days. They were accompanied by photographs and followed by further text and photographs under separate titles further in the paper.

On the front page of the paper, the article had the title:

‘Was he cheating? An investigation has already begun!’

Further headings on the front page read as follows:

‘Discharged contender’

and

‘Scandal in [the name of the quiz]’

The introductory paragraph on the front page read as follows:

“The tables have turned! A contender who it was thought had been unlawfully divested of [the equivalent of some EUR 50,000] in a TV quiz is now suspected of fraud! Moreover, the disappointed [A.] has not been allowed by [the TV station] to return to the game!”

The article continued on page 20 under the title:

‘Suspicion of [the TV station]: A fraud in [the name of the quiz]?’

Further bullet-point headings on page 20 read as follows:

“[He] will not return to the quiz”

and

“He’ll sue”

The introductory paragraph on that page read as follows:

“The scandal in the TV quiz [name of the quiz], in which a contender was apparently unlawfully divested of [the equivalent of some EUR 50,000] worth of winnings, is revving up. [Full name of A.], [age of A.] is in vain claiming his right to sit in the millionaire’s armchair. [The TV station] has on this said an unequivocal ‘NO’ to his attempts to compete again in the popular programme. [The TV station] moreover raised the suspicion that the contender may have cheated!”

The text of the article starts as follows:

“The suspicion arose after several lawyers had carefully viewed the footage of the disputed sequence of the TV quiz. The initial intention – to find out whether an error has indeed been committed – has resulted in unexpected finals! Watching the video recording closely, the lawyers were petrified with horror: There has not been fair play! [A.] has seemingly been cheating!

Their suspicion stemmed from the unusual behaviour of the player. ‘When given a question, he did not appear to consider the options offered, and responded as if he was intentionally diverting attention by making various remarks which had nothing to do with the question. And then, all of a sudden, he came up with the correct answer’, asserts one of the lawyers who has already conveyed his doubts to the management of the TV station.

‘A lively discussion has been stirred up on the Internet, and viewers have come forward who also noticed the unusual behaviour of the player’, added as ‘damning evidence’ the spokesperson [name] of [the TV station]. ‘Our lawyers are examining further evidence and upon its assessment we will consider lodging a criminal complaint against the contender’ she observed.

The surprising suspicion has however not swept [A.] away. ‘I was expecting them to pull something on me. But they are absolutely not right’, emphasised [A.].

The article continues with a neutral description of the incident with the ambiguous question, followed by references to the reactions of A. and the TV station, in the following terms:

“The disappointed contender has not hesitated for a minute and has made a written complaint, to which he is entitled under the appeal rules of the quiz. ‘I pointed out the ambiguity of the answer to the [fourteenth] question’, submitted [A.]. According to the regulations, [the TV station] had two weeks to reply to this objection, but as early as yesterday they rendered a final judgment: [A.] was not to be readmitted to [the name of the quiz]! ‘So far the contender has not submitted any relevant expert evidence supporting his assertions. All our sources, renowned professional publications, support our position’, added [the TV station’s spokesperson]. The unsuccessful candidate for millionaire still wants to negotiate with [the TV station]. ‘If that does not work, I will litigate’, declared A.”

On the front page of the paper, the article had the title:

“[The TV station] Strikes Back: Instead of winning millions, you will be jailed!”

A further heading on the front page read as follows:

“Scandalous [the name of the quiz]”

The introductory paragraph on the front page read as follows:

“[The TV station] is preparing an unpleasant surprise for [A.], [the age of A.], who feels cheated because he has been thrown out of the TV quiz [the name of the quiz]. Not only is he not going to be allowed to get back into the game, but there will even be a criminal complaint against him! What does the commercial TV station suspect the unsuccessful ‘millionaire’ of?”

The article continued on page 20 under the title:

“[The TV station] to [A.]: You will be jailed for fraud!”

There is a photograph of A. taking part in the quiz with the controversial question in the foreground, with the following explanatory text below it:

“An enormous response from viewers and heated Internet discussion about a possible fraud has forced the management of [the TV station] to transmit the footage of the programme to experts for analysis.”

The introductory paragraph on that page reads as follows:

“There shall be no negotiation! So the management of the TV station [the name of the TV station] has decided, and they have dismissed the request of [A.] [age of A.]. This man from [a town] feels cheated because has been excluded from a general knowledge quiz allegedly wrongfully, and that is why he wants to get back into the game. The commercial television station will however not allow him to do so. And it will not be deterred from its decision even by the threats of [A.] to bring the whole matter to court. [The TV station] responds even more vigorously: ‘We will lodge a criminal complaint against him’, submits the spokesperson for the TV station [name of the spokesperson].”

The text of the article starts by referring to the TV station’s suspicion and by quoting the statement and its source as indicated in paragraph 23 above, followed by a quotation from the TV station’s own written statement along the following lines:

“On the basis of an analysis of the video footage by an expert in psychology and on the basis of numerous pieces of indirect evidence, we have a suspicion of fraud in the programme [name of the quiz], and that is why [the TV station] will lodge a criminal complaint against the contender.”

The article continues by referring to the complaint lodged by A. and by citing his and the TV station’s statements:

“I have raised an objection within the fourteen days required. According to the [applicable rules] I have the right to do that.”

and

“The protest has not been supported by sufficient expert evidence to give the management of [the TV station] a valid reason for readmitting the contender into the game.”

The article continues by a neutral reference to the TV station’s decision, which was conveyed to the applicant by way of a letter from the TV station’s lawyers, and by quoting the reaction of A. as follows:

“From the letter it is unclear whom they represent. I therefore consider this document worthless and I assert that I still do not have the official position of [the TV station]”

The closing part of the article reads as follows:

“[A.] fights hard for his right to sit in the millionaire’s armchair. Moreover, he has decided ‘to pay them out’ and he is suing [the TV station]. ‘This time for insult, defamation and injury to his good name be it as an individual or a legal entity’ adds the co-owner of a company based in [a town] trading in mobile phones.

The dispute over [the fourteenth] question has thus taken a completely different turn. Will the public ever learn the truth?”

The title of the article on the front page was:

‘An eyewitness to the scandal in [the name of the quiz]

I know how he cheated!’

The introductory paragraph on the front page read as follows:

“Nový Čas has obtained a statement from a woman who resolved to speak on the strange practices going on behind the scenes of the shooting of the programme [name of the quiz]! ‘The TV crew suspected [A.] even then of having a concealed device on him’, says the witness.”

The article continued on page 20 under the title and subtitle:

‘The contestant [A.] allegedly had on him a device such as are carried by government officials

An eyewitness has spoken out’

The introductory paragraph on that page read as follows:

“Nový Čas has obtained a statement from a woman who has taken several weeks to summon up the courage to reveal a big secret from behind the scenes of the shooting of [the name of the quiz]. This woman claims: ‘I was there when the TV crew of [the TV station] uncovered that the contestant [A.] had been cheating! During the shooting they discovered that he had a device on him such as are carried by government officials’.”

The text of the article itself reads as follows:

“The viewer gradually also recollects other suspicious elements. The shooting allegedly had to be interrupted several times, and the microphone attached to [A.]’s suit had to be shifted from one side to the other. ‘Seemingly they already suspected something. I also overheard a conversation between the director and a technician, which took place backstage. They were saying that their equipment was showing suspicious frequencies and that they had no explanation why’, recounts the details the viewer from [a town]. According to her both nervous men were clearly relieved when [A.] left the studio with ‘only’ [the equivalent of some EUR 2,500] in his pocket. Their last sentence allegedly was: ‘Thank God it ended up this way. Imagine if he had won [the equivalent of some EUR 50,000!]’.

Despite it being several weeks later, she remembers the entire conversation very well, even being able to describe the director and the technician in quite some detail.

The programme coordinator for [the name of the quiz], [the name], says: ‘We had suspicions, but they were not strong enough to warrant taking any action. We did not want to make an unjustified accusation. I believe that we acted correctly.’

The eyewitness to these events does not wish to have her identity disclosed, because she is apprehensive about the consequences of an open confession. (Her name is however at the disposal of Nový Čas).

How could the contestant have cheated? [A.] has a business in the area of mobile phones, so he is very familiar with that technology. And that is the whole thing. It sufficed to have it well organised and acted out. The contestant could have had an accomplice in the audience who had his mobile phone on during the entire shooting, so that a third person at the other end of the line could easily learn the questions. The latter person, together with a group of friends, could then have immediately looked the right answer up on the Internet or in encyclopaedias. They could then have announced it to [A.] by a micro device, which he could have had attached to his body.

The fact that members of the TV crew discovered incongruities during the shooting but took no action is, according to the eyewitness, striking. ‘Perhaps they wanted to cover it up. They did not expect [A.] to sue them over unclear wording of the question’ she speculates.”

The article concluded by with a neutral summary of the key elements of the story.

On 16 July 2004, with reference to the articles cited above, A. contacted the applicant company with a proposal for an out-of-court settlement consisting of the publication of an apology free of charge and the payment of compensation in an amount equivalent to some EUR 26,300. His proposal failed.

On 22 February 2005 A. sued the applicant company for libel, relying on the rules on the protection of personal integrity under Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended), and seeking the same redress as in its proposal of 16 July 2004 (see the preceding paragraph).

As regards the article of 11 May 2004, A. claimed that it gave the false impression that he had been charged with a criminal offence and that he was a cheat. Moreover, his photograph, full name and age were disclosed without his consent.

As regards the article of 18 May 2004, he contended that it had contained statements that were taken out of context and that this article had had negative repercussions on his relations with his family, at work and with his clients.

Finally, as regards the article of 22 May 2004, A. argued that it contained untrue, made-up and misleading conclusions.

The applicant company defended the action through the intermediary of a lawyer, who is the same lawyer as the one representing it before the Court (see paragraph 2 above), and who represented it throughout the domestic proceedings.

In its defence, the applicant company argued that its reporting in the articles concerned a matter of legitimate public interest. In that respect, it pointed out that the quiz had an extremely large audience and that, by having voluntarily taken part in it, A. had become a “public figure” who had to tolerate a higher degree of interference with their personal integrity. The choice of the reporting technique was the applicant company’s prerogative. As regards the impugned articles in particular, it was clear that they concerned suspicions and not proven facts. Although some turns of phrase indicated a degree of journalistic exaggeration and provocation, the context and the content of the articles in its entirety left no one in doubt as to the real facts. Moreover, A. had been given the opportunity to comment.

In a further submission the applicant company produced a detailed analysis of the behaviour of A. which, according to the applicant company, had given rise to a suspicion that he had been cheating. The submission is based on detailed references to Convention case-law and also includes arguments contesting the claim for damages.

The case was examined at first instance by the Bratislava II District Court (Okresný súd), which held six hearings, took oral evidence from the parties and five witnesses, and assessed documentary evidence.

The person identified in the article of 22 May 2006 as the eyewitness was questioned at a hearing on 10 May 2006. She denied making a statement with the specific wording suggested by the citation in the introductory paragraph on page 20 of that day’s issue (see paragraph 38 above), but confirmed everything else attributed to her in the article of that day.

On 18 December 2006 the District Court allowed the action by ordering the applicant company to publish an apology and to pay A. the equivalent of some EUR 1,450 in damages.

The District Court held that the applicant company had interfered with the claimant’s personal integrity without an acceptable justification. It noted the categorical language of some of the statements, such as “There has not been fair play!”, “Instead of winning millions, you will be jailed!” and “You will be jailed for fraud!” and considered that they implied no polemic.

In the view of the District Court, the use of expressions such as “seemingly”, “perhaps”, and “suspicion” did not free the publisher from “accountability for the truthfulness of the published material” and it made no difference whether the applicant company was quoting statements made by others or expressing its own opinions, just as it did not matter whether it intentionally published untruths or negligently relayed the findings of someone else. And neither was it of any consequence for the accountability of the publisher whether the published allegations and information had already been or would later be published elsewhere.

The applicant company had failed to discharge its burden of proof with regard to the truthfulness of the suggestion that A. had been cheating in the quiz, since none of the witnesses had been able to confirm that he had, and they had all referred only to suspicious behaviour by A. Moreover, the suspicion had not even been confirmed by the police (see paragraph 14 above).

In addition, the District Court found that the criminal complaint by the TV station could have been a certain form of retaliation for the attempts by A. to get back into the game. In the court’s view, in the given circumstances, the standing of A. as a public figure was of no consequence.

The District Court held specifically that

“it [was] irrelevant whether [A.] was a public figure or not, since ...even if the articles could be considered as polemic and containing value judgments, as long as they were based on matters about which untruths were being published, they constituted a palpable unjustified interference with the claimant’s right to protection of his personal integrity”.

As to the amount of the damages, the District Court noted that the libellous articles had been published in a daily with a large readership and that some of them had been printed on the front page. Although the claimant had failed to show that he had suffered any loss of esteem among his family and friends, or that he had suffered any loss of business customers, it was accepted that his dignity had suffered in general terms.

The applicant company appealed, repeating its previous arguments and adding, inter alia, that the impugned articles implied nothing but suspicions, for which in any case there was a solid factual basis.

On 5 June 2008 the Bratislava Regional Court (Krajský súd) upheld the contested judgment. It concurred with the applicant company that through his participation in the TV quiz A. had become a public figure and that the level of protection of personal integrity he merited was thereby reduced. However, this reduced standard of protection only applied as long as the published material was truthful and any value judgments had a basis in reality.

The Regional Court also concurred with the applicant company that the articles were polemical in nature and related to suspicions. Nevertheless, in terms of the Regional Court’s judgment, the impugned articles were

“objectively capable of interfering with the plaintiff’s rights, because they did not have a truthful basis, and that is why they did not enjoy protection. The firstinstance court rightly concluded that the evidence taken did not show that the claimant had cheated at the game ...”

As regards the statement of the eyewitness cited in the article of 22 May 2006, the Regional Court held that it was presented as a statement of fact, which left the reader with no option of reaching another conclusion than that A. had been cheating. It was irrelevant that that article followed and was based on the previous articles because merely by citing a source the applicant company could not rid itself of its liability for the unjustified interference.

On 17 September 2008 the applicant company challenged the Regional Court’s judgment by way of a complaint under Article 127 of the Constitution, alleging a violation of Article 10 of the Convention, recapitulating all its previous arguments with detailed references to Convention case-law, and claiming that the ordinary courts had failed to give any answer to a significant number of its substantive arguments..

On 26 February 2009 the Constitutional Court (Ústavný súd) declared the complaint inadmissible as manifestly-ill founded. It found no constitutionally relevant arbitrariness, unlawfulness, deficiency or irregularity in the courts’ reasoning. Moreover, it reiterated that, pursuant to its established case-law, a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been established, there could not have been any violation of any substantive right either.


CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 3)

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

André Potocki;Angelika Nußberger;Erik Møse;Rousseva;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The background to the refusal to register Ilinden at issue in this case has been set out in detail in the judgments in the following cases: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, 20 October 2005; United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005; Ivanov and Others v. Bulgaria, no. 46336/99, 24 November 2005; United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, 19 January 2006; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2), no. 37586/04, 18 October 2011; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, 18 October 2011; Singartiyski and Others v. Bulgaria, no. 48284/07, 18 October 2011; and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011.

On 27 September 2010 Ilinden’s board of management applied to the Blagoevgrad Regional Court for it to be registered as an association. On 3 February 2012 the Blagoevgrad Regional Court refused the application, and on 23 April 2012 its decision was upheld by the Sofia Court of Appeal. A detailed account of those proceedings may be found in Yordan Ivanov and Others v. Bulgaria (no. 70502/13, §§ 8-18, 11 January 2018).

On 23 March 2014 the second and third applicants and seven other people held a meeting at which they resolved to set up Ilinden as an association. They defined Ilinden’s aims and the means that it would use to attain them, adopted its articles of association, and elected its board of management, which consisted of all nine of them.

Shortly after that, Ilinden’s board of management applied to the Blagoevgrad Regional Court for it to be registered as an association.

In a decision of 30 June 2014 (реш. № 2768 от 30.06.2014 г. по ф. д. № 36/2014 г., БОС) the Blagoevgrad Regional Court refused the application. It first observed that even though Ilinden had declared that it intended to be an association which only served the interests of its members, its aims, as set out in its articles of association, showed that in reality it meant to serve broader public interests (see paragraph 23 below). The court went on to note that Ilinden’s articles of association stated that it would strive for, inter alia, the introduction of the Macedonian language in schools, the protection of the right of Macedonians to refute propaganda about their history and culture, and the protection of Macedonian cultural heritage, which was being “subjected to ethnocide by Bulgarian cultural institutions”. The articles of association also stated that Ilinden would organise seminars and press conferences to expose the reasons which underlay the “policy of forced assimilation and discrimination of, and xenophobia towards, Macedonians in Bulgaria”. According to the articles of association, Ilinden was a “Macedonian organisation based on a Macedonian ethnic foundation and origin within the boundaries of Bulgaria”, and it “would remind [people] of the terror perpetrated by Bulgaria, of the thousands of Macedonians killed, of the violence, the prisons and the deprivation of basic human rights and freedoms of Macedonians after 1913, which amounted to crimes under international law”. For the court, all those statements gave the impression that Ilinden intended to stir up national and ethnic hatred, contrary to Article 44 § 2 of the Constitution (see paragraph 21 below). Moreover, the statements, combined with the existence, albeit brief, of a political party called the United Macedonian Organisation Ilinden-PIRIN, whose re-registration had recently been refused, and with the existence of organisations bearing the same or similar names, led to the conclusion that the intention was to mislead society and to obtain the registration of an organisation pursuing political aims (see paragraphs 18-20 below), or an organisation directed against the unity of the nation. This was also contrary to section 7(2) of the Non-Profit Legal Persons Act 2000 (see paragraph 24 below), which barred associations from having misleading names. Lastly, the association’s intended name was not unique, as required by law.

Ilinden’s founders appealed. They submitted that the court had misconstrued Ilinden’s articles of association and had erred in finding that its activities would be political or directed against the unity of the nation. The real reason for the refusal to register Ilinden had been that it advocated views which were at odds with the official ones.

In a decision of 18 November 2015 (реш. № 2272 от 18.11.2015 г. по ф. д. № 2968/2014 г., САС, ТО) a three-member panel of the Sofia Court of Appeal upheld the refusal to register Ilinden by two votes to one.

The court began by saying that when assessing the aims of an association seeking registration, it had to base itself chiefly on the articles of association. But since by law in registration proceedings the court had to examine the reality of the matter rather than carry out a mere formal check, it had to have regard not just to the aims set out in the articles of association, but to the entirety of the articles, and on that basis ascertain the founders’ real aims and intentions. The court also had to bear in mind the traditions which the association purported to represent and the historical figures with which it identified, the past activities, if known, of its founders, leaders and supporters, as well as the positions they had advocated. All those elements had to be juxtaposed with the aims set out in the articles of association, with a view to verifying whether those aims were not in effect a cover for other aims. In doing so, and thus balancing the rights of the founders of the association against the rights of others and the public interest, the court could rely not only on the material in the case file but also on facts which were publicly known and of which it could therefore take judicial notice.

In Ilinden’s case, it had been common knowledge, sufficiently publicised in both Bulgarian and foreign media, that since 1990 some of its founders, leaders and supporters had in a persistent manner openly challenged both those who had opposed their views and the State authorities, which had led to a string of breaches of public order – clashes between Ilinden’s supporters and their opponents on account of the views expressed by the former about Macedonian history – reported in the media. Seen against that background, the declaration in Ilinden’s articles of association that people of any ethnicity could become members did not reflect the reality of the situation, which was that the organisation had been conceived as one based purely on Macedonian ethnicity. The same went for the declaration in the articles of association that Ilinden would only resort to peaceful means to achieve its aims. This had been belied by the organisation’s record of provoking its opponents and the State authorities by making strongly worded statements about violence against Macedonians such statements had featured in its articles of association as well which had led to real public clashes. The court had to also take into account the complex ethnic and religious situation in some neighbouring countries, as well as the severe migrant crisis affecting all of Europe and Bulgaria in particular, as a front-line State of the European Union. That crisis, coupled with the “recent, likewise commonly known, tragic events in Central European countries”, showed a categorical need to mobilise all available State and social resources.

In those circumstances, the application to register Ilinden had to be turned down for two reasons. Firstly, the pursuit of its real aims, seen against the backdrop of the heightened sensitivities of the population in Pirin Macedonia, where it was based, could have led to serious tensions and breaches of public order caused by, or involving, supporters of the organisation, as had happened in the past. In the tense situation facing Bulgaria and its neighbouring States, that had to be seen as a genuine possibility. Secondly, the realisation of Ilinden’s right to freedom of association would infringe the rights of all Bulgarians who did not support its aims or the means which it intended to use to attain those aims. All were entitled to believe that they were not citizens of a State which had committed international crimes, that they did not engage, in their capacity as Bulgarian citizens, in propaganda and manipulation of the history and culture of a neighbouring country and that they were not citizens of a State whose institutions had subjected the cultural heritage of part of its population to ethnocide. The Sofia Court of Appeal concluded that it was necessary to refuse the registration application, even though it recognised that it was also possible to dissolve an already registered association if it engaged in anti-constitutional or unlawful conduct. The refusal was a justified preventive measure.

The dissenting judge noted that Ilinden’s founders had complied with all formal requirements of the law. She went on to say that the registration regime was not to be used to hinder the exercise of the fundamental right to associate with others, and that the case called for the direct application of Article 11 of the Convention, which was part of Bulgarian law. She then noted how that Article had been construed by the European Court of Human Rights in several cases, including United Macedonian Organisation Ilinden-PIRIN and Others and United Macedonian Organisation Ilinden and Others (both cited above), and stated that, in her view, the fact that an association advocated a form of minority consciousness could not justify a restriction of its rights under that Article. The Court’s ruling on that point in Stankov and the United Macedonian Organisation Ilinden (cited above) had to be taken into account when examining the registration request at issue. There was, moreover, no evidence of actions by Ilinden’s founders which ran counter to the prohibition in Article 44 § 2 of the Constitution (see paragraph 21 below). The refusal to register it was thus disproportionate and unjustified.

Ilinden’s founders sought to appeal on points of law. On 22 February 2016 the judge-rapporteur of the Sofia Court of Appeal, who under the relevant rules of procedure had to check the appeal’s admissibility before forwarding it to the Supreme Court of Cassation, sent it back to the appellants. He noted that under the applicable rules of procedure, as consistently construed by the Supreme Court of Cassation, no appeal lay against appellate decisions confirming refusals to register an association. In a final decision of 15 July 2016 (опр. № 317 от 15.07.2016 г. по ч. т. д. № 1062/2016 г., ВКС, I т. о.) the Supreme Court of Cassation dismissed the founders’ appeal against the judge-rapporteur’s order. It likewise found that under the applicable rules of procedure, which it had already construed in several cases, the Sofia Court of Appeal’s decision was not amenable to appeal.


CASE OF SALIHIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law)

The applicant was born in 1951 and lived in Sarajevo.

By its decision of 3 August 2004, and at the recommendation of the Sarajevo Psychiatric Clinic (the “Psychiatric Clinic”), the Sarajevo Municipal Court instituted proceedings for the applicant’s placement in a psychiatric facility.

On 18 August 2004, the Sarajevo Municipal Court decided to keep the applicant in the Psychiatric Clinic for a maximum of 45 days (counting from the date of his placement, that is 1 August 2004).

On 22 September 2004 the Sarajevo Canton Social Care Centre (the “Social Care Centre”) placed the applicant in the Drin Social Care Home (the “Drin Home”).

On 7 January 2005, the Sarajevo Municipal Court deprived the applicant of his legal capacity.

On 10 March 2005 the Social Care Centre placed the applicant under the guardianship of D.M., one of its employees. Several other employees were subsequently appointed as the applicant’s successive guardians.

By its decisions of 25 February 2010 and 25 December 2014, the Social Care Centre decided that the applicant should remain in the Drin Home.

On 16 September 2015 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of a competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of the lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Social Care Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention.

On 7 December 2015, the Sarajevo Municipal Court restored the applicant’s legal capacity.

The applicant was released from the Drin Home on 14 December 2015.

At the applicant’s request, the Social Care Centre again admitted him to the Drin Home, between 1 January 2016 and 31 March 2016.

The applicant requested an extension of his stay in social care, which request was granted on 1 April 2016. The applicant was thus placed in the Social and Health Care Home for Persons with Disabilities and Other Persons (the “Social and Health Care Home”).

The applicant died on 26 September 2016, while in the Social and Health Care Home.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1960 and lives in Miami.

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

In 2008 the US tax authorities (the Internal Revenue Service [IRS] in Washington) discovered – primarily from a complaint lodged by a former employee of the UBS SA bank in Geneva responsible for asset management for the bank’s private North American customers – that thousands of US taxpayers held UBS bank accounts which had not been declared to their national authorities or else held economic rights in respect of such accounts.

Owing to the role which it had apparently played in that connection, the bank faced a risk of criminal prosecution.

On 18 February 2009 a deferred prosecution agreement (DPA) was concluded between UBS SA and the US Department of Justice (DOJ). In this document the bank acknowledged that it had, in particular, allowed US taxpayers to use off-shore accounts to conceal their assets and income from the US tax authorities and had met with and provided on-the-spot advice, in the United States, to customers who had not declared their accounts to the IRS. It was agreed that proceedings could be dropped in return for a settlement amount of 780 million US dollars (USD).

On 19 February 2009 the IRS brought a civil action (a so-called “John Doe summons” [JDS]) requesting a formal order to UBS SA to reveal the identities of its 52,000 American customers and to communicate data on their bank accounts.

Switzerland was concerned that the dispute between the US authorities and UBS SA might give rise to a conflict between Swiss and US law should the IRS obtain that information, and the civil proceedings were therefore suspended pending extra-judicial reconciliation.

On 19 August 2009, with a view to identifying the taxpayers in question, the Federal Council (Government) of the Swiss Confederation and the United States of America (“the United States”) concluded an “Agreement concerning the request by the Internal Revenue Service of the United States relating to the Swiss company UBS SA” (“Agreement 09”) ...

Under the first Article of Agreement 09 Switzerland undertook to deal with the US request for mutual assistance concerning UBS SA’s American customers in accordance with the criteria laid down in the Appendix to that Agreement and, moreover, in conformity with the Convention of 2 October 1996 between Switzerland and the United States on double taxation (CDI-US 96) ...

Drawing on those criteria, the parties to Agreement 09 considered that the request for mutual assistance concerned “some 4,450 open or closed accounts”.

Switzerland further undertook to set up a “special task force” enabling the Swiss Federal Tax Authority (AFC) to reach its final decisions in the framework of the mutual assistance request within a specific timescale.

In return, the Agreement provided that the United States and UBS SA would submit to the US District Court for the Southern District of Florida a joint request for the discontinuance of the request for enforcement of the “John Doe Summons” (see Article 3 of Agreement 09) ...

On 31 August 2009 the IRS submitted a mutual assistance request to the AFC with a view to obtaining information on US taxpayers who, between 1 January 2001 and 31 December 2008, had had “authority to sign or other access rights to” bank accounts “held, supervised or maintained by a section of UBS SA or by one of its branches or subsidiaries in Switzerland”.

On 1 September 2009 the AFC ordered UBS SA to provide information for the purposes of the 15 June 1998 Order concerning the US-Swiss Convention of 2 October 1996 on double taxation (CDI-US 96) ... The AFC decided to instigate a mutual assistance procedure and requested that UBS SA provide, in particular, complete files on the customers mentioned in the Appendix to Agreement 09.

By judgment of 21 January 2010 (A-7789/2009) the Federal Administrative Court (TAF) accepted an appeal against a decision taken by the AFC which concerned, in the framework of the Appendix to Agreement 09, a challenge falling within the category defined in paragraph 2/A/b. In its reasoning, the TAF held that:

– Agreement 09 was a mutual agreement which should remain within the framework set out by the convention on which it depended, CDI-US 96;

– under the terms of the aforementioned convention, mutual assistance was granted in cases of tax fraud, but not in cases of tax evasion (that is to say the mere failure to declare a bank account to the tax authorities; regarding this distinction under Swiss tax law ...;

– accordingly CDI-US 96 only facilitated exchange of information in cases of “fraud or a similar offence” for the purposes of Swiss law, that is to say tax swindle (tax evasion by dint of “creative accountancy”) or document forgery;

– having regard to the obligations which it imposed on Switzerland, that agreement should have taken the form of an international treaty ratified by the Swiss Federal Parliament and been put to an “optional referendum”;

– accordingly, the form of a mere friendly agreement concluded by the Federal Council on its own had been insufficient.

Consequently, the Federal Administrative Court voided the decisions given by the AFC on the basis of Agreement 09.

The entry into force of that TAF judgment of 21 January 2010 called into question the application of Agreement 09.

Indeed, out of the approximately 4,450 individual cases covered by that agreement some 4,200 concerned situations of long-term tax evasion of enormous proportions. The Swiss Government considered that an inability to provide mutual aid in such cases could create major difficulties for Switzerland in its bilateral relations with the United States. The Federal Council deemed likely that the United States would impose compensatory measures, and that the minimum they could expect was that the US would reactivate the enforcement procedure in respect of the UBS customers through mutual assistance channels. The Federal Council were concerned that an American court might then order UBS SA to provide the IRS with the data in question and force the judgment through by dint of extremely high coercive fines.

On 31 March 2010, in order to prevent such a development, after fresh negotiations with the United States, the Federal Council concluded a “Protocol amending the Agreement between Switzerland and the United States concerning the IRS’s request for information on the Swiss company UBS SA, signed in Washington on 19 August 2009”, referred to as “Protocol 10”.

The provisions of that protocol were incorporated into Agreement 09. They became provisionally applicable on the date of its signature by the parties.

By Federal Decree of 17 June 2010 “approving the Agreement between Switzerland and the United States concerning the request for information regarding UBS SA, as well as the Protocol amending that Agreement”, the Federal Assembly (the Swiss Parliament) approved Agreement 09 and Protocol 10, and gave the Federal Council leave to ratify them.

The consolidated version of Agreement 09 as amended under Protocol 10 is sometimes referred to as “Convention 10” ...

The aforementioned Federal Decree stated that the optional referendum mentioned in Article 141 of the Federal Constitution in respect of certain international treaties concluded by Switzerland ... was not available in the present case.

On 15 July 2010 the Federal Administrative Court delivered judgment in a pilot case (A-4013/2010) concerning the validity of Convention 10. In that judgment the TAF ruled that:

– Convention 10 was fully binding on it within the meaning of Article 190 of the Constitution ...;

– there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens); accordingly, Convention 10 held the same status as CDI-US 96;

– as CDI-US 96, like the Convention (for the Protection of Human Rights and Fundamental Freedoms) and the International Covenant on Civils and Political Rights (“UN Covenant II”), had been adopted prior to Convention 10, its provisions were only applicable insofar as they were compatible with the rules of the latter 96, because Convention 10 took precedence by virtue of its posteriority.

UBS SA transmitted the applicant’s file to the AFC on 19 January 2010.

In its final decision of 7 June 2010, the AFC ruled that all the conditions had been met for granting mutual assistance to the IRS and ordering the communication to it of the documents published by UBS SA.

On 7 July 2010 the applicant appealed to the Federal Administrative Court against that decision.

By judgment of 21 September 2010, without assessing the actual lawfulness of the decision of 7 June 2010, the court set it aside, noting that the applicant’s right to a hearing had been flouted. Consequently, it referred the case back to the AFC, inviting it to allow the applicant to submit his observations and to give a fresh decision on affording the US authorities mutual assistance in his case.

By letter of 28 September 2010 the AFC notified a deadline of 29 October 2010 for the applicant to forward any observations before the issuing of a fresh decision.

On 13 October 2010 the applicant submitted a statement of his position on the matter.

In its final decision of 4 November 2010 the AFC once again held that all the requisite conditions were fulfilled for granting the IRS mutual assistance and ordering UBS SA to communicate the requested documents to the US authorities.

On 8 December 2010 the applicant appealed to the Federal Administrative Court against the decision of 4 November 2010. He complained, in substance, of a lack of any legal basis for the decisions of 1 September 2009 and 4 November 2010, as well as of the violation of the Convention and other international treaties, owing, in particular, to noncompliance with the prohibition of the retroactivity of laws and non-respect for his right to respect for his private life, the presumption of innocence, the principle of equality and non-discrimination, and his right to remain silent.

Determining as the final domestic instance, the Federal Administrative Court delivered judgment on 2 March 2011.

It first of all held, in substance, that Convention 10 was binding on the Swiss authorities, considering that they did not have to verify its conformity with Federal law and previous conventions.

Secondly, with reference to the pilot case A-4013/2010 of 15 July 2010 (see paragraph 18 above), the Federal Administrative Court set out the following reasoning:

“3.2. The AFC’s decision of 1 September 2009 concerning UBS SA does not relate to the grant of mutual assistance. It is merely a decision whereby the lower-level authority requested information from UBS SA for the purposes of Article 20c (3) of CDI-US 96. Therefore, it may be accepted that Agreement 09, in relation with the aforementioned provision, constituted a sufficient legal basis for the AFC to take a decision against UBS SA, requiring, in particular, the handover of the complete files of customers covered by the Appendix to Agreement 09. That being the case, the appellant’s complaint is ill-founded.

4.1.1. In the pilot case A-4013/2010 of 15 July 2010 this court found that Convention 10 was binding on the Swiss authorities. No derogation to it was possible under domestic law or in the authorities’ domestic practice. It was stated that Article 190 [of the Constitution] required the authorities to apply international law, which includes Convention 10, and that – in any event – the conformity of international law with the Federal Constitution and Federal legislation could not be assessed where the international law in question was more recent. The Federal Administrative Court thus accepted that Convention 10 should be applied, even if it was contrary to the Federal Constitution or Federal legislation (see Federal Administrative Court judgment A4013/2010 of 15 July 2010, point 3 and the references therein; see also Federal Administrative Court judgments A-7014/2010 of 3 February 2011, point 4.1.1 and the references therein, A-4835/2010 of 11 January 2011, point 5.1.1, and A6053/2010 of 10 January 2011, point 2.1).

4.1.2 With particular regard to the relationship between the different conventions (Convention 10, CDI-US 96 [in particular Article 26 thereof], the ECHR [in particular Article 8 thereof] and UN Covenant II [in particular Article 17 thereof]), the court pointed out that that relationship was established pursuant solely to the rules set out in Article 30 of the Vienna Convention on the Law of Treaties of 23 May 1969 (VCLT) and that there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens). This court therefore considered that the rules of Convention 10 took precedence over the other provisions of international law, including Article 8 ECHR and Article 17 UN Covenant II, as the latter two provisions did not comprise jus cogens. It did, however, find that even if Article 8 (1) ECHR were applicable, the conditions set out in Article 8 (2) ECHR, which permits restrictions on the right to respect for private and family life, were fulfilled. Convention 10 was indeed a sufficient legal basis under the case-law of the European Court of Human Rights. Furthermore, Switzerland’s major interests and the interest of being able to honour the country’s international commitments took precedence over the individual interests of the persons concerned by the mutual assistance agreement to keep their pecuniary situation secret ...

4.1.3 This court also stated, in judgment A-4013/2010 cited above, that Article 7 (1) ECHR (no punishment without law) was not relevant to mutual assistance procedures. That provision was, exceptionally, applicable in the framework of Swiss mutual assistance procedure if the person concerned by the assistance was threatened, in the requesting State, with proceedings in breach of Article 7 ECHR ... That was not the situation in the present case ...

4.1.5 This court has also held that the parties to an international agreement are free to provide expressly or implicitly for the retroactive application of such agreement ... Moreover, procedural rules could be applied retroactively to previous events, because the prohibition of non-retroactivity only applied to substantive criminal law, not to procedural law, which included provisions on mutual assistance ... Furthermore, the parties to Convention 10 had wished to characterise differently the facts which had occurred prior to the signature of Agreement 09, which was commonly referred to as ‘retroactive effect’. That wish to apply Agreement 09 – which had become Convention 10 – with retroactive effect transpired clearly from the criteria for granting mutual assistance as set out in the Appendix to Convention 10. Even though the parties had specified, in Article 8 of Convention 10, that that instrument would come into force on the date of its signature, they had wished that retroactive effect to prevail ...

4.1.7. In the present case it should be noted, in the light of the aforementioned judgments, that the following objections as to the validity and applicability of Convention 10 can be discarded without further ado: incompatibility with the ECHR and other international treaties, violation of the principle of the prohibition of the retroactivity of laws (see Article 7 ECHR and Article 15 UN Covenant II), and violation of the right to respect for private life (see Article 8 ECHR). Furthermore, contrary to the appellant’s opinion, Convention 10 is in fact a sufficient legal basis for granting mutual assistance, notwithstanding the failure to put it to a referendum (which is optional). Finally, even though Switzerland was unable – in this specific case – to obtain the same information under its own legislation, it is still bound by its international commitments and must grant mutual assistance where the requisite conditions have been met.

4.2. The appellant further submitted that Convention 10 breached the principles of equality and non-discrimination by solely penalising one specific category of persons, that is to say UBS SA customers. He claimed that Convention 10 only applied to UBS SA customers and not to those of other banks. The appellant relied on Article 8 of the Constitution, Article 14 ECHR, Article 2 paragraph 2 of the International Covenant of 16 December 1966 on Economic, Social and Cultural Rights (UN Covenant I; RS 0.103.1) and Article 2 paragraphs 1 and 26 of UN Covenant II.

As stated above, this court cannot verify the conformity of Convention 10 with the Federal Constitution and Federal legislation. That legislation, moreover, overrides any previous international agreements to the contrary (see point 4.1.2 above). Therefore, Convention 10 must be applied even if it establishes different legal regulations for UBS SA customers as compared with the customers of other banks (see Federal Administrative Court judgment A-7156/2010 of 17 January 2011, paragraph 5.2.1).

On those grounds, the Federal Administrative Court dismissed the applicant’s appeal.

On 24 March 2011 the applicant lodged a public-law appeal with the Federal Court, submitting that the considerations set out in the judgment challenged solely concerned mutual assistance in criminal matters and were not relevant to administrative mutual assistance.

By judgment of 11 April 2011 that court declared the appeal inadmissible, mainly with reference to a judgment of 20 December 2010 (ATF 137 II 128), which had found that appeals against AFC decisions given pursuant to the Convention on Double Taxation and subsequent agreements concluded with the United States fell within the scope of administrative mutual assistance.

On 14 December 2012 the banking data concerning the applicant were transmitted to the US tax authorities.

By letter of 14 June 2013, the Court invited the applicant to inform it of the subsequent developments in the case, and, in particular, to give a brief summary of any consequences or any criminal penalties imposed personally and effectively on him in the United States following the disclosure of his banking data as ordered by the Swiss Federal Tax Authority (AFC).

By letter of 7 August 2013 the applicant stated that he was not currently in a position to respond to the Court’s request.

By letter of 30 June 2014 the applicant pointed out that the US authorities were still conducting their tax inspection and that he had not yet been charged with any criminal offence.