Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

NORP In DATE three persons , GPE , PERSON and PERSON , were killed in their house in GPE , GPE , and a sum of MONEY ( HRK ) was taken from the house .

NORP In DATE CARDINAL PERSON was indicted before ORG ( Županijski sud u ORG ) on CARDINAL counts of the above - mentioned murder . He was initially acquitted , but on DATE ORG ( PERSON ) ordered a retrial .

On an unspecified date in DATE the applicant was arrested on suspicion of having committed a car theft in GPE and placed in detention in FAC in GPE ( GPE u PERSON ) .

On DATE he fell ill and was transferred to ORG . He shared room no . CARDINAL with CARDINAL other inmates , including ORG and ORG The latter was a former policeman . He had already been sentenced to DATE imprisonment for attempted murder but his conviction had not yet become final . On an unspecified date PERSON wrote to ORG , informing it that he had knowledge of the circumstances concerning a murder of CARDINAL persons committed in PERSON .

On DATE PERSON gave his evidence before an investigating judge of ORG ( PERSON u GPE ) . He said that he had overheard conversations between the applicant and ORG in which they had discussed the murder of CARDINAL persons of which ORG had been accused and which had revealed that the applicant had been an accomplice in these crimes . The relevant part of the written record of his statement reads :

“ Owing to health problems I was placed in ORG DATE and DATE . ... The day after I had been admitted to the ORG , ORG arrived and was placed in the same room . His bed was next to mine . ...

DATE after that PERSON was placed in the same room . ... His bed was next to the one occupied by PERSON so that PERSON was between the CARDINAL of us . When PERSON came into the room he exchanged greetings with PERSON and their conversation gave me the impression that they had known each other for DATE . ...

GPE and PERSON had secret conversations for DATE . They sat on their beds and talked and since my bed was next to theirs , although they were talking in lowered voices , I could hear what they were saying . I heard PERSON saying that he had prospered from that money and that his business was going well , and I heard PERSON saying : ‘ We did it all well , only I made a mistake by placing the money into a container’ , but he did not explain what container . They also mentioned that MONEY ( HRK ) had been found in the house , some in foreign currency , and some in HRK . I heard PERSON saying that he had been afraid to go to the border crossing between PERSON and PERSON and that in the end he had crossed [ the State border ] in PERSON , and he also mentioned that he had been accompanied by a woman , but I could not understand whether it had been his wife or the wife of PERSON

I also heard PERSON telling PERSON that he had had to walk around in GPE for a whole day , in PERSON , in order to send a signal from a mobile telephone to PERSON , [ which would show ] that ORG had been in GPE .. PERSON also mentioned that he had gone to a hill known as ‘ PERSON in order to send the signal , but he had not succeeded [ ... ] and in the end had sent a signal from the ‘ PERSON mountain . When they talked about sending that signal from a mobile telephone , I heard GPE telling PERSON that if anything happened , GPE would testify that he had been in GPE and from their conversation I concluded that PERSON had gone to GPE with the mobile telephone of ORG and that he , by making some telephone calls , had created an alibi for PERSON , [ in other words ] , that he had been in GPE .

When I listened to these secret conversations between [ ORG and PERSON I also heard them mentioning how they had been surprised to find CARDINAL people in the house and that they had not expected a third person , and that therefore they had waited for a long time in front of the house for someone to come out and take the children away . They also mentioned that they had seen a woman taking the children out of the house , but I did not hear whether they referred to CARDINAL child only or to CARDINAL .

I also heard [ ORG telling PERSON that his wife worked with the military as a dentist or dental technician , I did not understand this very well , and that after the event at issue she had said something in town and that that had contributed most to his discovery and detention .

From the above - mentioned secret conversations between [ ORG and PERSON , in the course of which they mentioned that they had been surprised to find a third person in the house , I concluded that a financial transaction had taken place in that house and that a third person was involved .

From their conversations I also concluded that ORG ] had grown up with the owner of the house , who had had a money exchange office and who had been killed , and I concluded that they had had conflicts .

I remember that ORG told [ ORG that he had not dared to cross the border between PERSON and PERSON because of increased security and that therefore he had crossed at PERSON by boat or ferry . I also remember that they mentioned that in a container in [ ORG ’s [ house ] the sum of HRK CARDINAL had been found , while the rest of the money had ended up with PERSON . PERSON also told [ ORG that he had spent his part of the money on opening his car - dealing business in PERSON . I also heard PERSON telling [ ORG that his company had sold stolen cars and had been involved in life insurance and car insurance and that the wife of PERSON was also employed there and that there were other employees . I also heard PERSON telling [ ORG that it was possible to obtain a car through his company , with all the documents , without going to the police .

I asked PERSON about ‘ Veseli Brijeg’ because I wanted to know something about it and he told me that GPE lived in that area and that was the reason why it was known as ‘ PERSON . I do not know where that place is and I have never been there .

I also heard Ajdarić saying that he was afraid of being found out since he had DATE to serve and then ORG answered that there was nothing to worry about because CARDINAL witness , a woman who was the key prosecution witness , had changed her testimony and had given a completely different statement than before . ”

On DATE PERSON gave his evidence at a hearing held before ORG in the criminal proceedings against ORG relevant part of his statement reads :

“ I am currently detained in FAC because I have been sentenced to CARDINAL years’ imprisonment by ORG on charges of attempted murder and causing a risk to life and assets through dangerous activity , which conviction has not yet become final . Owing to health problems I was sent to ORG where I was placed in room no . CARDINAL DATE and DATE .

I saw the accused for the first time in FAC when he was transferred to the same room . Before that he had been in the surgical ward and was transferred to a non - smoking room . I do not recall the exact date when he was transferred to my room , but I remember that it was sometime in DATE , and as a result we spent a lot of time in the same room . Immediately upon his arrival we started to get to know each other and to talk and I told him right away for which criminal offence I was detained , but at the beginning he did not want to tell me what he was accused of . In our discussions we had an argument about a defence lawyer in the present case , since the same counsel was defending us both , and I did not like the fact that the accused had criticised her .

Sometime in DATE , I do not remember the exact date , PERSON was also transferred to the same room from FAC . I immediately noticed that the accused and PERSON greeted each other as if they had known each other for a long time . The bed occupied by PERSON was in the middle , that is to say , between the one that I occupied and the one occupied by the accused . There were CARDINAL inmates in the room , and they often changed .

Since the bed occupied by the accused was next to the one occupied by PERSON and the distance between the beds was TIME QUANTITY , they often talked to each other . They firstly talked about the occupation of PERSON in GPE . I mostly heard these conversations when lying on my bed reading the newspapers and doing crossword puzzles . I remember clearly that the accused and PERSON started to discuss the criminal offence PERSON was accused of and I remember that PERSON had bought a car somewhere near ORG , which had been stolen , and PERSON and his wife and another person had been arrested on that account . PERSON had stayed in detention while his wife had been released . PERSON said that he had been sentenced to DATE imprisonment and that he had had DATE to serve , after which he would be released and I remember that he had expressed some fear , and that the accused had comforted him . Also , ORG said that he had been dealing in smuggled cars , licence plates and car insurance documents and that he had bought a machine in GPE for identifying the codes of expensive cars .

From their conversations I heard that the accused had family in PERSON and that they knew each other from PERSON . I also remember that PERSON said that the man from whom he had bought the car had died . He said that it was lucky that he had died because otherwise it would have been discovered how he had committed a criminal offence . Another inmate , PERSON , reacted to that story since he knew the man who had died .

After that the CARDINAL of them started to talk about the mobile telephone . PERSON said that he had gone to PERSON with PERSON I do not know that person DATE and that they had waited for a long time for a woman to return to the house , a woman who had left the house with CARDINAL child or more children – I did not understand this very well . I also heard them saying that they had no knowledge about the third person in that house . I remember that they said that they had waited to enter the house , and that the wife of the accused had also been there and that it [ sic ] concerned a money exchange office where a childhood friend of the accused had worked . From what PERSON was saying , I understood that he was worried and I remember the accused telling him that a woman , who was the key prosecution witness in the proceedings , had changed her statement in their favour . They also discussed the money and I remember PERSON saying that he would pay for the defence of the accused and they also mentioned that the first lawyer who had defended the accused in these proceedings had later on engaged the services of lawyer PERSON

After I left the [ ORG Hospital , I contacted FAC and they asked if I wished to be a witness in the proceedings against the accused and I told them that I firstly wished to consult lawyer PERSON , who was both my defence counsel and the defence counsel of the accused . I consulted her and she came to visit me to prison and asked me if I knew anything about the event at issue . I told her that the accused had said that he had been found out as a result of what his wife had been telling [ other people ] in the town and the lawyer asked me for whom I was working . I told her that I did not work for anyone and that I had decided to testify because of the children who had been left behind . The lawyer told me to be careful what I was saying and that I might be ‘ swallowed by the ORG . She said that when I mentioned the name S.

I would also like to add that I heard the accused and PERSON saying that later on it had been a problem for them to reach PERSON and that PERSON and the wife of the accused had crossed the state border at PERSON because the wife of the accused had to return the mobile telephone of the accused back to GPE , while PERSON crossed the state border in PERSON . PERSON and the wife of the accused had taken the money and CARDINAL mobile telephones , while the accused had returned to ORG . They took mobile telephones to GPE because they wanted to send signals to ORG . They mentioned that they had [ tried to ] send a signal from the GPE mountain , where the signal had been low , so they had gone to the area known as ‘ PERSON near PERSON and sent a signal from there .

I also remember that they said that the money had been found in a container , but I do not know if they meant a deep freezer or something else . So , the money had been found in that container , about HRK CARDINAL,CARDINAL .

I would also like to mention a further detail which I noticed while in the prison hospital . It was a DATE , visiting time and both the accused and PERSON had visitors . PERSON returned TIME before the accused . The door of the room was open and I saw PERSON waving to someone from the open window in the hall . I approached the window to see who he was waving at and I also asked him about it and he said that he was waving at his wife . I saw the car in which his wife had arrived , it was a LOC , and I asked him how come his wife was driving such a car , since he had been bragging that he dealt in expensive cars , and he told me that the car belonged to someone in GPE who had driven his wife there for the visit and that that man was carrying money to finance the accused ’s defence . I asked him if that person was PERSON and he told me that it was not my business .

I have nothing else to add .

To a question by the Deputy ORG Attorney the witness answered that from the conversations between the accused and PERSON he had understood that with his part of the [ stolen ] money PERSON had opened a ‘ business’ in PERSON with CARDINAL employees and that that ‘ FAC was run by his wife and that that was his second wife ; he had divorced the first one .

To a further question by the Deputy ORG Attorney the witness answered that he had heard the accused saying that his wife was a doctor in dentistry , employed with the military in Bjelovar .

To a specific question the witness answered that from their conversations he had heard that ‘ Veseli Brijeg’ was a GPE settlement near GPE and that the river PERSON ran nearby .

To a further question by the Deputy ORG Attorney the witness answered that he had got the impression that the accused and PERSON had known each other from before . The accused had been in detention in NORP and PERSON in GPE . As regards the worries of ORG , they concerned his fear that he would be found out as a perpetrator of the criminal offence at issue during his detention .

To a further question by the Deputy ORG Attorney the witness answers that the sending of a signal from a mobile telephone from GPE had been aimed at showing that at that time the accused had been in GPE .

To a further question by the Deputy ORG Attorney the witness answered that he had heard that the accused had taken his part of the money to his home and that as a result of what his wife had been telling [ people ] in ORG , the house had been searched and the police had found the money in a ‘ container’ .

To a further question by the defence lawyer the witness answered that GPE and GPE had been in the same room [ in FAC ] at the same time , as well as a prisoner , NORP , from ORG who had been transferred from GPE , but that the latter stayed for a shorter time .

To a further question by the defence lawyer the witness answered that the inmates had often changed beds , sometimes even several times a day . He further stated that the first bed next to the wall had been occupied by PERSON , the bed occupied by him [ the witness ] had been next to his and that after that he had not changed beds . The bed next to his had been occupied by PERSON , which had been next to the one occupied by the accused .

To a further question by the defence lawyer as to whether the other inmates heard the conversation between the accused and ORG , the witness answered that he did not know , but that he had listened to them because he had been interested . He further stated that sometimes he remembered whole conversations between them , and sometimes only parts .

To a further question by the defence lawyer the witness answered that the said conversations between the accused and ORG had mostly taken place in the afternoons , when the inmates had been allowed to watch television in a common room , when the accused and PERSON had stayed in the bedroom by themselves and talked . He would only watch the news and then return [ to the room ] because he had been interested in what the CARDINAL had been talking about .

To a further question by the defence lawyer as to who made the first contact with the police the witness asked whether he had to answer that question and when told that he had to , stated that he had contacted the police through FAC as soon as he had returned from FAC [ to FAC ] . He had contacted the police twice , the first time [ he had spoken ] to a police officer and the second time to someone from the investigation in ORG , he did not know who .

To a further question by the defence lawyer the witness answered that he had got the impression that the accused and ORG had known each other for a long time from the manner of their greeting because they had shaken hands , while the other inmates had not shaken hands and it had taken them longer to get to know each other .

When asked by the defence lawyer to repeat exactly what the accused and ORG had said when they talked about the mobile telephone , the witness answered that he could not repeat their exact words , but that he had told [ the court ] what he had concluded from their conversation .

To a further question by the defence lawyer the witness answered that when PERSON had arrived in their room and greeted the accused , PERSON had also been present .

To a further question by the defence lawyer the witness answered that PERSON had also been present when the accused and PERSON had spoken about the criminal offence committed by PERSON and when they had spoken about the criminal offence committed in PERSON , no one else had been present – just him , the witness , who had returned from the TV room where he had been watching the news .

To a further question by the defence lawyer the witness answered that he had not been offered anything by anyone in connection with the criminal offence for which he had been convicted , but which conviction had not yet become final .

He stated that lawyer PERSON had refused to continue representing him without any explanation .

To a further question by the defence lawyer the witness answered that he had never been treated in a psychiatric ward and that in the proceedings against him a psychiatric examination had been carried out . After he had given his statement in ORG , he had had no further contact with the police .

To a question by the Deputy ORG Attorney the witness answered that he had heard the doctor who treated the accused say that his treatment would be long and would continue for DATE , after which the accused had said that he suspected that he had been poisoned .

There were no further questions .

The accused objected to the statement by the witness in its entirety and explained that he himself had spoken with the witness about the particulars of the criminal proceedings against him .

On DATE the applicant was indicted in ORG on CARDINAL counts of murder committed together with PERSON in GPE , GPE , on CARDINAL and DATE . The proceedings against the applicant were joined to those already pending against ORG

At the hearing held on DATE PERSON gave his evidence . The relevant part of the written record of the hearing reads :

“ The witness gave the same evidence as noted in the written record [ of the hearing held on ] DATE and had nothing to add .

To a question by the Deputy ORG Attorney the witness answered that from the conversations between the first and the second accused he had not understood how many mobile telephones they had used during the event in question , but he had heard that the signals had been sent from the area known as ‘ PERSON in PERSON .

To a further question by the Deputy ORG Attorney the witness answered that the purpose of sending the signals from mobile telephones had been to make others think that they were all in GPE at that time . He also stated that the first and the second accused had mostly spent time together in TIME , after dinner . He himself had also talked to PERSON and asked him how he had managed to do so well in GPE and open his enterprise immediately after the war , to which the second accused had answered that he was a smart person .

To a further question by the Deputy ORG Attorney the witness answered that he had heard them mention a place called PERSON , but he did not know whether that was a village , a settlement or a mountain , where they had stopped to have a coffee . As a signal could not be sent from that place to GPE , they had continued to the place known as ‘ Veseli Brijeg’ and sent a signal to GPE from there .

To a further question by the Deputy ORG Attorney the witness answered that during the time he was detained in FAC in connection with the criminal proceedings against him on charges of attempted murder , his defence lawyer had been PERSON During one visit she had asked him about his stay at FAC at the same time as the first accused . He had told her about what he had heard from the conversations between the first and the second accused , but a much shorter version , after which she had told him to be careful ‘ not to be swallowed by the ORG , and then refused to continue to represent him in the criminal proceedings against him .

To a further question by the Deputy ORG Attorney the witness answered that he had heard from the first accused what his wife ’s profession was and that she worked with the military and that she had said certain things in ORG owing to which the location of the money had been discovered . The first accused had told him that his wife was a doctor in dentistry , but later on it had turned out that she was a dentist ’s assistant .

To a further question by the Deputy ORG Attorney the witness answered that he was not giving evidence to hurt anyone , but rather because he had heard that the second accused participated in the criminal offence at issue and he was a foreigner , that is to say , a person from another country , and because by committing the criminal offence at issue he had become rich and ensured his existence by causing damage to others . Also , the second accused had said that it was good that the person from whom they had stolen the car had died , because otherwise their role in the criminal offence would have been discovered as well .

To a further question by the Deputy ORG Attorney the witness answered that he had children of his own and was motivated to give evidence by the fact that the deceased had had children , and that now he understood their position , and that of his own children , because of the criminal offences he had himself committed .

To a question by the defence lawyer of the first accused the witness answered that he had made notes about what he heard from the conversations between the first and the second accused and showed these notes to the court .

The notes made by the witness are enclosed in the case file .

The witness stated that these notes were a word play , that is to say , he had mixed up letters in the words .

To a further question by the defence lawyer of the second accused the witness answered that he had been the first to arrive in room no CARDINAL in FAC , sometime in DATE , where he had stayed until DATE . The first accused had arrived after him and DATE the second accused had arrived . The bed occupied by the second accused had been in the middle , between the bed occupied by the first accused and the CARDINAL occupied by him . The bed next to the CARDINAL occupied by the first accused had been occupied by an older person from PERSON who was shortly transferred to another room and the second accused would lie on that bed . The first accused had mostly socialised with the second accused . Once the witness had had an argument with the second accused concerning a lieutenant of ORG ...

To a further question by the defence lawyer of the second accused , the witness answered that the second accused had told him that he had been dealing in used cars , car insurance and life insurance and that that business was run by his wife , while he had often travelled with the boys in order to purchase cars . The second accused had also told him that he had a machine for deciphering codes , which he had bought in GPE . The witness had never had a conflict with the first accused .

To a further question by the defence lawyer of the second accused , the witness answered that he had spoken to lawyer PERSON who had for a short time been the defence lawyer of both himself and the first accused , and that the first accused had told him that she was a good lawyer and had been representing him well and had managed to win over his first defence lawyer . ...

To a further question by the defence lawyer of the second accused the witness answered that he did not know whether other inmates who shared the same room had heard what the first and the second accused were talking about , but he was sure that some of them did not care about these conversations . PERSON had avoided all contact with the first and the second accused .

To a further question by the defence lawyer of the second accused the witness answered that he had concluded that the second accused was insecure and unstable and for that reason often spoke to the first accused . He had had the impression that the second accused was worried , and tried to relieve his worries by talking to the first accused during DATE of his sentence .

To a further question by the defence lawyer of the second accused the witness answered that he had an DATE son with whom he had no contact because the latter had been brought up by his mother and grandmother .

To a further question by the defence lawyer of the first accused the witness answered that there had been CARDINAL beds in that room and that later on CARDINAL more bed had been brought in .

There were no further questions .

The second accused objected to the evidence given by the witness , stating that it was entirely fabricated .

Both the applicant and PERSON denied that they had ever met before the applicant ’s arrival at FAC in DATE . ORG said that during DATE of their stay in the same room in FAC he and the applicant had had no contact at all and later on had talked about general topics . They had never talked about the criminal offence he had been accused of . When he had heard that he and ORG were being represented by the same lawyer , he had told PERSON what he was accused of . The applicant claimed that in DATE he had not been to GPE at all , but had been living in GPE , and that he had never been to PERSON in his life . He said that during their stay at ORG S.Š. had mostly spoken to ORG and had often complained to him .

At a hearing held on DATE PERSON gave his evidence . The relevant part of the written record reads :

“ I met the first and the second accused in ORG in DATE . I remember that I was in room no . CARDINAL together with the accused , ORG and CARDINAL other inmates , PERSON and P. I was the first one to arrive and then ORG , after him the first accused and then the second accused . We all talked together and discussed everything . I did not get the impression that the first and the second accused knew each other from before , although they socialised with each other mostly . I also spoke with the second accused who told me that he had been imprisoned because of a vehicle . I also spoke with the first accused and asked him why he was in prison ; he only told me that it was a long story and that it was the second time he had been detained .

To a question by the Deputy ORG Attorney the witness answered that he had not heard the first and the second accused talking about committing a criminal offence together .

To a further question by the Deputy ORG Attorney the witness answered that he had regularly watched television and noticed that the first accused had mostly stayed in the room because he could not stand the cigarette smoke [ in the television room ] so he would sometimes watch the sports programme only . He had also noticed that the second accused had not watched television often . ORG had sometimes watched television but would soon return to the room .

To a further question where the bed occupied by ORG had been placed the witness answered that along CARDINAL side of the room there had been CARDINAL beds ; the first one had been occupied by him , then there had been CARDINAL bedside cupboards , then the bed occupied by PERSON , then a bedside cupboard , then the bed occupied by PERSON , then another bedside cupboard , then the bed occupied by the first accused . The bed occupied by the second accused had been placed perpendicular to the other beds .

To a further question by the Deputy ORG Attorney the witness answered that the first and the second accused and ORG had had normal contact , they had talked and he had also had normal contact with them and he had never heard of or discussed with ORG anything that the first and the second accused allegedly talked about .

To a question by the defence lawyer of the first accused the witness answered that when the first and the second accused had talked they had talked in normal voices and had never whispered or talked in lowered voices .

To a further question by the defence lawyer of the second accused the witness answered that he had spent DATE in room no . CARDINAL together with the second and the first accused and the others .

To a further question by the defence lawyer of the second accused the witness answered that the second accused had arrived in the room DATE or DATE after the first accused .

To a further question by the defence lawyer of the second accused the witness answered that , as regards watching television , the first accused had behaved in the same way before and after the arrival of the second accused , namely , he could not stand the cigarette smoke [ in the television room ] so he had avoided watching television .

To a question by the first accused the witness answered that the first accused had spent most of the time in bed , doing crossword puzzles or reading .

To a further question by the first accused the witness answered that upon the arrival of the second accused in the said room for DATE there had been no communication between the first and the second accused , or others , and only after DATE had they all started to communicate with each other and to have conversations .

At the same hearing ORG gave evidence . The relevant part of the written record reads :

“ I spent DATE in FAC ... at the same time as the first and the second accused ... When I arrived in that room the first and the second accused and ORG were already there . ... I mostly smoked together with ORG ... I did not discuss any criminal offence with GPE .. He only told me that he was hoping to return to Bjelovar and that he would be acquitted .

Since I arrived in that room when the others were already there , I do remember that the first and the second accused socialised and ordered fruit in the canteen together . From my conversations with the second accused I remember that he had some problems at the state border and as for the first accused , I can say that he gave the impression of being a policeman from the former system and was very reticent . [ I had the impression ] that he lived in his own world .

To a question by the Deputy ORG Attorney as to whether they had discussed why each of them had been in prison , the witness answered that he had told the others why he had been in prison ... but did not remember whether the others had disclosed the reason for their imprisonment , because the prison rule was not to ask such questions ...

To a further question the witness answered that he had not heard any conversation between the first and the second accused , save for the usual discussions about food and similar . The first accused had talked more to the others in the room than to the second accused .

To a question by the defence lawyer of the first accused the witness answered that he had not noticed that the first and the second accused would separate themselves from the others , although they had been allowed to leave the room and take walks ...

To a question by the defence lawyer of the second accused the witness answered that [ the beds occupied by ] the first and the second accused had been next to his and [ the bed occupied by ] ORG had been on the other side .

During the proceedings the applicant objected to the evidence given by ORG , arguing that he had mostly spoken of his own conclusions , which could not be taken as evidence , and had been unable to repeat anything he and PERSON had allegedly talked about . The applicant also relied on a psychiatric report drawn up in respect of ORG the purposes of the criminal proceedings against him . The relevant part of the report drawn up on DATE reads :

“ The intellectual level of the patient is within the regular limits . His personality has emotionally unstable and histrionic characteristics .

A more advanced assessment shows characteristics from category FCARDINAL.CARDINAL ( lack of restraint , immaturity , aggression ) ; FCARDINAL.CARDINAL ( more traits typical of a histrionic personality – affective shallowness , instability , egocentrism , lack of concern for others , confirmation - seeking , inability to cope with loss , [ tendency to ] defend ego even when it causes moral damage ) . ...

Emotionally unstable personality ( PERSON according to MKB-CARDINAL ) is characterised by a tendency towards impulsive behaviour without concern for consequences , and unpredictable and volatile moods . ...

Histrionic personality disorder ( FCARDINAL.CARDINAL ) is characterised by shallow and unstable affection , self dramatisation , affected expression , exaggerated expression of feelings , suggestibility , egocentrism , self - indulgence , lack of concern for others , easily hurt feelings and constant seeking of approval , excitement and attention from others .

Obligatory psychiatric treatment is recommended ...

On DATE ORG found both PERSON and the applicant guilty of CARDINAL counts of murder motivated by personal gain and sentenced each of them to DATE imprisonment . The judgment also held that they had taken MONEY from the house of the victims . The applicant was convicted solely on the basis of the evidence given by ORG The relevant part of the judgment reads :

“ The first accused PERSON ...

and

The second accused PERSON ...

are guilty

in that they :

on TIME , in accordance with their previous agreement with an unknown woman , after arriving in a ORG CARDINAL , licence plates BJ CARDINAL BF , at no . CARDINAL PERSON Street in GPE , residence of GPE , GPE and PERSON , and having parked the car near the house , in the knowledge that GPE , GPE and PERSON kept a large amount of money in the house , left the car in order to kill them and appropriate their money , while the unknown woman hid close by the car and kept guard so that nobody would find them . They entered the house in which late GPE , GPE and PERSON lived , through the door in an unidentified manner , approached PERSON who was asleep in his bed and from a PERSON calibre Scorpion gun shot CARDINAL bullets into the head of PERSON from a distance of QUANTITY and thus caused him CARDINAL gun - shot wounds to the head ... from which he died instantly , and then took and kept an unidentified amount of money , but CARDINAL CARDINAL,CARDINAL Croatian kuna , and distributed it between them ;

immediately after the offence under point CARDINAL . , at the same place and in the same manner , after they had entered the house , shot CARDINAL bullets at GPE who was asleep , from the CARDINAL . CARDINAL PERSON calibre Scorpion gun from a distance of QUANTITY , thus causing him CARDINAL gun - shot wounds to the head , ... from which GPE died instantly , and then took from the house and kept for themselves an unidentified amount of money , but CARDINAL CARDINAL,CARDINAL NORP kuna , which they distributed between them ;

immediately after the offence described under point CARDINAL . and in the same place and at the same time from the said PERSON calibre NORP gun , shot CARDINAL bullets into the head of GPE , who was asleep , from a distance of QUANTITY , thus causing her CARDINAL gun - shot wounds to the head ... from which ORG died instantly , and then took an unidentified amount of money , but CARDINAL CARDINAL,CARDINAL NORP kuna , which they distributed between them ;

R e a s o n i n g

Witness PERSON said that he had been placed in detention in FAC because he had been sentenced to a DATE prison term . His conviction was not final . Owing to his health problems he had been transferred to ORG . He had stayed there in room no . CARDINAL from DATE until DATE . He had met the first accused for the first time in the prison hospital . They had spent time together and he had immediately told the first accused why he had been detained , but the first accused had at first not wished to disclose the reason for his own detention . They had had an argument about the defence counsel of the first accused . He [ S.Š ] had been displeased by certain comments that the first accused had made about her .

In DATE the second accused [ the applicant ] had been placed in the same room [ having been transferred ] from FAC . [ ORG ] had noticed that the first and the second accused had greeted each other as if they already knew each other . The second accused ’s bed had been placed between his and that of the first accused . The first and the second accused had talked a lot between themselves ... He had overheard their conversations while lying on his bed and reading the newspapers . ...

... he learned from these conversations that the CARDINAL of them knew each other from PERSON . ... The first and the second accused had also talked about a mobile telephone and the second accused had said that he had come to PERSON with a certain PERSON and that they had waited there for a long time for a woman to return to the house . They had said that they had not known that a third person had been present in the house .

From these stories he had understood that , apart from the CARDINAL of them , the first accused ’s wife had also been implicated , and that it [ sic ] had concerned an exchange office in which a childhood friend of the first accused had worked . The second accused had feared being discovered and the first accused had told him that CARDINAL woman , a witness , had changed her statement in their favour . The second accused had told the first accused that he would pay for his defence ...

He had also learned from their conversations that the second accused and the first accused ’s wife had crossed the border to GPE and GPE at PERSON , because the first accused ’s wife had had to take the mobile telephone belonging to the first accused back to GPE , while PERSON had crossed to GPE at PERSON . The money had been carried by the second accused and the first accused ’s wife as well as the CARDINAL mobile telephones , while the first accused had returned to ORG . They had taken the mobile telephones to GPE because it had been necessary to send signals to ORG : the signals had been sent from the GPE mountain and from PERSON .

The first and the second accused had also discussed the money which had been found in the first accused ’s deep freezer , CARDINAL HRK , which was the first accused ’s share . These conversations had mostly taken place in the afternoons or DATE when the inmates were allowed to watch television – the first and the second accused would stay in the room alone and talk . He [ S.Š ] would come back to the room instead of watching television and that is when he would overhear the conversations .

The evidence of witness ORG , who described in detail , convincingly and logically what he had overheard from the conversations between the first and the second accused shows that the first and the second accused had committed the criminal offence at issue . Witness PERSON mentions a number of details about the events at issue about which the first and the second accused had talked , such as waiting for a woman ( GPE ) to return to the house , calls from mobile telephones from GPE , keeping the money in a deep freezer in the first accused ’s garage , and surprise at the presence of a third person in the house where the crime had been committed ( accidental presence in the house of GPE , who was on maternity leave at the time and spent most of the time at her parent ’s house in PERSON ) . Witness PERSON gave his evidence on CARDINAL occasions ; his statements were all identical in their essential part and could not have been invented , because he described small details relating to both the time before as well as after the events which correspond to the established facts .

Neither has this court found any reason why witness ORG would testify against the first and the second accused , whom he did not know from before and had met for the first time in FAC . It has not been established that he benefited in any manner [ from giving his evidence ] . The psychiatric report on ORG does not show that he suffers from a mental illness . [ It shows that ] his intellectual level is normal and therefore the veracity of his evidence has not been called into question in any manner . The accountability of witness ORG as an accused in other criminal proceedings was diminished , but not to a significant extent . It was diminished on account of him being drunk at the time of the crime . Against this background , this court entirely accepts the evidence of witness ORG as reliable .

Although there is no material evidence of the participation of the second accused in the criminal offence at issue , and since his participation became known only at DATE , there is the evidence given by witness ORG , who stated that the second accused had been a perpetrator of the criminal offence at issue and who described the participation of the second accused in detail . ... ”

In his appeal the applicant argued that the evidence given by ORG had been unreliable owing to his personality disorder and that his statements given before the investigating judge and at the trial were contradictory and illogical . Thus , he said that the applicant and ORG had had secret conversations and had spoken in lowered voices . If the conversations had been secret , then they would not have been conducted within the hearing of a third person . As regards the placement of their respective beds , in his statement before the investigating judge ORG said that the bed occupied by ORG had been in the middle , between the bed occupied by the applicant and the witness , while at the trial he said that the bed occupied by the applicant had been in the middle . As regards the time of the alleged secret conversations between the applicant and GPE , ORG firstly claimed that they mostly took place in TIME and at the hearing held on DATE he said that they took place in the evening , after dinner . It was improbable and unconvincing that CARDINAL perpetrators of such grave criminal offences would discuss the details of these offences in front of a third person . ORG also mentioned that a woman , the key prosecution witness in the proceedings , had altered her previous statement in favour of the accused . However , there had been no such witness in the proceedings . He also repeatedly stated that a person with the surname PERSON had also been implicated in the murder of the CARDINAL people in question . However , the person of that name was actually one of the murder victims . ORG had no personal direct knowledge of the murders at issue . When giving his evidence at the trial he constantly repeated the phrase ‘ I ORG which could not be the basis for the applicant ’s conviction . The witness enclosed his so called “ notes ” , allegedly made during the conversations between him and PERSON However , these notes were a list of meaningless words . His statement was in contradiction to those given by inmates from the same room , PERSON and ORG Furthermore , there was no logic to the whole story and he ( the applicant ) had not even been to GPE in DATE , but had been living in GPE , GPE , where he had run his own business since DATE . He claimed that he had never met PERSON before . Finally , no material evidence found in the house where the murders had been committed had any connection with him . The applicant argued that the findings of the trial court had been completely arbitrary to the point that they ran contrary to common sense and the basic requirements of a fair trial .

The first - instance judgment was upheld by ORG on DATE . The relevant part of the judgment reads :

“ The accused ORG in their respective appeals unsuccessfully try to challenge the evidence given by witness ORG However , contrary to their assertions , the first - instance court gave valid reasons for accepting the statement given by that witness and these reasons have not been called into question by the allegations in the appeals .

It is firstly to be stated that the statement of witness ORG is not in contradiction with other evidence as the appellants wrongly claim . Witnesses PERSON and ORG , who gave more details about the circumstances in their room in ORG than witness PERSON , said that the accused ORG spent more time together than with other inmates , by which they disputed the defence put forward by the accused , in particular the allegation by ORG that he spoke to PERSON less than to the other inmates . The fact that the other inmates did not hear the conversations described by ORG does not cast doubt on that part of his statement , because witness PERSON said that he had regularly watched television , that ORG had mostly stayed in the room with PERSON and that PERSON , who had sometimes watched television , would soon return to the room . Thus , witness ORG , as it is indirectly shown from the statement of witness PERSON , often had the opportunity to be alone in the room with the accused while the other inmates were watching television and was able to hear the confidential conversations which they had obviously then held .

The accused ORG claims in his appeal that it is improbable that the perpetrators of such crimes would meet after DATE in the same room in FAC and that it is excluded that , even if they met in such circumstances , they would discuss the crimes at issue in the presence of a third person . Such behaviour would be contradictory to the profiles of persons who conspired and planned to commit QUANTITY murders in a professional manner . He also argued that he had been at large for DATE and that in that period he would have had every chance to discuss the crimes at issue with the other perpetrator .

However , [ this court finds ] that the accidental placement in the same room of persons who committed a criminal offence together can not be regarded as impossible . The accused PERSON was detained in connection with a criminal offence unrelated to the CARDINAL examined in these proceedings and was placed in FAC , which only has a couple of rooms in each ward . At that time he was not yet a suspect in respect of the criminal offences which were the subject of the proceedings conducted against ORG and therefore no formal obstacle existed for placing them in the same room .

On the other hand , although the accused ORG had indeed been at large DATE ( when his detention was lifted ) and DATE ( when he was again detained ) it is certain that , since an appeal had been lodged against the first - instance judgment acquitting him ( that is to say that the criminal proceedings against him were still pending ) , he had a reason to avoid public and frequent contact with the accomplice , the accused Ajdarić . Finally , if the accused saw each other in that period and discussed the criminal offences they had committed , it is certain that after the judgment acquitting [ M.G. ] had been quashed and he had been detained , in view of these new circumstances and the development of the proceedings , they had something to discuss during their stay in ORG .

The description of the conversations between the accused given by ORG is neither unconvincing nor illogical : the accused PERSON and PERSON , as described by ORG , conducted these conversations when all or at least most of the other inmates were absent , that is to say that they talked in secret as far as it was possible . It is obvious that because the accused talked in lowered voices about the criminal offences in question the witness S.Š did not hear all the details of their conversations . This is precisely why the parts of the statement given by witness ORG in which he reconstructs the content of these conversations on the basis of the parts of these conversations that he had heard do not fit with the facts established on the basis of the other evidence . Thus , witness S.Š obviously wrongly understood the role of PERSON , whom the accused had mentioned . However , if the evidence given by ORG had been false , as suggested by the accused ORG in his appeal , and had relied on facts from the newspapers , he surely would not have mentioned PERSON in the same context , since this is not shown in the previous proceedings .

Contrary to the allegations in the appeal by accused ORG , on all CARDINAL occasions when he gave his statement witness ORG reproduced the words and sentences from the conversations of the accused in relative detail , and certain illogical details in his statements , stressed in the appeal by the accused PERSON , actually contradict the argument in that appeal that his statement had been fabricated , that the witness had been following instructions and had been told what to say . The accused did not specify who had [ supposedly ] instructed the witness and in whose interest that would be . Lastly , had the statement of that witness been fabricated and had he memorised it according to someone ’s instructions , it would be expected that the memorised statement would be entirely in accordance with all the other evidence . It is precisely the contradictions about certain events ( allegations of witness ORG about the telephone call on a mobile telephone from GPE , participation of S. and similar ) that show that his statement was not fabricated and [ that he was not ] following instructions .

The accused also point to the character of witness ORG and stress the part of the psychiatric opinion drawn up in the proceedings against him which states that he has a histrionic personality disorder , on the basis of which [ the accused ] concluded that he is inclined to fabricating stories . However , the accused ignore other conclusions of that report according to which the intellectual capacity of ORG is within normal limits and there are no indications of mental illness .

Against the above background , there was no need for a further psychiatric examination of witness ORG ... ”

On DATE ORG , acting as the third - instance court , again upheld the applicant ’s conviction . The relevant part of the judgment reads :

“ Contrary to the allegations by both accused in their respective appeals , ... ORG , as the third - instance court , finds that the second - instance court correctly held that the first - instance court gave a detailed analysis and assessment of the statement given by witness ORG , who had spent some time with both accused in ORG . Witness PERSON , contrary to the other inmates , was often alone in the room with the accused and was thus able to hear their confidential conversations , which is in accordance with the statements given by witnesses PERSON and ORG , who also gave evidence about the events in FAC , and on whose statements both accused rely in their appeals . They said , inter alia , that the accused had spent more time together than with the other inmates , by which they rebutted the defence argument of the accused , in particular that of PERSON , who said that he had talked to the accused PERSON Witness PERSON also confirmed that the accused and witness ORG had not watched television regularly because the accused ORG had mostly stayed in the room , while the accused PERSON and witness ORG had watched television only occasionally . ”

On DATE ORG ( Općinski kazneni sud u GPE ) acquitted the applicant of the charges of car theft .

The applicant ’s constitutional complaint lodged in connection with the criminal proceedings whereby he had been found guilty of CARDINAL counts of murder was dismissed on DATE . It was served on the applicant ’s counsel on DATE . The relevant part of ORG decision reads :

“ The constitutional right to a fair trial concerns procedural guarantees only . From that standpoint the ORG examines possible procedural violations in the court proceedings and on that basis , in view of the proceedings as a whole , assesses whether the proceedings were conducted in a manner which ensured a fair trial .

In the case at issue , the applicant ’s guilt was established in the criminal proceedings after the evidence had been presented before the first - instance court . The applicant was able to follow the proceedings , was legally represented , was able to comment on and to call evidence concerning the decisive facts and to carry out all lawful procedural acts . The first - instance judgment noted the evidence which was presented before it and the evidence on which it based its conclusion that the applicant had committed the criminal offence at issue . The first - instance court analysed all the evidence and facts relevant for determining the existence of the criminal offence of murder and gave valid legal reasons for its findings .

The guarantees of a fair trial ... require that the proceedings be viewed as a whole ( that is to say that the proceedings before ORG and those conducted before ORG in the second and third instance are to be seen as one ) and an assessment be made of whether the proceedings were conducted in a manner which assured the applicant a fair trial .

Having reviewed the findings of ORG judgment ... of CARDINAL DATE , ORG has not found any circumstances which would indicate that that judgment violated the applicant ’s right to fair trial in any respect . ”

The applicant submitted a medical report in respect of ORG drawn up on DATE by ORG of the Croatia Pension and Invalidity Assurance Fund concerning ORG The relevant part of the report reads as follows :

“ The insured has been a member of ORG since DATE . On DATE during an armed conflict in PERSON he broke his foot and [ in addition ] has had a hearing impairment since then .

In DATE he was injured in an explosion ...

The insured ... suffers from impaired hearing as a consequence of [ exposure to explosives ] ... ”


At the time of the events , the applicant , a journalist , was the regional correspondent for ORG for the national newspapers “ NORP ” and “ ORG ” .

A newspaper article , contributed by the applicant , was published in “ ORG ” in its issue no . CARDINAL of DATE under the title “ Defendants [ charged with ] kidnapping call for [ criminal proceedings against ] the police officers who arrested them ” ( “ GPE за отвличане поискаха съд за полицаите , прибрали ги в ареста ” ) .

The text of the article read as follows :

“ The lawyers of the CARDINAL defendants in the case regarding the kidnapping of nurse PERSON petitioned ORG to open a preliminary investigation against CARDINAL [ policemen ] from FAC . The [ defendants ' ] case is [ currently ] being heard by ORG .

Police officer ORG and policemen T. and B. participated in the arrest of the abductors on DATE ] , but disguised as drivers of the luxury cars of the local businessman PERSON The owner of a chain of establishments ... had gone to the police , had claimed that he had been kidnapped and had named his abductors .

[ Later ] that night his men [ wearing ] bullet proof jackets with police insignia and carrying machine guns raided the residence of the alleged abductors . With the consent of the CARDINAL policemen they took the arrestees to the mountain range near ORG . [ There they held them for ] DATE and beat them with metal rods after which they took them to the police station . The relatives of the injured and the [ abductors ' ] medical certificates provide evidence as to the rage of their attackers . Charges were brought against the CARDINAL abductors , among who is PERSON ... who was recently sentenced to DATE imprisonment in [ a related case ] . He had been charged with organising the abduction of the nurse and the businessman . His case had been separated from those of the other [ accused ] . ORG ruled that ORG has DATE to decide whether there is enough evidence [ to justify ] the opening of a preliminary investigation against the [ CARDINAL policemen ] . ”

On DATE policeman PERSON filed a complaint against the applicant and petitioned ORG to open criminal proceedings against him for libel of an official during or in connection with the exercise of his duties or functions .

The applicant was summoned by ORG Office on DATE and gave a written statement . He stated that he had simply reported on a request made by the lawyer of the alleged abductors during a hearing in the criminal proceedings before the ORG whereby he had demanded that the criminal proceedings be initiated against the police officers . The applicant also stated that CARDINAL of the witnesses in the proceedings before ORG had made a similar request to ORG .

Subsequently , ORG obtained a copy of the court transcript which showed that CARDINAL of the witnesses , the father of CARDINAL of the accused , had given testimony implicating certain policemen in the beating of their son , but had not named policeman PERSON

On DATE the case file was reassigned to ORG .

The Sofia District Prosecutor 's Office issued instructions to the police on CARDINAL DATE to interview the applicant in order to identify the source of his information and the basis for his claims that policeman PERSON had participated in the arrest of the alleged abductors .

The applicant was questioned once more on CARDINAL DATE . He confirmed that his article was based on statements made by the lawyer of the alleged abductors and on a petition filed on CARDINAL DATE by CARDINAL of his clients , PERSON , requesting that proceedings be initiated against the arresting officers . He claimed that in the said petition , a copy of which had been shown to the applicant , it had been stated that policeman PERSON had been CARDINAL of the CARDINAL policemen who had been present and had not intervened when the men of the local businessman had beaten them up .

The police prepared a report on CARDINAL DATE in which they detailed their additional findings . It noted that they had obtained a copy of the petition filed on CARDINAL DATE by PERSON PERSON and that therein it had only been claimed that policeman PERSON was CARDINAL of several policemen present when Mr PERSON had been brought to the police station for questioning , had threatened him verbally and had made him sign several blank statement sheets . The report also claimed that after having shared their additional findings with the applicant the latter had realised his mistake and had expressed a readiness to apologise to policeman PERSON

On DATE the case file was transferred back to GPE Prosecutor 's Office .

On an unspecified date in DATE ORG refused to open a preliminary investigation against the applicant as it found that there was insufficient evidence of a criminal offence . Policeman B. appealed against the decision on DATE .

By decision of DATE ORG quashed the decision of the lower - standing ORG as it found that the evidence against the applicant was sufficient to warrant the opening of a preliminary investigation against him and remitted the case with instructions that such proceedings be initiated .

On DATE ORG opened a preliminary investigation against the applicant for libel of a public official during or in connection with the exercise of his duties or functions committed in print [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and ( CARDINAL ) and LAW ( ORG ) ] . A restriction was also placed on the applicant not to leave his place of residence without the consent of ORG , which was not lifted until the end of the criminal proceedings against him . The case file was then transferred for further investigation by ORG with the following instruction : “ The investigation must perform the following : Procedurally document the offence . ”

On DATE policeman PERSON and an acquaintance of his were questioned .

On DATE the applicant was charged with libel through falsely incriminating a public official during or in connection with the exercise of his duties or functions committed in print by another public official [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and ( CARDINAL ) and LAW ] . He was questioned on DATE and then again on DATE . On both occasions he reiterated his previously given statements in that he had relied on statements and information received from third persons and expressed a readiness to apologise to policeman PERSON if he had in fact been misled .

NORP The results of the preliminary investigation were presented to the applicant and policeman PERSON on DATE . The case file was then transferred to ORG .

On DATE the ORG remitted the case to the investigation stage because it found serious deficiencies in the investigation . In particular , that there was no information regarding the status of policeman PERSON as a public official and regarding the nature of the offence which the applicant had allegedly claimed to have been committed by the policeman .

Subsequently , on an unspecified date , the investigation obtained a copy of the employment contract of policeman B.

On DATE the charges against the applicant were amended to libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and LAW ] . On DATE he was also questioned and the preliminary investigation was presented to him .

On DATE the preliminary investigation was presented to policeman PERSON and on DATE , the CARDINALth , the case file was transferred to ORG .

On DATE ORG filed an indictment with GPE against the applicant for libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and LAW of the ORG ] .

On DATE a judge - rapporteur of ORG remitted the case back to ORG for correction of serious procedural deficiencies such as to indicate the offence with which the applicant was being charged in reference to the facts of the case and what his intent had been .

NORP The charges against the applicant were slightly amended on DATE but remained libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and LAW ] . He was also questioned on DATE .

The preliminary investigation was presented to policeman PERSON on DATE and to the applicant on DATE . The case file was transferred to GPE Prosecutor 's Office on DATE , DATE .

On DATE the ORG filed a new indictment with ORG against the applicant for libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and LAW of the ORG ] .

On DATE a judge - rapporteur of the Sofia ORG remitted the case back to ORG for correction of a serious procedural deficiency . Namely , she found that it was still not clear for what offence the applicant was being tried because the charge brought against him on DATE for libel through falsely incriminating a public official during or in connection with the exercise of his duties or functions committed in print by another public official was still standing .

On DATE the Sofia ORG dropped the charge of libel through falsely incriminating a public official during or in connection with the exercise of his duties or functions committed in print by another public official .

On an unspecified date the Sofia District Prosecutor 's Office filed a new indictment with the Sofia ORG against the applicant for libel of a public official during or in connection with the exercise of his duties or functions through dissemination of disreputable facts in print by another public official [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) and LAW of the ORG ] .

On DATE a judge - rapporteur of the ORG set a date for the first court hearing for DATE .

The hearings of DATE , DATE and DATE were adjourned due to non - attendance of various parties . The applicant was ill for the first hearing , his lawyer could not attend the second and for the third hearing both the applicant and policeman PERSON could not reach PERSON due to heavy snowfall .

At the court hearing on DATE ORG petitioned GPE to remit the case for correction of a serious procedural deficiency as it claimed that there was still a lack of clarity as to what the applicant was being charged with . The court refused and proceeded to hear the case . It also recognised policeman B. as a civil claimant . The hearing was adjourned so as to allow the parties to collect and present additional documents and evidence .

On DATE an amendment to the ORG entered into force ( see below , Relevant domestic law ) , which had the effect of reducing the statute of limitations for libel to DATE .

At the next hearing on DATE the representative of ORG petitioned the court to discontinue the proceedings due to the expiration of the statute of limitations . GPE granted the request and discontinued the criminal proceedings against the applicant .

DATE Article CARDINAL of the ORG envisaged a punishment of DATE imprisonment and a public reprimand for the offence of libel disseminated in print of a public official during or in connection with the exercise of his duties or functions by another public official during or in connection with the exercise of his duties or functions [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) ] . The statute of limitations was DATE [ LAW ( CARDINAL ) ] and it was a publicly prosecuted offence ( LAW ) .

Following the amendments of DATE the punishment for the above stated offence was changed to a fine of QUANTITY CARDINAL and CARDINAL euros ( ORG ) ] and a public reprimand [ Article CARDINAL § CARDINAL in connection with § CARDINAL ( CARDINAL ) ] . As a result , the statute of limitations fell to DATE [ LAW ( CARDINAL ) ] . It also became a privately prosecuted offence ( LAW § CARDINAL ) .

The relevant part of ORG of DATE ( the “ ORG ” ) provides that the ORG is liable for damage caused by the organs of the investigation , the prosecution and the courts for having unlawfully charged a private person with an offence if ( CARDINAL ) he / she is declared innocent or ( CARDINAL ) the initiated criminal proceedings are terminated because ( a ) the deed was not perpetrated by the said person or ( b ) the perpetrated deed is not an offence or because ( CARDINAL ) the criminal proceedings were initiated after the expiration of the statute of limitations for the offence or after the deed had been amnestied [ section CARDINAL ( CARDINAL ) ] .


CASE OF HOUSING ASSOCIATION OF WAR DISABLED AND VICTIMS OF WAR OF ATTICA AND OTHERS v. GREECE

Preliminary objection dismissed (six month period);Violation of P1-1;Just satisfaction reserved

The first applicant was set up in DATE by disabled Second World War veterans and relatives of soldiers who died in that war with the aim of providing housing to its members . It raised its capital by means of ORG contributions .

In DATE , by deed no . DATE , the first applicant bought QUANTITY . m in the area of PERSON in Cholargos , for a total of MONEY . The Government claimed that the land did not belong to the persons who had sold it to the applicants but to the ORG . They relied in this connection on a judgment issued in DATE by ORG . The applicants contested this view . They stressed that the DATE judgment had been delivered after the exchange of their land in DATE ( see paragraph CARDINAL below ) , namely after they had transferred to the ORG all their possible claims against the former owners of their land , and that in any event they had purchased this land in good faith and at market value .

In DATE the land was requisitioned without compensation for the needs of ORG . After an application by the association , ORG ruled that the requisition was null and void because it was serving permanent and not temporary needs ( judgment no . CARDINAL ) . In DATE , as a result of this judgment , the ORG bought the unlawfully requisitioned land and exchanged it with QUANTITY . m of land owned by ORG in the nearby area of ORG . The area was public woodland outside the boundaries of the urban development plan . According to the applicants , the understanding was that the association would be allowed to develop it after the ORG had issued the appropriate changes to the local planning regulations . The first applicant paid CARDINAL drachma per sq . m to cover the difference in value between the old and the new land . The relevant decision approving the contract of sale and exchange was retroactively validated by virtue of LAW ( Law no . CARDINAL ) . The Government asserted that the above price was symbolic and that at the relevant time the market value of the land was CARDINAL drachmas per sq . m. Therefore , they considered that the land in question had been donated to the applicants . The applicants contended that this assertion was false .

On DATE a Royal Decree included the land in the revised urban development plan , following a proposal by ORG and an affirmative opinion by ORG sitting in an administrative capacity with the power to give a non - binding advisory opinion .

NORP In DATE Legislative Decree no . TIME declassified the land from being reafforestable ( άρση αναδάσωσης ) . Further , the Minister of Agriculture issued a license for building roads and cutting down trees in order to implement the new town plan . In DATE the applicant association started transferring plots of land to its members and applied to ORG for an altitude study , which was necessary under NORP law for the implementation of the urban development plan . The first building licenses were also issued .

In DATE LAW introduced new rules for the protection of the environment ( see paragraph CARDINAL below ) .

In DATE ORG rejected the association ’s application for an altitude study . Further , the Minister of Agriculture requested that the Minister of Public Works revoke the DATE LAW whereby the planning zone had been extended to the land owned by the first applicant , for the reason that it had been issued without the assent of ORG even though the area “ was a forest ” . In DATE the Minister of Public Works replied that he would not revoke the decree because it had already been applied for DATE and had been relied upon by third parties ( decision no . ΓCARDINAL/CARDINAL/CARDINAL.CARDINAL.CARDINAL ) . He then issued a new decision approving the detailed zoning plan ( ρυμοτομικό σχέδιο ) and the altitude study . On an application by ORG , ORG found both decisions illegal . It held in particular that under LAW the protection of the forest was more important than the expectations created by the fact that the land had already been in the process of being developed ( judgment no . GPE ) .

On DATE the Minister of Planning , Housing and the Environment gave a new decision which repeated in substance the annulled decision concerning the detailed zoning plan and the altitude study . ORG again applied to ORG , which quashed the new decision as well , considering that following its earlier ruling the administration had to revoke the zoning decree or give new reasons for not doing so ( judgment no . CARDINAL/CARDINAL ) . A third - party appeal ( τριτανακοπή ) by the first applicant was dismissed by ORG ( judgment no . DATE ) .

On DATE a Presidential Decree abolished the DATE LAW in so far as it extended the urban development plan to the association ’s land . Members of the association brought their case unsuccessfully before ORG which on DATE ruled that , even if LAW no . CARDINAL/CARDINAL ) had ratified the inclusion of a forest in a zoning area , such law would have been considered to have been abrogated by virtue of LAW ( judgment no . DATE ) .

DATE the first applicant undertook various initiatives which aimed at a settlement of its dispute with the ORG but to no avail .

In DATE ORG of GPE issued a decision declaring that the first applicant ’s land was a forest according to the Forests Code .

On DATE the applicant association and CARDINAL of its members invited the ORG to exchange the association ’s land for new land of equal value belonging to the ORG , or to expropriate it , according to the provisions of PERSON no . PERSON ( see paragraph CARDINAL below ) . The authorities did not reply .

On DATE the case was brought before ORG . The applicants referred to the history of the proceedings and inter alia argued that their property had been interfered with for DATE with no compensation whatsoever . Coming to the current situation , they stressed that Presidential Decree of DATE , and the interpretation of NORP CARDINAL § CARDINAL and CARDINAL § CARDINAL of the CARDINAL Constitution as set out in the DATE judgment and in the jurisprudence of ORG , made clear that it was no longer possible to build on their land . Such interference was even more odious in view of the aims of the association which was the provision of appropriate housing for its members , an aim that had now come to nought , despite the great amounts of money and time invested in it by the association and its members . The applicants claimed that according to the provisions of PERSON no . CARDINAL they were entitled to compensation for the deprivation of their right to use their property for the purposes for which they had bought it . Thus , by refusing to exchange their land for new land of equal value , or to expropriate it , the ORG had violated Articles CARDINAL of the CARDINAL Constitution and CARDINAL of Protocol No . CARDINAL to the Convention .

On DATE ORG , by a majority , dismissed the application on the ground that the relevant provisions of LAW no . CARDINAL were unconstitutional . In particular , it held that , “ by providing for the possibility of expropriating or exchanging woodland which can not become a residential area , LAW presupposes that the urban development of woodland is in principle lawful , something which is contrary to LAW . However , one judge expressed the opinion that the expropriation or the exchange of land which was purchased before the entry into force of LAW was not contrary to it ( judgment no . CARDINAL/CARDINAL ) . The judgment was certified ( θεώρηση ) on DATE .

The relevant provisions of the LAW , which came into force on DATE , read as follows :

“ CARDINAL . ORG is protected by the ORG ; rights deriving therefrom , however , may not be exercised contrary to public interest .

No one shall be deprived of his property except in the public interest , which must be duly shown , when and as specified by law and always following full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation . In cases in which a request for the final determination of compensation is made , the value at the time of the court hearing of the request shall be considered ... ”

“ The protection of the natural and cultural environment is an obligation of the ORG . The ORG is bound to take special preventive or repressive measures for the preservation of the environment . Matters pertaining to the protection of forests and woodland in general shall be regulated by law . It is forbidden to alter the status and use of ORG forests and woodland , except where agricultural development or other use is paramount for the national economy and serves the public interest . ”

“ The expropriation of forests or woodland that belong to private individuals or corporations is allowed only for the benefit of the ORG , according to LAW [ which provides the conditions for the taking of property ] , for the public interest ; their status as forests or woodlands is not thereby changed . ”

The relevant section of PERSON no . CARDINAL reads as follows :

“ ORG and private woodland belonging to ORG at the time of entry into force of this law and which can not lawfully become a residential area or be included in such an area according to [ § § CARDINAL and CARDINAL of this Section ] , shall be expropriated by the ORG at the expense of ORG , or shall be exchanged with land of equal value or other vacant land which is under the management of ORG and has been included in a residential area according to current legislation . The expropriation shall take place by virtue of a joint decision of ORG and Agriculture , on the basis of an opinion by ORG ... ”

In DATE ORG held that “ in its true meaning [ LAW no . CARDINAL ] regulated the status of private forests and woodland purchased by housing associations ” ; it thus considered that the above provision was not applicable in a case where land was donated to a housing association ( judgment no . TIME ) .


The applicant , Mr PERSON , is a NORP national who lives in Lebrade .

, may be summarised as follows .

The applicant is a farmer and horse breeder . During DATE , CARDINAL of his horses were on a paddock near a sewage treatment plant operated by the Lebrade municipality . In DATE , after he had returned the horses from the paddock , the applicant noted alterations to the horses’ hide at the croup , the neck and the back . Subsequently , some horses suffered from diarrhoea and lameness . DATE and DATE , all horses except CARDINAL died naturally or had to be put down .

The applicant subsequently sued the municipality . After he had filed an objection to a default judgment of DATE , ORG dismissed his claim on DATE . It found that , irrespective of the legal basis for his claim and whether chemical or biological substances from the plant had reached the applicant ’s property , the applicant had not established that there was a causal link between the impact of the sewage plant and the horses’ diseases . An expert opinion prepared for the court had concluded that there was hardly any available medical evidence which could clarify the cause of the death of the horses with any certainty . ORG heard CARDINAL veterinary surgeons who were familiar with horse diseases but found that none of them had established a reason for the horses’ demise : there was no support for the applicant ’s suspicion that corrosive vapours from the plant had reached the skin of the horses , and it was not likely that the skin diseases of the animals had been caused by a form of corrosion . Rather , it was likely that the animals had died from enteritis caused by salmonellae . ORG also noted that the applicant had filed a motion to hear the expert in person during the court hearing , but had not sufficiently substantiated his criticism of the expert ’s findings .

On DATE ORG rejected the applicant ’s appeal . It held that ORG had no reason to obtain a further expert opinion or to hear the expert in person . The applicant had not submitted substantiated claims concerning the extent of the plant ’s emissions or concerning the link between the alleged emissions and the damage . ORG found that section CARDINAL of LAW , which provides for a shifting of the burden of proof if a facility listed in LAW is inherently capable of causing the damage ( see Relevant domestic law , below ) , did not apply because the sewage plant was not listed in DATE the LAW . ORG also considered that the applicant had not sufficiently substantiated how the plant could possibly produce corrosive vapours and how they could reach his property , which was not located in the prevailing wind direction . Thus , ORG saw no need to obtain further evidence at the appeal stage .

On DATE ORG dismissed the applicant ’s appeal on points of law . ORG refused to admit the applicant ’s constitutional complaint on DATE .

Relevant provisions of LAW of DATE :

“ CARDINAL . Facility liability for environmental impacts

If a person suffers death or injury to his body or health , or if property is damaged , due to an environmental impact that issues from one of the facilities named in DATE , then the operator of the facility shall be liable to the injured person for the damage caused thereby .

Presumption of causation

( CARDINAL ) If a facility is inherently capable , on the facts of the particular case , of causing the damage that occurred , then it shall be presumed that this facility caused the damage . Inherent capability in a particular case is determined on the basis of the course of business , the structures used , the nature and concentration of the materials used and released , the weather conditions , the time and place at which the damage occurred , the nature of the damage , as well as all other conditions which speak for or against causation of the damage in the particular case .

( CARDINAL ) Paragraph ( CARDINAL ) shall not apply if the facility has been properly operated . A proper operation is present if the special operational duties have been complied with and no disruption of operations has occurred .

The sewage treatment plant operated by the defendant municipality is not among the facilities listed in DATE to LAW .