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

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The first applicant was born in 1959. From 2004 until 16 January 2012 he was Minister (Landesrat) of the Regional Government of Carinthia (Kärntner Landesregierung). He was also head of the Austrian Peoples’ Party in Carinthia (Österreichische Volkspartei Kärnten – ÖVP Kärnten), which was coalition partner of the Alliance for the Future of Austria (Bündnis Zukunft Ӧsterreich, BZӦ) under the leadership of J.H.

The second applicant was born in 1970 and lives in KlagenfurtWölfnitz. He studied law and worked as a lawyer before becoming an employee of the Landes-und Hypothekenbank (“H. Bank”) in 1999. In 2004 he became a board member of that bank. In 2007 he became a member of the board of Kärntner Landes- und Hypothekenbank-Holding (hereinafter referred to as “Landesholding”).

The third applicant was born in 1964 and lives in Maria Wörth. He studied law and worked as a lawyer before becoming an employee of the law department of the H. Bank in 1999. In 2001 he was appointed head of that department. In 2005 he became a member of the board of the Landesholding.

The Landesholding is a corporate body governed by public law (Anstalt öffentlichen Rechts). It was set up to manage the estate of the Land of Carinthia considering its interests (unter Berücksichtung der Interessen des Landes). The Land of Carinthia is liable as a guarantor in the event of Landesholding’s insolvency.

The Landesholding is governed by a board of management (Vorstand), consisting of two people, which represents it. The board is supervised by a supervisory body (Aufsichtsrat), which appoints the board’s members and participates in special commercial transactions specified by the law. The supervisory body itself is appointed by the Regional Government of Carinthia and is composed of representatives of the political parties to the regional parliament (Landtag).

It is the task of one member of the regional government – the commissioner (Aufsichtskommissär), a position defined by the relevant law – to monitor the supervisory board. He or she has the power to appeal against decisions of the supervisory board if they run counter to the interests of the Land.

On 1 January 1991 the H. Bank was disjoined from Landesholding and became a public limited company (Aktiengesellschaft). The majority of its shares were held by Landesholding until 2006. Following an increase in capital stock at the end of 2006, Landesholding still owned 44.91% of the shares.

From 1999 to 2008 Regional Governor and Head of the Regional Government of Carinthia was J.H.

In 2007, as Governor of Carinthia, J.H. was the commissioner. The first applicant was chairperson of the supervisory board of the Landesholding.

After careers as managers in H. Bank, the second applicant and the third applicant were appointed as members of the board of management of Landesholding.

In 2007 B. Bank showed an interest in taking over H. Bank by buying a certain number of its shares. The ensuing negotiations involved J.H. and the first applicant as the political leaders of the Regional Government of Carinthia, the head of the management board of H. Bank, the head of another shareholder, as well as an investors group. The main negotiations were carried out by investment banks and law firms. J.H. and the first applicant appointed D.B., an accountant and financial consultant (Wirtschaftsprüfer und Steuerberater) based in Villach, Austria, to take part in and supervise the negotiations.

The board of management of Landesholding itself was not informed and did not participate in the negotiation process. Not only did it not appoint D.B. but it was not informed about his mandate. It was informed about the negotiation process just a short time before the signing of the contract. D.B.’s mandate was not communicated to it.

The Landesholding management board had to sign the contract for the transfer of the shares and the supervisory board had to authorise the transaction in advance. On 21 May 2007 the supervisory board was informed by the first applicant on behalf of the management board, and the deal was confirmed by four votes to three. The contract was signed on 22 May 2007.

On 9 October 2007 all the legal arrangements necessary for finalising the transaction were completed. B. Bank bought around 25% of the shares previously held by Landesholding for 809,544,534 euros (EUR).

In a plenary debate of the Carinthian Regional Parliament on 9 August 2007, J.H. stated that the costs of the consultation service connected to the share deal would not exceed EUR 250,000.

In February 2008 the first applicant and J.H. informed the second applicant that they had entrusted D.B. with supervising the negotiations on behalf of Landesholding and that he was entitled to a fee of 1.5% of the total sales profit (EUR 12,143,168). They said that Landesholding should pay that fee. The second applicant informed the third applicant, and on 12 February 2008 they both presented D.B.’s claim for fees as reasonable to the supervisory board of Landesholding. The lawfulness of the claim was a matter of discussion at the supervisory board meeting. No final conclusion was reached in that regard.

After the meeting of the supervisory board, the media reported on D.B.’s claim and expressed doubts as to his contribution to the negotiation process and the amount of the fee. Following the media coverage and the discussion at the supervisory board’s meeting, the Landesholding management board (the second applicant and the third applicant) commissioned lawyers and legal experts and asked them to confirm the appropriateness and reasonability of the claim for fees.

Three external legal experts examined the case put before them. They assessed the risk of civil claims being raised and the potential consequences under criminal law, under the explicit assumption that the bill for D.B.’s services was reasonable. The core question – whether D.B.’s claim for fees was reasonable – was to be answered by another three external experts. One of those experts, however, informed the second applicant, the third applicant and their lawyers that he would not conclude that the claim for fees was reasonable. According to a note of 7 March 2008 written by a lawyer appointed by the second and the third applicant, they tried to persuade the privately commissioned expert in a telephone conversation to make several changes to his report and to declare that the fees were reasonable. The expert refused to do so. In the end, he agreed to delete one paragraph which had stated that the services provided by D.B. were not equivalent to those of an investment bank.

As the media controversy did not cease and the expert had not confirmed the reasonableness of the fee, D.B. agreed in talks with J.H. and the first applicant to reduce his claim for fees by half. The expert was then asked to amend his report and in March 2008 he concluded that a fee of EUR 6,000,000 could be considered reasonable considering the fees generally charged by investment banks.

Based on this expert’s report, the supervisory board discussed the payment of the fee at its meetings held on 25 April and 29 May 2008 and finally agreed to the payment by four votes to three.

On 4 June 2008 the third applicant ordered the payment of EUR 4,500,000 to D.B. On 17 December 2009 the second applicant and the third applicant ordered the payment of the remaining amount to D.B.

The share deal was the subject of intense debate within the Carinthian Regional Parliament and the Bavarian Regional Parliament, as B. Bank’s head office was in Munich. That led to parliamentary enquiries (Untersuchungsausschuss) in both parliaments.

The Carinthian branch of the Social Democratic Party of Austria (SPӦ Kärnten) and R.H., a Member of the Carinthian Regional Parliament, lodged separate criminal complaints (Strafanzeige) against J.H., the first applicant and D.B. In March 2008 the public prosecutor opened preliminary proceedings against J.H., the first applicant and D.B. for breach of trust and fraud.

On 21 June 2008 the second applicant and the third applicant submitted four expert reports indicating that the fees claimed by D.B. for his services in the negotiation process had been appropriate and reasonable.

J.H., the first applicant and D.B. gave statements to the public prosecutor and refuted the accusations.

On 2 September 2008 the second applicant and the third applicant gave statements and submitted a contract of 28 April 2008 concluded between J.H., the first applicant, Landesholding and D.B. in which D.B. had reduced his claim for fees from EUR 12,143,168 to EUR 6 million.

On 19 January 2009 the Klagenfurt public prosecutor closed the preliminary proceedings. The investigations against J.H. were closed because he had died on 11 October 2008. The preliminary proceedings against the first applicant and D.B. for breach of trust were closed because a new contract had been concluded fixing a lower fee and the expert reports submitted by the accused had indicated that the claim for fees was appropriate and reasonable. The proceedings against the first applicant for perjury (Falsche Beweisaussage) committed at a hearing of the parliamentary enquiry carried out by the Carinthian Regional Parliament were closed because it could not be proved that he had intended to commit that crime.

On 13 February 2009 R.H. filed a request for the reopening of the preliminary proceedings.

On 17 September 2009 the Graz Court of Appeal rejected the request for the reopening of the preliminary proceedings.

On 1 March 2010, eleven people lodged criminal complaints with the Procurator General’s Office (Generalprokuratur). They accused all of the Klagenfurt public prosecutors of abuse of authority. They asked for the reopening of the preliminary proceedings and the transfer of the case to another public prosecutor’s office. The Procurator General’s Office transferred the file to the Public Prosecutor’s Office for Crimes of Corruption (Korruptionsstaatsanwaltschaft) (“the KStA”). The KStA conducted an investigation, closed the preliminary proceedings against the public prosecutors and transferred the file to the Klagenfurt public prosecutor’s office, proposing the reopening of the preliminary proceedings.

On 19 January 2011 the public prosecutor reopened the proceedings against the first applicant and D.B. On 9 February 2011 the investigations were extended to the second applicant and the third applicant for breach of trust.

On 6 April 2011 the public prosecutor appointed F.S. as an expert in the preliminary proceedings and instructed him to submit a report dealing with the following questions:

“- whether the services of D.B. as described in a letter of April 2007 and the progress report of 20 February 2008 were comparable to the services normally offered by an investment bank in similar circumstances

- what fee was appropriate and reasonable for the services D.B. had provided.”

The accused were informed about the appointment of the expert and told that they could object to his appointment within three days. The applicants did not object. At an unspecified date the case file was transferred to F.S.

On 28 June 2011 F.S. delivered his expert report. The report stated that the services provided by D.B. were not comparable to the services of an investment bank and that a fee of EUR 200,000 would be appropriate and reasonable for the services provided by D.B.

The report was served on the applicants.

On 19 September 2011, the second applicant submitted reports by two court-approved experts which he had commissioned on a private basis. The private expert reports stated that fees of 1.5% of the sum of the transaction were reasonable for the services provided by an investment bank when negotiating a share deal in a similar situation. The services provided by D.B. could in part be seen as those of an investment bank. The second expert certified that D.B. had carried out 43% of the activities normally carried out by an investment bank. Those expert reports were transmitted to F.S. for further consideration.

On 28 September 2011 F.S. commented on the private expert reports submitted by the second applicant. He said that he had examined carefully the findings of the two experts and that the methods used to assess which activities D.B. had been involved in within the negotiations were not plausible. F.S.’s comment was served on the accused.

On 5 October 2011 the third applicant submitted another expert report by a court-approved expert which he had commissioned on a private basis to counter the findings of F.S. The expert report stated that F.S. had overstepped his competence by weighting the evidence. He had also not fulfilled the formal requirements of an expert report. The calculation of EUR 240,000 as a reasonable fee was criticised as wrong.

On 6 October 2011 that expert report was sent to F.S. for further consideration and, if necessary, amendment of his report.

On 14 October 2011 F.S. commented on the expert report commissioned by third applicant and concluded that there was no need to alter his findings. His comment was submitted to the accused.

On 16 December 2011 Landesholding submitted another expert report which its supervisory board had commissioned from a private limited company. The report examined the liability of the board members under civil law and concluded that the second applicant and the third applicant could not be held liable for their actions under civil law.

On 19 December 2011 the second applicant commented on that expert report.

On 21 March 2012 the public prosecutor filed a bill of indictment, charging the second applicant and the third applicant for breach of trust under Article 153 of the Criminal Code and the first applicant and D.B. for aiding and abetting in breach of trust. Based on the expert’s report prepared by F.S., the public prosecutor claimed that the applicants and D.B. knew that only a fee of a maximum of EUR 240,000 was reasonable for D.B.’s assistance in the negotiation process, but had nevertheless instructed Landesholding to pay a fee of EUR 6 million. Therefore they had caused damage amounting to EUR 5,760,000.

The Klagenfurt Regional Court sent out summonses and appointed F.S. as official expert to the trial.

All the applicants and D.B. submitted statements disputing the contentions of the public prosecutor but none of them appealed against the bill of indictment. The second applicant submitted eleven reports by private experts commissioned by the accused in the preliminary proceedings and requested that two of those experts be summoned as official experts to the trial.

On 4 July 2012 the trial started.

After several hearings D.B. conceded on 11 July 2012 that the findings of the official expert, F.S., were correct inasmuch as his services to the negotiation process had not corresponded to a fee of EUR 6 million but only to a fee of EUR 300,000. He further stated that, in his view, the second applicant and the third applicant had known at the relevant time that his fee was inappropriate and unreasonable. Also, his bill had been established together with the second applicant in February 2007 when the latter had stated that he needed documentation to present to the supervisory board of Landesholding.

The applicants disputed D.B.’s confession and argued that the fee paid to him had been reasonable.

On 18 July 2012 the third applicant asked the court not to include the expert report of F.S. in the case file. He argued that F.S. had to be treated as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, F.S. was a professional lawyer and university professor in Germany and not registered in Austria as an expert for book-keeping, cost accounting or financial auditing in the list of court appointed experts and therefore lacked the necessary expert knowledge for assessing whether the remuneration of D.B. had been appropriate. Lastly he submitted that F.S. had been biased because in the course of the preliminary investigations he had answered questions of assessment of evidence and questions of law. Should the court not appoint another official expert for the trial, the third applicant requested that the privately commissioned expert reports presented to the court be included in the file. He also requested that the experts who had drawn up those reports be summoned for questioning as official experts in the trial. The other applicants joined those requests.

The Regional Court dismissed all the requests. As regards the challenge for bias of F.S. and the request not to hear him as expert or to read out his report, it found that from the case file and the evidence collected hitherto it did not appear that there were reasons for considering him as being biased. Since F.S. had been summoned to the hearing by the trial court, he had at the same time been appointed as expert by that court. As regards the argument that he had answered questions of assessment of evidence and questions of law in the preliminary proceedings, the court found that, even assuming that this had been the case, such statements had to be disregarded by the court. As regards the private experts commissioned by the applicants as court appointed experts the Regional Court pointed out that only after having examined and discussed the report by the court appointed expert, the necessity of appointing other experts could be decided.

The public prosecutor extended the charge, claiming that the damage caused by the accused amounted to EUR 6 million.

On 25 July 2012, D.B. confessed that in 2007, after his bill had been paid by Landesholding, the first applicant had asked him to share the money with him and J.H. D.B. had handed over part of the payment to the first applicant. Other leading members of the Alliance for the Future of Austria party had asked for money as well.

At the same hearing, the first applicant conceded that after the deal with B. Bank had been concluded, he and J.H. had decided that part of D.B.’s fee should be used to finance the Austrian Peoples’ Party in Carinthia and the Alliance for the Future of Austria party. He further confessed that he had received a portion of the fee from D.B.

The second applicant and the third applicant maintained their initial statements and claimed that they had acted in good faith without knowing that D.B.’s fees were not reasonable.

On 9 August 2012 F.S. was heard by the court. He gave a brief summary of his written expert report and answered the questions raised by the court and the parties to the trial. While F.S. was being questioned, an expert commissioned by the defence sat next to the applicants’ lawyers and advised them but was not allowed to question F.S. on his own. There is no indication that F.S. took part in any other hearing or put questions to witnesses or the accused.

After the questioning of F.S., the applicants and their co-accused reiterated their request to appoint another official expert. In their view, the answers given by F.S. had shown that his expert report was deficient. They further argued that the appointment of another expert was necessary because F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court.

The court dismissed those requests.

On 1 October 2012 the Klagenfurt Regional Court reached a verdict. It convicted the accused as charged and sentenced the first applicant to five and a half years, the second applicant to three years, the third applicant to two years and D.B. to three years of imprisonment. In addition, they were ordered to repay EUR 4,765,193 plus interest to Landesholding for compensation. The Regional Court found that the services provided by D.B. in the negotiation process only corresponded to fees in the amount of EUR 300,000 and that the second applicant and the third applicant had been aware of that fact but had breached their obligation of diligence by authorising the payment of EUR 6 million to D.B. As the first applicant had asked them to authorise the payment, he was guilty of abetting them.

The applicants lodged pleas of nullity and appeals against the sentence. D.B. also lodged an appeal against the sentence. The public prosecutor appealed against the sentences imposed on the second applicant, the third applicant. and D.B.

In their pleas of nullity the applicants, relying on Article 281 subparagraph 4 of the Code of Criminal Proceedings (Strafprozessordnung, hereinafter referred to as CCP), stated that the Regional Court should have appointed another official expert. The proceedings had made it clear that F.S.’s expert report had been deficient. F.S. had been appointed by the public prosecutor and had delivered the basis for a bill of indictment, which showed that he was biased. F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, under Article 126 § 4 of the CCP a challenge for bias against an official expert could not be made on the grounds that he had previously been appointed as official expert in the preliminary investigations. They argued that this provision was not in line with the right to a fair trial under Article 6 of the Convention, as they did not have a real chance to counter F.S.’s expert report. This was aggravated by the fact that the expert reports commissioned by the applicants and their co-accused and submitted to the trial court had not been admitted to the file and the experts had not been summoned as requested. They therefore asked the Supreme Court to request a review of the constitutionality of Article 126 § 4 of the CCP by the Constitutional Court.

On 11 March 2014 the Supreme Court dismissed the applicants’ pleas of nullity and the appeals of the second applicant and of the public prosecutor, but partly granted the appeals of the first applicant, the third applicant and D.B. The sentence imposed on the third applicant was added to a sentence previously imposed on him on of 2 February 2013 (Zusatzstrafe), and the sentences imposed on the first applicant and D.B. were reduced to four and a half years and two and a half years of imprisonment respectively.

With regard to the alleged violation of Article 6 of the Convention, the Supreme Court found that Article 126 § 4 of the CCP should in general ensure that two different official experts were not appointed in the preliminary proceedings and the trial, as this would result in delays in the proceedings. Article 126 § 4 of the CCP did not exclude a challenge for bias, except when it was merely argued with the fact that the expert had been appointed previously in the preliminary proceedings. The requests to appoint another expert had been dismissed by the court not on the grounds of Article 126 § 4 of the CCP but for other reasons. In fact, it had dismissed the requests because the applicants had not given valid reasons for their bias challenge. It had not been shown that the expert had a close relationship with the public prosecutor that would cast doubts on his objectivity.

Moreover, the neutrality of the expert was ensured as he or she was obliged by law to act in an objective manner. His or her findings had to be based on facts established using scientific methods and principles. Criminal law (perjury) as well as the provisions on challenge for bias would ensure that his or her findings and conclusions were in accordance with the law. The expert was not part of the public prosecutor’s office, and the results of the proceedings had no effect on his or her payment. In the event of a dispute between the public prosecutor and the accused about the amount of the expert’s fees, it was up to the court to fix the amount and to pay the expert.

The Supreme Court also reasoned that in preliminary proceedings as well as in a trial, an accused could address written questions to the official expert and question him or her in court and, in so doing, the accused could be assisted by a privately appointed expert. The Supreme Court noted that the applicants had made use of this opportunity. In that way, the accused had an opportunity to show that the official expert’s report contained errors or shortcomings. If those errors or shortcomings could not be corrected by the official expert, the court had to dismiss him or her and appoint another expert to draw up a report. Furthermore, the findings and conclusions of the official expert could be challenged even before the trial stage by lodging an objection (Einspruch) against the bill of indictment, but this had not been done in the case at hand (see paragraph 50 above).

The Supreme Court rejected as inadmissible the first applicant’s complaint that contacts between the public prosecutor and F.S. had influenced the latter and rendered him biased vis-à-vis the accused as this complaint had not been submitted following the proper proceedings. It added, however that such a complaint was in any event ill-founded, since the initial contact between the public prosecutor and F.S. merely had the purpose of clarifying under which conditions F.S. would accept the task of drawing up an expert report and subsequent contacts consisted in supplementing the case file which had been transmitted to F.S. for drawing up the report. Thus, it could not be seen how this kind of contact could give rise to doubts as to the neutrality of the expert.

The Supreme Court held further that the applicants in the present case had not used their opportunity to question the competence of F.S. or to object to his appointment in the preliminary proceedings. Moreover, the Regional Court had based its findings and decision primarily not on the expert report, but on D.B.’s confession. Citing the Court’s case-law (Brandstetter v. Austria, 28 August 1991, Series A no. 211; Bönisch v. Austria, 6 May 1985, Series A no. 92; and C.B. v. Austria, no. 30465/06, 4 April 2013), the Supreme Court found that the applicants had had sufficient opportunities to question F.S. during the hearing of 9 August 2012. Consequently, the Supreme Court had no doubt that the right to equality of arms in the trial had been maintained.

The written decision of the Supreme Court was served on the applicants on 27 March 2014.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicants were born in 1968 and 1965 respectively and live in Pazardzhik. They are spouses.

On 20 August 2002 the first applicant, as a sole trader, took out a bank loan in order to purchase computers and to set up a computer club. The computer club was situated in a garage owned by the applicants. The second applicant assisted the first applicant in running the club and replaced him when he was absent.

When he started his business, the first applicant purchased five computers and several computer games, which he installed on the computers. His customers were able to use the computers for one Bulgarian lev (BGN) per hour.

As the first applicant was renting the computers to his clients, he was obliged to pay the necessary licensing fees to the distributors of the companies that owned the copyright of the products. However, in 2004 the first applicant failed to renew his contracts with the distributors.

On 3 April 2004 the police conducted a check on the applicants’ premises and warned the first applicant to abstain from illegally reproducing and distributing software.

On 9 November 2004 the director of the local sanitation department at the Ministry of Health ordered that the computer club be closed down for health reasons.

On 31 January 2005 Mr V.E., a manager of a company that distributed computer games, lodged a complaint with the district prosecutor in Pazardzhik. Mr V.E. stated that he had visited the applicants’ computer club on several occasions in the period between September and December 2004. He claimed to have noticed that despite their lack of a software license for reproduction and distribution, the applicants had installed certain types of games on the computers and were renting them to their clients. Mr V.E. mentioned specifically some of the games. He also claimed that the applicants had visited his office several times and had been aware of the requirements concerning reproduction and distribution of computer games. Lastly, he claimed that he had warned the applicants about the possible sanctions but had received only threats in response, especially from the second applicant.

In an order of 2 February 2005 the district prosecutor noted that a complaint had been lodged by Mr V.E. alleging that a crime had been committed under Article 172a § 2 of the Criminal Code of 1968 (see paragraph 32 below). He further observed that there was insufficient information to justify the institution of criminal proceedings. Therefore, relying on section 119(1)(3) of the Judiciary Act 1994 (see paragraph 26 below), he ordered the police to conduct an inquiry into the computer club in order to collect more information as to whether a crime had been committed under Article 172a § 2 of the Criminal Code 1968. The prosecutor stated that when examining the computer club, in the event that the police officers established that software was being used illegally, they should take measures to secure the necessary evidence, including an onthespot inspection and search and seizure of the computers.

In executing the prosecutor’s order, on 14 February 2005 the police authorities drew up an action plan. A police officer with technological expertise would compare the software installed on the computers with the purchased software. In the event that discrepancies were found, the police would conduct a search and seizure. The operation was planned for 21 February 2005.

At approximately 3.30 p.m. on 21 February 2005 the police, including a police investigator (дознател), arrived at the computer club. The applicants claimed that at that time the computer club had been closed to the public following the order of the Ministry of Health (see paragraph 11 above). They submitted that they had been at the club with some friends and that the cash till had been on because the second applicant had just finished a typewriting job and had been paid for it.

The police officers noted that the computers were running and that there were people in the club. They explained the aim of the inspection. It appears that the first applicant objected to the possible search and seizure, stating that the police did not have a judicial warrant, and asked for permission to contact a lawyer. The police apparently briefly pointed to the prosecutor’s order of 2 February 2005. The first applicant was allowed to contact his lawyer but, according to the applicants’ submissions, the police refused to wait for the lawyer’s arrival.

The police inspected the receipts from the club’s cash till and the daily sales record and concluded that the applicants had received money that day, most probably for providing commercial services. The police then inspected the applicants’ five computers and found that a number of computer games had been installed on them. The first applicant was invited to present documents, such as purchase invoices or any other evidence of his title to the games. As he failed to do so, the police seized the computers. The search-and-seizure operation ended at 6 p.m.

The search-and-seizure operation was carried out in the presence of two certifying witnesses. The police drew up a report containing an inventory of the seized items, namely the computers and their content, which consisted of computer programs, computer games and films. The report was signed without comment by the certifying witnesses. The first applicant refused to comment on the report or to sign it.

On 22 February 2005 the police investigator sent a letter to the district prosecutor informing the prosecutor of the results of the operation. She noted that following the search-and-seizure operation, criminal proceedings (a police investigation) had been instituted against the first applicant for illegal reproduction and distribution of software.

On the same day, at the request of the police investigator, a District Court judge approved the search-and-seizure operation on the basis of Article 135 § 2 of the Code of Criminal Procedure 1974 (“the 1974 Code”). The judge described factually the course of the search-and-seizure operation and briefly cited the text of Article 135 § 2, stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. The decision was sent to the police in order to be enclosed with the case file as an integral part of the search-and-seizure record.

On 23 February 2005 the first applicant lodged an application with the District Court, requesting the court not to approve the searchandseizure record and arguing that a search and seizure had not been the only means by which the preservation of evidence could have been undertaken and that there had not been pressing circumstances. The first applicant also claimed that the computers contained letters as well as personal information about friends and clients. On 2 March 2005 the application was returned to the applicant as inadmissible as the search and seizure had already been approved by a court decision, which was not subject to appeal.

On 25 February 2005 both applicants submitted a request to the prosecutor for the return of the computers. They maintained that the computers contained private correspondence and personal information about themselves and their clients, and were also necessary for their other professional activities, namely providing typewriting services to the public. On 14 March 2005 the district prosecutor refused to return the computers.

The first applicant sought judicial review, arguing again that the computers contained personal information and correspondence with different State entities. In a decision of 15 April 2005 the Pazardzhik District Court upheld the prosecutor’s order. It held that the computers were the subject of an expert examination and were necessary for the investigation. It found irrelevant the assertion that the computers contained personal information.

In June 2005 the first applicant again sought the return of the computers. His request was rejected by the prosecutor and the court on 24 June and 15 July 2005 respectively on the grounds that the computers were necessary for the investigation. The applicant’s assertions that the computers contained personal information and were necessary for his wife’s business were not discussed. In October 2005 the applicant submitted the same request to the prosecutor, who again rejected it. The applicant submitted that the prosecutor had never forwarded his ensuing appeal against the rejection to the court.

On 8 November 2005 the first applicant was charged, inter alia, with the unlawful distribution of computer programs, computer games and films. In a final judgment of 22 December 2008 the Supreme Court of Cassation upheld the first applicant’s conviction. It held that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant’s conduct had led to significant damage. He was sentenced to one year and six months’ imprisonment suspended for three years, and ordered to pay a fine in the amount of BGN 4,000. The computers were confiscated.


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Richard Kaiser, is a German national who was born in 1964 and lives in Passau. He is represented before the Court by Mr Thomas Krankl, a lawyer practising in Vienna.

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

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

The applicant is the father of E., A., and K., all of whom were born in wedlock in 2002, 2003 and 2005 respectively.

In 2006 the applicant was living with his wife and his children in Vienna.

At the request of the applicant’s minor children, represented by the Vienna Youth Welfare Service (Amt für Jugend und Familie), the Favoriten District Court (Bezirksgericht Favoriten) issued on 3 March 2006 an interim injunction for the duration of three months ordering the applicant to leave the joint household and the immediate surroundings of the family’s apartment, prohibiting him from returning to the apartment and contacting his wife and children, ordering him to avoid any meetings with them, and banning him from the children’s kindergarten.

Having heard the children’s mother, the applicant and a social worker, the Favoriten District Court noted that the children’s mother had alleged repeated sexual abuse by the applicant in respect of his eldest daughter (then four years old) and had testified that she had found skin abrasions on her daughter and that on one occasion her genital area had been smeared with blood. The applicant had denied any misconduct. The District Court also took into account the findings of an initial examination of the applicant’s eldest daughter by a clinical psychologist at a children’s hospital in Vienna. The girl had told the psychologist that she had suffered severe abuse at the hands of her father and had illustrated graphically what she had meant using anatomically correct puppets. The District Court found the girl’s mother’s testimony in respect of the events clear, credible and trustworthy. Overall, the seemingly substantiated allegations of extensive sexual abuse by the applicant indicated a real risk for the children’s wellbeing. The child had been taken into psychological care. Since the children and their mother had a need to be provided with housing, the court ordered the applicant to leave the joint apartment. The applicant did not lodge an appeal against this decision. Therefore, it became final.

On 30 March 2006 the applicant’s wife brought an action for divorce.

In May 2006 the children, at the time represented by their mother, lodged a request for the extension of the interim injunction; the Favoriten District Court, referring to the case file and to the pending criminal investigation in respect of the applicant (see paragraph 10 below), on 16 June 2006 granted that request and extended the interim injunction until the conclusion of the divorce proceedings. The applicant did not lodge an appeal against this decision.

In addition to the request for an interim injunction against the applicant, the Vienna Youth Welfare Service filed criminal information with the Vienna Public Prosecutors’ Office that was based on information supplied by the children’s mother and the report of the psychologist (see paragraph 7 above). The applicant was indicted on charges of sexual abuse of minors and abuse of a relationship of authority by the Vienna Public Prosecutor’s Office. The child, represented by a lawyer, took part in the criminal proceedings as a private party (Privatbeteiligter). On 18 October 2006 the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien) acquitted the applicant of the charges of sexual abuse of minors and abuse of a relationship of authority. It found that the witnesses heard in the course of the oral hearing had not been able to verify the suspicions. Furthermore, a psychological expert, ordered by the court to examine the applicant’s daughter, had stated that the child’s ability to recount past events or experiences was not sufficiently developed. Therefore, the criminal court declined to hear the child, even with the assistance of an expert. Because of the lack of evidence, the criminal court could not determine the relevant facts in regard to the accusations. The applicant was acquitted, having been given the benefit of doubt. This decision became final.

On 13 November 2006 the applicant, referring to his acquittal, lodged a request with the Favoriten District Court for the lifting of the interim injunction. However, on 18 April 2007, the Favoriten District Court refused that request. It found that a request under section 399 of the Enforcement Act to lift an interim injunction (see paragraph 33 below) could only be successful if the need to protect the legitimate interests of the person concerned had ended. This would be the case if the circumstances which had made the granting of the decision necessary had changed. However, the Regional Court had acquitted the applicant, pursuant to Article 259 § 3 of the Code of Criminal Procedure (Strafprozeßordnung, hereinafter, the CCP – see paragraph 22 below), only because the applicant’s guilt could not be established by a criminal court. However, the applicant had supported his request solely by referring to his acquittal and had not tried to demonstrate to the District Court why and how any risk to the children had ceased to exist. Therefore, there was no reason to lift the interim injunction.

The applicant lodged an appeal with the Vienna Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen Wien - the “Regional Court”) on 7 May 2007. On 6 June 2007 the Regional Court dismissed the appeal, finding that – contrary to the applicant’s belief – his acquittal in the criminal proceedings was not in and of itself sufficient to substantiate the absence of the perceived risk that had served as the basis for the interim injunction. The Regional Court noted that an acquittal rendered by the criminal courts had no binding effect on the civil courts. In and of itself, the applicant’s reference to his acquittal was not sufficient to prove that the basis for believing that the applicant’s children were at risk had ceased to exist. The Regional Court upheld the District Court’s finding that the objective of the interim injunction – namely to secure the well-being of the children – had not become redundant, referring again to the fact that the acquittal had only resulted from the application of the in dubio pro reo principle, and that there still existed a suspicion of sexual abuse; this sufficed to justify the assumption that there continued to be a risk to the wellbeing of the child. Furthermore, the applicant had based his appeal only on the alleged binding force of the acquittal and had not submitted any facts why the risk would have ceased to exist by a change in the situation.

The applicant lodged an extraordinary appeal on points of law. On 23 October 2007 the Supreme Court (Oberster Gerichtshof) dismissed that appeal. Referring to its own jurisprudence it upheld the reasoning of the lower courts that whether an interim injunction could be lifted depended on whether the need to afford protection had ceased to exist in the light of a change in circumstances; a change concerning only the evidence provided could not be automatically understood as constituting such a reason. The question of whether the applicant’s acquittal had changed the level of risk in respect of the right of the child to physical safety had to be answered in the negative. The assessment of evidence in the criminal proceedings had to be considered as fresh evidence in the civil proceedings but did not as such constitute a reason for lifting the interim injunction. If, after assessing the fresh evidence, the suspicion of abuse persisted, the level of risk could not be deemed to have changed.

The Supreme Court also confirmed that an acquittal on criminal charges had no binding effect on the civil courts. As regards those of the applicant’s arguments that were based on Article 6 § 2 of the Convention, it referred to the European Court of Human Rights’ case-law, in particular the judgment in Rushiti v. Austria (no. 28389/95, 21 March 2000), but distinguished that case from the present one: in Rushiti, the Court had assumed a link between the criminal responsibility of the accused and the right to compensation for detention to such a degree that the decisions on the latter issue could be regarded as a consequence and, to some extent, the concomitant of the decision on the former (ibid., § 27). However, in the present case such a link was missing with regard to the civil jurisdiction because (i) the criminal proceedings concerned a public law claim, and (ii) the accused’s opponent was the State. The victim of the criminal act in question was not a party to the proceedings and in general, the criminal courts did not rule on victims’ claims for damages. A binding effect of an acquittal on civil courts would constitute a violation of the principle of equality of arms under Article 6 of the Convention in respect of the victim if he or she tried to lodge subsequently a claim for damages before the civil courts. The distinction between civil and criminal matters resulted from the different subjects dealt with. The binding effect of a conviction was justified by the fact that in such a case a criminal court had established the accused’s responsibility and guilt. However, in the case of an acquittal, the establishment of the facts remained open. To then prevent the victim from pursuing a possible civil claim would represent a violation of the victim’s fundamental rights. In the instant case, the acquittal could therefore only serve as an indication of a diminution of the risk for the children, but no more.

On 2 March 2009 the divorce proceedings were concluded with final effect. On 19 May 2009 the Favoriten District Court refused a request for the extension of the interim measure and lifted it.

In addition to his request for the interim injunction to be lifted, the applicant on 13 November 2006 lodged a request with the District Court of Vienna for regular contacts to be arranged between himself and his three children at the Youth Visiting Café; alternatively, he requested the provisional arrangement of a weekly visiting right, to be exercised at the parent-child-meeting point (Eltern-Kind-Treff) of the Vienna Family Association (Wiener Familienbund).

For the purpose of being able to assess the situation, the Favoriten District Court ordered a report from the Youth and Family Office on 4 January 2007. On 3 May 2007 – the Youth and Family Office having failed to deliver such a report – the court urged it to do so.

On 31 May 2007 the Vienna Youth Welfare Service submitted the report, stating in its conclusion that contact between the children and their father was very important, but that, in view of the problematic overall situation, the visits should take place in the protected environment of the Youth Visiting Café. The mother had initially opposed the idea of the applicant having contact with the children, but had then stated that she could agree to accompanied visits in a protected environment and in her presence. The applicant had referred to his acquittal and stated his desire to reestablish a relationship with his children. The social worker confirmed that the children were living in a safe and healthy environment with their mother, but also referred to the importance of a relationship between the children and their father. Regular contact every fortnight would offer the children a good opportunity to become re-acquainted with their father and was thus considered positively by the social worker. On 5 June 2007 the report of the Youth and Family Office arrived at the court and was subsequently served on the applicant.

In a hearing before the Favoriten District Court on 4 July 2007, the applicant and the children’s mother agreed on a preliminary settlement with the following provisions: preliminary sole custody for the three minor children was granted to the children’s mother. The applicant was granted the right to regular accompanied contact – normally every two weeks for two hours on the premises of the Vienna Family Association. The visits were also attended by the children’s mother and a social worker from the Association. Because of this agreement, the proceedings in respect of contact rights were suspended pending a final decision in the divorce proceedings.

On 9 February 2010 the applicant and his former wife agreed before the Favoriten District Court on the staying of the proceedings in respect of custody, contact rights and alimony (Ruhen des Verfahrens). The applicant informed the Court that since February 2010 he and his former wife had agreed amicably on arrangements for the applicant’s contact with his three children. The applicant, in the meantime, had moved to Germany and travelled to Vienna during the school holidays in order to see his children.

Under Article 47 § 1 of the CCP, a victim of a criminal offence could join criminal proceedings as a private party (Privatbeteiligter) only with regard to his or her civil claims. Such a private party was, inter alia, entitled to have access to the various case files from the pre-trial stage onwards, had to be summoned to the hearings, and could submit evidence to the Public Prosecutor.

Article 259 § 3 of the CCP provided as follows:

“The accused shall be acquitted by judgment of the court:

where the court finds that the act that gave rise to the prosecution is not an offence under the law or that the alleged offence has not been made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and 2.”

In the event of an acquittal, a private party was not entitled to a remedy in criminal proceedings. Under Article 366 § 1 of the CCP the criminal court had to refer such a private party to the civil courts in respect of his or her claim for damages if the accused had been acquitted (Verweis auf den Zivilrechtsweg).

Article 268 of the Code of Civil Procedure (Zivilprozessordnung) provided that civil courts, when deciding a case which had previously been submitted to a criminal court, were bound by the facts established by a criminal court in the event that that court had found the accused guilty. This provision was found to be contrary to Article 6 of the European Convention on Human Rights by the Constitutional Court (decision of 12 October 1990, no. G73/89). The Constitutional Court stated that a criminal conviction to be binding on a civil court was arbitrary and therefore contrary to Article 6 of the Convention. Therefore, the Constitutional Court set aside the provision.

In its decision of 17 October 1995, no. 1 Ob 612/95, the Supreme Court found, after conducting a comprehensive analysis of the legal arguments raised in national and international academic debate, that, even in the absence of an explicit provision stipulating the binding effect of criminal convictions, a convicted person must accept his conviction by a criminal court as an established fact and shall not be entitled to argue before a civil court that he did not commit the offence of which he was convicted. Therefore, a conviction by a criminal court should have a binding effect with regard to the convicted person, so that nobody might argue that the facts differed from the ones already established and which had been the basis for that criminal conviction.

In its decision of 20 November 1996, no. 7 Ob 2309/96a, the Supreme Court confirmed the principles outlined in its decision of 17 October 1995 and elaborated on the question of whether civil courts should be bound by the findings of a criminal court when proceedings heard by that criminal court had ended with an acquittal. It found that because of the weak position the CCP granted to a private party in criminal proceedings, it would violate the victim’s rights under Article 6 of the Convention if the outcome of criminal proceedings were to have a binding effect on civil law proceedings (that is to say if civil courts were to be bound by the findings of a criminal court). For example, a private party had no remedy against the acquittal of an accused. Moreover, under Article 366 of the CCP (see paragraph 23 above), the criminal court had to refer a private party to the civil courts in respect of his or her claim for damages if the accused was not convicted. This provision would be meaningless if the victim of an offence were to be referred to the civil courts in respect of his claim for damages but had to accept the finality of the acquittal in the subsequent civil proceedings. Therefore, an acquittal in criminal proceedings could have no binding effect in civil law proceedings dealing with the same circumstances.

In the following decisions, the Supreme Court further developed its case-law on this question and found that neither the ending of criminal proceedings by preliminary settlement (Diversion, decision of 23 September 2004, no. 2 Ob 186/04y) nor by final closure of the case by the Public Prosecutor (Verfahrenseinstellung, 9 September 1999, no. 8 ObA 218/99p) had a binding effect regarding the facts of the case on civil law proceedings and that the civil courts had to establish anew all the facts of the case.

Interim injunctions for the purpose of the prevention of violence within the family were a civil law matter under Austrian law, as laid down in the Enforcement Act (Exekutionsordnung).

Since provisional legal protection had to be provided without delay, the prerequisites for ordering an injunction needed only to be certified (bescheinigen), which meant to show predominant probability but they did not need to be proved beyond reasonable doubt (beweisen). The degree of plausibility of the circumstances supporting a request for an injunction was thus less strict than in the criminal proceedings. It was sufficient for the party requesting the injunction to submit details of the circumstances from which the existence of the alleged risk could reasonably be assumed (section 389 of the Enforcement Act, in connection with Article 274 of the Code of Civil Procedure). Under section 78 of the Enforcement Act certain parts of the provisions of the Code of Civil Procedure (such as the provisions dealing with the parties, the oral hearing or the finding of facts) were applicable if the Enforcement Act did not provide otherwise. Persons affected by an interim injunction had the right to lodge an appeal (Rekurs, see Article 514 of the Code of Civil Procedure).

Section 382b § 1 of the Enforcement Act, as in force at the relevant time, provided as follows:

“The court is required to act upon a request [lodged] by a near relative (naher Angehöriger) of a person who launches or threatens to launch a physical attack or displays conduct severely affecting the psychological health of the near relative, thus making further cohabitation unbearable for the relative. In such a case, the court must

order that person to leave the common flat and its immediate surroundings, and

prevent that person from returning to the flat and its immediate surroundings, if the flat serves the near relative’s urgent need of accommodation.”

Under paragraph 2 of this provision, a court could also prohibit such a person from staying in clearly defined areas and order him or her to avoid meeting and coming into contact with the near relative unless this would have run counter to the serious interests of the person.

Under paragraph 4 of this provision, such an interim injunction was not limited to proceedings for divorce or the annulment of a marriage; however, in respect of proceedings that did not concern divorce or annulment such an interim injunction could not exceed a total duration of three months. The institution of such divorce proceedings or proceedings for the annulment of a marriage was a prerequisite for an extension beyond the above-mentioned three-month limit.

Section 399 of the Enforcement Act listed the following conditions for the amendment or lifting of an interim injunction:

“1. if the order exceeds the scope that is necessary to secure the interests of the person in whose favour the order was granted;

Given that there were remedies (Widerspruch, Rekurs) by which to contest a decision within the proceedings for granting an interim injunction, the amendment or lifting of an interim or “final” injunction under section 399 of the Enforcement Act could not be requested on the basis of a claim that the interim injunction had been issued unlawfully (decisions of the Supreme Court of 1 June 2010, no. 1 Ob 61/10t, and of 20 October 2011, no. 2 Ob 81/11t). Moreover, because the aim of an interim injunction was not to examine a past but to pre-empt a future risk, a review ex post facto of the proceedings in respect of the granting of an interim injunction was not possible (Supreme Court’s decisions of 10 May 1995, no. 9 Ob 1577/94, and of 29 October 2009, no. 7 Ob 50/09t).


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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 their pre-trial detention.


No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nullum crimen sine lege;Time when act or ommission was committed)

Aleš Pejchal;André Potocki;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano

The applicant was born in 1966 and lives in Brno.

On 29 May 2006 the applicant was formally indicted by the Brno municipal prosecutor for having, at least between 2000 and 8 February 2006, repeatedly physically and mentally abused his wife while he was drunk. He was accused of having subjected her to verbal abuse, hit her on the head with his hand and fist, slapped her, held her by the throat, tried to strangle her, thrown her against the furniture or onto the ground, pushed her down stairs and kicked her. He was further accused of having hit the children, gambled away the household’s money on gaming machines and smashed the crockery. As a result, his wife had sustained haematomas, bruising and a fractured nose and had been obliged to seek medical assistance on that account on 26 June 2000, 18 July 2003 and 8 February 2006, following assaults committed on 24 June 2000, 17 July 2003 and 8 February 2006 respectively. The applicant had allegedly sought to undermine his wife psychologically in order to control her. According to the prosecutor, the applicant had thus committed the “continuing” criminal offence (trvající trestný čin) of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code, given that his conduct prior to the introduction of that offence on 1 June 2004 had amounted to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code and assault occasioning bodily harm under Article 221 of the Code.

On 18 April 2007 the Brno Municipal Court found the applicant guilty of the offence of abusing a person living under the same roof, committed at least between 2000 and 8 February 2006, as described in the bill of indictment, which also referred to the fact that the abuse had occurred repeatedly. It sentenced him to a suspended term of two and a half years’ imprisonment and placed him on probation for five years. The applicant was also placed under supervision and ordered to undergo treatment for alcohol dependency. The court based its decision on the statements given by the applicant, the victim (his wife) and several witnesses, including the couple’s two children – who reported, among other incidents, ten instances of the applicant verbally insulting his wife, four instances of the applicant grabbing his wife by the arms and strangling her, and verbal and/or physical assaults committed by the applicant on his wife at monthly intervals – and on documentary evidence and expert reports. It also took into account the fact that the applicant had confessed to quarrels and physical violence in his relationship with his wife; he admitted in particular that he had sometimes slapped his wife or hit her with his fist.

The court adopted the classification of the offence as abuse of a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code as in force since 1 June 2004, taking the view that this classification also extended to the acts committed by the applicant prior to that date since they had been punishable at the material time and amounted at least to the offence of violence against an individual or group of individuals under Article 197a of the Criminal Code. Lastly, the court considered that, owing to the duration of the conduct in question, the offence committed in the present case presented a relatively high degree of danger which justified a sentence ranging from two to eight years’ imprisonment under paragraph 2 of Article 215a of the Criminal Code. Taking into consideration the extenuating circumstances (in particular the fact that the applicant had confessed and that he had no previous convictions), it imposed a suspended sentence situated at the lower end of the range.

On 6 September 2007 the Brno Regional Court dismissed an appeal by the applicant in which he contested the facts as established by the Municipal Court and the unilateral assessment of the evidence. The Regional Court found no defects in the previous proceedings and considered that the classification of the applicant’s conduct was in conformity with the provisions of the Criminal Code.

On 21 February 2008 the Supreme Court dismissed as manifestly illfounded an appeal on points of law lodged by the applicant in which he complained that the trial court had applied Article 215a of the Criminal Code even to his conduct prior to 1 June 2004, when the offence of abuse had not yet existed in domestic law. On this point the Supreme Court noted, referring to its ruling Tzn 12/93 of 8 December 1993, that where there was, as in the case at hand, a “continuation of the criminal offence” (pokračování v trestném činu), which was considered to constitute a single act, its classification in criminal law had to be assessed under the law in force at the time of completion of the last occurrence of the offence. That law therefore also applied to the earlier acts, provided that these would have amounted to criminal conduct under the previous law. In the instant case the Supreme Court considered that the applicant’s conduct prior to the amendment of the Criminal Code on 1 June 2004 had amounted at least to an offence punishable under Article 197a or Article 221 § 1 of the Criminal Code. After having examined the file it also concluded that the accused’s actions as described in the operative part of the first-instance court judgment disclosed all the legal elements of the offence of abusing a person living under the same roof within the meaning of Article 215a §§ 1 and 2(b) of the Criminal Code. Concerning the continuation of the offence, the Supreme Court noted that the abuse itself amounted to ill-treatment characterised by a certain duration. For the offence to be regarded as having continued over a long period of time it had to have lasted for some months. As the applicant had perpetrated the offence in question at least from 2000 until 8 February 2006, that is, over a period of several years, his conduct certainly disclosed the material element of continuation of the offence of abuse under Article 215a § 2(b) of the Criminal Code.

On 10 June 2008 the Constitutional Court dismissed as manifestly ill-founded a constitutional appeal lodged by the applicant in which he complained that the proceedings had been unfair and that the Criminal Code had been applied retroactively, to his detriment. Referring to the ruling of the Supreme Court and to its relevant case-law, the Constitutional Court held that the decisions given by the courts in the present case had been logical and coherent and had not had any retroactive effect prohibited by the Constitution.

As the applicant committed another offence while on probation and did not undergo any treatment for his alcohol dependency, he was required to serve the prison sentence imposed by the judgment of 18 April 2007. He began serving his prison sentence on 3 January 2011. According to the Government, he was granted conditional release on 17 May 2012.


CASE OF PUKHACHEV AND ZARETSKIY v. RUSSIA

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

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants complained of the inadequate conditions of detention during their transport.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku

The applicant was born in 1980 and lives in Puck.

On 19 September 2007 the applicant was arrested on suspicion of drug trafficking and of membership in an organised criminal group. The investigation against him and several other persons was conducted by the Puck District Prosecutor (Prokurator Rejonowy).

On 21 September 2007 the Wejherowo District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might induce witnesses to give false testimony. It also stressed the severity of the anticipated sentence and the complex nature of the case.

The applicant’s pretrial detention was later extended by the Gdańsk Regional Court (Sąd Okręgowy) on 6 December 2007 and on 11 March and 10 June 2008. On 10 September 2008 the Gdańsk Court of Appeal (Sąd Apelacyjny) further extended the applicant’s detention. The courts repeatedly relied on the original grounds given for the applicant’s detention. They also emphasised the need to secure the process of obtaining evidence as the case concerned activities of an organised criminal group.

On an unspecified date in 2008 the investigation was taken over by the State Prosecutor (Prokurator Krajowy).

On 5 December 2008 a bill of indictment against the applicant and seventeen other persons was lodged with the Gdańsk Regional Court. The applicant was charged with numerous counts of drug trafficking and with membership in an organised criminal group. The bill of indictment stated that six accused had pleaded guilty and they agreed to the sentences indicated by the prosecution authorities under Article 335 of the Code of Criminal Procedure (wniosek o skazanie). It was accompanied by 20 volumes of the case file. The prosecutor requested the court to hear 48 witnesses.

During the court proceedings the applicant’s detention pending trial was further extended by decisions of the Gdańsk Regional Court delivered on 11 December 2008 and 12 March and 9 June 2009; and by the Gdańsk Court of Appeal’s decisions of 26 August and 25 November 2009, 23 February, 19 May, 25 August and 19 October 2010, 12 January and 23 March 2011.

The applicant’s appeals against decisions prolonging his detention and all his subsequent applications for release were unsuccessful.

The courts continually justified their decisions by the existence of a reasonable suspicion that the applicant had committed the offences. They also referred to the likelihood of a heavy prison sentence being imposed on the applicant after conviction. They further relied on the need to secure the proper conduct of the proceedings, emphasising that the accused and subsequently the key witnesses in the case had to testify before the trial court. They considered that the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings resulted, in particular, from the fact that he had been charged with membership in an organised criminal group. Finally, they found that the trial court conducted the proceedings in a correct and timely manner. They noted in this regard the complex character of the case and the voluminous documentation gathered (on 23 March 2011 the case file comprised 36 volumes). They also referred to multiple procedural motions of the accused and their lawyers.

Between 17 March 2010 and 17 March 2011 the applicant served a prison sentence imposed in another set of criminal proceedings against him. On 17 March 2011 he started serving another prison sentence.

Meanwhile, on 19 February 2009 the trial court decided to examine the charges against six coaccused in separate proceedings.

On 15 April 2009 the court scheduled the first hearing for 13 May 2009. It also scheduled five further hearings.

The hearings scheduled for 13 and 28 May 2009 were adjourned due to the absence of one of the accused.

The trial was eventually started on 9 July 2009. Subsequently, the trial court held ten further hearings by the end of 2009.

In 2010 the court held sixteen hearings altogether. Four of the scheduled hearings were adjourned due to absences or sickleaves of the accused or their lawyers.

In 2011 eight hearings were held by 20 May 2011. On that date the Gdańsk Regional Court lifted the applicant’s detention on remand.

The proceedings are still pending before the firstinstance court.