Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant, Mr Manochehr Bahmanzadeh, is an Iranian national, who was born in 1956 and lives in London. He was represented before the Court by Ms J. Hickman of Hickman & Rose, a firm of solicitors based in London. The respondent Government were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office.

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

The applicant held the lease of premises housing a nightclub called the Dance Academy and was co-manager of the club. In December 2005 he was made aware of police concerns about high levels of drug usage at the club. He met with the licensing officer in December 2005 and in January and February 2006 and offered assurances that he took the problem very seriously and would introduce a “zero tolerance” approach to drugs on the premises.

In January 2006 an undercover police operation commenced into drug use at the Dance Academy. Over the course of the operation, twenty-four undercover police officers attended the club and a number of them purchased ecstasy there from several drug dealers. A police raid on the nightclub took place on 7 May 2006. Around 450 ecstasy pills were recovered.

On 6 August 2006 the applicant and his co-manager were charged with permitting premises to be used for the supply of ecstasy between 1 December 2005 and 8 May 2006.

The applicant’s trial commenced at the Crown Court on 19 May 2008.

The prosecution case was that the applicant had failed to take reasonable steps to address the drugs problem in the club. They relied on evidence covering the indictment period, namely:

- the detail and nature of the contact with police concerning the drugs problem by way of meetings and letters;

- the prevalence of drug dealing witnessed by members of staff and by the undercover officers, who successfully purchased drugs;

- the volume of drugs found during the search in May 2006;

- oral evidence from former members of staff that in the period following January 2006 the management could have done more to address the drugs problem to which they had been alerted in warning staff as to their responsibilities;

- data recording the number of ambulances attending the premises; and

- oral evidence to the effect that the management of the club had informed door staff that they should cut back on the number of searches.

The oral evidence from the undercover police officers was given anonymously and they were screened from the public, the defendants and defence counsel.

The club’s former head of security, G.G., who had worked at the club in 2004, gave evidence of the applicant’s tolerance of drug dealing and his obstructive approach when he, G.G., had tried to eject and report on those caught dealing drugs at the club. He also told the jury that he was a former Royal Marine. G.G. was cross-examined by the applicant’s trial counsel. It was put to him that he had been sacked by the applicant for stealing money and drugs from a drug dealer, rather than arresting him. G.G. denied this. It was further put to him that his dismissal had also been informed by the fact that he had been present at a drugs murder nearby some weeks before. G.G. replied that he had merely been a witness to the murder and was assisting police in that capacity.

The applicant gave evidence in his own defence. He said that he was strongly opposed to drug use and supply. He and his staff had sought to enforce a policy of zero tolerance in relation to drug supply. He had responded positively to police warnings from December 2005 by replacing his CCTV system and changing his security company. It was impossible to keep drugs out of the club, but he had taken all reasonable steps to prevent the supply of drugs.

In his summing up to the jury, the trial judge reminded the jury that G.G. had worked at the Dance Academy in late 2004 for approximately six months and so was not there during the period covered by the indictment.

On 2 July 2008 the applicant was convicted by a jury and on 21 July 2008 he was sentenced to nine years’ imprisonment. In his sentencing remarks, the judge commented that there had been “large-scale, blatant supply of and use of ecstasy” in the club, of which the applicant had been well aware and to which, at the very least, he had turned a blind eye in order to maximise the profits and reputation of the club. He referred, inter alia, to the evidence of the undercover police officers, of G.G., of the club’s head doorman in 2005, of other doormen at the club and of a customer.

The applicant appealed against his conviction and sentence, challenging the special measures permitted at trial to screen the undercover police officers when they had given evidence. The appeal was dismissed by the Court of Appeal on 17 December 2008. The court said it had no doubt that there was ample evidence, outside the evidence emanating from the undercover police officers, from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no adequate steps had been taken by management to prevent or discourage the sale of drugs.

On 25 January 2012 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s conviction and sentence to the Court of Appeal. The statement of reasons set out a single reason for the referral, namely information giving rise to the “real possibility” – this being the criterion stated in the relevant legislation (see paragraph 31 below) – that the Court of Appeal would find the trial evidence of “an important prosecution witness”, namely G.G., no longer capable of belief.

The report detailed new evidence not disclosed at trial that G.G. had been working as a doorman in another club in February 2004 and had offered to sell drugs to off-duty police officers. He had told the officers that he was earning five thousand pounds a week from selling drugs. The CCRC considered that this would “severely damage” the credibility of the witness. It was also revealed that G.G. had lied on oath by claiming that he was a former Royal Marine. The statement continued:

“23. In the course of its enquiries the Commission has located a further record which appears to be of relevance regarding [G.G.]. The record, which is sensitive, is considered further in a Confidential Annex (‘Annex C’) that will be provided to the Court of Appeal and the Crown Prosecution Service. For reasons associated with the principle of Public Interest Immunity, the Confidential Annex will not be provided to Mr Bahmanzadeh or his representatives. Whilst this course of action is contrary to the general practice of providing an applicant with full reasons for any decision made, the Commission considers that it is inappropriate in this case to pre-empt any decisions on disclosure that may be made by the Crown Prosecution Service or the Court of Appeal.”

By letter dated 13 March 2012 the CCRC informed the applicant that further sensitive information had been disclosed to the Court of Appeal and to the prosecution. Again, for Public Interest Immunity (“PII”) reasons, a decision had been taken not to disclose the information to the applicant or his representatives. He was invited to make an application to the court or the prosecution for disclosure.

On 16 April 2012 the applicant submitted provisional grounds of appeal to the Court of Appeal. His first ground claimed that his conviction was unsafe “by reason of fresh evidence concerning [G.G.]”. The grounds referred to the need for a “detailed disclosure exercise” in the light of the CCRC report including, in particular, disclosure of Annex C to that report. Appended to the grounds was a schedule of disclosure requests. The defence invited the court to conduct a thorough PII exercise and order disclosure of the file and such further material as might be relevant. He also invited the court “to review the PII exercise conducted by the trial judge between 22nd and 29th February 2008”. Finally, the defence asked that the prosecution disclose all material concerning G.G.’s role in the drugs murder in respect of which he had been cross-examined at trial and invited the court to review any relevant PII material.

On 10 July, 14 August and 15 August 2012 further disclosure took place. A police statement of July 2012 confirmed that in February 2004 G.G. had claimed to off-duty police officers that he made five thousand pounds a month selling drugs. A letter of July 2012 contained antecedents for G.G. Material related to G.G.’s arrest and questioning in September 2004 about the drugs murder was also disclosed. A witness statement by the police officer who had given evidence at trial confirmed that he had “commissioned a review of all material held by the police” concerning G.G. and it had not uncovered anything which assisted the defence or undermined the prosecution.

Meanwhile, on 14 August 2012, the prosecution indicated that it intended to make a PII application and make ex parte submissions. Part of the PII application, it said, would relate to Annex C to the CCRC’s statement of reasons. The prosecution invited the applicant to provide further particulars of the case to inform the court and the prosecution in their assessment of the potential value to the defence case of the retained material.

On 29 October 2012, in response to the prosecution invitation, the applicant submitted a note on PII and disclosure for consideration at the PII hearing. He contended that much of the material now disclosed by the prosecution should unquestionably have been disclosed at trial, since it would have undermined the prosecution cases and assisted the defence. He argued in particular that Annex C should plainly be disclosed, since it was prima facie capable of assisting the defence or undermining the prosecution given that it had led the CCRC to refer the case back to the Court of Appeal. He also requested permission to address the court prior to the PII hearing and invited the court to consider whether the interests of justice required the appointment of special counsel to represent the applicant’s interests at the PII hearing. He advanced two principal arguments: first, that G.G. had provided crucial evidence against him and that the fresh evidence – and any material not yet disclosed on account of PII – would have undermined his credibility; and second, that the judge’s directions to the jury had been inadequate. The note explained:

“There may be no breach of Article 6(1) in circumstances where material not in the possession of the prosecution at trial was first considered by the Court of Appeal in an ex parte hearing. It is important that the Court be able to consider the impact of the new material of the safety of the Applicant’s conviction with the assistance of detailed argument from the Appellant’s counsel. Article 6 will not be violated if the undisclosed material is found to add nothing of significance to what has been disclosed at trial ...”

On 13 November 2012 the ex parte PII hearing took place in the Court of Appeal to consider whether material referred to by the CCRC should be disclosed to the defence. Special counsel was not appointed to represent the applicant’s interests at the hearing. The applicant was subsequently informed that, save for very limited disclosure, no further disclosure had been ordered. The court issued a direction requiring the applicant’s representatives to confirm that “complete and unambiguous disclosure” by the prosecution had taken place or, if it had not, to thus inform the court.

On 18 November 2012, in a note on disclosure, the applicant’s representatives informed the court that they were not able to provide the confirmation sought. They expressed concern that a review of material held by the police had been conducted by unknown persons on the instructions of an officer who had given evidence against the applicant at trial. They commented on the prosecution’s failure to supply any schedules of unused material or to provide any clear indication of how the process of disclosure had been conducted, explaining that it left them with “a deep sense of unease as to the adequacy and efficiency of the process ...”. They concluded that it was, in their view, for the prosecution to confirm that their disclosure obligations had been met.

In response, on 20 November 2012 the prosecution informed the applicant that the “vast preponderance” of the material in Annex C had been disclosed in the context of the further disclosure which had taken place in July and August 2012. They confirmed that prosecuting counsel had personally reviewed the material placed before the Court of Appeal at the PII hearing. They concluded that they were satisfied that they had complied with their disclosure obligations.

Further disclosure took place on 22 November 2012.

In his skeleton argument dated 23 November 2012, the applicant set out detailed argument concerning his first ground of appeal. He introduced his submissions as follows:

“The issue is whether the fresh evidence, if available at trial, might reasonably have affected the jury’s decision to convict the Appellant ... It plainly would have.”

He complained that his inability properly to challenge G.G. and his account at trial because of the lack of disclosure meant that there was a real risk that the applicant’s credibility had been unfairly damaged at trial. Lack of disclosure in relation to G.G. had, he claimed, “potentially devastating consequences”.

On 29 November 2012 the appeal against conviction was dismissed. Regarding the PII application, the court noted that it had upheld the prosecution’s PII claim on 13 November 2012, being of the view that the material sought to be withheld would not assist the applicant and that nothing had happened to suggest a different view. It summarised his grounds of appeal as follows:

“(i) [G.G.] was an important prosecution witness against the appellant at trial. Had the fresh evidence relating to him been available, it would have undermined his credibility and assisted the defence.

(ii) Inadequate directions and insufficient guidance were given to the jury ...”

Concerning the impact of the fresh evidence on the evidence given by G.G. at trial, the court noted that the indictment period began in December 2005 and that G.G. had worked as head doorman in 2004. It remarked that the jury had been reminded by the trial judge during his summing-up that G.G. was not at the club during the period covered by the indictment. The Court observed that the critical question for the jury was whether they were sure that from December 2005, the applicant had encouraged, allowed or failed to take reasonable steps to prevent drug use at the premises. On this question, it said, G.G. could give no direct evidence whatever. It referred to the applicant’s argument that with the disclosed material the whole balance of the case changed, since he would have been in a much stronger position to undermine the prosecution case and advance his own. However, it considered that, while the judge had clearly paid attention to what G.G. said, the latter’s evidence was “by no means” at the heart of the case. It underlined again that G.G.’s evidence related to a period fifteen months or more before the indictment period and that no amount of cross-examination of G.G. to expose him as a drug dealer was capable of offering any refutation of the objective evidence of the test purchase officers and other evidence of what was happening in the club at the time. The court concluded:

“37. ... The real issue here was what the appellant did or did not do after the warnings given to him at the beginning of the indictment period. As regards that, the evidence of open and blatant supplies of ecstasy at the club, effectively under the noses of the staff, seems to us entirely compelling. We are wholly unpersuaded by the submission urged upon us yesterday that the [undercover officers’] evidence did not plainly implicate the appellant. His absence over periods of time when drugs were being openly and blatantly supplied has to be viewed against what the Crown was required to prove, namely that the appellant failed to take reasonable steps to prevent drug use at the premises. He knew full well that drugs were being frequently supplied on the premises, to put it at its lowest.”

The appeal against sentence was successful on the basis that new sentencing guidelines had entered into force since the applicant’s first appeal and ought to be taken into account. The sentence was reduced to seven and a half years. The court explicitly stated that the fresh evidence in respect of G.G. played no part in the reduction of sentence.

The applicant was informed by senior counsel that the appeal turned on disclosure and the determination that the conviction was safe was a factual determination. No matter of law of general public importance, amenable to certification for a further appeal to the Supreme Court, arose. Counsel therefore concluded that no further avenue of appeal existed.

Where a person has been convicted on indictment, section 9(1) of the Criminal Appeal Act 1995 gives the CCRC the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides:

“(1) A reference of a conviction ... shall not be made ... unless–

(a) the Commission consider that there is a real possibility that the conviction ... would not be upheld were the reference to be made,

(b) the Commission so consider–

(i) in the case of a conviction ... because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against ..., and

(c) an appeal against the conviction ... has been determined or leave to appeal against it has been refused.”

Section 17 of the Act allows the CCRC to require a body which has possession or control of material which may assist it in the exercise of it functions to produce the material or allow the CCRC access to it.

Under the Criminal Procedure and Investigations Act (“CIPA”) 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.

Following the judgments of this Court in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996V, and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, Reports 1998‑IV, the United Kingdom introduced legislation making provision for the appointment of a special counsel in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his legal representatives, the Attorney‑General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000).

In R. v. H.; R. v. C. [2004] UKHL 3, decided on 5 February 2004, the Judicial Committee of the House of Lords held, inter alia:

“The years since the ... enactment of the CIPA have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests ...

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”

Section 2(1) of the Criminal Appeal Act 1968 provides that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.”

Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal to the Supreme Court against a decision of the Court of Appeal (Criminal Division). Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court.

The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings.


Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr Petr Aleksandrovich Raush, is a Russian national, who was born in 1963 and lives in St Petersburg. He was represented before the Court by Mr B. Gruzd, a lawyer practising in St Petersburg.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicant was a member of the local anarchist movement.

On 1 May 2002 the applicant participated in a public gathering. At around 12 noon the applicant and six other persons were apprehended by the police and put in a police vehicle. According to the applicant, the arrest was carried out in a brutal manner: police officers twisted his fingers, gave him several blows on his back and legs and put him face down against the floor of the police vehicle. According to the police reports of 1 May 2002, the applicant was inebriated and violently resisted the police.

The applicant was released at around 4 p.m., that is, four hours after his arrest. He was not subject to any prosecution under the Code of Administrative Offences.

At around 7 p.m. on the same date the applicant underwent a medical examination, which concluded that he had bruises and scratches on his face and chest. At 8 p.m. he obtained a medical certificate confirming that he was not drunk.

On 16 May 2002 the applicant and other persons complained to the Tsentralnyy district prosecutor’s office, St Petersburg (“the district prosecutor’s office”) about police brutality on 1 May 2002.

On 28 June 2002 the district prosecutor’s office refused to initiate criminal proceedings against the police officers for lack of evidence of a crime, having concluded that it was impossible to establish whether the officers had inflicted any injuries on the applicant or other persons.

On 28 October 2002 the district deputy prosecutor overturned the decision of 28 June 2002.

On 30 January 2003 the district prosecutor’s office again refused to initiate criminal proceedings on the grounds that the persons participating in the public gathering of 1 May 2002 had refused to comply with the police order to stop the gathering and had resisted lawful arrest; accordingly, the police had acted lawfully in order to overcome violent resistance.

According to the applicant, he was served with a copy of the decision of 30 January 2003 on 29 April 2003. It remains unclear whether the applicant had attempted to obtain a copy prior to that date.

On 24 June 2003 the applicant challenged the decision of 30 January 2003 before the Smolninskiy District Court, St Petersburg (“the District Court”).

On 3 December 2003 the District Court declared the decision unlawful on the grounds that the seriousness of the injuries allegedly sustained by the applicant had not been assessed and issued an instruction ordering the prosecutor to re-examine the matter.

On 19 December 2003 the district prosecutor’s office again refused to open an investigation.

According to the applicant, he managed to obtain a copy of the decision of 19 December 2003 on 9 July 2004. It remains unclear whether the applicant had attempted to obtain a copy prior to that date.

On 31 August 2004 the applicant challenged the decision of 19 December 2003 before the District Court.

On 22 September 2004 the District Court declared the refusal of 19 December 2003 unlawful on the grounds that the seriousness of the injuries allegedly sustained by the applicant had not been assessed.

On 13 October 2004 the district prosecutor’s office issued a new refusal to open an investigation on the grounds that it was possible that the injuries had been sustained after the applicant’s release from the police station.

According to the applicant, he received a copy of the decision of 13 October 2004 in February 2005. It is not known whether the applicant had sought a copy earlier.

On 12 September 2005 the applicant’s lawyer challenged the decision of 13 October 2004 before the District Court.

On 26 September 2005 the District Court declared the decision of 13 October 2004 unlawful noting the incompleteness of the preinvestigation inquiry.

On 24 November 2006 the district prosecutor’s office issued a new decision refusing to open an investigation.

According to the Government, on 25 January 2010 the St Petersburg prosecutor’s office overturned unspecified refusals to open an investigation by the district prosecutor’s office.

On 15 April 2003 the applicant and other persons held a picket in front of the US Embassy in Moscow. They were arrested as they had failed to duly notify the city authorities of the picket. According to the applicant, he was arrested at 5.15 p.m. When brought to the police vehicle, he received two blows to his head. He was then required to sit on the floor of the vehicle. Once in the police station, a police officer inflicted around thirty blows to the applicant’s head and chest. According to the police reports of 15 April 2003, the applicant had violently resisted arrest.

The applicant was released shortly after his arrival at the police station. In the applicant’s submission, it happened two hours after the arrest. According to the Government, the applicant was arrested at 5.30 p.m. and released at 6.20 p.m.

At around 7.30 p.m. on the same date the applicant underwent a medical examination in a hospital and was diagnosed with bruises and scratches on the body and limbs and a bruise on the chest.

On 21 April 2003 the applicant complained to the district prosecutor’s office of police brutality.

On 20 May 2003 the district prosecutor’s office refused to open an investigation on the grounds that the participants of the picket had violently resisted the police.

On 28 May 2003 a Justice of the Peace of St Petersburg Circuit no. 201 imposed on the applicant a fine of 1,000 Russian roubles under the Code of Administrative Offences for his participation in the unauthorised picket.

On 24 June 2003 the applicant challenged the refusal of 20 May 2003 before the District Court.

On 3 December 2003 the District Court declared the decision of 20 May 2003 unlawful.

On 19 December 2003 the district prosecutor’s office again refused to open criminal proceedings against the police officers.

The applicant allegedly received a copy of the decision of 19 December 2003 on 17 June 2004.

On 31 August 2004 the applicant challenged the refusal of 19 December 2003 before the District Court.

On 22 September 2004 the District Court declared the decision of 19 December 2003 unlawful.

On 4 October 2004 the district prosecutor’s office again refused to open an investigation.

In his submission, the applicant received a copy of the decision of 4 October 2004 on 19 June 2005.

On 12 September 2005 the applicant’s lawyer challenged the refusal of 4 October 2004 before the District Court.

On 26 September 2005 the District Court declared the decision of 4 October 2004 unlawful.

According to the Government, on 25 January 2010 the prosecutor’s office of St Petersburg quashed unspecified refusals to open an investigation by the district prosecutor’s office.


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

András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1948 and lives in Kallithea-Attaki, Greece.

The applicant is one of the heirs of Mr Serkis Gövderelioğlu, who used to live in Istanbul. On 7 July 1988 Mr Gövderelioğlu purchased movable and immovable goods from the bankrupt estate of a company by way of a public tender.

On 5 February 1996 the sale in question was annulled by a court order on the ground that the instalments had not been paid in time. The decision annulling the sale became final on 3 October 1997 and on 14 November 1997 Mr Gövderelioğlu was requested by the Istanbul Bankruptcy Office to return the purchased goods within seven days. He did not comply with that request.

On 10 August 2000 Mr Gövderelioğlu died.

Due to his non-compliance with the Bankruptcy Office’s order to return the goods, on 5 June 2001 the bankrupt estate of the aforementioned company filed an action against Mr Gövderelioğlu’s heirs, including the applicant, before the Şişli Court of First Instance (hereinafter “the Şişli Court”) for the recovery of the goods or their equivalent value.

A lawyer acting on behalf of the applicant and the other heirs of Mr Gövderelioğlu submitted a petition to the Şişli Court on 3 December 2001, arguing, inter alia, that the case had been lodged outside the statutory time-limit and thus had to be rejected. The lawyer submitted that the statutory one-year time-limit had started to run on 14 November 1997 but that the plaintiffs had not lodged their action until 2001.

On 15 April 2002 three experts appointed by the Şişli Court submitted their opinion on the value of the goods. Two of the experts considered the value to be approximately 245,000 euros (EUR), whereas the third expert considered it to be in the region of EUR 45,000.

On 11 June 2002 the Şişli Court issued an interim decision, rejecting a request to hear two witnesses who, according to the applicant, would have provided pertinent information about the value of the goods in question. The Şişli Court considered that the existence of the expert reports made it unnecessary to hear the applicant’s witnesses.

In its decision of 13 December 2002 the Şişli Court ordered Mr Gövderelioğlu’s heirs to return the goods which were still in their possession and to pay a certain sum of money corresponding to the value of the goods which had been disposed of in the meantime. The amount of money ordered was based on the calculations made by the two experts. The Şişli Court further awarded statutory interest on this amount accruing from 21 November 1997, the original due date for the return of the goods. No response was given by the Şişli Court in its decision to the applicant’s objection concerning the issue of the time-limit.

The applicant appealed against the judgment and argued, inter alia, that the action for recovery should have been dismissed by the Şişli Court as it had been instituted outside the statutory time-limit. He also submitted that the Şişli Court had acted unlawfully by ordering the payment of interest on the amount due, given that no request for interest had been made by the plaintiff. He also added that the Şişli Court had failed to hear the witnesses he had proposed. The applicant asked the Court of Cassation to hold a hearing before rendering its decision.

On 10 July 2003 the Court of Cassation upheld the judgment of the Şişli Court without holding a hearing and without providing any answers to the applicant’s objections.

On 22 December 2003 the Court of Cassation rejected a request by the applicant for rectification of its previous decision.


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1958 and lives in Batman. At the time of the events giving rise to the present application, he was the head of the Batman branch of the People’s Democratic Party (DEHAP) and subsequently the Party for a Democratic Society (DTP).

On unspecified dates in 2005 and 2006 the Batman public prosecutor’s office initiated at least four criminal investigations against the applicant. On 18 October 2005, 6 December 2005, 1 February 2006 and 23 March 2006 the applicant made statements before the Batman public prosecutor in relation to his attendance at a number of public meetings.

In particular, when he was questioned on 18 October 2005 the applicant was asked about his participation in an event commemorating a number of deceased members of the PKK (Kurdish Workers’ Party, an illegal armed organisation) held on 22 August 2005. The applicant responded that he had become aware of that event when demonstrators had started to march to the cemetery where the deceased were buried. As he was the head of the Batman branch of DEHAP, he had attended the march in order to keep the demonstrators under control and to prevent any possible disturbances in the town.

When questioned on 6 December 2005, the applicant stated that on 17 August 2005 he had been the head of the DEHAP branch in Batman and that he had not praised the leader of the PKK in his speech. The applicant added that although Abdullah Öcalan, the leader of the PKK, was in prison, he was regarded as a political actor by the local population. The applicant’s intention had been to express that social fact and he was against any kind of violence. When the public prosecutor reminded him of the violent acts of the PKK, the applicant once again stated that he was against violence regardless of whom it emanated from.

On 1 February 2006 the Batman public prosecutor asked the applicant why he had referred to the PKK leader as “Esteemed/Mr (Sayın) Öcalan” during one of his speeches. The applicant responded that he had used the word “Sayın” as a matter of courtesy. He stated that he had not intended to disseminate propaganda in favour of the PKK or to praise a criminal.

Lastly, on 23 March 2006 the applicant was questioned by the Batman public prosecutor in the context of a criminal investigation opened against him on suspicion of membership of the PKK. He stated that he had participated in several demonstrations and readings of press statements in his capacity as the head of the Batman branch of DEHAP and the DTP, and that he had not committed any offence during those events. He denied the veracity of the allegation that those public meetings had been organised in accordance with the instructions of the PKK. When he was asked about a sentence condemning both the death of Turkish soldiers and PKK members which he had uttered during a speech, the applicant stated that he would utter that sentence again without hesitation. He also stated that the petition campaign entitled “I accept Abdullah Öcalan as a political actor” had not been started upon the instructions of the PKK. He accepted that he had demanded an end to the solitary confinement of Abdullah Öcalan and addressed the latter as “Esteemed/Mr (Sayın) Öcalan”. However, he denied the allegation that he had had the intention of disseminating propaganda in favour the PKK. The applicant contended that he had attended the demonstrations and meetings in question in order to control the crowds and to prevent any possible disturbances. Lastly, he claimed that his aim was to contribute to peace and democracy.

On 23 March 2006 the applicant was brought before the Batman Magistrates’ Court and questioned in respect of his involvement in a demonstration held on 16 February 2006 in Batman. He submitted that he had attended the demonstration with a view to preventing violence, since he was the head of the DTP at the material time. The court ordered the applicant’s remand in custody.

On 24 March 2006 the Batman public prosecutor decided to transfer the investigation to the Diyarbakır public prosecutor’s office, holding that the offence which the applicant had committed, namely membership of a terrorist organisation and carrying out membership activities, was not within his office’s jurisdiction.

On 26 April 2006 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, charging the applicant and a certain M.G., under Article 220 § 8 of the Criminal Code, with disseminating propaganda in favour of the PKK on ten occasions. In the indictment the public prosecutor listed a total of ten marches and demonstrations which the applicant had attended. He noted that during those marches and demonstrations, demonstrators had chanted slogans and carried banners praising the PKK and its leader, Abdullah Öcalan, and that the applicant had made speeches in Kurdish at nine of those ten assemblies.

On 30 May 2006 the Diyarbakır Assize Court held the first hearing on the merits of the case. During the hearing, the applicant contended that he was the head of the Batman branch of the DTP. Although he had participated in the public meetings indicated in the indictment, he had not chanted any slogans or carried banners containing illegal expressions. He further submitted that he had not directed demonstrators to commit any illegal acts. The applicant stressed that in general he attended such public meetings at the request of the security forces, since the latter asked him to be present in order to prevent any possible clashes between themselves and the demonstrators.

During the second hearing held on 18 July 2006 the public prosecutor submitted his observations on the merits of the case. The public prosecutor contended that the applicant had attended various illegal public meetings between 19 February 2005 and 16 February 2006 and that he had made speeches in which he had praised the PKK and its leader. The public prosecutor alleged that those events had been organised either in line with the policies of the PKK or under its instructions with a view to supporting that organisation. Taking into account the intensity, variety and continuity of the applicant’s activities, the public prosecutor considered that the applicant’s acts constituted knowingly and willingly aiding the PKK. He then asked the Assize Court to convict the applicant under Articles 220 § 7 and 314 § 2 of the Criminal Code of membership of the PKK.

On 26 September 2006 the Diyarbakır Assize Court held the fourth and the last hearing in the case and convicted the applicant and his coaccused of membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 7 and 314 § 3 of the same Code, finding it established that the applicant had knowingly and willingly aided the PKK. The applicant was sentenced to six years and three months’ imprisonment. The judgment of the Assize Court, insofar as relevant, reads as follows:

“In the indictment dated 26 April 2006 it was alleged that Abdulcelil İmret had committed the following acts:

Attendance at the reading out of a press statement and an illegal march held on 19 February 2005 in the Mem-u Zin Park in Batman during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan;

Attendance at the event commemorating a deceased PKK member held in the Batman cemetery on 31 March 2005, making a speech in Kurdish and making participants say prayers in Kurdish;

Attendance at the reading out of a press statement at the Batman branch of DEHAP on 16 August 2005 regarding the petition campaign entitled “I accept Abdullah Öcalan as a political actor”;

Attendance at the illegal demonstration held on 22 August 2005 to commemorate seven members of the PKK killed by the security forces in an armed clash which had occurred in Batman;

Attendance at the demonstration organised by DEHAP and held on 9 November 2005, during which the demonstrators chanted illegal slogans, and making a speech in Kurdish addressed to the press and the demonstrators;

Attendance at the demonstration held on 16 November 2005 during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators;

Attendance at the demonstration held on 30 November 2005 protesting against the attempts to close down ROJ TV, the alleged solitary confinement of Abdullah Öcalan and the statement by Deniz Baykal, the leader of the CHP (People’s Republican Party) regarding the events that had occurred in Yüksekova during which the demonstrators chanted slogans in favour of Abdullah Öcalan, and making a speech in Kurdish addressed to the press and the demonstrators;

Attendance at the reading out of a press statement and at a march held on 21 December 2005 protesting against the solitary confinement of Abdullah Öcalan, during which the demonstrators chanted illegal slogans and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators;

Attendance at the march and the reading out of a press statement held on 8 February 2006 in Batman, during which illegal slogans were chanted, and making a speech in Kurdish;

Attendance at the illegal demonstration and the reading out of a press statement held on 16 February 2006 close to the DTP Batman branch, during which illegal slogans were chanted and banners were carried, and making a speech in Kurdish;

In his defence submissions Abdulcelil İmret stated that he had participated in the demonstrations and the reading out of press statements mentioned in the indictment but that he had neither chanted slogans nor carried banners. He stated that he had not directed demonstrators to chant slogans or to carry banners.

Abdulcelil İmret submitted that he had attended those meetings at the request of the security forces and that the latter had asked him to warn the crowds not to resist them and to work with them with a view to preventing possible disturbances.

The file contains police reports, photographs and video recordings of the events which the accused attended and the speeches he made.

On the basis of the evidence in the file, it has been understood that during all the demonstrations and marches held in Batman which Abdulcelil İmret attended, slogans in favour Abdullah Öcalan were chanted and the demonstrators carried banners. It has also been understood that the speeches made by the accused praised Abdullah Öcalan.

It is established that the accused attended the public meetings in question and organised them.

Although the accused submitted that their aim had been to prevent clashes between the demonstrators and the security forces and [that they] had not had the intention of disseminating propaganda in favour of the PKK when they had participated in the demonstrations and marches in question, taking into account the content of the case file and their acts during those meetings, their defence submissions have been found to be baseless.

As a result of the trial and in the light of the evidence,

It has been established that Abdulcelil İmret worked as the head of the Batman branch of DEHAP and that subsequent to the closure of DEHAP he was the head of the Batman branch of the DTP.

He attended ten marches and demonstrations held between 19 February 2005 and 16 February 2006, organised by the above-mentioned political parties. Illegal slogans were chanted and illegal banners were carried during those meetings. In some of those meetings, Abdulcelil İmret read press statements containing expressions praising Abdullah Öcalan. All of the marches and demonstrations in question were illegal within the meaning of section 23/b of the Marches and Demonstrations Act (Law no. 2911).

It has been established that all of those marches and demonstrations were organised in line with the ‘Democratic Political Struggle’ strategy adopted by the PKK recently; that the media broadcasts in line with the PKK’s strategies had announced those marches and demonstrations prior to them, and that the same media organs had used those demonstrations as propaganda materials after they had been held.

Abdulcelil İmret and M.G. organised several illegal demonstrations in line with the PKK’s instructions and during those demonstrations they addressed the demonstrators who chanted slogans and carried banners containing expressions in favour of the PKK and Abdullah Öcalan. In their speeches the accused praised the PKK’s leader. Taking into account the continuity and nature of their acts, it is considered that those acts went beyond the offence of dissemination of propaganda in favour of a [terrorist] organisation and amounted to the offence proscribed by Article 220 § 7 of the Criminal Code, that is to say, ‘knowingly and willingly aiding an illegal organisation without being in the hierarchical structure’. Therefore, it has been decided to convict the accused under Article 314 § 2 of the Criminal Code.

On 13 April 2010 the Court of Cassation upheld the first-instance judgment.

By Law no. 6352, which entered into force on 5 July 2012, paragraph 7 of Article 220 of the Criminal Code was amended. The applicant applied to the Diyarbakır Assize Court requesting it to examine whether the amended version of that provision could be considered to be in his favour and, if so, whether the execution of his sentence could be suspended. He added that he was currently serving his prison sentence.

On 16 August 2012 the Diyarbakır Assize Court decided to reduce the applicant’s sentence to five years, two months and fifteen days’ imprisonment. The court rejected the applicant’s request to have the execution of his sentence suspended.


Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant in the first case, Mr F.J., is an Austrian national, born in 1955. The applicant in the second case, Mr E.B., is an Austrian national, born in 1947. The President granted the applicants’ requests for their identity not to be disclosed to the public (Rule 47 § 3). They are represented before the Court by Mr H. Graupner, a lawyer practising in Vienna.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

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

In February 2001 the Vienna Federal Police Department conducted police investigations in respect of the first applicant on suspicion of his having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen, an offence under the former Article 209 (Gleichgeschlechtliche Unzucht mit Personen unter 18 Jahren) of the Criminal Code.

On an unspecified date the Vienna Public Prosecutor’s Office charged the first applicant with these offences.

On 2 April 2001 the Vienna Regional Court acquitted him of the charge.

On 14 December 2001 the first applicant lodged a request with the Vienna Federal Police Department for the deletion of both the electronically processed data and of the data manually processed in paper files concerning the proceedings in his case.

On 1 August 2002 the Federal Police Department informed the first applicant that it had deleted the electronically processed data but rejected the request concerning the data processed in paper files. Thereupon the first applicant filed a complaint concerning this decision with the Data Protection Commission.

On 2 September 2003 the Data Protection Commission partly allowed the first applicant’s complaint, ordering the Federal Police Department to modify the filing cards (Steckzettelindices) and filing registers (Protokollbücher) by noting the acquittal while maintaining the reference to Article 209 of the Criminal Code. It dismissed the first applicant’s complaint as regards the data processed in ordinary paper files – known as “copy files” (Kopieakte) – which contained copies of all the reports and communications generated by the authority and sent to other authorities, such as the public prosecutor, because data processed in paper files did not fall under the definition of filing systems (Dateien) within the meaning of the Data Protection Act. The right of deletion set forth in that Act was therefore not applicable.

In the Data Protection Commission’s view, information held in such information research tools could not be completely deleted or scrambled. In accordance with the relevant provisions of the Security Police Act, all administrative actions by administrative authorities – including police authorities – had to be documented and archived. Only by doing so was it possible to review the lawfulness of the actions of the authorities, which was necessary in a State governed by the rule of law. This was required by the rules regulating the authority’s internal mode of operation (Kanzleiordnung). However, such data had to be complete and correct, which meant that subsequent developments – in particular if the person concerned by the investigations had been acquitted – also had to be recorded. The question of whether or not the authority could use such data in its work was distinct from the issue of the archiving and recording of data and required that separate rules on the use of such data be applied.

On 21 November 2003 the first applicant lodged a complaint with the Constitutional Court and with the Administrative Court.

On 26 January 2006 the Constitutional Court quashed the Data Protection Commission’s decision. In the Constitutional Court’s view the Data Protection Commission had misinterpreted the applicable law when it had held that only the provisions on the archiving and storage of data for the authority’s internal use were applicable because the filing cards at issue did not only contain information of a general character but details about an individual person, such as that person’s name and address. Therefore, they recorded not only internal matters of the authority but also sensitive personal data. The authority should therefore have applied the rules for the use and processing of individual data under the Security Police Act (Sicherheitspolizeigesetz) and should have weighed up the private and public interests accordingly. Since the Data Protection Commission had failed to do so, the Constitutional Court quashed its decision.

On 28 February 2006 the Administrative Court discontinued the proceedings because the Constitutional Court had already quashed the decision.

Meanwhile, the police authorities, taking into account the legal opinion in the Constitutional Court’s decision, blanked out entries in the filing register by superimposing black bars over the first applicant’s name, date of birth, address and the respective file number and reference to Article 209 of the Criminal Code on the filing cards. This having been done, the applicant maintained his complaint of 10 August 2002 in respect of the data processed in the copy files only.

On 9 August 2006 the Data Protection Commission again decided on the first applicant’s appeal and rejected his request to delete the data concerning him that had been manually processed in ordinary paper files, the “copy files”. Referring to the Constitutional Court’s case-law, it found that the right to deletion of data under the Data Protection Act and the Security Police Act was not applicable to data manually processed in paper files because such files were unstructured compilations of information and did not qualify as filing systems (Dateien) under the Data Protection Act.

On 26 September 2006 the first applicant again lodged complaints with the Administrative Court and the Constitutional Court.

The Constitutional Court dismissed the complaint on 7 March 2007. It rejected the first applicant’s argument that Article 8 of the Convention and the case-law of the European Court of Human Rights established a right to deletion of personal data in an ordinary paper file. The cases relied on by the first applicant, namely Amann v. Switzerland (no. 27798/95, ECHR 2000II) and Rotaru v. Romania (no. 28341/95, ECHR 2000V), had to be distinguished from the present case as they concerned completely different sets of facts. In the Constitutional Court’s view, Article 8 of the Convention did not impose a wider right to deletion of data than already contained in section 1 of the Data Protection Act which transformed into domestic law EU Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995). Also the Council of Europe Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data of 28 January 1981 only concerned automatically processed data and did not extend to personal data in a conventional copy file or paper file.

Moreover, it was apparent and not disputed by the first applicant that, following the blackening out of his name, date of birth and address in the file register and of the reference to the paper files in the index card, the paper files at issue were no longer traceable via these information tools. This reduced the accessibility of his personal data to such an extent that there was no longer any interference with his rights under Article 8 of the Convention. That being so, the Constitutional Court concluded that there had been no breach of the first applicant’s rights under Article 13 of the Convention either.

On 5 July 2007 the Administrative Court dismissed the first applicant’s complaint for the same reasons as those relied on by the Constitutional Court.

In March 1999 the Vienna Federal Police Department conducted investigations in respect of the second applicant on suspicion of his having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen, an offence under former Article 209 of the Criminal Code, and on suspicion of having committed sexual acts with persons under the age of fourteen years, an offence under Article 207 (Sexueller Missbrauch von Unmündigen) of the Criminal Code.

On an unspecified date the Vienna Public Prosecutor’s Office charged the applicant with those offences.

On 1 June 1999 the Vienna Regional Court acquitted him of these charges.

In July 1999 the Vienna Federal Police Department conducted investigations in respect of the second applicant on suspicion of his having committed offences under Article 207 and 209 of the Criminal Code.

On an unspecified date the Vienna Public Prosecutor’s Office charged the second applicant with those offences.

On 18 November 1999 the Vienna Regional Court convicted him of having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen under former Article 209 of the Criminal Code and sentenced him to one year’s imprisonment. He was acquitted of the other charges.

In January 2001 the Vienna Federal Police Department conducted investigations in respect of the second applicant on suspicion of his having produced pornographic pictures of persons under the age of fourteen, an offence under Article 207a of the Criminal Code (Pornographische Darstellungen Minderjähriger), and of having committed an offence under Article 209 of the Criminal Code.

On an unspecified date the Vienna Public Prosecutor’s Office charged the second applicant with an offence under Article 209 of the Criminal Code.

On 6 April 2001 the Vienna Regional Court convicted him as charged and sentenced him to one year’s imprisonment.

On 8 May 2006 the second applicant lodged a request with the Vienna Federal Police Department for the deletion of the electronically processed data and the data manually processed in files, and held by the police authorities, concerning these three sets of proceedings.

In a decision of 31 May 2006 the Vienna Federal Police Department informed him that no electronically processed data relating to the above proceedings existed any longer and rejected the request concerning the data processed in paper files.

On an unspecified date the second applicant lodged a complaint against that decision with the Data Protection Commission.

On 29 November 2006 the Data Protection Commission dismissed the complaint. It found that, as regards the non-electronically processed data stored in ordinary paper files, the Data Protection Act and the right to request a deletion was not applicable as such paper files constituted an unstructured compilation of information but not a filing system (Datei) within the meaning of the Data Protection Act. As regards the filing cards and filing registers the Commission noted that on 12 July 2006 the police authorities, after having been invited to comment on the applicant’s complaint, had informed the Commission that all references in these research tools to the issues under Article 209 of the Criminal Code had been rendered illegible (unkenntlich gemacht). In the filing registers, the name and address of the applicant had also been deleted. Under the storage and deletion rules for the Vienna Federal Police Department (Skartierungsvorschrift) copy files were deleted five years following the end of the year of recording, while index cards and filing registers were destroyed after twenty years. In such circumstances the ordinary paper files (“copy files”) relating to investigations in respect of the applicant essentially served the purpose of documenting the activities of the authority and no longer allowed the tracking of sensitive information on the applicant in relation to Article 209 of the Criminal Code. The applicant’s complaint was therefore ill-founded.

On 2 January 2007 the applicant applied for legal aid in order to lodge a complaint with the Administrative Court. In addition, he proposed that the case be referred to the Court of Justice of the European Communities for a preliminary ruling.

On 8 January 2007 the Administrative Court, referring to its case-law in similar cases, dismissed the request for legal aid for lack of prospects of success.

On 13 March 2007 the applicant lodged a complaint with the Constitutional Court.

On 24 September 2007 the Constitutional Court, referring to its previous case-law (in particular its decision of 7 March 2007 in the first applicant’s case – see paragraphs 21-22 above), declined to deal with the case because it lacked any prospect of success.

Article 209 of the Criminal Code, in force until 14 August 2002, concerned consensual homosexual acts and read:

“A male person who after attaining the age of nineteen fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years shall be sentenced to a period of imprisonment of between six months and five years.”

On 21 June 2002, responding to a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.

On 10 July 2002, following the Constitutional Court’s judgment, Parliament repealed Article 209. It also introduced Article 207b, which penalises sexual relations with persons under sixteen years of age under specific conditions and which is formulated in a gender-neutral way. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002.

A more detailed description of the law, the Constitutional Court’s judgments concerning Article 209 of the Criminal Code and its replacement by Article 207b of the Criminal Code can be found in E.B. and Others v. Austria, (nos. 31913/07, 38357/07/ 48098/07, 48777/07 and 48779/07, §§ 48-52, 7 November 2013).

Article 207, paragraph 1 of the Criminal Code reads;

“Anyone who performs a sexual act on a person under the age of fourteen or has a sexual act performed on himself or herself by such a person, with the exception of the offence under Article 206, shall be sentenced to a period of imprisonment of between six months and five years.”

Article 207a, paragraph 1 of the Criminal Code reads:

“Whoever

produces or

offers to someone else, procures, leaves to someone else, shows or makes otherwise accessible

a pornographic image of a person under the age of eighteen shall be sentenced to imprisonment for up to three years.”

The Data Protection Act of 2000 contains the basic provisions governing the protection of personal data including a right of information and a duty to delete (section 27). The Data Protection Act distinguishes between manually recorded data and electronically processed data. Manually recorded data are subject to deletion in so far as they constitute a “filing system”. A “filing system” (Datei) is defined as a structured collection of data (section 4, point 6). A certain degree of organisation is necessary for an amount of manually processed data to qualify as a “filing system”. According to the case-law of the Supreme Court (judgment of 28 June 2000, 6 Ob 148) and the Administrative Court (decision of 21 October 2004, 2004/06/0086), card indexes and lists constitute filing systems, but mere files (Akten) do not. A “paper file” or “copy file” is therefore not deemed to be a filing system within the meaning of the Data Protection Act and is not subject to the right of deletion under this act (decision of the Administrative Court of 21 October 2004 Collection of Decisions A no. 16477/2004).

Section 1 of the Data Protection Act reads:

“(1) Everybody shall have the right to secrecy regarding the personal data concerning him, especially concerning his private and family life, in so far as he has an interest deserving such protection. Such an interest is precluded when data cannot be covered by the right to secrecy because of their general availability or because they cannot be traced back to the data subject (Betroffener).

(2) In so far as personal data are not used in the vital interests of the data subject or with his consent, restrictions of the right to secrecy are permitted only to safeguard the overriding legitimate interests of another; specifically, in the event of an intervention by a public authority, the restriction shall only be permitted on the basis of laws necessary for the reasons stated in Article 8 § 2 of the Convention. Such laws may provide for the use of data (Verwendung von Daten) deserving special protection only in order to safeguard substantial public interests and shall provide suitable safeguards for the protection of the data subjects’ interest in secrecy. Even in the case of permitted restrictions, the intervention with the fundamental right shall be carried out using only the least intrusive of all effective methods.

(3) In so far as personal data concerning an individual are destined for automated processing or for manual processing (that is, in filing systems with no automated processing), everybody shall have, as provided for by law:

the right to obtain information revealing who processes what data concerning him, where the data originated, the purpose for which they are used, and to whom the data are transmitted;

the right to rectification of incorrect data and the right to deletion of illegally processed data.

(4) Restrictions of the rights set out in subsection (3) shall be permitted only under the conditions laid out in subsection (2).”

Section 4 of the Data Protection Act, – which contains a number of definitions, reads, in so far as relevant:

“For the subsequent provisions of this Federal Act the terms listed below shall mean:

’data’ (‘personal data’): information relating to data subjects ... who are identified or identifiable; data are ‘only indirectly personal’ for a controller (Auftraggeber) ..., a processor (Dienstleister) ..., or a recipient of a transmission (Empfänger einer Übermittlung) ... if the data relate to them in such a manner that the controller, processor or recipient of a transmission cannot establish the identity of the data subject by legal means;

’sensitive data’ (‘data deserving special protection’): data relating to natural persons concerning their racial or ethnic origin, political opinion, trade union membership, religious or philosophical beliefs, and data concerning health or sex life;

’filing system” (Datei): structured collection of data accessible via at least one search criterion;”

Section 27 of the Data Protection Act, which concerns the deletion of data, reads, in so far as relevant:

“(1) Every controller shall rectify or delete data that are incorrect or have been processed contrary to the provisions of this Federal Act

on his own initiative, as soon as the incorrectness of the data or the inadmissibility of the processing becomes known to him, or

on a well-founded application by the data subject (Betroffener)

The obligation to rectify data under subsection 1 shall apply only to those data of which the correctness is significant for the purpose of the data application (Datenanwendung). The incompleteness of data shall justify a claim to rectification only if such incorrectness, with regard to the purpose of the data application, results in the information being incorrect in its entirety. As soon as data cease to be needed for the purpose of the data application, they shall be regarded as illegally processed data and shall be erased unless their archiving is legally permitted and the access to these data is specially secured. Any further use for another purpose shall be legitimate only if transmission (Übermittlung) of the data for this purpose is legitimate; the legitimacy of further uses for scientific or statistical purposes is laid down in sections 46 and 47.

(4) The application for rectification or erasure shall be complied with within eight weeks of receipt and the applicant shall be informed thereof, or a reason in writing shall be given as to why the requested erasure or rectification was not carried out.

(5) Within the sphere of the executive agencies responsible for the fields described in section 26 ..., the following procedure shall apply as regards applications for rectification or erasure, in so far as this is required to safeguard those public interests that require secrecy: the rectification or erasure shall be carried out if, in the opinion of the controller, the demands of the data subject are justified. The requisite information for the purposes of subsection 4 shall in all cases be that a check of the controller’s data files (Datenbestand) with regard to the application for rectification or erasure has been performed. The legality of this course of action is subject to review by the Data Protection Commission (Datenschutzkommission) ... and the special complaint procedure before the Data Protection Commission pursuant to section 31 (4).”

The Security Police Act regulates the powers and duties of the authorities dealing with matters of public security and their officers in exercising their functions.

Section 53 of the Security Police Act reads:

“Admissibility of processing data

(1) The police authorities may investigate and further process personal data

for the purpose of fulfilling the duty to provide initial general assistance (section 19);

for the purpose of averting criminal connections (section 16, subsection 1 (2), and section 21);

2a. for extended threat investigation (section 21, subsection 3) under the prerequisites of section 91c subsection 3;

for the purpose of averting dangerous assaults (section 16, subsections 2 and 3, and section 21, subsection 2), including the investigation necessary for averting a threat (section 16, subsection 4, and section 28a);

for preventing potential dangerous assaults endangering life, health, morals, freedom, property or the environment (section 22, subsections 2 and 3) or for preventing dangerous assaults by means of a crime analysis if – because of the type of the assault – repeated commission is likely;

for the purpose of a search (section 24);

in order to be able to maintain public order during a specific event.

(2) The police authorities may investigate and further process data already processed by them in the implementation of federal or regional laws for the purpose of and subject to the prerequisites of subsection 1; they must not, however, compare electronic data within the meaning of Article 141 of the Code of Criminal Procedure. Existing transmission prohibitions remain unaffected.”

Section 57(1) of the Security Police Act reads:

“The security police authorities may establish as data a person’s name, sex, former name, nationality, date of birth, place of birth, address, name of parents and other names and data used by that person and further process these data in a centralized information data base as well as the reason for gathering these data and, if necessary, the reason why the authority has intervened and inform other authorities thereof, if

criminal justice investigations have been instituted against the person concerned.”

Section 58 (1) of the Security Police Act reads:

“Access by the security police authorities as controller to personal data which are stored and kept accessible in accordance with Section 57 (1) must be blocked

as regards no. 6 if there is no longer a suspicion of having committed an offence against the person concerned, at latest five years after entering of the data into the centralized information data base, in case of more than one entry pursuant to no. 6 five years after the latest;”

Section 61 of the Security Police Act reads:

“Admissibility of updating data

The police authorities are entitled to update the personal data used by them if they have lawfully verified more recent data.”

Section 63 of the Security Police Act reads:

“Duty of correction or deletion

(1) If it is found that data which are incorrect or have been investigated contrary to the provisions of this federal Act are being stored, these data shall be corrected or deleted immediately. In the same way, personal data shall be deleted if they are no longer needed for the fulfilment of the task for which they have been used, unless there is a special regulation concerning their deletion.

(2) The police authorities shall examine electronically processed personal data which have remained unchanged for six years to find out whether they need to be corrected or deleted pursuant to subsection 1. For data processed in the Central Information Register, sections 58 and 59 shall apply.”

In a judgment of 16 March 2001 the Constitutional Court found that under Section 63 of the Security Police Act the police authorities had the obligation to supplement and correct data they had collected pursuant to Section 57 (1) 6. of that act and in particular to add the information whether the public prosecutor had discontinued the criminal investigations or the person concerned had been acquitted of the charges as otherwise the data stored must be considered incorrect. In addition, Section 63 and Section 57 (1) 6. of the Security Police Act must be interpreted in conformity with the Federal Constitution, in particular the right to data protection under Section 1 of the Data Protection Act, which means that there exists also the obligation to delete such data once they are no longer necessary for the purpose of criminal justice even before the time-limit set un section 58 (1) 6. of the Security Police Act has expired.

The Storage and Deletion Rules for the Vienna Federal Police Department (Skartierungsvorschrift), an instruction (Erlass) by the Federal Minister for the Interior of 18 September 1992, regulate the elimination and destruction of all documents which were no longer of any use for operational purposes of the Vienna Federal Police Authority. This is done by fixing time limits for storing different categories of documents and the modalities for disposing of these documents after expiry of the time limit. According to Section 5 of the Rules copy files were deleted five years following the end of the year of recording, while index cards and filing registers were destroyed after twenty years.

At the supranational level there are two basic instruments which regulate the protection of personal data in Europe. The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (European Treaty Series no. 108) and the European Union Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995).

The Council of Europe Convention of 28 January 1981 secures in Article 1 “for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him ("data protection")”. Under Article 3 the scope of this Convention is restricted to “automated personal data files and automatic processing of personal data in the public and private sectors”. However according to Article 3 (2) of the Convention “any State may ... give notice by a declaration addressed to the Secretary General of the Council of Europe: (c) that it will also apply this convention to personal data files which are not processed automatically”. Article 6 of the Convention provides that “personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards.” Article 6 also provides that “the same shall apply to personal data relating to criminal convictions”.

Following the Council of Europe Convention of 28 January 1981 there has also been adopted Recommendation No. R(87)15 of the Committee of Ministers to Member States Regulating the Use of Personal Data in the Police Sector (17 September 1987), which deals with the collection and processing of particular sensitive personal data including necessary safeguard measures. As the Convention the Regulation only applies to “the collection, storage, use and communication of personal data for police purposes which are the subject of automatic processing”, but it also provides that “manual processing of data should not take place if the aim is to avoid the provisions of this recommendation”.

Within the European Union Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as in force at the relevant time, regulates the protection of personal data. According to Article 1 “Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data”. Personal data within the meaning of the directive are any information relating to an identified or identifiable natural person (Article 2 (a)) and "processing of personal data" is “any operation or set of operations which is performed upon personal data, whether or not by automatic means” (Article 2 (b)). Article 3 delimits the scope of the Directive, this provision reads as follows:

“1. This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.

This Directive shall not apply to the processing of personal data:

in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law;

by a natural person in the course of a purely personal or household activity.”


Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants, Mr Antal Lazarov and Ms Irena Lazarov, were Serbian nationals, who were born in 1928 and 1929 respectively and lived in Pančevo. They were represented before the Court by Ms M. Bosilj, a lawyer practising in Pančevo. Mr and Ms Lazarov died on 3 April 2011 and 9 December 2011 respectively.

On 3 August 2012 the applicants’ daughter, Ms Elizabeta Đurić, informed the Registry that she wished to pursue the case before the Court. She also informed the Court that she wished to be represented by Ms M. Bosilj and submitted a power of attorney to that effect.

The Government did not contest that request.

Given the fact that Ms Elizabeta Đurić has a “definite pecuniary interest” in the proceedings in issue (see, mutatis mutandis, Mijanović v. Montenegro, no. 19580/06, § 55, 17 September 2013, and Marčić and Others v. Serbia, no. 17556/05, §§ 35-39, 30 October 2007), the Court finds that she has standing to proceed in her parents’ stead. Although Ms Đurić is therefore now the applicant, the Court will continue to refer to the late Mr and Ms Lazarov as the applicants.

The Serbian Government (“the Government”) were represented by their Agent at the time, Mr S. Carić.

summarised as follows.

The applicants owned a house in Pančevo measuring 78.41 square metres and a plot of land next to it.

On 14 October 1976 the applicants entered into an agreement (sporazum) with the Municipality of Pančevo (“the Municipality”). Under the agreement, they agreed to the expropriation of their house and the adjacent plot of land, while the Municipality undertook to provide them with a comfortable flat with two separate rooms (dvosoban komforan stan) in the Tesla neighbourhood of Pančevo and 635,000 Serbian dinars (RSD). RSD 555,000 was paid immediately, while another RSD 80,000 was to be paid after the Municipality took possession of the house.

On 14 December 1976 the Municipal Secretariat for Housing and Communal Affairs and Urbanism issued a decision expropriating the house and transferring it into social ownership. The applicants continued to live in the house while the adjacent plot of land was used for the construction of an apartment building.

As the Municipality had failed to provide them with an appropriate flat, on 24 March 1979 the applicants filed a civil action against it, requesting to have an appropriate flat allocated to them or to be paid compensation for their house.

By 1982 an apartment building had been built next to the applicants’ house. On an unspecified date in 1982 the Municipality offered them a flat in the complex, which measured 52.25 square metres. The applicants refused to move into the apartment, as they considered it unsuitable.

On 13 October 1982 an expert appointed by the Municipality found that both the house in which the applicants were living and the flat which the Municipality was offering were comfortable, but that the house, being bigger, was a more suitable home.

The Municipality does not appear to have ever suggested any other form of compensation.

The applicants continued to live in the house. The change of ownership was not registered with the land registry.

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

On 9 May 1979 the applicants withdrew their civil action against the Municipality, and the proceedings formally ended on 14 May 1979.

On 9 February 1995 the applicants filed another civil action against the Municipality, requesting the RSD 80,000 and that a sixty-square-metre flat with two separate rooms be allocated to them.

On 21 February 1996 the applicants withdrew their civil action again.

On 9 March 1998 the applicants entered into a new agreement with the Municipality. Under this agreement, the applicants were registered as the occupiers of the house in which they lived, and the Municipality was registered as the sole occupier of the plot of land on which the apartment building had been constructed.

The Government submitted that this agreement had settled the dispute between the applicants and the Municipality, and that the 1976 expropriation order was no longer effective.