BULGARTSVET-VELINGRAD OOD AND KOPPE v. BULGARIA

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant company, Bulgartsvet-Velingrad OOD, is a limited liability company created in 1992. It is registered in Velingrad, Bulgaria. The applicant, Mr Konstantin Mihaylov Koppe, is a German national who was born in 1943 and lives in Germany. The applicants were represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government were represented by their Agents, V. Hristova, M. Kotseva and M. Dimova, of the Ministry of Justice.

The German Government, informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court, have not availed themselves of this opportunity.

The applicant held a fifty per cent stake in the applicant company. The other fifty per cent was held by Fabrika 12 EOOD, a Bulgarian limited liability company wholly owned by the applicant.

On 3 February 1998 another company, Oranzherii Pazardzhik EAD (“OP”), a state-owned limited liability company, was declared insolvent and insolvency proceedings were opened. Following a public auction of part of its property, on 24 March 1999 the applicant company acquired several greenhouses. However, in a final decision of 22 November 1999 the auction was cancelled.

Pending a new auction, on 14 December 1999 OP, represented by its trustee in insolvency, and the applicant company signed a contract pursuant to which the applicant company was appointed guardian of the greenhouses until they were sold. The applicant company undertook to maintain the greenhouses’ equipment and to carry out urgent repair works. In the meantime the applicant company was entitled to use the property and in exchange undertook to pay monthly rent.

In addition to the repairs indicated in the contract of 14 December 1999, the applicant company carried out substantial works on the greenhouses, which it alleged were necessary for the latter’s proper functioning. On an unspecified date it requested the trustee in insolvency of OP to reimburse the costs of those works. Initially the trustee included those costs in the list of accepted claims against OP. Later, however, following an objection by one of the other creditors of OP, which was based on the fact that the costs were substantial, had not been approved by the creditors and had been incurred after the beginning of the insolvency proceedings, in a decision of 4 July 2000 the trustee removed this claim from the list.

In a final decision of 11 July 2000, the Pazardzhik Regional Court upheld the removal, as it was not satisfied that the additional works had been urgent and necessary. Moreover, the works had not been authorised by the trustee and the remaining creditors. The Regional Court considered that a creditor such as the applicant company, with a claim which had not been agreed in the insolvency proceedings, could make that claim in separate civil proceedings.

On 31 October 2000 the applicant company brought a civil claim against OP and also against the Ministry of Agriculture, as a representative of the State, which owned OP’s capital. Initially it sought 100,000 Bulgarian levs (BGN) (the equivalent of 51,072 euros (EUR)), representing part of the repair costs. In the course of the proceedings it increased its claim to BGN 1,195,520 (approximately EUR 610,582), claiming that OP had unjustly enriched itself by that amount. The applicant company did not seek to have its claim included in the list of accepted claims prepared by the trustee, but argued that it was entitled to receive payment prior to the distribution of any amounts obtained through the sale of the property of OP among the remaining creditors.

In a judgment of 30 October 2001, the Sofia City Court granted the claim against OP. It found that the applicant company had been unable to claim or receive payment in the course of the insolvency proceedings, and that therefore it was open to it to do so in separate civil proceedings. It went on to say that the repairs had been necessary, that the defendant company had unjustly enriched itself, and that it had had to reimburse the costs of the repairs. It accepted the applicant company’s argument that it had been a “third party” to the insolvency proceedings, and that it was entitled to receive payment outside those proceedings. Thus, the domestic court ordered OP to pay the applicant company the amount of BGN 1,195,520, plus interest and costs.

On the other hand, the Sofia City Court dismissed the applicant company’s claim against the Ministry of Agriculture, finding that the latter could not be held liable for OP’s debts.

OP appealed against the above judgment, but its appeal was rejected as inadmissible in a final decision of the Supreme Court of Cassation of 17 May 2002. As a result, the Sofia City Court’s judgment became final.

On 9 June 2002 OP requested the reopening of the proceedings, claiming that it had not been properly summoned to the first two hearings in the case, held on 11 December 2000 and 12 February 2001. In a judgment of 14 March 2003 the Supreme Court of Cassation allowed the request and reopened the proceedings.

After a fresh examination of the case, in a decision of 22 March 2004 the Sofia City Court discontinued the proceedings in respect of OP. It held that the claim was precluded by virtue of the provision of the newly introduced section 637(5) of the Commerce Act (“the CA”, see paragraph 25 below), which concerned procedural rights and was therefore applicable to pending proceedings.

As regards the proceedings against the Ministry of Agriculture, the Sofia City Court observed that they were still pending.

On appeals by the applicant company, on 9 May and 6 August 2004 respectively the Sofia City Court’s conclusions were upheld by the Sofia Court of Appeal and the Supreme Court of Cassation.

The Supreme Court of Cassation considered in addition that the applicant company should have lodged a claim under section 694 of the CA (see paragraph 24 below) within the insolvency proceedings.

The applicant company submits that it became aware of the Supreme Court of Cassation’s decision of 6 August 2004 on 14 September 2004.

Following the discontinuation of the proceedings in so far as they concerned OP, the proceedings continued against the Ministry of Agriculture.

In a judgment of 23 January 2008, the Sofia City Court rejected the applicant company’s claim against the Ministry. It noted that it had ordered OP to provide several invoices which it considered relevant. Those invoices had not been presented (OP had in the meantime been wound up); accordingly, the domestic court found that the claim had not been proved.

The applicant company did not lodge an appeal against the above judgment, as it was entitled to do under domestic law.

The applicant company used the greenhouses until 2002, when it was evicted. The greenhouses were sold at a new public auction in 2004.

Company insolvency is governed by Part IV of the Commerce Act (“the CA”) of 1991. Since its enactment in 1994, its provisions relating to company insolvency were amended on numerous occasions.

Pursuant to section 685 of the CA, creditors had to declare their claims against the insolvent company. The trustee in insolvency then prepared a list of accepted claims. Refusal by the trustee to accept a claim and include it in the list could be contested before the insolvency court. A creditor could also object to a decision to accept another creditor’s claim. At the relevant time, the trustee would decide on the matter and then submit the list for approval to the insolvency court.

By section 694 of the CA, introduced in October 2000 and as worded at the time, a creditor whose claim had not been accepted and included in the list could also bring an action for a declaration seeking to establish the existence of the claim. Such an action could be brought within fourteen days of the entry in the company register of the insolvency court’s decision approving the list of accepted claims. If the claimant was successful, the claim was to be satisfied within the insolvency proceedings. A similar provision existed in the CA until June 1998, when it was repealed.

Until the end of June 2003 there was no provision which explicitly allowed or barred the bringing of a civil claim against an insolvent company separately from the insolvency proceedings against that company, and there was no well-established practice of the domestic courts in this regard. Following amendments to the CA of June 2003, a bar to such claims was introduced (initially section 637(5), currently (6)).


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Dmitry Dedov;Erik Møse;Guido Raimondi;Helen Keller;Julia Laffranque;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Paul Lemmens;Pauliine Koskelo;Paulo Pinto De Albuquerque;Síofra O’Leary;Stéphanie Mourou-Vikström;Yonko Grozev;Ksenija Turković

The applicant was born in 1949 and lives in Makhachkala, Republic of Dagestan, Russia.

On 25 April 2006 the applicant’s son, Murad Nagmetov, participated in a public gathering in the village of Miskindzha, in the Dokuzparinskiy district of Dagestan. Several hundred people took part, alleging corruption by local public officials. At around 3 p.m. officers from the special mobile unit encircled the participants and fired several warning shots into the air.

Thereafter the gathering was dispersed by the authorities with the use of firearms (see also Primov and Others v. Russia, no. 17391/06, §§ 1518, 12 June 2014). Murad Nagmetov was wounded by a tear-gas grenade and died from his wounds. Five other people were seriously wounded; a large number of people sustained injuries and were arrested.

On the same day the prosecutor of the Republic of Dagestan initiated criminal proceedings on charges of murder and illegally handling firearms (Articles 105 and 222 of the Criminal Code) and assigned the case to an investigator.

A forensic expert examined the deceased’s body and extracted the objects that had killed him.

On the same day, the investigator commissioned a ballistics report from the Forensic Expert Centre of the Dagestan Ministry of the Interior to determine the type of the grenade, the type of rifle used to fire it and whether the grenade had striae that could be used to identify that rifle.

On 11 May 2006 the ballistics expert issued a report and concluded as follows:

“1. The forensic expert was given the following two objects for examination: a grenade with a special charge; and an obturator with a special charge (a 23 mm cartridge used with a carbine type KS-23 (KS-23M)). It has not been possible to determine the exact make of the tear-gas grenade.

... It would not be possible to use the obturator on the body of the grenade to identify the specific weapon used. It would however be possible to use the separate obturator to identify the weapon used, if the weapon were provided for examination.”

On 26 June 2006 the investigating authority commissioned another ballistics report to identify the rifle used to fire the grenade extracted from the body of the applicant’s son. On 6 July 2006 the Forensic Expert Centre of the Dagestan Ministry of the Interior declined to carry out an examination, referring to the absence of “facilities or equipment for test-shooting 23 mm canisters with special gases”.

On an unspecified date, a number of carbines used by officers of the special mobile unit on 25 April 2006 were seized.

In July and August 2006 the investigating authority commissioned ballistics reports from the Forensic Expert Centre of the Dagestan Ministry of the Interior and another local expert institution. However, the reports were not produced, apparently, on account of lack of sufficient technical facilities.

On 6 September 2006 the Federal Office of Forensic Examination of the Federal Ministry of Justice was asked to prepare a ballistics report in order to determine which rifle had been fired at the victim. The investigating authority submitted the objects extracted from the victim’s body, as well as thirteen carbines.

On 19 October 2006 the authorities took the decision to open another criminal case concerning the charge of abuse of power by a public official causing death (Article 286 of the Criminal Code). It appears from the decision that it concerned persons other than the applicant’s son. The decision read as follows:

“It was established that police officers had had recourse to firearms ... Officers from the special mobile unit fired gunshots, using 23 mm cartridges, and teargas grenades, acting in violation of a directive dated 5 November 1996 and in excess of their powers... It is prohibited to fire these tear-gas canisters at a person. As a result, Mr N. and Mr A. sustained injuries.”

The above-mentioned cases were subsequently joined.

On 8 November 2006 the Federal Office of Forensic Examination issued a report, the relevant parts of which read:

“ ... As the relevant 23 mm cartridges had not been submitted for test shots, a request for 23 mm Volna cartridges was made to the relevant department of the Ministry of the Interior of the Russian Federation ... [Footnote: Volna cartridges are used for training purposes relating to the use of KS-23 and KS-23M carbines. These cartridges are similar to those normally used with these carbines. The only difference is that they do not contain the irritating chemical substance.] ...

The research part

... I note that the tear-gas grenade has no striae left by the carbine used to fire it. This may be explained by the fact that the grenade could not have had contact with the interior of the carbine as it had been loaded into it with the aid of two obturators ...

Test shots have been carried out in respect of the KS-23 and KS23M carbines that were submitted for the examination. The purpose of the test shots was to observe the striae left on the obturators of the grenades fired from these carbines, and to compare the striae with the striae left on the obturator of the grenade used against the victim. I have used 23 mm Volna cartridges for the test shots. These cartridges are similar to those that were submitted for the examination ...

... In view of the variance of the results of the test shots, it was impracticable to identify the relevant carbine on the basis of the striae left on the obturators ... in particular, on account of the elasticity and low thermo-resistance of the material used in the obturators ...”

On 15 November 2006 another ballistics report was requested from the Forensic Science Institute of the Federal Security Service (“the Institute”). The Institute was likewise provided with thirteen carbines and the objects extracted from the victim’s body.

On 26 February 2007 the expert from the Institute issued a report stating that it was not practicable to determine which of the examined carbines had been used to shoot the cartridge. The forensic expert explained that she had been provided with Volna cartridges for the purpose of her research and for test shots, whereas the elements extracted from the victim’s body were parts of a grenade. The forensic expert specified that Volna cartridges and tear-gas grenades had “different geometric parameters and are made of materials with different characteristics”.

On 26 February 2007 the investigating authority suspended the investigation.

On 30 August 2007 the applicant’s other son, Mr Rafik Nagmetov, brought court proceedings challenging the alleged inaction of the investigating authority. In a judgment of 8 October 2007 the Sovetskiy District Court of Makhachkala dismissed the complaint. The court held as follows:

“Over seventy people were interviewed in the course of the investigation. The necessary (medical, ballistics, criminological) examinations were carried out ... All carbines which had been used by the officers were seized ... All relevant officers were identified ... The logbooks concerning distribution of weapons and ammunition were examined ... On three occasions three different expert institutions were asked to submit ballistics reports. The requests were not complied with on account of the absence of the necessary equipment ... Attempts were made to identify the relevant rifle in other expert institutions ... Those were not equipped for this kind of forensic examination ... In consequence, the Federal Office of Forensic Examination was not able to identify the weapon ... Another request is pending before the Forensic Science Institute of the Federal Security Service ... Thus, the investigating authority has carried out all the investigative measures that were possible in the absence of an identified suspect.”

On 14 January 2008 the Supreme Court of the Republic of Dagestan upheld the judgment.

The applicant’s son, Mr Rafik Nagmetov, also sought judicial review of the suspension decision of 26 February 2007. On 25 July 2008 the District Court held that the suspension of the investigation was justified. However, on 8 September 2008 the appeal court quashed the judgment and ordered a re-examination of the complaint. In a judgment of 6 October 2008 the District Court granted the complaint, considering that by failing to submit appropriate comparative material to the forensic expert, the investigating authority failed to take “exhaustive measures aimed at identifying the perpetrator”.

On an unspecified date, the applicant became aware that the evidence extracted from the body of his son had been lost.

In November 2009 the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence.

On 16 December 2009 the investigation was resumed. It appears that the investigating authority took some measures to clarify what had happened to the evidence. In particular, armourers from the special mobile unit were interviewed. The investigator also made an enquiry with the Institute referring to his difficulties in interpreting the report of 26 February 2007. It remains unclear what reply was received to this enquiry.

According to the Government, the enquiry about the loss of evidence yielded no specific results, in particular on account of the death of the investigator in the case and the redeployment of the investigation unit.

On 16 January 2010 the investigator again suspended the investigation.

On 21 February 2011 the acting prosecutor of the Republic of Dagestan determined that this decision was unlawful and ordered a resumption of the investigation. The decision reads as follows:

“Having examined the file, I conclude that the investigation did not exhaust the measures aimed at establishing the circumstances of the crime, at collecting the evidence and identifying the rifle used to cause the victim’s death ... In particular, the request for a ballistics report to the Institute was submitted with Volna cartridges instead of the type of cartridges used for causing the victim’s death. The different geometric parameters of these cartridges prevented the experts from identifying the carbine used against the victim ...

Following the resumption of the investigation in December 2009 the investigator merely made an enquiry instead of actually submitting grenades for comparative research ...

It does not follow from the expert report of 26 February 2007 that it would have been impossible to identify the rifle, provided that cartridges of the relevant type were provided.

The evidence extracted from the victim’s body was examined for the purposes of the above expert report. Thus, the current unavailability of this evidence is not an obstacle to seeking a new ballistics report from the same institution.”

Following the resumption of the investigation the investigator made enquiries with the Institute about the possibility of carrying out a ballistics examination in the absence of the evidence extracted from the victim’s body. While it remains unclear what reply was received from the Institute, it does not appear that any new ballistics examination was carried out.

On 17 April 2011 the investigating authority issued a decision suspending the investigation. This decision reads as follows:

“It follows from the evidence in the case file that on 25 April 2006 inhabitants of nearby villages and other people blocked the road with stones and logs ... In reply to lawful orders from the police requiring them to disperse, unidentified people threw stones at the police, causing various physical injuries to eleven officers. The police officers used firearms to retaliate...

Officers of the special mobile unit fired shots with their pump-action shotguns towards the crowd, using 23 mm cartridges, and a tear-gas grenade. In so doing they violated a directive dated 5 November 1996 ... and acted in excess of their powers. As a result, [the applicant’s son] and others sustained shotgun wounds ... causing [him] to die on the spot.

It is impossible to commission another ballistics report in the absence of the cartridge. It has not been possible to identify the person who shot [the applicant’s son].”

The applicant did not challenge this decision.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention, which were incompatible with their disabilities. In application no. 35782/12 the applicant also raised other complaints under the Convention, including under Article 13 of the Convention that he did not have an effective remedy to complain about the poor conditions of his detention.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in 1951 and lives in Kragujevac.

On 13 July 2006 the applicant filed a civil suit together with 18 other persons with the Kragujevac Municipal Court against his former employer Telekom Srbija AD Beograd requesting the payment of funds from profit made in 2005.

The applicant’s previous representative did not attend first preliminary hearing fixed for 15 November 2006, since he had been deleted from the register of the attorneys–at-law in May 2006. The applicant appointed the present representative on 25 January 2007.

The preliminary hearing was held on 13 February 2007.

On 27 August 2007 the proceedings were split to separate proceedings for each of the plaintiffs concerned.

The preliminary hearing was held on 21 March 2008.

Within the period from 21 October 2008 until 29 April 2011 seven out of eight hearings were postponed for various reasons, mainly because the representatives on the both sides provided new submissions and evidence and on the proposal of both sides due to the cost-efficiency of the proceedings.

On 29 April 2011 the Kragujevac First Instance Court ruled against the applicant.

On 20 February 2012 the Kragujevac Appeals Court upheld that judgment.

On 27 June 2013 the Constitutional Court rejected the applicant’s appeal.


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1966 and is detained.

In early August 2009 preliminary proceedings were initiated against the applicant based on the suspicion that he had committed violent acts against his spouse, R.K. On 6 August 2009 R.K. was examined at the request of the public prosecutor’s office by the investigating judge, W., after the latter had decided, at the suggestion of the public prosecutor’s office, to exclude the applicant from the hearing under Article 168c § 3 of the Code of Criminal Procedure, since there was a risk, given the nature of the reported offences, that R.K. would not testify or would not tell the truth in the applicant’s presence.

On 7 August 2009 the investigating judge, at the request of the public prosecutor’s office, issued an arrest warrant for the applicant and also assigned counsel to him.

On 25 September 2009 the applicant was arrested and detained on remand. On 15 October 2009 the Arnsberg Regional Court assigned a lawyer of his choice as his counsel.

On 3 May 2010 the Arnsberg Regional Court opened the main proceedings against the applicant. R.K., who was also summoned to appear on that date, informed the court that she did not wish to give evidence.

At the hearing of 28 May 2010, the investigating judge was examined on the evidence he had obtained from his examination of R.K. on 6 August 2009. The Regional Court rejected an objection by the applicant’s counsel on the grounds that it was permissible to examine the investigating judge even if the applicant’s rights under Article 6 § 3 (d) of the Convention had been breached by R.K.’s examination. Only when adjudicating the case could it be decided whether the investigating judge’s statements could be admitted as evidence or not, which, in line with the Court’s case-law, would depend on whether it had been corroborated by other significant factors independent of that evidence.

At that same hearing, Officers Ra. and Rü. were examined as witnesses with regard to the description of events given to them by R.K. when they had arrived at M.’s home on 2 August 2009 (see paragraphs 2728 below). The applicant’s counsel objected to the use of the evidence obtained from the examination of these two witnesses on the grounds that “the depicted facts cannot be separated chronologically and sequentially”.

At the hearing of 10 June 2010, R.K. stated that she did not consent to the use of the evidence which she had provided to the investigating judge, to Officers Ra. and Rü. and to the court-appointed medical expert; nor did she consent to the use of the results of the medical examination.

On 28 June 2010 the Regional Court convicted the applicant on four counts of dangerous assault, one of these in concurrence with coercion, as well as of maliciously inflicting bodily injury in concurrence with attempted coercion, of coercion and of wilful driving without a licence. The Regional Court sentenced the applicant to six years and six months’ imprisonment. In addition, it ordered his subsequent preventive detention, finding that the applicant had a dissocial personality disorder and that there was a very high likelihood that he would commit similar offences in the future.

In the 1990s, the applicant was convicted several times of, inter alia, several different counts of assault against his respective partners at different times. He met his third wife, R.K., in the summer of 2008. Their relationship was from the outset marked by the applicant’s violent behaviour towards R.K., which escalated in July 2009.

On 31 July 2009 in their marital home the applicant asked R.K. about her past sex life. He then beat her on different parts of her body and kicked her. Following this he asked her to go to the basement and, while going there, stubbed out a cigarette on her neck. When they arrived in the basement, he asked her to write a letter to the wife of a former lover of hers and to confess to adultery. When R.K. refused, he delivered several blows all over her body, including her head and face, and also beat her with a wooden hiking pole. R.K. then promised to write the letter. The following evening the applicant asked her again to write the letter and delivered blows with his fist, primarily to her head. After having left R.K. alone in the living room, the applicant later returned with a mattress and demanded that she undress and to lie down on her stomach. He then beat her with a thin rope on her back, before forcing her to carry out sexual acts on herself.

On the morning of 2 August 2009, R.K. started to write the said letter by hand. When reading the draft, the applicant was angry about its content. R.K. stated that she would write it again. The applicant delivered blows with his fist, mostly to her head, and also beat her with his shoes on the back of her head. He then stubbed out a cigarette on her left breast. R.K. tried to run away but fell down in the hallway. The applicant then choked her so that she could not breathe. In unknown circumstances, R.K. managed to escape and ran into the street in panic, crying for help.

There, she ran into S. and Ke., the latter telling her to go to the home of the M. family. She ran over and rang the bell. M. opened the door and let her in. Ke. [probably S., see paragraphs 24 and 26 below] went to the house of the Sch. family and called the police from there. During that call, Mr and Ms Sch. went outside and saw the applicant leave the home and drive off. They reported the number plate of the car to Ke. [S., see above], who passed it on to the police. Inside the house, M.’s mother gave R.K. a towel, which she put on the back of her head, from where she was visibly bleeding. A few minutes later two police officers, Ra. and Rü., arrived.

On that same day, R.K. was admitted to a women’s shelter. She showed the counsellor there, N., several marks of injury on her head and other parts of her body and described the bodily harm and coercion to which the applicant had subjected her in the period from 31 July to 2 August 2009.

The investigating judge, W., stated that he had questioned R.K. for some two hours on 6 August 2009 at the request of the public prosecutor’s office (see paragraph 6 above). She had described a multitude of acts of domestic violence in the course of the marriage, which had increased over time, and repeatedly stated that she loved the applicant, which was why she had not come forward before. The violence between 31 July and 2 August 2009 had constituted an escalation and had been too much for her, rendering their living together impossible, which was why she was now ready to testify against the applicant. She had described the events of between 31 July and 2 August 2009 as several acts of torment stretched out over the whole weekend with some breaks in between. He had asked her about every single incident, to which she had given definite and detailed accounts of each, including beatings with a rope, a wooden hiking pole and shoes, as well as being forced to carry out sexual acts on herself. Her account had been consistent and she had not been evasive, maintaining eye contact throughout. She had repeatedly stated that the applicant had beaten her between 31 July and 2 August 2009 in connection with a letter which the applicant had wanted her to write to the wife of a former lover of hers; she had started to write that letter by hand.

R.K. later retracted her statements as reported by the investigating judge and made voluntary disclosures on 2 December 2009 and on 20 April 2010 to the police for having wrongfully incriminated the applicant, claiming that he had not been at home between 31 July and 2 August 2009 and that a third person had injured her. On 23 April 2010 R.K. submitted a written statement to the Regional Court retracting the voluntary disclosures of 2 December 2009 and 20 April 2010.

The only statement the applicant made during the trial was to confirm that he did not have a driving licence. He did not comment on the remainder of the charges against him.

N., the women’s shelter’s counsellor, testified that she had received a copy of the police report and had discussed the report and the events with R.K. when she had been admitted to the shelter on 2 August 2009 in a severely traumatised state. R.K.’s statements had been consistent with the police report. She had provided a detailed account of all the incidents that had taken place between 31 July 2009 and 2 August 2009, and had consistently named the applicant as the perpetrator. That same evening, she had also showed her her injuries, in particular bleeding head wounds, burn marks on her left breast and neck, and several bruises and weals on her back. N. had discussed the violent events with R.K. up until the former’s examination before the Regional Court. Throughout these discussions, R.K.’s account had been consistent.

Re.K., R.K.’s son, who had been born in 1997, stated that on 2 August 2009 he had been in his room from where he had heard the applicant and R.K. having an argument and screaming. He had later learned that his mother had been at a neighbour’s home, where he had met her together with the police officers. His mother had been pressing a cloth against her head. He had then gone to the hospital together with her. He had not seen what had happened in the house and had, overall, not noticed much of the events that had occurred that weekend.

S., a witness, said that he had been at a local sports meeting with another witness, Ke., on 2 August 2009. At around midday, when they had been walking in the direction of the village, R.K. had run towards them on G. Street, shouting “Help! Help! My husband is going to kill me!” R.K. had been so shocked and disturbed that she had not been able to speak clearly. S. had advised her to go to the home of the M. family. He himself had then gone to the home of the Sch. family to call the police. While he had been on the phone to the police, Ms Sch. told him that the applicant had driven off. Ms Sch. had then given the registration number to S., who passed it on to the police. When S. had gone back outside, he had met Re.K., who had been shaking, and had asked him about R.K. He had then led the police to the house of the M. family. When the door had opened, he had seen R.K. sitting on the stairs, with a bloody cloth pressed on her head. The police then took charge and he left the scene.

M., a witness, stated that one Sunday, the doorbell rang. R.K. was standing outside, shouting “My husband, my husband! He’s out to get me. He mustn’t see me.” R.K., who had been terrified, immediately entered the house and sat down on the stairs. She had been bleeding from her head. Later, the police had arrived and called an ambulance. M.’s mother added that she had given R.K. a towel for her bleeding head wound and that R.K. had repeatedly expressed fear of her husband. She had never seen a woman so terrified before, which had overwhelmed her so much that she had not asked R.K. about what had happened.

Ms Sch., a witness, testified that S. had rung her door bell on 2 August 2009. S. had told her that he had had to call the police as it had seemed that the applicant had harmed his wife. She had then gone outside her house and looked towards the applicant’s house located only a few metres away. She had observed the applicant leaving his house and driving off. She had told that to S., who had asked her to spell out the car’s number plate, which she had done. Mr Sch. made similar statements.

Officers Ra. and Rü. explained that they had been patrolling together on 31 July 2009 when they had received the call to drive to the village B., where a woman had run out of a house screaming and had been hiding at a neighbour’s residence. Several persons had been present when they had arrived at the scene, informing them that R.K. had been at the house of the M. family. When they had gone there, they had found R.K. in shock, pressing a cloth to the back of her head. When Ra. had asked her what had happened, she had stated that her husband had beaten her. R.K. had then given additional evidence, which was later discarded (see paragraph 34 below). She had had a bleeding wound on the back of her head and visible facial bruising. In the beginning, she had been shaking so much that it had not been possible to question her.

A draft letter to the wife of a former lover of hers, in which R.K. stated that she wanted to clear up her life and that adultery was a sin, was read out before the Regional Court. Officer Ra. had stated that R.K., after having made her statement to the police and having been examined in hospital, had asked to be admitted to a women’s shelter. She had requested that they stop by the marital home beforehand and for the police officers to accompany her. Besides taking some of her belongings, she had given the letter to Ra. and asked him to keep it. Ra. had included the letter in the case file.

Another letter by R.K. of 26 September 2009, addressed to the applicant, was read out before the Regional Court, in which she described examples of acts committed by him from 31 July 2009 onwards, reporting the assaults, humiliations and sexual acts to which she had submitted for fear of receiving even more blows.

The Regional Court relied, inter alia, on the testimony R.K. had given at her examination by the investigating judge. It considered that the applicant had rightly been barred from attending that hearing. However, since Article 6 § 3 (d) of the Convention guaranteed the applicant’s right to examine or have examined witnesses against him, defence counsel should have been appointed for the applicant so that the latter could examine R.K. at that hearing. Yet, the mere fact that neither the applicant nor his counsel had had the opportunity to cross-examine R.K. did not automatically constitute a breach of Article 6 §§ 1 and 3 (d) of the Convention. It was decisive whether the proceedings in their entirety, including the manner in which evidence had been taken and assessed, had been fair. Where the lack of an opportunity to cross-examine a witness had been a result of procedural errors imputable on the judiciary, as in the present case, the Court found a breach of the Convention where the conviction had been based to a decisive extent on the evidence of the untested witness. A conviction could thus only be based on untested evidence where it was corroborated by other significant factors independent of that evidence. In the present case, the applicant’s conviction could be based on R.K.’s statements as reported by the investigating judge, for they were corroborated by other significant factors independent of them.

In this regard, the Regional Court referred to R.K.’s letter of 26 September 2009, in which she had described examples of acts committed by the applicant from 31 July 2009 onwards, reporting the assaults, humiliations and sexual acts to which she had submitted for fear of receiving even more blows (see paragraph 29 above). Her statement that the applicant had struck her in order to make her compose a letter to the wife of a former lover of hers had been corroborated by the draft letter with the content she had described which she had given to Ra. (see paragraph 28 above). Both letters had been admitted as evidence, as a witness’s written statements could be admitted even in a case where he or she lawfully refused to give evidence at trial.

Moreover, witness N. of the women’s shelter in which R.K. had sought refuge had, on the day of R.K.’s admission to the shelter, observed wounds in the head area, some of which had been bleeding, and burn marks on R.K.’s left breast and neck as well as various bruises and weals on her back which R.K. had shown her. During her stay in the shelter, R.K. had repeatedly described to N. the details of the applicant’s violent acts (see paragraph 22 above).

Re.K., R.K.’s son, who was in the marital home on 2 August 2009, stated that he had heard the applicant and R.K. having an argument and screaming (see paragraph 23 above). Other witnesses reported that R.K. had run into the street in panic that day, with a bleeding wound on the back of her head, and had subsequently sought refuge with the M. family until the police had arrived, while the applicant had been seen leaving the house and driving off following that (see paragraphs 24-27 above). Therefore, the Regional Court was convinced that R.K.’s subsequent voluntary disclosures, in which she had mainly claimed that the applicant had not been at home and which she had subsequently retracted (see paragraph 20 above), had not been truthful.

R.K.’s initial statements to Officers Ra. and Rü., as reported by them (see paragraph 27 above), were possible to admit as evidence despite R.K. subsequently invoking her right to remain silent, as they were to be qualified as a “spontaneous utterance”. At the same time, the Regional Court did not take into account the additional evidence given to the police by R.K. (see paragraph 27 above), as the police had not been sure at which point they had informed her of her right to remain silent.

On 29 June 2010 the applicant, represented by counsel, lodged an appeal on points of law against the judgment. He argued that evidence obtained in breach of the right of confrontation enshrined in Article 6 § 3 (d) of the Convention must never be admitted, regardless of its importance. The importance of the untested evidence in relation to the other evidence used by the court must not be decisive. Nor did it matter whether the court of first instance had undertaken a particularly careful examination of the evidence of the untested witness, as the breach of the right of confrontation could not be counterbalanced. Furthermore, in the light of R.K.’s subsequent invocation of her right to remain silent, the Regional Court had wrongly admitted the evidence given by the police officers Ra. and Rü. R.K.’s statements to the police officers had not been a “spontaneous utterance”, as the latter had been called to the scene because a woman had run out of a house screaming and had been hiding at a neighbour’s house and had, on arrival, asked her what had happened (see paragraph 27 above).

In a written submission of 8 November 2010 the Federal Public Prosecutor General argued that the examination of the investigating judge, resulting in the use of the untested evidence given by R.K., had not rendered the proceedings unfair. The evidence given by R.K. to the investigating judge had been corroborated by other significant factors independent of her evidence. Moreover, the Regional Court had counterbalanced the limitation of the applicant’s defence rights through a particularly careful and critical assessment of the evidentiary value of that testimony.

On 16 December 2010 the Federal Court of Justice dismissed the appeal as ill-founded, finding that the review of the Regional Court’s judgment had not revealed any legal errors that had been detrimental to the applicant.

On 11 January 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his right of confrontation had been infringed when the investigation judge had examined R.K. without him or his counsel having had the opportunity to be present and to question her. It had been unlawful to admit her testimony, as reported by the investigating judge, as evidence and to use it to convict him. It was not sufficient to take the violation of his right of confrontation into consideration as part of the evidentiary assessment by attaching less evidentiary value to the untested testimony and by requiring that it be corroborated by other significant pieces of evidence. Similarly, it was unlawful to admit as evidence the statements of the two police officers, as R.K.’s statement, which they reported, was not a “spontaneous utterance”.

In a written submission of 22 August 2011 the Federal Public Prosecutor General argued that the Regional Court had sufficiently taken the Court’s case-law on Article 6 § 3 (d) of the Convention into account.

On 4 April 2012 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication, without providing reasons.


CASE OF ĎURĎOVIČ AND TRANČÍKOVÁ v. SLOVAKIA

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

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicants are husband and wife. Mr D. Ďurďovič was born in 1942 and lives in Hodonín, the Czech Republic. Ms M. Trančíková was born 1939 and lives in Bratislava.

On 2 October 1997 the applicants brought a claim in the Stará Ľubovňa District Court, alleging that they were the owners of real property which had been included in the assets of an insolvent company.

On 16 August 2006 the District Court dismissed the claim. With reference to the documents before it and judicial decisions delivered earlier the court established that the property in question had been transferred to the company which had later become insolvent.

In an appeal the applicants argued, in particular, that the first-instance court had failed to take evidence, as suggested by them, with a view to establishing that the property had not actually been transferred to the company. They also maintained that the case should have been assigned to a judge dealing with civil cases instead of a judge deciding commercial disputes.

On 24 April 2008 the Prešov Regional Court upheld the firstinstance court’s judgment. It found that the applicants had failed to show that the property had been erroneously included in the assets of the insolvent company in the context of the insolvency proceedings.

On 9 July 2008 the applicants lodged an appeal on points of law. They argued that there had been shortcomings in the proceedings before the appellate court which rendered the appeal on points of law admissible pursuant to Article 237 (a), (d) and (f) of the Code of Civil Procedure.

In particular, they alleged that the appellate court had determined the case without hearing the parties and establishing the relevant facts. Earlier consent they had given for the appellate court to proceed with the case in their absence at the hearing of 24 April 2008 did not mean that they accepted the determination of the merits without the parties having been heard. The applicants further argued that the case had been dealt with as a commercial dispute, whereas it should have been determined by judges dealing with civil cases.

On 30 November 2009 the Supreme Court rejected the appeal on points of law. It held that the reasons for its admissibility as invoked by the applicants could not be accepted. In particular, the Supreme Court noted that the applicants had notified the Regional Court that they would not be appearing on 24 April 2008, and that they had agreed with the case proceeding in their absence. The fact that the appellate court had not quashed the first-instance court’s judgment as requested by them could not affect the position.

The Supreme Court further held that in the proceedings complained of, the situation described in Article 237 (a) of the Code of Civil Procedure did not exist, and that the applicants had not shown that a final decision on the matter had been given earlier for the purposes of Article 237 (d) of the Code of Civil Procedure.

On 8 March 2010 the applicants complained of a breach of Article 6 § 1 of the Convention in the proceedings leading to the District Court’s judgment of 16 August 2006, the Regional Court’s judgment of 24 April 2008 and the Supreme Court’s decision of 30 November 2009.

For reasons invoked in their appeal and appeal on points of law, they complained that their right to a fair hearing by a tribunal established by law had been breached. They also complained that the Supreme Court had not allowed them to respond to the defendants’ comments on their appeal on points of law.

The Constitutional Court declared the complaint inadmissible on 23 September 2010. As the District Court’s judgment had been reviewed by the Regional Court upon appeal, the Constitutional Court held that it did not have the power to examine the alleged shortcomings in the first-instance proceedings.

As to the Regional Court’s judgment, the applicants had failed to submit their complaint within the statutory time-limit of two months. The fact that they had sought redress by means of an appeal on points of law could not affect the position, as the Supreme Court had rejected that remedy as inadmissible.

Finally, as to the cassation proceedings, the Constitutional Court found no evidence of unfairness in the way the Supreme Court had dealt with and decided on the applicants’ appeal on points of law. Its failure to let the applicants comment on the other party’s observations on it had not rendered the proceedings unfair in the circumstances.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Raymond Reilly, is an Irish national who was born in 1966 and lives in Dublin. He is represented before the Court by Mr C. Crowley, a lawyer practising in Dublin. The Government were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant joined the Army in 1985 at the age of 18 and served until the expiry of his contract in November 1997. He had competed internationally as a boxer. He served in the Artillery Corps and held the rank of gunner. He married in 1989 and had three children with his wife.

The applicant claims that he was the victim of a series of sexual assaults (groping and inappropriate touching) by his superior officer, PD, who held the rank of Sergeant Major. This began in 1989 at a time of alleged personal difficulty for the applicant. At this time, he had been involved in a hit-and-run accident for which he was prosecuted as well as for driving under the influence of alcohol. The abuse typically involved PD touching the applicant intimately, rubbing his own private parts against the applicant’s body and physically forcing the applicant’s hand to touch PD’s private parts, all of this through clothing. The abuse occurred in PD’s office and it continued until about 1995.

The applicant claims that the Defence Forces could not have been unaware of PD’s proclivity to interfere with his subordinates. He alleges that he and at least one other gunner were subjected to protracted ridicule in the mess (canteen) as the officer’s “bum boy”. He did not at any time during his military career make a complaint about PD’s conduct. This, he claims, was partly out of shame and partly because PD had, allegedly, threatened that he would be locked up if he reported the abuse and that the word of a gunner would not be taken over that of a Sergeant Major. In the applicant’s view, the culture in the Defence Forces at that time was against making complaints. In the applicant’s subsequent proceedings against the army, his wife gave evidence to the High Court that his behaviour at that time began to deteriorate and that he had changed from being a model father and husband to being unrecognisable. In or about 1992 the applicant and his wife separated.

After the applicant had left the army, two other complaints were made against PD by two soldiers, CP and RM.

In October 1998 CP filed a complaint of sexual assault by PD which had allegedly occurred some days earlier during a room inspection and he sought to be discharged from the army because of it. The complaint was investigated by the military police who interviewed CP, PD and another officer involved in the room inspection.

In their investigation report, dated 9 October 1998, the military police noted that while CP claimed that the incident with PD was the reason for his seeking discharge he had, in fact, already been seeking civilian employment for some months before that time. It also noted CP’s disciplinary record. It noted Captain S’s testimony that when he left the room the door was ajar and that PD had followed him out of the room approximately 30 seconds later. It had regard to the fact that PD had a service record of 40 years and had never before been the subject of any allegations. The report concluded that it had not been possible to prove CP’s allegation. PD went on leave after this investigation and then decided to retire, leaving the army in April 1999.

In December 1998 RM confided in two colleagues that he had had similar experiences to CP, but he declined to identify the person responsible. The colleagues – both of whom later gave statements to the police – raised their concerns with Captain S. He undertook to deal with the complaint and arranged for RM to meet with the army psychiatrist. He also asked if PD was involved but RM was unwilling to discuss this and did not make any complaint against PD at this time.

At the end of 1998, the applicant happened to meet a former colleague of his, JW, who told him about the allegations that had been made concerning PD. The applicant then told him of his experience with PD but swore him to secrecy. JW, nevertheless, raised the matter immediately with his superior officer, Lieutenant Colonel C.

In December 1999 RM made a statement to the police about sexual assaults committed against him by PD the previous year.

The police commenced an investigation during which they became aware of the allegations made by CP and the applicant. They took statements from all three men between March and August 2000. The police also interviewed several military officers and took statements from the two soldiers who had brought RM’s situation to the attention of the military authorities, as well as from Captain S.

The police interviewed PD on 19 September 2000. He denied the allegations. Two days later, however, during a second interview, he confessed to having sexually assaulted RM. He was then arrested. He continued to deny the allegations made by the applicant and by CP.

In February 2001 the investigation file was submitted to the Director of Public Prosecutions (“DPP”) in respect of the three complainants. In August 2001 the DPP directed PD’s prosecution in respect of RM’s complaints and sought further information from the police concerning the applicant and CP. The information was furnished in January 2002. The initial decision of the DPP was not to prosecute PD in respect of complaints made by the applicant and CP. However, upon a request by the police the file was reviewed by the DPP who then issued a new direction in October 2002 to prosecute PD in respect of the applicant’s complaints.

In December 2002 PD pleaded guilty to six charges of sexual assault upon RM. On 9 April 2003 he was formally convicted and sentenced to 2 years’ imprisonment, suspended on condition that he enter a bond and agree to be of good behaviour and keep the peace for 5 years. He was also fined EUR 15,000, which was to be paid to RM, and was placed on the register of sexual offenders.

Following a criminal trial in July 2003, the jury acquitted PD in respect of certain charges and it failed to reach a verdict on other counts. A nolle prosequi (withdrawal of charges) was then entered in January 2004 in respect of the charges on which the jury had failed to reach a verdict.

In June 2001 the applicant issued civil proceedings for damages against PD, the Minister for Defence, Ireland and the Attorney General. He was legally represented and his claim against PD was settled in April 2006 in the sum of €5,000 without admission of liability.

The applicant’s claim against the remaining defendants (the “State defendants”) was heard by the High Court and was based on two alternative grounds. Firstly, he alleged that the State was vicariously liable for the actions of PD. Secondly, he alleged that the State was directly negligent in that he claimed it had knowledge of PD’s behaviour such as would have alerted a reasonable person to take steps to inquire into or prevent the activities of PD and that it had failed so to do. The trial commenced in the High Court in October 2006 and heard numerous witnesses over the course of nine days.

The High Court (Johnson P.) gave judgment on 30 July 2007, dismissing the applicant’s claims.

The court accepted that, on the civil standard of proof, that is, on the balance of probabilities, PD had assaulted the applicant causing posttraumatic stress disorder. It then considered whether the State should be held vicariously liable for this. The High Court reviewed all the relevant legal authorities that were opened to it on the question of vicarious liability, including Irish, Canadian and British jurisprudence and it found:

“All of the above cases were cases which related to young and vulnerable children, which is not the situation in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff, but overall I feel that the balance in this particular case lies against vicarious liability.”

The High Court then considered the separate question as to whether the State had been directly negligent and addressed this issue in terms of whether the authorities had been or should have been aware of PD’s behaviour at the relevant time. It stated:

“...[T]he evidence of the [applicant] and many of his witnesses is that there was general chat on a continual basis about [PD’s] activities, that it was well known and that it was the chat of the barrack room and the camp.

This has been completely denied by all of the defendant’s witnesses. Whereas I grant there is a distinction in rank between the [applicant’s] witnesses and the defendant’s witnesses, I came to the conclusion that all of them appear to be attempting to tell the truth.

Therefore, I am satisfied that there was banter, possibly name calling and certainly general slagging, I think would be the correct way of putting it, and, though that may have been prevalent in the mess room at times, none of it was taken sufficiently seriously by any of the men, the NCO’s and any other officers who may have heard it to be considered anything other than of a humorous nature.

It is necessary to look at the incidents and at the evidence in light of the times as they then were. These events took place in the 1980’s and early 1990’s, at a time when the antenna of the ordinary reasonable person was far less acute to the potentials for sexual abuse or sexual assault than they are today. We must remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation, sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive to matters which twenty years ago would not have drawn any attention whatsoever.

I am quite satisfied that had any of the NCO’s or others, any real apprehension regarding the behaviour of [PD], they would have given notice of such apprehension one way or another through the preferred route as laid down in the Army code or otherwise. I am reinforced in this view by the speedy action of [JW], when informed by the [applicant] of the events which occurred, he immediately repeated to the Superior Officers and laid the [applicant’s] claim before them, despite the fact that he had been bound by the [applicant] to secrecy. It is for this reason, I have come to the conclusion that, on the balance of probabilities, the [applicant] failed to discharge the onus of proof on him that, at the time of the incidents when the subject matter of these proceedings occurred, the level or content of the activities which were described in the mess room, in the bar and in the canteen were such as would have alerted a reasonable person and cause them to take steps to either enquire into or prevent the activities of [PD].”

The applicant appealed to the Supreme Court, which dismissed the case in a judgment of 24 March 2009.

On the negligence claim, the Supreme Court (Kearns J) reviewed the evidence and did not interfere with the findings of fact made by the High Court. The court acknowledged the evidence in support of the applicant’s claims that the proclivities of PD were known in army circles and that there was no satisfactory method of bringing a complaint. It also acknowledged the large number of witnesses for the defendants who had contested these claims, meaning there was also ample evidence against the applicant’s case. The court referred to the various avenues of complaint that had been available to the applicant and the persons to whom he could have turned, in confidence, for help, such as the army chaplain or the social worker. The court recalled that its appellate role meant that it should only ensure that the primary findings of fact at trial and the inferences drawn from them were supported by the evidence. The trial judge had heard the witnesses directly and could assess their demeanour. He had been entitled to have regard to the fact that the applicant had never made a complaint about PD, even though he had used the complaints procedure regarding another unrelated matter, thus demonstrating that he was aware of the existence of a complaints procedure and had been ready to use it. The evidence did not support the claim that soldiers were reluctant to make complaints or that the army was unreceptive to them. An expert witness had confirmed that the complaints procedures in place at that time in the army were good and sufficient by the standards then prevailing. The court also agreed with the trial judge’s remarks about the importance of considering the issues in the light of the times as they then were and observed that it was “a dangerous exercise in hindsight to apply knowledge and standards of today to events which occurred twenty-five years ago”.

On the question of vicarious liability, the Supreme Court noted that the applicant did not challenge the correctness of the legal principles as emerged from the case law and as outlined by the High Court. He had only challenged that court’s application of those legal principles. The applicant had argued that, while his case did not concern a child, the environment of the armed forces was such that the normal rules of adult interaction did not apply given, inter alia, disparities in rank. The Supreme Court, however, concluded that the employment relationship between the applicant and the Defence Forces did not support finding of vicarious liability. It stated:

“While undoubtedly [PD] exercised a supervisory and disciplinary role where the [applicant] was concerned, he was not in the same position as a school teacher or boarding house warden in relation to a child. Nor was the nature of the employment one which would have encouraged close personal contact where some inherent risks might be said to exist as, for example, might arise if [PD] had been a swimming instructor in close physical contact with young recruits. There was no intimacy implicit in the relationship between the [applicant] and [PD] nor was there any quasiparental role or responsibility for personal nurturing which was found to exist in the cases where vicarious liability was established. To hold otherwise would be to extend to the Defence Forces a virtual new species of liability where the defendants would be liable for virtually every act or omission of an employee.”

The Supreme Court went on to distinguish the relationship in issue in the applicant’s case from that of a teacher and a child referring back to the case of O’Keeffe v. Hickey [2008] I.E.S.C. 72. It held that while the O’Keeffe case had involved a vulnerable child who was sexually abused by a teacher at school, the facts of the relationship between the parties in the instant case could hardly be more different. The applicant in this case was at all material times an adult. He had elected to accept the rigours, the discipline and the camaraderie associated with the life of a professional soldier. It must be accepted that the Defence Forces require an atmosphere of discipline in order to function. A wide extension of liability would undermine the whole operational basis of any army.

The Supreme Court concluded that the applicant’s case fell short by a considerable margin of establishing the prerequisites for a finding that the State defendants should be held vicariously responsible for the criminal activities of PD.

According to the Government, the applicant took legal proceedings against the army on two previous occasions while he was serving member of the Defence Forces. The first was a claim to the High Court for damages for personal injuries (deafness) for which he was awarded compensation. Some 17,000 military personnel had sued for damage to hearing caused by inadequate protective material. He also brought a personal injuries action against the Defence Forces arising from a road traffic accident and the case was settled.

The applicant submitted a claim for compensation to the Criminal Injuries Compensation Tribunal (“CICT”) in respect of the injury caused by the sexual assaults of PD. His claim was rejected in April 2010 on the grounds of delay in reporting the crime. The applicant appealed. A hearing took place on 16 April 2012, leading to a decision of 24 May 2012 in which he was awarded €37,870 compensation.

A general formal complaint system was established by section 114 of the 1954 Act:

“(1) If an officer thinks himself wronged in any matter by any superior or other officer, including his commanding officer, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer’s satisfaction, he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon.

(2) If any man thinks himself wronged in any matter by any officer, other than his company commander, or by any man he may complain thereof to his company commander, and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General, who, if so required by the man, shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon.

(3) Every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of, and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of.”

The 1954 Act also provided for the trial of military and criminal charges by court-martial including within 3 months of the retirement from the Defence Forces of the accused (section 120 of the 1954 Act). Section 140 of the 1954 Act provided that anyone subject to military law who illtreated any subordinate was guilty of an offence against military law and would, on conviction by court-martial, be liable to imprisonment for a term not exceeding 2 years or to any less punishment awardable by a courtmartial.

The Defence Forces Regulations A7, adopted by the Minister under the 1954 Act, provided general guidance to commanding and other officers as to their responsibilities regarding discipline and misconduct. It also set out (section 11C) a procedure for the submission of grievances during the general annual inspection of the military unit by a General Officer Commanding. Notice of such inspections was given in advance with a reminder of the opportunity to bring forward any complaints.

In early 1996 the “Administrative Instruction A7” was adopted pursuant to Regulations A7. It was headed “Interpersonal Relationships in the Defence Forces” and it codified detailed procedures for making complaints in relation to unacceptable interpersonal behaviour to a company commander. Paragraph 102 of that Instruction accepted that the requirement to obey all lawful orders had to be counterbalanced by ensuring respectful and professional treatment and relationships between superiors of subordinates. Paragraph 114 defined what was unacceptable sexual behaviour and gave specific examples including sexual assault and attempting to engage in or engaging in sexual activity by force, coercion or intimidation. Separate provisions governed “sexual harassment” including defining the notion, giving concrete examples and providing particular provisions for complaints having regard to the specific difficulties attached thereto.

The Supreme Court in the present case summarised the relevant principles applicable to the issue of vicarious liability by listing the factors for establishing whether or not impugned acts were carried out within the course and scope of employment. These principles are set out in the Canadian cases of Bazley v. Curry (1999) 174 D.L.R. (4th) 45; and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71), both of which concerned the sexual abuse of infant children.

In Bazley case, the Supreme Court of Canada noted that the established common-law test was that employers were vicariously liable for employee acts authorised by the employer or unauthorised acts “so connected with authorised acts that they may be regarded as modes (albeit unauthorised modes) of doing an authorised act”. In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom, the Supreme Court of Canada set out the principles by which the sufficiency of the connection between the employer’s creation and enhancement of the risk and the wrong complained of was to be determined. These included:

“(a) The opportunity the enterprise afforded the employee to abuse his or her power;

(b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers’ enterprise;

(d) The extent of power conferred on the employee in relation to the victims; and

(e) The vulnerability of potential victims to wrongful exercise of the employee’s power.”

The Jacobi case provided two further principles:

“(a) A court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls.

(b) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.”

Both of these cases were analysed by the House of Lords in Lister v. Hesley Hall Limited ([2001] UKHL 22 [2002] 1 A.C. 215) and cited by the High Court in the present case as the leading United Kingdom authority on the issue. The plaintiffs in that case were residents in a school owned and managed by the defendants and they had been sexually abused by the warden.

Lord Steyn stated (§ 28 of the judgment):

“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present case clearly falls on the side of vicarious liability.”

A victim can apply for compensation for injury suffered as a result of violent crime under the statutory Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is administered by the CICT. The prescription period is three months but it can be extended, exceptionally. Compensation is paid without any inquiry into liability and on an ex gratia basis. It covers expenses and losses and, since 1 April 1986, it does not include compensation for non-pecuniary loss. The Tribunal will deduct sums received by a victim in compensation from another source including from a civil action against the offender.


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Independent tribunal)

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant, a parent of two young children, is a homeless person in priority need of accommodation within the meaning of Part VII of the Housing Act 1996 (“the 1996 Act”).

Birmingham City Council (“the Council”) is a local housing authority within the meaning of the 1996 Act and is required, under Part VII of that Act, to perform statutory functions in relation to homeless persons in its area.

The applicant applied as a homeless person to Birmingham City Council for assistance in October 2006. By letter dated 7 November 2006 the Council determined that the applicant was homeless, eligible for assistance, in priority need and not intentionally homeless. The authority therefore accepted that it owed the applicant the “main housing duty” to provide accommodation to her and her family. On 8 November 2006 the authority made the applicant an offer of accommodation which she refused because she was unhappy with the location. The authority told the applicant that in its view the accommodation was suitable but following a review of that decision, which was determined in the applicant’s favour, they agreed to make her another offer.

On 14 March 2007 a Housing Officer informed the applicant by telephone that another offer was being made, that a viewing had been arranged and that a letter would follow. The authority claims that on that same day a written offer of accommodation at 16 Bromford Lane, Birmingham was sent to the applicant. That letter contained a statement to the effect that if the applicant refused the offer without good cause the authority would consider that it had discharged its duty to her under Part VII of the 1996 Act. However, the applicant denied receiving the letter; instead, she claimed that she had to telephone the housing office to obtain the address and arrange the viewing appointment. She viewed the property on 19 March 2007 but declined the offer as she was not happy with the condition of the communal area.

By letter dated 21 March 2007 the Council notified the applicant that, by reason of her rejection of its offer, pursuant to section 193 of the Housing Act its duty to her under Part VII of the 1996 Act had been discharged. By letter dated 29 March 2007 the applicant notified the Council that she had not received an offer in writing and requested that the Council review its decision.

While the applicant’s case was pending before the review panel, a further offer of accommodation was made to her pursuant to a different scheme, namely the scheme for the provision of housing accommodation under Part VI of the 1996 Act. She did not accept this offer.

On 1 May 2007 a Homelessness Review Officer employed by the Council conducted a telephone interview with the applicant to establish her reasons for refusing the offer of accommodation at 16 Bromford Lane. The Officer claimed that in the course of this conversation the applicant accepted that she had in fact received the offer letter but refused the offer of accommodation because there was no lift and the entrance to the property was dirty, which could put her youngest son’s health at risk. However, the applicant claims that at the time she had thought she was being questioned about the subsequent offer of accommodation, in respect of which she did not deny having received a letter.

By letter dated 2 May 2007 the Homelessness Review Officer upheld the decision that the applicant’s refusal of the offer of accommodation had discharged the Council’s main housing duty to her under section 193(2) of the 1996 Act. In particular, the Officer found that the applicant had been sent an offer letter from the Council which complied with the mandatory requirements of section 193 of the 1996 Act prior to her refusal and there was no reason to believe that she had not received it. In any case, she noted that the applicant had not refused the accommodation because she had not received a written offer but because she did not consider the accommodation to be suitable for her family’s needs.

The applicant appealed to Birmingham County Court under section 204 of the 1996 Act, which allowed for an appeal on a point of law only. The jurisdiction exercised by the County Court under section 204 was that of judicial review. In her grounds of appeal the applicant claimed that the Council, in reaching its decision, had taken into account irrelevant considerations and/or acted under a fundamental mistake of fact; that the Council had acted unlawfully as it had failed to make adequate inquiries to enable it to reach a lawful decision; that its decision was one which no rational Council would have made; that it had fettered its discretion; and that it had acted in breach of natural justice.

The appeal was heard on 29 August 2007, on which date the judge noted that the only ground of appeal argued before him was that the letter of offer had failed to arrive. The applicant submitted that the County Court should hear evidence on the matter so that it could determine it for itself. However, although the judge accepted that the Homelessness Review Officer was not an independent or impartial tribunal, he found that the decision whether or not the letter had been received was properly and fairly to be made by her and he declined to hear evidence on the point. Although it was not specifically stated in the correspondence between the Council and the applicant, the judge appeared to consider whether or not the Council had discharged its duty under section 193(7) (see paragraph 25 below).

The applicant subsequently appealed to the Court of Appeal and then to the Supreme Court. At each level, the grounds of appeal were that the decision taken by the Council’s Homelessness Review Officer had constituted a determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention; that the Officer had not been an independent or impartial tribunal as required by Article 6 § 1; that the decision of the Officer had turned on the resolution of a simple question of disputed primary fact, involving no application of specialist knowledge; that pursuant to Tsfayo v. the United Kingdom, no. 60860/00, 14 November 2006, Article 6 § 1 required that the applicant be able to appeal that simple factual determination; and, alternatively, that the restriction of all statutory appeals to points of law, no matter what the nature of the decision, was incompatible with Article 6 § 1.

Both the Court of Appeal and the Supreme Court decision on the applicant’s appeal followed the decision of the House of Lords in Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5. In Runa Begum the House of Lords found that judicial review of a Homelessness Review Officer’s decision that a claimant had been unreasonable in rejecting the accommodation offered to her provided “sufficiency of review” for the purposes of Article 6 § 1. The House of Lords stressed that although the Officer had been called upon to resolve some disputed factual issues, these findings of fact were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the Officer had the specialist knowledge and experience to make. Although the Officer could not be regarded as independent, since she was employed by the Council which had made the offer of accommodation which the claimant had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal.

The applicant submitted that the present case could be distinguished from that of Runa Begum because it concerned the simple question of a finding of primary fact rather than an evaluative judgment, such as a qualitative assessment of “suitability”.

On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal. In doing so, it proceeded on the assumption that the case involved the determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention. In relation to the question whether the decision of the Homelessness Review Officer had turned on the resolution of a simple question of primary fact, or whether it required the application of specialist knowledge, Thomas LJ stated that:

“i) It is far from easy to draw the distinction advanced in practice. A finding of suitability is itself a finding based on conclusions of primary fact ...

ii) There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex ...

iii) ... [I]f the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable ...

v) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide ...

vi) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court ... the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence.

viii) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative ... The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by Parliament; funds are provided for their finance by Parliament ...

ix) The present scope of the appeal provides a real measure of protection for homeless appellants. It is clear from the careful judgments of Judge MacDuff QC and Judge McKenna that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact. This conclusion reinforces the view I have expressed that the review by the County Court in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in Runa Begum. It demonstrates, as Lord Bingham observed at paragraph 11, that the scheme properly operated should ensure fair treatment. I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts (such as a conclusion on suitability).”

Thomas LJ therefore concluded that the decision of the House of Lords in Runa Begum applied to all County Court appeals under section 204 of the 1996 Act, no matter whether the decision turned on a simple issue of primary fact or not. He further held that the decision in Tsfayo, which concerned the housing benefit scheme, did not affect appeals brought in homelessness cases:

“34. ... In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1.”

On 17 February 2010 the Supreme Court dismissed the applicant’s appeal, finding that the determination by the Council, that its duty to secure accommodation for the applicant had ceased, was not a determination of her civil rights within the meaning of Article 6. Lord Hope of Craighead with whom Baroness Hale and Lord Brown agreed, stated that:

“... I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1). In my opinion they do not give rise to ‘civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article.”

In supporting that conclusion Lord Hope looked to what the relevant provisions within Part VII of the 1996 Act were intended to achieve. He observed that:

“... It provides a right to assistance if the relevant conditions are satisfied. But this is not a pecuniary right, nor is the benefit that is to be provided defined by the application of specific rules laid down by the statute. Even where the full homelessness duty arises under section 193, the content of the statutory duty lacks precise definition. There is no private law analogy. The duty is expressed in broad terms – to secure that ‘accommodation is available’ – which leaves much to the discretionary administrative judgment of the authority.”

He continued, following a review of the jurisprudence of the Court, by noting that:

“43. There are however ... a number of straws in the wind since Runa Begum that suggest that a distinction can indeed be made between the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority ...”

Later in his judgment, Lord Hope, for completeness, set out some observations on whether the scheme of decision-making was Article 6compliant. He commented that the possibility, foreshadowed in argument, of separating simple, formal questions of “gateway” facts, such as the letter issue, from the expert assessment of suitability would needlessly complicate a scheme which was designed to be simple to administer.

The court went on to observe that the fact that a County Court did not have a full fact-finding jurisdiction when hearing an appeal under section 204 of the 1996 Act did not mean that the applicant was deprived of what was required to satisfy the guarantees of Article 6 of the Convention. In this connection, Lord Hope said this:

“54. ... For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined. An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation’s suitability. ... These cases are quite different from Tsfayo, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).”

Unlike the County Court, the Supreme Court appeared to consider whether or not the Council had discharged its duty to the applicant under section 193(5); however, it appeared to accept that a formal letter of offer was required by that subsection.