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CoAStaL NLP Group 28

[ "7. On 1 October 1986 the applicant was called up by the military authorities to take part in emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant was engaged in the operations until 11 January 1987 and, as a result, suffered from extensive exposure to radioactive emissions.", "8. In 1991, following an expert opinion which established the link between the applicant's poor health and his involvement in the Chernobyl events, the applicant was awarded compensation.", "9. In 1997 the applicant brought proceedings against the Shakhty Social Security Service (Управление социальной защиты населения по г. Шахты) as the compensation had not been paid. On 3 March 1997 the Shakhty City Court (Шахтинский городской суд) found in the applicant's favour and awarded him 23,786,567 [The amount is indicated without regard to the denomination in 1998. In accordance with the Presidential Decree “on the Modification of Face Value of Russian Currency and Standards of Value” of 4 August 1997, 1,000 “old” roubles became 1 “new” rouble from 1 January 1998] Russian roubles (RUR) of the outstanding compensation and an equal sum in the form of a penalty.", "10. On 9 April 1999 the Shakhty Bailiff's Service (Служба судебных приставов г. Шахты) instituted enforcement proceedings for recovery of the penalty awarded on 3 March 1997.", "11. In 1999 the applicant brought an action against the Social Security Service to challenge a reduction in the amount of the monthly payment and to recover the unpaid compensation. On 21 May 1999 the Shakhty City Court restored the original amount of the compensation and ordered the Social Security Service to make monthly compensation payments of RUR 3,011.36 with subsequent indexation. The court also ordered the payment of outstanding moneys totalling RUR 8,752.65.", "12. On 30 August 1999 the Shakhty Bailiff's Service instituted proceedings to enforce the judgment of 21 May 1999.", "13. On 16 September 1999 the Shakhty Bailiff's Service notified the applicant that even though the proceedings to enforce the judgment of 3 March 1997 were pending, the payments to the applicant could not be made because the Social Security Service was underfunded.", "14. On 7 October 1999 the Rostov Regional Department of Justice (Главное управление юстиции Ростовской области) notified the applicant that the two judgments could not be complied with because the defendant did not have sufficient funds.", "15. Following a complaint by the applicant about the failure to enforce the judgments, on 12 November 1999 the prosecutor of Shakhty informed the applicant that the Bailiff's Service was following the established enforcement procedure but had been hampered by the defendant's lack of proper funding.", "16. On 22 December 1999 the Rostov Regional Department of Justice informed the applicant that funds to pay the Chernobyl compensation had been allocated from the federal budget and that payment would be made upon receipt of an appropriate transfer from the Ministry of Finance.", "17. On 26 January 2000 the Rostov Regional Prosecutor's Office (Прокуратура Ростовской области) informed the applicant that the non-enforcement could in no way be attributed to the Bailiff's Service, and that the debts would be discharged as soon as proper allocations had been made from the federal budget.", "18. On 22 March 2000 the Rostov Regional Department of Justice notified the applicant that compensation of Chernobyl victims would be financed from the federal budget.", "19. On 11 April 2000 the Shakhty Bailiff's Service informed the applicant that it was impossible to enforce the judgments in his favour because the Rostov Regional Ministry of Labour and Social Development (Министерство труда и социального развития Ростовской области) was underfunded.", "20. On 16 May 2000 the Shakhty prosecutor informed the applicant that even though the Social Security Service had recalculated the amount of compensation due to the applicant in accordance with the judgment of 21 May 1999, the payments had not been made because of lack of funding.", "21. On 9 March 2000 the Shakhty City Court ordered the indexation of the amount of the penalty awarded on 3 March 1997, which had still not been paid to the applicant. An additional writ of execution for the amount of RUR 44,095.37 was issued.", "22. Following a decision taken by the Ministry of Finance, on 5 March 2001 the Shakhty Social Security Service paid the applicant the outstanding debt of RUR 113,040.38.", "23. According to information provided by the social security service on 11 February 2002, the compensation to be paid to the applicant for the period between April 2001 and June 2002 has been assessed at RUR 2,500 per month." ]

[ 3, 9 ]

[ "8. The applicant is a British national, born in 1940 and living in London.", "9. The applicant, who has a sociology degree, is a journalist and broadcaster. He has written for many national newspapers and magazines and has made a number of appearances on radio and television. \nIn September 1995 an article was published in Spiked magazine in which the applicant suggested that the athlete Linford Christie used banned performance-enhancing drugs. The article stated, inter alia:\n“On the basis of circumstantial evidence many believe, but cannot prove that Christie has been taking performance-enhancing drugs ... If he has been outwitting the testers for years, it is extremely unlikely that Christie will be caught in the few months left before his likely retirement from competitive sprinting. Nevertheless, there is no bloody hypodermic needle, and no direct evidence that points the finger at Christie. ...\nCertainly the ten days between injuring himself in Gothenburg and winning in Zurich would have allowed Christie to recover from a slight hamstring injury and, without fear of a random test, put in seven days intensive training, boosted by banned drugs, and perhaps human growth hormone, that would give him the explosiveness and power to run 10.03 seconds into a headwind. We don't know. ...\nChristie exhibits a number of other possible effects of these performance-enhancing drugs. His remarkable physique, in regard to both its bulk and definition, is consistent with the use of anabolic steroids. ... Similar considerations apply to speed (sic) with which he put on weight. In the early part of his career, he was a beanpole sprinter but between 1986 and 1988 he put on 13 kg in bodyweight to come in at the 70 kg powerhouse that he has stayed at since. Steroids have other side-effects ... Three of the commonest are grandiosity, fixated delusions and a persecution complex. Linford genuinely seems to think that running a hundred metres faster than anyone else is rather more than an exciting, even unique spectacle, but some kind of monumental contribution to human culture. ...\nHuman growth hormone ... costs £1,200 for a week's supply. Miboerone is a steroid that is even more expensive ... Christie is rich. He also shows most of the physical, behavioural and psychological features of an athlete that regularly uses steroids. This conclusion is reinforced generally by the performances that he continues to turn in at an age when psychologically he should be in decline and specifically by his uncanny quick recovery from his injury at Gothenburg. ...\nAside from all the non-testing criteria that provide circumstantial evidence to suggest that Christie may be a regular user, the final clinching one is Christie's own character and attitude to competition. He is a win-at-all-cost athlete and his determination to succeed may lead people to believe that he would not deprive himself of an advantage enjoyed by some of his rivals, thereby denying himself his only chance of fame and fortune.”", "10. In December 1995 Mr Christie commenced an action in the High Court for defamation against the applicant, the magazine's editor and the publishing company. The editor and publishing company were represented by a solicitor-advocate specialising in defamation and media litigation, Mr David Price. Mr Price had advised the publishing company prior to publication about the legality of the article in question. A separate action was launched by Mr Christie against the printers and various distributors of the magazine.", "11. During the greater part of the proceedings the applicant represented himself because he could not afford to pay legal fees and because, under Schedule 2, Part II, of the Legal Aid Act 1988, legal aid was not available for defamation actions. His defence was that the allegations made in the article were true in substance and in fact. \nIn a newspaper article among the papers submitted by the applicant to the Court, it was reported that the applicant had, in June 1996, successfully defended himself in criminal proceedings concerning a charge of assaulting a neighbour.", "12. On 28 June 1996 there was a directions hearing at which Mr Price (on behalf of the editor and publishing company), the applicant and counsel for Mr Christie made representations. An order was made requiring, inter alia, that the plaintiff and the defendants should exchange statements of witnesses of fact by 2 October 1996, and could each call four expert witnesses (a physiologist, a pharmacologist, a psychologist and an athletics coach), but only if the substance of each expert's evidence was disclosed in a report to be exchanged by 30 October 1996. These time-limits were subsequently extended by consent to some time in December 1996 and April 1997 respectively.", "13. The applicant wished to rely on the evidence of an athlete, Geoffrey Walusimbi, who had allegedly told the applicant that Mr Christie had introduced him to performance-enhancing drugs. In respect of Mr Walusimbi the applicant served the following document dated 19 December 1996, which purported to be a statement of the nature of the evidence intended to be adduced under the Rules of the Supreme Court (RSC), Order 38, Rule 2A(5) (see below):\n“The second defendant has issued a subpoena on Mr Geoffrey Walusimbi ... He intends to adduce evidence from him concerning:\n(a) his masked appearance on the Panorama [television] programme 'Drug Olympics' ... in which he admitted taking performance-enhancing drugs;\n(b) his training relationship with Linford Christie;\n(c) his trips abroad with Linford Christie to various Sports Clinics, in particular one in Florida, 'First Medical';\n(d) his knowledge of Linford Christie's own use of performance-enhancing drugs.”", "14. One of the expert witnesses whom the applicant wished to call was an osteopath called Terry Moule. Mr Moule had been involved in sports medicine for over twenty years and had treated Mr Christie. He allegedly told the applicant that as a result of his experience he was able to tell by the look and feel of an athlete's body whether that athlete had taken performance-enhancing drugs, and that he was certain that Mr Christie had been a regular user. However, because of his previous association with Mr Christie, Mr Moule did not wish to give a statement. The applicant did not, therefore, serve any form of report in respect of Mr Moule's expert evidence as required by the order for directions. Instead, in April 1997, he served the following document, which he mistakenly believed to be acceptable under the RSC, Order 38, Rule 2A(5) in place of an expert's report:\n“Terry Moule is a professional physiotherapist and went to the 1992 Barcelona Olympic Games as team physiotherapist for the athletics squad. He is conversant with the effects of steroids on the body and talks about 'steroid feel' and the particular look of a body that has been built up using anabolic-androgenic steroids. He is an expert on how the body responds to these drugs when supplemented by power lifting. He understands the effects of ageing on the performance of 'fast-twitch' muscle. He has massaged the Plaintiff in the early part of his career.\nA subpoena has been taken out for Terry Moule.”", "15. The trial was listed to start on 15 June 1998. By this time, the applicant was the sole defendant in the proceedings because the editor had been killed in a traffic accident in September 1996 and the publishing company had become insolvent. On 30 April 1998 the applicant instructed Mr Price, who had had no involvement in the case since the death of the editor, to represent him as his solicitor-advocate. Mr Price had previously given advice to the editor and the publishing company both prior to, and following, publication of the article and had drafted a defence to Mr Christie's action on the limited information then available.", "16. Mr Christie applied to prevent Mr Price from acting on the grounds that he had previously been responsible for the decision to publish the article concerned, having given legal advice to the editor, and that the legality of that decision was itself now at issue. As a result, Mr Christie argued that Mr Price had a conflict of interest. Mr Christie's application was granted by the trial judge, Mr Justice Popplewell, in the High Court on 8 June 1998, but his decision was reversed by the Court of Appeal three days later. The applicant was represented by Mr Price at both hearings.", "17. About a week before the trial Mr Christie's solicitors indicated that they intended to make an application to the trial judge seeking to prevent the applicant from calling a number of witnesses, including Mr Moule and Mr Walusimbi. Mr Price had, since being instructed by the applicant, made efforts to secure full statements from those witnesses. Following the indication received from Mr Christie's solicitors, Mr Moule agreed to make a signed statement, in which he described, inter alia, the effects of steroids and the high level of usage amongst athletes, and stated that “it would be almost impossible to succeed at the highest levels in the 100 metre [event] without the use of banned performance-enhancing drugs”. This statement was served on Mr Christie's solicitors at 3 p.m. on Friday 12 June 1998, one working hour before the trial was due to commence.", "18. On 15 and 16 June 1998 Mr Justice Popplewell heard preliminary submissions from Mr Price on behalf of the applicant and counsel for Mr Christie as to the admissibility of the evidence of the witnesses concerned. On 15 June 1998, in relation to the admissibility of the expert evidence of Mr Moule and a Professor Beckett on behalf of the applicant, he ruled as follows:\n“The rules [on disclosure of evidence] are designed to avoid an ambush. ... They are not to beat inefficient litigants. There is provision for the Judge in exercise of his duty to give leave for evidence to be called. Mr Price at the forefront of his argument says the obligation was on the Plaintiff to ensure that the Plaintiff was not taken by surprise. That is a misunderstanding of the rules of the Court. The rules provide that if the party wants to call an expert he should provide the substance of the expert's report. Mr Price contends that Mr Moule's expert statement leads to one conclusion; having observed the Plaintiff and massaged his body, everybody should understand what Mr Moule was going to say. I think there is another way of reading the evidence. The Plaintiff might have concluded that it was useless evidence. This is compounded by the fact that Mr Moule's statement deals with the ability to observe the effect of anabolic steroids but nowhere does he say that about the Plaintiff. The nearest he gets is at paragraph 8 where he says that at least 70% of athletes use steroids systematically. That statement adds nothing to the defence as pleaded.\nThere is no obligation on a party to draw the attention of the other party to the defect in its witness statements. At trial the admissibility of statements is often dealt with. There is criticism of the Plaintiff on this point but it is false. The obligation is on the party to make sure that it complies with Orders. It has not been suggested that the Defendant was unable to obtain written statements. The fact that he has statements suggests quite the contrary. The Defendant was a litigant in person but Mr Price acted for a period of time and Mr McVicar is not inexperienced. He has very much in mind what is involved. It may be said that Mr Price did not have full conduct but he has had since 30 April 1998. A review would have revealed that the statements did not comply with the Orders made. ... That I have discretion is clear. The exercise of that discretion is to ensure a fair disposal. ...”\nThe judge continued that he had to balance the prejudice that would be suffered by the applicant if the evidence were excluded against that which would be suffered by Mr Christie if Mr Moule's testimony were admitted. It would be unfair to allow Mr Moule to give evidence at trial without giving Mr Christie time to call counter-evidence, but to order an adjournment for this purpose would itself be prejudicial to Mr Christie because the applicant did not have sufficient means to provide an indemnity for the extra costs which would be incurred as a result. The judge concluded: “If there is more prejudice to the Defendant than the Plaintiff he is the person who is responsible. The fault lies with him. I will not allow Mr Moule's evidence.” He also refused the applicant leave to adduce that part of Professor Beckett's evidence which dealt with the efficacy of drug testing and the ease with which the ban on drug taking could be evaded on the basis that these issues were not pleaded by the applicant and an amendment to the pleading should not be allowed.", "19. On 16 June 1998 the judge refused to grant the applicant's request for leave to admit Mr Walusimbi's evidence, on the ground that it would be unfair to Mr Christie to be faced with wide allegations about his drug taking, the details of which he would not know until Mr Walusimbi took the stand.", "20. The applicant appealed against these rulings to the Court of Appeal. He was again represented by Mr Price at the appeal hearing, which took place on 18 June 1998. Lord Justice May, delivering the judgment of the court, commented, as had the trial judge, that the interests of the applicant were “identical” to those of his previous co-defendants, the editor and the publishing company. He went on:\n“I deal with Mr Moule's statement first. The gist statement served in April 1997 relating to Mr Moule contained very little detail of the substance of the evidence that he might give. It refers only to Mr Moule's experience and qualifications as a physiotherapist and then says baldly that he massaged the plaintiff during the early part of his career. The witness statement now served gives a more detailed account of his experience and names some of the sportspeople, including the plaintiff, whom he has treated. It refers to the benefit and effect of anabolic steroids for athletes, particularly in the 100 metres event. It states that in Mr Moule's experience a large proportion of professional athletes use steroids. It says that from his experience Mr Moule is generally able to tell by looking whether an athlete is taking steroids and that he can also tell this if he manipulates their muscles. ...\nMr Price accepts that the gist statement did not put forward any affirmative version of what Mr Moule might say, but he submits that it could be inferred that Mr Moule would give the evidence that the look and feel of the plaintiff's body indicates use of banned drugs. I do not accept this submission. This gist statement is not even inferentially a statement of the evidence intended to be adduced such as is referred to in Order 38, Rule 2A(5). ...\nMatters which Mr Price would have us infer are intended to be said by Mr Moule are neither pleaded nor the subject of any previously served witness statement or expert's report and I see no reason why the plaintiff should have anticipated the sudden arrival of this material at the very last moment.\nMr Price says that there is a strong public interest in allowing all relevant and probative evidence to be adduced lest there may be a verdict which is contrary to the truth. ... The judge took this important submission into account and so do I. The fact is that there are competing public interests, one of which is that parties to litigation should not turn up at the very last moment with unheralded evidence which puts another party at a disadvantage, and another of which is that the general administration of justice demands, for reasons which have been articulated frequently by this court, that fixed trial dates should not be abandoned at the last moment other than in quite exceptional circumstances. ...\nIt seems to me that the case for exercising the judge's discretion in relation to Mr Moule as he did is clear and overwhelming. Mr Moule's evidence was not heralded in the gist statement. The statement was served at the latest possible moment before the start of the trial. Without an adjournment of the trial (which the judge rightly regarded as out of the question and which would in any event have prejudiced the plaintiff) the plaintiff would be prejudiced by not being able properly to deal with the evidence. Any prejudice to the defendant was his own fault.\nThe judge had to make a balancing judgment, which in my view he did upon proper and unassailable principles. Accordingly, I would not disturb the judge's finding in relation to Mr Moule's evidence.”\nIn relation to Mr Walusimbi's evidence, he said:\n“A gist statement was served in relation to Mr Walusimbi and referred to what he had said in a Panorama programme. A transcript of the programme was provided on discovery. The [applicant] now wants to call Mr Walusimbi to say that the use of performance-enhancing drugs by athletes is widespread and that there are means of evading tests. Before the judge, he wanted to call Mr Walusimbi to give first-hand evidence that the plaintiff had taken drugs. This was neither pleaded nor included in the Panorama material. The judge rightly excluded it and there is no application for leave to appeal against that part of the decision. The judge held that the general evidence added little or nothing to the issue of widespread drug taking. I agree, not least since I would permit Professor Beckett's evidence to be adduced and this deals with the same topic. Further general evidence about widespread drug use by athletes does not go to establish that the plaintiff has taken drugs or that he is reasonably suspected of having done so. This again was very late evidence tendered in breach of court orders and the rules, and I consider that the judge exercised his discretion correctly to exclude it.”", "21. The main trial commenced on the same day, 18 June 1998. The applicant represented himself as his funds were exhausted. On 3 July 1998 the jury found, by a majority of ten to two, that the article complained of bore the meaning that\n“Mr Christie is a cheat who regularly used banned performance-enhancing drugs to improve his success in athletic competition.”\nIt found also that the applicant had not proved that the article as so interpreted was substantially true. \nAlthough Mr Christie did not seek damages, the applicant was ordered to pay the costs of the action and was made subject to an injunction\n“... restraining the [applicant] whether by himself, his servants, agents or otherwise howsoever from further publishing or causing the publication of the allegation (express or by implication) that the plaintiff is a cheat who has regularly used performance-enhancing drugs to improve his success in athletic competition or any words to the same or similar effect ...”", "22. Following the verdict, the distributors and printers involved in the separate action reached a settlement with Mr Christie which required the payment of damages to him (see paragraph 10 above)." ]

[]

[ "10. The applicants, Netherlands nationals born in 1920 and 1957 respectively, were partners in a timber trading enterprise based in Heeze. They operated as a trading partnership (vennootschap onder firma).", "11. Mr Mathijs Henricus Meulendijks died in September 2000. The proceedings are being pursued in his stead by his heirs. For convenience, Mr Mathijs Henricus Meulendijks will continue to be referred to hereinafter as an applicant (“the first applicant”) although his heirs now have this status.", "12. On 7 December 1988, a preliminary criminal investigation (gerechtelijk vooronderzoek) was opened against the applicants’ trading partnership on suspicion of forgery committed for fiscal purposes. On 13 December 1988, in the context of this investigation, the applicants’ business premises were searched and a major part of the office records was seized by the investigating authorities.", "13. By letters of 16 and 23 December 1988, the applicants’ lawyer unsuccessfully requested the public prosecutor to return the items seized on 13 December 1988 in order to allow the trading partnership to continue its business activities.", "14. At some unspecified date, the applicants’ lawyer was informed by the investigating judge (rechter-commissaris) that the seized office records would be returned after a final examination (slotverhoor). This examination took place on 28 February 1991.", "15. On 19 March 1991, the applicants’ trading partnership, as a separate legal entity, received a formal notification that no further criminal proceedings would be brought against it (kennisgeving van niet verdere vervolging).", "16. Since the seized office records had still not been returned, the applicants’ lawyer informed the investigating judge by letters of 25 March and 8 April 1991 that, if the office records were not returned by a certain date, a formal complaint (beklag) about the continuation of the seizure would be filed with the Regional Court. At some later date part of the seized office records was returned. The return of the remaining part was refused.", "17. At some unspecified date, the first applicant was summoned to appear on 23 May 1991 before the Regional Court (arrondissementsrechtbank) of ‘s-Hertogenbosch on charges under Article 225 of the Criminal Code (Wetboek van Strafrecht) and Article 68 of the General State Taxation Act (Algemene Wet inzake Rijksbelastingen). Criminal proceedings were also brought against the second applicant.", "18. In the subsequent criminal proceedings against the first applicant, the Court of Appeal (gerechtshof) of ‘s-Hertogenbosch, in its judgment of 27 April 1994, declared the prosecution inadmissible for non-compliance with the reasonable time requirement contained in Article 6 § 1 of the Convention. The criminal proceedings brought against the second applicant ended with the decision of the Court of Appeal of 27 April 1994 in which the summons against the second applicant was declared null and void, also for failure to respect the reasonable time requirement.", "19. The applicants’ counsel lodged a request for the return of the office records in July 1994. The applicants state that part of the records were returned in September of that year. The remainder was returned later.", "20. On 28 March 1989, the Occupational Association for the Timber and Furniture Industry and the Timber Wholesale Trade (Bedrijfsvereniging voor de Hout- en Meubelindustrie en Groothandel in Hout, hereinafter referred to as “the Occupational Association”) sent the applicants corrected demands (correctienota’s) for social-security contributions over the years 1985-1987. The Occupational Association considered that the applicants had paid undeclared wages or had been involved in an excessive reimbursement of expenses.", "21. By letter of 7 July 1989, the applicants objected to these corrected demands. The applicants denied having paid undeclared wages or having been involved in excessive reimbursement of expenses. In this letter, the applicants requested the Occupational Association to give formal confirmation (voor beroep vatbare beschikking) of their demands.", "22. It is stated by the Government and not denied by the applicants that the Occupational Association wrote to the applicants on 2 August 1989 asking them to substantiate their objections.", "23. On 7 March 1990, the Occupational Association again requested the applicants to substantiate their objections to the demands.", "24. On 9 March 1990, the Occupational Association sent the applicants another, similar corrected demand for the year 1988.", "25. By letter of 28 March 1990, the applicants also objected to this further demand and requested its formal confirmation. In the same letter they asked to be allowed more time to substantiate their objections, in view of the possibility that a compromise might be reached.", "26. The applicants made written submissions in support of their objections on 30 August 1990 and further offered a compromise solution. On 31 October 1990, after part of the seized office records had been returned to them, the applicants submitted additional reasons for their objections.", "27. On 7 November 1990, an administrator of the Occupational Association drew up an internal report and, towards the end of March 1991, the administrator presented supplementary recommendations. These were approved on 20 June 1991 by the “Small Commission” (Kleine Commissie) of the Occupational Association.", "28. On 3 July 1991, the Occupational Association issued the formal confirmation with the reasons for its decision. According to this decision, the applicants had to pay an additional 288,224.28 Netherlands guilders (NLG) for social-security contributions on grounds of an excessive reimbursement of expenses (which were considered as wages by the Occupational Association) and the payment of undeclared wages.", "29. The applicants lodged an appeal with the Appeals Tribunal (Raad van Beroep) on 29 July 1991 and further substantiated their grounds of appeal on 27 August 1991. On 10 January 1992, the Occupational Association replied in writing to the applicants’ submissions on appeal. The applicants responded in writing on 29 June 1992 and the Association’s further written reaction was submitted on 18 February 1993.", "30. In the course of the restructuring of the Netherlands judiciary, the case was transferred from the Appeals Tribunal to the Regional Court of ‘s‑Hertogenbosch on 1 July 1992.", "31. Following a hearing held on 6 April 1993, the Regional Court rejected the applicants’ appeal by a judgment of 17 May 1993. The applicants lodged a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep).", "32. On 18 June 1993, the applicants submitted their grounds of appeal to the Central Appeals Tribunal, to which the Occupational Association replied on 24 December 1993. On 6 January 1995, the applicants made further submissions to the Central Appeals Tribunal after a part of the office records became available to them. The Occupational Association replied on 20 January, 12 October and 7 November 1995. The applicants submitted further information on 10 May 1996.", "33. Following a hearing held on 30 May 1996 during which three witnesses and an expert were heard at the applicants’ request, the Central Appeals Tribunal, in its judgment of 11 July 1996, quashed both the decision of 3 July 1991 and the judgment of 17 May 1993. It accepted that the applicants had not paid excessive reimbursements for expenses, but found that the recovery of unpaid social-security contributions for undeclared wages was justified in principle. However, on the latter point, the decision against which appeal had been made, was insufficiently reasoned. It invited the Occupational Association to reconsider its decision rejecting the applicants’ proposals for a compromise in order to avoid prolonging the proceedings any further.", "34. Insofar as the applicants had complained of the delay between their request for and the issue of the formal confirmation by the Occupational Association, the Central Appeals Tribunal – in the light of the European Court’s findings in its Schouten and Meldrum v. the Netherlands judgment of 9 December 1994 – noted that, following the applicants’ request of 7 July 1989, the Occupational Association had requested the applicants on 7 March 1990 to substantiate their objections and that, after having requested a delay, the applicants replied to this request on 30 August 1990 and further offered a compromise solution. The Central Appeals Tribunal also noted that on 31 October 1990 the applicants had sent additional reasons for their objections, that an internal report had been drafted on 7 November 1990 which had been submitted to the Small Commission of the Occupational Association and that the formal confirmation had been issued on 3 July 1991.", "35. Noting the complexity of the case and the contents of the applicants’ submissions, the Central Appeals Tribunal held that, although the decision-making process up to the delivery of the formal confirmation had been pursued “with little diligence” (met weinig voortvarendheid), the Occupational Association had not acted so slowly that Article 6 of the Convention had been violated." ]

[ 3 ]

[ "9. The applicant, Ms Şemsi Önen, is a Turkish citizen, born in 1968. At the relevant time, she lived in the village Karataş near Mazıdağı (Mardin) in south-east Turkey. The application was brought by the applicant on behalf of her deceased parents and brother, on her own behalf and on behalf of her ten suriving siblings, namely Mekiye, Ishan, Ercan, Mehmet Nuri, Medine, Sultan, Sevgi, Iskender, Melek and Hamdullah. It concerns the killing of their parents and brother Orhan, allegedly by armed members of the Balpınar village guards, and the investigation thereof.", "10. Since the 1980s, a violent conflict has been conducted in the south-eastern region of Turkey between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Kurdish Workers' Party). According to the Government, one of the main terrorist activities of the PKK was the killing of people who have acted contrary to the cause of this organisation or who have misused property of the PKK. At the time of the events in issue, ten of the eleven provinces of south-east Turkey had been under emergency rule since 1987.", "11. The facts of the case, in particular the circumstances of the killings and the efforts of the authorities to investigate the killings, are disputed.", "12. As the village of Karataş, where the applicant and her family lived at the time of the events in issue, had refused the village guard system, tension had arisen between Karataş and its neighbouring village Balpınar. This refusal had also resulted in pressure being applied to the villagers by the gendarmes.", "13. On or about 15 November 1992, four Balpınar village guards were killed in a clash with the PKK. On the same day, shortly after the clash, gendarmes and village guards attacked the village of Karataş. This attack lasted several hours. The following day, the Muhtar of Karataş complained to the Governor that his village was being subjected to pressure and violence from the gendarmes and village guards. No investigation of the attack took place.", "14. Some weeks before 16 March 1993 the house of the Muhtar and the applicant's family house were both strafed by several rounds of bullets fired by Balpınar village guards. The Muhtar again complained to the Governor about the pressure exerted on his village by the Balpınar village guards and requested that steps be taken to put an end to it.", "15. In the evening of 16 March 1993 the applicant's older brother, Orhan Önen, and her parents, Ibrahim and Mome Önen, were killed and the applicant suffered a wound to her foot as a result of a planned action by members of the Balpınar village guards to kill Orhan Önen. Before he was shot and killed, the applicant's father was able to pull the scarf from the head of one of the intruders and shouted that he recognised the gunmen as Ali Ertaş, head of the Balpınar village guards, and his nephew Orhan Ertaş, a former Balpınar village guard. The applicant's mother, who was seriously injured by a bullet, died on her way to hospital.", "16. The Commander of the local Fosfat gendarme station, who had possibly been informed beforehand of the plan by the Balpınar village guards to kill Orhan Önen, seriously delayed the applicant's mother's access to medical treatment by refusing to provide a car to replace the defective minibus which was to transport her to a hospital and by unduly delaying the departure of this minibus for Mazıdağı.", "17. The subsequent investigation of these killings was not only ineffective and inadequate in professional terms, but was in fact designed to cover up the involvement of the Balpınar village guards and to prevent the conviction of Ali and Orhan Ertaş. From the very beginning of the investigation, and throughout the entire subsequent proceedings, the authorities blamed the PKK for the killings and failed to keep the applicant informed of any steps taken in the investigation.", "18. On 8 October 1992 PKK forces attacked Balpınar village guards on the slopes of the Kırmızıtepe hill close to the village of Balpınar. This clash lasted about twenty minutes. There were no casualties. To date, the perpetrators of this attack have not been found.", "19. On 15 November 1992 PKK forces ambushed nine Balpınar village guards on a road near the village of Karataş. In the course of this clash, which lasted about fifteen minutes, four village guards were killed and four others wounded. An investigation into the clash was carried out. The Fosfat gendarme station commander, Salih Kaygusuz, took statements from the five surviving village guards during the course of the investigation. To date, the perpetrators of this attack have not been identified.", "20. On 16 March 1993 at about 20.15 hours an armed PKK attack using rocket missiles and heavy weapons was carried out on a PTT radio link station in Mazıdağı-Kaletepe, at a distance of about one kilometre from Mazıdağı. The village guards present returned fire. The clash lasted about ten to fifteen minutes. There were no casualties. Shortly after the clash, gendarmes from the Mazıdağı Central gendarme station arrived at the scene. The next day, a land mine was found on the road leading to the PTT station. The initial investigation of this attack was carried out by Mazıdağı Central gendarme station under the responsibility of the public prosecutor at Mazıdağı.", "21. Also in the evening of 16 March 1993 the killing of three Karataş villagers was reported to the public prosecutor in Mazıdağı. For reasons of security, the public prosecutor only arrived at the scene of the incident at 08.00 hours the next morning. He conducted an investigation, including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor.", "22. All necessary steps were taken to investigate the killing of the applicant's parents and brother, including the collection of evidence. After having completed his preliminary investigation, the public prosecutor of Mazıdağı issued on 7 July 1993 a decision of lack of jurisdiction and the investigation was referred to the public prosecutor's office at the Diyarbakır State Security Court. This referral resulted in the institution of proceedings against Ali and Orhan Ertaş before the Diyarbakır State Security Court.\nOn 6 May 1994, in the context of these proceedings and on the instructions of the Diyarbakır State Security Court, further statements were taken before a judge of the Mazıdağı Criminal First Instance Court from Ali Ertaş, Mahmut Denli and Mecit Kaya. No statements were taken from the applicant and her sister Mekiye, since they no longer resided in Karataş and their new address could not be established.", "23. On 28 December 1994 the Diyarbakır State Security Court acquitted Ali and Orhan Ertaş for lack of evidence. After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant's parents and brother have not been found.", "24. The Government submitted that it appeared from information obtained that the PKK had provided the applicant's brother Orhan with a taxi, which he had put to his own private use. He had thus made his family a target of the PKK, a terrorist organisation which was in all likelihood responsible for the killing of the applicant's parents and brother.", "25. On 16 March 1993 an incident report was drawn up by the gendarmes of the Mazıdağı District gendarme station stating that at around 21.30 hours that day, a group of terrorists belonging to the outlawed PKK organisation entered the home of Ibrahim Önen and opened fire. Ibrahim and Orhan Önen were shot and killed. Mome and Şemsi Önen were injured and Mome Önen died on the way to hospital. The report also referred to nine empty Kalashnikov cartridges without further specifications.\nOn the same date NCO Salih Kaygusuz of the Fosfat Gendarme Station drew a sketch map of the interior of the Önen family's two-room house. It indicated in one room the location of the bodies of Ibrahim and Mome Önen, two blood stains between the body of Ibrahim Önen and the front door and five empty cartridges. In the other room the location of the body of Orhan Önen and four empty cartridges was indicated. No blood stains were recorded in the room where the body of Orhan Önen was indicated. The sketch map only recorded what had been found inside the house. It did not contain any information about the immediate surroundings of the house.", "26. According to a post mortem examination report dated 17 March 1993, due to security precautions, the team of experts only arrived on 17 March 1993 at about 08.00 hours in Karataş, acting on a report that three persons had been killed there on 16 March 1993 at 20.00 hours. This team consisted of the public prosecutor of Mazıdağı Yekta Çobanoğlu, the medical doctor Sedat İşçi of the Mazıdağı Health Centre, a clerk, an autopsy assistant and a driver. The report further indicated that Mome had died on the way to hospital and that her body had been brought back to the village. The bodies of Ibrahim, Mome and Orhan Önen had been identified by a relative, Mehmet Hadi Araç. The examination report contained information on bullet - entries and exits and concluded that the respective causes of death were haemorrhaging of the lungs, loss of blood and cessation of vital functions. Given the obvious nature of the cause of death, it was decided that there was no need to conduct an autopsy.", "27. On 1 and 5 April 1993 statements were taken from the applicant and her sister Mekiye by the Fosfat gendarme station commander, Salih Kaygusuz, and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station.\nOn 4 April 1993 Salih Kaygusuz took statements from the Balpınar village guards Ali Ertaş, son of Kasım and born in 1953, and Mecit Kaya, son of Mehmet and born in 1960, in relation to the events of 16 March 1993. Ali Ertaş stated that he was the Head of the Balpınar village guards and that on 16 March 1993 he had been on patrol duty on the Kırmızıtepe hill to the west of Balpınar. He denied any involvement in the killing of the applicant's parents and brother and stated that he felt slandered. His account was supported by Mecit Kaya who confirmed that he had been on patrol on the Kırmızıtepe hill together with Ali Ertaş until the morning of 17 March 1993. Mecit Kaya further declared that neither the village of Balpınar nor Ali Ertaş had any involvement in the killings.\nOn 5 April 1993 Mr Salih Kaygusuz took a statement from Orhan Ertaş, son of Şeyhmus and born in 1969, who stated that on 16 March 1993 he had not been in Balpınar. On that day he had been loading goods onto his lorry in the province of Mersin and had driven his lorry to Istanbul. He further declared that due to his work, he never stayed very long in Balpınar.", "28. Between 7 April and 17 May 1993 a ballistics examination was carried out. According to a ballistics report of 29 April 1993 of the forensic laboratory in Diyarbakır, the nine empty 7.62 mm calibre Kalashnikov cartridges found at the scene of the killing had been fired from three different weapons with the same calibre, i.e. six from one weapon, two from another and one from a third weapon. In a report of 17 May 1993, transmitted to the Mazıdağı prosecutor, the forensic laboratory in Diyarbakır concluded that none of the nine cartridges found at the scene of the killings matched the five empty cartridges reportedly taken from the Kalashnikov rifle of Ali Ertaş and that, therefore, the nine cartridges had not been fired from Ali Ertaş' weapon.", "29. On 7 July 1993 the Mazıdağı public prosecutor Yekta Çobanoğlu, decided that he lacked jurisdiction to deal with the case. The decision listed Ali and Orhan Ertaş as being suspected of the offence of “politically motivated murder” of the applicant's parents and brother. It noted that, following its investigation, the District gendarme command had concluded that unidentified members of the PKK terrorist organisation had committed the killings, but that, according to the respective accounts of the applicant and her sister Mekiye, their father had recognised the perpetrators as Ali and Orhan Ertaş. Concluding that the alleged offence fell within the scope of Law No. 2845, it was decided that the Mazıdağı prosecutor's office lacked jurisdiction and that the case-file should be transmitted to the prosecutor's office at the Diyarbakır State Security Court.", "30. On 13 September 1993, following referral of the prosecution's case file to the prosecutor at the Diyarbakır State Security Court, the prosecutor at this court, Tanju Güvendiren, took certain additional measures with respect to the ballistics examination. He enquired as to why only five empty cartridge shells had been sent for examination, whereas six such cartridges taken from Kalashnikov weapons owned by six village guards had been required for a comparison. He further instructed the gendarmerie to provide him with a list of the Karataş village guards as well as the Kalashnikov delivery receipts of these village guards and to send the Kalashnikov delivered to Ali Ertaş and all other Kalashnikovs belonging to the village guards to the forensic laboratory in Diyarbakır for a ballistics examination. In the event of there being insufficient replacement rifles, he instructed that these rifles be discharged and the empty cartridges numbered in order to identify which cartridge was fired from which weapon and to send these cartridges to the forensic laboratory for a ballistics examination.\nOn 19 October 1993 the Mazıdağı District gendarme command sent to the prosecutor's office at the Diyarbakır State Security Court sixty-five weapon and ammunition delivery receipts of the Balpınar village guards and sixty-five numbered empty cartridges. No information was provided as to the circumstances of the firing of the weapons. On 27 October 1994 the Regional Criminal Police Laboratory in Diyarbakır submitted to the State Security Court a ballistics examination report which concluded that none of the sixty-five empty 7.62 mm Kalashnikov cartridges matched the nine cartridges found at the place where the applicant's parents and brother had been shot.", "31. On 6 January 1994 prosecutor Tanju Güvendiren charged Ali and Orhan Ertaş with politically motivated murder of the applicant's parents and brother Orhan, under Articles 31, 33 and 448 of the Turkish Penal Code and Article 13/2 of the Law No. 6136.\nOn 21 January 1994 the State Security Court instructed the Mazıdağı Court of First Instance, inter alia, to take statements from Ali and Orhan Ertaş, Mecit Kaya and Mahmut Denli, and to take evidence from Şemsi and Mekiye Önen. It adjourned its further examination until 16 March 1994. On that date it noted that the results of its instructions had not yet arrived and that it appeared from the case-file that weapons seized from the suspects had been sent to the Diyarbakır Police Laboratory for a ballistics examination.\nPending the implementation of its above-mentioned orders for the hearing of witnesses and a request for the preparation of a further forensic laboratory report, the State Security Court adjourned the proceedings several times, on the last occasion until 28 December 1994.", "32. In the meantime, according to a statement dated 4 May 1994 and signed by the gendarmes Yusuf Kocer and Salih Günay and by the Muhtar of Karataş Muhittin Araç, the applicant and her sister Mekiye were living around Cezaevi in the Diyarbakır province, but their address could not be established. In another statement dated 4 May 1994 and signed by the same gendarmes and the Muhtar of Balpınar, Izettin Kaya, it was noted that the current whereabouts of Orhan Ertaş were unknown.\nOn 6 May 1994, in the presence of the Mazıdağı public prosecutor Yekta Çobanoğlu, the judge at the Mazıdağı Court of First Instance, Ayhan İstikbal, took statements from Mahmut Denli, Mecit Kaya and Ali Ertaş. It was noted that Orhan Ertaş had not appeared. Ali Ertaş stated that Orhan Ertaş had left Balpınar some time ago, that he was unaware of Orhan's whereabouts and, in any event, Orhan had not been in the village for a long time. As regards the applicant and her sister Mekiye, it was noted that they had not appeared and that the response to their summons indicated that they were not in the village and were residing in the Cezaevi neighbourhood in Diyarbakır. On 29 June 1994 the State Security Court noted that no statements had been taken from the applicant and her sister Mekiye as their address could not be established.", "33. On 28 December 1994 the State Security Court tried the case in the absence of the defendants as well as of the applicant and her sister. The prosecution submitted that the applicant and her sister had only heard their father state the names of the accused but that there was no other evidence supporting their account. The prosecution argued that, in these circumstances, the accused should be given the benefit of the doubt and acquitted. By judgment of 28 December 1994 the State Security Court unanimously acquitted Ali and Orhan Ertaş of the charges against them.", "34. Since the facts of the case are disputed, particularly concerning the circumstances of the killings and the adequacy of the follow-up investigation, the Commission conducted an investigation with the assistance of the parties. The Commission obtained documentary evidence, including written statements. The oral evidence of the applicant and 12 witnesses was heard by three Delegates at a hearing in Ankara on 30 March and 1 and 2 April 1998.", "35. As regards written evidence, the Commission had particular regard to the statements of both the applicant and his sister Mekiye Önen of 1 and 5 April 1993 (taken by the Fosfat gendarme station commander Salih Kaygusuz and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station); a statement by the applicant of 9 June 1993 (taken by Mr Yekta Çobanoğlu, the public prosecutor of Mazıdağı); an undated statement taken by Mr Sedat Aslantaş of the Diyarbakır Branch of the Human Rights Association (submitted to the Commission on 18 October 1993); a statement by the applicant's sister of 6 July 1993 (taken by Yekta Çobanoğlu); statements by village guards Ali Ertaş and Mecit Kaya taken on 4 and 5 April 1993 (at Fosfat gendarme station by Salih Kaygusuz); a statement by Mahmut Denli (taken on 5 April 1993 by gendarme Cengiz Kesler at the Mazıdağı District gendarme station); a statement of 6 July 1993 of Ali Ertaş (taken by Yekta Çobanoğlu); statements taken on 6 May 1994 from Mahmut Denli, Mecit Kaya and Ali Ertaş by judge Ayhan İstikbal of the Mazıdağı Court of First Instance upon request of the State Security Court of Diyarbakır.\nThe Commission also had regard to an incident report and a sketch map, both dated 16 March 1993; an ambulance record of 16 March 1993; a post mortem examination report dated 17 March 1993; correspondence of the Mazıdağı public prosecutor; forensic ballistics inquiries and examinations; Yekta Çobanoğlu's decision of lack of jurisdiction dated 7 July 1993 and a number of minutes of the proceedings before the State Security Court; as well as other documents.\nThe latter included gendarme reports and statements related to the investigation of the attack on Balpınar village guards on 15 November 1992, according to which a group of nine Balpınar village guards travelling by tractor on the road from Balpınar to the Fosfat gendarme station were attacked by PKK forces on 15 November 1992 at around 16.00 hours. At the time of the attack, the village guards found themselves between the villages Arısu and Karataş. Four village guards were injured, amongst whom Ramazan Ertaş, son of Kasım and born in 1955. Four others were killed, amongst whom Nesrettin Ertaş, son of Şeyhmus and born in 1965, and Davut Ertaş, son of Kasım and born in 1944.\nAccount was also taken of letters of various dates between 30 June 1995 and 25 March 1998, from the Commander of the Mazıdağı District gendarme station to the office of the public prosecutor in Mazıdağı in which he informed the public prosecutor that the identities of the PKK members who had killed the applicant's parents and brother had not yet been established. A number of these letters, including one sent on 25 March 1998, stated that the investigation of the matter was still ongoing.", "36. The oral evidence included statements by the applicant herself, Mekiye Önen, Ercan Önen, Muhittin Araç, Tahir Önen, Mehmet Hadi Araç, Salih Kaygusuz, Mahmut Denli, Mecit Kaya, Yekta Çobanoğlu, Sedat İşçi, Cengiz Kesler and Tanju Güvendiren.", "37. The verbatim record of the hearing held on 30 March 1998 contained the following passages of relevance to the Government's preliminary objection as to the authenticity of the application (see paragraph 71 below):\n“Mr RESS: Did you make two statements at the station, and did you sign them?\n \nMiss Şemsi ÖNEN: Yes. I went there a few times. They asked me questions. I answered them. They wrote them down. I put my fingerprint as I don't know how to write. But I don't know what they wrote. I answered the questions just as I'm doing here now. My brother was with me. I put my fingerprint to the statements.\n \nMr. RESS: Since you cannot read, I will only show you your fingerprint, and you will say whether it's yours or not.\n \nA document is shown to the applicant.\n \nMiss Şemsi ÖNEN: Yes, it's mine. That's how I put my fingerprint.”", "38. In relation to the oral evidence, the Commission was aware of the difficulties in assessing evidence obtained orally through interpreters: it therefore paid careful attention to the meaning and significance to be attributed to the statements made by the witnesses appearing before its Delegates. The Commission was aware that the cultural context of the applicant and witnesses rendered it inevitable that there would be a certain degree of imprecision with regard to dates and other details. However it did not consider that this by itself detracted from the credibility of the testimony.\nIn a case where there were contradictory and conflicting factual accounts of events, the Commission was acutely aware of its own limitations as a first instance tribunal of fact. The problems of language were adverted to above; there was also an inevitable lack of detailed and direct familiarity with the conditions in the region. In addition, the Commission had no powers to take specific measures to compel witnesses to give oral or written evidence. In the present case, despite the Commission's specific request, the Government failed to submit certain relevant documents. The Commission was therefore faced with the difficult task of determining events on the basis of incomplete evidence.\nThe Commission's findings can be summarised as follows.", "39. The villages of Balpınar and Karataş were situated in an area which was subjected to significant PKK activity in the early 1990's. It was undisputed that, prior to the events at issue, village guards from Balpınar had been attacked on two occasions by PKK forces and that, on 16 March 1993, PKK forces attacked a nearby PTT radio link installation.\nThe inhabitants of Karataş, Balpınar and about forty other villages belonged to the “Metina” clan. It appeared that, at the relevant time, all villages belonging to this clan, with the exception of the village of Karataş and one other village, had village guards and that pressure was exerted to join the village guard system. A number of witnesses stated that the refusal of Karataş to join the village guard system had resulted in tension between Karataş and Balpınar. Other witnesses denied such tension. The public prosecutor at Mazıdağı confirmed that he had heard rumours that the inhabitants of Karataş opposed the Turkish State and, therefore, the village guards were their enemies. The Balpınar village guards were not authorised to act on their own initiative. They received their orders from and had to report to the Commander of the nearby Fosfat gendarme station.", "40. Although it could not make any definite findings on this point, the Commission did not consider it to be implausible that Karataş' refusal to join the village guard system during a period of significant PKK activity in the area, had resulted in tension between the village guards of Balpınar and the inhabitants of Karataş.", "41. The Commission was satisfied from the evidence given by the applicant and her sister, that in the evening of 16 March 1993 after having introduced themselves as soldiers knowing that the Muhtar was absent from Karataş and wishing to conduct a house search, two armed and masked men entered their family home. One of the men immediately shot and killed their brother Orhan. In the course of their struggle with the intruders, the applicant's father was shot and killed by one of the intruders and the applicant's mother was seriously injured by a shot fired by the other intruder. There was no reason to doubt that both the applicant and her sister heard their father call out the names of the two perpetrators whom he had recognised as Ali and Orhan Ertaş from Balpınar.\nThe killings in question were the result of a premeditated plan to kill the applicant's brother. As to the possible motive for the killing it could not be excluded that there were tensions between the inhabitants of Karataş and the Balpınar village guards at the relevant time which had already resulted in armed attacks on houses in Karataş. Nor could it be excluded that Orhan Önen may have been a particular target because of his suspected involvement in the PKK killing of village guards from Balpınar. On the other hand, the Government's contention that the PKK had a motive for killing Orhan Önen because they had provided him with a vehicle which he had used for his own benefit rather than for services required by the PKK had not only remained unsubstantiated but was, moreover, contradicted by substantial evidence submitted by the applicant.", "42. As to the circumstances of the killing itself, the Commission found it established that the killers were aware that the Muhtar of Karataş was absent from the village and that the applicant and her sister heard their father call out the names of the perpetrators, identifying them as Ali and Orhan Ertaş. Moreover, the evidence of Mahmut Denli and Mecit Kaya that the Balpınar village guards, including Ali Ertaş, had been on guard duty throughout the night of 16 March 1993 was at least open to question. In addition, the suspicion of the involvement of Balpınar village guards was reinforced by the identification of Ali and Orhan Ertaş by the applicant and her sister at the Mazıdağı gendarme station. Nevertheless, while the evidence was sufficient to give rise to suspicion as to the identity of the killers, it had not been established to the required standard of proof beyond reasonable doubt that the applicant's brother, father and mother were killed by agents of the State.\nIn this connection, the Commission noted that the applicant had given the Delegates a description of the two men: the one who shot her brother Orhan and her mother had been described as a person with long fair hair, hazel eyes and a fair complexion, whilst the man who shot their father was described as having a moustache and black eyes. Her sister, Mekiye, confirmed that the man who shot Orhan had hazel eyes but stated that she had not seen the second intruder. The applicant had further given evidence that, on 5 April 1993, when she subsequently attended the Mazıdağı gendarme station, she saw Ali and Orhan Ertaş and recognised them as the same two men. This was confirmed by Mekiye in that, on the same occasion, she had recognised Orhan Ertaş as one of the killers from his height, build, hazel eyes, nose and complexion.\nThe Commission considered that this evidence should be treated with caution. In the circumstances of the sudden and traumatic events of that night, it was at least doubtful whether either the applicant or her sister would have had an opportunity to form a clear and accurate impression of the features of either man. In particular, Mekiye appeared only fleetingly to have seen her brother's killer, whose face had been masked with a scarf. The Commission noted that the description given by them of Orhan and Ali was contradicted by Muhittin Araç, who knew both men and who described Orhan as being lean with a dark complexion and black hair and Ali as being a more bulky man of the same height with a light complexion and chestnut brown hair.\nAs to the evidence of the subsequent identification of these two men, the Commission found no reason to doubt that the applicant and her sister did see Ali and Orhan Ertaş at the Mazıdağı gendarme station on 5 April 1993. What was, however, more doubtful was whether the identification of the two men was entirely spontaneous or whether the applicant and her sister were made aware that the men were Ali and Orhan, whose names had been called out by their father.", "43. Finally, it had not been established that Salih Kaygusuz, the Commander of the Fosfat gendarme station, had considerably delayed the provision of medical treatment to the applicant's injured mother or that the gendarme forces failed to offer her available assistance. In this connection, the Commission had regard to its findings as regards the time of the armed attack and the moment at which the applicant's mother received medical care in Mazıdağı.", "44. From the evidence of Salih Kaygusuz it appeared that, after the minibus transporting the applicant's mother had left for Mazıdağı, he reported the incident in Karataş to his superiors at the District gendarme station in Mazıdağı and stated that he suspected that the PKK was responsible for the killings. He was told that, for reasons of security, the public prosecutor would only come to Karataş the next morning. He then ordered a first gendarme team to secure the area around Karataş. A second team, led by himself, joined the first team some time later. Thereupon, he and one gendarme team went to Karataş. They arrived sometime after midnight and found the bodies of the three victims inside the applicant's house.", "45. Although the local gendarmes only arrived in Karataş at least three hours after the killings occurred, the Commission accepted that this delay had been caused by the fact that on the same evening an armed attack on a nearby radio link installation had taken place. However, once in Karataş, the gendarmes only secured the scene of the crime and, in the absence of any instructions, passively awaited the arrival of the competent investigation authorities, in the instant case the public prosecutor at Mazıdağı.", "46. According to Salih Kaygusuz, the villagers present were unwilling to provide the first team of gendarmes with any information about the killings. After having secured the scene of the killings, he and the other gendarmes merely awaited the arrival of the prosecutor since they had not been ordered to take any investigative steps.", "47. In the morning of 17 March 1993 an investigation team consisting of the public prosecutor of Mazıdağı, Yekta Çobanoğlu, and, amongst others, Dr. Sedat İşçi left Mazıdağı for Karataş.\nAfter the investigation team had arrived in Karataş and before attending the post mortem examination of the victims' bodies, the public prosecutor briefly inspected the scene of the killings and ordered Salih Kaygusuz to draw a sketch map of the scene of the killings and to collect the empty cartridges lying there. Without having been numbered and without having recorded the exact location of each cartridge, the nine empty cartridges found were put together in a bag and handed to the public prosecutor. No photographs of the scene of the killings were taken by or on behalf of the investigation team.", "48. The information recorded on the sketch map of the scene of the killings appeared to be incomplete. In contrast to a remark in the post mortem body examination report and the testimony of Dr. Sedat İşçi, the sketch map did not indicate a large blood stain on the spot where the body of Orhan Önen had been found. Furthermore, although both Salih Kaygusuz, who drew the sketch map, and Yekta Çobanoğlu were aware that the body of the applicant's mother had been moved, this fact had not been recorded on the sketch map. Although the Commission accepted that, at the time this sketch map was drawn, the members of the investigation team may have been unaware of the fact that the body of the applicant's father had also been moved from the outside of the house, the subsequent investigation could not have been assisted by the fact that the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings.", "49. The Commission noted that, according to the post mortem examination report, the applicant's brother, lying in bed, was hit by numerous bullets in his face, by one bullet in his chest and by another bullet in his knee. The Commission found this recorded observation difficult to reconcile with the fact that, according to the sketch map, only four empty cartridges were found in the room where Orhan Önen was shot and with the evidence that not a single bullet had been found in that room. Furthermore, although there was strong evidence suggesting that the applicant's father had been shot and killed outside the house, the sketch map only contained information on what had been found inside the house. Although this was denied by Salih Kaygusuz, the Commission could not exclude that more than the nine recorded empty cartridges were in fact found and collected, including empty cartridges found outside the house.", "50. After having conducted the examination of the bodies and released the victims' remains for burial, the investigation team left Karataş. Although the public prosecutor was aware that both the applicant and her sister were present in Karataş during the visit of the investigation team, neither the public prosecutor nor any other official took any statement's from them or any of the other inhabitants of Karataş on that day.", "51. As early as 17 March 1993 the public prosecutor suspected that the PKK was responsible for the killings and, in a telegram sent the same day, informed the office of the public prosecutor at the State Security Court in Diyarbakır accordingly. Although in his evidence to the Commission's Delegates, Yekta Çobanoğlu stressed that this had only been a provisional opinion, his respective requests dated 17 March 1993 to the Census Directorate in Mazıdağı to issue death certificates in respect of the applicant's parents and brother simply state that they “were murdered by fire-armed members of the outlawed PKK terrorist organisation” and, consequently, their deaths were officially recorded as having been caused by the PKK terrorist organisation.", "52. It was only on 1 April 1993 that the applicant and her sister Mekiye gave a statement about the events of 16 March 1993 to the commander of the Fosfat gendarme station Salih Kaygusuz. The applicant stated that she had heard her father call out the names of the intruders and she further gave a description of the intruders' physical appearance. Mekiye stated that she had heard her father call out only one name and did not give any description of the intruders' physical features. According to Salih Kaygusuz, this was the first time that he heard the allegation that Ali and Orhan Ertaş had committed the killings.", "53. In his testimony to the Delegates, Salih Kaygusuz had a firm recollection that he had also taken statements from Muhittin Araç, Tahir Önen and Mahmut Denli. In reply to the request of the Commission's Delegates to submit these statements, the Government stated by letter of 21 January 1999 that Salih Kaygusuz had not participated in the interrogation of these three persons. The Commission further noted that its case-file did not contain any statement given by any of these three persons at the Fosfat gendarme station.", "54. The Commission further found it established that Yekta Çobanoğlu, from the outset, had a rather firm conviction that PKK forces had committed the killings. Although he stressed that this had only been a provisional opinion inspired by views expressed by the gendarmes and his own experience, the Commission found no support for the asserted provisional nature of this suspicion. In fact, it appeared from the contents of his written communications of 17 March 1993 that he had firm ideas about the identity of the perpetrators. This element, taken together with his failure to try to talk to the applicant and her sister on 17 March 1993, resulted in a loss of time in the initial phase of the investigation.", "55. As regards the encounter on 5 April 1993 between the applicant and her sister and Ali and Orhan Ertaş in the Mazıdağı District gendarme station, the Commission found that it could not be excluded that this encounter was in fact the result of a coincidence since Yekta Çobanoğlu had not ordered a confrontation. It did not appear from the evidence that the applicant and her sister had been invited by the investigation authorities to identify the perpetrators either from a collection of photographs or at an identity parade. The Commission found that no photographs of Ali and Orhan Ertaş had ever been shown to the applicant and her sister and that at no point in time had a formal confrontation been ordered.\nThe Commission further noted from the evidence submitted that, apart from the statement taken from Orhan Ertaş at the Fosfat gendarme station on 5 April 1993, hardly any attempts were made or seriously pursued to obtain any further evidence from him. Nor did it seem that any attempt had been made to verify his alibi by, for instance, checking his whereabouts on 16 and 17 March 1993 by seeking confirmation from those persons present when he was allegedly loading goods in Mersin or from those to whom he had delivered these goods. It did not appear from the statement he gave at the Fosfat gendarme station that he was in fact asked to give the names of persons who had seen him on 16 and 17 March 1993.\nAs regards the alibi advanced by Ali Ertaş, the Commission noted that his presence on Kırmızıtepe hill at the time of the killings was in fact only supported by the statements of Mecit Kaya and Mahmut Denli, whereas the latter had stated to the Commission's Delegates that he had not in fact been in the presence of Ali Ertaş at the time of the killings, but had only seen him shortly afterwards. Given the evidence that there were, in total, 65 village guards in Balpınar who were organised in teams of 12-14 persons, the Commission found it remarkable that, apart from Mecit Kaya, no evidence was taken from the other village guards who were on duty in the same team as Ali Ertaş at the relevant time in order to verify the respective positions of each team member on Kırmızıtepe hill that evening.", "56. After having received the case-file, Tanju Güvendiren, the public prosecutor at the State Security Court noted that the investigation had been incomplete. In order to complete the investigation, he issued a number of instructions to the Mazıdağı District gendarme station by letter of 13 September 1993 including that comparison cartridges be taken from the weapons held by the village guards from Karataş. On 19 October 1993 the Commander of the Mazıdağı District gendarme station transmitted 65 weapon delivery receipts and 65 empty cartridges taken from the Balpınar village guards to the office of the public prosecutor at the State Security Court. This letter contained no information as to when and in which manner these cartridges were obtained.\nAlthough Tanju Güvendiren considered that there was no concrete evidence in support of the accusations made against Ali and Orhan Ertaş and was convinced that the PKK was responsible for the killings, he nevertheless brought proceedings against Ali and Orhan Ertaş on charges of politically motivated murder and indicted them on 6 January 1994 before the State Security Court, which had jurisdiction to determine murder charges linked to terrorism. He did not find it necessary to take any further statements or to order the arrest or pre-trial detention of the accused. In his opinion, it was excluded that the security forces would cover up a crime committed by village guards.\nIn the subsequent proceedings before it, the State Security Court in Diyarbakır requested, inter alia, that statements be taken from Ali and Orhan Ertaş, from the applicant and her sister Mekiye, and from Mecit Kaya and Mahmut Denli. They were all summoned to appear on 6 May 1994 before a judge of the Mazıdağı Court of First Instance in order to give statements, but only Ali Ertaş, Mecit Kaya and Mahmut Denli in fact did so. As the whereabouts of Orhan Ertaş, the applicant and her sister were not established, their summonses were returned to the State Security Court and, consequently, no further statements were taken from them. \nThe Commission noted that, although the gendarmes and the State Security Court were informed that the applicant and her sister were residing in the Cezaevi neighbourhood in Diyarbakır, it did not appear that any attempts were made or ordered to locate them. Nor did it seem that any further attempts were made or ordered to find Orhan Ertaş. The Commission noted that the Muhtar of Karataş, Muhittin Araç, testified that he had been aware of the exact address of the applicant and her sister in Diyarbakır, but that he had never been asked to provide the local gendarmes with this address. He explained his signature on a document dated 4 May 1994 by stating that it had been normal practice in the area for gendarmes to require Muhtars to sign blank documents for future use. No further clarification on this point could be obtained from Salih Kaygusuz, as he had left the Fosfat gendarme station in August 1993. In these circumstances, it was impossible for the Commission to make any findings in this respect. What was clear, however, was that the State Security Court was informed that the applicant and her sister were residing at that time in the Cezaevi neighbourhood of Diyarbakır. In this connection, the Commission had also regard to the evidence of the applicant's brother that, since their departure from Karataş and to date, the Önen family had always lived at the same address in Diyarbakır.", "57. The Commission accepted that the supplementary investigation measures ordered by the public prosecutor at the State Security Court, Tanju Güvendiren, in order to mend certain deficiencies in the preliminary investigation, were appropriate, although it was open to doubt whether, given the passage of time since the killings, these measures were as effective as they might have been in the initial phase of the proceedings. Moreover, he testified that he was convinced at the outset that the PKK was responsible for the killings, which might explain why he decided to indict Ali and Orhan Ertaş before the State Security Court, rather than referring the case to a court competent to try common crimes. This was supported by the fact that, apart from Ali Ertaş, none of the other vital witnesses gave evidence to the State Security Court." ]

[ 0 ]

[ "8. On 9 December 1992 a criminal action was filed against the applicant and two other defendants with the Nicosia District Court. The applicant was charged with the offences of forging official documents, circulating forged documents, fraudulently avoiding customs duties and corrupting a public officer. The Charge Sheet contained 48 charges but 28 were withdrawn at the close of the prosecution case. The witness list attached to the Charge Sheet contained 61 names and was amended to add another three, although the actual number of witnesses ultimately called was 37.", "9. On 18 January 1993 the lawyer of one of the co-accused of the applicant asked for an adjournment of the case so that he could study the file and advise his client.", "10. The applicant refused to enter a plea to the charges and asked for an adjournment until 28 January 1993, which was granted. On that date, the applicant’s lawyer (Mr Triantafyllides) asked for another adjournment and informed the District Court that he would be abroad between 16 and 22 February 1993. The Attorney General informed the District Court that he would also be away between 22 and 28 February 1993. The hearing was set for 2 March 1993 and then adjourned until 23 March 1993 at the request of the lawyer (Mr Clerides) of another defendant.", "11. On 23 March 1993 Mr Clerides submitted a preliminary objection which concerned the discretion of the Attorney General to prefer a Charge Sheet in accordance with the Criminal Code. The trial judge dismissed the objection on 28 May 1993 and set the hearing for 29 September 1993.", "12. On 5 July 1993 the accused asked the District Court to reserve the question of law for the Supreme Court as to whether the Attorney General had a discretion to launch criminal proceedings in such a case. The Attorney General objected to that request. This resulted in four days of hearing (10, 16 and 24 June and 1 July 1993) before the District Court granted the request. On 18 November 1993 the Supreme Court held that the fact that the investigations were carried out by the Customs Office did not prevent the Attorney General from preferring the Charge Sheet.", "13. Following this decision, the accused entered a plea of “not guilty”.", "14. The case was referred back to the District Court and the hearing was listed for 11 March 1994. On that date the applicant’s co-accused invited the District Court to postpone the hearing until the completion of another hearing in criminal proceedings no. 21341/92, to which all the defendants were also parties. The District Court granted the request and adjourned the examination of the case until 8 June 1994. However, as proceedings no. 21341/92 had not been completed on that date (they were concluded on 18 January 1995), the hearing was further adjourned until 26 October 1994 and then until 3 February 1995 (because the Attorney General was otherwise engaged before the Supreme Court), 8 May 1995 (because witnesses for the prosecution were unavailable) and 30 October 1995.", "15. On 30 October 1995 the lawyers for all the defendants submitted a preliminary objection as regards the competence of a newly appointed judge, who replaced the judge to whom the case had been initially assigned and who had in the meantime retired. The objection was dismissed on 6 November 1995 and the hearing set for 4 December 1995.", "16. The hearing started on 4 December 1995 and continued on 5 and 11 December 1995. On that last date the lawyer of one of the defendants objected to the submission of a document and the District Court reserved its ruling for 18 December 1995. The hearing continued on 21 December 1995, 12 January 1996, 18 January 1996, 1 February 1996, 5-6 February 1996, 8 March 1996 and 11-13 March 1996.", "17. On 15 March 1996 the applicant’s lawyer made an interlocutory application requesting the return of some of the applicant’s documents which had been confiscated during the investigation. The hearing on that application started on 22 March 1996 and continued on 27 March 1996. It was further scheduled to continue on 3 April 1996, but the lawyer of a co‑defendant asked for an adjournment. On 29 April 1996 the District Court dismissed the application.", "18. On 4 June 1996 the judge informed the parties that he had been appointed to the District Court of Paphos. Since it was impossible to conclude the case before his transfer, the Attorney General having informed the court that he intended to present a further 60 witnesses, the case was adjourned to be tried afresh before a new judge.", "19. On 4 July 1996 the case was put before another judge in order to set a date for the re-hearing. The new judge fixed the hearing for 16 September 1996, but some days before that date he informed the President of the District District Court that he would be unable to meet that schedule due to his workload. As a result, the President assigned the case to another judge.", "20. On 16 September 1996 all parties appeared before the District Court and requested that the case be adjourned until November because of a number of other engagements of all counsel, including the Attorney General who was to be away from Cyprus between 22 September and 3 October 1996, and the applicant had a trip scheduled to the Far East. On 4 November 1996, when the hearing was to start, the applicant’s lawyer alleged that, because of the time which had elapsed between the initiation of the proceedings and the time of the hearing, the proceedings should be struck out because their continuation would contravene Article 30 § 2 of the Constitution. On 14 November 1996 the District Court dismissed the applicant’s objection as follows:\n “It is after the completion of the hearing that the results of the delay are examined, which takes the question as to what can be regarded as reasonable at the end of the hearing. The results of the delay constitute a matter which is accounted for when punishment is imposed.”", "21. On 15 November 1996 the District Court dismissed another request by the defendants to adjourn the hearing. On 21 November 1996 the hearing was again adjourned until 21 January 1997 because the lawyer of one of the co-defendants contested the validity of the accused’s testimony. On 24 January 1997 the lawyer of another of the co-defendants asked for a further adjournment, because he aleady had an unrelated hearing before the Assize Court and because a second “trial within a trial” should be conducted to determine the validity of the testimony of that co-defendant. On 24 and 29 January the same lawyer reiterated the request.", "22. The hearing continued on 6, 12 and 17 February 1997. On 18, 19, 24 and 25 February 1997 the District Court adjourned the hearing on the request of the lawyer of one of the accused, and on 4, 5 and 6 March 1997 further adjournments were granted on the request of the Attorney General. The hearing continued on various dates in March and April 1997.", "23. On 10 April 1997 the lawyer of one of the co-defendants invited the District Court to reserve a question of law on the admissibility of two documents. As the court dismissed the application, the lawyer asked for permission to withdraw from the case. However, the lawyer changed his mind and the hearing continued on 16, 17 and 22 April 1997, and then on 6, 13 to15, 17 and 19 May 1997. It also continued on 3 to 5, 9, 18 and 20 June 1997, 24, 28 and 29 July, 5 to 6 and 11 to 13 August 1997 and 23 September 1997. It was adjourned on 7 to 8 May, 11 June, 12 August and 29 to 30 September 1997 of the court’s own motion.", "24. On 24 September 1997 the judge informed the accused that he had been appointed to the Assize Court and that the case would have to continue outside normal working hours. He asked for the co-operation of all parties to the proceedings.", "25. On 1 to 5, 8 to 9 and 25 to 26 September 1997, the hearing was adjourned at the request of the Attorney General.", "26. The hearing continued on 2 and 3 October 1997, but was adjourned on 8, 14 and 23 October 1997 of the court’s own motion.", "27. On 4 and 9 December 1997 it was adjourned at the request of the lawyer of one of the accused.", "28. The hearing continued on 22, 23 and 29 December 1997, on 7, 14 and 21 January 1998, on 17 and 26 February 1998, on 26 March 1998, on 16 April 1998 and on 8 and 11 May 1998. The court reserved its decision for 11 June 1998.", "29. The District Court delivered its judgment on 25 June 1998. It concluded that there was no prima facie case for any of the accused to answer.", "30. Within fourteen days of that judgment, the Attorney General lodged an appeal, but on 21 January 1999 he withdrew it." ]

[ 3 ]

[ "10. The applicant was in the care of the Eastern Health Board (“the Board”) from when he was 2 years of age until the age of majority (18 years). From 1984 to 1986 he was placed in children's homes and thereafter with a foster family. In 1991 the foster placement broke down and the subsequent placement with a “carer” family also broke down due to the applicant's behaviour. Between 1993 and May 1996 he was detained at Oberstown Boys' Centre on foot of assault charges. Subsequent placements failed again due to the applicant's behaviour and in August 1996 the Board placed him in a private and specialised residential unit in the United Kingdom, which placement also failed.", "11. In November 1996 the applicant was convicted in the United Kingdom of criminal damage, burglary, arson and aggravated theft (offences committed during his stay in the above-mentioned residential unit) and sentenced to nine months in prison. In February 1997, and at the request of the Board, the Irish High Court granted a warrant (pursuant to the Transfer of Sentenced Persons Act 1995) allowing the applicant to serve the balance of his nine-month sentence in St Patrick's Institution (“St Patrick's”) in Ireland. The applicant was released on 7 March 1997.", "12. He slept rough the first night of his release and subsequently resided on a temporary basis in a homeless boys' hostel run on a voluntary basis by a priest. From then until the judicial review proceedings (described below) issued, the applicant's solicitor wrote to the Board five times requesting that proper accommodation be made available to the applicant. A case conference was held on 14 March 1997 where it was agreed that his needs would be met in a high-support therapeutic unit for 16- to 18-year-olds but that no such unit existed in Ireland and could not be put in place in time for the applicant's needs. It was decided that the Board would look into placements outside Ireland and into interim options in Ireland.", "13. On 28 April 1997 the High Court appointed a guardian ad litem and gave the applicant leave to apply for judicial review (citing, inter alia, the Board and the Attorney-General as respondents) for (a) a declaration that, in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children, the respondents deprived the applicant of his constitutional rights under, in particular, Articles 40 § 1, 40 § 3 (1), 40 § 3 (2) and 42 § 5 of the Irish Constitution. The applicant referred in this context to his being a child at risk, namely dangerous to himself and potentially to others, and pointed out that the lack of appropriate care meant that his rights had not been vindicated; (b) an order of mandamus and an injunction directing the respondents to provide suitable care and accommodation for the applicant were also requested. The grounds submitted by the applicant related to the Board's failure to comply with its statutory duties to provide such accommodation under sections 4, 5, 16 and 38 the Child Care Act 1991; and (c) damages, although the applicant had submitted that he would suffer irreparable loss and damage for which monetary compensation would not suffice (hence the application for an order of mandamus and an injunction).", "14. The application for interlocutory relief (namely for relief until the making of a final order following the hearing of the case) came before the High Court on 6, 12, 21 and 30 May 1997. However, on 4 June 1997 the applicant was assaulted by another resident with an iron bar and taken to hospital with a fractured skull. He was operated on and subsequently discharged on 12 June 1997 and spent that night in bed-and-breakfast accommodation. On 13 June 1997 the application was adjourned on the basis that the applicant would reside in the hostel (run by the priest) under continuous 24-hour supervision of childcare workers of the Board. The Board was to continue its enquiries for a suitable facility. On 17 June 1997 the High Court ordered that the applicant reside in Kilnacrot Abbey, another hostel, under the care of social workers of the Board.", "15. The interlocutory matter was again considered by the High Court on 26 and 27 June 1997. Evidence was presented to the effect that the applicant's continued residence in that hostel was no longer feasible. Evidence was also heard from the Board's leader responsible for the applicant's case who stated that the Board's facilities could no longer cater for the applicant. A consultant psychiatrist at the Central Mental Hospital in Dublin gave evidence to the effect, inter alia, that he knew of no services in the State that could even start to address the problems the applicant represented. A report was presented detailing a number of serious incidents, including threats of assault made by the applicant, and the court heard the legal submissions of the parties.", "16. The High Court delivered its judgment on 27 June 1997. The High Court judge commented at the outset as follows:\n“This is yet another case in which the Court is called upon to exercise an original Constitutional jurisdiction with a view to protecting the interests and promoting the welfare of a minor. The application arises because of the failure of the State to provide an appropriate facility to cater for the particular needs of this applicant and others like him. It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after. No such unit exists in this State and even if one did, there is no statutory power given to the Court to direct the applicant's detention there. Such being the case, and in the absence of either legislation to deal with the matter or the facilities to cater for the applicant, I have in the short-term to do the best that I can with what is available to me.”", "17. The judgment described the applicant's history and family situation as “quite appalling”. He was one of a family of five children. His father was serving a life sentence for murder and serious sexual offences. His mother lived a “chaotic lifestyle”, refusing to settle in any type of permanent accommodation. Of his siblings, only one led a normal life. The others were in care, in detention or were drug users.", "18. On the evidence before it, the High Court accepted that the applicant was not mentally ill but that he had a serious personality disorder; that he was a danger to himself and to others; that he had a history of criminal activity, violence and arson; that he had absconded from non-secure institutions; that he had failed to cooperate with the Board and its staff; and that he had failed to cooperate in the carrying out of a psychiatric assessment of him in the past. It was “common case” that the applicant required a “secure unit where he can be detained and looked after” and that no such unit existed in Ireland. The High Court judge considered the welfare of the child to be paramount, noted the conflicting constitutional right to liberty of the applicant and observed that the evidence before him as to the child's needs and the facilities available would resolve the conflict. The court considered that there were four possible options.", "19. In the first place, the High Court could order the applicant's release from the custody of the Board. However, given the real risk of serious self-injury possibly resulting in death, this option was excluded. Secondly, the applicant could be sent back to Kilnacrot Abbey. However, given the danger he posed to himself and to others and his previous lack of cooperation, the Court ruled out this possibility. The third option was the Central Mental Hospital but the evidence before the High Court and the applicant's own preference ruled out this option.", "20. The fourth option was the applicant's detention in St Patrick's, which option was adopted with “considerable reluctance” by the court as the only manner of vindicating the applicant's constitutional rights. The High Court acknowledged that it was a penal institution. However, having noted the conflicting constitutional rights of the applicant, the applicant's needs, the constitutional obligations of the State to the applicant and the relevant jurisprudence of the High and Supreme Courts in similar cases, the High Court judge was satisfied that the evidence supported his findings that, in the absence of any other facility within the State, the place most suitable to ensure the applicant's welfare was St Patrick's, and that the High Court could exercise its “inherent jurisdiction” developed by the jurisprudence (to which the judgment referred) in making an order for the applicant's detention there. It was noted that the applicant had been in that institution previously and seemed to have done well there. Accordingly, he ordered that the applicant be brought to St Patrick's by the police and be detained there for three weeks (until 18 July 1997), all parties agreeing that detention for longer was not appropriate. The High Court judge pointed out in conclusion that he was\n“extremely unhappy at having to make this order ... but of the four options available to [him] it is the one which, in [his] view, is best suited to the welfare and needs of this applicant in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to [him] that from the welfare of this applicant it is the least offensive and in [his] view his welfare will be best served by being committed there as [he has] ordered”.", "21. Certain conditions were attached to the order by the High Court. The applicant was to be subject to the “normal discipline” of that institution and was to have a full psychiatric assessment. The “fullest cooperation” was requested by the High Court between the Board and the authorities of the institution as regards access by the staff of the Board to the applicant to allow the professionals who had been dealing with the applicant to have input into his welfare whilst in St Patrick's, provided that that did not create insuperable difficulties from the point of view of the management of the institution. In particular, the High Court recommended that the normal visiting restrictions applicable be waived as much as possible in the vital twenty-four hours after the applicant's detention.", "22. Moreover, the High Court's concerns about the suicide risks presented by the applicant were to be notified to the Governor of St Patrick's and the appropriate facilities were to be put in place in this respect. The High Court was to receive a report by the psychiatric staff of St Patrick's and by the Board on the applicant's progress, if any, and on his general well-being by 16 July 1997. There was to be liaison between the Board and the guardian ad litem, the latter of whom was to obtain the reports to be prepared for the court on the applicant. In the meantime, the Board was to continue to try to find a suitable place for the applicant's needs outside the jurisdiction and the matter was to be reviewed by the High Court on 18 July 1997.", "23. On the same day (27 June 1997) the applicant was brought to St Patrick's and placed in a padded cell overnight.", "24. The following day, the Chief Officer informed the applicant of the rules and regulations, the daily routine and of the services that were on offer (educational, welfare, spiritual, library, gym, work and recreation), which latter matters were detailed in a booklet given to the applicant. The applicant was asked if he wished to attend educational classes. He made no such request and did not participate in the institution's educational programme.", "25. The applicant appealed to the Supreme Court. He referred to the Board's failure to fulfil its statutory duties under sections 36 and 38 of the Child Care Act 1991 and to respond to his constitutional rights under Article 42 § 5. He also submitted that detention in a penal institution did not appropriately harmonise his conflicting rights under Article 42 § 5 and Article 40 § 4 (1). He also dealt, in his submissions, with the place of detention proposed by the High Court arguing that, if detention was necessary and lawful to protect and vindicate a child's rights, detention in a penal institution was not. A penal institution is a place of punishment, the effect of detention there, with or without conviction, constituted punishment and it was completely different to a high-security unit staffed by qualified childcare workers and operated in a manner consistent with Article 42 of the Constitution. His placement in a suitable high security environment would be more appropriate to his needs and the effect of such an order would be to oblige the Board to comply with its statutory duties and the State to comply with its constitutional duties through the Board. He also relied on Article 5 § 1 (d) of the Convention.", "26. On 7 July 1997 the Governor prepared a short conduct report for the Supreme Court in which he noted that the applicant was well behaved, mixed freely with other inmates and had not come under any adverse attention.", "27. The Supreme Court heard the applicant's appeal on 9 July 1997 and reserved judgment. Judgment was delivered on 16 July 1997 and, by four votes to one, rejected the appeal. The Chief Justice gave the main judgment of the Supreme Court (two judges concurring) and described the issues before him as being whether the High Court had jurisdiction to order the detention of the applicant and, if so, whether that jurisdiction extended to making an order directing the applicant's detention in a penal institution and, if so, whether the jurisdiction was properly exercised in the applicant's case.", "28. The Chief Justice noted that (apart from the particular jurisdiction assigned by the Constitution and by the Statute) the High Court has an inherent jurisdiction “as ample as the defence of the Constitution requires”. The Chief Justice noted the conflicting constitutional rights of the applicant at issue in the case: on the one hand, he had the right to liberty (Article 40) and, on the other hand, he had the unenumerated right “to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her personality and dignity as a human being”. The Chief Justice accepted that the High Court could be called upon to establish a priority of such rights as the case demanded. He noted that all parties agreed that the applicant's welfare (which was of paramount importance) required his detention in a “safe and secure unit”, but he regretted that the High Court judge was forced, by reason of the lack of any suitable facility, to order the applicant's detention in a penal institution.", "29. In conclusion, the Chief Justice was satisfied that the High Court had jurisdiction to make the order it did, that it did so in a lawful manner consistent with the requirements of the welfare of the applicant and that the High Court was correct in exercising such jurisdiction for a short period of time. He added, however, that the exercise by the courts of their jurisdiction in the case should not be considered by the respondents in the proceedings to relieve them of their statutory obligations regarding the applicant and that they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant.", "30. A fourth judge considered that the High Court's jurisdiction had not been directly disputed by the parties, and went on to agree with the option chosen by the High Court. The fifth and dissenting judge in the Supreme Court considered that it was not for the courts to conjure up the necessary accommodation but to protect and vindicate the child's rights and for the Board to address its statutory duties and obligations. It was, in that judge's view, a step too far to order the child's detention in a penal institution having regard to his moral, intellectual, physical and social welfare and his rights to liberty, equality and bodily integrity.", "31. The High Court heard further expert evidence on 18 July 1997 and apparently the applicant had been cooperative in St Patrick's. The High Court continued his detention in St Patrick's until 23 July 1997 on the conditions previously applicable, the Board being required to inform the court on the return date of the full details and efforts made to provide facilities for the applicant.", "32. On 23 July 1997 the Board submitted that it had identified a property which would take a short time to equip and staff to enable it to receive the applicant and it was indicated that it would be ready by 28 July 1997. The Board also indicated that the applicant was to travel to the United Kingdom to be assessed with a view to possible placement there. While the applicant wanted to be immediately released, his guardian ad litem considered that he should not be left on the street. The High Court directed his continued detention in St Patrick's until 28 July 1997 and that every effort should be made by the Board to ensure that the relevant property be ready to receive the applicant by 28 July 1997.", "33. On 28 July 1997 the applicant was released from St Patrick's by order of the High Court. Apart from basic personal details and the relevant court orders constituting authority for detention, the applicant's file from that institution contains few entries and his “prisoner's profile” forms were mainly not filled in. There was a note to the effect that he had been placed in a padded cell in June 1997 and a copy of the Governor's report of 7 July 1997.", "34. On the same day (28 July 1997) the applicant was placed in the accommodation prepared by the Board under 24-hour supervision. He was allowed to leave the premises occasionally for limited periods. Leave was also given to take the applicant to the United Kingdom for assessment on 31 July 1997.", "35. The applicant then absconded from that property and a warrant for his arrest was issued by the High Court on 6 August 1997. He was arrested and brought before the High Court on 8 August 1997. On the same day, and having heard submissions from counsel for the applicant and the Board together with the evidence on behalf of the Board and of the applicant, the High Court ordered the applicant's detention in St Patrick's until 26 August 1997.", "36. Conditions were again applied by the High Court to this detention. He was to be subject to the discipline of St Patrick's. A full assessment of the applicant's drug dependency was to be made, the assessment to include any outpatient assessment and/or treatment consistent with the requirements of St Patrick's. There was to be liaison between the authorities of St Patrick's and the Board. By 26 August 1997 the High Court was to be in possession of a report in relation to the applicant's drug-addiction problem prepared by the Board and the staff of St Patrick's. The guardian ad litem was to have liberty to liaise with the authorities of St Patrick's and with the Board. The Governor was requested by the High Court to dispense with the visiting restrictions during the first twenty-four hours of the applicant's detention in so far as possible and consistent with the good running of the institution, to allow the officials of the Board to have full access to the applicant. The matter was adjourned until 26 August 1997.", "37. On 26 August 1997 the High Court ordered the applicant's release to the custody of the Board on the same terms as the order of 28 July 1997.", "38. On 3 November 1997 the applicant re-entered his judicial-review proceedings. On 10 November 1997 evidence was heard from the Social Work Team Leader, Ms F., on the applicant's case and the applicant was placed in the care of the Board, subject to his attendance at City Motor Sports for practical and vocational education. The case was adjourned to 24 November 1997, on which date it was adjourned to 15 December 1997 to await a progress report from City Motor Sports. On 15 December 1997 the case was adjourned to the following day. On 16 December 1997 the case was adjourned to 19 December 1997 to allow proposals to be made by the Board.", "39. On 19 December 1997 the High Court heard evidence from Ms F. in relation to possible long-term accommodation and the case was listed for mention on 22 December 1997, on which date it was listed for mention on 5 January 1998 to allow the Board more time to find appropriate long-term accommodation. On 5 January 1998 evidence was heard from Ms F. and the case was listed for mention on 9 January 1998 in order to give the Board further time. On 9 January 1998 the Board informed the High Court that suitable temporary accommodation was to be ready by February 1998 and the case was adjourned for further discussion to 12 January 1998, on which date the High Court heard evidence from Ms F. It was decided to maintain the care order in force and to adjourn the case until 16 February 1998.", "40. On 16 February 1998 the High Court was advised that the applicant had been moved to new short-term accommodation of the Board under 24-hour supervision. The report from City Motor Sports on the applicant was presented and the case was adjourned until 2 March 1998 to allow for his progress to be assessed. On 2 March 1998 the case was adjourned to 23 March 1998 to allow the Board time to prepare recommendations for the reduction of the supervision of the applicant. On 23 March 1998 the High Court ordered that the Board's recommendations be put in place. The recommendations referred to the proposed timing of the withdrawal of supervision, assisting the applicant to obtain his own accommodation and social welfare benefits, the continuation of all necessary social work support after the official care order expired and the informing of the Board's senior management and legal agent of the recommendations given the danger the applicant continued to pose to himself and to others.", "41. The applicant remained in the Board's accommodation until April 1998 when he returned to live in the same hostel in which he had stayed in March 1997. On 30 April 1998 his judicial review proceedings were adjourned to 1999. The applicant's eighteenth birthday was on 9 July 1998. He stayed on in the hostel until October 1998 when he was removed to hospital after causing injury to himself.", "42. After discharge from the hospital he lived rough on the streets. Having been charged with minor offences he was then charged with more serious offences, was arrested and charged with, inter alia, threatening his uncle with a knife. He was remanded for trial and detained on remand in Mountjoy Prison. The outcome of those proceedings is not known.", "43. In his report dated 20 August 1999 addressed to the Department of Justice, St Patrick's medical officer reported that the applicant had been seen by a medical officer on arrival and on several occasions in the following two weeks. The applicant had complained of feeling depressed, especially at night, and was prescribed sleeping tablets. He was referred to a consultant psychiatrist, Mr McC., who kept the applicant on his medication and considered that he was a troubled youth “who felt it difficult to deal with prison life”. The reporting medical officer himself saw the applicant on 7 July 1997, when he treated the applicant for a sprained ankle sustained while playing football. That officer again saw the applicant on 25 July 1997, when he was “becoming frustrated and angry at his situation”. That officer found him “quite well” and prescribed a mild sedative and night-time sedation and asked the visiting psychiatrist to review him. A consultant forensic psychiatrist had also seen the applicant.\nThe report goes on to mention that that medical officer had no record of any input from the resident psychologist: the latter's records were retained confidentially, it could not be assumed that the latter had had no input and the latter should be contacted for information concerning any proactive treatment carried out with the applicant of which that medical officer was not aware.", "44. Mr McC. completed a report on the applicant in November 1999. He mentioned that he had seen the applicant twice: on 30 June and 22 August 1997. During the interviews the applicant did not present any signs of “major psychiatric illness either of a schizophrenic or depressive nature”. There was no mention of how the applicant's detention in St Patrick's impacted on him." ]

[ 2 ]

[ "8. The first applicant is the widow of the late Mr Timo Jokela (“Mr Jokela”), who died on 19 September 1992. The other applicants are his children and all the applicants are beneficiaries of his estate.", "9. At the time of his death Mr Jokela possessed, inter alia, the following properties in the centre of Nakkila municipality: Saha 1:15, Saha I 5:55, Saha I 5:78 and Saha II 3:20. The size of the properties came about 2.9 ha in total. Mr Jokela had purchased a third of the land for 300,000 markkas (FIM) in December 1989. A regional master plan (seutukaava, regionplan) of 1977 had designated part of the land for roadworks. That designation had been maintained in a municipal building plan (rakennuskaava, byggnadsplan) of 1989, whereas construction mainly for industrial purposes had been allowed on the remaining part of the properties.", "10. In June 1990 the Turku District Roads Authority requested the partial expropriation of Mr Jokela's properties with a view to constructing an overpass pursuant to a road plan confirmed in February 1990. The overall area to be expropriated covered about half of the properties in question (1.53 ha). The request was referred to a panel composed of a State-appointed land surveyor (“the expert”) and two lay members chosen by the expert from a list drawn up by the municipality (“the trustees”).", "11. In the autumn of 1990 the Roads Authority took over those parts of the properties which were to be expropriated. In December 1990 Mr Jokela sold other parts of the properties Saha 1:15 and Saha II 3:20 for FIM 121 per square metre to a well-established service-station company intending to construct a new service station to replace the one situated on adjacent land subject to expropriation.", "12. After reaching an agreement with the Roads Authority in March 1991 Mr Jokela received FIM 700,000 in compensation for the removal of the buildings, equipment and vegetation from the expropriated land. The removal took place the same year. The agreement did not concern the compensation to be paid for the land itself and the inconvenience suffered. On these points Mr Jokela and, following his death, the applicants disagreed with the Roads Authority.", "13. The matter was then referred to the expert and the trustees who, on 3 June 1993, fixed the market value (käypä arvo, gängse pris) of the land at FIM 7.50 per square metre. They apparently arrived at this amount disregarding three voluntary sales of land in the vicinity, as they considered that the sellers – Mr Jokela and the municipality – had been “in a dominant position” at the time and thus able to dictate the price. Instead, the expert and trustees took into account the prices paid for land within a wider area. The applicants were awarded about FIM 115,000 in compensation for the land and some additional compensation for the inconvenience suffered.", "14. The applicants and the Roads Authority appealed to the Land Court (maaoikeus, jorddomstolen) of Southern Finland which, on 27 September 1994, held an oral hearing also attended by the expert. The applicants, represented by counsel, argued that the market value of the expropriated land was between FIM 60 and FIM 112 per square metre. In support of their contention, they submitted various pieces of documentary evidence indicating a current value ranging between FIM 20 and FIM 114 per square metre. The evidence included, inter alia:\n(1) an offer of 1990 in which the Nakkila municipality had stated its interest in purchasing 2.7 ha of the land for FIM 105,000 (i.e. FIM 38.50 per square metre);\n(2) a decision of the Nakkila Inheritance Tax Board (perintöverolautakunta, arvsskattenämnden) of 27 May 1993 in which the current value of the applicants' properties had been estimated at FIM 600,000 (i.e. FIM 20 per square metre – see paragraph 23 below);\n(3) a 1991 estimate by the same expert of the value of adjacent land which had been expropriated, for the purpose of carrying out the same roadworks, setting the price at FIM 44 per square metre (for land used for a service station) and FIM 10 per square metre (for an uncultivated field between two roads); \n(4) an offer of 1991 in which the Nakkila municipality had proposed to lease certain land in the vicinity for 10% of its market value estimated at FIM 114 per square metre.", "15. The applicants disputed the view of the expert and the trustees that Mr Jokela and the municipality had been able to dictate the prices of the three pieces of land previously sold to the service-station company. The municipality had sold the land at a price of FIM 40 per square metre, presumably below the market level in view of the importance attached to maintaining a service station in the vicinity. Even though Mr Jokela had sold his land at a price exceeding FIM 100 per square metre, that had apparently not been considered excessive by the service-station company which otherwise could have asserted its right to redeem that land.", "16. In its own appeal the Roads Authority had argued that the compensation to be awarded to the applicants should be lowered to FIM 5 per square metre. Its representative did not comment either in writing or at the Land Court's hearing on the above evidence adduced by the applicants.", "17. In their written submissions to the Land Court the applicants further stated their readiness to examine the executive secretary of Nakkila municipality (V.) as a witness in respect of the contents of the municipality's above-mentioned offer of 1991, “should the Land Court deem [such an examination] necessary”.", "18. At the hearing the applicants allegedly also requested that the building inspector of the municipality (S.) be examined as a witness in respect of the status of their land from the point of view of planning. Contrary to the expert and the trustees, S. was allegedly of the opinion that the properties had been reserved for industrial purposes already set out in the regional master plan. According to the applicants, their request that S. be heard was not recorded in the Land Court's minutes. The Government, referring to the same minutes, noted that the applicants' representative had merely referred to having been in contact with S. before the hearing. Following the hearing the Land Court inspected the area in question.", "19. In a judgment of 27 September 1994 the Land Court granted the applicants some FIM 4,000 additional compensation for inconvenience and costs but dismissed the remainder of their appeal. It noted that in the regional master plan of 1977 the expropriated land had been designated for roadworks. This designation had been maintained in the municipal building plan adopted in 1989. The Land Court therefore agreed with the assessment of the expert and the trustees as to the market value of the land. It noted, inter alia, the fact that the construction of the overpass had improved the road links connecting those parts of the applicants' properties which had not been expropriated. The Land Court expressly ignored the 1990 purchases of adjacent land for the purpose of constructing a service station near the overpass. As in fact only one plot of land could be sold for such a purpose, the seller had had a monopoly and the price of this land had not evolved freely.", "20. The Land Court's judgment did not mention the written evidence adduced by the applicants, nor the fact that they had sought to examine witnesses.", "21. On 20 March 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal.", "22. In Finland inheritance tax is calculated on the basis of the market value of a property at the time of the death less 20% to 30% (the so-called “safe-assessment margin” – see paragraph 29 below). At the time of Mr Jokela's death, those parts of his properties which were subject to expropriation were still considered part of his possessions. In the inventory of the estate conducted by a member of the Bar and his assistant in February 1993, the total value of the four properties was estimated at FIM 150,000.", "23. On 27 May 1993 the Nakkila Inheritance Tax Board fixed the inheritance tax to be imposed on Heidi, Jussi and Petri Jokela in respect of, inter alia, the four properties. Their market value was assessed at a total of FIM 600,000 (i.e. about FIM 20 per square metre). No reasons were given by the Tax Board.", "24. The applicants appealed, arguing that the market value of the properties should be reduced to FIM 150,000 at most. On 5 September 1995 the Turku and Pori County Administrative Court (lääninoikeus, länsrätten) declined to examine the first applicant's appeal (as no inheritance tax had been imposed on her) and dismissed the other applicants' appeal in so far as it pertained to the market value of the properties. It noted, in particular, that the size of the properties came to a total of 32,000 sq. m (3.2 ha), a third of which had been purchased by the deceased for FIM 300,000 in December 1989. Even in the light of the elements adduced by the appellants, the market value of the properties had not been assessed too high. The court relied on sections 9 and 10 of the Inheritance and Gift Tax Act (perintö- ja lahjaverolaki, lag om skatt på gåva och arv 370/1948).", "25. On 13 May 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicants leave to appeal." ]

[ 9 ]

[ "7. On 17 November 1980 the first applicant lodged a claim, seeking that the paternity of the defendant be established in respect of the second applicant. The applicants also claimed child support. On 10 December 1986 the Zabrze District Court dismissed their claims. On 18 March 1987 the Katowice Regional Court dismissed the applicants' appeal. The applicants requested the Minister of Justice to lodge on their behalf an extraordinary appeal against the judgment. On 18 September 1987 the Minister of Justice lodged such an appeal with the Supreme Court, maintaining that the lower courts had committed serious errors of substantive law.", "8. On 23 October 1987 the Supreme Court quashed the judgments and ordered the case to be reconsidered.", "9. On 23 December 1991 the Zabrze District Court again dismissed the applicants' claims. On 12 May 1992, as a result of the applicants' appeal, the Katowice Regional Court quashed the judgment of 23 December 1991 and ordered the case to be reconsidered.", "10. On 10 May 1993 the defendant informed the Zabrze District Court that he refused to undergo the DNA tests. Notwithstanding his refusal, three other dates (23 August, 9 September and 11 October 1993) were fixed for the purpose of these tests. The defendant did not report for the tests on any of these dates.", "11. On 15 December 1993 the next hearing was held. The court fixed for the defendant a fourteen-day time-limit in which he was to take a final decision as to the DNA tests. In a letter of 27 December 1993 the defendant informed the court about his refusal to undergo them, submitting that the first applicant had on many occasions lied in the course of proceedings. He referred to the judgment of the Katowice Regional Court of 12 May 1992 in which it had been stated that the applicant had submitted inaccurate information as to her last menstruation before the pregnancy.", "12. On 23 February 1994 the next hearing was held. During the hearing held on 23 March 1994 the court heard another witness and asked the defendant again whether he would undergo the DNA tests. He refused.", "13. On 4 May and 7 June 1994 further hearings were held. The court questioned one witness and an expert who had been appointed earlier. The court again asked whether the defendant would agree to undergo the DNA tests and again he refused to do so. On the latter date he challenged one of the lay judges sitting on the court panel.", "14. On 14 September 1994 another hearing was held. The defendant again refused to undergo the DNA tests and the court heard another witness. At the subsequent hearing, which was held on 26 October 1994, the court questioned the applicant and the defendant. At the hearing held on 30 November 1994 the defendant was absent. On 16 December 1994 the court decided to close the hearing and adjourned the delivery of the judgment until 28 December 1994.", "15. On 28 December 1994 the Zabrze District Court dismissed again the applicant's claims. The court considered that the applicant's testimony contained contradictory information. It further noted that she had tried not to reveal to the court certain facts established in the course of the proceedings and relevant to the ruling in the case, such as the fact of spending a night in one room in the hotel “N” with another man during the period of possible conception. The defendant's testimony, on the other hand, was quite consistent.", "16. On 8 March 1995 the applicant lodged an appeal against this judgment with the Katowice Regional Court.", "17. The first hearing in the appellate proceedings was held before that court on 25 May 1995. On 8 June 1995 the Katowice Regional Court dismissed the applicant's appeal against the judgment, considering that her testimony was contradictory and that she had induced witnesses to give false testimony.", "18. On 6 December 1995 the Minister of Justice again lodged an extraordinary appeal, considering that there had been serious errors of fact and law, in particular in that the court's conclusions as to the facts were incompatible with the evidence before it. It was argued that the defendant's repeated refusals to undergo the DNA tests should be assessed in a more critical manner in view of the fact that he was a physician and knew the value of such evidence in paternity proceedings.\nAs a result of the Minister's appeal, the contested judgment was quashed by the Supreme Court on 14 February 1996 and the case was remitted to the Zabrze District Court for reconsideration.", "19. The first hearing in the proceedings took place on 28 October 1996 before the Zabrze District Court. The court ordered the defendant to take his final decision as regards the DNA tests within 21 days. On 9 May 1997 the next hearing was held. The witnesses summoned for that date failed to attend. The defendant was also absent due to his professional obligations. At the hearing held on 27 June 1997, the defendant was again absent. The applicant lodged a motion to have her claims secured by way of an interlocutory decision.", "20. A next hearing took place on 25 November 1997 as the court encountered certain problems with locating and summoning witnesses called by the parties. The defendant again refused to undergo the DNA tests.", "21. A next hearing was to take place on 22 December 1997, but it was adjourned as the parties were absent. The court decided to request the Warsaw District Court to hear two witnesses.", "22. On 29 January 1998 another hearing was held. On 16 February 1998 the Warsaw District Court questioned one of the witnesses summoned by the Zabrze District Court. The other witness did not comply with the summons both on that date and later on 6 April 1998, when the Warsaw District Court imposed a fine of 150 PLN on that witness. He was ultimately heard on 15 June 1998.", "23. The defendant failed to attend two hearings before the Zabrze District Court, held on 7 and 27 April 1998. On 15 June 1998 the Zabrze District Court decided to secure the applicant's claims. The delay in deciding the motion of the applicant of 27 June 1997 resulted from the defendant's failure to provide the court with the certificates concerning his financial situation. On 15 December 1998 the defendant lodged an appeal against this decision.", "24. On 16 October 1998 the second applicant informed the Zabrze District Court that she wished to join the proceedings as a plaintiff alongside her mother. Unexpectedly, on 16 November 1998 the defendant informed the court that he agreed to undergo the DNA tests. On 23 November 1998 the court decided to allow the DNA tests evidence and on 22 January 1999 the court dismissed the defendant's appeal against the decision of 15 June 1998, by which the applicants' maintenance claims had been secured.", "25. The DNA tests were made on 21 January 1999 in the Forensic Medicine Department of the Silesian Medical Academy in Katowice. The results of the tests gave nearly hundred per cent certainty that the defendant was the father of the second applicant. The opinion was sent to the Zabrze District Court on 25 August 1999.", "26. At the hearing held on 19 October 1999, the applicants' counsel proposed a friendly settlement. The hearing was adjourned until 7 December 1999. The hearing which was to be held on that date was adjourned as the presiding judge had fallen ill. At the hearing held on 3 February 2000 the parties negotiated the terms of the friendly settlement.", "27. On 10 February 2000 the court gave a decision in which it established the paternity of the defendant and discontinued the proceedings regarding the child support due to a friendly settlement concluded between the parties in this respect." ]

[ 3 ]

[ "9. In July 1996, there were disturbances throughout Northern Ireland. On 7 July 1996, the Royal Ulster Constabulary (RUC) had announced that they would not allow a march by the loyalist Orange Order from Drumcree Church to the Orange Lodge in Portadown to pass through the mainly Catholic residential area of the Garvaghy Road. Members of the Orange Order gathered in the area, and demonstrations occurred in Londonderry (Derry) and Belfast. On 11 July 1996, the RUC reversed its decision and at 11 a.m. the march proceeded through the Garvaghy Road.", "10. The following day, 12 July 1996, another controversial march was allowed through the mainly nationalist area of the Lower Ormagh Road in Belfast. That evening, there was a major disturbance in Londonderry, characterised by the use of petrol bombs and the substantial use of “baton rounds”, or plastic bullets, by the RUC and the British Army.", "11. Dermot McShane, the husband of the applicant, had been with friends in a bar close to Londonderry city centre during that night. According to a friend who was with him, they left the bar at about 1.30 a.m. Close to the junction of Little James Street and Great James Street, a large crowd of people had gathered and were throwing missiles at the police. Military reinforcements were called. Police were firing large numbers of plastic baton rounds at the crowd. A commercial skip and a large piece of hoarding were being used by persons in the crowd to shield them from plastic baton rounds as they moved towards the police. An RUC inspector at the scene consulted with army personnel who were arriving and requested that the barricades be removed. According to his statement, he instructed the driver of a Saxon armoured personnel carrier (“the APC”), Private P., to advance towards the obstruction.", "12. Dermot McShane fell underneath the hoarding over which the APC advanced. The circumstances in which the APC struck the hoarding, its speed, and the length of time which it remained on the hoarding are subject to dispute.", "13. RUC officers reached Dermot McShane and arranged for his transfer by ambulance to hospital where he died a short time later. According to the pathologist who carried out the post mortem examination, his injuries were consistent with having been run over by the wheels of a vehicle while lying underneath a sheet of hoarding. He also had injuries on the thigh, consistent with being struck by a plastic baton round. No traces of petrol, paraffin or any type of fire accelerant were found which might suggest that Dermot McShane had been in contact with petrol bombs.", "14. At 6.17 a.m. on 13 July 1996, Detective Constable Cooper attended the scene at which Dermot McShane had been hit. He removed the hoarding and a bloodstained bandage for inspection. Shortly afterwards, the scene was secured. The Government submitted that the delay in crime scene procedures was due to crowd violence.", "15. At 8 a.m., Detective Superintendent Houston was directed to undertake the investigation into the death. He appointed Detective Chief Inspector Cooke as Deputy Senior Investigating Officer.", "16. At 10.05 a.m., photographs were taken of the scene. DS Houston attended, making arrangements inter alia for the mapping of the scene.", "17. In the afternoon of 13 July 1996, statements were collected by the police from 13 members of the army, regarding the events. This included a statement from Private P., the driver of the APC which hit Dermot McShane. DS Houston informed the driver that he would interview him once he had undertaken other inquiries. The interview commenced at 7.10 p.m. and terminated at 7.16 p.m. After being cautioned, the driver replied that he had nothing to say at that stage. The driver had provided a pre-prepared written statement and was accompanied by his legal adviser. The statement said inter alia;\n“I charged a sheet of corrugated iron in the centre of the street which was my target. While approaching the barricade I saw around 5/6 persons round it, most ran away on sighting me approaching but [I] was unsure that I did or did not cause injury to any person.”", "18. On 14 July 1996, the RUC began interviewing other witnesses. On 17 July 1996, the RUC issued a press release appealing for witnesses to the events to come forward. They collected statements from 115 persons, including 39 who had witnessed the relevant events. Of these, four persons were civilian witnesses and the remainder were RUC and army personnel. Of the 115 statements, 33 were taken in the first week following the incident and a further 28 in the following two weeks.", "19. On 6 December 1996, the driver of the APC was interviewed again. In his statement, he stated that on the night in question he had been the driver of the control centre vehicle, which held the spare ammunition, shields and supplies. He was in position on Great James Street at the junction with Little James Street. He saw missiles being thrown, including petrol bombs and more than a hundred rioters in conflict with the RUC. He had been instructed by an RUC inspector to remove the barricade, which was being used by rioters for cover. As he neared the barricade, he had revved the engine to give the rioters time to get away from the barricade. The vehicle hit the barricade which fell backwards. The vehicle mounted it and drove over. At that time, the driver was alone in the APC, without a person looking out and giving directions. His vision was through a slit, about letter box size 7-8 feet above the road. He could see only the top of the barricade, not behind or under it. He had not been aware that anyone was injured. When he stopped and people had climbed on the vehicle, saying that someone was injured, he had thought that this was a “come on”. When shown a video of the incident, he stated that he could see the vehicle brake lights illuminated, indicating that the vehicle stopped prior to striking the hoarding. He confirmed that it was customary for the driver of such a vehicle to be accompanied by a commander who looked out and gave directions from the top hatch, and who was in constant communication by radio with the driver. He was however alone in the vehicle on this occasion.", "20. Expert evidence was gathered, including post mortem examinations of the deceased and various forensic analyses, inter alia of Dermot McShane's blood, hair and clothing, the hoarding which he had used as a shield and the APC which had hit him. According to the applicant, the APC was not examined until two weeks after the incident and the report on the examination was not provided to her until much later. Other evidence collected included a transcript of the army and RUC communications at the time and a video of the incident recorded by Sky News.", "21. On 9 June 1997, the RUC sent the file of relevant material to the DPP. Further inquiries were made by the police, leading to a final report to the DPP on 2 March 1998.", "22. On 1 April 1998, the DPP directed that there was insufficient evidence to provide a reasonable prospect of conviction for any offence of murder, manslaughter or dangerous driving contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. The applicant was formally notified of the decision not to bring criminal proceedings by letter dated 6 April 1998.", "23. On 19 June 1998, the applicant lodged an application for judicial review of the decision not to prosecute in relation to the death of her husband. At a leave hearing on 30 June 1998, it transpired that the applicant had never formally requested the reasons for the decision. The hearing was adjourned pending that request.", "24. By letter dated 11 September 1998, the DPP stated:\n“As you are aware, the death of Dermot Patrick McShane occurred at approximately 1.30 a.m. on 13 July 1996 at Little James Street, Londonderry in circumstances of very serious and sustained rioting. Disorder was concentrated in the Strand Road, Great James Street, Little James Street, Waterloo Place and William Street areas of the city. The ferocity of the rioting was such that the police required military assistance.\nA skip and hoarding were used by the rioters at the time in question in Little James Street as a shield/barricade from behind which missiles, including petrol bombs, were launched at police and military positioned at the junction of Great James Street and Little James Street. A decision was taken that baton rounds, which had been discharged to contain an advancing group of rioters shielded by the skip and hoarding, were ineffective [and] the barricade should be removed. A military vehicle driven by a Private was deployed for this purpose, advanced and struck the hoarding knocking it to the ground. The deceased was behind and in very close proximity to the barricade as it was being removed. The Private stated, inter alia, during interview under caution that he could not see anyone behind it. The deceased sustained multiple injuries consistent with a crushing mechanism, which proved fatal.\nThe police investigation contains, inter alia, some 39 witness statements from persons who provided differing accounts of the removal of the hoarding, four of whom were civilians. The remainder were by police and military personnel. In addition, the incident was captured on film by a Sky News TV crew. The Private in question was interviewed by the police. He provided a witness statement on 13 July 1996. He was interviewed after caution on 6 December 1996. On that date, he provided oral answers and made a written statement after caution in regard to his conduct. The Private stated, inter alia, that as he approached the 'barricade' he 'began to brake and revved up the engine to scare the rioters and clear the barricade' and was 'crawling forward' when he hit the barricade.\nOn 19 December a further interim Direction was issued to the Chief Constable. The Director wished to obtain evidence from the Forensic Science Agency of Northern Ireland, inter alia, in respect of the speed the vehicle in question was travelling at or prior to the moment of impact, and the speed which the vehicle in question was capable of reaching in the time available. A forensic report was received in this office on 2 March 1998. This indicated, inter alia, that the vehicle in question could reach a theoretical maximum speed of 16 mph from a standing start at the junction of Little and Great James Street to the position of the barrier. It was noted that the vehicle was shown on the video to be braking over an unknown distance prior to impact with the barrier and that it was 'axiomatic' that the speed of the vehicle at the point of impact was substantially less than 16 mph.\nAll available evidence was then the subject of further careful consideration. The conclusion reached was that there was insufficient evidence to provide a reasonable prospect of conviction for the offence of murder. Further, there was insufficient evidence to provide a reasonable prospect of establishing the requisite degree of negligence for the offence of manslaughter. In addition, consideration was given to whether the evidence was sufficient to provide a reasonable prospect of conviction of causing death by dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. It was concluded that there was no reasonable prospect of establishing that the Private's driving fell far below what would be expected of a competent and careful driver having regard to all the circumstances. ...”", "25. On 18 September 1998, the applicant withdrew her application for judicial review.", "26. In October 1996, the Committee for the Administration of Justice (CAJ) published a booket entitled “The Misrule of Law” criticising the handling of events during the summer of 1996. Appendix III included extracts from certain anonymous witness statements.", "27. On 12 March 1997, the police wrote to the CAJ requesting that information relating to the names and addresses of witnesses be made available to the police enquiry. The applicant states that the CAJ contacted the witnesses to confirm whether they wished their names to be made available to the police. As they did not, the CAJ informed the police accordingly.", "28. In the application submitted to the Commission on 18 November 1996, the applicant included a number of extracts from twelve statements taken from anonymous witnesses by the applicant's solicitor.", "29. They described the events of the evening in the following terms. \n(i) Witness No. 80 described how he was in the area at about 1 a.m. He stated that there was a skip in Little James Street, behind which approximately 50 people were hiding. Next to the skip were 6 or 7 people hiding behind a large wooden board, approximately 2 metres by 1 metre, throwing petrol bombs, about 30 in an hour. At the other end of the street were approximately 60 police officers of the RUC in riot equipment firing plastic bullets.\n(ii) Witness No. 86 was in the area taking photographs, behind the RUC and British Army lines. He stated that in Little James Street there was a barricade of a burning car and a skip, which had been there from the night before. A number of army vehicles, including Saxon APCs, formed a cordon across the road, and there were about 20-30 soldiers and approximately the same number of RUC officers behind them. There was an intensive barrage of missiles being thrown towards the cordon, and plastic bullets were being fired back continuously. He stated that there was considerable confusion. The cordon of vehicles then moved forward at walking speed with continuous firing of plastic bullets and some missiles incoming from the crowd. He stated that he observed RUC officers recover the body of Dermot McShane and attempt to administer first aid. There were four other photographers and a TV crew present, who were taking pictures until stopped from doing so by the RUC. This witness stated that in a 4½ hour period he observed that the RUC used 30 ammunition boxes, containing a total of 750 rounds of plastic bullets, and that the Army were firing a similar amount.\n(iii) Witness No. 101 was one of the people behind the hoarding, which he stated they were pushing towards the police, who were firing plastic bullets. The police made an advance towards the hoarding in their vehicles, and the witness dropped the hoarding. He saw it fall on Dermot McShane. He stated that he tried to indicate that there was someone under the hoarding, but one of the vehicles drove over it. At this point a group of police and soldiers came towards him with batons. He made a statement to the police.\n(iv) Witness No. 100 was observing the events from his apartment. He saw the vehicle ram into the hoarding at a speed of 35-40 km per hour. The RUC moved in with batons.\n(v) Witness No. 99 observed the vehicle come forwards onto the hoarding, and in his opinion it must have been obvious that someone was holding the board up. He stated that he shouted that there was someone under the board, but that the vehicle remained on top of it for some 10-15 minutes. \n(vi) Witness No. 91 stated that when the vehicle was on top of the board, he shouted to the driver that there was a man underneath, but it stayed on top for 4-5 minutes. He attempted to pull Dermot McShane out.", "30. The Government obtained the Court's permission to submit copies of these extracts to the DPP, which occurred on 14 February 2000, and an adjournment in the Court's proceedings was granted to enable the DPP to consider whether any action was appropriate. The DPP enquired whether he was able to furnish copies of the statements to the police and whether the makers of the statements could be identified.", "31. The applicant informed the Court on 27 March 2000 that the witnesses had given their statements on condition that their identity would not be disclosed to the police. They feared that they would become victims of harassment if their identities became known.", "32. In the light of these constraints, the DPP concluded that there were no further steps which he could properly take under Article 6(3) of the Prosecution of Offences (Northern Ireland) Order to obtain further relevant information. Accordingly, his direction of 1 April 1998 still stood.", "33. The investigation file was forwarded to Sergeant McFetridge on 22 May 1998 to prepare an inquest file. He briefed the Coroner as to the progress of the file on 26 November 1998. The inquest file was forwarded to the Crime Branch RUC Headquarters for examination on 7 January 1999. After examination, it was delivered to the Coroner's office on 18 February 1999.", "34. The Coroner listed the inquest for 13 and 14 December 1999 as the first suitable dates. A number of documents were provided to the applicant by the RUC acting under Home Office Circular 20/99 on or about 19 November 1999. On 24 November 1999, the applicant requested an adjournment from the Coroner while she sought disclosure of further documents from the RUC and Ministry of Defence. The applicant considered that documents were missing from those disclosed, including the statement of the APC driver taken by the RUC. The Coroner acceded to her request.", "35. By letter dated 7 February 2000 to the RUC, the applicant made reference to previous correspondence about disclosure of documents and requested copies of radio transmission transcripts, occurrence book entries, notebooks, diaries and journals of RUC officers involved in the matter and forensic reports concerning the examination at the scene of the incident and the relevant vehicle.", "36. By letter dated 11 April 2000, the RUC responded that in addition to the documents already made available arrangements had been made for all remaining written information obtained by the RUC concerning the death of Dermot McShane to be furnished. This included the report on the vehicle and the typed transcripts of RUC communication logs. It was stated that none of the entries in RUC notebooks were at variance with the statements already provided, though sight of these notebooks would be provided for the purpose of the inquest if requested.", "37. By letter dated 1 September 2000, the Coroner informed the applicant that he had been told that full disclosure had been made by the RUC and, expressing his desire to proceed with the Inquest as soon as possible, asked to be informed specifically of any matters that might still be outstanding. By letter dated 3 November 2000, the Coroner requested a response to his earlier letter. By letter of 22 December 2000, the Coroner again requested confirmation from the applicant's representatives that they had received all necessary disclosure.", "38. By letter dated 19 February 2001, the applicant's representatives stated that they had been informed that they were in possession of all material to which they were entitled under Home Office Circular 20/1999. As they had only received witness statements and radio transmission transcripts, they requested confirmation from the Coroner as to whether he had received any other documents, including the police investigation report, and proposed that the Coroner should request the RUC to provide all material relevant to the death of Dermot McShane. The Coroner did not answer the letter until he had an opportunity to consider the Court's judgments in the Hugh Jordan v. the United Kingdom series of cases (cited at paragraph 73 below). On 30 May 2001, the Northern Ireland Court Service, which covered the Coroner's Branch, informed the applicant that the Coroner for Greater Belfast was consulting the Lord Chancellor concerning the Government's response to those judgments and suggested that the preliminary hearing on the future conduct of the inquest concerning Dermot McShane should await the meeting held by all the coroners concerning the procedures to be adopted in future.", "39. By letter dated 15 August 2001, the Coroner informed the Northern Ireland Court Service that he was still awaiting confirmation from the applicant that full disclosure had been made and that it had been suggested that matters wait until after developments in inquests to take place in Belfast in September and which related to possible consequences of the Court's judgments. He confirmed that the delay in the case until the present had been at the request of the next-of-kin.", "40. In October 2001, it came to light that three statements taken at a late stage in the inquiry had not been disclosed and copies were provided to the applicant.", "41. By writ issued on 19 August 1999, the applicant commenced proceedings against the Ministry of Defence, the Chief Constable of the RUC and the Secretary of State for Northern Ireland, claiming damages in her own right and for the estate of Dermot McShane, arising out of the alleged negligence of the defendants and alleged breach of statutory duty. The grounds of negligence included the speed and manner in which the Saxon APC was driven, the failure to listen to the warnings given that a body was trapped under the hoarding, the failure to instruct the driver of the APC in appropriate tactics, the employment of a method of riot control which they knew or ought to have known would cause death or serious injury and the failure to carry out a proper strategic assessment of the security situation before ordering the APC to charge civilians.", "42. The defendants served a defence dated 20 June 2000, in which they claimed, inter alia, that the action was statute-barred as the claim had not been lodged within three years of the death. They also served a notice for further and better particulars.", "43. On 19 November 1999 statements obtained during the police investigation were disclosed by the RUC to Mrs C., the applicant's solicitor in the inquest, under cover of an undertaking by her to maintain the documents as confidential and not to use the documents for any other purpose than the inquest or to disclose the documents or information to any other third party save her clients.", "44. The RUC became concerned that Mrs C. had breached her undertaking as the Committee for Administration for Justice, who represent the applicant before the Court, had used extracts from some of the statements in their submissions to the Court. By letter dated 9 November 2000, the RUC (Legal Services Branch) wrote to Mrs C., asking her to confirm that she had not released the documents to any third person or for any purpose other than the inquest. By letter dated 23 March 2001, Mrs C. replied that she believed that she had not in any way breached the undertaking.", "45. By letter dated 2 May 2001, the RUC Legal Adviser wrote to the Law Society of Northern Ireland under the heading “Apparent breach of undertaking”, stating that the written submissions by the CAJ to the Court had contained direct quotes from a number of statements which had been supplied to Mrs C. pursuent to an undertaking of confidentiality. These statements had not been provided to the CAJ by the RUC and neither the CAJ nor Mrs C. had sought permission to use the statements for this purpose. As the only other firm of solicitors with copies of the statements had confirmed that they had not released the documents to any third person, the RUC considered that Mrs C. was responsible either directly or indirectly for supplying the statements to the CAJ in apparent breach of her undertaking. As the undertaking was given between solicitors, this breach was regarded as a serious issue and the Society was asked to treat the letter as a formal complaint.", "46. By letter dated 22 May 2001, the Law Society replied that they did not feel that there was sufficient evidence to show a prima facie case of unprofessional conduct against Mrs C. She had assured the Law Society that she had not breached her undertaking and the Law Society was entitled to rely on her assurance as an officer of the court unless contrary evidence was produced. As Mrs C was not the only legal recipient of the documents, there was every possibility that she could have acted correctly but others did not. The matter would not be pursued further." ]

[ 0 ]

[ "10. In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad.", "11. Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”.", "12. In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990.", "13. In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence.", "14. In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment.", "15. In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision.", "16. In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said:\n“This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.”", "17. By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms:\n“... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release.\nFor these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.”", "18. On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review.", "19. On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act).", "20. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences.", "21. On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public.", "22. On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however:\n“The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.”", "23. Lord Justice Buxton, concurring with the latter remarks, added:\n“The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...”", "24. On 16 December 1997 the applicant was moved to open conditions.", "25. By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review.", "26. On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law.", "27. On 22 December 1998 the applicant was released on licence by the Secretary of State." ]

[ 2 ]

[ "11. Between 1984 and 1992 the applicant was the sole managing director of London Clubs Limited (“LCL”), a company which owned and controlled six of the twenty casinos licensed to operate in London. LCL was a subsidiary company of London Clubs International PLC (“LCI”) of which the applicant was also managing director. Both companies will hereafter be collectively referred to as London Clubs.", "12. In June 1991 a raid took place at the various premises of LCL. The raid was carried out by the police in the presence of officials of the Gaming Board for Great Britain (“the Gaming Board”), a statutory body which regulates and monitors the gaming industry. A large quantity of documents was seized. In March 1992 the Gaming Board lodged objections with the clerk to the Licensing Magistrates with regard to LCL's annual application for renewal of the licences it held in respect of each of its casinos. The Gaming Board also made cancellation applications in respect of the existing licences held by LCL. \nA meeting was held between the Gaming Board and the non-executive directors of LCL and their legal advisers on 26 March 1992. As a result of that meeting, the applicant and the other executive directors (with the exception of the finance director) resigned with effect from 30 April 1992, on the understanding that such resignation was involuntary and constituted dismissal by London Clubs. \nSubsequently an agreement was reached between the Gaming Board and London Clubs, whereby LCL would apply for new licences for the casinos via reconstituted operating companies, to which applications the Gaming Board would not object. If the applications were successful and new licences were granted by the Licensing Magistrates, LCL would undertake to surrender its existing licences, thereby avoiding the necessity for the applications for cancellation or renewal to be heard. \nThe Gaming Board issued LCL with certificates of consent, which LCL was statutorily obliged to obtain from the Gaming Board as a prerequisite to making an application to the Licensing Magistrates for new licences. Objections to the issuing of new licences were made by a rival casino owner. However, these objections were rejected and new licences were granted in October 1992, after a three day hearing before the Licensing Magistrates. The Gaming Board was represented at the hearing and expressed to the Licensing Magistrates its support for the application of LCL, explaining the grounds on which the Gaming Board itself had granted LCL certificates of consent in the following terms:\n“In determining that it should issue certificates of consent the Board took into consideration, amongst other relevant factors, the degree to which LCI had addressed the Board's grave concerns at the matters of complaint referred to above, and in particular had in mind the following:\nThose executive directors of LCI and of [LCL] who in the Board's view carried the principal responsibility for the matters of complaint ... [the applicant was named along with nine others] have left the company and relinquished their management shares. \n...\nThe Board and Police viewed the matters raised in their cancellation applications extremely seriously. However they are satisfied that the practices that were unacceptable have now been eradicated and that those individuals responsible for encouraging or tolerating them have been removed.”", "13. In November 1992 the Chairman of the Gaming Board, Lady Littler, addressed the British Casino Association at its annual luncheon. Her speech referred to London Clubs and commented:\n“We [the Gaming Board] satisfied ourselves that the practices we and the Police had regarded as unacceptable had ceased, that persons regarded by the Board and Police as not fit and proper had been removed ...”", "14. As a result of this speech, the applicant's legal advisers entered into correspondence with the Gaming Board's solicitors, on the basis that the speech was defamatory. The Gaming Board alleged that the “persons” referred to were minority shareholders and no reference to the applicant was intended. The applicant did not accept this explanation, but did not institute defamation proceedings.", "15. By a letter of 22 December 1992, the applicant's legal advisers received written notice that the Gaming Board was considering whether the applicant was a fit and proper person to hold the Board's certificate of approval, as required by section 19 of the Gaming Act 1968 (“the 1968 Act”) in order to hold a management position in the gaming industry. By a letter dated 23 April 1993, the Gaming Board informed the applicant formally that it was “minded to revoke” the applicant's section 19 certificates and that the applicant would be given the opportunity to state his case against revocation either in writing or orally at an interview before the Gaming Board (“a section 19 hearing”). \nThe letter detailed the matters which the Gaming Board wished to discuss with the applicant and also referred to the particulars of the Gaming Board's complaints in the application for cancellation of LCL's licences (the hearing of which had, in fact, never taken place). In these complaints, numbered B1 to B9, it was claimed, inter alia, that there had been breaches of section 16 of the 1968 Act, in that cheques had been accepted without any expectation that they would be met promptly (B1); that the applicant had been involved in granting cheque-cashing facilities to members without proper investigation of their creditworthiness (B2); that cheques had been accepted which exceeded the authors' cheque-cashing facility (B3); that third-party cheques had been accepted in a way which would permit circumvention of the 1984 Guidelines of the British Casino Association (B4); that Japanese players had been assisted in breaching Japanese exchange-control regulations (B5); that gifts or hospitality had been made to substantial players in breach of further 1984 guidelines (B7); and that the method for computing the “cash drop” in casinos produced inaccuracies, and was open to abuse (B9). Examples were given.", "16. The applicant's legal advisers objected to the Gaming Board presiding the section 19 hearing, suggesting that an independent tribunal be set up as an alternative. The applicant's principal objection was based on the fact that the Gaming Board had already publicly expressed the view (at the hearing before the Licensing Magistrates) that the applicant was not a fit and proper person to remain an executive director of London Clubs. As such, the applicant contended, the Gaming Board could not be considered an impartial tribunal appropriate to consider the issue of whether the applicant's section 19 certificates should be revoked.", "17. The Gaming Board rejected the request for an independent tribunal and the section 19 hearing opened on 11 April 1994 before a panel of three, all members of the Gaming Board (“the Panel”). The hearing was conducted in private and lasted for seven and a half days. The applicant was represented by senior counsel. The Gaming Board's solicitors, a senior Gaming Board official and a representative of the Gaming Board's accountants also attended the hearing. \nBy a letter dated 28 May 1994, the applicant was informed that the Gaming Board did not consider the applicant to be a fit and proper person to continue to hold the Board's certificates of approval and that, accordingly, the Board would revoke his section 19 certificates within twenty-one days of receipt of the letter. This letter detailed the matters which had been of concern to the Gaming Board and the complaints that it deemed established against the applicant.", "18. The effect of the revocation of the section 19 certificates was that the applicant was unable to obtain employment in any sector of the gaming industry in the United Kingdom or in any jurisdiction which had a relationship with the United Kingdom gaming authorities.", "19. By an application dated 23 August 1994, the applicant sought leave to apply for judicial review of the decision of the Gaming Board to revoke his section 19 certificates. The decision was challenged on the grounds that the Panel was biased, or had the appearance of bias, and that its findings were vitiated by errors of law and were irrational.", "20. In the course of the judicial review proceedings, a document entitled “Confidential Annex to Minutes of the 281st Board Meeting of the Gaming Board for Great Britain”, dated 21 January 1993, was produced, attached to an affidavit sworn by the Chairman of the Gaming Board. This document recorded that the Gaming Board had decided at its meeting on 21 January 1993 that it had\n“sufficient evidence before it to conclude that [the applicant] ... was not a fit and proper person to be a director of a casino company”.", "21. All the members of the Panel before which the section 19 hearing took place had been present at the Board meeting and were parties to this decision, which had been taken prior to the hearing itself.", "22. The application for judicial review was dismissed on 11 January 1996 by Mr Justice Jowitt after a hearing lasting over sixteen days. He delivered three separate judgments in respect of the applicant's appeal. The first judgment dealt with the scope of the phrase “a fit and proper person” in Schedule 5 of the 1968 Act. The second judgment considered the applicant's claim that he had a “legitimate expectation” that the Gaming Board would be precluded from taking account of any breaches of its guidelines unless the breaches were unlawful. The third judgment, which dealt with “Wednesbury” challenges and allegations of bias, ran to 165 pages. Mr Justice Jowitt stated that the scope of the judicial review was such that he was not concerned to review findings of fact, as for an appeal, but rather to assess whether the findings of the Panel disclosed illegality, irrationality (“Wednesbury unreasonableness”) or procedural impropriety.", "23. On pages 28 to 93 of the third judgment, Mr Justice Jowitt dealt with the applicant's “Wednesbury” challenges to the findings in respect of the various complaints made of him.", "24. By way of example, it was accepted that cheques drawn by one player, a Mr S., on a Spanish and a Swiss bank were not cleared within twenty-one days after payment into a British bank, as would be the normal course of events. Rather, the average time for clearance was 179 days. The Board found that this practice breached section 16 of the 1968 Act, which prohibits credit betting save when a cheque is exchanged for tokens. The applicant alleged that the cheques he accepted were not shams, as none of the Spanish cheques was ever dishonoured. The judge found that the Board's conclusion – that what took place amounted to an agreement between Mr S. and LCL, such that section 16 was breached – was a conclusion it was entitled to reach.", "25. Fifty-seven pages of the third judgment were devoted to the issue of bias. Mr Justice Jowitt described the test of bias under English law in the following terms (pp. 93-96 of the judgment):\n“[Counsel for the applicant] submits that the decision to revoke the applicant's section 19 certificates of approval should be quashed because the Panel was biased. The grounds on which leave to move for judicial review were granted asserted firstly that the Board could not and did not approach its decision with objectivity and impartiality. Secondly, it was asserted that whether or not there was actual bias the applicant reasonably believed there was and that the Board should have had regard to the appearance of bias which had been created by its actions ...\nThere was no disagreement between the parties as to the approach the court should adopt when bias is alleged. It is a two-stage test. The applicant has first to show from the evidence that there is an appearance of bias (R. v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All England Law Reports 139). [Counsel for the Gaming Board] properly and realistically accepts that in the light of the available evidence the applicant has surmounted this hurdle. Having done so, he has to go on to show that on a proper examination by the court of the evidence before it there is demonstrated a real danger of injustice having occurred as a result of bias ... [The analysis in that case of] the decision of the House of Lords in R. v. Gough [1993] Appeal Cases 646 ... illuminates my task in relation to this second stage.\n '(1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts. \n ...\n (3) In reaching its conclusion the court “personifies the reasonable man”.\n (4) The question on which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By “real” is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.\n (5) Injustice will have occurred as a result of bias if “the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him”. I take “unfairly regarded with disfavour” to mean “was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue”.\n (6) A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.\n (7) ... the court is [not] concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias. \n ...\n (9) It is not necessary for the applicant to demonstrate a real possibility that the ... decision would have been different but for the bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly.' ”", "26. Mr Justice Jowitt then applied the test of bias which he had set out to the facts of the case, and concluded that, on the evidence before him, he could not say that the applicant had established that there was a real danger of injustice having occurred as a result of bias. He concluded that there was no unconscious bias on the part of any of the Panel members.", "27. Mr Justice Jowitt stated further that if, contrary to his finding, there was unconscious bias on the part of the Panel, the “doctrine of necessity” fell to be considered. He said:\n“When a body is charged by statute with the power or duty, which cannot be delegated, to make a decision in circumstances in which a question of bias arises because:\n(i) in pursuance of that statutory power or duty an initial view has been formed upon a matter affecting the interests of someone in respect of whom the body in the exercise of its statutory power or duty has thereafter to make a decision, or final decision, after receiving and considering representations which he is entitled to make or \n(ii) in the exercise of a statutory power or duty to make a decision a conflict arises between the interests of another or others which have to be taken into account and the body's own interests:\nthe decision will not be liable to be impugned on account of bias provided that:\n(i) if only some of those charged with the power or duty to decide are potentially affected by bias such of them as can lawfully withdraw from the decision-making do so, and\n(ii) those of the decision-makers who are potentially affected by bias but cannot lawfully withdraw use their best endeavours to avoid the effect of bias and, consistently with the purpose for which its decision has to be made, the body takes what reasonable steps are open to it to minimise the risk of bias affecting them ...”\nMr Justice Jowitt indicated that if, contrary to his finding, there was unconscious bias on the part of the Panel, the doctrine of necessity would apply, and the decision of the Panel would stand. Counsel for the applicant submitted before Mr Justice Jowitt that the Board had failed to take the reasonable step of appointing an independent body to hear evidence and report to the Panel. Mr Justice Jowitt rejected the submission, on the grounds that no useful reference could have been made to an independent tribunal which did not involve an impermissible delegation.", "28. In respect of all other allegations brought by the applicant, Mr Justice Jowitt concluded that the applicant had failed to establish that the Panel's decision was irrational or unreasonable or to make out any sufficient ground for judicial review. Mr Justice Jowitt noted that, by trying to frame his allegations in terms of “Wednesbury unreasonableness”, the applicant was in fact making an impermissible attempt to re-argue the case as though on appeal in order to have the factual merits of the case re-examined.", "29. The Court of Appeal, after an oral hearing on 4 July 1996, refused an application for leave to appeal from Mr Justice Jowitt's decision. Lord Justice Morritt (with whom Lord Justice Hobhouse agreed) held, on the “doctrine of necessity,” as follows:\n “I am prepared to assume in favour of [the applicant] that he would have an arguable case sufficient to justify leave to appeal, that there was a real risk that the decision of the tribunal had been actuated by bias even though they were not in fact biased against him. That would leave the question of how the doctrine of necessity would be applied to the facts of the case. \n[Counsel for the applicant] did not seek to suggest that the propositions of law which [Mr Justice Jowitt] enunciated, and which I have quoted, were not accurately formulated by him, but he sought to challenge the final conclusion, to which I have just referred, that there could have been [no] useful reference to an independent tribunal which did not involve an impermissible delegation. The question of bias, therefore, depends on the very limited point of whether it is arguable that [Mr Justice Jowitt] was wrong in that respect. I am bound to say that, on that limited point, I think he was manifestly right. The decision for the Board was, at the end of the day, whether or not Mr Kingsley was a fit and proper person. That could not be delegated to an independent panel and if they were actuated by bias, apparent or real, then the decision would still have to be made by them. Therefore, on the doctrine of necessity, which is accepted, there could have been no meaningful independent panel and the decision would stand because the decision has to be made by the Board and could not be delegated to the independent tribunal. It seems to me that there is no arguable point, susceptible on this part of the case, which would justify giving leave to appeal.”" ]

[ 3 ]

[ "10. On 6 November 1992 the Burgomaster (Burgemeester) of Amsterdam, relying on section 219 of the Municipality Act (Gemeentewet) as in force at the relevant time, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed to enter a particular area, the so-called emergency area, of the city centre for fourteen days. The following events were referred to in the Burgomaster's decision as having led to this order being issued.\n(i) It transpired from police reports that on 21 July (twice), 29 July, 12 August, 26 August and 10 September 1992 the applicant had either overtly used hard drugs or had had hard drugs in his possession in streets situated in the emergency area and that on each of those occasions he had been ordered to leave the area for eight hours. \n(ii) On 5 November 1992 the applicant had been heard by the police about his conduct and he had been told that he would either have to desist from such acts, which disturbed public order (openbare orde), or stay away from the area. The applicant had further been informed that, if he committed such acts again in the near future, the Burgomaster would be requested to impose a fourteen-day prohibition order on him. The applicant had told the police that, as well as preparing and using drugs in the area concerned, he also met his friends there. \n(iii) On 5 November 1992 the applicant had nevertheless overtly used hard drugs on one of the streets in the emergency area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a fourteen-day prohibition order on the applicant.", "11. In the opinion of the Burgomaster, the applicant would again commit acts disturbing public order in the near future. In this context, the Burgomaster took account of the kind of conduct involved, namely acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant's home nor his place of work were situated in the area concerned.", "12. The applicant lodged an objection (bezwaarschrift) against the Burgomaster's prohibition order. He submitted, inter alia, that the Burgomaster ought only to make use of the emergency powers granted him by section 219 of the Municipality Act in exceptional situations. As the Burgomaster had been issuing eight-hour prohibition orders since 1983 and fourteen-day ones since 1989, it could no longer be argued that an exceptional situation prevailed. Moreover, the Burgomaster had had sufficient time to ensure that the emergency measures were enacted in a general municipal by-law (Algemene Politie Verordening).", "13. The applicant also stated that the prohibition order, which in his opinion constituted a criminal sanction, interfered with his right to liberty of movement and violated the principle of proportionality. In this connection, he argued that he had always complied with the prohibition orders imposed on him for a duration of eight hours and that he therefore failed to understand why a prohibition order for fourteen days had been called for all of a sudden.", "14. On 14 January 1993 a hearing took place before an advisory committee. At this hearing the representative of the Burgomaster stated that, in 1992, 3,300 eight-hour prohibition orders (compared with 2,130 in 1991) and 204 fourteen-day prohibition orders (compared with 111 in 1991) had been issued against people dealing in or using drugs or committing acts related to those activities. The representative further stated that it was intended to enact the power to issue prohibition orders in a general municipal by-law.", "15. On 8 March 1993 the committee advised the Burgomaster to dismiss the objection and to maintain the prohibition order. It considered, inter alia, that the disruption of public order in the area concerned was still such as to constitute an exceptional situation within the meaning of section 219 of the Municipality Act. In view of the seriousness and scale of the problems involved, the committee found it unlikely that public order could be adequately maintained by normal methods and that for that reason the Burgomaster was entitled to use the powers granted him under section 219.", "16. Having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disturbed public order and that the eight-hour prohibition orders which had been issued had not prevented him from doing so, the committee further found that the imposition of a prohibition order for a duration of fourteen days had not been unreasonable. It did not agree with the applicant that the impugned measure constituted a penalty, as it had been taken in order to maintain public order. The committee finally found that the interference with the applicant's right to liberty of movement had been justified.", "17. By a decision of 11 March 1993 the Burgomaster dismissed the applicant's objection, adopting as his own the reasoning applied by the advisory committee.", "18. The applicant lodged an appeal against the Burgomaster's decision with the Judicial Division (Afdeling rechtspraak) of the Raad van State on 19 March 1993. In his appeal, which he detailed in a letter of 17 May 1993, he raised the same complaints as he had before the Burgomaster. In his written observations of 14 March 1994 the Burgomaster referred to the report drawn up by the advisory committee. A hearing took place before the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak), the successor to the Judicial Division, on 23 January 1996.", "19. On 14 May 1996 the Administrative Jurisdiction Division dismissed the applicant's appeal. Its reasoning included the following:\n \n“Article 12 of the International Covenant on Civil and Political Rights provides that everyone lawfully within the territory of a State shall have the right to liberty of movement and freedom to choose his residence. According to the third paragraph of that provision, this right shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in that Covenant. An almost identical provision is contained in Article 2 of Protocol No. 4 to the Convention.\nSection 219, first paragraph, of the Municipality Act confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof.\nContrary to what the party seeking review has argued, the issuing of orders in the situations set out in section 219 of the Municipality Act does not run counter to the above-mentioned treaty provisions, since the latter provide for the possibility of restricting the rights concerned by 'law' – a term which includes an order issued by the Burgomaster pursuant to the law – for the protection of public order.\nSection 219 of the Municipality Act is a legal provision intended for situations where ordinary means are insufficient for restoring and maintaining public order.\nIn the opinion of the Division these ordinary means may be considered insufficient in the present case and there was, at the time of the decision appealed against, an exceptional situation. It is relevant in this context that at the time of the decision appealed against it was not possible to solve the problem in question through a municipal regulation. There was not at that time – and there is not now – any relevant provision in a municipal by-law, nor is any other sufficient legal means available.\nOn the basis of the case file and the submissions made at the hearing, in addition to the number of eight-hour and fourteen-day orders that have been issued in the area concerned, the Division finds that the appropriate staff and means available to the defendant were inadequate to counter the difficult situation arising from breaches of public order resulting from the behaviour of drug addicts as described in the decision of 13 November 1989. This leads the Division to hold that it cannot be stated that the defendant could not reasonably make use of the powers granted him by section 219 of the Municipality Act.\nThe Division would, however, express the following reservations.\nIt cannot see why, if the situation described above should continue, the possibility of issuing fourteen-day prohibition orders should not be provided for in a by-law enacted by the Local Council. From the point of view of legal certainty and legitimacy of action by public authority, a regulation provided by a municipal by-law seems preferable to a measure based on the defendant's emergency powers. It appears from the case file that the defendant had already prepared the draft of an appropriate provision, which, however, was never incorporated into the General Municipal By-Law because the method used at present, which was decided on in consultation between the defendant, the police and the prosecuting authorities [verweerder, politie en justitie] with regard to the fourteen-day prohibition orders, was considered extraordinarily effective. The Division is, however, of the opinion that the presumed effectiveness of an emergency measure coupled with the prosecuting policy of the prosecution authorities [Openbaar Ministerie] do not constitute a reason not to make appropriate provision at the municipal level. The Division considers that the defendant, in assessing whether there is an exceptional situation within the meaning of section 219 of the Municipality Act (now section 175 of the Municipality Act), may, in principle, no longer rely on the lack of an appropriate provision in a municipal by-law, in view of the length of time this drugs-related nuisance [drugsoverlast] has already prevailed, causing it to display structural aspects, if the possibility of issuing fourteen-day prohibition orders is not now provided for in a by-law enacted by the Local Council within a reasonable time.”\nThis decision was published, with a learned comment, in Jurisprudentie Bestuursrecht (Administrative Law Jurisprudence) 1996, no. 169.", "20. Apart from the proceedings described above, the applicant was convicted by a single-judge Chamber (politierechter) of the Regional Court (arrondissementsrechtbank) of Amsterdam on 8 December 1992 of having intentionally failed to comply on 20 November 1992 with the prohibition order imposed by the Burgomaster on 6 November 1992. Under Article 184 of the Criminal Code (Wetboek van Strafrecht), this failure constituted a criminal offence. He was sentenced to four weeks' imprisonment. Following an appeal to the Amsterdam Court of Appeal (gerechtshof), which also convicted the applicant, an appeal on points of law was lodged with the Supreme Court (Hoge Raad). The Supreme Court dismissed the applicant's appeal on 8 December 1998.", "21. The criminal proceedings against the applicant do not form part of the case before the Court." ]

[]

[ "11. The applicant and her husband have always lived in the Netherlands. By a decision of 7 August 1984, the applicant's husband was granted a married man's old-age pension under the General Old Age Pensions Act (Algemene Ouderdomswet) commencing on 1 August 1984. However, pursuant to the then section 10 of the Act, his pension was reduced by 38% as neither he nor the applicant had been insured under the Act during nine periods between 1 February 1957 and 1 August 1977 when he had worked in Germany and had an old-age insurance under the German social-security legislation. These nine periods amounted in total to nineteen years. No appeal was filed against this decision.", "12. After the applicant reached the age of 65 in 1989, the Board of the Social Insurance Bank (Sociale Verzekeringsbank), by a decision of 14 February 1989, granted the applicant an old-age pension under the General Old Age Pensions Act commencing on 1 March 1989. As had occurred with her husband's pension, her pension was also reduced by 38%. The applicant filed an appeal with the Arnhem Appeals Tribunal (Raad van Beroep), as it was then known, complaining that this reduction in her old-age pension constituted discriminatory treatment.", "13. In its decision of 10 January 1990 the Appeals Tribunal noted that, under sections 7 and 9 of the General Old Age Pensions Act, a married person – like the applicant – who had been insured under this Act and had reached the age of 65 was entitled to an old-age pension amounting to 50% of the net minimum wage per month.", "14. However, under the terms of section 13 of the Act, this amount could be reduced by 2% for each full year in which the person concerned had not been insured between the ages of 15 and 65. The Appeals Tribunal further noted that, according to section 6(1) of the Act, those insured were persons between the ages of 15 and 65 who were either resident in the Netherlands or, if not, were liable to payment of salaries tax (loonbelasting) in respect of work carried out in the Netherlands under a contract of employment. Under the present subsection 2 of section 6 of the Act, it was possible, by way of an Order in Council (Algemene Maatregel van Bestuur), to extend or limit the group of insured persons as an exception to the general rule contained in section 6(1).", "15. The Appeals Tribunal referred to the case-law of the Central Appeals Tribunal (Centrale Raad van Beroep) to the effect that the question whether or not a person was insured under the General Old Age Pensions Act fell to be determined on the basis of the rules in force at the relevant time.", "16. It further noted that, by virtue of five consecutive royal decrees on the extension and limitation of the group of insured persons (Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden) that had been issued under section 6(1) of the Act and had remained in force until 1 April 1985, persons residing in the Netherlands but working abroad under a contract of employment and insured under a foreign social-security scheme by virtue of that employment were not insured under the Act. That limitation also applied to a woman married to a person who, pursuant to those royal decrees, was not insured under the Act.", "17. The Appeals Tribunal noted that it was not in dispute that, during the relevant periods, the applicant's husband had been working in Germany and had been subject to German social-security legislation in accordance with Ordinance no. 3 of the Council of Ministers of the European Communities (until 1 October 1972) and subsequently Ordinance 1408/71.", "18. It found that, in these circumstances, the Social Insurance Bank had correctly concluded that the applicant was not insured under the General Old Age Pensions Act for the period her husband had worked in Germany.", "19. However, as regards the question whether that situation was compatible with the principle of equality, in particular the prohibition on discrimination between men and women, the Appeals Tribunal noted that there was a provision in the royal decrees which rendered the insurance of married women under the Act dependent on their husbands being insured, whereas the decrees did not contain a comparable provision in respect of married men.", "20. The Appeals Tribunal examined the applicant's situation in the light of Article 26 of the International Covenant on Civil and Political Rights (ICCPR). It referred to the case-law of the Central Appeals Tribunal according to which, from 23 December 1984, this provision was also directly applicable in the Netherlands legal order in the field of social security. The Appeals Tribunal found that this implied that rights could be derived directly from this provision in so far as an application, after 23 December 1984, of statutory rules created a difference in treatment between men and women without any objective and reasonable justification, and led to a more unfavourable result than would have existed had there not been such a difference. It considered that the applicant had found herself in that situation as she had been awarded an old-age pension on 1 March 1989 from which 38% was deducted on the basis of rules which made an unjustified distinction between married men and women.", "21. The Appeals Tribunal noted that, from 1 April 1985 onwards, the principle of equal treatment between men and women had been incorporated in the General Old Age Pensions Act, and that this had resulted in the introduction of a system in which the entitlement to full benefits was made solely dependent on the question whether or not the person concerned had personally completed the qualifying years under the Act. It concluded, therefore, that married women, like the applicant, who had fully complied with the conditions for insurance under the Act, could not be regarded as having been uninsured during a certain period solely on grounds of marital status.", "22. Consequently, the Appeals Tribunal quashed the decision of 14 February 1989, in so far as the applicant's pension was reduced by 38%, upheld the remainder of the decision and ruled that the applicant was entitled to a full pension under the Act. The Board of the Social Insurance Bank filed an appeal with the Central Appeals Tribunal.", "23. In its judgment of 26 November 1993, following a hearing held on 15 October 1993, the Central Appeals Tribunal quashed the decision of 10 January 1990 and dismissed the applicant's appeal as ill-founded.", "24. The Central Appeals Tribunal noted at the outset that it was not in dispute between the parties that the applicant did not belong to the group of persons as defined in Article 2 of Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security. It considered that view to be correct and, consequently, held that the question of the reduction in the applicant's pension could not be examined in the light of the prohibition on discrimination set out in Article 4 § 1 of this directive.", "25. As regards the question whether the reduction in the applicant's pension was compatible with Article 26 of the ICCPR, the Central Appeals Tribunal considered that, from 23 December 1984 onwards, that provision could also be directly relied on in the field of social security. It also referred to the case-law according to which this implied that Contracting States to the ICCPR were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by that provision. However, it said that a difference in treatment was not contrary to that provision where there were objective and reasonable grounds for the difference.", "26. In the light of those considerations, the Central Appeals Tribunal held that Article 26 of the ICCPR could not deprive a national statutory rule of its effect, according to which the level of benefits under a statutory insurance scheme – like the General Old Age Pensions Act – was made dependent on the question of whether the periods of insurance had been completed. It held that this was no different where it could be established that the disqualification of certain periods of insurance before 23 December 1984 was based on a domestic rule which made a difference in treatment on the basis of sex, as that rule had been in operation during a period in which Article 26 of the ICCPR was not yet directly applicable and could not, therefore, deprive the domestic rule of its earlier effect.", "27. The applicant's subsequent appeal on points of law to the Supreme Court (Hoge Raad) was dismissed on 29 May 1996. As to the applicant's argument that the Central Appeals Tribunal had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment, the Supreme Court held that the Central Appeals Tribunal had correctly found that, as regards the periods in which the applicant had not been insured under the General Old Age Pensions Act, she could not rely on Article 26 of the ICCPR, as those periods predated the entry into force of that international instrument.", "28. In so far as the applicant complained that the Central Appeals Tribunal had unjustly failed to deprive the discriminatory rule at issue of its effect on grounds of incompatibility with the prohibition on discrimination contained in Article 1 of the Constitution (Grondwet), the Supreme Court held that the periods during which the applicant had not been insured under the Act predated the entry into force of Article 1 of the Constitution.", "29. In so far as the applicant relied on unwritten general principles of law (algemene rechtsbeginselen), in particular the principle of equality, the Supreme Court considered that, according to the explanatory memorandum (Nota van Toelichting) to the first royal decree on the extension and limitation of the group of insured persons of 20 December 1956, the exclusion was aimed at preventing an undesirable accumulation of benefits. According to the explanatory memorandum, the pension rights accrued by the man abroad were also considered to be intended to benefit his spouse.", "30. The Supreme Court held that in view of the social attitudes prevailing at the relevant time, that is to say the periods during which the applicant had not been insured under the General Old Age Pensions Act, the government of the time could have taken the view that in practically all cases it was the man who was the “breadwinner” so that it could, accordingly, exclude married women and did not have to make a separate provision for cases where the woman was the “breadwinner”. The Supreme Court held, therefore, that there was an objective and reasonable justification for the difference in treatment on grounds of sex which the exclusion entailed.", "31. The Supreme Court further rejected the applicant's argument based on the principle of equality contained in Article 4 § 1 of Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, as the applicant fell outside the scope of Article 2 of the directive, which defined the group of persons to whom the directive applied." ]

[ 8, 9 ]

[ "9. The applicant was employed by the District National Committee (Okresný národný výbor) in Bardejov. In 1988 he was dismissed for breach of discipline. Subsequently courts at two levels of jurisdiction declared the dismissal unlawful. Their decisions became final on 2 August 1991.", "10. In 1990, while the above proceedings were pending, the national committees ceased to exist ex lege, and their liquidation formally ended on 31 July 1991. The national committees were replaced by district offices (okresné úrady) which were not formally their legal successors.", "11. On 2 September 1991 the Bardejov District Office gave notice to the applicant pursuant to Section 46 (1) (b) of the Labour Code. The dismissal became effective on 31 December 1991. The applicant challenged this decision. He argued, in particular, that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment.", "12. On 16 July 1993 the Bardejov District Court (Okresný súd) heard the parties and dismissed the applicant’s action.", "13. The applicant appealed. He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful, that he had become an employee of the District Office in Bardejov after his dismissal in 1988 had been declared unlawful on 2 August 1991, and that the District Office had paid his salary until the end of 1991.", "14. On 8 March 1994 the Košice Regional Court (Krajský súd) heard the parties. The case was adjourned and the representative of the defendant was requested to submit the Government’s regulation of 24 November 1990 concerning the practical aspects of liquidation of the national committees. On 14 April 1994 the applicant complained to the Regional Court that it should have decided on the case on 8 March 1994 as it had had all relevant evidence before it. Another hearing before the Regional Court was held on 26 April 1994. The parties were acquainted with documentary evidence submitted by the representatives of the defendant. The applicant requested the exclusion of the Regional Court judges.", "15. On 7 July 1994 the Košice Regional Court (Krajský súd) quashed the first instance judgment and ordered the District Court to take further evidence. The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by the District Office in Bardejov between 2 August 1991 and his second dismissal. In particular, the Regional Court considered it necessary to establish whether the applicant had received a salary, or compensation therefor, during the period in question, that is, whether the sums which he had received had been paid from the funds allocated to the District Office or from a special fund of the Ministry of the Interior. The appellate court further instructed the District Court to establish whether or not the Ministry of the Interior had authorised the head of the District Office in Bardejov to settle the applicant’s claims. The decision stated that witnesses should be heard with a view to establishing the above facts. The case was sent back to the Bardejov District Court for a new adjudication.", "16. The applicant and the representative of the defendant failed to appear before the District Court on 8 September 1994. The applicant did not appear at subsequent hearings scheduled for 26 September 1994 and 4 October 1994. He excused his absence on the last mentioned date. In his letter of 3 October 1994 the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file. The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence.", "17. Another hearing was scheduled for 4 November 1994. The District Court proceeded with the case in the applicant’s absence as, according to the Government, the summons had been served on the applicant’s daughter and the applicant had not excused himself. The applicant contends that he was not summoned. On 4 November 1994 the District Court heard two officials of the District Office in Bardejov who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of the District Office. The compensation for pay the applicant received between 2 August 1991 and 31 December 1991, that is, until his dismissal became effective, were paid from a special fund of the Ministry of the Interior. The witnesses further explained that the notice which the District Office had sent to the applicant related to his contract of employment with the District National Committee which, in the meantime, had ceased to exist. The District Court had sent it in accordance with the relevant instructions issued by the Ministry of the Interior.", "18. On 14 November 1994 the District Court adjourned the case as the applicant had excused himself in advance that he was ill.", "19. The next hearing was scheduled for 10 January 1995. The applicant received the summons on 27 December 1994. According to the applicant, he submitted, at 7.30 a.m. on 10 January 1995, a letter to the District Court’s registry informing the court that he would not attend the hearing scheduled for 8.30 a.m. on the same day. In the letter the applicant explained that, several days earlier, he had not been allowed to consult the case file and that, therefore, he did not consider it necessary to excuse himself for his absence. The Government maintain that the letter was delivered to the court’s registry at 10 a.m. This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter, stamped by the court’s registry, bears no indication of the hour when it was submitted.", "20. On 10 January 1995 the Bardejov District Court proceeded with the case in the applicant’s absence. It delivered a judgment by which it dismissed the action. In the judgment the District Court found that the District Office was not a legal successor to the applicant’s former employer and that the applicant had no right to be employed by the District Office. The court held that, by sending a notice to the applicant, the District Office had acted in accordance with the relevant regulations of the Ministry of the Interior and of the Ministry of Finance. Under these regulations, the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by 31 July 1991. The court concluded that the District Office had acted in accordance with Section 251 of the Labour Code.", "21. The applicant appealed. He alleged that the District Office had had no power to send him a notice, and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful. He alleged, with reference to the relevant pay slips, that he had been paid from the same account as the other employees of the District Office after his first dismissal had been declared unlawful on 2 August 1991. The applicant considered irrelevant that the Ministry of the Interior had put at the District Office’s disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as, in his view, that sum of money had been used for different purposes. In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues. The veracity of his allegations could be proved by an expert.", "22. The applicant also complained to the appellate court that the District Court had not considered his arguments, that it had not established the relevant facts and that it had decided in his absence. Finally, the applicant stated that the appellate court should proceed with the case in his presence, that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified.", "23. Hearings before the Košice Regional Court scheduled for 20 September 1995 and 26 January 1996 were adjourned as the parties did not appear. The applicant excused his absence on both occasions. Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence.", "24. The next hearing was scheduled for 6 March 1996. The Regional Court invited the applicant to submit a medical certificate should he not be able to attend, failing which the case would be decided in his absence. On 2 March 1996 the applicant sent a registered letter in an envelope addressed to the “State Regional Court” in Košice. In the letter the applicant informed the Regional Court that he was ill and enclosed a medical certificate. The applicant further asked the court not to proceed with the case in his absence. The letter indicated the case number, the name of the presiding judge and also the date of the hearing.", "25. The letter was stamped by the registry of the Regional Court. The stamp indicates that the letter was delivered on 5 March 1996. The letter bears a hand-written remark by the president of the Regional Court dated 4 March 1996 and indicating that it should be transmitted to the presiding judge. The letter bears another hand-written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on 6 March 1996 at 10.30 a.m.", "26. The Government submit that the letter was considered to be a complaint and that the envelope was submitted, unopened, to the secretariat of the president of the Regional Court on 5 March 1996. The president of the Regional Court mistakenly dated his above instruction 4 March 1996. According to the Government, the applicant’s letter reached the presiding judge five minutes after the delivery of the judgment on the case.", "27. On 6 March 1996 the Košice Regional Court examined the case in the applicant’s absence and upheld the first instance judgment. It stated that the applicant’s letter posted on 2 March 1996 had reached the judges on 6 March 1996 at 10.30 a.m., that is after the hearing was over. The judgment further stated that the letter had been addressed to the president of the Regional Court and not directly to the presiding judge.", "28. In its judgment the Regional Court pointed out that it had taken further evidence, in that it had requested the Ministry of the Interior to submit a report concerning the delegation of its powers to District Offices. It concluded, with reference to all the evidence before it, that the applicant’s appeal was ill-founded.", "29. In particular, the Regional Court found that the applicant’s dismissal by the District National Committee in Bardejov had been declared unlawful by a decision which became final on 2 August 1991. By that time the national committees had ceased to exist ex lege, and their liquidation had formally ended. In accordance with the relevant instructions issued by the Ministry of the Interior and the Ministry of Finance, the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by 31 July 1991. The Regional Court therefore upheld the view of the first instance court according to which the District Office in Bardejov had acted in accordance with Section 251 of the Labour Code. The Regional Court had also regard to the supplementary evidence which the District Court had taken on 4 November 1994 and which indicated that the money which had been paid to the applicant had been derived from the budget of the Ministry of the Interior. The Regional Court concluded that the applicant had not become an employee of the District Office. Accordingly, the notice in question was in conformity with Section 46 (1) (b) of the Labour Code.", "30. On 23 April 1996 the applicant lodged an appeal on points of law. He complained, inter alia, that he had not been able to act before the appellate court and invoked Article 237 (f) of the Code of Civil Procedure.", "31. On 26 November 1997 the Supreme Court (Najvyšší súd) rejected the appeal on points of law as being inadmissible without hearing the parties. In its decision the Supreme Court found that there had been no shortcomings within the meaning of Article 237 (f) of the Code of Civil Procedure in the proceedings challenged by the applicant. The Supreme Court did not address the merits of the case." ]

[ 3 ]

[ "10. On 2 December 1994 the Burgomaster (Burgemeester) of Amsterdam, relying on Sections 172 and 175 of the Municipality Act (Gemeentewet) as amended on 1 January 1994, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed for a period of fourteen days to enter a particular area, i.e. the “Ganzenhoef” area, one of the emergency areas designated by the Burgomaster. The following events were referred to in the Burgomaster’s decision as having led to this order being issued:\n– It appeared from police reports that on 9 and 12 September, 3 October, 14 and 16 November 1994 the applicant had either overtly used hard drugs, had had utensils for the use of hard drugs in his possession or had had hard drugs in his possession in the Ganzenhoef area and that on four of those occasions the applicant had been ordered to leave the area for eight hours. \n– On 16 November 1994 the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from acts which disturbed the public order (openbare orde) or have to stay away from the area. The applicant had further been informed that if he committed such acts again in the near future, the Burgomaster would be requested to impose a prohibition order for fourteen days on him. On that occasion the applicant did not wish to state anything as to the reasons for his presence in that area.\n– On 25 November 1994 the applicant had nevertheless overtly used hard drugs in the Ganzenhoef area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a prohibition order for fourteen days on the applicant.", "11. In the opinion of the Burgomaster the applicant would again commit acts disturbing public order within the near future. In this respect the Burgomaster took account of the kind of conduct involved, i.e. acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant’s home nor his place of work were situated in the area concerned.", "12. On 12 December 1994 the applicant submitted an objection (bezwaarschrift) against the prohibition order to the Burgomaster. He submitted, inter alia, that the Burgomaster had failed to take into account the fact that he was residing in the Ganzenhoef area, that he needed to be present there in person twice a week in order to collect his social security benefits and that he received social counselling there. The applicant stated that the police knew this, but had failed to mention it in the police report on the applicant’s hearing of 16 November 1994.", "13. The applicant further submitted that the prohibition order could not be considered as having a legal basis in that the emergency powers granted to the Burgomaster under the Municipality Act were intended for emergency situations. According to the applicant, the legislature had never intended structural nuisance caused by drug abusers to be considered as creating an emergency situation. Moreover, the applicant’s absence from the Ganzenhoef area would not make any difference in this respect since he was only one of many drug abusers in that area. The applicant also complained that the order was contrary to Article 6 of the Convention in that it constituted a sanction and could therefore only be imposed by a judge. He further complained that the order restricted his freedom of movement and was contrary to his right to respect for his private life, family life, home and correspondence.", "14. On 10 January 1995 a hearing took place before an advisory committee. During this hearing the representative of the Burgomaster stated that already on 19 April 1994 a prohibition order for fourteen days had been imposed on the applicant and that on 16 November 1994 the applicant had not wished to make any statement to the police as to the reasons for his presence in the Ganzenhoef area. Despite the previous orders, the applicant had continued his undesirable conduct and on this ground the imposition of a new prohibition order had been sought. The Burgomaster’s representative further stated that the address where the applicant had stated that he resided and where he collected his mail and social security benefits was in fact the address of the Streetcornerwork Foundation. It was not possible to reside at that address. This Foundation had a procedure under which social-security benefits for persons subject to a prohibition order could be collected by an authorised third party and it was possible for the applicant to avail himself of that procedure.", "15. On 29 June 1995 the committee advised the Burgomaster to reject the objection and to maintain the prohibition order. It considered, inter alia, having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disrupted public order and that the prohibition orders for eight hours which had been issued had not prevented him from behaving in that manner, that the imposition of the prohibition order had not been unreasonable. It further found that the order was in conformity with Section 172 (3) of the Municipality Act, that therefore it was not necessary to examine the question whether or not the conditions set out in Section 175 of the Municipality Act had been fulfilled, and that the Burgomaster had not exceeded his competence under the Municipality Act. It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued in order to maintain public order. The committee finally found that the interference with the applicant’s right to liberty of movement had been justified and that the prohibition order could not be regarded as disproportionate.", "16. By decision of 6 July 1995 the Burgomaster rejected the applicant’s objection, adopting as his own the reasoning applied by the advisory committee.", "17. The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of Amsterdam.", "18. By judgment of 19 January 1996, following adversarial proceedings in the course of which a hearing was held on 8 December 1995, the Regional Court declared the applicant’s appeal well-founded and quashed the prohibition order.", "19. The Regional Court accepted that the overt use of hard drugs in public places and the presence of a concentration of drug abusers and dealers disrupted public order and acknowledged the necessity to end such nuisance, in particular when this occurred continuously at specific locations in the city. The Regional Court noted that the Burgomaster availed himself of two means to that end, namely prohibition orders of either eight hours or fourteen days. It considered the procedure established as regards the imposition of prohibition orders for a duration of fourteen days and noted that this procedure had not been fully complied with in that the applicant’s prohibition order had not been sought by the competent police officer. However, as it was not established that this had harmed the applicant’s interests, it did not find that this flaw should result in the quashing of the order. It did, however, find that the order should be quashed on other grounds.", "20. The Regional Court held that, unlike the situation in which an eight‑hour prohibition order has been imposed, Section 172 (3) of the Municipality Act offered no basis for the imposition of a prohibition order for a duration of fourteen days. It held on this point that the competence established by this provision aimed to create a possibility for direct reaction to an expected disturbance of public order and might serve to prohibit someone’s presence for a limited period of time in the area where the disturbance of public order was expected. It held that the eight-hour prohibition order was such as to meet this need, but not the fourteen days prohibition order, the latter measure being disproportionate in relation to the expected disruption of public order and thus going beyond what could be considered necessary for maintaining public order.", "21. The Regional Court added that in the present case this was all the more so as the applicant had no permanent place of residence and used the address of the Streetcornerwork Foundation as his postal address. The prohibition order implied that the applicant’s freedom of movement was limited for fourteen days in a manner which prevented him from collecting his mail and from receiving his social security benefits. It rejected the argument advanced by the Burgomaster’s representative that the police would not undertake any formal action against the applicant for acting contrary to Article 184 of the Criminal Code (Wetboek van Strafrecht), i.e. the offence of failure to comply with an official order (ambtelijk bevel), when collecting his social security benefits at the address of the Streetcornerwork Foundation, considering that the applicant’s freedom of movement could not be made dependent on the willingness of the police officer on duty to tolerate intrinsically punishable conduct.", "22. The Regional Court further found that the situation at issue, i.e. nuisance caused by drug abuse, did not constitute a situation within the meaning of Section 175 of the Municipality Act and accordingly held that the Burgomaster could not have based the prohibition order on this provision. As it had already found the prohibition order to be incompatible with national law, the Regional Court did not find it necessary to determine whether or not the order was compatible with Article 6 of the Convention.", "23. On 7 February 1996, the Burgomaster lodged an appeal against the Regional Court’s judgment with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).", "24. In its judgment of 19 December 1996, following adversarial proceedings, the Administrative Jurisdiction Division quashed the Regional Court’s judgment of 19 January 1996 and rejected the applicant’s appeal to the Regional Court as ill-founded. Its reasoning included the following:\n“The prohibition order issued against Landvreugd is based on a decision of the appellant, dated 28 October 1993 and addressed to the Chief Superintendent of Police, which contains an instruction to the police relating to the preparation and issuing of a fourteen-day prohibition order. This instruction designates the Ganzenhoef area as an “emergency area” and indicates the behaviour which the appellant considers to be constitutive of serious breaches of public order, including the overt possession or use on or near the public highway of addictive substances within the meaning of Section 2 of the Opium Act.\nThe Regional Court held, among other things, that the appellant was not competent to act on the basis of Section 175 of the Municipality Act, because a situation within the meaning of that Section was lacking. The Administrative Jurisdiction Division does not share this opinion. Its reasons are the following.\nIt is laid down in Section 175, first paragraph, of the Municipality Act that in case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution.\nThe Administrative Jurisdiction Division notes at the outset that giving orders in the situations described in Section 175 of the Municipality Act is not contrary to the right to freedom of movement as guaranteed by Article 12 of the International Covenant on Civil and Political Rights and Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, since provision has been made for the possibility to limit this right by law – which also includes an order given by the Burgomaster pursuant to the law – for the protection of public order.\nSection 175 of the Municipality Act replaced Section 219 of the Municipality Act which was repealed as of 1 January 1994. As did Section 219, Section 175 grants the Burgomaster emergency powers which should only be used in exceptional situations. Thus provision has been made by law for circumstances in which ordinary means are insufficient to restore and maintain public order. The Administrative Jurisdiction Division notes in this connection that the wording of Section 175 does not lead to the conclusion that that provision, as compared with Section 219, is intended to introduce any changes as regards the circumstances in which emergency powers may be used. Its drafting history does not justify holding otherwise.\nIn the opinion of the Administrative Jurisdiction Division, ordinary means may be considered insufficient in the present case and there was, at the time of the decision on the objection, an exceptional situation of the kind referred to above. The Administrative Jurisdiction Division finds in this regard that the facts relating to the situation in the Ganzenhoef area, based on which the appellant decided to issue the fourteen-day prohibition order, are established. In light of the decision of 28 October 1993 the situation there was characterised by the presence of a large number of drug addicts and the attendant nuisance, inconvenience, insecurity and threats to other citizens. This factual situation is so serious that the personnel and means available to the appellant were insufficient to counter the disruptions of public order thereby caused.\nIt is important to note in this context that at the time the objection was decided on, it was not possible to solve the problem there by means of a regulation adopted by the municipality (gemeentelijke regeling). At that time there was no relevant provision in any municipality bye-law, nor were any other adequate administrative-law means available. Given that the decision dismissing the objection was given before the Administrative Jurisdiction Division delivered its decision of 14 May 1996 ..., the absence of such a provision cannot be held against the appellant. Apart from that, by a decision of 26 June 1996, Section 2.6 A has been added to the General Municipal Bye-law of Amsterdam, which contains a regulation governing prohibition orders in relation to hard drugs. Against this background, the Administrative Jurisdiction Division is of the opinion that it cannot be maintained that the appellant was not entitled to use the powers granted him by Section 175 of the Municipality Act.\nMoreover, nothing brought forward by Landvreugd constitutes a ground to find that the appellant could not reasonably decide, in the light of the circumstances of the case, to issue a fourteen-day prohibition order.\n... The position taken by the appellant, that the risk of repetition of behaviour constituting a breach of the peace was so great that a fourteen-day prohibition order was necessary, is not unreasonable.\nThe Administrative Jurisdiction Division further notes that Landvreugd is not resident in the Ganzenhoef area, is not dependent on that area for work, and that he was offered the possibility to collect his social-security benefits from the Streetcornerwork Foundation.”", "25. Apart from the proceedings described above, the applicant was arrested and placed in detention on 4 December 1994 for failure to comply with the prohibition order of 2 December 1994. On 20 December 1994 the single-judge chamber (politierechter) of the Amsterdam Regional Court (arrondissementsrechtbank) suspended the applicant’s pre-trial detention in order to allow the applicant to be admitted to the Crisis Observation and Detoxification Department of the J. clinic and adjourned the criminal proceedings against the applicant sine die.", "26. By judgment of 22 May 1995, the single-judge chamber of the Regional Court convicted the applicant of having failed to respect a prohibition order on two occasions and sentenced him to four months’ imprisonment with deduction of the time spent in pre-trial detention. The applicant appealed to the Court of Appeal (gerechtshof) of Amsterdam.", "27. In its judgment of 4 February 1997, the Court of Appeal quashed the judgment of 22 May 1995 and convicted the applicant of having failed to respect a prohibition order on one occasion. However, as the applicant had also amassed other convictions which the law required to be taken into account for sentencing purposes, the Court of Appeal was prevented from imposing any sentence as the maximum aggregate penalty had already been attained. The applicant’s subsequent appeal on points of law was rejected on 16 June 1998 by the Supreme Court (Hoge Raad).", "28. The criminal proceedings against the applicant do not form part of the case before the Court." ]

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[ "9. The applicant was born in 1970 and lives in St. Peter am Hart.", "10. On 9 July 1995 the applicant was involved in a road traffic accident in which his passenger was slightly injured.", "11. On 25 September 1995 the Braunau District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant to pay a fine of 10,000 Austrian schillings (ATS), with nine days’ imprisonment in default, for driving under the influence of drink, contrary to sections 5 (1) and 99 (1) (a) of the Road Traffic Act 1960 (Straßenverkehrsordnung). The applicant did not appeal.", "12. Meanwhile, on 8 August 1995, a criminal information was laid against him.", "13. On 7 January 1997 the Grieskirchen District Court (Bezirksgericht) convicted the applicant under Article 88 §§ 1 and 3 of the Criminal Code (Strafgesetzbuch) of causing injury by negligence, with the additional element of Article 81 § 2, and sentenced him to pay a fine of ATS 8,000 with twenty days’ imprisonment in default.", "14. On 18 June 1997 the Wels Regional Court (Landesgericht) dismissed the applicant’s appeal. The Regional Court noted that the European Court of Human Rights had meanwhile found that the Austrian reservation in respect of Article 4 of Protocol No. 7 was invalid (see the Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, pp. 64-65, §§ 49-51). However, the judgment was not directly applicable and, therefore, it had to be assumed that double punishment was still lawful under domestic law, if the courts decided after the administrative authorities. In addition it noted that, following a judgment of the Constitutional Court changing the subsidiarity provisions in section 99 (6) (c) of the Road Traffic Act, the administrative offence of drunken driving was subsidiary to an offence under the Criminal Code committed with the additional element of Article 81 § 2. This change of law was however not applicable to the case in issue." ]

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[ "11. The applicants, who were born in 1954, 1961, 1955, 1957, 1955, 1961, 1942, 1951, 1956, 1946, 1961, 1959 and 1948 respectively, are Turkish nationals. They were members of the Turkish Grand National Assembly and the DEP (Democracy Party – Demokrasi Partisi), a political party which was dissolved by the Constitutional Court on 16 June 1994.", "12. On 7 May 1993 the DEP was founded and the appropriate declaration submitted to the Ministry of the Interior.", "13. On 2 November 1993 Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for the DEP to be dissolved. In his application he accused the DEP of having infringed the principles of the Constitution and the law on political parties. He considered that declarations made by various members of the DEP's central committee and its former chairman during two meetings held abroad (at Erbil in Iraq and Bonn in Germany) were likely to undermine the integrity of the State and national unity.", "14. On 1 March 1994 the Constitutional Court decided of its own motion to obtain the oral submissions of certain interested parties. Thus, on 22 March 1994 it took evidence from the applicant Mr Kartal, in his capacity as the vice-chairman of the DEP, and from Mr Kaplan, in his capacity as the party's legal representative.", "15. On 2 March 1994 the Grand National Assembly lifted the parliamentary immunity of some of the DEP's MPs, including that of the applicants, in response to a series of applications made by the public prosecutor at the Ankara National Security Court.", "16. On the same day Mr Dicle and Mr Doğan were arrested as they were leaving parliament, and taken into police custody. On 4 March 1994 the same thing happened to Mr Sakık, Mr Türk and Mrs Zana. The arrest of Mr Yurttaş and Mr Sadak, who had remained inside the parliament building, was prevented by the Speaker of the National Assembly on the ground that they were still members of parliament.", "17. On 16 June 1994 the Constitutional Court ordered the dissolution of the DEP on the ground that it had undermined the territorial integrity of the State and national unity.", "18. The Constitutional Court also declared that the parliamentary seats of all the applicants were forfeited as a secondary measure attending the decision to dissolve the DEP. The measure was not applied to four MPs who had recently left the party.", "19. On the same day, fearful of the consequences of the criminal proceedings brought against them, Mr Toguç, Mr Güneş, Mr Kılınç, Mr Aydar, Mr Yiğit and Mr Kartal went abroad (to Brussels).", "20. On 1 July 1994 Mr Sadak and Mr Yurttaş went to the public prosecutor's office with their lawyer and were placed in custody.", "21. On a later date Principal State Counsel filed submissions in which he accused the applicants of separatism and undermining the integrity of the State, both of these being capital offences under Article 125 of the Criminal Code.", "22. The Ankara National Security Court gave judgment on 8 December 1994. Applying section 8 of the Prevention of Terrorism Act (Law no. 3713), it sentenced Mr Sakık to three years' imprisonment for separatist propaganda. Mr Türk, Mr Dicle, Mr Doğan, Mr Sadak and Mrs Zana were each sentenced to fifteen years' imprisonment for membership of an armed gang pursuant to Article 168 of the Criminal Code and Mr Yurttaş was sentenced to seven and a half years' imprisonment for assisting and supporting an armed gang, an offence under Article 169 of the Criminal Code.", "23. On an appeal on points of law by the applicants and Principal State Counsel on 26 October 1995, the Court of Cassation quashed Mr Türk's and Mr Yurttaş's convictions and ordered their release on the ground that they had contravened only section 8 of the Prevention of Terrorism Act. The Court upheld the other applicants' convictions." ]

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[ "7. The applicant is a British national born in 1956 and living in Bristol.", "8. In December 1984 the applicant married Marlene Willis. They had two children: Natasha Uma, born on 24 March 1989, and Ross Amal, born on 2 August 1990. Mrs Willis died of cancer on 7 June 1996, at the age of 39. The applicant is the administrator of his late wife's estate.", "9. Mrs Willis had been employed as a local authority housing officer. For the greater part of her married life, she was the primary breadwinner. She had paid full social-security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person unfit for work. On 3 November 1995 the applicant gave up work to nurse his wife and care for their children. Following his wife's death, he worked part time between 2 September 1996 and 6 November 1996, for an annual salary of 4,393 pounds sterling (GBP), but since this proved uneconomic he stopped working to care full time for the children.", "10. On 4 November 1996 the applicant applied to the Benefits Agency for the payment of social-security benefits. He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of Mrs Willis would have been entitled, namely a widow's payment and a widowed mother's allowance, payable under the Social Security and Benefits Act 1992.", "11. By a letter dated 18 November 1996, the Benefits Agency informed the applicant that the benefits he had claimed did not exist for widowers, and that his claim accordingly could not be accepted as valid. The letter continued:\n“I am afraid I can only explain that the Government says that it has no plans to introduce a widowers' pension on the same line as the existing widows' benefits.\nIt may help if I explain the current policy underlying widows' benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse's earnings and therefore more likely on widowhood to face greater financial hardship. The benefits themselves are concentrated on those widows who are perceived to have the greatest problems, those with children and older women who may have been out of the labour market for many years.\nIt is accepted that social patterns have changed considerably since the provisions were first introduced. However, it is still broadly the case that on bereavement, women are more likely than men to be in financial need. For instance, most widowers of working age will have been in employment before the death of their wives. They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work. Women on average earn less than men. So even for women who have been working, the financial loss on widowhood is likely to be significantly more than for men.\nWidows' benefits are not means tested and are paid regardless of the level of the widows' earnings. The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings, and in some cases, very high earnings indeed. To make existing widows' benefits provisions available to widowers would add an estimated GBP 490 million to the annual Social Security budget. The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered, this is simply not a best use of scarce resources.\nIn making these points, the Government says that it is in no way minimising the sad problems faced by widowers, in particular those left with small children to care for. For them there are already available benefits such as Child Benefit and One Parent Benefit, together with the range of income-related benefits, for example, Income Support for those not in full time work and Family Credit for low paid workers. In the Government's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows' benefits along the lines suggested. ...”", "12. The applicant lodged a statutory appeal against this decision on 17 February 1997. The Social Security Appeal Tribunal declined jurisdiction on the basis that no appealable decision had been made.", "13. The applicant currently receives child benefit and, in respect of his son Ross, received a disability living allowance and an invalid care allowance for a period following his wife's death. He is also in receipt of a widower's pension under Mrs Willis's occupational pension scheme. The applicant has capital, much of which is derived from a joint endowment policy (for which he and Mrs Willis had paid premiums) which matured on Mrs Willis's death, from which he obtains a further income of about GBP 150 per month. Because of his savings, the applicant does not qualify for means-tested benefits such as income support or family credit. All the social-security benefits he receives would also be received by a widow, who would in addition be paid a widow's payment and a widowed mother's allowance." ]

[ 8, 9 ]

[ "9. The applicant, Mrs Assya Anguelova, is a Bulgarian national who was born in 1959 and lives in Razgrad.", "10. On 29 January 1996 her son, Anguel Zabchekov, aged 17, who had been known to the police as a suspect on theft charges, died after having spent several hours in police custody in Razgrad following his arrest for attempted theft. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that the death must have been caused by an accidental injury which pre-dated Mr Zabchekov's arrest. The applicant contested that conclusion.\nThe applicant describes herself and her late son as belonging to the Roma/Gypsy ethnic group).", "11. According to the statements of several witnesses, on 28 January 1996 Mr Zabchekov spent part of the day doing some odd jobs for a neighbour. In the evening he went home for a while and then went out with his sister, her boyfriend and a Mr M., another friend of his. He then spent most of the evening in their company at a local bar. He consumed alcohol.\nAt about 10.30 p.m. or 11.30 p.m. Mr Zabchekov's sister and her boyfriend left the bar, leaving him there with Mr M. The bar closed shortly afterwards. Mr M. stated that he had then left the bar with Mr Zabchekov and that they had parted at the door, Mr M. returning home.\nAll the witnesses (the owner of the bar, the person for whom Mr Zabchekov had worked that day, his sister and her boyfriend, and Mr Zabchekov's father, who was at home when his son dropped in on his way to the bar) were unanimous that he had been in good health, that he had no visible injuries on his body, that he had not been involved in any quarrel or fight, and that he had consumed alcohol.", "12. At about midnight on 29 January 1996 a Ms I.A., who lived in a block of flats in Beli Lom Street in Razgrad, noticed from her balcony a man later identified as Mr Zabchekov hanging around by parked cars, bending over and “doing something”. Ms I.A. telephoned a neighbour, Ms I.M. The two women shouted at Mr Zabchekov from their balconies to ask him what he was doing. At that moment Sergeant Mutafov (“C”), a police officer who was not on duty that day, and a young man (“D”), both of whom also lived in the same block of flats, were passing by in the street and were alerted by their neighbours.", "13. Mr Zabchekov attempted to run away, and C ran after him. The chase apparently continued for a minute or two. Then D and his two neighbours saw C appearing from around the corner, holding Mr Zabchekov and leading him back to the entrance of the building. The witnesses stated that there had been snow on the ground.", "14. C later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood up again. This was confirmed by Ms I.A. and Ms I.M., who had been watching from their balconies. They explained that Mr Zabchekov had fallen on a patch of grass. However, D, who had remained in the street and had also observed the incident, stated that he had not seen Mr Zabchekov falling at any moment before his arrest. He repeated that statement at a confrontation with the other witnesses.", "15. C was the only witness of the events between the moment when Mr Zabchekov and he had turned round the corner and the moment when they had reappeared in front of the building in Beli Lom Street. C stated that Mr Zabchekov had slipped and fallen down two more times. As a result, C had been able to catch up with him and, while Mr Zabchekov was back on his feet and running, C had tripped him up, Mr Zabchekov had fallen to the ground and C had pounced on him. C had then pulled Mr Zabchekov up by the arm and had led him back. Asked to specify the part of his body on which Mr Zabchekov had fallen, C replied that the boy had fallen on his face. C could not remember whether Mr Zabchekov had protected his face with his hands. C also stated that he had had difficulty in running and apprehending Mr Zabchekov because he had had a leg injury and his shoelaces had been untied.", "16. Sergeant Dimitrov (“G”), one of the police officers who arrived later, stated as follows: “When we arrived on the spot [C] told us that while he was trying to arrest Mr Zabchekov the latter ran away and fell two or three times and that if he had not fallen C would not have been able to catch up with him.”", "17. The witnesses were unanimous that, while C had been leading Mr Zabchekov back to the entrance of the block of flats, the latter had slipped and fallen. There were discrepancies as to precisely how that had happened. Ms I.M., who observed the incident from her balcony, stated that when C and Mr Zabchekov had reappeared from around the corner of the building, the latter had slipped, fallen and rolled over. D stated, however, that Mr Zabchekov's leg had slipped and he had fallen on his buttocks. C maintained that Mr Zabchekov had in fact only slipped but had not fallen, because he had been holding him.", "18. C stated that he had not hit Mr Zabchekov and had not seen anyone hitting him. That was confirmed by Ms I.A. and Ms I.M. The latter, who was also the owner of one of the cars in the car park, clarified that she had indeed seen Mr Zabchekov rolling on the ground when C was leading him back after the chase, but stated that she had not seen anyone kicking him or beating him. D did not mention whether he had seen anyone hitting Mr Zabchekov.", "19. C also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any traces of blood or any grazes on his face. He added that Mr Zabchekov's hair covered part of his forehead and that the colour of his face was dark. D stated that he had not noticed any blood or grazing on Mr Zabchekov's face. He added that the latter smelled of alcohol.", "20. Having apprehended Mr Zabchekov, C asked Ms I.M. to call the police, which she did at about 12.20 a.m. Afterwards, she remained inside her flat.", "21. C, D and Mr Zabchekov waited at the entrance of the block of flats, apparently for about ten or twenty minutes. It appears that Ms I.A., who stayed on her balcony, did not have a view of the entrance.", "22. The witnesses' statements contain few details as to whether there was any kind of verbal exchange between Mr Zabchekov and any of them before the arrival of the police. Some of the witnesses stated that Mr Zabchekov had been mumbling something barely comprehensible. According to Ms I.M., who was watching from her balcony, Mr Zabchekov had repeated several times that he was drunk. Ms I.A., Ms I.M. and C stated that, when Mr Zabchekov had fallen to the ground after being arrested, C had told him: “Get up, I'm not going to drag you.” D stated that he had not heard any such words being uttered. None of the witnesses' statements indicates whether C or D spoke with Mr Zabchekov during the time when they were alone with him at the entrance of the block of flats.", "23. In the statement he gave on 29 January 1996, C said that, after the police had left with Mr Zabchekov, he had found a wrench on the spot where D, Mr Zabchekov and himself had been waiting for the police to arrive. C thought that it must have belonged to Mr Zabchekov as it was the right size for removing a car battery. C explained in his statement that he had kept the wrench and had handed it over to the investigator in the morning on 29 January 1996 when he had been summoned to the police station after the death of Mr Zabchekov. However, in a statement taken on 31 January 1996 Sergeant Atanassov (“H”), who had been on duty at the police station when Mr Zabchekov was brought there, said that he had noticed the wrench on a desk at the police station no later than 1.30 a.m., shortly after Mr Zabchekov had arrived there. At a confrontation with the other police officers on 26 April 1996, H recalled that he had in fact first seen the wrench at a later stage.", "24. When the telephone call was received at the local police station a patrol car with two police officers, Sergeants Penchev (“A”) and Kolev (“B”), was dispatched to the address. When the police officers arrived they saw C and Mr Zabchekov at the entrance of the block of flats. D was also standing nearby.", "25. A recognised Mr Zabchekov, whom he knew as a suspect in several pending theft investigations, and addressed him by name. He handcuffed him. A and some of the other police officers later asserted that at that moment A warned the others to be careful as Mr Zabchekov had a “brain disease”.", "26. Another police car, with three police officers, Sergeants Ignatov (“E”), Georgiev (“F”) and Dimitrov (“G”), arrived shortly afterwards. The officers then proceeded to search the area for evidence of attempts by Mr Zabchekov to break into cars. At some point, A led Mr Zabchekov to one of the cars which appeared to have been broken into and asked him whether he had been trying to steal anything. Mr Zabchekov allegedly denied this. He was then handcuffed to a small tree and the police officers continued to search the area. Having identified two cars which had been broken into, the police officers rang the owners' doorbells. One of them came out and went to see the damage done to his car. During that time Mr Zabchekov remained handcuffed to the tree.", "27. The only witnesses who gave details about the events between the police's arrival and their departure with Mr Zabchekov were the police officers on duty. Ms. I.A., and D merely stated that the police officers had searched the area. C stated that he had gone to alert the owners of the cars. He had only seen that at a certain point Mr Zabchekov was with the police officers at the car park, where his colleagues were comparing the soles of Mr Zabchekov's shoes with traces visible in the snow. One of the car owners was questioned, but only in respect of the damage caused to his car, by a police officer who visited the site later, at about 11 a.m. on 29 January 1996.", "28. According to some of the police officers, at some point when they were searching the area they had noticed Mr Zabchekov lying or sitting on the ground. A stated that at that point he had released Mr Zabchekov from the tree, placed him on the back seat of the police car and handcuffed both his hands. All the police officers who were present in Beli Lom Street stated that at that time they had not noticed any trace of injury on Mr Zabchekov's face. Some of them stated that he appeared to be drunk, and that he had been mumbling and had not been communicative.", "29. At about 12.50 a.m. Mr Zabchekov was taken to the police station by A and B.\nThe sergeant on duty, H, stated that he had seen A and B enter the police station with Mr Zabchekov walking between them. The latter's hands had been handcuffed behind his back. A and B had been holding him by the arms and leading him in. Mr Zabchekov had been put in office no. 1. A stated that at that point he had removed the handcuffs from the boy.", "30. No written order for Mr Zabchekov's detention was issued.", "31. According to the statements of A, B and H, Mr Zabchekov stayed in office no. 1 with B and H, while A went to report to the senior officer on duty, Colonel Iordanov (“I”). H further stated that at that moment he had noticed a bruise on Mr Zabchekov's eyebrow. A and B did not mention any injury. H also stated that Mr Zabchekov's clothes had been wet. They all noticed that Mr Zabchekov had been drunk and mumbling.\nColonel I stated that A had informed him that Mr Zabchekov had been brought to the police station; A had said that the arrested person had been identified, but was too drunk for questioning. Colonel I had not seen Mr Zabchekov until about 4.30 a.m. According to the sergeants' statements, Colonel I had ordered that Mr Zabchekov should be given a seat in the passage to sober up. A had then instructed H to call him over the radio as soon as Mr Zabchekov was able to communicate. At an unspecified time A and B had left the police station and returned to their patrol duties.", "32. H stated that Mr Zabchekov had fallen asleep soon afterwards, on a chair in the passage, and had been snoring. At about 3 a.m. H had allegedly noticed that Mr Zabchekov had been lying asleep on the floor. H had woken him and put him back on the chair, thinking that “he might catch a cold”. H further stated that at about 3.50 a.m. he had again gone to see Mr Zabchekov who had been sitting on the chair, sleeping and shivering. H had decided to move him back to office no. 1, where it had been warmer. He had woken him and helped him enter the room. Shortly afterwards Mr Zabchekov had slipped from the chair. H had noticed that he had been breathing heavily. H stated that at that point he had contacted Sergeant Dontchev (“J”), and had told him “to call Sergeant Penchev [A] or an ambulance”.", "33. J stated that, in accordance with the duty schedule, he had slept on the premises of the police station until 2 a.m. on 29 January 1996, when he had been woken for duty. He had not been informed that anyone was being detained. J's statement did not mention whether, between 2 a.m. and 3.50 a.m., he had gone down the passage where, at that time, according to H, Mr Zabchekov had been sleeping on a chair. J stated that he had only become aware of Mr Zabchekov's presence when at 3.50 a.m. H had reported that the boy's condition seemed to be deteriorating. J had then seen him, noticing injuries on his forehead, and had called A and B by radio.", "34. At approximately the same time H or J had alerted Colonel I, the senior officer on duty. I stated that at that moment he had noticed injuries on Mr Zabchekov's face.", "35. A and B stated that at 4.30 a.m. they had been contacted by radio and had been told that Mr Zabchekov's condition was rapidly deteriorating. Arriving at the police station, the sergeants had seen Mr Zabchekov lying on the ground, breathing heavily. B had then driven to the hospital and had returned, with Dr Mihailov, the paediatrician on duty, following in an ambulance.", "36. Dr Mihailov later stated that at about 5 a.m. the hospital employee in charge of emergencies had asked him to go to the police station “for a 15-year-old boy”. Dr Mihailov explained that he had seen that employee talking to the police officers. He also pointed out that he had not been given any prior information about the boy's condition.", "37. Dr Mihailov examined Mr Zabchekov at the police station and advised that he should be taken to hospital as his pulse rate was low. Mr Zabchekov was driven to the hospital in the ambulance, with A and B following in their police car. When they arrived at the hospital, A and B helped to bring Mr Zabchekov to the corridor in front of the office of the doctor on duty. According to the statements of A and B, when Mr Zabchekov was examined several minutes later by Dr Ivanova, the internist on duty, there had followed a heated discussion between her and Dr Mihailov. The police officers had then been informed that Mr Zabchekov had died.", "38. B stated that Dr Ivanova had said to him and his colleague: “You must have known Mr Zabchekov's condition”, and that she had insisted that she had not seen him breathing.", "39. Dr Mihailov stated that in the police station he had noticed bruises on Mr Zabchekov's chest and that at that time the boy had still been alive but had been unconscious with a weak pulse.\nDr Mihailov had then asked the police officers how long the boy had been in such a condition. The police officers had replied: “He was brought to the police station in that condition.", "40. Dr Ivanova stated that at about 5 a.m. she had been asked by Dr Mihailov to verify whether a patient who had been brought to the hospital had died. Having found that no cardiac activity was noticeable she had attempted cardiac massage, but to no avail. She further stated that, when she had asked why Dr Mihailov, and not herself, as the internist on duty, had been dispatched to the police station, the hospital employee in charge of emergencies had replied that the request for an ambulance had been said to concern a child, and so it had been decided to send the paediatrician on duty.", "41. According to normal practice, all detentions are recorded in a register kept at the police station. The register contains a series of entries organised in columns: the number assigned to the detainee, the name of the officer entering information into the register, the name of the detainee, the reasons for detention, the action taken and the time of release. Information corresponding to each detainee is entered in chronological order.", "42. At the Court's request the Government submitted a copy of the Razgrad police station's register for 29 January 1996. The register does not contain an entry for Mr Zabchekov. However, it contains an entry for an “unidentified person” who was assigned number 72.", "43. The register does not contain a separate column recording the time of detention. In respect of some of the detainees listed on the same page the time of detention is mentioned together with the date. In respect of the “unidentified person”, as with some of the other detainees listed on the same page, there is no mention of the time of detention in the column indicating the date. However, immediately after the words “unidentified person”, there appears, spread over two columns and two lines, the entry “29 I 96, 01.oo”. A visual examination of the copy of the register shows that the figure “1.oo” has been written over a figure which, as far as legible, had originally read “3.oo” or “5.oo”.", "44. It can be also observed that the registration numbers on the same page have been written over. From the copy provided by the Government it is difficult to see the original numbers that were altered. Nevertheless, it can clearly be seen that there are equal spaces between each of the entries except the numbers “72” and “73”, between which there is a significantly smaller space.", "45. The entry under number 72 for the detention of an unidentified person states that that person was brought to the police station by A. On the right-hand side of the same line there appears a signature which, in so far as it is legible, appears to be that of Colonel I.", "46. In the course of the investigation Colonel I, the senior officer on duty, and J, his assistant that night, were questioned in relation to the registration of Mr Zabchekov's presence at the police station. Colonel I stated that he had not instructed A to register the detainee since A was familiar with the procedure. J stated that shortly after 3.50 a.m., when he had been alerted by H about Mr Zabchekov's deteriorating condition, he had checked the register of detainees but had not seen any entry concerning him. Colonel I further denied having made an entry in the register and stated that the entry for an unknown person had not been there when he had left the police station after Mr Zabchekov's death.", "47. Early in the morning of 29 January 1996 the police officers involved submitted a written account of the night's events to the head of the local police.\nTowards the end of his handwritten report C stated, with no apparent connection with the surrounding text: “The person I apprehended was swarthy (Gypsy)” (“Този когото задържах беше мургав (циганин)”).", "48. The head of the local police opened file ZM-I no. 128 which contained a summary of the events, the reports of seven police officers and the written statements by D and one of the owners of the cars which Mr Zabchekov had allegedly tried to break into.\nAlso early in the morning of 29 January 1996 Mr Neshev, an investigator from the Regional Investigation Service (Окръжна следствена служба) in Razgrad opened criminal proceedings under file no. 13/1996 to investigate the death of Mr Zabchekov.", "49. According to the applicant, at 8 a.m. on the same day Mr Neshev, accompanied by two uniformed police officers, went to the house of the applicant's family to inform them of Mr Zabchekov's death. They spoke to the boy's stepfather. According to the applicant, the investigator stated that during the night Mr Zabchekov had tried to break into two cars, that the police had chased him, and that, during the chase, Mr Zabchekov had fallen down and had hit his head against the asphalt.", "50. Also on 29 January 1996, Mr Neshev questioned the police officers involved and D, the young man who had been with Sergeant Mutafov (C) during the brief chase on Beli Lom Street. The investigator also visited the hospital and saw Mr Zabchekov's body. Pictures of the body were taken.", "51. On the same day at about 11.45 a.m. an officer from the local police went to Beli Lom Street in connection with the reported car-theft attempt. He noted that two cars bore signs of attempted theft and questioned their owners. At about 5 p.m., this time apparently acting in connection with the investigation into the death of Mr Zabchekov, he took a sample from a large red patch in the snow. Laboratory analysis revealed that it was animal blood.", "52. Also on 29 January 1996 Mr Neshev ordered an autopsy. He put the following questions to the medical experts:\n“What are the causes of Zabchekov's death? Are there any traumatic injuries on Zabchekov's body? Do they have any causal relation to the death? How were the injuries inflicted? How long was the period between the infliction of the lethal injury and the death and is it possible, as witnesses claimed, that Zabchekov was conscious until 4.30 a.m.? Is the lethal injury related to injuries in places where the skin was broken? Are there any other visible injuries and did they require, in view of their visible characteristics, immediate medical treatment?”", "53. The autopsy was carried out on 29 January 1996 (starting at 11.30 a.m.) by three doctors at the Regional Hospital in Razgrad. These were Dr Minchev, head of the forensic department, Dr Militerov, head of the pathology department, and Dr Marinov, a doctor in the forensic department.", "54. In their report, dated 29 January 1996 (“the first report”), the experts described their findings in detail. Photographs were taken.", "55. The external inspection of the body revealed, inter alia:\n“At the outer end of the left eyebrow, over the orbital rim, a superficial wound of longish shape, measuring 1 cm by 0.4 cm, with slightly uneven and grazed edges, and covered by a thin brownish scab. The soft tissue around the wound is slightly swollen, the skin being of bluish-purple colour. The eyeball of the left eye is slightly protruded (outwardly) ...\nA slight surface scar 3.5 cm long, with mild bruising ... on ... the left wrist ...\nTwo surface bruises measuring 7.5 cm by 0.5 cm and 3.5 cm by 0.6 cm, of brownish colour, covered by a reddish scab on the right wrist ...”", "56. In the concluding part of the report the experts summarised the injuries on Mr Zabchekov's body as follows:\n“[1.] Skull and cerebral trauma: Superficial lacerated contusion (a deep bruise) located on the outer side of the left eyebrow along its orbital rim; haematomas on the skin and in the soft tissue around this wound and on the left eyelid, fracture of the back wall of the left 'eye bone' reaching its lower external side, with a bow-like fissure under the external injury described above; epidural haematoma on the left side (haemorrhage between the brain and the skull bones – 110 ml; epidural oedema ... [identified as the cause of death]).\n[2.] Haematoma on the skin, spotted in a characteristic manner, and haematoma in the soft tissue on the right side of the chest, along the anterior axillary line.\n[3.] Surface skin grazes on the right side of the forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissue under the skin.\n[4.] Haematoma of an oval shape and diameter of 0.5 cm on the mucous membrane of the left lower lip.\n[5.] Two strip-like surface bruises on the skin of typical shape, and haematoma in the soft inner tissue, in the area of the wrist joint of the right hand.”", "57. The experts further concluded:\n“[The death was caused by] accumulated epidural cerebral haematoma on the left-hand side of the forehead, containing 110 ml of blood, followed by a cerebral oedema, with wedging of the cerebellar tonsils into the foramen magnum; this oedema led to the suppression and detachment of vital brain centres (those of breathing and heart activity, which in turn caused a pulmonary oedema), and was the direct cause of death.”", "58. Addressing the question of the manner in which the injuries had been inflicted, the experts stated:\n“1. The injury in the area of the left orbital rim and the left eyeball and the epidural haematoma were caused by a blow by, or against, a blunt object, or an object with a blunt edge, [which had] a delineated [limited] and uneven surface. The blow was sudden and sufficiently strong. It caused the fracture of the back wall of the left 'eye bone' reaching its lower external side (furthermore, the skull bones are 0.2 cm thick); 2. [The injury to the right side of the chest was caused by] a blow by, or against, a hard blunt object, or an object with a blunt edge, having a larger impact surface. The marks in this area are spotted in a manner characteristic of an imprint of the victim's clothes. 3. [The injuries to the right side of the forehead and to the wrists were the result of] blows, or pressing, by or against sharp-edged objects. [The injury to the left part of the lower lip was caused by] a blow by or against a hard blunt object having a delineated [limited] surface.”", "59. The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was characteristically a lucid interval of four to six hours during which no visible signs would be displayed, except that\n“the victim gradually becomes feeble, apathetic and sleepy, after which he falls into a coma and dies – as happened in the present case (during the period between 1 a.m. and 5 a.m. on 29 January 1996).”\nThe report concluded that Mr Zabchekov's death had been inevitable in the absence of urgent surgical intervention.", "60. The laboratory analysis found an alcohol level of 1.42‰ in Mr Zabchekov's blood and 2.40‰ in his urine, corresponding to a medium level of alcohol intoxication.", "61. According to the applicant, in the morning of 30 January 1996 she went to the office of the Regional Investigation Service in Razgrad and requested information about the circumstances surrounding her son's death. Mr Neshev, the investigator, informed the applicant that her son had died of a skull fracture. According to the applicant, he explained that her son had been trying to steal car parts and that, when the police had sought to apprehend him, he had run away, had fallen down and had hit his head.\nAccording to the applicant, during this meeting Mr Neshev asserted that her son had been taken to hospital, omitting the fact that he had been in police custody. When asked how Mr Zabchekov's skull could have been fractured as a result of his fall, Mr Neshev had allegedly explained that the autopsy had found an “abnormally thin skull”.", "62. In the afternoon of 30 January 1996, upon receiving Mr Zabchekov's body from the hospital, the applicant and other family members noticed bruises on his body. The applicant went to the office of a local newspaper, spoke with two journalists and took them to her home, where they took pictures of Mr Zabchekov's body and clothes. Late in the afternoon of 30 January 1996 Mr Zabchekov was buried.", "63. On 31 January and 1 February 1996 the investigator questioned Ms I.M. and Ms I.A.", "64. On 31 January 1996, by order of the regional prosecutor, Ms Hadzhidimitrova, the investigation was transferred to the Regional Military Prosecutor's Office (Окръжна военна прокуратура). That decision was based on the finding that Mr Zabchekov had died after having been in police detention. The regional prosecutor stated, inter alia:\n“... for several hours immediately preceding [his] death, the minor Zabchekov, apprehended at 1 a.m. on 29 January 1996 while attempting to steal car parts, was taken by [police] officers ... and placed within the premises of the unit on duty in order to restrict his freedom of movement. Therefore, although he was not detained pursuant to section 35(1) taken in conjunction with section 33(1)(1) of the National Police Act [Закон за националната полиция], as a matter of fact Zabchekov was forcibly held in the police station for about three hours and in the course of his stay [there] ... his condition suddenly deteriorated, and he lost consciousness.”", "65. On 31 January 1996, having received the file on the case, the Regional Military Prosecutor's Office opened an investigation under a new file number (3-VIII/96, prosecutor's file 254/96). The case was assigned to a military investigator (военен следовател).\nDuring the following weeks the military investigator conducted new examinations of the police officers involved, questioned five persons who had spent the afternoon and evening of 28 January 1996 with Mr Zabchekov, and also heard Dr Mihailov and Dr Ivanova.", "66. Two of the police officers, Sergeant Penchev (A) and Sergeant Georgiev (F), mentioned Mr Zabchekov's ethnic origin in their oral evidence to the military investigator.\nA stated that when he had arrived at Beli Lom Street he had seen two persons emerging from the entrance of the building, one of whom had been “a Gypsy with a criminal record – Anguel Zabchekov”.\nIn his statement F. referred to the applicant's son as “the Gypsy” (three times), “the arrested” (seven times) and “Zabchekov” (twice).", "67. On 12 March 1996 the investigator conducted examinations of the witnesses Ms I.A., Ms I. M., C and D. His questions related solely to the number of times Mr Zabchekov had fallen to the ground during the chase on Beli Lom Street and the places where this had happened.\nOn 18 March 1996 the investigator appointed an expert to analyse the clothes which Mr Zabchekov had been wearing on 28 and 29 January 1996. In his report of 20 March 1996 the expert stated that no traces of shoe soles could be found but explained that microscopic remains from particles from a shoe sole would not normally be left on soft fabric.", "68. On 20 March 1996 the investigator conducted a reconstruction of the events during Mr Zabchekov's arrest in order to clarify the witnesses' evidence. Those taking part were Sergeant Mutafov (C), the young man who had been with him on 28 and 29 January (D), and the two persons who had observed the scene from their balconies, Ms I.A. and Ms I.M. The police officers who had arrived at Beli Lom Street after Mr Zabchekov was arrested by C did not participate in the reconstruction, which was almost exclusively concerned with the events before the arrival of the two police cars. The reconstruction was videotaped.", "69. On 11 April 1996 the applicant submitted to the Varna Military Prosecutor's Office a request for the exhumation of her son's body and for the assignment of a new medical expert, stating that her son had been buried in haste and that exhumation of his body was essential. The applicant suspected that her son's ribs might have been broken. She also submitted to the investigator, Mr Atanasov, two X-ray photographs of her son's head taken several months before his death, to be used for the purpose of establishing whether his skull had been “soft” or “thin”.", "70. On 17 or 18 April 1996 five medical experts were appointed to re-examine the conclusions as regards the causes of Mr Zabchekov's death. One of them, Dr Minchev, had participated in the initial group of experts. The other four were Professor Pavlov, head of the forensic department at the Medical University in Varna, Dr Kiuchukov, from the university's neurosurgery department, and Dr Dokov and Dr Radoinova, senior assistants in the forensic department of the same university. The experts were asked the following questions:\n“1. What injuries did Zabchekov sustain? What was the cause of death? 2. In what manner were the injuries sustained and by how many blows could they have been caused? Could the injuries have been caused by consecutive falls (in accordance with the witnesses' statements and the findings of the investigation reconstruction as recorded on video), or were they the result of direct blows?", "71. On 26 April 1996 the investigator held a confrontation between all the police officers involved. On the same day three additional witnesses were questioned.\nOn 23 May 1996 the applicant repeated her request for an exhumation. On 29 May 1996 another witness was questioned.\nOn 11 June 1996 Mr Dimitrov, a prosecutor from the Regional Military Prosecutor's Office, sent the applicant a copy of his information note on the proceedings. The note stated, inter alia, that exhumation could be envisaged if this was considered necessary by the five medical experts, who had not yet submitted their opinion.", "72. On 28 June 1996 the five experts delivered their report (“the second report”), which was based on an examination of the material in the investigation file. They had also seen the videotape of the reconstruction of Mr Zabchekov's arrest, which had been recorded on 20 March 1996.", "73. The experts confirmed that Mr Zabchekov's death had been caused by an epidural oedema resulting from a skull fracture. They also stated, inter alia, that the fatal injury could have been inflicted by a kick, a punch or a blow by a blunt object, or also by a fall and a collision against a “flat broad surface” (широка удряща повърхност). They noted that the autopsy had not recorded any morphological data to allow the identification of the object which had caused the injuries.\nThe second report indicated that the blow which had caused the skull fracture had not been very strong. That conclusion was based on the “particular features of the skull structure (as witnessed by the X-ray photographs enclosed and the thickness as described [in the autopsy report])”.", "74. Contrary to the first medical report, which had stated that the interval between the skull injury and Mr Zabchekov's death had been approximately four to six hours, the report of the five experts concluded:\n“The haematoma ... which caused the death of Zabchekov, had been present for at least ten hours before the time of death. The basis for this conclusion is the appearance of the haematoma (blood clot of dark red colour), which is clearly visible on the photographs attached to the file. Clots of that kind, without the presence of liquid blood, are formed during a period of more than ten hours from the moment when they were caused. During this period the patients' condition is usually characterised by the so-called 'lucid interval' – the time during which they do not display visible warning signs. Their condition gradually deteriorates ... they develop a headache, speech disturbances and problems of coordination of movement, [they] become unstable and sleepy, they stagger, etc., until they fall into a coma.”", "75. The photographs relied on by the experts were taken at the time of the autopsy, which began at 11.30 a.m. on 29 January 1996.", "76. The experts also found, in view of the amount of alcohol found in Mr Zabchekov's blood, that the symptoms resulting from the head injury had been masked by the effects of alcohol.", "77. The report of the five experts also dealt with the other injuries to Mr Zabchekov's body:\n“The haematoma on the right side of the chest is the result of a blow by or against a flat object with a broad hitting surface, which could have taken the form of a kick, a fall and a collision against a larger object and other objects. The general appearance of the bruise corresponds to the imprint of the clothes of the deceased, which indicates that the blow was inflicted through the clothes ... The bruises and injuries to the right side of the forehead, the two wrist joints and the lower lip are the result of the use of hard, blunt and/or sharp-edged objects with a limited hitting surface. The characteristics of the injuries to the two wrist joints make it possible to conclude that they were caused when the handcuffs were put on, in accordance with the available information ...”", "78. On 25 July 1996 the investigator drew up a report proposing to terminate the proceedings.", "79. On 31 July 1996 the Regional Military Prosecutor's Office closed the investigation as there was no connection between the acts of the police and the death of Mr Zabchekov. That conclusion was based on the finding of the second medical report that at least ten hours had passed between the injury and death.", "80. On 6 August 1996 the applicant lodged an appeal with the National Military Prosecutor's Office (Прокуратура на въоръжените сили). She contended that the investigation had been incomplete and pointed to the repeated refusal to carry out an exhumation, to the alleged discrepancies between the evidence of different witnesses and to the lack of explanation for certain facts, including all the injuries to Mr Zabchekov's body.", "81. On 18 December 1996 the National Military Prosecutor's Office confirmed the closure of the investigation and refused the applicant's requests. Its decision stated, inter alia:\n“[A]part from the physical force used during the arrest of Zabchekov for attempting to steal from cars, there is no evidence that any violence was used against him by police officers, whether ... inside or outside the ... police station. Furthermore, the firm conclusion of the report of the five experts, who are highly qualified in their field, is that the lethal injury was caused more than ten hours prior to death.”", "82. It was also decided to refer the case back to the Regional Prosecutor's Office in Razgrad, which was competent to deal with the question whether a criminal act had been committed by a person other than a police officer.", "83. On 20 January 1997 the regional prosecutor, Ms Hadzhidimitrova, referred the case to the investigator, Mr Neshev. She noted that the investigation in respect of the police had been closed on the basis of the finding that the fatal injury had been inflicted more than ten hours prior to the death of Mr Zabchekov. Therefore, further evidence needed to be collected as regard the whereabouts and the condition of Mr Zabchekov before 7 p.m. on 28 January 1996.", "84. The additional investigation entailed the examination of the applicant and six other witnesses on 23 January 1997 by Mr Neshev.", "85. On 23 and 24 January 1997 the applicant made further requests for the exhumation of the body and for a fresh forensic examination, claiming that there were inconsistencies in the evidence. That was rejected by the Razgrad Regional Prosecutor's Office on 31 January 1997 as being unnecessary.", "86. The applicant complained to the Chief Public Prosecutor's Office (Главен прокурор). She stated, inter alia, that the prosecutors had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his arrest.", "87. On 17 February 1997 Mr Neshev summoned the applicant (represented by counsel) to allow her to consult the file on the investigation. The applicant made a number of requests and objections concerning shortcomings in the investigation. In particular, she stated that there had been fundamental contradictions between the first and the second medical reports, and that it was clearly impossible for a person suffering from such a grave injury as that found by the autopsy to steal car parts and resist arrest. The applicant again requested the exhumation of the body and the appointment of experts to answer the questions raised in her previous requests.", "88. On 18 February 1997 Mr Neshev drew up a report stating that the additional investigation ordered on 20 January 1997 had not disclosed evidence that Mr Zabchekov had been beaten prior to his arrest. It was therefore proposed to suspend the investigation.", "89. By an order of 4 March 1997 the regional prosecutor, Ms Hadzhidimitrova, suspended the criminal proceedings as all available evidence had been collected and it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted.", "90. The decision noted the findings of the military prosecutors, in particular those concerning the skull fracture, and confirmed them. In respect of the other bodily injuries, the prosecutor stated that they had not placed Mr Zabchekov's life in danger.\nThe decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good health.", "91. On 10 March 1997 the applicant appealed to the Chief Public Prosecutor against the decision to suspend the proceedings. On 20 March 1997 the Chief Public Prosecutor's Office confirmed the suspension of the proceedings.", "92. The applicant has submitted four colour photographs of the dead body of Mr Zabchekov and a photograph of the jacket which he was wearing before his death. The photographs were taken by journalists on 30 January 1996 at the applicant's home, after the autopsy and the return of the body for burial.", "93. Two of the photographs are of Mr Zabchekov's face. The hair covers half of the forehead. Above and over the left eyebrow can be seen a bluish-purple bruise. The left eyelid is of a bluish colour. A bruise can also be seen on the lips, on the left side of the mouth.", "94. On the other two photographs a purple bruise colour can be seen on Mr Zabchekov's chest, on its right side, partly under the right armpit. Wounds are visible on Mr Zabchekov's right wrist.", "95. On an unspecified date the applicant, acting through the European Roma Rights Centre, a non-governmental organisation based in Budapest, solicited the opinion of Professor Jorgen Thomsen, State Pathologist, Institute of Forensic Medicine, University of Southern Denmark, Odense, a member of the United Nations Standing Team of Forensic Experts. Professor Thomsen gave a written opinion dated 4 February 1999. Professor Thomsen had at his disposal, inter alia, the description of what had allegedly happened in the case and extracts from the autopsy report and the reports of the forensic experts.\nProfessor Thomsen stated, inter alia:\n“An epidural haematoma is usually caused by a fall against a hard surface or a strong blow with a blunt object. It is well known that a fall against a hard surface will often leave so-called contre-coup lesions. It is regrettable that the presence or absence of such lesions have not been mentioned. It has been mentioned that the deceased had a thin skull. In my opinion that is not an apologising factor in cases of interpersonal violence, as it is usually not known if a skull is thick or thin and it is inherent in the possible effects of violence that a person may have a thin skull. Together with the epidural haematoma there is usually a fracture (fissure) in the temporal bone and a rupture of the middle meningeal artery. The haemorrhage is thus arterial. It is in the beginning limited by the attachment of the dura to the inside of the bone. There is thus often a lucid interval that may last several hours, but often the interval is not longer than a couple of hours. If the traumatic lesion involves the brain with a concussion or contusions there is usually not a lucid interval.\nI agree with the two forensic reports that the cause of death was the epidural haematoma and that it was caused by one of the types of traumas mentioned. It may well have happened before the victim was arrested, but it can in no way be excluded that he sustained the fatal lesion during his stay in the police centre. I do not agree with the statement that there was a lapse of ten hours from the trauma until death. It was based on the appearance of the blood clot. It is known that the blood after death can take various forms and even after death there is enzymatic biochemical activity that may change the blood in an unpredictable way and in various ways in different locations.\nWith reference to the other lesions these are not likely to have been sustained from the same trauma as the epidural haematoma. They are the result of blunt violence such as beating, kicking and/or falls, and may have been sustained during the stay in police detention.\nThe marks on the wrists are characteristically the results of handcuffing. Handcuffs will usually not leave marks, but may if they are too tight, if the person is struggling, or if he is dragged by the handcuffs.\nIn summary, it cannot be determined if the epidural haematoma was caused by a fall or other types of blunt violence. It may well have been sustained just before or during the stay in police detention. An epidural haematoma is curable if an operation with evacuation of the haematoma is performed soon enough. If admitted to hospital sooner, Mr Zabchekov might have been saved.”", "96. The Government submitted that Mr Zabchekov had a record at the Juvenile Offenders Pedagogic Centre (Детска педагогическа стая) and at the police in Razgrad on account of numerous alleged thefts.", "97. A note dated 3 July 1995, issued by the Juvenile Centre and addressed to the police in Razgrad, stated that Mr Zabchekov, who at that time was 16 years old, had a speech defect and was mentally retarded. Another note, dated 18 November 1995, reiterated those findings.\nThe Government explained that on 7 November 1995 the applicant had been heard by an investigator in Razgrad in connection with a criminal investigation into thefts allegedly committed by her son, Mr Zabchekov. She had stated, inter alia, that her son had always had a stammer. He had been ill since the age of 3. In particular, he had had moments when he could not breathe and his skin became bluish. His eyes had often been swollen and he had fainted during moments of sudden fear. Mr Zabchekov had seen doctors who had stated that he had problems with his spine. The applicant had mentioned the name of a Dr Miceva who had all the documents concerning the medical examinations carried out in respect of her son.", "98. On 14 December 1995 Mr Zabchekov had been questioned in connection with criminal proceedings concerning thefts. Asked about his health, he had stated that he had been prone to fainting and pain in his head and eyes. On 4 January 1996 an investigator from the District Investigation Service in Razgrad had opened criminal proceedings against Mr Zabchekov and other persons on charges of theft. On 15 January 1996 Mr Zabchekov had been questioned and had stated, inter alia, that he had been treated by Dr Miceva, a psychiatrist, and that he had been taking medication. Mr Zabchekov's lawyer had requested a psychiatric examination, which had been scheduled for 30 January 1996." ]

[ 0, 1, 2 ]

[ "6. In issue No. 4 of a newspaper “Gazeta Polska”, of which the applicant was an editor-in-chief, a list of informants of the communist secret police was published. This list had been submitted to Parliament (Sejm) in June 1992 by the Minister of Internal Affairs, following a resolution of the Parliament. The list was originally meant to remain strictly confidential, but its contents were subsequently immediately leaked to the public. In the same issue of the newspaper, apart from the list, the following text, entitled “Deleted at the Last Minute” (“Wykreśleni w ostatniej chwili”), was published: “[The Minister of Internal Affairs] was until the last minute verifying data which he had to submit to Parliament, pursuant to its resolution. A few hours before the list was submitted to [Parliament] he had deleted several names from the list, for lack of conclusive evidence. It transpires from our information that these names were: [...]”.The names of three well-known politicians followed.", "7. In issue No. 5 of the same newspaper, a text entitled “The List of Informants - a Supplement” (“Lista konfidentów - uzupełnienie”) was published, which read as follows: “As a result of a misunderstanding, we did not include the following name in the list of persons deleted at the last minute from the Minister of Interior's document, which was published in issue No. 4 of the Gazeta Polska: S.N, and belonging to a category of TW (an informant), with a pseudonym [...,] who had been recruited [by the secret police] during his stay in prison.” (“Z wydrukowanej w nr 4 Gazety Polskiej listy <Wykreslonych w ostatniej chwili> wypadło nam w wyniku nieporozumienia nazwisko S.N., kategoria TW, kryptonim [...], który został zwerbowany do współpracy w więzieniu.”)", "8. On 30 June 1993 S. N., who was also a candidate for Parliament in elections scheduled for September 1993, brought a court action against the applicant before the Warsaw Regional Court in accordance with Article 139 of the Election Act. He submitted that the newspaper of which the applicant was an editor-in-chief had published information that he had been an informant of the secret police of the former communist regime. He contended that this was false. He demanded that the applicant publicly revoke this statement and apologise for it by placing paid announcements in numerous newspapers.", "9. On 1 July 1993 the Warsaw Regional Court declared itself incompetent to deal with the matter and transmitted the case to the Łódź Regional Court.", "10. On 22 July 1993 the Łódź Regional Court decided that the case should be considered in ordinary contentious proceedings applicable to claims for protection of reputation under Article 24 of the Civil Code and transmitted the case to the Warsaw Regional Court. Upon appeal, the Łódź Court of Appeal on 4 August 1993 quashed this decision as it considered that the case should be dealt with by the Łódź Regional Court in special proceedings governed by Article 139 of the Election Act.", "11. On 6 August 1993 the Łódź Regional Court summoned the applicant by fax sent to his work address to attend a court hearing scheduled for 7 August 1993. On the same day the applicant's lawyer sent a letter to the court in which he protested against the despatch of the summons to the applicant's place of work instead of to his private address and informed the court that the applicant should be considered as not having been duly summoned. He requested that the hearing be adjourned.", "12. At the hearing on 7 August 1993 the Łódź Regional Court summoned the applicant to adduce evidence to show that the information concerning the plaintiff S. N. and his alleged involvement with the communist secret police was true.", "13. On 12 August 1993 the applicant submitted a power of attorney in favour of his representative and requested that the case be pursued by way of ordinary contentious proceedings as the proceedings provided for by Article 139 of the Election Act had not led to a decision on the merits within three-day period stipulated in this Act. He requested the court to call as witnesses the former and current Ministers of Internal Affairs as well as J.K., a well-known politician, and to request the Ministry to submit various documents in evidence.", "14. On 24 August 1993 the Łódź Regional Court summoned the applicant and his lawyer by notifications sent by fax to their respective work and office addresses to the hearing fixed for 25 August 1993.", "15. At the hearing on 25 August 1993 before the Łódź Regional Court the applicant's lawyer was present, but the applicant was not. The court pronounced its decision on the same day. It upheld the plaintiff's claim and ordered the applicant to publicly revoke his statements by placing relevant announcements in numerous newspapers.", "16. In reaching this decision, the Łódź Regional Court considered that in the proceedings in question the time-limits for serving summonses set out in the Code of Civil Procedure did not apply. The applicant's lawyer had been aware that the proceedings had been instituted since 6 August 1993; he had been given a power of attorney on 11 August 1993 and had submitted the request to produce evidence on 16 August 1993. Thus, he had had enough time to prepare his arguments. The court indicated that it had requested the Ministry of Internal Affairs to produce the documents requested by the applicant. On 20 August 1993 the Ministry had refused to do so as those documents were subject to official secrecy and could only be produced in court in criminal proceedings, in accordance with the Bureau of State Security Act. The court further observed that it could not call the witnesses proposed by the applicant; they could only have given evidence as to whether S. N. had been put on the list of informants prepared by the Ministry, but not as to whether S. N had in fact been an informant. Moreover, in view of the serious nature of the allegations advanced against S.N. by the applicant's newspaper, in the absence of any documentary evidence these allegations could not have been considered proved, even if they had been confirmed by the witnesses. Thus, as the applicant had not adduced any other evidence to prove that the information concerning S. N. was true, the court found against him.", "17. The applicant appealed against this decision, invoking, inter alia, Article 6 of the Convention. He contended that the proceedings were null and void as neither the applicant nor his lawyer had been summoned to the hearing on 25 August 1993 with at least three-days' notice, as provided for by Article 149 § 3 of the Code of Civil Procedure. Furthermore, the applicant's interests could not be protected properly as he did not have sufficient time to prepare his arguments between the date of receipt of the summons and the date of the hearing. The applicant further argued that, as all his requests to call witnesses and evidence had been refused, he had been denied a reasonable opportunity to prove the facts essential for the merits of the decision.", "18. On 31 August 1993 the Łódź Court of Appeal dismissed the appeal. The court considered that the complaint concerning the summons was unfounded. Both the applicant and his lawyer had been summoned one day before the hearing, which was justified, given the special nature of the proceedings under Article 139 of the Election Act. The court recalled that, although this provision provided for such cases to be decided within 48 hours, failure to do so did not oblige the court to deal with the case according to the normal procedures for contentious civil proceedings laid down in the provisions of the Code of Civil Procedure. Moreover, the applicant, being aware of the special nature of the proceedings, should have expected that he might be summoned from one day to the next and should have taken effective measures to ensure that the summons reached him in time. These considerations were especially relevant as the applicant was represented by a lawyer who was under a professional obligation to take appropriate measures to this end. In any event, the lawyer received the summons in time to appear at the hearing, even though he contended, unconvincingly, that he had learned about the date of the hearing from a journalist. \nAs to the merits, the court noted that the lower court had requested the Ministry to submit documents requested by the applicant. However, this request had been refused. In the light of Article 12 of the Bureau of State Security Act, the refusal had to be considered lawful. Moreover, the very fact that an individual's name had been included in the list prepared by the Ministry could not be deemed proof that this person had in fact been an informant. The veracity of information contained in the list had been repeatedly called into question both by interested parties and, more widely, in numerous press articles. It had been emphasised that the list had been prepared and used as a weapon in a political battle, intended to discredit the persons concerned. Therefore, the veracity of a claim that a particular person had been a police informant could not possibly be established solely on the basis of the list itself and without prior verification of the list and, in particular, without some legally established means whereby the rights of persons branded as police informants could be defended. The court accordingly considered that the burden of proof lay with the defendant, who had failed to demonstrate that, at the time of the publication of the information at issue, he had possessed sufficient evidence that S.N. had been an informant as alleged." ]

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[ "9. The case mainly concerns events which took place in May 1994 at Deveboyu hamlet of Çağlayan village in the Kulp district of the Diyarbakır province in south-east Turkey. From Çağlayan village the road goes to Zeyrek, to whose gendarme station Çağlayan village and its hamlets are attached. Zeyrek is on the main road between the towns of Kulp and Lice.\nThe applicant alleges that on 6 May 1994 the State's security forces burned and evacuated the hamlet of Deveboyu and that on 24 May 1994 the same soldiers returned to Deveboyu detaining the applicant's brothers (Selim and Hasan Orhan) and his son (Cezayir Orhan), after which those three relatives (“the Orhans”) disappeared.", "10. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 6 to 8 October 1999. \nThey heard the following witnesses: the applicant; Adnan Orhan (son of Selim Orhan); Mehmet Emre (the applicant's cousin from the neighbouring hamlet of Gümüşsuyu of Emalı village); Mehmet Can (son-in-law of Selim Orhan who lived in Diyarbakır at the relevant time); Ahmet Potaş (Commander of Zeyrek Gendarme station); Ali Ergülmez (Commander of Kulp District Gendarme Station); Ümit Şenocak (Deputy Commander of Kulp District Gendarme Station); Kamil Taşcı (Commander of Kulp Central Gendarme Station); Şahap Yaralı (Commander of Lice District Gendarme Station); Hasan Çakır (Commander of Lice Central Gendarme Station); Aziz Yıldız (succeeded Hasan Çakır); Mustafa Atagün (prosecutor in the office of Diyarbakır Chief Public Prosecutor); and Mehmet Yönder (a Kulp public prosecutor).", "11. The transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. Additionally, the parties have provided further documents to the Court which had been requested by the Commission. \nThe submissions by the parties on the facts (Sections A and B), the material submitted by the parties in the present case (Sections C and D), relevant material submitted by the Government in the Çiçek case (Çiçek v. Turkey, no. 25704/94, ECHR 2001 – Section E below) together with the oral evidence to the Delegates (Section F) are summarised below.", "12. Between 1992-1994 a large number of disappearances and unexplained killings occurred in south-eastern Turkey in the context of counter-insurgency measures against the PKK. The province of Diyarbakır and its districts of Lice and Kulp were particularly affected.", "13. The applicant, Salih Orhan, was born in 1955. Selim and Hasan Orhan (born in 1954) and were his only brothers. His eldest son, Cezayir, was born in 1977. At the relevant time, all lived in Deveboyu, the applicant and his brothers each owning separate houses.", "14. On 20 April 1994 military forces of 300-400 men with over 100 vehicles pitched camp near Deveboyu.", "15. On 6 May 1994 at around 6.00 a.m. a number of the soldiers entered the village. The village imam announced that their Commander required the villagers to assemble in front of the mosque, which they did. The Commander then announced that Çağlayan village (including the Deveoboyu hamlet) was to be burnt, but that he would allow the villagers to remove their possessions. The applicant returned to his house and started to remove his possessions. As he was doing so, the soldiers set fire to his and others' houses. Having completed this task and given the villagers three days to leave the village, the soldiers moved on.", "16. The following day the applicant, together with other villagers, went to Kulp District Gendarme Command to report the incident and to seek permission to stay in the area long enough to harvest the crops. Ali Ergülmez, the commander of that station, told him that the soldiers had come from Bolu and that the villagers could remain until the harvest.", "17. On 24 May 1994 more soldiers were seen in the vicinity of the village. The Orhans were repairing their houses and did not notice the soldiers arriving. Each of the three men was taken into custody by the soldiers. One of the soldiers explained that the Commander wanted to see them, that the soldiers did not know the way and that they could come back to the village afterwards. They left on foot up the hills. At around 4.30 p.m. on the same day, the soldiers and the Orhans were seen in the neighbouring hamlet of Gümüssuyu. They were smoking cigarettes and appeared to be in good health.", "18. On 25 May 1994 the applicant went to Zeyrek Gendarme station and enquired about their whereabouts. Ahmet Potaş told him that the Orhans had been taken to Kulp. He went to Kulp and spoke to Ali Ergülmez.", "19. Having obtained no information as to the whereabouts of the Orhans, the applicant made formal complaints to the Kulp Chief Public Prosecutor, the Diyarbakır State Security Court, the State of Emergency Regional Governor and to the Diyarbakır Public Order High Command.", "20. Approximately one month after the Orhans' disappearance the applicant was put in contact with Ramazan Ayçiçek. The latter had been detained in Lice Boarding School with the Orhans before being transferred to Lice prison. He had seen the Orhans and he told the applicant that all three Orhans appeared to be “in a bad way”.", "21. The applicant received no further news about the Orhans or any response to his complaints about the burning of Deveboyu.", "22. The Government did not dispute that there had been numerous counter insurgency military operations in the province of Diyarbakır at the relevant time.", "23. However, they disputed three main questions of fact. In the first place, they maintained that there was no military operation on 6 or 24 May 1994 in Çağlayan village as alleged or at all and they referred in this respect to the operations' record submitted to the Court in August 2000 (see paragraph 124 below). Secondly, and consequently, the Orhans had not been taken into custody. The Orhans were not wanted for any offence. The military cannot take any person they apprehend into custody. They must turn such persons over to the gendarmes and the records of all relevant gendarme stations show that they were not detained. Thirdly, full investigations were carried out by the appropriate authorities on foot of the applicant's complaints, which authorities concluded that there were no facts requiring to be further pursued or offences requiring prosecution.", "24. The Government considered therefore that it has not been proved beyond reasonable doubt that Çağlayan village was burned, or that the Orhans were detained, by the security forces. Accordingly, they submitted that it had not been demonstrated that any such destruction or disappearances were attributable to the State.", "25. On 20 April 1994 between 300 and 400 soldiers with over 100 vehicles arrived in Deveboyu. The soldiers stayed near the hamlet. Along with other villagers, the applicant carried the soldiers' tents, backpacks and other equipment. During this time, Ahmet Potaş, the Zeyrek Gendarme Station Commander, and those under his command were bringing equipment to the soldiers. Ahmet Potaş had earlier told the villagers that the soldiers were from the Bolu Commando Unit, that no news had been received from persons who had been taken into custody earlier by that unit and that the villagers were to try not to be taken into custody and to be cautious.", "26. After staying nearly 3 days beside the village, the soldiers went to the Bingöl Muş region on operation. At around 6.00 am on 6 May 1994, they returned to the hamlet and some of the soldiers gathered in front of the mosque. The village imam announced that the commander of the security forces required the villagers to assemble in front of the mosque. All villagers so assembled. The unit commander then told them to remove their belongings within one hour as the village would be burned. They went to their houses and began removing their belongings but, as they were doing so, the soldiers began burning the houses. After they burned the village, the soldiers gave them three days to evacuate the village and left in the direction of Kulp. After the soldiers left, the villagers managed to save a small part of their belongings, most of which were irreparably damaged by the fires.", "27. On 7 May 1994 they went to Kulp District Gendarme Command and reported the incident. They were told that the soldiers had come from Bolu. They explained that they could live in tents until the harvest and were given permission to do so. They began to make preparations for the harvest and attempted to repair the houses which had not been completely destroyed. The soldiers were still on operations in the vicinity of the village and, on seeing them arrive, the villagers would hide outside the village.", "28. On 24 May 1994 soldiers were seen in the vicinity of the village and the men hid. However, the Orhans were busy repairing the houses and did not see the soldiers. The women and children of the village saw the soldiers taking them away. The applicant hid from the soldiers that day but was told by the women and children of the village that the soldiers who took the Orhans were those who had burned the village. Neither of the Orhans had been in custody before and Selim was an honorary imam. At around 4.30 p.m. that day the soldiers and the Orhans had reached Gümüşsuyu and people from that hamlet saw the Orhans with the soldiers. The Orhans were smoking cigarettes with the soldiers and were fine.", "29. On 25 May 1994 some villagers went to the Zeyrek Gendarme Station and recounted the incident to Ahmet Potaş who said that the Orhans had been taken to Kulp. They therefore went to Kulp. However, the Commander in Kulp told them that he had no information.", "30. The applicant therefore filed, to no avail, applications with the Kulp Chief Public Prosecutor, the Public Prosecutor at the Diyarbakır State Security Court, the State of Emergency Regional Governor and the Public Order High Command in Diyarbakır.", "31. One month later the applicant heard that a person called Ramazan Ayçiçek, who had previously been held in custody in Lice Boarding School, had been transferred to Lice Prison. The applicant went to see him there and Ramazan Ayçiçek told him that he had seen the Orhans during his detention in the Lice Boarding School and that they were in very bad condition.", "32. The Orhans had been arrested in Deveboyu during an operation by gendarmes on 24 May 1994 and no news had been received since then from them despite applications made. The applicant requested information.", "33. During a military operation in Çağlayan, the security forces had taken the Orhans with them, asking them to act as guides. The applicant had had no news since and he requested assistance in obtaining information.", "34. The applicant also submitted:\n– Public statement on Turkey of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“CPT”), December 1992;\n– Summary results concerning the inquiry on Turkey by the United Nations' (“UN”) Committee Against Torture (“CAT”), November 1993;\n– Report of the Human Rights Watch World, 1994;\n– Report of the Turkish Human Rights' Association, 1994;\n– Report entitled “Advocacy and the Rule of Law in Turkey”, of the KHRP, Medico International and the Human Rights' Committee of the Bar of England and Wales, January 1995; \n– Amnesty International report entitled “Turkey: Mothers of disappeared take action”, May 1995;\n– Decision of the CAT in Ismail Aslan v. Turkey, 8 May 1996;\n– Report of the KHRP and Medico International entitled “The destruction of villages in South-East Turkey”, June 1996; \n– Public statement on Turkey of the CPT, December 1996;\n– Report of the KHRP entitled “A Report on Disappearances in Turkey”, November 1996; \n– UN Working Group Report on Disappearances in Turkey, 1996;\n– Report of the Committee on Human Rights in Europe, September 1998;\n– Report of the Committee on Migration, Refugees and Demography.", "35. He confirmed his intention to continue with the present application and the contents of his statement of 3 November 1994.", "36. On 24 April 1995 Diyarbakır police officers came to his house and told his wife that that a public prosecutor wanted to take his statement. Although he hesitated to do so, he eventually went to the Diyarbakır Chief Public Prosecutor's office and made a detailed statement. The prosecutor asked in an angry voice why he had taken his case to a foreign country and who had so advised him. The applicant did not know what the prosecutor wrote down in the statement as it was not read back to him. He was asked to sign the statement and he did.", "37. In 1994 the witness was 12 years old. He attended Lice Boarding School from late 1993 until the end of April 1994. Otherwise he lived at home with his father (Selim Orhan) and family. Lice Boarding School had two main buildings: one for teaching and administration, and one for accommodation. The military building was about 200 metres away from the school accommodation buildings.", "38. The witness saw many military vehicles coming to the military building. On one occasion, he saw people in plain clothes in one such vehicle and he and his friends believed that those people had been detained. He had also seen some soldiers with blue hats within the school compound.", "39. Towards the end of April 1994 the witness returned to Deveboyu as he was unwell. There were many soldiers in the area and some of then had blue berets. About 15 days thereafter 250-300 soldiers came and burned the village. Two or three soldiers burned his father's house with dry grass and some kind of powder.", "40. Two weeks later soldiers came back to the village on foot at about 7-8.00 a.m. The witness was in a garden about 20-25 metres from his house. The soldiers asked his father (Selim) for his identity card and he gave it to them. When they asked if any other men were in the village, Hasan and Cezayir came forward. They were asked for their identity cards and they produced them. When the soldiers asked the witness' father to go with them, his father asked why and the witness then moved closer. The witness asked his father where he was going and his father said that the soldiers wanted a guide. The witness asked the commander where he was taking the Orhans, and the latter replied that they would be released.", "41. At that stage his mother, brothers and sisters had arrived and all followed the soldiers as they took the Orhans away. They were crying. His uncle's wife produced her Koran and begged them not to take the Orhans. At that stage the witness heard the commander speak on his radio saying that the named persons were with him, but that the families were objecting to them being brought away and asking what to do. The voice on the radio said to bring the Orhans anyhow. The group followed the Orhans and the soldiers for a while until the commander said that, if they continued following, bad things would happen. That was the last time the witness saw his father.", "42. In May 1994 the witness was living in Diyarbakır. One day he returned home from work and his wife told him that Deveboyu had been burned. The following day he took his vehicle to Deveboyu to help the villagers, including his relatives. On his way there he saw a large number of soldiers in the area, about 300-400. The village was still burning when he arrived and he was told that the soldiers had burned the village. He helped about 8 families to remove their remaining possessions to Diyarbakır.", "43. About 19 days later his wife told him that her father (Selim) together with Hasan and Cezayir Orhan had been taken into custody. He and his wife again then went to Deveboyu in his vehicle and were told when they arrived that the Orhans had been taken away by soldiers.", "44. In May 1994 the witness was living in Gümüşsuyu. One day, he saw the Orhans in the custody of some soldiers in Gümüşsuyu. That evening, the applicant came to Gümüşsuyu and asked if anyone had seen the Orhans and he told the applicant what he had seen.", "45. The next morning the witness went to Zeyrek Gendarme Station with an old man from Gümüşsuyu to ask what had happened to the Orhans. He spoke to Ahmet Potaş who said that the Orhans had been taken to Kulp. After leaving Zeyrek station, he met the applicant and told him what Ahmet Potaş had said.", "46. These were submitted to the Delegates during the taking of evidence.", "47. The sketch was completed by Adnan Orhan while giving evidence before the Delegates. 1. First investigation file: File No. 1994/66, Kulp Chief Public Prosecutor, 1994-1995\n(a) Petition dated 8 June 1994 from the applicant to a Kulp public prosecutor", "48. During a military operation conducted at Deveboyu on 24 May 1994, the Orhans were taken by soldiers who told them that they were needed as guides and that the soldiers' commander wanted them anyway. Since 15 days had passed without any news, the applicant requested reliable information about the Orhans' current circumstances. \n(b) Statement dated 8 June 1994 of the applicant taken by a Kulp public prosecutor", "49. The Orhans had been taken away from Deveboyu by soldiers on 24 May 1994. The soldiers asked them to act as guides and told them that, in any event, the soldiers' commander wanted them. Since then, the applicant had not heard from the Orhans and he requested an investigation into their fate. \n(c) Letter dated 8 June 1994 from a Kulp public prosecutor to Kulp District Gendarme Command", "50. The relatives of the Orhans of Deveboyu had made an application about the Orhans who were taken on 24 May 1994 by soldiers and about whom no news had been received. The addressee was requested to “investigate” and to revert within one week.\n(d) Letter dated 11 July 1994 from a Kulp public prosecutor to the Lice Chief Public Prosecutor", "51. Reference was made to the applicant's complaint about the Orhans' apprehension on 24 May 1994 and their subsequent disappearance. It had been reported that the Orhans were, at the time, detained by the military units billeted in Lice Boarding School. The addressee was requested to investigate whether the Orhans were detained by/in the company of the units billeted at the school and whether the Chief Public Prosecutor's Office had any current proceedings against the Orhans. \n(e) Letter dated 22 July 1994 from Kulp Deputy District Gendarme Commander (Ümit Şenocak) to the Kulp Chief Public Prosecutor", "52. Further to the Kulp public prosecutor's letter of 8 June 1994, an investigation and inquiry had been carried out. The Orhans had not been detained by his command and his command did not participate in an operation on or around the date indicated. The search for the Orhans would continue and further developments would be reported.\n(f) Letter dated 18 August 1994 from a Kulp public prosecutor to Kulp District Gendarme Command", "53. The addressee was requested to secure the presence of the applicant and of Kamil Ataklı (the muhtar of Çağlayan) at the office of the Kulp Chief Public Prosecutor as soon as possible. \n(g) Statement of the applicant dated 22 August 1994 taken by a Kulp public prosecutor", "54. The Orhans were apprehended by soldiers and were detained in Kulp overnight and then in Lice Boarding School for 20 days. The applicant had no news. He had petitioned, to no avail, the Diyarbakır State of Emergency Regional Governor, the Provincial Governor, the Provincial Gendarme Brigade Command and Kulp Central Gendarme Command. The soldiers had indicated that there was “complaint” against the Orhans.\n(h) Letter dated 3 September 1994 from a Kulp public prosecutor to the Chief Public Prosecutor, Diyarbakır State Security Court", "55. The addressee was to confirm whether the Orhans had been referred to the addressee to be detained. \n(i) Statement of the muhtar of Çağlayan village dated 23 September 1994 taken by a Kulp public prosecutor", "56. About four months previously Bolu Commando Brigade arrived in Deveboyu on operation. He was told about the Orhans being taken away by soldiers of that brigade a few days after it took place. He was told that the children of those taken away had followed the soldiers and the Orhans for some time but were told by the commanding officer on the radio that the Orhans would be released. He went to Zeyrek station and was told that the soldiers had gone towards Lice on operation, accompanied by civilians. \n(j) Statement of the applicant dated 23 September 1994 taken by a Kulp public prosecutor", "57. He had already submitted a petition (8 June 1994) and made a statement (22 August 1994) to that office. He still had no news of the Orhans and his search continued. He requested that the Orhans be found and that those who detained them be punished.\n(k) A letter dated 23 September 1994 from Ali Ergülmez, Kulp District Gendarme Commander to the Kulp Chief Public Prosecutor", "58. The persons mentioned in the letter of 18 August 1994 had moved.\n(l) Letter dated 30 September 1994 from a Kulp public prosecutor to the Public Order Branch Directorate, Diyarbakır", "59. The addressee was asked whether it had detained the Orhans. Stamps on the letter, of the Chief of Administration and of the Prevention of Terrorism Directorate, dated October 1994, stated that the Orhans were not wanted and did not have criminal records.\n(m) Letters dated 3 October 1994 from a Kulp public prosecutor to the Chief Public Prosecutor, Diyarbakır State Security Court and to the Diyarbakır Chief Public Prosecutor.", "60. The addressees were asked to confirm, for the purposes of a preliminary investigation, whether the Orhans had been referred to them to be detained or whether they were under arrest. A stamp on the former letter indicates that the Chief Public Prosecutor of the Diyarbakır State Security Court did not find the Orhans' names in that office's records.\n(n) Letter dated 3 October 1994 from the Diyarbakır Chief Public Prosecutor to the Kulp Chief Public Prosecutor", "61. Pursuant to the letter of 3 October 1994, a search through the computer records for 1993 and 1994 did not reveal the Orhans' names. The addressee was referred to the Chief Public Prosecutor of the Diyarbakır State Security Court.\n(o) Letter dated 20 October 1994 from the Director of the Public Order Division of the Security Directorate, Governor of Diyarbakır to the Kulp Chief Public Prosecutor", "62. Pursuant to the Kulp Chief Public Prosecutor's letter of 30 September 1994, an inquiry had been carried out. The Orhans had not been detained and were not wanted by the Security Directorate.\n(p) Letter dated 24 October 1994 from the Chief Public Prosecutor, Diyarbakır State Security Court to the Kulp Chief Public Prosecutor", "63. The Orhans were not in that court's records.\n(q) Letter dated 6 April 1995 from a Kulp public prosecutor to the Lice Chief Public Prosecutor", "64. A response was requested to the unanswered letter of 11 July 1994. \n(r) Statement of the applicant dated 2 May 1995 made to the Diyarbakır Chief Public Prosecutor (Mustafa Atagün)", "65. The statement records that a letter of 20 April 1995 from the Ministry of Justice, which was read to the applicant, had referred to the applicant's Strasbourg application and requested the Diyarbakır Chief Public Prosecutor to ensure the investigation of the matter by the Lice Chief Public Prosecutor and to take the applicant's statement. The applicant was also to be asked whether the signature on the form of authority in favour of British lawyers was his. Consideration was to be given to the necessity of determining, as a matter of priority, whether or not an investigation was to be opened under Decree no. 285. The Ministry was to be kept informed. The applicant was then asked to make a statement.", "66. Along with his two brothers (Selim and Hasan), the applicant had a house in Deveboyu. On 6 May 1994 300-400 soldiers arrived in Deveboyu. The applicant was in the fields. He heard, on the mosque loud-speaker, that the villagers were to gather at the mosque and ran back. At the mosque, the commander told them to remove their belongings from the houses and to evacuate the village in an hour. The houses were set on fire as persons attempted to remove their belongings. His and his brothers' houses were burned. Prior to leaving, the soldiers ordered the evacuation of the village.", "67. The following day they went to the Kulp District Gendarme Command and reported the incident. They asked to be allowed to stay to harvest the crops and the commander agreed. They pitched tents in the hamlet and tended their livestock and crops. They hid when the soldiers subsequently came (twice or three times) by the village. When the soldiers came on 24 May 1994, the applicant was again in the fields. The Orhans were repairing their houses. The soldiers told them that the commander wanted to see them and that they were to show the soldiers the way after which they would come back. The applicant did not see them being taken away but was told about the incident when he returned to the village.", "68. The following day the village muhtar and some villagers went to Zeyrek Gendarme station and enquired about the Orhans. They were told that the Orhans had been taken to Kulp. One or two days later, the applicant went to Kulp District Gendarme Station. He asked the Commander about the Orhans who responded that there were 50 operations in the area and that the Orhans had not been taken into his station.", "69. The applicant therefore applied to the Kulp Chief Public Prosecutor and to the Chief Public Prosecutor of the Diyarbakır State Security Court, the latter of whom had told the applicant that the Orhans were not in custody. He then filed a petition with the State of Emergency Regional Governor, who referred the applicant to the Diyarbakır Provincial Governor, who referred him, in turn, to the Provincial Gendarme Command. The latter telephoned “Lice”, but the response was that the Orhans were not there. Telephone calls to “Kulp” were not possible as the lines were down.", "70. Approximately one month later the applicant was put in contact with Ramazan Ayçiçek who was in Lice prison and he went to see him. Ramazan Ayçiçek told him that he had been in custody in Lice Boarding School with the Orhans prior to being transferred to Lice Prison. Ramazan Ayçiçek was by then (May 1995) in Şanliurfa prison. Lice District Gendarme Command then told the applicant that the Orhans were not “there”.", "71. The applicant moved to Diyarbakır. On learning that some villagers had applied to the HRA, he applied and the HRA took his statement. He was shown his statement of 3 November 1994 and identified that statement and his signature. When his letter of authorisation appointing British lawyers was shown to him, he said that he had not been told, as such, that the HRA would appoint British lawyers, that he was only asked to sign a piece of paper and that he did not know that it was a letter of authorisation. He was only told that his statement would be sent to Ankara, but he was not told where in Ankara. His aim was to find the Orhans dead or alive, to be informed about their fate and to obtain compensation for the damage to his property. He had not commenced damage assessment proceedings in any court, although the village muhtar had informed the Regional Governor of the burning of the houses. The applicant therefore petitioned the Regional Governor for a house to replace the one which was burned. He wanted his rights granted by the Turkish authorities and did not want a case in Europe.", "72. It is recorded that the statement was read out to the applicant, who confirmed the truth of it by signing it.\n(s) Letter dated 3 May 1995 from a Diyarbakır public prosecutor (Mustafa Atagün) to the Kulp Chief Public Prosecutor", "73. Referring to the letter of 20 April 1995 from the Ministry of Justice, Mustafa Atagün requested an investigation into the complaints of the applicant who had made a detailed statement and to revert with the results of that enquiry by 1 June 1995 for forwarding to the Ministry.\n(t) Letter dated 16 May 1995 from a Kulp public prosecutor to the Diyarbakır Chief Public Prosecutor", "74. An investigation had been commenced but the Orhans were still missing. Copies of the relevant investigation documents were enclosed.\n(u) Letter dated 29 May 1995 from a Kulp public prosecutor to the Lice District Gendarme Command", "75. The applicant had claimed that the Orhans had disappeared on 24 May 1994 and had been detained by military units in Lice Boarding School. The addressee was to investigate whether the Orhans had been detained and to revert with the findings.\n(v) Letter dated 29 May 1995 from Lice District Gendarme Command to the Kulp Chief Public Prosecutor", "76. A claim about the Orhans' disappearance and their detention in the boarding school had already been received and investigated. However, and according to the records of that gendarme command, the Orhans had not been detained and their names were not in those records.\n(w) Letter dated 14 June 1995 from Lice District Gendarme Command to the Lice Chief Public Prosecutor", "77. Referring to the Lice Chief Public Prosecutor's letter of 29 May 1995, that gendarme command had investigated. Since the Orhans' names were not in the records of that command, the conclusion was that that command had not detained them. \n(x) Letter dated 14 July 1995 from the Diyarbakır Chief Public Prosecutor (Mustafa Atagün) to the Kulp Chief Public Prosecutor", "78. The addressee was requested to furnish information on the preliminary investigation on the applicant's complaints.\n(y) Letter dated 26 July 1995 from a Kulp public prosecutor to the Diyarbakır Chief Public Prosecutor", "79. On 26 July 1995 the Kulp Chief Public Prosecutor decided that he lacked jurisdiction to pursue the investigation and transferred the matter to the Kulp District Governor. \n(z) Decision of the Kulp Chief Public Prosecutor as to lack of jurisdiction of 26 July 1995", "80. The decision referred to the applicant's complaint: the burning and evacuation of his village on 6 May 1994, the taking into custody of the Orhans by soldiers on 24 May 1994, their later disappearance and the reports of their detention in Lice Boarding School. Since the incident took place while the security forces were carrying out their administrative duties, it was the Kulp District Administrative Council that had jurisdiction to investigate, to which organ the case was transferred.\n \n(aa) Statement of Hasan Sumer (undated) taken by a Kulp public prosecutor", "81. On 24 May 1994 commando soldiers arrived in Çağlayan. He saw the soldiers take the Orhans. Since then, no news of them had been received.\n(bb) Extract dated 24 June 1994 from the census record concerning Çağlayan village.", "82. The applicant and the Orhans were registered as living in Çağlayan. 2. Second investigation file: Kulp District Administrative Council, 1997\n(a) Letter dated 7 May 1997 from the Diyarbakır Deputy Provincial Governor to District Administrative Council, Kulp District Governor", "83. The applicant had made an application to the European Commission of Human Rights claiming that the Orhans had been detained by security forces on 24 May 1994, that they had subsequently disappeared and that their houses had been burned. The addressee was to confirm by 9 May 1997 whether an investigation had been launched by the Provincial or District Administrative Councils. If so, a copy of the file was to be forwarded.\n(b) Letter dated 9 May 1997 from the Kulp District Governor to the Diyarbakır Provincial Governor", "84. The Kulp Chief Public Prosecutor's file and jurisdiction decision had been sent to the District Administrative Council which had appointed Ali Ergülmez as the Adjudicator in the investigation. He was appointed elsewhere and the file had been put on hold without further progress. The District Governor had appointed a new Adjudicator, the investigation was ongoing and the addressee would be informed of the outcome.\n(c) Letter dated 9 May 1997 from the Kulp District Governor to Kulp District Gendarme Command", "85. Kamil Kündüz was requested to investigate, as Adjudicator, the claims (outlined in the Kulp Chief Public Prosecutor's file) according to the law on the prosecution of civil servants and to report within 3 months.\n(e) The Adjudicator's report (Kamil Kündüz) dated 15 May 1997", "86. Deveboyu hamlet and Çağlayan village were empty and the residents had gone to Diyarbakır as a result of PKK pressure in 1993-1994. Since their addresses could not be established, more information about the Orhans and their alleged detention and disappearances could not be gathered. The applicant was not at his address in Diyarbakır, so his statement could not be taken. A search of the records showed that the Orhans had not been detained by Kulp District Gendarme Command. In the absence of any perpetrators, there was no need to investigate further. \n(f) Letters dated 15 and 20 May 1997 from Kulp District Gendarme Command to the Kulp District Governor, and from the latter to Diyarbakır Provincial Governor, respectively", "87. The investigation report was submitted.", "88. By letter of 4 June 1999, the Diyarbakır Provincial Governor required the file to be re-opened and an investigation conducted. This letter has not been furnished\n(a) Note to the file of the Kulp District Governor dated 7 June 1999", "89. An investigation was to be opened into the applicant's claims pursuant to the law concerning the prosecution of civil servants and a report was to be submitted as soon as possible.\n(b) Letters dated 7 June 1999 between Kulp District Governor and Kulp District Gendarme Command", "90. The muhtar of Çağlayan was to be sent to the District Governor for his statement to be taken and the gendarme command confirmed that he would so attend. \n(c) Letters dated 7 June 1999 from Kulp District Governor to Kulp District Gendarme Command", "91. That gendarme command was requested to confirm before 9 June 1997 whether any operations had been carried out in April-July 1994 and, if so, whether they covered Çağlayan, whether gendarmes had taken part in the operation and who was in charge. The custody records from Zeyrek gendarme station and from Kulp Central Gendarme Command for April-July 1994 were also requested.\n(d) Letter dated 7 June 1999 from Kulp District Gendarme Command to the Kulp District Governor", "92. That gendarme command's records had been examined and it was concluded that in April – July 1994 operations had taken place in the Kulp region but no information, documentation or record had been found which indicated that such operations included Çağlayan village. Extracts of the security and custody records of Zeyrek gendarme station were enclosed. Those of the Kulp Central Gendarme Station for 1994 had been archived and could be obtained from the Provincial archive department. \n(e) Letter dated 7 June 1999 from Kulp District Governor to Kulp District Gendarme Command", "93. The addressee was to ensure the applicant's attendance before the Kulp District Governor for his statement to be taken. \n(f) Letter dated 7 June 1999 from Kulp District Gendarme Command to the Kulp District Governor", "94. The applicant's address was in Diyarbakır. Çağlayan village had been evacuated and, therefore, the applicant could not be contacted.\n(g) Letters dated 7 June 1999 from Kulp District Governor to Lice District Gendarme Command", "95. The Lice District Gendarme Command custody records for April-July 1994 were requested by 9 June 1999. \n(h) Letters dated 7 June 1999 from Kulp District Governor to the Lice Chief Public Prosecutor", "96. The Lice prison custody records for April-July 1994 were requested. \n(i) Letter dated 8 June 1999 from Kulp District Governor to the Diyarbakır Provincial Governor", "97. The applicant was to be summoned and sent to the Kulp District Governor for his statement to be taken. \n(j) Statement dated 9 June 1999 of the muhtar of Çağlayan taken by the Adjudicator", "98. The villagers from Deveboyu had told him in 1994 that military units belonging to the Bolu regiment, accompanied by Ali Ergülmez, had taken away the Orhans. He had asked Ahmet Potaş about their fate and he responded that the Orhans were not in Zeyrek Station and that he had no knowledge of them.\n(k) Letter dated 10 June 1999 from the Kulp District Governor to the Chief Public Prosecutor, Şanliurfa", "99. Given the applicant's allegations of 2 May 1995 that, inter alia, Ramazan Ayçiçek had seen the Orhans in detention and that he was in Şanliurfa prison, the addressee was to see if he was still in that prison, to take his statement if he was and to report back by 15 June 1999. \n(l) Letter dated 11 June 1999 from the Şanliurfa prison director to the Şanliurfa Chief Public Prosecutor", "100. Ramazan Ayçiçek's name was not in the prison records.\n \n(m) Letter dated 17 June 1999 from Kulp District Governor to Lice District Gendarme Command", "101. Given the applicant's allegations of 2 May 1995 that, inter alia, Ramazan Ayçiçek had seen the Orhans in detention and that he was in Lice prison, the addressee was to see if he was still in that prison, to take his statement if he was and to report back by 21 June 1999. \n(n) Letter dated 17 June 1999 from Kulp District Governor to the Diyarbakır Provincial Governor", "102. Reference was made to a letter of 4 June 1999 from the Ministry of the Interior, to the Diyarbakır Provincial Governor's letter of 4 June 1999 and to the Kulp District Governor's letter of 8 June 1999. An investigation would be carried out to establish the applicant's current address, and his statement would be taken and forwarded by 18 June 1999.\n(o) Document signed by the applicant dated 22 June 1999", "103. The applicant acknowledged that he had been informed that he had to appear before the Kulp District Governor urgently to make a statement.\n(p) Letter dated 22 June 1999 from the Director of Lice prison to Lice District Gendarme Command", "104. Ramazan Ayçiçek had been imprisoned by Lice Public Order Criminal Court on 10 June 1994 for aiding and abetting the PKK and he was transferred to Diyarbakır E Type secure prison on 25 July 1994.\n(q) Report dated 22 June 1999 on Ramazan Ayçiçek completed by Lice District Gendarme Command", "105. The report repeated the information in the preceding paragraph and added that Ramazan Ayçiçek's village had been evacuated due to terrorist incidents and that his current whereabouts were unknown. It was not possible therefore to take his statement.\n(r) Statement of the applicant dated 23 June 1999 taken by the Adjudicator (Yunus Günes)", "106. Nineteen days prior to 24 May 1994, military units said that the village was to evacuated in three days. The villagers began immediately evacuating. After three days they approached the Kulp District Gendarme Commander, Ali Ergülmez, in order to get permission to stay in the village to harvest the crops. Permission was granted.", "107. On 24 May 1994 the applicant was told that the soldiers, who had been around the hamlet and acting on orders of their commander, had taken the Orhans to Ziyaret Tepe. He saw the soldiers taking the Orhans away as did other villagers. On the same day he learned that the soldiers had moved on to Gümüşsuyu hamlet of Emalı village. After dark, he went to Gümüşsuyu and asked Hacı Havina (also known as Havine Emre and the applicant's aunt) (his aunt) and Hacı Mehmet about the Orhans. They said that they had seen the Orhans.", "108. On 25 May 1994 Mehmet Emre (Hacı Havina's son and the applicant's cousin) and Hacı Mehmet went to Zeyrek and spoke to Ahmet Potaş who said that the Orhans had been taken to Kulp District Gendarme Command by the soldiers in the evening. On 25 May 1994 the applicant, Hasan Sumer, Suleyman Nergiz and Huseyin Can asked Ali Ergülmez about the fate of the Orhans. Ali Ergülmez said that there were about 50 operations in the area and that he did not know who had taken the Orhans.", "109. Later, the applicant petitioned Kulp District Gendarme Command, Lice District Gendarme Command and Kulp Chief Public Prosecutor. Approximately one month after the incident, the applicant was in Diyarbakır and he met Esref from the Inkaya district who had a shop in Kulp. He said that the Orhans had been detained overnight with him in Kulp District Gendarme Command. In the morning, they were taken in a military vehicle to the Lice District Gendarme Command where the Orhans and Esref were in custody together for a week. Esref was released at the end of that week.", "110. About 35-40 days after the Orhans had been detained, Ramazan Ayçiçek of Mehmetil village, Lice sent a message to the applicant suggesting that they meet. The applicant went to Lice prison and met the Ramazan Ayçiçek. The latter said that, while he was being detained in Lice Boarding School, he had spent one week with the Orhans. On the same date, and many times thereafter, the applicant went to the Lice District Gendarme Command to ask about the fate of the Orhans. He was told that the Orhans were not in Lice.", "111. About 50 days after the Orhans' apprehension, he petitioned the State of Emergency Regional Governor. That petition was referred to the Diyarbakır Provincial Government and, in turn, to the Provincial Gendarme Command from where a sergeant major telephoned Lice District Gendarme Command. Their reply was that the Orhans were not there.\n(s) Letter dated 25 June 1999 from the Lice District Gendarme Command to the Lice District Governor", "112. A report on Ramazan Ayçiçek in Lice prison was enclosed.\n(t) Letter dated 28 June 1999 from the Lice District Governor to the Kulp District Governor", "113. Custody records of Lice District Gendarme Command for April–July 1994 were submitted.\n \n \n \n(u) Letter dated 28 June 1999 from the Lice District Governor to the District Provincial Governor", "114. The Lice District Gendarme Command report on Ramazan Ayçiçek was enclosed. The Adjudicator's decision (see paragraph 117 below) later detailed this report: the village of Ramazan Ayçiçek had been evacuated as a result of terrorist incidents and his whereabouts were not known. \n(v) Letter dated 6 July 1999 from the Adjudicator of the Kulp District Governor to the Diyarbakır District Governor", "115. The Adjudicator's report on his investigation was enclosed. \n(w) The Adjudicator's investigation report dated 6 July 1999", "116. The investigation had taken place between 7 June and 5 July 1999 and the list of documents attached were dated 7 June-July 1999.", "117. The Adjudicator concluded that it was unnecessary to prosecute and make a decision. In the first place, the Orhans' names did not appear in the custody records of Zeyrek gendarme station or of Kulp or Lice District Gendarme Commands. Secondly, there were contradictions between the applicant's statement of 2 May 1995 and that of 23 June 1999 regarding whether he had personally seen his brothers being taken away. Thirdly, the muhtar was not a direct witness; he had been told by the villagers that the Orhans had been taken away. Fourthly, the applicant had said in his statement of 2 May 1995 that Ramazan Ayçiçek was in Şanliurfa prison but investigations indicated that he was not, his village had been evacuated due to terrorist activity and his whereabouts could not be established. There was a doubt whether the applicant had met Ramazan Ayçiçek. Fifthly, there existed no document, information or record in Kulp District Gendarme Command as to any operation conducted in April-July 1994.\n(x) Decision of Kulp District Administrative Council, Kulp District Governor of 7 July 1999", "118. The investigation file and the report were examined. In the absence of any information, documentation or witnesses indicating that the Orhans had been detained by military units or by the Lice or Kulp District Gendarme Commands, the Council decided unanimously not to prosecute pursuant to the law concerning the prosecution of civil servants. 4. Material concerning Ramazan Ayçiçek\n(a) Letter from Lice District Gendarme Command to Lice District Governor dated 23 November 1999", "119. Ramazan Ayçiçek had been arrested for possession of a weapon and for aiding and abetting the PKK. He had been referred to a public prosecutor on 10 June 1994. The Lice Boarding School had no gendarme personnel stationed there for detention purposes. It was not possible for Ramazan Ayçiçek, who was detained by Lice District Gendarme Command on 7 June 1994, to have seen the Orhans as claimed as Lice Boarding School was 2 kilometres away from that command. \n(b) Extract of the custody room records of Lice District Gendarme Command", "120. Entry No. 43 refers to Ramazan Ayçiçek as having been detained on charges noted above. The fourth column notes that his detention was ordered by District Gendarme Command and the fifth column notes his detention on 7 June 1994 at 16.00. The entry spills over to a second line, noting that he departed from Lice District Gendarme Command on 10 June 1994 at 14.00 as he had been referred to a public prosecutor. \n(c) The investigation file concerning Ramazan Ayçiçek", "121. The incident location establishment report dated 7 June 1994 referred to a gendarme operation on that day, to their finding a rifle on Ramazan Ayçiçek's premises and to his arrest that day. In his statement of 9 June 1994 he stated that he had assisted the PKK and inherited the rifle.", "122. In contrast, the “minutes of interrogation” dated 10 June 1994 noted that the applicant stated that he had been apprehended during a military operation around 22 May 1994 and taken “to District”. It was there he had made the above-described statement which he denied, pointing out that he had been made to sign it without knowing what was in it. On 17 August 1995 the State Security Court decided that there was insufficient evidence of aiding and abetting the PKK and ordered his release. However, the illegal possession of firearms issue was retained for trial.", "123. The Lice records are dated February–August 1994, those of Zeyrek are dated March – November 1994 and those of Kulp are dated February-December 1994. There is no reference to the Orhans in those records.", "124. This is a one-page table-style document summarising 30 military operations in the Diyarbakır province which took place from 2 to 31 May 1994. No operations are noted for 6 May 1994, but many are recorded for the day before and after. Operations also took place on 23, 24 and 25 May 1994. No reference is made to Deveboyu, Çağlayan or to Gümüşsuyu, although two operations are noted as having taken place both in the Kulp (10 and 16 May) and Lice (11 and 13 May) districts.", "125. Upon the request of the Delegates in the above-cited Çiçek case, the Government furnished plans of Lice Boarding School. These constituted three pages, each page covering a floor in one building.", "126. The Delegates heard the testimony summarised below.", "127. He was born in 1955. Selim and Hasan Orhan are his elder and only brothers and Cezayir Orhan his eldest son. In April and May 1994 he was living in Deveboyu. Cezayir lived with him and he and his brothers each owned a house in that hamlet.", "128. On 20 April 1994 300-400 troops arrived, passed the village and set up tents just above the village. The following day their provisions arrived by military vehicles. The villagers helped the soldiers take the provisions to their tents either on their backs or by using pack animals. The applicant first said that the force was made up of both gendarmes and regular infantry soldiers, he later affirmed that they were “ordinary soldiers” and then clarified that he could not distinguish between commandos and gendarmes. In any event, they were all dressed in military uniform. He did not know any of them. From time to time the village council and the muhtar visited Zeyrek gendarme station where Ahmet Potaş said that the soldiers were from the Bolu regiment.", "129. After a week or two, the soldiers went on operation towards the Bingöl-Muş border. In the afternoon of 6 May 1994 they returned and surrounded the village. Using the loudspeaker of the village mosque, they called to villagers to gather at the mosque. The villagers assembled quickly. The commander said that the villagers had one hour to take their belongings after which the village would be burned and evacuated.", "130. The villagers returned to their houses immediately, but as they were going back, the soldiers began burning the houses. A commander and a platoon of soldiers was assigned to each neighbourhood in the village. The applicant managed to move some of his family's possessions outside but soon after they started burning his house using hay he had stored. His house, those of his brothers, the majority of their possessions and most of the houses in Cağlayan village were burned.", "131. The soldiers stayed in the village that night and left in the morning.", "132. The following morning, 5 or 6 villagers (including Selim Orhan and the village muhtar) went to Zeyrek gendarme station to ask permission to stay to harvest the crops. Ahmet Potaş said that Kulp District Gendarme Commander had the authority to decide such things but he did not. At Kulp, Ali Ergülmez gave them permission. They therefore stayed in make-shift shelters in Deveboyu until the harvest.", "133. Some villagers started to repair their houses in the hope that they would be allowed to return someday. Every three or four days, soldiers went by the hamlet and proceeded up into the hills.", "134. On 24 May 1994, in the early morning, the soldiers came back to the village. The applicant had gone to a work in a field some distance away. Most of the men had already left for the city, but his brothers and his son remained and were working on the houses. When a group of soldiers came into the village, the remaining men hid in the fields. The soldiers asked about the Orhans and took their identity cards. Everyone including the children were there, although it was a coincidence that Cezayir was there as he had just come home the previous day (for a religious holiday) from his work as a plasterer with a sub-contractor at Malatya İnönü University.", "135. When they said that they would take the Orhans, the women implored them not to, but they responded that the commander was farther up the hill waiting, that the Orhans had to give a statement and that they were needed, in any event, as guides. They would be released later. A crowd gathered. The applicant saw, from where he was in the field, the soldiers accompanied by the Orhans going up the hill towards Gümüşsuyu. The women and children followed them for approximately 50-100 metres imploring the soldiers not to take the Orhans.", "136. The hamlet of Gümüşsuyu is 15 minutes away from Deveboyu on foot on a rough tractor track. The villagers in Gümüşsuyu have fields in Deveboyu and so the villagers of both hamlets knew each other. The applicant's aunt, Hacı Hevina, lives in Gümüşsuyu. The soldiers arrived in Gümüşsuyu on foot with the Orhans. That evening, the applicant went to Gümüşsuyu to see if he could get some news from the villagers. He met Mehmet Emre who told him that, when the soldiers initially came, they had left their vehicles in Gümüşsuyu and then walked from there to Deveboyu. On the way back through Gümüşsuyu, they brought the Orhans where they were seen taking a rest by numerous villagers who took water to them. The Orhans appeared to be in good condition and were smoking cigarettes. Mehmet Emre and an old villager, Hacı Mehmet, spoke to the Orhans. Hacı Mehmet also asked the soldiers what the Orhans had done and the commander threatened to take him into custody instead. The Orhans were put into military vehicles and taken away in the direction of Zeyrek.", "137. The next morning the applicant set out for Zeyrek Gendarme station. On the way, he met Mehmet Emre and Hacı Mehmet coming back from the station. They had seen Ahmet Potaş who had told them that the Orhans had passed through with soldiers the previous evening and had been taken to Kulp. The applicant then went to Zeyrek station with the village muhtar and other villagers, to ask what had become of the Orhans. Ahmet Potaş said that they had apparently been taken to Kulp.", "138. On about 6 June 1994 the applicant went to Kulp District Gendarme Command where Ali Ergülmez said that there were 50 operations taking place, that he did not know which unit had taken the Orhans, that he would make enquiries and that the applicant should return in couple of days. The applicant went back many times, but obtained no news of the Orhans.", "139. He identified the petitions he then lodged with the Kulp Chief Public Prosecutor, with the State Security Court prosecutor in Diyarbakır and with the State of Emergency Governor in June and July 1994.", "140. Some time later the applicant was in Diyarbakır and bumped into “Eşref”. He said he had been detained with the Orhans in Kulp District Gendarme Command for one night. The following morning they were taken by military vehicle to Lice “Central District” station where all were detained for three nights. Eşref was released and the Orhans remained. Subsequently, the applicant could not trace Eşref.", "141. About a month after the Orhans were detained, Ramazan Ayçiçek sent word to the applicant to contact him. The applicant was allowed to see him in Lice prison as he told the prison officers that Ramazan Ayçiçek was a close acquaintance and that he was asking about his brothers and his son. Ramazan Ayçiçek told him that he and the Orhans had been detained in Lice Boarding School for a few days after which he was transferred to prison. The Orhans remained in the school. The applicant confirmed that Ramazan Ayçiçek had said nothing about the Orhans' condition. The applicant understood that Ramazan Ayçiçek was transferred from Lice to Şanilurfa prison, served his year sentence and was released after which he and his family left home. The applicant had been unable to trace him. This was the last information received by the applicant about the Orhans.", "142. The applicant then returned to Lice District Gendarme Commander, who said that no one by the name of Orhan was in custody in his command.", "143. The villagers stayed in Deveboyu for the harvest and left in late 1994. They spent the summer in make-shift shelters.", "144. Having been summoned, on 2 May 1995 the applicant made a statement to a prosecutor of the Diyarbakır State Security Court. The prosecutor, the applicant and a typist were in a room. The prosecutor got very angry and shouted, wondering how the State could kidnap people and make them disappear and saying that people get the punishment they deserve. The applicant said that he was upset, grieving and sad. He broke down, became confused and completed the statement in that state. He did not remember giving a statement in which he said that he did not wish to take proceedings before the Commission.", "145. He submitted copy photographs of the Orhans to the Delegates. He had never been asked for photographs or for the names of those in Deveboyu who had witnessed the Orhans being taken away. He had never received any information from the authorities about their investigations into the destruction of Deveboyu or the disappearance of the Orhans.", "146. The applicant explained the sorrow and hardship suffered by him and the Orhans' families: their continuing wish was to find the Orhans, whether dead or alive.", "147. The witness was born in 1982. He is a nephew of the applicant and the eldest son of Selim Orhan. He lives in Diyarbakır with his family. He and his brothers and sisters were agricultural workers.", "148. In April 1994 the witness was in the first year of junior high at Lice Boarding School, situate on the outskirts of Lice about 15-20 minutes walk from the centre of town. He had joined the school about 5 months earlier. There were roughly 10-12 classes with 70 to 80 students in each class. There were three buildings in the school complex each of three stories. One was the dormitory building, the second contained the classrooms and the third was the military housing. The complex was a large area surrounded by barbed wire with soldiers on guard duty and completing identity checks at the entrance. At the Delegates' request, the witness roughly sketched the three buildings in the complex.", "149. The witness was shown the plans of the boarding school submitted by the Government in the above-cited Çiçek case. The plans covered the three floors of the classroom building. The classrooms were in the upper part of the building and the refectory (yemekhane) was on the lower floor (with a library and administrative offices). The plans did not therefore cover the military building.", "150. The military building was not separated by any form of barrier or fencing from the other school buildings. While the witness could have gone to that building, he never had or wanted to. Soldiers were based permanently at the military building and soldiers also came and went frequently. Military vehicles (tanks, panzers and the like) would also come and go and were parked just next to the military housing. The witness did not recognise specific uniforms. All he knew was that they were soldiers. About 15-20 days before the witness left the school, he saw soldiers in blue berets for the first time. One day when the witness was sitting with his friends, he saw military vehicles entering the military building. The witness had wondered about certain persons in those vehicles in civilian clothing. Since he was not used to seeing civilians among soldiers, he asked a friend who said that the civilians had probably been taken into custody.", "151. In April 1994 he was home from school in Deveboyu as he was ill. A few days later, about 250-300 soldiers arrived and went up the hill. They were dressed in the usual green uniforms. While he initially said they had blue berets, he confirmed later that he was not sure.", "152. A few days after that, they returned to Deveboyu. They came into the village, set the houses on fire, including his home, and there was smoke everywhere. He was in his father's house when they set it on fire. The soldiers surrounded the houses and two or three went inside to start the fire although he was not sure precisely how they started it. His family managed to throw some belongings outside before the fire caught. Other houses also burned and, while the smoke made it difficult to see precisely how many burned, his own and the applicant's houses burned. Having waited for the houses to burn, the soldiers left the village. Thereafter, he and his family lived in the garden under bits of nylon and plastic awaiting the harvest.", "153. One or two weeks later, around sunrise, the soldiers came down the hill towards the tents of the applicant, Selim Orhan and of Hasan Orhan, which tents were next to each other. The soldiers stopped at the witness' family's tent which was the first in their path. The commander saw the witness' father (Selim), called him over (not by name) and asked for his identity card. The soldiers asked what other men were there and his father told them that his uncle (Hasan) and cousin (Cezayir) were. As ordered, his father called them over and their identity cards were taken. The Orhans were told that they were all needed as guides.", "154. The witness went for a moment behind his nylon tent and, when he came out, the soldiers had started taking the Orhans up the hill. His brothers, his mother, his aunt and her children started to beg the soldiers not to take them away. His aunt even brought the Koran over and asked the soldiers, for the love of the Koran, not to take them away. But the soldiers did not pay any attention and said that they were not to be followed. The Orhans would be released, whereas if the villagers followed bad things could happen. More pleading led to the commander calling a more superior officer on the radio. The former said that he had “these people” and queried whether he should bring them in. The superior commander ordered the soldiers to bring the Orhans. The soldiers and the Orhans went up the hill on foot in the direction of Gümüşsuyu and the villagers went back. The hill is so high that the group was visible from the village and, indeed, from some of the families' fields where the applicant had gone that morning.", "155. The witness never saw his father again. He could not return to school, something he enormously regretted: since he was the oldest surviving male in his family and had become the head of the family, he had to work to support his family.", "156. The witness was born in 1971 in Deveboyu. He is the son-in-law of Selim Orhan. Since 1984 he had been a migrant worker, never spending more than a month per year in Deveboyu. The witness' father had a house in Deveboyu. The applicant, Selim Orhan and Hasan Orhan had houses close to each other in Deveboyu. Cezayir Orhan lived with the applicant.", "157. In 1993 Güldiken and Derecik villages were destroyed. His brother-in-law and sister-in-law had lived in Güldiken and after its destruction they stayed with Selim Orhan for a while. Rabia and Mahmut Kaya stayed with his father for a year after Derecik had been destroyed. Those villagers said that the soldiers had burned the villages because they had been accused of assisting and harbouring terrorists. The witness had considered that it was just a matter of time before the same would happen in Çağlayan, so he and his wife moved to Diyarbakır. He lived in Diyarbakır at the relevant time.", "158. One evening in April 1994, when he returned home from work, his wife told him that their village had been destroyed by soldiers. The next morning he got up early, hired a lorry and went to the village. He went through a military check point in front of Zeyrek gendarme station where he saw innumerable tanks, panzers and other military vehicles.", "159. From there to the centre of Çağlayan, the witness saw a large number of soldiers (300-400) walking on the side of the road in the direction of Zeyrek. They were 20-30 metres apart from each other and streached all the way from Zeyrek to Çağlayan. They were infantry soldiers and commandos. He did not remember seeing gendarmes among them. They were wearing the uniform of regular soldiers. The uniforms of the commandos are a lighter green, those of the infantry are a darker green and those of the gendarmes are the same as the infantry's except that the gendarmes have insignia on the neck and shoulders which are different to the infantry. He did not recall seeing those insignia or any distinctive caps. They had the usual weapons, G3s, MG3s, regular bombs and so on. The witness was able to recognise uniforms and weapons as he had done his military service in the infantry in Çukurca near the Iraqi border.", "160. When he arrived, the village, even the mosque, was in ruins. He could only stay a couple of hours as he had to get back to work. Smoke was still coming out of some of the houses including his own father's house.", "161. The witness did not see Selim or Hasan Orhan that day as he was concentrating on his own family's problems. He did not actually see the houses of the applicant, Selim Orhan or Hasan Orhan that morning: their houses were about 10 minutes walk away and were surrounded by an orchard. However, he saw smoke coming from the area in which those houses were located.", "162. The witness' father, his uncle and cousins told him that the previous day the soldiers had come, had gathered everyone in front of the mosque and had told them that they had one hour to vacate their houses and take their belongings, as they were going to burn the village. The villagers had gone back to their houses and saw smoke coming from the mosque before the soldiers began burning their houses. They had rescued whatever they could but most things had burned.", "163. He loaded his lorry with as much of the rescued belongings of certain families as he could and took them to Diyarbakır.", "164. Two or three days later the witness returned to Deveboyu. The houses were not habitable. The villagers had built shelters out of cloth, rags, trees and leaves in the vineyards, gardens and orchards, on the road, by the river and outside the village on the hills. He also saw Selim and Hasan Orhan and spoke to their families. They told him the same things as his own family about how the village had been burned. The witness tried to persuade Selim Orhan to leave but he wanted to stay as they had permission to do so until the harvest. On 8 May 1994 the witness went back to Diyarbakır.", "165. 10-15 days after the village had been burned, his wife told him that they had taken the Orhans. The following morning, he and his wife went to the village. They stayed two or three days. His mother and father said that the soldiers had taken the Orhans. His wife did not stop at his father's house but went to Selim Orhan's house directly. Selim Orhan's wife and family said that the soldiers had come down the hill in the morning and had taken away the heads of their households, that they had gone after the soldiers all the way to the hill, that a soldier had even slapped a little girl who was following and that the soldiers did not let them follow any further.", "166. During this stay in Deveboyu, the witness met certain villagers from Gümüşsuyu: Hacı Mehmet, an old man of 70-75 years old, Mehmet Emre and the latter's mother, Hacı Hevina. They confirmed the following: Numerous villagers saw the soldiers arrive with the Orhans to Gümüşsuyu. They gave them water, they rested 5-10 minutes and the Orhans were taken directly to Zeyrek station. The villagers of Deveboyu were informed that evening. That evening or the next morning, some villagers (including Mehmet Emre and Hacı Mehmet) went to Zeyrek gendarme station to enquire about the Orhans and they were told by Ahmet Potaş that the Orhans had been taken to Kulp. On their way back from Zeyrek, they met the applicant and told him what they had learned.", "167. No village had been burned west or north of Çağlayan. But east and south countless villages burned within a short time including the hamlet of Gümüşsyu and the village to which it was attached, Elmalı. Demirli was also burned as were the hamlets of Karpuzlu (Kafan and Saban).", "168. The witness was born in 1965. He is the applicant's cousin. In April and May 1994 he lived in Gümüşsuyu a hamlet of about 45 houses. The applicant, Selim Orhan and Hasan Orhan, whom he knew as he had fields in Çağlayan, each had a house in Deveboyu at that time.", "169. He initially appeared to be confused as to the order of events (the destruction of Çağlayan and the passage of the soldiers and the Orhans through Gümüşsuyu). However, he later confirmed and re-affirmed that the burning of Çağlayan took place 15-20 days before he saw the Orhans with the soldiers in Gümüşsuyu.", "170. In 1994 the witness saw smoke coming from houses in Deveboyu. He asked certain military officers who were in the village at the time what was going on and if an operation was to be carried out in Gümüşsuyu so that they might leave beforehand. They said that they had come to protect the villagers. The villagers in Deveboyu later said that soldiers had set their houses on fire.", "171. The day after Deveboyu was burned, Gümüşsuyu was also burned by soldiers. The soldiers initially checked identity cards and then gave the villagers one hour to remove their belongings before burning their houses. Lighter items were removed but the heavier items burned. The witness asked the soldiers why they were burning the village and was told that it was to prevent the PKK from coming to seek shelter, that they would all be re-located by the State and that anybody caught in the village would be killed. The villagers obtained permission, from their local gendarme station, to stay in the village until the harvest, until which time they lived in shelters. The witness thought that they were regular soldiers, as opposed to gendarmes, because of their uniforms. The muhtar of Elmalı village had told the witness that the soldiers were from Bolu, the witness presuming that the muhtar had obtained this information from the gendarme station.", "172. Approximately 15-20 days after Gümüşsuyu had been burned, soldiers arrived on foot with the Orhans. Practically all of the village saw them. The party stopped to rest near the village cemetery. They gave water and cigarettes to the Orhans and to the soldiers. The Orhans were free to move around and were not handcuffed. The witness, Hacı Mehmet and other villagers talked to them. The Orhans were upset saying that the soldiers had taken them. They asked for help and for their families to be told. Hacı Mehmet, an old man, enquired why the Orhans had been taken. They responded that they would take him instead. Having rested for 30 minutes approximately, the soldiers put the Orhans into a military vehicle and left. That evening, the applicant came to Gümüşsuyu and they told him what they had seen. The following morning Hacı Mehmet and the witness asked Ahmet Potaş at Zeyrek gendarme station what he knew. He told them that the Orhans had been taken to Kulp. On the way back from the station they met the applicant and filled him in.", "173. The villagers left Gümüşsuyu in the autumn. The State never re-located them as the soldiers had promised.", "174. The witness, born in 1965, was Commander of Zeyrek gendarme station during the relevant period until July 1994. His station was attached to Kulp District Gendarme Command so Ali Ergülmez was his commander.", "175. Çağlayan was attached to his station, he went there from time to time and knew it well. Çağlayan and Gümüşsuyu were about 15-20 minutes walk apart. He knew the muhtar of Çağlayan personally, as he did almost all of the muhtars. He did not know Salih, Selim or Hasan Orhan personally. He did not recall that there had been a particular terrorist problem in Çağlayan at that time.", "176. The witness initially said that he did not remember receiving a complaint or hearing about Çağlayan being burned by the security forces. He then accepted that the applicant had made this allegation to him in July 1994 when the Kulp Chief Public Prosecutor requested him to secure the applicant's attendance. However, since the prosecutor had already been seized of the matter, he had no power to investigate. He could not recall whether he had been to Çağlayan after May 1994. Nor could he recall ever seeing any village in the region burned.", "177. He could not recall any complaint about the Orhans, or about any other three persons, being apprehended by the military and disappearing thereafter. He had no recollection of Hacı Mehmet or Mehmet Emre from Gümüşsuyu or of any conversation with them.", "178. From time to time operations were carried out in the region by units from outside the area, but the gendarmes did not know the identity of the units. When operations were to be carried out in an area under his station's jurisdiction, Diyarbakır Provincial Gendarme Headquarters would give the co-ordinates to Kulp District Gendarme Commander (Ali Ergülmez) who would inform the witness orally so that gendarmes from his station would avoid the operation area. He was not informed of the identity of the relevant military unit and did not know if the District Gendarme Commander would have known. Since he was never informed of the identity of the units, he did not recall any operation on 20 April 1994 of the Bolu unit and he could not therefore have given this information to the muhtar of Çağlayan as alleged.", "179. If military units from outside the region apprehended someone on operations, they had to surrender that person to the gendarme station in whose jurisdiction they operated. Therefore, if someone was apprehended within the jurisdiction of Zeyrek gendarme station, the detainee would be handed over to Zeyrek or directly to Kulp from where the person would be transferred to a public prosecutor as necessary. There was a small custody room at Zeyrek station (a capacity of 2 or 3 three people for 1 or 2 hours only). Generally, a military unit would have contact with Kulp District Gendarme Station rather than with his station. He did not recall any such contact even from units he saw passing his station and no detainees were ever handed over to him. If he had had any such contact, the witness said he would have remembered it.", "180. Gendarme custody records would indicate by whom and on whose orders the person had been taken into custody. Accordingly, he confirmed that an examination of the Zeyrek custody records of the relevant period would demonstrate whether anyone had been handed over by the military. All detainees, whether kept in the custody room or elsewhere in the station, were entered in the custody record. The witness identified the custody records for the relevant period from his station. The date noted in that record was the date and time the person had been first taken into custody. Detainees for whom there was no space in the custody room, in Kulp District Gendarme Command would be detained in the cafeteria of the same building. The fact that that station's facilities were full would not have been a concern of the military units.", "181. He did not recall ever being asked any questions by a prosecutor about claims concerning the Orhans' disappearance or the destruction of Çağlayan. He had no recollection of taking statements from those villagers.", "182. The witness was born in 1956. He was Kulp District Gendarme Commander from 1993 to 1995. Zeyrek gendarme station was attached to his station. His command was attached to Diyarbakır Provincial Gendarme Headquarters.", "183. The witness knew Çağlayan: it was attached to Zeyrek gendarme station. Çağlayan was about 50 kilometres from Kulp and was one of the 52 villages in the Kulp region. At the relevant time there was a terrorist threat in the entire Kulp area, in all its villages and hamlets without exception. The PKK would threaten the locals to obtain what they wanted. He agreed that the security forces did not have any problem with the local population, but rather with the PKK. He could not recall the applicant or how many houses were in Çağlayan.", "184. He confirmed that there was a commando regiment at Bolu at the time. Diyarbakır Provincial Gendarme Headquarters would let him know, generally orally, that an operation was to be carried out in a particular manner and place between certain dates. They were told not to go out on mission between those dates. No details, not even the name of the military unit, would be mentioned. Any gendarme records of those military operations would be retained by the Provincial Gendarme Headquarters. He did not recall if there had been any major troop movements in Çağlayan or indeed in his area in April-May 1994.", "185. When informed that it was claimed that Ahmet Potaş had told the muhtar that the relevant troops were from Bolu, he stated that he did not believe that Ahmet Potaş would make such a statement and suggested a direct confrontation between him and the people making such an accusation, a suggestion of confrontation he repeated during his evidence.", "186. He did not recall a visit from the muhtar on 7 May 1994. Nor did her recall any allegation that Çağlayan had been burned or giving permission to stay until the harvest. He insisted that between 1993 and 1995 innumerable incidents took place in Kulp every day and that it was not possible for him to recall each one.", "187. He did not recall any complaint, by the applicant or anyone, about the Orhans' apprehension on 6 May 1994 or any complaint of the applicant to that effect. It was many years ago and it was not possible for him to remember every complaint by every person to his station: during his two years at Kulp District Gendarme Command, he spoke to an average of 100 or 150 people each day. 1993-1995 was a period of intense terrorist activity, everyone believed himself to have been wronged by the terrorists and everyone asked for help.", "188. He did not recall ever being contacted by any prosecutor asking about the disappearance of the Orhans and he denied any knowledge of any investigation despite being shown the letter of 9 May 1997 from the Kulp District Governor to the Provincial Governor (see paragraph 84 above). He did not recall Ümit Şenocak, let alone an investigation conducted by that officer, even when it was pointed out to him that Ümit Şenocak had been his deputy in Kulp District Gendarme Command at the relevant time.", "189. There were custody facilities in Kulp District Gendarme Command. Those facilities accommodated 2 to 3 persons. People who were taken into custody for any offence were first searched and were then referred to a doctor for a medical examination and report. When the medical report issued, the detainee was entered into the custody register of the custody room by the commander of the station himself. After the interrogation was completed they would be referred to the public prosecutor. A medical report for the public prosecutor would be obtained and the detainee's valuables would be handed over to the gendarmes against a receipt. He considered his custody record to be sound. If the military apprehended someone requiring detention, they would contact Provincial Gendarme Headquarters", "190. He initially confirmed that a person is entered into the record when he or she is put into the custody room. On further questioning he clarified that, where there is no place in the custody room and the person is detained elsewhere in the building, the detainee will still be entered in the custody record. However, the witness had never come across such a situation during his career.", "191. He agreed that, generally speaking, if he had heard a complaint that a village had been destroyed by security forces, he would have thought that the PKK were responsible and that the complaint was a propaganda exercise designed to blame the security forces. He cited one example, from the innumerable similar incidents he recalled, of İslam in the Kulp area which everyone knew had been burned down by the PKK in or around 1992 but which fire was attributed to the State. Was it not true that the PKK was asserting itself and its struggle? Had the PKK not attained that goal by killing 30,000 innocent people? Had the PKK not intimidated the people? The PKK, the witness asserted, had burned down thousands of villages and killed thousands of people.", "192. This witness classed the applicant's accusations as “unfounded libels” aimed solely at safeguarding his interests. He fixed at 1,000 to 1 the possibility of the State destroying a village. As to the security forces detaining citizens, killing those persons and then disposing of the bodies, the witness exclaimed that he would not even give that possibility a 1,000 to 1 chance, as the military would never do such a thing.", "193. The witness was born in 1966. He was temporarily assigned to Kulp District Gendarme Command from approximately mid-July to November 1994. During that period he deputised for his superior officer, Ali Ergülmez, for approximately 20 days. Otherwise he was on operations.", "194. The witness emphasised this peripheral connection to Kulp District Gendarme Command to explain his small involvement in, and limited memory of, the Orhan investigation. He identified a letter from him to the Kulp Chief Public Prosecutor dated 22 July 1994: this was the sum of his memory of the Orhans' complaint. He clarified that his confirmation therein, that the Orhans had not been detained by “our command”, included the stations attached to Kulp District Gendarme Command. Most of the investigation for that letter had been completed before he came to Kulp or had been done by subordinate officers while he was there. Accordingly, he had no idea of the concrete steps that had been taken during the investigation to which his letter referred. Indeed the letter he signed on 22 July 1994 would have been written by a subordinate officer and he may not even have looked at the letter of 8 June 1994 to which his own letter referred. He was unable to say who decided on what was “the necessary investigation” or whether some guidance would or could be sought or received from the relevant prosecutor's office. He could not describe the further investigative measures which his letter of 22 July 1994 promised.", "195. The witness pointed out that an operations' unit does not normally apprehend people. They only do so when there has been a particular incident as, for example, someone found to be carrying a firearm without a licence. Once apprehended, a suspect is handed over to the relevant District Gendarme Command and that station that takes the suspect into custody.", "196. He initially stated that one could tell from the custody records whether the gendarme or military had initially apprehended someone. However, on examining those records before the Delegates, he concluded that the custody records would not, in fact, yield such information.", "197. He did not recall ever encountering any military units from outside the region carrying out an operation in the area during his time in Kulp. He too confirmed that District Gendarme Command is notified orally for security reasons of the co-ordinates of the area where a military operation would take place and asked to stay away.", "198. Contrary to Ali Ergülmez, the witness would not even accept a 1000 to 1 possibility of a military unit being responsible for a village being burned and for persons disappearing: in his view it was simply not possible. In 1994 there was a great deal of PKK activity in the Kulp and Lice area and the witness had seen burned villages when out on operations in that area. He was of the view that the PKK was responsible, relying on his personal experience of two village raids by the PKK.", "199. The witness was born in 1966. He was Kulp Central Gendarme Station Commander at the relevant time. Since his station was attached to Kulp District Gendarme Command, Ali Ergülmez was his superior officer.", "200. The Kulp central and district gendarme stations were located in the same building. Therefore there was only one custody room in that building, with a capacity of two or three detainees, and that facility was attached to and under the authority of the central station. Any excess detainees were detained somewhere inside the Central Gendarme Station's building but would still be entered in the custody records. Ultimate responsibility for keeping the records lay with the witness as station commander but if he was not there his two assistants would complete the record.", "201. The witness knew Çağlayan by name only and had never been there. He could not recall whether there had been an operation in April and May 1994 around Çağlayan involving units from outside the region. There had been many operations in the region and he did not remember the precise dates or areas covered. Since they were never told of the identity of the units (only the area of operation), he could not specifically say whether the Bolu unit had been there. His gendarmes did not carry out joint operations with units from outside the region. Operation units were generally based outside populated areas.", "202. He did not know where troops were based in Lice. He knew that Lice had, like every district, a boarding school. He had never heard that military units from outside the region billeted in Lice Boarding School. He had never heard any allegation about the burning of Çağlayan village on 6 May 1994 by soldiers. His only recollection of the claim that the Orhans had been apprehended by a military unit and disappeared was a rather vague memory of correspondence with the prosecutor's office in Kulp. The witness also confirmed that, if someone had been apprehended by a military unit on operation, it would be obliged to hand over the detainee to the gendarmes: such units do not have custody facilities or power to detain.", "203. Persons apprehended and sent by Zeyrek station to the Kulp District Gendarme Command would not have come through his hands as the latter command would have passed on the detainee to the public prosecutor unless the suspect could only be brought the following day to the prosecutor, in which case the central gendarme station would detain the suspect in its custody room until the following day.", "204. Having initially confirmed that the custody record would not indicate whether it had been the gendarme or the military who initially apprehended an individual, in cross-examination he confirmed that the latter information could be gleaned from the custody records in the “reasons for arrest” section. He then reverted to his initial position, adding that what is important is the reason for apprehension and not who apprehended the person. Therefore he agreed that some of the persons listed in his custody records could have been handed over to him by military units from outside the region without the custody record showing that. He also agreed that this meant that the custody record would not provide any documentary proof to an individual who later alleged that the arresting forces had ill-treated him before handing him over the gendarmes. While he suggested that a further investigation would allow the identification of the unit who had initially apprehended a person, the witness could not refer to any specific records which would assist any such investigation.", "205. Having confirmed that he was required to fill in all the columns in a custody record, the witness accepted, when shown the records from his station for the relevant time, that no date of release had been entered for 6 detainees. He accepted that it was not possible therefore to say with certainty from the custody records when those 6 persons had been released. It could be possible to verify if someone had been sent to the public prosecutor by checking the investigation report completed by the gendarme, sent with an individual to the public prosecutor and retained in the public prosecutor's records and, if someone had been released, by checking the hospital records as a detainee is medically examined on release.", "206. The witness was Lice District Gendarme Commander from 1993 to 1995, a station situated on the outskirts of town near Lice Boarding School. Attached to his station was a central gendarme station (which was in the same building and commanded by Hasan Çakır) and four outlying stations. There was one set of custody facilities which was shared between the district and central stations and located in the central station.", "207. He did not recall any allegations that soldiers were responsible for the burning of Çağlayan or of the disappearance of the Orhans. He did not know Çağlayan. He did not remember ever being involved in any way in the investigation into the Orhans' alleged disappearance or any correspondence to or from Lice District Gendarme Command about any such investigation.", "208. He confirmed that large-scale military operations were conducted, inter alia, by the Bolu regiment in the Lice, Kulp and Şırnak districts many times in the course of the two years he served there. He could not recall any specific operation.", "209. His command would be informed of the co-ordinates of a planned operation a day or half a day before its execution by the Provincial Gendarme Headquarters. They would be advised not to enter the operation area. If the operation had been planned in advance, that information would have been passed on in writing on a pre-printed form called a preliminary report form (whereas an emergency operation was notified orally only). A preliminary report form was not given to privates for confidentiality purposes: it would have been received by the person in charge of the information centre and brought to the witness. If alerting subordinate units was required, he would have done so by telephone.", "210. He also confirmed that military units from outside the region were billeted at Lice Boarding School and that he knew the school. The students, teachers, military units and other employees were housed in the same buildings inside the grounds of the school. There was a security check on entering the grounds of the regional boarding school. There were three separate but almost identical buildings each with three floors. The first building contained classrooms, the second had student dormitories, bathroom facilities and a refectory (yemekhane).", "211. The third building had been built with classrooms. He initially said that that building had been unused before the military units began to be billeted there. However, he later gave evidence that the third building had not been empty before it housed troops as its ground floor was used by school administrative staff and by students, with the second and third floor classrooms being used as dormitories by the military (a battalion of 700-800 people maximum). The third building was therefore jointly used by the military, students and teachers.", "212. He initially testified that the sketch of the school submitted by the Government in the above-cited Çiçek case represented either of the first two buildings used by the students. He was subsequently unsure about that and then confirmed that those plans appeared to represent the shared third building.", "213. The soldiers had higher ranks so it would have been professional discourtesy to pry into what was going on in Lice Boarding School. However, “judicial duties” were an exception to that rule. Accordingly, if a person was apprehended during an operation by a military unit (if that unit encountered someone already suspected of an offence or someone caught committing a crime), that person had to be handed over to the gendarmes. A delivery record was prepared and placed on the investigation file compiled by the gendarmes and transferred to the public prosecutor. That record would include a note of where and when the detainee was originally apprehended.", "214. It was not possible to determine from the Lice Central Gendarme Station Command custody records whether a person noted therein had been originally detained by the military or by the gendarmes unless – and it was not obligatory - a note was entered to that effect in the column entitled “Comments”. Therefore, the identity of the gendarme or military unit which has originally apprehended an individual could not be gleaned from the custody records as was the case, for example, for entry No. 43 (Ramazan Ayçiçek).", "215. In 1994 the capacity of the Lice Central Gendarme Station custody room was 7-8 persons. Any detainees in excess of this number would be put in a suitable place in the central building, a guard would be posted with them and they would be entered in the custody record if they were to be detained. However, certain persons who were not free to leave (as they were being retained pending questioning) would not necessarily be entered in the custody record unless and until a decision had been made to detain them.", "216. The witness was born in 1962. He was Lice Central Gendarme Station Commander between August 1992 and July 1994. His station was attached to, and in the same building as, Lice District Gendarme Command and Şahap Yaralı was therefore his superior. The witness did not know Çağlayan: it was not attached to his station.", "217. He knew Lice Boarding School as he had been there on several occasions. When reminded that his evidence in the above-mentioned Çiçek case suggested that there was only one building, he confirmed that there were, in fact, 3 large buildings.", "218. However his evidence as to the layout of each building changed many times throughout his evidence, the last version being as follows.", "219. The first building contained the refectory (yemekhane), the library and administration offices together with classrooms on the first and second floors. The second building contained only dormitories for the students.", "220. The third had also been built as a teaching building with classrooms. He could not remember whether there was a library but confirmed that there was a refectory (yemekhane) on the ground floor from which soldiers could get hot meals. Students could use the canteen (kantin) (or a cafeteria - kafeterya) on the ground floor where they could buy things. Some administration offices from which teachers would work were also on the ground floor. The second and third floor classrooms were occasionally used as dormitories by the military, and could house a battalion of 700-800 soldiers. He did not agree that it was impractical to have soldiers and students in the same house: some measures were taken but the students and soldiers were on good terms.", "221. He was shown the sketch of the school which had been submitted by the Government in the Çiçek case. He initially said that those plans related to the first building, he then said he was not sure and later confirmed that, in any event, it was not the third building.", "222. He had no authority over, or any function concerning, the military in the boarding school. No gendarmes were based there and no gendarme controls were carried out while the military were there. He agreed that it was possible that a military unit could detain someone in Lice Boarding School without the gendarme knowing.", "223. He confirmed that military units from outside the region (including the Bolu regiment) were on operation in his area. All gendarme officers at his level would know when an operation was taking place. They would not know all details, but would know generally from where the unit had come and where they would go on operation. Prior to such operations, military units were given a list of suspects and if suspects were apprehended during an operation, those persons could be held by the unit until it returned from operation when they would be handed over to the gendarmes.", "224. The witness was clear in his evidence that it was not possible to determine from the custody record alone whether the detainee had been initially apprehended by gendarmes or by the military.", "225. The witness was reminded that in the Çiçek case he was asked to explain why the names of certain persons, who had been noted in the Diyarbakır custody records as having been transferred from the Lice Central Gendarme Station, did not appear in that station's custody records. The explanation given by him in that case was that sometimes the detention room was “humid”, the detainees would be kept under supervision outside the detention room and, in such circumstances, they would not be entered in the custody record. He added that persons detained for further investigation or those detained on military charges could be detained outside of the custody room without being entered in the custody records for a few hours, while the relevant procedures were completed, before being handed over to the relevant prosecutor. This meant that the names of certain persons who were not free to leave the station may not have been in the custody record.", "226. The witness was born in 1967. He succeeded Hasan Çakır as Lice Central Gendarme Station Commander in mid-July 1994, a post he held for 2 years.", "227. Prior to giving evidence, the witness had never heard of allegations about the burning of Çağlayan or the disappearance of the Orhans. He felt it was wrong to discuss such allegations as the armed forces were there for the people and it was inconceivable that any such thing could happen.", "228. The witness confirmed that, while he was at Lice, military units from outside the region frequently carried out operations in his area. The Lice District Gendarme Commander (Şahap Yaralı) would inform him orally that operations would be conducted in certain areas, giving him the map co-ordinates of those areas, only sometimes identifying the units. Many units came on operation and sometimes the unit was from Bolu.", "229. While he could not remember a specific incident, units were not authorised to detain persons and were required to bring persons apprehended from the operation area to their unit and from there to a gendarme station.", "230. He identified his own signature on the Lice Central Gendarme Station custody records from in July 1994. He agreed that the custody records would not indicate who (the military or gendarmes) had initially detained an individual but other gendarme records containing this information would be on the prosecutor's file. If a person was not sent to the public prosecutor, those additional records were retained in the gendarme station.", "231. He also confirmed that persons could be at the gendarme station, not free to go and yet not be formally “taken into custody” and entered in the custody record (when, for example, the investigation documentation could be completed in the space of hours).", "232. He further stated that military units were frequently based at Lice Boarding School in vacant rooms. Since it was a period of intense PKK activity in the region, the school was rarely empty of military personnel. Once the military were there, the school was under their jurisdiction and control.", "233. The witness had visited the boarding school and said he could therefore guess its approximate structure.", "234. When asked why he would therefore visit the school, he initially said that the military occasionally called his district commander when they had apprehended someone during an operation and he would be asked to go to the school for that purpose. On being asked to clarify whether a military unit would therefore take a detainee to the school first before handing them over to the gendarmes, the witness said that he would meet the military on their way to the school and he later added that the military would generally come almost as far as his station to hand over detainees.", "235. Indeed it was “impossible” for a military unit to detain persons at the school. When he was informed that his predecessor in Lice Central Gendarme Station (Hasan Çakır) had said that it was possible, the witness responded that there was no point in taking detainees to the school and he had no idea what Hasan Çakır was talking about.", "236. The witness remembered three main buildings together with several small staff living quarters. One of the buildings contained classrooms, the second contained the students' refectory (yemekhane) and dormitories. The military were billeted in the third building, probably in the rooms originally designed as classrooms. Some of the school's teachers used administrative offices on the ground floor. There was also a place in the basement where teachers, students and soldiers would play table tennis together. The library was also situated in the third building, and there was probably a further refectory (yemekhane) for the military in that building. He later confirmed that it was a canteen (kantin) that was in the third building where food and even clothes could be sold to both the students and the military.", "237. He could not say to which building the sketch of the school submitted by the Government in the Çiçek case related.", "238. The witness, born in 1949, was a public prosecutor in the office of the Diyarbakır Chief Public Prosecutor.", "239. The only recollection he had of, and only involvement in, the allegations of the burning of Çağlayan and of the Orhans' disappearance was a statement he took from the applicant on 2 May 1995 in Diyarbakır and a follow-up letter dated 3 May 1995 to the Kulp Chief Public Prosecutor.", "240. Given the location of Çağlayan, the judicial investigation would have been carried out by the Kulp Chief Public Prosecutor. He was not part of that investigation. He took the applicant's statement because of the letter from the Ministry of Justice of 20 April 1995. He was therefore a channel through which the Ministry would direct its requests to the subordinate and competent district prosecutors' offices (in this case, Kulp). The reason he had interviewed the applicant personally was because he had been requested by the Ministry to establish the applicant's wishes and whether the form of authority signed in favour of British lawyers was genuine, and, having done so, to determine what action had been taken in connection with his application. From the interview the prosecutor learned the district to which the complaint related, the scope and kind of complaint in question and what kind of documents were to be requested and from which district. Hence his letter of 3 May 1995 to the Kulp Chief Public Prosecutor.", "241. The applicant's statement was taken with a clerk in a busy secretariat room at the Diyarbakır courthouse and not in a separate interview room. The witness followed the standard procedure for such matters: the witness put questions, the applicant answered, the witness listened and dictated to the clerk, who recorded the applicant's evidence as the applicant listened. The witness showed the applicant the form of authority and asked the applicant whether it was his signature, and whether or not he knew what it meant. The clerk typed the applicant's answers dictated in a loud voice by the witness; the witness made sure that the applicant had nothing to add, read the statement to the applicant and all three persons present signed it. The applicant told his story frankly, sincerely and without compulsion and it was accurately recorded in his statement. The witness could not understand why the applicant had later changed his mind.", "242. The witness denied having been angry and pointed out that, had he wished to protect the State, he would have left out the applicant's remarks which were critical of the State.", "243. The witness, born in 1969, was one of the two prosecutors at the Kulp Chief Public Prosecutor's office (January 1995 – October 1996).", "244. The two prosecutors in Kulp divided the work between them. When the prosecutor dealing with the applicant's complaint was on holiday, he reviewed the file and considered two letters to be necessary: that of 6 April 1995 (to the Lice Chief Public Prosecutor) because no response had been received to his office's letter of 11 July 1994 and that of 16 May 1995 (to the Diyarbakır Chief Public Prosecutor).", "245. The witness had reviewed the Kulp Chief Public Prosecutor's file prior to giving evidence and was asked some general questions about the investigation.", "246. He initially confirmed that a very detailed investigation had been carried out by both the military and civilian authorities. However, it was then pointed out to him that the report dated 15 May 1997 noted several allegations that the Orhans had been detained by the Bolu regiment and that there was no evidence of any enquiry of that regiment on the file and he was asked whether this was a satisfactory state of affairs. He responded that there was “clearly a deficiency in the investigation”. As to why there were two investigation reports on file (one dated 15 May 1997 signed by Kamil Gündüz and one dated 6 July 1999 signed by Yunus Güneş), the witness pointed out that the President of the District Administrative Council may have chosen, in his discretion, to re-launch the investigation with a second investigator if he found the first investigation inadequate.", "247. He also confirmed that a visit to Ramazan Ayçiçek in Lice prison by someone not a relative would have required the competent public prosecutor's permission.", "248. Finally, the witness confirmed that it was a matter of discretion as to how much guidance a prosecutor would give to the gendarmes asked to conduct an investigation. Sometimes no guidance was given. He also confirmed that, as a matter of general practice, it would be normal to communicate to the complainant the prosecutor's decision on lack of jurisdiction." ]

[ 0, 1, 2, 4 ]

[ "8. The applicant states that he is Ali Samy and that he is an Algerian national, born in 1968 in Algiers. He is currently living in the Netherlands.", "9. On 26 August 1996, the applicant was arrested and taken into detention on suspicion of theft. He was released on the same day. However, as it had appeared during the criminal investigation that he was likely to be an illegal alien, he was handed over to and, in accordance with Article 19 § 2 of the Aliens Act (Vreemdelingenwet), apprehended by the Aliens Department (Vreemdelingendienst) in order to verify his identity, nationality and residence status.", "10. On 27 August 1996, in accordance with Article 26 § 1 of the Aliens Act, the State Secretary of Justice (Staatssecretaris van Justitie) ordered the applicant's placement in aliens' detention with a view to his expulsion (vreemdelingenbewaring) and, on the same day, issued an expulsion order.", "11. The applicant's lawyer filed several unsucessful requests for the applicant's release from aliens' detention with the Hague Regional Court (arrondissementsrechtbank). In particular, a second request lodged on 29 November 1996 was rejected on 22 January 1997.", "12. On 7 March 1997, the applicant was released from detention because there was no real prospect of expelling him at that time as his origins could not be established.", "13. In a decision of 11 March 1997, the Hague Regional Court sitting in Amsterdam noted that the applicant had been released on 7 March 1997. The Regional Court found that the applicant's detention as of 27 February 1997 had not been lawful and awarded the applicant 1,200 Netherlands Guilders (544,54 euros) in compensation. The Regional Court also issued a costs order against the State Secretary of Justice." ]

[ 9 ]

[ "7. The applicant is an owner of an apartment house located in Warsaw. On 30 July 1992 the applicant's husband lodged with the Warsaw District Court an eviction claim against two of his tenants, T.M. and S.P. The first hearing took place on 18 December 1992. In 1993 hearings were held on the following dates: 15 January, 24 March, 6 and 18 May, 16 and 21 June, 16 July, 12 August, 24 September, 20 October, 17 and 30 November and 21 December.", "8. On 22 December 1992 the applicant's husband died and, accordingly, on 24 March 1993 the court stayed the proceedings invoking Article 174 § 1 (1) of the Code of Civil Procedure.", "9. On 6 May 1993 the applicant requested the court to resume the proceedings and her request was granted promptly afterwards. On 27 May 1993 the applicant revoked the power of attorney of her lawyer A.J. On 16 June 1993 she submitted all the documents requested by the defendants.", "10. At the next hearing, held on 30 November 1993, the court fixed twenty-one days' time-limit for T.M., the defendant, to institute administrative proceedings to have her tenancy rights, apparently originating from an administrative decision given in the 1940s or 1950s, confirmed.", "11. On 24 March 1994 the Mokotów Housing Administration, in reply to the court's query, informed it that relevant administrative proceedings had been instituted in respect of both defendants.", "12. On an unspecified later date defendant T. M. appealed to the Supreme Administrative Court against a decision by which the relevant authorities had discontinued proceedings in which she had requested that an administrative decision be given awarding her administrative tenancy rights. Likewise, on an unspecified date S. P. filed an appeal with the same court against a decision by which his request for confirmation of his tenancy rights had been refused.", "13. On 14 April 1994 the Warsaw District Court stayed the eviction proceedings until the end of the administrative proceedings instituted by the defendants and later on, by a decision of 14 July 1994, refused the applicant's request to resume the proceedings. On 28 July 1994 the applicant lodged an appeal against this decision. The case-file was forwarded to the Regional Court on 25 August 1994. The appeal was dismissed on 28 December 1994 by the Warsaw Regional Court.", "14. On 31 January 1995 the second-instance administrative authority refused to confirm T.M.'s tenancy rights.", "15. On 24 April 1995 the Warsaw District Court refused the applicant's further request of 18 February 1995 to resume the proceedings as the administrative proceedings concerning the tenancy entitlements of her tenants had not come to an end and remained pending before the Supreme Administrative Court.", "16. On 26 June 1995 the Supreme Administrative Court informed the applicant that the administrative proceedings instituted by the defendants T.M. and S.P. could not be accelerated.", "17. On 23 August 1995 the Warsaw District Court refused the applicant's next request to resume the proceedings, as the administrative proceedings concerning the administrative tenancy entitlements of her tenants remained pending before the Supreme Administrative Court. On 30 August 1995 the applicant complained to the President of the District Court about the excessive length of proceedings.", "18. On 29 January 1996 the Supreme Administrative Court dismissed an appeal lodged by T. M. against a decision by which she had been refused, by way of an administrative decision, confirmation of the right to a lease of the apartment in question.", "19. On 29 August 1996 the Warsaw District Court refused to resume the eviction proceedings as the second defendant S. P. had appealed to the Supreme Administrative Court against the first-instance administrative decision, which had been given in his case on 10 June 1996. The applicant lodged an appeal against this decision with the Warsaw Regional Court.", "20. By a letter of 19 November 1996 the President of the Regional Court informed the applicant, in reply to her complaint, that the length of the proceedings had been caused by the fact that the administrative proceedings concerning the tenancy entitlements of S.P. were still pending.", "21. On 16 December 1996 the court resumed the proceedings with respect to T.M. and on 22 January 1997 the proceedings were also resumed with respect to S.P., despite the fact that the administrative proceedings in respect of his tenancy rights remained pending. During the hearing held on 25 February 1997 the applicant was requested to specify her claim and to submit all necessary documentary evidence within one month. On 17 March 1997 the applicant's new lawyer specified her claims. On 24 April 1997 the next hearing was held before the Warsaw District Court.", "22. In a letter of 1 July 1997 the President of the Civil Division of the District Court informed the applicant, in reply to her complaint about the length of proceedings, that the proceedings in her case did not appear to be excessively lengthy.", "23. A hearing to be held on 3 July 1997 was adjourned as the summons to the defendant T.M. had not been duly served on him by the post.", "24. In a letter of 7 July 1997 the President of the District Court informed the applicant that the proceedings would most probably come to end at the hearing scheduled for 16 October 1997, as the taking of the evidence had almost been completed. Subsequently, a hearing was held on 16 October 1997.", "25. In 1997 the applicant requested the Ombudsman to intervene in her case. The Ombudsman, by a letter of 12 November 1997, informed her that he lacked competence to intervene in pending civil cases as to the merits. However, as the applicant had complained about the excessive length of the proceedings, the Ombudsman had requested the president of the District Court to provide him with relevant information. In reply, the Ombudsman had been informed that the proceedings were about to be concluded, as the taking of the evidence had been completed and only the parties were still to be questioned by the court.", "26. On 18 November 1997 the Supreme Administrative Court dismissed the appeal lodged by the second defendant S.P. against the administrative decision discontinuing the administrative proceedings to have his tenancy rights confirmed. The court considered that these proceedings had to be discontinued as under the Tenancy Act of 1994 tenancy contracts established by way of administrative decisions governed by administrative tenancies laws, previously in force, had ceased to exist. The court further observed that under applicable legal provisions any disputes as to the existence and scope of tenancy rights had to be brought before civil courts.", "27. On 23 March 1998 and 7 July 1998 hearings were adjourned as the court had not received a postal confirmation that the summonses had been properly served on the defendants.", "28. On 8 July 1998 the applicant complained about the length of the proceedings to the Ministry of Justice.", "29. The next hearing was scheduled for 8 October 1998 and before 5 August 1998 the court received the postal confirmation that the summonses had duly been served on the defendants. Apparently, a hearing was held on that date.", "30. In a letter of 5 August 1998 the President of the District Court stated, in reply to the applicant's complaint about the length of the proceedings, that she could not fully share the applicant's view.", "31. On 16 October 1998 the applicant complained to the Minister of Internal Affairs about the excessive length of the proceedings. On 20 October 1998 her complaint was transmitted to the Ministry of Justice. On 22 October 1998 a similar complaint, lodged with the Bureau of the Council of Ministers, was transmitted to the same Ministry.", "32. On 1 December 1998 the Warsaw District Court submitted a complaint to the Regional Bar Association about the unexplained absence of M.B., defendant S.P's lawyer, at a hearing.", "33. On 12 December 1998 defendant T.M. died.", "34. On 28 December 1998 another hearing took place before the Warsaw District Court. The defendant S.P's lawyer M.B. failed to attend it. The applicant withdrew her eviction claim with respect to T.M.", "35. On 7 January 1999 the defendant S.P. lodged with the Warsaw District Court a claim asserting right of adverse possession of the apartment in question. Apparently on the same day, he lodged with the same court a request to re-open the hearings in the proceedings concerning the applicant's eviction claim, in which the hearings had been closed on 28 December 1998. S.P. argued that the outcome of the newly instituted proceedings would be decisive for the eviction proceedings, which should therefore be stayed again.", "36. On 11 January 1999 the hearings in the eviction case were re-opened. On 7 April 1999 the Warsaw District Court stayed the eviction proceedings until the end of the proceedings instituted by the defendant S. P. claiming to assert the right of adverse possession, and discontinued the proceedings in respect of T. M. as the applicant had withdrawn her eviction claim. On 20 May 1999 the Warsaw Regional Court dismissed the applicant's appeal against that decision insofar as it concerned the order to stay the proceedings.", "37. The subsequent hearings in the proceedings concerning S.P.'s claim to have the right of adverse prescription confirmed took place on 8 December 1999, 22 March 2000 and 6 July 2000.", "38. On 17 July 2000 the Warsaw-Mokotów District Court dismissed S.P's claim, finding that the apartment where he lived had never constituted a separate tenement.", "39. On 7 September 2000 S.P. appealed against the above decision to the Warsaw Regional Court. On 7 June 2001 the Warsaw-Mokotów District Court ultimately rejected S.P.'s appeal against that decision.", "40. The eviction proceedings are still pending before the first-instance court." ]

[ 3 ]

[ "9. On 5 June 1995 police officers from the anti-terrorist branch of the İstanbul Security Directorate arrested the applicant, who was a student at the time, on suspicion of membership of an illegal organisation, the PKK.", "10. On 6 June 1995 the head of the anti-terrorist branch of the İstanbul Security Directorate wrote a letter to the Chief Public Prosecutor at the İstanbul State Security Court requesting permission for an extension of the applicant's detention in police custody until 12 June 1995. On the same day the Public Prosecutor no. 23783 granted the extension requested.", "11. On 12 June 1995 the Public Prosecutor no. 16429 at the İstanbul State Security Court questioned the applicant in relation to his actions within the PKK and submitted a petition to the İstanbul State Security Court requesting an order for the applicant's detention on remand.", "12. On the same day, the applicant was brought before the İstanbul State Security Court which ordered his detention on remand.", "13. On 23 August 1995 the Chief Public Prosecutor filed an indictment with the İstanbul State Security Court charging the applicant with membership of the PKK. The charges were brought under Article 168 § 2 of the Turkish Criminal Code and Article 5 of Law no. 3713 as well as Article 19 § 2 of Law no. 2918 (Traffic Act).", "14. On 9 August 1996 the applicant was released pending trial.", "15. On 18 November 1998 the applicant was sentenced to three years' imprisonment in accordance with Article 168 § 2 of the Turkish Criminal Code." ]

[ 2 ]

[ "9. Since 1971 the applicant has been suffering from diabetes. She is on insulin.", "10. On 19 August 1994 the applicant was arrested by policemen from Warsaw-East Railway Police Station (Komisariat Kolejowy Policji) and then taken to the Warsaw Sobering-up Centre (Izba Wytrzeźwień).\nThe facts surrounding the applicant's arrest and her stay in the sobering-up centre were in dispute.", "11. The applicant submitted that, on 19 August 1994, she had taken the 3.36 p.m. train from Łowicz to Warsaw-East. She fell asleep and then fell into a hypoglycaemic coma because she had taken her last injection of insulin at 6 a.m. She further claimed that despite her state she could recall that during and after her arrest she had been beaten by policemen, kicked on her legs and slapped on the face. She remembered persons in police uniforms but was unable to specify who of them had beaten her up or to depict those persons.", "12. The applicant confirmed that the policemen had later brought her to the Warsaw Sobering-up centre.\nUpon her arrival at the sobering-up centre, she immediately reported to W.Z., a doctor who admitted her to that centre, that she had been brutally assaulted by the policemen, that she suffered from diabetes and that she needed medical care. She maintained that the doctor, when she showed him her bodily injuries, commented: “They should have beaten you up even more badly.” He disregarded her. When she mentioned that she suffered from diabetes, he did not listen to her and refused to talk to her. The staff of the centre then tied her to a bed.", "13. The applicant submitted that she had asked that a breath test be carried out and that that test had been done; however, the staff of the centre refused to inform her of the result, saying: “This is none of your business.” After the test she was again tied to the bed. It was as late as 19 May 1995 when she eventually learnt from the investigating prosecutor that the breath test had shown 1.70 promille of alcohol in her blood.", "14. In the applicant's submission, she had twice requested the doctor to give her an insulin injection: on 19 August 1994 at about 11.00 p.m. and again on 20 August 1994 at about 6 a.m. He promised to give her medicines before her release, but he did not do so. She was released on 20 August 1994 at 9.00 a.m.", "15. The Government, in their version of the relevant facts, relied on evidence heard during the investigation from the policemen involved in the applicant's arrest, namely, D.R. and M.F. (who arrested her on the train) and E.M. (who did a body search of the applicant at the police station).", "16. D.R. and M.F. asserted that, in response to the applicant's resistance, they had disabled her. \nWhen she started to behave more aggressively and tried to make it impossible for them to escort her, D.R. hit the applicant on her legs two or three times with a truncheon. The applicant was aggressive and used vulgar expressions. That confirmed their suspicion that she was drunk.", "17. At the police station, when E.M. entered the cell in which the applicant was kept, she saw the applicant straining and struggling with the policemen who held her. She also kicked them. In E.M.'s words, “she looked as a person being in a state of madness”. Given the applicant's behaviour, the policemen used physical force against her by seizing her hands and legs, and holding her on the floor in order to enable E.M. to do a body search of the applicant. Since all the policemen who dealt with the applicant were convinced that she was in a state of alcoholic intoxication, she was brought to the Warsaw Sobering-up Centre. The policemen learnt that the applicant was a diabetic only as late as during the investigation.", "18. According to the Government, the applicant was admitted to the centre on 19 August 1994 at about 6 p.m. A doctor who examined her ascertained that she was intoxicated and that she had bruises on her thighs and buttocks inflicted by a truncheon. The doctor described the applicant as aggressive and vulgar.", "19. The document recording the applicant's stay in the sobering-up centre indicated that at 10.30 p.m. the applicant claimed that she had not drunk any alcohol and that she suffered from diabetes. At that time she underwent a breath test which showed 1.70 promille of alcohol in her blood. She did not tell the doctors that she was on insulin. Nor did she have on her the so-called “certificate of a person suffering from diabetes“ (książeczka chorego na cukrzycę). None of the doctors said that the policemen should have beaten her up even more badly.", "20. On 23 August 1994 the applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the policemen who had beaten her up and then detained in the Warsaw Sobering-up Centre. It appears that on that day she presented a report made by a forensic expert on 21 August 1994 and a medical certificate issued by Skierniewice District Hospital.", "21. The forensic report stated that the applicant had had six big blue bruises on her lower limbs.", "22. The certificate of 21 August 1994 confirmed that the applicant had been given medical assistance on that day and that she had had injuries to both legs with blood extravasations on both thighs and that she had suffered from pains in the right part of the chest and paraspinal region.", "23. On 16 September 1994 the applicant was summoned before B.S.F., a prosecutor from the Warsaw District Prosecutor's Office (Prokuratura Rejonowa), in order to make a formal notification of the commission of an offence (zawiadomienie o popełnieniu przestępstwa).", "24. On 17 October 1994 the Warsaw Praga-Północ District Prosecutor instituted an investigation “concerning abuse of their powers by officers from Warsaw-East Railway Police Station while carrying out their duties, resulting in infringement of [the applicant's] personal rights on 19 August 1994” and on suspicion “that the offence defined in section 142 of the Police Act of 1990 had been committed against [the applicant]”.", "25. On 22 December 1994 and on 5 January 1995 the investigating prosecutor heard evidence from D.R. and M.F.", "26. On 6 January 1995 the prosecutor discontinued the investigation, finding that no offence had been committed. He considered that the actions taken by the policemen against the applicant had been entirely legitimate. They had good reasons to believe that she had been intoxicated and they had taken correct actions, without abusing their powers. Furthermore, referring to the evidence gathered in the course of the investigation, the prosecutor stressed that the injuries sustained by the applicant had resulted from her aggressive behaviour and the breaking of her resistance by the policemen.", "27. The applicant appealed against that decision to the Warsaw Regional Prosecutor (Prokurator Wojewódzki). She maintained, among other things, that she had at the material time been in a hypoglycaemic coma, that her detention had been unlawful and that the policemen had severely assaulted her, in particular by beating her and kicking her in the legs. She referred, in particular, to the forensic report of 21 August 1994, listing her injuries.", "28. On 28 April 1995 the Warsaw Regional Prosecutor quashed the contested decision and ordered further investigation, holding, inter alia, that:\n“It is beyond any question that [the applicant] was brutally beaten up and kicked by the police officers and that, as a result, she sustained bodily injuries within the meaning of Article 156 § 2 of the Criminal Code. ...”", "29. On 16 May 1995 the investigating prosecutor heard evidence from E.M. On 19 May 1995 he again heard evidence from the applicant. He also ordered that medical evidence be obtained from M.P., a forensic expert.", "30. The expert submitted his report on 22 May 1995. He concluded, inter alia, that:\n“... the bodily injuries suffered by [the applicant] resulted in a health disorder within the meaning of Article 156 § 2 of the Criminal Code. They doubtless arose in the manner described by the victim and witness. There was indeed a cause-and-effect relationship between those injuries and subsequent health disorders.”", "31. On 23, 24 and 25 May 1995 the prosecutor heard evidence from W.Z. and W.B., doctors from the sobering-up centre and from A.S., one of the policemen from the Warsaw East Railway Police Station who was on duty on 19 August 1994. They stated that, given the passage of time, they did not remember whether any incident involving an intoxicated woman had taken place on 19 August 1994.", "32. On 30 May 1995 the Warsaw-Praga Północ District Prosecutor again discontinued the investigation, finding that no offence had been committed.", "33. On 13 November 1995, upon the applicant's appeal, the Warsaw Regional Prosecutor upheld the decision of the prosecutor at first instance and the reasons therefor, stressing that the injuries sustained by the applicant could well have resulted from kicks and blows by fists or from hits by a truncheon which, in the Regional Prosecutor's opinion, did not support her version of the incident in question." ]

[ 8, 4 ]

[ "9. On 28 July 1996 police officers from the anti-terrorist branch of the İzmir Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PRK-Rızgari.", "10. On 5 August 1996 the İzmir State Security Court ordered the applicants' detention on remand.", "11. On 28 August 1996 the Chief Public Prosecutor filed an indictment with the İzmir State Security Court charging the applicants with membership of the PRK-Rızgari and undertaking actions against the indivisible integrity of the state. The charges were brought under Articles 125 and 168 of the Criminal Code.", "12. In a judgment dated 14 August 1997 the İzmir State Security Court acquitted Ms Melahat Filiz of the charges, holding that there was insufficient evidence to convict her. The court found Mr Nadir Kalkan guilty of the offences under Articles 125 and 168 and sentenced him to capital punishment.", "13. On 19 September 1997 Mr Kalkan lodged an appeal with the Court of Cassation. The applicant did not submit any information concerning the outcome of the criminal proceedings against him." ]

[ 2 ]

[ "9. The first applicant, Mr Daruish Auni Al-Nashif, a stateless person of Palestinian origin, was born in 1967 in Kuwait. He resided in Bulgaria between September 1992 and July 1999, when he was deported. He now lives in Syria.\nThe second and third applicants, Abrar and Auni Al-Nashif, are the first applicant's children. They were born in Bulgaria in 1993 and 1994 respectively. They are of Bulgarian nationality and lived in the town of Smolyan, Bulgaria, with their mother, Mrs Hetam Ahmed Rashid Saleh, apparently also a stateless person, until June 2000. Thereafter, Mrs Saleh and the second and third applicants left Bulgaria and settled in Jordan.", "10. The first applicant describes his personal circumstances as follows. His father, who died in 1986 in Kuwait, was a stateless person of Palestinian origin. His mother is a Syrian citizen. Despite the fact that he was born in Kuwait and that his mother is a Syrian citizen, the first applicant cannot acquire Kuwaiti or Syrian nationality because in both countries only offspring of male nationals of those States may obtain citizenship.", "11. The first applicant lived in Kuwait until the age of 25. He attended high school there and obtained a degree in electronics. In 1992 he married Mrs Hetam Saleh. The parties have not stated the nationality of Mrs Saleh, whose parents live in Jordan. It appears undisputed, however, that the second and third applicants, her children, became Bulgarian nationals pursuant to a provision which confers Bulgarian citizenship on children born in Bulgaria to stateless parents.", "12. Mr Al-Nashif has two sisters who live in Syria. His mother also lives in Syria, in the city of Hama. He also has a brother who lived in Kuwait at least until 1994 and has resided in Bulgaria, where he married a Bulgarian national, since 1998.", "13. The first applicant submits that after the Gulf War many Palestinians were expelled from Kuwait as Palestinian leaders had supported the Iraqi invasion in 1990. He left Kuwait with his wife, Mrs Saleh, on 16 August 1992 and travelled to Syria and then, on 20 September 1992, to Bulgaria. The first applicant submits that he was in search of a country in which to settle. He could not stay in Syria as he was unable to provide for his family there. The choice of Bulgaria was made because of the existing job opportunities, the relatively easy procedure for obtaining legal status, and the fact that the family had friends of Palestinian origin living there.", "14. Mr Al-Nashif and Mrs Saleh arrived in Bulgaria on 20 September 1992. The first applicant was in possession of a Syrian stateless person's identity document, valid until 1993, which he later renewed at the Syrian Embassy in Sofia. In an application form for a residence permit he indicated Hama, Syria, as his place of residence.", "15. On an unspecified date shortly after his arrival the first applicant obtained a temporary residence permit. Mr Al-Nashif, together with other persons, ran a beverages production business. He and his wife initially resided in Sofia, where the second and the third applicants were born in 1993 and 1994.\nIn February 1995 the first applicant obtained a permanent residence permit.", "16. In February 1995 the first applicant contracted a Muslim religious marriage with a Ms M., a Bulgarian citizen. Under Bulgarian law that marriage has no legal effect.\nMs M. lived in Sofia with her mother. During an unspecified period of time Mr Al-Nashif supported them financially. \nIt is undisputed that after the religious marriage with Ms M. the first applicant continued living with Mrs Saleh and their children in Sofia.", "17. At the end of 1995 he and Mrs Saleh, together with their children, moved to Smolyan, a town of about 34,000 inhabitants in Southern Bulgaria, some 300 km away from Sofia. There the first applicant ran a butcher's shop and beverages production unit until his deportation in July 1999. Between November 1998 and April 1999 he also taught Islamic classes.", "18. At the beginning of 1996 Ms M. followed the first applicant to Smolyan, where she stayed several months in an apartment rented by him. She often joined Mr Al-Nashif during his business trips to towns in Bulgaria.\nThe first applicant stated that while in Smolyan he had continued living “on a permanent basis” with his wife Hetam Saleh and their two children, the second and the third applicants. He submitted copies of two affidavits, made in June 2000 by his wife, Mrs Saleh, and by his sister-in-law, the wife of his brother, who had resided in Bulgaria since 1998, both confirming that Mr Al-Nashif lived in Smolyan with Mrs Saleh. \nIn a statement made on 19 January 2001 at the request of the Government for the purposes of the hearing in the present case, Ms M. stated that the first applicant had lived with her in Smolyan.", "19. Ms M. apparently suffered from a mental disturbance. In December 1996 she was hospitalised in a psychiatric clinic. Thereafter she did not return to Smolyan and stayed in Sofia.", "20. Throughout 1997 the first applicant visited Ms M. in Sofia. Their relationship ended in early 1998.", "21. On 14 January 1999 a police officer in Smolyan reported to his superiors (see paragraph 63 below) on Mr Al-Nashif's religious activities.\nOn an unspecified date in 1999 the Regional Prosecutor's Office (окръжна прокуратура) in Smolyan opened file no. 18/99 which was later transmitted to the police.\nThe local police in Smolyan, by a report of 18 March 1999 to the Identity Papers and Passport Regime Department (Направление “Документи за самоличност и паспортен режим”) of the National Police Directorate at the Ministry of the Interior (“the Passport Department”), proposed that the first applicant's residence permit be revoked.", "22. On 19 April 1999 the Passport Department issued an order (“Order no. 63552”) revoking the first applicant's permanent residence permit. The order stated that it was based on Section 40 (1)(2) and Section 10 (1)(1) of the Aliens Act (Закон за чужденците), which provide for the revocation of the residence permit of a foreigner who poses a threat to “the security or the interests of the Bulgarian State” (see paragraph 68 below). No further details were mentioned. The order was transmitted to the Smolyan police with the instruction to inform the first applicant and to allow him 15 days to leave the country.\nOrder no. 63552 was served on the first applicant on 27 April 1999. He was not given any additional information.", "23. On 30 April 1999 two national newspapers, Duma and Monitor, published articles explaining that the first applicant did not have permission to teach the Muslim religion, that he had taken part in an unauthorised religious seminar in 1997 and that he was linked to “Muslim Brothers”, a fundamentalist organisation.", "24. In May and June 1999 the local Muslim religious leader in Smolyan and the Chief Mufti of the Bulgarian Muslims filed with the Ministry of the Interior and with other institutions letters supporting the first applicant. They confirmed that Mr Al-Nashif had been teaching with their authorisation, and in full conformity with Article 21 § 5 of the Statute of the Muslim religious denomination, which in turn had been approved by the Council of Ministers. The Chief Mufti also stated that the police in Smolyan had made defamatory statements to the press, falsely portraying Mr Al‑Nashif as a dangerous terrorist connected with a fundamentalist organisation. The local Muslim religious leader in Smolyan stated, inter alia, that the measures against Mr Al-Nashif constituted “a demonstration of, and incitement to, anti-Islamic and xenophobic tendencies”.", "25. In May 1999 the first applicant requested and obtained a certificate that he had never been convicted of a criminal offence. He needed the certificate in order to apply for Bulgarian citizenship.", "26. On 9 June 1999 the National Police Directorate issued Orders nos. 503 and 504 for the first applicant's deportation, his detention and his exclusion from Bulgarian territory.", "27. Order no. 504 provided that the first applicant was to be deported based on Section 42 of the Aliens Act. It was further ordered that, in accordance with Section 44 (4) of the Aliens Act, the first applicant was to be placed at the Adults' Temporary Placement Centre (Дом за временно настаняване на пълнолетни лица) in Sofia. Order no. 504 finally stated that pursuant to Section 47 (1) of the Aliens Act the decision was not subject to appeal. Order no. 503 prohibited the first applicant's re-entry on Bulgarian territory.\nThe two orders did not state any reasons.", "28. They were served on the first applicant on 10 June 1999 in Smolyan, at the local police station, in the presence of his lawyer. He was not given further details of the reasons underlying the measures against him. He was immediately arrested and transferred to the detention centre in Sofia.", "29. On the same day the Ministry of the Interior issued a press release announcing the orders for the first applicant's deportation and exclusion. It stated, inter alia:\n“In 1995 Mr Al-Nashif undertook steps ... with a view to opening an Islamic religious study centre. That provoked a significant negative public reaction, reflected in the media, and the interference of the ... State organs prevented the realisation of the project.\nIn 1997 an Islamic study seminar was held in Narechenski Bani with Mr Al‑Nashif's active participation. Those activities of the organisers, including Mr Al Nahsif, were considered unlawful and were therefore terminated by the police. [The organisers and Mr Al-Nashif] were warned that they could not engage in such activities without permission and licence as required by law.\nIn the end of 1998 and the beginning of 1999 it became known that Mr Al-Nashif was teaching the Koran to ... minors, organised in groups of 10-15 children, with the financial assistance of the company ...[illegible]. An inquiry was undertaken, which disclosed that Mr Al-Nashif engaged in activities for which he had no permission or qualification. Therefore, and under ... the Aliens Act, his residence permit was withdrawn ... Orders for his deportation and exclusion were issued ... [and] served on 10 June 1999 ... Al-Nashif was transferred to the [detention centre] in Sofia and will be deported...”", "30. The conditions at the detention centre, which is located in the proximity of the Sofia airport, were equivalent to prison conditions. Inmates were held permanently behind bars and could leave their cells for a daily one-hour walk and also for the time necessary to use the toilet, every morning and evening.", "31. Mr Al-Nashif was detained there for 26 days in complete isolation. Despite numerous requests from his lawyer, human rights groups and representatives of the Muslim community, no visitor was allowed to meet him.", "32. Following the first applicant's arrest on 10 June 1999 the competent authorities observed that he was not in possession of a document valid for international travel. On 14 June 1999 the Passport Department wrote to the Bulgarian Foreign Ministry requesting its assistance in obtaining of a laissez-passer from the Syrian Embassy in Sofia. The Syrian Embassy issued that document on 28 June 1999. On 1 July 1999 the Passport Department contacted Balkan Bulgarian Airlines.\nOn 4 July 1999 the first applicant was deported from Bulgaria. He was brought to the airport and put on the first available direct flight to Damascus.", "33. His wife, Mrs Saleh, and their children initially remained in Bulgaria. In May 2000 the second applicant, who was then seven years' old, completed first grade in the elementary school in Smolyan. The third applicant, who was six years old at that time, attended preparatory school.", "34. As Mrs Saleh had no income in Bulgaria and the first applicant was unable to provide financial support from Syria, on 29 June 2000 Mrs Saleh and the second and third applicants left Bulgaria. They went initially to Syria where they stayed for a month with Mr Al-Nashif. As there was allegedly no room for the family there, Mrs Saleh and the children went to Jordan, to the home of Mrs Saleh's parents. Mr Al-Nashif travelled to Jordan on a one-month visa and on 5 September 2000 returned to Syria as he had allegedly no legal right of remaining in Jordan.", "35. On 4 May 1999 counsel for Mr Al-Nashif submitted appeals against Order no. 63552 (the revocation of residence order) to the Supreme Administrative Court (Върховен административен съд) and to the Ministry of the Interior.", "36. The latter appeal was rejected on 1 June 1999 by the National Police Directorate at the Ministry of the Interior. The decision stated that in accordance with Section 47 (1) of the Aliens Act an order concerning a matter of national security was not subject to review.", "37. The appeal to the Supreme Administrative Court was transmitted by decision of the court to the Ministry of the Interior with instructions to complete the case-file. Thereafter it was transmitted to the Sofia City Court (Софийски градски съд), which was competent to deal with it.", "38. On 28 June 1999 the Sofia City Court, sitting in camera, granted Mr Al-Nashif's lawyer's request for a stay of execution. The court noted that orders issued under the Aliens Act were not subject to judicial review if they directly concerned issues of national security. The court found, however, that the evidence submitted to it by the Ministry of the Interior did not support the allegation that the first applicant posed a threat to national security or to the national interests. In these circumstances the court considered that the appeal could not be declared inadmissible at that stage, the holding of a hearing being necessary. Pending such hearing it was appropriate to stay the execution of Order no. 63552 to avoid an infringement of the first applicant's rights.", "39. On 30 June 1999 the Passport Department filed an objection with the Sofia City Court against its ruling of 28 June 1999 and submitted “certificate” no. 2701/30.6.99 which stated that Mr Al-Nashif\n“had committed acts against the national security and the interests of the Republic of Bulgaria, consisting in unlawful religious activity on the territory of the country encroaching on the national interests and the rights of the religious, ethnic and minority groups in the conservation of the national and cultural values and traditions”.", "40. On 1 July 1999 the Sofia City Court, sitting in camera, reversed its ruling of 28 June 1999 and rejected the first applicant's appeal against Order no. 63552. The court noted that the Passport Department had certified that Mr Al-Nashif had committed acts against national security. The court also noted that the Passport Department had classified these acts as falling with the scope of Section 10 (1)(1) of the Aliens Act. It followed that Order no. 63552 concerned issues of national security and was not subject to judicial review.", "41. Counsel for the first applicant learned about the rejection of Mr Al‑Nashif's appeal on 26 July 1999. On 28 July 1999 she appealed to the Supreme Administrative Court. These proceedings ended by judgment of the Supreme Administrative Court of 4 April 2000, which found that orders issued under Section 40 (1)(2) in conjunction with Section 10 (1)(1) of the Aliens' Act were not subject to appeal and need not be reasoned. They should merely state the legal provision on which they were based.", "42. On 17 June 1999 the first applicant's lawyer appealed to the Sofia City Court against his detention. She relied on Article 5 § 4 of the Convention. On an unspecified date the President of the Sofia City Court ruled that the appeal was inadmissible.", "43. On 19 June 1999 counsel for the first applicant complained to the competent prosecution authorities against the detention of Mr Al-Nashif and stated that she had been refused access to her client. On 27 July 1999 the competent prosecution authority dismissed the appeal. It found that the police had acted within their powers.", "44. On 18 June 1999 counsel for the first applicant appealed to the Sofia City Court against Order no. 504 (the deportation and detention order). Counsel stated, inter alia, that the first applicant's appeal against the revocation of his residence permit (against Order no. 63552) was still pending, that he had never sought to abscond and that he had reported voluntarily to the Smolyan police station when summoned. She again relied on Article 5 § 4 of the Convention and Article 13 of the International Covenant on Civil and Political Rights (ICCPR) and also requested a stay of execution.", "45. These proceedings have not resulted in any decision. On 7 September 1999 the Passport Department filed an answer requesting the rejection of the appeal. There has been no hearing in the case.", "46. On 11 June 1999 the first applicant's lawyer complained to the Ministry of the Interior, the Chief Public Prosecutor (Главен прокурор) and other institutions. She alleged violations of, inter alia, Article 8 of the Convention and Article 13 of the ICCPR.", "47. In August 1997 Mr Al-Nashif took part in a religious seminar in Narechenski Bani. The seminar was attended by several Bulgarian Muslim religious leaders of national and regional level, including the person who in November 1997 was elected to the post of, and then registered by the competent Governmental agency as, Chief Mufti of the Bulgarian Muslims. At a certain point during the seminar the police arrived, and took away printed material and videotapes used at the seminar. No relevant criminal proceedings against any participant at the seminar have ever been brought.", "48. In November 1998 the first applicant started teaching religious classes. They took place every Saturday and Sunday between 4 p.m. and 6 p.m. in the building of the District Muslim Organisation in Smolyan, and were attended by Muslim children and occasionally by their parents. The classes were organised together with the board of the Muslim religious community in Smolyan. On 15 September 1998 the board had invited Mr Al-Nashif to teach a course in the Islamic religion to children and their parents. Its decision stated that the first applicant was suitable for the job as he knew the Bulgarian language and had a good reputation. On 5 November 1998 the District Mufti Office (районно мюфтийство) issued to the first applicant a certificate stating that he was authorised to preach on the territory of the Smolyan district in accordance, inter alia, with the Statute of the Muslim religious denomination in Bulgaria and the decisions of the Supreme Muslim Council (Висш мюсюлмански съвет). The certificate was later confirmed by the Chief Mufti of the Bulgarian Muslims.", "49. The Government asserted that shortly after his arrival in Smolyan in 1995 the first applicant, together with local Muslims, had sought to organise an Islamic study centre, that he had rented a house for that purpose, that his plans had provoked a negative public reaction and that after having established through an inquiry that the requirements of the Religious Denominations Act had not been met, the competent authorities had prevented the realisation of the project. There had been allegedly a danger that the Islamic centre would propagate extremist views. Mr Al-Nashif had been orally warned against engaging in unlawful religious activities.", "50. In support of the above statement the Government submitted copies of several newspaper articles and four declarations, one of which was signed by 65 inhabitants of Smolyan protesting against the opening of an Islamic centre in town. \nThe Court notes that the names on the list of those who signed the protest suggest that it was supported exclusively by persons of Bulgarian ethnic origin.", "51. The Government have not submitted any information pertaining to the alleged inquiry undertaken by the competent authorities or the requirements of the Religious Denominations Act that had not allegedly been met.", "52. The first applicant submitted that he had intended to open a computer training centre, but had abandoned his plans after meeting a hostile reaction from people who considered that the computer centre would be a front for religious courses.\n(b) Alleged aggressive fundamentalist proselytism", "53. The Government alleged that the first applicant had sought to impose fundamentalist Islam on others through the use of force and threats.", "54. In support of that allegation the Government submitted two statements by Ms M., the person whom the first applicant had married through a Muslim religious ceremony. \nThe first statement was written by her on 2 September 1996. On that day Mr Al-Nashif had locked her up in her room in a hotel where they had been staying during a trip to Pleven. Ms M. had called the police. She and the first applicant had been brought to the police station where they had submitted written statements and had been released. No charges had been brought against Mr Al-Nashif on that occasion. He submitted that he had locked the door as Ms M. had been in a depressed state and could have hurt herself.", "55. In her statement to the police Ms M. wrote that the first applicant had told her that she should believe in Mohamed or burn in Hell, but she had replied that she loved Jesus Christ. The first applicant had also told her to dress as a Muslim woman. She further stated that she had read in the local press about the threat of fundamentalism in Smolyan. She knew that people with “black briefcases full of 100 dollar notes” were entering Bulgaria with the purpose of spreading Islam, brainwashing Bulgarians and waging “Jihad - death to Christians”. She knew that they were using “bombs, guns, sedatives and other inadmissible means in order to smuggle into the country illegal [copies of the] Koran, drugs, and more”.", "56. The Government submitted a second written statement by Ms M., which was made on 19 January 2001 and addressed to the Court, for the purposes of these proceedings. That statement repeated Ms M.'s earlier allegations and added that the first applicant had operated with large amounts of cash, had given charity for the building of mosques and religious schools and had distributed food and clothes. He had allegedly made video tapes recording the results of his activities and had sent them to his benefactors “in the Islamic states”.\n(c) Alleged links with fundamentalist organisations", "57. The Government stated (in submissions to the Court and through the “information note” described below) that Mr Al-Nashif had been a representative of the Islamic foundation Tayba, which had allegedly continued the activities of the “banned” foundations Irshad and Al Wakf Al Islami. \nFurther, Mr Al-Nashif had registered several commercial firms in Bulgaria and his partners in these firms had included persons who had been co-ordinators of fundamentalist organisations such as Tayba, Irshad and El‑Manar. Finally, there existed information that Mr Al-Nashif had performed management and co-ordination functions in the “illegitimate” Union of Islamic Organisations, Bulgarian branch.\nThe Government did not provide further details about those organisations.", "58. The first applicant replied that he had never been a representative for the Tayba foundation which, in any event, as of 2001, was still functioning lawfully in Bulgaria. It had been registered in Bulgaria in 1995. By Decision no. 325 of 7 July 1998 the Council of Ministers had authorised the foundation to engage in religious activities. \nThe Irshad foundation was not a fundamentalist organisation either. It had been registered in Bulgaria in 1991 and as recently as 2001 the competent court had certified that its registration had not been terminated. The former Chief Mufti, whose election to that post had been registered by the Government in 1997, was a member of its managing board.\nThe El-Manar foundation had indeed been dissolved on 15 February 1996 on the ground that its goals were unlawful. However, its representative had not been among the persons named by the Government as Mr Al‑Nashif's business partners.\nThe applicants submitted copies of certificates issued by the legal persons' register at the competent court.\n(d) Alleged fundamentalist activities at the Narechenski Bani seminar", "59. The Government stated that the seminar had been organised under the auspices of the Irshad foundation, which was allegedly known as one of the disguised creatures of the Muslim Brothers, a fundamentalist organisation. The police had considered the seminar unlawful and dangerous for national security. The printed and video material that had been confiscated had disclosed preaching of “religious and ethnic extremism”. The police had put an end to the seminar. Two of the instructors who had participated had been deported from Bulgaria. Mr Al‑Nashif had allegedly been one of the organisers. He and all other participants had received oral warnings.", "60. In support of these allegations the Government submitted copies of newspaper articles.", "61. The applicants submitted a declaration by the Chief Mufti of the Bulgarian Muslims, dated 1 August 2000, apparently prepared for the purposes of the present case, stating that the only sponsor of the 1997 seminar had been the International Youth Assembly Nedua, registered in Saudi Arabia and in many other countries, including Bulgaria. The Chief Mufti further stated that the seminar had been devoted to traditional religious teaching. The police had gone there, apparently in response to an anonymous call. They had taken away material, part of which they had then returned. As the police had not established any wrongdoing, the seminar had continued after an interruption.\n(e) Alleged danger stemming from the Islamic lessons given by the first applicant from November 1998 to April 1999", "62. The Government stated that against the background of the first applicant's religious activities between 1995 and 1998 the authorities had justifiably feared that the classes given by him to children could be dangerous.", "63. In support of this allegation the Government submitted copies of newspaper articles and a copy of a one-page report by a police officer in Smolyan, addressed to his superiors. The report, dated 14 January 1999, stated as follows:\n“I report hereby that I received the following information through a third person:\n...[A] Mr Daruish Auni, Syrian national, preaches to some of the inhabitants in [a] neighbourhood [in Smolyan].\nHe disseminates Arab literature and offers aid: money, as well as [sacrificial] meat, Kurban. There exist indications that audio cassettes with religious content are being distributed and that people listen to them in their homes.”", "64. The first applicant categorically denied the allegation that he had offered money or any other incentive to encourage attendance at his religious courses.\n(f) The “information note” of the National Security Service", "65. After the hearing on the admissibility and merits of the case the Government submitted an “information note” issued on 19 January 2001 by the National Security Service, apparently for the purposes of the proceedings in the present case. The note reiterated the allegations submitted by the Government as regards Mr Al-Nashif's religious activities, including Ms M.'s contention that he had been receiving money from abroad “in suitcases full of USD 100 bills”." ]

[ 2, 4 ]

[ "7. The applicant lives in Zaussenberg in Lower Austria.", "8. In 1983 agricultural land consolidation proceedings, involving the property of the applicant's mother, were instituted by the Lower Austria District Agricultural Authority. On 9 September 1983 the authority ordered the provisional transfer of compensatory parcels.", "9. On 7 October 1987 the District Agricultural Authority issued the consolidation scheme, against which the applicant's mother appealed.", "10. On 5 June 1991 the Supreme Land Reform Board partly allowed the appeal lodged by the applicant's mother and awarded her compensation. This decision was quashed by the Administrative Court on 19 September 1994.", "11. On 20 February 1995 the applicant filed a declaration that he wanted to pursue the proceedings as his mother's legal successor.", "12. After a new decision by the Supreme Land Reform Board, reassessing the compensation issue had been quashed by the Administrative Court on 29 October 1996 it gave a further decision on 7 May 1997 granting a higher amount of compensation.", "13. On 18 February 1999 the Administrative Court upheld this decision." ]

[ 3 ]

[ "9. The first applicant, Roman Berliński, is a Polish national born in 1971. The second applicant, Słavomir Berliński, is a Polish national born in 1974. The applicants are brothers. At present they live in Poland.", "10. On 4 October 1993 the applicants, who practice body-building, were attending an athletics club at a Lublin university. The club manager urged the applicants to exit, as they had been present at the club without the appropriate permission. He warned that he would call the police if they did not leave. The applicants did not agree to leave. The manager called the police, and six uniformed officers arrived soon thereafter.", "11. According to the applicants' account, the officers allegedly “showed a hostile attitude” towards them and “were not interested in checking their [identity documents] but simply to force them out” of the athletics club. The policemen “immediately wanted to handcuff them and pulled their arms backwards”. The applicants state that they “resisted this treatment”. The first applicant “managed to get free for a moment”, while the second applicant was “pushed and pulled” by two police officers. He was treated with tear-gas and struck with a stick.", "12. According to the Government, the applicants resisted and attacked the policemen who were trying to apprehend them. One of the officers was kicked in the face and another in the crotch.", "13. The parties submit that only when one officer drew a gun from his holster did the applicants yield. They were then handcuffed.", "14. The applicants were immediately put in a police vehicle.", "15. The Government state that the applicants still resisted whilst being taken to the vehicle, and force again had to be used against them.", "16. The applicants were taken to a police station situated 4 kilometres from the athletics club.", "17. According to the applicants' account, in the police van they were put on the ground and stayed handcuffed. The van had no separate cell for the arrested. The policemen and the applicants were closed together in the rear part of the van. The applicants “had no chance but to expose their bodies to the treatment of the policemen”. They “suffered heavy blows in their heads, kidneys, backs and spines”. The policemen used their police sticks to beat them up. The first applicant lost consciousness.", "18. The Government deny that any ill-treatment occurred in the van.", "19. At the police station the applicants were briefly questioned. The part of the first applicant's custody interview record concerning his physical condition reads: “before [the arrest the applicant was] well, at present [he complains of] pain in the left eye, the neck, the left kidney, the jaw and the head”. The relevant part of the second applicant's custody interview record reads: “pain in the temples, the hands, the nose, the teeth, the right thumb”. In the late evening of the same day the applicants were examined by doctors. The x-ray photograph of the first applicant's cranium showed no apparent injuries to his head. On the basis of the applicants' physical examination, which disclosed no problems in their circulatory and respiratory systems, a doctor concluded that they could be regarded as fit for detention.", "20. The applicants remained in custody until the afternoon of the next day, 5 October 1993, when they were brought before a district prosecutor. They were released after having been questioned by the prosecutor.", "21. The first applicant was taken to a hospital where he remained for 11 days. The second applicant was taken to the same hospital, was immediately released, and later underwent out-patient treatment.", "22. On 5 October 1993, when being questioned by the prosecutors, the applicants complained that they had been beaten up by the police officers in the athletics club and in the police van. The applicants said that they had doubts as to the officers' identity, and that they had asked the policemen to present documents attesting to their authority. They alleged that the officers had refused to do so and that the policemen had instead attempted to arrest them. The applicants further stated that, in the police van, which lacked a separate cell for the arrested, the officers had started to inflict heavy blows all over their bodies. They had been defenceless and had not been able to lessen the impact of the blows because of their hands being handcuffed behind their backs and themselves being pushed onto the vehicle's floor. They submitted that the officers had beaten them all the way to the police station.", "23. On 15 March 1994 a district prosecutor, on suspicion that offences against the applicants' personal rights had been committed in breach of the Polish Criminal Code and the Police Act, instituted investigations relating to the applicants' complaints against the police officers. The police officers who allegedly ill-treated the applicants were regarded as witnesses, not as accused, in the proceedings.", "24. The applicants were called to appear before the district prosecutor on 25 March 1994, but failed to present themselves on that date.", "25. On 28 March 1994 the prosecutor examined a witness DK (policeman). On 30 March witnesses MK and MS (police officers) were examined. On 6 April witnesses MW (the applicants' acquaintance) and EP (the club manager) were questioned. On 13 April the prosecutor summoned witnesses JS and MB, and on 20 April he summoned a witness PW (all police officers).", "26. The applicants were examined on 5 and 9 May 1994. During the inquiries the applicants maintained that the officers had been very hostile towards them from the very beginning, that they had not asked them to leave the athletics club, and that they had, without any reason, beaten them up. The policemen contended that they had been attacked by the applicants, and that only threatening them with a firearm had permitted their apprehension.", "27. On 23 May 1994 the prosecutor heard witnesses MW, JR and JN (police officers). On 24 May 1994 he summoned witnesses AG and JP (doctors). On 26 May the prosecutor examined a witness DJ, and on 27 May he questioned a witness MH (both doctors).", "28. The investigation into the conduct of the policemen was prolonged by decision of a regional prosecutor of 10 June 1994, with a view to examining further witnesses.", "29. On 14 June 1994 the district prosecutor examined witnesses AW and RM (doctors).", "30. On 16 June 1994 the Forensic Department of the Białystok Academy of Medicine produced an opinion as to the applicants' physical condition following the incident. The opinion was delivered at the request of the Lublin District Court in the proceedings against the applicants (also see § 44 below).", "31. The forensic experts, based on the medical records collected throughout the applicants' treatment from 5 October 1993, found that immediately after the incident the first applicant had a haematoma around the left eye, a bruise of 2 x 2 cm on the back of his head, a bruise with grazed skin of 7 x 7 cm on the left side of his jaw, four band-like bruises of significant size on his chest, and that his abdomen and spine were sensitive. The second applicant had small isolated bruises on his chin and neck, bruises on a grazed upper lip, an inner wound in the mucous membrane of the upper lip, lesions of the front teeth, and an injury to the right knee and wrist.", "32. The forensic experts also stated that several days after the incident the first applicant had been increasingly complaining of pain in his head, vertigo, diminished clarity of sight and hearing, and that the second applicant had been complaining about a weak right hand, diminished sensitivity of his fingers, severe headaches, vertigo, nausea, pain in the spine and a reduced ability to move. The experts noted that the subsequent examinations of the applicants had not confirmed any deviations from the normal state of their heath. The experts stated that on 8 October 1993 the first applicant should have been released from hospital but remained following an intervention by the applicants' father. The experts also stressed that the father, himself a doctor, during his visits at the hospital had been instructing the first applicant of what and how he should complain. The first applicant had been released from hospital on 15 October 1993, although after this date he underwent further out-patient treatment of his jaw, chest and spine.", "33. The forensic experts concluded that the injuries sustained by the applicants might have occurred from the use of a rigid, blunt instrument, e.g. a truncheon, and that the lesions might have occurred in the circumstances alleged by them, e.g. from blows by truncheons and fists. The experts held that the damage caused by these injuries to the applicants' soft tissues did not last more than seven days, but that those injuries were serious enough to warrant application of Article 156 § 2 of the Polish Criminal Code [causing light bodily harm] against the police officers. The experts also emphasised that the applicants' grievances had contained a certain measure of simulation and exaggeration.", "34. On 29 June 1994 the district prosecutor requested experts at the Wrocław Academy of Medicine to produce a medical opinion specifically in the context of the proceedings concerning the applicants' allegations against the police officers.", "35. By decisions of 9 September and 15 November 1994 the regional prosecutor again prolonged the investigation.", "36. The opinion of the experts at the Wrocław Academy of Medicine was produced on 6 December 1994. They found that following the arrest the first applicant had had bruises on his face and a swollen left eye, and that the second applicant had isolated bruises on the face, a grazed lip and lesions of three teeth. The experts also found that the first applicant had not been suffering from concussion. The experts stated that the injuries of the applicants could occur in the circumstances alleged by the police officers, the applicants or in other circumstances.", "37. The applicants requested the district prosecutor to hear additional witnesses, namely their parents, two district prosecutors and an American basketball player who had witnessed the events of 4 October 1993. On 9 September 1994 the prosecutor dismissed the request on the ground that the applicants' parents had not witnessed the incident, that the testimonies of the prosecutors had not been relevant to the determination of the facts, and that the statements of the American basketball player had been recorded in the proceedings against the applicants. On these grounds the prosecutor considered that no examination of further witnesses was necessary.", "38. On 12 December 1994 the prosecutor decided to discontinue the investigation against the policemen. The prosecutor held that there was a lack of evidence in favour of the applicants' allegations that the officers had committed an offence. On the basis of witnesses' evidence, he held that the policemen had been compelled to use force only following the applicants' refusal to leave the sports club. The prosecutor did not establish that any force had been used against the applicants in the police van. By virtue of the medical opinion of the Wrocław Academy of Medicine, the prosecutor stated that the fact of the applicants' hospitalisation for seven days did not necessarily infer that the full period of seven days had been required to complete the treatment of lesions suffered by the applicants. The prosecutor concluded that “the injuries [sustained by the applicants] could occur both in the circumstances alleged by themselves, as well as in the circumstances alleged by the police officers”. Given the principle of benefit of doubt in favour of the accused, the prosecutor decided to discontinue the case against the police officers.", "39. The applicants appealed against the decision. On 16 January 1995 a regional prosecutor dismissed the appeal and finally discontinued the proceedings. The regional prosecutor found no “unequivocal evidence” of the officers' guilt. He held that the district prosecutor had properly assessed the collected material, and that he had adopted a well-motivated decision.", "40. After questioning the applicants on 5 October 1993, a district prosecutor commenced investigations against them on suspicion that they had attacked the police officers, thereby obstructing them in the course of their duties. On the same day the prosecutor ordered the applicants' bail on suspicion of their having committed an offence under Article 234 of the Criminal Code in regard to the events of 4 October 1993.", "41. On 6 October 1993 the applicants appealed against the bail decision, requesting the prosecuting authorities to appoint a free defence lawyer on the ground of their difficult financial situation, referring inter alia to Article 6 § 3 (c) of the Convention. The applicants received no reply to the requests.", "42. In the course of the investigation the policemen, the applicants and witnesses of the events of 4 October 1993, including witnesses on the applicants' behalf, were summoned. The applicants submitted many applications in which they contended that the allegations against them should have been examined from the angle of their own complaints that the officers had beaten them up. However, by virtue of relevant provisions of domestic criminal procedure, the prosecution decided that the material contained in the case-file relating to the applicants' allegations on their maltreatment by the police officers be separated and that two parallel investigations be conducted in relation to the incident of 4 October 1993.", "43. On 17 February 1994 the applicants were charged with affray, assault and battery on the police officers in the course of the execution of their duties.", "44. On 7 April 1994 the Lublin District Court decided to obtain from the Forensic Department of the Białystok Academy of Medicine an opinion as to the applicants' injuries following the incident. The opinion was produced on 16 June 1994 (also see §§ 30-33 above).", "45. On 17 October 1994 the Lublin District Court decided to obtain an opinion from forensic psychiatrists to establish whether the applicants had been “able to ascertain and measure their actions” to determine their criminal responsibility. The court also decided to appoint a free lawyer to represent the applicants in view of the concern over their state of mind, in accordance with Article 70 § 1 of the Code of Criminal Procedure.", "46. By a letter of 18 October 1994 the applicants informed the court that they refused to undergo a psychiatric examination. They did not appear for the out-patient psychiatric examination at the Lublin Centre for Mental Health on the date fixed by the court on 10 January 1995. The court ordered compulsory appearance of the applicants on the next date fixed for out-patient psychiatric examination on 2 February 1995. The applicants were brought to the experts on the above date, but refused to be subjected to an examination. The above situation repeated itself on 8 March 1995. In view of the fact that the applicants had refused to undergo out-patient psychiatric examination three times, on 8 March 1995 the forensic psychiatrists requested the court to place the applicants at a mental hospital for a forensic-psychiatric opinion to be produced.", "47. On 23 March 1995 the Lublin District Court ordered the applicants' compulsory placement at the Lublin Centre for Mental Health for a period of no longer than six weeks. The applicants and their counsel appealed against the above decision. In the appeal the applicants' representative declared that he undertook to ensure their voluntary appearance for out-patient psychiatric examination. On 3 April 1995 the Lublin Regional Court, having regard in particular to the above commitment by the applicants' defence counsel, quashed the decision of 23 March 1995.", "48. On the next day fixed for the applicants' out-patient psychiatric examination on 30 May 1995, they again failed to submit to out-patient examination. On 21 June 1995 the experts repeatedly requested the court to order compulsory measures against the applicants in order to produce a forensic-psychiatric opinion.", "49. On 11 July 1995 the Lublin District Court again ordered the applicants' compulsory placement at a mental hospital for a period of no more than six weeks. On the applicants' appeal from this decision, on 24 July 1995 the Lublin Regional Court upheld the decision of the District Court.", "50. On 1 December 1995 the first applicant was placed at the Lublin Centre for Mental Health. Upon the experts' application requesting to prolong the first applicant's stay at the ward in view of his negative attitude obstructing the production of a proper diagnosis, on 11 January 1996, the Lublin District Court extended the term of the first applicant's examination until 23 February 1996. On his appeal against the above decision, on 22 January 1996 the Lublin Regional Court upheld the decision of the District Court. The first applicant was released from the psychiatric ward on 15 February 1996.", "51. On 22 February 1996 the final opinion as to the mental condition of the first applicant was issued. The forensic psychiatrists concluded that at the moment of the incident with the police on 4 October 1993 he was able to comprehend the meaning of his acts and to control his conduct. The first applicant was not found to be of unsound mind. The experts also noted that he had been very suspicious and distrustful of the examination.", "52. As the second applicant expressed his willingness to undergo out-patient psychiatric observation, he was not placed in a mental hospital. The forensic psychiatrists delivered their opinion in regard to the second applicant on 27 February 1996. According to the experts' conclusions, the second applicant was mentally sane. The experts also noted that he had been very stressed throughout the examination, often speaking with a raised voice and not noticing the requests to calm him down.", "53. On 7 August 1996 the Lublin District Court found the applicants guilty under Article 234 of the Criminal Code in that they had resisted and assaulted the officers on 4 October 1993. It held that the manager of the athletics club had been entitled to demand the applicants' removal notwithstanding his motives therefor, and that the police had lawfully enforced this demand. The applicants were sentenced: the first applicant to one year and six months' imprisonment and the second applicant to one year's imprisonment. The court suspended the sentences for three years for each of the applicants.", "54. On 17 December 1996 the Lublin Regional Court, upon the applicants' appeal, upheld the first-instance judgment. The Regional Court concluded that “the fact that the defendants did not comply with the request of the five police officers to leave the sports hall shows a lack, on their part, of a critical judgment of their own conduct - this was also confirmed by the forensic psychiatrists”. That decision was final. The applicants were not imprisoned as a result of the conviction." ]

[ 3 ]

[ "8. In 1992 the Tarnów Regional Prosecutor instituted criminal proceedings against the applicant on suspicion of aggravated fraud, falsification of documents and issuing bad cheques. By a letter of 6 October 1993 the Tarnów Regional Prosecutor informed the applicant that the fact that summonses for questioning had been sent both to his new and to his old address did not in any way infringe his defence rights.", "9. On 13 October 1993 the applicant informed the Tarnów Regional Prosecutor of a change of his address. On 15 October 1993 the Tarnów Regional Prosecutor issued a warrant for the applicant’s arrest, considering that there were strong grounds for believing that he had committed an offence constituting a serious danger to society, and that there was a risk of collusion and absconding as the applicant had failed to comply with certain summonses and had changed his address several times. On the same day the applicant was remanded in custody.", "10. The applicant appealed against that decision. He submitted that the nature of the offence was such that all the evidence was contained in documents belonging to his company, which had already been seized by the prosecutor or kept by the banks. The witnesses in the case had already been heard by the prosecuting authorities. Thus, there was no risk of collusion as the applicant was not in a position to alter or suppress evidence. The applicant had usually complied with summonses except on the rare occasions when he had been unwell and had submitted relevant medical certificates, including a certificate drawn up by the Kraków Forensic Medicine Institute. There was no risk of his absconding as he had informed the prosecutor of his change of address and could not leave the country as his passport had been confiscated by virtue of a decision given in November 1991. The applicant further submitted that the amount he was accused of embezzling was so high solely as a result of the high rate of interest at a time of hyperinflation and that the amount could not be used as an argument in support of the seriousness of the offence concerned.", "11. On 25 October 1993 the Tarnów Regional Court dismissed the applicant’s appeal against the detention order. The court first observed that the applicant had on several occasions failed to comply with the summonses without justification. In particular, the case file did not contain any documents showing that there had been justified medical grounds for his absence. Even though he had informed the prosecutor of his change of address, the address he had given appeared to be false as there was a convent at that address. Moreover, it seemed that the applicant did not live there. The court considered that in the light of the financial documents in the case file, the offence of which the applicant was suspected was serious enough to warrant detention on remand, the more so as the value of the embezzled property had been assessed without regard to the sums of statutory interest, contrary to the applicant’s submissions in his appeal.", "12. On 6 November 1993 the prosecutor appointed an expert in accountancy to analyse certain financial documents belonging to the applicant’s companies that related to his credit applications in order to assess the damage caused by the offences with which the applicant had been charged.", "13. On 8 November 1993 the applicant submitted medical certificates stating that he had been ill from 1 August 1993 to 10 September 1993. On the same date he also requested to be granted access to the case-file.", "14. On 15 November 1993 the Tarnów Regional Prosecutor refused to authorise the applicant to meet his counsel in the absence of a police officer, considering that the applicant had had an opportunity to see his lawyer in the presence of a police officer each time he had requested to do so. There were no grounds on which to accept that this amounted to an undue restriction on the exercise of his defence rights. The fact that the applicant had not been communicative when talking to his lawyer seemed to stem from the defence tactics which he had adopted in the proceedings.", "15. On the same date the prosecutor refused to allow the applicant’s lawyer access to the case-file.", "16. The applicant filed an appeal, arguing, inter alia, that his defence rights had been unduly limited, in particular by the fact that neither he nor the lawyer had had any, albeit limited, access to the case-file, or to any of the evidence gathered so far in the proceedings. The only part of the file to which the applicant had been given access was the statement of charges and the arrest warrant. As a result, the role of his defence counsel had been rendered meaningless.", "17. On 3 December 1993 the Tarnów Regional Prosecutor rejected the appeal, finding that no appeal lay against the contested decision, and considering that in any event this decision did not infringe the applicant’s defence rights, given that he would be granted access to the case-file later in the proceedings, at the stage specified in Article 277 of the Code of Criminal Procedure.", "18. The applicant appealed, arguing that the decisions infringed his defence rights. The case-file, which so far numbered thirteen volumes, had not been made accessible to him or to his lawyer. Any knowledge that they had about the investigations stemmed from the decision to bring the charges against the applicant and from the decision to appoint the expert. This was clearly insufficient to enable them to conduct any effective defence.", "19. On 8 December 1993 the Tarnów Regional Court quashed the refusal to allow the applicant to meet the counsel in the absence of a police officer. The court considered that the applicant had not given any ground on which to accept that he was seeking, by any unlawful methods, to jeopardise the investigations against him. Consequently, the contested decision had unduly limited his defence rights.", "20. On 16 December 1993 the Tarnów Regional Prosecutor declined to consider the applicant’s request to be released, holding that the grounds on which the detention warrant had been issued were still valid, and that no new grounds such as to justify his release had been invoked by the applicant.", "21. On 21 December 1993 the Kraków Appellate Prosecutor, having regard to the proper conduct of the investigations, which concerned charges of a large-scale fraud and in which new charges had been brought against new suspects and further developments were to be expected, upheld the refusal to allow access to the case-file.", "22. On 31 December 1993 the Regional Prosecutor prolonged the investigations as, in view of new circumstances which were coming to light, further evidence had to be taken.", "23. On 10 January 1994 the Tarnów Regional Court prolonged the applicant’s detention until 30 March 1994, considering, firstly, that the grounds on which the applicant had been detained were still valid, and, secondly, that a psychiatric examination had to be carried out, and an expert opinion had to be drafted by a certified accountant. The applicant appealed.", "24. On 1 February 1994 the Kraków Court of Appeal dismissed the applicant’s appeal. The court considered that, in the light of the material gathered so far during the investigations, there were serious grounds for believing that the applicant had committed the offences in question. It was emphasised that the applicant had not questioned this in his appeal. The court also had regard to the fact that the offences in which the applicant seemed to have been involved had been committed on a large scale. Moreover, the offences were serious enough to warrant detention on remand. There was also a risk of collusion.", "25. On 25 March 1994 the Tarnów Regional Court further prolonged the applicant’s detention until 31 May 1994. The court stated in its decision that neither the expert opinion nor the psychiatric report had yet been completed. The expert opinion had to be supplemented by further financial details, which would make it possible to assess the scale of the applicant’s fraudulent banking operations. The court considered that the risk of collusion persisted as the applicant had on several occasions failed to comply with the summonses. The court referred in this connection to its own decision of 25 October 1993. The court further commented unfavourably on the considerable delays that had occurred in interviewing the witnesses, as between 8 December 1993 and 25 March 1994 only four witnesses had been interviewed, whereas the prosecutor estimated in his submissions to the court that between one hundred and three hundred witnesses would have to be heard.", "26. The applicant appealed, submitting, inter alia, that in the course of the preliminary investigations he had twice changed his address and had on the second occasion informed the prosecutor of the change, and that he in fact had complied with the summonses.", "27. On 11 April 1994 the Tarnów Regional Prosecutor supplemented the charges against the applicant with further multiple charges of obtaining credit under false pretences, forgery of financial documents and issuing of bad cheques.", "28. On 20 April 1994 the Kraków Court of Appeal dismissed the applicant’s appeal against the decision of 25 March 1994 as it found that the Regional Court had been justified in reaching the conclusion that there had been a risk of absconding and collusion. The court pointed out that the applicant had changed his address and that he had been trying to obtain a passport from various passport offices. Thus, his past conduct suggested that, if released, he would jeopardise the proper course of the investigations. The court also noted that the serious number of charges brought so far against the applicant and the scale of the offences with which he had been charged, argued in favour of his continued detention. Those factors indicated that in his actions the applicant had overstepped the border between taking a justified business risk and carrying out fraudulent financial operations, punishable under criminal law.", "29. On 28 April 1994 the applicant requested access to the case-file and to the expert opinion prepared by a certified accountant.", "30. On 29 April 1994 the Tarnów Regional Prosecutor refused the applicant access to the expert opinion, stating that the conclusions of the opinion indicated that certain witnesses should be interviewed in connection with further possible offences which, according to the expert report, were likely to have been committed. It would also be essential to question the expert. Therefore, granting the applicant access to the report would be premature as it would be prejudicial to the interests of the investigations. The prosecutor also refused the applicant access to the case-file.", "31. On 11 May 1994 the applicant filed an appeal against this decision, contending, inter alia, that the prosecuting authorities had not been expeditious enough in questioning the witnesses, and that his defence rights had been breached in that the opinion, which seemed at that stage of the proceedings to constitute an essential piece of evidence, had not been communicated to him. On 16 May 1994 the Tarnów Regional Prosecutor rejected this appeal on the ground that no appeal lay against the contested decision.", "32. On 20 May 1994 the Regional Prosecutor refused to release the applicant, pointing out that he had been arrested as he had failed to comply with the summonses and had tried to obtain a new passport after the old one had been invalidated in connection with the criminal proceedings. The taking of evidence had not been completed and certain evidence essential for the case had still to be taken.", "33. On 21 May 1994 the applicant’s lawyer was served with the completed opinion of the accountancy expert.", "34. On 26 May 1994 the Tarnów Regional Court prolonged the applicant’s detention until 15 August 1994, holding in particular that the grounds on which the detention had been ordered and maintained, still applied. The court noted that 80 witnesses had to be interviewed and that documents relating to over 100 various bank loans, taken out by the applicant’s companies had to be examined. The applicant appealed.", "35. On 30 May 1994 one of the applicant’s lawyers was granted access to the expert opinion.", "36. On 13 June 1994 the Tarnów Regional Prosecutor refused access to the case-file, which numbered over 50 volumes, considering inter alia that the investigations were coming to end.", "37. On 22 June 1994 the Kraków Court of Appeal dismissed the appeal against the decision of 26 May 1994, considering that the charges against the applicant had been sufficiently substantiated by the evidence that had been gathered both at the time of the applicant’s arrest and later in the course of the proceedings. It was true that the investigations had not been conducted speedily enough, given that the applicant was in detention, which necessitated special diligence on the part of investigating authorities. That had also been the result of the particularly serious nature of the offence in question. However, the investigations had been unable to proceed for almost four months, while the proceedings concerning the review of the lawfulness of the applicant’s detention had been conducted. The court further stressed that new evidence was coming to light gradually, revealing new aspects of the case and thereby prolonging the investigations. Had the applicant cooperated with the prosecuting authorities, the proceedings would have progressed more quickly. He was not under such an obligation, but he had to be aware that his failure to do so had further prolonged the proceedings.", "38. On 5 July 1994 the Tarnów Appellate Prosecutor gave his permission to the applicant to access the case-file of the investigations, considering that this would undoubtedly contribute to the acceleration of the proceedings and would make it possible for the suspect to formulate possible requests for further evidence to be taken.", "39. On 5 August 1994 the Tarnów Regional Court again prolonged the applicant’s detention. The court noted that on 14 July 1994 certain evidence, concerning fraudulent transactions by the applicant’s company had been obtained from one of the banks. New witnesses would have to be heard in connection with these transactions. As new evidence had come to light, prolongation of his detention was necessary. Moreover, new charges had been brought against the applicant, which made it necessary to prolong his detention. The court further disagreed with the arguments advanced by the applicant that the charges against him had not been credible and considered that, quite to the contrary, the charges against him had been sufficiently substantiated to justify his further detention, which was also necessary to ensure the proper course of the proceedings. The court further noted that, contrary to the applicant’s assertions, further documentary evidence had been taken in July 1994, even though it was true that no further witnesses had been interviewed.", "40. On 18 August 1994 the Regional Prosecutor refused to release the applicant.", "41. On 15 August 1994 the Kraków Court of Appeal upheld the decision of 5 August 1994.", "42. On 2 September 1994 the Regional Prosecutor again refused to release the applicant. On an unspecified date in September 1994 the applicant’s lawyer was informed that he could not have access to the case-file as it had been sent to the Supreme Court for the purposes of a decision to be given as to the prolongation of the applicant’s detention.", "43. On 30 September 1994 the prosecutor appointed an expert to examine further accounting documents in the case-file.", "44. On 6 October 1994 the applicant’s detention was prolonged by the Supreme Court.", "45. On 14 October 1994 the Tarnów Regional Prosecutor informed the applicant’s lawyer that from 21 October 1994 the applicant would be brought from prison to the prosecutor’s office every day in order to have access to the case-file. The lawyer’s attention was drawn to the fact that the lawyer had so far failed to make use of his right to consult the file.", "46. On 24 October 1994 the Regional Prosecutor permitted the applicant to make copies of and take notes from numerous documents in the case-file. On 29 December 1994 the Regional Prosecutor refused to give the applicant the copies of the prosecutor’s requests to have the applicant’s detention prolonged which had so far been examined in the proceedings, considering that those documents had not been included into the principal case-file, and that the applicant’s argument that he had to have access to them in order to exercise his defence rights was ill-founded.", "47. On 11 January 1995 the bill of indictment was lodged with the Tarnów Regional Court. The applicant was charged with embezzling a sum of 80,000,000,000 (old) Polish zlotys to the detriment of six banks, issuing bad cheques and with other economic offences.", "48. On 15 June 1995 the applicant was released." ]

[ 2 ]

[ "8. The first two applicants were born in 1948 and 1960 respectively and live in Paris.", "9. In order to consider an application by Morocco for membership of the European Union, the European Commission decided it would need very precise information on the issue of cannabis production in that State and the measures being taken to eradicate it, that being the avowed political aim of the King of Morocco in person. To that end, the Secretariat General of the Commission requested the Observatoire géopolitique des drogues (OGD – Geopolitical Drugs Observatory) to prepare a report on drug production and trafficking in Morocco. Investigations and reports by the OGD, which closed down in 2000, were considered authoritative. The Paris tribunal de grande instance and the Paris public prosecutor’s office were among the subscribers to its publications.", "10. The OGD delivered its report to the European Commission in February 1994. The report contained the names of people implicated in drug trafficking in Morocco. However, the Commission asked the Observatory for a revised version of the report, with the names of the drug traffickers deleted in order to make it more suitable for the discussions that were scheduled with the Moroccan authorities. This expurgated version of the initial report was published, notably in a book sold by the OGD entitled Etat des drogues, drogue des Etats (“State of drugs, drugs of States”) and containing a chapter on Morocco. The book was referred to in the newspaper Le Monde on 25 May 1994.", "11. After initially remaining confidential, the original version of the report began to circulate. Le Monde learnt of its existence in the autumn of 1995. The report contained twelve chapters with the following titles: (1) “Cannabis in Morocco – the historical background”; (2) “General overview of Er Rif”; (3) “The characteristics of cannabis growing”; (4) “The socio-economic impact and areas of production”; (5) “The increase in the land set aside for cannabis production”; (6) “Morocco – the world’s leading exporter of hashish”; (7) “Drug-trafficking routes”; (8) “The criminal networks”; (9) “The emergence of hard drugs”; (10) “Drug money”; (11) “The ‘war on drugs’ ”; and (12) “Conclusion”. It related how, over a period of ten years, there had been a tenfold increase in the area of land that had historically been used for cannabis production in the region of Er Rif and that current levels of production made “the sharif kingdom a serious contender for the title of the world’s leading exporter of cannabis”.", "12. On 3 November 1995 Le Monde published an article by Mr Incyan giving details of the report.", "13. The front page of the newspaper carried an introductory article under the main headline: “Morocco, world’s leading exporter of cannabis”, and a sub-heading: “King Hassan II’s entourage implicated by confidential report.” The article, which was relatively short (it ran to some thirty or so lines in two columns), summarised the terms of the OGD’s report. A more detailed article (covering six columns) appeared on page two under the headline: “Moroccan government implicated in cannabis trafficking according to confidential report”, and a sub-heading: “The report, which was commissioned by the European Union from the Geopolitical Drugs Observatory, says Morocco is the world’s leading exporter and the European market’s main supplier. It points to the direct responsibility of the sharif authorities in these lucrative activities”. A summary of the article also appeared in an introductory passage which read: “Drugs – Le Monde has obtained a copy of a confidential report sent to the European Union in 1994 in which the OGD says that ‘in just a few years Morocco has become the world’s leading cannabis exporter and the European market’s main supplier’. The report casts doubt on the sharif authorities’ determination to put an end to the trafficking, despite the ‘war on drugs’ they declared in a blaze of publicity in the autumn of 1992. Corruption guarantees the drug-trafficking rings the protection of officials ‘ranging from the humblest customs officer to the King’s inner circle ...’.”", "14. In a letter of 23 November 1995, the King of Morocco made an official request to the French Minister of Foreign Affairs for criminal proceedings to be instituted against Le Monde. The request was forwarded to the Minister of Justice, who referred the matter to the Paris public prosecutor’s office, as required by section 48(5) of the Freedom of the Press Act of 29 July 1881.", "15. Mr Colombani, the editor-in-chief of Le Monde, and Mr Incyan, the author of the article, were summoned to appear in the Paris Criminal Court on charges of insulting a foreign head of State.", "16. In a judgment of 5 July 1996, the Criminal Court found that the journalist had merely quoted extracts from what was undisputedly a reliable report, without distorting or misinterpreting it or making groundless attacks and, consequently, had pursued a legitimate aim. It accepted that he had acted in good faith and acquitted both him and Mr Colombani.", "17. The King of Morocco and the public prosecutor’s office appealed against that decision.", "18. In a judgment of 6 March 1997, the Paris Court of Appeal, while recognising that “informing the public about matters such as the international drug trade is obviously a legitimate aim for the press”, found that the desire to draw the public’s attention to the involvement of the royal entourage and to “the authorities’ accommodating attitude” that pointed to “tolerance on the part of the King ... was not entirely innocent”, since it was “tainted with malicious intent”. The articles in question contained “accusations of duplicity, artifice and hypocrisy that were insulting to a foreign head of State”. The circumstances taken as a whole excluded good faith on the part of the journalist: he had not established that he had “sought to check the accuracy of the OGD’s comments”; instead, he had simply reproduced its unilateral account of events, thus “propounding a theory that contained serious accusations”, without leaving any room for doubt about the reliability of the source. Nor had he sought to check whether the 1994 report remained valid in November 1995. The Court of Appeal noted that the journalist had not shown that he had “contacted any Moroccan dignitaries, officials, public authorities or services for an explanation for the failure to match words with deeds or even to obtain their observations on the tenor of the OGD’s report”. In addition, he had refrained from mentioning the existence of the White Paper published by the Moroccan authorities in November 1994 on “Morocco’s general policy on the prevention of drug trafficking and the economic development of the northern provinces”.", "19. The applicants were therefore found guilty of insulting a foreign head of State and sentenced to fines of 5,000 French francs (FRF) each. They were ordered to pay King Hassan II, who had successfully applied to be joined as a civil party to the proceedings, FRF 1 in damages and FRF 10,000 pursuant to Article 475-1 of the Code of Criminal Procedure. The Court of Appeal also ordered Le Monde to make additional reparation in the form of a report publishing details of the convictions.", "20. The applicants appealed on points of law against that judgment.", "21. In a judgment of 20 October 1998, the Criminal Division of the Court of Cassation dismissed their appeal, approving the Court of Appeal’s view that “what [made] the article insulting [was] the suspicion with which the King of Morocco’s determination to put an end to drug trafficking in his country [was] viewed, and the charge that pernicious statements had been made to dramatic effect solely in order to preserve the country’s image”, especially as the Court of Appeal had found that the charge of duplicity had been repeated twice and that the insistence on drawing the reader’s attention to the King in person, in an article that portrayed Morocco as the world’s leading hashish exporter and alleged direct responsibility on the part of the Moroccan government and members of the royal family, was tainted with malicious intent." ]

[ 6 ]

[ "8. During 1992 the applicant lent various sums of money to a number of companies in Zagreb for periods ranging from three to twelve months at a rate of interest ranging from 5 to 31% (so-called financial engineering). As these companies failed to repay the loans, the applicant instituted ten different sets of proceedings for re-payment of his loans.", "9. On 29 June 1993 the applicant filed an action with the Zagreb Municipal Court against A.K.M and its owner, A.K for re-payment of his loan in the amount of 70,000 Austrian schillings (ATS).", "10. At the preliminary hearing on 22 November 1993 the applicant's counsel withdrew the claim in respect of A.K.M. He also requested leave to file additional submissions within eight days.", "11. On 1 December 1993 the applicant's counsel filed additional submissions specifying the claim.", "12. According to the Government, following the resignation of the judge in charge of the case a certain period of time elapsed before the case was assigned to another judge.", "13. The next hearing, scheduled for 15 September 2000, was adjourned due to maintenance work on the court building's electrical circuit.", "14. At the next hearing, on 14 December 2000, the court exempted the applicant from paying the court fees. The documents showed that A.K. was unknown at the address indicated.", "15. The hearing scheduled for 23 March 2001 was adjourned because A.K. did not appear. The court invited the applicant to adjust his claim to the monetary system in Croatia and to specify his interest claim, which the applicant did on 10 October 2001. The case is presently pending before the court of first instance.", "16. On 12 October 1993 the applicant, together with four other plaintiffs, filed an action with the Zagreb Municipal Court against T.I.A. and its owner, I.A for re-payment of their loans. The applicant claimed the sum of ATS 70,000.", "17. On 14 December 1993 the court refused to allow the plaintiffs' representative to represent him as he had, in other proceedings, been charged with providing unlicensed legal services. The plaintiffs appealed against that decision. On 24 May 1994 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the plaintiffs' appeal.", "18. According to the Government, the judge in this case resigned from her duties. The judge to whom the case was transferred was on maternity leave. The case was therefore re-transferred to another judge.", "19. At the next hearing, on 28 June 2000, the defendants' counsel replied to the applicant's claim stating that the same claim had already been decided by the Zabok Municipal Court (Općinski sud u Zaboku).", "20. At the hearing on 10 December 2001 the court exempted the applicant from paying the court fees. It appears that the proceedings are still pending before the Zagreb Municipal Court.", "21. On 15 October 1993 the applicant, together with two other plaintiffs, filed an action with the Zagreb Municipal Court against T.T.B. and its owner, T.B for re-payment of their loans. The applicant claimed the sum of 6,000 German Marks (DEM).", "22. A preliminary hearing scheduled for 13 January 1994 was adjourned because T.B. did not appear. The documents showed that the address indicated on the notice of the hearing date did not exist.\nOn 17 January 1994 the plaintiffs submitted T.B.'s correct address.", "23. A hearing scheduled for 8 April 1994 was adjourned because T.B. again did not appear. The documents showed that she had failed to collect the notice of the hearing date.", "24. A hearing scheduled for 10 June 1994 was also adjourned due to T.B.'s absence. The documents showed that she had changed her address.\nOn 15 June 1994 the plaintiffs submitted T.B.'s new address.", "25. At a hearing on 10 October 1994 the court stayed the proceedings because the plaintiffs failed to appear.\nOn 19 January 1995 the plaintiffs requested the court to resume the proceedings.", "26. Hearings scheduled for 18 September 1995 and 18 January 1996 were adjourned due to T.B.'s absence. The court requested the Ministry of the Interior to submit T.B.'s address.", "27. A hearing scheduled for 20 May 1996 was adjourned because T.B.'s counsel did not submit a letter of authorisation.", "28. At a hearing on 7 September 2000 the plaintiffs stated that they wished to produce additional evidence.", "29. On 10 January 2001 T.B. filed her reply to the plaintiffs' claim.", "30. At the hearing on 19 January 2001 the court exempted the applicant and one other plaintiff from paying the court fees and the remaining plaintiff did not appear. The court served T.B.'s reply on the plaintiffs and invited them to submit their comments within thirty days.", "31. The next hearing, scheduled for 12 June 2001, was adjourned due to the illness of the presiding judge. It appears that the proceedings are presently pending before the court of first instance.", "32. On 15 October 1993 the applicant, together with fifteen other plaintiffs, filed an action with the Zagreb Municipal Court against M.B.B. and its owner, B.B for re-payment of their loans. The applicant claimed the sum of 5,000 DEM.\nAccording to the Government, the applicant failed to submit any evidence concerning the relationship between the company M.B.B. and its alleged owner, B. B.", "33. At a hearing on 8 September 2000 a number of plaintiffs and B.B. did not appear. The court severed the proceedings in respect of the plaintiffs who did appear at the hearing, including the applicant, and invited them to specify their claims.", "34. At a hearing on 14 September 2001 the court exempted the applicant from paying the court fees.", "35. The next hearing was held on 18 October 2001. It appears that the proceedings are presently pending before the court of first instance.", "36. On 15 October 1993 the applicant, together with three other plaintiffs, filed an action with the Zagreb Municipal Court against company A.Š.M. and its owner, A.Š for re-payment of their loans. The applicant claimed the sum of DEM 12,000.", "37. A preliminary hearing scheduled for 16 June 1994 was adjourned because A.Š. did not appear. The documents showed that she had changed her address. The court invited the plaintiffs to submit her new address within thirty days.", "38. A hearing scheduled for 5 April 1995 was adjourned because A.Š. again failed to appear. The documents showed that the address indicated on the notice of the hearing date did not exist.", "39. At the hearing on 9 May 1995 the court pronounced judgment by default.", "40. On 20 September 1996 a lawyer, M.P., informed the court that he was the legal representative of A.Š. and requested the court to re-open the proceedings. Following the hearing on whether A.Š. had received the judgment, the court annulled its judgment by default on 24 March 1998 and resumed the proceedings.", "41. At a hearing on 15 September 1998 the court requested the plaintiffs to submit evidence in support of their claim.", "42. At a hearing on 11 December 1998 the court heard three plaintiffs.", "43. At a hearing on 12 February 1999 the court heard the remaining plaintiff.", "44. A hearing scheduled for 15 April 1999 was adjourned due to A.Š.'s absence. Her counsel informed the court that she had given birth. The court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of A.Š.M. On 23 April 1999 the court repeated that request.\nOn 17 May 1999 the requested certificate was submitted.", "45. A hearing scheduled for 24 June 1999 was adjourned because A.Š. did not appear. Her counsel informed the court that she was ill.", "46. A hearing on 2 November 1999 was adjourned because A.Š. was absent again. She telegraphed the court to inform it that her child was ill.", "47. At a hearing on 1 February 2000 the court heard A.Š. The plaintiffs asked the court to hear several witnesses but failed to provide their names.\nOn 8 February 2000 the plaintiffs submitted the names of the witnesses.", "48. At the next hearing, on 11 October 2000, the proceedings were concluded and the court gave judgment awarding the applicant's claim in part and rejecting it in part. On 11 June 2001 A.Š. appealed against the judgment. On 14 June 2001 the court attempted to serve the appeal on the applicant in order for him to submit his reply, but he did not collect it.\nOn 10 October 2001 the applicant informed the court that he had received a copy of A.Š.'s appeal.\nOn 23 October 2001 the case-file was sent to the Zagreb County Court as the appellate court, where it is presently pending.", "49. On 3 June 1993 the applicant filed an action with the Zagreb Municipal Court against T.M.T. and its owner, M.T for re-payment of his loan in the amount of DEM 10,000.", "50. The preliminary hearing was held on 21 October 1993.", "51. On 4 July 1994 the court refused the applicant's counsel the right to represent the applicant.", "52. The judge in that case subsequently resigned from her office and the case was transferred to another judge.", "53. A hearing scheduled for 12 November 1997 was adjourned because of M.T.'s absence.", "54. At a hearing scheduled for 18 February 1998, the court stayed the proceedings because the applicant failed to appear.\nOn 22 May 1998 the applicant requested the court to resume the proceedings.", "55. A hearing scheduled for 10 March 1999 was adjourned.", "56. At a hearing on 4 June 1999 the applicant gave testimony.", "57. Due to the applicant's absence from the hearing on 15 October 1999, the court struck the case out. According to the Government, the court had attempted to deliver that decision to the applicant fifteen times since then but he did not collect it. Finally, on 6 September 2000 the decision was served on the applicant by the court's process server.", "58. On 20 September 2000 the applicant filed a motion to resume the proceedings (prijedlog za povrat u prijašnje stanje) and also appealed against the above decision.", "59. At a hearing on 12 March 2001 the court dismissed the applicant's motion.", "60. On 8 June 1993 the applicant filed an action with the Zagreb Municipal Court against D. and its owner, D.T for re-payment of his loan in the amount of DEM 10,000.", "61. At a hearing scheduled for 21 October 1993 the court decided to stay the proceedings because the applicant did not apear.\nOn 7 February 1994 the applicant requested the court to resume the proceedings.", "62. The judge in that case subsequently resigned from her duties and the case was transferred to another judge.", "63. On 18 May 1999 the court invited the applicant to adjust his claim and to submit further evidence. The letter was sent by registered mail but the applicant did not collect it.", "64. On 24 September 1999 the court invited the applicant to submit the defendants' addresses.", "65. On 6 November 1999 the court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of D.", "66. A hearing scheduled for 3 February 2000 was adjourned since neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date.", "67. The next hearing, scheduled for 13 June 2000, was adjourned due to D.T.'s absence. The documents showed that D. had ceased to exist while D.T. had received the notice of the hearing date. The applicant's counsel asked the court to allow him to submit the defendants' addresses within sixty days.\nOn 11 July 2000 the applicant's counsel informed the court that he had not been able to verify the required addresses.", "68. On 22 November 2000 the court stayed the proceedings in respect of D. The proceedings concerning D.T. are still pending.", "69. On 12 October 1993 the applicant filed an action with the Zagreb Municipal Court against E. and its owner, F.Š for re-payment of his loan in the amount of ATS 70,000.", "70. A preliminary hearing scheduled for 2 April 1996 was adjourned because the defendants did not appear.", "71. A hearing scheduled for 5 July 1996 was adjourned because the applicant had informed the court that he was ill.", "72. The next hearing, scheduled for 24 September 1996, was adjourned because the judge was appointed to another court.", "73. On 15 April 1999 the court invited the applicant to inform it whether he wanted to proceed with his claim. The letter was sent three times by registered mail but the applicant did not collect it. The court then attempted to serve the letter on the applicant through its process server, but the applicant was absent. The process stuck a notice to the applicant's door informing him that the letter would be served on him on 6 July 1999. As the applicant was absent again the letter was left at his door.", "74. The next hearing, scheduled for 9 February 2000, was adjourned because neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date.", "75. Due to the applicant's absence at a hearing on 17 September 2001 the court terminated the proceedings.", "76. On 22 April 1993 the applicant filed an action with the Zagreb Municipal Court against L.K.M. and its owner, K.L for re-payment of his loan in the amount of DEM 10,000.", "77. As the defendants did not appear at the hearing on 18 October 1993 the court pronounced judgment by default.\nSubsequently, the defendants filed a motion to resume the proceedings.", "78. At a hearing on 1 February 1994 the court annulled its judgment by default. It also stayed the proceedings because the applicant did not appear.\nAs the applicant did not file a request to the court to resume the proceedings within four months, on 14 June 1994 the court struck the case out.\nThe applicant appealed against the above decision and also filed a motion to resume the proceedings.", "79. On 15 July 1994 the Zagreb Municipal Court sent the case-file to the Zagreb County Court. That court remitted the case to the Zagreb Municipal Court in order to determine the applicant's motion.", "80. At a hearing on 12 June 1995 the Zagreb Municipal Court annulled its decision of 14 June 1994.", "81. Hearings scheduled for 21 November 1995 and 14 March 1996 were adjourned because K.L. did not appear.", "82. A hearing scheduled for 16 September 1996 was adjourned because the judge in the case had not been re-appointed.", "83. The next hearing, scheduled for 10 September 1998, was adjourned because K.L. did not appear.", "84. At a hearing on 19 March 1999 the applicant gave testimony. The court invited the Zagreb Commercial Court to submit a certificate from its registry concerning the legal status of L.K.M..\nOn 29 September 1999 the Zagreb Commercial Court submitted the requested certificate.", "85. Subsequently, the presiding judge died and the case-file lay dormant for a certain period before it was assigned to another judge.", "86. At a hearing on 28 June 2000 the applicant's counsel withdrew the claim in respect of L.K.M. As K.L. did not appear the hearing was adjourned.", "87. A hearing scheduled for 26 September 2000 was adjourned because K.L. again failed to appear.", "88. The next hearing was scheduled for 5 April 2001 but the applicant asked the court to re-schedule it because he was unable to attend. \nIt appears that the proceedings are pending before the court of first instance.", "89. On 28 October 1993 the applicant filed an action with the Zagreb Municipal Court against F.C.F. and its owner, K.F. for re-payment of his loan in the amount of DEM 14,500 and ATS 5,000.", "90. The preliminary hearing, scheduled for 8 March 1994, was adjourned because neither party appeared. The documents showed that the applicant had received the notice of the hearing date, but K.F.'s address was incorrect.\nOn 13 March 1995 the court invited the applicant to submit K.F.'s correct address.\nOn 28 March 1995 the applicant submitted the requested address.", "91. A hearing scheduled for 15 June 1995 was adjourned since K.F. did not appear. The documents showed that his address had been incorrect again. The court again invited the applicant to submit K.F.'s correct address. The court repeated that request on 9 December 1996.", "92. The next hearing, scheduled for 5 June 1997, was adjourned as neither party appeared.\nOn 6 June 1997 the court again invited the applicant to submit K.F.'s correct address. The applicant did not collect the letter, sent by registered mail on three occasions.\nOn 25 June 1999 the applicant submitted K.F.'s address in the United States.", "93. The hearing scheduled for 2 March 2000 was adjourned as neither party appeared.", "94. The hearing scheduled for 14 December 2000 was adjourned because K.F. was absent. The proceedings are presently pending before the court of first instance." ]

[ 3 ]

[ "9. In February 1995 the Social Council (socialnämnden) of Borgholm was contacted by a schoolteacher on account of a suspicion that one of her pupils, M., a boy born in June 1984 and thus at the time aged 10, had been sexually abused by the applicant. On 29 March 1995, having carried out an investigation, the Council reported the matter to the police authority in Kalmar.", "10. On 7 April 1995, between 10.09 a.m. and 10.51 a.m., M. was interviewed by the police. The interview was recorded on videotape. M.'s parents and representatives of the Social Council were present in the adjoining room. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him.\nThe interview was conducted by a detective inspector with twenty-six years of service in the police force. Since 1989 he had been working exclusively on investigations concerning ill-treatment and sexual abuse of children.", "11. On 10 May 1995 the applicant was questioned by the police and the public prosecutor. Before the questioning the applicant was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him.", "12. In June 1995 the applicant received a copy of the report of the preliminary investigation and on 3 July defence counsel was appointed for him. The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures. Finding that further information was necessary with regard to, inter alia, the dates and the number of occasions when the alleged acts had been committed and the sites at which they were supposed to have occurred, the applicant's counsel requested that M. be interviewed again.", "13. In accordance with counsel's request, a second interview with M. was conducted on 20 September 1995, between 12.50 p.m. and 1.14 p.m. at the boy's home, by the same detective inspector. During the interview, which was recorded on audiotape only, M.'s parents were present but not the applicant's counsel. It appears that M.'s counsel, who had not been served notice of the interview, was opposed to counsel for only one of the parties being present at an interview. Finding that it would be unreasonable to cancel the interview, as the police officer was present and M. had taken time off from school, the applicant's counsel agreed that it could be conducted without his being present. The police officer and the applicant's counsel discussed what aspects of the case needed to be addressed during the interview. In general, counsel for the applicant wished to have a more detailed account of what was alleged to have happened. However, no written list of questions was drawn up. Counsel for the applicant later listened to the audiotape of the interview and was given a transcript of the tape. Finding that the issues raised in his request had been covered, he did not call for a further interview to be held.", "14. On 29 September 1995 the applicant was indicted for sexual acts with a child (sexuellt umgänge med barn).", "15. The Kalmar District Court (tingsrätten) heard the case on 31 October 1995. The applicant denied the charges. The videotaped police interview with M. was shown during the hearing. The record of the second interview was read out. The court also heard evidence from M.'s mother and his schoolteacher as witnesses. No request for M. to be heard in person was made.", "16. In a judgment of 14 November 1995 the District Court convicted the applicant and sentenced him to eight months' imprisonment. The court, noting that the outcome of the case was entirely dependent on the credibility of M.'s statements, found no reason to call into question their veracity. Thus, basing itself on those statements, the court found that the applicant, on a large number of occasions in 1994, had touched M.'s penis or masturbated him and induced M. to touch the applicant's penis or masturbate him.", "17. The applicant appealed to the Göta Court of Appeal (Göta hovrätt). Subsequently, at the applicant's request, his defence counsel was replaced. The appellate court held a hearing on 22 April 1996, during which it heard the applicant and his new counsel. M.'s mother and his schoolteacher gave evidence. The videotape of the first police interview with M. and the audiotape of the second interview were played back. Again, the applicant did not request that M. give evidence during the hearing.", "18. In a judgment of 6 May 1996 the Court of Appeal upheld the applicant's conviction but reduced the sentence to three months' imprisonment. It considered that, as there was no technical evidence in the case and nobody had witnessed the alleged acts, the credibility of M.'s statements was of decisive importance in determining the applicant's guilt. It went on to state the following:\n“For reasons of legal certainty, the questioning of children during pre-trial investigations must – as explained in detail by the Supreme Court [Högsta domstolen] in NJA 1993 p. 616 – meet high standards with regard to both methods and content.\nThe information given by [M.] is, in some parts, vague and uncertain. He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred. It should further be noted that some of the questions put to him have been of a leading nature. Even if these circumstances are taken into account, the Court of Appeal finds that [M.'s] statements cannot be disregarded.\nA fact which strongly indicates that [M.] has been subjected to homosexual abuse is his expressed concern that he would become 'gay'. The Court of Appeal has had further regard to the following circumstances. The general impression of the video-recording is that [M.] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information. This may explain his unwillingness to go into detail about specific incidents. [M.] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions. Furthermore, in some respects his statements can be said to contain more personal observations, for example, 'Of course, I did not want to touch his but sometimes I did it without gloves' and 'First I asked if I would get any (refers to pastilles). He did not have any and then I did it voluntarily but I do not know why'. It should further be noted that no information has come to hand which could reasonably explain why [M.] would make untrue statements about events which he obviously considers to be shameful. Also of importance is the information given by [M.'s] mother and teacher which describes how [M.'s] personality has changed since the alleged injustice. The fact that it was a long time before [M.] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him. [M.'s] accounts do not contain any improbable elements, neither is the information given by him contradicted by other statements. In view of what has now been said, the Court of Appeal finds that [M.] is credible and that his statements should form the basis for the Court of Appeal's assessment of whether [the applicant] has behaved towards him in the manner indicated by the public prosecutor in his statement on the charges.”\nThe Court of Appeal found that the information given by M. showed that the applicant had induced M. to touch the applicant's penis or masturbate him. However, the statements that the applicant had touched M.'s penis or masturbated him were too uncertain and vague and thus did not constitute sufficient evidence.", "19. The applicant appealed to the Supreme Court. Relying on Article 6 §§ 1 and 3 (d) of the Convention, he complained that his counsel had not been able to put questions to M. He noted that there was no technical or other evidence in the case to support M.'s statements. He further criticised the manner in which M. had been interviewed and stated that M.'s statements were vague and contradictory. In these circumstances, the applicant claimed that he had a right to cross-examine M. He maintained that the Supreme Court's case-law, which allegedly permitted the procedure followed in his case, had to be changed in order either to give counsel for the defence a right to examine the minor or to require clear supporting evidence.", "20. On 26 June 1996 the Supreme Court refused the applicant leave to appeal." ]

[]

[ "8. The applicant company is the owner and hire purchaser of a fleet of vehicles registered in Cyprus and licensed as “Z” vehicles.", "9. On 1st July 1996 the District Court of Nicosia delivered judgment in a civil action lodged by the applicant against another company, Diprose Ltd, also in the car hire business. The District Court held, inter alia, that the applicant having legally terminated an agreement with Diprose, permitting the use and exploitation by the latter of the “Z” fleet of cars, it was entitled to take possession thereof and to sell them in satisfaction of a debt of 667,776 Cypriot pounds owed to it by Diprose, by way of rental under the said agreement, and to pay the remaining amount in satisfaction of debts owed by the applicant to a number of banks which had financed the purchase of the fleet by the applicant. Furthermore, the District Court ordered Diprose to deliver the cars to the applicant. Diprose obtained a stay of execution of the judgment on condition that it regularly paid certain instalments to the applicant for the use of the vehicles which the applicant had given to it in the past for rental to third parties.", "10. Diprose failed to keep up the instalments and, as a result, on 8 January 1998, the District Court of Nicosia allowed the applicant to collect the vehicles. In the meantime, Diprose had been wound up and, by letter of 11 February 1998, the liquidator declared that he was willing to return the vehicles, which apparently had been wrongfully given to another company, Kemtours Ltd, belonging to the same group as Diprose, without the consent of the applicant.", "11. In the meantime, Kemtours had instituted proceedings (action 3315/98) seeking damages from the applicant for breach of the agreement which they had allegedly concluded on 3 February 1997. Kemtours contended that, under that agreement, 127 vehicles had been rented to it by the applicant but a number of them was still in the applicant's possession. Kemtours further sought to obtain a decision preventing the applicant company from interfering with Kemtours' activities under the agreement and ordering it to hand over to Kemtours a number of the vehicles which were still in the applicant's possession.", "12. Whilst the applicant was in the process of collecting the vehicles, Kemtours obtained in fresh proceedings before the District Court of Nicosia, and on an ex parte basis, an interim decision which ordered the applicant to deliver the said vehicles to Kemtours. This order was issued on 31 March 1998 and served on the same date on the applicant.", "13. The order was to be enforced on 13 April 1998. On that date, the applicant's lawyer appeared before the court and requested time to appeal against the order. The court fixed the case for directions on 5 May 1998 and then again on 7, 20 and 25 May in order to afford time to the parties to settle their dispute. The court invited the lawyer to file an appeal at least four days before 5 May 1998.", "14. However, the applicant filed its appeal on 5 May 1998. The applicant maintained that the court had been misled by Kemtours, which had failed to disclose the real facts of the case and the previous judgment and decision of the District Court. The applicant invited the District Court to hold a hearing as soon as possible in view of the fact that the fleet of “Z” cars was worth more than 500,000 Cypriot pounds. Furthermore, the applicant alleged that the unauthorised use of the vehicles under the interim decision would entail a reduction of their value and would prevent the applicant from presenting them to the competent authorities in order to have their licenses renewed. Finally, the applicant affirmed that it had never entered into such an agreement with Kemtours.", "15. As the parties had reached no settlement of the case by 27 May 1998, the District Court fixed the hearing for 8 July 1998. On this date, the judge stopped the hearing at midday, because of the “lateness of the hour”, and adjourned it until 17 July 1998, during the summer recess. However, the judge pointed out that he would be working during this period.", "16. The hearing started on 17 July 1998. Evidence given by Kemtours was completed on the same day.", "17. According to the applicant, the hearing should have been completed in the same month or at the beginning of August 1998. However, it was repeatedly adjourned due to the illness of either the advocate for the plaintiff or the judge dealing with the case, as well as to the latter's transfer to other pending court proceedings.", "18. At the end of the hearing on 17 July 1998, the applicant's lawyer had indicated five dates in July on which he could make himself available for the continuation of the hearing, but the advocate for the plaintiff declared that he would be unavailable due to other court commitments.", "19. Adjournments were thus ordered until 7 and 9 September 1998 (because the advocate for the plaintiff had to undergo an operation), 5 November 1998, 12 November 1998, 17 December 1998 (due to the court's lack of time and the illness of the advocate for the plaintiff), 7 January 1999, 14 January 1999, 25 February 1999 (on which date the case was heard by another judge because the judge dealing with the case was ill), 18 March 1999, 22 April 1999, 13 May 1999, 2 June 1999, 17 June 1999, 1 July 1999, 6 July 1999, and 9 and 10 September 1999.", "20. On 27 April 1999 and as a result of the repeated adjournments, the applicant filed an application for certiorari and prohibition with the Supreme Court. It sought the annulment of the interim order because of the excessive delay in the proceedings before the District Court. The applicant also alleged that the court had exceeded its jurisdiction on a matter of construction involving section 9 of the Civil Procedure Law. On 27 May 1999 the Supreme Court refused the application. On the same date the applicant appealed against that decision and, by way of a letter to the President of the Supreme Court, invited him to expedite the proceedings.", "21. Following a letter from the applicant's lawyer, who complained about the delay in the proceedings, the President of the District Court assigned the case to a new judge on 10 June 1999.", "22. In the meantime, on 21 April 1999, Kemtours had applied for an order of imprisonment of the applicant's managers for contempt of the interim order of 31 March 1998. Initially fixed for 2 June 1999, the hearing was adjourned until 17 June and then until 6 July 1999, because of the direct relevance of these proceedings to those concerning the interim order. Due to the summer recess both sets of proceedings were fixed for hearing on 9 and 10 September 1999.", "23. On 9 September 1999 the District Court decided that the hearing relating to the interim order should precede the contempt hearing. The hearing commenced on 10 September and was adjourned until 30 September, and then until 8 October because the plaintiff's advocate had failed to summon a witness whom he wished to call to give evidence. The hearing continued on 8 and 20 October, but on 27 October it was adjourned until 9 November 1999 at the request of the plaintiff's advocate. The court rejected the objection by the applicant's lawyer's on the ground that the adjournment was granted in order to permit the other party to prepare a document which would expedite the proceedings. The hearing continued on 9, 12 and 18 November 1999 and the court heard six witnesses.", "24. On 3 December 1999, when the hearing was to be resumed, the advocate for the plaintiff requested an adjournment because his bad state of health necessitated an operation abroad. The continuation of the hearing was fixed for 22 December 1999.", "25. On 9 December 1999, the date on which the hearing in the contempt proceedings ought to have taken place, the District Court again ordered an adjournment until 14 January 2000 and then until 24 January because the plaintiff's advocate was hospitalised abroad. However, following a protest by the applicant's lawyer, the court affirmed that no further request for an adjournment would be granted.", "26. On 21 January 2000 the District Court again adjourned the hearing until 28 February 2000 in order to give time to the newly appointed lawyer for the plaintiff to familiarise himself with the case. The applicant's lawyer did not object because he stated that he had other court commitments.", "27. The hearing resumed on 28 February 2000 with the testimonies of two witnesses, thus bringing to eight the total number of witnesses heard. On 17 March 2000, the parties made their final addresses.", "28. By judgment of 11 May 2000, the District Court held that the interim order was no longer in force. It declared it null and void because the plaintiff had failed to prove its allegations; it also held, at page 16 of the judgment, that the failure of Kemtour to file the Statement of Claim over a two-year period could not be attributed to the illness of the lawyer." ]

[ 3 ]

[ "8. The applicant was born in 1955 and lives in Biała Podlaska, Poland.", "9. On 2 January 1996 the applicant was arrested by the police on suspicion of having committed burglary. On 4 January 1996 he was brought before U. Ś.-O., a district prosecutor from the Biała Podlaska District Prosecutor's Office (Prokuratura Rejonowa), charged with two counts of burglary and detained on remand in view of the reasonable risk that he might obstruct the proper conduct of the proceedings.", "10. On 5 January 1996 the applicant lodged a complaint with the Biała Podlaska District Court (Sąd Rejonowy), maintaining that his detention was unlawful because the detention order had been made by the prosecutor, who did not have the attributes of a “judge” required under Article 5 § 3 of the Convention.\nThe court deemed the complaint to be an appeal against the detention order of 4 January 1996. It examined it as such and dismissed it on 18 January 1996. The court considered that the applicant should be detained because there was a reasonable risk that he might obstruct the proper conduct of the proceedings.", "11. Subsequently, in January and February 1996, the applicant complained to the Biała Podlaska District Prosecutor and the Ombudsman (Rzecznik Praw Obywatelskich) that, after having been arrested, he had not been brought before a judge but before the prosecutor, who had not been authorised by law to exercise judicial power.", "12. On 21 February 1996 the Biała Podlaska District Prosecutor replied to that complaint, stating that, under the provisions of the Code of Criminal Procedure, as they stood at the material time, the prosecutor had a power to detain him on remand; however, under the amendments to Polish criminal legislation, which were to enter into force on 4 August 1996, only the courts of law could impose detention on remand.", "13. On 27 March 1996 the Biała Podlaska District Prosecutor lodged a bill of indictment with the Biała Podlaska District Court.", "14. On 23 June 1996 the court gave judgment and convicted the applicant of dealing with stolen goods.", "15. On 17 July 1996 the applicant complained to the Supreme Court (Sąd Najwyższy) that, after having been arrested, he had not been brought before a judge but before the Biała Podlaska District Prosecutor.", "16. On 30 July 1996 the Case-law Department of the Supreme Court replied to the applicant's complaint in the following way:\n“ ... Under Article 210 § 1 of the Code of Criminal Procedure, a court imposes preventive measures after a bill of indictment has been lodged with that court; beforehand - a prosecutor [imposes such measures]. It thus follows that your doubts as to the imposition of detention [in your case] are unreasonable.\nArticle 5 § 5 of the Convention clearly states that everyone detained shall be brought promptly before a judge – or other officer authorised by law to exercise judicial power. Under [the relevant] legislation, a prosecutor is such an officer. ...”" ]

[ 2 ]

[ "9. The applicant was born in 1953 and currently lives in Turkey.", "10. He entered France in 1974. At the material time, he worked for a business in Strasbourg.", "11. On 15 March 1991 he and another person, M. B., were arrested by officers from the Strasbourg Regional Police Department (“the SRPJ”) and customs officers on the verge of concluding a drugs deal with a couple, who managed to make their getaway.", "12. The applicant consistently protested his innocence, saying that he had been the victim of a put-up job by customs officers. He explained that he had agreed to act as an “informer”, and in that capacity had cooperated with J.-F. R. of the SRPJ and J.-P. C., a customs inspector and the person allegedly behind his arrest. As for the couple who had “escaped” arrest by the police, they were in fact both customs officers, known as “Maud” and “Serge”.", "13. On 18 March 1991 the applicant was charged with drug trafficking and detained. On 3 June 1991 he was brought before the Strasbourg Criminal Court, which on 25 June 1991 sentenced him and M.B. to the following penalties: (a) five years' imprisonment for the criminal offences of importing, purchasing, possessing and transporting drugs, attempting to supply drugs, and importing, possessing and dealing in drugs without a licence; (b) an order permanently excluding them from French territory; and (c) an order requiring them to pay 1,070,000 French francs (FRF) in lieu of confiscation and a customs fine of FRF 400,000 that was imposed jointly and severally for the customs offence of illegally importing goods.", "14. The Strasbourg Criminal Court also made an order under Article 382 of the Customs Code in the same judgment for the defendants' imprisonment if the sums were not paid.", "15. On 27 June 1991 the public prosecutor sought an order for two years' imprisonment in default, as the customs fine had not been paid.", "16. On 5 November 1991 the Criminal Appeals Division of the Colmar Court of Appeal upheld the Criminal Court's judgment in its entirety, as regards the issues of both criminal law and customs law.", "17. On 6 November 1991 the applicant decided to appeal to the Court of Cassation; however, he later withdrew his appeal and the case was struck out of the Court of Cassation's list on 3 February 1992.", "18. On 4 September 1994 the applicant completed his prison sentence. However, he remained in custody pursuant to the order requiring him to serve two years' imprisonment in default of payment of the customs fine of FRF 1,470,000. He made an urgent application to the President of the Mulhouse tribunal de grande instance, arguing that the order for his imprisonment in default was defective, as the Customs Office had failed to serve him with a demand for payment. The urgent-applications judge dismissed that application in an order of 27 September 1994. In a judgment of 28 November 1994 the Colmar Court of Appeal upheld that order for the following reasons:\n“Under Article 388 of the Customs Code the court may make an express order for a person who has been convicted of a [customs] offence or offence relating to indirect taxation to remain in custody, even if an ordinary appeal or appeal on points of law has been lodged, until he or she has paid the fiscal penalties imposed on him or her.\nThe courts have consistently held that customs law is a special branch of law and an exception to the general law.\nIn the present case, the express reference in the Customs Code to the Code of Criminal Procedure relates only to the length of the imprisonment in default.\nConsequently, since the Criminal Court made an express order – upheld by the Court of Appeal – under Article 388 of the Customs Code for enforcement of the order for imprisonment on the ground of anticipatory default, the provisions of Articles 749 et seq. of the Code of Criminal Procedure giving the President of the tribunal de grande instance jurisdiction to hear urgent applications are inapplicable.”", "19. On 26 October 1994 the Court of Cassation ruled that the applicant's appeal on points of law against that decision had lapsed, as he had not lodged written pleadings in support of his appeal within the statutory time-limit.", "20. On 14 March 1996 the applicant made an application for an order for the prison sentence and the term of imprisonment in default to run concurrently, arguing that he was serving two prison sentences for the same offence.", "21. He alleged a violation of Article 4 of Protocol No. 7 to the Convention, which sets out the non bis in idem rule, and of Article 6 of the Convention. He relied in particular on the Court's judgment in Jamil v. France (judgment of 8 June 1995, Series A no. 317-B), in which imprisonment in default was found to constitute a “penalty” for the purposes of the Convention.", "22. In a judgment of 21 May 1996 the Colmar Court of Appeal dismissed the applicant's application on the grounds that, firstly, “the European Court of Human Rights' judgments are declaratory and therefore not binding on the trial court, which is only required to apply the European Convention on Human Rights”; and, secondly, “imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure”. The Court of Appeal concluded from that that Article 5 of the former Criminal Code, which required sentences to run concurrently, had not been infringed by the trial court and could not enable a prison sentence and term of imprisonment in default to be served concurrently.", "23. On 22 May 1996 the applicant appealed to the Court of Cassation against that judgment. In a judgment of 16 September 1997 the Court of Cassation dismissed the appeal for the following reasons:\n“The appellant cannot validly argue that, by sitting in private in accordance with Article 711 of the Code of Criminal Procedure, the Court of Appeal infringed Article 6 of the European Convention on Human Rights ...\nThe requirement for a public hearing laid down by that provision applies only to proceedings for 'the determination of a criminal charge' and cannot therefore be relied on with respect to proceedings relating, as in the instance case, to an application for a ruling that sentences be served concurrently ...\nThe impugned judgment and procedural documents show that the appellant, Ali Göktan, was found guilty of an offence under the drug-trafficking and customs-offences legislation and, inter alia, sentenced to five years' imprisonment and a customs fine. After being ordered to serve two years' imprisonment in default of payment, he made an application for a ruling that that term should run concurrently with the prison sentence.\nIn dismissing that application, the Court of Appeal found, in particular, that imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure.\nIn these circumstances, the Court of Appeal has justified its decision and the alleged grievance is without foundation ...”", "24. The applicant, who has now completed all the sentences he was required to serve, was deported to Turkey, where he came from, pursuant to the permanent exclusion order." ]

[]

[ "9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members.", "10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail:\n“Dear Dave,\nYou probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.\nInstead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.\nA handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.\nEach member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.\nAll journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990.\nI would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.\nI think you should know that the initiative to end collective bargaining has come from the editors, not the management.\nIt is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.\nThe success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.\nYours sincerely,\n...”", "11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts.", "12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose.", "13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement.", "14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms:\n“I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.\nYou are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded.\nUnder the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position.\nIf you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.\nAs part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review.\nThis new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–\nAllowances, e.g. Height, tool, allowances, etc.,\nHoliday bonus and higher grade duty payments.\nThese items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.\nOvertime will be offered as and when necessary. There will be no contractual overtime.\nUnder the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).\nIf you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ...\nThe Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...”\nThe average pay increase offered to manual grade employees who accepted personal contracts was 10%.", "15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance.", "16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.", "17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf.", "18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants.", "19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.", "20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below).", "21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal.", "22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97). \nIn Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act.\nIn Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union.", "23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining.", "24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed.", "25. According to United Kingdom law, a “trade union” is any organisation which consists wholly or mainly of workers and has the regulation of relations between workers and employers or employers' associations as one of its principal purposes (section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 – “the 1992 Act”). There is no system of licensing trade unions prior to their recognition for collective bargaining.", "26. At the time of the events in question in this case, collective bargaining was a wholly voluntary process. There was no legislation in the United Kingdom which inhibited the freedom of employers to recognise or de-recognise trade unions for the purposes of collective bargaining (the Employment Act 1980, repealing the Employment Protection Act 1975).", "27. Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 provided:\n“23(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of \n(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.”\nThis provision was re-enacted as section 146(1) of the 1992 Act.", "28. After the Court of Appeal found for the applicants, Parliament enacted section 13 of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”) to amend section 148 of the 1992 Act by providing that where “the employer's purpose was to further a change in his relationship with all or any class of his employees” then, unless the employer's action was action that no reasonable employer could take, section 146(1) of the 1992 Act would provide no remedy for the employee.", "29. Although a strike by employees involves breaches of their respective contracts of employment and calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing a breach of contract of the employees concerned, section 219 of the 1992 Act confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute” (as defined; see UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I).", "30. Article 5 of the Social Charter provides for the following “right to organise”:\n“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”", "31. Article 6 of the Charter is headed “The right to bargain collectively” and provides:\n“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:\n(1) to promote joint consultation between workers and employers;\n(2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;\n(3) to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; \nand recognise:\n(4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”", "32. In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter examined section 13 of the 1993 Act with a view to determining whether it was consistent with Article 5 of the Charter and observed as follows (Conclusions XIII-3, Council of Europe, 1996, p. 108):\n“... the Committee was of the opinion that the wording of section 148(3)(a) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association. It considered that this weakening of the protection of freedom of association was not compatible with the requirements of Article 5. It pointed out that 'the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise, and in particular to protect workers' organisations from any interference on the part of employers' (see most recently Conclusions XII-2, p. 101). It also referred to its conclusion under Article 6 § 2 and its case-law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom (see most recently Conclusions XIII-2, p. 269).”", "33. In its next report the Committee again insisted “that the necessary measures be taken to repeal [section 13 of the 1993 Act, inter alia]”, commenting (Conclusions XIV-I, 1998, pp. 798 and 800):\n“The Committee repeats the criticism raised in its previous conclusion with respect to section 13 of the 1993 Act which is in breach of Article 5 of the Charter as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ...”", "34. The United Kingdom has ratified the International Labour Organisation's (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) and its Right to Organise and Collective Bargaining Convention, 1949 (no. 98).", "35. Convention no. 87 provides, inter alia:\n“Part I. Freedom of Association \nArticle 1 \nEach Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions. \nArticle 2 \nWorkers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. \nArticle 10 \nIn this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers. \nPart II. Protection of the Right to Organise \nArticle 11 \nEach Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”", "36. Convention no. 98 provides, inter alia:\n“Article 1 2. Such protection shall apply more particularly in respect of acts calculated to –\n(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;\n(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.\nArticle 3\nMachinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.\nArticle 4\nMeasures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”", "37. The ILO Committee on Freedom of Association has considered section 13 of the 1993 Act in the context of a case of alleged intimidation intended to bring about the de-recognition of two trade unions at a steel works in England, and the absence of any remedy under national law (Case no. 1852, 309th Report of the Freedom of Association Committee, Vol. LXXXI, 1998, Series B, no. 1). The Committee concluded as follows (paragraphs 337 and 341): \n“337. While bearing in mind that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee has considered that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking, provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes (see Digest, op. cit., paras. 845 and 824). While noting from the Government's observations that collective bargaining is still an option for the employer, the Committee concludes that, given the facts available in this particular case, [the employer] has by-passed the representative organisation and entered into direct individual negotiation with its employees, in a manner contrary to the principle that collective negotiation between employers and organisations of workers should be encouraged and promoted. The Committee notes with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared. The Committee hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard. 341. Finally, as concerns the previous Government's argument with respect to the relevance of section 13 of the [1993 Act], the Committee can only state that, in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation, it is not in a position to judge on the relevance of section 13 to the case in question. It would recall however that it was the Government which had raised the matter of section 13 in its initial reply to this complaint and that the conclusions reached by the Committee were based wholly upon its conclusions in a previous case presented against the United Kingdom Government for alleged infringements of trade union rights (see 294th Report, Case no. 1730) wherein it had invited the Government to reconsider section 13 in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided for in Article 4 of Convention no. 98 (ratified by the United Kingdom). The Committee recalls in this respect that section 13 directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the employer's purpose to further a change in the relationship with the employees and the Committee had concluded that this section considerably limited the tribunal's competence for determining such action as being in violation of section 146 concerning action short of dismissal (see 294th Report, Case no. 1730, para. 199). The Committee does not consider that the possible effects of section 13 have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this respect.”\nThe Committee recommended, inter alia, (and its recommendations were approved by the ILO's Governing Body):\n“(a) Noting with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared, the Committee expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.\n...\n(e) The Committee once again calls on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this regard.”" ]

[ 7 ]

[ "6. The first and the second applicant were born in 1927 and 1950 respectively. The third and the fourth applicant were born in 1954. The first applicant lives in Józefów and her three daughters in Warsaw, Poland.", "7. From 1939 to 1944, Jan Hałka, the first applicant's husband, was a member of the Polish resistance troops of the underground Home Army (Armia Krajowa). In 1944 he was arrested by the NKVD and the Polish political police and imprisoned in a labour camp in Siberia. He was kept in Borowice (former USSR) from November 1944 to February 1946. He died on 17 November 1986.", "8. On 8 December 1994 the applicants filed an application with the Warsaw Regional Court for compensation under section 8 § 2(a) of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego buty Państwa Polskiego) (“the 1991 Act”).", "9. In 1996 the first applicant personally went to the court and asked a judge to fix a date for a hearing as soon as possible. She submitted that she was an elderly person and that the court should therefore give priority to her case.", "10. In 1998 she again went in person to the Warsaw Regional Court and asked the judge to set a date for a hearing as soon as possible.", "11. On 11 May 2000 she sent a letter to the court, asking for a hearing date to be set and for information on the proceedings. She maintained that her previous applications for the proceedings to be accelerated had been to no avail and that the period of total inactivity on the part of that court had exceeded five years.", "12. On 1 October 2000 she complained to the Minister of Justice about the lack of progress in the proceedings.", "13. On 4 December 2000 the Warsaw Regional Court held a hearing in the applicants' case. On the same date the court gave judgment and awarded the first applicant and her three daughters compensation in the amount of 8,075 Polish zlotys (PLN) each. Since no party appealed within the statutory time-limit of seven days, the first-instance decision became final on 12 December 2000.", "14. On 19 March 2002 the Warsaw Regional Court informed the first and the third applicant that they could collect the sums awarded from the Financial Department of the Warsaw Regional Court on 25 March 2002. They did so. It appears from the material produced by the applicants that the second and the fourth applicant have not yet received their share of the compensation awarded." ]

[ 3 ]

[ "9. The applicant was born in 1953 and lives in Gabrovo.", "10. On 28 June 1996 she was arrested upon the order of a prosecutor and brought to a psychiatric clinic for an examination. She was detained for five days and then released.\nShe was again detained for a psychiatric examination on 28 August 1996. \nOn 21 March 1997 the applicant was arrested and detained for a third time. She was brought to a psychiatric clinic where she was detained allegedly incommunicado until 4 April 1997.", "11. Upon the applicant's complaint, she was informed by letter of 28 March 1997 of the district health authorities that her detention had been ordered by a prosecutor in accordance with the law. The applicant allegedly submitted another complaint to the Ministry of Health on 25 April 1997 but never received an answer.", "12. A summary of the relevant domestic law and practice in respect of detention with the purpose to conduct psychiatric examinations is contained in the Court's judgment in the case of Varbanov v. Bulgaria (no. 31165/95, ECHR 2000-X). Paragraphs 28-32 of that judgment, insofar as relevant, read as follows:\n“[Judicial proceedings for an order for compulsory psychiatric treatment] are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry, including a psychiatric examination, in order to assess the need for instituting proceedings. The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry.\nThe Public Health Act, as in force [until February 1997], did not contain a provision expressly authorising a prosecutor to order a person being brought by force to a hospital and his detention at the hospital for purposes of such a psychiatric examination... The relevant law did not provide for an appeal to a court in cases of persons detained for an examination in the framework of a district prosecutor's inquiry...\nCertain amendments to the Public Health Act were introduced in February 1997... [providing] ... that a prosecutor, in the framework of his inquiry, can order confinement to a psychiatric hospital for up to 30 days (up to three months in exceptional cases) for the medical examination of a person who has refused to undergo such an examination voluntarily. However, no provision allowing judicial review of the prosecutor's order was introduced.\nThe Code of Criminal Procedure, by virtue of an amendment in force since 1 January 2000, introduced a judicial procedure for confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought. This procedure, however, does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor's order under Section 61 of the Public Health Act.”", "13. In the Varbanov case the Court made the following findings relevant to the present case (see paragraphs 43-53 of that judgment): \n“... the Public Health Act, as in force [until February 1997], did not contain any provision empowering prosecutors to commit a person to compulsory confinement in a psychiatric clinic for the purpose of effecting a psychiatric examination. \nMoreover, the applicable law, as in force at the relevant time and even after its amendment in 1997, does not provide for the seeking of a medical opinion as a pre-condition to ordering detention with a view to compulsory psychiatric examination and thus falls short of the required standard of protection against arbitrariness.\nThe Court thus finds a violation of Article 5 § 1 of the Convention on account of the fact that the applicant's deprivation of liberty was not justified under subparagraph (e) of this provision and had no basis in domestic law which, moreover, does not provide the required protection against arbitrariness as it does not require the seeking of a medical opinion.”" ]

[ 1 ]

[ "8. On an unspecified date, criminal proceedings were instituted against the applicant for tax offences.", "9. In an order of 18 September 1991, the Benevento investigating judge committed the applicant for trial, commencing on 16 December 1991 before the Benevento District Court. On 21 September 1991, this order was served on the applicant, who was thus informed of the charges brought against him.", "10. The first hearing was adjourned because the applicant was ill. On 8 June 1992, at the parties' request, the District Court, acting in accordance with Article 2 § 3 of Presidential Decree n° 23 of 20 January 1992, decided to suspend the proceedings awaiting the information from the Benevento Revenue (Ufficio Finanziario delle Imposte dirette) on the applicant's integration into the taxpayers' list. On 29 October 1997, the District Court requested the Benevento Revenue to produce the information at issue. The information was given on 20 December 1997.", "11. On 22 January 1998, the case was adjourned because on that day the lawyers of the Benevento Bar Association were on strike.", "12. On 16 April 1998, the parties presented their final pleadings. The applicant and the Public Prosecutor requested the District Court to declare that the offences were time-barred.", "13. By a judgment of 16 April 1998, filed with the registry on 23 April 1998, the District Court held that the charges had become time-barred in July 1997." ]

[ 3 ]

[ "8. On 4 May 1988 the Genoa Public Prosecutor's Office informed the applicant that criminal proceedings concerning his public duties (the applicant was a civil servant in the Ministry of Public Works) had been instituted against him. These proceedings were subsequently transferred to the Milan Public Prosecutor's Office, and on 7 September 1988 the Milan investigating judge informed the applicant that a charge of corruption was pending against him.", "9. On 26 May 1989 the applicant was heard by the Milan investigating judge.", "10. On 31 May 1991 the applicant and forty-four other persons were committed for trial before the Milan District Court. The first hearing, initially scheduled for 27 January 1993, took place on 12 January 1994.", "11. In a judgement of 31 March 1994, the District Court, following the plea bargain procedure (“applicazione della pena su richiesta delle parti”) sentenced the applicant to one year and four months' imprisonment. This decision was filed with the registry only on 19 March 1997. It became final on 6 July 1997.", "12. In the meantime, by an order of 31 July 1995, the Ministry of Public Works dismissed the applicant from his post as a consequence of his criminal conviction." ]

[ 3 ]

[ "8. On 9 December 1985 the applicant, accused of theft and possession of drugs, was arrested and placed in detention on remand. He was released on 21 January 1986.", "9. In an order of 27 May 1986, the Ancona investigating judge committed the applicant and fifty-eight other persons for trial before the Ancona District Court.", "10. On 2 September 1986 the President of the Ancona District Court scheduled the date of the first hearing for 12 November 1986.", "11. In a judgment of 5 March 1987, filed with the registry on 20 March 1987, the District Court acquitted the applicant for lack of evidence (“insufficienza di prove”). A number of his co-accused were sentenced to heavy penalties.", "12. The applicant, together with fourteen other accused, lodged an appeal with the Ancona Court of Appeal in order to obtain a more favourable acquittal formula.", "13. On 17 February 1988 the case-file was forwarded to the Court of Appeal.", "14. The trial hearing, initially scheduled for 16 April 1996, was adjourned until 13 December 1996.", "15. In a judgment of the same day, filed with the registry on 10 January 1997, the Court of Appeal acquitted the applicant. This decision became final on 2 February 1997." ]

[ 3 ]

[ "9. The applicant is an Iranian citizen, born in 1966, and lives in Viborg, Denmark.", "10. In 1986 the applicant commenced his military training in Iran. It is not clear whether he participated directly in the war between Iran and Iraq. On 25 April 1987 he deserted and fled to Turkey, where he arrived on 5 May 1987. It appears that the applicant stayed for some time in Turkey and then in Greece.", "11. He arrived in Denmark on 20 August 1989 and applied for asylum. Pursuant to the practice of the Danish immigration authorities at that time, all asylum-seekers from Iran who, due to desertion from the army, had left their home country before the armistice between Iran and Iraq in the summer of 1988 were granted a residence permit. Accordingly, on 12 October 1990 the applicant was granted a residence and work permit. On 25 August 1994 the residence permit became permanent.", "12. In 1992 the applicant met a Danish woman, A, with whom he cohabited. A daughter was born out of the relationship on 16 October 1996. The applicant and A got married on 23 September 1997 and had another child, a son, born on 20 April 2001. A also has a daughter born in 1989 from a previous relationship, who lives with A and the applicant, and with whom the applicant has a very close relationship. All three children have been raised pursuant to Danish traditions.", "13. It appears that the applicant's family broke off all relations with him in 1987 due to his desertion from the army.", "14. In Denmark the applicant had been making a living as the owner of a pizzeria until the end of 1996. Since May 2000 he had been receiving welfare benefits and was at the same time assigned job training by the municipality with the possibility of continuing employment. A works at a retirement home.", "15. On 17 December 1996 the applicant was arrested and detained on remand, charged with drug trafficking allegedly committed during 1996. By judgment of 1 October 1997 the City Court of Hobro (retten i Hobro) found him guilty, inter alia, of drug trafficking with regard to at least 450 grams of heroine contrary to Article 191 of the Criminal Code. He was sentenced to three years' imprisonment and, pursuant to sections 22 and 26 of the Aliens Act, was expelled from Denmark with a life-long ban on his return. \nThe applicant appealed against the judgment but withdrew the appeal in November 1997, whereupon the City Court judgment acquired legal force.", "16. On 14 July 1998, pursuant to section 50 of the Aliens Act, the applicant instituted proceedings in the City Court of Hobro claiming that material changes in his circumstances had occurred on account of which he requested the court to review the expulsion order. He referred to his family situation and alleged, with reference to information obtained from Amnesty International, that it could not be ruled out that he would risk severe punishment in Iran for having deserted from the army and also perhaps receive a life sentence for the narcotics crimes committed in Denmark.\nOn 11 September 1998 the City Court rejected the applicant's request, as it did not find that the applicant's situation had changed to such an extent that there was any reason to revoke the expulsion order. This decision was upheld by the High Court of Western Denmark (Vestre Landsret) on 9 October 1998.", "17. On 17 December 1998 the applicant had served two-thirds of his sentence and was due to be released on parole. Since he did not consent to the deportation and refused to leave the country voluntarily, he was detained as from that date in accordance with the Aliens Act with a view to being repatriated. Also in accordance with the Aliens Act, the applicant availed himself of the possibility, prior to the enforcement of a deportation, to bring before the immigration authorities (Udlændingestyrelsen) the question whether he could be returned to Iran, since, pursuant to the Aliens Act, an alien must not be returned to a country in which he or she will risk persecution on the grounds set out in Article 1 A of the Convention of 28 July 1951 concerning the Status of Refugees. The immigration authorities found, on 13 January 1999, that the applicant would not risk persecution in Iran of a kind which could constitute a basis for his remaining in Denmark. The applicant appealed against this decision to the Refugee Board (Flygtningenævnet), which on 16 April 1999 requested the Ministry of Foreign Affairs to provide more information on the situation in Iran. \nHaving obtained information from several different authorities, on 4 January 2000 the Refugee Board confirmed the immigration authorities' decision.", "18. Subsequently, relying on section 50 of the Aliens Act for the second time, and claiming that material changes in his circumstances had occurred, the applicant requested the City Court of Hobro to reconsider the expulsion decision. The court had the same material at its disposal as the Refugee Board and a number of statements from doctors concerning the applicant's state of health. In addition, A was heard stating inter alia that her daughter from a previous relationship, refuses to move to Iran. By judgment of 14 February 2000 the City Court revoked the decision to expel the applicant. \nOn 3 March 2000 the High Court of Western Denmark quashed the above decision and dismissed the applicant's request for reconsideration of the expulsion order since, pursuant to section 50 of the Aliens Act, an expelled alien is entitled to only one judicial review of the question of expulsion. The applicant's application for leave to appeal against this decision was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 5 May 2000.\nThe applicant was released from his detention on 11 May 2000.\nOn 7 September 2000 the Supreme Court upheld the High Court's decision of 3 March 2000 as it agreed that a request for a review of an expulsion order pursuant to section 50 of the Aliens Act could only be examined once by the courts." ]

[ 4 ]

[ "7. The applicant is a limited liability company with its seat in Gumpoldskirchen (Austria).", "8. As a client had allegedly not paid enough for construction work accomplished for him, the applicant filed an action for unjustified enrichment with the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) on 30 May 1980.", "9. On 21 November 1994 the Regional Court, after having held numerous hearings, dismissed the applicant's action.", "10. On 23 May 1995 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal.", "11. On 25 October 1995 the Supreme Court (Oberster Gerichtshof) rejected the applicant's further appeal on points of law." ]

[ 1, 3 ]

[ "8. Between 1982 and 1989 the applicant used to live in a rented apartment located in the area of Terontola, in the province of Perugia. He was housing a Nigerian national whom the authorities maintain is the applicant's cousin, whereas the applicant alleges he is only a friend.", "9. On 23 February 1988 a criminal complaint was filed against the applicant and against the person who was sharing the apartment with him for membership of a drug-trafficking ring.", "10. On an unspecified date a search warrant was issued against the applicant's friend/cousin. On 13 November 1988 the applicant's apartment was searched. The police found a certain amount of drugs, partly in the house and partly in a nearby barn. On the same date the applicant was arrested and charged with illegal possession of drugs.", "11. During his police interrogation the applicant chose the family home of a couple of close friends, Mr and Mrs C., as the address for service of communications relating to the case, as provided for by Section 171 of the former Italian Code of Criminal Procedure. The applicant was subsequently committed for trial before the Arezzo District Court on the charge of illegal possession of drugs.", "12. On 7 December 1988 the Arezzo District Court acquitted the applicant on the ground of lack of evidence (insufficienza di prove). The court however found the applicant's friend/cousin guilty of possessing drugs and sentenced him to seven years' imprisonment.", "13. Following his acquittal the applicant again elected Mr and Mrs C.'s family home as his address for service. However, shortly after his acquittal the applicant moved to Germany where he obtained employment. The applicant did not inform the Italian authorities of this change of address as required by Italian law.", "14. On an unspecified date the Public Prosecutor attached to the Arezzo District Court appealed against the judgment acquitting the applicant. On 10 July 1989 the President of the Florence Court of Appeal issued a summons for the applicant to attend the appeal hearing set for 6 October 1989. On 2 August 1989 the bailiff (ufficiale giudiziario) completed a form stating that he could not serve the summons on account of the fact that the applicant was no longer living there and that it appeared that he had left the country (“non potuto notificare perchè il notificando non è piu' domiciliato presso la famiglia in questione ma pare sia ritornato all'estero”). On 16 August 1989 the bailiff completed a report stating that he had served the summons on the applicant by depositing it at the registry of the Florence Court of Appeal.", "15. On 6 September 1989 the registry of the Florence Court of Appeal issued a notice to Mr D., the applicant's officially-appointed lawyer (avvocato d'ufficio), which stated that, as it had not been possible to serve the summons on the applicant, it had been filed with the court registry. On 25 September 1989 the bailiff served this notice on Mr D.", "16. On 6 October 1989 the Florence Court of Appeal reversed the first-instance judgment concerning the applicant and sentenced him to seven years' imprisonment for illegal possession of drugs. The applicant, who had had no notice of the appeal proceedings, was not present at the hearing.", "17. On 3 January 1990 the bailiff wrote a report stating that the attempt to serve notice of the judgment on the applicant at the old address had failed, the applicant no longer being domiciled there, as declared by Mr C. On 29 January 1990 the bailiff completed a report (relata di notifica) stating that he had served notice of the judgment on the applicant by filing it with the registry of the Florence Court of Appeal. The applicant did not receive any notice of the appeal judgment or of the prison sentence passed on him.", "18. On 19 August 1995 the applicant was arrested when entering Italy on his return from a holiday. He was immediately imprisoned in compliance with the Florence Court of Appeal judgment of 6 October 1989.", "19. On 22 September 1995 the applicant made an application to the Court of Cassation seeking leave to make a “late appeal” (restituzione nel termine).", "20. By a decision (ordinanza) of 30 January 1996, which was deposited in the court's registry on 13 March 1996, the Court of Cassation rejected the applicant's request. It noted that the applicant had had knowledge of his conviction in absentia upon his arrest on 19 August 1995, whereas he had lodged the request for the late appeal on 22 September 1995, thus failing to comply with the ten-day time-limit set out in Article 175 of the Code of Criminal Procedure.", "21. In a letter dated 20 July 1996 Mr and Mrs C. stated that they had never been served with notification that an appeal had been lodged in respect of the applicant. On or about 31 May 1997 the applicant was released from prison and was expelled to the United Kingdom." ]

[ 3 ]

[ "12. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual.", "13. The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s, she was diagnosed as a transsexual. Though she married a woman and they had four children, her conviction was that her “brain sex” did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment in earnest, attending appointments once every three months at the Gender Identity Clinic at the Charing Cross Hospital, which included regular consultations with a psychiatrist as well as on occasion a psychologist. She was prescribed hormone therapy, began attending grooming classes and voice training. Since this time, she has lived fully as a woman. In October 1986, she underwent surgery to shorten her vocal chords. In August 1987, she was accepted on the waiting list for gender re-assignment surgery. In 1990, she underwent gender re-assignment surgery at a National Health Service hospital. Her treatment and surgery was provided for and paid for by the National Health Service.", "14. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children.", "15. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual.", "16. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back.", "17. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men, namely April 2002. On 23 April 1997, she therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. In the light of this undertaking, on 2 May 1997, the DSS Contributions Agency issued the applicant with a Form CF 384 Age Exemption Certificate (see Relevant domestic law and practice below).", "18. The applicant's files at the DSS were marked “sensitive” to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the “special procedures” she has received letters from the DSS addressed to the male name which she was given at birth.", "19. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity." ]

[ 4 ]

[ "9. On 22 October 1985, just before the 1986 elections, the first applicant published an Article entitled “The capon and self-esteem ‑ Short portrait of Mr Tassos Papadopoulos ‑ Archives, Gigolo, Computer and Specimen of writing”, of which the second applicant was the author.", "10. On 26 October 1985 Mr Papadopoulos filed a civil action for libel with the District Court of Nicosia. The applicants filed a memorandum of appearance to the writ on 5 November 1985. The plaintiff's statement of claim, which, by virtue of Order 20 r.1 of the Civil Procedure Rules, ought to have been filed within ten days after the appearance, was delivered to the applicants on 3 February 1988. Although on 6 November 1987 the District Court had fixed a time-limit of twenty-one days for the filing of the statement of claim, the plaintiff requested and obtained on 11 January 1988 an extension until 29 January 1988. On that date, as the statement of claim was not yet filed, the District Court did not fix the case anew, but gave instructions to the Registrar to bring the case before it, after 1 February 1988, in order to dismiss it for want of prosecution.", "11. On 16 September 1988 and 17 January 1989 the applicants filed two similar applications whereby they sought to obtain an order of the court striking out or amending paragraph 8 of the plaintiff's statement of claim, as tending to embarrass or delay the fair examination of the action or as being unnecessary or scandalous. The hearing of the applications was fixed for 7 November 1988, but on that date it was adjourned until 14 December 1988 at the request of both parties and then, ex officio, until 9 January 1989, when it was dismissed for want of prosecution. On 17 January 1989 the applicants filed a third similar application which was subsequently withdrawn on the date of the hearing on 21 April 1989, in the light of a statement made by the plaintiff's lawyer.", "12. On 31 May 1989 the applicants applied to the District Court for an adjournment of the time-limit to file their defence, on the ground that it had not been possible to do it in time owing to the numerous applications which were submitted in the action. An adjournment was granted until 7 June 1989 but the applicants did not file their defence until 12 September 1989.", "13. On 15 February 1990 the applicants applied to the District Court to expedite proceedings. The court fixed the case for mention on 16 March 1990 and for hearing on 9 November 1990. On that date the hearing was adjourned ex officio until 21 March 1991 and 15 November 1991, and then until 28 May 1992 and 13 January 1993. On that last date the applicants failed to appear because the plaintiff's lawyer had omitted to notify them of the date of the hearing.", "14. On 21 June 1993 the hearing was adjourned again until 4 February 1994, owing to the lack of time by the court, and again until 16 September 1994, following a request from the applicants. On three occasions the hearing was adjourned ex officio: on 16 September 1994, 1 March 1995 and 18 September 1995 and, following a further request from the applicants, again on 12 January 1996.\nFrom 16 March 1990 until 14 March 1996, when the hearing actually started, the hearing was adjourned on eight occasions, due to lack of time of the Court: from 16 March 1990 to 9 November 1990, from 9 November 1990 to 21 March 1991, from 21 March 1991 to 15 November 1991, from 15 November 1991 to 28 May 1992, from 28 May 1992 to 13 January 1993, from 13 January 1993 to 21 June 1993, from 21 June 1993 to 4 February 1994, from 4 February 1994 to 16 September 1994 (not attributed to the Court), from 16 September 1994 to 1 March 1995, from 1 March 1995 to 18 September 1995, from 18 September 1995 to 10 January 1996 (not attributed to the Court), from 10 January 1996 to 13 March 1996 (not attributed to the Court) and from 13 March 1996 to 14 March 1996.", "15. The hearing commenced on 14 March 1996 and involved seven sessions: on 14 March 1996, 2 April 1996, 22 April 1996, 29 May 1996, 30 May 1996, 12 June 1996 and 13 June 1996. On 14 March 1996, at the end of the morning session, the lawyers of both parties declared that they were unable to continue in the afternoon or the following week due to other court engagements. The applicants' lawyer refused to resume the hearing on 5 April 1996 because he had to appear before another court, and on 23 April 1996 because he was engaged in a pre-election meeting of his party. The hearing thus continued after the parliamentary elections held on 26 May 1996.", "16. On 28 January 1997 the District Court delivered its judgment. It found that the applicants had committed libel and ordered them to pay the plaintiff 12,000 Cypriot pounds in damages.", "17. The District Court rejected the applicants' claim that the proceedings were null and void because they had exceeded a reasonable length. The District Court noted, on the one hand, that the plaintiff had delayed filing his claims, but, on the other hand, that the applicants had not complained of this delay prior to the hearing.", "18. On 27 February 1997 the applicants appealed to the Supreme Court. They relied on two grounds: the excessive length of the proceedings and the amount of the award. On 8 April 1997 the plaintiff filed a cross-appeal whereby he sought higher compensation.", "19. The Supreme Court fixed the hearing on 22 December 1998 but on that date adjourned it until 12 May 1999.", "20. On 22 July 1999 the Supreme Court rejected the applicants' appeal and increased the award of damages to 20,000 Cypriot pounds.", "21. As regards the length of the proceedings, the Supreme Court held that much of the delay was due to the applicants' requests for adjournments. It acknowledged, however, that it took 28 months for the plaintiff to file his claims because of his frequent trips abroad, and that the District Court had adjourned the hearing several times for lack of time. In particular, the Supreme Court noted the following: on 16 September 1988 the applicants had invited the District Court to strike out part of the plaintiff's claims but, as they did not appear for the hearing of that matter, the District Court rejected the application. The applicants then asked for an extension of the time-limit to file their observations, which were submitted on 12 September 1989. On 23 August 1991 the applicants' lawyers withdrew, and on 11 November 1991 the new lawyer requested the District Court to adjourn the hearing because he was obliged to appear before another court. On 1 March 1995 the applicants' lawyer was not present. On 13 September 1995 he asked for a new adjournment. Finally, the hearing started on 14 March 1996 and was completed on 13 June 1996. During that period, the applicants' lawyer obtained two more adjournments." ]

[ 3 ]

[ "8. The applicant was born in 1952 and lives in Tunceli.", "9. On 5 and 6 June 1992 the applicant participated in a meeting organised by the Tunceli Human Rights Association. At this meeting he made a speech concerning the problems of the Kurdish people and expressed his opinions on possible solutions.", "10. On 3 May 1993 the Public Prosecutor attached to the Kayseri State Security Court (“the State Security Court”) instituted criminal proceedings against the applicant together with three other persons who had participated in the meeting. In his indictment, the public prosecutor accused the applicant, under Article 8 § 1 of the Prevention of Terrorism Act 1991, of disseminating propaganda against the indivisibility of the State.", "11. On 26 August 1993 the State Security Court found the applicant guilty of an offence under Article 8 § 1 of the Prevention of Terrorism Act and sentenced him to two years' imprisonment and a fine of 50,000,000 Turkish Liras (TRL). In its decision the court held that the applicant, along with three other persons, had put forward the idea of a separate people contrary to the concept of nation adopted in the Constitution. The court considered that the applicant and the three other accused, in their speeches and poems, had claimed that the Kurdish people were fighting against the Republic of Turkey for their independence and that their struggle should be supported. Referring to all the speeches made by the accused, the court held that sentences such as “the Kurdish people are exercising the right of rebellion in their fight for emancipation from captivity”, “the Kurds should be given the right to determine their future”; “the Kurdish people are engaged in a great struggle, fighting for socialism and national independence” amounted to propaganda against the indivisibility of the State. The court further referred to the slogans shouted by the audience during the speeches, such as “Let Kurdistan walk” and “Deho Apo” (the PKK leader) and to the presence of the symbolic colours of the Kurdish people, i.e. red, green and yellow in the meeting hall's decorations. Finally, the court found that the accused had carried out the proscribed propaganda at a time and place at which the threat to the unity of the State and the Nation was particularly acute.", "12. The applicant appealed against this judgment.", "13. On 6 May 1994 the Court of Cassation upheld the State Security Court's judgment.", "14. Following the amendments made by Law no. 4126 of 27 October 1995 to the Prevention of Terrorism Act, the State Security Court ex officio re-examined the applicant's case.", "15. On 28 November 1998 the State Security Court confirmed the applicant's conviction, and ultimately reduced the sentence to one year's imprisonment and a fine of 50,000,000 TRL." ]

[ 3 ]

[ "11. At the material time the applicant was employed as a clerk in the İzmir 2nd Court of Taxation. On 18 July 1995 the İzmir Civil Court of General Jurisdiction forwarded the name and workplace of the applicant to the İzmir public prosecutor's office, stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case.", "12. On 25 July 1995 the office of the public prosecutor referred the case to the İzmir Security Directorate.", "13. At 5.10 p.m. on 25 July 1995 the applicant was taken into police custody and detained at the İzmir Security Directorate. He was accused of the above offences. The applicant gave a statement in which he denied that he had been involved in the incident relating to the court's case file. The applicant later claimed that he was not permitted to contact his family or consult a lawyer and that he was insulted and beaten for two hours.", "14. Two other suspects were also detained and statements were taken from them. A statement was also taken from A.B., a party to the divorce proceedings.", "15. On 27 July 1995 an investigation record was drawn up for the applicant and the two other suspects. At 5 p.m. on the same day the applicant was released pursuant to the decision of the public prosecutor. The two other suspects were kept in custody.", "16. In the evening of 27 July 1995, following his release, the applicant went to the İzmir State Hospital. He was subsequently granted four days' sick leave by his employer. The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair.", "17. On 31 July 1995 the office of the public prosecutor of Karşıyaka decided not to bring charges against the applicant (takipsizlik kararı) for lack of evidence. The decision was served on the applicant on 19 August 1995.", "18. The public prosecutor took a statement from the applicant on 28 August 1995. In his statement the applicant declared that he had applied to the Ministry of Justice to have proceedings brought against the individual who had reported him to the authorities.", "19. On 29 August 1995 the public prosecutor decided not to bring charges against the person named by the applicant.", "20. On 5 September 1995 the applicant filed a complaint under Law no. 466 with the Karşıyaka Assize Court (Ağır Ceza Mahkemesi) against the Treasury requesting 200,000,000 Turkish liras (TRL) by way of compensation for his detention between “24 and 27 July 1995”. In the petition, the applicant's lawyer stated, inter alia, that the applicant, while in detention, had been tortured and ill-treated by being beaten and insulted for two hours and deprived of his right to contact his family and a lawyer. As a result of his injuries, the applicant had had to take four days' sick leave. Furthermore, the applicant's reputation had suffered. He did not rely on any specific section of Law no. 466.", "21. On 14 September 1995 the three-judge Karşıyaka Assize Court appointed one of its members (naip hakim) to investigate the case and draft a report. The judge designated for this purpose verified, inter alia, that the office of the public prosecutor of İzmir had dropped the charges against the applicant. He also obtained information about the applicant's personal, financial and social status. The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under section 3 of Law no. 466 that it was unnecessary to hear the applicant. The public prosecutor was asked for his written observations on the applicant's claim. On 7 December 1995 the public prosecutor, as required by Law no. 466, submitted his opinion to the Karşıyaka Assize Court. The public prosecutor noted that the applicant was taken into custody on 25 July 1995, and not on 24 July 1995 as claimed, and was released on 27 July 1995. The public prosecutor recommended that the applicant be granted compensation for non-pecuniary damage in an amount to be assessed by the court. This opinion was not served on the applicant.", "22. The judge stated in his report of 7 December 1995 to the President of the Karşıyaka Assize Court, inter alia, that the applicant had been detained for two days from 25 July to 27 July 1995 and upon his release had obtained a medical report which indicated that he had been assaulted (darp edildiği). The judge noted that the applicant had been given four days' sick leave by his employer. He further observed that, at the time when he was taken into custody, the applicant had been working in the İzmir 2nd Court of Taxation, had been paying TRL 3,000,000 in rent, was divorced and had two children. The judge concluded:\n“The complainant requested that he be granted the sum of TRL 200,000,000 in compensation. In determining the amount of compensation the court should consider both the complainant's economic and social position as well as the intensity of his emotional suffering. In the light of the above facts, I propose that the court grant the amount of compensation requested by the complainant.”", "23. On 7 December 1995 the Karşıyaka Assize Court found that the applicant had been detained for two days and qualified for compensation. In its judgment, the court took note of all the complaints set out in the petition lodged by the applicant's lawyer as well as the content of the judge's report and the written submissions of the public prosecutor (see paragraphs 21 and 22 above). The court concluded that\n“... at the time he was taken into custody, the applicant had been working in the İzmir Tax Court, had been paying TRL 3,000,000 in rent, and was divorced with two children. The complainant requested that the court award him TRL 200,000,000, including interest, for the non-pecuniary damage suffered. The court considers that, in determining the amount of compensation, it should have regard both to the complainant's economic and social position as well as the intensity of his emotional suffering. In the light of the above facts and having considered the above criteria, the court concludes that the sum of TRL 10,000,000 should be awarded to the complainant”. \nThe court also awarded the applicant TRL 1,500,000 for his legal costs.", "24. The applicant's lawyer and the Treasury both appealed against the award. The applicant's lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention. He did not challenge the dates of detention as determined by the court. The Treasury considered that the amount awarded was excessive. \nAccording to the relevant rules governing the functioning of the Court of Cassation in litigation of this nature, the case file at the Karşıyaka Assize Court was referred to the competent division of the Court of Cassation through the intermediary of the office of the public prosecutor at the Court of Cassation. On 17 October 1996 the Principal Public Prosecutor submitted his opinion on the merits of both parties' appeals. In his written opinion (tebliğname) to the Sixth Criminal Division of the Court of Cassation (Yargıtay), the Principal Public Prosecutor stated that, having regard to the first-instance proceedings, the evidence collected, the subject matter of the claim and the discretion of the first-instance court, neither of the parties had grounds for appeal. He advised that both appeals be rejected and that the first-instance judgment be approved, being in compliance with procedural rules and law. \nThis opinion was not submitted to the applicant.", "25. On 7 November 1996 the Sixth Criminal Division of the Court of Cassation, having regard, inter alia, to the opinion of the Principal Public Prosecutor, upheld the judgment of 7 December 1995.", "26. According to information submitted by the Government, the applicant never applied to obtain the compensation awarded to him by the Karşıyaka Assize Court." ]

[ 3 ]

[ "7. On 21 March 1985, the applicant applied to the Vienna Arbitration Board (Schlichtungsstelle) for an increase in the rent payable by his tenants to enable repairs to the house. The increase was granted on 25 June 1985.", "8. On 28 June 1985, several tenants filed an appeal against this decision with the Hernals District Court (Bezirksgericht). The court held hearings on 25 October 1985, 24 January and 28 February 1986. On 27 May 1986, the court determined the classification of the respective apartments for the purposes of rent calculation under the Rent Act. It dismissed one tenant's request to render an interlocutory decision on a preliminary issue as it could be joined to the merits. On 18 November 1987, the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed that tenant's appeal concerning an interlocutory decision.", "9. The District Court held a further hearing on 26 August 1988. It appointed an expert on 8 September and, after this expert had declared bias, appointed another expert on 5 October 1988. On 2 March 1989, following two extensions of the time-limit set for this purpose, the applicant submitted documents required by the court. On 16 May 1989 the expert submitted his opinion. Thereupon, further hearings were held on 5 October 1989, 23 January, 18 May and 18 October 1990 and 6 February 1991. A hearing which had been scheduled for 16 May 1991 had to be postponed to 9 August 1991 as the court had failed to serve the applicant's submissions on the other parties in time. At the hearing of 9 August 1991 the judge closed the taking of evidence.", "10. On 16 March 1992, the proceedings were resumed for the taking of further evidence and hearings were held on 8 July and 18 December 1992, and on 20 April 1993 when the proceedings were adjourned for delivery of a written judgment. The applicant was ordered to submit further documents which he did on 11 May 1993.", "11. Throughout the District Court proceedings the judge responsible for dealing with the case changed four times. The parties made numerous requests for the taking of evidence. One tenant in particular filed numerous objections against the minutes of the hearings.", "12. On 29 June 1994, the applicant filed an application under section 91 of the Courts Act (Gerichtsorganisationsgesetz) for a time-limit to be fixed for the delivery of the written judgment. On 20 October 1994, the Vienna Regional Civil Court granted this application and set a time-limit of six weeks.", "13. On 12 June 1995, the District Court dismissed the applicant's claim for a rent increase. The applicant's appeal against the decision of 1 July 1995 was dismissed by the Vienna Regional Civil Court on 12 December 1995.", "14. On 16 April 1996, the Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law, noting that the conditions of section 528 § 1 of the Code of Civil Procedure were not met. According to this provision, an appeal on points of law against the decision of an appellate court is only admissible if it raises a legal issue of particular importance for the uniformity, certainty, or further development of the law. The judgment was served on 24 May 1996." ]

[ 3 ]

[ "7. The applicants are the owners of an apartment in Florence, which they had let to A.R.", "8. In a registered letter of 18 April 1991, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1991 and asked her to vacate the premises by that date.", "9. In a writ served on the tenant on 27 September 1991, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.", "10. By a decision of 28 October 1991, which was made enforceable on 8 November 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.", "11. On 25 January 1993, the applicants served notice on the tenant requiring her to vacate the premises.", "12. On 3 March 1993, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 30 March 1993.", "13. On 30 July 1993, the applicants made a statutory declaration that they urgently required the premises as accommodation for the third applicant.", "14. Between 30 March 1993 and 23 September 1999, the bailiff made fourteen attempts to recover possession. Each attempt proved unsuccessful as the applicants were never granted the assistance of the police in enforcing the order for possession.", "15. On 28 March 1997, the second applicant made a statutory declaration that he urgently required the premises as accommodation for his son.", "16. On 2 August 1999, the tenant requested the Florence Magistrate (according to art. 6 L. 431/98) to set a fresh date for the enforcement of the order.", "17. On 16 October 2000, the Florence Magistrate set the enforcement of the order for 15 May 2002." ]

[ 3 ]

[ "11. The applicant was born in 1955 and lives in Moscow. At the material time he was the president of the North East Commercial Bank (Северо – Восточный Акционерный Банк).", "12. On 8 February 1995 criminal proceedings were initiated against the applicant, the details of which are set out under sub-heading B below. On 29 June 1995 the applicant was taken into custody and, by a judgment of the Magadan City Court (Магаданский городской суд) of 3 August 1999, he was convicted of embezzlement and sentenced to a term of imprisonment.", "13. From 29 June 1995 to 20 October 1999 the applicant was kept in the detention facility IZ-47/1 in the city of Magadan (Investigatory Isolation Ward No. 1 (СИЗО-1)). On 20 October 1999 he was sent to serve his sentence, following the City Court judgment of 3 August 1999, to the penitentiary establishment AV-261/3 in the village of Talaya. On 9 December 1999 he was transferred back to the detention facility in Magadan where he stayed until his release on 26 June 2000.\n \n1) The applicant's submissions on the facts", "14. As regards the first period of his detention in the Magadan detention facility, the applicant alleged that he had been kept in a cell measuring 17 square meters (“m²”) where there were 8 bunk beds. However, it nearly always held 24 inmates; only rarely did the number fall to 18. As there were three men to every bunk, the inmates slept taking turns. The others would lie or sit on the floor or cardboard boxes waiting for their turn. It was impossible to sleep properly as the television was on around the clock and, during the day, there was much commotion in the cell. The light in the cell was never turned off.", "15. The lavatory pan in the corner of the cell offered no privacy. A partition separated it from a wash stand, but not from the living area and dining table. The lavatory pan was elevated from the floor by half a meter while the partition measured 1,1 meters in height. Therefore, the person using the toilet was in the view of both his cellmates and a prison guard observing the inmates through a peep-hole in the door. \nThe inmates had to eat their meals in the cell at a dining table which was only a meter away from the toilet. The meals were of poor quality.", "16. The cell, which had no ventilation, was stiflingly hot in summer and very cold in winter. Because of the poor quality of the air in the cell, a window had to remain open all the time. Being surrounded by heavy smokers, the applicant was forced to become a passive smoker. The applicant claims that he was never given proper bedding, dishes or kitchen utensils. He only received a quilted mattress and a thin flannel blanket from the administration, and had to borrow kitchenware from cell-mates who had received these items from relatives.", "17. The cells of the detention facility were overrun with cockroaches and ants, but no attempt was made to exterminate them. The only sanitary precaution taken was that once a week the guards gave the inmates a litre of chloride disinfectant for the lavatory.", "18. He contracted a variety of skin diseases and fungal infections, losing his toenails and some of his fingernails. During the trial from 11 November 1996 to 23 April 1997 and from 15 April 1999 to 3 August 1999, a recess was ordered so that he could be treated for scabies.\nOn six occasions detainees, with tuberculosis and syphilis were placed in his cell and he received prophylactic antibiotic injections.", "19. The applicant submitted that he could only take a walk outside his cell one hour per day and that usually he was only able to take a hot shower twice a month.", "20. Finally, the applicant stated that, following his transfer back to the same facility on 9 December 1999, the detention conditions had not materially improved. He was not provided with proper bedding, towels or kitchenware. There was no treatment available for his skin disease due to a lack of proper medication. His cell was still overrun with cockroaches and there had been no anti-infestation treatment for 5 years. However, in March-April 2000 the number of inmates in his 8-bed cell was reduced to 11.\n \n2) The Government's submissions on the facts", "21. The Government claimed that the applicant's cell measured 20,8 m². The applicant had a separate sleeping berth, bedding, kitchen utensils and access to health care. The cell was designed for 8 inmates. In connection with the general overcrowding of the detention facility, each bed in the cells was used by 2 or 3 inmates. In the applicant's cell there were 11 or more inmates at any given time. Normally the number of inmates was 14. The beds were used in turn by several prisoners on the basis of eight hour shifts of sleep per prisoner. All inmates were provided with wadded mattresses, cotton blankets and sheets.", "22. The applicant's cell was equipped with a sanitary unit, including a lavatory pan and a wash stand. The lavatory pan was situated in the corner of the cell and was separated from the dwelling place by a partition - 1,1 meters high - ensuring privacy. Such standards have been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971.\nThe Government submitted photographs to the Court showing the applicant's cell, which the applicant claimed had been improved slightly since the beginning of his detention. The Government also provided a video recording of the facilities after the applicant's release and their major renovation.", "23. The cell had windows providing fresh air and daylight. There was no possibility to equip the cell with a ventilation system. In hot weather a window of the cell door could be opened for better ventilation. Inmates also had the opportunity to have compact fans delivered to them by relatives.", "24. There was a television in the cell which belonged to the applicant who could control when to switch it on or off. Programmes were only transmitted during part of the day in the region.", "25. On 11 February 1998 an inmate in the applicant's cell was diagnosed with syphilis. The inmate was immediately removed to a separate cell and underwent a complete course of treatment for the disease. The other inmates, including the applicant, who had shared the cell with this person, were subjected to appropriate preventive treatment on 26 February 1998 and to serological control measures. This was done pursuant to the “Guidelines on Medical Care for Persons Held in Pre-Trial Detention Facilities and Correctional Labour Institutions of the USSR Ministry of the Interior”, approved on 17 November 1989.\nIn January 1999 one of the blocks in the detention facility was closed for repairs and the detainees were transferred to vacant places in other cells. The detainees who were moved to the applicant's cell stayed there for a week and some of them were ill with tuberculosis. However, in the opinion of the medical personnel, the latter did not present a danger to other inmates as these persons were undergoing out-patient medical treatment.\nOn 2 June 1999, an inmate who was observed to have residual tuberculosis was placed in the applicant's cell. The inmate underwent the relapse prevention treatment for a period of two months. As he did not suffer from tuberculosis in its open form, there was no danger of its transmission to other inmates.\nThe applicant underwent repeated fluorographic examinations which showed no abnormality of his thorax.\nOn 15 June 1999, an inmate who was undergoing treatment for syphilis was placed in the applicant's cell. Medical examinations performed subsequently showed negative results. Blood tests which were performed in this connection on the applicant also revealed negative results.", "26. The applicant was systematically examined by the medical personnel and he received medical assistance from a dermatologist, therapeutist and stomatologist. When the applicant was diagnosed with different diseases (neurocirulatory dystonia, scabies and fungal infection) he received immediate medical care. There were recesses announced during the trial in order to provide medical treatment for the applicant.", "27. The applicant could shower every 7 days and was permitted to walk outside his cell for up to 2 hours a day.", "28. Finally, the Government submitted that, in order to prevent the appearance of infectious diseases, pre-trial detention facilities take prophylactic disinfection measures to secure the timely extermination of pathogenic micro-organisms, arthoropoda and rodents, pursuant to the above-mentioned ministerial guidelines of 1989. It was conceded, however, that the infestation of detention facilities with insects was a problem.\n \n3) Medical records and an expert report", "29. According to the applicant's medical records, he had scabies in December 1996, allergic dermatitis in July and August 1997, a fungal infection on his feet in June 1999, a fungal infection on his finger nail in August 1999, mycosis in September 1999 and a fungal infection on his feet, hands and groin in October 1999. The records also state that the applicant received treatment for these medical conditions.", "30. A report by medical experts issued in July 1999 stated that the applicant was suffering from neurocirculatory dystonia, astheno-neurotic syndrome, chronic gastroduodenitis, a fungal infection on his feet, hands and groin and mycosis.", "31. On 8 February 1995 the applicant became a suspect in the embezzlement of his bank's funds and was subjected to a preventive measure in the form of a ban on leaving a specified place. The criminal case was assigned the number 48529.", "32. On 17 February 1995 he was formally charged with misappropriating 2,050,000 shares of another company.", "33. On 29 June 1995, by an order of the investigator, which was approved by the prosecutor, the applicant was arrested and placed in detention on remand on the ground that he had obstructed the establishment of the truth in the criminal proceedings. In particular, it was stated in the order, with references to concrete instances, that the applicant had refused to turn over certain bank documents necessary for the investigation, he had brought pressure to bear on witnesses and had tampered with documents. The order also referred to the seriousness of the offence with which the applicant was charged.\nThe applicant's detention was subsequently extended by the competent prosecutor on unspecified dates.", "34. On 4 July 1995, 31 August 1995 and 26 September 1995, the applicant's defence lawyer filed applications for release from custody with the Magadan City Court, which rejected them on 14 July 1995, 9 September 1995 and 4 November 1995, respectively.", "35. The applicant contends that from August 1995 until November 1995 no investigative activity took place as the two investigators in charge of the case were on holiday, and the person to whom the case was temporarily assigned undertook no action.", "36. On 14 December 1995 the applicant was charged with 8 additional counts relating to the embezzlement of his bank's funds.", "37. On 6 February 1996 the preliminary investigation of the charges against the applicant was terminated and the case was sent to the Magadan City Court.", "38. On 1 March 1996 the applicant filed with the City Court a request for his release from custody, which was refused on 27 March 1996.", "39. On the same day the City Court decided to remit the case to the Magadan Regional Prosecutor for further investigation. The latter filed an appeal against the decision with the Magadan Regional Court (Магаданский областной суд) which, on 29 April 1996, rejected it.", "40. Following an additional investigation as of 15 May 1996, the Regional Prosecutor remitted the case to the City Court on 19 June 1996.", "41. In the meantime, on 16 May 1996, the applicant filed an application for release from custody with the City Court in which he stated that he was being held in poor conditions and that his health had deteriorated. His application for release was refused on 26 May 1996.\nOn 23 June 1996 the applicant filed another request for release.", "42. On 11 November 1996 the City Court began its examination of the applicant's case. On the same day it rejected his request for release filed on 23 June 1996.", "43. At the hearing on 27 December 1996 the applicant asked the City Court to release him from custody on medical grounds. He stated that there were 21 inmates in his cell with just 8 beds; there was no ventilation in the cell where everybody smoked; the television was constantly blaring and he had contracted scabies. Upon receiving a medical certificate confirming the existence of the disease, the City Court adjourned the hearing until 14 January 1997. It refused to release the applicant from custody on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth while at liberty.", "44. The examination of the applicant's case by the City Court lasted until 23 April 1997.\nOn 7 May 1997 the case was adjourned due to the removal from office of the presiding judge for improper conduct unrelated to the applicant's case.", "45. On 15 June 1997 the applicant filed another request for release, referring to the poor conditions in which he was being detained.", "46. In July 1997 the applicant's case was assigned to another judge who scheduled a hearing for 8 August 1997. On that day the hearing was postponed because the defence lawyer could not attend for health reasons. The applicant's request for release was rejected on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth in the criminal case.\nThe applicant's further request for release from custody filed on 21 September 1997 was refused on 21 October 1997.", "47. On 22 October 1997 the applicant complained to the Magadan Regional Court about his case, asking for its transfer from the City Court to the Regional Court. He also submitted a complaint to the Supreme Court of Russia (Верховный Суд Российской Федерации) which forwarded it to the Magadan Regional Court for examination. By letters of 31 October 1997 and 25 November 1997, the Regional Court informed the applicant that there was no reason for it to assume jurisdiction and suggested he turn to the City Court with any questions relating to his case. It also requested the City Court to take measures for the examination of the applicant's case.", "48. On 21 November 1997 he made complaints to different authorities, in particular the Office of the President of the Russian Federation, the Magadan City Court, the High Qualification Board of Judges (Высшая квалификационная коллегия судей Российской Федерации) – a body dealing with questions of professional competence – and the Prosecutor General. In his complaints, he submitted, inter alia, that he was being held in appalling conditions without any decision on the substance of the charges, that he had contracted various skin diseases, that his toenails had fallen off and that he was suffering from a heart condition.", "49. By letter of 5 February 1998, the president of the Magadan City Court informed the applicant that the court would resume its consideration of his case before 1 July 1998, referring to its complexity and the heavy workload of the judges.", "50. On 11 February 1998 the Magadan Regional Court forwarded to the City Court 11 complaints made by the applicant, which it had received from the Prosecutor General, the Supreme Court and other authorities.", "51. On 23 February 1998 the applicant commenced a hunger strike with a view to drawing the attention of the authorities to his lengthy detention and the absence of court hearings, which he continued until 17 March 1998.", "52. On 1 March 1998 the applicant complained about his case to the Office of the President of Russia and to a parliamentary committee of the State Duma, requesting their assistance in the transfer of his case to the Magadan Regional Court.", "53. On 3 March 1998 the Department of Justice of the Magadan Region, in response to the applicant's complaint addressed to the Ministry of Justice of Russia, stated that the court would be able to deal with his case in the second half of 1998.", "54. Meanwhile, the applicant lodged a request with the Constitutional Court (Конституционный Суд Российской Федерации) to review the constitutionality of the provisions of Articles 223-1 and 239 of the Code of Criminal Procedure concerning time-limits for the start of trials. By letter of 10 March 1998, the Constitutional Court informed the applicant that, since the impugned provisions did not lay down any time-limits with regard to the length of detention while a case is being considered by the courts, his request could not be considered.", "55. The applicant also complained to the High Qualification Board of Judges about the delay in the consideration of his case which, by letter of 30 March 1998, asked the Magadan Regional Court to investigate the matter.", "56. On 2 April 1998 the applicant filed a complaint with the Supreme Court about the delay in setting the date for his trial, in which he also referred to his poor conditions of detention. A copy of his complaint was sent to other authorities. All his complaints were forwarded by the addressee institutions to the Magadan City Court for examination.", "57. On 13 April 1998 the Magadan Regional Court informed the applicant that the City Court had been requested to take measures for the consideration of his case. It also stated that the case was to be tried by the City Court and that the Regional Court could only act as a court of cassation.", "58. On 25 May 1998 the applicant filed a petition with the City Court asking for his case to be transferred to the Regional Court for trial.\nBy decision of the president of the Regional Court of 28 May 1998, the applicant's case was transferred to the Khasynskiy District Court (Хасынский районный суд) in order to expedite the proceedings.", "59. On 11 June 1998 the applicant complained about the delay in starting court hearings to the High Qualification Board of Judges.", "60. On 16 June 1998 the applicant filed a request for release from custody with the Khasynskiy District Court in which he stated that his health had deteriorated as a result of the overcrowding and the poor conditions in his cell in the detention facility.\nOn the same day, he sent an application to the Khasynskiy District Court asking it to transfer his case to the Magadan Regional Court. He submitted that the transfer of his case to the Khasynskiy District Court was unlawful and that its distance from the city of Magadan would hamper an objective and fair examination of his case.", "61. On 1 July 1998 the applicant complained to the Regional Court that the Khasynskiy District Court had not yet set a hearing date and asked it to speed up the proceedings.", "62. On 3 July 1998 the case was remitted to the Magadan City Court as the applicant had expressed his disagreement with its transfer to the Khasynskiy District Court.", "63. On 8 July 1998 the applicant received a letter from the Regional Court informing him that there were no grounds for it to act as a court of first instance or to assume jurisdiction in the case.\nThe next day the applicant requested the City Court to release him, referring to the poor conditions of detention.", "64. On 31 July 1998 the applicant complained to the High Qualification Board of Judges about the prolonged failure of the City Court to examine his case. On 19 August 1998 his complaint was transmitted to the Magadan Regional Court with a request to provide information both on the complaint and on the work of the City Court. On 27 August 1998 the Regional Court forwarded the applicant's complaint to the City Court.\nThe applicant also submitted a complaint to the Magadan Regional Court about the delay in starting the trial hearings, which on 11 August 1998 transmitted the complaint to the City Court.", "65. On 7 September 1998 the applicant filed another complaint with the High Qualification Board of Judges stating that all his previous complaints had been sent by the Magadan Regional Court to the City Court without any measures being taken. On 23 September 1998 the applicant's complaint was forwarded to the Magadan Regional Court with a reminder about the request for information on the reasons for the prolonged delay in examining the applicant's case. On 7 September 1998 the applicant also submitted a complaint about the delay in the proceedings to the Supreme Court.\nOn 5 October 1998 the applicant submitted further complaints to the Regional and High Qualification Boards of Judges.", "66. On 13 November 1998 the City Court set the hearing date for 28 January 1999.", "67. On 25 November 1998 the applicant complained to the High Qualification Board of Judges about the actions of the President of the Magadan City Court, apparently requesting the institution of criminal proceedings against him. On 22 December 1998 the complaint was forwarded for examination to the president of the Magadan Regional Court with a request to submit a report to the competent Qualification Board in case the applicant's allegations proved substantiated.\nOn 16 December 1998 the Magadan Regional Court forwarded another complaint by the applicant to the City Court.", "68. On 18 January 1999 the applicant submitted to the City Court a request for release from custody.", "69. On 28 January 1999 the Magadan City Court decided to send the applicant's case back to the prosecutor for further investigation due to the violation of procedural norms by the investigative authorities. These violations consisted of an incomplete presentation of the case materials to the accused at the end of the preliminary investigation, as well as an imprecise recording of file documents. The court refused the applicant's request for release having regard to the gravity of the charges against him and the danger of his obstructing the establisment of the truth while at liberty. The applicant lodged an appeal against the refusal with the Magadan Regional Court which, on 15 March 1999, dismissed it. The Regional Court however revoked the decision to send the case back to the investigative authorities as unfounded and ordered the City Court to proceed with the trial. In a separate decision, issued on the same day, it considered the lengthy delay unjustifiable in view of the fact that the case was not particularly complex, and requested the City Court to inform it within one month of the measures taken.", "70. On 17 March 1999 the applicant submitted to the City Court another request for release from custody. \nOn the same day he complained to the High Qualification Board of Judges about his lengthy detention without a court judgment. Five days later, the applicant submitted a similar complaint to the Regional Qualification Board of Judges.\nOn 5 April 1999 the applicant filed another complaint with the High Qualification Board of Judges about the prolonged delay in the proceedings.", "71. On 15 April 1999 the City Court resumed its examination of the applicant's case. \nAt the hearing on 20 April 1999 the prosecutor requested that, in view of the length of the applicant's detention, a psychiatric evaluation of the applicant be carried out in order to determine the state of his mental health. The City Court granted this request and adjourned the hearing until 30 April 1999.", "72. At the hearing on 30 April 1999 the applicant unsuccessfully applied for release from custody. He submitted that he was suffering from a lack of sleep. In his cell there were 18 inmates who had to sleep in shifts. He further argued that he could not obstruct the establishment of the truth in his case as all the investigative measures had already been taken.\nThe prosecutor participating in the hearing asked the City Court to request the administration of the detention facility in which the applicant was being held to provide the applicant with conditions allowing normal sleep and rest during the court hearings. The prosecutor further stated that he would submit a similar request to the prosecutor in charge of supervising detention facilities.\nThe applicant submits that subsequently the competent prosecutor came to his cell, acknowledged that the conditions were poor, but stated that the situation in other cells in the detention facility was no better and that there was no money to improve the conditions.", "73. At the hearing on 8 June 1999 the applicant requested his release. He stated that in his cell, where there were 18 inmates, he could not prepare himself adequately to testify before the trial court. He further submitted that he had contracted scabies twice and that his bed sheets were not changed. The applicant's request was rejected.", "74. At the hearing on 16 June 1999 the applicant filed another request for release, referring to the conditions of his detention. He submitted that he had a fungal infection and that his body was covered with sores caused by bites from bugs infesting his bed. He was sharing his bed with two other inmates. Inmates could shower once every two weeks. The atmosphere in the cell was stifling as everybody smoked. He was feeling unwell and suffering from a heart condition. His weight had dropped from 96 kg to 67 kg. He further submitted that he could not obstruct the examination of his case if released. \nThe City Court decided not to examine the request because it was apparently made outside the context of the hearing.", "75. On 22 June 1999 the High Qualification Board of Judges removed the president of the Magadan City Court from office, as well as the president of the Regional Court and his two deputies, due to the delay in examining the applicant's case.", "76. At the hearing before the City Court on 23 June 1999, the applicant stated that he was feeling unwell and that he could not participate. The court ordered a medical examination of the applicant by a commission of experts in order to determine whether his state of health allowed him to take part in the proceedings and whether he should be hospitalised.\nIn their conclusions issued on an unspecified date in July 1999, the experts found that the applicant was suffering from a number of medical conditions (see paragraph 30 above). They considered that the treatment of these conditions did not require hospitalisation and that the applicant could remain in the detention facility. They also considered that the applicant's state of health allowed him to attend the court hearings and to give testimony.", "77. At the hearing on 15 July 1999, the applicant requested the trial court to release him from custody. He stated that the court had nearly concluded the examination of the evidence and that he could not obstruct the establishment of the truth. His request was refused.", "78. In another ruling issued on the same day, the City Court noted that, in the period from 15 April until 15 July 1999, it had examined more than 30 applications submitted by the applicant, including repetitive applications on previously rejected motions. It noted that the applicant had stated that he would testify only if his applications were granted and considered that such a position amounted to a deliberate attempt to delay the proceedings.", "79. The City Court heard 9 of the 29 witnesses who were to be summoned before it. The testimonies of 12 absent witnesses, which had been given during the pre-trial investigation, were read out in open court.", "80. By a judgment of 3 August 1999, the City Court found the applicant guilty on one count and acquitted him on two of the counts contained in the indictment, which had preferred 9 separate charges. It sentenced him to 5 years and 6 months' imprisonment in a correctional colony with a general regime, his term running from 29 June 1995. The City Court considered that the preliminary investigation had been of poor quality and that the investigators had unjustifiably attempted to increase the number of counts in the indictment. It also found an infringement of procedural norms consisting, inter alia, of shortcomings in the presentation in due form of the relevant documents to the court. These shortcomings had had to be corrected at the trial, which had caused a delay. The court noted that, in the course of the investigation, there had been a lack of proper procedural supervision by those in charge of the investigation and the prosecutor's office of the Magadan Region.\nIn a separate ruling on the same day, the City Court decided to send part of the indictment back to the prosecutor for an additional investigation. The applicant appealed against the ruling to the Supreme Court, which on 30 September 1999 found the decision lawful.", "81. The City Court judgment of 3 August 1999 was open to appeal to the Regional Court within 7 days of its pronouncement. The applicant did not file an appeal in cassation as he considered that the Regional Court had contributed to his conviction and thus that an appeal had no prospects of success. On 11 August 1999 the judgment of the City Court entered into force.", "82. On 11 August 1999 the applicant submitted to the director of the detention facility where he was being held a request to transfer him to the logistical services team in the same facility to serve his sentence.", "83. On 25 October 1999 the applicant lodged an extraordinary appeal with the President of the Supreme Court of Russia for a review of the City Court judgment. On 11 November 1999 the appeal was dismissed.\nOn 30 November 1999 the applicant filed another extraordinary appeal with the Supreme Court, which rejected it on 9 June 2000.", "84. On 24 September 1999, in the continuing criminal proceedings, the preventive custody measure was replaced by a ban on leaving a specified place. However, he remained in custody, serving his original sentence.", "85. On 29 September 1999 the proceedings concerning the remainder of the charges were terminated on the ground that the acts committed by the applicant did not constitute a criminal offence.\nOn 30 September 1999, however, a new charge relating to the misappropriation of property in his capacity as the bank's president was brought against the applicant.", "86. On 19 October 1999, upon completion of the preliminary investigation, the competent prosecutor approved the bill of indictment and sent the case to the Magadan City Court for trial. The bill of indictment bore the original case no. 48529 and stated that the proceedings in that case had been initiated on 8 February 1995. The applicant's trial started on 20 December 1999. By a judgment of 31 March 2000 the City Court acquitted the applicant of the new charge.", "87. On 26 June 2000 the applicant was released from prison following an amnesty declared on 26 May 2000." ]

[ 1, 2, 3 ]

[ "8. On 27 April 1995, the applicant was arrested and charged on two counts with conspiracy to supply Class A and Class B drugs respectively. On 27 January 1997, he and his co-defendants (Kevin Douglas, Paul Anthony Easingwood, Keith Gleeson and Andrew David Dalton) pleaded guilty to the charges after the trial judge ruled disputed evidence admissible.", "9. The evidence at issue resulted from a covert surveillance operation involving observation and recording of conversations in the home of Kevin Douglas allegedly from October 1994 until January 1995 and in April 1995. According to the applicant, the authority for such surveillance had been sought and granted on the purported grounds that the drug operation conducted by the defendants was of such sophistication that conventional evidence gathering techniques were fruitless. He claimed that it was not the Chief Constable who authorised the warrant, but rather the Chief Superintendent.", "10. The defendants challenged the admissibility of the evidence on grounds of improper compliance with the Home Office Guidelines and argued that the judge should exercise his discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) to exclude the recordings. A voir dire regarding the assertions was conducted. The taped conversations constituted the sole evidence against the applicant.", "11. Upon the trial judge's ruling that the evidence was admissible, the defendants pleaded guilty to the relevant charges on the indictment.", "12. On 6 February 1997, the applicant was sentenced to nine years' imprisonment.", "13. The applicant applied for leave to appeal against conviction and sentence out of time. On 28 January 1999, the applicant's application to seek leave to appeal against conviction and sentence out of time was refused by Mr Justice Hooper and Lord Justice Rose." ]

[ 4 ]

[ "8. The Blackspur group of companies (collectively, “Blackspur”), was formed by the applicant and others in September 1987 and at various times the applicant acted as director and chairman. Blackspur went into receivership in July 1990 with an estimated deficit of GBP 34 million.", "9. On 1 July 1992, on the last day of the applicable two year limitation period, the Secretary of State for Trade and Industry (“the Secretary of State”) issued proceedings against the applicant and four others (“the Blackspur proceedings”) under section 6 of the Company Directors Disqualification Act 1986 (“the CDDA”: see paragraphs 19-20 below).", "10. The Secretary of State's evidence was not complete at the time he commenced proceedings, and he applied for an extension of time for the serving of evidence (see paragraph 21 below). The applicant refused to consent to an extension being granted and instead, on 13 October 1992, together with two other defendants, applied to strike out the proceedings.", "11. The Secretary of State's evidence was completed and served on the applicant on 14 December 1992. The application for permission to file the evidence out of time, and the cross-application to strike out the proceedings, were not heard by the Registrar until 20 May 1993, when they were adjourned to 29 July 1993. On 27 January 1994 the Registrar granted the Secretary of State's application for an extension of time and dismissed the applicant's strike-out application. The applicant appealed to the High Court.", "12. Related criminal charges had been brought against the four other defendants in the Blackspur proceedings, but not the applicant, on 1 July 1992. The criminal trial took place between March and June 1994, during which period the disqualification proceedings were adjourned generally, with liberty to restore. At the conclusion of the criminal trial, two defendants were acquitted and two were convicted. On appeal, the two convictions were quashed in February 1995.", "13. By letters dated 19 July and 16 September 1994 the defendants to the Blackspur disqualification proceedings wrote to the Secretary of State inviting him to reconsider whether to carry on with the proceedings. On 15 December 1994 the Treasury Solicitor replied that the Secretary of State had decided that it remained expedient in the public interest to continue.", "14. Once the criminal trial had been concluded, the applicant's appeal to the High Court against the Registrar's decision of 27 January 1994 could proceed and was dismissed on 2 May 1995. In November 1995 the applicant was granted leave to appeal out of time to the Court of Appeal, and his substantive appeal was dismissed by that court on 24 May 1996. The Court of Appeal found that the reasons for the Secretary of State's failure to complete his evidence before the proceedings were commenced had been “far from satisfactory”, but considered nonetheless that the case should proceed since it was in the public interest to determine the “particularly serious” allegations of false accounting and trading while insolvent made against the defendants. In addition, the court observed that the delay by the Secretary of State had not affected the timing of the hearing or prejudiced the applicant, and that, once the proceedings had commenced, “the respondents' main concern was to delay the proceedings until after the conclusion of the criminal trial, not to hurry them on”.", "15. On 1 July 1996 the Registrar directed that the defendants should serve their evidence in response to that of the Secretary of State by 29 November 1996. That order was not complied with, and on 9 December 1996 the Registrar ordered that if the defendants had not served their evidence by 17 January 1997, they would be debarred from adducing any evidence.", "16. The defendants served their evidence on 17 January 1997. On 20 January 1997 the Registrar directed that the Secretary of State should serve his evidence in reply by 17 March 1997. On 14 April 1997 the Registrar granted the Secretary of State a time-extension for the serving of evidence in reply until 30 June 1997, and this evidence was in fact served on 10 July 1997. At a further directions hearing on 4 August 1997 the defendants were given permission to adduce additional evidence in rejoinder by 1 December 1997. The applicant failed to comply with this order and on 8 December 1997 he was granted an extension of time until 9 February 1998.", "17. In the event, however, the Blackspur proceedings against the applicant were discontinued on 12 January 1998, after a “Carecraft” agreement (see paragraph 23 below) was reached between the applicant and the Secretary of State in other proceedings under the CDDA. As part of the settlement, the applicant agreed to pay the Secretary of State's costs of GBP 94,000." ]

[ 3 ]

[ "9. P., born in 1958, is a citizen of the United States of America; C., the husband of P., was born in 1962 and is a United Kingdom citizen; S., their daughter was born in 1998 and is a United Kingdom and American citizen. They are all resident in the United Kingdom.", "10. In January 1976 P., then living in the United States of America, gave birth to a son A. shortly before her eighteenth birthday. In 1980 P. married her first husband and had a second son B. in February 1985. In 1992 she and her husband separated. Both parents contested custody of B.", "11. Between December 1990 and January 1994 B. was referred to his general practitioner for some forty-seven complaints.", "12. In March/April 1993 B. was taken for examination to hospital on numerous occasions for complaints of diarrhoea and fever, and on each occasion he was found to be in a normal condition. When on 18 April 1994 B. was admitted to hospital, a laboratory stools test indicated the presence of phenolphthalein (a laxative). The doctor was satisfied that P. had been responsible for laxative poisoning and reported the matter.", "13. On the same date the Californian authorities took B. into protective custody, alleging that P. was harming her son, then aged 9, by administering laxatives to him inappropriately. He was suspected of being a victim of induced-illness abuse, the syndrome known variously as Munchhausen syndrome by proxy (“MSBP”), fabricated or induced illness, illness-induction syndrome or paediatric falsified condition. MSBP is a label sometimes used to describe a form of psychiatric illness, mainly found in women, who seek attention by inducing illness in their children or inventing accounts of illness in their children, and by repeatedly presenting their children to the medical authorities for investigation and treatment.", "14. On 23 August 1994 a Californian court ordered that B. live with his father. Following this placement, B. did not suffer from any acute or abnormal diarrhoea. At a hearing in September 1995, the court approved supervised contact between P. and her son B. once a month for two to four hours for the following three years. P. was informed that, if she wished increased contact, it could be envisaged in a supervised, therapeutic context.", "15. P. was charged with cruelty towards B. and endangering B.'s health, a felony offence under section 273A(a) of the Californian Penal Code. A report prepared by Dr Schreier stated that P. suffered from MSBP and that she had victimised B. over several years, causing him severe diarrhoea, possibly vomiting, weight loss and multiple non-trivial procedures and hospitalisations. On 4 October 1995, after a five-week trial before a jury in the Superior Court of California, she was convicted of a misdemeanour under section 273A(b), a lesser offence, and acquitted of the felony. On 17 November 1995 she was sentenced to three years' probation and three months in custody, subsequently suspended. She was also ordered to enter and complete a “psychological and psychiatric treatment programme”.", "16. During the divorce proceedings, P. was required to have therapy as a condition for getting custody of B. and saw a therapist from 1992 until the end of 1993. From late 1992 she was prescribed an antidepressant by a psychiatrist whom she saw regularly to review the medication. She also consulted with psychiatrists during the criminal trial. From about April to December 1995, she saw a psychologist twice a month for therapy.", "17. On 2 May 1996 the Californian family court reduced contact to one supervised occasion per month. It was ordered that any additional contact visits would have to occur in a therapeutic setting with a doctor present. Her appeal against this was dismissed.", "18. During 1996 P. met her present husband, C., a qualified social worker who was studying for a doctorate in philosophy and researching into cases of women wrongly accused of MSBP.", "19. In November 1996, in breach of the probation order, P. came to visit C. in the United Kingdom. P. and C. were married in September 1997 in the United Kingdom. P. discovered shortly afterwards that she was pregnant.", "20. Rochdale Metropolitan Borough Council (“the local authority”) became aware of the pregnancy after P. had taken steps with a view to obtaining an annulment of her previous marriage and her ex-husband had informed the district attorney in California who in turn made contact with the authorities in the United Kingdom, giving information about P.'s conviction for harming her son B. The local authority was informed of the pregnancy by P.'s doctor and commenced an investigation.", "21. Social workers were in contact with P. and C. from January 1998. A letter was sent to arrange a meeting. Prior to the proposed meeting, there were several exchanges on the telephone. C. considered that the social services should provide more detailed information before a meeting took place and made a list of requirements regarding access to files and copies of documents. Tension arose when the social worker requested that P. give her date of birth in order to confirm that she was the person concerned in the information from the United States. P. initially refused to give this information. The proposed meeting was cancelled.", "22. On 21 January 1998 the applicants' solicitors wrote to the social services requesting that they provide information to both themselves and P. directly, concerning, inter alia, the reason for the proposed meeting, details of any information in their possession, forms for applying for access to social-work files, specific details of child protection concerns in the case and a list of every person with whom P. had been discussed.", "23. On 28 January 1998 a meeting took place attended by P. and C., social workers and the police.", "24. There was further correspondence between the local authority and the applicants' solicitors concerning the appointment of an expert to assess the risk to the unborn child, pursuant to section 47 of the Children Act 1989 (“the section 47 assessment”). By letter dated 17 February 1998, the local authority's solicitors noted that the applicants were not happy with the proposed expert, Dr Bentovim, and requested further details of any objections. They pointed out that the person suggested by the applicants was not an expert in MSBP and requested details of the other proposed experts.", "25. On 18 February 1998 the local authority made contact with Dr Eminson, a consultant child and adolescent psychiatrist who had been proposed by the applicants, with a view to her undertaking an assessment.", "26. By letter dated 13 March 1998, the local authority's solicitor referred to a letter of 11 March 1998 by the applicants' solicitors. It was pointed out that, as there were no care proceedings in train, there was no obligation on the local authority to agree a letter of instruction for the expert with the applicants. At that stage, all that was required was P.'s agreement to see the expert. The view was expressed that it was for the local authority to decide what documents to submit to the expert, although they would have no objection to the applicants' providing extra documentation. Although they wished to work in cooperation with P., they could not allow her to dictate the course and conduct of the section 47 assessment.", "27. On 2 March 1998 a case conference was held by the local authority attended, inter alia, by social workers, P.'s general practitioner, a health visitor, a midwife, P. and C., P.'s solicitor and the paternal grandmother of the unborn child. The minutes of the meeting state that the reason for the conference was that P. had a conviction which led to concern that her child might be at risk of induced illness/injury after it was born. It was noted that P. disputed details of the background to her conviction, claiming, inter alia, that there was evidence of her son B. having had diarrhoea as she alleged. C. was noted as accepting that the existence of a conviction could give rise for concern but not that it automatically meant his wife suffered from MSBP, alleging that there was no direct evidence of any harm having been inflicted by her. Due to the concern that P. suffered from MSBP, it was decided to place the child on the Child Protection Register at birth and to undertake a full risk assessment.", "28. On about 16 March 1998 Dr Eminson agreed to act as expert in the assessment to take place.", "29. On 18 March 1998 the applicants' solicitors wrote to the local authority, pointing out that their request for an agreed letter of instruction and the list of documents given to the expert was based on good practice and procedure and that, although there were no care proceedings, they had assumed the same principles would be applied. They stated that P. could not be expected to go into a meeting blind to the specific points the doctor had been asked to address and that they needed a list of documents in order to assess whether they wished to provide the expert with anything further.", "30. By reply of the same date, the local authority's solicitor stated that a section 47 assessment procedure was at the entire discretion of the local authority and that different principles applied than in care proceedings. However, they were prepared to disclose the list of documents sent to Dr Eminson and set out the questions which they would ask her to address.", "31. On 25 March 1998, in discussions between the applicants' solicitors and the local authority, it was indicated that the applicants were no longer happy with Dr Eminson.", "32. On 1 April 1998 the local authority held a case conference to review the situation. It was found that the parents had not cooperated with the local authority assessment, or that their cooperation was superficial. A combination of excuses and evasiveness had made it impossible to hold more than one meeting. There still appeared to be a complete denial about events in the United States. The local authority's solicitor had spoken with the district attorney involved in the case in California and reported a number of allegations, including the concern that P. suffered from MSBP as shown by her own medical history, that C. had impersonated a therapist in trying to convince P.'s probation officer that she was complying with an order and that P. had harassed Dr Shreier and the district attorney by telephone calls. It was noted that P. and C. were unwilling to see the expert proposed by the local authority. It was decided to take out an emergency protection order at the child's birth as there was\n“reason to believe that the baby would be at risk of significant harm if left in the care of his/her parents; there has been no genuine cooperation from the parents and it would be impossible for the Social Services... to manage the risk without legal jurisdiction which includes removal in the first instance. An application for interim care proceedings would require notice and [there were] reasons to believe that the parents would evade the authorities”. \nThe address of the foster placement was to be kept secret to avoid harassment or an attempt to remove the child. The parents were to be told about the intention to take legal action in general terms.", "33. On 7 April 1998 the applicants' solicitors confirmed that P. and C. would see Dr Eminson. They attended an appointment on 28 April 1998.", "34. On 8 April 1998 Dr Schreier wrote to the local authority, expressing grave concern and recommending the removal of the baby at birth and strict supervision of contact as there was a high level of risk of harm from P.", "35. On 30 April 1998 the local authority was approached by C.'s mother, asking whether the child could be placed with her. The local authority decided to raise the matter with Dr Eminson as part of her assessment.", "36. Notes dated 6 May 1998 of a discussion between the assistant director (social services) and Dr Eminson included the doctor's view that the basis upon which to work with the parents was extremely limited given the absence of acceptance/agreement about concerns over the unborn baby or the past history in America. She had found that the parents were not prepared to discuss the real issues with her, that C. was mainly interested in the battle with the authorities and that the couple showed little concern for or awareness of the key issue, that of the safety of the unborn baby. Although a definitive conclusion was difficult, the risk factors were not in her view sufficiently worrying to justify not telling the parents about the proposed application for an emergency protection order at birth. While the possibility of further assessment with the couple and newborn baby at a residential facility was not ruled out, this was not possible at that time due to the limited degree of cooperation and commitment of the parents.", "37. By 30 April 1998 it was becoming likely that, due to the lie of the baby, P. would have to have a Caesarean section instead of the planned delivery at home. The midwife reported that the consultant Dr Maresh wanted P. to be admitted on 6 May 1998 for an elective Caesarean, but that P. had refused and gone home. The midwife was noted in the social-work records as having become very angry with P. and C. for resisting medical advice and, later, for having claimed that they had been lucky to get a live baby.", "38. On 7 May 1998, at 4.42 a.m., S. was born by Caesarean surgery. C. had brought P. to the hospital when her waters broke at home.", "39. The local authority applied for an emergency protection order at about 10.30 a.m. They contacted the hospital concerning the possibility of staff supervising the baby at the hospital. After discussions, it was confirmed to the local authority by the hospital management that, even with security measures, they could not guarantee the baby's safety. The Government stated that the hospital was concerned by the difficult behaviour of a friend of P.'s who demanded to be present during the operation and had to be threatened with removal by security guards, and the aggressive attitude of P.'s friends and family towards staff after the birth. The applicants have stated that there is no evidence for these allegations in the records. Notes in the hospital records indicated that at 3.30 p.m. Dr Maresh had stated that he would prefer the visit of the social workers to be deferred, as the news might upset P. and cause a rise in blood pressure.", "40. At about 4 p.m. it was decided to serve the emergency protection order on the applicants with a view to removing S. to foster care. According to the Government, C.'s mother refused to allow S. to be removed and C.'s father threatened to follow the social workers and the baby. Safe departure from the hospital was only achieved with the assistance of the hospital staff. The applicants stated that there was no evidence for this in the records, although they accepted that the family were very upset when S. was removed, and C.'s mother pleaded with the social workers not to let S. go to strangers.", "41. A contact visit was arranged on 8 May 1998, attended by C. and his parents. While social services had considered taking S. back to the hospital for visits while P. was an inpatient, it was felt that it was not in the interests of S. as a newborn baby to be transported on a trip of some twenty-five to thirty miles.", "42. P. remained in the delivery unit due to concerns about her blood pressure. It was noted by her consultant that she was very clearly distraught about events. She was prescribed drugs to suppress lactation and anti-hypertensive medication. She was discharged on 10 May 1998.", "43. The local authority meanwhile applied to the court for a care order under the Children Act 1989.", "44. P. and C. were allowed supervised contact with S., initially three times a week. The first visit occurred on 11 May 1998. P. and C. applied for more access and were supported by the guardian ad litem appointed by the court to represent S. Contact increased to four times a week from 15 June 1998. S. also had contact with her maternal and paternal grandparents.", "45. P. and C. developed an excellent relationship with their baby daughter S. The notes made by the supervising officials were positive and complimentary. The paternal grandparents were also observed to have a caring and attentive relationship with her.", "46. On 13 May 1998 the local authority suspended the assessment of the paternal grandparents which had commenced after their approach to the local authority on 30 April 1998. This was to await the directions of the court, as advised by their counsel. The grandparents were advised of this on 14 May 1998.", "47. On 14 May 1998 the case was transferred from the county court to the High Court on grounds of complexity.", "48. Dr Eminson issued her report on 29 June 1998, stating that in order to assess the risk to S. it would be necessary to obtain, inter alia, a psychiatric assessment of P. and her capacity to change and a comprehensive social work assessment of each family member, including the grandparents, as regards their capacity to care for and protect S.", "49. On 31 July 1998 the timetable for the proceedings was set by a circuit judge and the hearing date fixed for February 1999. It was directed that the assessment of the grandparents should be undertaken by an expert but that the local authority should provide the factual background.", "50. In a report dated 21 September 1998, a social worker recorded the factual investigation into the paternal grandparents.", "51. In his report dated 28 September 1998 for the guardian ad litem appointed by the court to represent S., Dr Davis, a consultant paediatrician, found, inter alia, a clear and chronic pattern including unexplained symptoms suggesting that P. suffered from a severe illness; a definitive episode of poisoning; non-appearance of symptoms when the child was supervised by others and resolution of the health problems in the child after separation from the mother; extensive inaccuracies and inconsistencies by P. when repeating her history to different doctors; and exceptionally frequent medical attendance by mother and children. His opinion was that B., and to lesser extent A., had been victims of child abuse on the fabricated illness spectrum. The tendency to fabricate appeared to be ongoing (references were made to P.'s conduct during her pregnancy with S.: she had, for example, complained of ulcer symptoms but no ulcer was found, and she had referred to a stomach tumour which was presumably a besore [A condition caused by the swallowing of hair and the biting of hair and nails] removed in 1994). His view, strongly expressed, was that the risks to S. of rehabilitation with P. outweighed the advantages.", "52. On 17 and 18 November 1998, the local authority informed P. and C. of their intention to apply for a freeing for adoption order under the Adoption Act 1976.", "53. On 26 November 1998 Dr Maresh, P.'s obstetrics consultant, gave a statement indicating that it was clear to him that P. was aware that there was a strong possibility that her baby would be taken away from her at birth and that this made it difficult for her to stay at the hospital. He noted that during her pregnancy the number of assessments that P. was undergoing had sometimes interfered with the making of ante-natal appointments.", "54. On 10 December 1998 Dr Bentovim issued his psychiatric report. \n(i) It was noted that, during his meetings with P., she had been superficially cooperative. She had considered that the test which found a laxative in B.'s stools could have been a false positive. She accepted that B. had been hospitalised too often and that she had allowed emotional harm to come to him. Her explanation was that she had been a victim of the divorce process and suffered considerable financial stress. The only statement by P. in which she appeared to take responsibility for exaggerating B.'s illness was when she said that she had exaggerated the number of loose stools that he had had. There was a sense of evasiveness and minimisation, even a degree of trivialisation of what was discussed. It was difficult to tell whether some events referred to by P. were a constructed reality or had really happened. \n(ii) As regards C., his research attempted to show that health practitioners sometimes developed a perspective where they created the notion that the parent was inducing illness in a child, thus demonstrating the misuse and fallibility of medical authority. C. had stated that there was nothing to suggest that P. would harm S. He was prepared to look after S. alone if necessary. Together, P. and C. had stated that they would undertake any therapeutic work with a view to obtaining care of S. without, however, acknowledging that there was a problem as far as P. was concerned. \n(iii) As regards the paternal grandparents, they tended to agree with the parents' analysis of the situation and found it hard to face up to the fact that P.'s actions had given rise to major concerns about her potential to harm. There were positive factors in their favour (such as their commitment and desire to protect S.). However, the main problem if S. were placed with them would be their age when S. reached her adolescent phase of development.\n(iv) The report found that P. had a personality disorder, including a factitious disorder, as disclosed by her gross exaggeration of having had ovarian cancer and statements about miscarriages as well as the fabrication and exaggeration of B.'s symptoms. While P. had indicated a willingness to accept therapeutic work, which would have to be prolonged and required considerable motivation to change, she had not accepted how extensive such change needed to be. As regarded a possible referral to the Cassell Hospital, it was noted that this would require considerable commitment on the part of both parents. Although the couple had indicated a willingness to enter such a therapeutic setting, P.'s level of motivation was limited. It might, however, be advantageous for P. to be admitted to a special clinic for a further detailed assessment of whether a referral to Cassell Hospital would be appropriate.\n(v) The report concluded that C. was not himself a direct risk to S. but was so indirectly. He embraced his wife's views and had a limited understanding of the local authority's concerns. Similarly, the grandparents would be protective of S. if she were placed in their care but, as they would be in their 70s when S. was 14 years old, they would have increasing difficulties in meeting her growing emotional needs. It was therefore difficult to consider them as possible long- or short-term carers because S. needed to be in a secure long-term placement by her first birthday. As regards contact, the fact that the fabrication of symptoms was not life-threatening meant that contact would need less rigorous supervision than in the case of more life-threatening abuse.", "55. On 16 December 1998 the local authority made an application to free S. for adoption.", "56. The local authority care plan dated 13 January 1999 stated that placement of S. with both parents would pose a serious risk to her. As the circumstances in which C. intended to offer to care for S. on his own were unclear, the concerns about her protection remained. Regarding the paternal grandparents, it was noted that they had not shared the concerns in respect of the risk to S. if she were placed with her parents, and that Dr Bentovim did not support placement with them, particularly because of their age. The local authority's view was that the care plan for S. should be permanent, secured by adoption, and that she needed to be placed with an adoptive family as soon as possible.", "57. At a hearing, which began on 2 February 1999 and ended on 1 March 1999, the High Court heard the local authority's application for a care order in respect of S. The local authority informed the judge that there were nine families available and wanting to adopt S. P. and C. were parties, as were S.'s paternal grandparents, while S. was represented by a professional guardian ad litem, solicitors and both senior and junior counsel.", "58. On 4 February 1999 C. applied for leave to withdraw from the proceedings, on the ground that he saw no prospect of success in obtaining custody of S. and that the stress of the proceedings was likely to lead to a breakdown in his health. On 5 February 1999 the judge granted him leave to withdraw. C.'s parents also withdrew from the proceedings.", "59. On the same date P.'s legal representatives (leading counsel and solicitors) withdrew from the case, informing the judge that her legal aid had been withdrawn. It was later stated by the judge that they had withdrawn because P. was asking them to conduct the case unreasonably. In fact, her legal aid had not withdrawn, as the judge made clear in his judgment. The legal-aid certificate could not be formally discharged until P. had been given the opportunity to show why that should not happen.", "60. P. asked for an adjournment until 9 February 1999, which was granted. On that date P. asked for a further adjournment in order to apply for the reinstatement of her legal-aid certificate.", "61. The judge refused the adjournment. As a result of this decision, P. conducted her own case, assisted by a “McKenzie friend”, Mrs H. The applicant stated that she found conducting her own case immensely difficult. At one stage, she told the judge that she simply could not continue because she was so distressed. That was after cross-examining her own husband C., which she found very painful. However, the judge said that she should carry on. The solicitor for the guardian ad litem and a social worker visited P. that evening to persuade her to carry on.", "62. In his judgment, the judge explained his refusal of an adjournment:\n“In the first place I was satisfied that the mother had a very clear grasp of the voluminous documentation, at least as good and if not better a grasp than the lawyers in the case. Secondly, it was clear to me from the documents that the mother, who is an intelligent woman, was fully able to put her case in a clear and coherent way, an assessment that has been amply borne out by the hearing itself.\nThirdly, I was confident that the Bar, in the form of leading and junior counsel for the local authority and the guardian ad litem, would not only treat the mother fairly but in the tradition of the Bar would assist her in the presentation of any points she wished to advance, in so far as it would be professionally proper for them to do so. Once again that assessment has been fully justified by the conduct of counsel during the hearing. As examples, the local authority both facilitated and paid for the attendance of Dr Toseland, consultant toxicologist, to attend as part of the mother's case. Junior counsel for the local authority ... struggled manfully to ensure that the mother had a complete set of the ever growing documentation. There were other examples.\nFourthly, the outcome of the case seemed to me to hinge or be likely to hinge substantially on the mother's cross-examination, an area of the case in which the ability of lawyers to protect her was limited.\nFinally, and most importantly, I was concerned about the prejudice to [S.] of what would have had to have been a very lengthy adjournment. Section 1(2) of the Children Act expresses the general principle that delay in resolving a child's future is prejudicial to that child's welfare. In this particular case intensive preparation for the hearing had been going on effectively since [S.'s] birth in May 1998 and up until the outset of the hearing before me the mother had had the benefit of advice from her lawyers, latterly of course from leading counsel. An adjournment would have involved a very substantial delay in resolving [S.'s] future.\nThe hearing was estimated to last, and did indeed, last something in the order of twenty working days. A fresh legal team, assuming legal aid was restored, would have needed a substantial amount of time to master the voluminous documentation and to take instructions. Twenty days of court time simply cannot be conjured out of thin air.\nFurthermore the evidence of Dr ... Bentovim, the consultant child psychiatrist jointly instructed to advise me, amongst other things, on [S.'s] placement, was that a decision on her long-term future needed to be both made and if possible implemented before her first birthday. \nThe consequence of the events I have described was that the mother has been obliged to conduct her case in person with the assistance of a McKenzie friend, Mrs [H.]. In their closing submissions Mr David Harris QC and Miss Roddy for the guardian ad litem paid tribute to the manner in which the mother had conducted her case. They described her as fighting bravely, resourcefully and skilfully for the return of her daughter. I would like to echo that tribute. I would also like to express my gratitude to the mother's McKenzie friend ... who was clearly a considerable support to the mother throughout the case.\nIf the mother had been represented by counsel her case would, I think, have been conducted differently, but I am entirely satisfied that the result would have been the same. As so often happens the mother was given a latitude which would not be given to a litigant who was legally represented. For example, I allowed her to call a witness, Professor Robinson, who had not provided a statement prior to the hearing. I was also prepared for her to call a consultant psychologist who had given evidence in the American proceedings, Dr [P.], who in the event was unable to attend. I also allowed the mother to cross-examine witnesses twice ... I have throughout the hearing endeavoured to ensure that the mother was treated fairly. ....\n I am the first to acknowledge that the courtroom is not a friendly environment and ... that those who are not used to it find it difficult. However much experience the mother may have had of the legal system in the United States of America, I accept ... that she is not a lawyer. Further, the hearing has had in [S.'s] interests to delve into matters which were highly distressing to the parents and which are normally intensely private and would have remained private.\nIt is my judgment that the mother's case has been fully heard and that the hearing has been fair ... I reject any suggestion that had the mother been legally represented the result would have been different.”", "63. On 8 March 1999 the judge made a care order. In reaching his decision, he did not consider himself bound by the American conviction and reached his own findings of fact on the available material, which included a substantial volume of documents from the United States and expert reports. He concluded beyond reasonable doubt that B.'s diarrhoea had been caused by laxative abuse on the part of P. on one occasion and, on a balance of probabilities, that abuse was the most likely cause of B.'s diarrhoea on two further occasions. He went on:\n“I am therefore in no doubt and so find that [B.] did suffer harm in the care of his mother. In my judgment that harm was not limited to his physical health. I accept the argument of the local authority that he also suffered serious psychological harm. ...”", "64. While the judge accepted that P. had not put S. at risk during her pregnancy and that the parents' treatment of S. during contact sessions had been exemplary, he found that P. suffered from a personality disorder, and that such people were very difficult to treat and did not change easily. He considered that P. was in a state of deep denial about what had happened to her son B. and the potential risk that she posed to her daughter S. He referred to the expert evidence “that to receive help P. would need to accept that she remains a potentially dangerous person to S.” and “that is impossible even to start where the mother is in denial to the extent that this mother plainly is”. He noted that Dr Bentovim had found a small acknowledgment about her role in B.'s illness, but that P. had challenged the accuracy of his report on this point and embarked on a high-risk strategy of launching an outright attack on the American evidence.\n“At the end of a very careful and thorough cross-examination by the guardian ad litem, Dr Bentovim agreed ... that given the depth and longevity of the mother's state of denial, and given that the father had embraced it fully, the time scale for any therapeutic work with the mother designed to bring her to a state of understanding of and ability to address the risk posed to S. was way outside the time scale during which S. could be kept waiting for a permanent placement. Dr Bentovim's conclusion, reached I think with some regret, was that in the circumstances there could be no question of reunification of S. with her mother.”", "65. The judge found that C. was incapable of altering his emotional perception of P. or of accepting that she was responsible for harming her son B., although with a different woman as a partner he would have been able to bring up and care for a child. The direction of the case could have been altered if C. had acknowledged that there was a serious risk to be guarded against. C. was dominated by the mother and unable to put S.'s interests and the need to protect her first. The judge concluded that S.'s moral or physical health would be endangered by leaving her with her parents.", "66. On 15 March 1999 the same High Court judge heard the application to free S. for adoption. The transcript of his previous judgment was not yet available. The final order of 15 March 1999 listed P., C. and S. as respondents. According to the applicants, C. was present throughout and was specifically asked in court if he consented to a freeing for adoption order being made, and C. indicated that he was not.", "67. At the commencement of the hearing, P. informed the court that without legal representation she was significantly disadvantaged and was being deprived of a proper opportunity to advance her case. Both P. and C. had valid legal-aid certificates. The judge declined to defer the proceedings, finding that P. was capable of representing her interests and that she would have been put on notice by her lawyers at an earlier stage that the freeing for adoption application would follow the care order. Although he noted that there might appear to be “an element of railroading”, on balancing the parents' interests against the need for S. to have her future decided at the earliest possible opportunity, he considered that S.'s interests prevailed. On the issue of the freeing for adoption application, the judge concluded that the parents were withholding their consent to adoption unreasonably as they should have accepted, in the light of the previous proceedings, that there was no realistic prospect of the rehabilitation of S. to their care. He therefore issued an order freeing S. for adoption. That permanently severed legal ties between S. and her parents. As regards contact, he stated:\n“I'm assured by [the local authority] that there will be conventional letter-box contact. But it will in due course (if an adoption order is made) be essentially a matter for the adoptive parents as to precisely what contact [S.] has with her natural family.”", "68. The judge refused P. leave to appeal against the order. Her renewed application before the Court of Appeal was refused after a hearing on 5 July 1999, where she and C. appeared in person. Although the Court of Appeal noted that C. was not a party to the appeal, it referred to the fact that C. had addressed the court at some length on the issues. It noted that that the trial was of exceptional complexity, with enormous documentation, much expert evidence and lasting twenty days. It found, however, that the judge had carefully and thoroughly weighed all the issues of fact and that he had been meticulous throughout in ensuring fairness. No error of law or any failure of procedural fairness had been demonstrated.", "69. The last contact visit by P. and C. with S. was on 21 July 1999.", "70. On 2 September 1999 S. was placed for adoption with a family. On 13 October 1999 the local authority informed P. and C. that S. had been placed with adopters.", "71. S. was adopted by an order made on 27 March 2000. P. and C. were informed on 27 April 2000.", "72. The adoption order made no provision for future direct contact between S. and her parents. Any such contact was now at the discretion of the adoptive parents. By letter dated 6 July 2000, the local authority informed P. and C. that they could have limited indirect contact with S., namely, through Christmas and birthday cards, and presents. By letter dated 17 November 2000, the local authority informed them that contact was reduced at the request of the adopters to a letter from the parents once a year." ]

[ 3, 4 ]

[ "10. The applicant's husband Yusuf Ekinci, was born in Lice (south-east Turkey) and was a member of a well-known Turkish family of Kurdish origin. He was a practising lawyer and a member of the Ankara Bar. During his studies, he worked for the Turkish Workers Party (Türkiye İşçi Partisi) and was a member of the Eastern Revolutionary Cultural Grouping (Doğu Devrimci Kültür Ocakları). On that latter account, he was arrested in May 1971. He spent six months in prison, but was finally acquitted. Following his acquittal, he took no further active part in politics.", "11. On 24 February 1994, at about 6.30 p.m., Yusuf Ekinci left his office in the central part of Ankara to drive in his private car to his home located in a different part of the town. Before he left his office, he spoke to several persons including the applicant who had telephoned him at about 5 p.m.. He gave his office assistant Güngör S.E. a lift. As the applicant's husband had just enough petrol to get home, he dropped Güngör S.E. off somewhere on the way.", "12. When Yusuf Ekinci failed to return home, the applicant and Güngör S.E. inquired at local hospitals and police stations in the course of the evening, but were unable to obtain any information about his whereabouts. As the applicant was concerned that her husband had met with the same fate as Behçet Cantürk[1] from Lice – who had disappeared a month previously and whose body had been found soon after – she telephoned around midnight Mehmet Kahraman, the State Minister responsible for Human Rights and a friend of the family, and asked him for help. The first thing Mr Kahraman said was: \"This cannot have been done to Yusuf ...\", which frightened the applicant even more.", "13. On 25 February 1994, at about 2 a.m. and 7.30 a.m. respectively, the applicant received two anonymous telephone calls. No one spoke on the other end of the line. During the second call, the applicant could hear the sound of typewriters. At about 9.30 a.m. the telephone rang again. When the applicant answered, a woman said, \"I am the depths of hell\", and then put the receiver down.", "14. Later that day, at about 12.30 p.m., road workers found the body of Yusuf Ekinci along the E-90 TEM highway in Gölbaşı on the outskirts of Ankara, i.e. 1.5 kilometres from the Doktorlar Sitesi neighbourhood and 1 kilometre in the direction of Eskişehir. They informed the police. Yusuf Ekinci had been shot and killed. His car was found at a distance of 1 to 2 kilometres from the place where his body was found. The petrol tank was empty.", "15. On the same day, the Gölbaşı public prosecutor opened a criminal investigation into the death of Yusuf Ekinci.", "16. According to the applicant, the buttons of Yusuf Ekinci's coat were done up when his body was found. His identity documents, a small quantity of cash and his spectacles were missing. His ring and a valuable watch were returned to the applicant by the police.\nThe domestic investigation\na. Police records", "17. On a sketch map drafted by a police officer, dated 25 February 1994, it is recorded that eight bullets were found directly next to the head of Yusuf Ekinci.", "18. In the police report on the finding of Yusuf Ekinci's body, dated 26 February 1994, it is recorded that no weapon and no empty cartridges were found near to or within a radius of 500 metres from the body, and that his car was found at a distance of about 2.5 kilometres from the spot where the body was found.\nb. Forensic examinations", "19. An autopsy on Yusuf Ekinci was carried out on 26 February 1994. He was identified by his paternal cousin, Ahmet Murat İ. It was concluded that he had died of bullet wounds to the head and chest. The autopsy report does not include any indication of the estimated time of death. In the autopsy report, 11 bullet entry wounds, 7 bullet exit wounds and 1 bullet graze wound were recorded. In the course of the autopsy 2 deformed bullets and 2 bullets which were not deformed were removed from his body. These bullets were described as having blue painted tips and a diameter of probably 9mm. The bullets were given to the prosecutor in whose presence the autopsy was conducted. A blood sample was taken for examination for traces of alcohol, stimulants and depressants.", "20. In a ballistics report of the Central Criminal Police Laboratory (Merkez Kriminal Polis Laboratuarı) of Ankara, dated 28 February 1994, it is recorded that six Parrabellum type bullets of 9 mm calibre as well as three outer layers of the same type and bullet calibre were submitted for a ballistics examination in relation to the killing of Yusuf Ekinci. As to the findings of the examination, the report states that all bullets examined had been fired from the same weapon, and that these bullets did not bear any resemblance to any other bullets previously examined by the Laboratory. The report further states that it could not be confirmed nor excluded with absolute certainty, given the lack of adequate comparative material, that these bullets had been fired from a Uzi weapon of Israeli make. The bullets, however, were found to be of Israeli make. The report further states that the items examined were being archived under code nr. 4155.", "21. On 3 March 1994, the typewriter that Yusuf Ekinci used in his office was examined by the Central Criminal Police Laboratory. The examination of the typewriter ribbon disclosed only a petition concerning a compensation case.", "22. According to a supplementary autopsy report of 12 April 1994, no traces of alcohol, stimulants or depressants had been found in Yusuf Ekinci's body.\nc. Statements taken by the investigation authorities in 1994", "23. Between 25 February and 1 March 1994, the police took statements from fourteen persons, including the applicant.", "24. In a statement taken on 25 February 1994 by the police from Hacı M.Ö., one of the two road workers who had found the body of Yusuf Ekinci, Hacı M.Ö declared that, at 11.15 a.m., he and his colleague Akif H. had spotted the body on the banks of the highway and had informed the traffic police. They had also found a red car about one kilometre from the location of the body. They had not seen anyone in the vicinity of the body or the car.", "25. In a statement taken on 25 February 1994 by the police, Akif H. confirmed the account given by his colleague Hacı M.Ö.", "26. In a first statement taken on 25 February 1994 by the police from Yusuf Ekinci's assistant Güngör S.E., the latter declared that he had known Yusuf Ekinci since 1983, and that Yusuf Ekinci had dealt with compensation cases. He further stated that Yusuf Ekinci used to carry a gun whenever he travelled to another city, but that he never carried a gun in Ankara. Güngör S.E. had once asked Yusuf Ekinci what he would do if the PKK (Partiya Karkeren Kurdistan – Workers' Party of Kurdistan) demanded money from him. Yusuf Ekinci had replied that he would pay up, but that he would also inform the police. According to Güngör S.E., Yusuf Ekinci had not been involved in politics and had no connections with illegal organisations.", "27. In a second statement taken by the police on the same day, Güngör S.E. stated that Yusuf Ekinci had practised law in Ankara since 1982 and that his law practice mostly dealt with compensation cases. Yusuf Ekinci had an account at the Necetibey Branch of the Yapı Kredi Bank, a safe deposit box at the Yenişehir Branch of the İş Bank, and a further account at the Yapı Kredi Bank. He owned nine apartments and two cars, and had two offices. According to Güngör S.E., Yusuf Ekinci had no enemies. He had no knowledge of anyone ever having threatened Yusuf Ekinci.", "28. Güngör S.E. further stated that, in 1989 or 1990, Behçet Cantürk had started to call Yusuf Ekinci. Their first meeting took place in the office of Vekin A. Subsequent meetings were held in the office of Zeynel C., and over dinner with others in the S. Restaurant in Çankaya. They also had meetings in Behçet Cantürk's office in İstanbul.", "29. In 1992, Yusuf Ekinci had been involved in the case of Behçet Cantürk's nephew, Reşit Cantürk, who had been accused of carrying guns without a licence. Yusuf Ekinci had attended the funeral of Behçet Cantürk. Since the latter's funeral, there had been no further contacts between Yusuf Ekinci and the Cantürk family, but Yusuf Ekinci had asked his brother Tahsin Ekinci, who was also a lawyer as well as a member of the Executive Committee of the political party DEP (Demokrasi Partisi), whether there was any news about the killing of Behçet Cantürk.", "30. Güngör S.E. further stated that, on 24 February 1994, he and Yusuf Ekinci had gone to the Palace of Justice. After their return to the office, Yusuf Ekinci had a meeting with his cousin Murat İ. In the afternoon, Yusuf Ekinci received telephone calls from the applicant, the husband of a niece, as well as from his son and his sister. Güngör S.E. had not found these calls suspicious. At about 5.45 p.m., he left the office together with Yusuf Ekinci, who gave him a lift. The applicant called him at about 9.30 p.m., wondering where Yusuf Ekinci was. Suspecting a traffic accident, Güngör S.E. checked with several police stations located on the way to Yusuf Ekinci's home, but with no success.", "31. At around 11 p.m. Güngör S.E. went to the applicant's house, where he found the applicant, Mansure Ö., and friends of the applicant's daughter. Nadire İ. arrived later. The persons present then started to speculate on Yusuf Ekinci's whereabouts. According to Nadire İ., he could have been kidnapped by the PKK, and there might be a connection with Behçet Cantürk. According to others, he could have been kidnapped by the MİT (Milli İstihbarat Teşkilatı – National Intelligence Organisation) or by counter-guerrilla agents.", "32. Güngör S.E. later left the house to check with a police station and a hospital, but without any success. He returned to the applicant's house the next morning at around 9.30 a.m. At around 10 a.m., there was a telephone call from the police inviting the applicant to come to the police station. The applicant refused to go. Güngör S.E. and Özlem B. went to the police station where they were told that Yusuf Ekinci had been found dead.", "33. In a first statement taken on 25 February 1994 by the police from Yusuf Ekinci's secretary Özlem B., the latter declared that Güngör S.E. had called her on 25 February 1994 asking her whether Yusuf Ekinci had contacted the office. The public prosecutor Ali Rıza had called that morning asking her whether she had any information about Yusuf Ekinci. She replied that she did not. He then asked whether anything unusual had occurred. Güngör S.E. arrived at the office later and together they went to the police. She never witnessed anyone threatening Yusuf Ekinci. She further declared that Güngör S.E. and Yusuf Ekinci had been very close; she initially thought that Güngör S.E. was Yusuf Ekinci's son.", "34. In a second statement taken by the police from Özlem B. on 26 February 1994, Özlem B. declared that Yusuf Ekinci's law practice mostly dealt with compensation cases and that Nadire İ. was a client. She further declared that on 25 February 1994 Güngör S.E. had come to the office and had told her that Yusuf Ekinci had disappeared. He instructed her to take Yusuf Ekinci's notebooks and mobile telephone. They then went to the police headquarters, to the department dealing with disappearance cases. She did not know who Behçet Cantürk was, but she had seen this person's address in a notebook used by Yusuf Ekinci's previous secretary.", "35. In a statement taken by the police on 27 February 1994, the applicant declared that in 1979 she and her husband had moved from Diyarbakır to İstanbul and in 1982 to Ankara. Her husband had practised law in these three cities. She further stated that, since 1970, her husband had not been involved in politics and that his law practice dealt mainly with civil law cases. She further related what had happened when her husband had failed to return home on 24 February 1994, referring among other things to the anonymous telephone calls she had received. She did not remember anyone having threatened her husband. Her husband had never said anything about having been threatened.", "36. In a statement taken by the police on 27 February 1994 from Ahmet Ö., the witness declared that he was running an estate agency together with Orhan D. He had met Yusuf Ekinci in March 1993 in the office of Zeynel C., who was one of Yusuf Ekinci's clients. Yusuf Ekinci, who had recently become involved in buying and selling property, had been interested in buying a plot in Gölbaşı. Ahmet Ö. had no information about Yusuf Ekinci's death.", "37. In a statement taken on 27 February 1994 by the police, Orhan D. confirmed the account given by his business partner Ahmet Ö.", "38. In a statement taken by the police on 27 February 1994 from Hüdayi D., a doorman at the applicant's residence, the witness declared that he had observed nothing suspicious about Yusuf Ekinci and had seen no strangers coming to or leaving Yusuf Ekinci's home.", "39. The statement taken by the police on 27 February 1994 from Mehmet I., another doorman at the applicant's residence, was similar to the one given by his colleague Hüdayi D.", "40. In a statement taken by the police on 27 February 1994 from Vetin A., a business man and a hometown friend of Yusuf Ekinci, the witness declared that he used to see Yusuf Ekinci quite often and that the latter's brothers were involved in politics. He confirmed that Yusuf Ekinci and Behçet Cantürk knew each other and that the three of them had had several restaurant dinners together. He saw Yusuf Ekinci for the last time at Behçet Cantürk's funeral in Ankara.", "41. In a statement taken on 28 February 1994 from Mansure Ö., a friend of the applicant's family, the witness confirmed that she and others had been in the applicant's house on the evening of 24 February 1994. She denied that anyone present that evening had mentioned the possibility that Yusuf Ekinci had been kidnapped by the PKK, MİT or counter-guerrilla agents.", "42. In a statement taken on 28 February 1994 from Nadire İ., another friend of the applicant's family, she confirmed that she along with others had been in the applicant's house on the evening of 24 February 1994. She denied having said that Yusuf Ekinci had been kidnapped by the PKK, MİT or counter-guerrilla agents.", "43. In a statement taken by the police on 28 February 1994 from Ahmet Murat İ., a paternal cousin of Yusuf Ekinci, he declared that he had visited Yusuf Ekinci in his office on 24 February 1994 at 2 p.m., and that Yusuf Ekinci used to deal with compensation cases against the State.", "44. In a statement taken by the police on 1 March 1994 from Zeynel C., a hometown friend and client of Yusuf Ekinci, the witness declared that Yusuf Ekinci and Behçet Cantürk had twice met in his office and that the three of them had dined together on one occasion. He did not know what had been discussed between Yusuf Ekinci and Behçet Cantürk during their meeting in his office. He did know that Yusuf Ekinci had been dealing with a tax case related to Behçet Cantürk and with another case involving a relative of Behçet Cantürk. Zeynel C. further stated that he had been a personal friend of Behçet Cantürk, but that they had had no business dealings with each other. He added that, in 1990, he had bought a hotel on behalf of a company from Mehmet Hankozat “who was Cantürk's man”. He had paid 25% of the purchase price to Behçet Cantürk and 25% to Mehmet Hankozat. He had been unable to pay the remaining 50% of the purchase price.", "45. In a statement taken by the police on 21 March 1994 from Ağa Ç., the latter gave a detailed description of how he had bought his apartment from Yusuf Ekinci on 15 October 1991.\nd. Further activities undertaken in 1994 in the domestic investigation", "46. On 28 February 1994, the Gölbaşı public prosecutor, who was in charge of the investigation, informed the National Turkish Bank Association that Yusuf Ekinci had been killed and that his bank accounts should be examined. The public prosecutor requested the Bank Association to take the necessary measures without giving any further specifications.", "47. By letter of 3 March 1994, the police informed the Gölbaşı public prosecutor that Yusuf Ekinci had a safe deposit box at the İş Bank and requested the public prosecutor to seek judicial permission to open this box in order to verify its contents. On 4 March 1994, the public prosecutor recorded that this request had been turned down.", "48. On 9 March 1994 the National Turkish Bank Association informed the public prosecutor that, pursuant to Article 83 of the Act on Banking (Bankalar Kanunu), information about private bank accounts was secret and, therefore, the prosecutor's request of 28 February 1994 could not be granted.", "49. By letter of 16 May 1994, the Gölbaşı public prosecutor asked the District Police Headquarters to be kept informed of any developments in the investigation into the killing of Yusuf Ekinci until 25 February 2009, i.e. when a prosecution in relation to the killing would become statute-barred.", "50. By letters of 25 June, 25 August, 25 October 1994, 25 February 1995 and 25 October 1995, the Commissioner of the Gölbaşı local police station informed the District Police Headquarters that the enquiries in relation to the identification of the perpetrator(s) conducted so far had proved unsuccessful, that they were still being actively sought and, if found, the victim's family would be notified. These letters do not contain any details about the modalities of the police investigation.", "51. On 8 November 1994, in reply to a request for information about the investigation filed by the applicant on the same day, the Gölbaşı public prosecutor informed the applicant that the investigation was still continuing.\ne. Developments at the domestic investigation as from 1996", "52. On 26 February 1996, referring to a letter of the Ministry of Foreign Affairs, the Ankara deputy chief public prosecutor asked the Gölbaşı public prosecutor for information about the investigation.", "53. On 28 February 1996 the Gölbaşı Provincial Police Headquarters transmitted copies of documents related to the investigation – obtained from the Ankara Police Headquarters – and the ballistics report of 28 February 1994 to the Gölbaşı public prosecutor, in response to the latter's oral instructions.", "54. On 7 March 1996, the Gölbaşı public prosecutor informed the Ankara chief public prosecutor that the investigation of the killing of Yusuf Ekinci was still being pursued", "55. In a letter of 7 March 1996, the Gölbaşı public prosecutor informed the Ankara chief public prosecutor that, as in his statement of 26 February 1994 Güngör S.E. had mentioned that Murat İ. was related to Yusuf Ekinci, Ahmet Murat İ. was to be summoned in order to clarify whether or not Yusuf Ekinci had a relative named Murat İ.", "56. On the same day, the Gölbaşı public prosecutor requested the Ankara Police Headquarters to send him the six Parrabellum type 9 mm calibre bullets and the three outer layers of the same type and bullet calibre that had been examined by the Central Criminal Police Laboratory and subsequently archived under code nr. 4155 (see § 20 above).", "57. In a brief statement given on 8 April 1996, Ahmet Murat İ. declared that Yusuf Ekinci did not have a relative named Murat İ.", "58. On 6 November 1996, the applicant requested the Gölbaşı public prosecutor for a ballistics comparison of the weapons found in the Susurluk accident (see §§ 92-93 below) and the weapon used in the killing of her husband.", "59. On 11 November 1996, the Gölbaşı public prosecutor instructed the İzmir District Criminal Police Laboratory to compare the weapons found in Susurluk with the weapon used in the killing of Yusuf Ekinci.", "60. In a report of the İzmir District Criminal Police Laboratory, dated 20 November 1996 and sent to the Gölbaşı public prosecutor on 21 November 1996, it is recorded that a ballistics examination had established that the bullets used in the killing of Yusuf Ekinci had not been fired from the six 9 mm. calibre weapons found on 3 November 1996 in Susurluk.", "61. In an article published in the daily newspaper “Radikal” on 5 December 1996, the journalist İsmet Berkan wrote:\n“It all dates back to early 1992. At that time the Turkish Chief of Staff's office made radical changes in its strategy in the fight against the outlawed PKK. The military units, which used to take action only after PKK attacks had taken place by engaging in hot pursuit, started to be organised as a guerrilla force. Now they were taking pre‑emptive action. This change soon started to bear fruit. The PKK no longer had the initiative. Now the PKK was on the run with the soldiers at its heels.\nThe PKK gradually withdrew from the centres of population where it had been staging attacks, taking refuge in the mountains. But Turkey's “active fight” against terrorism was continuing. This time, the logistic support for the PKK in the mountains began to diminish through village evacuations. The PKK had been greatly weakened, and seemed to be on the verge of being “finished off”.\nBut the change in the strategy was not limited to a “low-intensity conflict” in the region. It was decided that a “more active” drive was required to dry up other sources of terrorism too. In this way, with a little effort, this job would be “finished off next spring”.\nThis would take the form of a two-pronged effort. Terrorists would be caught – or killed if necessary – before they actually staged attacks. And the persons who provided the terrorists with material or moral support would be equated with the terrorists themselves.\nThis change in strategy was put on the agenda of the National Security Board at the end of 1992. A National Security Board document, which the author of this column was allowed to see, contains the chart of the organisation that was to be created for this purpose, as well as the names of the persons who would take part in it. These names included Abdullah Çatlı. The others taking part in the organisation included policemen belonging to the \"special teams\", soldiers and some of Çatlı's friends.\nInitially, the proposed tactics did not meet with the approval of the National Security Board. Turgut Özal, at that time the President of Turkey, and Eşref Bitlis, at that time the Commander of the Turkish Armed Forces, both opposed the State taking action in co-operation with fugitives <from justice>. I guess this is pure coincidence, but first General Bitlis and then Özal died, the former in an accident and the latter due to a heart attack.\nSüleyman Demirel became President and Tansu Çiller the Prime Minister. Initially, Çiller was quite mild on the south-east issue. She was talking about the Basque model and, with good intentions, having discussions with the opposition leaders on the issue. But after a short time she underwent a change. She became more hawkish than all of the other hawks, declaring, “This <the PKK> will either be finished or it will be finished”. It was obvious that she was convinced that it would end soon.\nAs there was no one around to raise objections any longer, the issue was again submitted to the National Security Board. And this new technique of struggle was approved in the autumn of 1993. The organisation, call it “Gladio”[2] or \"special organisation,\" was founded by a decision taken by the National Security Board.\nAccording to figures released at that time, Turkey was spending more than $8 billion annually on the fight against the PKK. No doubt the PKK was also spending a lot in its fight against Turkey. Calculations made in the higher State echelons indicated that the PKK's war budget was no less than $3 billion. In the autumn of 1993, the year in which Çiller became Prime Minister, the PKK had two main sources of income: 1. money obtained through narcotics and extortion. 2. donations collected in Europe. \nFirst the income from the European channel was cut off. At first, Germany and then France closed down the associations connected with the PKK and prevented them from collecting funds. In both countries the PKK went underground.\nBut there was also the income from drug trafficking. Here, the “special organisation” had to become active. We all remember that during those days Çiller was saying “We will dry up the PKK's sources of income”.\nBehçet Cantürk, Savaş Buldan, Yusuf Ekinci, Hacı Karay, Adnan Yıldırım, Medet Serhat and Ömer Lütfü Topal.\nAll of them were figures involved in drug trafficking in one way or another. None is alive today. They were either involved in drug trafficking on behalf of the PKK or had to pay extortion money. In either case the PKK was getting income. All of these people are now dead.\nThe daily newspaper Özgür Ülke was a PKK mouthpiece. The PKK leader Öcalan had a column in the paper, using the pen name, “Ali Fırat”. The head office and the branch offices of that daily have been bombed. It is being claimed that the İstanbul police caught the bombers but had to release them in line with “orders received from high up”.\nThis article has been written entirely on the basis of a document which I was not permitted to photocopy. I was not permitted either to take notes. I just had a chance to read it quickly. I wish that this piece of “news”, the truth of which I measure by considering a lot of other things, proves to be false. Naturally, I have no doubt that it will be denied immediately. I just hope that those who will be denying it will be telling the truth.”", "62. On 6 December 1996, the applicant informed the Gölbaşı public prosecutor that, given the articles published on 5 and 6 December 1996 in the daily newspaper “Radikal”, the journalist İsmet Berkan held information and documents in relation to the killing of her husband.", "63. On the same day, the Gölbaşı public prosecutor Ali Rıza O. asked the Ankara public prosecutor to take a statement from İsmet Berkan.", "64. In a brief statement taken by a public prosecutor on 1 January 1997, İsmet Berkan declared that he had no information as to who killed Yusuf Ekinci or how he was killed. He had only commented, in the atmosphere created by the Susurluk incident, that Yusuf Ekinci might have been killed by the “Susurluk gang”.", "65. On 31 January 1997, the Gölbaşı public prosecutor requested the Turkish Parliamentary Susurluk Investigation Commission (Susurluk Araştırma Komisyona) to provide him with a copy of the statement given in the course of the investigation conducted by this Commission by İbrahim Şahin, the deputy head of the Special Operations Department (Özel Harekat Dairesi Başkan Vekili).", "66. On the same day and acting upon the applicant's request of 27 January 1997, the Gölbaşı public prosecutor requested the Turkish Telecommunications Directorate to identify the origin of the anonymous telephone calls received by the applicant on 25 and 26 February 1994.", "67. By letter of 7 February 1997, the Telecommunications Directorate informed the public prosecutor that it was technically impossible to identity these telephone numbers.", "68. On 28 March 1997 and referring to İsmet Berkan's newspaper article of 5 December 1996, the Gölbaşı public prosecutor requested the National Security Council (Milli Güvenlik Kurulu) to provide him with the document referred to in the newspaper article, i.e. the National Security Board document that İsmet Berkan had been allowed to see and which contained the chart of the organisation that had been created as well as the names of its members. He explained that this document could be of relevance to the investigation into the killing of Yusuf Ekinci.", "69. In a letter of 8 April 1997 to the Gölbaşı public prosecutor, the National Security Council denied the existence of the document referred to in the article written by İsmet Berkan.", "70. By letters of 26 June and 25 October 1995, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that the enquiries in relation to the identification of the perpetrator(s) conducted so far had proved unsuccessful, that they were still actively being sought and that, if found, the victim's family would be notified. These letters do not contain any details about the modalities of the police investigation.", "71. In January 1998, the Prime Minister received the report he had commissioned on the Susurluk affair (see §§ 92-93 and §§ 100-102 below), according to which Behçet Cantürk had been killed on the instructions of an unspecified Turkish security organisation (“Türk Emniyet Teşkilatı”) on the basis of a decision to eliminate about 100 businessmen suspected of involvement in financing the PKK, and whose names were set out in a non‑disclosed list referred to in a public statement made on 4 November 1993 in İstanbul by the former Prime Minister, Ms Tansu Çiller.", "72. On 26 February 1998, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that the enquiries conducted so far in relation to the identification of the perpetrator(s) had proved unsuccessful, that they were still actively being sought and that, if found, the victim's family would be notified. These letters do not contain any details about the modalities of the police investigation.", "73. On 20 May 1998 the Gölbaşı public prosecutor requested the Ankara public prosecutor to identify, summon and take statements from the road workers and petrol station staff who had been on duty at the time of the incident.", "74. In a statement taken on 3 June 1998, Atilla C., the manager of a petrol station on the TEM highway, stated that he had been the manager of this petrol station for 13 years and that the employees on duty at the material time no longer worked there. It does not appear from the record of this statement whether or not he was asked for the names of the former employees.", "75. In a statement taken on 16 June 1998 from Ümit T., a traffic police officer who had been on duty on the TEM highway on the day of the incident date, Ümit T. stated that he could not remember anything about the incident. Too much time had passed since then.", "76. In a statement taken on the same day from the traffic police officer Şevket Y., he stated that he did not recall anything about the incident. He considered that it was probable that Yusuf Ekinci's body had been found when he was not on duty. Similar statements were taken on 16 June 1998 from the traffic police officers Abdullah G. and Osman Y.", "77. In a statement taken on 16 June 1998 from Sezgin S., a traffic police officer who had been on duty at the relevant time, Sezgin S. declared that he arrived at the scene of the crime after having heard the message on the police radio. The body had been lying in a ditch. He had not inspected the wounds on the body. The victim's car had been located at a distance of about 15 or 20 metres from the body. He left the scene after the arrival of the police officers from the Criminal Bureau.", "78. In a statement taken on 16 June 1998 from Arif İ., a traffic police officer on duty on the day of the incident, Arif İ declared that he arrived at the scene of the crime after having heard the message on the police radio. He had seen a dead body lying in a ditch. He had seen bullet wounds to the right and left cheek. The victim's car had been located at a distance of 20 or 25 metres from the body. He left the scene of the crime when police officers from the Criminal Bureau arrived.", "79. On 26 June 1998, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that the investigation aimed at the identification of the perpetrator(s) of the killing of Yusuf Ekinci had, so far, proved unsuccessful, that they were still actively being sought and, if found, the victim's family would be notified. This letter does not contain any details about the modalities of the police investigation.", "80. On 10 August 1998 the Ankara public prosecutor requested the Gölbaşı public prosecutor for information about the steps taken in the investigation of the killing of Yusuf Ekinci.", "81. On 14 August 1998 the Gölbaşı public prosecutor informed the Ankara public prosecutor that the investigation was still continuing and, should the perpetrator(s) be found, the Ankara public prosecutor would be notified.", "82. In a further statement taken on 2 December 1998 from the traffic police officer Şevket Y., the latter declared that he had no information about the killing of Yusuf Ekinci. A similar statement was taken on 4 December 1998 from Abbas Ş., another traffic police officer who had been on duty at the relevant time.", "83. On 26 February 1999, the Commissioner of the Gölbaşı local police station informed the Gölbaşı District Police Headquarters that, so far, the enquiries in relation to the identification of the perpetrator(s) of the killing of Yusuf Ekinci had proved unsuccessful, that they were still actively being sought and, if found, the victim's family would be notified. This letter does not contain any details about the modalities of the police investigation.\nActions undertaken by the applicant and others", "84. The applicant wrote two letters to the President of Turkey requesting him to order an effective investigation into the killing of her husband and to bring the perpetrators to justice. In addition, she appealed for help to the Prime Minister and to the Speaker of the Grand National Assembly. These requests remained unanswered.", "85. On 28 February 1996, the brother of Yusuf Ekinci, Tarik Ziya Ekinci, and the lawyer Tahsin Ekinci wrote to the President of Turkey voicing their continuing concerns and suspicions, and complaining that the investigation into the killing of Yusuf Ekinci was inadequate.", "86. In August 1997, during a Parliamentary session, the Member of Parliament Fikri Sağlar, put questions in relation to the killing of Yusuf Ekinci to the then Prime Minister Mr Mesut Yılmaz. Mr Sağlar mentioned that it was common knowledge that Yusuf Ekinci had been killed by a Uzi type weapon and that a number of these weapons destined for use by the police had gone missing. He enquired whether these weapons had been acquired by Turkey on the basis of a public tender, how many weapons had gone missing, who was responsible for the weapons and whether the ballistics characteristics of the weapons had ever been recorded. He further asked whether a ballistics comparison had been carried out between the bullets used in the killing of Yusuf Ekinci and the Uzi weapons that had gone missing from the records of the Special Police Teams.", "87. In December 1997, in reply to the questions put by Fikri Sağlar, the Minister of the Interior, Murat Başesgioğlu, declared that ballistics reports had revealed that the bullets used in the killing of Yusuf Ekinci were similar to those of the Uzi weapons allegedly used by the Susurluk gang in other illegal incidents.", "88. In a letter of 17 February 1998 to the Minister of Justice, Tarık Ziya Ekinci complained that the investigation into the killing of his brother was inadequate. He suggested inter alia that a team of independent investigators be formed to carry out investigation, that the case-file be transferred from the Gölbaşı public prosecutor to the public prosecutor of the Ankara State Security Court, that a ballistics examination of all the Uzi type weapons in the possession of the Special Operations Department be ordered in order to verify whether they matched the weapon used to kill his brother, and that statements be taken from road workers and petrol station staff on duty at the time when his brother was killed.", "89. In a statement taken on 17 April 1998 by the police, Tarık Ziya Ekinci confirmed that he had written a letter to the Minister of Justice in relation to the killing of his brother. On 6 May 1998 the Ankara public prosecutor informed the Gölbaşı public prosecutor of the statement given on 17 April 1998 by Tarık Ziya Ekinci.", "90. In 1998 the applicant allegedly succeeded in contacting an eye‑witness, namely a person who had been working at a petrol station situated on the road between Yusuf Ekinci's office and his home. According to this witness, whose identity was not disclosed by the applicant, he had seen that a red Toyota – Yusuf Ekinci's car was a red Toyota – had been stopped by a police patrol car, that the police officers had taken the driver from this car and that they had searched his clothes. After about five minutes, a policeman got into the Toyota, which drove off together with the police patrol car. However, out of fear, this witness had refused to give a written statement. The account given by this witness was reported on the internet site of the daily newspaper “Hürriyet”.", "91. Before the Court the applicant referred to the so-called Susurluk incident and the domestic reports that have been produced in relation to this incident. These reports have been made available to the Court in a number of other cases brought against Turkey (cf. Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions, 1998-VI, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999‑IV, Özgür Gündem v. Turkey, no. 23144/93, ECHR 2000-III, Kılıç v. Turkey, no 22492/93, ECHR 2000‑III, Akkoç v. Turkey, nos. 22947/93 & 22948/93, ECHR 2000-X, and Avşar v. Turkey, no. 25657/94, ECHR 2001-VII).\nThe Susurluk accident and related documents", "92. Susurluk was the scene of a road accident on 3 November 1996 involving a truck and a car. The four passengers in the car were Mr Sedat Bucak, a member of Parliament for the conservative True Path Party and close to Tansu Çiller, Mr Hüseyin Kocadağ, the former deputy head of the İstanbul security services, Mr Abdullah Çatlı, a notorious far-right militant wanted by Interpol for drug trafficking and by the Turkish authorities for the killing of seven left-wing militants, and Ms Gonca Us, Mr Çatlı's girlfriend and a former beauty queen. All passengers, except for Mr Bucak, were killed.", "93. The fact that they had been travelling together in the same car, that Abdullah Çatlı was found in possession of a licence to carry arms and a Turkish senior officials' passport, both documents signed by the Minister of the Interior Mehmet Ağar, and that various weapons of a model normally used by the police with matching silencers as well as money and drugs were found in the car had so shocked public opinion that it forced Mehmet Ağar to resign as Minister of the Interior on 8 November 1996, and led the authorities to carry out comprehensive investigations into the accident and to commission investigations at different levels. These investigations have resulted in the so-called “Susurluk Reports”.\n1st Susurluk Report", "94. In its decision No. 472 of 12 November 1996, the Turkish Grand National Assembly (Türkiye Büyük Millet Meclisi) ordered the conduct of an official parliamentary inquiry into the “relations between illegal organisations and the State and the accident in Susurluk”. A Commission was set up from among the members of Parliament. The Commission heard evidence from 54 people, whose names had been implicated in the Susurluk affair in one way or another, including Sedat Bucak, Mehmet Ağar and İbrahim Şahin. The Commission also instructed inspectors from the Ministry of Home Affairs and the Ministry of Justice to carry out investigations on its behalf. The Commission published its findings in 1997 in the “Susurluk Commission Report of the Turkish Grand National Assembly” in 1997.", "95. In the concluding remarks of this Report it is stated:\n“...the uncontrollable forces were in collaboration with some public servants who worked for the State. The rising terrorist incidents in south‑east Turkey in the nineties have also created an income-based terrorism. As to the unknown perpetrator killings, <the NCO> Hüseyin O. stated in his evidence to the Commission that 'the intelligence services used to give us a list the night before and the gunmen would go in the morning and kill those whose names were on the list'...”", "96. According to an article published on 27 May 1997 in the liberal daily newspaper “Milliyet”, the answers given by the MİT in relation to the killing of Yusuf Ekinci had not been published in the Parliamentary Report.\n2nd Susurluk Report", "97. The Prime Minister, in his letter no: B.02.0.MUS.1902/01236 of 19 November 1996, ordered Köksal Sönmez, the under secretary of the MİT to carry out an investigation into the allegations of the existence of an illegal organisation within the State and this organisation's activities. A report (No. 11.011.01.156/24746) was prepared and submitted to the Prime Minister on 17 December 1996. Although this report was never officially made public, its contents were leaked to the press and are currently in the public domain.", "98. This Report contained statements made by Doğu Perinçek, the leader of the Workers' Party (İşçi Partisi), who alleged that Tansu Çiller has set up an organisation comprising MİT members, police officers and members of the “Grey Wolves” (Ülkücüler)[3]. This organisation, known to its about 700 members – amongst whom Tansu Çiller, her husband Özer Çiller, Mehmet Ağar, the deputy-under secretary of the MİT, Mehmet Eymur, the Director of the Special Operations Department İbrahim Şahin, and Abdullah Çatlı – as “the Special Bureau” was responsible, according to Doğu Perinçek, for the killings of many persons, including Yusuf Ekinci.", "99. The Report contains one page on which information on Yusuf Ekinci's personal background and activities is set out. This pages states:\n“Yusuf Ekinci\nSon of Kamil, and born in Lice-Diyarbakır in 1942.\nIn June 1963 he was a second year student at the Ankara University, Faculty of Law. He was known as a pro-Kurdish socialist. In December 1963 he was a member of the “youth branch” of the TIP (Türkiye İşçi Partisi - Turkish Workers Party) which was established in Ankara. He was further the editor of the “Emekçi” newspaper, the official bulletin of that party. \nAfter his graduation in April 1969, he went to Diyarbakır in order to finish his traineeship. In Diyarbakır he participated in an organised demonstration against the Law on the Protection of the Constitution. \nHe was detained on remand in 1970 <or> 1971 and subsequently prosecuted on charges of involvement in pro-Kurdish activities in the Eastern Revolutionary Cultural Grouping (Doğu Devrimci Kültür Ocakları). \nAs from 1972 he worked as a lawyer in Diyarbakır, where he tried to direct the Kurdish movement. \nIn April 1971, during the 4th TIP General Assembly, he declared that he opposed the ideas of his brother Tarık Ziya Ekinci, and added that his own objective was the creation of Kurdistan and that he was a Kurdish nationalist. \nSince 1984 he worked as a lawyer in Ankara. \nIn February 1990 he was expelled from the SHP (Sosyal Demokrat Halkçı Parti - Social Democrat People's Party). He became involved in establishing a Marxist party together with M. Ali Eren. \nHe was found dead on 25 February 1994 close to the Doktorlar Sitesi neighbourhood in Gölbaşı Ankara.”\n3rd Susurluk Report", "100. On 13 August 1997, Prime Minister Mesut Yılmaz, instructed Kutlu Savaş, the vice-president of the Committee for Co-ordination and Control attached to the Office of the Prime Minister, to carry out an investigation into the Susurluk affair. Savaş and his personnel studied the report prepared by the Parliamentary Commission (see §§ 94-96 above), the MİT report (see §§ 97-99 above), and they conducted their own investigation. After receiving the report in January 1998, the Prime Minister made it available to the public, though eleven pages and certain annexes were withheld.", "101. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.", "102. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. The Report made reference to an individual Mahmut Yıldırım, also known as Ahmet Demir, “the Terminator” or “Yeşil” detailing his involvement in unlawful acts in the south-east and his links with the MİT:\n“The bombing of the newspaper Özgür Gündem in İstanbul, the killing of Behçet Cantürk, .... the trillion credits of the banks are in reality the extension of diverse aspects of the action in Ankara. ... The beginning of the Susurluk action might be hidden in a sentence of the Prime Minister at that time, Tansu Çiller. “The list with the names of the businessmen helping the PKK is in our possession.” she said. The executions began afterwards. Who decided the executions? It was inevitable that a deterioration would occur and that personal interests would replace the national interests, and in fact they did. This report perceives the Susurluk incident in that manner. (page 8) \nSince the struggle in the region <of eastern and south-eastern Anatolia> and the PKK attacks created an ever increasing reaction, even in the western regions, it is possible to understand and excuse some of the attitudes of martyrs[4], the reaction and anger of the State forces fighting the PKK, and those living in the State of Emergency Region. It is in fact inevitable. However it is necessary to detail the incidents which took place in this complicated structure and the institutions participating in this natural, albeit complicated, scenery. By doing so, it will be possible to see the country's fight with the PKK and the connection stretching to İstanbul, Ankara and the financial relationships. (page 9)\n... Whilst the character of Yeşil and the fact that he, along with the group of confessors he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnap etc., were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as the MİT may use a lowly individual... it is not an acceptable practice that MİT should have used Yeşil several times... Yeşil opened an account at the Heykel Branch of the Ziraat Bank in Ankara under the name of Ahmet Demir in order to collect extortion money. The existence of this account appeared from the State Archives. ... Yeşil, who carried out activities in Antalya under the name of Metin Günes, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and the MIT... and they kept quiet. As a result of the State's silence the field is left open to the gangs (page 26)\n ... Yeşil was also associated with JİTEM, an organisation within the gendarmes, which used large numbers of protectors and confessors (page 27)\nMuhsin Gül (Code name Kekeç-Pepe-Metin) testified, in his statements taken between 22.07.1994 and 16.08.1994 by the Commander of the Diyarbakır Crime Squad in relation to Ahmet Demir[5], that the kidnapping of Bayram Kanat and the finding of his dead body ... was result of a plan of Ahmet Demir who was then working at the Diyarbakır Gendarmerie ... and that he <Muhsin Gül> had worked for the Gendarmerie from time to time. (page 35)\n<In his confession to the Diyarbakır Crime Squad> Musin Gül ... had stated that Ahmet Demir would say from time to time that he had personally planned and committed the murder of Behçet Cantürk and of other mafia and PKK members who had died in the same manner. (page 37)\nSummary information on the antecedents of Behçet Cantürk, are set out below. He was of Armenian origin ... and was born in Lice. ... In 1990 he joined certain Kurdish intellectuals and formed a group called “The National Platform”. Later they set up a company called Mesopotamia and attempted to publish a newspaper called Mesopotamia. As of 1992 he was the middleman in collecting money from drugs smugglers to hand over to the PKK. In April 1992 he brought 6 tons of base morphine and 5 tons of hashish from Pakistan to Turkey and these drugs were purchased by <six persons> and ... Behçet Cantürk collected money from these individuals on various occasions in order to give it to the PKK. (page 72)\nAs of 1992 < Behçet Cantürk> was one of the financiers of the newspaper Özgür Gündem. ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate the Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking ... the Turkish Security Force Organisation (Türk Emniyet Teşkilatı) decided that he should be killed and that decision was carried out. Thus one person was removed from “the list obtained of businessmen who finance the PKK” referred to by the then Prime Minister and which list is known to have consisted of nearly 100 persons. No discussion has taken place on the question as to whether the murder of Behçet Cantürk was right or wrong, or whether it was necessary. However, inevitable questions must be asked. Who ordered the murder of Cantürk? Who can exercise such authority? Under what circumstances can this authority be exercised? Who is responsible to whom? The objection “in a State where the rule of law prevails there can be no place for these questions” is not, in our opinion, valid and is not in accordance with reality. (page 73)\nAll of the relevant State bodies were aware of these activities and operations. ... For example, one of the common features of the murders having taken place in the İzmit‑Adapzarı-Bolu axis <an area between İstanbul and Ankara> is the concerted activities of the police, the gendarmerie and members of the confessor organisations in this region ... When the characteristics of the individuals killed in such actions are examined, the difference between, on the one hand, those Kurdish supporters who were killed in the region where the state of emergency had been declared and, on the other, those who were killed elsewhere lay in the financial strength the latter represented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. (page 74)\n<JİTEM - Gendarmerie Intelligence Service> We had the authority the execute almost everyone in Diyarbakır and its surroundings whom we suspected of being connected with the PKK. ... Instead of handing them over to the justice authorities, we adopted as a method the “unknown perpetrator killing” (“faili mesul cinayetleri”). This was what was wanted from us. We received instructions to this effect. (page 76)”", "103. In an interview published on 8 February 1998 in the newspaper Turkish Daily News, the State Minister responsible for Human Rights, Mr Hikmet Sami Türk, was asked:\n“In the Susurluk Report it was explained that some murders, which had previously been called “mysterious”, were committed by the security forces. Did the families of the victims come to your Ministry and how did you deal with them?” \nMr Türk replied:\n“No, they have not come to us. The number of incidents reported to us is not that high. I think that those people apply to the courts. What we look at are those that the non-governmental organisations dealt with and the letters that we received.” \n \nIn response to the remark:\n“You say that we have to trust our government, but in the Susurluk Report, which was given to the Prime Minister Mesut Yılmaz, it is indicated that certain violent activities and unsolved crimes were committed in the name of the State.”, \n \nMr Türk stated:\n“It is not possible for us to find out these kinds of things. We would get lost within some labyrinth if we tried to find them out. These are issues that must always be investigated and supervised by the State. I must add that the State must not allow illegal formations within its body.”\nJudicial procedures linked with the Susurluk affair\nDefamation proceedings brought by Tansu and Özer Çiller", "104. On 18 February 1998, the daily newspaper Yeniyüzyıl published an article in which it was claimed that “there existed an organisation called Çiller's Private Organisation, that Çiller ordered the <premises of> Özgür Gündem to be bombed and that F.G. was Çiller's secret partner in money laundering”.", "105. Tansu Çiller and her husband Özer Çiller took a civil action for defamation against the editor and the owner of the newspaper. In the resulting judgment no. 1998/624 of 23 September 1998, the Ankara Court of First Instance (Asliye Hukuk Mahkemesi) noted that the article was based on the contents of a MİT report. Having checked the author's copy of this report, i.e. the Report No. 11.011.01.156/24746 (see §§ 97-99 above) against a copy of the original report obtained from the MİT, the court concluded that these were identical. The Court of First Instance found against Ms Çiller, holding that:\n“The press ... has a duty to monitor the behaviour of politicians and to inform the public of their activities ... as long as the media are informing the public of any news that is in the public interest ... this constitutes a public duty on the part of journalists which should be carried out effectively ... The defendant has proved the source of his news and therefore there has been no attack on the plaintiffs' personal integrity.”\nIn its unanimous decision no. 1999/5030 of 31 May 1999, the 4th Chamber of the Court of Cassation (Yargıtay) rejected the appeal in cassation filed by Ms Çiller and her husband, and upheld the judgment of 23 September 1998.\nCriminal proceedings taken against persons implicated in the Susurluk affair", "106. In criminal proceedings brought against a number of persons implicated in the Susurluk affair, which have been extensively covered by the Turkish media, the İstanbul State Security Court (Devlet Güvenlik Mahkemesi) decided in a ruling of 3 May 1999 to discontinue the proceedings against Sedat Bucak and Mehmet Ağar on grounds of their immunity as elected members of parliament in the April 1999 elections.", "107. In its judgment of 12 February 2001, the İstanbul State Security Court convicted, inter alia, the former deputy head of the Special Operations Department İbrahim Şahin and the former MİT official Korkut Erken of \"founding and directing a gang with the aim of committing crimes\" and sentenced them both to six years' imprisonment. Twelve others, including former members of Special Operation Teams and police officers, received lower sentences. In its judgment, the State Security Court stated inter alia:\n“Obstruction of the judicial investigation through administrative, political and legal manoeuvring worries and scares society and damages the sense of justice. ... The people who commit crimes and hide behind political, social, administrative and legal shields, and others who refuse to remove these protections ought not to forget that they too will need justice one day.”", "108. On 24 October 2001, the 8th Chamber of the Court of Cassation (Yargıtay) declared the appeal in cassation filed against the judgment of 12 February 2001 founded and quashed this judgment. It held, inter alia, that the İstanbul State Security Court had unjustly rejected the defendants' request to have the proceedings conducted in camera.", "109. On 11 December 2001, the Plenary Court of Cassation (Yargıtay Ceza Genel Kurulu) accepted the objection filed by the public prosecutor against the judgment of 24 October 2001. It subsequently quashed this ruling and referred the case back to the 8th Chamber of the Court of Cassation for a new decision.", "110. On 23 January 2002, the 8th Chamber of the Court of Cassation rejected the appeal in cassation filed against the State Security Court's judgment of 12 February 2001." ]

[ 0 ]

[ "6. P.L.Z., G.Z. and S.Z. were the owners of an apartment in Florence, which they had let to G.G.", "7. In a writ served on the tenant on 17 November 1986, they communicated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.", "8. By a decision of 11 December 1986, which was made enforceable on 23 March 1988, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.", "9. On 8 October 1987, the applicant became the owner of the apartment.", "10. On 8 April 1988, the applicant served notice on the tenant requiring her to vacate the premises.", "11. On 28 December 1990, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.", "12. On 4 March 1991, the tenant having died in the meantime, she served notice on the latter's cohabiting daughter, requiring her to vacate the premises.", "13. On 28 March 1991, the applicant served notice on her informing her that the order for possession would be enforced by a bailiff on 17 May 1991.", "14. Between 17 May 1991 and 23 May 1995, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.", "15. On an unspecified date of 1998, the tenant's daughter spontaneously vacated the apartment ant the applicant repossessed the premises." ]

[ 6 ]

[ "7. Mrs G.F. was the owner of an apartment in Rome, which she had let to L.N.", "8. In a writ served on the tenant on 15 April 1983, she communicated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.", "9. By a decision of 12 May 1983, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 September 1984. Upon the tenant's request, the Rome Magistrate postponed the execution of the order for possession to 31 January 1985.", "10. On 4 February 1986, Mrs G.F. served notice on the tenant requiring her to vacate the premises. On 27 February 1986, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 30 April 1986.", "11. Between 30 April 1986 and 26 October 1989, the bailiff made sixteen attempts to recover possession.", "12. On 15 November 1989, the applicants became the owners of the apartment.", "13. After four unsuccessful attempts by the bailiff to evict the tenant, the applicants made a statutory declaration that they urgently required the premises as accommodation for their daughter.", "14. Between 14 November 1990 and 23 October 1998, the bailiff made thirty-six attempts to recover possession.", "15. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.", "16. On 26 November 1998, the tenant vacated the premises." ]

[ 3 ]

[ "6. The applicant is the owner of an apartment in Milan, which she had let to E.P.", "7. In a writ served on the tenant on 9 June 1987, the applicant communicated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.", "8. By a decision of 18 June 1987, which was made enforceable on 29 June 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 June 1989.", "9. On 16 May 1989 and again on 1 October 1990 the applicant served notice on the tenant requiring her to vacate the premises.", "10. On 6 November 1990, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 23 November 1990.", "11. Between 23 November 1990 and 15 July 1999, the bailiff made thirty attempts to recover possession. Each attempt proved unsuccessful as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.", "12. Pursuant to Section 6 of Law no. 431/98, the enforcement proceedings were suspended.", "13. In July 2000, the applicant recovered possession of the apartment." ]

[ 1 ]

[ "8. The applicant was born in 1930 and lives in Karlovac, Croatia.", "9. On 18 September 1992 the applicant filed a civil action with the Karlovac Municipal Court (Općinski sud u Karlovcu), seeking damages for his destroyed property from an insurance company - C.O. The applicant claimed that an unknown person had set fire in his summer house in Pirovac, Croatia, and had also appropriated his property from the house.", "10. Before 5 November 1997, i.e., the date of the entry of the Convention into force in respect of Croatia, the first instance court held three hearings.", "11. At the hearing on 2 December 1997 the defendant asked the court to order the Šibenik Police Department (Policijska uprava Šibenska) to submit a report concerning the applicant's claim.\nOn 5 December 1997 the court ordered the Šibenik Police Department and the defendant's office in Šibenik to submit information relevant for the applicant's claim. Furthermore, the court ordered the Šibenik Public Prosecutor's Office (Općinsko državno odvjetništvo u Šibeniku) to inform it about criminal reports on arson submitted in the period relevant for the applicant's claim.\nThe defendant's office in Šibenik replied on 22 December 1997, the Šibenik Public Prosecutor's Office on 2 January 1998 and the Šibenik Police Department on 12 January 1998.", "12. According to the Government the hearing scheduled for 12 May 1998 was adjourned because the applicant's counsel had not received the notice of the hearing date.\nAccording to the applicant the hearing on 12 May 1998 was held in his presence. The defendant repeated its request from the previous hearing that the court order the Šibenik Police Department to submit a report relevant for the applicant's claim. The applicant replied that the defendant was already in possession of that report and accused the defendant's counsel of lying. The judge left the courtroom.", "13. According to the Government, since neither the applicant nor his counsel, although notified, appeared at the hearing scheduled for 6 October 1998 the court stayed the proceedings (mirovanje postupka).\nAccording to the applicant he had never been notified of the hearing date.", "14. On 12 January 1999 the applicant's counsel requested the court to resume the proceedings.", "15. On 21 January 1999 the Karlovac Municipal Court struck out the applicant's claim. On 3 February 1999 the applicant appealed against that decision. On 17 March 1999 the Karlovac County Court (Županijski sud u Karlovcu) quashed the first instance decision and remitted the case to the Karlovac Municipal Court.", "16. It appears that the applicant filed a motion requesting that the presiding judge be removed from the case. On 5 July 1999 the President of the Karlovac Municipal Court rejected the request.", "17. At the hearing on 5 October 1999 the court invited the defendant to submit its observations on the County Court's decision of 17 March 1999 within 30 days.\nOn 12 October 1999 the defendant filed its submissions.", "18. On 14 February 2000 the applicant increased the sum sought.", "19. At the next hearing on 17 May 2000 the court decided that it would order the Šibenik Public Prosecutor's Office to submit further information concerning the arson in the applicant's house.\nOn 9 June 2000 the Šibenik Public Prosecutor's Office submitted the requested information.", "20. According to the Government, on 21 July 2000 the court scheduled the next hearing for 10 October 2000, but the applicant failed to collect the notice of the hearing date sent to him by registered mail. On 25 August 2000 the court unsuccessfully attempted another delivery of the notice of the hearing date to the applicant.", "21. According to the applicant, he had never received the notices for the above hearings.", "22. On 25 September 2000 the defendant filed additional submissions.\nOn 27 September 2000 the court sent the defendant's submissions to the applicant and invited him to file his reply within eight days.\nOn 8 October 2000 the applicant filed his reply.", "23. On 16 November 2000 the applicant filed his additional submissions. According to the Government, since he had failed to submit a copy for the defendant, on 3 January 2001 the court ordered him to submit another copy.\nAccording to the applicant he had already sent a copy of his submissions directly to the defendant.\nOn 9 February 2001 the applicant sent a letter to the court refusing to submit another copy of his submissions of 16 November 2000.", "24. On 19 March 2001 the court invited the defendant to submit its inner regulations and other information concerning the applicant's claim.", "25. On 9 April 2001 the court invited the Šibenik Police Department to inform it whether there were any war operations in the area where the applicant's house is situated.", "26. On 12 April 2001 the defendant submitted its inner regulations.", "27. On 8 June 2001 the court invited the defendant to submit copies of the photographs depicting the remnants of the applicant's house after destruction and also their estimation of damages.\nOn 21 June 2001 the defendant submitted the requested documentation.\nOn 29 June 2001 the court sent the copy of that documentation to the applicant.", "28. At the hearing on 10 July 2001 the court decided to invite the Šibenik Warning and Information Centre (Centar za obavještavnje i uzbunjivanje u Šibeniku) to inform it whether there were any war operations in the area where the applicant's house is situated.", "29. On 23 July 2001 the defendant asked the court to extend the time limit for its submissions concerning a possible settlement with the applicant.", "30. On 2 August 2001 the Ministry of Defence Administration for Communications (Uprava za komunikacije Ministarstva obrane) informed the court that on 4 May 1992 there were no war operations in the area where the applicant's house is situated.", "31. On 16 October 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) asked that the case-file be sent to it in order to decide upon the applicant's request that the case be heard before another court.", "32. On 17 October 2001 the Karlovac Municipal Court held a hearing. The applicant asked that the court adopt a judgment. It was decided that the case-file would not be transferred to the Supreme Court. The proceedings were concluded and the court adopted judgment rejecting the applicant's claim.", "33. On 10 December 2001 the applicant appealed against the judgment.\nOn 6 February 2002 the Karlovac County Court rejected the applicant's appeal." ]

[ 3 ]

[ "8. The first applicant, Västberga Taxi Aktiebolag, a taxi company, was dissolved due to a lack of assets on 2 December 1997. The second applicant, Nino Vulic, was the director of the first applicant. At the time when the tax liability in dispute in the present case arose, he owned 50% of its shares. Later, he acquired all the shares of the company.", "9. In the autumn of 1994, as part of a large-scale investigation into taxicab operators, the Tax Authority (skattemyndigheten) of the County of Stockholm carried out a tax audit concerning the first applicant's taxi business. Having previously submitted its tax returns for the assessment year 1994, the first applicant was asked to submit supplementary information on several occasions, starting on 29 November 1994. Having discovered in the course of the audit certain irregularities in the tax returns, the Tax Authority informed the first applicant on 20 February 1995 that it intended to revise upwards the figure given in the tax returns for the turnover of the taxi business and impose additional taxes and tax surcharges on the company. The first applicant was invited to submit further comments, which it did.", "10. Having regard to the findings of the audit and the first applicant's observations, the Tax Authority – by a decision of 10 August 1995 – revised upwards the turnover of the company's business by more than 400,000 Swedish kronor (SEK). After deductions for undeclared salary and petrol costs, the Tax Authority's assessments resulted in an increase in the deficit of the first applicant's business. However, by decisions of 11 and 15 August 1995, the taxation bases for calculating value-added tax (mervärdesskatt) and employer's contributions (arbetsgivaravgifter) were raised upwards in correspondence with the turnover and, as a consequence, the first applicant's liability to value-added tax and employer's contributions were increased by SEK 47,956 and 125,650, respectively. Moreover, as the information supplied by the first applicant in its tax returns was found to be incorrect and its liability to value-added tax and employer's contributions had been increased under a discretionary assessment procedure, the Tax Authority ordered it to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% of the increased tax liability. The additional taxes levied on the first applicant, including interest and surcharges, totalled SEK 232,069, of which SEK 34,710 were surcharges. It appears that the whole of the amount was payable in October 1995.", "11. On 11 August 1995 the Tax Authority presented a report, according to which it intended to raise upwards the second applicant's taxable income and impose a tax surcharge, as a consequence of the assessments concerning the first applicant. The second applicant was invited to submit comments, which he did.", "12. By a decision of 6 October 1995 the Tax Authority increased the second applicant's liability to income tax by SEK 146,602. Like the first applicant, and for the same reasons, he was ordered to pay tax surcharges. The additional tax levied on the second applicant, including interest and surcharges, totalled SEK 226,776, of which SEK 57,757 were surcharges. The whole of the amount was payable on 12 February 1996.", "13. Claiming that the information relied upon by the Tax Authority to calculate the turnover of the first applicant's business was inaccurate, both applicants challenged the Tax Authority's decisions, the first applicant on 4 September 1995 in a request for the Authority's reconsideration and the second applicant on 18 December 1995 in an appeal against the relevant decision. The applicants also requested that the execution of the amounts assessed be stayed. The requests were prompted by the fact that neither an appeal to a court nor a request for reconsideration by the Tax Authority had in itself any suspensive effect on the obligation to pay the taxes and surcharges due as a result of the impugned decisions.", "14. By decisions of 8 September 1995 and 17 February 1996 the Tax Authority rejected the applicants' requests for stays of execution, stating that the prerequisites laid down in section 49 of the Tax Collection Act (Uppbördslagen, 1953:272) had not been fulfilled.", "15. By judgments of 22 February and 8 March 1996, following appeals by the applicants, the County Administrative Court (länsrätten) of the County of Stockholm quashed the Tax Authority's decisions and referred the cases back to the Authority. Having found that the formal prerequisites for granting stays of execution under section 49, subsection 1 (3) of the Tax Collection Act had been fulfilled, the court went on to state:\n“However, the granting of a stay of execution under this particular provision is conditional on security being provided, if, for some reason, it can be assumed that the amount in respect of which a stay of execution has been sought will not be duly paid. As the Tax Authority did not rule on the compliance with that condition, the County Administrative Court finds that the decision[s] should be quashed and the case[s] referred back to the Tax Authority, which must examine the question whether security is required.”", "16. On 7 and 30 May 1996, respectively, the Tax Authority again rejected the applicants' requests for stays of execution. The Tax Authority found that the applicants' ability to pay was open to doubt, that stays of execution could not therefore be granted unless security was provided and that, although given the opportunity to do so, the applicants had failed to provide security. Accordingly, their requests could not be granted.", "17. The applicants appealed against those decisions to the County Administrative Court, claiming that they should be exempted from the obligation to provide security and granted stays of execution. Both claims rested on the contention that it would be unreasonable and amount to a violation of Article 6 of the Convention for enforcement proceedings to be instituted against the applicants without their cases having first been determined \"in due course\".", "18. By judgments of 12 September 1996, subscribing to the reasons given by the Tax Authority, the County Administrative Court upheld the impugned decisions.", "19. The applicants, who did not furnish security, lodged a notice of appeal. On 30 October 1996 the Administrative Court of Appeal (kammarrätten) in Stockholm refused them leave to appeal against the County Administrative Court's judgments. They did not appeal to the Supreme Administrative Court (Regeringsrätten).", "20. Meanwhile, each of the debts being outstanding and no stays of execution having been granted, the applicants were registered as being in arrears with the taxes and tax surcharges imposed as a result of the Tax Authority's decisions. Enforcement proceedings were therefore instituted against both applicants.", "21. On 20 December 1996 the Enforcement Office (kronofogde-myndigheten) of the County of Stockholm, representing the State, filed a petition with the District Court (tingsrätten) of Stockholm, requesting that the first applicant be declared bankrupt. According to a statement submitted by the Office, as of 16 December 1996 the first applicant's tax liability relating to the assessment year 1994 amounted to SEK 271,733, including penalties for late payment (dröjsmålsavgifter) that had accrued since the final date on which payment could have been made. That amount included SEK 33,041, plus 6% in penalties for late payment, in tax surcharges. The first applicant also had a smaller tax liability relating to the assessment year 1996. The Office noted that an investigation had revealed that the first applicant owned no property that could be seized in order to cover the debts in question.", "22. The District Court held a hearing in the case on 3 February 1997. Although duly summoned, however, no representative of the first applicant appeared before the court. Instead, written observations previously submitted on its behalf were read out. According to the minutes of the hearing, the first applicant alleged in those observations that Article 6 of the Convention had been breached in that it had been denied a fair hearing.", "23. By a decision of 10 February 1997 the District Court declared the first applicant bankrupt. In so doing it noted that the alleged breach of Article 6 of the Convention did not affect the State's standing to petition for bankruptcy, that the first applicant was under an obligation to pay the debts and that it had to be considered insolvent as it had been found to have no distrainable assets.", "24. The first applicant appealed to the Svea Court of Appeal (Svea hovrätt), claiming, inter alia, that the District Court's decision amounted to a violation of Article 6 of the Convention in that the enforcement proceedings had been allowed to continue irrespective of the fact that the Tax Authority's decisions regarding its liability to taxes and tax surcharges had not yet been reviewed by a court.", "25. The first applicant's appeal was dismissed by the Court of Appeal on 21 February 1997. Leave to appeal against the appellate court's decision was refused by the Supreme Court (Högsta domstolen) on 6 May 1997.", "26. On 2 December 1997 the bankruptcy proceedings were terminated owing to a lack of assets.", "27. On 23 and 25 April 1996 the Enforcement Office seized the second applicant's savings in two banks, amounting to a total of SEK 18,132, in partial defrayment of his tax liability.", "28. The second applicant appealed to the District Court, requesting that the seizure be quashed. The appeal was dismissed by the court on 28 June 1996. He made no further appeals, considering that they would have no prospects of success.", "29. Following the Enforcement Office's decision of 22 November 1996 to seize part of the second applicant's monthly income, some minor amounts were recovered. By a decision of 5 December 1997 this seizure was discontinued. As of 21 August 2001 the second applicant's tax liability relating to the assessment year 1994 amounted to SEK 346,161, including penalties for late payment. Of the original debt of SEK 226,776, SEK 201,910 remained unpaid. In accordance with section 3 of the Statute of Limitations for Tax Claims (Lagen om preskription av skattefordringar m.m., 1982:188), the whole debt became statute-barred on 31 December 2001, at the end of the fifth year following the day it became due.", "30. On 30 August 1995 the Tax Authority reported the second applicant to the Public Prosecution Office (åklagarmyndigheten) in Stockholm for suspected tax crimes based on the information obtained during the tax audit and the statements made in the applicants' tax returns. On 23 May 1997 the second applicant was indicted for a bookkeeping offence. A hearing was held by the District Court on 22 January 2001. During the course of the hearing, the public prosecutor withdrew the charges and the District Court consequently struck the case out of its list.", "31. As mentioned above, on 4 September 1995, the first applicant requested the Tax Authority to reconsider its decisions on taxes and tax surcharges. On 9 October 1995 the Authority decided not to change its decision of 10 August 1995 concerning the assessment of the turnover of the company's business. Subsequently, the first applicant sent comments and questions to the Tax Authority, which replied to the questions on 17 February 1996. On 22 February 1996 the first applicant lodged formal notices of appeal against the Tax Authority's decisions. It also submitted comments and questions to the Tax Authority, which, by a letter of 19 August 1996, stated that it stood by its decisions. The first applicant presented further observations on 5 September 1996. By decisions of 11 and 12 June 1997 the Tax Authority refused to change the impugned decisions. Consequently, the matters were automatically referred to the County Administrative Court for determination.", "32. By a decision of 17 July 2000 the County Administrative Court dismissed the first applicant's appeals. The Court considered that, as it had been dissolved on 2 December 1997, the company lacked legal capacity (rättskapacitet) to act as a party. Accordingly, the appeals could not be examined.", "33. On 9 October 2001 the Administrative Court of Appeal upheld the County Administrative Court's decision. On 12 November 2001 the first applicant appealed to the Supreme Administrative Court. By a decision of 23 April 2002 the latter court granted leave to appeal. Thus, the matter is presently pending before the Supreme Administrative Court.", "34. At the same time as his appeal of 18 December 1995, the second applicant submitted comments and questions to the Tax Authority, which replied on 17 February 1996. A few days later he sent a letter to the Authority. By a letter of 19 August 1996 the Authority stated that it stood by its previous decision. The second applicant presented further comments on 5 September 1996. On 12 June 1997 the Tax Authority refused to change the impugned decision. Consequently, the matter was automatically referred to the County Administrative Court for determination.", "35. By a judgment of 29 March 2000 the County Administrative Court upheld the Tax Authority's decision of 6 October 1995. It considered that the information on which the impugned decisions were based was reliable and showed that the applicant's income and the tax in question could not be assessed in accordance with the statements made in his tax returns. Thus, the Tax Authority had had good reason to make discretionary tax assessments based on the information obtained during the audit. Furthermore, the amount levied on the applicant could not be considered too high. The County Administrative Court also considered that there had been sufficient reasons to impose the tax surcharge in question and that no legal basis for remitting it had been shown.", "36. On 15 December 2000 the Administrative Court of Appeal upheld the County Administrative Court's judgment. During the course of the proceedings before the appellate court the second applicant was on one occasion granted a four-week extension of a time-limit for the submission of observations. On 12 January 2001 he appealed to the Supreme Administrative Court. Following another extension of a similar time-limit, he completed his appeal on 20 April 2001. By a decision of 3 May 2002 the Supreme Administrative Court refused him leave to appeal." ]

[ 3 ]

[ "8. In the autumn of 1995, as part of a large-scale investigation into taxicab operators, the Tax Authority (skattemyndigheten) of the County of Stockholm carried out a tax audit of the applicant's taxi firm. Having discovered in the course of the audit certain irregularities in the tax returns for the assessment year 1994, the Tax Authority drafted an audit report on 1 December 1995 containing a supplementary tax assessment and invited the applicant to submit comments. The applicant challenged the report and requested that further investigative measures be carried out.", "9. Having regard to the findings of the audit and the applicant's observations, the Tax Authority – by decisions of 22 and 27 December 1995 – increased the applicant's liability to income tax by 286,859 Swedish kronor (SEK), to value-added tax (mervärdesskatt) by SEK 192,866 and to employer's contributions (arbetsgivaravgifter) by SEK 253,783. Moreover, as the information supplied by the applicant in his tax returns was found to be incorrect and the figure given for the turnover of the business had been revised upwards under a discretionary assessment procedure, the Tax Authority ordered him to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% or 40% of the increased tax liability, depending on the type of tax involved. The additional taxes levied on the applicant, including interest and surcharges, totalled SEK 1,020,300, of which SEK 161,261 were surcharges. The amounts relating to value-added tax and employer's contributions were payable on 5 January 1996 and those relating to income tax on 10 April 1996.", "10. Claiming that the information relied upon by the Tax Authority to calculate the turnover of his business was inaccurate, the applicant, by a letter of 8 March 1996, requested the Authority to reconsider its decisions. As he risked being declared bankrupt before his tax liability had been determined by the courts, he also requested a stay of execution in respect of the amounts assessed. The request was prompted by the fact that neither an appeal to a court nor a request for reconsideration by the Tax Authority had in itself any suspensive effect on the obligation to pay the taxes and surcharges due as a result of the impugned decisions.", "11. In letters of 19 April 1996 to the applicant's counsel the Tax Authority responded to the applicant's request for a stay of execution as follows:\n“... The Tax Authority considers that the prerequisites laid down in section 49, subsection 1(2) or (3), of the Tax Collection Act [Uppbördslagen, 1953:272] for granting a stay of execution have been fulfilled.\nAccording to section 49, subsection 2, of the Tax Collection Act, the Tax Authority may, in certain cases, require that security be provided for any amount in respect of which a stay of execution is sought.\nHaving regard to the information contained in [the applicant's] tax return and considering the other circumstances in the case, the Tax Authority finds that [the applicant's] ability to pay is open to serious doubt.\nThe Tax Authority is of the opinion that [the applicant] has to provide security for the amount ... in respect of which he has requested a stay of execution. Only a banker's guarantee will be accepted as security.\nYou are hereby invited to provide security. This should be done no later than 8 May 1996.\nShould you fail to provide security by the date mentioned above, the Tax Authority will reject your request.”", "12. By decisions of 21 May 1996 the Tax Authority rejected the applicant's request for a stay of execution, as no security had been furnished.", "13. The applicant appealed against those decisions to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that he should be exempted from the obligation to provide security and granted a stay of execution. Both claims rested on the contention that it would be unreasonable and amount to a violation of Article 6 of the Convention for enforcement proceedings to be instituted against the applicant without a court having first determined whether he had any liability to pay the amounts involved.", "14. By judgments of 11 July 1996 the County Administrative Court upheld the Tax Authority's decisions of 21 May 1996. The court noted at the outset that the formal prerequisites for granting a stay of execution under section 49, subsection 1(3), of the Tax Collection Act had been fulfilled. However, subscribing to the reasons given by the Tax Authority, it found that the applicant could not be granted a stay of execution unless security was provided.", "15. The applicant, who did not furnish security, lodged a notice of appeal. On 21 May 1997 the Administrative Court of Appeal (kammarrätten) in Stockholm refused him leave to appeal against the County Administrative Court's judgments. His request for leave to appeal against the appellate court's decisions was refused by the Supreme Administrative Court (Regeringsrätten) on 3 November 1998.", "16. In February 1996 the applicant was registered as being in arrears with value-added tax and employer's contributions and the corresponding tax surcharges and interest imposed as a result of the Tax Authority's decisions. The amounts relating to income tax did not become payable until 10 April 1996.", "17. On 29 March 1996 the Enforcement Office (kronofogde-myndigheten) of the County of Stockholm, representing the State, filed a petition with the District Court (tingsrätten) of Huddinge, requesting that the applicant be declared bankrupt. According to a statement submitted by the Office, the applicant's tax liability as of 22 March 1996 amounted to SEK 653,144, including penalties for late payment (dröjsmålsavgifter) that had accrued since the final date on which payment could have been made. That amount included SEK 89,323, plus 6% in penalties for late payment, in tax surcharges. The Office noted that an investigation had revealed that the only property owned by the applicant was some vehicles, but of insufficient value to cover the debt.", "18. The applicant was summoned to appear before the District Court on 23 April 1996. The court commenced its examination of the case but, at the insistence of the applicant – who referred to the fact that his request for a stay of execution was still pending before the Tax Authority – adjourned the bankruptcy proceedings until 21 May 1996, when it held a second hearing in the case. When heard by the court the applicant now stated that he was unable to comply with the Tax Authority's condition for granting a stay of execution, namely providing security. By a decision of 10 June 1996, after rejecting the applicant's request for a further adjournment, the District Court declared the applicant bankrupt. In so doing it had regard to the fact that, under section 103 of the Tax Collection Act, the applicant was under an obligation to pay the debt, was unable to provide the security required in order to obtain a stay of execution and had to be considered insolvent as he had been found to have no distrainable assets.", "19. The applicant appealed to the Svea Court of Appeal (Svea hovrätt), claiming, inter alia, that the District Court's decision amounted to a violation of Article 6 of the Convention, in that the enforcement proceedings had been allowed to continue irrespective of the fact that he had challenged the Tax Authority's decisions regarding his liability to taxes and tax surcharges.", "20. The applicant's appeal was dismissed by the Court of Appeal on 18 June 1996. Leave to appeal against the appellate court's decision was refused by the Supreme Court (Högsta domstolen) on 18 September 1996.", "21. According to a report by the bankruptcy administrator of 30 January 1998, all the applicant's vehicles, with the exception of a car that had been leased to the applicant and had no residual value, had been sold by him shortly before he was declared bankrupt. The value of the remainder of the applicant's assets listed in the statement of affairs was estimated at SEK 8,800, whereas the debt came to approximately SEK 1,690,000.", "22. On 18 February 1998 the bankruptcy proceedings were terminated owing to a lack of assets.", "23. In accordance with section 3 of the Statute of Limitations for Tax Claims (Lagen om preskription av skattefordringar m.m., 1982:188), the whole debt became statute-barred on 31 December 2001, at the end of the fifth year following the day it became due.", "24. On 30 October 1997 the applicant was sentenced by the District Court to ten months' imprisonment for tax fraud (skattebedrägeri) and a bookkeeping offence (bokföringsbrott). The tax fraud concerned the above-mentioned value-added tax. The conviction was based on information obtained by the Tax Authority during its audit of the applicant's taxi firm and statements he had made in his tax returns.", "25. The judgment was upheld by the Court of Appeal on 16 November 1998. Leave to appeal to the Supreme Court was refused on 4 March 1999.", "26. As mentioned above, on 8 March 1996 the applicant requested the Tax Authority to reconsider its decisions on taxes and tax surcharges. In a letter of 23 April 1996, the applicant referred to the District Court's order the same day temporarily adjourning the bankruptcy proceedings (see paragraph 18 above) and stressed the need for a speedy reconsideration by the Tax Authority. On 24 February 1999 the Authority – noting that the applicant had appealed against the decisions on taxes and tax surcharges – stood by its previous decisions and refused to change them. Consequently, the matters were automatically referred to the County Administrative Court for determination.", "27. On 30 August 2000 the applicant requested an oral hearing at which it was proposed that certain witnesses would give evidence. Later, asked by the County Administrative Court to clarify his request, the applicant stated that an oral hearing was not required on the issue of the assessment of the tax surcharges, but was necessary so that the court could hear evidence relating to the information on which the tax decisions were based. By a letter of 5 September 2001 the County Administrative Court informed the applicant that it did not find a hearing necessary and ordered him to make his final observations in the case in writing.", "28. By judgments of 7 December 2001 the County Administrative Court upheld the Tax Authority's decisions of 22 and 27 December 1995 and rejected the applicant's request for an oral hearing, considering that the information on which the impugned decisions were based was reliable and showed that the applicant's income and the taxes in question could not be assessed in accordance with the statements made in his tax returns. Thus, the Tax Authority had had good reason to make discretionary tax assessments based on the information obtained during the audit. Furthermore, the amounts levied on the applicant could not be considered too high. With respect to the tax surcharges, the County Administrative Court made extensive references to the judgments of the Supreme Court of 29 November 2000 and the Supreme Administrative Court of 15 December 2000 (see paragraphs 51-55 below) and concluded that the Swedish provisions on tax surcharges were in conformity with the Convention. It considered that there had been sufficient reasons to impose the surcharges in question and that no legal basis for remitting them had been shown. In that connection, it dismissed the applicant's argument that the allegedly excessive length of the proceedings constituted by itself a reason to remit the surcharges.", "29. The applicant has appealed to the Administrative Court of Appeal, where the dispute is at present pending." ]

[ 3 ]

[ "9. The applicant company, Sovtransavto Holding, an international transport undertaking, is a Russian limited company that was set up in 1993 and has its registered office in Moscow.", "10. Between 1993 and 1997 the applicant company held 49% of the shares in Sovtransavto-Lugansk, a Ukrainian public limited company.", "11. On 3 January 1996 a general meeting of Sovtransavto-Lugansk's shareholders adopted a resolution altering the company's memorandum and articles of association, converting it into a private limited company. On 23 January 1996 the Lugansk Executive Council (виконавчий комітет), a municipal body legally vested with the requisite power, ratified the decision of 3 January.", "12. By decisions of 26 December 1996, 11 August 1997 and 20 October 1997, Sovtransavto-Lugansk's managing director increased the company's share capital, each time by one-third, and altered its memorandum and articles of association accordingly. These decisions were ratified by the Lugansk Executive Council on 30 December 1996, 12 August 1997 and 18 November 1997 respectively.", "13. These increases in Sovtransavto-Lugansk's share capital enabled its directors to assume sole control of the company's management and assets. The applicant company's shareholding fell from 49% to 20.7%.", "14. According to the applicant company, between 1997 and 1999 some of Sovtransavto-Lugansk's assets were sold to various undertakings that had been set up by its managing director.", "15. On 25 June 1997 the applicant company lodged a complaint (Case no. 70/10-98) with the Lugansk Region Arbitration Tribunal (the court of first instance in the present case) against Sovtransavto-Lugansk and the Lugansk Executive Council. It sought a declaration that the decisions altering Sovtransavto-Lugansk's memorandum and articles of association and the Executive Council's decision of 23 January 1996 ratifying the changes were unlawful. It submitted that, contrary to the requirements of the legislation in force and Sovtransavto-Lugansk's memorandum and articles of association, the general meeting on 3 January 1996 had been organised without the participation or agreement of the representatives of Sovtransavto Holding. Moreover, the minutes had not been signed by all the shareholders. On 4 August 1997 the Arbitration Tribunal rejected the applicant company's claim.", "16. On 9 September 1997 the applicant company lodged with the President of the Lugansk Region Arbitration Tribunal an application for revision under the “supervisory review” procedure (заява про перевірку рішення у порядку нагляду) [Note by the Registry. Under the arbitration rules in force prior to 21 June 2001, an application for revision was a remedy that allowed the parties to seek “supervisory review” of a final judgment or order of an arbitration tribunal] of the judgment of 4 August 1997. In a judgment of 14 October 1997, the tribunal's Vice-President refused the application.", "17. On 21 November 1997 the applicant company applied to a bench of the Ukrainian Supreme Arbitration Tribunal seeking revision under the “supervisory review” procedure of the two judgments mentioned above. In a judgment of 6 March 1998 the bench set aside the judgments of 4 August and 14 October 1997 on the ground that the tribunals concerned had not taken sufficient account of the facts of the case and the applicant company's arguments. It remitted the case for reconsideration to the Kiev Region Arbitration Tribunal (which thus became the court of first instance in the case) and asked it to pay special attention to the need for a detailed examination of the facts of the case and the documents produced by the parties.", "18. On 16 January 1998 Sovtransavto-Lugansk's board sent the Ukrainian President a letter asking him to “place the case under his personal control” in order to ensure that “Ukrainian interests [were] safeguarded”. In a letter of 3 February 1998 the President of Ukraine urged the President of the Supreme Arbitration Tribunal to “defend the interests of Ukrainian nationals”.", "19. On 1 February 1998 a general meeting of Sovtransavto-Lugansk's shareholders adopted a revised version of the company's memorandum and articles of association. On 17 February 1998 the Lugansk Executive Council ratified that decision.", "20. In a coded telegram of 6 March 1998 the Chief Executive of the Lugansk Region informed the Ukrainian President that, notwithstanding his resolution of 28 January 1998 calling for the defence of national interests, the Supreme Arbitration Tribunal had set aside the judgments of 4 August and 14 October 1997 and remitted the case for reconsideration, a decision which, in his opinion, constituted a threat to Sovtransavto-Lugansk's ability to carry on its business and adversely affected Ukraine's interests in Russia's favour. He asked the President to intervene in the case immediately in order to defend the interests of the Ukrainian company and of Ukrainian nationals.", "21. Between 10 and 31 March 1998 the Ukrainian Securities Exchange Commission (Державна Комісія з цінних паперів та фондового ринку), a public body responsible for supervising limited companies, investigated the activities of Sovtransavto-Lugansk. On 29 April 1998 it found that the general meeting of shareholders of 3 January 1996 and the decisions subsequently adopted by the company's management had not complied with the legislation in force.", "22. On 19 May 1998 Mr T. (a member of the Ukrainian parliament) urged the President of Ukraine to “defend the interests of Ukrainian nationals”. In a resolution adopted on the same day the President once again drew the President of the Supreme Arbitration Tribunal's attention to the need to protect the State's interests.", "23. On 20 May 1998, during the trial, Mr Kravchuk (the arbitrator appointed by the Kiev Region Arbitration Tribunal) publicly refused to conduct the proceedings on account of the heavy pressure brought to bear by the defendants (Sovtransavto-Lugansk and the Lugansk Executive Council). On 21 May 1998 another arbitrator was appointed.", "24. On 28 May 1998 the President of the Supreme Arbitration Tribunal sent the President of the Kiev Region Arbitration Tribunal a copy of the Ukrainian President's resolution of 19 May 1998 so that it could be taken into account when the applicant company's case was considered.", "25. On 3 June 1998 the applicant company made a further application against Sovtransavto-Lugansk and the Lugansk Executive Council (Case no. 13/10-98) to the Kiev Region Arbitration Tribunal, seeking a declaration that the following decisions were unlawful: firstly, the decisions to increase the share capital and alter the memorandum and articles of association taken by Sovtransavto-Lugansk's managing director on 26 December 1996, 11 August and 20 October 1997; secondly, the ratification of those decisions by the Executive Council on 30 December 1996, 12 August and 18 November 1997; and thirdly, the ratification by the Executive Council on 17 February 1998 of the resolution to alter the memorandum and articles of association adopted by the general meeting of Sovtransavto-Lugansk shareholders on 1 February 1998.", "26. On 9 June 1998 the Kiev Region Arbitration Tribunal adjourned Case no. 13/10-98 until after judgment had been given in Case no. 70/10-98.", "27. By a letter of 17 June 1998 the Vice-President of the Supreme Arbitration Tribunal asked the President of the Kiev Region Arbitration Tribunal to “take the case under his personal control”.", "28. On 23 June 1998 the Kiev Region Arbitration Tribunal tried Case no. 70/10-98 and, after stating in a set formula that neither the decision of 3 January 1996 to alter Sovtransavto-Lugansk's memorandum and articles of association nor the ratification of that decision on 23 January 1996 had been unlawful, refused the applicant company's application.", "29. It then tried, on the same day, Case no. 13/10-98 and, after stating in a set formula that the decisions challenged by the applicant company were lawful, refused its application.", "30. On 2 July 1998 the applicant company lodged with the President of the Kiev Region Arbitration Tribunal two applications for revision under the “supervisory review” procedure of the judgments of 23 June 1998 in Cases nos. 13/10-98 and 70/10-98. It submitted in particular that the defendants had breached Law no. 1576-XII of 19 September 1991, Law no. 533-XII of 7 December 1990 and Government Ordinance no. 276 of 29 April 1994, governing the activities of limited companies and the procedure for ratifying their decisions. It further complained that the proceedings before the first-instance court had not been public.", "31. In two judgments of 12 October 1998 the Vice-President of the Arbitration Tribunal refused the applications, after upholding the findings of the first-instance court.", "32. On 24 November 1998 the applicant company applied to a bench of the Ukrainian Supreme Arbitration Tribunal seeking revision under the “supervisory review” procedure of the judgments concerning it. In two judgments of 12 January 1999 the bench dismissed the appeals relating to Cases nos. 13/10-98 and 70/10-98, reproducing the set formulas used by the first-instance court.", "33. In February 1999 the applicant company asked the Ukrainian Attorney-General's Office to intervene in the arbitration proceedings concerning Cases nos. 13/10-98 and 70/10-98 to verify their lawfulness. It also asked the Supreme Arbitration Tribunal to issue an objection under the “supervisory review” procedure (протест у порядку нагляду) [Note by the Registry. Under the arbitration rules in force prior to 21 June 2001, an objection was a remedy that allowed the Attorney-General's Office or, as the case may be, the President of the Ukrainian Supreme Court or their deputies to seek the annulment of a final judgment or order of an arbitration tribunal] seeking revision of all the judgments in the cases in which it was involved.", "34. In a letter of 26 February 1999 the head of the arbitration proceedings department of the Attorney-General's Office refused the applicant company's application on the ground that in the cases in question the participation of a representative of the State was not necessary.", "35. On 8 June 1999 a general meeting of Sovtransavto-Lugansk's shareholders, organised, according to the applicant company, without its participation, decided to wind the company up.", "36. In April 2000 the President of the Supreme Arbitration Tribunal lodged an objection under the “supervisory review” procedure to the Presidium of that court seeking annulment of all the judgments relating to Cases nos. 13/10-98 and 70/10-98. In a judgment of 21 April 2000 the Presidium of the Supreme Arbitration Tribunal set aside the judgments of 23 June 1998, 12 October 1998 and 12 January 1999 and remitted Cases nos. 13/10-98 and 70/10-98 to the Kiev Region Arbitration Tribunal for reconsideration. In its judgment it held that the arbitration tribunals' judgments had been given without a proper, detailed examination of the facts and the parties' arguments, and that their rulings had been contradictory and premature in that they had not taken into account either the findings of the Ukrainian Securities Exchange Commission, which had revealed that a number of decisions taken by Sovtransavto-Lugansk's board had contravened the provisions of the legislation in force, or the requirements of the legislation governing the ratification of the memorandum and articles of limited companies; moreover, there had been no verification whether Sovtransavto-Lugansk's memorandum and articles of association complied with the legislation in force.", "37. In a letter of 12 May 2000 the President of the Kiev Region Arbitration Tribunal drew the attention of the President of the Supreme Arbitration Tribunal to the fact that “in a judgment of 21 April 2000 the Supreme Arbitration Tribunal [had] set aside the judgments given by the arbitration tribunals two years [before] in Cases nos. 13/10-98 and 70/10‑98” and that “the Kiev Region Arbitration Tribunal [had] already ruled on the matter”. He observed that “certain events concerning the case cast doubt on the guarantee that the Tribunal's judges [would] try the case impartially, a circumstance which [might] entail negative consequences”. He asked the President of the Supreme Arbitration Tribunal to remit Cases nos. 13/10-98 and 70/10-98 to another tribunal with a view to “guaranteeing the objectivity and impartiality of the proceedings”.", "38. In a letter of 25 May 2000 the President of the Supreme Arbitration Tribunal refused the President of the Kiev Region Arbitration Tribunal's request for Cases nos. 13/10-98 and 70/10-98 to be remitted to another court, having noted that the judgment of 21 April 2000 complied with the legislation in force.", "39. On 7 August 2000 the Kiev Region Arbitration Tribunal tried Cases nos. 13/10-98 and 70/10-98. After examining the documents submitted by the applicant company and noting that Sovtransavto-Lugansk had been wound up, it ordered the Lugansk Executive Council to produce the documents concerning the winding-up and the originals of the documents concerning the registration of a limited company, Trans King, that had been set up with Sovtransavto-Lugansk's assets. It adjourned the case until 7 September 2000.", "40. On 7 September 2000 the Kiev Region Arbitration Tribunal, after noting that it was necessary for State Counsel's Office to take part in the proceedings, adjourned the case until 18 October 2000.", "41. On 25 October 2000 the Kiev Region Arbitration Tribunal, noting that it was necessary for the documents relating to Cases nos. 13/10-98 and 70/10-98 to undergo further examination by the Attorney-General's Office, adjourned the case.", "42. In a judgment of 23 April 2001 the Kiev Region Arbitration Tribunal allowed the applicant company's claims in part, in so far as it ordered Trans King, the successor of Sovtransavto-Lugansk, to return to the applicant company part of the assets it had owned at the material time, but refused the applicant company's claim against the Lugansk Executive Council. In particular, the Tribunal held that Sovtransavto-Lugansk's managing director's decisions of 26 December 1996, 11 August 1997 and 20 October 1997 to increase the company's share capital and alter its memorandum and articles of association had been unlawful, as under applicable law such decisions could only be taken by the board. It further held that as a result of those decisions the applicant company's rights in respect of the management of Sovtransavto-Lugansk and control of its assets had been infringed and that the compensation the applicant company had received following the winding-up of Sovtransavto-Lugansk had not been in proportion to the applicant company's shareholding when Sovtransavto-Lugansk's memorandum and articles of association were ratified in January 1996.", "43. By an order of 7 May 2001 the Lugansk court bailiffs' service stayed execution of the judgment of 23 April 2001 because the defendant company had lodged an application with the President of the Kiev Region Arbitration Tribunal seeking revision thereof under the “supervisory review” procedure.", "44. In a judgment of 24 January 2002, following an objection by the Ukrainian Attorney-General's Office and an application under the “supervisory review” procedure by Trans King, the bench of the Kiev Economic Court of Appeal (the appellate court in the instant case following the reform of the judicial system), set aside the order in the Kiev Region Arbitration Tribunal's judgment of 23 April 2001 for the restitution of the applicant company's assets and dismissed all the applicant company's claims.", "45. On 25 February 2002 the applicant company lodged an appeal on points of law with the bench of the Ukraine Supreme Economic Court (as the former Supreme Arbitration Tribunal was now known, following the reform of the judicial system) against the judgment of 24 January 2002.", "46. In an order of 2 April 2002, the bench of the Ukraine Supreme Economic Court dismissed the applicant company's appeal on points of law without examining it on the merits. It found, in particular, that the applicant company had not furnished any evidence that it had paid the court fee due to the Supreme Economic Court for the examination of the appeal on points of law. The Supreme Economic Court reimbursed the applicant company the sum it had paid in respect of the court fee and advised it that it could resubmit its appeal once it had completed that formality.", "47. The applicant company lodged its appeal on points of law afresh. By an order of 26 April 2002, the bench of the Ukraine Supreme Economic Court dismissed the appeal without examining it on the merits, finding, inter alia, that it had been lodged out of time and there had been no application for an extension of time." ]

[ 3, 9 ]

[ "8. The applicant, who was born in 1910, is currently in custody in the Santé Prison in Paris.", "9. From May 1942 to August 1944 the applicant was the secretary-general of the Gironde prefecture under the authority of the prefect, Maurice Sabatier.", "10. After the Liberation, according to figures provided by the applicant, more than 30,000 civil servants who had served under the Occupation were punished and several thousand people were executed, both officially and unofficially.", "11. In an opinion dated 6 December 1944 the Ministry of the Interior's Committee for the Purge of Collaborators (comité d'épuration) proposed that the applicant should retain his post, taking the view that although he had held office under the Vichy regime, he had shown a favourable attitude towards the Resistance. He was therefore allowed to continue serving as head of the private office of Gaston Cusin, the Bordeaux Commissioner of the Republic.", "12. He was appointed to the rank of prefect and posted to Corsica in 1947, then served as Paris Police Commissioner from 1958 to 1966. He was a member of Parliament from 1968 to 1978 and mayor of Saint-Amand-Montrond from 1971 to 1988. He served as chairman of the Finance Committee of the National Assembly from 1972 to 1973 and then as the general rapporteur on the budget until 1978. From 1978 to 1981 he was Minister for the Budget.", "13. On 6 May 1981, between the two rounds of the presidential election, the weekly newspaper Le Canard Enchaîné published the first of a series of articles in which the applicant, who was Minister for the Budget at the time, was criticised for his behaviour during the Second World War.", "14. The applicant asked the Action Committee of the Resistance to appoint a court of honour to assess his conduct under the German occupation. On 15 December 1981, having examined his immediate hierarchical superior, Maurice Sabatier, who said that he assumed “full responsibility for the anti-Jewish repression for which his prefecture was responsible”, the court of honour delivered a verdict in which it formally acknowledged that the applicant had been a member of the Resistance from January 1943 onwards but concluded “that in the very name of the principles which he believed he was defending, and not having been instructed to remain in his post by a competent authority of the Resistance, he should have resigned from his post as secretary-general of Gironde in July 1942”.", "15. On 8 December 1981 a lawyer named Boulanger lodged a criminal complaint against the applicant together with a civil-party application for crimes against humanity, aiding and abetting murder and abuse of official authority in connection with the deportation of eight persons arrested by the French police in Bordeaux and held in Bordeaux and then in Drancy Camp before being deported to Auschwitz and exterminated there. Six other criminal complaints together with civil-party applications relating to seventeen other victims of deportations were lodged in March and April 1982 by another lawyer, Mr Serge Klarsfeld, who is also the chairman of the association “Sons and daughters of France's Jewish deportees”. On 29 July 1982 the Bordeaux public prosecutor's office asked for investigations to be opened in respect of all seven complaints.", "16. On 19 January 1983 the applicant was charged with crimes against humanity by the chief investigating judge at the Bordeaux tribunal de grande instance.", "17. On 22 February 1984 the investigating judge commissioned an expert historical report from three historians. The report was filed on 11 January 1985.", "18. In the meantime, on 23 May 1983, the investigating judge had begun examining witnesses, including Maurice Sabatier, the prefect of Gironde at the material time. However, former Article 681 of the Code of Criminal Procedure [Repealed by the Law of 4 January 1993] provided that where a civil servant or a mayor was likely to be charged with a serious crime (crime) or lesser serious offence (délit) committed in the performance of his duties, the public prosecutor had first to apply to the Criminal Division of the Court of Cassation to designate the court to carry out the investigation.", "19. Since, by Article 171 of the Code of Criminal Procedure, failure to comply with that formal requirement rendered proceedings absolutely null and void, the Court of Cassation in a judgment of 11 February 1987 declared all the steps of the prosecution and investigation carried out after 5 January 1983, including the charging of the applicant, null and void as having been taken by a judge without jurisdiction and designated the Indictment Division of the Bordeaux Court of Appeal to proceed with the investigation.", "20. In a judgment of 4 August 1987 the Indictment Division ordered the joinder of the seven sets of proceedings instituted as a result of the complaints lodged before 5 January 1983 and ordered that the investigation be continued, appointing a judge of the Indictment Division to conduct it. In judgments of 9 November and 8 December 1987 the Indictment Division noted that three fresh criminal complaints had been lodged by associations together with applications to join the pending proceedings as an intervening civil party and ordered that these be added to the file. A complaint by two civil parties in March 1982 gave rise to another judgment designating the competent court delivered by the Criminal Division of the Court of Cassation on 9 December 1987 and a judgment of 28 June 1988 in which the Indictment Division ordered the joinder of those proceedings and confirmed the appointment of the judge to conduct the investigation. On 2 February 1988 the Indictment Division noted that a new complaint had been lodged on 24 July 1987 together with an application to join the pending proceedings as an intervening civil party and ordered that it be added to the file.", "21. In a judgment of 5 January 1988 the Indictment Division dismissed an application by the prosecution for an expert historical report.", "22. On 8 July and 20 October 1988 respectively the applicant and Maurice Sabatier were charged with crimes against humanity. Maurice Sabatier died on 19 April 1989 and the Indictment Division accordingly recorded on 6 February 1990 that the proceedings against him had lapsed.", "23. In February, June, October and December 1988, more associations intervened in the proceedings by means of criminal complaints lodged together with civil-party applications, which were recorded in judgments of the Indictment Division in February, March, June and November 1988 and January 1989.", "24. Another complaint together with a civil-party application was lodged on 18 November 1988 and 3 February 1989 by the association “Sons and daughters of France's Jewish deportees”. It was lodged not only against the applicant and Maurice Sabatier but also against Jean Leguay and René Bousquet, both former senior officials with the rank of prefect under the Vichy regime, and Norbert Techoueyres, who at the material time was the detective superintendent nominated to act on the directions of the public prosecutor. In a judgment of 20 December 1988 the Indictment Division had declared the civil-party application admissible by way of intervention as to the matters of which it had already been properly seised and, as to the remainder, had ordered that the application be forwarded to the Principal Public Prosecutor.", "25. Pursuant to Article 681 of the Code of Criminal Procedure, the complaint gave rise to a fresh application to the Criminal Division of the Court of Cassation, which, in a judgment of 26 April 1989, once again designated the Indictment Division of the Bordeaux Court of Appeal to investigate the new facts, but the complaint was subsequently declared inadmissible because a sum to cover costs had not been paid into court within the specified time.", "26. Norbert Techoueyres and Jean Leguay died on 4 April 1989 and 3 July 1989 respectively, before being charged, and the proceedings against them accordingly lapsed.", "27. The applicant was questioned on four occasions between 31 May and 6 October 1989. On 6 February 1990 the Indictment Division appointed a new judge to continue the investigation.", "28. On 16 May 1990 twenty more criminal complaints together with civil-party applications relating to deportations in 1943 and 1944 not covered by the initial complaints were lodged against the applicant by Mr Boulanger on behalf of several individuals. Three of the civil-party applications were declared admissible and added to the file on 3 July 1990. The other seventeen complaints, which related to new accusations against René Bousquet, among other matters, gave rise to seventeen judgments, delivered by the Criminal Division of the Court of Cassation on 19 December 1990, designating the Indictment Division of the Bordeaux Court of Appeal as the investigating authority. After the complaints had been lodged again on 19 June 1991 and exemption from payment into court of a sum to cover costs had been granted, these complaints were joined to the main investigation proceedings by virtue of judgments of the Bordeaux Indictment Division of 14 April 1992.", "29. In the meantime, on 12 December 1990 and 21 May 1991, another association had lodged an application to join the pending proceedings as an intervening civil party; that application was declared admissible in a judgment of 20 October 1991.", "30. On 19 March 1992 the Principal Public Prosecutor made seventeen applications for a judicial investigation in respect of the applicant and René Bousquet.", "31. On 19 April 1992 René Bousquet was charged with crimes against humanity. He was shot dead outside his home on 8 June 1993 and the proceedings against him accordingly lapsed.", "32. On 22 June 1992 an additional charge of crimes against humanity was brought against the applicant on account of the facts alleged in the complaints of 16 May 1990.", "33. In a judgment of 20 October 1992 the Indictment Division declared admissible a complaint lodged by another association together with an application to join the pending proceedings as an intervening civil party. As some of the other legal persons who had already joined the proceedings had extended their complaints to cover the matters dealt with in the judgments of 14 April 1992, the Indictment Division recorded the filing of three of those complaints in a judgment of 28 June 1993, another in a judgment of 7 June 1994 and two further ones in a judgment of 20 June 1995.", "34. Between June 1992 and July 1995 the investigating judge took evidence from the civil parties (in some thirty-three interviews) and the witnesses (in about thirty-six) and made over thirty journeys to archives to seize evidence.", "35. On 3 May 1994 the Indictment Division dismissed an application by the prosecution for the removal from the case file of the booklet “Civil Servants under the Occupation” (Fonctionnaire sous l'Occupation), which reproduced in extenso the expert historical report set aside by the Court of Cassation on 11 February 1987 and had been published by the applicant's lawyer, Mr Varaut, with a view to exculpating his client in the eyes of the public. The publication in question had been distributed to members of Parliament in 1987 and produced as evidence during libel proceedings brought by the applicant against the magazine Le Nouvel Observateur.", "36. An appeal on points of law was lodged against the Indictment Division's judgment but an application by the prosecution for its appeal on points of law to be declared immediately admissible was dismissed by the President of the Criminal Division of the Court of Cassation on 10 June 1994.", "37. On 28 July 1995, at the end of the investigation, the case file was sent to the Principal Public Prosecutor at the Bordeaux Court of Appeal, who filed his final application on 19 December 1995. In that application, which ran to 185 pages, the Principal Public Prosecutor submitted that the applicant had no case to answer in respect of his involvement in the organisation of the transports of September 1942, November and December 1943 and May 1944, that the prosecution of René Bousquet had lapsed, that the remaining charges should be altered to aiding and abetting abduction and false imprisonment and that the applicant should be committed for trial at the Assize Court for the transports of July, August and October 1942 and January 1944. The Principal Public Prosecutor did not charge the crime of aiding and abetting murder.", "38. On 1 and 5 March 1996 five more associations applied to have their civil-party applications formally noted; that was done in the judgment of 18 September 1996 committing the applicant for trial.", "39. The proceedings in the Indictment Division of the Bordeaux Court of Appeal against the applicant and three other persons on the charge of crimes against humanity following criminal complaints lodged together with civil-party applications by thirty-five individuals and twenty associations ended with a judgment delivered by the Indictment Division on 18 September 1996 in which it committed the applicant for trial at the Assize Court.", "40. It appears from that 169-page judgment that between June 1942 and August 1944 1,560 persons of Jewish origin, including a large number of children, were deported in ten trainloads to Auschwitz Camp, where most of them died, either as the result of inhuman treatment or because they were exterminated. Some of the transports were dispatched after mass arrests among the Jewish population.", "41. The Indictment Division noted, inter alia, that the unlawful arrests and imprisonment ordered by the German authorities had allegedly been carried out with the active assistance of the applicant, who was at the time the secretary-general of the Gironde prefecture and who, by virtue of the extensive powers delegated to him by the regional prefect, had authority not only over the administrative departments of the prefecture but also over the police and gendarmerie, the Mérignac Camp authorities and the departments set up as a result of the war, such as the Jewish Affairs Department. It further noted that the applicant had allegedly been fully aware of the anti-Jewish policy conducted by the Vichy government and that, as soon as he took office, he had apparently been “convinced that the arrest and imprisonment of Jews and their deportation to the East were leading them inescapably to their deaths ..., even though he might have remained unaware of the ... circumstances ... and the technical methods used ...”.", "42. The Indictment Division concluded that the active contribution that the applicant was said to have knowingly made through his personal actions to the commission of criminal acts by units of the SIPO-SD (Sicherheitspolizei-Sicherheitsdienst), an organisation declared criminal by the Nuremberg International Military Tribunal on 1 October 1946, had formed part of a concerted plan carried out on behalf of Nazi Germany, an Axis country pursuing a policy of ideological hegemony. It held that the applicant could not rely on the instructions given on 8 January 1942 by the French authorities in London [Message by Lieutenant Colonel Tissier broadcast by the BBC on 8 January 1942, urging civil servants working in metropolitan France to stay at their posts, to do the work that they were asked to do and to sabotage it only if it was contrary to the interests of the nation and such sabotage could be carried out without risk. It was also recommended that civil servants should act alone and not even confide in their best friends], nor on duress, the requirements of the law, the orders of his hierarchical superiors or the responsibility of his own subordinates to absolve himself of his own responsibility. It also considered that his membership of the Resistance, on which he relied, did not mean that he could not have assisted the acts perpetrated by the Nazis against the Jews.", "43. Consequently, the Indictment Division ordered the applicant's indictment for the offences of aiding and abetting unlawful arrest, false imprisonment, murder and attempted murder amounting to crimes against humanity in respect of four police raids and eight transports of deportees, and committed him for trial at the Gironde Assize Court.", "44. The applicant appealed on points of law against that judgment. He pleaded in particular that the proceedings had been null and void, complaining that they had been unfair primarily because of their excessive length, the result of which had been that documents that would have been in his favour had disappeared and witnesses for the defence had died. He also challenged the Indictment Division's decision to commit him for trial for aiding and abetting crimes against humanity on the ground that, in his opinion, individual complicity in the case of such a crime, which was mainly attributable to an institution or an organisation, presupposed that the individual concerned subscribed to the hegemonic and racial ideology of the criminal institution. The applicant maintained that he had never belonged to the Nazi organisations condemned by the Nuremberg Tribunal and that the acts of which he stood accused had been committed in the performance of his duties as secretary-general of the Gironde Prefecture, an organ of the Vichy State, which in his view did not have a hegemonic ideology with the goal of racial extermination. He submitted that for the purposes of the Nuremberg law, which formed the basis of his prosecution, the German State and the Nazi organisations should be regarded as separate entities from the Vichy State, to which crimes against humanity could not therefore be attributed retrospectively. Consequently, he considered that neither could such crimes be attributed to persons who had performed purely administrative duties in the departments for which he was responsible. He also maintained that, contrary to what the Indictment Division had asserted, the fact that he had belonged to the Resistance was sufficient to rule out his participation in a concerted plan.", "45. On 23 January 1997 the Criminal Division of the Court of Cassation dismissed the appeal on points of law. Noting that it was the first authority before which the complaint that the proceedings had been unfair had been raised, it declared that complaint inadmissible. It further ruled “that the appellant [had] no interest in criticising the reasons given in the judgment for dismissing the complaint of a violation of Article 6 § 1 of the European Convention on Human Rights, seeing that excessive length of criminal proceedings [did] not affect their validity”. The Court of Cassation also considered that there was nothing inadequate or contradictory about the reasons the Indictment Division gave for classifying the offences as aiding and abetting unlawful arrest, false imprisonment and murder or attempted murder, constituting crimes against humanity. It pointed out that indictment divisions had the ultimate authority to assess whether facts amounted to an offence, the role of the Court of Cassation being merely to “verify, supposing the facts to be established, whether their classification [justified] sending the case for trial”. It considered that that had been so in the instant case and that “consequently, the grounds of appeal must be rejected, particularly in so far as they refer[red] to the last paragraph of Article 6 of the Statute of the International Military Tribunal, which [required] neither that a person aiding and abetting crimes against humanity should have subscribed to the policy of ideological hegemony of the principal perpetrators nor that he should have belonged to one of the organisations declared criminal by the Nuremberg Tribunal”.", "46. In an application of 25 July 1997 the Principal Public Prosecutor asked for the applicant to be placed under judicial supervision.", "47. In a judgment of 7 August 1997 the Indictment Division placed the applicant under judicial supervision, with certain obligations. On 18 November 1997 the Criminal Division of the Court of Cassation recorded that the applicant had withdrawn his appeal on points of law against that judgment.", "48. On 7 October 1997 the applicant was taken into custody in Bordeaux Prison, pursuant to the arrest warrant included in the judgment of the Indictment Division committing him for trial.", "49. The trial in the Gironde Assize Court opened on 8 October 1997. The applicant's lawyer immediately applied for his client's release, pleading his extreme old age (87 years) and his poor state of health following a triple heart bypass operation in 1996. The Assize Court ordered an expert medical report, which was delivered to it on 9 October 1997 and from which it appeared that the applicant's state permitted imprisonment but only in a specialist cardiology unit. That very evening, the applicant had to be admitted to hospital for the night.", "50. In a judgment of 10 October 1997, in the light of the expert report, the Assize Court ordered the applicant's release. That decision triggered protests from the civil parties, some of whom threatened to withdraw from the trial, and their protests were given extensive press coverage. The prosecution appealed on points of law against the judgment ordering the applicant's release.", "51. The trial, which was initially expected to last two and a half months, lasted nearly six months (from 8 October 1997 to 2 April 1998). The proceedings were interrupted on a number of occasions, mostly because of the applicant's state of health. During the trial, which had a case file containing over 3,000 folders, 6,300 documents were produced in evidence. There were hearings on 94 days, during which 85 witnesses were heard, 12 hours were given over to the public prosecutor's address, 40 hours to the civil parties' submissions and 20 hours to the defence submissions. The court's deliberations lasted 19 hours.", "52. At the hearing on 9 October 1997, that is on the day following the opening of the trial, the applicant's lawyer filed written submissions in which he argued that the trial should be declared not to satisfy the requirements of a fair hearing, particularly as the excessive length of the proceedings had made it impossible to hear certain witnesses; sought to have the proceedings declared null and void; and sought a ruling that the prosecution was barred. When arguing against the application for the proceedings to be declared null and void, the prosecutor referred in particular to the work carried out by the most recent investigating judges, who had made 164 journeys to consult archives, seized and studied 6,354 documents, taken evidence from 95 witnesses and held 85 interviews with civil parties.", "53. In an interlocutory judgment of 15 October 1997 the Assize Court dismissed the application for the proceedings against the applicant to be halted, on the following grounds:\n“While it is true that many of the defence witnesses have now died or are incapable of travelling, it must be recognised that the same applies to the prosecution witnesses and that from this point of view and in general the parties are on an equal footing.\nThe exceptional length of the proceedings which brought Maurice Papon before the Gironde Assize Court is not excessive when it is considered that the complexity of the case, linked for the most part to the long time that has elapsed since the commission of the offences of which the defendant is accused, the number of those offences, the broad time-span over which they were reported, the age of the witnesses and the fact that they were so scattered, required the investigating judges to carry out a very large number of investigations, which they were often forced to conduct themselves because of the very nature of the facts. Added to these problems were others stemming from the widely dispersed documentary sources and the obstacles sometimes encountered in gaining access to them.\nContrary to what has been alleged, the trial at the Gironde Assize Court is not that of a State or an administrative authority but that of a man entitled to rely on the presumption of innocence – a principle with constitutional status which cannot be impaired in the judges' minds by the media excesses denounced by the defence – a man accused of having personally committed acts which, in the words of the indictment, constituted the serious crime of 'aiding and abetting crimes against humanity'.\nLastly, in reply to the argument put forward by Maurice Papon's defence counsel that the judgment delivered on 23 January 1997 by the Criminal Division of the Court of Cassation was 'in complete contradiction not only with Article 6 of the Nuremberg Statute ... but also with Article 123-1 of the Criminal Code', it should be pointed out that it is not for an assize court to assess whether a decision of the Court of Cassation is in conformity with the applicable rules of law.”", "54. From 23 to 31 October 1997 the proceedings were adjourned because the applicant was hospitalised with bronchitis caused by an infection.", "55. In another interlocutory judgment (of 3 November 1997, not produced) the Assize Court dismissed the applicant's application for it be formally noted in the record that an American historian, who was an expert on the Vichy regime, had in his witness statement of 31 October expounded political and historical ideas not directly connected with the facts of which the applicant was accused. The applicant considered that there had been a violation of the principle that hearings in the Assize Court must be oral, as the person concerned was not a “witness”, not having witnessed any of the offences of which he stood accused.", "56. On 14 November 1997 the applicant's lawyer applied to have the correspondence between the occupying German authorities and the prefecture between 1942 and 1944 admitted in evidence.", "57. From 17 November to 4 December 1997 the trial had to be adjourned once again on account of the applicant's poor state of health, which had been confirmed by a medical report.", "58. When the proceedings resumed on 5 December 1997 the applicant's lawyer filed written submissions in which he applied for further inquiries into the facts to be made with a view to producing in court the whole of the police intendant's archives held by the Gironde archive office instead of the results of selective seizures which did not make it possible to assess exactly what powers had been exercised by the various actors at the prefecture between 1942 and 1944. In a judgment of 11 December 1997 the Assize Court decided to defer its examination of that application.", "59. From 23 December 1997 to 5 January 1998 the trial was adjourned.", "60. On 7 January 1998 the President of the Assize Court authorised the projection of two video recordings of evidence given by two witnesses during the trial of Klaus Barbie in Lyons in 1987, that of the writer André Frossard on the conditions of detention in Montluc Prison in Lyons and that of Yves Jouffa, former Chairman of the Ligue des droits de l'Homme (Human Rights League), on the conditions in Drancy Camp, near Paris.", "61. At the hearing on 26 January 1998, which focused on the transport of 25 November 1943, the applicant was questioned by the public prosecutor, with the President's authorisation and on the basis of the documents in the file, about events preceding that transport, in particular those connected with the organisation of the transport of 2 February 1943, which was mentioned in the judgment whereby the applicant was committed for trial but not in the indictment. The applicant's lawyer immediately filed written submissions seeking to have a formal note of these matters added to the record.", "62. On 28 January 1998 Mr Arno Klarsfeld, one of the civil parties' lawyers, published a press release revealing a distant family tie between the President of the Gironde Assize Court and some of the persons whom the applicant was accused of deporting. He criticised the President for failing to report the fact that the mother and two sisters of his aunt by marriage had been part of the December 1943 transport.", "63. No application for the judge to withdraw was filed, however, either by the civil parties or by the defence, because the Code of Criminal Procedure only provides for that possibility if the judge is a blood relative or a relative by marriage of one of the parties up to the degree of second cousin inclusive, which was not so in the instant case. The President of the Assize Court announced that he could not even remember the name of his uncle's wife, and that his uncle had died when he was a child. He did not consider it necessary to withdraw from the proceedings of his own motion.", "64. On 2 February 1998 the Assize Court took formal note at the applicant's request that the public prosecutor had questioned him on 26 January 1998, with the authorisation of the President of the Court, about events preceding the transport of 25 November 1943 in respect of which the applicant had been indicted in the Indictment Division's judgment and, in particular, about the organisation of the transport of 2 February 1943, which had not been mentioned in the indictment.", "65. In another interlocutory judgment delivered on the same day (not produced), however, it refused to allow an application by some of the civil parties for a formal note to be made in the record that those questions were directly connected with the facts mentioned in the indictment in relation to the applicant's powers. It noted that it was not its task, “if it wished to avoid prejudging the merits of the case and thereby infringing the provisions of Article 316 of the Code of Criminal Procedure, to rule on any direct relationship that might exist between these facts and those referred to in the indictment with regard to Maurice Papon's powers”.", "66. In an interlocutory judgment of 5 March 1998 (not produced) the Assize Court dismissed the applicant's application of 5 December 1997 for further inquiries into the facts to be made with a view to producing the whole of the police intendant's archives in court, on the ground that, in view of the evidence taken at the hearing, the requested measure did not appear necessary for establishing the truth.", "67. On the same day the applicant's lawyer applied to have added to the file a copy of the criminal complaint that he had just lodged against Mr Serge Klarsfeld, the chairman of one of the civil-party associations, on the basis of Article 434-16 of the Criminal Code, which prohibited publication before a final judicial decision of comments intended to exert pressure with a view to swaying a trial court's decision. He criticised Mr Klarsfeld for the content of a number of interviews he had given concerning the revelation of the family tie between some of the victims and the President of the Assize Court, to whom Mr Klarsfeld had imputed bias in the defendant's favour, and impugned the fact that only disciplinary proceedings had been brought by the public prosecutor's office against Mr Klarsfeld's son, who had made the revelation in January 1998.", "68. The proceedings were adjourned from 25 to 30 March 1998, following the death of the applicant's wife.", "69. In a further interlocutory judgment (of 1 April 1998, not produced) the Assize Court dismissed an application by the applicant for a question to be put as to whether he knew of a concerted Nazi plan to exterminate the Jews and whether he was prepared to participate in such a plan, on the ground that such a question was included among those intended to establish whether he was guilty of aiding and abetting crimes against humanity.", "70. It also refused to allow a subsidiary question to be put as to whether the applicant's resignation, which would have curtailed his Resistance activities, would have changed the system for the extermination of Jews in Bordeaux, on the ground that as it was not possible to assert a legal interest, there was no reason to raise the question of his resignation.", "71. On 2 April 1998, in a 123-page judgment delivered after deliberations lasting 19 hours, the Assize Court, replying to 768 questions, found the applicant guilty of aiding and abetting the unlawful arrest and false imprisonment of Jews deported in the transports of July, August, and October 1942 and January 1944, offences that constituted crimes against humanity. He was acquitted of the charges of aiding and abetting murder and attempted murder.", "72. The applicant was sentenced to ten years' imprisonment and stripped of his civil, civic and family rights for ten years. In a judgment of 3 April 1998 (not produced) the Assize Court ruled on the civil claims.", "73. On 3 April 1998 the applicant appealed on points of law against his conviction and on 14 December 1998 he filed further pleadings containing ten grounds of appeal, six of which referred expressly to Article 6 of the Convention.", "74. In a telegram of 8 September 1999 the Principal Public Prosecutor at the Court of Cassation requested that the applicant be notified of his obligation to surrender to custody prior to the hearing in the Court of Cassation scheduled for 21 October 1999. Notice thereof was served on the applicant on 16 September 1999.", "75. On 17 September 1999 the applicant lodged with the Indictment Division of the Bordeaux Court of Appeal an application for exemption from the obligation to surrender to custody, which he withdrew on 27 September 1999, making a fresh application to the Assize Court. On 4 October 1999 the Assize Court ruled that it had no jurisdiction to make such an order. The applicant appealed on points of law. On the same day he again applied to the Indictment Division for exemption from the obligation to surrender to custody. He relied on Article 6 of the Convention, his age (89 years) and his state of health.", "76. In a judgment of 12 October 1999 the Indictment Division first dealt with an application by the applicant for a declaration that Article 583 of the Code of Criminal Procedure should be deemed null and void by virtue of Article 6 § 1 of the Convention. It said:\n“Although the provisions of the ... Convention ... have been incorporated into the French legal system in accordance with Article 55 of the Constitution and although the courts have jurisdiction to determine, in an individual case, whether a statutory provision conforms with the requirements of the Convention, it is still necessary for that provision to serve as the basis on which the case is submitted to them.\nIn the instant case Article 583 of the Code of Criminal Procedure gives the Indictment Division jurisdiction only to deal with a specific matter of judicial administration, namely applications for exemption from the obligation to surrender to custody.\nThe task of enforcing the obligation to surrender to custody lies exclusively with the Court of Cassation, as it alone can decide what consequences shall flow from a failure to surrender to custody. It is therefore the Court of Cassation's task to rule on applications for Article 583 not to be applied to cases submitted to it and, where it has allowed such an application, to decide not to declare that the applicant has forfeited his right of appeal.”", "77. The Indictment Division went on to dismiss the application for exemption from the obligation to surrender to custody, holding that, in view of the length of the sentence imposed, the security provided by the applicant seemed inadequate; that the medical certificate he had produced did not indicate a significant deterioration in his state of health since the expert opinion of October 1997; and that his state of health did not appear to preclude detention in a hospital unit, the arrangements for which were a matter for the prison authorities.", "78. The applicant did not surrender to custody and left France to take refuge in Switzerland. However, the Swiss authorities ordered him to leave Switzerland, on a date not indicated in the case file.", "79. In a judgment of 21 October 1999, after a public hearing during which the applicant's lawyers submitted their observations on his grounds of appeal, the Criminal Division of the Court of Cassation held that the applicant had forfeited his right to appeal against the Assize Court's judgment of 2 April 1998, pursuant to Article 583 of the Code of Criminal Procedure, on the ground that “the appellant, who [had been] sentenced to a term of imprisonment of more than one year, [had] not surrendered to custody and [had] not been exempted from that obligation”.", "80. In two judgments of 20 December 2000 the Court of Cassation dismissed the appeals lodged by the applicant against the judgments delivered by the Assize Court and the Indictment Division on 4 and 12 October 1999 on his applications to be exempted from the obligation to surrender to custody, on the ground that they were devoid of purpose since in the meantime the applicant had forfeited his right to appeal on points of law against his conviction by the Assize Court." ]

[ 3 ]

[ "11. The applicants were born in 1960, 1950 and 1938 and live at Irigny, at Colombes and in Paris respectively.", "12. The applicant was arrested on 15 April 1992 and charged by an investigating judge at Mâcon tribunal de grande instance with using a vehicle registration document that had been obtained illegally and handling a stolen vehicle. He was remanded in custody from 16 April to 18 May 1992. On 31 March 1994 he was committed to stand trial before the Mâcon Criminal Court.", "13. In a judgment of 21 October 1994 the Mâcon Criminal Court dismissed the applicant's application to have the proceedings set aside as defective and, finding him guilty, imposed a suspended sentence of eight months' imprisonment and a fine of 10,000 French francs (FRF). The applicant appealed.", "14. On 2 February 1995 the Dijon Court of Appeal upheld the judgment of the Criminal Court in its entirety. The applicant appealed to the Court of Cassation.", "15. By a judgment of 17 January 1996 the Court of Cassation dismissed the appeal.", "16. On 5 November 1994 the applicant was caught by a speed trap while at the wheel of his vehicle. The gendarmerie reported him for exceeding the speed limit by at least 40 k.p.h., namely by driving at 143 k.p.h. in a 90 k.p.h. speed-limit zone.", "17. On 14 March 1995 the Melle Police Court found him guilty of the offence, and imposed a fine of FRF 1,500 and banned him from driving for twenty-one days.", "18. On 15 December 1995 the Poitiers Court of Appeal upheld the conviction, and increased the fine to FRF 3,000 and the ban to three months.", "19. By a judgment of 6 August 1996 the Criminal Division of the Court of Cassation dismissed the applicant's appeal.", "20. On 11 November 1994 the police reported the applicant for two offences of failing to stop at a red traffic light. He was summoned to appear at the Paris Police Court for a hearing on 8 March 1995.", "21. On 12 April 1995 the Paris Police Court found the applicant guilty of the offences. It imposed two fines of FRF 1,800 each and banned him from driving for one month.", "22. On 27 October 1995 the Paris Court of Appeal upheld the judgment of the Police Court in its entirety. On 2 November 1995 the applicant appealed to the Court of Cassation. He sought communication of the advocate-general's written submissions in order to be able to reply to them, but to no avail.", "23. By a judgment of 10 July 1996 the Court of Cassation dismissed the applicant's appeal." ]

[ 3 ]

[ "8. The applicants are fishermen operating in the coastal region of the Gulf of Bothnia on the basis of leases contracted with the State in 1989 and renewed in 1995 (for a further period ending in 1999) as well as in 2000 (for the period 2000-04).", "9. By virtue of section 116, subsection 3, of the 1982 Fishing Act (kalastuslaki, lag om fiske 286/1982) the Ministry of Agriculture and Forestry may restrict fishing, inter alia, if this is deemed necessary in order to safeguard future fish stocks. Since 1986 the Ministry has imposed such restrictions by issuing decrees. The restrictions have varied to some degree as regards their timing, territorial scope, the fish species in question and the prohibited fishing gear. The restrictions may also extend to private waters.", "10. In 1991 Mr Rahko and others challenged the lawfulness of Decree no. 684/1991 (“the 1991 Decree”), whereby fishing with certain gear had been prohibited, inter alia, in waters leased by him. In its judgment of 14 June 1991 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the merits of the appeal, considering that it lacked jurisdiction to consider the appellants' demands that the decree be revoked and the implementation thereof stayed.", "11. By Decree no. 231/1994, which entered into force on 1 April 1994 (“the 1994 Decree”), the Ministry prohibited salmon fishing with certain gear during certain periods in the main basin of the Baltic Sea, in the Gulf of Bothnia and in the Simojoki River. The restrictions concerned the fishing of salmon between certain latitudes in the open sea and in coastal waters as well as in certain rivers and their estuaries, and extended to the fishing waters which the applicants were leasing from the State. The decree was later repealed and replaced by Decree no. 258/1996 (“the 1996 Decree”). The date of entry into force of the last-mentioned decree (29 April 1996) was specified by Decree no. 262/1996. In so far as the restriction concerned the applicants, it was maintained on substantially similar terms by Decree no. 266/1998, which entered into force on 16 April 1998 (“the 1998 Decree”).", "12. On 25 November 1994, in response to a petition lodged by the applicants and others, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) found no indication that the Ministry of Agriculture and Forestry had, in restricting the salmon fishing in certain waters, acted contrary to, inter alia, the Supreme Administrative Court's decision of 30 May 1980 (see paragraph 25 below) or otherwise incorrectly.", "13. On 21 March 1995 the applicants and the State extended their respective leases up to the end of 1999. In so far as relevant to the present case, the leases referred back to the terms of the 1989 leases.", "14. In a further decision of 26 May 1995, in response to a petition by others, the Ombudsman considered that, in issuing the 1994 Decree, the Ministry had not exceeded the powers which the Fishing Act had conferred upon it. After hearing submissions from the Ministry he concluded that the restrictions set forth in the decree had been justified in order to safeguard the fish stocks. In so far as the petitioners had complained of discriminatory treatment, the Ombudsman noted that the restrictions had differed from area to area in order to take into account the spawning routes of the salmon. He therefore accepted that there had been sufficient justification for the different timing of the prohibition in the respective water areas and for prohibiting different fishing gear in different areas.", "15. Having reviewed the territorial scope of the restrictions, the Ombudsman considered, however, that the Ministry had not sufficiently taken into account the need for equal treatment of fishermen in different areas. He noted that the decree had been based on a report of the Working Group on salmon fishing in the open sea which the Ministry had appointed in 1993 (avomerilohityöryhmä, havslaxarbetsgruppen 1993:15). The Working Group had found certain fishing restrictions necessary so as to enable the salmon to reach the northernmost rivers and thereby to safeguard the fish stocks. It had been of the further opinion that in order to be non-discriminatory in character the restrictions should apply equally to fishing in the open sea and to coastal fishing (within village boundaries) within the whole of the areas located between certain latitudes. The Ombudsman noted that the terms of the decree had differed from the opinion of the Working Group, without any convincing reasons having been given therefor. The resultant differential treatment, without any generally acceptable grounds, of certain water owners and fishermen who had contracted leases, was therefore in violation of section 5 of the Constitution.", "16. On 19 September 1996 the Lapland District for the Economic Development of the Countryside (maaseutuelinkeinopiiri, landsbygds-näringsdistrikt) granted Mr Posti 20,274 Finnish markkas (FIM) (3,405 euros (EUR)) and Mr Rahko FIM 32,464 (EUR 5,460) in compensation for losses suffered as a result of the fishing prohibition imposed by the 1996 Decree. Their average salmon catch per year during the periods in 1990-94 when a fishing prohibition had been in force was estimated at 2,150 kg and 3,848 kg respectively, at the price of FIM 15.93 per kg. The applicants' average catch of whitefish was estimated at 257 kg and 110 kg respectively, at the price of FIM 12.85 per kg. The overall compensation amounts were reduced by 15% in order to accommodate the awards within the funds foreseen in the State budget. An appeal lay to the Appellate Board for Countryside Commerce but the applicants did not avail themselves of that possibility.", "17. On 2 May 2000 the applicants' respective leases were further prolonged until the end of 2004. The leases stipulated, inter alia, that salmon fishing was allowed within the leased areas “in so far as prescribed in the ... decree on salmon fishing or other provisions”." ]

[ 3 ]

[ "9. The applicant was born in 1960 and he lives in Leicester. He is the eldest of three children. He was in voluntary care with the social services' department of the local authority for five periods during his childhood: 8 September – 6 November 1961, 15 February – 20 July 1962, 26 October – 23 December 1962, 4 April 1963 – 4 April 1966 and 16 January – 8 April 1967.", "10. During these periods his mother was receiving periodic psychiatric treatment and his father had some difficulty coping with the children on his own. The applicant had contact with both parents while in care: there was contact each week and weekend during the second period of care, there were visits over every weekend and then fortnightly weekend visits by the end of the fourth (and longest) period, and those fortnightly weekend visits continued during the fifth period of care. It is not known how much parental contact there was during the first and third periods of care.", "11. By letter dated 10 April 1995, the applicant requested access to his social service records. By letters dated 5 and 9 June 1995, he requested specific information including whether he had ever been on the “risk register”, whether his father had been investigated or convicted of crimes against children and about the responsibility of the local authority for abuse he had suffered as a child.", "12. On 13 June 1995 a social worker discussed with the applicant the access procedures and the information sought. On 27 June 1995 that social worker went through background information gleaned from the file with the applicant (concerning the dates and places of care) and provided him with hand-written notes of that information.", "13. On 22 August 1995 the same social worker provided the applicant with further information gleaned from the file in the form of typed notes (covering September 1961 to March 1966). She also discussed certain areas of particular concern to the applicant including the impact of childhood neglect and ill-treatment which he remembered at the hands of his father, his feelings about having had a violent father and his vague suspicions of having been abused while in local authority institutional care. They also discussed the allegations of ill-treatment of the applicant by his father which had been made by neighbours via the school to the local authority in November 1966, and the consequent investigation and decisions made by the local authority. The social worker also provided the applicant with various documents, including letters from his father to the social services between August 1962 and February 1967, social service progress reports dated November 1961 and April 1963, medical treatment permission forms signed by his father between September 1961 and February 1962, child care agreements with his father from September 1961 to April 1963, a medical report card dated January 1967 and a copy of his birth certificate. He was also given a report of a Child Care Officer dated 16 March 1967 (which was prepared for a case conference to be held on 17 March 1967) together with notes of that case conference. The latter report provided further detail of the allegations of ill-treatment in November 1966, of the consequent investigation and of the recommendations of the Child Care Officer.", "14. By letter dated 18 September 1995, the social worker wrote to the applicant with more typed information taken from his file. That note dealt with the period April 1966 – September 1976. It included brief references to the applicant returning home in April 1967, to the family's move in October 1975 and to a supervision order made in respect of the applicant by a juvenile court in August 1976. She also gave the applicant a typed note recording the information which had been given orally to him during their last meeting, which note included further details of the period 1961-1963.", "15. By letter dated 12 June 1996 to the local authority the applicant's legal representatives noted that the applicant had been provided with summary information and certain documents. They requested that he be allowed full access to his file. The local authority responded by letter dated 25 June 1996, pointing out that his social service records had been created prior to the entry into force of the Access to Personal Files Act 1987.", "16. Further to the applicant's queries, the local authority confirmed by letter dated 12 July 1996 that there were no detailed records relating to him after 1967 except an indication of juvenile offending. It also noted that there was little mention of ill-treatment, but it enclosed the above-mentioned report of the Child Care Officer dated 16 March 1967. That letter accepted that the attitude expressed in that report would not have been acceptable in 1996 given the more developed understanding of child abuse matters.", "17. In his letter of 21 January 1997, the applicant stated that memories of abuse suffered by him began to return shortly after March 1995 and that he was now in full possession of his memories, was being counselled and had consulted solicitors about a negligence action against the local authority. He requested specific information about the allegations of ill-treatment made in November 1966 and about his being abused by his father for eight years thereafter. The local authority responded by letter dated 17 February 1997, referring the applicant to the information already provided to him in 1995 and to the differences between social work standards and procedures in 1997 and in the 1960s." ]

[ 4 ]

[ "8. The applicant formerly managed “The Godfather Restaurant” in Newcastle upon Tyne, which was operated by a company of which the applicant was a director. Following an inquiry by the Inland Revenue and Customs and Excise in 1988 into the restaurant and the applicant, the company went into liquidation and ownership of the lease of the restaurant was transferred to a new company controlled by the applicant. However, the restaurant was run by a succession of management companies under short-term management contracts. The various companies were all registered for Value Added Tax (“VAT”) purposes but failed to make any VAT payments or returns to the Customs and Excise authorities. In addition, wages were paid to employees in cash and were not declared to the Inland Revenue. The resulting loss of VAT was assessed at approximately 460,000 pounds sterling (“GBP”) and the accumulated losses in respect of Income Tax and National Insurance contributions were assessed at GBP 360,000. In September 1994 the applicant was declared bankrupt as a result of civil proceedings brought by the Inland Revenue to recover unpaid tax.", "9. On 25 November 1994 the applicant was arrested and on 26 November 1994 charged with various offences of fraudulently evading VAT. He was remanded in custody. His applications for bail on 12 April 1995, 13 June 1995 and 7 December 1995 were refused.", "10. The applicant was granted legal aid on 1 March 1995. The legal aid order covered both the committal hearings and the actual trial. The applicant was represented throughout the proceedings by a Queen's Counsel (“QC”), who was also a Recorder, a very experienced junior counsel and two different firms of solicitors.", "11. On 3 March 1995 the Newcastle upon Tyne Magistrates' Court committed the applicant for trial before the Crown Court at Newcastle.", "12. Preliminary hearings were held on 10 April 1995 and 2 June 1995. At the hearing of 16 June 1995 the applicant was indicted with two others on two counts of being knowingly concerned in the fraudulent evasion of VAT (between 22 May 1989 and 25 July 1994) and of taking steps with a view to the fraudulent evasion of VAT (between 25 July 1994 and 24 November 1994). The applicant pleaded not guilty.", "13. At none of these hearings did either the applicant or his legal team request the provision of an interpreter, nor suggest to the court that the applicant required the services of an interpreter.", "14. At the trial on 4 January 1996, the applicant, on the advice of counsel, changed his plea to guilty. He was also indicted on another count of cheating the public revenue and pleaded guilty to that charge too. The court was informed that the applicant disagreed on the quantum of the sums which formed the basis of the plea with the consequence that further discussion was needed on this matter with the prosecution. Defence counsel informed the court for the first time that the applicant had:\n“considerable difficulty in communicating, save in very simple concepts, in English. Now for the purpose of consultation we can get by, but one of the difficulties is that his English is very poor and his Italian is very Southern”.", "15. Counsel invited the court to direct that an interpreter be present at the subsequent hearing, given that at either a hearing or indeed a plea:\n“... certain complicated matters might well have to be put before the court, and which he should understand as they are being put”.", "16. The court granted this request and adjourned for reports to be written and for the parties to reach agreement on the issue of quantum, after convicting the applicant of all charges.", "17. At the following hearing concerning sentence held on 26 January 1996, the court noted that no professional interpreter was present despite its earlier direction. The applicant's counsel stated that:\n“... it appears that no arrangements have been made, in which case I think that we shall have to make do and mend. It may require an occasional adjournment if something needs to be explained. It has been discussed extensively and obviously already with the [applicant] and, although he may not follow the detail of the proceedings, he certainly knows the outline of what the prosecution will say. I imagine that their case will very much follow the summary, and he knows the burden of what I intend to say.”", "18. The trial judge asked whether anyone in court who knew the applicant was fluent in both English and Italian and could provide interpretation for the applicant. The applicant's counsel, without consulting his client, pointed out that the applicant's brother was present, and the court agreed to make use of him, if need be. The applicant's brother was never requested to translate any statement during the course of the hearing.", "19. The applicant was sentenced to a total of four years' imprisonment and disqualified from being a company director for ten years.", "20. On 14 May 1996 the applicant applied to the Court of Appeal Criminal Division seeking leave to appeal against sentence. In his application, the applicant was represented by the same legal team that had defended him at trial. In a letter to the Court of Appeal, the applicant stated that he had been sentenced on the basis, which was incorrect, that he had pleaded guilty to frauds totalling GBP 800,000 and that the real amount of the fraud was GBP 140,000. The applicant did not maintain in his application that he had been unable to understand the proceedings at the trial or to communicate effectively in court; nor did he allege in his application that he should have been provided with the services of an interpreter.", "21. Leave to appeal was refused by the Single Judge on 3 May 1996 and by the full Court of Appeal on 15 July 1996.", "22. On 2 September 1996 the applicant sought advice from the President of the Law Society on what action to take against his defence lawyers but did not receive any reply.", "23. On 3 September 1996 the applicant wrote to the Home Secretary, admitting that he had not declared GBP 2,000 per week for staff wages due to the recession, and claiming that the real amount of the fraud was GBP 140,000 and not GBP 800,000. He further complained that his counsel had failed to secure him the services of an interpreter at the trial on 26 January 1996 and that this was of “paramount importance” for the purposes of the plea in mitigation. The applicant further observed that his QC had misled the trial court by stating that his brother would be able to act as a translator, when his brother was unable either to speak or write in English.", "24. The Home Secretary forwarded the applicant's case to the Criminal Case Review Commission (“the Commission”). The applicant himself applied to the Commission, claiming inter alia that his lawyers should not have allowed him to plead guilty to the GBP 800,000 fraud, as he had only intended to accept guilt in respect of GBP 140,000. Furthermore, his lawyers had failed to ensure the presence of an interpreter both at conferences in preparation for the trial and in court. He maintained that his brother did not speak English well enough and that he had not understood the charges or the legal process. He complained about his counsel, who, he claimed, did not understand Italian but nevertheless did not insist on an interpreter being present at conferences; renounced the presence of a professional interpreter in court; did not understand the case; told him to plead guilty only at the trial, without explaining the consequences to him in detail and gave the court the wrong information that the applicant had accepted liability in respect of the total amount.", "25. The Commission noted that it had interviewed the applicant via an Italian interpreter and that it was apparent from telephone conversations between the applicant and the Commission that he did not have a very good command of English. The Commission observed that the applicant's solicitor and counsel at trial did not accept that he lacked understanding either of the language or of the nature of the case against him. However, the Commission went on to note, inter alia, that\na)in the course of the proceedings the applicant's solicitor had stated in counsel's brief that the applicant “has a grasp of English but is not very easily understood. At times, he says he wants an interpreter”;\nb)the trial judge had seen fit to order the presence of an interpreter;\nc)on appeal, the applicant's junior counsel had informed the court that the applicant did not have much of a command of English;\nd)the applicant's counsel told the Commission that he would have wanted an interpreter present had there been a trial on the basis of a not guilty plea.", "26. The Commission accepted that the applicant would have been able to understand the generality of the prosecution case but expressed the view that an interpreter ought to have been present when the prosecution case was explained to the applicant by his own representatives, given the complex nature of the evidence. Furthermore, he should have had the benefit of an interpreter when it came to considering the matter of changing his plea to guilty.", "27. The Commission also accepted that the applicant's brother was not an adequate interpreter, but considered that the lack of an interpreter at the trial was “of much less significance than it was at the earlier stage”. Further, the Commission found that too little time had been spent by the applicant's lawyers explaining the case to him.", "28. The Commission concluded that there were grounds for finding that the plea was uninformed in that the applicant had not fully understood the nature of the case to which he was pleading, partly because of his inadequate understanding of the language, and because of the inadequate explanation of the case given to him by his legal representatives.", "29. However, the Commission noted that the Court of Appeal no longer had the power to allow an appeal against conviction if it did not think the conviction was unsafe but was dissatisfied in some way with the trial process, since there was no longer room for the separate notion of an “unsatisfactory” conviction. In the view of the Commission, whilst the applicant's conviction was arguably unsatisfactory, it could not be said to be unsafe. Since the Commission did not consider that there was a real possibility that, if referred to the Court of Appeal, the conviction and sentence would not be upheld, it decided not to make such reference.", "30. In the meantime, the applicant was released from prison on licence on 25 November 1996." ]

[ 3 ]

[ "8. The applicants were employed as waiters at the material time. When the applicants received a tip in cash directly from a customer, the money was placed in a box called a “tronc” and distributed proportionately among the waiters at the end of the week by the “tronc master”.", "9. Initially, tips left by customers which were paid to the restaurant by way of an addition to a sum paid by cheque or credit card were dealt with by removing from the cash register a sum equivalent to the tip paid by cheque or credit card and placing it in the tronc, out of which it would be distributed at the end of the week in the same way as cash tips.", "10. In 1979, following an inspection from the tax authorities, the applicants’ employer was required to treat tips left by cheque or credit card within the “Pay-As-You-Earn” (“PAYE”) system. Under the PAYE system an employer had to ensure that employees’ income tax and national insurance contributions were deducted from the sums paid, and that employers’ national insurance contributions were paid on those sums. In the applicants’ view, the tax authorities in 1979 were simply insisting that as cheque and credit card tips passed through the hands of the employer the latter was responsible for distribution and should be responsible for ensuring that tax and national insurance were properly deducted through PAYE.", "11. Rather than distributing cash sums equivalent to those left by customers on cheque and credit card vouchers, the applicants’ employer included “additional pay” in their weekly pay slip. It would appear that the method of distribution was the same as the method hitherto applied to tronc money.", "12. Although initially opposed, this new system was eventually agreed to by the staff. The first applicant was already a staff member at the time of the introduction of the system. The remaining applicants agreed to the system when they took up employment. The applicants submitted that the staff agreement to the new system was not intended to alter the fact that the gratuities were to be paid in full to employees.", "13. The cheque and credit card gratuities were the subject of deductions by the employer in respect of tax and national insurance contributions. The employer bore the charges of the credit card companies, varying at the time from 3% to 5% on the amount of the gratuities. When a credit card voucher was improperly completed and rejected by a credit card company, the employer wrote off the amount and, it would appear, did not seek to recover any sums distributed to waiters in respect of any gratuity included on the voucher; it does not appear either that the employer sought to recover from the waiters any sums which it did not receive as a result of dishonoured cheques. The applicants highlighted their view that this was not a new practice, but that it applied before 1979.", "14. At the relevant time there was a legal requirement that various categories of workers, including waiting staff like the applicants, be paid a minimum sum as remuneration. This requirement was embodied first in the Wages Councils Act 1979 and then, as from 1 January 1987, in the Wages Act 1986.", "15. The applicants sued their employer for breach of contract and challenged the employer’s right to count the tips included in cheque or credit card payments as part of their statutory minimum remuneration. The applicants’ claim covered the six-year period prior to 6 March 1989 and therefore straddled both of the above-mentioned Acts. In the Government’s view, the issue between the parties was whether the “additional pay” constituted money paid to them by their employer. If the applicants’ claim was upheld, the consequence would have been that their employer had been paying them remuneration less that the statutory minimum over a period of years, in breach of contract, entitling them to substantial damages. The applicants maintained that the dispute centred on whether the “additional pay” constituted money paid to the applicants by their employer or, they emphasised, by their employer in respect of time worked.", "16. On 25 May 1994 a High Court judge, Mr Justice Mance, held on a preliminary point that tips included in cheque and credit card transactions did count against the minimum remuneration requirement. Mr Justice Mance rejected the applicants’ submission that the tips paid in this manner were held in trust for them by the employer. In his judgment, the employer obtained the legal title to a tip paid by credit card or cheque, with the result that it became the employer’s property.", "17. The applicants appealed to the Court of Appeal. By the time of the hearing before the Court of Appeal, the applicants had accepted that property in the cheque and credit card tips passed to their employer and no longer relied on the argument that they were to be considered beneficiaries of money held on trust for them by the employer.", "18. In its judgment of 15 May 1996, the Court of Appeal dismissed the applicants’ appeal.", "19. Lord Justice Staughton observed that it was not disputed that the relevant legislation (the Wages Councils Act 1979 and the Wages Act 1986) embodied the rule that what was paid by the employer and not by any other person counted as remuneration for the purpose of that legislation. For that reason, tips paid in cash to waiters or to the tronc did not count as remuneration. However, he considered that the same reasoning could not apply to tips which were built into payments made by cheque or credit card to their employer since the amounts became the latter’s property. The employer thereafter paid an equivalent amount to the applicants. In his view, tips paid in this manner should count against the minimum remuneration requirement. Lord Justice Staughton rejected the attempts of the applicants’ counsel to interpret the applicable legislation differently. He further rejected counsel’s argument that the applicants had a right to the cheque and credit card tips as money had and received for their use. In Lord Justice Staughton’s opinion, it was decisive that the employer was paying the tips with its own money even if they had been paid by the customers to the employer in the belief that the latter would pass the tips on to the waiters and on the understanding that it would do so.", "20. As to the issue of the customers’ intention when adding the tip to the cheque or credit card payment, Lord Justice Staughton considered:\n“This is relevant ... in deciding whether the money became the property of the employers or the waiters. But it is clear and (in this court) uncontroverted in this case that it became the property of the employers. Beyond that, as it seems to me, the intention of the customers has no part to play. ... ”", "21. Mr Justice Douglas Brown concurred. As to the applicants’ reliance on customer intention, Mr Justice Douglas Brown stated that the intention of the different customers could only be the subject of speculation.", "22. Lord Justice Aldous dissented. As to tips paid by cheque or credit card, Lord Justice Aldous accepted that the amount was paid to the employer and therefore it could not be said that the tip so paid never became the employer’s property. However, in his opinion the intention of the customer was the same when paying a tip by credit card or cheque as when paying by cash and, in either case, the customer had no intention of giving anything to the employer. Lord Justice Aldous stated:\n“It was paid to the employer by the customer as a gratuity with the intention that it should be passed to the staff in the same way as cash payments would be and was accepted upon that basis as was apparent from the way that it was operated. The money added to the slip was taken out of the till and added to the tronc. That being so, I do not believe that tips paid by way of cheque or credit card should be considered ‘remuneration’ when cash tips would not be.”", "23. Lord Justice Aldous further observed that there was no difference in principle between tips paid in cash and tips paid by cheque or credit card. In his opinion, the only difference was that in the latter cases the employer acted as agent for the customer and, when doing so, had to carry out its duties under the relevant tax legislation to ensure that tax was levied on the tips. However, the fact that tax on cheque and credit card tips was deducted under the PAYE system, instead of being paid by the waiters, did not affect the relationship between the customer and the employee and the intention of the customer that his tip would find its way into the hands of the employee rather than enriching the employer’s bank account.", "24. On 14 June 1996 the applicants applied for leave to appeal to the House of Lords. On 28 October 1996 the applicants were informed that the Appeal Committee had provisionally decided that leave to appeal should be given and that the applicants’ employer was invited to submit objections to the applicants’ petition before 11 November 1996. On 4 February 1997 the Appeal Committee referred the matter for an oral hearing before three Law Lords.", "25. On 20 February 1997 the hearing was held. The applicants’ counsel was given the opportunity to speak to the petition for leave and to address the employer’s written objections. The hearing lasted five minutes. On the same day the Appeal Committee refused leave to appeal without giving reasons." ]

[]

[ "8. The first applicant, Mr Patrick Benjamin, was sentenced to life imprisonment for rape in 1983. His tariff period (the minimum period of detention satisfying the requirements of retribution and deterrence) was set at six years and expired in April 1989. His time in prison was characterised by periods of thought disorder, delusions and behavioural problems and the Secretary of State decided that he was in need of care and treatment in a secure hospital. In August 1989, he was made the subject of a transfer direction and a restriction order under, respectively, sections 47 and 49 of the Mental Health Act 1983 (the 1983 Act) and transferred to Broadmoor Special Hospital.", "9. In October 1993, the Secretary of State decided, following consultation with the trial judge and the Lord Chief Justice, that the first applicant should be regarded as a “technical lifer” (that is a person who was suffering from a mental disorder which influenced him to a significant extent at the time of the offence although the court had not made a hospital order on sentencing).", "10. In April 1994, the first applicant was transferred to Bracton Clinic Regional Secure Unit. On 1 July 1996, his case for discharge was considered by the Mental Health Review Tribunal which found that it was not satisfied that the first applicant did not any longer require treatment in a hospital for mental illness.", "11. When his case was reviewed most recently, on 9 January 2001, the MHR Tribunal recommended his discharge. The Secretary of State accepted the recommendation and the first applicant was discharged.", "12. The second applicant, Mr Hueth Wilson, was sentenced to life imprisonment for buggery of a young girl in 1977. The court had before it psychiatric evidence to the effect that he suffered from mental illness. Expert psychiatric evidence recommended that he should be made subject to a hospital order coupled with a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1959. Due to an absence of any beds in hospitals providing the level of security that the trial judge considered necessary, the judge felt unable to make the orders and passed, instead, a discretionary life sentence. The judge commented that the second applicant could later be transferred to hospital if his condition required it. His tariff period was set at eight years and expired in 1984.", "13. In August 1977, the second applicant was transferred to hospital under the Mental Health Act 1959 (later replaced by the 1983 Act). In November 1977, the applicant returned to prison and there were several other transfers to and from hospital in subsequent years. In October 1992, the second applicant was transferred to Rampton Special Hospital under sections 47 and 49 of the 1983 Act. In June 1993, following consultation with the trial judge and the Lord Chief Justice, the Secretary of State decided that the second applicant should be regarded as a “technical lifer”.", "14. On 6 July 1996 the MHR Tribunal considered the second applicant's case for discharge and found that they were not satisfied that he no longer required treatment in hospital for mental illness. His case was reviewed most recently on 13 June 2000 when the Tribunal again did not recommend discharge.", "15. By decisions of the Secretary of State for the Home Department communicated to the applicants in October and November 1992, the Secretary of State refused to certify the applicants as eligible for review by the discretionary lifer panels empowered by section 34 of the Criminal Justice Act 1991 to order their release on licence. Leave to apply for judicial review of the decisions was granted on 17 May 1993.", "16. On 22 October 1993 the High Court, granting the application, made a declaration that the Secretary of State's policy not to certify discretionary life prisoners under paragraph 9 of Schedule 12 to the Criminal Justice Act 1991 (“the 1991 Act”) on the ground that they had been transferred to hospital under the 1983 Act was unlawful ([1994] Q.B. 378).", "17. On appeal, on 19 July 1994, the Court of Appeal reversed the High Court's decision in part. It considered that, although the applicants were existing life prisoners within the meaning of the paragraph 9 of Schedule 12, their discharge nevertheless remained subject to the procedure laid down in section 50 of the 1983 Act. The rights to a hearing under the 1991 Act were conferred only on persons who were solely subject to that Act, and not on those who were mental patients ([1995] Q.B. 43).", "18. The applicants were informed by letter of 18 May 1995 that the House of Lords had refused leave to appeal." ]

[ 2 ]

[ "8. The applicant is a Polish national, born in 1930 and living in Warsaw.", "9. On 2 November 1987 the applicant lodged a motion with the Warsaw District Court, claiming division of conjugal property, consisting, as she claimed, of 42 pieces of movable property. Subsequently, hearings were held on, inter alia, 18 May 1988, 11 January 1989 and 17 February 1989.", "10. In 1990 an expert submitted a report concerning the value of movable property. Apparently, on an unspecified later date, the President of the District Court, following the applicant’s complaints about the lack of progress in the case, ordered that the conduct of the proceedings be supervised by him. On an unspecified date in 1991 the case was transferred to another judge rapporteur. On 1 April 1992 the applicant again complained about the excessive length of the proceedings.", "11. On an unspecified date the defendant claimed that a house in which the applicant lived should be included in the property concerned. On an unspecified date four years after the beginning of the proceedings he submitted certain documents to prove that his family had borne certain costs relating to the construction of the house. On 15 January 1992 a hearing was held and the court ordered that an expert report be prepared to estimate the value of the house. On 9 February 1993 the defendant proposed that a court settlement be concluded. The applicant did not accept the proposed terms. On the whole, 22 hearings were held until 1 May 1993, the date on which Poland’s recognition of the right of individual petition became effective.", "12. In 1993 further hearings were held on 17 August, 16 September, 2 November and 2 December. Later on, the court again appointed an expert with the task of producing an estimate of the value of movable property. The defendant twice failed to make his property accessible to the expert.", "13. In reply to the applicant’s fresh complaint about the excessive length of the proceedings, on 2 July 1994 the President of the Warsaw Regional Court informed her that the case was complex as the property concerned consisted of a substantial number of objects. Moreover, the parties submitted conflicting claims as to whether a certain plot of land constituted a part of this property, and concerning expenditure borne by them. What was more, the parties had repeatedly submitted new requests for evidence to be taken, which the court had allowed. As a result, further hearings had been held on 2 November and 2 December 1993, 11 July and 27 September 1994. Two further expert opinions had been prepared in order to complete the previously submitted opinions, as the lapse of time had rendered the old ones obsolete.", "14. On 2 November 1994 the applicant submitted her further pleadings. On 4 November 1994 a hearing was held. As witness R.S. failed to attend, the court imposed a fine on her and adjourned the hearing for 18 November 1994. On that day, the court lifted the fine as R.S. had informed the court that she was of advanced age and could therefore not come to the court.", "15. On 8 February 1995 the court ordered that enforcement proceedings be instituted against the applicant as she had failed to pay her part of the expert’s fees, despite two summonses to do so.", "16. On 14 March 1995 the court ordered that a new expert, M.S., draw up a further opinion as to the value of movables in order to complement the opinions that had been prepared previously. On 22 March 1995 the defendant submitted his new pleadings.", "17. On 23 March 1995 the applicant again complained about the length of the proceedings. On 19 April 1995 the Deputy President of the Regional Court informed her in reply that the proceedings had indeed lasted for a long time, but there was nothing to suggest that they were not conducted diligently. The new judge rapporteur, who had been appointed in the meantime, had been taking appropriate measures in order to proceed further.", "18. On 17 May 1995 the applicant complained again about the excessive length of the proceedings. Further hearings were held on 22 June and 19 September 1995. On 21 September 1995 the defendant requested that the expert opinion of the expert in construction issues be complemented by indicating the value of certain building materials used for the construction of the house constituting a part of the conjugal property.", "19. On 11 April 1996 the applicant complained once more about the length of the proceedings. In his reply of 23 April 1996, the President of the Regional Court informed her that he had no influence whatsoever in so far as changes of judge rapporteurs caused by their leaving the judiciary were concerned. Judge G., who had been the previous rapporteur, had left the judiciary and indeed, for a certain period his cases had not been assigned to another judge. However, a new rapporteur had been appointed and the next hearing was to be held on 11 June 1996.", "20. In a letter to the President of the Regional Court of 9 May 1996, the Polish Helsinki Committee drew his attention to the fact that the case had remained pending since 1987, which seemed to be in breach of Article 6 § 1 of the Convention, and that the judge rapporteur had been changed four times. As a result, each time the hearings in the case had to be recommenced.", "21. On 28 June 1996 the applicant further requested the court to speed up the proceedings, submitting that she was in a very difficult financial position and that the outcome of the case, if the court found in her favour, could positively affect her situation.", "22. Apparently on 4 October 1996 the applicant again complained about the length of the proceedings. In his reply of 8 November 1996, the President of the Regional Court stated that her complaints were well founded, that the attention of the judge rapporteur had been drawn thereto, and that the case-file would be sent to experts with no delay in order for further questions to be answered.", "23. On 20 November 1996 the applicant drew the court’s attention to the fact that five months had elapsed since the last hearing.", "24. On 27 January 1997 the Regional Court rejected the applicant’s appeal against a decision of 13 December 1996, concerning the expert’s fee. On 5 February 1997 the court in part amended its decision of 6 November 1996 concerning a further expert opinion and changed questions to be put to the expert in construction issues.", "25. On an unspecified later date the Ombudsman requested the Regional Court to explain grounds of a certain further period of inactivity in the case. In a reply of 11 July 1997, the Ombudsman’s office was informed that the judge rapporteur had been on sick leave since April 1997. The applicant’s case, in view of its considerable length to date, would exceptionally be assigned to another judge. The case-file would immediately be sent to one of the three experts called to submit their complementary opinions.", "26. On 4 October 1997 the defendant submitted his pleadings, calling into question the contents and conclusion of the expert opinion prepared by M.S., which had meanwhile been submitted to the court. On 29 October 1997 he submitted further pleadings. On 12 November 1997 a hearing was held. The Regional Court served on the defendant the applicant’s pleadings of 7, 9, 13, 28 and 29 October 1997. The court adjourned the hearing sine die, and ordered the parties to submit a list of movables constituting the property. Expert M.S. refused to prepare a further report, indicating that the parties had not co-operated with him properly.", "27. In a letter of 30 June 1998, in reply to the applicant’s complaint about the length of the proceedings of 24 April 1998, the Ministry of Justice informed her that the length of the proceedings had in part been caused by the attitude of the parties, who repeatedly referred in their pleadings to facts and decisions given in other sets of proceedings, submitted numerous and voluminous pleadings, often having no relation whatsoever to the subject of the proceedings. The case-file counted seven volumes, consisting in a large part of these pleadings.", "28. At a hearing held on 15 June 1998 the court attempted to make the parties conclude a court settlement. They were further ordered to state their positions in a precise manner and the time-limit for doing so was set for 18 August 1998.", "29. In reply of 19 October 1998 to the applicant’s new complaint, the President of the Court of Appeal stated that the fact that the case had not been in part dealt with sufficient speed, was a ground on which it had been taken into the administrative supervision by the President of the District Court. The changes of presiding judges had been caused by reasons which could not be attributed to the court.", "30. A further hearing was held on 16 October 1998 and a number of witnesses were interviewed. On 17 and 28 October 1998 the defendant submitted his further pleadings.", "31. On 8 January 1999 another hearing was held. The court heard five witnesses. Further pleadings of the defendant were submitted on 15 January 1999. The next hearing was held on 13 April 1999.", "32. The hearing scheduled for 23 December 1999 was adjourned as the judge was ill. Subsequent hearings were held on 21 April, 5 July and 25 September 2000.", "33. By a letter of 24 August 2000 the President of the Civil Division of the Warsaw-Centre District Court informed the applicant that her complaints about the lack of progress in the proceedings were ill-founded. The length of proceedings had mostly been caused by measures taken by the parties themselves, the applicant included, in particular by their repeated requests that new evidence be taken and by their submitting voluminous pleadings.", "34. On 26 October 2000 the applicant submitted her pleadings to the court, numbering 21 pages. These were subsequently served on the defendant and he was ordered to take a stand thereon within 21 days.", "35. On 1 December 2000 the court ordered an expert opinion as to the value of the property in question. On 18 April 2001 this opinion was submitted to the court.", "36. The proceedings are pending." ]

[ 3 ]

[ "9. The applicants were born in 1952 and 1956 respectively. They are a married couple and live in Karaman (Turkey).", "10. In 1974, the first applicant moved from Turkey to the Netherlands where he was employed as a dockworker until 24 September 1984, when he stopped working on account of certain mental problems apparently related to his difficulties in coping with the death of his first wife in 1981.", "11. After having received sickness benefits for the maximum period, he was granted combined disability benefits as from 21 September 1985 under the General Labour Disablement Benefits Act (Algemene Arbeids-ongeschiktheidswet; “AAW”) and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering; “WAO”) in a decision of 23 September 1985 and on the basis of a finding of being 80-100% incapacitated for work.", "12. At an unspecified date in 1986, the applicants and their family returned permanently to Turkey, retaining the first applicant's right to AAW/WAO benefits.", "13. In its decision of 3 November 1993, on the basis of medical examinations of the first applicant carried out on 3 August 1993 by an orthopaedic surgeon, and on 4 August 1993 by a social insurance medical specialist and a psychiatrist, the National Institute for Social Insurance (Landelijk instituut sociale verzekeringen; “LISV”) withdrew the first applicant's AAW/WAO benefits as from 14 April 1994, on the basis of a finding that his incapacity for work had diminished to less than 25% for the purposes of the AAW and to less than 15% for the purposes of the WAO.", "14. On 30 November 1993, the first applicant filed an appeal against this decision with the Hague Regional Court (arrondissementsrechtbank). On 23 December 1994, the Regional Court requested the first applicant to submit updated information about his medical condition and the names of the doctors who were treating him.", "15. Following a hearing held on 12 July 1995, the Hague Regional Court rejected this appeal on 16 August 1995. The first applicant filed a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep).", "16. The first applicant's lawyer submitted the written grounds for appeal to the Central Appeals Tribunal on 22 September 1995. On 2 October 1995 the Central Appeals Tribunal confirmed receipt of the appeal and, on 14 November 1995, informed the first applicant's lawyer that, due to its heavy workload, it would take some time before the first applicant's appeal could be heard. The LISV submitted its response to the first applicant's grounds of appeal on 13 December 1995.", "17. On 8 April 1996, the first applicant's case was added to the Central Appeal Tribunal's list of cases awaiting preparation for a hearing. On 12 June 1997, it was submitted to the presiding judge of the relevant section of the Central Appeals Tribunal for entry on the case-list. On 16 October 1997, the parties were informed that a hearing had been scheduled for 26 November 1997.", "18. On 26 November 1997, a hearing was held before the Central Appeals Tribunal. At the beginning of this hearing the first applicant's lawyer, referring to the conclusion reached by the European Commission of Human Rights that there had been a violation of Article 6 § 1 of the Convention on account of the duration of similar proceedings in the case of Düman v. the Netherlands (application no. 18266/91, Commission's report of 5 April 1995, unreported), stated to find it incomprehensible that it should take more than four years before the first applicant's case was examined before the Appeals Tribunal. After having noted the parties' submissions and in accordance with a request of the first applicant's lawyer to this effect, the Tribunal suspended the hearing and ordered a reopening of the investigation into the first applicant's capacity for work, finding that this investigation had been incomplete.", "19. By letters of 10 and 17 February 1998, the President of the Central Appeals Tribunal put a number of questions to the psychiatrist Dr A.K. who had examined the first applicant on 4 August 1993 upon the request of the former Joint Medical Examination Service (Gemeenschappelijke Medische Dienst). Dr A.K. submitted his reply in the form of a report on 5 March 1998. Both the LISV and the first applicant availed themselves of the opportunity to submit comments on this report. The LISV submitted comments on 6 April 1998 and the first applicant on 14 April 1998.", "20. By letter of 13 May 1998, the Central Appeals Tribunal put additional questions to Dr A.K., who replied on 7 July 1998.", "21. On 14 October 1998, the Central Appeals Tribunal informed the parties that a second hearing had been scheduled for 18 November 1998. The first applicant's lawyer filed further written submissions to the Central Appeals Tribunal on 4 November 1998.", "22. On 18 November 1998, a second hearing was held before the Central Appeals Tribunal in the course of which the first applicant complained that, given the duration of the proceedings, the reasonable time requirement under Article 6 § 1 of the Convention had not been respected.", "23. In its decision of 16 December 1998, the Central Appeals Tribunal rejected the first applicant's appeal and upheld the decision of 16 August 1995. It agreed with the LISV and the Regional Court that, as regards the first applicant, there were no somatic limitations such that he should be considered as being unfit to resume his work of dock worker, i.e. the work that he had done before he was declared incapacitated. As to the question whether there were limitations of a psychiatric nature, the Central Appeals Tribunal accepted that the first applicant was suffering from a psychiatric disorder entailing mainly minor limitations in his social functioning. However, given the nature of the first applicant's work, it held that this disorder was not of such nature or gravity that, on that ground, he should be regarded as being unfit for that kind of work.", "24. As to the first applicant's complaint that his rights under Article 6 § 1 of the Convention had been disrespected in that the proceedings before the Central Appeals Tribunal had exceeded a reasonable time, the Central Appeals Tribunal held that a failure to respect the reasonable time requirement under this provision cannot result in granting social security claims that are not in accordance with the applicable statutory rules and that a claim for compensation for alleged damages suffered as a result of a failure to respect this requirement under Article 6 § 1 of the Convention should be filed with the civil judge." ]

[ 3 ]

[ "7. The applicant is the owner of an apartment in Turin, which he had let to F.C.", "8. In a registered letter of 7 June 1991, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date.", "9. On 29 June 1991, he served a notice to quit on the tenant, but he refused to leave.", "10. In a writ served on the tenant on the same day, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Turin Magistrate.", "11. By a decision of 2 October 1991, which was made enforceable on the same day, the Turin Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.", "12. On 23 January 1993, the applicant served notice on the tenant requiring him to vacate the premises.", "13. On 10 December 1992, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.", "14. On 24 February 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 6 April 1993.", "15. Between 6 April 1993 and 16 March 1999, the bailiff made eighteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.", "16. Pursuant to Law 431/98, the period of enforcement of the order was suspended.", "17. On an unspecified date of June 1999, the tenant vacated the premises and the applicant recovered possession of the apartment." ]

[ 3 ]

[ "10. The applicant was born in 1957 and is presently detained at the Krems Stein prison.", "11. On 20 January 1994 the Vienna Public Prosecutor filed a bill of indictment against the applicant charging him with two counts of rape under aggravated circumstances, i.e. having caused serious injuries. The Public Prosecutor submitted that on 16 June 1993 the applicant had raped A.H., had beaten and strangled her, had forced her to swallow drugs and had threatened her with death. On 5 September 1993 he had raped E.P., had beaten and strangled her, had forced her to swallow drugs, had burned her skin with cigarettes and had cut her vagina with a knife causing a deep laceration as well as opening the abdominal cavity.", "12. On 12 April 1994 the Court of Assizes (Geschworenengericht) of the Vienna Regional Court (Landesgericht) convicted the applicant of both offences of aggravated rape and sentenced him to 14 years’ imprisonment. In assessing the penalty, the court considered as mitigating circumstances the applicant’s partial confession regarding the rape of E.P. and, to some extent, that he had acted under the influence of alcohol and drugs. As aggravating circumstances, the court considered the applicant’s criminal record, the fact that he had committed two rapes and the extreme brutality which the applicant had shown when committing the offences.", "13. On 27 June 1994 the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung). In his plea of nullity the applicant complained, inter alia, that the Court of Assizes had failed to hear the requested witnesses from Poland.", "14. On 18 August 1994 the Supreme Court (Oberster Gerichtshof) confirmed the Court of Assize’s judgment as regards the rape of E.P. and quashed the judgment as regards the other charge of rape and the sentence. It found that there had been sufficient information to identify the witnesses from Poland and that the Court of Assizes should have attempted to take this evidence. It remitted the case to that court.", "15. On 19 September 1995 the new trial commenced before the Court of Assizes sitting with another jury and on 14 June 1996 the Court of Assizes convicted the applicant of raping A.H. and sentenced him to 14 years’ imprisonment. When fixing the sentence the court considered as mitigating circumstances the applicant’s confession regarding some of the facts concerning the charge of having raped E.P. and, to a certain extent, his intoxication. As aggravating circumstances it considered the applicant’s criminal record, that he had committed two rapes and his extreme brutality when committing the offences.", "16. On 29 August 1996 the applicant filed a plea of nullity and an appeal against sentence. In his appeal against sentence the applicant submitted that the Court of Assizes had failed to give sufficient weight to the mitigating circumstances, namely his neglected education, his difficult childhood and his intoxication. The applicant did not request to attend the hearings before the Supreme Court or the Vienna Court of Appeal (Oberlandesgericht).", "17. On 8 October 1996 the Supreme Court, sitting in private, rejected as inadmissible the applicant’s plea of nullity.", "18. On 4 December 1996 the Vienna Court of Appeal fixed the hearing date for the applicant’s appeal against the sentence for 18 December 1996. The applicant received a notification which stated that he, being detained, could only appear through his counsel and would not be brought to the court as the conditions of Section 296 § 3 [Section 294 § 5] of the Code of Criminal Procedure (Strafprozeßordnung) were not fulfilled.", "19. On 18 December 1996 the Vienna Court of Appeal, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, dismissed the appeal against the sentence. As regards the weighing of mitigating and aggravating circumstances by the Court of Assizes, the Court of Appeal found that the applicant’s partial confession was merely a contribution to the establishment of the truth (Beitrag zur Wahrheitsfindung) and did not qualify as a mitigating circumstance. Further, there were additional aggravating circumstances such as the particular cruelty which the applicant had used when committing the offences, as well as their concurrent nature (Zusammentreffen strafbarer Handlungen). As regards the circumstances invoked by the applicant, the \nCourt of Appeal found that they could not be taken into consideration as mitigating circumstances. A neglected education and difficult childhood could not be considered as the applicant was now an adult and it could not explain his excessive use of brutality. Also no weight could be given to his intoxication because he should have known about the effects of alcohol on his person, and the experts had stated that it had no bearing on him committing the offences. Furthermore, the applicant’s offences were not a consequence of a mental defect but of frustration and increased aggression and he had not shown any consciousness of his guilt. Thus, there was no reason to reduce the sentence." ]

[]

[ "8. On 14 June 1991 the Hamburg Regional Court convicted the applicant, a German national born in 1966, on charges of receiving stolen goods and theft and sentenced him to two years' imprisonment. The execution of the sentence was suspended on probation for a period of four years.", "9. On 18 March 1993 the Ahrensburg District Court convicted the applicant on charges of negligent drunken driving and negligent driving without licence and imposed a fine. Thereupon, the Hamburg Regional Court decided to prolong by two years the applicant's probationary period.", "10. On 15 September 1995 the Hamburg Prosecutor's Office charged the applicant and two co-accused with several counts of fraud, committed between March 1993 and April 1994.", "11. Moreover, on 28 September 1995 the applicant was issued with a penal order (Strafbefehl) by the Hamburg District Court in the framework of a summary procedure. He was sentenced to a fine of 30 German marks (DEM - approximately 15 Euro) per day for thirty days for an offence of fraud, committed in February 1994 to the detriment of Mr H. Upon the applicant's objection, lodged with the assistance of Mr Klingbeil, main proceedings were instituted before the District Court. On 24 November 1995 these proceedings and the proceedings concerning the charges of September 1995, were joined.", "12. In May 2000 the Hamburg District Court convicted the applicant of fraud and sentenced him to ten months' imprisonment. The proceedings concerning the charge of fraud to the detriment of Mr H. were provisionally stayed pursuant to section 154 (2) of the Code of Criminal Procedure as it appeared unnecessary to sanction the offence in question separately, the applicant having been sentenced to ten months' imprisonment in respect of the other fraud offences.", "13. On 21 December 1995 the Kiel District Court issued a penal order against the applicant, convicting him of fraud, committed in August 1994. He was sentenced to a fine of DEM 20 per day for fifty days.", "14. When the postman found nobody at the applicant's home, the order was served in accordance with the relevant legal provisions, by way of a notification in his letter-box on 10 January 1996 to collect the said decision deposited at the local post office in his absence. Since the applicant did not lodge an objection in time, the penal order acquired legal force as the final judgment in the matter on 25 January 1995. On 11 October 1996 the Rendsburg District Court granted the applicant's request for retrial.", "15. On 2 April 1996 the Hamburg Regional Court informed the applicant of its intention to revoke the suspension of his sentence of 1991 and invited him to comment within a period of one week after service of the letter. Due to the applicant's absence from home, the letter was served by way of a notification in his letter-box on 6 April 1996 to collect the said letter at the local post office.", "16. On 18 April 1996 the Hamburg Regional Court revoked the suspension of the applicant's sentence to two years' imprisonment, imposed on 14 June 1991.", "17. In the reasons given for its decision, the Regional Court, referring to section 56f (1)(1) of the Penal Code, found that the applicant had committed criminal offences during the period of probation and had thereby shown that he did not fulfil the expectations upon which the suspension of the sentence was based.", "18. The Regional Court noted that, subsequent to the said suspension, the applicant had been convicted of further criminal offences and that these convictions had become final. Thus he had been convicted of traffic offences by the Ahrensburg District Court on 18 March 1993 and of fraud by the Kiel District Court on 21 December 1995. The court considered that in particular the applicant's conviction of another offence relating to property had shown that he did not fulfil the expectations upon which the suspension of his sentence was based. Taking into account that the period of suspension had already once been prolonged, other, more lenient measures than revoking the suspension were not possible.", "19. Due to the applicant's absence, the order was also served by way of a notification in his letter-box on 23 April 1996 to collect the decision of 18 April 1996 deposited at the local post.", "20. On 17 May 1996 the applicant, assisted by Mr Klingbeil, submitted an application for the reinstatement of the proceedings against the decision of 18 April 1996 and lodged an appeal against the said decision.", "21. By letter of 15 August 1996 the Hamburg Court of Appeal informed the applicant's counsel that, considering the Public Prosecutor's decision to stay the execution of the sentence (Vollstreckungsaufschub) until 4 August 1996, it would await the outcome of the proceedings before the Kiel District Court regarding his request for reinstatement.", "22. On 22 August 1996 the Court of Appeal decided to grant the applicant's request for reinstatement and adjourned the appeal proceedings to await the final outcome of the Kiel proceedings relating to his request for reinstatement. The Court of Appeal considered that the question whether or not the applicant had committed a further offence of fraud was decisive for its decision on revoking his suspension. It noted that this request had been unsuccessful at first instance, but appeal proceedings were pending. The Court of Appeal dismissed the applicant's request to await the outcome of the proceedings relating to his request for retrial.", "23. On 24 September 1996 the Court of Appeal informed the applicant that, following deliberations, the case remained adjourned to await the outcome of the Kiel proceedings for reinstatement.", "24. On 14 October 1996 a hearing took place before the Court of Appeal, which heard the statements made by Mr H. and the further witness, police officer B., in the presence of the applicant's counsel. The applicant, waiting outside the court building, did not attend the hearing in order not to be seen in case of a confrontation with Mr H., as suggested by his counsel.", "25. Following the hearing, the Court of Appeal dismissed the applicant's appeal against the decision of 21 December 1995 on the ground that the reasons given in that decision were correct in their conclusion.", "26. According to the Court of Appeal, the applicant “had not fulfilled the expectations upon which the suspension of his sentence ... was based, as he committed new offences during the period of suspension” (“hat die Erwartungen, die der ... Strafaussetzung zugrunde lagen, nicht erfüllt, weil er in der Bewährungszeit neue Straftaten begangen hat”).", "27. In its reasoning, the Court of Appeal noted the applicant's final conviction by the Ahrensburg District Court on 18 March 1993.", "28. As regards the penal order issued by the Kiel District Court on 21 December 1995, it considered that the applicant's pending request for retrial might result in the hearing of numerous witnesses. As the prolonged period of suspension had already expired four months ago, the Court of Appeal found that it could not await the outcome of these proceedings.", "29. The Court of Appeal turned next to the proceedings pending before the Hamburg District Court. It noted that, following the applicant's successful appeal against the penal order of 28 September 1995, the District Court had joined these and further criminal proceedings involving the applicant and two other accused and relating to several charges of fraud. In the latter proceedings, trial proceedings had not yet been opened on account of difficult investigations. The Court of Appeal stated that it would not await the outcome of these proceedings either. Rather, it opted for a procedure under section 308 of the Code of Criminal Procedure to examine the question whether or not, in addition to the conviction by the Ahrensburg District Court of 1993, the applicant's criminal offence to the detriment of Mr. H. could constitute a reason for revoking the suspension of his sentence.", "30. The Court of Appeal considered that, having questioned Mr. H. and a further witness, the police officer B., in presence of the applicant's defence counsel, “it had been able to obtain certainty that the applicant was guilty of fraud to the detriment of witness ... [H.] (section 263 of the Penal Code)” (“hat dem Senat ... die Gewissheit verschafft, dass sich der Beschwerdeführer gegenüber dem Zeugen ... [H.] des Betruges schuldig gemacht hat (§ 263 StGB)”).", "31. In this respect, the Court of Appeal took note of both witnesses' indications as to the circumstances of the offence in question as well as to the criminal information laid by the victim H. and the subsequent investigations. Thus, the Court of Appeal found that the applicant had offered H. a mobile phone and a video camera at a low price. When the transaction was to be carried out some time later at a parking place on the motorway, the applicant had taken H.'s money and disappeared without handing over the promised goods. While H. had not identified the applicant on police photographs shown to him at the police department the day after the offence, he did recognise him in a collection of police photographs which had been presented to him by the police officer B. The Court of Appeal considered that both witnesses' statements were true. The court argued that H. had openly talked about his bad conscience regarding the low price of the two objects and he had also admitted that, because he was ashamed, he had not told the truth as to the circumstances of the applicant's disappearance on the occasion of his questioning by the police. Moreover, police officer B. had remembered many details and had also explained an amendment to the minutes of H.'s questioning.", "32. Furthermore, the Court of Appeal indicated that it had inspected the files of the proceedings pending before the Hamburg District Court inasmuch as the collection of police photographs was concerned. The Court of Appeal noted that, when the scene of identifying the applicant had been re-enacted, the witness H., following an initial hesitation as to a photograph showing another person, had clearly recognised the photograph showing the applicant. In these circumstances, the Court of Appeal considered not necessary to re-enact the consultation of police photographs, which had been taken place at the police department one day after the offence.", "33. The Court of Appeal did not take up the suggestion of the applicant's counsel for an open confrontation between the witness H. and several persons, including the applicant. It considered that so much time had elapsed since the offence that the applicant's appearance could have considerably changed. Furthermore, it had not been sure whether the applicant would have participated in such a confrontation. In this situation, it rather relied on the memory of the witness H.", "34. The Court of Appeal concluded that the strict conditions were met for considering an offence, prior to final conviction, as a reason for revoking a suspension. In cases as the present one, awaiting the final conviction would, on account of the considerable possibilities of delay, lead to the unbearable result that criminal offenders could commit further offences during the probationary period without any risk of suffering disadvantages.", "35. According to the Court of Appeal, the applicant's conviction by the Ahrensburg District Court and his criminal offence against H. had shown that, contrary to the initial prognosis, the applicant was not able to live a law-abiding life. While the conviction by the Ahrensburg District Court merely disclosed a general lack of reliability and could not, taken alone, justify revoking the suspension, the applicant had proceeded in the case H. in a way similar to that followed for the offence underlying his 1991 conviction. Accordingly, the suspended prison sentences had had no impact on the applicant. More lenient measures could not therefore be envisaged.", "37. On 22 January 1997 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.", "38. Subsequently, the Pardon Division at the Hamburg Court of Appeal suspended the execution of the sentence pending the proceedings before the Court." ]

[ 3 ]

[ "7. The applicant is the owner of an apartment in Turin, which he had let to G.C.", "8. In a writ of 7 November 1991, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991, and asked him to vacate the premises by that date. He summoned him to appear before the Turin Magistrate on 29 November 1991.", "9. By a decision of 22 January 1992, which was made enforceable on the same day, the Turin Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 22 January 1993.", "10. On 24 December 1992, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.", "11. On 13 January 1993, the applicant served notice on the tenant requiring him to vacate the premises.", "12. On 2 February 1993 he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 9 March 1993.", "13. Between 9 March 1993 and 23 July 1998, the bailiff made fifteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.", "14. On an unspecified day of July 1998, the applicant recovered possession of the apartment." ]

[ 3 ]

[ "7. On 3 January 1997 the applicant and a co-defendant, M., were convicted of the robbery, false imprisonment and attempted murder of Mr Mohamed Mohamoud. The applicant was sentenced to fifteen years’ imprisonment. A third co-defendant, W., was convicted of robbery and false imprisonment.", "8. According to the prosecution’s case, on 3 January 1996 Mr Mohamoud, who had spent some of the day selling Khat (a stimulant leaf), picked up W., a prostitute, and arranged to go to her home for sex. W. lived in a fourth-floor council flat which was also occupied by M. When they arrived there were three men, a woman and two teenagers in the flat. Mr Mohamoud was held by the applicant and searched at knife-point by M. who took thirty to forty pounds in cash from him and then left to buy drugs. M. later returned with a quantity of crack cocaine which the occupants of the flat, but not Mr Mohamoud, smoked.", "9. Mr Mohamoud was then searched a second time by the applicant and W. and a further sum of money was taken from him. He was prevented all this time from leaving the flat by the applicant.", "10. At some stage M.’s mood changed under the effects of the drugs and he became angry. M., together with the applicant and an unidentified woman, lifted Mr Mohamoud up and threw him out of the window. He fell four floors. He survived, although he was left paralysed from the waist down. The occupants of the flat made no attempt to call an ambulance. He managed to attract attention by throwing stones at the window of a ground-floor flat. An ambulance eventually arrived to take him to hospital.", "11. M. was arrested on 13 January 1996, the applicant on 24 January and W. on 26 January.", "12. The applicant was cautioned by the police in the following terms:\n“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”", "13. The applicant then told the police:\n“I’m relieved. I’ve expected this every time I’ve been to the shops.”", "14. When being taken to the police station he further stated:\n“He wasn’t pushed. He jumped. How is he?” and “I can tell you everything, he jumped.”", "15. The applicant was advised to wait until he was interviewed at the police station.", "16. At the start of the interview on 24 January 1996 the applicant’s solicitor informed the police that he had had a lengthy private conversation with his client and had advised him not to reply to any questions at the present time. His reasons were based on what he had been told about the allegations and his view that it would not be reasonable for the applicant to answer questions at that stage. He informed the police that the applicant would be willing to take part in an identification procedure.", "17. The applicant was reminded by the police that he was under caution and he confirmed that he understood the implications of the caution. Thereafter, the applicant answered “no comment” to each question and in particular did so when asked whether he was present at the flat at the time of the offences, whether he knew Mr Mohamoud, whether the latter was thrown out of the window and whether he would like to offer any account of the events in question. The applicant points out that the police never put to him his remark “He wasn’t pushed-he jumped” (see paragraph 14 above). The applicant submits that this statement was at the core of his defence and should have been referred to during interview.", "18. At the end of the interview the applicant was reminded of the terms of the caution.", "19. On 31 May 1996 Mr Mohamoud identified the applicant and the other co-accused in a videotape identification procedure conducted at the hospital where he was being treated.", "20. On 17 September 1996 the applicant was again interviewed by the police in the presence of his solicitor and under caution. On that occasion he admitted being in the occasional presence of Mr Mohamoud at the flat and being in the flat on the night of 3-4 January 1996. The applicant denied being in the room when Mr Mohamoud fell from the window and repeated that Mr Mohamoud had not been pushed out. He stated that Mr Mohamoud had not been threatened and that “he was sitting there quite happy”. The applicant declared that he had been told by W. that Mr Mohamoud had “gone out the window”. He had not believed this and looked out to check. He saw Mr Mohamoud lying on the ground below. He did not go to help him because he was “scared” and thought he was dead. The applicant admitted that on the day(s) in question he was the only person in the flat who fitted the very distinctive features in the description given by Mr Mohamoud of his attackers.", "21. At his trial the applicant testified that he had seen Mr Mohamoud drinking beer in the flat and spoke to him briefly on one occasion. He learnt of the incident from W. who informed him that “he’s gone out of the window”. The applicant thought she was joking. He went into the living room, looked out of the window and saw Mr Mohamoud lying on the ground below. W. then told him that Mr Mohamoud had jumped out of the window. He watched the police and ambulance arrive from a neighbouring flat.", "22. When asked during his evidence why he had not answered some or all of the questions put to him during the police interview the applicant replied that he had done so on the advice of his solicitor.", "23. During the course of the applicant’s evidence, and without seeking the views of the applicant’s counsel in the absence of the jury, the trial judge asked the applicant if he was prepared to testify as to what he had told his solicitor prior to the first interview during the lengthy consultation. His counsel stated that since the question had been asked in the presence of the jury he would not object to the question being put to the applicant. The applicant then stated that he too had no objection to answering the question. The matter was not thereafter pursued by the prosecution or the trial judge.", "24. In his summing up to the jury the trial judge, with reference to section 34 of the Criminal Justice and Public Order Act 1994, directed the jury in the following terms:\n“... you may draw such inferences as seem to you to be fair and proper from that failure of [his] to mention [the points identified in his interview relating to his presence in the flat on that evening]. You could, for instance, infer that the [applicant and W.] have fabricated their evidence, made it up, after those first interviews. You could infer that they were indeed biding their time and seeing whether or not they would be identified. That failure to mention the sort of things or give answers to the sort of questions that I have listed, as [the applicant] failed, cannot of itself prove guilt. So, of course, if you were not sure of [Mr Mohamoud’s] identifications of any of these defendants, that would be the end of the case even if you thought they were behaving in the way I have just described over their first interviews. But although they cannot of themselves, those failures, prove guilt, you may hold that failure against them in deciding whether he is guilty. You don’t have to. It is for you to decide.\n[The applicant] told you that his reason for not answering some of the questions was that he had received advice from his solicitor that he should make no comment ... Of course, we have – you have – no independent evidence of what was said by the solicitor, but if simply saying ‘Oh my solicitor advised me not to answer questions’ was by itself a good and final answer, any competent solicitor and a defendant would have the power to strangle at birth any interview and that would make, you may think, a mockery of the Act of Parliament which allows a jury, if they think it is right and proper, to make an adverse inference and that could not have been Parliament’s intention. The fact is that it is [the applicant’s] choice ... whether or not to accept [his] solicitor’s advice or not, and any solicitor worthy of his or her name should have included in the advice the various pros and cons of saying no comment and in particular should have included the possibility, even the probability, that his or her defence could be harmed if they failed to mention facts that they could so easily do and that if they did not mention them, why then an adverse inference could be drawn. But as I say, you have no independent evidence as to what the solicitor said or did not say. \nBut whether or not the solicitors said that, the officers certainly did. They [administered the caution] more than once ... .\n \nSo it is for each defendant ... to decide whether to answer or not. You decide what you make of the reasons given for not answering. If you thought that the reason given was a good one, then of course you could not hold it against them. If you thought that they were failing to answer certain awkward questions because, for example, they were keeping their powder dry, as it were, hoping against hope they would not be identified and the other reasons I mentioned a moment ago, or because they had not yet worked out what their defence was going to be, you could draw the inference that I have mentioned and, if you did, that might point towards guilt, but it is you who decide whether it is fair and proper to draw those adverse inferences.”", "25. At the request of the applicant’s counsel the trial judge gave the following further direction to the jury:\n“When dealing with the [applicant’s] first [interview] when [he] failed to answer questions. I did not specifically remind you, though you have heard it any number of times, that the defendants were cautioned that they do not have to say anything. That is of course the position, they do not have to say anything, but the inferences I suggested that you can draw nevertheless remain if you think they have not mentioned things that they could reasonably have been expected to mention and if you think it is fair to take the inferences of the sort I have mentioned, but there is that right to silence.”", "26. On 23 May 1997 the applicant was convicted of robbery, false imprisonment and attempted murder and sentenced to a total of fifteen years’ imprisonment.", "27. The applicant and his co-accused appealed against conviction to the Court of Appeal. The applicant relied, inter alia, on the ground that the trial judge misdirected the jury on the proper inferences to be drawn under section 34(2) of the Criminal Justice and Public Order Act 1994 from the exercise of his right of silence at the police interview.", "28. On 7 May 1998 the Court of Appeal in a reserved judgment and following a hearing dismissed the appeal. Lord Justice Henry stated in his judgment, with reference to section 34 of the Criminal Justice and Public Order Act 1994, that it could not have been the intention of Parliament to provide that the only adverse inference that could be drawn from failure to disclose facts was recent fabrication. He quoted with approval the judgment of Lord Justice Rose in the case of R. v Roble (judgment of 21 January 1997, unreported).\n“The purpose of the statutory provisions is to permit adverse inferences to be drawn where there has been late fabrication, to this extent, to encourage speedy disclosure of a genuine defence. If a defendant disclosed to his solicitor, prior to a police interview, charging or trial, information capable of giving rise to a defence, it will always be open to the defence to lead evidence of this to rebut any inference of subsequent fabrication. But if such evidence was not disclosed or was not disclosed at a late stage in the sequence of interview, charge and trial, adverse inferences can be drawn by the jury.”", "29. Lord Justice Henry added:\n“Thus the statutory objective designed to discourage surprise and “trial by ambush” is achieved. If the applicant was right in submitting that the only adverse inference that could be drawn was subsequent fabrication, the only purpose of the legislation (to encourage speedy disclosure of genuine defences) would be easily defeated. But in our judgment that is not the case...\nThe complaint made ... is that under the Act a ‘proper inference’ is one relevant to ‘in determining whether the accused is guilty’, and not simply adverse to a Defendant. We agree with the first proposition contained in that sentence, but not with the second. As section 34(2)(d) [of the 1994 Act] makes clear, the jury may make such inferences as they think proper in their task of considering their verdict. Clearly such inferences must be properly drawn, that is to say drawn from facts relevant to the verdict. The inferences that are complained of are not simply ‘adverse’... When it is proper to take them into account the Judge rightly reminded the jury that they could draw the adverse inference that [the applicant] was biding his time and seeing whether or not he would be identified, and it was for the jury to decide whether or not ‘to hold that failure against [him] in deciding whether [he was] guilty’.”", "30. With respect to the applicant’s argument that the trial judge should not have intervened to request the applicant whether he wished to relate what he had said to his solicitor before the first police interview, Lord Justice Henry considered that this intervention was improper and an invitation to the applicant to waive legal professional privilege. However he concluded that, in the circumstances, the applicant had not been prejudiced as a result of the intervention.", "31. On 2 June 1998 the Court of Appeal refused to certify that that the case raised a point of public importance and refused leave to appeal to the House of Lords." ]

[ 3 ]

[ "9. The applicants, D.P. and J.C., who are sister and brother, are United Kingdom nationals, born in 1964 and 1967 and living in London and Nottingham, respectively.", "10. The applicants’ mother married the applicants’ father in 1964. The first applicant was born on 26 November 1964. Three more sisters were born, T., A. and J. The second applicant, who was J.’s twin, was born on 1 November 1967.", "11. The social services of the local authority, Nottingham County Council, were involved with the family from 1967 concerning problems largely connected to severe financial difficulties. In January 1968, the applicants’ mother was sent on “a holiday for tired mothers” and the second applicant and his twin were placed in care for seven months. From July 1967, practical and financial assistance was provided to the family. In June 1968, they were provided with a council house. In 1969, there were indications that the applicants’ father was beating their mother. Allegations later emerged that the father had inflicted physical abuse on the children during this period.", "12. In 1970, both parents were committed to prison for six months for electricity meter offences. The first applicant and T. stayed with their maternal grandmother, while the second applicant and two sisters were taken into voluntary care. A. was discharged to the mother’s care on her release from prison.", "13. On 20 July 1971, in matrimonial proceedings, the mother was given custody of the applicants and their siblings. The court ordered that the first applicant, T. and A. be subject to the supervision of the local authority under matrimonial supervision orders, pursuant to section 2(1)(f)ii of the Matrimonial Proceedings (Magistrates Court) Act 1960. As the second applicant and J. were still in the voluntary care of the local authority, they were not made subject to supervision orders.", "14. The second applicant and J. remained in voluntary care until 19 November 1971 when reunited with their mother. Social services carried out frequent visits to the family thereafter.", "15. On 5 January 1972, the mother gave birth to a son M. from a brief relationship.", "16. While one medical report noted that the second applicant had suffered from a soiling problem from a very young age and that it had become daily after the birth of M., the social services records gave attention to this problem from 30 April 1973.", "17. On 11 February 1974, in the parents’ divorce proceedings, the matrimonial supervision order was varied to include the second applicant and J.", "18. According to the applicants, the relationship between the mother and N.C. began in February-March 1974, though he had been acting as a babysitter for the mother for some time previously. N.C. was five years younger than the mother, who was about 28 years old at this time. They were married in September 1974. Social service records noted that the general standards in the home improved following N.C.’s arrival and that the children seemed to be accepting him as a substitute father. Positive comment was made on N.C. adjusting well to the role of husband and father, and that the mother was benefiting from his support in finding more time for the children. It was observed that the second applicant was very wary of N.C. and that his soiling problems were continuing.", "19. In 1975, the social services involvement centred on the family’s financial difficulties and the second applicant’s soiling. He was admitted twice to hospital as an in-patient in that connection in 1975 and 1976.", "20. During the period from 2 January 1975 to 28 August 1975, there were 46 visits from the relevant social worker. It was noted that N.C. had been supportive of the mother during her pregnancy and had strengthened his relationship with the children and their trust in him. M. was perceived as benefiting from his stabilising influence and J. had grown to rely on him. A. and the first applicant were noted as showing some resentment of N.C. as a permanent authority figure. The first applicant was seen however as having become more lively, with fewer illnesses and learning to trust N.C. The second applicant, alone among the children, had shown no physical improvement, was suffering teasing and taunting at home and at school, and continued to be wary and jealous of N.C. These perceptions were confirmed by different social workers, education officers and health workers.", "21. It was noted that the second applicant had stopped soiling during a three-month stay in hospital. When he returned home in about November 1975, the soiling recommenced. The social worker discussed this with the mother and N.C. and considered that it was probably linked to the stress within the home. N.C. was facing charges of arson and there were fears that he would be sent to prison. In January 1976, following discussions at the school, the social worker noted that the second applicant was not soiling himself regularly at school, but rather on the way home from school.", "22. On 16 June 1976, the social worker noted, following an arranged holiday:\n“I was able to inform [N.C. and their mother] of the girls’ excellent behaviour on holiday. This obviously pleased the couple who, despite all their faults, care greatly for their children... N.C. is such a caring figure in this house. I feel a child of his own will some how repay his devotion to his stepchildren.”", "23. In mid-1976 N.C. was convicted of arson and sentenced to 9 months’ imprisonment. The social worker observed that the children were extremely upset at his imprisonment. At a multi-disciplinary meeting concerning the second applicant on 23 September 1976, his problems were considered by a team including teachers, psychiatrists, health workers and hospital staff. The notes indicated that no direct cause of the second applicant’s problems was identified and that his mother was considered to be “less caring” than she should be.", "24. N.C. returned to the family in December 1976, at about the same time that the second applicant returned from a period in hospital. A new social worker attached to the family commented favourably on N.C.’s conduct, witnessing him cooking a meal for the children and making coffee for everyone.", "25. The second applicant continued to receive out-patient treatment from the health service and had monthly psychiatric treatment. The detailed records which exist show no mention or suspicion of child abuse. The soiling had again stopped during his stay in hospital in 1976. It started again when he was at home.", "26. On 29 September 1977 S., the daughter of N.C. and the mother, was born (the mother had suffered a series of miscarriages before this birth). Financial difficulties continued for the family, which social services sought to resolve. They continued to monitor the well-being of the children. Particular consideration was given to the second applicant’s continued soiling, though in December 1977 it was observed to have become more infrequent. On 10 November 1977, it was recorded that the second applicant was being bathed by N.C. as he was very averse to washing himself properly.", "27. A report of 8 March 1978 noted that J., who was attending a group for young people organised by the social services, was causing concern as her sexual awareness was possibly greater than “normal” in a child of her age.", "28. On 29 June 1978, the social worker was called urgently to the children’s school after the children had told the teacher that N.C. had hit them and their mother had knocked the baby on the floor. The incident was investigated. No physical injury was found, and N.C. and the mother had talked about the stress which they had been under. No further action was taken.", "29. In August 1978, the case was transferred to another social worker Mr C. who remained with the family until August 1981. His diary for 4 October 1978 noted that he had spoken to the second applicant alone and sought to get him to explain why he had a soiling problem. \n“He was unable to answer properly but said that he knew he wanted to go to the toilet but for reasons he couldn’t explain he didn’t make the effort. ... [The mother and N.C.] have tried a variety of methods to attempt to modify his behaviour... The only time success has been achieved is when he has been removed from home and obviously this accounts for some suggestions [from the headmaster] that maybe the answer is for him to be removed on a more permanent basis. As stated previously [the mother and N.C.] are very against this and I would prefer to consider all the alternatives before suggesting his removal. In any case, without the consent of his parents it is extremely unlikely that the soiling problem would sufficiently constitute reason for taking him into care.”", "30. The records of Mr C. with the family and its individual members made no mention of any reference to sexual abuse. In his statement of 9 September 1999, he had no recollection that the first applicant made any complaint to him. His notes record three examples of conversations during this period:\n“11.10.78 [The first applicant] had refused to go to school today and I spoke to her about this. I do not feel that there was any real problem about it other than [the mother and N.C.] allowing her to get away with it.”\n“7.12.79 [the first applicant] claimed that she did not want to go to school because [N.C.] was always getting on to her.”\n“12.6.80 Talked to [the first applicant ] alone and she was very critical of the way [the foster parents] treated her... After talking to her it became evident that she had recently been home and they had asked her to go back; this was obviously playing on [her] mind and causing her to be increasingly critical of [her foster parents] ...[She] was insisting that she wanted to go back home...”", "31. The first applicant was truanting frequently during this period. On 28 May 1980, she was placed in care at both her and her parents’ request. The application for her to be taken into voluntary care signed by Mr C. stated:\n“The ... family have a long history of contact with the social services department and much support has been given over a number of years. The problems presented are very much part of a total family situation which lacks a depth of relationship and stumbles from crisis to crisis. The symptoms of this situation are that the children (6) present individual problems including incontinence and school truancy and the family are stigmatised within their community as a “problem family”. Efforts have been made by myself and other workers to improve matters, including a “family group” meeting on a weekly basis, but progress is slow and the basic problems remain. Whilst these efforts will be maintained it is considered that [the first applicant] the eldest is now beyond the control of her parents and this is not likely to improve. She is rebelling against her parents and family by constantly truanting from school and frequently staying out until a late hour. I am convinced that her behaviour is very much tied to her unhappiness in the family and feel that a foster placement would allow her to return to an acceptable level of behaviour which she is more than capable of achieving.”", "32. The first applicant stayed in foster care for less than a month and on 20 June 1980 was returned at her own and her parents’ request.", "33. On 7 July 1980, an incident occurred in the family home, in which A. alleged that she had been hit by her parents during a “great family row”. The mother asked the social services to take her into care, along with the second applicant and J. It was decided in the end to place A. with foster parents and leave the others in the family home. The second applicant and J. were noted as being insistent that they remain at home. A. returned home at her own request and that of her mother and N.C. in September 1980.", "34. On 10 November 1980, there was an incident when the first applicant ran away from home because of a family row. She returned the next day.", "35. The matrimonial supervision order in respect of the first applicant expired on 26 November 1980 when she reached sixteen years of age.", "36. On 12 December 1980, the mother and N.C. had a second child, a son W.", "37. From some time at the end of April 1981, the first applicant’s boyfriend, A.T., began to live in the family house.", "38. On 29 May 1981, there was an incident reported to the social services when N.C. hit J. Though N.C. admitted that he had caught her on the cheek, he stated that he had not intended to hit her on the face – he had swiped at her in anger as she had been extremely cheeky. As J. was not marked from any injury on the face, the matter was not pursued further.", "39. Care proceedings were instituted in respect of A. due to her non-attendance at school. In November 1981, she went to live with her father, where her attendance improved and the proceedings were dropped.", "40. On 13 November 1981, the Education Welfare Officer contacted the social services about the second applicant and his twin J. who were “practically hysterical”. The social worker talked to the second applicant in the absence of N.C. and the mother but “without a degree of success”. He arranged to talk to him and his sister alone the next day and told them that if they had problems they should let him know. They mentioned to him some matters, e.g. they were picked on at school and their mother had borrowed money from them (their earnings from a paper round). They promised to go to school and inform him if they had any problems.", "41. On 27 November 1981, the social services attended the family home following a call from N.C., alleging that the second applicant and J. had been smashing up the house. It appeared that the first applicant’s boyfriend, A.T., had been fighting with J. Potato knives and pieces of wood had been thrown. It was agreed to place the second applicant and J. in voluntary care.", "42. On 29 November 1981, the second applicant and J. ran away from the foster home to the family home. They were returned to the foster home.", "43. On about 30 November 1981, N.C. left the family home.", "44. On 4 January 1982, the second applicant and J. returned home.", "45. On 27 January 1982, the second applicant was placed in a children’s home at the mother’s request.", "46. The social services noted N.C.’s return in February-March 1982.", "47. In or about March 1982, the first applicant gave birth to a son, the father of whom was her boyfriend A.T.", "48. On 23 April 1982, the matrimonial supervision order in respect of the second applicant and J. was varied to a care order. In a report of 2 February 1982 to the court, the social services had described the family situation as follows:\n“This family have been known to the Local Authority since 1967 and throughout this time have had numerous complex problems... N.C. has always accepted that his role with the children was difficult but he did provide a great deal of support to [the mother] and has tried to help her through the many difficulties that a large family inevitably produce. N.C. has not worked on a regular basis for some time, although he has shown on occasions that he is prepared to work hard over long periods...\n[N.C. and the mother] appear to have developed a pattern of life which stutters from one crisis to another, but on 30 November 1981 N.C. decided that he could not stand the situation any longer so he left the family home. He did, however, return for a few days in an attempt to reconcile his marriage, but the behaviour and attitude of [the second applicant and J.] towards him was so bad that he returned to his lodgings. N.C. visited his wife regularly and helped to the best of his ability to assist and support his wife...\nThe family seem unable to break out of the trap of financial hardship and this coupled with the relationship difficulties between N.C. and the older children created a weak foundation on which to build a strong family situation. The family have received much support from our department, and others, to strengthen family relationships and advice on financial matters but success has been limited and there is often difficulty in maintaining the status quo. The family have rent arrears of over £1,000 together with gas and electricity arrears. At the present time our department is negotiating with the Electricity Board to try and prevent the supply from being disconnected yet again.\nIn order to encourage the children to relate better to one another and to their parents, they were involved in various group situations supervised by our department. They have invariably shown themselves to be pleasant, co-operative children, who respond to the individual attention lacking at home. Last year a social worker ran a group for the whole family in an attempt to encourage them to work on improving their family relationships and also their relationship with the wider community in which to an extent they are stigmatised. This met with some success but at the end of the group the situation quickly reverted back. ...\n[The second applicant and J.] have followed the pattern of their two elder sisters for their school attendance has deteriorated... [N.C. and the mother] found themselves unable to make them attend school and their behaviour at home became intolerable so much so that on 27 November 1981 [the mother] asked our department to receive [them] into Voluntary Care for a period of six months. The twins were placed with foster parents ... They started to truant the following week... The mother ... became very depressed and according to [the mother], the neighbours and [the first applicant] the twins took full advantage of their mother’s illness and ran riot in the house and were not adverse to throwing items at the other residents. The situation became so bad that on 27 January 1982 [the mother] telephoned our office and pleaded with us to take the children because she had no control over them whatsoever and was frightened in case she struck out and hurt them. Our department agreed to her request and on visiting the house the twins ran from the house. They were found shortly afterwards and placed separately in childrens’ homes... N.C. believes that if [the second applicant and J.] are not at home there is a good chance that he and [the mother] could reconcile their marriage...\nThe twins could be capable of persuading their mother to take them out of Voluntary Care and the situation would, as on past experience, revert to non school attendance and breakdown of the family unit. [The first applicant] will hopefully be given the tenancy of a council house after the birth of her baby in March and with the twins in care it would seem more likely that [N.C. and the mother] would be able to care for the three younger children in a satisfactory manner.\nIt is for these reasons that our department is asking for the supervision order on [the second applicant and J.] to be varied to a matrimonial care order. This action would ensure that the twins could not manipulate their mother and also have a period of stability both socially and educationally.”", "49. Pursuant to the care order, the second applicant remained in the children’s home where he was recorded as making reasonably good progress. He was spending alternate weekends in the family home.", "50. In a report dated 13 December 1982 on the second applicant in the children’s home, it was noted that there was no feedback from him on the home situation or how he was relating at home, the second applicant giving no insight into the structure or lifestyle there. An entry in the social services records noted on 14 March 1984 that the second applicant was not happy about going home at weekends but the reason was not known. In an interview with the social worker in the children’s home in April 1984, it was recorded that he would not say why he did not want to go home or if he had problems there. The social worker told him that no-one could help him unless he shared his problems. Other entries in the records indicated that on 8 April 1984 he returned after having had a good weekend at home and that when he went home at Easter he requested permission to extend his stay.", "51. In January 1984, M. was made subject of a care order due to his non-attendance at school and placed with foster parents.", "52. On 30 April 1984, N.C. was convicted of theft and sentenced to six months’ imprisonment.", "53. On 4 June 1984, the second applicant went home on a trial basis.", "54. In August 1984, N.C. was released from prison.", "55. On 20 September 1984, the care order was discharged on the second applicant.", "56. During 1984, the first applicant married. In 1986, the second applicant went to live with her.", "57. During 1992, S. (aged fourteen) gave birth to a baby H. and allegations were made that N.C. was the father, though S. in her statements denied this and told the social services that the father was a boy her own age. The social services had been informed of the pregnancy by the mother in April 1992.", "58. In November 1992, A. informed a social worker that she had been sexually abused by N.C. from the age of 10 to 17 years. On 26 November 1992, she gave a statement to the police. The police also interviewed J., the second applicant and other family members. A. stated, inter alia, that during a row she and J. had once told her mother about the abuse in N.C.’s presence. N.C. and their mother responded by hitting them. In her statement, J. recalled that the abuse was never discussed between the children and that “it was almost accepted that it happened”. She had tried to drop hints to their mother but did not tell her what was happening as she felt that she would be rejected. She used to misbehave hoping that her mother would give her attention and listen to her. The mother claimed that she had never seen or heard of any abuse occurring. S. denied that N.C. had acted inappropriately with her.", "59. The first applicant initially refused to give a statement. In the Child Protection Case Conference minutes of 22 February 1993, it was recorded that though she admitted to having been sexually abused by N.C. she was adamant that she did not wish to become involved or make a formal statement.", "60. On 19 February 1993, N.C. was interviewed by the police. He was charged with counts of rape, indecent assault and of inciting the second applicant to assault J. and J. to assault the second applicant.", "61. On 22 February 1993, an Initial Child Protection Case Conference placed S., H. and W. on the Child Protection Register. It noted that the allegations of abuse in the home had come to light on 4 November 1992 when a health worker informed the social services of A.’s disclosures of abuse by N.C. It now appeared that at least four of the children had been abused by N.C. The mother had told the social services that J. was a liar and denied that any of the children had disclosed any sexual abuse to her. An Education Officer was noted as stating that he had always been of the opinion that any abuse was physical, and a social worker recalled A. telling him that N.C. had used totally inappropriate/sexualised language to the children. These entries also appeared:\n“In the opinion of [B.H.], from reading the files, it would appear that there have been many concerns about the behaviour of the children within the family which may indicate abuse.”\n“[G.T.] the officer in charge of the Spring Street Family Centre reported that [A.] had discussed issues of sexual abuse with a social work student some years previously but nothing specific was noted in the records. ...”", "62. On 31 January 1994, the social services were informed by the second applicant that N.C. had been staying with the mother and visiting the house regularly in breach of bail conditions. N.C. was arrested the next day and remanded in custody.", "63. On 16 February 1994, the first applicant made a statement to the police.", "64. Around 22 March 1994, N.C. admitted the allegations made by both applicants. On 25 May 1994, he pleaded guilty to 2 counts of attempted rape and 3 counts of indecent assault (on A., J. and the second applicant). He was sentenced to 9 years’ imprisonment, for which one attempted rape and 2 indecent assaults on the first applicant were also taken into consideration.", "65. According to their statements, the applicants had suffered the following abuse:\nThe first applicant", "66. From 1972, when she was about eight, to about 1980, the first applicant was sexually abused on a regular basis by N.C. This occurred once a week usually on Saturdays (when her mother went out) and on any other occasion when she and N.C. were alone in the house. N.C. regularly required the first applicant to masturbate him. On at least two occasions he required her to place a nail in the end of his penis. He used to bath her (and her sisters) until the age of thirteen and during that time he was touching her (and her sisters) in her vagina and breasts. He raped her at the age of 14. At the age of 15 he forced her to take his penis into her mouth and then forced her to have sexual intercourse with him. The abuse continued until about 1980 when the first applicant’s boyfriend moved into the family home.", "67. The first applicant claimed that she was acting against her will and she felt grossly humiliated in her own eyes. She stated that she was too afraid to tell her mother. When the first applicant, for example, made an attempt on her life in front of her mother after she was raped by N.C., her mother responded by simply laughing. The first applicant did not complain of the rape knowing that this would entail a gynaecological examination.\nThe second applicant", "68. From about 1978, when he was about ten, the second applicant was sexually abused by N.C. on a regular basis, i.e. on Friday, Saturday or Sunday evenings when his mother was out. This continued until January 1981 (though according to a psychiatric report the second applicant claimed that he was sexually abused from the age of six to sixteen), when the second applicant, at the age of fourteen, began absenting himself from school. He was taken into voluntary care by the local authority because his mother was unable to cope and placed in a children’s home. Even then, however, the second applicant was sexually abused during weekend visits at home. N.C. would masturbate the second applicant and tell him to masturbate him. On occasions N.C. would require the second applicant to touch his twin sister J. on the vagina and would require J. to masturbate the second applicant. The second applicant did this unwillingly and because N.C. threatened him that there would be trouble if he did not. The second applicant did not report to his mother for fear of not being believed and from fear of N.C. The applicants’ mother, although it was not clear whether she was aware of N.C.’s conduct, did not take any interest when the children were distressed. The second applicant continued to be abused until he began to live independently.\nThe health of the applicants", "69. Both applicants suffered extreme humiliation from the activities in which they were required to engage. Both had extreme difficulty in reporting the matter to the police and were only able to reveal the full extent of the abuse after several statements. Both applicants have suffered long term depression and trauma as a result of the abuse and have submitted psychiatric reports in respect of this. As a consequence of her abuse, the first applicant has been diagnosed as suffering from depression on and off throughout her life, which on occasions could last for months. She suffered from a personality disorder associated with feelings of low self esteem, anxiety, anger, aggression, social phobia and to some degree agoraphobia. She has had nightmares for most of her life and has experienced suicidal thoughts. Over the past few years she has suffered from irritable bowl and migraine headaches which have been diagnosed as being partly due to stress suffered because of her abuse as a child. She has been attending weekly counselling since January 1994.", "70. The second applicant has also suffered psychological problems as a result of his treatment which were exacerbated after the police investigation into his sexual abuse. His personality has been adversely affected. He experienced mood swings and suffers from anxiety, anger and aggression. He had little enjoyment of life and, as a consequence of his condition, he had less energy and found it hard to concentrate. He experienced difficulty in forming relationships. He has suffered from epilepsy since the age of 19 which is said to complicate his psychological condition. The second applicant has various minor criminal convictions for theft and like offences prior to 1993 which could, it is argued, be a result of the abuse suffered.\nInformation given to the social services", "71. The applicants claimed that they had informed the social services of the abuse as follows.", "72. For the first time, in 1978, both applicants and their sisters told the visiting social worker that their stepfather hit them. On another occasion during 1978, the first applicant reported to the new social worker, Mr C., that she and the second applicant were being assaulted by their stepfather. On that occasion the applicants’ mother was asked by the social services whether any abuse was taking place but denied the allegations. No action was taken by the social services department.", "73. After continued sexual assaults, the first applicant states that on one of her regular meetings at the social worker’s office she was asked why she was being difficult at home and running away. She told them that N.C. was hitting her and doing “other things” to her and she wanted to leave home. The first applicant stated that N.C. raped her on 16 September 1978, which was the day her half sister, S., was born. She claims that the social services did not believe her when she told them of the “things” that were going on and thought that she was jealous of the birth of the baby.", "74. During the police investigation, the second applicant states that he was informed by the police for the first time that there was information on the social services files which indicated that the social services department had been aware of the sexual abuse in N.C.’s household. \nAttempts at redress at a domestic level", "75. On 5 May 1994, the second applicant made an application to the Criminal Injuries Compensation Board, as a victim of a crime, which made him an offer of compensation of 1,500 pounds sterling (GBP), which he accepted. On 12 July 1994, the first applicant also made an application to the Board which made her an offer of compensation of GBP 3,000 which she did not accept.", "76. On 24 June 1994, the second applicant’s solicitors wrote to the social services department asking for information about the files relating to him. On 13 July 1994, solicitors for the first applicant wrote to the social services department complaining of the abuse and requesting information. They were referred to solicitors for the local authority’s insurers. On 27 September 1994, the applicants’ solicitors wrote to those solicitors complaining that the “Local Authority failed to protect both of our clients from persistent abuse in particular perpetrated by [N.C.].”", "77. On 11 October 1994, the applicants applied for legal aid. The Legal Aid Board refused legal aid on 24 October 1994, finding that there were no reasonable grounds for taking proceedings. The appeal against the refusal was dismissed on 9 February 1995.", "78. In or about February or March 1995, the second applicant approached the local authority personally with a complaint, and was told that he could see his social services file with third party information removed. Two days later, this offer was withdrawn.", "79. On 21 March 1995, the local authority solicitors wrote to the first applicant’s solicitors:\n“We regret that the principle of Public Interest Immunity means that the Council will be unable to voluntarily disclose information relating to your client.”", "80. On 29 September 1995, the local authority solicitors wrote a similar letter in relation to the second applicant’s complaints.", "81. On 23 February 1996, legal aid was granted to the second applicant for counsel’s advice in respect of an action against the local authority.", "82. On 19 August 1996, the second applicant brought proceedings in Nottingham County Court claiming damages for negligence and breach of statutory duty under the Children and Young Persons Act 1969 and/or the Child Care Act 1980 by the local authority and the social workers employed by them, acting as their servants and agents because they failed inter alia:\n– to carry out a proper investigation of the complaints now or of the alleged abuse at the time,\n– to remove him from the care of N.C. and his mother.\nThe second applicant alleged that the local authority owed him a duty of care, had acted in breach of that duty and breached their statutory duty, causing him loss and damage. He claimed breach of statutory duty in that the local authority failed to grant him access to the records held by them, contrary to section 1 of the Access to Personal Files Act 1987.", "83. The local authority applied to strike the case out on the basis that the second applicant had no reasonable cause of action.", "84. On 20 January 1997, the application was struck out by the District Judge as disclosing no cause of action following the cases of X. and Others v. Bedfordshire County Council ([1995] 3AER 353) and H v. Norfolk County Council ([1997] 1 FLR 384), in which it was held that there was no cause of action in negligence or for breach of statutory duty against a local authority in respect of any alleged failure by the local authority to discharge its statutory duties relating to child care.", "85. In the light of the decisions of X. and Others v. Bedfordshire County Council and H v. Norfolk County Council and the judgment of Nottingham County Court, counsel advised both applicants that they could not pursue domestic proceedings against the County Council.", "86. In or about September 1997, the local authority gave the second applicant sight of edited extracts from the social services files.", "87. In an affidavit dated 9 September 1999, the social worker, Mr C., stated that he had no recollection of having any conversation with the first applicant in which she had said that N.C. had sexually abused her. He remembered the family very well, and when he left the area in 1981 he did not recall that any accusations of sexual abuse had been made. He had made detailed running records of his involvement with the family and if there had been any suggestion of sexual abuse by N.C. he was confident that it would be in those records." ]

[]

[ "7. On 3 May 1995 the applicant was arrested by police officers from the Anti-Terror branch of the Ankara Police Headquarters. He was accused of being a member of an illegal organisation, the TDKP/GKB (Türk Devrimci Komünist Partisi/Genç Komünistler Birliği – The Turkish Revolutionary Communist Party/Young Communists' Union).", "8. The applicant alleges that he was beaten, hung by his arms, given electric shocks to his body and threatened with death during his interrogation by the police officers.", "9. On 15 May 1995 the applicant was examined by a doctor at the Ankara Forensic Medicine Institute who noted in his report the presence of numerous differently shaped and coloured bruises on his shoulders, on the left upper part of his fist, his back and thigh. The doctor further noted the presence of four ecchymoses on the applicant's outer gluteal. The applicant was also suffering from pain in his chest. The doctor concluded that the applicant would be unfit for work for five days.", "10. On 15 May 1995 the applicant was questioned by the public prosecutor, Ali Rıza Konuralp, at the Ankara State Security Court. During his questioning the applicant denied the allegations against him and stated that he had signed his statement under duress. The applicant also refused to give a detailed statement, saying that he was suffering from trauma resulting from the severe torture to which he was subjected while in police custody.", "11. On the same day the Ankara State Security Court ordered the applicant's detention on remand.", "12. On 21 July 1995 the applicant submitted a written statement to the public prosecutor at the Ankara State Security Court. The statement reads as follows:\n“On 3 May 1995 I was arrested by three plain-clothes men. ... They [later] told me that they were police officers. I was handcuffed and blindfolded. Thirty or forty minutes [after my arrest] I was brought to a deserted area. As soon as they took me out of the car they started beating me. At the same time they were asking me if I was a member of the terrorist organisation. ... They were also asking about the names of the other members. When I told them that I was not a member of the organisation they continued hitting and asking me the same questions again. They took off my clothes and beat me with my belt. This [treatment] continued for three hours. ... Afterwards they put a gun to my head and threatened me with death. I repeated that I had nothing to say. They told me that they would take me to Gölbaşı and that I would get lost there. They also told me that they would not kill me immediately because they wanted me first to suffer. It was getting dark. They put me in the car and drove towards a building, which, I understood afterwards, was the Ankara Police Headquarters. I was dragged into a cell. I do not remember what they were saying because I was unconscious. I only remember them hitting me. After a while they took me out of the cell and brought me into a room called “the room with mirrors”. [My wife was there]. ... They told me that they would let us go if I told them the truth. ... After a while they brought me back to the cell. Two days later they came back to my cell with some papers. They wanted me to sign the papers. After having read the papers I told them that I would not sign the papers because those papers contained untrue statements about my wife and me. They again brought me to the room with mirrors. A.K with whom I was working was there. They told me that A.K and I had been involved in illegal activities. They again asked me to sign the papers. When I refused the allegations they again started beating me. After a while they hung me by my arms. I was unconscious and naked. They squeezed my testicles, hosed me with cold water and gave electric shocks. They were giving pauses at regular intervals. During one of those pauses they brought in my wife and told her to sign the documents. They were torturing and beating my wife in front of me. They took me back to my cell after three or four hours. They again took me to the torture room and asked me if I would sign the papers. When I refused to sign the papers they recommenced the same treatment. I lost consciousness. .... They brought my wife back and started beating her. They told me that I would watch them raping her. When they started to take my wife's clothes off I told them that I would sign all the papers and asked them not to harm my wife. I told my wife to sign all the papers as well and I signed all the papers without having read them.”", "13. On 17 October 1995 the applicant lodged a complaint with the Ankara public prosecutor. He stated that he had been subjected to torture while in custody and requested that the police officers who tortured him be identified and brought to justice.", "14. On 11 December 1995 the applicant appeared before the Ankara Public Prosecutor, Mehmet Bozkurt. He reiterated his allegations before the prosecutor.", "15. On 7 May 1996 the Ankara Public Prosecutor, Ramazan Gündüz, issued a decision based on lack of jurisdiction (görevsizlik kararı). The prosecutor decided to transfer the case-file to the office of the Ankara Governor pursuant to Article 15 of Law no. 3713.", "16. On 24 June 1996 the Ankara State Security Court convicted the applicant for his involvement in an armed gang. The court sentenced him to twelve years and six months' imprisonment under Article 168/2 of the Turkish Criminal Code and Article 5 of Law no. 3713.", "17. On 28 June 1996 Ramazan Er, the chief of police (İl Emniyet Müdürü), appointed Superintendent (başkomiser) Hilmi Eser to conduct an investigation against the police officers who allegedly tortured the applicant.", "18. On 12 July 1996 the police officers Hayati Akça, Ali Tosun, Kadri Tuncer and Osman Menteşe gave statements to Mr Eser. They rejected the allegations of torture, stating that they had collected sufficient evidence to charge the applicant without resorting to torture. They also stated that the applicant was injured during the struggle when he was arrested. The police officers concluded that it was probable that the applicant had intentionally injured himself in order to accuse the police officers of ill-treatment.", "19. On 24 July 1996 the applicant gave a statement to Mr Eser. He reiterated his allegations of torture.", "20. On 18 September 1996 Superintendent Hilmi Eser drafted a recommendation report (fezleke) in which it is stated that, in the light of the statements taken and the relevant evidence in the case-file, there existed no evidence to substantiate that the police officers committed the alleged crime. The report further stated:\n“The medical report that the complainant relies on is dated 15 May 1995 and refers to the medical examination carried out before he had been brought before the judge. However, in his statement taken in custody the complainant did not say that he had given this statement under duress and pressure. He also did not mention that he had been subjected to ill-treatment. The complainant lodged his complaints seven months after he was detained on remand. This confirms that the complainant lodged these complaints in order to show himself as a member of the organisation and to attract the sympathy of the other members of the organisation in prison. The bruises on the applicant's fists occurred as a result of the handcuffs. The other bruises occurred because the applicant injured himself in order to accuse the police officers.”", "21. Mr Eser concluded that the police officers had performed their duty with diligence and recommended that no prosecution be brought against them.", "22. On 1 October 1996 the Ankara Provincial Administrative Council (İl İdare Kurulu) decided to commit the accused police officers for trial (lüzum-u muhakemelerine). The Council further decided that the proceedings should be initiated before the Ankara Criminal Court of First Instance (Asliye Ceza Mahkemesi) as the matter fell within the jurisdiction of that court.", "23. The police officers appealed. On 24 November 1998 the Supreme Administrative Court (Danıştay) quashed the decision of the Ankara Provincial Administrative Council of 1 October 1996 on the grounds that it was for the competent public prosecutor to initiate proceedings against the accused police officers. The Supreme Administrative Court concluded that the case-file should be transferred to the office of the competent public prosecutor.", "24. On 25 December 1998 the Ankara public prosecutor filed a bill of indictment with the Ankara Assize Court against the four police officers who allegedly tortured the applicant. These proceedings are apparently still pending." ]

[ 3 ]

[ "10. The applicant was born in 1953 and lives in Sonsbeck (Germany).", "11. On 12 January 1993 the applicant was arrested in connection with an anti-drug-trafficking operation as a result of which the Sintra public prosecutor’s office brought criminal proceedings against about forty persons. The applicant was interviewed on 13 January 1993 by an investigating judge, in the presence of an interpreter and a lawyer appointed under the legal-aid scheme, and was then placed in pre-trial detention.", "12. On 21 January 1993 a search of his home was carried out and large sums of money in several different currencies and a self-defence spray were seized.", "13. On 28 April 1993 the applicant, represented by a lawyer whom he had in the meantime authorised to act for him, asked to be interviewed in the presence of another person involved in the case, one A.G. That request was refused on an unspecified date.", "14. On 7 January 1994 the public prosecutor’s office filed the prosecution submissions (acusação) against the applicant and forty-three other persons. Mr Czekalla was accused of aggravated drug trafficking and conspiracy (associação criminosa). The indictment listed fifty prosecution witnesses and the submissions ran to 156 pages.", "15. On 19 January 1994 the applicant asked the judge to let him have a copy of the case file so that he could prepare his defence. The judge granted his request and the file was made available to the applicant’s lawyer at the registry of the Sintra District Court.", "16. On 23 January 1994 the applicant applied to the judge personally in English, asking for a translation of the prosecution submissions into German, his native language. On 27 January 1994 the investigating judge at the Sintra District Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, refused that application without looking into its merits on the ground that it was not written in Portuguese.", "17. In a letter of 16 February 1994 the German embassy in Lisbon asked the Sintra District Court to send the applicant a German translation of the prosecution submissions. The embassy later informed the court that it could assist it by providing the services of a sworn translator (letter of 8 September 1994).", "18. On 20 February 1994 the applicant submitted a request similar to that of 23 January 1994 but written in Portuguese. In response to that request, on 27 April 1994, an interpreter appointed by the Sintra District Court went to the prison where the applicant was being held and gave him an oral translation of the prosecution submissions.", "19. As a number of the accused had asked for the judicial investigation to be formally opened, that was done, on 16 March 1994. An adversarial hearing was held on 21 April 1994. On 27 April 1994 the investigating judge made an order (despacho de pronuncía) committing thirty-five of the accused, including the applicant, for trial. The order was read out to all the accused and simultaneous interpretation was provided in several foreign languages.", "20. On 28 June 1994 the applicant filed his defence pleadings and submitted a list of the defence witnesses.", "21. In a judgment of 7 July 1994 the Supreme Court (Supremo Tribunal de Justiça) ruled that the Sintra District Court could hold the trial on the premises of the Lisbon Criminal Court in Monsanto on account of the lack of space at its own courthouse in Sintra.", "22. The trial began on 8 November 1994 and lasted for eight months, during which fifty-eight hearings were held. On 21 February 1995, in other words while the trial was still taking place, the applicant withdrew the authority to act he had given to his lawyer and asked the court to appoint a lawyer under the legal-aid scheme. The court appointed Ms T.M. as his defence counsel.", "23. The Sintra District Court gave judgment on 24 July 1995. It found the applicant guilty of aggravated drug trafficking but not of conspiracy, and sentenced him to fifteen years’ imprisonment.", "24. On 3 August 1995 the applicant personally appealed to the Supreme Court. His application was written in German. By an order of 12 September 1995 the judge of the Sintra Criminal Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, dismissed the appeal without looking into its merits on the ground that it was not written in Portuguese.", "25. On 7 August 1995 Ms T.M. lodged an appeal with the Supreme Court on her client’s behalf. She alleged breaches of a number of provisions of the Code of Criminal Procedure and of Articles 5 and 6 of the Convention.", "26. In September 1995 the applicant asked a lawyer of his own choice to represent him in the proceedings, thus dispensing with the services of the lawyer appointed under the legal-aid scheme. On 27 September 1995 the applicant’s new lawyer lodged an appeal with the Supreme Court against the order made by the judge of the Sintra Criminal Court on 12 September 1995.", "27. On 20 September 1995 the case file was sent to the Supreme Court.", "28. On 10 July 1996 the Supreme Court gave judgment on a number of interlocutory appeals and on those which, in the judges’ opinion, could already be decided without further examination. Applying Article 412 of the Code of Criminal Procedure, the Supreme Court declared inadmissible the applicant’s appeal against his conviction, lodged through Ms T.M., ruling that the grounds of appeal had not been satisfactorily explained. The appeal contained no submissions and did not indicate in what way the legal provisions whose breach it alleged should have been interpreted and applied.", "29. On 11 December 1996 the Supreme Court delivered a second judgment. It first upheld an appeal by the prosecution concerning some of the defendants, including the applicant, finding that the latter was also guilty of conspiracy. The applicant’s sentence was accordingly raised to twenty-one years’ imprisonment. The Supreme Court then considered the appeal against the order made by the judge of the Sintra Criminal Court on 12 September 1995. It held that the application made by the applicant alone was provided for in Article 98 of the Code of Criminal Procedure, which permitted a defendant to submit pleadings or observations directly to the court. Taking into account Article 6 § 3 (e) of the Convention, the Supreme Court then set aside the impugned decision and ordered the appeal lodged by the applicant to be translated so that it could be “duly examined”. Lastly, the Supreme Court decided that the statements of one of the defendants, who had cooperated with the police investigating the case and had refused to answer the questions put by counsel for the other defendants, could not be admitted in evidence.", "30. Some of the defendants, but not the applicant, appealed against the above decision to the Constitutional Court (Tribunal Constitucional).", "31. The applicant requested a clarification (aclaração) of the last part of the Supreme Court’s judgment of 11 December 1996. He wanted to know in particular when his conviction would become final, regard being had to the Supreme Court’s decision to set aside the order of 12 September 1995.", "32. In a judgment of 12 February 1997 the Supreme Court dismissed the above application on the ground that no clarification was called for. On the other hand, it corrected a mistake discovered in the judgment of 11 December 1996 concerning determination of the sentences imposed on some of the defendants and reduced the applicant’s sentence to eighteen years’ imprisonment.", "33. On 15 July 1997 the Constitutional Court dismissed the appeals by some of the defendants.", "34. On 18 July 1997 the applicant asked the Supreme Court to inform him how it intended to follow up the final part of the judgment of 11 December 1996 with regard to the application he had lodged with the Sintra Criminal Court on 3 August 1995. On an unspecified date the reporting judge ordered the registry to inform the applicant that the application would be examined by the Sintra Criminal Court in due course.", "35. In a judgment of 1 October 1997 the Supreme Court made it clear that the applicant was to be regarded as serving his sentence, since the Constitutional Court had dismissed the appeals by other defendants, with the result that the Supreme Court’s judgment of 11 December 1996, as corrected by the judgment of 12 February 1997, had therefore become final.", "36. On 14 October 1997 the applicant asked to be released. He submitted that the Supreme Court’s judgment of 11 December 1996 had not become final in so far as he himself was concerned. He pointed out that the last part of the judgment had not been executed, as his appeal of 3 August 1995 had not yet been duly examined as required by the judgment in question.", "37. On 23 October 1997 the reporting judge refused the above application in the following terms:\n“The application in issue [the one made on 3 August 1995] ... was submitted under Article 98 of the Code of Criminal Procedure. If by means of that application the applicant intended to appeal against his conviction, it must be pointed out that it could not have such an effect. The appeal by the defendant Czekalla against his conviction was the one lodged by the lawyer representing him under the legal-aid scheme, which has already been heard. ... The content [of the application of 3 August 1995], whatever it is – and that is a matter to be ascertained when the file has been transmitted to the court of first instance – could not therefore affect or influence the course of the proceedings. That is why the application cannot prevent the transition to res judicata [trânsito em julgado] of the Supreme Court’s judgment of 11 December 1996.”", "38. The applicant lodged a constitutional appeal against the above decision. On 16 January 1998 the reporting judge declared the appeal inadmissible for failure to exhaust ordinary remedies, the applicant having omitted to challenge the decision before the Judicial Committee (conferência). The applicant then appealed against the inadmissibility decision to the Constitutional Court, which dismissed his appeal in a judgment of 13 May 1998.", "39. By a decision of 16 March 1999, of which the applicant was informed on 29 October 1999, the Sintra District Court ruled, in accordance with the Supreme Court’s judgment of 11 December 1996, on the application made by the applicant on 3 August 1995. It noted firstly that the application amounted to an appeal against conviction. It went on to say that the applicant had only reproduced the appeal lodged at the time by his lawyer, but had not made use of the remedy provided for in Article 63 § 2 of the Code of Criminal Procedure, whereby he could have revoked the act carried out by his counsel. It noted that in any event the application was signed only by the applicant and not by his lawyer, and that accordingly it could not be declared admissible.", "40. In a judgment of 23 June 2000 the Evora Court of Appeal allowed an application for transfer to Germany made by the applicant under the Convention on the Transfer of Sentenced Persons.", "41. The applicant was serving the remainder of his sentence in Germany when he was paroled on 14 March 2001.", "42. On 11 November 1995 the applicant lodged a complaint against Ms T.M. with the Lisbon Bar Council. He alleged that her conduct had caused him prejudice in that, contrary to his instructions, she had herself lodged with the Supreme Court an appeal that did not satisfy the formal conditions.", "43. On 16 October 1996 the Bar Council decided to open disciplinary proceedings against Ms T.M.", "44. The applicant asserted that he had received from the Bar Council a letter dated 12 May 1997 informing him that a disciplinary penalty had been imposed on Ms T.M. for “unethical conduct”. The document concerned has not been produced before the Court." ]

[ 3 ]

[ "7. The applicant inherited a piece of land along with three other persons in Seydişehir. He holds a title deed to the land as a joint owner.", "8. In 1976 the authorities conducted a land registry survey in Seydişehir and revised the local plans. Following this revision, the land in question was registered in the Land Registry with the title of six other persons (Zehra Özden and five others: 'the defendants') along with the applicant's and the three other persons' title ('the plaintiffs') as the heirs of Mr Kara Beşe Ahmet Bin-i Ali Efendi (A.E.).", "9. On 3 August 1977 the applicant and the three other plaintiffs brought an action in the Seydişehir Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) against Zehra Özden and five defendants. The applicant and his co-plaintiffs stated that the land in question had belonged to their and the defendants' testator (muris), A.E. They alleged, however, that A.E. was not the owner of the land before his death since he had transferred the land to their mother in 1953. In support of this allegation they submitted a title deed dated 21 December 1953 bearing their mother's name as well as invoices indicating that their mother used to pay taxes in respect of the land.", "10. The applicant and his co-plaintiffs requested the court to order the revision of the Land Registry and to determine that Zehra Özden and her five co-defendants had no rights to the land since they were not the heirs of their mother. They further asked the court to order that the land in question be registered under their title alone.", "11. In the proceedings before the court, three of the defendants acknowledged the applicant's and his co-plaintiffs' claim and agreed that the land should be registered under their title.", "12. On 6 November 1978 an expert and a judge, Mr Orhan Gündem, from the Seydişehir Civil Court of General Jurisdiction, conducted a survey of the land.", "13. On 4 October 1984 an expert and a judge, Mrs Canan Karcı, from the same court, conducted a second survey of the land.", "14. On 12 December 1988 the Seydişehir Civil Court of General Jurisdiction issued a decision finding that it lacked jurisdiction, following the entry into force of Law no. 3402 abolishing the jurisdiction of the Civil Courts of General Jurisdiction on land registry matters.", "15. On 26 January 1994 the applicant lodged a petition with the Ministry of Justice complaining that the impugned proceedings lasted unreasonably long.", "16. On 14 September 1994 the Seydişehir Chief Public Prosecutor, with reference to the applicant's petition to the Ministry of Justice, sent a letter to the applicant explaining the reasons for the length of the proceedings. He stated that the heavy workload of the court, the change in the composition of the court on sixteen occasions, the resignation or dismissal of the parties' representatives on three occasions, the death of two of the defendants, the parties' requests for an extension of time-limits on three occasions, the parties' failure to attend the trials and other legal reasons had delayed the proceedings. He further stated that the courts had held seventy-nine hearings and had conducted two surveys of the land.", "17. On 17 May 1996 the judge of the Seydişehir Cadastre Court and an expert conducted a third survey of the land.", "18. On 20 March 1998 the Seydişehir Cadastre Court dismissed the case brought by the applicant and his co-plaintiffs. The court held that their mother did not have a title to the land since the land to which she had a title was not the same as the land in question. The court ruled that the applicant and his co-plaintiffs were the joint owners of the land in question along with Zehra Özden and her five co-defendants, being the heirs of A.E. The applicant and his co-plaintiffs appealed.", "19. On 9 October 1998 the Court of Cassation quashed the Seydişehir Cadastre Court's judgment. The court held that the Seydişehir Cadastre Court had failed to consider that three of the heirs had acknowledged the claim of the applicant and his co-plaintiffs. It ruled that their shares should have been registered with the applicant's and his co-plaintiffs' title. The Court of Cassation remitted the case to the first-instance court.", "20. On an unspecified date the Seydişehir Cadastre Court ruled that the applicant's and his co-plaintiffs' shares be registered with their title. The defendants lodged an appeal with the Court of Cassation against this decision.", "21. On 8 February 2001 the Court of Cassation upheld the decision of the Seydişehir Cadastre Court." ]

[ 3 ]

[ "7. The applicant is a British national, born in Karachi, Pakistan, in 1953 and living in Melling, Merseyside.", "8. The applicant qualified as a surgeon in Pakistan in 1978 and came to the United Kingdom in 1980. In 1986 she was appointed to the post of Ear, Nose and Throat Registrar at Walton Hospital in Merseyside.", "9. In July 1988, the Mersey Regional Health Authority (“the Health Authority”) held reviews of the nine non-rotational registrars, including the applicant. The applicant alleged that she was treated less favourably than others, on racial grounds, in relation to the review and in relation to other aspects of her training and employment.", "10. On 25 October 1988, the applicant, supported by the Commission for Racial Equality, commenced proceedings in the Liverpool Employment Tribunal (“the Tribunal”) against the Health Authority and others alleging discrimination contrary to the Race Relations Act 1976 (“the first claim”).", "11. The respondents’ defence (“Notice of Appearance”) was filed on 30 November 1988, fourteen days after the expiry of the relevant time-limit.", "12. The case was originally to be listed for hearing in January 1989, but the applicant declined the proposed dates because she would be busy with examinations. The hearing on the merits took place between 21-23 February 1989 but could not be concluded within the period foreseen by the parties, so was adjourned to 10-13 April 1989.", "13. The Tribunal’s decision, dismissing the applicant’s claim, was given on 9 May 1989, and received by the applicant on 15 May 1989.", "14. On 4 May 1989, prior to the delivery of the Tribunal’s decision, the applicant had submitted an “Application for Perjury”, alleging that two of the respondents’ witnesses had given false evidence. She was informed by a letter dated 11 May 1989 that her allegations had not prevented the Tribunal from issuing its decision, and that the Tribunal had no jurisdiction to take action over perjury, which was a criminal offence. The applicant responded on 21 May 1989 that she wished her “Application for Perjury” to be treated as an application for review, and she submitted a full application on 28 May 1989. The Tribunal may exercise its powers of review on limited grounds, such as emergence of new evidence, a decision made in the absence of a party or “the interests of justice”.", "15. The Tribunal heard the application for review on 16 August 1989. In its decision of 31 August 1989 the Tribunal granted leave for a review on two grounds: whether two of the respondents’ witnesses had given false evidence as to the qualifications necessary for appointment as Senior Registrar, and whether an assessment form about the applicant had been fabricated. A further three-day hearing took place between 1-3 November 1989, and in a decision dated 16 November 1989, sent to the parties on 20 November 1989, the Tribunal rejected the applicant’s allegations and upheld the original decision.", "16. In addition, on 17 June 1989, the applicant appealed against the Tribunal’s decision of 9 May 1989 to the Employment Appeal Tribunal (“EAT”). On 4 October 1989 she wrote to the EAT asking for the appeal to be postponed until the Tribunal had considered her application for review. Following the Tribunal’s decision of 16 November 1989 on the review application, the applicant wrote to the EAT on 24 December 1989 asking it to proceed with the original appeal and also indicating that she wished to appeal against the review decision.", "17. Her appeals against the original decision and against the review decision were considered together. On 19 February 1990 the EAT wrote to the applicant telling her that an ex parte preliminary hearing, to decide whether the appeal had any prospect of success, would take place. According to the Government, this hearing was originally scheduled for 22 January 1991, but was postponed at the last minute because the applicant’s counsel would not available until March. The hearing was relisted for 17 July 1991. Prior to this hearing, the applicant wrote several times to the EAT protesting about the delay. In a letter dated 9 May 1991 the EAT explained that the delay was “caused by the limited number of Judges available to sit at the [EAT, which] restricts the amount of Court sittings we can provide”.", "18. At the hearing on 17 July 1991 the EAT decided to allow the appeals to proceed to a full hearing and gave a number of directions; for example, the applicant was granted leave to amend her Notice of Appeal and it was ordered that a bundle of exhibits for the hearing be agreed and paginated. It appears from a letter written by the applicant’s solicitors to the Tribunal on 4 October 1991 that, at the hearing on 17 July 1991, the EAT Chairman also commented that the applicant’s second claim in the Tribunal – which had been adjourned pending the outcome of the appeal in the first claim (see paragraphs 35 and 37-38 below) – should not be held back any longer, but should be listed for hearing as soon as possible. It further appears, from correspondence between the applicants’ two sets of solicitors, that the President indicated that the appeal in the first claim should not proceed to full hearing until the second and third claims had been dealt with in the Tribunal, so that if there were any appeals in respect of the second and third claims, these could be consolidated and heard together with the appeal in the first claim.", "19. On 9 October 1991 the respondents’ solicitors wrote to the EAT complaining that the applicant had not yet submitted her amended Notice of Appeal. The EAT made enquiries of the applicant’s solicitors, who replied that there were matters outstanding before the Tribunal – principally, the second and third claims (see below) – which, in accordance with the Chairman’s comments (see paragraph 18 above), required to be resolved before the appeals could proceed to a hearing. On 17 October 1991, therefore, the EAT wrote to the respondents’ solicitors directing that further proceedings on the appeals would be stayed pending the determination of the other claims in the Tribunal.", "20. On 1 February 1995 the applicant filed an amended Notice of Appeal with the EAT. The respondent filed an Answer on 31 March 1995. On 19 May 1995 the EAT held a directions hearing, at which it ordered that, in view of the delay of nearly four years since the last directions hearing on 17 July 1991, the stay should be lifted, and that the appeals in the first claim should proceed to a hearing on 6 November 1995, which was the first date that was convenient for the EAT and the parties and their lawyers.", "21. The EAT heard the appeals in the first claim on 6 and 7 November 1995, but decided to wait until it had heard the anticipated appeal in the second claim before giving judgment, because this approach would enable it “to have as complete a picture as possible of the plethora of complaints brought by Miss Somjee in the ... Tribunal ... against the Health Authority”. The appeal in the second claim was heard on 6-7 June 1996 (see paragraph 50 below).", "22. The judgment in the appeals in the first, second and third claims was subsequently handed down on 25 October 1996, but was not sent to the parties until 18 November 1996. The EAT dismissed the appeals in the first claim, finding that the case had largely turned on questions of credibility of witnesses and that there was nothing legally wrong in the Tribunal holding that the respondents’ witnesses were more credible than the applicant.", "23. On 28 November 1996 the respondents applied to the EAT for costs in respect of the appeals in the first and second claims. On 18 April 1997 the EAT refused to order costs against the applicant in respect of the first claim. It can order costs only where a party has been guilty of unnecessary, improper, vexatious or other unreasonable conduct (Employment Appeal Tribunal Rules 1996, rule 34).", "24. On 25 November 1996 the applicant applied to the Court of Appeal for leave to appeal against the decisions of the EAT. On 7 July 1997, the Court of Appeal held a hearing at which it considered the applicant’s appeals against the EAT’s two decisions in the first claim and decision in the second claim (see paragraphs 22 above and 50 below), the costs order made against the applicant by the EAT in the second claim on 18 April 1997 (see paragraph 50 below above) and the EAT’s refusal to transfer the third claim away from the Liverpool region (see paragraph 54 below). \nThe applicant was refused leave to appeal, on the basis that there was no evidence of bias or unfairness in the hearings before the Tribunal, and that the applicant’s grounds of appeal merely repeated factual allegations that had been rejected by the Tribunal and EAT. Lord Justice Waite further commented: \n“As to the general allegations that she has had a raw deal, I find those to be without any foundation at all. Miss Somjee cannot say that her initial complaint was brushed aside. On the contrary, she had a hearing before the first ... Tribunal with representation on the part of the Commission for Racial Equality and on appeal to the [EAT] with representation by leading counsel. Her endeavours since the first complaint have been prompted by a refusal to accept failure. She, if I may presume to advise her, should not lose sight of the fact that although race discrimination is a serious evil which the law is rightly astute to prevent, the opportunity to complain of discrimination puts a powerful weapon in the hands of the complainant. Charges of race discrimination are extremely hurtful and are not always easy to resist, at all events, without time, trouble and expense. Those who abuse the right of complaint by over-persistent or unscrupulous use of it must expect to suffer the consequence of having such misuse penalised by adverse costs orders. Such an order was made in this case by the [EAT]. It was, in my view, amply justified.”\nNo appeal lies to the House of Lords from a refusal of leave to appeal by the Court of Appeal.", "25. Meanwhile, in March 1989 the Health Authority informed the applicant that her contract of employment would not be renewed. In April 1989 the applicant qualified as a Fellow of the Royal College of Surgeons. On 1 June 1989, the applicant’s contract of employment expired and she was dismissed.", "26. On 2 August 1989 the applicant commenced further proceedings in the Tribunal (“the second claim”), in which she made allegations of victimisation against two health authorities and five other respondents, primarily that she had been dismissed because she had brought the first claim, complaining of race discrimination.", "27. On 16 August 1989 the Tribunal held a hearing at which the Mersey Regional Health Authority agreed to accept liability for the acts of the individual respondents if it was found that they had discriminated against or victimised the applicant. In its decision sent to the parties on 22 August 1989, the Tribunal therefore dismissed the claims against all the respondents except the Mersey Regional Health Authority and the South Sefton Health Authority. The two health authorities (“the respondent”) filed a Notice of Appearance (defence) on 22 August 1989.", "28. On 23 August 1989 the Tribunal decided that the second claim should be stayed pending its decision on the applicant’s application for it to review its decision on the first claim (see paragraphs 14-15 above). No further action was taken in respect of the second claim, therefore, until after the Tribunal’s review decision of 16 November 1989.", "29. Thereafter, by a notice dated 8 January 1990, the Tribunal sought to list the second claim for hearing. The dates initially suggested, 5-9 March 1990, were rejected by the respondent on the grounds that its counsel was not available, that the time allocated was too short, and that a pre-hearing assessment (directions hearing) would in any case be necessary to clarify the issues in the case.", "30. A preliminary hearing took place on 16 March 1990, when the Tribunal rejected an application by the respondent to make a costs warning. The respondent also applied for a further preliminary hearing to determine whether the applicant’s allegations had been made within the time limit laid down in section 68 of the Race Relations Act 1976, but the Tribunal refused the respondent’s request.", "31. On 28 March 1990 the Tribunal contacted the parties with proposed dates for the full merits hearing, between 30 April and 4 May 1990. Once again, the respondent rejected these dates because of the unavailability of counsel, but the Tribunal refused to delay the proceedings and listed the hearing regardless.", "32. The hearing was nonetheless delayed because on 11 April 1990 the applicant issued a further set of proceedings (“the fourth claim”) alleging victimisation by an employee of the respondent, who had declined to continue acting as referee for her. A preliminary hearing on the fourth claim was held on 19 June 1990, when the claim was dismissed as having been brought outside the statutory time-limit.", "33. Following the dismissal of the fourth claim, the next available dates for the hearing of the second claim were between 24 September and 5 October 1990. However, on 31 July 1990 the respondent had written to the applicant’s solicitors asking for various particulars, in an attempt to narrow the issues in the claim and limit the number of witnesses that would have to be called. The following day the respondent’s solicitors sent a copy of this letter to the Tribunal asking it not to list the case for hearing until the applicant had replied.", "34. The applicant’s solicitors responded with the particulars on 21 August 1990, and on 22 August the Tribunal offered further hearing dates, to commence on 29 October 1990. On 6 December 1990 the applicant’s solicitors wrote to the Tribunal to refuse that listing, because the applicant’s counsel would not be available, although he would be free in the following weeks – commencing 5 and 12 November. These dates were not convenient for the Tribunal. The respondent’s witnesses were not available for hearing dates proposed in January 1991, and the applicant’s counsel was again unavailable in February and March 1991.", "35. On 7 December 1990 the Tribunal proposed that the hearing take place between 8-19 April 1991. However, on this occasion the respondent replied by requesting that the hearing of the second claim be deferred until the appeal to the EAT on the first claim, concerning the credibility of the respondent’s witnesses, had been determined (see paragraph 16 above).", "36. The respondent also requested that the second and third claims be consolidated. The Tribunal refused to grant this request unless the applicant’s two sets of solicitors (one each for the second and third claims) agreed. Lengthy correspondence ensued, culminating in a letter from the Tribunal dated 30 May 1991 stating that the second and third claims would not be consolidated.", "37. The Tribunal granted the stay on 13 December 1990. On 1 May 1991 it wrote to the applicant’s solicitors indicating that, notwithstanding the ongoing delays in relation to the appeals on the first claim, the decision to stay the hearing of the second claim pending those appeals remained in place. The EAT wrote to the respondents’ solicitors on 9 May 1991 acknowledging the considerable delay in the hearing of appeals before it generally at that time, and explained this as being caused by the limited number of available judges.", "38. On 22 May 1991, the solicitors acting for the applicant in the second claim complained to the Tribunal about the delay in listing the hearing and asked the Tribunal to hear that claim without waiting for the appeals in respect of the first claim to be heard. The Tribunal refused this request, but on 4 October 1991 the applicant’s solicitors again wrote to the Tribunal asking that the case now be listed for hearing, pursuant to the comments of the EAT at the preliminary hearing of the appeal in the first, to the effect that the second claim should proceed to hearing without waiting for the determination of the appeal in the first claim (see paragraph 18 above). The Tribunal then offered dates for hearing between 2 and 31 January 1992, but the respondent pointed out that the claim was still not ready to proceed to a full merits hearing because the applicant had not yet properly defined her claim (see paragraph 33 above).", "39. An interlocutory hearing was held on 17 January 1992, at which the applicant’s solicitors undertook to produce, within one month, a schedule of specific complaints in order to save time at the hearing. The Tribunal was also told that the applicant’s counsel would not be available until April 1992. Accordingly it offered a hearing listing between 11 and 22 May 1992.", "40. The applicant’s solicitors failed to produce a schedule of complaints. The respondent first informed the Tribunal of this failure in May 1992 and requested the Tribunal to consider making an order requiring the schedule’s production. On 19 May 1992 the applicant’s solicitors informed the Tribunal that they were awaiting instructions from the applicant and, on 29 October 1992, that they were no longer acting for her. Nine further letters of complaint were sent by the respondent to the Tribunal between July 1992 and January 1993.", "41. On 24 February 1993 the Tribunal held a preliminary hearing on the issue of delay. The applicant, now acting in person, had still not provided the schedule. Both sides applied to strike-out the other’s case on grounds of want of prosecution.", "42. On 8 June 1993, the Tribunal gave its decision, refusing to strike out the second and third claims, ordering the respondent to file an amended Notice of Appearance within 42 days and indicating that the substantive hearing in the second claim should proceed as quickly as possible. Because the applicant was now acting in person, the Tribunal decided that it would not be reasonable to expect her to produce the promised schedule. \nIn relation to the delays in the proceedings generally, and in support of its decision to refuse both strike-out applications, the Tribunal commented: \n“...Although the hearing was quite lengthy, and a good deal of detail was discussed ... this decision is intentionally presented in a somewhat attenuated form. Among other considerations it is now felt necessary to adopt that course of action simply to get the decision promulgated without further delay. The Chairman is all too conscious of the time which has already elapsed since the date of the hearing, but the general pressure of incoming work upon the Tribunals continue quite relentlessly, and his absence through illness, earlier in the year, although not protracted, was sufficient in itself to create some further accumulation of matters, many of them weighty and not capable of easy disposal. ...\nUnfortunately, the very real expectations aroused by the meeting on 17 January 1992 failed to be fulfilled. We need not, we feel, dwell on the reasons for that, but it is indeed most unfortunate that progress was not, in fact, then made because, due to extraneous factors, principally concerned with the unprecedented case load of the Tribunals at the present time, which has already been referred to, it has now become even more difficult to make any headway with a matter as intractable as this undoubtedly has been. ...\nIn reaching [the decision to refuse both strike-out applications] the Tribunal has been most conscious of the considerable delays which have already occurred but also that that cannot solely be attributed to one or other of the parties. Moreover, the Tribunal itself, even allowing for the extremely difficult general pressures, most [sic] acknowledge a share of responsibility. No-one, unfortunately, emerges without blemish.”", "43. The respondent failed to comply with the 42-day deadline for the filing of the amended Notice of Appearance, and did not provide the document until 27 August 1993. On 15 August 1993 the applicant applied for the respondent’s defence to be struck out for failure to comply with the deadline and asked for a hearing on this application after 30 September 1993. The hearing took place on 2 December 1993, on which date the applicant’s application was refused.", "44. The applicant appealed against this decision to the EAT. The appeal was heard and rejected on 22 September 1994, because the EAT agreed with the Tribunal that the applicant had not been caused any substantial prejudice by the additional delay. The EAT directed that a date be fixed for a hearing, “even if that means standing out some case which has not got this lamentable history of delay”.", "45. On 18 December 1994 the applicant wrote to the EAT to draw attention to three cases mentioned in her grounds of appeal which the EAT had not referred to in its decision, and stating “I do not know if [the judge] may wish to review his decision in the light of the above omissions ...”. This letter was treated by the EAT as a request for a review of its decision of 22 September 1994. On 19 May 1995 the EAT held a hearing of the review application, and in a decision promulgated on 14 June 1995 it refused to grant the review, pointing out that its powers of review were limited and could not be used to enable a case to be re-heard or re-argued. The EAT held that it had reached the correct decision on 22 September 1994 and that the cases cited by the applicant did not affect that decision.", "46. Following the dismissal of her appeal by the EAT (see paragraph 44 above), but before the applicant’s application for review of that decision (see paragraph 45 above), the Tribunal had listed the second claim for hearing on the merits over ten days from 6 February 1994. On 15 January 1995 the applicant wrote to the Tribunal stating that she was not ready for a full merits hearing in the second claim, because (1) her review application was still pending before the EAT, and she might appeal any decision reached by the EAT; (2) she was applying for a transfer of the second and third claims away from Liverpool; and (3) her father, for whom she was the sole carer, was seriously ill. The Tribunal agreed to a short adjournment. The next dates proposed by it had to be vacated at the instigation of the respondent, one of whose key witnesses was not available.", "47. The hearing on the merits in the second claim finally commenced on 5 June 1995. The applicant made it clear that she was participating under protest, because her application for a change of venue had been refused and she was seeking to appeal that refusal. She was not represented and cross-examined the respondent’s witnesses herself. The hearing of the second claim involved evidence from the applicant and from seven witnesses for the respondent, and the consideration of over 1,000 documents. The hearing lasted for 17 days in total. It was not possible to complete it within the time-scale originally contemplated, and it had to be relisted for two further weeks, one in August and one in September 1995.", "48. The Tribunal’s decision was promulgated on 2 November 1995. It dismissed the applicant’s claim in its entirety, concluding:\n“This is a very sad case indeed. Miss Somjee is clearly both an intelligent woman and in many ways an excellent and dedicated doctor whose career appears, as she claims herself, to have been severely damaged. The sympathy we would otherwise have felt for her, however, has been largely destroyed by the way she conducted herself before us. By this we do not mean particularly her attitude towards the Tribunal but rather to her former colleagues. The serious allegations she levelled at them were ... scandalous and wholly without foundation.”", "49. On 14 December 1995 the applicant appealed to the EAT, accusing the Tribunal of bias and racism. On 20 February 1996 the applicant filed an affidavit relating to the Tribunal’s alleged misconduct. The Chairman of the Tribunal provided his comments on the applicant’s allegations in a letter dated 3 April 1996.", "50. The appeal was heard on 6-7 June 1996 and the EAT handed down its judgment, dismissing the appeals in the first, second and third claims, on 25 October 1996 (see paragraphs 22 above and 54 below). On 18 April 1997 the EAT ordered the applicant to make a contribution of GBP 2,500 towards the respondent’s costs of the appeal in the second claim, because, in the EAT’s view: \n“she has, in respect of those appeals, acted unreasonably. She has brought cases which have not only been unsuccessful, she has made allegations in them which were not substantiated by evidence. The appeals stood no real prospect of succeeding.”", "51. The EAT refused leave to appeal to the Court of Appeal against its decisions to dismiss her appeal and to order costs. The applicant then applied to the Court of Appeal which, on 7 July 1997, refused leave to appeal (see paragraph 24 above).", "52. On 23 August 1989 the applicant had lodged another claim (“the third claim”) in which she alleged against the Health Authority that she had been unfairly dismissed on 1 June 1989 (see paragraph 25 above). Although the second and third claims were closely linked, the applicant employed different solicitors in respect of each and the Tribunal refused to consolidate the cases unless both solicitors consented (see paragraph 36 above). The claims therefore proceeded in parallel.", "53. At the hearing on 24 February 1993 (see paragraph 41 above), the Tribunal considered an application by the respondent to strike-out both the second and third claims. The respondent complained that the applicant’s solicitors had failed to provide further and better particulars of her claim, as they had been requested to do at the previous hearing on 17 January 1992. The applicant claimed that her solicitors had sent this information by a letter dated 13 February 1992. The strike-out request was rejected by the Tribunal, but the Tribunal ordered that only the second claim proceed to hearing and that the third claim be held in abeyance meanwhile.", "54. In January 1996, the applicant applied (for the fourth time) for the third claim to be transferred from the Liverpool Tribunal. The application was refused by the Tribunal on 22 January 1996, and the applicant appealed against this decision to the EAT, by notice of appeal dated 1 March 1996. This appeal was heard by the EAT together with the substantive appeal in the second claim, on 6-7 June 1996 (see paragraphs 22 and 50 above), and dismissed in a decision dated 25 October 1996. Costs were again awarded against the applicant as a result of her unreasonable conduct in pursuing this appeal in the third claim, and the EAT refused leave to appeal to the Court of Appeal.", "55. In its decision of 7 July 1997 (see paragraph 24 above), the Court of Appeal refused leave to appeal the EAT’s transfer decision and costs order on the third claim.", "56. In July 1997, the applicant asked the Tribunal to adjourn the third claim to await the outcome of the present application to the European Commission of Human Rights and of an application which she indicated that she was making to the European Court of Justice. The Tribunal refused the applicant’s request for an adjournment, and listed the hearing of the third claim for 1 May 1998.", "57. On 1 May 1998, the Tribunal dismissed the third claim at a hearing at which the applicant declined to appear. She has not attempted to appeal against that decision." ]

[ 3 ]

[ "8. The applicant was born in 1950 and lives at Jerez de la Frontera (in the province of Cadiz).\nShe teaches history and geography at secondary-school level. From 1 July 1989 to 30 June 1994 she was the head teacher of a secondary school in Jerez de la Frontera where she taught.", "9. The Autonomous Community of Andalusia gave notice through an advertisement in the Official Gazette of 31 December 1991 of an internal competition to fill 2,014 senior teaching posts at secondary-school level. On 16 February 1993 the Department of Education and Science of the Autonomous Community of Andalusia (“the Department”) published a provisional list of the candidates whose applications to take part in the competition had been accepted. The final list comprised 4,901 candidates, including the applicant, and was published on 27 March 1993.", "10. On 9 December 1993 the Department published the candidates’ assessments and the number of marks awarded to each under the chosen selection criteria, in order to allow any complaints to be lodged.", "11. By an order of 7 February 1994, it published a final list of the candidates, including the applicant, who had passed the examination.", "12. In January 1994 more than 300 candidates issued proceedings in the Administrative Division of the Andalusia Higher Court of Justice complaining about the manner in which the competition had been organised and, in particular, of the use of, and weighting given to, teacher-training diplomas in the assessment process, which they maintained was discriminatory. Notice of each individual application was published in the Official Gazette of the province of Seville. The national and regional press carried reports that a large number of legal actions had been brought complaining about the organisation and results of the competition and that senior officials in the Andalusian government or members of their families had passed the examination as a result of the significant weighting given to one of the assessment criteria. The dispute was referred to the Ombudsman (defensor del pueblo) for Andalusia, who strongly criticised the weighting system and advised the Andalusian government to annul the competition. The teachers unions took a stand on the matter, which was also debated in the Andalusian parliament.", "13. By a decision of the Department dated 15 March 1994 the applicant was appointed to the grade of senior history and geography secondary-school teacher.", "14. In the judicial review proceedings that had been brought by a large number of candidates, the Andalusia Higher Court of Justice ordered the Department to furnish a list of the candidates in the competition, to produce the administrative file and to serve notice on interested third parties to attend the hearing. The Department lodged written pleadings, but without identifying the interested third parties who ought to be summoned. At the end of the proceedings, in a judgment of 31 March 1995, the Higher Court of Justice annulled the competition for history and geography teachers and directed the examiners to re-mark the examination papers without applying the disputed weighting.", "15. In other judicial review proceedings that had been brought in the Andalusia Higher Court of Justice on the same grounds, interested third parties, who had not been personally served with summonses to appear, made an application under Article 24 of the Constitution for leave to intervene after learning about the proceedings from other sources. The Higher Court of Justice agreed to their participation in the proceedings.", "16. On the reassessment of the candidates under the procedure laid down by the Higher Court of Justice, the applicant did not attain the requisite level and failed the examination. The Department issued an order on 31 August 1995, which was published on 9 September 1995 in the Official Gazette of the Autonomous Community of Andalusia, annulling her appointment to the senior teaching post.", "17. The applicant lodged an amparo appeal with the Constitutional Court under Article 24 of the Constitution (right to a fair hearing) against the Higher Court of Justice’s judgment of 31 March 1995 and the Department’s order of 31 August 1995. She said in her appeal that she had learnt of the notice in the 9 September 1995 issue of the Official Gazette of the Autonomous Community of Andalusia by accident and complained in substance that the process whereby her appointment to the senior teaching post had been annulled was unfair, as she had not been summoned to appear before the Andalusia Higher Court of Justice as an interested party to the dispute. In that connection, she argued, inter alia, that the Higher Court of Justice had been under a duty under section 64 of the Administrative Courts Act to inform her of the court proceedings and to summon her to appear. She also sought a stay of execution of the Andalusia Higher Court of Justice’s judgment.", "18. In a decision of 5 February 1996 the Constitutional Court declared her amparo appeal admissible.", "19. On 26 February 1996 the Constitutional Court granted the applicant a stay of execution; it discharged that order on 27 May 1996.", "20. State Counsel lodged written pleadings with the Constitutional Court on 30 May 1996 concerning the amparo appeal. He argued that the appeal should be allowed in part, as there had been a violation of Article 24 of the Constitution for the following reasons:\n“... In order to examine this appeal, it is necessary to recapitulate the criteria and conditions laid down in the case-law of the Constitutional Court establishing that a failure to serve a summons personally will violate the right to the effective protection of the courts.\nIn that connection, the notion of ‘legitimate interest’ has a special meaning for the purposes of Article 24 § 1 (of the Constitution), as it determines who has a legitimate right to take part in court proceedings, that is to say standing as an interested party to bring an appeal.\nThe Constitutional Court has frequently stated that the notion of ‘legitimate interest ... is defined as an advantage or any legal benefit arising out of the remedy sought’ (judgment no. 60/1982). In the present case, it will be seen that the appellant had a legitimate interest in the application before the Andalusia Higher Court of Justice, as she was liable to be affected by the judgment, which resulted in a new list of selected candidates being drawn up and, consequently, the loss of her newly obtained status as a senior secondary-school teacher. From that standpoint, therefore, it was vital for the summons to be served on her personally and directly in the proceedings. 3. Secondly, ... since the appellant was identifiable, it is necessary to determine whether she could have been served personally. In that connection, it will be observed from the pleadings lodged with the Higher Court of Justice in support of the application for judicial review that it was not only the ‘scale’ that was contested, but also the provisional list of candidates permitted to take part in the competition, which means that the persons concerned were readily identifiable. 4. Consequently, it was not only necessary, but also feasible, for the appellant to be summoned personally and directly. The last requirement is that the person concerned should have no knowledge of the proceedings. In the present case, there is no evidence to suggest that the appellant knew or could have found out about the proceedings, as the judgment was not even served on her. Accordingly, the rule established in the Constitutional Court’s judgment no. 117/1983 should be applied, namely: ‘this Court will only dismiss the appeal if there is evidence establishing that the appellant was aware of the proceedings ...’ 5. In the light of the foregoing, in the present case, the appellant should have been summoned to appear in the judicial review proceedings in the Andalusia Higher Court of Justice. The fact that she was not so summoned put her in a position that was prejudicial to her defence rights, in breach of the fundamental right guaranteed by Article 24 § 1 of the Spanish Constitution.”", "21. In a decision of 8 March 1999, the Constitutional Court ordered the joinder of various amparo appeals against the Andalusia Higher Court of Justice’s judgment in which the appellants all relied on the same points of law.", "22. In a judgment delivered on 14 September 1999 after an adversarial hearing, the Constitutional Court dismissed the amparo appeal.", "23. With respect to the complaint that the annulment of the applicant’s appointment to the senior teaching post was tainted with procedural unfairness, owing to the failure to summon her to appear before the Andalusia Higher Court of Justice as an interested party to the dispute, the Constitutional Court held:\n“... 4. ... While it is true that the appellants allege, firstly, a violation of section 64 of the Administrative Courts Act on the ground that the Seville Administrative Proceedings Division effected service by advertisement and not personally, such a violation would only have a legal bearing on a constitutional amparo appeal if the breach of the Act also constituted a violation of the fundamental right relied on (see judgments nos. 15/1995 and 197/1997, legal reason no. 4). This Court addressed the issue of failure to summon third parties with an interest in judicial review proceedings in detail in its judgment no. 9/1981. The rules established in that case have been systematically recited, inter alia, in decisions delivered during the current decade, in judgments nos. 97/1991 (legal reason no. 2); 78/1993 (legal reason no. 2); 325/1993 (legal reason no. 3); 192/1997 (legal reason no. 2); 229/1997 (legal reason no. 2); 122/1998 (legal reason no. 3); and 26/1999 (legal reason no. 3). As a general rule, the following three conditions must be satisfied for amparo relief to be granted:\n(a) The appellant must have a personal legitimate right or interest capable of being affected by the judicial review proceedings concerned ...\n(b) It must be possible for the court or tribunal concerned to identify the appellant. Whether that requirement is satisfied will depend essentially on the information set out in the notice of application, the administrative file or the grounds of appeal ...\n(c) Lastly, the appellant must have been a victim of a material infringement of his or her defence rights [indefensión material]. There will be no material infringement of defence rights if the person concerned has constructive notice of the proceedings and has not appeared through want of diligence. A finding that the person concerned had constructive notice of the proceedings must be based on reliable evidence [fehaciente] (judgments nos. 117/1983 (legal reason no. 3); 74/1984 (legal reason no. 2); 97/1991 (legal reason no. 4); 264/1994 (legal reason no. 5); and 229/1997 (legal reason no. 3)). That does not prevent proof being established on the basis of presumptions (judgments nos. 151/1988 (legal reason no. 4); 197/1997 (legal reason no. 6); 26/1999 (legal reason no. 5); and 72/1999 (legal reason no. 3). The presumption that the person concerned had notice will be particularly strong in cases concerning civil servants employed by an authority that is a defendant in the proceedings (judgments nos. 45/1985 (legal reason no. 3); and 197/1997 (legal reason no. 6)). 5. The application of the aforementioned constitutional parameters to the present case gives the following results:\n(a) Firstly, the appellants indisputably had a legitimate interest ...\n(b) Secondly, ... in the present case, the Administrative Division had precise details of the co-defendants or other parties, as the application for judicial review referred to the provisional list of the selected and unselected candidates ... and even the final list of candidates ...\n(c) However, thirdly, as to whether there has been a material infringement of the rights of the defence, this Court held in its judgment no. 113/1998 (legal reason no. 4) that it was reasonable to presume that teachers had constructive notice of judicial review proceedings when, as in the present case, they had been appointed to their senior teaching posts following a competition that had been challenged in the administrative courts, had attracted extensive media coverage and had had an important impact in trade-union circles ...\nWe reach the same conclusion in the present case. A number of articles on the proceedings challenging the scale used in the competition (and the list of candidates selected to take part) have appeared in large circulation newspapers in Andalusia (the case has received extensive coverage in Diario 16 (Andalusia), ABC (Seville edition), Jaén, El País, Huelva Información and Diario de Córdoba)). The underlying issues were also examined by the Andalusian parliament at a briefing session (held on 24 November 1994). In June 1994 the Department of Education and Science sent a memorandum to the teachers via the ‘Sector Education Office’ expressly informing them of the proceedings pending in the Andalusia Higher Court of Justice. To these considerations must be added the subjective characteristics common to all the applicants: they are all civil servants employed by the defendant authority; as teachers, they are in a category of the population that has frequent access to the media, particularly the press. Lastly, the number of people affected by the appeals is very high (4,091 teachers entered the competition and 2,014 were selected in a very specific functional environment (teaching)). In the light of the foregoing, we reach the clear conclusion that the appellants had constructive notice of the judicial review proceedings that were heard by the Administrative Division in Seville. Consequently, their failure to take part in those proceedings was not attributable to any lack of diligence by that Division. Accordingly, there has been no violation of the right to the protection of the courts (Article 24 § 1 of the Spanish Constitution).”" ]

[]

[ "9. The applicant was born in 1932 and lives in Xanthi.", "10. In 1990 one of the two Muslim religious leaders of Thrace, the Mufti of Xanthi, died. On 15 February 1990 the local Prefect (Νομάρχης) appointed the applicant to act as a deputy (τοποτηρητής).", "11. In August 1990 the two independent Muslim Members of Parliament for Xanthi and Rodopi requested the State to organise elections for the post of Mufti of Xanthi. Having received no reply, the two independent MPs decided to organise themselves elections at the mosques on 17 August 1990 after the prayers. On that date the applicant was chosen to be the Mufti of Xanthi by those attending Friday prayers at the mosques.", "12. On 24 December 1990 the President of the Republic, on the proposal of the Council of Ministers and under Article 44 § 1 of the Constitution, adopted a Legislative Act (πράξη νομοθετικού περιεχομένου) by which the manner of election of the Muftis was changed. Law no. 1920/1991 retroactively validated the Legislative Act of 24 December 1990.", "13. On 20 August 1991, in accordance with the new regulations, the Greek State appointed another Mufti. The applicant refused to step down.", "14. Eight sets of criminal proceedings were instituted against the applicant under Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a “known religion”. The Court of Cassation, considering that there might be disturbances in Xanthi, decided, under Articles 136 and 137 of the Code of Criminal Procedure, that the proceedings should take place in other cities. The applicant was legally represented throughout the proceedings by lawyers of his own choice. The courts heard a number of prosecution and defence witnesses.", "15. On 17 January 1994 criminal proceedings were instituted against the applicant on the ground that on 11 January 1993 and 19 April 1993 he had issued messages in the capacity of the mufti of Xanthi.", "16. On 28 June 1996 the single-member first instance criminal court (Μονομελές Πλημμελειοδικείο) of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2206/1996). The applicant appealed (see below paragraph 19).", "17. On an unspecified date the applicant was charged for having issued messages in the capacity of the mufti of Xanthi on 3 January 1994, 19 January 1994 and 10 February 1994.", "18. On 28 June 1996 the single-member first instance criminal court of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2207/1996). The applicant appealed.", "19. On 29 April 1998 the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Agrinio upheld the applicant’s conviction in the first and second sets of proceedings. It imposed a global sentence of six months’ imprisonment and converted it into a fine (decision no. 682/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29).", "20. On 20 January 1996 a third set of proceedings was instituted against the applicant for the same offence on the ground that on 3 May 1995, 11 November 1995, 13 December 1995, 30 December 1995 and 17 January 1996 he had issued messages in the capacity of the mufti of Xanthi.", "21. On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and sentenced him to twelve months’ imprisonment (decision no. 1336/1997). The applicant appealed.", "22. On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction and imposed a sentence of eight months’ imprisonment. The court converted this sentence into a fine (decision no. 641/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29).", "23. On 10 September 1996 a fourth set of proceedings was instituted against the applicant on the ground that on 8 August 1995 he had issued a message in the capacity of the mufti of Xanthi.", "24. On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and imposed on him an eight months’ prison sentence (decision no. 1335/1997). The applicant appealed.", "25. On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction but reduced the prison sentence to six months and converted it into a fine (decision no. 640/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29).", "26. On an unspecified date a fifth set of proceedings was instituted against the applicant on the ground that on 6 March 1994, 15 May 1994, 14 August 1994, 22 November 1994, 24 December 1994 and 9 January 1995 he had issued messages in the capacity of the mufti of Xanthi.", "27. On 7 May 1996 the single-member first instance criminal court of Thessaloniki found him guilty and sentenced him to ten months’ imprisonment (decision no. 23145/1996). The applicant appealed.", "28. On 5 November 1998 the three-member first instance criminal court of Thessaloniki upheld the applicant’s conviction but reduced the prison sentence to eight months and converted it into a fine (decision no. 14370/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 30).", "29. On 12 March 1999 the Court of Cassation rejected the applicant’s appeals concerning the first, second, third and fourth sets of proceedings. It considered that the offence in Article 175 of the Criminal Code was committed “when somebody appeared as a minister of a known religion and when he discharged the functions of the minister’s office including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he behaved and appeared as the Mufti of Xanthi. It further considered that the applicant’s conviction was not contrary to Articles 9, 10 and 14 of the Convention, because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a Mufti. As regards Article 6 of the Convention, the Court of Cassation considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights (judgments nos. 592/1999 and 594/1999).", "30. On 2 June 1999 the Court of Cassation rejected the applicant’s appeal concerning the fifth set of proceedings for the reasons set out in its judgments nos. 592/1999 and 594/1999 (judgment no. 1133/1999).", "31. Three more sets of proceedings were instituted against the applicant on the ground that on various dates he had issued messages in the capacity of the mufti of Xanthi. The applicant was found guilty by the single-member first instance criminal court of Lamia (decisions nos. 4660/1997, 2552/1998 and 4699/1997).", "32. On 28 March 2001 the three-member first instance criminal court of Lamia acquitted the applicant in the light of the Court’s judgment in the Serif v. Greece case (no. 38178/97, ECHR 1999–IX). The court held that, by addressing religious messages to a group of people who voluntarily followed him as their religious leader, the applicant had not usurped the functions of a minister of a “known religion”, but had simply exercised his right to manifest his religion, a right guaranteed by Article 9 of the Convention (decisions nos. 1000/2001, 1001/2001 and 1002/2001)." ]

[ 5 ]

[ "9. The applicant was born in 1966 and lives in Austria.", "10. On 10 April 1996 the applicant was arrested and on 12 April the Wels Regional Court (Landesgericht) remanded her in custody on suspicion of murder. Her repeated requests for release remained unsuccessful.", "11. On 13 December 1996 the Wels Regional Court, sitting as an assize court, composed of three professional judges and an eight member jury, acquitted the applicant. The jury answered the main question as to murder with six votes “no” and two votes “yes”. In the record of its deliberations, the jury gave the following reasons for its decision: “The evidence produced at the trial is not sufficient to convict the accused. As the incriminating witnesses were partially not credible – acquittal in dubio”. Upon the pronouncement of the acquittal, the applicant was released.", "12. Immediately after the pronouncement of the acquittal, at the same hearing, the applicant requested compensation for her detention on remand. The Wels Regional Court, with the same composition as above, dismissed the applicant’s claim. It found that, apart from the fact that the jury’s verdict had not been unanimous, the suspicion against the applicant had not been dispelled. Thus the requirements of section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969 – “the 1969 Act”) were not met. In particular, the statement of the applicant’s parents that she had spent the night of the murder at their home was not credible. In addition, she had owned a weapon which could have been the one used for the murder and her defence that she had no contact with the victim shortly before the commission of the crime had been disproved by the statements of a number of witnesses. The decision was served on the applicant after her acquittal had become final on 17 December 1996.", "13. The applicant lodged an appeal with the Linz Court of Appeal (Oberlandesgericht). She argued that section 2 (1)(b) of the 1969 Act was incompatible with Article 6 § 2 of the Convention. Furthermore, the main suspicion against her had been dispelled during the trial.", "14. On 20 June 1997 the Linz Court of Appeal dismissed the applicant’s appeal. Referring to the case of Sekanina v. Austria (judgment of 25 August 1993, Series A no. 266-A), it considered that only a decision which, following the accused’s acquittal, expressed the view that he or she was guilty could violate the presumption of innocence, whereas the Regional Court had only found that there was a remaining suspicion against the applicant. Further, referring to the Constitutional Court’s (Verfassungsgerichtshof) judgment of 29 September 1994, it found that section 2 (1)(b) of the 1969 Act was not in itself incompatible with Article 6 § 2 of the Convention. The Court of Appeal continued as follows: \n“Nor does the principle of the presumption of innocence prevent the prosecuting authorities from suspecting someone of having committed an offence. By section 2(1)(b) of the [1969 Act], refusal of a claim [for compensation] (on the ground that suspicion has not been dispelled) depends not on proven guilt but on the possibility that the person concerned may have committed the offence and therefore on a (persisting) suspicion... In the instant case it was precisely such a suspicion concerning Snjezana Vostic that had not been wholly dispelled, particularly in view of the fact that it was still possible that Snjezana Vostic’s gun had been the murder weapon; furthermore, inconsistencies remain unresolved. The trial court thus rightly held that the testimony given by the parents of the appellant, whose alibi related to the night of 31 March to 1 April 1996, was not credible; and Snjezana Vostic’s own testimony to the effect that she had last seen Sejdo Nadarevic in mid-February 1996 was in the end disproved by the witnesses who gave evidence at the trial.”" ]

[ 3 ]

[ "9. The applicant was born in 1960 and lives in the village of Altınakar, Diyarbakır, Turkey.", "10. The facts of the case, as submitted by the parties, may be summarised as follows.", "11. On 21 June 1993 the applicant's husband, M.S.Ö., was arrested in the hamlet of Dikmetaş (“Kırkat” in Kurdish) of the Ortaşar village (Çınar) by gendarmes from the Diyarbakır gendarme regiment (“Alay Komutanlığı”). Another person, C.G., was also arrested at the same time.", "12. The applicant claims that on 21 June 1993 gendarmes searched their house between 4.00 a.m. and 8.30 a.m. Her husband was taken away in a jeep along with C.G. by gendarmes who had arrived by helicopter. The applicant maintains that one of the commanding officers had grey hair, was about 50 years old and was referred to as “Apo” by the gendarmes. Her husband and C.G. were taken to a wooded area outside the village. Her husband was stripped naked and strung up by his arms using the form of torture known as Palestinian hanging. The gendarmes fastened a rope to his genitals and pulled on it. Electric shocks were administered to his body and he was subjected to torture until 5.00 p.m. Her husband's condition deteriorated. He was taken to Çınar Gendarme Station", "13. The search of her house ended at 7.30 p.m. She and her children were ill-treated during the time of the search.", "14. The arrest record drawn up by the gendarmes, dated 21 June 1993, mentioned that the gendarmes had, in a joint operation involving members of the Diyarbakır Provincial Central Gendarme Command and Çınar District Gendarme Command, surrounded Dikmetaş hamlet following reception of information to the effect that the inhabitants had been providing assistance to and sheltering PKK militants. M.S.Ö. and C.G., despite the warning issued, had resisted arrest and tried to flee. The report indicated that the security forces had to use force to arrest and take them into custody. According to the report, M.S.Ö. and C.G had been arrested for questioning and with the aim of bringing them before a judicial authority. The report was signed by M.S.Ö. and C.G. as well as by two team commanders and two operations commanders.", "15. On 22 June 1993 M.S.Ö. was taken to the emergency unit of Diyarbakır State Hospital. A medical report dated 22 June 1993 referred to the following marks having been found on M.S.Ö.'s body: three bruises, each 10 cm long, on the back of his arm; bruises on his back; a rash and bruise on the joint of his collarbone. The report was signed by Dr Uğur N. Yüce. M.S.Ö. was put in the urology unit, in the section reserved for detainees.", "16. The applicant's husband was released from the hospital and taken to Diyarbakır gendarme regiment headquarters. His questioning continued under medical control. His health deteriorated and he had to be transferred back to the hospital. In a letter dated 4 July 1993 Hakan Polat, a senior officer, requested the Chief Medical Officer of Diyarbakır State Hospital to admit the applicant for treatment.", "17. On 5 July 1993 the public prosecutor attached to the Diyarbakır State Security Court went to the detainees' unit in the Diyarbakır State Hospital. A report drawn up on the same day referred to the fact that M.S.Ö. could not speak and that he had traces of blood around his mouth. The public prosecutor's report indicated that no statement could be taken from M.S.Ö.", "18. On 5 July 1993 M.S.Ö. died at Dicle University Hospital.", "19. On 5 July 1993 two doctors carried out an autopsy on M.S.Ö.'s body in the presence of the prosecutor attached to the Diyarbakır State Security Court. The prosecutor drew up a detailed report. The doctors' findings in the report mentioned, among other injuries, fractures with bruising on three of the deceased's ribs. Bruises were also found on his arms and buttocks as well as slight bruising and lesions to his right foot. Blood was found in the deceased's mouth. An examination of the deceased's skull and brain revealed internal bleeding. The doctors requested that an examination of a number of parts of M.S.Ö.'s body including his heart, pancreas, liver and brain be carried out by the İstanbul Forensic Medicine Institute.", "20. On 6 or 7 July 1993 the religious leader (“imam”) of Ortaşar Village was called to the Çınar Gendarme Station and informed that M.S.Ö. “had become cancerous while in custody like all other P.K.K. sympathisers and had died”. The applicant claims that unknown persons telephoned her around the same time informing her that her husband had died.", "21. On 8 July 1993 M.S.Ö.'s brother, Nafiz, submitted a petition to the Public Prosecutor's Office at the Diyarbakır State Security Court, in which he stated that he feared for his brother's life. On the same day the Public Prosecutor's Office at the Diyarbakır State Security Court arranged for the issue of a burial licence and M. Ö.'s body was given to his family. The family was informed in the burial licence that a full autopsy had been carried out on the deceased.", "22. On 22 July 1993 the prosecutor attached to the Diyarbakır State Security Court declared that he lacked jurisdiction to investigate M.S.Ö.'s death and transferred the case file to the Diyarbakır public prosecutor so that the latter could carry out a preliminary investigation.", "23. On 8 December 1993, Burhanettin Aykenar, commander of Çınar Gendarmes Station, made a statement in respect of the death of M.S.Ö. He deposed that M.S.Ö. and C.G. had attempted to flee from the security forces and had to be restrained by force. They were brought to Çınar medical unit. Bruises were found on their bodies as a result of the application of force to effect their arrest. He stated that both men had been handed over to the Diyarbakır gendarme regiment following a medical check.", "24. On 28 March 1994 the Diyarbakır gendarme regiment informed the Diyarbakır public prosecutor that the two gendarmes who had questioned M.S.Ö. had been killed in a confrontation with terrorists.", "25. On 29 April 1994 Ender Köseoğlu, a gendarme officer attached to Çınar gendarme regiment, stated that force had to be used to detain 30 villagers on 21 June 1993. He stated that Sergeant Önder Pala and Corporal Yüksel Bayar had been in the interrogation team. The latter officers had identified three of the detainees as being members of the PKK. Two of the detainees, M.S.Ö. and N.T., were feeling unwell and he was ordered to transfer them to hospital on 22 June 1993. He stated that he handed over the third detainee, C.G., to Sergeant Önder Pala. M.S.Ö. remained in hospital until 26 June 1993.", "26. At the conclusion of the preliminary investigation, the Diyarbakır public prosecutor accused the two gendarmes who had taken M.S.Ö. into custody of having caused the death of a third person through professional negligence. The prosecutor based his finding in particular on the report prepared by the Forensic Medical Institute which concluded that: “severe wounds had been found on the deceased's body and that death had resulted from cranial trauma provoking cerebral bleeding”. In application of Article 96 of the Penal Code which provides that “the death of a suspect brings an investigation to an end”, the public prosecutor, on 6 April 1994, issued a decision not to bring charges against the two gendarmes. The applicant only learned about the decision on 6 February 1996.", "27. On 13 February 1996 the applicant challenged the public prosecutor's decision of 6 April 1994 before the President of the Siverek Assize Court. The President, on the basis of the file submitted to him, dismissed the applicant's challenge on 6 March 1996.", "28. On 21 June 1993 the security forces from the Diyarbakır gendarme regiment carried out “the spring operation” in the Dikmetaş hamlet. The applicant's husband, M.S.Ö., was arrested together with another villager while trying to flee from the security forces. The gendarmes had to use force to apprehend them.", "29. After their arrest and their statement concerning, inter alia, the discovery of a shelter measuring 4 by 3 metres, a gun and ammunition, M.S.Ö. was taken to the Çınar medical unit and then to the Diyarbakır State Hospital on 22 June 1993. He was put in the wing reserved for detainees. There he was questioned about, inter alia, his links with the PKK. The public prosecutor attached to the Diyarbakır State Security Court was informed about the incident.", "30. M.S.Ö. was considered well enough to be questioned and was taken back into custody at the Diyarbakır gendarme regiment headquarters. However, his state of health deteriorated and he had to be transferred again to the Diyarbakır State Hospital on 4 July 1993.", "31. On 5 July 1993 the prosecutor attached to the Diyarbakır State Security Court was unable to question M.S.Ö. on account of the latter's condition. On 5 July 1993 M.S.Ö. was transferred from the Diyarbakır State Hospital to the Dicle University Hospital, also in Diyarbakır. M.S.Ö. died there a few hours later.", "32. On 5 July 1993 an autopsy was carried out on his body. Tissue samples were taken from the body and sent to the İstanbul Forensic Medecine Institute for analysis. In a report dated 17 September 1993, the Forensic Medicine Institute stated that M.S.Ö. had died from brain haemorrhage resulting from a blow on the head.", "33. On 22 July 1993 the public prosecutor attached to the Diyarbakır State Security Court issued a supplementary decision of non-jurisdiction and sent the preliminary investigation file to the Diyarbakır Chief Public Prosecutor's Office. He noted that his Office lacked jurisdiction to deal with the matter and that the Diyarbakır Chief Public Prosecutor's Office should determine whether M.S.Ö.'s death had been caused by the gendarmes on duty at the time.", "34. In a letter dated 27 November 1993 Arif Ekmen, the Çınar District Gendarme Commander, wrote to the public prosecutor informing him that he had identified two of the gendarmes who arrested M.S.Ö. on 21 June 1993, namely Hakan Polat, a senior officer and Burhanettin Aykenar, a sergeant. He stated that the names of other gendarmes involved could be obtained through the Provincial Central Regiment Command. Arif Ekmen confirmed that on 22 June 1993, M.S.Ö. was sent to the Provincial gendarme regiment headquarters, in Diyarbakır, for interrogation.", "35. On 8 December 1993 Burhanettin Aykenar deposed that he and other gendarmes under the command of Hakan Polat went to Dikmetaş hamlet on 21 June 1993 at around five past midnight. He stated that he was the Central Station Commander of Ortaşar village (Çınar). When they entered Dikmetaş hamlet, two individuals began to flee and they gave chase. They had to be forcibly apprehended using a rifle butt. The arrestees showed them two shelters, where guns and documents were discovered. M.S.Ö. was brought to Çınar medical unit. A medical report noted bruising on M.S.Ö.'s body. The bruises had occurred as a result of the arrest of the accused. M.S.Ö. was held in Çınar gendarme regiment headquarters. A request was made to question M.S.Ö. about his involvement in PKK activities. M.S.Ö. was taken to the Provincial Regiment headquarters at Diyarbakır for questioning on 22 June 1993. It was later learned that M.Ö had died in Diyarbakır State Hospital. Burhanettin Aykenar denied that M.S.Ö. had been tortured at the time of his arrest. Force had been applied since M.S.Ö. had resisted arrest. Burhanettin Aykenar signed the arrest record as a unit commander.", "36. Following a request for information made by the Office of the Public Prosecutor of Diyarbakır on 20 January 1994 and 8 March 1994 regarding the circumstances surrounding the death of M.Ö, Colonel Eşref Hatipoğlu replied in writing on 28 March 1994 stating that M.S.Ö. had been questioned by Sergeant Önder Pala and Corporal Yüksel Bayar of the Diyarbakır gendarme regiment. He affirmed that M.S.Ö. was brought to the hospital by Ender Köseoğlu. Colonel Eşref Hatipoğlu stated that Sergeant Önder Pala and Corporal Yüksel Bayar were killed in clashes with the PKK.", "37. In the light of this information the Diyarbakır public prosecutor, on 6 April 1994, decided not to bring criminal proceedings against Sergeant Önder Pala and Corporal Yüksel Bayar of the Diyarbakır gendarme regiment. In his decision the public prosecutor stated as follows:\n“Two PKK members, M.S.Ö. and C.G., were arrested by force by the Diyarbakır Gendarme regiment during the “Spring operations” launched after 20 June 1993. After they had given statements about two shelters where a gun and PKK-related documents were found, it was decided to broaden the investigation and they were brought from Çınar to Diyarbakır by the accused gendarme officers who were assigned to interrogation team. There the accused assaulted M.S.Ö. As a result of the assault M.S.Ö. was twice transferred to hospital and died after the second transfer. An autopsy was carried out on his body. Tissue samples were taken from and sent to the İstanbul Forensic Medicine Institute for analysis. In its report the Forensic Medicine Institute stated that M.S.Ö. had died from a brain haemorrhage as a result of a head injuries. It is understood that the two accused gendarme officers committed the offence. \nIt has been decided to issue a decision to discontinue the criminal proceedings (Takipsizlik kararı - non-prosecution decision) under the provisions of Article 96 of the Criminal Code having regard to the correspondence of Gendarme Commander Office dated 28 March 1994 and numbered 0621-270-94/2418 and additional correspondence dated 30 May 1993 and 20 July 1993 in which the Gendarme Commander Office has stated that the accused Önder Pala was wounded in a confrontation with PKK members in the region of Neygül hill (Diyarbakır-Kulp) on 28 January 1994 and died on 17 February 1994 in Diyarbakır Military Hospital. Furthermore, Yüksel Basar was killed in a confrontation with the PKK in Diyarbakır-Lice on 22 October 1993.”" ]

[ 9 ]

[ "8. The applicant was born in 1943 and lives in Blaubeuren.", "9. On 25 October 1995 the Tübingen District Disciplinary Court for Medical Practitioners (Bezirksberufsgericht für Ärzte) imposed a fine amounting to 2,000 German marks (“DEM”) upon the applicant, an ophthalmologist, for disregarding the ban on advertising under the relevant provisions of the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council (Berufsordnung der Landesärztekammer) and the Act on the Councils for the Medical Professions (Heilberufe‑Kammergesetz).", "10. In its reasoning, the Disciplinary Court found that the applicant performed medical operations with a laser technique. In the house where he had his consultation rooms, his wife ran an “excimer-laser-centre”. In May 1994 the journalist Ms K. of the newspaper Schwäbische Zeitung had visited the applicant, upon appointment, in his consultation rooms and discussed his new laser operation technique. Moreover, a photograph was taken of the applicant at his place of work. On 26 September 1994, there had appeared in the said newspaper an article signed by Ms K. and entitled “Cornea under fire – laser restores full vision. In Blaubeuren, the ‘photorefractive keratotomy’ has been applied since three years – operation risks are low - expenses are partly reimbursed by the insurances” (“Die Hornhaut unter Beschuss – Laser gibt dem Auge die volle Sehkraft zurück. In Blaubeuren wird seit drei Jahren die ‘Photorefraktive Keratektomie’ angewandt – Operationsrisiken sind gering – Kosten werden teilweise von den Kassen übernommen.”). In the article, it had been inter alia stated that, according to his indications, the applicant had treated more than 400 patients having defective vision with a laser technique and that in no case had any subsequent corrective measures been necessary and that accordingly he had a success rate of 100%. The article had also reported the applicant’s statement that the long-term success of an operation depended upon the experience of the medical practitioner and on the selection of the patients. The article had been illustrated by a photograph of 12x19 cm in size which showed the applicant at his computer pointing to the monitor. It had the caption: “On the occasion of the ‘mapping’ Dr Miro Stambuk sees on the monitor of his computer whether or not the patient can be treated with the laser technique” (“Beim ‘mapping’ sieht Dr. Miro Stambuk auf dem Monitor seines Computers, ob ein Patient mit dem Laser behandelt werden kann.”).", "11. The Disciplinary Court considered that the applicant had thereby disregarded sections 25(2) and 27 of the Rules of Professional Conduct of the Medical Practitioners’ Council (see below, Relevant domestic law, paragraph 20). Thus, according to section 25(2), a medical practitioner should not allow for picture-stories to be published in respect of his professional activities which had an advertising character, indicated the name and showed a photograph. According to section 27, the cooperation of a medical practitioner in informative publications in the press was only permissible if these publications were limited to objective information and if the person and the activities of the practitioner were not presented in the form of an advertisement. In press interviews, the medical practitioner was held to “responsible objectivity” (“verantwortungsbewusste Objektivität”).", "12. According to the Court, the applicant had disregarded these rules in that he had, in the interview, stressed having treated more than 400 patients and had had a success rate of 100%. He had thereby mainly aimed at giving prominence to his own person. This was confirmed by his remark about his professional experience. Likewise, the large photograph, showing the applicant in his medical coat posing as lecturer in front of his computer, went beyond the permissible limits of objective information, as, together with the self-praise found in the text, the message was conveyed that the applicant was a particularly experienced medical practitioner. The applicant should have negotiated with the reporter the objective character of the publication and the size of the photograph in order to comply with the ban on advertising.", "13. On 15 June 1996 the Stuttgart Disciplinary Appeals Court for Medical Practitioners (Landesberufsgericht) dismissed the applicant’s appeal. The Appeals Court confirmed the facts established by the District Court and its legal reasoning.", "14. The Appeals Court considered in particular that in order to give effect to the ban on advertisement as laid down in section 25(1) of the Rules of Professional Conduct, cooperation with the press had to be prohibited to the extent that publications had an advertising character (section 25(2)). No less restrictive measure was available. The wording of a publication could disguise its advertising character and thus be a means to circumvent the ban on prohibition.", "15. Having regard to the circumstances of the interview and the presentation of the article, the Appeals Court further considered that the applicant had not only tolerated that an article was published which would go beyond objective information on a particular operation technique, but had deliberately acted so as to give prominence to his own person. The Appeals Court also stated that, having regard to the interests of his colleagues, the ban on advertising outweighed the applicant’s freedom to exercise his profession .", "16. On 7 May 1997 the Federal Constitutional Court refused to admit his constitutional complaint. The decision was served on 22 May 1997." ]

[ 6 ]

[ "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. Between August 1995 and the applicant’s arrest on 21 January 1996, he was the target of surveillance by the police. Using a “clone” of the applicant’s pager, the police were able to intercept messages sent to him. The pager system used by the applicant and intercepted by the police operated as follows: The sender, whether in the United Kingdom or overseas, would telephone the pager bureau in the United Kingdom via the public telephone network. The pager operator would key the message into a computer and read it back to the sender to confirm its accuracy. The computer message was transmitted via the public telephone system to the pager terminal, from where it was relayed by radio to one of four regional base stations and thence, again by radio, simultaneously to the applicant’s and the police’s clone pagers, which displayed the message in text.", "10. The applicant was arrested and charged with conspiracy to supply a controlled drug. The prosecution alleged that he had been one of the principal organisers of the importation to the United Kingdom from Amsterdam of over 22,000 ecstasy tablets worth approximately GBP 268,000. He was tried, along with a number of alleged co-conspirators, at Bristol Crown Court in September 1997.", "11. Part of the prosecution case against the applicant consisted of the contemporaneous written notes of the pager messages which had been transcribed by the police. The applicant’s counsel submitted that these notes should not be admitted in evidence because the police had not had a warrant under section 2 of the Interception of Communications Act 1985 (“the 1985 Act”) for the interception of the pager messages. However, the trial judge ruled that, since the messages had been transmitted via a private system, the 1985 Act did not apply and no warrant had been necessary.", "12. The applicant pleaded not guilty. He was convicted and sentenced to ten years’ imprisonment.", "13. The applicant appealed against conviction and sentence. One of the grounds was the admission in evidence of the pager messages. The Court of Appeal, dismissing the appeal on 13 September 1998, upheld the trial judge’s ruling that the messages had been intercepted at the point of transmission on the private radio system, so that the 1985 Act did not apply and the messages were admissible despite having been intercepted without a warrant." ]

[ 4 ]

[ "7. The applicant was born in 1924 and lives in Stratford-on-Avon.", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. The applicant was an inventor and entered into an agreement with Ferranti plc whereby the latter would have exclusive rights to develop, design, manufacture and sell gaming machines based on the applicant’s ideas. The applicant also set up a company (“Transworld”) which entered into an agreement with Ferranti Instrumentation Limited relating to the marketing of the machines. The venture was not a commercial success and in June 1982 the agreements were repudiated by the respective Ferranti companies.", "10. On 4 July 1984 the applicant issued a writ in his own name and in that of Transworld (together, “the plaintiffs”) against the two Ferranti companies (together, “the defendants”). It was served on 5 July 1984. The defendants were granted one extension of time for service of the Defence with the plaintiffs’ consent and then applied to the court for a further extension. On 3 October 1984, before that application could be heard, judgment in default of defence was entered for the plaintiffs. That judgment was set aside on 12 December 1984 and the Defence was served on 20 December 1984. The defendants served a request for Further and Better Particulars of the plaintiffs’ Statement of Claim on the same date. The plaintiffs failed to reply within the fourteen-day deadline, leading the defendants to apply to the court which, on 21 March 1985, ordered that the plaintiffs reply within 42 days.", "11. The defendants applied for security for their costs, and the court granted the application on 26 September 1985 by ordering the plaintiffs to pay a sum reflecting the defendants’ likely costs up until the date for exchange of evidence. The proceedings were stayed until the security was paid.", "12. On 3 October 1985 the plaintiffs appealed against the order. A hearing was listed for later that month but was postponed, according to the applicant due to a series of errors by the court registry.", "13. The appeal was dismissed on 31 January 1986 and the plaintiffs paid the security on 28 February 1986.", "14. On 2 August 1985 the plaintiffs served a request for Further and Better Particulars of the Defence. On 8 July 1986, once the stay imposed in September 1985 had been lifted by payment of the security, an order was made by consent of the parties.", "15. On 21 May 1987 the defendants applied for an order that the plaintiffs fulfil their discovery obligations by serving a list of documents. The deadline for service of the list had expired on 3 January 1985. The order was made on 30 June 1987.", "16. The plaintiffs’ solicitors filed a Notice of Intention to Proceed on 5 January 1989 as required by the rules of court since no steps had been taken in the prosecution of the claim for more than a year. On 10 February 1989 the plaintiffs served a Summons for Directions, the deadline for which had expired on 2 February 1985.", "17. On 27 February 1989 the plaintiffs made an application for specific discovery and the defendants made a further application for security for costs. These, together with the Summons for Directions, came before the District Registrar on 7 April 1989 but were adjourned. According to the applicant, this adjournment was due to failure by the court registry properly to notify the defendants’ counsel of the hearing date. The Government state that it was due to the parties not having ensured that sufficient court time would be available. A further hearing was proposed for 1 September 1989 but was also adjourned. At a hearing on 25 October 1989 the District Registrar decided to adjourn in order to refer the matters before him to the High Court, which held hearings on 15, 17 and 24 January 1990. The application for security for costs was dismissed.", "18. On 12 February 1990 an Order for Directions was made by consent of all the parties, who indicated that they would not be prepared for trial before 1 October 1990. The trial was listed for 4 June 1991.", "19. The defendants made a payment into court of GBP 50,000 on 1 November 1990, and a second payment of GBP 50,000 on 10 April 1991. These payments failed to procure a settlement and the trial began on schedule, but had to be adjourned on 18 June 1991 as the applicant was ill. It was recommenced on 29 April 1992 and ran until 11 June 1992. On 2 October 1992, judgment was given in the plaintiffs’ favour. However, the damages award was limited to GBP 5 to each plaintiff since they could not establish that the venture would have been a commercial success had it proceeded.", "20. The plaintiffs appealed in December 1992. The plaintiffs were required, inter alia, to lodge a transcript of the material evidence given at trial by 1 March 1993, but failed to do so until 28 February 1994 due to delays in production of the transcripts by a company of court reporters.", "21. In the meantime, the defendants applied for security for costs for the appeal. A hearing on the application took place on 29 March 1993. Judgment on the application was reserved, but in the event no decision was required since Ferranti plc were put into receivership in December 1993. The receivers took over conduct of Ferranti plc’s role in the case thereafter. Ferranti Instrumentation Limited had stopped trading and ceased to exist altogether in November 1996", "22. On 21 March 1994, the Court of Appeal allocated a hearing date of 5 or 6 December 1994 for the appeal. However, in light of the uncertainties associated with Ferranti’s receivership, the appeal was stood out of the list by consent until 31 March 1995.", "23. After that date the Civil Appeals Office (“CAO”) made a number of attempts to confirm whether or not the plaintiffs would be pursuing the appeal. On 18 June 1996 the applicant informed the CAO that he would be proceeding in person. On 2 October 1996 the applicant telephoned the CAO to enquire about hearing dates but was told that his files could not be found at that time. His request for a hearing date was passed to the Court of Appeal’s Registrar on 14 November 1996 and on 6 March 1997 the Registrar directed that the CAO should liaise with the defendants to ascertain their status, which was confirmed in a letter from the defendants’ solicitors received on 25 March 1997. A letter from the CAO to the applicant of 1 May 1998 indicated that the CAO had learned of the defendants’ status separately some time during 1995 or 1996.", "24. On 8 April 1998 the CAO wrote to the applicant with details of the files which it had located. On 17 June 1998 the Registrar directed that the case be listed as soon as possible after the summer vacation. In August 1998 the CAO learnt that Ferranti Instrumentation Limited had been struck off the register of companies.", "25. On 21 October 1998 the Customer Service Unit of the Court Service wrote to the applicant acknowledging that there had been significant delay in listing the appeal (due to matters outside the authorities’ control) and that the applicant had not been properly kept informed about progress on the case and had had to chase the court unnecessarily for information. The applicant was offered an ex gratia payment to cover his wasted costs in connection with the Court Service’s admitted failures.", "26. The Court of Appeal dismissed the plaintiffs’ appeal on 13 January 1999, noting in doing so that even if the applicant had won he would not have benefited financially given the financial state of the one remaining defendant (Ferranti plc). On 19 April 1999 the Court of Appeal dismissed the plaintiffs’ request for leave to appeal to the House of Lords." ]

[ 3 ]

[ "7. The applicant is the owner of an apartment in Milan, which she had let to F.G.", "8. In a registered letter of 18 December 1985, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 28 June 1986 and asked him to vacate the premises by that date.", "9. In a writ served on the tenant on 22 October 1986, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.", "10. By a decision of 17 December 1986, which was made enforceable on 26 January 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 18 December 1987.", "11. On 23 November 1987, the applicant served notice on the tenant requiring him to vacate the premises.", "12. On 12 January 1988 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 12 February 1988.", "13. Between 12 February 1988 and 27 January 2000, the bailiff made forty-five attempts to recover possession.", "14. Each attempt proved unsuccessful as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession.", "15. On 4 April 2000, the applicant recovered possession of the apartment." ]

[ 4 ]

[ "6. The applicant is the owner of an apartment in Florence, which she had let to R.U.", "7. In a writ served on the tenant on 19 September 1986, the applicant informed the tenant of her intention to terminate the lease and summoned her to appear before the Florence Magistrate.", "8. By a decision of 28 October 1986, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.", "9. On 30 May 1989 the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.", "10. On 7 July 1989 the applicant served notice on the tenant requiring her to vacate the premises.", "11. On 15 September 1989 she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 6 October 1989.", "12. Between 6 October 1989 and 26 June 1998 the bailiff made nineteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.", "13. On 23 July 1998, the tenant spontaneously vacated the premises and the applicant recovered possession of the apartment." ]

[ 9 ]

[ "6. The applicants are the owners of an apartment in Florence, which they had let to E.F.", "7. In a writ served on the tenant on 2 November 1987, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.", "8. By a decision of 30 November 1987, which was made enforceable on 5 January 1988, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.", "9. On 20 May 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for themselves.", "10. On 7 June 1989, the applicants served notice on the tenant requiring her to vacate the premises.", "11. On 22 June 1989, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 18 August 1989.", "12. Between 18 August 1989 and 10 September 1998, the bailiff made twenty attempts to recover possession.", "13. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.", "14. Pursuant to Section 6 of Law no. 431 of 9 December 1998, the enforcement proceedings were suspended.", "15. The applicants have not recovered possession of their apartment." ]

[ 3, 9 ]

[ "13. The applicant, who was born in 1960, was sentenced with final effect to life imprisonment. He was subsequently acquitted following a retrial which he had sought after he had applied to the Court.", "14. The present application concerns the conduct of the initial proceedings.", "15. In its judgment (paragraphs 6-14) the Chamber established the following facts:\n“6. On 4 August 1993 the applicant's wife, Ms B., was murdered. A number of factors suggested that the murder had taken place between 11.30 a.m. and 12 noon (or, in any event, shortly before or afterwards) in the flat occupied by Ms A., with whom the applicant was having an extramarital affair. 7. Proceedings were subsequently instituted in respect of the applicant and Ms A.\nBetween 7 August and 8 November 1993 the applicant was interviewed four times by the Rome public prosecutor. He denied having participated in the murder and stated that on 4 August 1993 he had gone to the National Police Institute, where he worked, leaving the premises only between 10 a.m. and 11.30 a.m. in order to have some keys cut and to file certain documents at the land registry. He mentioned, in particular, that there had been a stamp missing from the file of the person in front of him in the queue at the land registry and that a discussion had ensued with a clerk. The applicant had not, however, been able to identify the person in question.\nThe time of the applicant's absence from the National Police Institute was subsequently confirmed in statements by his colleagues. During the trial the applicant produced a copy of the documents he had allegedly filed at the land registry on the day of the murder; the documents had been stamped with an acknowledgment of receipt.\nDuring questioning Ms A. stated that the murder had been committed by the applicant, who had then asked her to dispose of the body. 8. On an unspecified date the applicant and Ms A. were committed for trial in the Rome Assize Court on charges of murder and concealing a body. 9. At a hearing on 28 October 1994 the applicant made a request under Article 507 of the Code of Criminal Procedure ('the CCP') to have Mr B. summoned and examined as a witness for the defence. He asserted, in particular, that Mr B. was the person who had been in front of him in the queue at the land registry on the day of the murder and would be able to confirm the events to which the applicant had referred during questioning; Mr B.'s name had not been included on the list of witnesses because his identity had only been ascertained at a later stage after a lengthy search. ...\nIn an order of 28 October 1994 the Rome Assize Court refused the applicant's request on the ground that the examination of Mr B. was not “absolutely necessary” (Article 507 of the CCP).\nIn the course of the investigation the carabinieri carried out a reconstruction of the events in order to establish how long it would take, in early August and in a car identical to the one owned by the applicant, to cover the twenty-three kilometres from the National Police Institute to Ms A.'s flat. It was found that the return journey could be completed in forty minutes. 10. In a judgment of 29 November 1994, the text of which was deposited at the registry on 24 December 1994, the Rome Assize Court convicted the applicant and Ms A. and sentenced them to life imprisonment. It noted that the applicant had not adduced any evidence to prove that he had in fact gone to the land registry. The documents produced bore no indication that they had been filed by the applicant himself and not by another person. ...\nIn its reasoning the court also stated that a number of factors established the applicant's guilt, in particular the bruises and injuries observed on his hands and legs, the accusation made against him by his co-defendant, Ms A. (chiamata di correo), and his numerous telephone calls and meetings with her before and after the offence had been committed. 11. The applicant appealed to the Rome Assize Court of Appeal. He complained, inter alia, of the refusal to call Mr B. as a witness for the defence and of the failure to investigate facts and circumstances favourable to his case. 12. In a judgment of 27 November 1995, the text of which was deposited at the registry on 6 December 1995, the Rome Assize Court of Appeal upheld the judgment given at first instance.\nThe court noted that the defendant had been charged as a joint principal. Consequently, it observed that it had to ascertain, firstly, whether the statements accusing him were valid and, secondly, whether there was any other evidence. It therefore had regard, in the first place, to the credible and spontaneous nature of the accusation made against the applicant by his alleged accomplice. It then considered other evidence, including the fact that the defendant had had a valid motive for killing his wife. The court also noted that the autopsy had shown that two people had participated in the murder, and concluded that the only person who could possibly have assisted Ms A. was the applicant himself, seeing that all the members of her family had an alibi. It took into account the fact that a number of bruises had been observed on the applicant's body and that their location might suggest that there had been a struggle with the victim. It also considered the telephone calls between the applicant and his accomplice – noting that no calls had been made on the day of the crime – and the meetings between the two defendants that afternoon and the following day. It also noted that the victim's brother had received an anonymous telephone call referring to information that only the applicant was likely to have known. In the court's opinion, that indicated an attempt to hinder the investigations. The court concluded that the evidence it had examined offered more than satisfactory proof that the applicant had participated in the offence. Next, it assessed the significance of the alibi given by the applicant and held:\n'In the light of these unequivocal and compelling findings, no credibility can be accorded to the defendant's alibi. The court cannot but endorse the reasoning of the first-instance court, which demonstrated with the utmost precision that there was no evidence to support the defendant's submissions and that, in any event, the time of the offence was wholly consistent with the length of time during which he was absent from his place of work. ... For that reason, the defendant's applications for further evidence to be taken are irrelevant.' 14. In a judgment of 18 April 1996, the text of which was deposited at the registry on 9 May 1996, the Court of Cassation, finding that the reasons given by the Assize Court of Appeal on all the issues in dispute had been cogent and correct, dismissed the applicant's appeal. It held, in particular:\n'It is perfectly apparent from the Assize Court's judgment – to which the Court of Appeal's judgment refers almost in its entirety – that the defendant's alibi was taken into consideration and clearly held to be invalid, devoid of substance and, in any event, not established except for the details relating to time, which were given in vague terms.\n...'\nAs regards the grounds of appeal challenging the courts' decision not to carry out a further examination of witnesses, the Court of Cassation held that those grounds should be dismissed:\n'Indeed, the courts below gave precise reasons with regard to each issue raised, based on findings made in the course of the proceedings, on the conclusions of expert assessments – ... – and, lastly, on the serious nature of the offence and of the defendants' conduct.'”", "16. On 30 July 1999 the applicant applied to the Perugia Court of Appeal for a retrial. However, the Court was not informed of those proceedings until the proceedings before the Chamber had ended.\nIn a judgment of 19 February 2001, deposited at the registry on 1 March 2001, the Perugia Court of Appeal considered the application justified and, having re-examined the facts of the case, acquitted the applicant.", "17. During the retrial the Court of Appeal had heard evidence from B., of which it gave a detailed summary in its judgment.", "18. It appears from the judgment, which runs to 276 pages, that the Court of Appeal decided to acquit the applicant after considering several pieces of evidence, including the examination of B., which it summarised as follows (see pages 41-42 of the judgment, reproduced in almost identical terms on pages 113-15 in the grounds concerning the merits of the application for a retrial):\n“The next step was the examination of B. (who had never given evidence during the proceedings resulting in the conviction), an employee of the ATAC [Rome metropolitan transport authority], who at the material time had been thirty years old and had had a second job as a surveyor; he had often gone to the Rome land registry for files concerning registration of property.\nThe witness's features were similar to those which Mr Pisano had mentioned when questioned by the public prosecutor on 8 November 1993, at which point he was being held in custody and did not have the opportunity to confer with anyone else ('There were two people in front of me at the land registry. I remember that as I was waiting at the registration office to register certain files, the clerk realised that a person in front of me in the queue did not have a stamp on his file. The person was a young man aged between twenty-five and thirty, with short brown hair' – see pp. 185-86 of the file on the investigation, Appendix 92). After inspecting a file (labelled 'Primavera' and concerning an application to change the land register) which was shown to him at the hearing, the witness stated that, as part of an occasional venture in association with a surveyor, G.S., he had completed and submitted in person, on 4 August 1993, the 'Primavera' file, which was assigned the registration numbers 63465/6/7/8, immediately preceding the 'Monari' file, which had been found in the defendant's briefcase and was numbered 63469... He stated that he had gone to desk E, where a clerk had taken his file and handed it to the person in charge of registration.\nThe witness stated that, as usual, he had arrived at the land registry between about 10 a.m. and 10.30 a.m. and had queued to speak to the clerk on duty, and subsequently in the registration office; however, 'when [he] went to retrieve [his] file, there was no stamp on the plan and [he] therefore had to retrieve it at a later stage' (p. 92). In that respect, he confirmed the statements which the defendant had made when questioned on 8 November 1993.\nThe surveyor B. added that the observation that the stamp was missing had been conveyed in civilised terms, as he had acknowledged his own error, and that the surveyor G.S. had been informed and had subsequently given him the stamp to rectify the administrative error pointed out by the registration department.\nHe further stated that, during the previous proceedings, the surveyor G.S. had been contacted by the defendant's brother, Mr Mario Pisano, that G.S. had put the latter in touch with him, and that he had sent a letter [to the lawyer acting on behalf of the applicant at the time] whose content was consistent with his present statements (see the document appended to the application for a retrial).\nMr B. lastly stated that he had always had short hair, that he had already started to lose his hair in 1993 and that there had been no substantial changes in his appearance. ... [pp. 41-42]”\nThe Court of Appeal subsequently assessed the applicant's conduct and reached a number of logical conclusions (extracts from pages 148-227):\n“Having thus far referred strictly to the contents of the case file without drawing any logical 'inferences', the court considers that it must now set forth two logical and legal considerations whose importance is far from secondary. [p. 148]\n(1) ... It appears manifestly self-evident that if Mr Pisano had indeed planned and carried out the crime in Riano with the same care with which, according to the hypothesis put forward during the trial, he 'could have handed' (at what time?) the 'Trappetti' and 'Monari' files to a 'replacement', sent the latter to the land registry (a scenario which, in any event, has been ruled out by the fresh evidence) and 'possibly' (when?) obtained from him the 'provisional receipt' for the 'Monari' file ..., he would surely also have kept the receipts [proving that he went to the hardware shop], yet he threw them away. [p.149]\n...\n(8) Statement of grounds for dismissing the rebutting evidence adduced by the Principal Public Prosecutor and by counsel for the civil parties [p. 200]\n...\nAll this points to the 'certainty', alluded to in abstract terms by Mr Cristiani [a lawyer acting on behalf of the civil parties], albeit for different reasons, of Mr Pisano's innocence.\nThat conclusion may be reached even without taking into account the corroboration of the alibi given by the defendant to prove that he had been at the Rome land registry between 10.40 a.m. and 11.15 a.m. on 4 August 1993... [p. 223]\n...\nMr Monno [another lawyer acting on behalf of the civil parties] subsequently disputed whether the alibi had been corroborated.\nMr Monno, still on the subject of the alibi, drew attention to the alleged practice whereby, in order to save time at the land registry, 'provisional receipts' were drawn up several days before being issued; that 'could have happened' with the 'Monari' file, in which case the defendant 'could have sent someone else', who 'could have returned' the provisional receipt for the 'Monari' file to him at a later stage.\nThat hypothesis not only appears to be purely abstract, but is also unquestionably refuted by the 'fresh evidence' gathered during the retrial, namely the witness statements by B., A. and D.G. and the report by the handwriting expert, all of which offer incontrovertible proof of the following: [p. 226]\n...\n(3) the two 'provisional receipts' completed at 11 a.m. on 4 August 1993 when the 'Monari' file was handed in at the Rome land registry (one has remained in the office's archives while the other was found, with no signs of creases, in the briefcase taken from Mr Pisano and was first examined in the course of the present retrial at the hearing on 16 December 2000) have been confirmed as being in Mr Pisano's handwriting; even if the content of the two forms is identical, there are differences as regards the boxes that have been ticked, which undoubtedly suggests that the defendant had not completed them earlier 'at his convenience' but did so in an uncomfortable position, leaning on his briefcase... [p. 227]”", "19. On an unspecified date appeals on points of law were lodged against the judgment of 19 February 2001 by the Perugia public prosecutor's office and by the civil parties. On 26 September 2001 the Court of Cassation, in plenary session, dismissed the appeals, thereby upholding the Court of Appeal's decision. It held that the failure to examine B. was a further factor, among others, to take into consideration." ]

[ 3, 9 ]

[ "10. The applicant was born in 1933 and lives in Cinisello Balsamo (Milan).", "11. On 8 November 1989 the applicant's son was murdered by a criminal (M.R.) who had just robbed a bank with two accomplices (G.M. and G.B.). After leaving the bank the three robbers had failed to find the fourth accomplice (A.C.), who was supposed to be waiting for them with the getaway car. They had therefore made off on foot with the police in pursuit. Their path had then crossed a car being driven by A.Mastromatteo, the applicant's son. They had attempted to take control of the car, but it would appear that A.Mastromatteo had tried to get away from his attackers by accelerating, whereupon M.R. had shot him at point-blank range. He died a few hours later.", "12. The four criminals were subsequently identified and charged. Three of them (M.R., A.C. and G.M.) were serving prison sentences at the material time, whereas the fourth accomplice, G.B., was free.", "13. From the documents in the case file it is possible to reconstruct the case history of the criminals, particularly that of M.R. and G.M., both of whom were responsible for the applicant's son's death.", "14. M.R., who fired the fatal shot, was serving a prison sentence of fifteen years and seven months for attempted murder, armed robbery and other offences. He was due to be released on 2 July 1999 and was serving his prison sentence in Alessandria. When it convicted M.R. on 25 March 1987, the Milan Assize Court of Appeal had considered him to be a danger to society.", "15. In a decision of 26 October 1989 the Alessandrian judge responsible for the execution of sentences granted M.R. prison leave from 10.45 a.m. on 1 November 1989 to 10.45 a.m. on 3 November 1989 with the condition that he remain at his home in Monza (near Milan).\nIt was the first time that M.R. had been granted prison leave. The case file shows that the judge responsible for the execution of sentences relied on the reports by the prison authorities concerned stating that they were satisfied with M.R.'s behaviour, rehabilitation and willingness to reintegrate.", "16. The decision granting prison leave was communicated to the appropriate police authorities.\nThe information provided by Monza Police Station shows that M.R. had reported to the police station at 3.15 p.m. on 1 November 1989. In a note drawn up on 6 March 2000 the police station stated that at the time no anomaly had been recorded during M.R.'s prison leave.", "17. On the expiry of M.R.'s prison leave on 3 November, he failed to return to Alessandria Prison and could not be found.\nOn the same day Alessandria Prison informed Monza Police Station that M.R. had not returned and that he should therefore be considered to have absconded.\nA “wanted” notice was drawn up and circulated throughout the country by means of the police national computer system. The notice has not been kept in the police files.", "18. G.M. was serving a six-year prison sentence imposed on 16 December 1986 for aiding and abetting armed robbery and other offences.", "19. Since 21 October 1988 he had been subject to a semi-custodial regime, which is an alternative measure to imprisonment, pursuant to a decision of the Venice court responsible for the execution of sentences. G.M. worked in Milan and returned to the city prison in the evenings.", "20. In granting him that alternative regime to imprisonment, the court had relied on the reports by the prison authorities stating that G.M. had been of good behaviour and showed a willingness to reintegrate and that nothing untoward had occurred during his previous periods of prison leave. Furthermore, on 28 June 1988 the Milan Police had given a favourable opinion of the work which G.M. would be undertaking.", "21. The following obligations were attached to the semi-custodial regime:\n(a) leave the prison after 5 a.m. (subsequently 4 a.m.) and return by 11 p.m. at the latest;\n(b) not quit the authorised job without giving notice;\n(c) not spend money without permission;\n(d) use public transport;\n(e) avoid excessive consumption of alcohol; and\n(f) spend bank holidays with his family and remain in the Milan area.", "22. That decision was sent, inter alia, to the Social Services Department of Milan, which was the authority responsible for implementing supervisory measures. That authority carried out one inspection, at the prisoner's home and his place of work, during the period of approximately twelve months which elapsed between the date on which the semi-custodial measure was granted and the date on which G.M. absconded.", "23. No supervisory measure was envisaged by the police authorities.", "24. G.M.'s criminal record shows that on 26 October 1989, which was a few days before the applicant's son was murdered, he had committed a handling offence. He was convicted of that offence in 1991 in a judgment which became final on 18 March 1992.", "25. A.C. was serving a prison sentence for armed robbery committed jointly with M.R. His criminal record shows that he had a previous conviction for murder. He was in prison in Alessandria.", "26. In a decision of 23 August 1989 the Alessandrian judge responsible for the execution of sentences granted him prison leave from 19 to 26 September 1989. The judge responsible for the execution of sentences, relying on the reports by the prison authorities concerned, had been satisfied with A.C.'s behaviour in prison. The report prepared by the prison workers responsible for monitoring A.C. had stressed his good behaviour during his previous periods of prison leave.", "27. While on prison leave A.C. was subject to a number of constraints: he had to report to the police station daily; stay at home from 10 p.m. to 8 a.m.; and not leave the district of Sesto San Giovanni (Milan).\nThe decision granting him prison leave was communicated to the appropriate police authorities. The file shows that A.C. reported to the police station daily to sign the register.", "28. On 26 September 1989, when his prison leave expired, A.C. did not return to the prison and was deemed to have absconded. On the same day Alessandria Prison informed Monza Police Station that A.C. had not returned and that he should therefore be considered to have absconded.\nA “wanted” notice was drawn up and circulated to the various police forces throughout the country.", "29. G.B., the fourth accomplice, was not in prison at the material time. His criminal record shows a number of convictions for armed robbery and other offences. C.The criminal proceedings against the offenders and the applicant's application to join the proceedings as a civil party seeking damages", "30. The four offenders were subsequently identified and charged.", "31. Of the three prisoners, only M.R. and G.M. were convicted of the murder of the applicant's son, aided and abetted by G.B., and given long sentences.", "32. The third prisoner, A.C., who was to have been the driver, was convicted only of armed bank robbery.", "33. The applicant lodged an application to join the criminal proceedings against the offenders as a civil party. The defendants were ordered to pay the civil parties damages in an amount to be determined by the civil courts; the criminal courts awarded the applicant 50,000,000 Italian lira (ITL), however, as a down payment to be made immediately.", "34. The applicant did not state whether the down payment of ITL 50,000,000 had been paid to him or whether, failing payment, he had taken steps to attempt to obtain the money.", "35. In any event the applicant has not sued the criminals for damages in the civil courts. He submitted that they would not in any case have been solvent.", "36. On 6 November 1992 the applicant lodged a claim with the Ministry of Justice and the Ministry of the Interior for compensation under Act no. 302 of 1990, which provides for compensation for victims of terrorism and mafia-type criminal organisations. \nIn support of his claim, the applicant alleged that his son had been murdered by criminals who were serving prison sentences and that they were members of a “gang” whose criminal activities fell into the category of organised crime.", "37. The applicant stated that the Minister for Justice had advised him, at a meeting, not to bring legal proceedings against the State.", "38. On 6 October 1994 the committee responsible for examining the applicant's claim ordered a further inquiry with a view to establishing whether or not the criminals responsible for the death of the applicant's son could be deemed to be members of a “criminal organisation”, which would have rendered applicable the statutory provisions on which the applicant relied.\nThe committee attached some weight to a report drawn up by the Prefect (Prefetto) of Milan stating that the bank robbery which had culminated in the murder of the applicant's son was not an isolated episode, but the workings of a criminal organisation operating in the area.", "39. However, on 21 April 1995, on the basis of the results of the further inquiry, the above-mentioned committee ruled out the possibility that A. Mastromatteo's murder could be deemed to be the workings of a criminal organisation.", "40. Relying on that negative opinion, the Ministry of the Interior rejected the applicant's claim for compensation.", "41. On 25 July 1995 the applicant lodged a special appeal with the President of the Republic against the decision of the Ministry of the Interior.", "42. On 20 November 1996 the Consiglio di Stato expressed the opinion that the appeal should be dismissed because the instant case did not involve terrorist acts or acts of a mafia-type criminal organisation within the meaning of Article 416bis of the Criminal Code.", "43. On 24 February 1997 the President of the Republic dismissed the appeal." ]

[]

[ "9. The applicants were born in 1975, 1976 and 1995 respectively. When they introduced the application, they were all living in Austria.", "10. The first applicant went to Austria in 1989 to live with his parents and siblings. As from 1994 he cohabited with the second applicant, who was born in Austria and has lived there all her life. They married under muslim law in April 1994 and under Austrian civil law in March 1997. Their daughter, the third applicant, was born on 14 August 1995.", "11. On 5 January 1993 the first applicant was sentenced to three days’ imprisonment on probation for shoplifting by a Swiss Court.", "12. On 19 May 1993 the Dornbirn District Court (Bezirksgericht) convicted him of theft without pronouncing a sentence. The court established that in 1992 the first applicant had stolen moped-accessories, cutlery and other commodities, two gold rings and a gold bracelet, worth altogether less than 25,000 Austrian schillings (ATS), equivalent to 1,817 euros (EUR). A probation period of three years was fixed.", "13. In 1992 and 1993 the first applicant was convicted of three minor breaches of traffic rules and sentenced to pay fines of ATS 300, 500 and 1,000 respectively. Between February and April 1994 he was convicted three times of driving a car without a driving licence and sentenced to pay fines of ATS 3,000, 4,000 and 5,000, respectively (equivalent to EUR 218, 290 and 363).", "14. On 28 February 1994, still without a driving licence, he overran a red traffic light and exceeded the speed limit of 60 km/h, driving at 170 km/h. On 6 April 1994 the Dornbirn District Authority (Bezirkshaupt-mannschaft) convicted him of these offences and sentenced him to a fine of ATS 14,500.", "15. On 21 September 1994 the Dornbirn District Authority imposed a five year residence ban on the first applicant.", "16. On 24 January 1995 the Vorarlberg Public Security Authority (Sicherheitsdirektion) dismissed the first applicant’s appeal.", "17. The authority referred to section 18 §§ 1 and 2 of the 1992 Aliens Act, which paragraphs provide that a residence ban has to be issued against an alien, inter alia, if he has been convicted more than once for similar offences by a domestic or foreign court, or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority. The Authority found that both conditions had been met in this case.", "18. Further, the Vorarlberg Public Security Authority, referring to the first applicant’s stay in Austria since 1989, the fact that his close family was living in Austria, his co-habitation with a Turkish national who was born in Austria, and his employment, found that the residence ban constituted an interference with the applicant’s right to respect for his private and family life. However, it was necessary for the aims set out in Article 8 § 2 of the Convention, namely for the prevention of crime and the protection of the rights of others. Given the first applicant’s continuous disregard of Austrian law, the authority assumed that it was probable that he would commit similar offences in the future. Thus, despite the first applicant’s high degree of integration in Austria, the public interest in issuing a residence ban outweighed the first applicant’s interest in staying. This decision was served on the first applicant on 8 February 1995.", "19. On 11 May 1995 the applicant was taken into detention with a view to his expulsion.", "20. On 13 June 1995 the Constitutional Court refused to deal with the first applicant’s complaint as it lacked sufficient prospects of success.", "21. Subsequently, the first applicant lodged a complaint with the Administrative Court. He requested that the decisions relating to the residence ban against him be quashed for errors of law. He submitted that the contested decisions violated his right to respect for his private and family life. In particular, he complained that the competent authorities had failed duly to weigh his interests in staying in Austria against the public interest of issuing a residence ban against him. Although he had been convicted of theft, no punishment had been imposed on him. The other convictions only concerned administrative offences. Neither his fiancée, the second applicant, who was born in Austria and worked there, nor their daughter, the third applicant, could be expected to follow him to Turkey.", "22. Furthermore, the first applicant submitted that Austria had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement, and the decisions on its implementation, Turkish workers who had been legally employed in a member State for a certain period had a right of free access to the employment market and also to a residence permit. In this context the first applicant requested the Administrative Court to refer the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 § 3 of the EEC Treaty. Moreover, measures of public security against such workers were only possible if the public interest was massively and actually endangered. Therefore, it would contradict EU-law to issue a residence ban against the child of a migrant worker’s family who has never committed anything else than petty crimes.", "23. On 10 August 1995 the Administrative Court granted the first applicant’s complaint suspensive effect. Thereupon, on 11 August 1995, the applicant was released from detention with a view to his expulsion.", "24. On 4 December 1996 the Administrative Court dismissed the first applicant’s complaint. It found that the contested residence ban served aims set out in Article 8 § 2 of the Convention, namely the prevention of crime and the protection of the rights of others. Furthermore, the Public Security Authority had duly weighed the interests involved. Given the fact that the first applicant had committed several criminal and administrative offences during a protracted period, the public interest weighed more heavily than the private interest, even in cases where an alien was integrated as the first applicant.", "25. As to the Association Agreement between the European Union and Turkey, and in particular decree no. 1/80 of the Association Council, the Administrative Court noted that the rights contained therein only applied after a certain number of years of lawful employment. The first applicant had failed to submit the relevant facts to the administrative authorities, in particular whether he had been working in Austria for the requisite period. Thus, the Vorarlberg Public Security Authority could not be reproached for not having taken into account that Agreement and the above decree. The decision was served on the first applicant on 20 January 1997.", "26. On 16 June 1997 an order to leave Austrian territory was served on the first applicant, with which he complied on 1 July 1997.", "27. The first applicant is currently living in Turkey. The validity of his residence ban expired in September 1999. However, according to his submissions, which were not contested by the Government, the possibilities of legally returning to Austria are very limited and involve long waiting periods.", "28. It appears that the second and third applicants visited the first applicant on a number of occasions in Turkey and spent a longer period of time there at the end of the year 2000 and in the beginning of 2001. In March 2001 the first and second applicants divorced. According to the divorce decree issued by a Turkish court, the second applicant has sole custody over the third applicant while the first applicant has a right of access. In September 2001 the second applicant returned to Austria. She has a settlement permit and a work permit. She has left the third applicant temporarily in Turkey where the latter is being cared for by relatives but intends to bring her back to Austria." ]

[ 4 ]

[ "9. On 29 December 1967 the first applicant and her husband purchased a forester’s house with a barn and cowshed which they had been renting since 1953. The sale price – 14,703 Czechoslovak korunas (CSK) – was fixed by a surveyor appointed by the landlord, a State enterprise which was also the couple’s employer and which had acquired the house without compensating the former owners, who had been dispossessed of their property in 1948 pursuant to Law no. 142/1947 on revision of the First Land Reform (zákon o revizi první pozemkové reformy).", "10. On 30 June 1968 the first applicant and her husband paid the vendor CSK 2,030 under the terms of an agreement giving them the right to make personal use of the land attached to the house.", "11. On 23 December 1992, after the entry into force of Law no. 229/1991 (zákon o půdě – “the Land Act”), the son of the persons to whom the forester’s house had belonged until its confiscation in 1948 instituted proceedings in the Příbram District Court (okresní soud) seeking recovery of the property by virtue of section 8(1) of the Land Act. He alleged that the acquisition of the house by the first applicant and her husband had been vitiated by a breach of the regulations in force at the time and that they had enjoyed an unlawful advantage in that the price they had been required to pay had been lower than the property’s real value. He argued that the valuation of the house had been neither objective nor compatible with the legislation then in force.", "12. In their defence, filed with the District Court on 12 February 1993, the applicants submitted that the purchase price had been properly calculated in accordance with the provisions applicable at the material time, and pointed out that the contract of sale had been adjudged valid by the Příbram branch of the State notary service (státní notářství), which had registered it.", "13. On 7 February 1994 the District Court commissioned an expert opinion to establish whether the 1967 valuation had complied with the regulations then in force. The expert’s report was filed with the court on 30 March 1994. In it the expert stated that after studying the file and the 1967 valuation he had found that “this valuation was not entirely compatible with the legislation in force at the time” and that he had “in addition noted instances of underestimation of area”. He had therefore decided to “carry out a complete revaluation, applying the legislation formerly applicable and taking as [his] basis the state of affairs as described in the course of the proceedings” in order to be able to compare the two valuations and quantify the difference between them. The expert report assessed (a) the inhabitable parts of the property and (b) the non-inhabitable parts, namely the barn and cowshed. With regard to the latter, the expert reported:\n“... the small barn and the adjoining cowshed were classified as ‘small constructions’, as they served only for the use of the occupier, not for any agricultural activity. That led to an essential difference between the valuation produced ... in 1967 and the present one. My valuation is justified by a written instruction of 1965 relating to Article 7, which provides: ‘The purchase price may also be applied to small constructions used for animal husbandry, provided that this activity does not go beyond the personal needs of the owner and the members of his family.’ The barn is currently used as a toolshed. ... My classification of the two buildings complied with Annex 5 to Decree no. 73/1964 ... I took the barn and cowshed to be possessions in personal ownership, as they were not used for agricultural activities but only for the needs of the owner. If they had been private property the legislation then in force would not have permitted their transfer. Public establishments could sell to individuals only buildings classifiable as properties in personal ownership ... The difference in price for these two buildings, in relation to the 1967 valuation, is nearly CSK 4,600 ...”", "14. The applicants pointed out that the expert’s valuation of the inhabitable parts of the premises was practically identical to the 1967 valuation, the difference of CSK 4,600 being solely due to the valuation of the barn and cowshed. They challenged the valuation procedure because it had been based on Decree no. 73/1964, which did not specify the prices applicable in practice to buildings belonging to socialist organisations, and whose Article 7 § 2, they argued, excluded its application to their case. They further submitted that the price difference that had been noted was due in large part to a different assessment of the depreciation to be taken into account for the two buildings in question.", "15. After the death of the first applicant’s husband, her son, the second applicant, became the co-owner of the forester’s house.", "16. In a judgment of 12 September 1994 the District Court allowed the application by the son of the former owners and decided to transfer title to the disputed property to him, ruling as follows:\n“After assessing the evidence, particularly the depositions of the parties and the witnesses, the contract of sale registered by the Příbram State notary service on 3 February 1969, the agreement of 30 June 1968 conferring the right to make personal use of the land, ..., the valuation of the house ... made on 20 December 1967 ..., the expert report of 15 December 1992, drawn up in accordance with instructions from [the first applicant] and admitted by the court in evidence, ..., and the expert report on the price of the buildings, drawn up by the court-appointed expert ..., the Court notes that ... the Land Act (Law no. 229/1991) applies, since the dispute concerns transfer of title to buildings intended for forestry production, within the meaning of section 1(1)(c) of the Land Act ...\nThe claimant ... is entitled to claim restitution under the restitution legislation ... The members of the defendants’ family were not leading figures of the former communist regime but simple forestry workers who moved into the house as employees of the enterprise. They agreed to buy it when their employer gave them the opportunity to do so because they had no alternative accommodation. As for the purchase price, they accepted the amount fixed by [the surveyor], which they had no reason to challenge. \nNevertheless, it is incontestable that whereas the purchase price of the house should have been fixed at CSK 19,477, it cost them only CSK 14,703. Consequently, the conditions of section 8(1) of the Land Act are satisfied in the instant case because, in 1967, the defendants acquired the property at a price lower than the true value. The difference amounted to a quarter of the true value.”", "17. On 11 October 1994 the applicants appealed against the above judgment to the Prague Regional Court (krajský soud). They submitted that at the time when the proposal that they should purchase the house had been made to them they were under threat of eviction. They pointed out that both the surveyor’s report and the contract of sale had been drawn up by the vendor, and that the transaction had been effected in accordance with the legislation then in force – indeed the Příbram State notary service had verified the purchase price before registering the contract. They alleged that the court expert’s report did not constitute sufficient proof that the purchase price had been lower than the price required by the regulations at that time. They accordingly asked the Regional Court to order a new expert report.", "18. On 4 January 1995 the Prague Regional Court upheld the first-instance judgment, ruling as follows:\n“It emerges from the [1994] expert report ... that the valuation made [in 1967] did not comply with the rules in force at the time. ... The barn and the cowshed should have been valued as buildings in personal ownership, since they were not used for agricultural purposes but had been placed at the disposal of the owners of the house. ... According to Regulation 10/1964 of the Ministry of Economic Affairs ... only buildings in personal ownership could be sold to citizens by a socialist organisation. If the regulation then in force and Decree no. 73/1964 had been applied, the purchase price would have been fixed at CSK 19,477.\nConsequently, the Regional Court upholds the District Court’s finding that the question of the transfer of title must be considered under Law no. 229/1991 ... It has been established that the purchase price was determined by the vendor without the benefit of any expert report ... and that it was lower than the price required by the rules on prices then in force, which is apparent from the [court] expert’s report.\nAs to the appellants’ objection that the contract of sale was registered by the State notary service ... which deemed the barn and cowshed to be buildings in private ownership, it should be noted that this classification was the result of a legal opinion which is not a binding precedent for adjudication of the case ... Moreover, regard being had to the fact that the claimant has already obtained the restitution of 50 hectares of woodland, it is desirable, in accordance with Law no. 229/1991 ..., for the forester’s house to be used for its original purpose.”", "19. On 17 March 1995 the applicants appealed to the Constitutional Court (Ústavni soud), submitting that they had purchased the house in accordance with the rules then in force and without any unlawful advantage. They also relied on Article 399 § 2 of the Civil Code, under which a contract of sale could be declared void only when the purchase price was too high. They argued that the Regional Court had deprived them of their property and that accordingly their right to protection of their property under Article 11 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) had been infringed. They further complained that they had been deprived of fair and appropriate compensation, contending that although by virtue of section 8(3) of the Land Act a natural person was entitled to reimbursement of the purchase price and the costs reasonably incurred for the upkeep of the property, the sum of 14,703 Czech korunas (CZK) for the purchase price and reimbursement of their costs could never make good the loss of the house. They had been deprived of their title to the property on account of the difference noted between two prices calculated according to two different methods. Moreover, in the judicial proceedings they had not been on an equal footing with the other party, particularly in view of the possibility the claimant enjoyed of consulting the relevant documents. In that connection they relied on Article 37 of the Charter.", "20. The applicants also asked the Constitutional Court to stay execution of the Regional Court’s judgment and declare null and void part of section 8(1) of the Land Act. They argued that in so far as the provision in question permitted restitution in the event of “the purchase of immovable property at a price lower than the price required by the regulations on prices then in force”, thus threatening title acquired in accordance with the legislation applicable at the time of purchase, it gave former owners the possibility of challenging the valuation of properties made at the time of their transfer. They asserted that section 8(1) of the Land Act thus caused them prejudice identical to that caused between 1948 and 1989, which the Act was supposed to attenuate. They submitted that it was inadmissible to make natural persons who had acquired property in good faith and in accordance with the legislation applicable at the material time bear responsibility for unlawful decisions or incorrect procedures adopted by the State.", "21. On 24 April 1995 the applicants asked the District Court to stay execution of the Prague Regional Court’s judgment, to exempt them from payment of the costs of the proceedings and to reopen the case. In the latter application they based their arguments on an opinion on the question of methodology delivered by the author of an exegesis of the relevant legislation published by the Czech Prices Authority (Český cenový úřad), which in their submission proved unequivocally that the court expert had made a mistake. They also submitted to the District Court documents from the State archives capable of proving what use the disputed property had been put to in the past.", "22. On 21 April 1995 people living in the municipality of Hříměždice and other villages sent a petition to the President of the Republic and to Parliament expressing their belief that the human rights guaranteed by the Constitution had been infringed in the applicants’ case. They pointed out that the son of the former owners had recovered possession of a large estate (40 hectares of woodland and 100 hectares of other land), whereas the applicants had lost nearly all their possessions, although they had acquired them in good faith.", "23. On 20 June 1995, in response to the petition, an MP sent a written question to the Deputy Prime Minister, the Minister of Agriculture and the Director of the Legislation and Public Administration Office, saying that he wondered whether section 8(1) of the Land Act, which provided for the possibility of restitution in the event of “the purchase of immovable property at a price lower than the price required by the regulations on prices then in force”, was not contrary to the principle of legal certainty, in so far as it made it possible to transfer the responsibility for unlawful acts by the State to individuals who had acted in good faith. He also considered problematical, from the point of view of equality between litigants, legal provisions such as section 21(a) of the Land Act, which guaranteed persons who could claim restitution the right to various forms of assistance or exemption from costs in the judicial proceedings.", "24. The Deputy Prime Minister replied on 7 July 1995. He said the doubts expressed were unfounded and pointed out that the Land Act had been framed in such a way as to pose, in addition to the general conditions, three additional tests each designed to exclude the purchasers’ good faith. The fact that the Land Act referred to the legislation in force at the time of purchase could not be considered to impair legal certainty on account of some retrospective effect.", "25. On 23 August 1995 the District Court examined at a public hearing the applicants’ application for the proceedings to be reopened. Despite a new expert report submitted by them and drawn up on their own initiative, it refused the application, noting, inter alia, that in the original proceedings neither party had called as a witness the expert appointed by the court and that it was only on appeal that the applicants had asked for the expert evidence to be reviewed. Consequently, the statutory conditions for a retrial had not been met in the instant case.", "26. On 27 September 1995 the applicants appealed against the above decision, asserting that they had submitted evidence which it would have been objectively impossible for them to present during the original proceedings. On 26 February 1996 the Prague Regional Court upheld the decision of 23 August 1995, holding that there were no facts, decisions or evidence which it would have been impossible for the defendants to rely on in the initial proceedings. However, it gave leave for an appeal on points of law against its ruling.", "27. On 11 April 1996, therefore, the applicants appealed on a point of law to the Supreme Court (Nejvyšší soud). They argued that in the proceedings on their appeal against the judgment which had transferred title they had proposed in vain the commissioning of a second expert report and that the Regional Court’s attitude had prompted them to have a new expert report drawn up on their own initiative.", "28. On 13 January 1997 the Constitutional Court dismissed the applicants’ constitutional appeal as manifestly ill-founded, ruling as follows:\n“The alleged violation of Article 11 § 1 of the Charter of Fundamental Rights and Freedoms must be examined not just from the appellants’ point of view but also from that of the person claiming restitution... The Court refers in that connection to its judgment published under file no. 131/1994 ..., in which it noted that the purpose of restitution was to attenuate infringements of the rights of real-property owners by making reparation for the unlawful act committed at the time of the transfer of the property and by giving priority to the restitution of properties in their original condition. Consequently, the Court cannot find a violation of Article 11 § 1 unless the statutory conditions for restitution are satisfied. ...\nThe annulment sought by the applicants, of part of section 8(1) of the Land Act (Law no. 229/1991), would have limited the right to restitution and would have harmed the interests of a large number of restitution claimants ... The laws on restitution must establish the conditions for redressing wrongs, it being understood that it is for the national courts to examine all the circumstances in the light of the purport and general object of those laws.\nThe reporting judge has established, in the light of all the documents submitted, that the ordinary courts correctly applied the law to the case in allowing the claim for restitution and in deciding that title should be transferred to the claimant ..., as the appellant and her husband had bought the house at a price lower than the price resulting from application of the rules on prices then in force.\nAs regards violation of Article 37 of the Charter, which enshrines the principle of equality between litigants, the Court notes that during the judicial proceedings the courts scrupulously examined both the evidence adduced by the person claiming restitution and the evidence adduced by the defendants. ...\nHaving regard to the circumstances of the case, the reporting judge did not deem it necessary to stay execution of the Regional Court’s judgment, bearing in mind the fact that if the appellants were to be evicted they would be allocated alternative accommodation.”", "29. On 24 March 1997 the applicants submitted further grounds for their appeal on points of law (dovolání), observing that all the courts dealing with their case, including the Constitutional Court, had proceeded on the assumption that the report of the court-appointed expert was correct, whereas, among other defects, it had been established on the basis of a directive from the Ministry of Economic Affairs which had no legal validity, and that Decree no. 73/1964 was not applicable to the case. They also drew attention to the fact that, according to the second expert report drawn up at their request, the purchase price they had paid in 1967 was not lower but higher than the price required by the legislation in force at the time of the sale.", "30. On 28 April 1997 the Supreme Court declared the applicants’ appeal on points of law inadmissible, pointing out that it could have been admitted in the initial proceedings but could not be in proceedings brought by means of an application for a retrial.", "31. The applicants were reimbursed by the Ministry of Agriculture the purchase price they had paid in 1967 and the sum they had paid for the right to make personal use of the land. They thus received altogether CZK 16,733. On the other hand, reimbursement of the costs they had reasonably incurred for the upkeep of the house was put off on account of a disagreement between the applicants and the State over the applicable rate. According to the applicants, the State had announced that it was prepared to pay them CZK 156,646 but had never made the slightest payment, in spite of their request that it do so. The amount must therefore be fixed by the District Court, the applicants having brought an action against the Ministry of Agriculture in April 2000 seeking payment in the sum of CZK 364,430.", "32. According to the information supplied by the parties, the new owner of the property has not to date offered the applicants alternative accommodation and they still live in the house. They contended that the new owner had refused to sign a tenancy agreement with them in order to regularise the situation but had brought an action in the District Court seeking payment of arrears of rent in the sum of CZK 28,072 (corresponding to more than CZK 900 per month), plus default interest. Apparently this action led on 31 March 2000 to an order to pay being made against them. When they appealed, two hearings were seemingly held on 27 April and 26 June 2000, and the owner, it would appear, is now seeking a still higher sum, corresponding to a rent of CZK 1,200 per month. The applicants observe that the proceedings they brought in April 2000 in order to determine how much they should be reimbursed for the costs they incurred for the upkeep of the property are still pending. They therefore consider that their position vis-à-vis the public authorities is less favourable than that of the new owner." ]

[ 9 ]

[ "7. The applicants were born respectively in 1953, 1940, 1950 and 1961. The first, third and fourth applicants are residing in San Martino Valle Caudina (Avellino), while the second applicant is residing in Rozzano (Milan). In 1988, the fourth applicant was a member of the San Martino Valle Caudina Town Council’s technical Committee (Commissione tecnica comunale), a body responsible for expressing opinions on the issuing of building permits and on the granting of public subsidies.", "8. On 23 October 1993 the Avellino Public Prosecutor’s Office commenced criminal proceedings against the applicants.", "9. On 19 November 1993 the Avellino Public Prosecutor requested that the applicants and three other persons be committed for trial on charges of aggravated abuse of public authority (abuso d’ufficio). In particular, the first, second and third applicants were accused of having induced the fourth applicant and two other persons to unlawfully grant them a public subsidy. MM. Augusto and Rezziero Pisaniello, Giovanni Clemente and another person were moreover accused of having built a cottage without complying with the conditions contained in the building permit.", "10. By an act filed with the Registry on 21 March 1994, the Avellino investigating judge scheduled the date of the preliminary hearing for 26 April 1994. This act, together with the Public Prosecutor’s request, was served on the second applicant on 29 March 1994 and on the other applicants on 7 April 1994. They were thus informed of the charges brought against them.", "11. The preliminary hearing was adjourned first until 5 July 1994, then until 18 October 1994. On that occasion, the case was adjourned until 17 January 1995 by reason of the absence of an expert summoned to appear on the Public Prosecutor’s behalf.", "12. On 17 January, 23 February, 6 April and 22 June 1995 the proceedings were adjourned because the lawyers of the Avellino Bar Association were on strike from 13 January until 9 October 1995. On 26 October 1995 the case was postponed in order to enable the said lawyers to take part in an assembly.", "13. The subsequent hearing was fixed at 21 June 1996. On that date the investigating judge observed that the order fixing the date of hearing had not been served on all the parties and therefore adjourned the proceedings until 23 July 1996, the date on which an expert was examined and the parties presented their pleadings.", "14. In a judgment of the same day, the Avellino investigating judge declared that the charge concerning the failure to comply with the conditions in the building permit was time-barred. This decision became final on 1 October 1996.", "15. In a separate order given on 23 July 1996, the investigating judge committed the applicants and one other person for trial, commencing on 16 January 1997, before the Avellino District Court, with respect to the charge of aggravated abuse of public authority.", "16. On 16 January 1997 the District Court, observing that the summons to appear had not been served on the San Martino Valle Caudina Town Council, ordered that a fresh summons be served and adjourned the proceedings until 18 June 1997. On the latter date the case was adjourned until 27 April 1998 because the lawyers of the Avellino Bar Association were on strike from 16 to 20 June 1997.", "17. On 27 April 1998 the parties presented their final pleadings.", "18. In a judgment of the same day, filed with the registry on 4 May 1998, the Avellino District Court held that the charge of aggravated abuse of public authority had become time-barred on 13 June 1996. This decision became final on 14 June 1998." ]

[]

[ "9. The applicant was born in 1959 and lives in Vienna.", "10. On 29 November 1992 the applicant was arrested on suspicion of attempted blackmail and unlawful possession of a firearm. Subsequently, he was taken into detention on remand. He was suspected of having tried to blackmail Turkish restaurant owners in that he together with several accomplices, all being members of a Kurdish association, came to their restaurants and threatened them in order to obtain money for this association. Further, the applicant was suspected of unlawful possession of a firearm, which had been found in a car he used to drive. In these and the following proceedings the applicant was represented by counsel. On 3 August 1993 the applicant was released.", "11. On 31 March 1995 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), after its first judgment had been quashed on appeal, acquitted the applicant and his co-accused giving them the benefit of the doubt. The prosecution did not appeal against the acquittal. Therefore, in accordance with the relevant procedural provisions, it was not necessary to serve a written version of the judgment on the applicant, but it was sufficient to include its operative part without any reasons in the minutes of the hearing (so-called abridged version of minutes and judgment – Protokollsvermerk und gekürzte Urteilsausfertigung).", "12. On 16 October 1995 the Vienna Regional Criminal Court, after a first decision on the applicant’s compensation claim for detention on remand under section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969, hereinafter “the 1969 Act”) had been quashed on appeal, again dismissed the applicant’s compensation claim.", "13. On 26 February 1996 the Vienna Court of Appeal (Oberlandes-gericht), upon the applicant’s appeal, quashed the Regional Court’s decision on the ground that it did not contain sufficient reasons. As to the applicant’s complaint that the decision violated the presumption of innocence it noted that the European Court of Human Rights in the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A) had not challenged the conformity with Article 6 § 2 of the Convention of section 2 (1)(b) of the 1969 Act. Following an acquittal it was still admissible to examine the question whether the suspicion had been dispelled as long as the assessment did not go beyond the reasons given for the acquittal. It, therefore, instructed the Regional Court to state the reasons for the acquittal of the applicant, which were not included in the abridged version of minutes and judgment of 31 March 1995.", "14. Thereupon, the Regional Court supplemented the minutes accordingly, stating that the evidence before it did not carry a finding of guilt. As to the charge of attempted blackmail it noted that in the second set of proceedings the witnesses, namely the restaurant owners concerned, had given a weakened version of their previous statements. They said in particular that the applicant and his accomplices had not directly menaced them and that they had only been frightened as the applicant and his co-accused clearly asked for money and announced that they would return. Although the witnesses now tried to describe the incidents at issue as favourably to the accused as possible and although their statements were insufficient for a conviction, they had disproved the defence of the applicant who had claimed that he had only come to the respective restaurants to distribute posters without ever having requested donations. As to the second charge the court found that the evidentiary basis was sufficient to prove only that the applicant had access to the car in which the firearm had been found.", "15. On 25 March 1996, the Vienna Regional Criminal Court again dismissed the applicant’s compensation claim under section 2 (1)(b) of the 1969 Act. Its main line of argument ran as follows:\n“For his part, the applicant stated that he had not collected any donations at the material time. However, in the light of the witnesses’ testimony that point of his defence was revealed to be untrue. It follows that he lied in order to conceal something. Even if, in view of the very much weakened witness evidence, a conviction was no longer possible as the principle of the ‘benefit of the doubt’ had to be applied in the accused’s favour, it cannot be said that the suspicion attaching to the applicant and the other defendants acquitted with him was entirely dispelled in the second set of proceedings. As stated in the full reasoning of the decision [of 31 March 1995], the witnesses gave the impression that they now wished to exonerate the accused – particularly the applicant – but on the basis of their testimony the possibility that they felt threatened when the accused demanded money from them cannot be excluded.”", "16. On 10 April 1996 the applicant appealed against this decision. He contested, in particular, that the suspicion against him had not been dissipated.", "17. On 30 August 1996 the Vienna Court of Appeal, sitting in camera, as in all the previous proceedings, dismissed the applicant’s appeal. It found in essence that the Regional Court’s decision was duly based on the reasons given for the acquittal:\n“As clearly emerges from the full reasoning of its judgment, the trial court acquitted the applicant solely because in the second set of proceedings the restaurant owners departed from their previous depositions, which had strongly incriminated him, in such a manner that the requisite standard of proof of guilt could not be met. However, in its reasoning, the trial court makes clear reference to a number of circumstances ‑ duly supported by the evidence in the case file – which meant that the suspicion attaching to the applicant had not been entirely dispelled. In particular the judge states that during the trial he formed the personal impression that, in view of the specific manner in which the applicant and his fellows had acted, the prosecution witnesses had good, objectively-founded reason to fear reprisals in the form of violent attacks if they did not make the donations demanded.”", "18. This decision was served on the applicant’s counsel on 11 September 1996.", "19. Following communication of the present application to the respondent Government, the Procurator General filed a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof).", "20. On 7 June 2000 the Supreme Court found that the courts’ failure to hold a public hearing and to pronounce their decisions publicly violated section 6 §§ 3 and 4 of the 1969 Act taken in conjunction with Article 6 § 1 of the Convention. It, therefore, quashed the Vienna Regional Criminal Court’s decision of 25 March 1996 as well as the decision of 30 August 1996 by the Vienna Court of Appeal and remitted the case to the Regional Court.", "21. On 31 July 2000 the Vienna Regional Criminal Court, after having held a public hearing, again dismissed the applicant’s compensation claim. At the close of the hearing the judge pronounced the decision orally. In the written version of the decision the court used exactly the same wording for a reasoning as it had already used in its previous decision of 25 March 1996 (see above).", "22. On 15 September 2000 the Vienna Court of Appeal, sitting in private, dismissed the applicant’s appeal. It confirmed the Regional Court’s view that the suspicion against the applicant had not been dissipated, using the same reasoning as in it previous decision of 30 August 1996 (see above)." ]

[ 3 ]

[ "9. The first applicant was born in 1923 and lives in Braine-l’Alleud. The second applicant has its registered office in Brussels.", "10. In October 1990 a magnetic-resonance imaging (MRI or NMR) unit with a built-in electronic calculator – a high-technology medical device – was installed at the IMEC. In accordance with a royal decree of 27 October 1989, a department in which an MRI unit was installed was regarded as a “high-cost medico-technical service” within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987. Pursuant to that statutory provision, such services had to be approved. The criteria for approval were laid down in the royal decree. The relevant department at the IMEC had not, however, obtained the necessary approval.", "11. On 15 March 1991 the Ministers of Public Health for the Brussels-Capital bilingual region lodged a complaint with the public prosecutor against the first applicant for installing high-cost medical equipment without the prior approval of the minister responsible for public health. In January 1993 the first applicant and the IMEC, his employer, which was civilly liable for his acts, were summoned to appear in the Brussels Criminal Court. The Belgian State subsequently applied to join the proceedings as a civil party.", "12. On 22 March 1994 the Brussels Criminal Court acquitted the first applicant and cleared the IMEC.", "13. On 31 March 1994 that judgment prompted the following speech by a member of Parliament during the passage of a bill amending the Hospitals Act: \n“I was shocked by the court ruling last week in the Wynen case. Everyone knows Dr Wynen’s habit of not caring about legislation. He illegally installs high-cost scanners at his hospital, the Edith-Cavell, and justifies his actions with arguments about medical ethics.” (summary record, House of Representatives, 1993/94 ordinary session, sitting of 31 March 1994)", "14. State Counsel’s Office and the civil party appealed against the judgment of 22 March 1994.\nIn their appeal submissions the applicants argued, among other things, that the royal decree of 27 October 1989, which had formed the basis for the prosecution, was unlawful, particularly as it concerned a matter dealt with by legislation at community rather than federal level. They pointed out in that connection:\n“Section 44 of the Hospitals Act empowers the King to lay down approval and planning criteria for the installation of magnetic-resonance imaging (MRI) units with built-in electronic calculators, with a view to controlling public expenditure.\nThe decree lays down a number of conditions relating to:\n(1) the department in which the equipment is installed; (2) the number of employees and their qualifications; (3) the safety of the equipment and of the surrounding area; (4) quality control of the work carried out by users; (5) the geographical location of the equipment (the requirements vary according to the power of the equipment); and (6) the number of beds.\nAt best, only the fifth criterion can possibly come under the responsibility of the Federal Ministry of Social Affairs. The other conditions pursue a quite different aim, namely that of regulating the provision of health care, responsibility for which currently falls to the Communities by virtue of section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform.\nSeeing that four of the five conditions it lays down do not come under the responsibility of the national authorities, the royal decree of 27 October 1989 should be declared unlawful in its entirety since it cannot be applied only in part.”\nThe applicants also submitted that the complaint, civil-party application and appeal by the Belgian State were unlawful, inadmissible and void; that the complaint by the Belgian State infringed the principle of equality enshrined in Articles 10 and 11 of the Constitution in that the public authorities, without applying any objective or reasonable criteria proportionate to the aim pursued, had refrained from reporting other similar offences to the public prosecutor; that the royal decree of 27 October 1989 and, at the very least, the penalty for which it provided, had been tacitly repealed; and, lastly, that the decree infringed several fundamental rights, including the right to life and health, freedom of choice with regard to medical treatment and the prohibition of inhuman and degrading treatment.", "15. On 12 January 1995 the Brussels Court of Appeal reversed the judgment, imposed a suspended fine of 2,340 Belgian francs on the first applicant and ordered him to pay costs, applying, inter alia, sections 37 to 42 and 44 of the Hospitals Act. The IMEC was held to be jointly and severally liable for payment of the fine and the costs. In particular, the Court of Appeal dismissed the applicants’ arguments that the royal decree of 27 October 1989 had been tacitly repealed or was unlawful.", "16. The applicants appealed to the Court of Cassation against that judgment. In their pleadings they relied on, inter alia, Articles 6 and 7 of the Convention, their main arguments being that the Court of Appeal had based its judgment on contradictory and inconsistent reasoning and had, in particular, applied section 116(8) of the Hospitals Act (which concerned high-cost medical “equipment”), whereas, pursuant to the royal decree of 27 October 1989, an MRI unit constituted a high-cost medico-technical “service”, the setting up or operation of which came under section 16(10) of that Act; that the Court of Appeal had omitted to examine whether the royal decree of 27 October 1989 was compatible with the Special Law of 8 August 1980 on institutional reform, which had apportioned powers among the State, the Communities and the Regions, or with the principle of equality enshrined in Articles 10 and 11 of the Constitution, and that it had failed to refer the matter to the Administrative Jurisdiction and Procedure Court; that it had infringed the general principle of the burden of proof and the presumption of innocence; that the lawfulness of the royal decree of 27 October 1989, which the Court of Appeal had applied, had not been established; and that, in any event, the penalty for which it provided had been tacitly abolished by a subsequent provision, namely section 120(1) of the Law of 22 December 1989.\nUnder the second limb of their second ground of appeal, the applicants asserted that the Court of Appeal had breached section 26(1) of the Special Law on the Administrative Jurisdiction and Procedure Court (see paragraph 28 below) by refusing to refer a preliminary question to that court as to whether section 44 of the Hospitals Act contravened the rules laid down by or pursuant to the Constitution to determine the respective powers of the (federal) State, the Communities and the Regions. They submitted in that connection: \n“The appellant argued in his appeal submissions that the royal decree of 27 October 1989 did not comply with the Special Law of 8 August 1980 on institutional reform in that it laid down approval criteria relating to health-care policy, a matter which is the responsibility of the Communities. \nThe judgment appealed against should not merely have assessed whether the royal decree of 27 October 1989 was compatible with the consolidated Hospitals Act which it implemented, since the King is not entitled to stay or dispense with the enforcement of the laws on institutional reform; moreover, the consolidated Hospitals Act does not confer, and could not possibly have conferred, on him the authority to derogate from the laws on the distribution of powers. ...\nFurthermore, seeing that [the Court of Appeal] held that the royal decree complied with the consolidated Hospitals Act, it was required by section 26(1) of the Special Law of 6 January 1989 to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether the Act contravened the rules on the distribution of powers between the State, the Communities and the Regions.”\nThe applicants accordingly asked the Court of Cassation to submit the following question to the Administrative Jurisdiction and Procedure Court:\n“In so far as section 44 of the consolidated Hospitals Act of 7 August 1987 is to be construed as empowering the King to lay down the rules set out in the royal decree of 27 October 1989 ‘establishing standards which a service that has installed a magnetic-resonance imaging unit with a built-in electronic calculator must satisfy in order to be approved as a high-cost medical service within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987’, does that provision contravene:\n(1) the rules on the distribution of powers, seeing that by virtue of, inter alia, section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities; ...” \nUnder the third limb of the second ground of appeal, based on Article 149 of the Constitution, which lays down the obligation to give reasons for judgments and decisions, the applicants asked the Court of Cassation to submit a further preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act breached Articles 10 and 11 of the Constitution, which safeguarded the principle of equality and non-discrimination.", "17. The civil party, which was the respondent before the Court of Cassation, filed pleadings in reply on 8 September 1995.", "18. On 19 October 1995 the applicants filed supplementary pleadings in which, among other things, they set out four fresh grounds of appeal – based, in their submission, on public policy – alleging violations of various provisions of the Constitution and the Convention, in particular Articles 2 and 3. In their new grounds they submitted that the royal decree of 27 October 1989 was unlawful; that the principle of equality had been infringed in that, among the many hospitals that possessed the equipment in issue, only the applicants had been prosecuted; that the penalty set forth in the Hospitals Act had been abolished; and, lastly, that a number of fundamental rights, including the right to life, had been infringed. The applicants also reiterated their request to have the preliminary question cited above submitted to the Administrative Jurisdiction and Procedure Court.", "19. On 8 January 1996 the date set for the hearing was entered on the list displayed at the registry and in the courtroom of the Court of Cassation.", "20. The Court of Cassation held a public hearing on 24 January 1996. The applicants assert that they were not notified of the date of the hearing, such an omission being in accordance with Article 420 ter, second paragraph, of the Code of Criminal Procedure (CCP), which provided that dates set for hearings in the Court of Cassation were entered on the list of pending cases at least fifteen days in advance, without any further notification. As is apparent from the record of the hearing, the court heard evidence from the reporting judge, the representative of Principal State Counsel’s Office and counsel for the civil party. State Counsel did not attend the deliberations that took place after the hearing. On the same day, after the deliberations, the Court of Cassation dismissed the applicants’ appeal, having declared their supplementary pleadings inadmissible as being out of time, pursuant to Article 420 bis, second paragraph, of the CCP, which provided that persons appealing to the Court of Cassation could not file any pleadings once two months had elapsed from the date on which the case was entered on the general list.", "21. In its judgment, delivered on the same day, the Court of Cassation held, in particular, that the reasoning given in the judgment appealed against had not been contradictory and that the contention that the Court of Appeal had applied section 116(8) instead of section 116(10) of the Hospitals Act amounted to complaining of an incorrect reference to the applicable legal provision, an error that had no bearing on the penalty imposed since the two provisions in question provided for the same penalty. It further held that the complaint that the royal decree was incompatible with the Special Law of 8 August 1980 amounted to challenging the Law’s constitutionality, a question outside the Court of Appeal’s jurisdiction. Furthermore, the Court of Appeal was under no obligation to submit a preliminary question to the Administrative Jurisdiction and Procedure Court if it considered that the reply to the question was not essential for it to be able to give judgment. \nThe Court of Cassation further noted that the Court of Appeal had not infringed the rules on the burden of proof as, in dismissing the complaints that the royal decree of 27 October 1989 was unlawful, it had based its decision not on the appellants’ arguments but on the consideration that it was not for the courts to take the place of the executive in assessing the appropriateness of a measure falling within the executive’s sphere of competence.\nThe Court of Cassation also dismissed the argument that the royal decree in question was unlawful or had been repealed, holding that section 120 of the Law of 22 December 1989 was in no way incompatible with the Hospitals Act of 7 August 1987 as it merely provided for an additional sanction in the form of a limit on fees and, consequently, had not tacitly abolished the criminal penalties provided for in that Act. \nLastly, the Court of Cassation refused the request to submit a preliminary question to the Administrative Jurisdiction and Procedure Court. In so far as the question concerned the compatibility of section 44 of the Hospitals Act with the rules on the distribution of powers, the Court of Cassation held: \n“Furthermore, in so far as the appellant asked the Court to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act, consolidated on 7 August 1987, contravenes the ‘rules on the distribution of powers, seeing that by virtue of section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities’, he did not state the precise nature of the alleged contravention.\nUnder the aforementioned section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform, policy on the provision of health care is a ‘person-related matter’ falling within the responsibility of the Communities [matière personnalisable], but only subject to certain exceptions, such as legislation laying down organisational principles, or funding arrangements, where these are governed by such legislation.\nSince the consolidated Act of 7 August 1987 lays down organisational principles governing hospitals and, in particular, their funding, the appellant should have explained in the preliminary question he intended to have submitted to the Administrative Jurisdiction and Procedure Court precisely why he considered that section 44 of the Act was not covered by the exceptions whereby legislation laying down organisational principles, and the funding arrangements made in such legislation, are not ‘person-related matters’ for which responsibility is assigned to the Communities by Article 128 § 1 (former Article 59 bis § 2 bis) of the Constitution, but are matters which under the Constitution remain the preserve of federal legislation.\nAccordingly, the request for the submission of a preliminary question in relation to this limb of the ground of appeal is inadmissible as being insufficiently precise. ...”\nThe Court of Cassation also declared the preliminary question inadmissible in so far as it concerned the compatibility of section 44 of the Act with Articles 10 and 11 of the Constitution, on the ground that the question was “extraneous both to Article 149 of the Constitution, the only provision alleged to have been infringed in this limb of the ground of appeal, and to the failure to reply to the appellant’s submissions, the only complaint raised in the limb in question”." ]

[ 3 ]

[ "8. On 3 February 1995 Mr David Beesley, store manager, was shot dead in the manager's office of a Kwik-Save supermarket in Greater Manchester.", "9. On 18 February 1995 the applicant and another man, by the name of Leroy Grant, were arrested on suspicion of having committed a robbery at the Late Saver shop, Cheadle. At the time, they were in possession of an 8-mm Beretta replica handgun. Charged in connection with this offence, Mr Grant admitted to the offence and several other late-night shop robberies. The applicant denied involvement in any of the offences. On or about 20 February 1995 an anonymous informant told the police that the applicant had been involved in the murder of David Beesley.", "10. On 20 February 1995 the applicant and Leroy Grant appeared in custody at the Stockport Magistrates' Court and were further remanded in custody to reappear on 23 February 1995. On 20 February 1995 Detective Chief Inspector Dunn requested permission for the cell and the visiting areas used by the applicant and Leroy Grant to be bugged with audio and video technology, alleging that all regular methods of investigation to identify David Beesley's murderer had failed. The Chief Constable of the Greater Manchester Police granted authority on the same day for an unlimited period for both the police stations at Stockport and Cheadle Hulme. On 13 March 1995 similar authority was sought and obtained for the installation of a listening device with video system to be placed in the visiting area of Stretford police station, where the applicant was then held.", "11. On 8 March 1995 the applicant was arrested for the murder and questioned. In the interviews with the police which followed, the police told the applicant that he was not obliged to say anything. He availed himself of that right.", "12. During this time visits to the applicant by his female friend, J.N.S, were recorded on audio and videotape in the prison visiting area between 12 and 28 March 1995. The applicant and Leroy Grant were held for long periods in the same cell and recordings of their conversations were made from 20 February to 12 March 1995.", "13. On 23 March 1995 H. was brought to Stretford police station. H. was a long-standing police informant with a criminal record who had been arrested on 21 March 1995 for unrelated offences. He was placed in the applicant's cell for the purpose of eliciting information from the applicant. As asserted by the applicant, H. had every incentive to inform on him. Telephone conversations between H. and the police included comments by the police instructing H. to “push him for what you can” and disclosed evidence of concerted police coaching. After 20 April 1995 he associated regularly with the applicant who was remanded at Strangeways Prison.", "14. On 28 June 1995 the applicant was taken away from the prison to be interviewed by the police concerning the Kwik-Save robbery. He was attended and advised by his solicitor. During the course of the interview, the applicant was invited to comment on the recordings made in February and March 1995. He made no comment to any question. According to the applicant, he was interrogated at length by the police in an attempt to “rattle” or unsettle him, such that he would be more talkative and vulnerable to H. upon his return to the prison. H. had been fitted with recording devices. The recording thereby obtained was adduced in evidence at the applicant's trial.", "15. The applicant was interviewed again in the presence of his solicitor on 29 June and 26 July 1995 and remained silent when faced with the allegations.", "16. On 25 July 1995 H. made a 59- to 60-page witness statement detailing his conversations with the applicant and was released on bail on 4 August 1995. His sentence was postponed until after he had given evidence at the applicant's trial. The high point of H.'s evidence was the assertion that the applicant had admitted his presence at the murder scene. This asserted admission was not part of the recorded interview and was disputed. The thrust of the applicant's case was that he was discussing robberies and did not accede to H.'s efforts to channel their conversation into a discussion of the murder. The audio- and video-recordings (or transcripts thereof) were utilised in the trial of the applicant. No evidence, other than the alleged admissions, connected the applicant with the killing of Mr Beesley.", "17. In January 1998 the applicant's trial on one count of murder and a count of conspiracy to rob began before a jury. He was represented by leading counsel.", "18. During his trial, the applicant's counsel challenged the admissibility of extracts from covert audio- and video-recordings of conversations of the applicant with Leroy Grant and J.N.S., under sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE). The judge concluded that there was evidence on the tapes from which the jury could infer that the applicant was involved in the events of 3 February 1995, and it was not so unreliable that it could not be left to the jury to assess for themselves. The judge also rejected the applicant's counsel's arguments under sections 76 and 78 of PACE that the evidence from H. was obtained by oppression or by such impropriety as to render it inadmissible. He considered that the use of an informant to talk and listen to the accused over a substantial period of time did not result in any unfairness to the accused. The fact that H. might be considered as having much to gain in giving evidence was also a matter to be left to the jury in their assessment of the reliability of his evidence. The evidence was accordingly admitted before the jury. The judge's ruling on the admissibility of the evidence was given on 26 January 1998, after a voir dire (submissions on a point of law in the absence of a jury) and consisted of a judgment of eighteen pages.", "19. In his summing-up to the jury on 10 and 11 February 1998, the trial judge gave directions on the way in which the jury should assess the reliability of the disputed evidence. He told them that they were to judge whether the police had deliberately wound up the applicant during the interview on 28 June 1995 and how to approach the evidence put forward by H.:\n“So at the end of the day with regard to H. you have his evidence about the conversations that he had with [the applicant] and what [the applicant] said. You have the tape recordings of the conversations on 28 June when H. had been wired up, between [the applicant] and H., and you have the transcripts of the conversations between H. and the police. I suggest ... that you approach the evidence of H. with the very greatest caution and care. He is a professional criminal. He behaved, and has behaved as he acknowledged, dishonestly and criminally for years. He saw the likelihood of advantage to himself, both in terms of bail and in the sentence that he was likely to receive. You have heard that he has not yet been sentenced on matters for which he was in custody in early 1995. The defence say if you consider the whole picture you simply cannot rely upon H.; quite unsafe to do so. The prosecution say the contents of the tapes of 28 June can be relied on and are consistent with what H. says [the applicant] had said to him previously, before he, H., was wired up. Of course tapes of ... conversations cannot possibly constitute any independent confirmation of what H. says about what [the applicant] had said to him previously, because, and you will understand the logic of that, the information is all coming from one source, namely H. and the witness cannot strengthen his own evidence essentially by repetition.\nSo, ladies and gentlemen, at the end of the day how do you regard H.? Was he or may he have been lying, or are you sure that he was telling the truth? If you are sure, for example, in relation to things said on the tapes of 28 June or other aspects of H.'s evidence that his evidence is true, that [the applicant] did say a number of things, what do those things mean? Do they point to his guilt, to his presence at Kwik-Save on 3 February 1995, or are they capable of meaning something else? ...”", "20. The judge also directed the jury concerning the possible drawing of inferences from the applicant's silence in police interview on 28 and 29 June and 26 July 1995, pursuant to section 34 of the Criminal Justice and Public Order Act 1994. He reminded the jury that the defence had contended that the applicant's silence had been adopted on legal advice because of the view that oppressive interrogation techniques were being used.", "21. On 17 February 1998, after the jury had deliberated for a total of twenty-one and a half hours, the applicant was convicted of murder before the Crown Court at Manchester by a majority of ten to two and sentenced to life imprisonment. The applicant thereafter lodged a notice of appeal, asserting, inter alia, that the judge ought to have excluded evidence of the audio- and video-recordings of his conversations with Leroy Grant and J.N.S. and the evidence put forward by H. He also argued that the judge had erred in his directions as to the circumstances in which the jury could draw inferences from the applicant's failure to respond to police questions in interviews of 28 and 29 June, when the police strategy was to “spook” the applicant into a state of garrulousness when he returned to prison, where he had a conversation with H.", "22. On 31 July 1998 he was refused leave to appeal against his conviction by a single judge. His renewed application was refused by the Court of Appeal (Criminal Division) on 18 January 1999, after a hearing at which he was represented by leading counsel. In the court's judgment of that date, Lord Justice Rose found that the trial judge gave a very careful and impeccable ruling as regards the admissibility of the tapes and evidence put forward by H. and that he had considered all the matters which he should have considered and had not considered any matter which he ought not to have considered. There was no basis for holding that the exercise of his discretion had been so flawed that the Court of Appeal should intervene. In so far as the applicant complained that the judge should have warned the jury not to take into account the applicant's failure to answer police questioning in the light of the police strategy to “spook” him, Lord Justice Rose found that the judge had given an entirely appropriate direction to the jury in the circumstances of the case." ]

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