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

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant was born in 1932 and lives in Vilnius.

By a decision of 18 June 2002 the Vilnius Region Administration restored the applicant’s property rights to 0.23 hectares of land in the context of restitution of property rights which had been violated by the unlawful nationalisation during the Soviet regime. Subsequently, the plot of land was registered in the land registry in her name.

On 15 July 2002 the applicant sold the plot of land for 76,000 Lithuanian litai (LTL; approximately 22,000 euros (EUR)) to two private buyers, E.T. and D.Z., who became the owners of the plot.

In August 2003 the Vilnius Region Administration found that a mistake had been made in granting the plot of land to the applicant and notified her and, later, the public prosecutor.

In June 2004 the public prosecutor initiated civil proceedings to have the decision of 18 June 2002 and sale contract annulled on the ground that in 1993 part of the same plot of land had already been sold by the State to a private buyer, R.G. Moreover, the plot was situated in a community garden (sodininkų bendrija) and therefore the former owner’s rights to it could not be restored under the Law on the Restoration of Citizens’ Rights of Ownership to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “Law on Restitution”).

At the same time criminal proceedings had been instituted into possible forgery of the documents. However, suspicions with regard to the applicant were not confirmed, and the proceedings were discontinued in July 2006.

The Vilnius Region Administration acknowledged that the plot of land had been assigned to the applicant unlawfully.

On 20 August 2004 assets belonging to the applicant amounting in value to LTL 76,000, including bank deposits and her pension, were seized to ensure satisfaction of the prosecutor’s civil claim.

On 5 May 2005 the Vilnius 1st City District Court granted the prosecutor’s claim. The transfer of title involving the plot of land was annulled. Ownership was awarded to R.G. and the applicant was ordered to pay LTL 76,000 to E.T. and D.Z. The applicant did, however, reserve the right to have her ownership rights to a plot of land restored.

On 15 September 2005 the Vilnius Regional Court dismissed an appeal by the applicant.

By a final decision of 22 March 2006 the Supreme Court upheld the decisions of the lower courts.

On 30 May 2006 the order requiring the applicant to pay LTL 76,000 was enforced by a bailiff.

According to information submitted by the applicant, she had to borrow money to comply with the order to pay LTL 76,000 and to cover other legal expenses. She also alleged that the unlawful actions of the authorities and the related court proceedings had caused her health to deteriorate significantly, as she had suffered stress and later become disabled.

In November 2005, after receiving a refusal from the Vilnius Region Administration to compensate her for her loss, the applicant brought a claim against the State before the administrative courts for LTL 90,479 (about EUR 26,200) in pecuniary damage and LTL 300,000 (about EUR 87,000) in non-pecuniary damage.

By a final decision of 15 November 2007 the Supreme Administrative Court upheld the decision of the first instance court and granted the applicant’s claim in part awarding her LTL 838 (approximately EUR 240) for pecuniary (part of her legal costs and expenses) and LTL 2,000 (approximately EUR 580) for non-pecuniary damage. The court also concluded that the unlawful actions of the national authorities had violated the applicant’s legitimate expectations and had had an impact on her health, given her old age. However, the court dismissed most of the applicant’s claims to have reimbursed the pecuniary loss she had allegedly sustained as a result of the annulment of the transfer of title to the plot and the court proceedings she had had to undergo. In that connection, the courts noted that the applicant had no legal grounds to claim compensation for pecuniary damage, given that she had unlawfully had her ownership rights to the disputed plot restored.

Later, by a decision of 9 April 2009 the Vilnius Region Administration restored the applicant’s property rights by granting her a new plot of land of 0.23 hectare.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1955 and lives in Kraljevo.

Between June 2003 and December 2004 the applicant, as an entrepreneur, was providing heating installation services to AD Fabrika za proizvodnju konfekcije i trikotaže Raška, a socially-owned company based in Novi Pazar (hereinafter “the debtor company”).

On 2 December 2010 the Kraljevo Commercial Court opened insolvency proceedings in respect of the debtor company (St. 31/2010).

The applicant duly submitted his claim.

On 15 March 2011 the Commercial Court rejected his claim and instructed him to initiate a regular civil suit and request determination of his claim. The applicant lodged a separate civil claim.

On 1 December 2011 the Commercial Court ruled in favour of the applicant by recognizing his claim and ordered the debtor company to pay the applicant the costs of the civil proceedings.

On an unspecified date thereafter, the said judgment having become final, was acknowledged within the insolvency proceedings.

On 22 July 2013 the Commercial Court issued a decision ordering payment of approximately 10 % of the total debt to the applicant. The applicant received this payment on an unspecified date.

The debtor company was ultimately struck from the relevant public register on 9 July 2014.

On 16 December 2013 the applicant lodged a constitutional appeal complaining against the Commercial Court’s decision of 22 July 2013 and that his right to work and right to compensation for work and providing services were infringed, because he received only 10 % of the total debt. He asked further the Constitutional Court to order the payment of the rest of the debt.

On 2 March 2015 the Constitutional Court dismissed the applicant’s appeal finding that it is not vested with the power to order such a payment. That decision was delivered to the applicant after 24 April 2015.


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

Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria

The first applicant, Mr Béla Temesfői was born in 1979 and lives in Gödöllő. The second applicant, Mr Zoltán Csepi was born in 1971 and lives in Gödöllő. The third applicant, Mr József Molnár was born in 1971 and lives in Gödöllő. The fourth applicant, Mr Tibor Kovács was born in 1972 and lives in Budapest. The fifth applicant, Mr Attila Fekete was born in 1968 and lives in Veresegyház. The sixth applicant, Mr Flórián Márton was born in 1973 and lives in Szada. The seventh applicant, Mr József Kelemen was born in 1980 and lives in Gödöllő. The eighth applicant, Mr István Dudás was born in 1975 and lives in Gödöllő.

The applicants were heard as suspects on different dates (the first applicant on 5 July 2002, the second applicant on 3 October 2001, the third and fourth applicants on 9 October 2001, the fifth applicant on 4 October 2001, the sixth applicant on 18 March 2002, the seventh applicant on 27 December 2000 and the eighth applicant on 21 December 2000).

The Budapest Prosecutor’s Office preferred a bill of indictment with the Budapest Central Districts Court on 30 June 2003 charging the applicants with fraud and forgery. On 18 May 2011 the Budapest Central Districts Court found the applicants guilty as charged and sentenced them to different punishments (applied reprimands for the first applicant, criminal fine for the second, seventh and eighth applicants and one-year probation for the third, fourth, fifth and sixth applicants).


CASE OF AXEL SPRINGER SE AND RTL TELEVISION GMBH v. GERMANY

No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The first applicant company, Axel Springer SE, is a publishing house operated in the legal form of a Societas Europea registered in Berlin. The second applicant company, RTL Television GmbH, is a broadcasting company set up as a private limited company registered in Cologne.

On 14 June 2010 the defendant, S., then aged 28, was arrested. The public prosecutor’s office charged him with killing his parents, dismembering their bodies, burning some of the parts, flushing others down the toilet and disposing of the rest by putting them in barrels. S. confessed to the police. Several German newspapers reported on the case. Some published pictures of S., which mostly showed him at a much younger age.

The public prosecutor’s office obtained a psychiatric expert opinion in October 2010. The expert concluded that S. was suffering from a schizoid personality disorder at the time when he had committed the offence.

The trial against S. began on 11 January 2011 at the Potsdam Regional Court. Photographers working for the applicant companies attended the hearings to take still photographs and make videorecordings of the defendant.

Prior to the start of the hearing, the presiding judge informed the photojournalists orally that the defendant’s face would have to be made unidentifiable “in the usual manner” before any images of him were published.

According to the applicant companies, the presiding judge had indicated at the beginning of the hearing on 11 January 2011 that anyone who failed to comply with this order no longer needed to show himself at the Regional Court of Potsdam and apply for permission to take photos of future proceedings. The applicant companies submitted a copy of an email of a journalist who attended the hearing confirming the alleged statement of the presiding judge.

The Government contested the applicant companies’ assertions that the presiding judge had threatened not only to bar journalists from taking photographs during the proceedings against the defendant, but also from future proceedings before the Potsdam Regional Court. The Government submitted that according to the presiding judge no such statement had been made.

S. repeated his confession on the first day of the hearing.

By a letter of 12 January 2011 the second applicant company asked the President of the Regional Court to change the presiding judge’s oral order. It pointed out, inter alia, that several unpixelated pictures of S. had been published in different newspapers before. By a letter of the same date the president replied that he had forwarded the letter to the presiding judge for lack of competence.

On 17 January 2011 the presiding judge supplemented his order and provided his reasons in writing. The only media representatives who were permitted to take photographs and make video-recordings of S. were those who had previously registered with the court and given an assurance that prior to the publication or forwarding of the material, the face of S. would be disguised by a technical process, for example by pixelisation, so that it would only be possible to use the images in such a form. Journalists were barred from further reporting on the case if they failed to comply with the order.

The presiding judge stated in his reasons that he had to balance the public interest in being informed and the personality rights of S. He acknowledged that the crime at issue was very different from “usual crimes” and that permitting only pictures that disguised S. impaired the public’s ability to be informed. However, he held that the order was justified in view of the need to protect the personality rights of S. He reasoned that it was unlikely that the case had caused a sensation throughout Germany. No nationwide television channel besides the second applicant had shown any interest in reporting on it. He stressed the importance of the presumption of innocence, finding that reporting on S. in a way which identified him could have a “pillory effect”. Consequently, according to the presiding judge the personality rights of S., who had never been in the public eye or sought to contact the media and who had expressly requested that his identity be concealed, outweighed the public interest in being informed. Furthermore, the order had already proved to be necessary as there had been individual violations of the judge’s instructions following the first day of the hearing.

On 18 January 2011 the presiding judge sent the supplemented written order to a number of journalists, including some who worked for the applicant companies.

On 31 January 2011 the applicant companies filed an objection (Gegenvorstellung), requesting the suspension of the judicial order banning the publication of images enabling identification “during the proceedings against (...) S.” (”für die Dauer des Prozesses gegen (...) S.”). The applicant companies stressed the fact that S. had confessed to the crime on the first day of the hearing.

On 4 February 2011 the presiding judge upheld the order. He held that the implications of the confession and its credibility could only be assessed at the end of the hearing.

Further hearings took place on 20 and 27 January 2011 and on 8 February 2011. On 10 February 2011 the Regional Court delivered its verdict, sentencing the defendant to prison on two counts of murder.

On 1 February 2012 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant companies, without providing reasons (no. 1 BvR 381/11).


CASE OF TRISHKOVSKAYA AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement)

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. The applicants in applications nos. 47424/13 and 44303/17 also raised a complaint under Article 2 of Protocol No. 4 to the Convention.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person;Defence through legal assistance);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1947. At the time when the application was submitted, the applicant was serving a sentence of imprisonment in Oslo, Norway.

In December 2004 a group of individuals transported a considerable quantity (possibly three tons) of hashish (which in the Netherlands is a banned substance) from one hiding-place to another. It appears that the possessors of the hashish later found some of it missing and came to the conclusion that it had been removed by one E. In late January 2005 E.’s body was found dumped at a building site, with the hands tied behind the back, two ribs broken and holes in the knees and kneecaps consistent with the deliberate infliction of injury by means of an electric drill.

The applicant was arrested on 11 April 2006 on suspicion of having been criminally involved in the above events and taken into pre-trial detention. Throughout the ensuing criminal proceedings he claimed to be innocent.

The applicant was charged with causing E. grievous bodily harm resulting in his death, the abduction of E. resulting in his death, threatening grievous bodily harm against E., and importing, transporting and possessing three tons of hashish. His trial opened on 17 July 2006 before the Alkmaar Regional Court (rechtbank).

The prosecution sought an eight-year prison sentence.

After adjournments made necessary by the need for further investigative measures, the Regional Court gave judgment on 15 May 2007. It did not find it established that the abduction had resulted in E.’s death and acquitted the applicant of that aggravating circumstance, but convicted the applicant of the remainder of the crimes charged, finding him to have committed them together with others. It sentenced the applicant to four years and six months’ imprisonment.

Both the applicant and the prosecution appealed.

The appeal hearing opened on 31 October 2007 before the Amsterdam Court of Appeal (gerechtshof). Finding that the file was incomplete, the Court of Appeal adjourned the hearing sine die in view of its busy hearing schedule. Further adjournments were ordered, on the same ground, on 18 January 2008 and 4 April 2008. On 27 June 2008 an adjournment was ordered on the ground that no suitable hearing room was available.

The Court of Appeal held a scheduling hearing (regiezitting) on 23 September 2008. Two more adjournments were ordered, one until 2 December 2008 for the purpose of securing the attendance of further witnesses and one until 24 February 2009 to allow the applicant’s new counsel, who had replaced the lawyer who had conducted the applicant’s defence at first instance, to acquaint himself with the case file. At the hearing of 24 February 2009 it was decided that the hearing on the merits of the case would be held on 18, 19 and 27 May 2009.

On 26 March 2009 the applicant was released, having served two-thirds of the sentence handed to him by the Regional Court.

The hearing was resumed on 18 May 2009. The applicant was in attendance. Since further witnesses were to be heard by the investigating judge at the request of the defence, a further adjournment was ordered until 27, 29 and 30 October 2009; the applicant and his counsel were cautioned to be present without further notice.

On 4 October 2009 the applicant was arrested in Norway on suspicion of having imported “a considerable quantity of narcotic substances”. The applicant’s counsel informed the Court of Appeal of this development by fax on 13 October 2009.

The hearing was again resumed on 27 October 2009. The applicant’s counsel stated that the applicant was in pre-trial detention in Norway. He asked for the applicant to be brought to the Netherlands a few days before the following hearing so as to consult with him.

On 29 March 2010 the applicant received a summons at his detention address in Norway to appear at the hearing of the Amsterdam Court of Appeal to be held on 1 and 4 June.

On 10 May 2010 the applicant’s counsel sent an e-mail to the Advocate General (advocaat-generaal) to the Court of Appeal, with a copy to the president of the criminal division, restating his request for the applicant to be brought to the Netherlands in advance of the hearing of the Court of Appeal and announced his intention to oppose resumption of the hearing if this were not done.

On 25 May 2010 the applicant’s counsel informed the Court of Appeal by e-mail of his intention to seek an adjournment of the coming hearing. On the same day the president of the criminal division warned the applicant’s counsel and the Advocate General by e-mail, without prejudging any decision that might be taken, of the possibility that the merits of the case would be addressed.

The hearing was resumed on 1 June 2010. The official record of the hearing makes mention of the applicant’s place of detention, namely Oslo Prison (Oslo Fengsel), Oslo, Norway.

The applicant’s counsel asked for the hearing to be adjourned until the applicant could be present in person. He suggested that this might be done pursuant to an extradition request; by way of transfer under the European Convention on Mutual Assistance in Criminal Matters, which possibility in his submission had not been adequately explored; and, following the outcome of the criminal proceedings in Norway, by allowing the applicant either to return of his own accord or to serve any sentence handed to him by the Norwegian courts in the Netherlands as the case might be.

The Court of Appeal declined to adjourn its hearing until the applicant could be present. Its reasoning, reflected in the official record of its hearing, was as follows:

“If a request is made to adjourn the hearing on the merits all relevant interests should be weighed, including the right of the accused to be present, the interest of not only the accused but also of society in a speedy determination of the charges and the interest of a proper organisation of the judicial system. In so doing, the court of Appeal will base itself on the following facts and circumstances:

- The present case began in 2005. The applicant was arrested on 11 April 2006 and sentenced to four years and six months’ imprisonment by the Alkmaar Regional Court on 15 May 2007. The [applicant] took part in the proceedings. The [applicant] appealed against this judgment and the first appeal hearing took place on 31 October 2007.

- The [applicant] was released on 26 March 2009.

- It was not possible to hold the hearing on the merits on 18, 19 and 27 May 2009 as planned because the investigating judge had not finished hearing witnesses.

- On 13 October 2009 the applicant’s counsel transmitted the information that the [applicant] had been arrested in Norway on 4 October 2009 on suspicion of having violated Article 192 § 3 of the Norwegian Criminal Code, to wit, unlawfully importing a large quantity of narcotic substances. The [applicant] was to remain in pre-trial detention until at least 4 November 2009. The hearing on the merits could therefore not be held on 27, 29 and 30 2009 October as planned and was moved to 1 and 4 June 2010.

- The [applicant] has therefore brought it on himself that he cannot now attend the appeal hearing independently (dat hij niet zelfstandig tegenwoordig kan zijn bij zijn berechting in hoger beroep).

- The [applicant] has indicated, following his arrest, that he wishes to attend the appeal hearing.

- The Advocate General has, on 15 October 2009, drafted a request for mutual assistance, in consultation with the Centre for International Legal Assistance North West and Central Netherlands (Internationaal Rechtshulp Centrum Noordwest en Midden Nederland) (...) requesting the Norwegian authorities to transfer the [applicant] to the Netherlands temporarily under Article 11 of the European Convention on Mutual Assistance in Criminal Matters.

- The Norwegian public prosecutor replied on 16 October 2009 that the [applicant]’s temporary transfer was not possible because Norway had entered a reservation relevant to Article 11 [of the European Convention on Mutual Assistance in Criminal Matters]. The request for temporary transfer would have to be made via the Ministry of Justice.

- The Advocate General has, on 2 March 2010, prepared a draft request for mutual legal assistance setting out the request to the Norwegian authorities to transfer the [applicant] to the Netherlands under Article 11 [of the European Convention on Mutual Assistance in Criminal Matters].

- On 18 March 2010 the head of the Department for International Legal Assistance in Criminal Matters (afdeling Internationale Rechtshulp in Strafzaken) of the Ministry of Justice informed the Advocate General that Article 11 [of the European Convention on Mutual Assistance in Criminal Matters] provides only for the possibility to transfer temporarily as witnesses or for purposes of confrontation. Temporary transfer of an accused for trial requires extradition or surrender procedure (uitleverings- of overleveringsprocedure) to be followed, in which case there must be a valid Netherlands title for detention.

- The Advocate General prepared a draft extradition request on 27 April 2010.

- On 6 May 2010 the head of the Department for International Legal Assistance in Criminal Matters informed the Advocate General that it was not possible to request the [applicant]’s extradition from Norway because there was no Netherlands title for his detention. This means that one of the documents referred to in Article 12 § 2 (a) is missing. The ultimate conclusion is that since neither extradition nor temporary transfer within the meaning of mutual assistance in criminal matters (kleine rechtshulp) is possible, there is no possibility to allow the [applicant] to attend the hearing in his criminal case on 1 and 4 June 2010.

- Counsel and [applicant] have had sufficient time to prepare the defence before the hearing on the merits [planned for] 18, 19 and 27 May 2009, which hearing was postponed until 27, 29 and 30 October 2009 only shortly before [it was due to begin]. Counsel has also had the opportunity to discuss the case with the [applicant] and prepare for the hearing before those new hearing dates. It does not make any difference that the [applicant] was arrested in Norway on 4 October 2009. Moreover, in March 2010 counsel visited the [applicant] in Norway to prepare today’s hearing, it being worth noting in this connection that it is open to [counsel] in consultation with the [applicant] himself to make use of [this possibility] more frequently, the Norwegian authorities having imposed no restrictions in this respect.

- Counsel has been explicitly authorised (uitdrukkelijk gemachtigd) to defend the [applicant] at the hearing.

The Court of Appeal considers, in these circumstances, that in weighing the various interests against each other the general interest, including due process (het belang van een behoorlijke rechtspleging) and the interest of bringing the case to a close within a reasonable time must now prevail over the [applicant]’s right to take part in the hearing in person. ...”

The hearing was continued on 4 June 2010. The applicant’s counsel conducted the defence in the applicant’s absence.

The Court of Appeal gave judgment on 18 June 2010. It convicted the applicant of complicity in causing grievous bodily harm resulting in death, abduction and transporting and possessing an unspecified quantity of hashish. It sentenced him to eight years’ imprisonment.

The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad). He complained of a violation of his right to attend the hearing in person as a result of the Court of Appeal’s refusal to order an adjournment until he could be present. His arguments were the following:

Firstly, the starting point should be that an accused had the right to attend the hearing in his case in person; as long as he did not waive that right, he was in principle entitled to an adjournment if he was prevented from so doing. This starting point was not reflected in the Court of Appeal’s reasoning.

Secondly, it did not appear that the Court of Appeal had considered the seriousness of the charges. Considering the charges in issue, and the sentence imposed on appeal (which added years to the sentence imposed at first instance), the Court of Appeal’s decision was misconceived.

Thirdly, the presence of counsel and the length of the proceedings, relied on by the Court of Appeal, were irrelevant. The length of proceedings in particular would be imputable to the suspect if an adjournment was requested by the defence.

Fourthly, the Court of Appeal had failed to respond to the suggestion made by the defence to await the outcome of the proceedings in Norway, after which the applicant could return of his own accord or the execution of any Norwegian sentence could be taken care of in the Netherlands, thus enabling the applicant’s attendance.

Fifthly, the Court of Appeal had failed to explain why “due process and the interest of bringing the case to a close within a reasonable time” were given priority over the applicant’s attendance rights on 1 June 2010 given that those interests had never previously stood in the way of an adjournment of the case.

The Advocate General (advocaat-generaal) to the Supreme Court submitted an advisory opinion (conclusie) in which he expressed the view that, in the light of Article 281 taken together with Article 415 of the Code of Criminal Procedure (Wetboek van Strafvordering), the Court of Appeal had been called upon to decide whether the interest of the examination of the case at the hearing required the hearing to be adjourned. The advisory opinion continues (footnotes omitted):

“11. [In the light of the principle stated, the Court of Appeal’s findings] do not reflect an incorrect understanding of the law; nor, in view of the following, is it incomprehensible. The Court of Appeal has established as fact that [its own] Advocate General has made several unsuccessful attempts to have the suspect – who is detained in Norway – transferred to the Netherlands so that he can exercise his right to attend the hearing in person. This finding implies that the Court of Appeal has considered the question whether it was possible for the suspect to be placed at its disposal for the purposes of the appeal but has answered it in the negative. Moreover, it does not appear likely that the applicant will return to the Netherlands shortly after the end of the criminal proceedings in Norway and will be able to appear at a further hearing. Contrary to what is argued by the drafter of the ground of appeal, the Court of Appeal therefore sufficiently examined the possibilities of mutual legal assistance. The fact that the Court of Appeal did not react in so many words to counsel’s suggestion that the outcome of the Norwegian criminal proceedings should be awaited does not change this. After all, in refusing to order an adjournment the Court of Appeal is not bound to answer every detail of the argument explicitly. [The sentence reflecting the decision that all parts of the request had been refused] was sufficient. That also implies the refusal to await the outcome of the Norwegian criminal proceedings, so that the suspect would be able to attend the hearing in the Netherlands by his own means or by way of transfer of the execution of the Norwegian sentence, if any.

Furthermore, the suspect appeared at the first instance hearings alongside his counsel, in addition to several appeal hearings which he attended together with his counsel. It follows that the suspect had the opportunity to exercise his right to attend hearings and state his version of events to a court, notwithstanding the fact that the merits of the case were not dealt with at the appeal hearings referred to. The summonses for the appeal hearing on 1 and 4 June 2010 – at which hearing the suspect did not appear – were served in accordance with the law. Moreover, the defence could be conducted at this hearing on the applicant’s behalf by the applicant’s counsel, as in fact was the case.

In addition, the Court of Appeal adjourned its examination of the case at the appeal hearing of 27 October 2009 already, at the request of counsel, because of the suspect’s detention in Norway. The examination of the case at the hearing in appeal had been adjourned nine times already, whereas the appeal proceedings lasted more than three years in total. The criminal acts with which the applicant was charged were committed in December 2004 [the drugs crimes] and January 2005 [the crimes against the person of E.] respectively, so that at the time of the appeal hearing of 1 June 2010 – at which hearing the request for an adjournment was made – five years and five months had already passed. Finally, in the cases of the co-suspects, which were dealt with simultaneously with [the present case] but not joined with it, one of them, S., did appear at that hearing.

Contrary to the argument made by the drafter of the point of appeal, the Court of Appeal was under no obligation to consider the seriousness of the charges against the applicant in deciding on the request for an adjournment but it was at liberty to consider the presence of counsel authorised to conduct the defence and the length of the criminal proceedings.

The limpidity of the Court of Appeal’s reasoning is not impaired by the Court of Appeal’s reliance, in refusing the request for an adjournment, on due process and the interest of bringing the case to a close within a reasonable time, even though these arguments supposedly did not stand in the way of adjournments of earlier appeal hearings. I note in this connection that the adjournments, from 23 September 2008 onwards, were connected, at least in part, with the need to ensure due process: the hearing of witnesses and the realisation of the suspect’s right to attend the hearing in person.”

On 13 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law on summary reasoning.

It would appear that the applicant returned to the Netherlands at some time in mid-2013.

The applicant served the remainder of the sentence given by the Amsterdam Court of Appeal. He was released on 26 August 2015.

On 27 January 2011 the Oslo District Court convicted the applicant of drugs offences and sentenced the applicant to eleven years’ imprisonment.

On 1 September 2011 the Borgarting Court of Appeal reduced the prison sentence to five years and six months. It appears from the judgment that on 4 October 2009 the applicant had been caught red-handed importing 46 kilogrammes of cannabis. This judgment became final on 14 December 2011.


CASE OF ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA

Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant organisation is the Vienna Chamber of Medical Doctors (Ärztekammer für Wien). The Chamber represents all medical practitioners in Vienna and also has its own website. The second applicant was the Chamber’s president at the time of the events.

On 18 January 2007 the second applicant published a letter on the first applicant organisation’s website, which was addressed to all members of the Chamber in Vienna and was also sent out to all of them via e-mail. The letter was titled “Locust funds want to take over medical practices” (“Heuschreckenfonds wollen Ordinationen übernehmen”). The second applicant went on to state that he had been forced to write to his colleagues for a serious reason, namely, because it had been reported in the media that the F. company planned to go into “the radiology business”. He added that share-bidding companies planned to offer medical services – initially in the area of radiology, but soon enough in other areas of the profession as well and that doctors risked becoming mere employees of such “locust” companies. If they would not act according to the companies’ wishes, they would be dismissed. The second applicant then explained the assumed legal and organisational basis of such a plan: radiology services which were currently being provided by medical practices could, in future, also be offered by limited companies. Shares of those companies could then be bought by the F. company, and the “locusts” would reach their goal, namely control of the medical profession. Giving an example of a risky development, the second applicant stated that in the last 20 years, colleagues had founded laboratories which had reciprocal agreements with certain health insurance boards. Today, almost all of those laboratories were owned by the F. group, which, in turn, was owned by insurance companies, investment funds and foundations, and which employed a large number of doctors. The second applicant ended his letter by stating that he could guarantee one thing: that the doctors’ professional representative body would make use of all legal and political means available to stop such a disastrous development from going ahead, to prevent that the quality of medical treatment being determined by “managers and controllers” and to ensure, inter alia, that existing medical practices were protected from the competition from “international locust funds” (“internationale Heuschreckenfonds”).

On 24 January 2007 the F. company lodged an action against the two applicants and an application for an injunction with the Vienna Commercial Court (Handelsgericht Wien). The applicants contested the application.

On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants (each of them individually) from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals. The injunction prevented the applicants from referring to the F. company as a “locust”, “locust company” or “locust fund”. The applicants were further prohibited from stating that the provision of services by the F. company, particularly services in the area of radiology, was a disastrous development. The court found that there was a competitive relationship between the F. company and the applicants, and found the statements made by the applicants to be defamatory under Article 1330 of the Civil Code and unethical under the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb).

The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal (Oberlandesgericht Wien) partly granted the appeal, and prohibited the applicants from alleging that the F. company was ruthless towards third parties and medical practitioners, and from calling it, inter alia, a “locust company”. However, it dismissed the F. company’s application to prohibit the applicants from calling its provision of services a “disastrous” development. The Court of Appeal found that the first applicant organisation had locus standi in the injunction proceedings. The Chamber of Medical Doctors held official authority status in relation to certain areas of its work (Bereich der Hoheitsverwaltung), in addition to representing the interests of its members; it was therefore considered a legal entity under the Official Liability Act (Amtshaftungsgesetz). However, when acting as a special interest group, it represented its members’ interests from a mainly economic perspective, rather than acting in its capacity as an official authority. According to the Court of Appeal, the letter in issue pursued the interests of the Chamber’s members, outside the Chamber’s official sphere of activity.

The Court of Appeal further established, referring inter alia to Wikipedia, that the term “locust company“ (“Heuschreckenunternehmen“) was introduced into the political discussion in German speaking countries in 2005 by Mr Franz Müntefering, a German politician, and is ever since used in political debates as a pejorative term for private-equity companies or other forms of capital funds with short-term or exaggerated return expectations – like hedge funds or „vulture“ funds, which also had negative connotations. The domestic court found that there was a need to balance the interests involved in the present debate, reiterating that extreme opinions were only unlawful if they were excessive. As a result of that balancing exercise, the Court of Appeal found that the “locust” statement had to be considered a lawful criticism in the context of a public debate, and that the F. company could therefore not base its claim on Article 1330 of the Civil Code. However, the Court of Appeal classified the applicants’ actions as competitive in nature. Statements of fact made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that Austrian law provided wideranging protection for commercial and economic interests. Those who published an opinion in an economically competitive context were obliged to exercise a higher level of diligence with regard to the facts and bases of their allegations than those who acted in the non-competitive context of a public debate of general interest. Therefore, the Court of Appeal upheld the injunction decision with regard to the statements about the “locust company”.

However, as regards the further statement, namely that provision of certain services by the F. company was a “disastrous development”, the Court of Appeal found that, read in context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion, and thus a value judgment that was not defamatory under Article 1330 of the Civil Code. It also did not fall under section 7 of the Unfair Competition Act.

The applicants lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof). On 22 January 2008 the Supreme Court dismissed the extraordinary appeal. It acknowledged the applicants’ argument that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight in the balancing test. However, the Supreme Court observed that the applicants had made their statement in the clearly economic context of competition between medical practitioners and companies which provided the same services. The applicants could have warned their members of the possible risks of cooperating with companies without overstepping the margin of acceptable criticism. However, the applicants had exceeded that limit and stated that the F. company was a “locust”. That statement was one of fact, and the applicants had not provided evidence of a factual basis for their allegations, and had therefore exceeded the permissible limitations of freedom of expression.

On 7 July 2008 the Commercial Court gave its judgment in the substantive proceedings and ordered the applicants to refrain from: repeating the statement that the F. company was ruthless towards third parties, in particular medical practitioners and patients; and stating that the F. company was a “locust company”, a “locust fund” or a “locust”. It further ordered the applicants to publish and display the operative part of the judgment on the first applicant organisation’s website for thirty days, and to publish it in the first applicant organisation’s print newsletter.

The Commercial Court made substantial reference to the Court of Appeal’s reasoning in the interim injunction proceedings. It followed the previous finding that the relevant statements did not constitute defamation pursuant to Article 1330 of the Civil Code. Examining the statements in relation to the provisions of the Unfair Competition Act, the Commercial Court found that the letter had been written by the Chamber of Medical Doctors in a commercial and not a political context. It had also had the advancement of independent medical practices as an objective, and had contained a warning regarding capital ventures which allegedly threatened doctors’ independence. The Commercial Court found the relevant comparisons with “locusts” to be statements of fact regarding both the F. company and its conduct in relation to third parties, doctors and patients. The statements were also likely to damage the F. company’s commercial interests, and had not been proved to be true.

The used language could also not be justified with a reference to the right to freedom of expression as the statement was uttered within the framework of a commercial competitive relationship. With reference to the Court’s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial language, the Commercial Court observed that a competitor was required to be more diligent in the context of commercial communication among competitors. The term “locust” was almost exclusively loaded with negative meaning, which led to the unethical general vilification of a competitor. The applicants were therefore prohibited from using that statement in relation to the F. company, pursuant to the Unfair Competition Act.

On 19 September 2008 the applicants lodged an appeal against that judgment. On 12 December 2008 the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given in the interim injunction proceedings and added that, according to the case-law of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression required the assessment of whether a factual basis for such a statement existed; if a competitor participated in a public debate of general interest, freedom of expression had more weight with regard to the assessment of the statement than in the context of purely commercial communication. The greater the public interest in being properly informed and the less the statement related to commercial interests, the more the statement would be protected by Article 10 of the Convention. In the present case, there was no doubt that there was an ongoing public debate; however, the commercial interests of the applicants had very much been in the foreground of the communicated statement itself.

The applicants lodged an extraordinary appeal on points of law against that judgment, which was rejected by the Supreme Court on 14 July 2009. The Supreme Court found that the applicants had not only called the F. company a “locust”, but had also reproached this company for negative conduct, such as dominating doctors, dismissing doctors who did not act in accordance with company wishes, and focusing on economic factors rather than the welfare of patients (“Herrschaft über den ärztlichen Berufstand, Kündigung nicht “spurender” Ärzte, Orientierung an ökonomischen Erwägungen und damit nicht am Wohl der Patienten”). Therefore, the expression used had turned into a statement of fact, giving the reader the impression that the F. company had already demonstrated unethical conduct which threatened upon by the lower courts was justified. Even though the applicants had taken part in a debate of general public interest, an untrue and damaging statement of fact was not protected by freedom of expression. Furthermore, the issuing of warnings concerning the potential risks of the provision of medical services by companies was not, as such, prohibited by the decisions of the Austrian courts; the applicants had only been required to refrain from making untrue statements of fact in respect of their competitors.

The decision of the Supreme Court was served on the applicants’ counsel on 27 August 2009.


CASE OF NOVAYA GAZETA AND MILASHINA v. RUSSIA

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

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicant company, an editorial and publishing house registered in Moscow, edits and publishes a national newspaper with a circulation of 500,000, the Novaya Gazeta (“the newspaper”). The second applicant was born in 1977 and lives in Moscow.

At 11.30 a.m. on 12 August 2000 K-141 Kursk, a nuclear cruise missile submarine of the Russian Navy (“the Kursk”), while in the Barents Sea on a naval training exercise, sank as a result of explosions on board. Most of the crew died within minutes of the explosions. However, twentythree crew members (of the 118 aboard) survived the explosions and gathered in a stern compartment. They wrote a note to report the events. All of these twenty-three men died on board the Kursk before the arrival of a rescue team.

The Chief Military Prosecutor’s Office launched an official investigation into the accident under Article 263 § 3 of the Russian Criminal Code (a provision on “a breach of safety procedures while using a means of transportation which causes the death of two or more persons by negligence”) in case no. 29/00/0016-00 (“the investigation”).

On 22 July 2002 the Chief Military Prosecutor’s Office terminated the investigation for lack of evidence of a crime.

On 30 December 2002 B.K., counsel for the relatives of the deceased members of the Kursk crew, challenged the decision to terminate the investigation before the Chief Military Prosecutor. On 4 January 2003 his complaint was dismissed. B.K. challenged both decisions in court.

On 21 April 2004 the Military Court of the Moscow Garrison confirmed the decision of 22 July 2002. On 29 June 2004 the Appeal Tribunal of the Military Court of the Moscow Garrison upheld the judgment on appeal.

Between 2000 and 2005 the applicant company published in the newspaper a number of articles written by the second applicant covering the Kursk catastrophe and the investigation into it.

In late 2004 B.K. lodged an application before the Court on behalf of R.K., the father of D.K., lieutenant-captain of the Kursk, alleging a violation of D.K.’s right to life.

On 24 January 2005, in issue no. 5 of 2426 January 2005, the newspaper published an article written by the second applicant entitled “The Kursk case is now before the European Court” (“‘Дело ‘Курска’ - в Европейском суде” – “the first article”).

The first article reported that R.K. had lodged an application before the Court alleging a violation of Article 2 of the Convention. It described D.K. as the person who had written the note stating that twenty-three men had survived the explosions and had been waiting for rescue in the stern compartment. The note had been discovered in October 2000. According to the first article, the note refuted the official version that all crew members had died as a result of the explosions. The first article stated that after the Kursk had sunk a series of knocks making an SOS signal in Morse code had been audible from the stern part of the submarine. Russian officials, including the then Prosecutor General, V.U., had refused to consider those knocks a plea for rescue, and had established that the noise had originated outside the stern part of the submarine. R.K. had unsuccessfully tried to prove in courts that the omission to consider the knocks an SOS signal amounted to an abuse of public office (“должностное преступление”). His complaints had been rejected by the Moscow Garrison Military Court and the Moscow Circuit Military Court. In particular, the first article read as follows:

“R.K., the father of D.K., and his counsel B.K. have repeatedly tried to prove in Russian courts that this [failure to characterise the noise as an SOS signal] is absurd and [constitutes] an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility.

The abuse of public office, according to the claimants, was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts, V.K. and S.K. The reports by those two military officials (V.K. is the chief forensic expert of the Ministry of Defence, S.K. is the chief navigating officer of the Russian Navy) were relied upon by the investigators, headed by A.E. and V.U., who terminated the criminal case in relation to the Kursk catastrophe and delivered a decision refusing to prosecute eleven officers of the Northern Fleet.”

On 27 January 2005, in issue no. 6 of 27-30 January 2005, the newspaper published another article by the second applicant entitled “The prosecutor’s office is worried about the prospect of the Kursk case being examined by the European Court. All reasonable offers welcome?” (“Перспективы Европейского суда по ‘делу “Курска”‘ взволновали прокуратуру. Торг уместен?” – “the second article”). The second article described State officials’ reaction to R.K.’s lodging the application. It reported that the Leningrad Military Circuit prosecutor had tried to persuade R.K. that his counsel had lodged the application exclusively for the purposes of self-promotion. B.K. had reportedly stated that his client had been willing to cooperate with the prosecutors, and had implied that R.K. had received an offer to have the official investigation reopened in exchange for the withdrawal of his application to the Court. In particular, the second article read as follows:

“B.K., counsel who represents the forty-seven families of the deceased crew members, has also confirmed that the application before the European Court was the last resort. There was no other prospect of success for the Kursk case in Russia, owing to the position adopted by V.U., the Prosecutor General, and A.S., the Chief Military Prosecutor. Apparently, those two officials took a decision to help the officers in command of the Northern Fleet escape criminal responsibility and to terminate the investigation. (B.K. has written about this in his book ‘It has sunk ... The truth about the Kursk hidden by Prosecutor General U.’).”

After the publication of the two articles, V.K., the chief forensic expert of the Russian Ministry of Defence, A.E., the head of an investigative group within the Chief Military Prosecutor’s Office in charge of the Kursk investigation, A.S., the Chief Military Prosecutor of Russia, and the Chief Military Prosecutor’s Office of Russia as a legal entity lodged civil actions for defamation against the applicants with the Basmannyy District Court of Moscow (“the District Court”). Each claimant sought compensation for non-pecuniary damage and the retraction of certain statements appearing in the articles.

V.K. sought the retraction of the following statement:

“... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...”

A.E. insisted that his reputation as the head of the investigative group in charge of the Kursk case had been tarnished by the following text:

The Chief Military Prosecutor’s Office and its head, A.S., sought to have the following parts of the articles retracted:

“There was no other prospect of success for the Kursk case in Russia, owing to the position adopted by V.U., the Prosecutor General, and A.S., the Chief Military Prosecutor. Apparently, those two officials took a decision to help the officers in command of the Northern Fleet escape criminal responsibility and to terminate the investigation.”

On 3 March and 7 July 2005 the District Court joined the proceedings instituted by V.K., A.E., A.S. and the Chief Military Prosecutor’s Office.

On 11 April 2005 an expert linguist of the Russian Language Institute of the Russian Academy of Sciences, at the applicant company’s request, delivered an expert report on the impugned articles. The expert concluded that it was possible to perceive the texts as the reported opinions of R.K. and B.K., and not those of the journalist.

On 7 December 2005 the District Court decided the case. It found that it had been established that the newspaper had indeed disseminated information concerning the claimants. It further found that the information in question was damaging to the claimants’ reputation for the following reasons. The allegations that investigators and experts had tried to help the Navy officers escape criminal responsibility had suggested that these officials had lacked the requisite impartiality when performing their duties. The District Court found the expression “to help escape criminal responsibility” defamatory, as it contained an allegation of criminal conduct. The applicants had failed to provide evidence that the claimants had committed a crime. The District Court dismissed as unsubstantiated the applicants’ reference to the fact that the second article had merely reproduced B.K.’s position as reflected in his book. Furthermore, the District Court reasoned that the applicants had been under an obligation to verify the truthfulness of the information before publishing it. It dismissed the applicants’ assertion that the impugned statements amounted to value judgments. The District Court found in the claimants’ favour, ordered the retraction of the statements concerning the claimants’ involvement in an abuse of public office, and awarded each claimant 50,000 and 7,000 Russian roubles (RUB – approximately 1,470 and 205 euros (EUR)), to be paid by the applicant company and the second applicant respectively. To reimburse court fees, the applicant company was ordered to pay RUB 85 and the second applicant was ordered to pay RUB 15 to each claimant.

In so far as relevant, the District Court’s judgment read as follows:

“... assessing the impugned statements, the court considers that they contain affirmations that V.K., A.E., A.S. and investigators of the Chief Military Prosecutor’s Office broke the Russian law which was in force and committed an abuse of public office, and that such statements tarnish the honour, dignity and business reputation of V.K., A.E., [and] A.S., as well as the business reputation of the Chief Military Prosecutor’s Office as an agency performing, in the name of the Russian Federation, State functions of supervision with regard to respect for the Constitution of Russia and laws in force within the Russian territory.

The defendants have failed to produce any evidence to prove the veracity of the disseminated statements that the claimants abused public office and adopted unlawful decisions.

Looking into the defendant’s claim that the impugned articles reflect the opinion of ... B.K., ... expressed in his complaint before the European Court and his book “It has sunk. The truth about the Kursk hidden by Prosecutor General U.”, the court finds as follows.

... page 170 of the book by B.K. ... contains the following text: “I think that the final decision not to find commanders of the Northern Navy criminally liable was taken by ..., A.S. and ...”

In view of the above, comparing the impugned statements of the article ... and the text of the book, the court considers that the meaning of the phrase “to take a decision not to find [somebody] criminally liable” is not equivalent to the phrase “to take a decision to help [somebody] escape criminal responsibility”.

The complaint ... lodged by B.K. before the European Court ... does not contain statements alleging that the claimants committed an abuse of public office.

Furthermore, the defendants’ arguments that ... the editorial department and the author of the articles are not the authors of [B.K.’s] statements cannot serve as grounds to absolve a mass media outlet and a journalist of responsibility, in view of the following.

Under section 49 of ... the Mass Media Act, a journalist must verify the truthfulness of the information he communicates, and section 57 of the Act sets out an exhaustive list of grounds for absolving an editorial department, an editor-in-chief, or a journalist of responsibility for disseminating untruthful statements that tarnish the honour and dignity of individuals and organisations ...

The court cannot accept as grounds to dismiss the [defamation] action the defendants’ arguments that the impugned statements are opinions, value judgments that could not be retracted under Article 152 of the Civil Code, for the following reasons.

Under Article 17 of the Constitution, freedom of thought and expression, as well as the right to protect one’s honour and good name, are recognised and guaranteed ... At the same time, the realisation of the rights and freedoms of an individual and citizen should not breach the rights and freedoms of other citizens.

In view of the Constitution’s provisions, freedom of thought and expression guaranteed by the Constitution should not serve as an instrument to violate the honour and dignity of others.

Therefore, expression by a journalist of his opinion on any topic, or the publication of an opinion by another person does not give grounds to absolve [the journalist] of responsibility where damage has been unlawfully inflicted on the values protected by the Constitution and the Civil Code of Russia, [such as] honour, dignity and the business reputation of an individual.”

The applicants appealed, arguing in particular that the information contained in the impugned articles amounted to value judgments, and that the articles had reflected the opinions of R.K. and B.K., opinions expressed in the former’s application to the Court and the latter’s book.

On 16 March 2006 the Moscow City Court (“the City Court”) dismissed the appeal and upheld the District Court’s judgment in full. In particular, it reasoned “the defendants have not submitted evidence of the veracity of the disseminated statements, [while] the claimants have provided evidence proving that they did not commit the actions mentioned in the disseminated statements.”

The applicants also unsuccessfully applied for supervisory review.

On 7 December 2005 the District Court issued two writs of execution against the applicant company in V.K’s favour. The first writ contained an order to publish a retraction, and the second one ordered the applicant company to pay V.K. RUB 50,085.

On 3 May 2006 the bailiffs’ service received the writs and commenced enforcement proceedings.

The newspaper published the retraction regarding V.K. in its issue of 22-25 June 2006.

On 26 June 2006 the applicant company transferred RUB 50,085 to the bailiffs’ bank account to be paid to V.K.

On 27 June 2006 the bailiffs’ service terminated the enforcement proceedings against the applicant company in respect of the retraction.

On 28 June 2007 the second applicant transferred RUB 7,490 to the bailiffs’ bank account to be paid to V.K.

On 12 February 2008 the bailiffs’ service initiated enforcement proceedings against the applicants on the basis of writs of execution in A.E.’s favour. They ordered the applicant company and the second applicant to pay RUB 50,085 and RUB 7,015 respectively.

On the same date the applicant company transferred to the bailiffs’ bank account RUB 50,085 on its own behalf and RUB 7,015 on behalf of the second applicant, to be paid to A.E.


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

The applicant was born in 1966 and lived, prior to his conviction, in the Tver Region.

On 21 November 2000 a country house which belonged to a district prosecutor was set on fire.

On 8 February 2002 F. confessed that the applicant had conspired with him to set fire to the prosecutor’s summer house. On the same date the applicant was arrested. He was released on 11 February 2002 on an undertaking not to leave his place of residence.

On 10 December 2003 I. and A. stabbed F. to death.

On an unspecified date the applicant was arrested on suspicion of having organised F.’s murder. He remained in custody pending investigation and trial.

On 6 February 2004 the Kashin Town Court found the applicant guilty of arson. On 25 May 2004 the applicant’s conviction became final.

On 23 June 2004 a local newspaper, Veche Tveri, published an article under the headline ‘Vengeance’. According to the article, the applicant had stood for local elections. However, he had been disqualified by a court at the request of the district prosecutor. The applicant had plotted revenge. He had paid F. to set fire to the prosecutor’s country house. The house had completely burned down. When questioned by the investigator, F. had confessed to arson and had testified against the applicant. Shortly thereafter F. had been found stabbed to death. The article then quoted from the official information note issued by the regional prosecutor’s office:

“The investigation has established’, states the information note, ‘that in 2003 [the applicant] and F[.] had an argument ... [;] [the applicant] started to fear that he could no longer control F[.] and that the latter would not only interfere with his plan to protract the trial but would give truthful testimony incriminating him in the arson of [the prosecutor’s] country house ... . [The applicant] organised F.’s murder to silence him.

The murder was carried out by two residents of the town of Kalyazin, who were charged with F.’s murder.”

According to the applicant, several more articles reporting on the arson and murder cases were published in the local press at around the same time. On 15 July 2004 a TV programme “Police unit on duty” (Дежурная часть) broadcast daily on the federal RTR channel, covered the applicant’s case.

The jury trial started on 16 August 2004. At the beginning of the trial the presiding judge asked the jurors whether they had read about the case in newspapers or heard about it from other sources. All the jurors answered in the negative. They also stated that they had not yet formed any opinion about the defendants’ guilt or innocence.

At the hearing of 24 August 2004 the court examined the prosecution witness Sh. At the request of the prosecutor, the written statements he had made during the investigation were read out to the jury. Sh. then explained that his statements to the investigator had been more detailed and precise, as at the time of the investigation he had remembered the events better. The applicant was then allowed to put questions to Sh. The relevant excerpt from the record reads as follows:

“[The applicant asks]: ‘How many times were you questioned? Were your statements to the investigator voluntary?’

The presiding judge rules [the applicant’s] question out of order and warns him that he should not [raise issues] of admissibility of evidence in the presence of the jury as it may be considered an attempt to influence the jury.

[The applicant asks]: ‘What state were you in when giving those statements?’

The presiding judge rules [the applicant’s] question out of order and warns him that if he continues to put questions concerning admissibility of evidence he may be excluded from the hearing room.

[The applicant says]: ‘The witness was drunk, the police officers had given him alcohol, he was made [temporarily] insane.”

The presiding judge interrupts [the applicant] and directs the jury to disregard [his] remarkds about the circumstances in which Sh. was questioned, as this issue is not within the competence of the jury.

[The applicant continues]: ‘All the evidence has been forged and the case does not hold water.’

Taking into account [the applicant’s] repeated attempts to influence the jurors, the presiding judge decides to exclude him from the courtroom.

The presiding judge directs the jurors that they should disregard [the applicant’s statements] ... and should proceed from the understanding that all evidence presented to them ... was collected in accordance with the procedure established by law and was not [declared inadmissible].”

The trial court continued the hearing in the applicant’s absence. Further hearings were held on 25 and 26 August 2004. The applicant was not brought to the courtroom. All hearings were attended by his counsel. During those hearings several witnesses and the applicant’s co-defendants testified. One of the co-defendants pleaded not guilty, while the other confessed to the murder and stated that he had committed it on the applicant’s instructions and had received remuneration from him.

The applicant was brought to the courtroom at the end of the hearing of 26 August 2004 and was allowed to make a closing statement. The applicant pleaded not guilty. The jury delivered a guilty verdict. They found it established that applicant had hired I. and A. to murder F.

The presiding judge indicated in the verdict that (1) the applicant’s actions, as established by the jury, should be characterised as incitement to murder, and (2) the jury had not established that the applicant had been the organiser of the murder or had directed its execution.

On 2 September 2004 the Tver Regional Court found the applicant guilty of incitement to murder and sentenced him to seventeen years’ imprisonment.

The applicant appealed. In particular, he complained that his presumption of innocence had been violated by publications in the press, that he had been removed from the courtroom and that the presiding judge had recharacterised his offence after the jury had delivered the verdict. He also complained that the evidence had been assessed inaccurately and that he had been found guilty of the crime he had not committed.

On 9 February 2005 the Supreme Court of the Russian Federation upheld the judgment on appeal. The court noted, in particular, as follows:

“... as regards the [applicant’s] removal from the courtroom, [the appeal court] finds that the presiding judge’s decision was in full compliance with [the applicable rules of criminal procedure].

[The applicant] repeatedly breached the order in the courtroom and attempted to influence the jurors. The presiding judge repeatedly reprimanded [the applicant], warned him and explained to him the consequences of [his] conduct. However, [the applicant] chose to ignore [the warnings]. Accordingly the decision to remove [the applicant] from the courtroom was justified.

In those circumstances, the counsel’s argument that [the applicant’s] right to participate directly in the examination of the evidence and to defend himself in person was violated is unfounded. [The applicant] waived his rights.

[The applicant’s] argument that the publications in the media ... negatively influenced the jurors should be rejected as unfounded.

Before the commencement of the trial all jurors replied in the negative to the question whether they had heard about the case from the media ... .

The defendants’ actions established in the verdict received the correct legal characterisation.

It was permissible to change the legal characterisation of [the applicant’s] actions from organisation of murder to incitement to murder, as the new legal characterisation was based on the same evidence as established in the verdict. [The applicant’s] defence rights were not violated.”