Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE . He is a retired labourer .

On DATE the applicant took part in his capacity as the leader of ORG ( a community describing itself as an NORP sect ) in a television programme , PERSON ( “ Nutshell ” ) , broadcast live on ORG , an independent channel .

It appears from the evidence before the ORG that the programme started TIME of DATE and lasted TIME . Relevant excerpts from the programme are set out below .

PERSON ( presenter – “ NORP ” ) : “ Good evening ... There is a group that is grabbing public attention because of the black robes [ cüppe ] worn by its members , the sticks they carry and their habit of chanting [ zikir ] . How can this group be described – it is called a sect [ tarikat ] , but is it really a community or group ? We will be discussing the various characteristics of this group – the GPE – with their leader , Mr PERSON , who will be talking to us live . We will also be phoning a number of guests to hear their views . On the subject of the black robes , we 'll be talking on the phone to PERSON , a stylist and expert on black clothing . We 'll also be hearing the views of PERSON and PERSON on NORP . As regards PERSON , we 'll be calling CARDINAL of its most important leaders . The GPE group DATE or sect – has views on religious matters as well . We 'll be discussing those with Mr Y. NORP , of ORG . And while we are on the subject , viewers may phone in with questions for the GPE ' leader , PERSON ... ”

PERSON , a stylist taking part in the programme via a telephone link , asked PERSON a number of questions about women 's clothing . They discussed religious apparel and whether the clothing worn by the sect 's members was in keeping with fashion or with ORG .

The presenter then discussed movements claiming to represent ORG and asked the applicant a number of questions on the subject . They also talked about methods of chanting . In this context PERSON stated :

PERSON ( “ PERSON ) : “ Kemalism was born recently . It is a religion – that is , it is the name of a religion that has destroyed ORG and taken its place . Kemalism is a religion and secularism has no religion . Being a NORP also means having no religion ... ”

H.C. : “ You have already expressed those views on a programme on the Star channel ... We are now going to have ORG on the line to see what he thinks about your comments . We are going to ask him , as a proponent of NORP , if it can be regarded as a religion . ”

H.C. : “ Do you agree with PERSON views on NORP ? You are one of GPE 's foremost PERSON . ”

ORG ( “ PERSON ) : “ I do n't know where to begin after so many incorrect statements . For CARDINAL thing , Kemalism is not a religion and secularism has nothing to do with having no religion . It is completely wrong to maintain that democracy has no religion . ”

Mr GPE challenged Mr PERSON 's arguments and explained the concepts of democracy and secularism . He stated :

PERSON : “ A sect such as the CARDINAL you belong to may observe a religion . But concepts such as democracy , philosophy and free thought do not observe a religion , because they are not creatures who can establish a moral relationship with God . In a democracy all people are free to choose their religion and may choose either to adhere to a religion or to call themselves atheists . Those who wish to manifest their religion in accordance with their belief may do so . Moreover , [ democracy ] encompasses pluralism , liberty , democratic thought and diversity . This means that the people 's desire will be fulfilled , because the people may elect party A DATE and party B tomorrow and then ask for a coalition to be formed DATE . All that is dictated by the people . That is why , in a democracy , everything is free , and secularism and democracy are CARDINAL related concepts . Secularism in no way means having no religion . ”

M.G. : “ Tell me the name of the religion of secularism . ”

PERSON : “ Secularism is freedom of the people and the principle that religious affairs may not interfere with affairs of ORG . ”

M.G. : “ My brother , I say that secularism means having no religion . A NORP is a man with no religion . A PERSON adheres to the PERSON religion ... ”

PERSON : “ [ Our ancestors were not without a religion . ] True , our ancestors did not allow the establishment of a system based on sharia ... inspired by DATE , an undemocratic , totalitarian and despotic system that will not hesitate to cause bloodshed where necessary . And you call that ' having no religion ' DATE that 's your problem . But in a law - based , democratic , PERSON and secular ORG all people are free to manifest their religion . Behind closed doors , they may practise their religion through chanting , worship or prayer ; they may read what they like , the Koran , the Bible or philosophy – that is their choice . So I 'm sorry , but your views are demagoguery . Kemalism has no connection with religion . It respects religion ; all people are entitled to believe in a religion of their choice . ”

M.G. : “ Yes . But what I am saying is that a person who has no connection with religion has no religion . Is n't that so ? ... I 'm not insulting anyone . I am just saying that anyone calling himself a NORP , secularist or PERSON has no religion ... Democracy in GPE is despotic , merciless and impious [ dinsiz ] ... Because DATE , CARDINAL or CARDINAL of our friends were taken away while on the sect 's premises [ dergah ] ... ”

M.G. : “ This secular democratic system is hypocritical [ ikiyüzlü ve münafık ] ... ; it treats some people in CARDINAL way and others in another way . In other words , we do not share democratic values . I swear that we are not appropriating democracy for ourselves . I am not taking refuge in its shadow . Do n't be a hypocrite . ”

H.C. : “ But it is thanks to democracy that you can say all that . ”

M.G. : “ No , not at all . It is not thanks to democracy . We will secure our rights no matter what . What is democracy ? It has nothing to do with that . ”

H.C. : “ I repeat that if democracy did not exist , you would not have been able to say all that . ”

M.G. : “ Why would I not have said it ? I am saying these words while fully aware that they constitute a crime under the laws of tyranny . Why would I stop speaking ? Is there any other way than death ? ”

The participants then entered into a debate on ORG and democracy .

M.G. : “ According to ORG , no distinction can be made between the administration of a ORG and an individual 's beliefs . For example , the running of a province by a governor in accordance with the rules of the Koran is equivalent to a prayer . In other words , manifesting your religion does not only mean joining in prayer or observing Ramadan ... Any assistance from CARDINAL NORP to another also amounts to a prayer . OK , we can separate the ORG and religion , but if [ a ] person has his wedding TIME after being married by a council official authorised by GPE , the child born of the union will be a piç [ bastard ] . ”

H.C. : “ Do you mind ... ”

M.G. : “ That is how ORG sees it . I am not talking about the rules of democracy ... ”

PERSON : “ ... In GPE people are killed for not observing DATE . People are beaten at university . [ Mr PERSON ] claims he is innocent , but people like that oppress society because they interfere with the way of life of others . In GPE people who say they support sharia misuse it for demagogic purposes . As PERSON said , they want to destroy democracy and set up a regime based on sharia . ”

M.G. : “ Of course , that will happen , that will happen ... ”

NORP The programme continued , the participants including PERSON , a professor , PERSON , a representative of ORG , and PERSON , a prominent figure from GPE .

In an indictment preferred on DATE , the public prosecutor at ORG instituted criminal proceedings against the applicant on the ground that he had breached LAW and CARDINAL of LAW by making statements during the television programme that incited the people to hatred and hostility on the basis of a distinction founded on religion .

On DATE ORG , after ordering an expert opinion , found the applicant guilty as charged and sentenced him to DATE imprisonment and a fine of MONEY , pursuant to LAW .

The court held , in particular :

“ The defendant , PERSON , took part in his capacity as the leader of the GPE in a television programme , PERSON , broadcast live on the independent channel ORG . The purpose of the programme was to give a presentation of the community , whose followers had attracted public attention on account of the black robes they wore , the sticks they carried and their manner of chanting . Those taking part included the stylist PERSON ( via a telephone link ) , the artist PERSON , the scientist PERSON , Mr NORP , an official from ORG , and a certain PERSON , a prominent figure from GPE . The programme 's introduction , which was chiefly intended to familiarise viewers with the GPE community , focused on the origin of its members ' special garments and on their habit of chanting . However , as the programme went on , the debate between Mr GPE , PERSON and the defendant turned to the concepts of secularism , democracy and Kemalism .

During the debate , in which the participants had the opportunity to discuss the malfunctioning , usefulness and problems of institutions such as secularism and democracy in the context of social harmony , human rights and freedom of expression , the defendant PERSON made comments and used expressions contrary to that aim in stating ( on page CARDINAL of the transcript ) : ' anyone calling himself a NORP , secularist ... has no religion ... Democracy in GPE is despotic , merciless and impious [ dinsiz ] ... This secular ... system is hypocritical [ ikiyüzlü ve münafık ] ... ; it treats some people in one way and others in another way ... I am saying these words while fully aware that they constitute a crime under the laws of tyranny ... Why would I stop speaking ? Is there any other way than death ? ... ' On page CARDINAL [ he states ] : ' if [ a ] person has his wedding TIME after being married by a council official authorised by GPE , the child born of the union will be a piç ... '

[ In addition , ] Mr ORG told PERSON that the aim of the latter 's supporters was to ' destroy democracy and set up a regime based on sharia ' , and the defendant replied : ' Of course , that will happen , that will happen . ' [ Furthermore , ] the defendant acknowledged before this Court that he had made those comments , and stated that the regime based on sharia would be established not by duress , force or weapons but by convincing and persuading the people .

Lastly , having regard to the fact that , in the passages quoted above and in his statements taken as a whole , the defendant , in the name of ORG , describes concepts such as democracy , secularism and Kemalism as impious [ dinsiz ] , mixes religious and social affairs , and also uses the word ' impious ' to describe democracy , the system regarded as the most suited to human nature , adopted by almost all GPE and supported by the overwhelming majority of the people making up our nation , the ORG is satisfied beyond reasonable doubt that the defendant intended openly to incite the people to hatred and hostility on the basis of a distinction founded on religion . Furthermore , seeing that the offence in question was committed by means of mass communication , the defendant should be sentenced in accordance with LAW ... ”

On DATE the applicant appealed on points of law to ORG . In his notice of appeal , referring to LAW ( freedom of religion ) and CARDINAL ( freedom of expression ) of the LAW , he relied on the protection of his right to freedom of religion and freedom of expression .

On DATE ORG upheld the judgment at first instance .

The relevant provisions of LAW read as follows :

“ Non - public incitement to commit an offence

A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions shall , on conviction , be liable to CARDINAL imprisonment and a fine ... If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

“ Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication , of whatever type – tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled ... ”

The relevant part of section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) provides :

“ ... persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”

The solemnisation of marriage is governed by ORG CARDINAL to CARDINAL of LAW . Article CARDINAL provides that marriages are solemnised by a registrar , namely the mayor or an official delegated by the mayor in municipalities and muhtars in villages . Article CARDINAL provides that a marriage contracted before a registrar is valid without a religious ceremony having to be conducted .

Provisions relating to the prohibition of hate speech and all forms of intolerance and discrimination on grounds such as race , religion and belief are to be found in a number of international instruments , for example : the DATE United Nations Charter ( paragraph CARDINAL of the Preamble , LAW , LAW ( b ) , Articles DATE ( c ) and DATE ( c ) ) , the DATE LAW , CARDINAL and DATE ) , the DATE International Covenant on Civil and Political Rights ( LAW , LAW and LAW ) , the DATE International Convention on the Elimination of All Forms of Racial Discrimination ( Articles CARDINAL and CARDINAL ) and the DATE LAW . Furthermore , LAW , adopted on DATE , expressed alarm at the present resurgence of racism , xenophobia and anti - Semitism and the development of a climate of intolerance . Among such instruments , ORG no . CARDINAL/CARDINAL on the elimination of all forms of religious intolerance , adopted by ORG on DATE , deals more specifically with the issue of religious intolerance .

Instruments dealing more directly with the issue of “ hate speech ” are : Recommendation No . R ( CARDINAL ) CARDINAL on “ hate speech ” , adopted on DATE by ORG , and General Policy Recommendation no . CARDINAL of ORG against Racism and Intolerance on national legislation to combat racism and racial discrimination .

On DATE ORG Recommendation No . R ( CARDINAL ) CARDINAL on “ hate speech ” and the appendix thereto . The recommendation originated in ORG desire to take action against racism and intolerance and , in particular , against all forms of expression which spread , incite , promote or justify racial hatred , xenophobia , anti - Semitism or other forms of hatred based on intolerance . ORG recommended that the member GPE ' governments be guided by certain principles in their action to combat hate speech .

The appendix to the recommendation states that the term “ hate speech ” is to be “ understood as covering all forms of expression which spread , incite , promote or justify racial hatred , xenophobia , anti - Semitism or other forms of hatred based on intolerance ... ” .

The recommendation lays down guidelines designed to underpin governments ' efforts to combat all hate speech , for example the setting up of an effective legal framework consisting of appropriate civil- , criminal- and administrative - law provisions for tackling the phenomenon . It proposes , among other measures , that community - service orders be added to the range of possible penal sanctions and that the possibilities under the civil law be enhanced , for example by awarding compensation to victims of hate speech , affording them the right of reply or ordering retraction . Governments should ensure that within this legal framework any interference by the public authorities with freedom of expression is narrowly circumscribed on the basis of objective criteria and subject to independent judicial control .

On DATE ORG against Racism and Intolerance ( ECRI ) adopted a recommendation on key components which should feature in the national legislation of member GPE of ORG in order for racism and racial discrimination to be combated effectively .

NORP The relevant parts of the recommendation read as follows :

“ I. Definitions

For the purposes of this Recommendation , the following definitions shall apply :

( a ) ' racism ' shall mean the belief that a ground such as race , colour , language , religion , nationality or national or ethnic origin justifies contempt for a person or a group of persons , or the notion of superiority of a person or a group of persons .

( b ) ' direct racial discrimination ' shall mean any differential treatment based on a ground such as race , colour , language , religion , nationality or national or ethnic origin , which has no objective and reasonable justification . Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised .

( c ) ' indirect racial discrimination ' shall mean cases where an apparently neutral factor such as a provision , criterion or practice can not be as easily complied with by , or disadvantages , persons belonging to a group designated by a ground such as race , colour , language , religion , nationality or national or ethnic origin , unless this factor has an objective and reasonable justification . This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised .

The law should penalise the following acts when committed intentionally :

( a ) public incitement to violence , hatred or discrimination ,

( b ) public insults and defamation or

( c ) threats

against a person or a grouping of persons on the grounds of their race , colour , language , religion , nationality , or national or ethnic origin ;

The law should provide for effective , proportionate and dissuasive sanctions for the offences set out in DATE and DATE . The law should also provide for ancillary or alternative sanctions . ”


Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by Mr D. Teržan , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .

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

On DATE the applicant was injured in a car accident caused by a third person . The perpetrator had taken out liability insurance with an insurance company GPE ( “ the insurance company ” ) .

On DATE the applicant , represented by a lawyer , instituted compensation proceedings against the insurance company at ORG ( ORG sodišče v PERSON ) , claiming a total amount of CARDINAL NORP tolars ( SIT DATE approximately MONEY ( EUR ) ) for pecuniary and non - pecuniary damage , together with default interest . Out of the total amount , she sought SIT CARDINAL ( approximately EUR CARDINAL ) for the non - pecuniary damage sustained , with default interest from the date on which the compensation proceedings had been instituted .

On DATE ORG decided that it did not have jurisdiction to hear the case and submitted the case file to ORG ( Okrožno sodišče v PERSON ) .

On DATE the applicant requested the court to decide promptly on the case .

On DATE the first - instance court held a hearing , at which it partly upheld the applicant ’s claim for compensation in the amount of SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) and dismissed the remainder of the claim . Out of the total , the court awarded the applicant SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) for non - pecuniary damage , together with default interest with effect from the date of the court judgment . It dismissed , however , her claim for default interest with effect from the institution of the compensation proceedings on DATE until the delivery of the judgment on CARDINAL DATE . Both parties appealed .

On DATE ORG ( PERSON v PERSON ) dismissed the applicant ’s appeal and partly upheld the defendant ’s appeal , by lowering the amount of compensation awarded to SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) , together with default interest for non - pecuniary damage with effect from CARDINAL DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) , alleging that the amount of compensation for non - pecuniary damage had not been correctly established in view of all the non - pecuniary damage she had suffered . In addition , the applicant maintained that default interest on compensation for non - pecuniary damage should have been awarded with effect from the date on which the compensation proceedings had been instituted , as allegedly required by LAW , and not only with effect from DATE on which the first - instance court judgment had been delivered .

On DATE ORG dismissed the appeal as a whole , holding that the second - instance court had correctly assessed the amount of compensation for non - pecuniary damage and correctly awarded default interest from DATE the first - instance court judgment had been issued . In particular , it held that the amount of compensation appeared to be just also with regard to the relatively short period of time the applicant had had to wait for the first - instance court judgment ; the first - instance court judgment had been delivered DATE and DATE after the applicant had instituted compensation proceedings .

In this connection , ORG referred to the well - established jurisprudence to the effect that persons claiming compensation for non - pecuniary damage were not to be indemnified by an award of default interest for the period from DATE the damage occurred until DATE the first - instance court delivered judgment . Instead , this factor should be taken into account when determining a just amount of compensation ( the principal ) . ORG stated that this approach had been adopted since DATE owing to the unstable economic situation in the country and the high rate of inflation and monetary depreciation in particular . In order to preserve the real value of a compensation claim for non - pecuniary damage , the amount due was therefore determined only on the date of delivery of the judgment . Default interest was thus awarded only from DATE , while “ Relevant domestic law and practice ” below ) . The applicant lodged a constitutional complaint with ORG ( PERSON sodišče ) .

On DATE ORG declared the complaint inadmissible . It held that ORG had reached its decision in accordance with well - established jurisprudence , valid since DATE , according to which default interest on compensation for non - pecuniary damage was to be awarded only from DATE the first - instance court rendered the judgment . Such approach had been adopted because of the high rate of inflation , in order to calculate the due amount of compensation in accordance with the prices valid on DATE the decision was adopted , and not on DATE the court proceedings had been instituted . In the Constitutional Court’ ’s opinion , was generally adopted and was applicable to all disputes concerning non - pecuniary damage . Since ORG did not find any violation of human rights , it dismissed the complaint .

On DATE the ORG decision was served on the applicant .

The relevant sections of LAW ( PERSON , ORG , No . CARDINAL ) provided at the material time :

“ In GPE everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin , race , sex , language , religion , political or other conviction , material standing , birth , education , social status or any other personal circumstance .

All are equal before the law . ”

“ Everyone shall be guaranteed equal protection of rights in any proceedings before a court and before any ORG or local authority and bearer of public authority which determines his or her rights , duties or legal interests . ”

“ Everyone shall have the right to have his or her rights , duties and any charges brought against him or her determined without undue delay by an independent and impartial tribunal established by law .

Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may try such an individual . ”

“ The right to private property and inheritance shall be guaranteed . ”

The following section of LAW implementing LAW on the GPE and Sovereignty of GPE of DATE ( PERSON za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti PERSON , ORG , ORG . CARDINAL/CARDINAL and CARDINAL ) is relevant to the present case :

“ Until the relevant legislation of GPE is enacted , the federal legislation in force in GPE at the time of entry into force of this law shall be applied as legislation of GPE unless it is contrary to the legal order of GPE , and except as otherwise provided by this law .

This Act served as a legal basis for the incorporation , with the necessary amendments , of legislation previously enacted under the SFRY into the legal order of the independent GPE , for example LAW ( see below ) .

The original text of LAW ( Zakon o obligacijskih razmerjih , ORG of ORG , ORG . CARDINAL , CARDINAL ) provided in section CARDINAL that default interest ceased to accrue once the amount of overdue interest reached the value of the principal debt ( prohibition ultra alterum tantum ) . In DATE this section was abrogated ( ORG of ORG . CARDINAL ) .

Further relevant provisions of the LAW as amended read as follows :

“ An obligation arising from a tort shall be deemed to be payable at the moment when the damage occurs . ”

( CARDINAL ) Compensation for damage shall be determined according to the prices applicable at the time of the delivery of the court judgment , unless otherwise provided by law .

“ ( CARDINAL ) In respect of physical pain or mental anguish suffered on account of reduced

( CARDINAL ) When considering a claim for non - pecuniary damage and determining the compensation to be awarded , the court shall consider the value of the damaged personal property and the purpose of such compensation , and shall also ensure that it does not serve interests which would be inappropriate to its nature and social significance . ”

“ ( CARDINAL ) A debtor who fails to perform a pecuniary obligation shall owe , in addition to the principal , default interest at a rate prescribed by federal law .

( CARDINAL ) ... ”

“ ( CARDINAL ) A debtor shall be in default of his pecuniary obligation if he fails to perform it within the period stipulated for its performance .

( CARDINAL ) If no period is stipulated for performance , the debtor shall be in default where the creditor , by means of an oral or written reminder or by instituting judicial proceedings intended to secure the fulfilment of the obligation , requests the debtor to perform his obligation . ”

“ If the object of an obligation is a sum of money , the debtor shall owe the sum of money specified at the time the obligation was entered into , unless otherwise provided by law . ”

The Code of Obligations ( PERSON zakonik , ORG , No . CARDINAL/CARDINAL ) reintroduced in CARDINAL a provision to the effect that default interest ceased to accrue once the amount of overdue interest reached the value of the principal ( prohibition ultra alterum tantum , see paragraph CARDINAL above ) . It also repealed former section CARDINAL and provided instead in section CARDINAL that default interest was to be regulated as follows :

“ If a debtor is in default as regards the performance of a pecuniary obligation , he shall owe default interest in addition to the principal .

The rate of default interest shall be PERCENT per annum , unless a special law provides otherwise . ”

In its transitional and final provisions the new Code stated that the provisions were not to apply to obligations that arose prior to its entry into force . It also provided that the special law referred to in section CARDINAL ) was the Statutory Default and Basic Interest Rate Act ( see below ) .

Other provisions of the new Code of Obligations relevant to the present case follow the wording of the former LAW .

LAW ( Zakon o obrestni meri zamudnih obresti , ORG , Nos . CARDINAL ) prescribed the interest rate as the retail price growth rate in DATE , recalculated on an DATE level , and increased by a PERCENT real DATE default interest rate . In DATE the real DATE default interest rate was reduced to PERCENT . The default interest was composed of the real index and the retail price index ( adjustment index ) , the latter having the function of increasing the amount of the principal according to the monetary depreciation in the country . Default interest thus had a function of preserving the real value of a pecuniary obligation and hence ensuring that the purchasing power of the claim remained unchanged .

The Statutory Default and LAW ( Zakon o predpisani obrestni meri zamudnih obresti in temeljni obrestni meri , ORG , No . CARDINAL ) determined the statutory default interest rate as being equal to the basic interest rate increased by CARDINAL times the general discount rate of ORG ( section CARDINAL ) , the basic interest rate being the DATE interest rate for domestic - currency pecuniary obligations ensuring the preservation of their real value ( adjustment ) ( section CARDINAL ) . Default interest thus formally assumed CARDINAL distinctive functions : a function of adjustment of pecuniary obligations in accordance with inflation in the country , a function of payment for the use of another person ’s capital , and a punitive function for a debtor in default as regards the performance of his obligation .

The Amendments and Supplements to the Statutory Default and LAW ( Zakon o spremembah in dopolnitvah zakona o predpisani obrestni meri zamudnih obresti in temeljni obrestni meri , ORG , No . CARDINAL/CARDINAL ) determined the statutory default interest rate as the basic interest rate increased by CARDINAL percentage points ( section CARDINAL ) , the basic interest rate being the DATE interest rate for domestic - currency pecuniary obligations ensuring the preservation of their real value ( adjustment ) ( section CARDINAL ) .

LAW ( Zakon o pravdnem postopku , Official Gazette of GPE , No . CARDINAL/CARDINAL ) provided in section CARDINAL that in civil proceedings , the court should decide only within the boundaries of the claims filed ( ne eat iudex ultra et extra petita partium ) . A case in which the court nevertheless decided extra petitum and made an award that was higher than or did not correspond to what was claimed would , pursuant to sections CARDINAL , CARDINAL and CARDINAL , amount to a major violation of procedural law and constitute a ground for a higher - instance court to quash the judgment in question .

On CARDINAL DATE ORG , ORG and ORG , sitting in PERSON ( present - day GPE and GPE ) , adopted a new interpretation of the provisions of LAW , which dealt with default interest on compensation for non - pecuniary damage , by issuing the following opinion :

“ Default interest on a pecuniary claim for non - pecuniary damage shall be payable with effect from the date of delivery of the first - instance court judgment in which the compensation was determined .

When determining the amount of just pecuniary compensation , the court shall also take into account the period from the date of the occurrence of the damage until the date of the judgment , if this is justified by the time that has elapsed since the damage occurred or by ”

With the incorporation of LAW , enacted under the former SFRY , into the legal system of the newly established GPE , ORG also adopted the interpretation of the relevant provisions of that LAW as developed by the former ORG , ORG and ORG ( see paragraph CARDINAL above ) .

ORG observed that , under the legislation in force since DATE , default interest also included interest for adjustment of a pecuniary obligation in accordance with the level of inflation . On certain occasions in the past , the default interest for pecuniary obligations therefore amounted to PERCENT of the main claim . However , in the case of claims for compensation for non - pecuniary damage , the preservation of the real value of a debt was ensured by determining its amount only on the date of delivery of the first - instance court judgment . By DATE , a claim in respect of a non - pecuniary obligation therefore remained unaffected by inflation . Thus , if default interest was awarded with effect from the date on which non - pecuniary damage had occurred , this would result in a double adjustment of the compensation claim from that date until the delivery of the judgment : once by determining its amount only on DATE of delivery of the judgment , and then also with the award of default interest from DATE the damage occurred . In ORG view , this was unacceptable .

Furthermore , ORG consistently held that a higher amount of compensation was not to be awarded solely on the basis of the fact that the case had been decided after a longer period of time . Thus , a claimant could only claim a higher amount of compensation under that head if the length of the court proceedings was excessive , for example on account of delays caused by one of the parties to the proceedings or perhaps even abuses of his or her procedural rights ( see , for example , the reasoning of ORG in II Ips CARDINAL/CARDINAL , II Ips CARDINAL , II Ips CARDINAL/CARDINAL and II Ips CARDINAL/CARDINAL ) .

Finally , ORG emphasised on several occasions that despite the fact that in DATE inflation had no longer been so high and default interest had therefore no longer included such a high adjustment index , the jurisprudence could not be changed in an isolated case where a claimant had sought default interest from DATE he had sustained the damage . Such a change in jurisprudence could only be carried out in a general manner , so that it took effect with respect to a non - identifiable circle of claimants and for all claimants at the same time ( see in particular II Ips CARDINAL/CARDINAL ) .

After the new Code of Obligations had been enacted in DATE , replacing LAW , ORG adopted a new legal opinion on DATE concerning the issue of default interest , which read :

“ ( CARDINAL ) From the date on which LAW came into force ( DATE ) , the victim is entitled to default interest on a pecuniary claim for non - pecuniary damage ( sections CARDINAL to CARDINAL of LAW and sections CARDINAL to CARDINAL of the former LAW ) , unless the default occurred at a later stage ( section CARDINAL of LAW and section CARDINAL of the former LAW ) , after the entry into force of the LAW and Supplements to the LAW , as a result of which default interest is awarded :

– until the date of delivery of the first - instance court judgment at the prescribed interest rate , reduced by the basic interest rate ( currently PERCENT ) ;

– from the date of the first - instance court judgment DATE at the prescribed default - interest rate ( section CARDINAL of the Amendments and Supplements to the LAW ) .

( CARDINAL ) Payments of compensation are subject to adjustment at the basic interest rate ( section CARDINAL of the Statutory Default and LAW ) or at the rate agreed between the parties ( section CARDINAL of LAW ) . ”

In its reasoning on its newly adopted legal opinion , ORG observed , inter alia , that the economic situation in the country had stabilised , and the new legislation , namely the new LAW and the LAW and Supplements to the LAW , now distinguished between default interest and the interest intended for adjustment of a pecuniary obligation . In ORG view , these developments allowed a change in the jurisprudence concerning the awards of default interest in the case of claims for non - pecuniary damage . Thus , default interest may now be payable with effect from the date on which the damage occurred , regardless of whether it was of a pecuniary or a non - pecuniary nature .

The above - mentioned ORG jurisprudence was upheld also by ORG ( see , for example , the decision of ORG in the present case , para . CARDINAL above ) . Therefore , the following provisions of LAW ( Zakon o Ustavnem sodišču , ORG , Nos . CARDINAL , CARDINAL ) concerning legal effects of ORG decisions are of particular relevance in the present case :

( CARDINAL . ) ...

( CARDINAL . ) ...

( CARDINAL . ) “ The decisions of ORG are binding . ”


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

ORG The applicant , PERSON , who is a NORP citizen born in DATE , currently resides in GPE .

In DATE , he established a company , ORG ( " ORG " ) , which traded as a bullion dealer and also provided financial services . ORG became the largest bullion dealer in LOC , with associated companies in GPE , GPE , the GPE , GPE and GPE . The applicant was appointed its managing director .

ORG Over DATE and until DATE , difficulties arose between ORG and ORG , ORG and ORG . They concerned the flow of money to and from ORG and its associated companies abroad .

ORG On DATE ORG forwarded a complaint to the police in which it stated that the activities of the applicant and ORG seemed to involve violations of the NORP tax laws and LAW .

After obtaining a warrant from a court , the police arrested the applicant , seized all available documents at the seat of the company and closed its business on DATE .

ORG The applicant was brought before ORG ( GPE byret ) DATE and charged with fraud and tax evasion . The court directed that he should be kept under arrest for CARDINAL consecutive periods of TIME ; no objection was raised .

On DATE , after hearing the prosecution and the defence , ORG held that the charges were not ill - founded and remanded the applicant in custody in solitary confinement under sections CARDINAL and CARDINAL ) of ORG ( Retsplejeloven - " the LAW " ; see paragraphs CARDINAL and CARDINAL below ) .

As a result of successive decisions , a number of which were taken by Judge PERSON , PERSON was held in detention on remand until the public trial began before ORG on DATE ( see paragraphs CARDINAL below ) . He also spent some time in solitary confinement ( DATE to CARDINAL DATE ) .

ORG During the investigation stage , the police seized further documents and property . Inquiries were also carried out in GPE , GPE , GPE , GPE , GPE and GPE . In accordance with LAW DATE on ORG , the judge of ORG on several occasions authorised the prosecution to seek co - operation from other NORP countries in securing documents as well as in other matters ( see paragraph CARDINAL below ) .

On DATE the indictment , which ran to CARDINAL pages , was served on PERSON . He was charged with fraud and embezzlement on CARDINAL counts involving CARDINAL NORP crowns .

ORG The trial at first instance began before ORG , sitting with CARDINAL professional judge , Judge PERSON , and CARDINAL lay judges , on DATE . According to the applicant , he had complained about the presiding judge before the trial , but no formal request was made on the matter . At the trial he was advised by his lawyers that section CARDINAL ) of the Act debarred any challenge of the judge on the basis of the pre - trial decisions that he had made ( see paragraphs CARDINAL and CARDINAL below ) .

ORG In the course of CARDINAL court sittings at the trial ORG heard CARDINAL witnesses as well as the applicant and examined a substantial number of documents . Furthermore , opinions from appointed experts , in particular accountants , were taken into consideration . The court also issued numerous orders concerning the remand in custody and solitary confinement of the applicant , the sending of commissions rogatory and other procedural matters ( see paragraph CARDINAL below ) .

ORG , with Judge PERSON presiding , gave judgment on DATE . It found PERSON guilty on all counts and sentenced him to seven years’ imprisonment .

ORG The applicant appealed to ORG of Eastern GPE ( PERSON ) . This court sat with CARDINAL professional judges and CARDINAL lay judges . Its jurisdiction extended to both the law and the facts , and involved a trial de novo .

The hearing of the appeal began on DATE . Before the appeal hearing , the applicant had raised with the presiding judge an objection against CARDINAL of the judges on the ground of his involvement in a ORG decision to seize the applicant ’s correspondence and assets . However , counsel for the defence refused to argue this point on the basis of section CARDINAL ) of the LAW , and PERSON withdrew the objection .

ORG On DATE ORG found the applicant guilty on CARDINAL of the CARDINAL counts and sentenced him to DATE imprisonment . The extensive character of the fraud was treated as an aggravating factor . On the other hand , the court took into account the fact that the applicant had been held in custody on remand since DATE , and considered this detention harsher than regular imprisonment . PERSON was released on DATE .

ORG The applicant ’s subsequent application for leave to appeal to ORG ( Højesteret ) was rejected by ORG on DATE .

ORG As already mentioned ( see paragraph CARDINAL above ) , ORG judge had decided on DATE to remand PERSON in custody in solitary confinement . In the judge ’s opinion , there were reasons to believe that the applicant , if at large , would abscond or impede the investigation ( section CARDINAL(CARDINAL ) nos . CARDINAL and CARDINAL and section CARDINAL(CARDINAL ) of the LAW ; see paragraphs CARDINAL and CARDINAL below ) . As justification for the detention he listed the following elements :

( CARDINAL ) the circumstance that the applicant had lived outside GPE until DATE and at the time of his arrest was planning to move to GPE ;

( CARDINAL ) his economic interests abroad ;

( CARDINAL ) the importance of the case ;

( CARDINAL ) the risk of his obstructing the investigation by exerting influence on persons in GPE and abroad .

ORG In accordance with section CARDINAL of the LAW , the applicant ’s continued detention on remand was subject to regular judicial control carried out at maximum intervals of DATE . The elements set out in the initial decision of CARDINAL DATE , which had been taken by Judge PERSON , were the basis for the applicant ’s detention until DATE .

On DATE ORG judge , PERSON , who was subsequently to preside over the trial court that heard the applicant ’s case ( see paragraph CARDINAL above ) , also relied on section CARDINAL(CARDINAL ) no . CARDINAL as a ground for his remand in custody ( danger of his committing new crimes ; see paragraph CARDINAL below ) . The reason prompting that decision was the fact that the applicant had , whilst in custody , secretly communicated with his wife and asked her to remove money from certain bank accounts as well as certain personal property . Subsequently , on DATE , the same judge ordered her detention on remand and the stopping of a letter written by the applicant .

At a later stage , when ruling on DATE on an appeal against an order of further remand in custody , ORG referred in addition to sub - section CARDINAL of section CARDINAL ( see paragraph CARDINAL below ) , since the investigations carried out by the police at that time indicated a possible loss by the injured parties of MONEY NORP crowns . From DATE on , Judge PERSON also relied additionally on this sub - section .

The applicant ’s detention on remand continued to be based on each of the CARDINAL paragraphs of sub - section ( CARDINAL ) and on sub - section ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) until CARDINAL DATE when paragraph CARDINAL of sub - section ( CARDINAL ) was no longer relied on .

ORG As from the applicant ’s arrest on DATE and until the trial started on DATE , police investigations and his continuing detention on remand necessitated decisions to be taken by ORG sitting with CARDINAL professional judge . A total of CARDINAL court sittings were held in connection with the case during this period , CARDINAL of which were concerned with remand in custody and , from DATE to CARDINAL DATE , also with the question of solitary confinement . CARDINAL of these decisions were taken by Judge PERSON ( DATE , DATE , CARDINAL May , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE and DATE , DATE , DATE and DATE ) . On CARDINAL of these occasions he ordered prolongation of the applicant ’s solitary confinement ( DATE , DATE , CARDINAL May , DATE and CARDINAL DATE ) . On DATE , however , he terminated the solitary confinement .

ORG During this period , ORG decided on CARDINAL occasions ( DATE , DATE and DATE ) , on application by the police , to request the co - operation of other countries in securing documents and in other matters ( see paragraph CARDINAL above ) . CARDINAL of these decisions were taken by Judge PERSON ( DATE and CARDINAL DATE ) .

ORG judge was furthermore called on to rule on a number of other procedural matters such as the seizure of the applicant ’s property and documents , his contacts with the press , access to police reports , visits in prison , payment of defence counsel fees and correspondence . Besides the order of DATE to detain PERSON wife on remand ( see paragraph CARDINAL above ) , Judge PERSON gave directions on CARDINAL DATE as to the stopping of another of the applicant ’s letters , on CARDINAL DATE as to the seizure of a certain amount of money which allegedly belonged to the applicant , on DATE as to a change of defence counsel , and finally on DATE as to the applicant ’s access to certain parts of the police files . These rulings were delivered at the request either of the prosecutor or of the defence counsel .

Mr Hauschildt brought various decisions taken by ORG judge before the High Court sitting on appeal with CARDINAL professional judges . On CARDINAL occasions ORG was called upon to inquire into the applicant ’s continued remand in custody . Altogether CARDINAL different judges participated in these decisions , none of whom was subsequently involved in the appeal proceedings regarding conviction and sentence . The same applied to the CARDINAL judges who heard appeals on other procedural matters .

ORG During PERSON trial , from DATE to CARDINAL DATE ( see paragraphs CARDINAL - CARDINAL above ) , ORG , sitting with Judge PERSON as presiding judge and CARDINAL lay judges , was also required to give rulings on a number of procedural matters . In particular , the court prolonged the applicant ’s detention on remand CARDINAL times on the basis of section CARDINAL(CARDINAL ) and ( CARDINAL ) . Except on QUANTITY occasions , these orders were made by Judge PERSON and , on CARDINAL , he was joined by the CARDINAL lay judges . Furthermore , from DATE to CARDINAL DATE , the applicant was kept in solitary confinement at the request of the prosecuting authorities . Although the first order to this effect was made by another judge , Judge PERSON on CARDINAL occasions prolonged the solitary confinement . In addition , on CARDINAL occasions , he authorised the seeking of the co - operation of other countries .

ORG The applicant entered CARDINAL appeals against these various rulings to ORG . On CARDINAL occasions , ORG upheld the decision of ORG concerning remand in custody . CARDINAL judges participated in these judgments , none of whom was subsequently involved in the hearing of the applicant ’s appeal against conviction and sentence . The applicant ’s other appeals related to matters such as the appointment of defence counsel , the hearing of further witnesses , the issue of search warrants , custody in solitary confinement and travel expenses for defence counsel . CARDINAL different judges took part in these decisions . On DATE CARDINAL ORG judges upheld the order continuing the applicant ’s solitary confinement , CARDINAL of whom also sat on the court for the hearing of the applicant ’s appeal against judgment .

ORG According to NORP law , the applicant was still considered as being in custody on remand during the appeal proceedings ( see paragraphs DATE above ) . ORG had accordingly to review the detention DATE . Out of the CARDINAL renewals ordered , CARDINAL were ordered before the hearing opened , whereas the remaining CARDINAL were ordered during the sittings . With a few exceptions all decisions concerning detention on remand were adopted by the same judges as took part in the proceedings on appeal . During the hearing ( DATE to DATE ) , the professional judges were joined by CARDINAL lay judges .

The above - mentioned rulings of ORG were based on section CARDINAL(CARDINAL ) no . CARDINAL and DATE ) of the LAW ( see paragraph CARDINAL below ) . The court attached particular importance to the gravity of the charges and to the fact that the applicant had lived abroad and still had substantial economic interests abroad .

ORG The applicant twice obtained leave from ORG to bring the issue of his continued detention on remand before ORG . On DATE ORG upheld the decision of ORG , while considering that the detention should also be based on section CARDINAL(CARDINAL ) no . CARDINAL ( see paragraph CARDINAL below ) . In fact , some of the offences for which the applicant had been convicted by ORG had been committed whilst he had been in custody on remand . On DATE ORG directed that the detention should continue but be based solely on section CARDINAL(CARDINAL ) nos . CARDINAL and CARDINAL ( see paragraph CARDINAL below ) . The majority of the court found that the public interest no longer required the applicant to be kept in custody under section CARDINAL(CARDINAL ) .

ORG The challenge of a judge is governed by sections CARDINAL of the Act :

" ( CARDINAL ) No one may act as a judge in a case where he ,

is himself a party to the case , or has an interest in its outcome , or , if it is a criminal case , has suffered injury as a result of the criminal offence ;

is related by blood or marriage to CARDINAL of the parties in a civil case or with the accused in a criminal case , whether in lineal ascent or descent or collaterally up to and including first cousins , or is the spouse , guardian , adoptive or foster parent or adoptive or foster child of CARDINAL of the parties or of the accused ;

is married , or related by blood or marriage in lineal ascent or descent or collaterally up to and including first cousins , to a lawyer or other person representing CARDINAL of the parties in a civil case or , in a criminal case , to the injured party or his representative or to any public prosecutor or police officer appearing in such a case or to the accused ’s defence counsel ;

has appeared as a witness or as an expert ( syn- og skønsmand ) in the case , or , if the case is a civil one , has acted in it as a lawyer or otherwise as representative of CARDINAL of the parties , or , if the case is a criminal one , as a police officer , public prosecutor , defence counsel or other representative of the injured party ;

has dealt with the case as a judge in the lower instance , or , if it is a criminal case , as member of the jury or as lay judge .

( CARDINAL )

" In the situations mentioned in the preceding section , the judge shall , if he sits as a single judge , withdraw from sitting on the court by a decision pronounced by himself . If he sits on the court together with other judges , he shall inform the court of the circumstances which according to the preceding section may disqualify him . Likewise , the other judges on the court , whenever aware of such circumstances , are entitled and have the duty to raise the question of disqualification , whereafter the question is decided by the court , without the judge in question being excluded from taking part in the decision . "

" ( CARDINAL ) The parties can not only demand that a judge withdraw from sitting in the instances referred to in section CARDINAL but may also object to a judge hearing a case when other circumstances are capable of raising doubt about his complete impartiality . In such instances the judge , too , if he fears that the parties can not trust him fully , may withdraw from sitting even when no objection is lodged against him . Where a case is heard by several judges , any CARDINAL of them may raise the question whether any of the judges on the bench should step down on account of the circumstances described above .

( CARDINAL ) The questions which might arise under this section shall be decided in the same manner as is laid down in LAW in regard to the situations enumerated in CARDINAL . "

" The question whether or not a judge should remain on the bench , which when raised by CARDINAL of the parties in civil matters is treated as other procedural objections , should as far as possible be raised before the beginning of the oral hearing . This question may be decided without the parties having been given the opportunity to submit comments . "

ORG According to the Government , no case - law on section CARDINAL(CARDINAL ) had been established by ORG at the time when the applicant ’s case was pending before the NORP courts . However , by a ruling of CARDINAL DATE , ORG held that if a judge has directed the remand in custody of a person charged with a criminal offence , this shall not in itself be deemed to disqualify the judge from taking part in the subsequent trial and delivery of judgment .

ORG In connection with an amendment extending the application of section CARDINAL(CARDINAL ) ( see paragraph CARDINAL below ) , section CARDINAL was amended on DATE by ORG . ORG - section ( CARDINAL ) as amended now provides that " no one shall act as a judge in the trial if , at an earlier stage of the proceedings , he has ordered the person concerned to be remanded into custody solely under section CARDINAL ) , unless the case is tried as a case in which the accused pleads guilty . "

This amendment came into force on DATE .

ORG In GPE , the investigation is carried out by the prosecuting authorities , with the assistance of the police , and not by a judge . The functions of the police at the investigation stage are regulated by sections CARDINAL and CARDINAL of the LAW , which provide :

" ( CARDINAL ) Information about criminal offences shall be submitted to the police .

( CARDINAL ) The police shall set in motion an investigation either on the basis of such information or on their own initiative where there is a reasonable ground for believing that a criminal offence which is subject to public prosecution has been committed . "

" The aim of the investigation is to clarify whether the requirements for establishing criminal responsibility or for imposing any other sanction under criminal law are fulfilled and to produce information to be used in the determination of the case as well as to prepare the case for trial . "

Section CARDINAL of the Act governs the role of the court :

" The court shall settle disputes concerning the lawfulness of measures of investigation taken by the police as well as those concerning the rights of the suspect and the defence counsel , including requests from the defence counsel or the suspect concerning the carrying out of further investigation measures . The decision shall be taken on request by order of the court . "

ORG and detention on remand are dealt with in sections FAC and CARDINAL of the Act :

" ( CARDINAL ) Any person who is taken into custody shall be released as soon as the reason for the arrest is no longer present . The time of his release shall appear in the report .

( CARDINAL ) Where the person taken into custody has not been released at an earlier stage he shall be brought before a judge within TIME after his arrest . The time of his arrest and of his appearance in court shall appear in the court transcript . "

" ( CARDINAL ) A suspect may be detained on remand when there is a justified reason to believe that he has committed an offence which is subject to public prosecution , provided the offence may under the law result in imprisonment for DATE and DATE or more and if

according to information received concerning the suspect ’s situation there is specific reason to believe that he will evade prosecution or execution of judgment , or

according to information received concerning the suspect ’s situation there is specific reason to fear that , if at large , he will commit a new offence of the nature described above , or

CARDINAL .

( CARDINAL ) A suspect may furthermore be detained on remand when there is a ‘ particularly confirmed suspicion’ [ translation supplied by ORG of the NORP phrase saerlig bestyrket mistanke ] that he has committed an offence which is subject to public prosecution and which may under the law result in imprisonment for DATE or more and when respect for the public interest according to the information received about the gravity of the case is judged to require that the suspect should not be at liberty .

( CARDINAL ) Detention on remand may not be imposed if the offence can be expected to result in a fine or in light imprisonment ( haefte ) or if the deprivation of liberty will be disproportionate to the interference with the suspect ’s situation , the importance of the case and the outcome expected if the suspect is found guilty . "

Sub - section CARDINAL of section CARDINAL is applicable even in the absence of any of the conditions set out in sub - section CARDINAL . Section CARDINAL ) was first inserted in the LAW in DATE , following an aggravated rape case . In the Parliamentary record concerning this amendment ( DATE Part B , col . CARDINAL ) , it is stated :

" When everyone assumes that the accused is guilty and therefore anticipates serious criminal prosecution against him , it may in the circumstances be highly objectionable that people , in their business and social lives , still have to observe and endure his moving around freely . Even though his guilt and its consequences have not yet been established by final judgment , the impression may be given of a lack of seriousness and consistency in the enforcement of the law , which may be likely to confuse the concept of justice . "

Section CARDINAL(CARDINAL ) was amended in DATE in order to extend its application to certain crimes of violence which were expected to entail a minimum of CARDINAL days’ imprisonment . In reply to a criticism in an editorial in the newspaper GPE , the NORP Minister of Justice wrote on DATE :

" In so far as it ... has been suggested that the PERSON opens possibilities for the imprisonment of innocent persons , I find reason to stress that my proposed PERSON makes it a condition that there is a particularly confirmed suspicion [ the Minister ’s emphasis ] that the accused has committed the crime before he can be remanded in custody . Thus there has to be a very high degree of clarity with regard to the question of guilt before the provision can be applied and this is the very means of ensuring that innocent persons are not imprisoned . "

ORG Solitary confinement is governed by section CARDINAL(CARDINAL ) of the LAW , which at the relevant time read as follows :

" On application by the police the court may decide that the detainee shall be totally or partially isolated if the purpose of the detention on remand so requires . "

This provision was amended on DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-a - Information on nature and cause of accusation);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Preparation of defence);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in GPE . At the relevant time , she was a lawyer specialised in criminal matters , in ORG .

On DATE ORG of ORG attached to ORG ( “ the prosecutor ’s office ” or “ the prosecutor ” ) authorised telephone tapping in respect of the applicant and her husband for DATE , running until DATE . The authorisation was granted at the request of ORG ( “ the RIS ” ) under LAW ( Law no . CARDINAL ) .

On DATE the prosecutor ’s office issued a new similar authorisation , under LAW , granting interception of another of the applicant ’s telephone lines , also until DATE .

On DATE the RIS informed the prosecutor that the applicant had given bribes to several judges and prosecutors in order to obtain decisions favourable to her clients . It based the accusation on information obtained through the telephone tapping . Several conversations between the applicant and judge V.A. concerning cases of the applicant ’s clients had been recorded between CARDINAL and DATE .

The PERSON handed over the audio tapes and their transcripts to the prosecutor ’s office . The prosecutor then continued the surveillance of the applicant ’s activities , including through telephone tapping .

In its report , the RIS referred to ORG as the applicant ’s “ intimate friend ” , whereas other participants in the various conversations recorded are referred to simply as “ friend ” . Those syntagms were reproduced several times in the decision adopted by the first - instance court .

On DATE the prosecutor instituted criminal proceedings against the applicant ( începerea urmăririi penale ) .

In TIME of CARDINAL DATE , as the applicant was returning home by car accompanied by ORG , a fellow lawyer , she was apprehended by the police and taken to the prosecutor ’s office for questioning on charges of corruption .

NORP The applicant was shown the PERSON report of DATE ( see paragraph CARDINAL above ) and then questioned throughout the night . According to her , GPE was not allowed to attend the actual questioning ; he was allowed to see the applicant only afterwards , when she was writing a statement , which he then read and countersigned . In her statement the applicant confessed to the crimes and gave a detailed description of the facts . While the applicant was in the prosecutor ’s office , ORG completed a power of attorney document so that he could represent her in the event that she was taken into custody that TIME . The applicant did not sign that document .

The applicant lodged a criminal complaint against the prosecutor in charge of the proceedings on TIME , but on DATE ORG attached to ORG decided not to prosecute . The applicant did not object to that decision before the courts .

On DATE the applicant was hospitalised for panic attacks , impulsive personality disorders and stress induced by her workload . She left the hospital DATE , on her own initiative .

On DATE the prosecutor ordered the applicant ’s detention pending trial . However , she could not be arrested , as she had left the country . On DATE the applicant was apprehended in GPE . She was extradited at the prosecutor ’s request .

On DATE the prosecutor set in motion the criminal trial against the applicant ( punerea în mişcare a acţiunii penale ) .

On DATE , DATE and DATE , and DATE the applicant gave new statements to the prosecutor in the presence of her appointed counsels . She retracted her initial confession , claiming that it had not represented the truth but was a mere reproduction of what the prosecutor had read to her from the PERSON report ( see paragraph CARDINAL above ) . She claimed that at the time she had made the initial statement she had been in a state of shock , having been traumatised by the prosecutor and forced to confess to deeds that she had not committed . The prosecutor had suggested that if she confessed , only disciplinary action would be taken against the judges and prosecutors suspected of corruption ; she was therefore led to believe that through her action she would help the magistrates who were under investigation .

She denied having committed any of the acts of corruption imputed to her and claimed that she could not remember what she and the other defendants had been referring to in the conversations recorded by the PERSON and played to her by the prosecutor during questioning .

Mention was made in the statements that the applicant had been informed of the charges brought against her and of the rights of the defence .

On DATE the prosecutor indicted the applicant for trading in influence ( trafic de influenţă ) , giving bribes ( dare de mită ) and illegally crossing the border ( trecerea frauduloasă a frontierei ) . Several other persons were committed to trial under the same measure , including judges V.A. and ORG and a prosecutor .

In particular , the applicant was accused of having offered money to judges , including V.A. and ORG , in an attempt to have some of her clients released from pre - trial detention . She was also accused of having fled the country in order to escape the criminal proceedings against her .

The case was heard by ORG .

On DATE ORG heard testimony from each defendant and the relevant parts of the audio tapes were played in their presence . None of them denied having had the recorded conversations .

NORP The applicant denied having committed any crime and claimed that she could not remember exactly what she had been referring to in the conversations recorded by the RIS . She maintained that the discussions with V.A. had concerned only matters of law .

Judge PERSON also denied having committed any crime . He explained that his discussions with the applicant , which had been recorded through secret surveillance , as well as those he had had with his fellow judges about the cases referred to by the applicant , had concerned only questions of law . He maintained that he had not accepted any money or promise of money from the applicant . He reiterated that in his capacity as judge inspector , he was entitled to discuss questions of law with his colleagues .

Judge PERSON also denied having committed any crimes . She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench . She declared that she did not know the applicant , had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate .

At the same hearing on DATE , the co - defendants alleged that there were procedural defects . They argued that as the prosecutor had failed to request the necessary authorisation for intercepting GPE conversations , the audio recordings were illegal .

The court gave detailed answers to their complaints . Concerning the telephone tapping , it noted that CARDINAL of the applicant ’s clients had been indicted for weapons and ammunition smuggling , which , under LAW , constituted a threat to national security and thus allowed the ORG , under a procedure regulated by LAW , to seek authorisation from the prosecutor to intercept the suspect ’s conversations . The fact that during the surveillance activity the authorities came across telephone discussions among the codefendants which led them to believe that the applicant was trying to corrupt judges constituted preliminary investigation ( acte premergătoare ) .

ORG reiterated that so long as the recordings had been obtained during the preliminary investigation phase , they did not constitute evidence . Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file .

On DATE the statements made by the defendants were read out in court . They were allowed to supplement their testimony and put questions to their co - defendants .

At the same hearing ORG heard testimony from the witnesses for the prosecution .

On DATE , at the GPE request , ORG ordered an expert examination of the audio tapes , in accordance with LAW ( “ the ORG ” ) .

At a hearing on DATE ORG dismissed a request by the co - defendants , GPE and ORG , for the PERSON to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the PERSON and the prosecutor ’s office . ORG considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations .

On DATE , DATE , CARDINAL May , and DATE ORG heard eight witnesses for the defence .

Lawyer T.C. attested that the applicant had been in a state of shock the night when she had been taken to the prosecutor ’s office to give a statement ; that he had accompanied her there but had not been allowed to attend the actual questioning ; and that only afterwards had he seen her writing the statement , which he had then read and countersigned . He reiterated that while the applicant had been in the prosecutor ’s office , he had completed a power of attorney document so that he could represent her ( see paragraph CARDINAL above ) .

On DATE the CARDINAL experts rendered their report , as requested by ORG . They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial .

On DATE ORG , sitting as a CARDINAL - judge bench , rendered its decision . It changed the legal classification from a continuous crime of giving bribes , to CARDINAL individual crimes of giving bribes . It convicted the applicant for the CARDINAL counts of giving bribes , for trading in influence and for illegally crossing the border , and sentenced her to CARDINAL years’ imprisonment . The co - defendants were likewise convicted and received prison sentences for their deeds . The sums of money received in bribes were confiscated .

ORG considered that the statements made by the defendants and the witnesses , both before the prosecutor and in open court , corroborated the theory that some of the applicant ’s clients had been released from prison because she had bribed the judges . The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted , either before the prosecutor or in court , that they had been pressured by the defendants into changing their declarations . The court also considered that the testimonies given by the applicant and the witnesses corroborated the transcripts of the telephone conversations .

ORG also made a lengthy analysis of the transcripts , thus responding to the GPE allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage . The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court . It noted that the experts had not questioned that aspect either .

As for the authenticity and originality of the tapes , which the experts contested , the court pointed out that , in the sense of LAW , the report concerning the transcripts , drafted by the prosecutor after the opening of the criminal proceedings , represented the evidence and not the tapes themselves ( which were attached to the prosecutor ’s report , as the law required ) ; neither did the original harddisk on which the conversations had been recorded . In his report , the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected . The court confirmed those aspects . The defendants had had ample opportunity to challenge it , as provided for by the ORG .

Moreover , the court observed that the original recording had been digital , done straight onto the hard - disk of the equipment used by the RIS for telephone tapping ; the tapes attached to the prosecutor ’s report were consequently copies of the original recordings . Because of its nature and purpose , the hard - disk could not be attached to the prosecutor ’s report ; furthermore , it did not need to be attached as it did not constitute evidence . The court concluded that the absence of the hard - disk did not automatically disqualify the transcripts from being used as evidence .

The court noted that , for obvious reasons related to respect for the private life of those involved , it had not listened to all the conversations recorded by the ORG , but only to those relevant to the charges brought before it . However , the parts presented to it and to the defendants by the prosecutor represented full conversations . The dialogues were coherent , the sentences were not truncated and no words were missing or had been inserted into the dialogues . It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified .

The court was therefore satisfied that the prosecutor ’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file .

ORG further dismissed the applicant ’s complaints concerning the manner in which she had been questioned by the prosecutor in TIME CARDINAL DATE . In particular , the court observed that the applicant ’s statement was clear and coherent . In the court ’s opinion , it showed no signs of having been given in an unbalanced mental state , as the applicant had tried to claim afterwards . The court proceeded to examine in parallel the PERSON report and the applicant ’s incriminatory statement , and noted that she had offered significant details that did not figure in the PERSON report . This proved that she had had the conversations , as only a direct participant could have known aspects that had not been revealed in the PERSON report but had later been confirmed by supporting evidence . It also noted that neither she nor her counsel had made any complaints at that time about the questioning or the alleged disregard for the rights of the defence .

All parties appealed against the judgment . In particular , the applicant complained that ORG had changed the classification of the crimes ; that she had been forced to make the initial statement of CARDINAL DATE ; that the telephone tapping had been illegal and in breach of LAW she asked the court to hear evidence from the experts – and lastly , that there had not been sufficient elements to justify her conviction by the lower court .

The applicant made no specific complaints concerning the wording of the judgment , in particular about the manner in which the court had qualified CARDINAL of her interlocutors as an “ intimate friend ” .

The case was heard by a CARDINAL - judge bench of ORG , who rendered the final decision on DATE .

ORG noted that the telephone tapping had not observed the stricter requirements relating to magistrates . It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping ; on this point it reiterated that the information concerning the GPE alleged involvement had been obtained incidentally by the prosecutor . It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations . The court also reiterated that as the tapes had disclosed information on the commission of crimes , they could not have been ignored by the authorities . Furthermore , the tapes had been made with the prosecutor ’s prior approval , as the law had required at the time , and had not contravened public order . ORG attached great importance to the fact that the defendants had not denied having had the recorded conversations . It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file . It therefore concluded that the tapes could be used as evidence .

ORG also decided that the evidence had to be interpreted in its entirety and in context , and reiterated that the law did not give precedence to any type of evidence to the detriment of others .

It therefore concluded that the evidence in the file was sufficient and that the first - instance court had correctly interpreted the facts based on the elements at its disposal .

ORG noted that the first - instance court had changed the legal classification of the crimes committed by the applicant from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting the applicant to give bribes to several individual crimes of trading in influence and aiding and abetting the applicant to give bribes . It accepted that the first - instance court had erred in not allowing the parties to discuss the new legal classification of the crimes . However , it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification , as the consequences in law for both situations were identical .

From the date of her arrest on DATE until her release on DATE , the applicant was held mainly in ORG and ORG . She was first taken to the latter on DATE .

Regarding the conditions of detention in ORG , the applicant alleged that she had been held in overcrowded , badly ventilated cells . She claimed that the occupancy rate had been CARDINAL prisoners to CARDINAL - bed cell . She had had to share the cell with individuals suffering from consumption or HIV . She alleged that the detainee who had been suffering from HIV had been violent and had threatened her fellow inmates that she would contaminate them with the virus . The applicant further alleged that the prison authorities had failed to intervene , despite her complaints .

It appears from the official prison documents submitted by the Government that in ORG the applicant was held in a QUANTITY . m cell containing CARDINAL bunk beds . The cell had a QUANTITY . m window , and the ventilation was ensured naturally through the door and window . It contained a separate toilet measuring CARDINAL sq . m with a window and a shower room measuring QUANTITY m. The detainees had permanent access to running drinkable water ; hot water was available twice DATE for TIME at a time . The inmates were responsible for cleaning the facilities with products provided by the prison administration .

The detainees were allowed DATE walks of TIME in the prison court yard .

According to the applicant , during her stay in FAC she had had to work for TIME each day and received less than the DATE average salary .

The official prison records submitted by the ORG attested that the applicant had worked an average of DATE a month for DATE TIME a day , which was below TIME working day permissible under LAW ( “ Law no . CARDINAL ” ; see paragraph CARDINAL below ) . In accordance with the relevant law , the applicant ’s sentence was reduced in proportion to the work performed . She also received remuneration for her work , of which , in accordance with the law , PERCENT was paid to her and PERCENT to the prison .

During her stay in FAC the applicant lodged a complaint under Emergency Ordinance no . CARDINAL/CARDINAL on the rights of persons deprived of their liberty ( “ Ordinance no . CARDINAL ” ; see paragraph CARDINAL below ) alleging lack of privacy when making telephone calls from prison . She complained that the telephones were too close to each other to allow for private conversations and that the wardens remained close by when prisoners were using the phones . She sought MONEY ( ORG ) in damages for mental suffering .

It appears from the information submitted by the prison authorities that detainees were required to write down in a special register the date and start time of telephone calls , the number dialled , and to sign their name .

DATE . On DATE the Ploieşti District Court dismissed the complaint , considering that the situation in FAC respected the relevant regulations concerning the confidentiality of telephone conversations and that therefore no infringement of the privacy rights guaranteed under LAW CARDINAL could be found .

In an appeal lodged against ORG judgment , the applicant pointed out that all the phone numbers dialled from prison were recorded in a special register , along with the date and time of the respective calls .

In a final decision of DATE ORG dismissed the appeal and upheld ORG decision . It observed that the telephones were placed at regular QUANTITY intervals CARDINAL metres from the warden ’s booth . Under the regulations , the warden had an obligation to check that the telephone number dialled was the same as that entered by the prisoner in the special register , but she did not monitor the telephone conversation itself . The court considered that the registration of the dialled numbers did not constitute a breach of ORG privacy rights .

On DATE the applicant filed for divorce and custody of her minor child , on the grounds that her relationship with her husband had started to become tense in DATE ; he had neglected their CARDINAL children and had ultimately left home in DATE .

The request was granted and in a decision of CARDINAL DATE ORG declared the couple divorced . The applicant reverted to her maiden name , Niculescu .

On DATE the applicant was suspended from ORG for the duration of the criminal proceedings against her .

On DATE ORG decided , based on a recommendation by ORG , to exclude the applicant from its list of members . This decision was not communicated to the applicant .

As the final decision of DATE ( see paragraphs CARDINAL and following , above ) did not prohibit the applicant from exercising her profession , on DATE she asked ORG to reinstate her . On DATE the ORG refused her request and informed her of the decision taken on DATE .

Having objected unsuccessfully to ORG , the applicant lodged a complaint with the administrative courts , invoking both procedural and substantive flaws in the contested decision .

On DATE ORG dismissed the complaint , giving detailed responses to all the arguments raised by the applicant . In particular , the court noted that the applicant ’s name had been struck from ORG list of lawyers not to prohibit her from exercising her profession , but because , in committing crimes in the exercise of her profession , she had become unfit to practise as a lawyer , in accordance with LAW ( Law no . CARDINAL/CARDINAL ) .

An appeal lodged by the applicant was subsequently dismissed by ORG and ORG , which gave the final ruling in the case on DATE .

The relevant legal provisions concerning the conditions of detention , including a succession of laws on the execution of sentences – Law no . CARDINAL , Ordinance no . CARDINAL ( in force since DATE ) and PERSON no . LANGUAGE ( in force since DATE ) DATE and the effective remedies they introduced are summarised in ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .

In addition , the provisions of the above laws concerning prison work are detailed in GPE v. GPE ( dec . ) , no . CARDINAL , § § DATE , DATE ) .

The relevant findings and recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) and the reports by ORG , made following numerous visits to NORP prisons , are also summarised in ORG , cited above , § § CARDINAL - CARDINAL ) .

There is no ORG report concerning ORG . However , a NORP NGO , ORG for ORG in GPE – ORG ) visited that establishment on CARDINAL DATE . The report prepared following its visit indicated that , based on the information submitted by the authorities , the average personal space for each prisoner was QUANTITY . m. The overcrowding was obvious when visiting individual cells : CARDINAL of the cells visited , measuring QUANTITY m , had accommodated CARDINAL prisoners , even though CARDINAL beds had been available . The report indicated that CARDINAL detainee had complained about the quality of the prison food and that many prisoners had preferred to eat the food they received from home or bought from the shop ( see PERSON v. GPE , no . CARDINAL/CARDINAL , § DATE , DATE ) .

The legislation in force at the relevant time concerning telephone tapping , including LAW , is described in PERSON GPE ( no . CARDINAL ) ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

The relevant provisions of LAW concerning the preliminary investigation read as follows :

“ CARDINAL . The criminal investigation authorities may conduct any preliminary investigation measures .

The report of execution of any preliminary investigation measure shall constitute evidence . ”

“ The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article CARDINAL shall order , by decision ( rezoluţie ) , the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting , as provided for in DATE , with the exception of the ground set out in subparagraph ( b)CARDINAL . ”

Concerning the telephone tapping at the preliminary investigation stage , ORG and ORG considered , in a decision rendered in an appeal on points of law ( decision no . CARDINAL of DATE ) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened ; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure , an omission which ORG found reasonable , given the purpose of the telephone tapping and its secrecy . However , the person concerned had subsequently had an opportunity to listen to the recordings and contest their content . ORG also reiterated that there was no prior value attached to the report drafted by the prosecutor , as the courts were free to assess the evidence in the context of the files under examination .

By its decision no . CARDINAL of DATE , ORG confirmed that LAW ORG did not allow for evidence to be gathered during the preliminary investigations ; any such evidence would fall under the ORG scrutiny .

The provisions of Ordinance no . CARDINAL and the subsequent Execution of Sentences Act ( Law no . CARDINAL/CARDINAL ) , concerning the use of public telephones in prison , are described in GPE v. GPE ( no . CARDINAL , § CARDINAL , DATE ) and in GPE v. GPE ( ( dec . ) , no . CARDINAL , § CARDINAL , DATE ) . In addition , in accordance with LAW no . CARDINAL issued on DATE by the Director General of the ORG pursuant to the above GPE , the prison staff had to keep a record of the numbers dialled by the detainees and the start time of telephone calls .