Update on Decisions of the European Court of Human Rights Affecting Criminal Law/Criminal Procedure
| Author | Richard Lang |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
| DOI | http://doi.org/10.1177/203228441000100209 |
| Subject Matter | Update |
New Journal of Eur opean Crimina l Law, Vol. 1, Issue 2, 2010 267
UPDATE
UPDATE ON DECISIONS OF THE EUROPEAN
COURT OF HUMAN RIGHTS AFFECTING
CRIMINAL LAW/CRIMINAL PROCEDURE
R L*
For ease of readi ng, certai n cases have been omitted from this su mmary. ey are cases
solely concerning the length of proceedings, cases solely concerning the presence of a
militar y judge on the bench, cases solely concerning the cen sorship of le tters, and other
“repetitive” or “recurrent ” cases which disclose no new poi nt of law.
Palushi v. Austria1
Date of judgment: 22 December 2 009
Applicant was previously a nat ional of the former Socialist Federa l Republic of
Yugoslavia; in 1994, he sought asylum in Austria. On 28 April 1994, he was taken into
custody at Vienna Police Prison, with a view to his expulsion for illegal stay. Two days
later he went on hunger stri ke. During his time at the prison (he alleged), a number of
incidents took place, including his b eing stabbed by prison ocers with ballpoint
pens, i njured when dr agged down some stairs, placed in solitary c onnement, and
refused access to a doctor for three days. Two complaints which Mr Palushi later led
with the Vienna Admi nistrative Panel were dismissed.
e European Court of Human Rig hts found that the applicant’s allegations, with
regards to his being stabbed with pens and dragged down steps, were corroborated by
medical reports. Any reca lcitrant behaviour on the part of the applicant could not act
as a defence for the State, which was required to ensure that sta were properly trained
to dea l with dicult prisoners or detainees wit hout resorting to excessive physical
force. e Court cla ssied the applicant’s treatment as inhuman and degrad ing, in
violation of A rticle 3. With rega rds to his lack of medical care, the Court was of the
view that the placing of the applicant in solitary connement – while he was on hunger
strike a nd therefore at greater risk – and t he three-day refusal to grant him access to
a doctor, were a lso capable of causi ng him “suering and humiliation going beyond
what had been inevit able in a situation of detention”. ere had therefore been a
second violation of Article 3.
* BA(Hons), LL.M. Of Coun sel, Crosby, Houben & Aps, Brussels .
Richard La ng
268 Intersentia
Vera Fernández-Huidobro v. Spain
Date of judgment: 6 January 2010
No violation of Art icle 6(1) where the trial of former State Secre tary Rafael Vera
Fernández-Huidobro wit h regard to the Caso GAL had been conducted, in its early
stages at least, by an investigating judge who was, for just over a year, a fellow Minister
of the applicant’s in the Government of the day. e Court was of the opinion that any
lack of impartial ity that there was had been “cured” when the Supreme Court, and its
own investigating judge, had taken over the case . e applicant was a lso unsuccessful
in a complaint relating to the presumption of innocence under Article 6(2); according
to the Court, an eventual nding of guilt was not sucient for establishing a breach of
the presumption of innocence. ree judge s dissented.
Penev v. Bulgaria
Date of judgment: 7 January 2010
Violation of Article 6(3)(a) and (b), taken together with Article 6(1), where an accused
was denied the opportu nity to defend himself against modi ed charges.
Petyo Petkov v. Bulgaria
Date of judgment: 7 January 2010
Applicant is a Bulgar ian national and works a s a ta xi driver. Fol lowing a su lphuric
acid attack on the deputy direc tor of the National Pla nning Directorate in Soa, the
applicant was arrested by t he police on 15 Janua ry 2002 on suspicion of being the
perpetrator, and was char ged. On 19 January 2002 he was det ained pending trial; hi s
detention was ex tended several times. On 5 February 2 002, his tax i was conscated.
By order of t he d istrict prosecutor’s oce , t he applica nt was requi red to wear a
balaclava with eye-holes whenever he le his cell (for example, when moving about or
outside the prison premises, at hearings or when receiving visits). His complaints
about th is measure ca me to nothi ng. For ve a nd a hal f months, he was kept apa rt
from other prisoners and was unable to take pa rt in any activities with t hem; his
complaints about t his also failed . e applicant was f ully acquitted on 19 June 2003,
but was not released until the following aernoon. On 11 September 2003 the Soa
district prosecutor said at a press conference th at no judge could persuade him t hat
the applicant was not guilty of the crime of which he had been accused. Mr Petkov had
his per sonal eects returned to him, but did not regai n possession of his ta xi until
26 April 2006 , on which date it had components missing and did not ru n. Mr Petkov
complained to the European C ourt about these various matters, rely ing on a number
of dierent articles of t he Convention.
e Court held that, rstly, with regard to the enforced wea ring of the balacl ava,
this was not permitted under Bulga rian law, it was unjust ied (as anonymit y could in
most situations be preserved by ot her means), and it served, in the Court ’s opinion, a
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