CASE OF DİCLE AND SADAK v. TURKEY [Extracts]

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections;Stand for election);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

Mr Hatip Dicle and Mr Selim Sadak were born in 1955 and 1954 and live in Diyarbakir and Şırnak, respectively.

Mr Hatip Dicle and Mr Selim Sadak, who were MPs in the Grand National Assembly of Turkey and members of the DEP political party (Democracy Party), which has since been dissolved by the Constitutional Court, were arrested on 2 March 1994 and 1 July 1994 respectively.

On 8 December 1994 they were sentenced by the Ankara State Security Court to fifteen years’ imprisonment for belonging to an illegal organisation, pursuant to Article 168 § 2 of the Penal Code.

By judgment of 26 October 1995 the Court of Cassation upheld that judicial decision.

On 17 July 2001, adjudicating on an application lodged by the applicants and two other persons, the European Court of Human Rights found, in its judgment in the case of Sadak and Others v. Turkey (no. 1) (nos. 29900/96, 29901/96, 29902/96 and 29903/96, ECHR 2001VIII), a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the State Security Court, as well as a violation of Article 6 § 3 (a), (b) and (d) of the Convention in conjunction with Article 6 § 1 on the grounds that the applicants had not received timely information on the reclassification of the charges against them and had been unable to question the prosecution witnesses or to have them questioned.

On 9 December 2004, at the 906th meeting of the Ministers’ Deputies at the Council of Europe, the Committee of Ministers adopted a Final Resolution (ResDH(2004)86) on the judgment of the Court in the case of Sadak and Others, cited above. The relevant passages of that Resolution read as follows:

“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as ‘the Convention’),

Having regard to the final judgment of the European Court of Human Rights in the Sadak and others case delivered on 17 July 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in several applications (nos. 29900/96, 29901/96, 29902/96 and 29903/96) against Turkey, lodged with the European Commission of Human Rights on 17 January 1996 under former Article 25 of the Convention by Mr Selim Sadak, Ms Leyla Zana, Mr Hatip Dicle and Mr Orhan Doğan, four Turkish nationals, and that the Commission declared admissible the complaints relating to the lack of fairness of the criminal proceedings conducted against them, to the lack of independence and impartiality of the State Security Court which convicted them, in 1994, to 15 years’ imprisonment for belonging to an armed organisation, as well as to the discriminatory violation of their right of freedom of expression and freedom of association;

Whereas in its judgment of 17 July 2001 the Court unanimously:

- held that there had been a violation of Article 6 of the Convention on account of the lack of independence and impartiality of the Ankara State Security Court;

- held that there had been a violation of Article 6, paragraphs 3 (a), (b) and (d), of the Convention, taken together with paragraph 1, on account of the fact that the applicants were not notified in good time that the charges against them had been altered and that they were unable to examine or have examined the witnesses against them;

- held that it was not necessary to examine the other complaints under Article 6 of the Convention;

- held that it was not necessary to examine the complaints under Articles 10, 11 and 14 of the Convention;

- held that the government of the respondent state was to pay, within three months, USD 25 000 to each of the four applicants in respect of all heads of damage taken together; USD 10 000 to all the applicants together in respect of costs and expenses, and that simple interest at an annual rate of 6% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicants’ claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the Government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 17 July 2001, having regard to Turkey’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken in order to erase the consequences for the applicants of the violations found by the Court and to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that, on 16 October 2001, within the time-limit set, the government of the respondent state paid the applicants the sums provided for in the judgment of 17 July 2001;

Recalling, as far as individual measures are concerned, Interim Resolution ResDH(2002)59 of 30 April 2002 in which the Committee requested the reopening of the criminal proceedings against the applicants or the adoption of other ad hoc measures to erase the consequences of their unfair conviction, as well as Interim Resolution ResDH(2004)31 of 6 April 2004 by which the Committee, stressing the importance of the presumption of innocence, requested that the applicants be released pending the outcome of their new trial in the absence of any compelling reasons justifying their continued detention;

Having noted with satisfaction that, on 14 July 2004, the Court of Cassation quashed the judgment of 21 April 2004 of the Ankara State Security Court confirming the applicants’ previous conviction, that, since June 2004, the applicants are no longer in detention following the suspension of the execution of their sentence, that restrictions on their travel abroad were removed on 16 September 2004, that the applicants are no longer deemed to be convicted and that a new trial is currently pending before the Ankara 11th Criminal Court;

Considering that, since the violation found by the European Court concerned the fairness of the incriminated proceedings and not their outcome, it is not necessary to await the outcome of the new trial;

Declares, after having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.”

Meanwhile, on 3 February 2003, Act No. 4793 reforming a number of previous Acts came into force. It added to Article 327 of the Code of Criminal Procedure (CPP) a new paragraph 6 providing for the reopening of criminal proceedings following a finding of a violation by the European Court of Human Rights.

On 4 February 2003 the applicants requested the reopening of proceedings on the basis of the judgment delivered by the Court in their case.

On 21 April 2004, having ordered the reopening of the proceedings against the applicants pursuant to Article 327 § 6 CPP, the Ankara State Security Court reiterated its judgment of 8 December 1994. In the grounds for the judgment it mainly used the words “accused (convicted)” with reference to the applicants. Occasionally it used the words “convicted (accused)” with reference to Mr Selim Sadak and the word “convicted” with reference to Mr Hatip Dicle.

On 8 June 2004 the applicants lodged an appeal on points of law against the 21 April 2004 judgment of the State Security Court. In that appeal they requested their release under Article 38 of the Constitution, relying on their right to the presumption of innocence. They argued that under Article 338 CPP the acceptance of the reopening of proceedings had invalidated the finality of their first conviction. They pointed out that in the event of an application for reopening of proceedings the law was silent on the issue of the execution of the initial sentence and on the conduct of the future proceedings. The applicants submitted that the absence of provisions in that regard did not mean that there was a legal vacuum provided that any proceedings reopened returned to the trial phase. They added that persons being retried no longer had the status of convicted persons, which meant that the restriction on their liberty could no longer be considered as being in “execution” of the sentence initially imposed on them. Consequently, they concluded that the reopening of the proceedings had given them prisoner status, and that they had therefore lost their “convict” status.

Subsequently the applicants submitted another brief memorial to the Court of Cassation, arguing, in particular, that by referring to them as “convicted persons” the State Security Court had flouted their right to the presumption of innocence. Indeed, they took the view that since proceedings had been reopened their conviction was no longer res judicata and therefore that they should no longer have been considered as convicted persons and their right to the presumption of innocence should have been respected, pursuant to Article 38 of the Constitution and Article 6 § 2 of the Convention.

On 9 June 2004 the Court of Cassation ordered the applicants’ release.

By judgment du 13 July 2004 the Court of Cassation quashed the judgment of 21 April 2004, stating that the violations found by the European Court of Human Rights in its judgment of 17 July 2001 had not been remedied. The relevant part of the judgment read as follows:

“III. The procedural phase following the reopening of the proceedings

It is accepted, in both legal practice and legal theory, that where an application for a reopening of proceedings pursuant to the ... Code of Criminal Procedure is accepted, the investigation which must be conducted [after the reopening of proceedings] is independent and distinct from the previous investigation, and the decision to reopen the proceedings provides the basis for that fresh investigation. As stated in the judgment of the Plenary Assembly of the Court of Cassation of 5. 11. 1990 (E. 8/220 and K. 258), the hearings to be organised [in the framework of the new trial] are not the continuation of those held previously, and all the procedural rules must be applied to those hearings as if the case were being tried for the first time. The assessment of new evidence, of the nature of the offence and of the sentencing in the framework of the hearings to be held when the proceedings are reopened must be conducted quite independently and separately from the assessment during the initial proceedings, and new pieces of evidence ... may be gathered and examined.

IV. Conclusion

2 – The proceedings as reopened under the relevant decision is completely independent from the previous proceedings; in accordance with that principle, all the legal rules of procedure must be applied to the new hearings, the indictment must be read out, the reclassification of charges must be notified and fresh interrogations must be conducted ...”

The State Security Courts having in the meantime been abolished under Act No. 5190, the Court of Cassation referred the case to the Ankara Assize Court (“the Assize Court”).

On 1 June 2005 the new Turkish Penal Code came into force. The offence of belonging to an armed band formerly set out in Article 168 is now governed by Article 314 of the new Penal Code.

On 9 March 2007, having taken note, in particular, of the Court of Cassation’s argument that the procedure for reopening the trial was completely independent from the initial one, the Assize Court upheld the conviction of 8 December 1994. It nevertheless reduced the applicants’ sentence to a prison term of seven years and six months pursuant to Article 314 § 2 of the Penal Code. In the reasoning of its decision the court used the words “accused (convicted person)” with reference to the applicants.

On 27 February 2008 the Court of Cassation upheld that judgment.

Meanwhile, on 19 May 2007, the Higher Electoral Council had issued a decision setting out the conditions to be met by candidates – including independent candidates with no party political affiliation – standing for the parliamentary elections of 22 July 2007. The relevant part of that decision read as follows:

“1. ... After serving final sentences ... [the candidate] must, pursuant to section 13/A of the Law on the register of police records, provide, for each conviction, a document certifying that he has recovered his civil rights and that the conviction has become res judicata.

Pursuant to the Penal Code ... save in cases of negligence, persons who have been sentenced to a prison term of twelve months or more or who have been convicted of an offence, pursuant to section 11 (f) of Act No. 2839 on the election of members of parliament and whose prison sentence has become res judicata, must provide a document certifying that they have, or are deemed to have, served their sentence.”

On 10 May 2007, Mr Hatip Dicle applied to the Ankara Assize Court for a document establishing that he had indeed served his full prison term.

In its 15 May 2007 decision the Assize Court held as follows:

“In applying to the convicted person the provisions of Act No. 5237 on the entry into force of [the Penal Code] of 1 June 2005, it was decided to sentence Mehmet Hatip Dicle to a prison term of seven years and six months, to apply section 53 of Act No. 5237 and to deduct from that sentence the period which he had served in detention.

The State Prosecutor has filed an appeal on points of law against that judgment, but the latter has not yet become final.

The convicted person Mehmet Hatip Dicle, whose sentence was commuted to seven years and six months pursuant to the provisions [of the Penal Code], was remanded in custody from 2 March 1994 to 17 March 1994, and imprisoned from 17 March 1994 to 9 June 2004 as a detainee and then as a convicted person.

In the light of the foregoing considerations, the final sentence to be imposed on Mehmet Hatip Dicle for belonging to an illegal armed organisation is a prison term of fifteen years ... In order to serve that sentence, he was held in prison for the aforementioned periods.

Pursuant to the provisions of the Penal Code [in respect of the applicant], this court delivered judgment on 9 March 2007 (E. 2004/343 and K. 2007/67) reducing the fifteen-year prison sentence to a term of seven years and six months. Since that judgment is not yet final it has not become res judicata. Consequently, it is impossible to indicate the date on which the sentence was completed. However, [it may be said that] the sentence served by the convicted person up to the date of his release corresponds to a sentence of seven years and six months...

On those grounds:

This court cannot lawfully adjudicate on the application lodged by the convicted person Mehmet Hatip Dicle for a document certifying that he has served the full sentence imposed on him, firstly because the decision to reduce his sentence to seven years and six months has not yet become final, and secondly because the [initial] judgment sentencing him to a fifteen-year term did become res judicata and he was released on account of the stay of execution of that sentence.”

On 1 and 4 June 2007 Mr Hatip Dicle and Mr Selim Sadak submitted their names as independent candidates for the parliamentary elections of 22 July 2007 in the constituencies of Diyarbakır and Şırnak respectively. They provided, inter alia, copies of their police records mentioning their 8 December 1994 conviction by the State Security Court and the decision given by the Assize Court on 15 May 2007.

By decision of 9 June 2007 the Higher Electoral Council rejected the applicants’ candidacies on the grounds that their criminal convictions had rendered them ineligible.


No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in 1979.

On 3 January 2003 the applicant started serving a sentence in the Pravieniškės Prison after his conviction for rape and theft.

In subsequent separate proceedings the applicant and his three accomplices were found guilty of murder and robbery committed as part of an organised group in 2000. A final decision in that case was adopted in 2013 by the Supreme Court. The applicant was sentenced to eight years’ imprisonment. That sentence was added to the applicant’s prior conviction, and a final sentence of thirteen years’ imprisonment was imposed.

On 25 May 2003 the applicant was found beaten up and unconscious in the Pravieniškės Prison after being attacked by other prisoners. A pre-trial investigation into the incident was opened the same day by the Pravieniškės Prison authorities, who informed the Kaišiadorys prosecutor about it. Immediately after the event an investigator of the prison inspected the area where it had taken place.

The same day the applicant was taken injured and unconscious to the Prison Department’s Hospital (Laisvės atėmimo vietų ligoninė) and then to the Emergency Hospital of Vilnius University (Vilniaus greitosios pagalbos universitetinė ligoninė), where he underwent an operation. Five days later he was transferred back to the Prison Department’s Hospital.

On 26 May 2003 the investigators ordered that the applicant be examined by a forensic medical expert. According to the medical record, the applicant had sustained beatings (muštinė žaizda) to the head and haematoma.

On 5 June 2003 the applicant’s mother wrote to the State authorities that she had learned about the incident only a week later, when she wanted to visit her son in the Pravieniškės Prison. She alleged that the prison was dangerous and demanded that those responsible for the assault on her son be found and punished.

By a letter of 13 June 2003 the Kaišiadorys prosecutor informed the applicant’s mother that a pre-trial investigation into the assault on her son had been opened on the day of the incident. She was also informed that a medical examination had been ordered to establish the severity of the injury.

On 1 July 2003 the Pravieniškės Prison investigator wrote to the Kaunas police that the applicant’s mother was avoiding coming to the prison and testifying and he therefore requested the police to question her as a witness; it was indispensable to ask her whether her son had ever told her about having disagreements with other prisoners or whether he had received threats. The police were also asked to employ operational measures to identify suspects and determine the circumstances surrounding the severe bodily injury (sunkus sveikatos sutrikdymas) of the applicant.

On 10 July 2003 the applicant was granted victim status by the investigators. It was explained to him that in that status he could submit requests or lodge complaints, under Article 28 of the Code of Criminal Procedure (see paragraph 43 below). On 10 July and 18 August 2003 the applicant was questioned about the incident. However, he stated that, given his state of health, he did not remember how he had been attacked and injured.

According to a medical certificate of 28 August 2003, a severe fracture of the skull had occurred as a result of what the doctors described as two blows to the applicant’s head. He had been unconscious for some time just after the assault, and then neurosurgery had been carried out. The doctors concluded that the applicant had sustained a serious head injury and would need a long period of rehabilitation. In August 2003 the applicant was declared Category II disabled, and in March 2004 he was declared Category III disabled (a less severe level of disability). As the applicant’s state of health improved, in February 2008 he was declared able to work at ninety percent.

On 28 August 2003 the applicant was discharged from the Prison Department’s Hospital and returned to the Pravieniškės Prison for outpatient health care. Afterwards, on different dates, the applicant spent time in Lukiškės Remand Prison, Pravieniškės Prison and the Prison Department’s Hospital.

On 10 September 2003 the applicant testified that on the day of the incident he was taking exercise when another prisoner approached him and asked him to go to the living quarters of the Pravieniškės Prison Wing no. 5. They went to a place where there were other prisoners, among whom the applicant noticed a person he had known earlier from the time outside the prison. That person was holding a knife, and hit (smogė) the applicant on the head. The applicant described him as a tall, well-built man of 40-45, who had previously been convicted of murder. The applicant was confident that he could recognise his attacker. On 25 September 2003 the applicant identified from photographs of forty three persons a suspect who appeared to be a certain E.J.

A report of 11 November 2003 from the Pravieniškės Prison showed that E.J. had a conviction for robbery under Article 272 of the Criminal Code, and had been sentenced to three years of imprisonment. According to that report, E.J. had left Pravieniškės Prison on 5 September 2002 for Lukiškės Remand Prison and had come back to the Pravieniškės Prison on 29 May 2003, which was four days after the incident. An extract from E.J.’s personal file indicates that E.J. arrived at Lukiškės Remand Prison on 5 September 2002 and left that prison on 29 May 2003.

On 19 December 2003 the Pravieniškės Prison authorities concluded, on the basis of the 11 November 2003 report, that on the day of the incident E.J. was not being held in the Pravieniškės Prison but was in Lukiškės Remand Prison in Vilnius.

According to the Pravieniškės Prison’s internal investigation report of 19 December 2003, the authorities questioned twenty eight witnesses, including prisoners, operational investigation measures were ordered, medical examinations were carried out and photographs of possible suspects were shown to the applicant and witnesses.

By a letter of 25 February 2004 to the Kaunas police, the Pravieniškės Prison authorities reiterated their request that suspects be identified. The letter also mentioned that, according to the medical report, the applicant had sustained two blows to the head with blunt objects (sužalojimai padaryti veikiant bukais daiktais – dviem smūgiais). The prison authorities also observed that the applicant’s testimony lacked consistency (apklausiamas keičia parodymus) and that he claimed not to remember the circumstances of the incident.

On 26 March 2004 the Kaunas police informed the Pravieniškės Prison investigators that no reliable information enabling identification of the perpetrators of the assault on the applicant had been established.

On 10 May and 13 July 2005 the Pravieniškės Prison authorities requested the Kaišiadorys prosecutor and the Kaunas and Plungė police authorities to order additional operational measures, inter alia, to question three witnesses – inmates of the Pravieniškės Prison at the time when the applicant was injured. The last letter ended with a request for the criminal police “to identify persons who had committed the impugned crime and to find the crime weapon” (nustatyti asmenis, padariusius minėtą nusikaltimą ir surasti nusikaltimo padarymo įrankius).

On 15 July 2005 the prosecutor ordered the Kaunas police to carry out the aforementioned actions. The prosecutor also informed the applicant’s mother that the criminal investigation file had been examined by a prosecutor. Twelve days later, the Plungė police authorities sent the report of questioning to the Pravieniškės Prison investigators.

Considering that the process of investigation was not producing any results, in February 2007 the applicant’s mother objected to the way the investigation in the case was being conducted and asked the prosecutors to find her son’s attackers.

By a letter of 27 April 2007 the prosecutor dismissed the complaint by the applicant’s mother that the criminal investigation was not effective. According to the prosecutor, even though a number of investigative actions had been carried out, it was not possible to identify the persons who had injured the applicant. It was explained to the applicant’s mother that, if she disagreed with the prosecutor’s conclusion, she could appeal to a court.

On 7 August 2008 the Kaišiadorys district prosecutor refused to comply with a request by the applicant’s mother to start an investigation into whether the Pravieniškės Prison authorities had failed to act and to protect her son’s safety and health in prison. In the decision, the prosecutor wrote:

“The [applicant’s mother] cites matters which are relevant to the criminal case concerning the injury to M. Kardišauskas. A pre-trial investigation into this incident is already pending. In the event that a failure of the officers to perform their official duties is established, the question of their criminal responsibility will be decided subsequently. The question of pecuniary and non-pecuniary damage [caused to the applicant] will also be decided within the current pre-trial investigation, once a person or persons who have committed the crime, that is, injured M. Kardišauskas, are identified. If then, due to his state of health or for other reasons, M. Kardišauskas is unable to submit a civil claim on his own account, the prosecutors will have to submit such a claim, as prescribed by Article 117 of the Code of Criminal Procedure.”

The decision stated that it could be appealed against within fourteen days to the pre-trial investigating judge of the Kaišiadorys district court.

According to a report by the Pravieniškės Prison authorities of 28 December 2007, even though prisoners who had served in that prison as of 2003 had been questioned about the attack on the applicant, no relevant information had been obtained.

On 19 April 2010 the prosecutor informed the applicant’s mother that no suspect had been identified during the investigation.

The pre-trial investigation was still pending on 7 June 2012, as was later observed by the Supreme Administrative Court in the administrative case for damages (see paragraphs 33-40 below).

In reply to a request for information by the applicant’s mother, on 9 January 2013 the prosecutor wrote to her that the pre-trial investigation was still pending, no suspect had been identified and no procedural decision had been taken in the criminal case.

In their observations of 4 November 2013 on the admissibility and merits of the case, the Government stated that the criminal investigation remained open until new circumstances came to light. On 20 January 2014 the Court received observations from the applicant, in which he noted that the criminal investigation was still continuing.

In April 2010 the applicant was granted State-guaranteed legal aid and on 18 October 2010 he instituted proceedings against the State.

Firstly, the applicant claimed damage to his health resulting from the failure of the prison authorities to protect him from ill-treatment. To this claim the Pravieniškės Prison administration responded that the applicant had never indicated that he was in danger in prison.

Secondly, in the rectified complaint of 29 November 2010 the applicant criticized the authorities for not having established who his assailant was. On 3 February 2011, when addressing the Kaunas Regional Administrative Court in writing, the applicant further argued that the authorities had failed to act diligently and to take all necessary measures so that the crime was solved quickly.

During those proceedings the applicant contended that the introduction of his civil claim for damages in respect of the injury had been delayed for objective reasons, namely the state of his health, his continuing stay in prison, the failure of the investigating authorities to indicate suspects and to inform the applicant in a timely fashion of the possibility of submitting such a claim and of his right to legal aid.

On 23 March 2011 the Kaunas Regional Administrative Court dismissed the applicant’s claim. The court established that the applicant had been injured on 25 May 2003, and the statutory time-limit to lodge a claim for damages caused by health impairment was three years. The applicant had lodged his claim only on 18 October 2010, that is, more than seven years after the injury had been sustained.

The applicant appealed. On 14 November 2011 the Supreme Administrative Court remitted the case to the first-instance court to verify whether part of the applicant’s claim that the pre-trial investigation had not been effective was also time-barred.

On 14 February 2012 Kaunas Regional Administrative Court refused to examine the applicant’s claim for damage caused to his health on the ground of prescription. The court established that as early as 2004 the applicant’s health had improved; he had been released from hospital and had returned to prison. The applicant had relatives to assist him in making use of his rights, and he could also have asked for free legal aid in a timely fashion. Lastly, it was only the applicant’s own unfounded belief that a court action for damages against the Pravieniškės Prison was not possible before the person who had attacked him was identified.

By a final decision of 7 June 2012 the Supreme Administrative Court dismissed the claim due to the expiry of the three-year prescription period applicable to claims relating to damage to health. The court rejected the applicant’s arguments that he had been misled by the prosecutors investigating the incident, who had convinced him that he would be able to lodge a civil claim for damages only after the person responsible for his injury was identified. The applicant’s contention that his health had prevented him from submitting the claim in time was likewise dismissed. The Supreme Administrative Court also observed that the applicant could have appealed against the investigating officers’ or prosecutor’s actions, if he considered them improper. However, the applicant had not made use of any of his rights under Article 28 of the Code of Criminal Procedure. The pre-trial investigation was not yet over.


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

Elisabeth Steiner;Erik Møse;Paulo Pinto De Albuquerque

The applicant was born in 1972 and lives in Győr.

The applicant’s ex-husband initiated civil lawsuit before Győr District Court against the applicant for dissolution of marital property and for return of present on 21 February 2003.

The court separated the claim to two proceedings and dismissed the claimant’s claim in respect of the return of present.

Subsequently, after several hearings, the first-instance court delivered the judgment in respect of dissolution of the marital property on 13 January 2010.

On appeal, the Budapest Court of Appeal delivered the final and binding judgment on 7 July 2011 amending the first-instance judgment in several aspects.

Both the applicant and the claimant challenged the judgment before the Supreme Court which upheld the judgment on 2 October 2012.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicant was born in 1982 and resides in Vinnytsia.

The applicant suffers from emotional instability and slight mental retardation since childhood. Several forensic psychiatric examinations found him to have sufficient mental capacity to be held criminally liable.

On 17 July 2007 Ms O., a tobacco kiosk seller, was stabbed to death at her working place.

On 19 July 2007 the applicant was apprehended by the police. According to the police reports, that measure was undertaken on at least two different occasions, each time in respect of an administrative (minor) offence formally unrelated to the murder.

Under the first police report, at 2.30 a.m. on 19 July 2007, the applicant was noted in a public place while being in a state of manifest alcohol intoxication, swearing and disturbing passers-by. When the police ordered him to produce his documents and follow them to their vehicle, he resisted in a vehement manner. As indicated in the apprehension report, at 10.30 a.m. on 19 July 2007 the applicant was taken to the court for the examination of the above administrative offence case.

In the morning on the same day the Vinnytsya Leninskyy District Court (“the Leninskyy Court”) found the applicant guilty of the administrative offence of resisting the police and fined him 150 Ukrainian hryvnias (around 14 euros).

It is not known what exactly happened next. The case file contains two more reports on the applicant’s administrative apprehension dated 19 July 2007. According to one of them, he was released at 9.40 p.m. on that date, without any further details being indicated. As noted in the other report, at 10.10 p.m. on that day the applicant was apprehended again in respect of an administrative offence. According to the related judicial ruling of 20 July 2007 (see paragraph 14 below), at 3.25 p.m. on 19 July 2007 the police apprehended the applicant in a street after he resisted to an identity check.

It appears from the materials of the criminal proceedings against the applicant, which were instituted later (see paragraph 19 below), that on 19 July 2007 he was questioned in respect of Ms O.’s murder. He submitted that he had bought cigarettes at her kiosk on 17 July 2007, without anything unusual having happened. The case file does not contain any further information regarding that questioning.

On the same day the applicant had a conversation with his cell-mate in the temporary detention facility, Yu., who convinced him to confess to the murder. He also promised the applicant money in exchange for the information as to where the applicant had thrown the knife. The applicant drew a scheme. Subsequently the police found the knife at the indicated place. Yu.’s statements and the related material evidence were eventually relied on by the trial court in the criminal proceedings against the applicant.

Still on 19 July 2007, from 6.30 to 7.30 p.m., the police carried out a search in the applicant’s flat in the context of the investigation of the murder of Ms O. It appears that they seized his shirt.

On 20 July 2007 the Leninskyy Court found the applicant guilty of the administrative offence of resisting the police at 3.25 p.m. on 19 July 2007 (see also paragraph 10 above) and sentenced him to five days’ administrative detention to be calculated from 19 July (at 3.25 p.m.) to 23 July 2007.

On the same day the applicant was questioned as a witness in the murder case. He reiterated his statement that he had only bought cigarettes at Ms O.’s kiosk.

On 21 July 2007 the applicant was questioned again as a witness concerning the murder of Ms O. He confessed to having stabbed her several times after she had refused to give him cigarettes without payment.

On the same day the applicant repeated his confession during a reconstruction of the crime. He also showed where he had thrown the knife.

Later on 21 July 2007 the applicant was questioned as a criminal suspect. The questioning took place in the presence of a lawyer appointed for him. As noted in the investigator’s decision to that effect, there were sufficient reasons to suspect the applicant of the murder and, given the fact that he suffered from a mental disorder, his legal representation was mandatory. During that questioning the applicant retracted his earlier confession and submitted that he had not been at the tobacco kiosk on the day of the murder. He explained that he had invented his confession being scared that otherwise he would not be released.

On 23 July 2007 at 9.20 p.m. the applicant was formally arrested on suspicion of Ms O.’s murder. The arrest report noted that there were eyewitnesses who had directly pointed at him as the offender. During his questioning on that and the following day the applicant confessed to that crime.

On 26 July 2007 the Leninskyy Court ordered the applicant’s pretrial detention as a preventive measure pending trial.

The trial court remitted the case for additional investigation many times. According to the case-file materials, the most recent such remittal took place on 31 October 2013. There is no information about any subsequent developments.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1966 and lives in Žrnovica.

On 7 August 2003 the applicant’s wife, in the ninth month of pregnancy, gave birth to a stillborn child at Split Clinical Hospital (Klinički bolnički centar Split), a publicly owned health institution.

After the birth the applicant and his wife did not want to take their child’s remains, so the hospital assumed the responsibility for the body.

An autopsy carried out in the hospital on 18 August 2003 showed that the child had died as a result of gestational complications.

On 13 October 2003 the hospital disposed of the child’s body together with other clinical waste (human tissue and amputated body parts). The clinical waste was taken by the hospital’s contractor, company L., to the Zagreb cemetery for cremation.

Soon afterwards the applicant and his wife started to enquire about their child’s burial, but were unable to obtain any specific information.

On 2 June 2004 the applicant and his wife brought a civil action against the hospital in the Split Municipal Court (Općinski sud u Splitu), seeking damages for distress caused by the manner in which it had disposed of their child’s body. They argued that they had given their consent to an autopsy and burial of their child, but the hospital had failed to show that they had performed the burial and to inform them where it had taken place.

The hospital raised the defence that they had acted in accordance with section II of the Ministry of Health’s Instructions on the Disposal of Clinical Waste, allowing them to dispose of the child’s body together with other clinical waste.

At a hearing on 24 November 2004 the court heard evidence from pathologist Š.A., who carried out the autopsy of the child’s body. He explained that in situations in which parents did not want to assume responsibility for the body of their stillborn child, the hospital was required by law to treat the body as clinical waste and to dispose of the remains by cremation or burial. He further explained that before concluding the contract with company L. in 2002, the hospital had buried bodies of stillborn babies in a communal grave. Company L. had then suggested cremating the bodies rather than burying them, because the communal grave had been full. The applicant’s child’s remains had therefore been packed together with other clinical waste and taken to the Zagreb cemetery for cremation. The applicant’s wife disputed Š.A.’s version of events, arguing that Š.A. had first told her that her baby had been buried. Š.A. replied that he had initially thought that to be the case, not finding out until later what had actually happened.

Another hearing was held on 1 February 2005, at which a nurse from the hospital, M.K., gave oral evidence. She testified that after the child’s body had been taken to the pathology department, she had spoken to the applicant who had told her that he wanted the hospital to bury his child. She had seen the applicant on another occasion, and he had told her that he did not want to assume responsibility for the funeral. When the applicant had again approached her to ask where the burial had taken place, she had told him that his child had been buried in the communal grave, although she had not been sure, but in any event she had considered cremation in the communal grave to be a form of burial. The witness also expressed her regret that the applicant might have been under the impression that the child would be buried in an individual grave. The applicant disputed M.K.’s version of events, asserting that he had asked for all the documents and invoices concerning the burial to be forwarded to him. Nurse M.K. admitted that that was true, but that no such documents existed, which she had told the applicant already.

At the same hearing two other witnesses, Z.S. and V.T., technicians in the hospital’s pathology department, gave evidence. Z.S. testified that the hospital had abandoned its practice of burials in 2002 and had started cremations. The same procedure had been applied in the case of the applicant’s stillborn child, whose remains had been taken together with other clinical waste and cremated. V.T. confirmed that he had personally placed the remains of nine children in a box, which had been taken away by company L., but he did not know what had happened to them later.

At a hearing on 23 March 2005 the director of company L. testified that the remains of the applicant’s child had not been buried at the cemetery, but had been disposed of with other clinical waste and cremated. He explained that there was a communal grave in which bodies could be buried, if parents so requested and were granted the necessary authorisation. Otherwise the bodies were cremated. The practice was to place the bodies in one large wooden box together with other clinical waste and to take them to the Zagreb cemetery for cremation.

At the same hearing the applicant and his wife Ž.M. gave their oral evidence. Ž.M. stated that she had been in a state of shock after the birth of her stillborn child and had been suffering psychologically ever since. They had therefore requested that nurse M.K. arrange for the child to be buried in the local graveyard. As soon as she was feeling better, Ž.M. had requested information from the hospital about the child’s burial and was told that her child was buried in the local graveyard. However, at the graveyard she was told that no such burial had taken place. For some time afterwards nobody could tell her what had happened to her child’s body, until a meeting was held in November 2003 at the hospital where she learned that the child had been cremated at the Zagreb cemetery. She and her husband had contacted the cemetery, who replied that they did not know anything about the cremation of their child, and that the remains of a stillborn child would not be cremated without the relevant documentation. The applicant testified that nurse M.K. had never advised him exactly what would happen to his child’s body, and that he would have never allowed his child to be cremated in such a manner. He also confirmed that he had learned from the Zagreb cemetery that the body of a stillborn child would not be cremated without the relevant procedural documentation.

On 6 April 2005 the Split Municipal Court dismissed the civil action on the grounds that after the applicant and his wife had declined to assume responsibility for the body, the hospital had, in accordance with the law, disposed of the child’s body together with other clinical waste. The relevant part of the judgment reads:

“There is no dispute between the parties that on 7 August 2003 [Ž.M.] gave birth to a stillborn child, and that an autopsy of the remains and placenta has been carried out, and that in the pathologist’s office [the applicant] declined nurse M.K.’s suggestion that he assume responsibility for the burial of the stillborn child. The defendant therefore, in accordance with the Instructions on the Disposal of Clinical Waste (Official Gazette no. 50/2000) in conjunction with section 58 of the Protection from Infectious Diseases Act (Official Gazette nos. 60/1992, 26/1993 and 29/1994), considered the placenta and foetus to be clinical waste within the meaning of section 20 of the by-law on the measures of preventing and combating hospital infections (Official Gazette no. 93/2002), which provides that foetuses are clinical waste in cases where the mother was up to twenty-two weeks (five-and-a-half months) pregnant, although there is no dispute in the case at issue that [Ž.M.] gave birth to a stillborn child after nine months of pregnancy, who was not however reported as living, unlike in cases where the child was born alive and then died.

It therefore follows that the defendant, in disposing of the plaintiffs’ stillborn child (in a situation in which they had refused to assume responsibility for the burial and did not have a family grave), acted in compliance with the above-mentioned regulations and the contract with company L. The defendant therefore is under no obligation to pay compensation.”

The applicant and his wife appealed to the Split County Court (Županijski sud u Splitu) on 13 May 2005. They argued that the relevant facts had not been properly established, and that it remained unclear where and how the body of their child had been buried. They also pointed out that the regulations to which the first-instance court had referred did not stipulate that the body of a stillborn child could be treated as clinical waste.

On 24 May 2007 the Split County Court dismissed the appeal and upheld the first-instance judgment. It considered, however, that the first-instance court had erred in finding that the child’s body had been disposed of in accordance with the law, but that given that no provision of the law obliged the hospital to inform parents where their stillborn child was buried, the applicant and his wife could not claim any damages in that regard. The Split County Court in particular held:

“It should be noted at the outset that this court does not accept the findings of the first-instance court, which found the defendant’s exoneration from liability under the provisions of the Instructions on the Disposal of Clinical Waste (Official Gazette no. 50/2000; hereinafter ‘the Instructions’) and the by-law on the measures of preventing and combating hospital infections (Official Gazette no. 93/2002; hereinafter ‘the by-law’). These regulations do not concern the question as to the manner in which hospitals should deal with the bodies of stillborn children. They concern, inter alia, the manner in which clinical waste should be disposed of, including foetuses in cases where the mother was up to twenty-two weeks pregnant (section 20(3) of the by-law), which is not the case in the present case, in which [Ž.M.] gave birth to a stillborn child after nine months of pregnancy.

Although the existing legislation has not regulated the issue of the legal status of a stillborn child coherently, this court finds that the aforementioned Instructions and by-law are not applicable. This is because there are specific provisions which clearly differentiate between a foetus and a stillborn child. Unlike a foetus:

- a stillborn child must be registered in the register of births (sections 9 and 12 of the State Registers Act – Official Gazette no. 96/1993)

- a stillborn child, just like any other deceased person, may only be buried or cremated after examination by a coroner (sections 2 and 8 of the by-law on the examination and establishment of the time and cause of death – Official Gazette nos. 121/1999, 133/1999 and 112/2000).

There is therefore no doubt for this court that a stillborn child, unlike a foetus, can be buried (or cremated) in the same manner as any other deceased person under the relevant provisions of the Cemeteries Act (Official Gazette no. 18/1998), which provides that a deceased person shall be buried in his [or her] local cemetery or another graveyard chosen by the deceased or his or her next-of-kin (section 12).

However, neither the above-mentioned provisions, any other provisions regulating the conduct of the defendant towards its patients (Health Care Act – Official Gazette nos. 121/2003, 48/2005 and 85/2006), nor any other provisions of the law, oblige the defendant, as a healthcare institution, to bury a body not taken away by the next-of-kin at a location which is known to them.

The defendant is therefore not liable for damages because the grounds for liability, within the meaning of section 154 of the Obligations Act (Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 91/1996, 112/1999 and 88/2011) in conjunction with section 1163 of the Obligations Act (Official Gazette no. 35/2005), have not been established. The plaintiffs’ reliance on liability for breach of a contractual duty is not applicable because the relevant provisions of the Obligations Act do not provide for such damages.”

The applicant and his wife also lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) on 28 September 2007, arguing that they found it incomprehensible that the hospital could not be held to account despite failing to act in compliance with the relevant domestic law when disposing of the body of their stillborn child.

On 12 November 2008 the Supreme Court dismissed the appeal on points of law, endorsing the reasoning of the Split County Court. It added:

“It should also be noted that the mental anguish the parents are suffering because they do not know where their child’s grave is and thus are unable to visit it, is not a form of non-pecuniary damage within the meaning of sections 200 and 201 of the Obligations Act (Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) ... only mental anguish caused by loss of amenities of life, disfigurement, breaches of reputation, honour, liberty or personality rights or the death and serious disability of a close relative warrant the award of non-pecuniary damages. Any other mental anguish arising from other situations is not a legal basis for the award of damages.”

The applicant and his wife then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his previous arguments. He argued that the remains of his stillborn child had been disposed of improperly and that he was unable to obtain information about where the child was buried.

On 1 February 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded, holding the following:

“In their constitutional complaint, the appellants were unable to show that the competent courts had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainants’ constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ... “

This decision was served on the applicant on 27 February 2012.

On 9 June 2005 the applicant lodged a criminal complaint with the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) against the employees of the hospital and company L., alleging that the burial of his stillborn child had not been documented or conducted properly.

The Split Municipal State Attorney’s Office questioned the pathologist (see paragraph 13 above), who explained that foetuses and the bodies of stillborn children were disposed of together with other clinical waste, as had happened with the body of the applicant’s stillborn child. There was no need for parents to give any special written consent, because it was not required by law.

On 10 February 2006 the Split Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that the body of his stillborn child had been disposed of in accordance with the relevant law and procedures.

The applicant took over the prosecution as a subsidiary prosecutor and on 29 January 2007 lodged an indictment in the Split Municipal Court against V.T., M.K. and Z.S. (see paragraphs 14 and 15 above) on charges of negligent performance of duties.

On 24 October 2008 the Split Municipal Court rejected the indictment on the grounds that the hospital’s employees had acted in accordance with the relevant legislation, namely the Ministry of Health’s Instructions on the Disposal of Clinical Waste, the Protection from Infectious Diseases Act, and the by-law on the measures of preventing and combating hospital infections.

The applicant appealed to the Split County Court, but on 3 March 2009 it was dismissed as groundless.

In September 2009 the applicant brought his case to the attention of media, which prompted the State Attorney’s Office to re-examine his complaints.

In a report dated 8 September 2009, the Split Municipal State Attorney’s Office informed the Split County State Attorney’s Office (Županijsko državni odvjetništvo u Zagrebu) of the course of the applicant’s case. It referred to the civil proceedings in which the applicant’s damages claim against the hospital had been dismissed, and reiterated that the body of the stillborn child had been disposed of in accordance with the procedure required by law and thus did not constitute a criminal offence.


Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione personae);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant was born in 1968 and lives in Riga.

He is currently on trial in criminal proceedings instituted on 30 December 2005 for an attempt to take a bribe, together with A.B. and A.S. At the time the applicant was the head of a division in the Economic Crime Bureau (Ekonomikas policijas birojs) in the Main Police Department in Riga (Rīgas galvenā policijas pārvalde).

According to the applicant, during his trial before the appellate court, he learned that an operational investigation (operatīvās uzskaites lieta) had been opened in respect of his co-defendant A.S.

According to the Government, on 27 December 2005 the operational investigation had been opened on the basis of information provided by a private person. On 28 December 2005 the relevant authority, the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – the “KNAB”), had informed the prosecutor’s office about this. On the same date, a Supreme Court judge had authorised the interception of A.S.’s telephone conversations and the prosecutor’s office had authorised an undercover operation (operatīvais eksperiments). On 29 December 2005 the Head of the KNAB had authorised the interception of A.B.’s telephone conversations on the basis of section 7(5) of the Law on Operational Activities, and they included conversations with the applicant. On 30 December 2005 the KNAB had informed the prosecutor’s office about the operational measures under the same provision. The Government did not adduce any evidence in this connection.

On 22 January 2009 a judge of the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta), in the context of the criminal proceedings against the applicant, requested information about the operational investigation.

On 18 February 2009 a specialised prosecutor, having examined the material in accordance with section 35(1) of the Law on Operational Activities, replied that the operational investigation had been opened on 27 December 2005. In respect of the applicant, no interception of telephone conversations had been carried out in the context of that operational investigation. However, she noted that “his conversations were recorded if he was speaking to [a person], whose conversations were intercepted in accordance with the Law on Operational Activities”. According to the applicant, he learned about this information during the appellate court hearing on 22 October 2009.

On 22 October 2009 the applicant requested the prosecution authorities to review the lawfulness of the operational measures which had been carried out and asked specific questions concerning these measures.

On 4 November 2009 the specialised prosecutor replied, among other things, that on 28 December 2008 an undercover operation had been approved on the basis of section 15(3) of the Law on Operational Activities in the context of the operational investigation to record the manner in which the sworn attorney A.S. would proceed upon receipt of 19,500 Latvian lati (LVL), to be handed over to the officials of the economic crime police, to find out whether he would continue arranging for a bribe and to ascertain his possible accomplices. She also noted that the domestic law did not provide for independent judicial supervision of operational activities; such supervision was carried out by the Prosecutor General and specially authorised prosecutors in accordance with section 35(1) of the Law on Operational Activities. Finally, she noted that the operational investigation measures in respect of the applicant and his co-defendants had not been illegal and that there had been no breaches of the general principles governing operational activities contained in section 4 of that Law.

On 6 November 2009 the applicant lodged a complaint about the specialised prosecutor’s reply.

On 27 November 2009 a higher-ranking specialised prosecutor rejected the applicant’s complaint. She referred to section 35(1) and section 5 of the Law on Operational Activities. By reference to section 7(5) the prosecutor also explained that the authorities had learned during the interception of telephone conversations of A.S. that an offence was being planned for 30 December 2005 – the act of arranging for and taking a bribe – which would also involve officials from the State Police. In order to prevent further participation of officials in corruption-related offences, a decision was taken to intercept the telephone conversations of A.B. on the basis of section 7(5) of the Law on Operational Activities. The competence of the prosecution authorities did not include examination of whether that or other provisions were compatible with the Latvian Constitution; these issues could be determined by the Constitutional Court.

The applicant lodged a further complaint with the Prosecutor General, which was rejected by a final decision of 29 December 2009. With reference to sections 35(1) and 7(5) of the Law on Operational Activities, it was reiterated that no breaches of that Law had been found.

On 29 June 2010 the applicant lodged an individual constitutional complaint with the Constitutional Court (Satversmes tiesa). He alleged that (i) section 7(5) of the Law on Operational Activities was incompatible with Articles 89 (protection of human rights) and 96 (right to private life) of the Constitution (Satversme) and also with Articles 8 and 13 of the Convention, and (ii) the first and second sentence of section 35(1) of the Law on Operational Activities were incompatible with Article 89 and the first sentence of Article 92 (right to a fair trial) of the Constitution and also with Article 6 § 1 and Article 13 of the Convention.

On 16 July 2010 the Constitutional Court initiated proceedings in case no. 2010-55-0106 with regard to the compatibility of section 7(5) of the Law on Operational Activities with Article 96 of the Constitution and Article 13 of the Convention and the compatibility of the first sentence of section 35(1) of that Law with Article 92 of the Constitution alone. The Constitutional Court rejected the remainder of the applicant’s complaint.

On 6 September 2010 a judge dismissed the applicant’s request, among other things, to see the case materials, since it was contrary to the procedure laid down in the Law on the Constitutional Court. It was for the judge to take the necessary steps to prepare a case for adjudication (lietas sagatavošana izskatīšanai) in accordance with section 22 of the Law on the Constitutional Court. He also referred to section 22(9), section 24 and 22(2)(1) of the Law on the Constitutional Court (see paragraphs 34-35 below) to explain that the parties were entitled to see the case materials after the decision concerning adjudication had been taken and that it was for the judge to decide which institutions or officials were to be requested to submit additional information or documents.

On 5 November 2010 the judge dismissed the applicant’s request to see the written submissions filed by the Latvian Parliament (Saeima) in the proceedings on the grounds that such request had already been dismissed given that these submissions formed part of the case materials.

On 2 December 2010 the applicant requested permission to see at least the judge’s preliminary opinion (atzinums par lietas sagatavošanu izskatīšanai) before the preparation of the case was completed and before the preparatory meeting had taken place. The applicant sought the possibility of expressing his opinion on the proceedings and, in particular, on whether or not the case could be decided by means of an oral procedure, which was his preference.

On 17 December 2010 the President of the Constitutional Court replied to the applicant that the parties could see the case materials only after the decision concerning adjudication had been taken. That decision had been taken on 14 December 2010. Consequently, the applicant could see the case material. As regards the possibility of the proceedings being conducted orally or in accordance with a written procedure, he explained that this issue was to be determined by the Constitutional Court in accordance with section 22(8)-(10) of the Law on the Constitutional Court. This issue was first to be considered by the relevant judge, then by the President of the Constitutional Court and, subsequently, by all other judges in the preparatory meeting. The parties could express their opinion on this matter after they had seen the case materials.

On 21 January 2011 the applicant filed an opinion with the Constitutional Court and noted, among other things, that the case could not be decided through a written procedure and that an oral hearing should be held. He admitted that the written procedure before the Constitutional Court as such did not infringe his rights to be heard, but submitted that it had to be examined in each particular case and that the court was not allowed to reject a request in connection with the gathering of evidence without examining its necessity, significance or procedural legal grounds.

On 25 January 2011, in a closed preparatory meeting, the Constitutional Court examined the case materials and found that the documents contained therein were sufficient for the purposes of examining the case by means of a written procedure (sections 22(10) and 281 of the Law on the Constitutional Court). On 26 January 2011 the applicant was informed about this decision and was given 15 days to see the case materials and to give his opinion in connection with them (section 281(2) of the Law on the Constitutional Court). The applicant used this possibility.

On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106 and held that the contested legal provisions complied with the Constitution and the Convention. The relevant part reads as follows:

“11. ...

It follows from the case materials that, on 27 December 2005, the KNAB opened an operational investigation. Interception of the Applicant’s telephone conversations was carried out from 29 to 31 December 2005, that is, for three days under section 7(5) of the Law on Operational Activities (see Case materials, Vol. 1, pp. 85 – 86). There is no dispute that the Applicant also participated in the telephone conversations which were intercepted.

The Applicant and the Ombudsman argue that the restriction of rights established in section 7(5) of the Law on Operational Activities is unclear. It is impossible to understand the meaning of ‘to prevent’. Nor can it be understood what preconditions need to be fulfilled in order to take operational measures under the special procedure where immediate action is required. Therefore, the restriction of rights established in the above-mentioned legal provision has not been provided for by a properly adopted law (see Case materials, Vol. 1, pp. 7 – 8, and Vol. 3, pp. 4648).

13.2. The Applicant argues that the provisions of section 7(5) of the Law on Operational Activities must be applied only when necessary to prevent serious or especially serious crimes. Consequently, the operational measures contained in this provision cannot be performed for the purpose of detecting (atklāt) a criminal offence.

The first sentence of section 7(5) of the Law on Operational Activities provides that ... operational activities may be carried out to react immediately to threats of criminal offences as referred to in this provision and [that] corresponding operational measures [may be taken] to prevent these offences. However, the fact that detection of criminal offences has not been mentioned expressis verbis in section 7(5) of the Law on Operational Activities, does not exclude the obligation to observe the purpose of operational activities. [The Constitutional Court] can agree with the arguments of Parliament and the KNAB, namely, that when carrying out activities mentioned in section 7(5) of the Law on Operational Activities, a criminal offence can be prevented and detected as well. When taking operational measures to prevent criminal offences, some [other] criminal offence may also be detected. For instance, in the case of the taking of a bribe, operational measures may prevent a criminal offence, as well as identifying the persons involved in giving such a bribe. Therefore, it can be concluded that the term ‘to prevent’ in section 7(5) of the Law on Operational Activities includes not only prevention of crime, but also detection of other criminal offences.

13.3. ...

[The Constitutional Court] does not agree with the opinion by the Ombudsman that section 7(5) of the Law on Operational Activities is unclear as it fails to establish preconditions which are necessary to allow immediate action to be taken in the form of operational measures under the special procedure. Section 7(5) of the Law on Operational Activities establishes two preconditions which allow ... operational measures.

First, section 7(5) of the Law on Operational Activities enumerates specific circumstances ... Operational measures may be taken when required to prevent acts of terrorism, murder, banditry, riots, or other serious or especially serious offences. They are permissible also in circumstances of a real threat to the life, health or property of an individual. [The Constitutional Court considers that] this enumeration ... is exhaustive and sufficiently precise. Consequently, it excludes any possibility of operational measures under the special procedure in relation to the prevention of such criminal offences which are not indicated in the legal provision.

Second, operational measures ... may be taken ... only when an immediate action is required.

Interpreting this legal provision in conjunction with section 17(3) of the Law on Operational Activities, [the Constitutional Court] concludes that covert interception of non-public conversations is allowed only when [there is] reliable information (pamatotas ziņas) about persons’ involvement in a criminal offence, as well as a threat to important interests of the State, its security or defence. Consequently ... operational measures ... may be taken if [there is] reliable information regarding the involvement of an individual in a criminal offence.

Section 7(5) of the Law on Operational Activities provides for an exceptional procedure, namely, it allows ... immediate operational measures to be taken because any delay might significantly influence their results. Taking into account the seriousness of the offences referred to in section 7(5) of the Law on Operational Activities, it is important to provide a timely and effective response to prevent all threats related to such crimes.

Section 7(5) of the Law on Operational Activities establishes the preconditions for its application [with sufficient precision]; consequently, the restriction on the fundamental rights has been established by law.

The Applicant indicates that section 7(5) of the Law on Operational Activities does not provide an obligation ... to receive approval by a judge in cases where operational measures are terminated within ... 72 hours (see Case materials, Vol. 1, pp. 26 – 27).

17.1. Sections 7(2) and 7(3) of the Law on Operational Activities establish two procedures for taking operational measures, namely, under the general and special procedures. Such classification is closely related to the nature of operational measures and their impact on the fundamental rights of persons. In the cases established in section 7(5) of the Law on Operational Activities, operational measures must be taken under the special procedure as they significantly impinge on the fundamental rights of persons.

The Constitutional Court considers that the grammatical wording of section 7(5) of the Law on Operational Activities [does not clearly indicate] whether it is necessary to obtain approval by the President of the Supreme Court or a specially authorised judge in cases when operational measures are terminated within ... 72 hours.

17.2. In order to determine the content of section 7(5) of the Law on Operational Activities, it must be interpreted in conjunction with other provisions of the same section regulating operational measures to be taken under the special procedure.

Section 7(5) of the Law on Operational Activities contains a reference to section 7(4) setting out the operational measures to be taken under the special procedure. These measures, including monitoring of correspondence and covert interception of non-public conversations, must be taken with the approval of the President of the Supreme Court or a specially authorised judge.

Although section 7(5) of the Law on Operational Activities provides for exceptional circumstances where ... immediate action may be taken, it also establishes the obligation ... to obtain the approval of the President of the Supreme Court or a specially authorised judge for operational measures under section 7(4). Already when the draft of the Law on Operational Activities was being drawn up ... the need to receive a judge’s approval was emphasised in cases where operational measures would be taken under the special procedure (see Case materials, Vol. 1, pp. 171 and 173).

The third sentence of section 7(5) of the Law on Operational Activities indicated that the operational measures had to be discontinued where no approval by a judge was obtained. According to the KNAB, this indication confirms that a judge’s approval must be sought only in cases where operational measures have not been terminated within ... 72 hours (see Case materials, Vol. 3, pp. 45). However, the Ministry of Justice and the Ombudsman indicate that such an interpretation ... would not comply with the essence of the Constitution (see Case materials, Vol. 3, pp. 48 and 54 – 55).

Section 7(5) of the Law on Operational Activities contains no reference to the fact that no approval by the President of the Supreme Court or a specially authorised judge is necessary for operational measures to be taken under section 7(4) in the event that it is planned to terminate them within ... 72 hours. Consequently, [the Constitutional Court] cannot agree with the opinion by the KNAB that a judge’s approval does not have to be obtained if operational measures are terminated within ... 72 hours.

17.3. ... Consequently, section 7(5) of the Law on Operational Activities provides that a prosecutor must always be informed of the operational measures taken; this provision also obliges ... [the seeking of] approval by the President of the Supreme Court or a specially authorised judge.

The restriction established in section 7(5) of the Law on Operational Activities must be regarded as the most lenient measure for fulfilling the legitimate aim because monitoring by a prosecutor and subsequent judicial scrutiny of the lawfulness of operational measures ensures effective protection of the rights of persons.

It is not possible to agree with the Applicant’s statement to the effect that the infringement of his right is greater than the benefit gained by society. By means of a lawful restriction of a person’s right to respect for his or her private life, the State helps to combat crime and permits ... immediate reaction to threats of criminal offences that are particularly dangerous for society, serving to prevent them and identifying the persons involved. When intercepting non-public conversations in the cases established in section 7(5) of the Law on Operational Activities, the protection of public safety is ensured.

Consequently, operational measures taken to prevent criminal offences referred to in section 7(5) of the Law on Operational Activities must be regarded as proportionate and compliant with Article 96 of the Constitution only if approval by the President of the Supreme Court or a specially authorised judge has been obtained irrespective of the time when the operational measures are terminated.

The Applicant indicates that the [prosecutor’s office] cannot be regarded as an effective remedy in respect of his rights within the meaning of Articles 8 and 13 of the Convention (see Case materials, Vol. 1, pp. 17 – 18).

The Constitutional Court has already established in its case-law that [an application to] the prosecutor’s office in Latvia may be regarded as an effective and available remedy, because the status and the role of the prosecutor in the supervision of law secures independent and impartial review of cases in compliance with Article 13 of the Convention (see Judgment of 11 October 2004 by the Constitutional Court in the case No. 2004-06-01. Para 19).

In the present case it is necessary to examine whether section 7(5) of the Law on Operational Activities provides a person with protection compliant with Article 13 of the Convention in cases where the right to the inviolability of private life and correspondence guaranteed in the Convention is infringed.

The Constitutional Court concludes that section 7(5) of the Law on Operational Activities establishes circumstances ... where operational measures may be taken immediately, as well as the procedure in accordance with which this has to be notified to a prosecutor and approval by a judge is to be obtained. However, this provision is not related to the right to an effective remedy under Article 13 of the Convention. Consequently, the compliance of section 7(5) of the Law on Operational Activities with Article 13 of the Convention must be assessed in conjunction with the first sentence of section 35(1) of that Law, the latter establishing a mechanism for monitoring operational measures and being contested by the Applicant as to its compliance with Article 92 of the Constitution.

The Applicant indicates that the first sentence of section 35(1) of the Law on Operational Activities fails to comply with Article 92 of the Constitution because it has no legitimate aim and it is not necessary in a democratic society. The provision fails to establish a procedure according to which the supervision and monitoring of performance of operational measures would be carried out. In the monitoring of operational measures, the first sentence of section 35(1) of the Law on Operational Activities confers on the prosecutor’s office a broad margin of appreciation (see Case materials, Vol. 1, pp. 20 – 21).

21.1. ...

The Constitutional Court has already concluded in paragraph 17 above that [there is] an obligation to request, in any event, the approval of the President of the Supreme Court or a specially authorised judge in relation to operational measures. Consequently, the legislature has established such a regulatory framework for operational measures that requires not only monitoring by a prosecutor but also judicial supervision or at least subsequent judicial scrutiny of the lawfulness of the measures taken and their compliance with the requirements of the law.

20.2. ...

The Constitutional Court has already indicated in its case-law that the prosecutor’s office, as a judicial institution, has a twofold nature. On the one hand it is a single, centralised three-level institutional system, under the management of the Prosecutor General, but – on the other – prosecutorial functions are carried out independently and solely by officials of the prosecutor’s office, that is, the individual prosecutors (see Judgment of 20 December 2006 by the Constitutional Court in the case No. 2006-12-01, Para 12.2).

... As to the taking of operational measures referred to in section 7(4) of the Law on Operational Activities, in cases established in section 7(5), ... a prosecutor, that is, the Prosecutor General or specialised prosecutors, must be notified within ... 24 hours (see Kavalieris A. Operatīvās darbības likuma komentāri. Rīga: Raka, 2002, pp. 26). Consequently, the Prosecutor General or specialised prosecutors also supervise the lawfulness of operational measures.

Pursuant to section 22(2) of the Law on Operational Activities, operational proceedings (operatīvā izstrāde) are opened by a decision approved by a head or deputy head of the operational activities authority and a prosecutor is informed about this. Consequently, operational measures established in section 7(5) of the Law on Operational Activities ... must be notified to the Prosecutor General or a specialised prosecutor. The Constitutional Court indicates that in the event of receipt of such notice, the public prosecutor must monitor the compliance of the investigative operational measures with the requirements of the law, thus ensuring the observance of the rights of the person concerned.

20.3. The Applicant indicates that the possibility of securing protection for one’s rights is limited in cases where one’s telephone calls are intercepted (see Case materials, Vol. 1, pp. 10, 13, 18 and 22).

It follows from the afore-mentioned that the Prosecutor General and specialised prosecutors review operational activities and, based on the results of such review, provide an opinion on the lawfulness of operational activities ... Review is necessary for the Prosecutor General and specialised prosecutors to ensure that operational measures have been lawful. However, the effective regulatory framework also establishes judicial supervision, including subsequent scrutiny. Consequently, [the Constitutional Court does not] agree with the opinion that the effective regulatory framework fails to provide independent subsequent scrutiny in respect of operational measures.

Pursuant to section 29(3) of the Law on Operational Activities, if in the course of operational activities the rights and interests of persons have been unlawfully infringed and damage has been caused, the obligation of the relevant officials (prosecutor or court) shall be to restore such rights and to compensate for or avert the inflicted pecuniary and non-pecuniary damage in accordance with the law. Consequently, it can be concluded that the Law on Operational Activities establishes the responsibility of the officials of [the relevant body] in the case of any infringement of fundamental rights.

Consequently, the investigating authority and the court ensure the review of the admissibility of information obtained by means of operational measures. However, the Prosecutor General and specialised prosecutors, by monitoring the conformity of operational activities with the law, as well as the court in carrying out subsequent scrutiny, ensure effective protection of a person’s rights.


No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1951 and lives in Paris.

The applicant was recruited on a three-month fixed-term contract, from 1 October to 31 December 1999, extended for one year from 1 January to 31 December 2000, as a contracted employee of the hospital civil service, to carry out the duties of a social assistant in the psychiatric unit of Nanterre Hospital and Social Care Centre (“CASH”) a public health establishment administered by the City of Paris.

On 11 December 2000 the Director of Human Resources informed the applicant that her contract would not be renewed with effect from 31 December 2000. The reason given for the decision – which had been taken following complaints by certain patients being treated at the Centre – was that the applicant refused to stop wearing her head covering.

On 28 December 2000, in response to a letter from the applicant alleging the illegality of the refusal to renew her contract in that it was motivated by her convictions and her affiliation to the Muslim faith, the Director of Human Resources indicated that at the meeting of 30 November 2000 which had preceded the administration’s decision, she had not been criticised for her religious beliefs, but merely reminded of the rights and duties of public employees, namely the ban on manifesting such beliefs. He continued:

“I emphasised that I had been required to have a meeting with you following complaints made to Ms M., manager of the welfare and education unit, both by patients who were refusing to meet you on account of this display [of your beliefs] and by social assistants for whom it was becoming increasingly difficult to operate in this very delicate situation. It should be noted that Ms M. raised these difficulties with you and tried to persuade you not to manifest your religious beliefs, even before the complaints reached the HRD. Indeed, it was only shortly before the meeting with you on 30 November that the unit managers were officially informed of the problem created by the fact of your head covering.

With regard to your head covering at the time of recruitment: as you are aware, the recruitment interview lasts, at the most, one hour. Individuals attend wearing ordinary “street” clothes, and do not necessarily have to remove their coats or scarves. The fact that your head was covered during that interview was not interpreted as a possible sign of [religious] affiliation, but simply as a form of attire.

The termination of your contract has a legal basis, and does not result from a discriminatory situation.”

The Director of Human Resources further reminded the applicant in this letter of the Opinion issued by the Conseil d’État on 3 May 2000. That Opinion stated that the principle of freedom of conscience, the principle of State secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs; lastly, it pointed out that the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations (see paragraph 26 below).

By an application registered on 7 February 2001, the applicant asked the Paris Administrative Court to set aside the decision of 11 December 2000.

By letters of 15 and 28 February 2001, the applicant was informed of the decision of the Director of Human Resources at the CASH to include her on the list of candidates for a recruitment test for social assistants and to permit her to take part. This decision was taken on the basis of the decree of 26 March 1993 granting special status to social assistants employed by State hospitals. That text stated that the social assistant’s task was to assist patients and their families who were experiencing difficulties in their dealings with the social services, by helping to draw up and implement the relevant programme in the establishment to which they were attached and also other social and educational programmes, in coordination, inter alia, with other institutions or the social services. The applicant did not take part in the recruitment test.

By a judgment of 17 October 2002, the Administrative Court held that the decision not to renew the contract had been compatible with the principles of secularism and the neutrality of public services:

“... In view of Law no. 83-634 of 13 July 1983 [laying down the rights and duties of civil servants, see paragraph 25 below]...

Although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly in terms of access to positions, career progress and the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle, which is intended to protect the users of the service from any risk of influence or of interference with their own freedom of conscience, concerns all public services and not only the education service; this obligation must be applied with particular stringency in those public services where the users are in a fragile or dependent state;...”

It dismissed the applicant’s action, pointing out that the decision not to renew her contract had been taken on account of her refusal to remove her veil “following complaints submitted by certain patients in the care centre and in spite of repeated warnings by her line managers and friendly advice from her colleagues”. The court considered that on the basis of the above-mentioned principles concerning the expression of religious opinions within the public services, the administrative authorities had not committed an error of assessment in refusing to renew the contract on the implied grounds of her wearing of “attire manifesting, in an ostensible manner, allegiance to a religion”. It concluded “thus, even though the applicant’s employer tolerated the wearing of this veil for several months and [her] conduct cannot be considered as deliberately provocative or proselytising, the hospital has not acted illegally in deciding not to renew the contract following her refusal to stop wearing the veil.”

By a judgment of 2 February 2004, the Paris Administrative Court of Appeal held that the contested decision was disciplinary in nature, in that “it transpires from both the letter of 28 December from the Centre’s Director of Human Resources and the hospital’s defence pleadings that [the decision] was taken on account of [the applicant’s] persistence in wearing a veil for religious reasons during her working hours...”. It therefore quashed the decision on procedural grounds, given that the applicant had not been informed of the reasons for the envisaged measure prior to its adoption, nor given an opportunity to consult her case file.

In execution of the court of appeal’s judgment, the Director of the CASH invited the applicant to inspect the case file. By a reasoned judgment of 13 May 2005, he confirmed that her contract would not be renewed:

“As a result of the judgment of the Paris Administrative Court of Appeal dated 2 February 2004, which held that the non-renewal of your fixed-term contract which expired on 31 December 2000 had been disciplinary in nature, we invited you again to inspect your administrative file on 10 May 2005, in order to bring the procedure into line with the regulations.

As required in execution of the same judicial decision, we hereby inform you that the disciplinary basis for the non-renewal of your contract is your refusal to remove your veil, in that it ostensibly manifests your religious affiliation.

In application of the principles of the secular nature of the State and the neutrality of public services, which underlie the duty of discretion imposed on every State employee, even those employed under contract, your refusal to remove your head covering when carrying out your duties effectively amounts to a breach of your obligations, thus exposing you to a legitimate disciplinary sanction, as the Conseil d’État held, with regard to the principle, in its Opinion concerning Ms Marteaux, dated 3 May 2000.

Our decision not to renew the contract is all the more justified in the present case in that you were required to be in contact with patients when carrying out your duties.”

By a letter of 29 June 2005, the administrative court of appeal informed the applicant that the CASH had taken the measures required by the judgment of 2 February 2004. It advised her that where a decision was set aside on procedural grounds, the administrative body could legally take new decisions that were identical to those that had been set aside, provided that they complied with the relevant procedure, and that the new decision of 13 May 2005 could be challenged before the administrative court.

In January 2006 the applicant asked the Versailles Administrative Court to set aside the decision of 13 May 2005. She argued, in particular, that the Conseil d’État’s Opinion of 3 May 2000, relied upon by her employer, was intended to apply only to teachers.

By a judgment of 26 October 2007, the court dismissed her request, basing its decision on the principles of State secularism and the neutrality of public services:

“... However, while the Conseil d’État’s Opinion of 3 May 2000 specifically concerns the case of an employee in the public education service, it also clearly states that the constitutional and legislative texts show that the principles of freedom of conscience, State secularism and the neutrality of public services apply to the public services in their entirety; although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly with regard to access to positions, career progress and also the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle is intended to protect the users of the service from any risk of influence being exerted or of interference with their own freedom of conscience.

In view of the above-mentioned principles concerning the manifestation of religious opinions within the public service, the administrative body did not act illegally in refusing to renew the [applicant’s] contract on the implied grounds of her wearing attire manifesting, in an ostensible manner, allegiance to a religion.”

The applicant lodged an appeal against that judgment.

By a judgment of 26 November 2009, the Versailles Administrative Court of Appeal upheld the judgment, reiterating the reasons given by the lower courts.

The applicant appealed on points of law to the Conseil d’État. In her submissions, she emphasised that the administrative court of appeal had deprived its judgment of any legal basis in that it had failed to specify the nature of the item of attire worn by her which had justified the sanction. She referred to the disproportionate nature of that sanction, and alleged that it had been incompatible with Article 9 of the Convention.

By a judgment of 9 May 2011, the Conseil d’État declared the appeal inadmissible.