Datasets:

coastalcph

/

lex_glue

like 47

[ "7. The applicant was born in 1972 and lives in London.", "8. On 2 February 1998 the applicant was convicted of causing grievous bodily harm with intent. She was found to be suffering from a mental illness. She was detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). She applied to a Mental Health Review Tribunal (“MHRT”) for her discharge from detention in hospital.", "9. On 24 May 1999 the MHRT first considered her application. It adjourned in order, inter alia, to obtain a psychiatric report from a Dr Hamilton which was to address the eligibility of the applicant for a conditional discharge from hospital.", "10. On 16 August 1999 the MHRT resumed its hearing of the applicant's application. It had before it the report of Dr Hamilton, which expressed the view that the applicant was not ready for discharge. Furthermore, the psychiatrist in charge of the applicant's care, Dr O'Grady, and a social worker gave evidence to the MHRT stating that they were opposed to the applicant's discharge. They proposed that the applicant should instead be transferred to hostel-type accommodation, under the care of a supervising consultant psychiatrist.", "11. The MHRT nevertheless concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside at the home of her parents, that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her.", "12. In coming to its decision, the MHRT answered the three questions below as follows:", "13. The MHRT deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed.", "14. On 30 September 1999 the psychiatrist responsible for supervising the applicant in the community, Dr Kennedy, saw her with two members of his team. He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He described his consultation with the applicant in a letter to Dr O'Grady, dated 6 October 1999, in which he wrote, inter alia:\n“I made it clear that I would not consider it safe to supervise [the applicant] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.”", "15. Dr Kennedy made clear that he was in no doubt that the next stage in the applicant's treatment, rehabilitation and risk management should take place near her family, but in a medium-security unit or at a registered mental nursing home. Alternatively, he suggested asking one of his colleagues, or one of the general psychiatrists at St Anne's Hospital, whether they would be willing to supervise the applicant on conditional discharge to her parents' home.", "16. On 11 October 1999 Dr O'Grady wrote to the MHRT. He stated that the purpose of his letter was to give the MHRT advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant. He explained that both Dr Hamilton and Dr Kennedy were agreed that it would be difficult to manage her should she be discharged directly to her parents' home. He continued:\n“In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal ... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [that she] should go through a further period of rehabilitation in the community to prepare her fully for community living.”", "17. On 19 October 1999 Dr O'Grady again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in the North London Forensic Service (“the NLFS”) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal. As it transpired, none of those psychiatrists was prepared to do so.", "18. On 15 November 1999 the health authority responsible for the area in which the applicant lived (“the health authority”) requested the director of the NLFS to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision.", "19. On 2 December 1999 the NLFS informed the health authority that the applicant's new responsible medical officer, Dr Duffield, was not satisfied that the applicant should return home. However, he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after-care supervision for the applicant were she to be discharged to her parents' home.", "20. On 15 December 1999 the NLFS wrote to the health authority to confirm that no consultant forensic psychiatrist from the NLFS was willing to supervise the applicant in the community. Furthermore, it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community. The letter noted that most private independent sector providers concentrated on acute and in-patient care only.", "21. On 17 December 1999 Dr Duffield wrote to the MHRT to advise it that its conditions had not been complied with so far, and the reasons therefor.", "22. In December 1999 and January 2000 the health authority wrote to the clinical directors of the forensic psychiatry services in London, Hertfordshire and Essex, identifying nine units in addition to the NLFS. They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her supervising consultant forensic psychiatrist under the terms laid down by the MHRT. None was willing or able to assist.", "23. The health authority subsequently wrote to both national and private institutions in Cambridgeshire and Northamptonshire with the same request. Once again, no one was prepared to comply with the conditions set by the MHRT.", "24. The health authority concluded that there were no further steps that it could take.", "25. On 3 March 2000 Dr Kennedy wrote to the Home Office, advising it of his opinion that the conditions imposed by the MHRT were impossible to meet. He therefore requested the Home Secretary to consider exercising his powers under section 71(1) of the 1983 Act to refer the applicant to an MHRT. The Home Secretary complied with that request on 17 March 2000.", "26. On 3 December 1999 the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the MHRT, which was preventing her discharge from hospital. She sought, inter alia, the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the MHRT.", "27. On 18 January 2000 the High Court granted the applicant permission to apply for judicial review. The Secretary of State for Health declined to intervene in the proceedings, but made the following observations:\n“The Mental Health Act provides an established legislative framework in this and similar cases designed to safeguard the interests of patients. As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted Mental Health Review Tribunals ... It is a matter for the Tribunal whether they decide to order a conditional discharge against the advice of the [Responsible Medical Officer].”", "28. On 9 June 2000 the High Court judge (Mr Justice Burton) heard the applicant's substantive application for judicial review. The applicant argued that she was entitled to be discharged from hospital; that the health authority was in breach of its duty under section 117 of the 1983 Act for failing to provide her with the necessary services to comply with the conditions of the MHRT; and that the failure to comply with those conditions within a reasonable period of time was in breach of Article 5 of the Convention.", "29. The judge rejected the applicant's application. He held that, under section 117 of the 1983 Act, the health authority was not under an absolute duty to implement the conditions of the MHRT, but only a duty to take all reasonable steps to attempt to satisfy those conditions. The judge further held that, on the facts, the health authority had complied with that duty. He further rejected the applicant's suggestion that any of the psychiatric consultants had “thwarted” the conclusions of the MHRT, holding that doctors were both entitled and obliged to exercise their own professional judgment.", "30. On 24 August 2000, following the reference by the Home Secretary on 17 March 2000 (see paragraph 25 above), a differently constituted MHRT considered the applicant's case afresh. It concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside in accommodation approved by her responsible medical officer, that she accept to be supervised and take the medication prescribed by the latter, and that she accept to be supervised by her social supervisor.", "31. The MHRT gave the same answers as the first MHRT to the questions set out in paragraph 12 above. It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. It further expressed the following as part of its reasoning:\n“... we consider that it is appropriate that [the applicant] should remain liable to recall to hospital. The critical issue, we feel, is that Miss Kolanis's current good mental health is dependent, in our view, upon her continuing to receive her medication.\nOur hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period. We consider that, bearing in mind that Miss Kolanis had a legitimate expectation a year ago of being released into the community almost at once, her [Responsible Medical Officer] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent. Having seen Miss Kolanis, it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her.”", "32. On 23 December 2000 the applicant was conditionally discharged from hospital to a resettlement project hostel in London.", "33. Subsequently, the Court of Appeal granted the applicant permission to appeal against the judgment of the High Court of 9 June 2000 in her judicial review proceedings. It recognised that, in the light of the applicant's conditional discharge, which had occurred subsequent to the judgment of the High Court, the issues raised on appeal were, in one sense, academic. However, permission to appeal was granted as a result of the importance of the issues raised.", "34. On 21 February 2001 the Court of Appeal dismissed the applicant's appeal. It agreed with the interpretation of section 117 of the 1983 Act that had been the basis of the decision of the High Court judge (see paragraph 29 above).", "35. In paragraph 16 of his judgment, Lord Phillips set out the effect of an earlier judgment of the House of Lords in R. v. Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [1987] 3 All England Law Reports 8 (“Oxford”) as follows:\n“Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions. In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal. The patient was not entitled himself to initiate a reference for twelve months. The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State. The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v. the United Kingdom ...”\nAt the time at which the facts in the present case arose, no separate relief was available to the applicant under the Human Rights Act 1998 (which incorporated the Convention directly into domestic law). Nevertheless, Lord Phillips proceeded on the basis that, where there was no conflict with precedent, the correct approach had always been to interpret legislation in a manner that was consistent with the Convention. He therefore addressed the human rights issues in the case as follows:\n“32. Does the legislative scheme, as interpreted in [Oxford], violate the right to liberty conferred by Article 5 of the [Convention]? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the Tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in the case of Johnson, the Tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur. 33. Where (i) a patient is suffering from mental illness and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court in Winterwerp are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital. 34. If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a Tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by Article 5. 35. Very different considerations apply to a factual situation such as that considered by the Strasbourg Court in Johnson. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by Article 5 § 1 (e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson suggests that the statutory regime as interpreted in [Oxford], may not be consistent with Article 5. If the Tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.", "36. The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by Tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in [Oxford]. ...” 36. During the course of his judgment, Lord Justice Buxton opined as follows:\n“39. The effect of Article 5 § 4 of the [Convention] is to entitle a person in the situation of [the applicant] to have the lawfulness of her detention decided by a body, within the system of the State that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the Mental Health Review Tribunal (MHRT). One necessary characteristic of such a body, if it is to meet the requirements of Article 5 § 4, is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see ... X v. the United Kingdom[judgment of 5 November 1981, Series A no. 46] ... 40. In the present case, the MHRT concluded that the detention of [the applicant] would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included cooperation by [the applicant] with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the State. If that order were to be effective, as Article 5 § 4 requires, such supervision had to be provided. 41. Johnson ..., paragraphs 66 and 67, seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of Article 5 § 1 is committed by the State if, once the MHRT has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the State. 42. In applying that part of the Court's jurisprudence, I would not make the distinction drawn by [Lord Phillips], in paragraph 32 of his judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson, to the prospect of recurrence. In both cases, there is continued detention; the role of the MHRT in both cases is to exercise the court-like functions required by Article 5 § 4, and under the jurisprudence of Article 5 § 4 the national authorities are equally bound to respect and act on the determination of the MHRT in either case. 43. There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is 'of a kind or degree warranting compulsory confinement' to decisions that were not taken with that formulation expressly in mind. In [the applicant's] case, the MHRT answered 'Yes' to the question: 'Is the Tribunal satisfied that the patient is not now suffering from mental illness ... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?', but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment. That is not a clear-cut decision of the type that Winterwerp seems to assume. 44. However that may be, under the [Convention] jurisprudence ... once the MHRT made a decision as to [the applicant's] release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson, of indefinite deferral of the release that had been ordered by the MHRT. That deferral would arguably entail a breach of the [Convention]. The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here. 45. In raising the possibility that [the applicant's] detention became unlawful I have not overlooked [Lord Phillips's] view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in [Convention] terms is the ruling of the MHRT, the determining body created by Article 5 § 4. If the ruling of the MHRT is frustrated, in a case where under the [Convention] jurisprudence the subject should no longer be detained, then the subject is deprived of her Article 5 § 4 protection, as (I think it to be clear) the [Court] would have held in Johnson had the issue not been determined already under Article 5 § 1: see paragraphs 69-72 of the judgment. 46. I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in common-sense terms, but also in view of the emphasis placed in the jurisprudence of the [Convention] upon the judgment of the national authorities: see for instance the observations of the [Court] in Luberti v. Italy [judgment of 23 February 1984, Series A no. 75] at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the judgment in Johnson as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill. The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of [Lord Phillips's] judgment. If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in [Oxford], then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [Convention]. That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5 § 4 requires to be respected.\n... 48. ... [the applicant] may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained. The State is responsible for the whole of these circumstances. That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT's decision: see the last sentence of paragraph 67 of the judgment. The circumstances of [the applicant's] case might, therefore, by the same token found a successful complaint in Strasbourg.”", "37. Lord Justice Sedley, during the course of his judgment, expressed the following view (in paragraphs 55 and 56):\n“... more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5 § 4, at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.\n... I am rather less positive than Buxton LJ in looking to Strasbourg to afford [the applicant] a remedy that cannot be afforded here. It seems to me ... that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.”", "38. On 3 July 2001 the House of Lords refused the applicant's petition of appeal against the judgment of the Court of Appeal." ]

[ 2 ]

[ "6. The applicant was born in 1935 and currently resides in Torez, the Donetsk Region.", "7. On 30 November 2000 the applicant was dismissed from her position in the State Holding Company “Torezantratsit” (the “SHC”).", "8. In July 2000 the applicant instituted proceedings in the Torez City Court against the SHC seeking to recover salary owed to her.", "9. On 7 August 2000 the Torez City Court allowed her claims and ordered the SHC to pay the applicant UAH 2,379.76[1] in compensation.", "10. On 14 June 2001 the Torez Execution Service informed the applicant that the judgment of 7 August 2000 could not be executed due to the SHC’s lack of funds.", "11. On 10 October 2002 the applicant informed the Court that the judgment of 7 August 2000 had still not been executed.", "12. The Government stated that between 9 November 2000 and 15 April 2003 the bailiffs conducted 8 inspections of the company’s accounts and found that there were no funds available to enforce the judgment. They also stated that the bailiffs were enforcing 92 writs of execution against the company, with a total debt of UAH 213,526[2].", "13. On 2 July 2003 the applicant received UAH 2,379.76[3] in execution of the judgment of 7 August 2000.", "14. On 3 July 2003 the enforcement proceedings on the applicant’s writ of execution were discontinued as the amount awarded by the judgment had been paid." ]

[ 3 ]

[ "4. The applicant was born in 1966 and lives in Ekaterinburg.", "5. On 27 May 1997 the applicant instituted proceedings to challenge his dismissal from employment. He also claimed payment of his salary in respect of the period of enforced unemployment and damages.", "6. On 13 October 1997 the Kirovskiy District Court of Ekaterinburg dismissed the applicant's claim. The applicant appealed against the judgment.", "7. On 23 December 1997 the Sverdlovsk Regional Court quashed the judgment and remitted the case for a fresh examination. A new hearing on the merits was fixed for 4 March 1998.", "8. Between 4 March 1998 and 8 September 1998 the hearing was postponed four times because of the parties' failure to appear.", "9. Between 8 September 1998 and 21 December 1998 the hearing was postponed three times because of the defendant's failure to appear.", "10. Between 21 December 1998 and 17 May 1999 the hearing was postponed three times: once for less than two months because of the parties' failure to appear and twice for an overall period of over three months because the judge was absent on sick leave.", "11. On 17 May 1999 the hearing was postponed to 23 August 1999 because the judge was engaged in unrelated proceedings.", "12. On 23 August 1999 the hearing was postponed to 26 August 1999 at the applicant's request, so that the court could obtain additional evidence.", "13. On 26 August 1999 the Kirovskiy District Court of Ekaterinburg partially granted the applicant's claim. The applicant was not provided with a copy of the judgment. On 24 February 2000 and 10 April 2000 he filed two complaints about the failure to provide him with a copy of the judgment, to the Kirovskiy District Court of Ekaterinburg and to the Chairman of the Sverdlovsk Regional Court respectively.", "14. On 28 April 2000 the Chairman of the Kirovskiy District Court of Ekaterinburg sent him a copy of the judgment. On an unspecified date the applicant appealed against the judgment.", "15. On 20 June 2000 the Sverdlovsk Regional Court quashed the judgment of 26 August 1999 on appeal and remitted the case for a fresh examination. A new hearing on the merits was fixed for 18 December 2000.", "16. On 18 December 2000 the hearing was postponed to 21 February 2001 at the applicant's request.", "17. On 21 February 2001 the hearing was postponed to 25 April 2001 because of the parties' failure to appear.", "18. Between 25 April 2001 and 23 October 2001 the hearing was postponed twice at the defendant's request.", "19. On 23 October 2001 the hearing was postponed to 4 January 2002 because the judge was absent on sick leave. A new date for the hearing was then fixed for 10 January 2002.", "20. On 10 January 2002 the hearing was postponed to 31 January 2002 on account of the parties' failure to appear. On 31 January 2002 a new hearing was fixed for 5 March 2002. The hearing was then postponed to 27 March 2002 because the court ordered the applicant to submit a clarified statement of claim.", "21. On 27 March 2002 the Kirovskiy District Court of Ekaterinburg declared the applicant's dismissal unlawful, ordered that he be paid his salary in respect of the period of enforced unemployment and partially granted the claim for damages. The applicant appealed against the judgment.", "22. On 20 June 2002 the Sverdlovsk Regional Court reversed the judgment in the part relating to the payment of the applicant's salary on the grounds that the trial court had miscalculated it, and remitted the case for a fresh examination. A new hearing on the merits was fixed for 16 October 2002.", "23. Between 16 October 2002 and 30 December 2003 the hearing was postponed three times for an overall period of ten months because the judge was engaged in unrelated proceedings and once for a period of over four months because of the defendant's failure to appear. It appears that no hearing took place on 30 December 2003. A new date for the hearing was fixed for 26 March 2004.", "24. On 26 March 2004 the hearing was postponed to 22 April 2004 because of the defendant's failure to appear. The court filed a number of requests to establish the defendant's whereabouts.", "25. On 22 April 2004 the Kirovskiy District Court of Ekaterinburg terminated the proceedings concerning the applicant's claim due to the liquidation of the defendant company." ]

[ 3 ]

[ "8. The applicant was born in 1946 and lives in Kielce. He owned and ran a company.", "9. The applicant was arrested on 10 March 1997. On the same day the Kielce District Court (Sąd Rejonowy) ordered that the applicant be detained on remand for three months in view of the reasonable suspicion that he had committed several counts of fraud. The court observed that the applicant's detention was also justified by the severity of the anticipated penalty in view of the serious nature of the offences at issue. In respect of the applicant's objections to holding him in detention based on health grounds, the court considered those objections unwarranted having regard to three medical reports. The applicant was detained in the Kielce Detention Centre.", "10. On 17 April 1997 the prosecution service filed with the Kielce Regional Court (Sąd Wojewódzki) a bill of indictment against the applicant, who was the sole accused. He was charged with multiple counts of aggravated fraud committed between December 1989 and May 1993, having acted against the interest of his company and having failed to file a petition for insolvency. The charges of fraud concerned business transactions in which the applicant misled other parties to enter into contracts. The prosecution asked the trial court to hear evidence from one hundred and twelve witnesses, four expert witnesses and it filed a list of seventy-seven victims. The investigation's case-file comprised 16 volumes.", "11. From an unspecified date in May 1997 to 29 May 1997 the applicant was held in the Hospital of the Cracow Detention Centre.", "12. On 19 September 1997 the applicant's counsel filed an application for release. That application was dismissed by the Kielce Regional Court on 6 October 1997. The court's decision was reasoned as follows:\n“The applicant's counsel submitted in his application for release that Wiesław Łatasiewicz should not be detained on account of the state of his health. The court has received a medical certificate from the Kielce Detention Centre which confirms that, [although] W. Łatasiewicz suffers from minor ailments, he is in good health and can remain in the Detention Centre and receive treatment there.\nThe evidence obtained in the case sufficiently shows that the accused had committed the acts with which he was charged. In view of the gravity of the charges laid against him, his detention is justified by the severity of anticipated penalty. The court considers that none of the grounds for release from detention as provided by Article 218 of the Code of Criminal Procedure apply to Wiesław Łatasiewicz.”", "13. On 10 October 1997 the Kielce Regional Court decided to extend the applicant's pre-trial detention until 10 February 1998, relying on the same grounds as originally given for the applicant's detention. It also referred to the significant number of witnesses to be heard at trial. The Regional Court found no grounds which would justify the lifting of the applicant's detention pursuant to Article 218 of the Code of Criminal Procedure.", "14. On 20 October 1997 the applicant's counsel appealed to the Cracow Court of Appeal (Sąd Apelacyjny) against the decision of 10 October 1997. He pointed out that there had been no judicial decision authorising the applicant's detention between 10 June 1997, when the detention order issued on 10 March 1997 had expired, and 10 October 1997, the date of the appealed decision. Therefore, the detention during that period had been unlawful. In addition, the counsel asserted that the trial court had remained inactive for a period of six months since the lodging of the bill of indictment, which showed that the applicant's detention was not necessary. He argued that this amounted to a breach of Article 5 § 3 of the European Convention on Human Rights and justified the applicant's release.", "15. On 30 October 1997 the Cracow Court of Appeal dismissed the appeal. It agreed with the applicant that there had been no judicial decision authorising his detention between 10 June and 10 October 1997. However, the courts had become aware that such a decision had been necessary only in October 1997 when the Supreme Court's resolution no. I KZP 23/97 of 2 September 1997 had been published. Moreover, the Court of Appeal agreed with the applicant's criticism of a period of inactivity in the proceedings following the lodging of the bill of indictment, but pointed out that in May 1997 the applicant had been taken to a hospital, and in June 1997 he had been allowed to consult the case-file. Nonetheless, the Court of Appeal considered that the serious nature of the applicant's criminal activities and their scale, together with the necessity to examine voluminous evidence, justified his detention.", "16. On 19 November 1997 the Kielce Regional Court held the first hearing. It was adjourned until 5 December 1997.", "17. Subsequently, the hearing scheduled for 5 December 1997 was postponed until 29 December 1997 due to an illness of the applicant's counsel.", "18. On 29 December 1997 the trial court held a hearing and heard several witnesses. The hearing scheduled for 15 January 1998 was adjourned until 18 February 1998 since in the meantime the applicant had been taken to the Hospital of the Cracow Detention Centre.", "19. On 15 January 1998 the Regional Court decided to prolong the applicant's detention until 10 May 1998. It observed that there was a reasonable suspicion that the applicant had committed the offences with which he was charged. In addition, the court relied on the severity of the anticipated penalty and the fact that numerous witnesses were to be heard. Finally, it considered that there were no grounds, as provided by Article 218 of the Code of Criminal Procedure, which would justify the applicant's release.", "20. On 29 January 1998 the Hospital of the Cracow Detention Centre informed the trial court that the applicant would probably remain in the hospital for three weeks and that his state of health did not prevent him from being held in detention.", "21. The subsequent hearings were held on 18 February, 11 and 30 March, 15 and 16 April 1998. At the hearings held on 30 March, 15 and 16 April 1998 the trial court imposed fines on certain witnesses who failed to appear although they had been duly summoned.", "22. On 6 May 1998 the Kielce Regional Court prolonged the applicant's detention until 10 July 1998, repeating the grounds that had been previously given. It also referred to the fact that twenty-eight witnesses and four expert witnesses were still to be heard.", "23. On 11 May 1998 the applicant appealed against the decision of 6 May 1998. The subsequent hearing was held on 21 May 1998. At that hearing the applicant withdrew his appeal of 11 May 1998. He also requested the trial court to order his examination by three medical experts. The hearing was adjourned until 4 June 1998.", "24. The hearing scheduled for 4 June 1998 was adjourned as the applicant was unwell. The next hearing was held on 17 June 1998.", "25. On 8, 17 and 18 June 1998 respectively the trial court obtained reports of three medical experts. According to their findings, the applicant could receive treatment while in detention. However, the expert in cardiology opined that the applicant should be treated in the Hospital of the Cracow Detention Centre.", "26. On 8 July 1998 the trial court held a hearing. At the hearing the applicant unsuccessfully requested the court to order his release. On the same day the court prolonged the applicant's detention until 10 September 1998, relying on the same grounds as given in its previous decisions. Having regard to the report of the expert in cardiology, the trial court ordered that the applicant be held in the Hospital of the Cracow Detention Centre. The hearing was adjourned until 12 August 1998.", "27. On 13 July 1998 the applicant appealed against the decision of 8 July 1998, invoking, in particular, the poor state of his health. On 30 July 1998 the Cracow Court of Appeal upheld the impugned decision.", "28. The hearing scheduled for 12 August 1998 was adjourned until 31 August 1998 because the applicant was not brought from the Hospital of the Cracow Detention Centre due to his state of health.", "29. On 20 August 1998 the Hospital of the Cracow Detention Centre informed the trial court that the applicant would be unable to participate in the hearing scheduled for 31 August 1998. The hearing scheduled for the latter date was accordingly adjourned. The applicant's defence counsel requested the Regional Court to order the applicant's release.", "30. On 7 September 1998 the Kielce Regional Court released the applicant on bail. It also ordered him to report bi-weekly to the police station and to surrender his passport. The trial court observed that at the present stage of the proceedings, when most of the evidence had been already heard at trial, it was not necessary to prolong the applicant's detention. It also took into account the applicant's poor state of health as evidenced by the certificate issued by the Hospital of the Cracow Detention Centre on 20 August 1998.", "31. On 20 May 2003 the Kielce Regional Court convicted the applicant of multiple counts of aggravated fraud committed between September 1991 and May 1993 and sentenced him to two and a half years' imprisonment and a fine. In respect of the other charges against him, the Regional Court discontinued the proceedings because the relevant limitation-period had expired. The applicant appealed against this judgment.", "32. On 28 January 2004 the Court of Appeal upheld the applicant's conviction but reduced his sentence to two years' imprisonment suspended for four years. It also ordered him to compensate the victims." ]

[ 2 ]

[ "8. The applicant was born in 1960 and lives in Celestynów, Poland.", "9. The applicant and O. had a relationship and were living together for an unspecified period. In 1994 O. gave birth to the applicant's son, P. In August 1996 during the applicant's stay abroad, P.'s mother, O., moved out from their house and took P. with her, apparently as a result of growing tensions and disagreements in the couple. Afterwards she refused to allow the applicant to have contact with P. Subsequently, on an unspecified date, the applicant took P back to his place, without O.'s agreement.", "10. On an unspecified later date O. filed with the Białystok District Court (sąd rejonowy) a request for limitation of the applicant's parental responsibility for P.", "11. On 12 September 1996 the court issued an interim order to place P. with his mother. It relied on P.'s age, on the fact that O. breast-fed P. and, also, on the fact that he was suffering from allergy. On the following day a court-appointed guardian assisted by a police officer arrived at the applicant's place and after a two-hour skirmish took P. away.", "12. On 8 November 1996 the applicant and O. concluded a friendly settlement as to the access arrangements. They agreed that P.'s place of residence would be with his mother. The applicant had a right to take P. to his place at specified dates and times in 1996. Starting from 1 January 1997 he was supposed to spend every second weekend with his son at his home. As to the exact dates of meetings in 1997 the parties agreed to determine them at a later date.", "13. At the beginning of 1997 O. refused to hand over her son to the applicant, maintaining that P. was ill at that time.", "14. In February 1997 the applicant requested that a court guardian assist him in meetings with P., submitting that O. failed to comply with the settlement they had concluded in November 1996.", "15. On an unspecified date the applicant petitioned the Białystok District Court to fine O. for obstructing his contacts with P. as established in the settlement of 8 November 1996. He also requested the prosecution authorities to institute criminal proceedings against O.", "16. On an unspecified date at the requests of the applicant and O. proceedings concerning parental responsibility were instituted.", "17. On 4 April 1997 the Białystok District Court stayed the proceedings concerning the applicant's petition, considering that only after the completion of the parental-responsibility proceedings would it be possible to examine them. The court observed that the parties to the court settlement of November 1996 had not specified the dates of the applicant's meetings with P. and that therefore the settlement was impossible to enforce. It was therefore impossible to examine the applicant's petition to have a fine imposed on O.", "18. On 19 May 1997 the applicant went to O. and, after an altercation, took his son away. Subsequently, O. informed prosecution authorities that the applicant had kidnapped P. and threatened her.", "19. On 22 May 1997 the applicant sent letters to the Białystok District Court and the prosecution authorities informing them that he had taken over the custody of P. and would continue to exercise his parental rights until the completion of the parental-responsibility proceedings pending before the District Court. He declared that O. would be able to meet her son at the applicant's home.", "20. On 17 July 1997 the District Court, at O.'s request, ordered the applicant to hand over P. to O. within seven days. Initially, he declared his willingness to do so, but, subsequently, went into hiding together with his son.", "21. On 5 August 1997 the Białystok District Prosecutor (prokurator rejonowy) discontinued the proceedings initiated at the applicant's request, considering that O. had not committed the criminal offence of obstructing his contacts with P. It was established that O. had ceased to comply with the terms of the November 1996 settlement at the beginning of 1997, relying on the fact that P. had been sick at that time. She also objected to the applicant taking P. to his home as he lived far away from O.'s residence. The applicant's appeal against that decision was dismissed by the Regional Prosecutor (prokurator wojewódzki).", "22. On 25 August 1997 the prosecutor discontinued the investigations instituted at O.'s request. He considered that the applicant had not committed a criminal offence. It had been established that since 22 March 1997 O. had not allowed the applicant to take his son to his home, despite the fact that P. had got better. The applicant had only been allowed brief visits at her home to see P. The applicant had informed the police and requested to be given assistance, but his efforts failed to affect the mother's conduct. It was further pointed out that after taking away P. from his mother the applicant had informed the prosecution authorities in Białystok and Otwock about the incident. In the light of the fact that the applicant had full parental rights in respect of P. the prosecutor did not consider his acts a criminal offence. O.'s allegations about having been threatened by the applicant proved unsubstantiated.", "23. On 21 August 1997 and 16 September 1997 the Otwock District Court ordered the applicant to reveal P.'s place of residence and warned him that in case of failure to comply with its order he would be fined, with imprisonment in default. He did not comply with these orders.", "24. On 5 February 1998 the Otwock District Court issued an enforcement order in respect of the Białystok District Court's decision of 17 July 1997. It ordered a bailiff to take P. from the applicant by force and hand him over to O.", "25. On 24 February 1998 in the course of the parental-responsibility proceedings the Białystok District Court limited the applicant's parental rights to a right to information about his child's health. It amended the settlement of 8 November 1996 in that it decided that further contacts between the applicant and his son should take place on the third Saturday of each month at the mother's home from 10 a.m. to 4 p.m. without the possibility to take P. anywhere.", "26. The court referred to the November 1996 settlement between the parties, to the subsequent difficulties in the applicant's access to P. and to the fact that on 19 May 1997 he had taken P. to his place. The court considered that although there was nothing in the case-file to suggest that the applicant's parenting skills were insufficient and it was difficult to establish to which of the parents P. was more attached, the applicant's conduct in the course of the proceedings proved his disrespect to the organs of justice and disregard of the interest of the child.", "27. The court dismissed O.'s request to divest the applicant of parental rights, considering that at that stage it was too early to adopt such a serious measure.", "28. The applicant and O. appealed against that decision.", "29. On 27 April 1998 the Warsaw Regional Court (sąd wojewódzki) dismissed the applicant's appeal against the enforcement order of 5 February 1998.", "30. On 19 June 1998 the Białystok Regional Court amended the District Court's decision of 24 February 1998 in that it deprived the applicant of all parental rights in respect of P. It considered that he had abused his rights by making it impossible for the son to contact his mother, whereas the mother's care at that stage of the child's development was indispensable. The court further found that the applicant's continuing hiding was to the child's detriment, especially because he was apparently working and his son was taken care of by other people. It emphasised that the child had the right to decent life conditions, home and stability, of which the applicant had deprived him. The court further pointed out that the difficulties in enforcing court orders in the past could not justify the applicant's conduct and he should have availed himself of legal remedies.", "31. On 8 August 1998 the police took P. away from the applicant.", "32. On 17 August 1998 the applicant requested the District Court to prevent the issue of a passport for P., submitting that O. intended to abduct P. abroad. In reply, he was informed that until the date when the judgment of 19 June 1998 obtained legal force the passport would not be issued without the applicant's approval.", "33. On 28 August and 23 September 1998 the applicant informed the Białystok District Court about instances of obstructing his contact with P. by O. and requested assistance in the enforcement of his access rights.", "34. On 9 September 1998 the Białystok Regional Court dismissed the applicant's request for the appointment of a legal-aid lawyer for the purpose of lodging a cassation appeal and exemption from courts costs. The court found that he ran a business and in July 1997 his income had reached 700 Polish zlotys (PLN), whereas he would have to pay only a PLN 30 fee for his cassation appeal and the legal fees in a case like his would not exceed PLN 300. The court further noted that the applicant was single and owned a plot of land with a building under construction, as well as a car. On 6 October 1998 the Regional Court rejected the applicant's cassation appeal against that decision, as it was not provided for by law. On 16 December 1998 the Supreme Court rejected his appeal against the latter decision.", "35. On 24 November 1998, in reply to the applicant's complaint, the Office of the Prime Minister requested the Białystok District Court to submit information and documents concerning the applicant's case, as it had certain doubts as to the decision to restrict his parental responsibility for P.", "36. On 16 December 1998 the Head of the Family Department at the Białystok District Court informed the applicant that none of the court guardians had agreed to assist in the arrangements for his contact with P.", "37. On 24 February 1999 the Ombudsman's office requested the Warsaw Regional Prosecutor to indicate the policemen who on 8 August 1998 had taken P. away from his father, as well as the person who had ordered it, in breach of the provisions of the Code of Civil Procedure. The applicant submits that no further measures were taken by the Ombudsman.", "38. On 16 March 1999 the Białystok District Court dismissed the applicant's and O.'s petitions concerning his contact with his son. The court relied on the opinion prepared by two experts, according to which the relations between the child and parents were disturbed, and because of the child's age it was recommended that the meetings with the father would take place at the mother's home. The experts noted that P. would not want to leave his father. They pointed out that the need to maintain P.'s contacts with his father existed, but that the parents did not show understanding for the needs of the child and were driven by the wish to harm each other.", "39. On 18 June 1999 the applicant filed with the Białystok Regional Court a petition in which he requested that O. be deprived of her parental rights and he be granted parental responsibility. Subsequently, he asked the court to issue an interim order to the effect that P.'s place of residence would be with the father.", "40. In 2000 the applicant filed an unsuccessful request for the reopening of the proceedings terminated on 19 June 1998.", "41. On 8 February 2001 the Białystok District Court refused the applicant's request for the enforcement of the part of the judgment given on 24 February 1998 concerning his contacts with his son. The court considered that the place of residence of O. and the son was unknown and therefore enforcement was impossible.", "42. On 20 February 2001 the District Court dismissed the applicant's petition to deprive O. of parental responsibility for P. It noted that the applicant's submissions as to the allegedly improper manner in which the mother looked after P. were unsubstantiated. On the contrary, the experts were of the opinion that there were strong emotional bonds between her and P. The applicant appealed.", "43. In her letter of 26 February 2001, written in reply to the applicant's complaint, the President of the Białystok Court of Appeal agreed with his contention that the proceedings were lengthy.", "44. On 27 March 2001 the police authorities informed the applicant that O. with his son had left for London on 30 May 2000.", "45. On 17 May 2001 the Białystok Regional Court quashed the District Court's decision of 8 February 2001. On 10 August 2001 the District Court, following the Regional Court's instructions, stayed the enforcement of the orders concerning contact between the applicant and his son because the applicant was unable to indicate O.'s place of residence.", "46. On 27 September 2001 the Regional Court dismissed the applicant's appeal against the decision of the District Court.", "47. The proceedings are stayed." ]

[ 4 ]

[ "8. The applicant was born in 1969 and is currently in Frosinone Prison.", "9. On 28 November 1999 the applicant was discovered in possession of a package containing 485 grams of heroin and was arrested by the Rome carabinieri. Proceedings were instituted against him for drug trafficking. On 23 December 1999 the applicant appointed a lawyer of his own choosing, Mr M., who represented him throughout the proceedings.", "10. The applicant subsequently requested, through the intermediary of his lawyer, adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). The representative of the Public Prosecutor’s Office gave a favourable opinion. The Rome preliminary hearings judge, taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage (allo stato degli atti) ordered that the summary procedure be adopted.", "11. At the private hearing held on 24 March 2000 in the presence of the applicant, the latter, through the intermediary of his lawyer, pleaded not guilty on the ground that the drugs had been intended for his personal use and not for sale.", "12. In a judgment of 24 March 2000 the Rome preliminary hearings judge sentenced the applicant to six years’ imprisonment and a fine of 40,000,000 lire (approximately 20,658 euros). He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs. At the time of his arrest, the applicant had just purchased a quantity corresponding to more than 8,000 average daily doses.", "13. The applicant appealed against the judgment, reiterating the arguments adduced at first instance. He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the Constitution.", "14. On 1 September 2000 Mr M. was informed that the hearing had been set down for 3 November 2000. On that day Mr M. objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room. The Rome Court of Appeal dismissed his request, observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings.", "15. In a judgment of 3 November 2000 the Court of Appeal upheld the judgment at first instance.", "16. The applicant appealed on points of law. He alleged that the appeal judges had not allowed him to attend his trial and that the summons to appear at the appeal hearing had not been translated into Arabic.", "17. In his final submissions, the public prosecutor requested that the impugned decision be set aside.", "18. In a judgment of 24 January 2002 the Court of Cassation dismissed the applicant’s appeal. It observed that neither the Convention nor the CCP required the steps in the proceedings to be translated into the language of a non-national defendant in Italy. However, the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings. As to the other complaints, the Court of Cassation observed that the presence of the defendant was not required under the summary procedure, the adoption of which had been requested by the applicant himself of his own free will. Furthermore, the applicant had not made clear his wish to participate in the appeal hearing." ]

[ 3 ]

[ "9. The applicants were born in 1974 and 1977 respectively and live in Istanbul.", "10. On an unspecified date police officers from the anti-terror branch of the Bağcılar Security Directorate reported that an illegal organisation, namely Dev-Sol (Revolutionary Left), would organise a demonstration in front of the head office of a daily journal, namely Hürriyet, on 13 August 1994.", "11. On 13 August 1994 the applicants, together with twelve other people, were arrested in front of the newspaper’s head office and taken to police custody at the Bağcılar Security Directorate. According to the arrest report drafted by the police, Dev-Sol members were arrested following a chase and two warning shots. It was also noted that the police officers made the detainees lie on the floor and collected the pamphlets and banners that they carried.", "12. On 15 August 1994 the Istanbul Criminal Police Laboratory provided an expert report where it concluded that Yılmaz Yeşilırmak’s handwriting matched the writing on several of the banners seized by the police.", "13. On 17 August 1994 the applicants were examined by a doctor from the Bakırköy Forensic Medical Institute. The doctor reported bruises on one hand of the first applicant and on both hands of the second applicant. The report stated that the applicants’ injuries did not constitute a danger to life, but would prevent them from working for three days.", "14. On the same day the Bağcılar Security Directorate held a press conference on the subject of the apprehension of members of the Dev-Sol organisation. There is no information in the case-file as to whether any declaration was made by the police during the conference. However, the next day the applicants’ names and pictures appeared in two national newspapers, namely Milliyet and Türkiye, where they were described as members of the Dev-Sol organisation.", "15. The news in the Milliyet newspaper, with the headline “Fourteen members of Dev-Sol arrested”, read as follows:\n“The members of Dev-Sol organisation, namely ..., Yılmaz Yeşilırmak, Bülent Karakaş, ..., who were getting ready to hold a demonstration in Güneşli, in order to protest against the Hürriyet newspaper, have been arrested. The police seized the following items from the accused: pamphlets and banners with slogans against journalists, publications with leftist points of view, and slings to smash the windows of the Hürriyet building.”", "16. The information in the Türkiye newspaper, with the headline “Protesters with slings”, was accompanied by a photo, in which a group of accused was standing behind a table on which pamphlets, banners and rubber bands were displayed. The text was as follows:\n“The police arrested fourteen people, (including five women), who were allegedly members of an illegal leftist organisation and were getting ready to hold a demonstration to protest about an article that was published in Hürriyet newspaper. The police seized banners, pamphlets, and rubber bands for slings which were found on the accused, namely ... Y.Y., Bülent Karakaş ...”", "17. On 18 August 1994 the applicants were brought before the Public Prosecutor and then before a non-presiding judge at the Istanbul State Security Court, where they denied all charges. Both applicants rejected their statements given in police custody, contending that they had been forced to sign them. The court ordered their detention on remand.", "18. On 23 August 1994 the applicants were examined by the prison doctor. The medical report indicated the presence of bruises on the right hand of the first applicant. Moreover a site of scarred tissue, approximately 0.5 x 0.5 cm in dimension, was identified on the back of his right hand.\nAt the end of the examination of the second applicant the doctor reported the presence of bruises on both hands and three sites of scarred tissue, each approximately 0.5 x 1 cm in dimension on the back of his left hand.", "19. On 26 August 1994 the Public Prosecutor of the Istanbul State Security Court filed a bill of indictment, charging the applicants under Article 169 of the Criminal Code with aiding and abetting an illegal organisation. The summary of the relevant parts of the indictment provided as follows:\n“... In view of the accused’s statements given at different stages of the criminal proceedings, the arrest report, the house search and seizure reports, the seized pamphlets, banners and slings which were found on the accused at the time of arrest, the expert report and the content of the case file, it has been established that: 1. The accused Yılmaz Yeşilırmak was a supporter of the ideology of the illegal Dev-Sol organisation ..., two months ago he started to visit the head office of the Devrimci Gençlik (Revolutionary Youth) periodical in Beyoğlu, together with his friend Bülent Karakaş ..., he was informed of the demonstration that was going to be held in front of the Hürriyet building, on 8 August 1994, by a person who approached him while he was reading the Mücadele (Struggle) periodical in a public park.\nHe assisted in the preparation of banners. ... According to the Istanbul Criminal Police Laboratory’s report dated 15 August 1994 the characteristics of the applicant’s handwriting were visible on three banners.\n... 9. ... the accused Bülent Karakaş was a supporter of the ideology of the illegal Dev –Sol organisation. He was a reader of the Mücadele periodical. He met with his friend Yılmaz Yeşilırmak in Şişli and they arrived together at the scene of the incident. When he was arrested the police seized two banners which he was carrying.”", "20. On 7 and 8 September 1994 a doctor at the Forensic Medicine Institute examined the second and the first applicant respectively. The medical report reiterated the findings of the reports dated 23 August 1994 and indicated that the first applicant complained of pain in his waist and the second applicant complained of pain in his thighs.", "21. At the first hearing held on 27 October 1994 before the Istanbul State Security Court, the applicants submitted the medical reports and written statements in which they alleged to have been subjected to torture in police custody. They did not give any details concerning their allegations of torture. They also maintained that, in police custody, they had been forced to sign statements before reading them. The court ordered the applicants’ release pending trial.", "22. At the hearing dated 21 February 1995 the Istanbul State Security Court decided that the police officers whose signatures appeared under the applicants’ written statements given in police custody should be summoned to appear before the court.", "23. On 5 September 1995 and 14 March 1996 the police officers confirmed before the court the content of the applicants’ police statements and the authenticity of their signatures appearing on the bottom of these statements.", "24. On the latter date, in view of the incident report, the witness statements, the seized banners, pamphlets and the content of the case-file, the court decided to acquit nine of the accused and convicted five of them, including the applicants, under Article 169 of the Criminal Code and Article 5 of the Law on Prevention of Terrorism. It sentenced the applicants to three years and nine months’ and two years and six months’ imprisonment respectively.", "25. On 17 April 1996 the applicants’ lawyer lodged an appeal with the Court of Cassation. In the petition the lawyer repeated the allegation that the applicants had been subjected to torture in police custody.", "26. On 13 April 1998, at the hearing which took place before the Court of Cassation, the applicants repeated their allegations of torture in police custody and pleaded not guilty.", "27. On 27 April 1998 the Court of Cassation upheld the decision of the Istanbul State Security Court in respect of three of the accused, including the applicants, and quashed it in respect of two of them. It quashed the decision regarding one of the accused on procedural grounds and the other one on account of lack of evidence.", "28. On 27 May 1998 the Court of Cassation rejected the applicants’ request to rectify the decision." ]

[ 1, 3 ]

[ "4. The applicants were born in 1954 and 1955 respectively, and live in Syktyvkar in the Komi Republic. They are both retired judges.", "5. On 26 September 1994 the Ezhvinskiy District Court of the Komi Republic allowed the first applicant's claim against the Yemva Town Council for provision of State housing, for which he was eligible as a judge. The court ordered the town council to:\n“...grant or purchase for Mr Teterin, whose family comprises five members, a separate well-equipped flat or house taking account of the plaintiff's entitlement to one additional room or having a habitable surface of no less than 65 square metres, located near the Knyazhpogostskiy District Court in the town of Yemva”.", "6. No appeal was brought against the judgment and it became final and enforceable ten days later.", "7. In October 1994 enforcement proceedings were instituted. However, the judgment could not be enforced because the town authorities did not possess any available housing or the financial resources to purchase a flat.", "8. The applicants complained to the Courts Administration Department at the Supreme Court of the Russian Federation, the Court Bailiffs' Department of the Ministry of Justice of the Russian Federation and the Court Bailiffs' Department of the Komi Republic Department of Justice. The responses received by the applicants in 2001 and 2002 indicated that the judgment could not be enforced as the town authorities had no available housing.", "9. In 2002 the first applicant applied to the Ezhvinskiy District Court with a request to change the method of execution of the judgment of 26 September 1994. He asked that the value of the flat be paid to him in cash.", "10. On 24 April 2002 the Ezhvinskiy District Court closed the proceedings for the amendment of the judgment as the first applicant had withdrawn his request.", "11. On 23 August 2002 a court bailiff reopened enforcement proceedings and ordered the Knyazhpogostskiy District Council to execute the judgment.", "12. On 30 January 2003 the enforcement proceedings were closed because enforcement was not possible. On the following day the writ of execution was returned to the first applicant.", "13. Further to the applicants' complaint, on 3 March 2003 the Knyazhpogostskiy District Court quashed the bailiff's decision to terminate the proceedings.", "14. The proceedings were resumed on 7 May 2003. The bailiff collected information on the cash flows and funds of the Yemva Town Council.", "15. On 7 July 2003 the bailiff discontinued the enforcement proceedings on account of the town council's lack of funds for the construction or purchase of housing. The writ of execution was returned to the Ezhvinskiy District Court. The first applicant submits that a copy of that decision was not served on him and that he first became aware of it upon receipt of the Government's memorandum of 1 December 2003, to which it was attached.", "16. On 19 January 2004 the Yemva Town Council offered the first applicant a two-room flat of 25 square metres with central heating. It noted that no State housing had been constructed since 1994 and that it was therefore not in a position to offer a flat with full amenities. The applicants did not accept the offer. On 17 December 2004 the enforcement proceedings were re-opened and they are now pending.", "17. The judgment of 26 September 1994 has not been enforced to date." ]

[ 3, 9 ]

[ "7. The applicant, Mr Bensaid Nakach, is a Moroccan national, who was born in 1944. At the time of the events complained of, he was detained in a secure institution, the Forensic Psychiatric Centre “Veldzicht” in Balkbrug, Netherlands; in July 2002 he was transferred to the secure institution “De Kijvelanden” in Poortugaal, near Rotterdam, Netherlands.", "8. On 7 February 1994 the applicant hit his wife, Mrs K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Mrs K. was injured but survived.", "9. On 10 October 1994 the Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution.", "10. On 10 October 1995 the 's-Hertogenbosch Court of Appeal upheld the judgment of the Regional Court.", "11. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996.", "12. The time which the applicant had spent in detention on remand counting towards the sentence, the order placing the applicant at the Government's disposal therefore went into force on that date.", "13. The placement order was prolonged for an additional two years in September 1998.", "14. On 29 September 2000 the Breda Regional Court extended the applicant's placement order for a further two years.", "15. The applicant appealed to the Arnhem Court of Appeal (gerechtshof).", "16. A hearing was held on 9 April 2001. The Government state that the registrar (griffier) took notes and that these were kept in the case file.", "17. The Court of Appeal gave its decision on 23 April 2001; it found that the applicant's continued placement at the Government's disposal remained necessary in the interest of public safety and accordingly upheld the decision of the Breda Regional Court. Summaries of an expert report and of statements made at the hearing by an expert and by the applicant's counsel are contained in this decision; they cover approximately a page and a half.", "18. On 28 June 2001 the applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing of 9 April.", "19. A reply dated 11 July 2001, on stationery bearing the letterhead of the vice-president of the Court of Appeal in charge of criminal cases (the signature is illegible), contains the following passage:\n“In reply to your request of 28 June last I must inform you that no official records are usually made of hearings of the criminal division concerning prolongations of placements at the Government's disposal. The reason is that no ordinary remedy lies against the decisions concerned and the workload of the Court of Appeal does not admit of structural activities 'just to fill the archives' (voor het archief). For that reason, also, the decisions in question tend to render the statements made more extensively than would be the case if in fact an official record were prepared (in addition).”" ]

[ 2 ]

[ "13. The first applicant, Ms Heidi Jahn, is the sister of the second applicant, Mr Albert Thurm. They were both born in 1947 and live in Sangerhausen. The third and fourth applicants, Ms Erika Rissmann and Ms Ilse Höller, are sisters. They were born in 1942 and 1944 respectively and live in Erftstadt and Stotzheim. The fifth applicant, Ms Edith Loth, was born in 1940 and lives in Frankfurt an der Oder.", "14. In September 1945, people in the Soviet Occupied Zone of Germany who owned more than 100 hectares of land were expropriated under the land reform (Bodenreform). The land became part of a pool of State-owned land (Staatlicher Bodenfond) from which parcels of land averaging eight hectares in area were redistributed to farmers who had little or no land of their own.", "15. The applicants are the heirs of the new owners (then called “new farmers” – Neubauern) of the land redistributed under the land reform (Bodenreformgrundstücke) and situated in the former German Democratic Republic (GDR).", "16. The 1945 Land Reform Decrees (Bodenreformverordnungen – see paragraphs 55-56 below) constituted the statutory basis of this land reform. They provided that the disposal of land acquired under the land reform was subject to restrictions (Verfügungsbeschränkungen). The certificates of allotment (Zuteilungsurkunden) stated that the land could pass to the new owner's heirs.", "17. The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population.", "18. The Change of Possession Decrees of 21 June 1951, 7 August 1975 and 7 January 1988 (Besitzwechselverordnungen – see paragraphs 57-59 below) dealt with cases where the land was returned to the pool of State-owned land or assigned to third parties, with the proviso that the latter undertook to use it for agricultural purposes. 2. The enactment by the GDR parliament of the Law of 6 March 1990 on the rights of owners of land redistributed under the land reform", "19. After the fall of the Berlin Wall on 9 November 1989, negotiations started between the two German States and the four former occupying powers (France, the United Kingdom, the United States and the Soviet Union) and led to the reunification of Germany, which took effect on 3 October 1990.", "20. As part of those negotiations, and in order to ensure a transition from a socialist economy to a market economy, the GDR parliament passed the Law of 6 March 1990 on the rights of owners of land redistributed under the land reform (Gesetz über die Rechte der Eigentümer von Grundstücken aus der Bodenreform – see paragraph 61 below), also known as the Modrow Law (after the President of the State Council (Staatsrat) at the time), which came into force on 16 March 1990.\nThe Modrow Law lifted all restrictions on the disposal of land acquired under the land reform, whereupon those in possession of the land became owners in the true sense of the word.", "21. On 18 March 1990 the first free elections took place in the GDR.", "22. On 3 October 1990 the Modrow Law became an integral part of the law of the Federal Republic of Germany (FRG).", "23. On 14 July 1992 the FRG legislature enacted the second Property Rights Amendment Act (Vermögensrechtsänderungsgesetz) on the liquidation (Abwicklung) of the land reform in the Länder of the former GDR. It came into force on 22 July 1992.", "24. When passing that Act, the legislature inserted subsections (11) to (16) into section 233 of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch – see paragraphs 65-69 below) on the basis of the principles set out at the time in the GDR by the Land Reform Decrees and the Change of Possession Decrees.", "25. The first two applicants had inherited land in the Land of Saxony-Anhalt in 1976. They had been registered in the land register as the owners of that land since 14 July 1992.", "26. On 18 January 1994 they attempted to sell it.", "27. On 12 July 1994 the Department of Agriculture and Rural Land Consolidation (Amt für Landwirtschaft und Flurneuordnung) of the Land of Saxony-Anhalt opposed the sale, following which a right of pre-emption in favour of the tax authorities was registered in the land register.", "28. On 15 February 1995 the department in question applied to the Sangerhausen District Court (Amtsgericht) for an order requiring the applicants to reassign their property to the Land of Saxony-Anhalt without compensation.", "29. In a judgment of 2 November 1995, the Sangerhausen District Court ordered the applicants to reassign their property in accordance with section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below). It held that they had had no right to inherit land that had been acquired under the land reform because neither of them had been carrying on an activity in the agriculture, forestry or food-industry sectors on 15 March 1990 or during the previous ten years.", "30. The applicants appealed.", "31. In a judgment of 22 March 1996, the Halle Regional Court (Landgericht) dismissed their appeal on the ground that, on inheriting the property, the applicants had not acquired title to it for the purposes of the Basic Law (Grundgesetz), because in 1946 land acquired under the land reform had already been subject to substantial restrictions in the GDR. The Land Reform Decrees of 1945 and the Change of Possession Decree of 1951 prohibited the sale of such land and provided that any decision regarding a change of possession was a matter for the State. That position had not been altered by the Change of Possession Decree of 1975.", "32. On 24 April 1996 the applicants appealed to the Federal Constitutional Court on the grounds that they were the legitimate heirs to and owners of the land. In their submission, the GDR Change of Possession Decrees restricting the use of land acquired under the land reform had been passed after their mother had acquired the land and were therefore inapplicable in their case.", "33. On 17 June 1996 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, dismissed their appeal.\nThe Constitutional Court held, as it had previously held in its judgment of 4 October 1995 on the same issue (see paragraph 70 below), that the statutory provisions in question did not breach the applicants' right of property, or the principle that laws could not apply retrospectively, or the principle of equality.\nThe Constitutional Court added that the use of land acquired under the land reform had already been subject to restrictions at the time of the GDR. Those restrictions had been set out in the Change of Possession Decrees and in the case-law of the Supreme Court of the GDR. In its judgment of 12 March 1953, that court had held that such land did not automatically pass to the owner's heirs, but could do so only with the State's consent.", "34. The third and fourth applicants had inherited land in the Land of Mecklenburg-West Pomerania in 1978. They had been registered in the land register as the owners of that land since 1996.", "35. They had leased their land to an agricultural company called Breesen for twelve years, from 1 January 1991 to 31 December 2002.", "36. On 3 July 1998 the Land of Mecklenburg-West Pomerania requested that the land be transferred into its name on the ground that it had “superior title” (bessere Berechtigung) to it under section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below).", "37. In a judgment of 29 October 1998, the Neubrandenburg Regional Court ordered the applicants to transfer their property to the Land of Mecklenburg-West Pomerania on the ground that on 15 March 1990 they had neither been members of an agricultural cooperative (Landwirtschaftliche Produktionsgenossenschaft) in the GDR nor applied for membership of one.", "38. The applicants appealed on the ground, inter alia, that, since the leading judgment of the Federal Court of Justice of 17 December 1998 (see paragraph 71 below), it had been established that title to land acquired under the land reform could pass to the owner's heirs.", "39. In a judgment of 17 August 1999, the Rostock Court of Appeal (Oberlandesgericht) dismissed the appeal, holding that the statutory provisions in question were compatible with the Basic Law. It found, inter alia, that the German legislature had thus sought to remedy the loopholes in the Modrow Law, which contained no transitional provisions for cases where changes of ownership had not been recorded in the land register.", "40. The applicants appealed to the Federal Constitutional Court, alleging a breach of their property and inheritance rights, of the rule that laws could not apply retrospectively, and of the principle of equality. They submitted that there had been no constitutional justification for interfering with their right of property without compensation and that the interference had been neither proportionate nor necessary.\nFurthermore, they were no longer in a position to satisfy the requisite criteria, for example by becoming members of a GDR agricultural cooperative.", "41. In a leading decision of 6 October 2000, the Federal Constitutional Court, ruling as a panel of three judges, dismissed the applicants' appeal on the ground that there had not been a breach of their fundamental rights.", "42. The relevant extract of that decision reads as follows:\n“1. The decisions that are the subject of this appeal are contrary neither to Article 14 of the Basic Law nor to the principles of protection from retrospective laws, which in that provision has an autonomous meaning ...\n(a) The rules under section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code, which were applied by the civil courts, are compatible with the right of property enshrined in Article 14 of the Basic Law.\n(aa) According to the undisputed and not manifestly unconstitutional finding of the Court of Appeal, title to land acquired under the land reform in the Soviet Occupied Zone and the German Democratic Republic could pass to the owner's heirs. That is how, under inheritance law, the appellants acquired title to the land in question. Although their rights were initially subject to the restrictions set out in Article VI, no. 1, of Decree no. 19 of 5 September 1945 on the land reform in the Land of Mecklenburg-West Pomerania ... and the various Change of Possession Decrees, those restrictions were subsequently lifted when the Law of 6 March 1990 came into force. It can therefore be assumed, as it was by the Court of Appeal, that from then on title to property acquired under the land reform conferred full ownership and as such fell within the scope of the Basic Law, including in those cases where it had passed to the heirs [Alterbfälle], that is, in cases where the owner originally registered in the land register had died before 16 March 1990.\n(bb) Section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code has the effect of depriving the owners of land acquired under the land reform of their title to the land. That does not mean, however, that the land is expropriated within the meaning of Article 14 § 3 of the Basic Law. Expropriation is the taking by the State of an individual's property. It fully or partially deprives individuals of their personal and actual legal title guaranteed by Article 14 § 1 of the Basic Law, in order to achieve specific public aims ... Section 233(11) to (16) of the Introductory Act to the Civil Code is designed to remedy ex post facto the repeal without transitional provisions [ersatzlose Aufhebung] of the change of possession provisions [Besitzwechselvorschriften] implemented by the Law of 6 March 1990 and to clarify the position regarding title to land acquired under the land reform ... The provisions of section 233(11), paragraph 3, first sentence, taken in conjunction with section 233(12), paragraph 2, no..2, letter (c), and paragraph 3 being indirectly challenged here are part of this idea of regularisation [ist Teil dieses Regelungskonzepts] and thus amount to rules establishing the substance and limits of ownership (of land), within the meaning of Article 14 § 1, second sentence, of the Basic Law.\n(cc) In order to accomplish the task required of it under the said provision, the legislature has to take account of both the legal position of the owner and the requirements of the system of socially fair ownership under Article 14 § 2 of the Basic Law. It also has to strike a fair balance [gerechter Ausgleich] and proportionate relationship [ausgewogenes Verhältnis] between the legitimate interests of the persons concerned. Unilateral favourable or unfavourable treatment of some rather than others would not be in keeping with the constitutional foundations of a socially just system of private property ...\nIn exercising its legislative power under Article 14 § 1, second sentence, of the Basic Law, the legislature can also, in certain circumstances, nullify existing legal positions protected by a property safeguard when undertaking a general reform of a particular legal area ... Moreover, fundamental changes in the economic and social situation can broaden its margin of manoeuvre when creating new legislation. The legislature can also, in enacting provisions on the basis of Article 14 § 1, second sentence, of the Basic Law, take account of the difficulties caused by the transition from the socialist legal order and its property regime, including the legal positions subsequently acquired, to the legal system of the Federal Republic of Germany and to the fact that such a transition cannot be implemented overnight. This will have implications for the interpretation of a particular law. Individual provisions imposing a burden cannot be examined in isolation regardless of their legislative context, or without regard to the fact that the desired legal position can only be put in place step by step ...\n(dd) Judged in the light of those criteria, the rules under section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code are compatible with Article 14 § 1 of the Basic Law.\n(aaa) The provisions complained of pursue a legitimate aim.\nAccording to the legal reasoning of the Federal Court of Justice, which was adopted by the Court of Appeal in the original proceedings, section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code remedies a hidden legislative loophole in the Law of 6 March 1990 regarding the inheritance of title to property acquired under the land reform, which is at the heart of the instant case. In theory, this finding binds the Federal Constitutional Court. Like the establishment and assessment of the facts relevant to the decision, the interpretation and application of the law of another State are matters for the jurisdiction of the ordinary courts. Only under certain conditions does the Federal Constitutional Court have corrective power in that regard. Those conditions would only be met here if the assessment of the law of the German Democratic Republic relating to a hidden loophole in the Law of 6 March 1990, which forms the basis of the Court of Appeal's judgment, had breached Article 3 § 1 of the Basic Law ... in so far as it prohibits arbitrariness ... This is not the case, however.\nIn the light of the relevant statutory provisions, the Federal Court of Justice established that the deliberations in the People's Chamber [Volkskammer] on 6 March 1990 were designed to prepare the German Democratic Republic's statutory agricultural regime for adjustment to a social market-economy orientated agriculture. It noted in that connection that priority had been given to amending the Agricultural Cooperatives Act. At the same time, however, the restrictions on the disposal of land acquired under the land reform were also to be lifted and inheritance rights guaranteed in the future. In doing so, the People's Chamber apparently did not realise that the repeal (deemed necessary for that purpose) of the Change of Possession Decrees without any transitional provisions for those transfers and returns that had not been implemented also extended to cases where title to property acquired under the land reform had passed to the owner's heirs. The Federal Court of Justice found that simply transferring title to land used for agricultural purposes to the heirs of beneficiaries who had died, even where the heirs in question did not live in the German Democratic Republic or did not work in the agricultural sector ... did not contribute to the adjustment of a State agricultural system to a market one.\nThat reasoning is understandable [nachvollziehbar] and does not in any way support the assumption that the assessment of the Federal Court of Justice – and therefore of the Court of Appeal – was based on considerations that were irrelevant to the facts of the case and thus breached the prohibition on arbitrariness contained in the Basic Law. It is not for the Federal Constitutional Court to decide whether the drafting history of the Law of 6 March 1990 and legal development in the territory that subsequently acceded to the Federal Republic up until reunification indicate that it was the legislature's intention to repeal – without any transitional provisions, including for cases where land acquired under the land reform had passed to the owner's heirs – the restrictions on the disposal of title to land acquired under the land reform and the Change of Possession Decrees.\n(bbb) Nor is the manner in which the legislative loophole identified by the Federal Court of Justice was remedied by the provisions in question open to criticism from the point of view of compatibility with the Basic Law. It leads, against the background of the former decrees of the German Democratic Republic on changes of possession, to an appropriate system of ownership reflecting the factual situation and one that is, moreover, acceptable to the interested parties and clarifies the position for the future. 1. Article 4 § 1 of the Change of Possession Decree of 7 August 1975, in the version set out in the Decree of 7 January 1988, provided that, on the request of an heir to land acquired under the land reform, the district council was to transfer the rights and obligations relating to the use of the land to the heir or to a member of his family designated by him, with the proviso that the heir or the member of his family concerned use the land for agricultural purposes as a member of a cooperative or as a labourer. Where there were several heirs, they had to inform the district council promptly to which heir or other member of their family the rights and obligations associated with farming the land should be transferred. If the conditions for transfer were not satisfied, the land would return to the pool of State-owned property, in accordance with Article 4 § 5 of the decree. 2. By enacting section 233(11), paragraph 3, first sentence, taken together with section 233(12) of the Introductory Act to the Civil Code, the parliament of reunified Germany transposed these legal principles wholesale. The parties have therefore been placed in the situation that they would have been in if the Change of Possession Decrees had been properly applied and implemented by the authorities of the German Democratic Republic prior to the entry into force of the Law of 6 March 1990 or if, before reunification, the legislature of the German Democratic Republic had enacted transitional provisions akin to the rules previously governing changes of possession. The provisions complained of, as the Court of Appeal rightly held, moreover, did not destroy the legitimate confidence [schutzwürdiges Vertrauen] of the heirs of owners of land acquired under the land reform.\nIt was not generally possible to have confidence in the continued application of the laws of the German Democratic Republic at the time of the change of regime [Wende], given the possible reunification of the two German States. Such confidence would have been justified only if there were special reasons for believing that the law of the German Democratic Republic would exceptionally remain in force ... The expectation that property ownership acquired prior to the entry into force of the Basic Law in the territory that had acceded to the Federal Republic would in principle be recognised could not be as extensively protected as the expectation that the rights acquired by virtue of the Basic Law would be maintained. In any event, the only factor to be taken into consideration for the protection of this expectation is the factual and legal position the German federal legislature found to obtain in the German Democratic Republic when it ceased to exist as a State and which, in the course of reunification, was so to speak transposed as a legal element into the sphere of application of the Basic Law ...\nConsequently, the heirs of the owners of land acquired under the land reform could no longer legitimately expect to maintain the title they had acquired by virtue of the failure to implement the Change of Possession Decrees enacted at the time of the German Democratic Republic. Nor did the transition, in terms of both the general and the constitutional law, of the German Democratic Republic to a legal order protecting private property offer particular grounds for expecting that, where land acquired under the land reform passed to the owner's heirs, title to the land – described in the law in question as full ownership – would be maintained. Once transition had been achieved, only ownership of private property knowingly and intentionally conferred on an individual was to be protected. This was not the case regarding the ownership of land that had been acquired under the land reform and subsequently inherited from the owners, since, as observed by the Federal Court of Justice, there was a hidden legislative loophole in the Law of 6 March 1990. It therefore has to be assumed that the legislature of the German Democratic Republic would itself have enacted analogous provisions to those by which the land became State-owned property again if it had been aware of the factual and legal position regarding cases where there were no heirs satisfying the conditions by which the rights and obligations governing use of the land could be transferred to them.\nIn these circumstances, the legislature of reunified Germany was justified in compensating, comprehensively, for provisions that had been overlooked at the material time. The fact that it did not remedy this loophole when the Unification Treaty was signed does not justify a legitimate expectation that the legal position created by the Law of 6 March 1990 would be maintained. Having regard to the multiplicity and complexity of the tasks that had to be undertaken in connection with reunification, the authors of the Unification Treaty were not in a position to enact in a single stroke of the pen, as it were, and in a definitively satisfactory manner, all the rules necessary to ensure the smooth adjustment of the law of the German Democratic Republic to that of the Federal Republic of Germany ... Thus all persons subject to the jurisdiction of the courts had to expect that legal positions initially transferred as they stood would be modified and clarified by the reunified German legislature once it had ascertained the scope of the laws enacted by the German Democratic Republic.\nThe same also applies to ownership of land acquired under the land reform, which the legislature of the German Democratic Republic had transformed into full ownership when privatising the agricultural system.”", "43. The fifth applicant had inherited land in the Land of Brandenburg in 1986.", "44. From 1968 to 1979, she had been a member of an agricultural cooperative in the GDR. From 1 January 1980, she had worked as a cleaner at the Ministry of National Security (Ministerium für Staatssicherheit) in the GDR. After the dissolution of the GDR, she had been a member of the National People's Army until 31 December 1990.", "45. Prior to German reunification, the town of Frankfurt an der Oder had opened a leisure centre called the Helensee on the applicant's land. After reunification, the town had leased the leisure centre to a managing company. The applicant had accordingly been paid 60,000 German marks (DEM) in rent paid to the town in error.", "46. From 30 November 1991, the applicant had been registered in the land register as the owner of the land. On 3 September 1996 she signed a lease with the managing company of the leisure park for an annual rent of DEM 12,000.", "47. On 28 July 1995 the Land of Brandenburg requested that the land be transferred into its name on the ground that it had superior title to it under section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below).", "48. In a judgment of 16 July 1997, the Frankfurt an der Oder Regional Court ordered the applicant to transfer her land on the ground that, on 15 March 1990, she had not been carrying on an activity in the agriculture, forestry or food-industry sectors. It also ordered her to pay the Land of Brandenburg DEM 60,000 plus interest at the annual rate of 4% from 24 January 1997.", "49. This judgment was upheld on 10 June 1998 by the Land of Brandenburg Court of Appeal, which held, among other things, that the mere fact that the applicant had technically always been a member of an agricultural cooperative, even after starting her job at the Ministry of National Security, did not suffice to give her valid title to the land in question. Moreover, referring to the decisions of the Federal Constitutional Court of 17 June 1996 and 4 October 1995, the Court of Appeal held that section 233(11) did not infringe the right of property or the principle that laws could not apply retrospectively even if the “new farmer” had paid a certain sum on being allotted his or her land under the land reform.", "50. In a decision of 15 July 1999, the Federal Court of Justice allowed an appeal on points of law by the applicant regarding the amount she had been ordered to pay and dismissed the remainder of the appeal.", "51. In a judgment of 4 February 2000, the Federal Court of Justice remitted the case to the Court of Appeal regarding the first point, on the ground that the applicant had been justified in keeping the compensation for loss of enjoyment (Nutzungsentschädigung) that she had received from the town of Frankfurt an der Oder prior to 22 July 1992.", "52. In a judgment of 26 July 2000, the Brandenburg Court of Appeal ordered the applicant to repay an aggregate amount of DEM 27,000.", "53. The applicant lodged a constitutional appeal with the Federal Constitutional Court, relying on a breach of her rights of property and inheritance, of the principle that laws could not apply retrospectively, and of the principle of equality. In her submission, there had been no constitutional justification for interfering with her right of property without paying her compensation, and the interference had been neither proportionate nor necessary.", "54. In a leading decision of 25 October 2000, the Federal Constitutional Court dismissed the applicant's appeal on the ground that there had not been a breach of her fundamental rights (see paragraph 72 below)." ]

[]

[ "11. The applicant company is an airline charter company incorporated in Turkey in March 1992.", "12. By an agreement dated 17 April 1992, the applicant company leased two Boeing 737-300 aircraft from Yugoslav Airlines (JAT), the national airline of the former Yugoslavia. These were, at all material times, the only two aircraft operated by the applicant company. The lease agreement was a “dry lease without crew” for a period of forty-eight months from the dates of delivery of the two aircraft (22 April and 6 May 1992). According to the terms of the lease, the crew were to be the applicant company's employees and the applicant company was to control the destination of the aircraft. While ownership of the aircraft remained with JAT, the applicant company could enter the aircraft on the Turkish Civil Aviation Register provided it noted JAT's ownership.", "13. The applicant company paid a lump sum of 1,000,000 United States dollars (USD) per aircraft on delivery. The monthly rental was 150,000 USD per aircraft. On 11 and 29 May 1992 the two aircraft were registered in Turkey as provided for in the lease. On 14 May 1992 the applicant company obtained its airline licence.", "14. From 1991 onwards the United Nations adopted, and the European Community implemented, a series of sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) – “the FRY” – designed to address the armed conflict and human rights violations taking place there.", "15. In January 1993 the applicant company began discussions with TEAM Aer Lingus (“TEAM”) with a view to having maintenance work (“C-Check”) done on one of its leased aircraft. TEAM was a limited liability company whose principal business was aircraft maintenance. It was a subsidiary of two Irish airline companies wholly owned by the Irish State. Memoranda dated 8 and 18 January 1993 showed that TEAM considered, on the basis of information obtained, that the applicant company was not in breach of the sanctions regime, noting that it was doing business with many companies, including Boeing, Sabena and SNECMA (a French aero-engine company). By a letter of 2 March 1993, TEAM requested the opinion of the Department of Transport, Energy and Communications (“the Department of Transport”) and included copies of its memoranda of January 1993. On 3 March 1993 the Department of Transport forwarded the request to the Department of Foreign Affairs.", "16. On 17 April 1993 the United Nations Security Council adopted Resolution 820 (1993), which provided that States should impound, inter alia, all aircraft in their territories “in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY]”. That resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993 (see paragraph 65 below).", "17. On 5 May 1993 the Department of Foreign Affairs decided to refer the matter to the United Nations Sanctions Committee.", "18. By a letter of 6 May 1993, the Turkish Foreign Ministry indicated to the Turkish Ministry of Transport that it considered that the leased aircraft were not in breach of the sanctions regime and requested flight clearance pending the Sanctions Committee's decision. On 12 May 1993 Turkey sought the opinion of the Sanctions Committee.", "19. On 17 May 1993 one of the applicant company's leased aircraft arrived in Dublin. A contract with TEAM was signed for the completion of C-Check.", "20. On 18 May 1993 the Irish Permanent Mission to the United Nations indicated by facsimile to the Department of Transport that informal advice from the Secretary to the Sanctions Committee was to the effect that there was no problem with TEAM carrying out the work, but that an “informal opinion” from the “legal people in the Secretariat” had been requested. On 19 May 1993 the Department of Transport explained this to TEAM by telephone.", "21. On 21 May 1993 the Irish Permanent Mission confirmed to the Department of Foreign Affairs that the “informal legal advice” obtained from the “United Nations legal office” was to the effect that TEAM should seek the “guidance and approval” of the Sanctions Committee before signing any contract with the applicant company. It was recommended that TEAM submit an application to the Committee with relevant transaction details; if the applicant company was to pay for the maintenance, it was unlikely that the Committee would have a problem with the transaction. On 24 May 1993 the Department of Transport received a copy of that facsimile and sent a copy to TEAM, who were also informed by telephone. By a letter dated 26 May 1993, the Irish Permanent Mission provided the Sanctions Committee with the required details and requested the latter's “guidance and approval”.", "22. On 21 May 1993 the Sanctions Committee disagreed with the Turkish government's view that the aircraft could continue to operate, referring to Resolution 820 (1993) of the United Nations Security Council. The Turkish Permanent Mission to the United Nations was informed of that opinion by a letter dated 28 May 1993.", "23. At noon on 28 May 1993 the applicant company was informed by TEAM that C-Check had been completed and that, on payment of USD 250,000, the aircraft would be released. Later that day payment was received and the aircraft was released. While awaiting air traffic control clearance to take off, the aircraft was stopped. In his report, the duty manager of Dublin Airport noted that TEAM had informed him that it had been advised by the Department of Transport that it would be “in breach of sanctions” for the aircraft to leave. He also stated that the aircraft had been scheduled to depart during that shift and that the airport police had been advised. TEAM informed the applicant company accordingly. The Department of Transport later confirmed by a letter (of 16 June 1993) its instructions of 28 May 1993:\n“... [TEAM] were advised by this Department that, in the circumstances, TEAM should not release the [aircraft] ... Furthermore, it was pointed out that if TEAM were to release the aircraft TEAM itself might be in serious breach of the UN resolutions (as implemented by Council Regulation (EEC) no. 990/93) ... and the matter was under investigation. At the same time directions were given to Air Traffic Control, whose clearance is necessary for departure of aircraft, not to clear this aircraft for take-off.”", "24. By letters dated 29 May 1993 to the applicant company, TEAM noted that it was waiting for the opinion of the Sanctions Committee and that it had been advised by the authorities that release of the aircraft before receipt of that opinion would be in violation of the United Nations sanctions regime.", "25. By a memorandum dated 29 May 1993, the Turkish embassy in Dublin requested the release of the detained aircraft to Turkey, given the latter's commitment to the sanctions regime", "26. By a letter dated 2 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the maintenance work had in fact already been carried out, that the government regretted the failure to abide by the procedure it had initiated and that the matter had been taken up with TEAM. The aircraft was being detained pending the Committee's decision.", "27. On 3 June 1993 the Irish government learned of the Sanctions Committee's reply to the Turkish government and that the chairman of the Committee had indicated that it would be likely to favour impounding. The Committee would not meet until 8 June 1993.", "28. On 4 June 1993 the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993) were adopted. By a letter dated 8 June 1993, the Minister for Transport (Energy and Communications) informed the Dublin Airport managers that he had authorised the impounding, until further notice, of the aircraft pursuant to that statutory instrument.", "29. Shortly afterwards the applicant company's second aircraft was grounded in Istanbul, although the parties disagreed as to precisely why.", "30. By a letter of 14 June 1993, the Sanctions Committee informed the Irish Permanent Mission of the findings of its meeting of 8 June 1993:\n“... the provision of any services to an aircraft owned by an undertaking in the [FRY], except those specifically authorised in advance by the Committee ..., would not be in conformity with the requirements of the relevant Security Council resolutions. The members of the Committee also recalled the provisions of paragraph 24 of [Resolution 820 (1993) of the United Nations Security Council] regarding such aircraft, under which the aircraft in question should have already been impounded by the Irish authorities. The Committee, therefore, would be extremely grateful for being apprised of any action on behalf of Your Excellency's Government to that effect.”\nBy a letter dated 18 June 1993, the Irish Permanent Mission informed the Sanctions Committee that the aircraft had been detained on 28 May 1993 and formally impounded on 8 June 1993.", "31. In a letter of 16 June 1993 to the Department of Transport, the applicant company challenged the impoundment, arguing that the purpose of Regulation (EEC) no. 990/93 was not to deal simply with legal ownership, but rather with operational control. On 24 June 1993 the Department replied:\n“The Minister is advised that the intention and effect of the UN resolution as implemented through [Regulation (EEC) no. 990/93] is to impose sanctions by impounding the types of commercial asset mentioned in Article 8, including aircraft, in any case where a person or undertaking in or operating from the [FRY] has any ownership interest of the kind mentioned. As this view of the scope and effect of the original resolution has been confirmed by the [Sanctions Committee], the Minister does not feel entitled to apply [Regulation (EEC) no. 990/93] in a manner which would depart from that approach. ... the aircraft must remain impounded. ... the Minister appreciates the difficulty that [the applicant company] finds itself in and would be anxious to find any solution that was available to him under [Regulation (EEC) no. 990/93] which would permit the release of the aircraft.”", "32. By a letter dated 5 July 1993, the Turkish embassy in Dublin repeated its request for the release of the aircraft, stating that the Turkish government would ensure impoundment in accordance with the sanctions. The Irish government indicated to the Sanctions Committee, by a letter of 6 July 1993, that it would be favourably disposed to grant that request. On 4 August 1993 the Sanctions Committee ruled that the aircraft had to remain in Ireland, since the relevant resolutions required the Irish State to withhold all services from the aircraft, including services that would enable it to fly.", "33. In November 1993 the applicant company applied for leave to seek judicial review of the Minister's decision to impound the aircraft. Amended grounds were later lodged taking issue with TEAM's role in the impoundment. On 15 April 1994 the High Court struck out TEAM as a respondent in the proceedings, the applicant company's dispute with TEAM being a private-law matter.", "34. On 15 June 1994 the applicant company's managing director explained in evidence that rental payments due to JAT had been set off against the deposits initially paid to JAT and that future rental payments were to be paid into a blocked bank account supervised by the Turkish Central Bank.", "35. On 21 June 1994 Mr Justice Murphy delivered the judgment of the High Court. The issue before him could, he believed, be simply defined as the question of whether the Minister for Transport was bound by Article 8 of Regulation (EEC) no. 990/93 to impound the applicant company's aircraft. He considered the Department of Transport's letter of 24 June 1993 to the applicant company to be the most helpful explanation of the Minister's reasoning. He found that:\n“... it is common case that the transaction between JAT and [the applicant company] was entirely bona fide. There is no question of JAT having any interest direct or indirect in [the applicant company] or in the management, supervision or direction of the business of that company. ...\nIt is, however, common case that [resolutions of the United Nations Security Council] do not form part of Irish domestic law and, accordingly, would not of themselves justify the Minister in impounding the aircraft. The real significance of the [resolutions of the United Nations Security Council], in so far as they relate to the present proceedings, is that [Resolution 820 (1993) of the United Nations Security Council] ... provided the genesis for Article 8 of [Regulation (EEC) no. 990/93]. ...”", "36. In interpreting Regulation (EEC) no. 990/93, Mr Justice Murphy had regard to its purpose. He found the aircraft not to be one to which Article 8 applied, as it was not an aircraft in which a majority or controlling interest was held by a person or undertaking in or operating from the former FRY, and that the decision of the Minister to impound was therefore ultra vires. However, the aircraft was, at that stage, the subject of an injunction obtained (in March 1994) by a creditor of JAT (SNECMA) preventing it from leaving the country. That injunction was later discharged on 11 April 1995.", "37. Having indicated to the applicant company that the Minister for Transport was investigating a further impoundment based on Article 1.1(e) of Regulation (EEC) no. 990/93, the Department of Transport informed the applicant company by a letter of 5 August 1994 of the following:\n“The Minister has now considered the continuing position of the aircraft in the light of the recent ruling of the High Court and the provisions of the Council regulations referred to.\nArising out of the Minister's consideration, I am now directed to inform you that the Minister has ... directed that the aircraft ... be detained pursuant to Article 9 of [Regulation (EEC) no. 990/93] as an aircraft which is suspected of having violated the provisions of that regulation and particularly Article 1.1(e) and [Regulation (EEC) no.] 1432/92. The aircraft will remain detained pending completion of the Minister's investigation of the suspected violation as required under Article 9 and Article 10 of Regulation [(EEC) no.] 990/93.”\nAlthough not noted in that letter, the Minister's concern related to the applicant company's setting off of JAT's financial obligations (certain insurance, maintenance and other liabilities) under the lease against the rental monies already paid by it into the blocked bank account.", "38. On 23 September 1994 the United Nations Security Council adopted Resolution 943 (1994). Although it temporarily suspended the sanctions as peace negotiations had begun, it did not apply to aircraft already impounded. It was implemented by Regulation (EC) no. 2472/94 on 10 October 1994.", "39. In March 1995 the applicant company was given leave to apply for judicial review of the Minister's decision to re-impound the aircraft. By a judgment of 22 January 1996, the High Court quashed the Minister's decision to redetain the aircraft. It noted that almost all of the monies which had been paid into the blocked account by the applicant company had by then been used up (with the consent of the holding bank in Turkey) in order to discharge JAT's liabilities under the lease. The crucial question before the High Court was the Minister's delay in raising Article 9 of Regulation (EEC) no. 990/93 given that the applicant company was an “innocent” party suffering heavy daily losses. The High Court found that the Minister had failed in his duty to investigate and decide such matters within a reasonable period of time, to conduct the investigations in accordance with fair procedures and to have proper regard for the rights of the applicant company.", "40. On 7 February 1996 the Irish government appealed to the Supreme Court and applied for a stay on the High Court's order. On 9 February 1996 the Supreme Court refused the Minister's application for a stay. The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny justice to either party. Noting the significant delay of the Minister in raising Article 1.1(e) and the potentially minor damage to the State (monies owed for the maintenance and parking in Dublin Airport) compared to the applicant company's huge losses, the justice of the case was overwhelmingly in the latter's favour.", "41. The aircraft was therefore free to leave. By letters dated 12 and 14 March 1996, the applicant company, JAT and TEAM were informed that the Minister considered that he no longer had any legal responsibility for the aircraft.", "42. On 8 August 1994 the Minister for Transport lodged an appeal in the Supreme Court against the High Court judgment of 21 June 1994. He took issue with the High Court's interpretation of Regulation (EEC) no. 990/93 and requested a preliminary reference to the ECJ (Article 177, now Article 234, of the Treaty establishing the European Community – “the EC Treaty”).", "43. By an order dated 12 February 1995, the Supreme Court referred the following question to the ECJ and adjourned the proceedings before it:\n“Is Article 8 of [Regulation (EEC) no. 990/93] to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by [the FRY] where such aircraft has been leased by the owner for a term of four years from 22 April 1992 to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said [FRY]?”", "44. The parties made submissions to the ECJ. The applicant company noted that it was ironic that, following Resolution 943 (1994) of the United Nations Security Council, JAT aircraft could fly whereas its own remained grounded.", "45. On 30 April 1996 Advocate General Jacobs delivered his opinion. Given the majority interest of JAT in the aircraft, Article 8 of Regulation (EEC) no. 990/93 applied to it. The Advocate General disagreed with the Irish High Court, considering that neither the aims nor the texts of the relevant resolutions of the United Nations Security Council provided any reason to depart from what he considered to be the clear wording of Article 8 of Regulation (EEC) no. 990/93.", "46. As to the question of the respect shown in that regulation for fundamental rights and proportionality, the Advocate General pointed out:\n“It is well established that respect for fundamental rights forms part of the general principles of Community law, and that in ensuring respect for such rights, the [ECJ] takes account of the constitutional traditions of the Member States and of international agreements, notably [the Convention], which has a special significance in that respect.\nArticle F(2) of the Treaty on European Union ... gives Treaty expression to the [ECJ's] case-law. ... In relation to the EC Treaty, it confirms and consolidates the [ECJ's] case-law underlining the paramount importance of respect for fundamental rights.\nRespect for fundamental rights is thus a condition of the lawfulness of Community acts – in this case, the Regulation. Fundamental rights must also, of course, be respected by Member States when they implement Community measures. All Member States are in any event parties to the [Convention], even though it does not have the status of domestic law in all of them. Although the Community itself is not a party to the Convention, and cannot become a party without amendment both of the Convention and of the Treaty, and although the Convention may not be formally binding upon the Community, nevertheless for practical purposes the Convention can be regarded as part of Community law and can be invoked as such both in the [ECJ] and in national courts where Community law is in issue. That is so particularly where, as in this case, it is the implementation of Community law by Member States which is in issue. Community law cannot release Member States from their obligations under the Convention.”", "47. The Advocate General noted that the applicant company had relied on the right to peaceful enjoyment of property, protected by the Convention, and the right to pursue a commercial activity, recognised as a fundamental right by the ECJ. Having considered Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52), he defined the essential question as being whether the interference with the applicant company's possession of the aircraft was a proportionate measure in the light of the aims of general interest Regulation (EEC) no. 990/93 sought to achieve. He had regard to the application of this test in AGOSI v. the United Kingdom (judgment of 24 October 1986, Series A no. 108) and Air Canada v. the United Kingdom (judgment of 5 May 1995, Series A no. 316-A) and to a “similar approach” adopted by the ECJ in cases concerning the right to property or the right to pursue a commercial activity (including Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] European Court Reports (ECR) 3727, §§ 17-30).", "48. While there had been a severe interference with the applicant company's interest in the lease, it was difficult to identify a stronger type of public interest than that of stopping a devastating civil war. While some property loss was inevitable for any sanctions to be effective, if it were demonstrated that the interference in question was wholly unreasonable in the light of the aims sought to be achieved, then the ECJ would intervene. However, the Advocate General felt that neither the initial decision to impound nor the continued retention of the aircraft could be regarded as unreasonable.", "49. Whether or not the financial impact of the sanctions were as outlined by the applicant company, a general measure of the kind in question could not be set aside simply because of the financial consequences the measure might have in a particular case. Given the strength of the public interest involved, the proportionality principle would not be infringed by any such losses.", "50. The Advocate General concluded that the contested decision did not\n“... strike an unfair balance between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. That conclusion seems consistent with the case-law of [this Court] in general. Nor has [the applicant company] suggested that there is any case-law under [the Convention] supporting its own conclusion.\nThe position seems to be no different if one refers to the fundamental rights as they result from 'the constitutional traditions common to the Member States' referred to in the case-law of [the ECJ] and in Article F(2) of the Treaty on European Union. In the [above-cited Hauer case, the ECJ] pointed out ..., referring specifically to the German Grundgesetz, the Irish Constitution and the Italian Constitution, that the constitutional rules and practices of the Member States permit the legislature to control the use of private property in accordance with the general interest. Again it has not been suggested that there is any case-law supporting the view that the contested decision infringed fundamental rights. The decision of the Irish High Court was based, as we have seen, on different grounds.”", "51. By a letter of 19 July 1996, TEAM informed JAT that the aircraft was free to leave provided that debts owed to TEAM were discharged.", "52. On 30 July 1996 the ECJ ruled that Regulation (EEC) no. 990/93 applied to the type of aircraft referred to in the Supreme Court's question to it. The ECJ noted that the domestic proceedings showed that the aircraft lease had been entered into “in complete good faith” and was not intended to circumvent the sanctions against the FRY.", "53. It did not accept the applicant company's first argument that Regulation (EEC) no. 990/93 did not apply because of the control on a daily basis of the aircraft by an innocent non-FRY party. Having considered the wording of Regulation (EEC) no. 990/93, its context and aims (including the text and aims of the United Nations Security Council resolutions it implemented), it found nothing to support the distinction made by the applicant company. Indeed, the use of day-to-day operation and control as opposed to ownership as a criterion for applying the regulation would jeopardise the effectiveness of the sanctions.", "54. The applicant company's second argument was that the application of Regulation (EEC) no. 990/93 would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a commercial activity because it would destroy and obliterate the business of a wholly innocent party when the FRY owners had already been punished by having their bank accounts blocked. The ECJ did not find this persuasive:\n“It is settled case-law that the fundamental rights invoked by [the applicant company] are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by the Community (see [the above-cited Hauer case]; Case 5/88, Wachauf v. Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609; and Case C-280/93, Germany v. Council [1994] ECR I-4973).\nAny measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions.\nMoreover, the importance of the aims pursued by the regulation at issue is such as to justify negative consequences, even of a substantial nature, for some operators.\nThe provisions of [Regulation (EEC) no. 990/93] contribute in particular to the implementation at Community level of the sanctions against the [FRY] adopted, and later strengthened, by several resolutions of the Security Council of the United Nations. ...\nIt is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance, which is, in particular, in terms of [Regulation (EEC) no. 990/93] and more especially the eighth recital in the preamble thereto, to dissuade the [FRY] from 'further violating the integrity and security of the Republic of Bosnia-Herzegovina and to induce the Bosnian Serb party to cooperate in the restoration of peace in this Republic'.\nAs compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the [FRY], cannot be regarded as inappropriate or disproportionate.”", "55. The answer to the Supreme Court's question was therefore:\n“Article 8 of Council Regulation (EEC) no. 990/93 of 26 April 1993 concerning trade between the European Economic Community and the [FRY] applies to an aircraft which is owned by an undertaking based in or operating from the [FRY], even though the owner has leased it for four years to another undertaking, neither based in nor operating from [the FRY] and in which no person or undertaking based in or operating from [the FRY] has a majority or controlling interest.”", "56. On 6 August 1996 the Minister reinstated the impounding of the aircraft under Article 8 of Regulation (EEC) no. 990/93.", "57. By a notice of motion dated 29 October 1996, the applicant company applied to the Supreme Court for, inter alia, an order determining the action “in the light of the decision of the [ECJ]” and for an order providing for the costs of the Supreme Court and ECJ proceedings. The grounding affidavit of the applicant company of the same date stressed its bona fides, the benefit of having had the ECJ examine the regulation for the first time, the fact that ultimate responsibility for its predicament lay with the FRY authorities and that its operations had been destroyed by the impoundment. It referred to Regulation (EC) no. 2815/95, noting that it did not allow aircraft already impounded to fly whereas those not previously impounded could do so. Since its aircraft was the only one impounded under the sanctions regime, no other lessee could have initiated the action it had in order to clarify the meaning of the relevant regulation.", "58. On 29 November 1996 the Supreme Court delivered its judgment allowing the appeal of the Minister for Transport from the order of the High Court of 21 June 1994. It noted that the sole issue in the case was whether the Minister had been bound by Article 8 of Regulation (EEC) no. 990/93 to impound the aircraft. Having noted the answer of the ECJ, the Supreme Court simply stated that it was bound by that decision and the Minister's appeal was allowed.", "59. In May 1998 the Supreme Court allowed the appeal from the order of the High Court of 22 January 1996. Given the intervening rulings of the ECJ and of the Supreme Court (of July and November 1996, respectively), the appeal was moot since, from the date of the initial order of impoundment, the aircraft had been lawfully detained under Article 8 of Regulation (EEC) no. 990/93. There was no order as to costs.", "60. The applicant company's leases on both aircraft had expired by May 1996 (see paragraph 12 above). Further to the judgment of the Supreme Court of November 1996 (see paragraph 58 above) and given the relaxation of the sanctions regime (see paragraphs 67-71 below), JAT and the Minister for Transport reached an agreement in July 1997 concerning the latter's costs. JAT deposited 389,609.95 Irish pounds into a blocked account in the joint names of the Chief State Solicitor and its solicitors to cover all parking, maintenance, insurance and legal costs of the Minister for Transport associated with the impoundment. On 30 July 1997 the aircraft was returned to JAT.\n \nII. THE SANCTIONS REGIME: THE RELEVANT PROVISIONS", "61. In September 1991 the United Nations Security Council (UNSC) adopted a Resolution (Resolution 713 (1991)) under Chapter VII of its Charter by which it expressed concern about the conflict in the former Yugoslavia and implemented a weapons and military embargo. UNSC Resolution 724 (1991), adopted in December 1991, established a Sanctions Committee to administer the relevant resolutions of the United Nations Security Council.", "62. The relevant parts of UNSC Resolution 757 (1992), adopted on 30 May 1992, provided as follows:\n“5. Decides further that no State shall make available to the authorities in the [FRY] or to any commercial, industrial or public utility undertaking in the [FRY], any funds, or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to those authorities or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within the [FRY], except payments exclusively for strictly medical or humanitarian purposes and foodstuffs;\n... 7. Decides that all States shall:\n(a) Deny permission to any aircraft to take off from, land in or overfly their territory if it is destined to land in or has taken off from the territory of the [FRY], unless the particular flight has been approved, for humanitarian or other purposes consistent with the relevant resolutions of the Council, by the [Sanctions Committee];\n(b) Prohibit, by their nationals or from their territory, the provision of engineering or maintenance servicing of aircraft registered in the [FRY] or operated by or on behalf of entities in the [FRY] or components for such aircraft, the certification of airworthiness for such aircraft, and the payment of new claims against existing insurance contracts and the provision of new direct insurance for such aircraft;\n... 9. Decides further that all States, and the authorities in the [FRY], shall take the necessary measures to ensure that no claim shall lie at the instance of the authorities in the [FRY], or of any person or body in the [FRY], or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures imposed by the present resolution and related resolutions;”\nThe resolution was implemented in the European Community by a Council regulation of June 1992 (Regulation (EEC) no. 1432/92), which was in turn implemented in Ireland by statutory instrument: the European Communities (Prohibition of Trade with the Republics of Serbia and Montenegro) Regulations 1992 (Statutory Instrument no. 157 of 1992) made it an offence under Irish law from 25 June 1992 to act in breach of Regulation (EEC) no. 1432/92.", "63. UNSC Resolution 787 (1992), adopted in November 1992, further tightened the economic sanctions against the FRY. This resolution was implemented by Regulation (EEC) no. 3534/92, adopted in December 1992.", "64. UNSC Resolution 820 (1993), adopted on 17 April 1993, provided, inter alia, as follows:\n“24. Decides that all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] and that these vessels, freight vehicles, rolling stock and aircraft may be forfeit to the seizing State upon a determination that they have been in violation of resolutions 713 (1991), 757 (1992), 787 (1992) or the present resolution;”", "65. This resolution was implemented by Regulation (EEC) no. 990/93, which came into force on 28 April 1993, once published in the Official Journal (L 102/14 (1993)) of that date (as specified in Article 13 of the regulation) pursuant to Article 191(2) (now Article 254(2)) of the Treaty establishing the European Community (“the EC Treaty”).\nArticles 1.1(e) and 8 to 10 of that regulation provided as follows:\nArticle 1\n“1. As from 26 April 1993, the following shall be prohibited:\n...\n(e) the provision of non-financial services to any person or body for purposes of any business carried out in the Republics of Serbia and Montenegro.”\nArticle 8\n“All vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the [FRY] shall be impounded by the competent authorities of the Member States.\nExpenses of impounding vessels, freight vehicles, rolling stock and aircraft may be charged to their owners.”\nArticle 9\n“All vessels, freight vehicles, rolling stock, aircraft and cargoes suspected of having violated, or being in violation of Regulation (EEC) no. 1432/92 or this Regulation shall be detained by the competent authorities of the Member States pending investigations.”\nArticle 10\n“Each Member State shall determine the sanctions to be imposed where the provisions of this [Regulation] are infringed.\nWhere it has been ascertained that vessels, freight vehicles, rolling stock, aircraft and cargoes have violated this Regulation, they may be forfeited to the Member State whose competent authorities have impounded or detained them.”", "66. On 4 June 1993 the Irish Minister for Tourism and Trade adopted the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro)) Regulations 1993 (Statutory Instrument no. 144 of 1993), the relevant part of which provided as follows:\n“3. A person shall not contravene a provision of [Regulation (EEC) no. 990/93]. 4. A person who, on or after the 4th day of June, 1993, contravenes Regulation 3 of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both. 5. The Minister for Transport, Energy and Communications shall be the competent authority for the purpose of Articles 8 and 9 of [Regulation (EEC) no. 990/93] except in so far as the said Article 8 relates to vessels and the said Article 9 relates to cargoes. 6. (1) The powers conferred on the Minister for Transport, Energy and Communications by Articles 8 and 9 of [Regulation (EEC) no. 990/93] as the competent authority for the purposes of those Articles may be exercised by –\n(a) members of the Garda Síochána,\n(b) officers of customs and excise,\n(c) Airport Police, Fire Services Officers of Aer Rianta, ...\n(d) Officers of the Minister for Transport ... duly authorised in writing by the Minister for Transport, Energy and Communications in that behalf.\n...\n(3) A person shall not obstruct or interfere with a person specified in sub-paragraph (a), (b) or (c) of paragraph (1) of this Regulation, or a person authorised as aforesaid, in the exercise by him of any power aforesaid.\n(4) A person who, on or after the 4th day of June, 1993, contravenes sub-paragraph (3) of this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 3 months or to both. 7. Where an offence under Regulation 4 or 6 of these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to have been attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.”", "67. UNSC Resolution 943 (1994), adopted on 23 September 1994, provided, inter alia, as follows:\n“(i) the restrictions imposed by paragraph 7 of Resolution 757 (1992), paragraph 24 of Resolution 820 (1993) with regard to aircraft which are not impounded at the date of adoption of this Resolution, ...\nshall be suspended for an initial period of 100 days from the day following the receipt ... of a report from the Secretary-General ...”\nThis resolution was implemented by Regulation (EC) no. 2472/94 of 10 October 1994, Article 5 of which suspended the operation of Article 8 of Regulation (EEC) no. 990/93 “with regard to aircraft ... which had not been impounded at 23 September 1994”.", "68. The suspension of UNSC Resolution 820 (1993) was extended further by periods of 100 days on numerous occasions in 1995, and these resolutions were each implemented by Community regulations.", "69. UNSC Resolution 820 (1993) was suspended indefinitely in 1995 by Resolution 1022 (1995). It was implemented in the Community by Regulation (EC) no. 2815/95 of 4 December 1995 which provided, inter alia, as follows:\n“1. [Regulation (EEC) no. 990/93] is hereby suspended with regard to the [FRY]. 2. As long as [Regulation (EEC) no. 990/93] remains suspended, all assets previously impounded pursuant to that Regulation may be released by Member States in accordance with the law, provided that any such assets that are subject to any claims, liens, judgments, or encumbrances, or which are the assets of any person, partnership, corporation or other entity found or deemed to be insolvent under the law or the accounting principles prevailing in the relevant Member State, shall remain impounded until released in accordance with the applicable law.”", "70. UNSC Resolution 820 (1993) was later definitively suspended. That suspension was implemented by Regulation (EC) no. 462/96 of 27 February 1996, the relevant part of which provided as follows:\n“As long as the Regulations [inter alia, Regulation (EEC) no. 990/93] remain suspended, all funds and assets previously frozen or impounded pursuant to those Regulations may be released by Member States in accordance with law, provided that any such funds or assets that are subject to any claims, liens, judgments or encumbrances, ... shall remain frozen or impounded until released in accordance with the applicable law.”", "71. On 9 December 1996 Regulation (EC) no. 2382/96 repealed, inter alia, Regulation (EEC) no. 990/93. On 2 March 2000 the European Communities (Revocation of Trade Sanctions concerning the Federal Republic of Yugoslavia (Serbia and Montenegro) and Certain Areas of the Republics of Croatia and Bosnia-Herzegovina) Regulations 2000 (Statutory Instrument no. 60 of 2000) repealed Statutory Instrument no. 144 of 1993.", "72. This judgment is concerned with the provisions of Community law of the “first pillar” of the European Union.", "73. While the founding treaties of the European Communities did not contain express provisions for the protection of human rights, the ECJ held as early as 1969 that fundamental rights were enshrined in the general principles of Community law protected by the ECJ[2]. By the early 1970s the ECJ had confirmed that, in protecting such rights, it was inspired by the constitutional traditions of the member States[3] and by the guidelines supplied by international human rights treaties on which the member States had collaborated or to which they were signatories[4]. The Convention's provisions were first explicitly referred to in 1975[5], and by 1979 its special significance amongst international treaties on the protection of human rights had been recognised by the ECJ[6]. Thereafter the ECJ began to refer extensively to Convention provisions (sometimes where the Community legislation under its consideration had referred to the Convention)[7] and latterly to this Court's jurisprudence[8], the more recent ECJ judgments not prefacing such Convention references with an explanation of their relevance to Community law.", "74. In a judgment of 1991, the ECJ was able to describe the role of the Convention in Community law in the following terms[9]:\n“41. ... as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories ... The [Convention] has special significance in that respect ... It follows that ... the Community cannot accept measures which are incompatible with observance of the human rights thus recognised and guaranteed. 42. As the Court has held ... it has no power to examine the compatibility with the [Convention] of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the [Convention].”", "75. This statement has often been repeated by the ECJ, as, notably, in its opinion on accession by the Community to the Convention[10], in which it opined, in particular, that respect for human rights was “a condition of the lawfulness of Community acts”.", "76. In Kondova[11], relied on by the applicant company, the ECJ ruled on the refusal by the United Kingdom of an establishment request of a Bulgarian national on the basis of a provision in an association agreement between the European Community and Bulgaria:\n“... Moreover, such measures [of the British immigration authorities] must be adopted without prejudice to the obligation to respect that national's fundamental rights, such as the right to respect for his family life and the right to respect for his property, which follow, for the Member State concerned, from the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or from other international instruments to which that State may have acceded.”", "77. The case-law developments noted above were reflected in certain treaty amendments. In the preamble to the Single European Act of 1986, the Contracting Parties expressed their determination\n“to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms ...”.", "78. Article 6 (formerly Article F) of the Treaty on European Union of 1992 reads as follows:\n“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.", "79. The Treaty of Amsterdam of 1997 required the ECJ, in so far as it had jurisdiction, to apply human rights standards to acts of Community institutions and gave the European Union the power to act against a member State that had seriously and persistently violated the principles of Article 6(1) of the Treaty on European Union, cited above.", "80. The Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (not fully binding), states in its preamble that it\n“reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights”.\nArticle 52 § 3 of the Charter provides:\n“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”", "81. The Treaty establishing a Constitution for Europe, signed on 29 October 2004 (not in force), provides in its Article I-9 entitled “Fundamental Rights”:\n“1. The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Constitution. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”\nThe Charter of Fundamental Rights cited above has been incorporated as Part II of this constitutional treaty.", "82. Article 5 (now Article 10) provides:\n“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.\nThey shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”", "83. The relevant part of Article 189 (now Article 249) reads as follows:\n“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. ...”\nThe description of a regulation as being “binding in its entirety” and “directly applicable” in all member States means that it takes effect[13] in the internal legal orders of member States without the need for domestic implementation.", "84. Article 234 (now Article 307) reads as follows:\n“The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.\nTo the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.\nIn applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.”", "85. As regards the control exercised by the ECJ and national courts, the ECJ has stated as follows:\n“39. Individuals are ... entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ... 40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by Article 177, on the other, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts ... Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of the Treaty, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 184 of the Treaty or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid ..., to make a reference to the Court of Justice for a preliminary ruling on validity. 41. Thus it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection. 42. In that context, in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.”[14]", "86. Article 173 (now Article 230) provides member States, the European Parliament, the Council and the Commission with a right to apply to the ECJ for judicial review of a Community act (“annulment action”). Applications from the Court of Auditors and the European Central Bank are more restricted and, while subject to even greater restrictions, an individual (a natural or legal person) can also challenge “a decision addressed to that person or ... a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former” (Article 173(4), now Article 230(4)).", "87. According to Article 175 (now Article 232) member States and the Community institutions can also call, among others, the Council, the Commission and the European Parliament to account before the ECJ for a failure to perform their Treaty obligations. Article 184 (now Article 241) allows a plea of illegality of a regulation (adopted jointly by the European Parliament and the Council, by the Council, by the Commission or by the European Central Bank) to be made during proceedings already pending before the ECJ on the basis of another Article: a successful challenge will result in the ECJ declaring its inapplicability inter partes, but not the annulment of the relevant provision.", "88. Having legal personality of its own, the European Community can be sued for damages in tort, described as its non-contractual liability. Its institutions will be considered liable for wrongful (illegal or invalid) acts or omissions by the institution (fautes de service) or its servants (fautes personnelles) which have caused damage to the claimant (Articles 178 and 215, now Articles 235 and 288). Unlike actions under Articles 173, 175 and 184 (now Articles 230, 232 and 241), and subject to the various inherent limitations imposed by the elements of the action to be established, there are no personal or locus standi limitations on the right to bring such an action. It can therefore provide an independent cause of action[15] before the ECJ to review the legality of an act or failure to act to those (including individuals) who do not have locus standi under Articles 173 or 175 but who have suffered damage.\n(b) Actions against member States", "89. Under Article 169 (now Article 226) and Article 170 (now Article 227), both the Commission (in fulfilment of its role as “guardian of the Treaties”) and a member State are accorded, notably, the right to take proceedings against a member State considered to have failed to fulfil its Treaty obligations. If the ECJ finds that a member State has so failed, the State shall be required to take the necessary measures to comply with the judgment of the ECJ (Article 171, now Article 228). The Commission can also take proceedings against a member State in other specific areas of Community regulation (such as State aids – Article 93, now Article 88).\n(c) Actions against individuals", "90. There is no provision in the EC Treaty for a direct action before the ECJ against individuals. Individuals may, however, be fined under certain provisions of Community law; such fines may, in turn, be challenged before the ECJ.", "91. Where individuals seek to assert their Community rights before national courts or tribunals, they may do so in the context of any proceedings of national law, public or private, in which Community rights are relevant, in pursuit of any remedy, final or interim, under national law.\n(a) Direct effects", "92. The “direct effect” of a provision of Community law means that it confers upon individuals rights and obligations they can rely on before the national courts. A provision with direct effect must not only be applied by the domestic courts, but it will take precedence over conflicting domestic law pursuant to the principle of supremacy of Community law[16]. The conditions for acquiring direct effect are that the provision\n“contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the States which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between States and their subjects” [17].", "93. Certain EC Treaty provisions are considered to have direct effect, whether they impose a negative or positive obligation and certain have been found to have, as well as “vertical” effect (between the State and the individual), a horizontal effect (between individuals). Given the text of Article 189 (now Article 249), the provisions of regulations are normally considered to have direct effect, both vertically and horizontally. Directives and decisions can, in certain circumstances, have vertical direct effect, though recommendations and opinions, having no binding force, cannot generally be relied on by individuals before national courts.\n(b) The principles of indirect effect and State liability", "94. The rights an individual may claim under Community law are no longer confined to those under directly effective Community provisions: they now include rights based on the principles of indirect effect and State liability developed by the ECJ. According to the principle of “indirect effect” (“interprétation conforme”), a member State's obligations under Article 5 (now Article 10) require its authorities (including the judiciary) to interpret as far as possible national legislation in the light of the wording and purpose of the relevant directive[18].", "95. The principle of State liability was first developed in Francovich[19]. The ECJ found that, where a State had failed to implement a directive (whether or not directly effective), it would be obliged to compensate individuals for resulting damage if three conditions were met: the directive conferred a right on individuals; the content of the right was clear from the provisions of the directive itself; and there was a causal link between the State's failure to fulfil its obligation and the damage suffered by the person affected. In 1996 the ECJ extended the notion of State liability to all domestic acts and omissions (legislative, executive and judicial) in breach of Community law provided the conditions for liability were fulfilled[20].\n(c) Preliminary reference procedure", "96. In order to assist national courts in correctly implementing Community law and maintaining its uniform application[21], Article 177 (now Article 234) provides national courts with the opportunity to consult the ECJ. In particular, Article 177 reads as follows:\n“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:\n(a) the interpretation of this Treaty;\n(b) the validity and interpretation of acts of the institutions of the Community ...;\n...\nWhere such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.\nWhere any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”", "97. The ECJ described the nature of this preliminary reference procedure as follows[22]:\n“30. ... the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate ... 31. In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling ... ”", "98. Article 177 distinguishes between domestic courts which have a discretion to refer and those courts of last instance for which referral is mandatory. However, according to the CILFIT[23] judgment, both categories of court must first determine whether an ECJ ruling on the Community law matter is “necessary to enable it to give judgment”, even if the literal meaning of Article 177 would suggest otherwise:\n“It follows from the relationship between the second and the third paragraphs of Article 177 that the courts ... referred to in the third paragraph have the same discretion as any other national court ... to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment.”\nIn CILFIT the ECJ indicated that a court of final instance would not be obliged to make a reference to the ECJ if: the question of Community law was not relevant (namely, if the answer to the question of Community law, regardless of what it may be, could in no way affect the outcome of the case); the provision had already been interpreted by the ECJ, even though the questions in issue were not strictly identical; and the correct application of Community law was so obvious as to leave no scope for reasonable doubt, not only to the national court but also to the courts of the other member States and to the ECJ. This matter was to be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gave rise and the risk of divergences in judicial decisions within the Community.", "99. Once the reference is made, the ECJ will rule on the question put to it and that ruling is binding on the national court. The ECJ has no power to decide the issue before the national court and cannot therefore apply the provision of Community law to the facts of the particular case in question[24]. The domestic court will decide on the appropriate remedy.", "100. Article 31 § 1, entitled “General rule of interpretation”, provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”. Article 31 § 3 further provides that, as well as the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation together with any relevant rules of international law applicable in the relations between the parties shall be taken into account.", "101. The relevant part of Article 29 of the Irish Constitution reads as follows:\n“1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.\n... 3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States. 4. 1o ...\n10o No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”" ]

[]

[ "8. The first and the second applicant, Lomaseita Oy and CPT Data Oy, are limited liability companies. The third applicant, Mrs Kaisaleena Laaksonen was born in 1947 and lives in Espoo.", "9. In 1987, the third applicant founded a company called CPT Informations Systems Oy (“CPT IS” hereinafter) together with two others. On 20 October 1993 the company was ordered to be wound-up.", "10. The official receiver of the estate of CPT IS, P., a lawyer practising in Helsinki and a member of the Finnish Bar Association, instituted civil proceedings against the third applicant and the applicant companies, which are at least partly owned by the third applicant. In the proceedings before the District Court of Espoo (käräjäoikeus, tingsrätten), P. requested that assets allegedly transferred from CPT IS to the applicants before the winding-up order was issued be returned to its estate.", "11. On 31 January 1996, the District Court found partly in favour of the estate insofar as the first and second applicants were concerned and as a whole in favour of the estate in so far as the third applicant was concerned.", "12. All the parties to the proceedings appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten) and subsequently submitted their observations in reply. After the relevant time-limit for appeal had elapsed, the estate on two occasions in August 1997 submitted additional documentary material to the Court of Appeal, requesting that it be taken into account.", "13. By its judgment of 23 December 1997 the Court of Appeal found in favour of the estate. Insofar as the additional material submitted by the estate after the time-limit for appeal had elapsed was concerned, the Court of Appeal stated as follows:\n“The Court of Appeal has not found any such particular reason as prescribed by chapter 26, section 5 (1) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) to take into account the additional submissions with enclosures submitted by the estate after the relevant time-limit set for the appeal had elapsed. Therefore, they are not taken into account and, accordingly, the [estate’s] request for an oral hearing is rejected.”", "14. On 18 June 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal.", "15. Having received the Supreme Court’s decision, the applicants’ representative at the time requested copies of all the relevant documents from the Court of Appeal. He found out that, despite what was said in the Court of Appeal’s judgment about the additional submissions by the estate after the relevant time-limit for appeal had elapsed, the judicial secretary (hovioikeudenviskaali, hovrättsfiskal) of the Court of Appeal had made 71 remarks to the submissions in question and as many as 161 remarks to an enclosure, an inspection report drafted by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen).", "16. On 30 November 1998, the applicants requested that the Supreme Court reopen the proceedings, claiming that they had been denied a fair trial before the Court of Appeal as the estate’s submissions, which had clearly been relevant and which had been taken into account even though there was a statement to the contrary in the Court of Appeal’s judgment, had not been communicated to them. They also noted that it appeared from the invoice concerning the estate’s legal costs included in the court file, that P. had consulted the Court of Appeal’s judicial secretary several times during the proceedings. In this respect, the applicants complained that they had not been informed of any such discussions.", "17. By its decision of 31 January 2001 the Supreme Court refused to reopen the proceedings. Insofar as the second applicant was concerned, the Supreme Court gave the following reasons:\n“In the present case, the Court of Appeal decided not to take the new submissions into account. Under the provisions of law cited above [chapter 26, sections 5 and 6 of the Code of Judicial Procedure], the Court of Appeal did not therefore need to inform the other parties of the said submissions. The new submissions in question were, however, of such relevance for the issue at stake that, although there were no mandatory provisions of law to that effect, it might have been appropriate in those circumstances to communicate the submissions to the adverse parties.\nThe decision-making before the Court of Appeal depended on both judicial argumentation and evaluation of evidence. The Court of Appeal reached its conclusions on the basis of the material submitted to the District Court and the material in the appeal documents and the observations in reply. In its judgment, the Court of Appeal gave an account of the grounds on which it reached its conclusions. Neither the judgment nor the other documents in the file give any reason to conclude that the additional submissions by the estate after the time-limit for appeal had elapsed have de facto, and contrary to the wording of the judgment, affected the outcome of the Court of Appeal’s judgment, as alleged by the company. Thus, there is no proof of such a procedural error as could be assumed to have affected the outcome of the proceedings and as would make it necessary or possible to annul the judgment under chapter 31, section 1 (4) of the Code of Judicial Procedure. ...”", "18. The Supreme Court also rejected the annulment requests by the first and third applicants on the ground that the said police inspection report had been submitted to the Court of Appeal only in support of the estate’s appeal in respect of the second applicant. Nothing indicated that the inspection report had de facto affected the outcome of the judgment.", "19. However, the decision of the Supreme Court was not unanimous, as one of the judges in his dissenting opinion stated the following:\n“One of the basic principles of court proceedings is that all relevant material submitted to the court and which may have a bearing on the outcome of the case, shall be communicated to the parties (Supreme Court’s decision No. 1995:95). According to the case-law of the European Court of Human Rights (Nideröst-Huber v. Switzerland, Werner v. Austria, Kuopila v. Finland) it is up to each party to decide whether the material is such that it may affect the case and, whether it calls for the party to comment on it. A court’s view that a submission or a statement has no bearing on the outcome of the case does not therefore automatically justify the non-communication of such material to a party. Such a justification cannot be drawn from chapter 26, section 6 of the Code of Judicial Procedure, which concerns requesting written observations.\nThe estate of CPT Information Systems Oy submitted to the Court of Appeal, after the time-limit for appeal had elapsed, a supplementary police report, drafted by the Economic Offences Department of the police, together with an additional legal submission. The estate considered the material to be relevant to the case, requesting that it be taken into account in the decision-making. In the alternative, it requested that an oral hearing be held in order to call as a witness the person who had drafted the report. It is clear from the case-file that the official receiver and the judicial secretary of the Court of Appeal several times discussed over the telephone the submission of the additional material and apparently about the timetable of the proceedings. The occurrence of numerous remarks in the police report and the submission indicate that the material was at least not regarded as manifestly irrelevant. Based on general experience, economic reports, which have been drafted in an official capacity, are usually of relevance in cases concerning recovery of assets. In its judgment, the Court of Appeal revoked the District Court’s judgment, accepting the essential parts of the estate’s claims.\nUnder these circumstances, a fair trial would have required that the parties be informed, during the proceedings, of the additional material submitted by the estate as well as of the discussions concerning the schedule of the proceedings. I find that the Court of Appeal proceedings, in which one of the essential legal principles was disregarded, amounts to a procedural error within the meaning of chapter 31, section 1 (4) of the Code of Judicial Procedure. Therefore, the judgment must be annulled and the case returned to the Court of Appeal for re-examination. Having regard to the contents of the supplementary police report, this has to be done in respect of all three applicants. ...”", "20. Meanwhile on 13 December 1999, the first and third applicants complained to the Chancellor of Justice (oikeuskansleri, justitiekanslern) about the conduct of the official receiver, P., as he had allegedly knowingly given incorrect information to the Court of Appeal in a submission on behalf of the estate during the above-mentioned proceedings. The Chancellor of Justice transferred the complaint to the Finnish Bar Association. On 23 February 2001, the Bar Association Disciplinary Board admonished P. The Disciplinary Board found, inter alia, that P. had not corrected a piece of information he had submitted to the Court of Appeal on 24 April 1996, even though he had subsequently learned, on 29 August 1997, that the information was not true." ]

[ 3 ]

[ "10. The applicant was born in 1934 and lives in Wrocław. He is a lawyer belonging to the Wrocław Bar.", "11. The applicant was a party to proceedings before the Council of the Wrocław Bar Association to determine where his practice was to be located, a necessary preliminary to any activity in his profession.", "12. On 24 November 1982 the Bar Association of the Wrocław region (Okręgowa Rada Adwokacka) refused to enter the applicant's name in the list of practising lawyers. On 11 January 1983 the National Bar Association (Naczelna Rada Adwokacka) upheld that decision. On 21 October 1983 the Minister of Justice set aside the Bar Association's decision. On 25 November 1983 the Wrocław Bar Association entered the applicant's name in the list, but refused to determine a location for his practice on the ground that he had not joined a lawyers' cooperative (zespół adwokacki) in order to carry on his profession.", "13. On 20 December 1983 the applicant appealed, informing the Wrocław Bar Association that he had been retired since 19 July 1982 and only worked from time to time. He received no reply.", "14. On 13 June 1991 the applicant asked the Wrocław Bar Association to forward to the Minister of Justice his application for permission to carry on his profession as an independent lawyer and to have his practice established in Wrocław at the address he indicated.", "15. On 5 September 1991 the Wrocław Bar Association refused his application on the ground that he had not made any request for the location of his practice to be designated. According to the Government, the applicant did not appeal against that decision.", "16. On 23 December 1991 the applicant submitted a request to have his practice located in Wrocław; that request was refused on 23 January 1992 because there were no places available. On 18 March 1992 the National Bar Association dismissed an appeal by the applicant citing the lack of places and the need to give priority to trainee lawyers.", "17. On 26 January 1993 the Supreme Administrative Court (Naczelny Sąd Administracyjny), sitting in Warsaw, set aside the decisions given. It held that the Bar Association had been required to designate a location for the applicant's practice at the time when it entered his name in the list of members of the Bar, that is on 25 November 1983. It also held that when designating the location of the applicant's practice the Bar Association had a duty to take into account, among other considerations, his state of health.", "18. On 29 April 1993 the Wrocław Bar Association decided that the applicant's practice should be located in Wołów (approximately 46 km from Wrocław). On appeal, that decision was upheld on 18 August 1993 by the National Bar Association.", "19. On 31 January 1995 the Supreme Administrative Court once again set aside the decisions given. It held that the governing bodies of the profession, when designating the location of the applicant's practice, had still not taken into account his state of health, had not explained why, despite the growing number of law practices in the chief town of the region (Wrocław), the applicant's request had not been allowed, and had not explained why requests similar to the applicant's had been dealt with and granted as a priority.", "20. That decision was served on the Wrocław Bar Association on 29 March 1995. On 8 June 1995 the Bar Association asked the applicant to supply information about his professional activity and his state of health. The applicant described his professional activity and stated that he had suffered two heart attacks.", "21. On 14 September 1995 the Wrocław Bar Association decided to suspend the proceedings to determine where the applicant's practice was to be located and brought an action to have the applicant declared unfit to carry on his profession on the ground that he had suffered heart attacks. On 9 January 1996 the National Bar Association upheld the decision.", "22. On 19 October 1995 the applicant complained to the Supreme Administrative Court, sitting in Warsaw, of the Wrocław Bar Association's refusal to comply with its decision of 31 January 1995. On 7 March 1996, according to the Government, the Supreme Administrative Court dismissed the complaint as being out of time.", "23. On 5 September 1996 the Supreme Administrative Court set aside the decisions given on 14 September 1995 and 9 January 1996. It observed that the proceedings instituted by the Bar Association could be brought only against a practising lawyer, whereas in the present case, although the applicant's name had been entered in the list of lawyers, he could not carry on his profession because the location of his practice had not been determined.", "24. On 23 January 1997 the Wrocław Bar Association directed the applicant to supply medical certificates attesting to his state of health. Citing the Supreme Administrative Court's decision of 5 September 1996, the applicant refused to comply. In consequence, on 16 April 1997, the Bar Association determined the location for the applicant's practice as Strzelin (approximately 41 km from Wrocław). It held that there were no medical reasons why the practice should not be located outside the chief town of the region, in which there were too many practising lawyers. On 4 June 1997 the applicant appealed, and on 4 August 1997 he complained of the Wrocław Bar Association's continued failure to comply with the decision of the Supreme Administrative Court, sitting in Warsaw. On 19 August 1997 the National Bar Association overturned the Wrocław Bar Association's decision. On 12 September 1997 the Supreme Administrative Court put off its decision until a later date.", "25. On 21 October 1997, as the Wrocław Bar Association had not given a ruling within the time allowed, the applicant asked the Supreme Administrative Court, sitting in Wrocław, to compel the Bar Association to reach a decision and “to take the necessary measures to comply with the instructions given by the Supreme Administrative Court in its decisions”. On 11 December 1997 the Wrocław Bar Association informed the Supreme Administrative Court that the applicant's case was due to be heard at its meeting on 18 December 1997. On that date the Bar Association fixed the location of the applicant's practice in Trzebnica (approximately 25 km from Wrocław), giving him permission to live elsewhere. On appeal, that decision was upheld on 12 May 1998 by the National Bar Association.", "26. On 16 March 1998 the Supreme Administrative Court, sitting in Wrocław, refused to compel the Bar Association to give a ruling, given that in the meantime (on 18 December 1997) it had done so. It further noted that the applicant had appealed against the decision concerned. The part of his application containing the request for the necessary measures to be taken to comply with the Supreme Administrative Court's instructions was referred to the Supreme Administrative Court, sitting in Warsaw, which had jurisdiction over the matter.", "27. On 26 May 1998 the applicant explained to the Supreme Administrative Court, sitting in Warsaw, exactly what it was he was seeking. He distinguished between the following requests: the setting aside of the National Bar Association's decision of 12 May 1998; the imposition of a fine on the Bar Association; damages for each year of delay in complying with the Supreme Administrative Court's instructions (to take the state of his health into account); and a decision on whether he had the right to bring civil proceedings to obtain compensation for the loss he had suffered through the failure to comply with the Supreme Administrative Court's decisions.", "28. The National Bar Association submitted that the application should be refused. Firstly, it pointed out that the applicant was refusing to supply the medical certificates requested, which suggested that he was in good health. Secondly, it informed the court that the applicant worked as a legal adviser in a specific field, so that he was able to carry on an occupation successfully outside the legal profession. It further observed that he was in receipt of an invalidity pension (uprawnienia rentowe). Lastly, it submitted that Trzebnica, the town in which the Wrocław Bar Association had fixed the location of the applicant's practice, did not have the requisite number of lawyers. The choice of location had therefore been prompted by concern for the proper administration of justice.", "29. On 20 August 1998 the Supreme Administrative Court, sitting in Warsaw, allowed only part of the applicant's claim, setting aside the National Bar Association's decision of 12 May 1998. It first observed that the Bar Association had not complied with the orders made in all the decisions it had given up to that date. It referred to the principle that decisions taken by the Bar Association concerning the location of a lawyer's practice were administrative decisions and therefore came under its jurisdiction. It pointed out that an administrative body could not ignore its legal opinion, since any decision taken in disregard of its orders would be null and void.\nThe Supreme Administrative Court also pointed out that an administrative body called upon to deal with a request like the one in issue was required to take into account the interest of the individual while protecting the general interest. It emphasised that in the present case the Bar Association's decisions gave no valid reason for refusing to allow the applicant to establish his practice in Wrocław. In conclusion, it described the proceedings before the Bar Association as unfair, since the applicant had been refused any opportunity to make his case and because the Bar Association had done no more than speculate about his state of health.", "30. The Wrocław Bar Association invited the applicant to its meetings on 30 November 1998 and 18 February 1999. He was unable to attend, but presented his apologies.", "31. On 25 March 1999 the Wrocław Bar Association again fixed the location of the applicant's practice in Trzebnica. On 21 April 1999 it annulled the above decision and finally fixed the location of the applicant's practice in Wrocław. On 31 July 1999 the applicant informed it that he would begin work on 1 August 1999.", "32. The applicant also referred the matter to the Office for the Protection of Competition and Consumers (Urząd Ochrony Konkurencji i Konsumentów – “the Office”). At the end of the related proceedings, on 15 July 1998, the Warsaw regional anti-monopoly court (Sąd Wojewódzki Antymonopolowy) dismissed an appeal by the Bar Association against a decision given by the head of the Office (Prezes Urzędu Ochrony Konkurencji i Konsumentów) on 5 March 1998. After noting that the Bar Association engaged in monopoly practices restraining competition in the service provision market, the court ordered it to abandon the practices concerned. On 29 August 1998 the Wrocław Bar Association appealed on points of law.", "33. On 29 May 2001 the Supreme Court quashed the previous decisions. It ruled that the case concerned the applicant alone and that the conduct of the Bar Association authorities could not be equated with monopoly practices. It held that the Bar Association was not required by its rules to locate a lawyer's practice in the town of his choice." ]

[ 3 ]

[ "8. The applicant was born in 1967 and is currently staying in the Netherlands.", "9. On 8 May 2001 the applicant arrived in the Netherlands, where on 21 May 2001 he applied for asylum (verblijfsvergunning asiel voor bepaalde tijd) at the asylum application centre (aanmeldcentrum) at Schiphol. A first interview with an official of the Immigration and Naturalisation Department of the Ministry of Justice took place that same day, in order to establish the applicant's identity, nationality and travel route. The next day he was interviewed regarding the reasons for his request for asylum. The applicant submitted the following.", "10. After completing his eighteen months' military service on 1 December 1995, the applicant was again called up during a general mobilisation in April 1998. He served as a soldier in an anti-tank unit and fought in the war against Ethiopia.", "11. Although the war ended on 13 June 2000, demobilisation did not commence until considerably later because the Eritrean authorities feared further military incursions by the Ethiopians. In August 2000 a meeting was held with the applicant's battalion, consisting of between 5,000 and 7,000 men, in order to evaluate its performance in the war. According to the applicant, it was customary for such meetings to be held, and they allowed the higher army echelons to cover up their mistakes by putting the blame for an unsuccessful campaign on the soldiers. During this meeting the commanders said that the soldiers had not fought well. The applicant spoke up and said that this was because the commanders had insisted that hungry, thirsty and tired soldiers should continue fighting at the front, which had resulted in casualties. He said that his unit should have been replaced or strengthened. Other soldiers present at the meeting also voiced criticism, saying, for example, that there had not been enough weapons. When the applicant had spoken out, the other soldiers had vociferously supported him and an argument had ensued.", "12. For some time after the meeting, the applicant had the feeling that the army authorities were keeping an eye on him; for example, he thought he was being followed whenever he visited other units, and he was denied permission to go into town. On 5 December 2000, by which time he thought everything had been forgotten, he was summoned to the battalion's headquarters. There, he was informed that he had incited the soldiers. He was made to hand over his weapons and was detained in an underground cell for almost five months. He was neither interviewed, nor charged, nor brought before a military tribunal.", "13. On 20 April 2001 he was put into a jeep, with a driver and a guard who were armed. He was neither handcuffed nor bound. During the drive, they happened upon a military vehicle that had had an accident. Both the driver and the guard got out of the car to see if they could lend assistance. The applicant, left alone, seized the opportunity and escaped through the back of the car.", "14. The applicant made his way unhindered to Sudan, avoiding official border posts. An acquaintance of his in Khartoum brought him into contact with a travel agent, who arranged for a passport and air tickets. Accompanied by the travel agent, the applicant flew to Belgium via Syria and another, unspecified European country. From Brussels they took a train to Breda in the Netherlands. There, the travel agent told the applicant they had reached their destination. He asked him to hand back the passport and to report to a police station.", "15. On 23 May 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie), applying an accelerated procedure, rejected the applicant's request for asylum. His failure to submit any document capable of establishing his identity, nationality or travel itinerary was held to affect the plausibility of his statements. Moreover, the Deputy Minister considered that the applicant's account of his alleged escape lacked credibility: it was hard to believe that someone who had been kept in detention for four months should have been transported unrestrained and been able to get away without being stopped by his guards, both of whom were alleged to have left him alone in the back of an open jeep in order to look at a traffic accident. The applicant was further held not to have substantiated his alleged detention. The comments he had allegedly made at the meeting in August 2000 were not of such a confrontational nature that he had well-founded reasons to fear persecution on that account, the more so bearing in mind that his comments did not particularly deviate from the opinion of the superiors to whom he claimed to have addressed them. Moreover, the applicant himself had stated that he was not the only soldier to have voiced criticism, yet neither had it been alleged, nor had it appeared, that any of those other soldiers had experienced problems as a result of their comments. The applicant had also not explained why he had not been arrested until four months later and had been left undisturbed in the meantime.", "16. The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Amsterdam, and also applied to the President of that court for a provisional measure staying his expulsion. Pending the outcome of these proceedings, the applicant submitted a written statement by a certain Mr Khalifa, to the effect that Mr Khalifa's son had been executed in Eritrea in October 2000 after he had been staying with his mother for three months without having obtained prior permission from his army commanders. He also submitted an identity card, a military identity card, a driving licence and a marriage certificate. On 18 June 2001 the President of the Regional Court rejected the application for a provisional measure and, finding that further investigation could not reasonably contribute to the clarification of the case, also dismissed the appeal. The President considered that the applicant's alleged desertion and his resulting fear of disproportionate punishment had not been established in a sufficiently plausible manner. It was unlikely that the army should still have been mobilised at the time of the applicant's escape in April 2001, given that the war had ended in June 2000 and that the army, by the applicant's own account, had evaluated its performance in the war at a meeting in August 2000. The applicant's claim that he stood accused of incitement was based on pure supposition. In view of the ease with which the applicant had allegedly managed to escape, the President further found it unlikely that the (army) authorities wished to harm him. Thus, finding the applicant's account neither credible nor plausible, the President deemed it unnecessary to hear Mr Khalifa as a witness.", "17. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), arguing, inter alia, that further investigation of the case, and in particular of the question whether the Eritrean army had been demobilised at the time of his desertion, was called for and feasible. If it turned out that the army had still been mobilised in April 2001, the reasoning adopted by the President of the Regional Court as to the lack of credibility and plausibility of the applicant's account would no longer stand up. The applicant also applied for a provisional measure allowing him to await the outcome of his further appeal in the Netherlands. He withdrew this application on 6 July 2001 in view of the relevant case-law of the Administrative Jurisdiction Division.", "18. On 16 July 2001 the Administrative Jurisdiction Division dismissed the further appeal. It held that the applicant's appeal to the Regional Court had not been dismissed for reasons relating solely to the mobilisation, but also for reasons relating to the applicant's account of his arrest and escape. Given the conclusions reached by the President of the Regional Court to the effect that the Deputy Minister had not been wrong in describing the applicant's account as not credible, he (the President) had been entitled to decide not to hear evidence from Mr Khalifa as a witness. The fact that it was not in dispute that the applicant had served in the army did not affect this ruling." ]

[ 1 ]

[ "6. The applicant was born in 1942 and lives in Helsinki.", "7. The applicant ran a snack bar together with his wife until 20 December 1993 when it was damaged by a fire. On 13 October 1997 the Kotka District Court (käräjäoikeus, tingsrätten) convicted him of aggravated vandalism and aggravated fraud as he was found to have set the snack bar on fire and to have claimed and received compensation from an insurance company. He was sentenced to one year’s suspended imprisonment.", "8. Both the applicant and the public prosecutor appealed to the Kouvola Court of Appeal (hovioikeus, hovrätten). The applicant requested an oral hearing. He also sought an order for an expert opinion on the reasons why the snack bar had caught fire.", "9. On 9 March 1998 the applicant was summoned to an oral hearing to be held before the Court of Appeal on 20 May 1998. According to the summons, the oral hearing was limited only to the fire which had started from the storage room of the snack bar (“fire 2”); another fire (“fire 1”) had started from the part of the stand where the snacks were prepared. The Court of Appeal stated that it would call three of the prosecution witnesses, who had been heard before the District Court (police officer H., investigator L. and fireman T.).", "10. In her letter of 18 May 1998 to the Court of Appeal, the applicant’s counsel requested that S., who had installed the electricity for the snack bar, be called to give evidence at the oral hearing about the reasons why the above-mentioned “fire 1” had started. S. had also been heard before the District Court.", "11. On 20 May 1998 before the hearing started, the applicant’s counsel asked the judicial secretary of the Court of Appeal whether the applicant could call witnesses who would give evidence about “fire 1” and about the reasons why the snack bar had caught fire and how the fire had then spread to the whole building. The judicial secretary did not find it possible, or desirable, that such witnesses should be heard as the hearing was limited only to “fire 2”.", "12. At the beginning of the hearing, a timetable of the proceedings was distributed to the parties according to which the hearing was limited only to “fire 2”. The above-mentioned prosecution witnesses were heard. The defence witness, S., was not. According to the applicant the statements made by the prosecution witnesses concerning “fire 1” as well as the reasons why the snack bar had caught fire were accepted by the court. According to the Government no such evidence was given before the Court of Appeal.", "13. On 13 August 1998 the Court of Appeal upheld the District Court’s judgment, refusing the applicant’s request for an expert opinion. In its reasoning the court found, inter alia, as follows:\n“What is said above shows that the fire which occurred in the storage room [“fire 2”] was started deliberately. This strongly supports the allegation that the fire which occurred in the room where the snacks were prepared [“fire 1”] was also deliberate, in particular, as it is unlikely that the fire would have started from the electrical devices or the electricity wires which were situated on the roof of the preparation room [“fire 1].”", "14. On 11 November 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal." ]

[ 3 ]

[ "7. The applicant was born in 1940 and lives in the village of Khokholskiy in the Voronezh Region. He is the father of Viktor Trubnikov, who was found dead on 13 September 1998 in a punishment cell of the prison where he had been serving his sentence. He had died of asphyxia caused by hanging. At the time of his death, Viktor Trubnikov was 26 years old and was due to be released 21 days later.", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. On 8 July 1993 Viktor Trubnikov was remanded in custody in connection with criminal charges brought against him.", "10. On 30 August 1993 Viktor Trubnikov was convicted of manslaughter and sentenced to seven years’ imprisonment. He was serving his sentence in the correctional labour colony (исправительно-трудовая колония) OZH 118/8 in Rossosh, Voronezh Region. He expected to be released on probation on 4 October 1998.", "11. According to the records submitted by the Government, on three occasions in 1994-1995 Viktor Trubnikov had been found to be under the influence of alcohol and placed in a punishment cell. During his second disciplinary confinement, Viktor Trubnikov inflicted bodily injury on himself, and during his third disciplinary confinement he attempted suicide (see the section entitled “Medical records”).", "12. Following the suicide attempt, Viktor Trubnikov was placed under regular psychiatric supervision.", "13. On 13 September 1998 a prison football team, of which Viktor Trubnikov was a member, took part in a match outside the prison.", "14. On return to the prison after the match, Viktor Trubnikov was found to be under the influence of alcohol. At 7.15 p.m. a prison officer placed him in a punishment cell where he was to be kept in solitary confinement before his inspection by the prison warder the following morning. At 8.20 p.m. Viktor Trubnikov was found dead, hanged by the sleeve of his jacket with another sleeve attached to a water pipe.", "15. That evening the prison governor conducted an inquest. He examined six documents: (i) the order to place Viktor Trubnikov in the punishment cell, (ii) the disciplinary offence report, (iii) the report drawn up on finding Viktor Trubnikov dead, (iv) the site inspection report, (v) the site plan and (vi) the post mortem report. On the basis of this file, he stated that Viktor Trubnikov had hanged himself using the sleeve of his jacket and ordered that no criminal investigation be opened, as there had been no appearance that a crime had been committed. A reference was also made to his attempted suicide in June 1995, and it was stated that he had had suicidal tendencies.", "16. On 15 September 1998 an autopsy was performed on the body. In October 1998 a post mortem report was issued according to which abrasions and bruises were found on the nose, hand, forearm and elbow. The expert came to the conclusion that death had been caused by pressure on the neck through hanging.", "17. The applicant was informed orally that his son had committed suicide. He asked the prison authorities to initiate a criminal investigation. The authorities did not inform him that a decision had already been taken not to do so.", "18. In March 1999 the applicant requested the Voronezh Regional Prosecutor’s Office to provide him with information about the circumstances of his son’s death. The request was transmitted to the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions.", "19. On 8 April 1999 the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions informed the applicant of the decision not to investigate the circumstances of Viktor Trubnikov’s death in criminal proceedings. The applicant was informed that his son had had a record of good conduct, that he had been rewarded on several occasions and that no conflict had been registered between him and other inmates or the prison administration. He was also informed that, in the circumstances, the decision not to institute a criminal investigation was lawful and well-founded.", "20. On 16 April 1999 the Voronezh Regional Prosecutor’s Office informed the applicant of the refusal to institute criminal proceedings and invited him, on 30 April 1999, to view the case file concerning the death of his son.", "21. On 30 April 1999 the applicant arrived at the prosecutor’s office for the appointment to view the file, but the officer in charge was absent and he could not gain access to the file.", "22. On 26 June 1999 the applicant received a copy of the prison governor’s decision of 13 September 1998.", "23. On 18 September 2000 the applicant lodged a request with the Rossoshanskiy District Court of the Voronezh Region that it order a criminal investigation into his son’s death. The court declined jurisdiction in the matter, however, on 2 October 2000. It stated that the institution of criminal proceedings fell within the competence of the prosecutor’s office.", "24. After the case had been communicated to the respondent Government by the Court, the Voronezh Regional Prosecutor’s Office annulled the decision of 13 September 1998 on 5 February 2002 and instituted a criminal investigation into Viktor Trubnikov’s death.", "25. On 23 March 2001 the applicant brought proceedings before the same district court to have the refusal of the prison governor to institute criminal proceedings declared unlawful.", "26. On 20 March 2002 the Rossoshanskiy District Court of the Voronezh Region held that the decision of 13 September 1998 was unlawful. At the same time it discontinued the examination of the applicant’s claim as no longer necessary, given the prosecutor’s decision of 5 February 2002 which had already dealt with the issue.", "27. In June 2002 two forensic examinations were carried out. First, experts were appointed to conduct a new autopsy of the body. Secondly, another group of experts carried out a posthumous examination of Viktor Trubnikov’s psychiatric and psychological condition.", "28. The autopsy resulted in substantially the same findings as the first post mortem report, namely, that the death had been caused by mechanical asphyxia (more specifically, strangling), and established a medium‑degree alcoholic intoxication at the time of death.", "29. On 27 June 2002 the posthumous psychiatric report was submitted. The experts concluded that at the time of his death Viktor Trubnikov had not been predisposed to suicide on account of any long or short-term psychiatric disorder. However, they concluded that he had been under the influence of alcohol and that it could have triggered his decision to commit suicide.", "30. During the investigation the following witnesses were examined and gave the following testimonies:\n(i) Six officers who were on duty at the prison entrance when Viktor Trubnikov returned to the prison after the football match, testified that he had been drunk and had behaved aggressively. He therefore had to be isolated in the punishment cell. They all stated that no force had been applied to him.\n(ii) Two inmates who had been on the same football team testified that Viktor Trubnikov had been under the influence of alcohol on their return from the match, and that was why he had been stopped by the prison warders at the prison entrance. They stated that there had been no threats or violence at the prison entrance.\n(iii) Three other inmates who had known Viktor Trubnikov well testified that he had had good relations with other inmates and warders and that there had been no conflict between him and the prison administration.\n(iv) Six officers who had been on duty in the punishment ward when Viktor Trubnikov died, testified that he had been placed in the cell at about 7.30 p.m. and had been found dead during the warder’s round at 8.15 p.m. They stated that first aid had been administered, but that it had been too late.\n(v) Inmates L. and M. testified that they had been confined to punishment cells next to Viktor Trubnikov. M. stated that at first they had communicated through the wall, but then Viktor Trubnikov had gone quiet. Neither of them had heard any noises or screams.\n(vii) Two officers testified that they had witnessed Viktor Trubnikov’s previous suicide attempt in 1995 and administered first aid to him. They considered that that attempt had not been a genuine suicide, but that he had rather been trying to attract attention and demonstrate his independence.\n(viii) Ms. K, the psychiatrist who had supervised Viktor Trubnikov, testified that his first suicide attempt had been demonstrative and had not reflected a genuine wish to die. She also considered, on the basis of her observations, that he had been likely to make another attempt, also demonstrative and not aimed at causing death, and that the probability of such behaviour increased under the influence of alcohol.", "31. On 10 October 2002 the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions terminated the criminal investigation, having established that Viktor Trubnikov had committed suicide.", "32. On 3 March 2003 the applicant received a copy of the termination order of 10 October 2002.", "33. The Government submitted a collection of medical records concerning Viktor Trubnikov’s condition throughout his detention. In so far as the copies are legible, they contain the following relevant entries.", "34. On 13 July 1993, upon his arrest, Viktor Trubnikov was examined by a psychiatrist and found to be in good health.", "35. On 10 September 1994 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell.", "36. On 21 March 1995 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell where he inflicted injuries on himself, recorded as follows:\n“As a protest against being put in a punishment cell [Viktor Trubnikov] inflicted three horizontal cuts on his abdomen: measuring 10x2 cm, 8x2 cm and 6x1 cm, each about 1.5 cm deep. Minor bleeding ...”", "37. From 21 to 27 March 1995 Viktor Trubnikov was kept in the medical block for treatment of the self-inflicted wounds.", "38. On 22 June 1995 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell where he attempted to hang himself, as recorded:\n“Emergency call for an attempted suicide. Trubnikov detained in the punishment cell No. 22 attempted to hang himself by a string attached to a water pipe ... Consultation with a psychiatrist is required.”", "39. Following that incident, Viktor Trubnikov was supervised by a psychiatrist, Ms K., who made the following entries in the records.\nOn 23 June 1995:\n“Complains about depression, unwillingness to live, weakness, insomnia, irritability. Psychologically [stable]. Enters into contact. Orientation in space and time, as regards own personality is correct. Depressed overall. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms can be observed at the time of examination. Diagnosis: short-term depressive reaction; suicide attempt. (i) [prescription medicines]; (ii) psychotherapy.”\nOn 24(29) June 1995:\n“Conscious. Enters into contact. Depressed. Thinking is consistent. Demonstrative behaviour. Explains the suicide attempt by saying that he is ‘fed up with a life like that’. The attitude to the suicide attempt is not self-critical. Memory and reason are intact. No pathological psychiatric condition. Diagnosis: short-term depressive reaction. Suicide attempt. Fixation behaviour. Continue treatment.”\nOn 30 June 1995:\n“Has no medical complaints. His mood is steady and positive. Goes in for sport. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms can be observed. Self-critical attitude to the recent suicide attempt. No acute psychiatric symptoms are observed. Prescribed rational psychotherapy. The next visit is scheduled for 25 December 1995.”\nOn 25 December 1995:\n“Has no medical complaints. Mood is steady. Demonstrative behaviour. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: fixation behaviour. Prescribed rational psychotherapy. The next visit is scheduled for 25 June 1996.”\nOn 25 June 1996:\n“Complains about depression, weakness, irritability, insomnia, inability to work. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of neurasthenia.”\nOn 25 December 1996:\n“Has no medical complaints. His mood is steady. Thinking is consistent. Self-critical attitude to the suicide attempt in the past. Memory and reason are intact. Demonstrative behaviour. Diagnosis: hyposthenic form of neurasthenia. The next visit is scheduled for 25 June 1997.”\nOn 25 June 1997:\n“Mood is changeable. Thinking is consistent. Self-critical attitude to the suicide attempt in the past. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of neurasthenia. The next visit is scheduled for 25 December 1997.”\nOn 25 December 1997:\n“Complains about depression, weakness, insomnia, irritability. No acute psychiatric symptoms are observed. Depressed. The next visit is scheduled for 25 June 1997.”\nThe next entry is dated 25 June 1997, although it immediately follows the above record of 25 December 1997:\n“Condition has improved. Mood has stabilised. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: the same. The next visit is scheduled for 25 December 1998.”\nThe next entry is dated 17 February 1997, although it immediately follows the above record dated 25 June 1997:\n“Has no medical complaints. Mood is steady, depressed. No acute psychiatric symptoms are observed. Diagnosis: depressive reaction. Attempted suicide in the past. No complaints at the time of examination. [Fixation]. The next visit is scheduled for 17 August 1998. Rat[ional] psychotherapy.”", "40. On 8 August 1998 a psychological test revealed, inter alia, a potential psychiatric condition, a tendency towards impulsive reactions and, possibly, a tendency towards conflict with others.", "41. The last record in Viktor Trubnikov’s lifetime was made on 17 August 1998:\n“Complains about depression, weakness, insomnia, irritability. Enters into contact. Orientation is correct. Depressed. Thinking is consistent. No acute psychiatric symptoms are observed. No suicidal thoughts. Diagnosis: short-term depressive syndrome. The next visit is scheduled for [unclear].”", "42. On 20 February 2002 the deputy prison warder in charge of the prison medical office issued a certificate that Viktor Trubnikov had been under permanent psychiatric supervision, having been diagnosed as suffering from neurasthenia and a psychopathic condition with depressive reactions." ]

[ 0 ]

[ "8. The applicant, Agrotehservis, is a Latvian-Ukrainian joint venture based in Riga, with legal personality under Latvian law.", "9. On 13 May 1992, under the intergovernmental agreement of 21 April 1992 between the Republic of Latvia and Ukraine, the applicant concluded a contract with the Kherson Refinery, which was later transformed into the “Khersonnaftopererobka” Joint-Stock Company (hereinafter “the Refinery”). Under the contract the applicant was to supply oil to the Refinery and the latter had to provide it with oil products in return.", "10. On 10 December 1996 the applicant lodged a claim with the Highest Arbitration Court of Ukraine (Вищий арбітражний суд України, hereinafter “the HAC”) against the Refinery for failure to honour the contract.", "11. On 7 February 1997 the HAC rejected the applicant’s claim as time-barred. The applicant did not appeal against this decision.", "12. On 2 September 1997 the panel of the Highest Arbitration Court for the review of judgments, orders and decisions (судова колегія з перегляду рішень, ухвал, постанов Вищого арбітражного суду України, hereinafter “the Review Panel”) reviewed the decision of 7 February 1997 on its own motion. The latter decision was quashed and the case was remitted for a fresh consideration.", "13. On 9 October 1997 the HAC rejected the applicant’s claim as time-barred.", "14. On 26 November 1997 the applicant appealed against this decision under the supervisory review procedure to the Review Panel. On 30 January 1998, the Panel quashed the decision of 9 October 1997 and remitted the case for a fresh consideration.", "15. On 10 April 1998 the HAC found for the applicant. The court established that in June 1992 the applicant had supplied 60,000 tonnes of oil to the defendant and was to receive 17,852 tonnes of oil products from the defendant in return. As the oil products had not been supplied, the HAC awarded them to the applicant. The court also awarded the applicant UAH 10,000 in legal costs.", "16. In August 1998 the applicant lodged a claim with the HAC to change the manner of enforcement of the judgment of 10 April 1998. On 26 August 1998 the court allowed the claim and ordered the Refinery to pay the applicant UAH 7,011,186[1] in lieu of the 17,852 tonnes of oil products.", "17. On 2 June 1998 the General Prosecutor’s Office of Ukraine (Генеральна Прокуратура України, hereinafter - “the GPO”) lodged an appeal for supervisory review with the Review Panel of the HAC seeking to quash the judgment of 10 April 1998. The GPO maintained that the applicant had lodged its original claim outside the time-limit and had not paid a court fee. It further maintained that the HAC had not taken certain documents into account.", "18. On 17 July 1998 the Review Panel rejected the appeal as unsubstantiated.", "19. On 31 August 1998 the GPO lodged an appeal for supervisory review with the Presidium of the HAC (президія Вищого арбітражного суду України) to quash the judgment of 10 April 1998 given in the applicant’s favour. The GPO maintained that there was insufficient evidence that the applicant was the owner of the oil which had been supplied to the Refinery in 1992 and that the HAC had wrongly decided that the original claim was not time-barred.", "20. On 26 November 1998 the Presidium of the HAC ordered a forensic examination in the framework of the supervisory review proceedings.", "21. On 30 December 1998 the experts of the Kiev Scientific and Research Institute of Forensic Examination gave their opinion, confirming the applicant’s ownership of the oil supplied to the Refinery in 1992.", "22. On 6 January 1999 (11 January, according to the Government) the Presidium of the HAC rejected the GPO’s appeal as unsubstantiated and upheld the previous decisions of the HAC in the case.", "23. On 18 May 1999 the GPO lodged an appeal with the HAC for a review of the case in the light of newly discovered circumstances. The GPO maintained in particular that, at the time of the original proceedings, the courts had been unaware of the results of a forensic examination of 6 May 1999, and therefore the case should be reviewed.", "24. On 15 June 1999 the HAC rejected this appeal as unsubstantiated. The court noted that the latest forensic examination confirmed the conclusions of the court in its decision of 10 April 1998 and were mentioned in the court’s decision of 6 January 1999.", "25. On 26 August 1999 the GPO lodged an appeal for review in the light of newly discovered circumstances with the Review Panel of the HAC. The GPO submitted the same arguments as it had in its appeal of 18 May 1999.", "26. On 4 October 1999 the Review Panel of the HAC rejected the appeal as unsubstantiated and upheld the decision of 15 June 1999.", "27. On 21 December 1999 the GPO lodged an appeal for supervisory review with the Presidium of the HAC to quash the judgment of 10 April 1998 in the applicant’s favour. In support of its appeal, the GPO maintained that the court had erroneously rejected their previous appeals and that there was insufficient evidence to establish ownership of the oil by the applicant.", "28. On 28 January 2000 the Presidium of the HAC allowed the extraordinary appeal and quashed the judgment of 10 April 1998 in the applicant’s favour. The court found that the applicant had not provided sufficient evidence of its ownership of the 60,000 tonnes of oil supplied to the Refinery in 1992, and that its original claim was time-barred.", "29. On 17 March 2000 the applicant requested the President of the HAC to review the decision of 28 January 2000 at the Plenary of the HAC (пленум Вищого арбітражного суду України). By letter of 26 July 2000, the Acting President of the HAC rejected the applicant’s request for lack of grounds.", "30. In June 2001 the procedural legislation changed, allowing appeals in cassation to the Supreme Court of Ukraine (Верховний Суд України) against the decisions of the HAC (see the relevant domestic law below).", "31. On 28 September 2001 (26 October, according to the Government) the applicant lodged an appeal under the new cassation procedure with the Supreme Court of Ukraine against the judgment of 28 January 2000.", "32. On 21 January 2002 the Supreme Court of Ukraine quashed the decision of the Presidium of the HAC of 28 January 2000 and confirmed the validity of the judgment of 10 April 1998 given in the applicant’s favour. The court established that the prosecutors had not been competent to lodge the extraordinary appeals in the interests of the Refinery, and quashed all the decisions of the HAC given under the extraordinary review proceedings in 1998-2000." ]

[ 3, 9 ]

[ "8. The applicant was born in 1949 and lives in Budapest.", "9. Criminal proceedings were instituted against the applicant on a charge of misappropriation. On 23 May 2001 the National Police Department ordered his 72-hour arrest. In the ensuing proceedings he was assisted by defence counsel of his choice.", "10. On 24 May 2001 the Budapest Regional Public Prosecutor’s Office dismissed the applicant’s complaint concerning his arrest and lodged with the Pest Central District Court a motion for the applicant’s detention on remand. On 25 May 2001 the District Court heard the applicant and, as confirmed by the Budapest Regional Court on 1 June 2001, ordered his detention on remand until 25 June 2001. The District Court held that there was a risk of collusion by the applicant.", "11. On 19 June 2001 the District Court, as confirmed by the Regional Court on 3 July 2001, prolonged the applicant’s detention until 25 August 2001. On 7 August and 16 October 2001 the Regional Court, as confirmed by an appeal panel of the same court on 27 August and 12 November 2001, prolonged his detention on remand until 25 October and 25 December 2001, respectively. In these proceedings the courts reached their decisions with reference to motions submitted by the Public Prosecutor’s Office, all of which were based on the risk of collusion. Neither the applicant nor his defence counsel had been notified of these motions before the decisions were taken. In its decision of 12 November 2001 the Regional Court pointed out that notification was not prescribed by the Code of Criminal Procedure and was a matter for the public prosecutor in the exercise of his discretion. The Regional Court was satisfied that this practice was in accordance with the principle of ‘equality of arms’.", "12. On 27 November 2001 the applicant’s lawyer filed a request for release. This motion did not reach the Supreme Court, which by that stage was responsible for deciding on the applicant’s detention.\nOn 18 December 2001 the Supreme Court decided in camera to prolong the applicant’s detention until 25 April 2002. The Supreme Court held that – given the seriousness of the charges against him – there was a risk that the applicant would abscond.", "13. On 1 March 2002 the Public Prosecutor’s Office ordered the applicant’s release." ]

[ 2 ]

[ "4. The applicants are spouses. They were born in 1935 and 1938 respectively and live in Bratislava.", "5. In 1990 the applicants concluded a contract with M., the owner of a building company. M. undertook to sell a plot of land to the applicants and to build a family house for them. The applicants paid 600,000 Slovakian korunas (SKK) to M.", "6. M. failed to comply with the contract. The applicants therefore revoked it on 28 January 1991.", "7. On 5 February 1991 the applicants sued the company of M. before the Považská Bystrica District Court. On 26 April 1991 the court discontinued the proceedings as the applicants had not paid the court fee.", "8. In 1991 criminal proceedings were brought against M. as he was suspected of fraud. The applicants declared that they wished to claim damages from M. in the context of the criminal proceedings.", "9. On 18 August 1991 the applicants sued M. for damages before the Považská Bystrica District Court. On 16 March 1992 the District Court discontinued the proceedings. The decision stated, with reference to Article 83 of the Code of Civil Procedure, that the applicants had also claimed damages in the context of the criminal proceedings against M. and that those criminal proceedings were pending. On 25 May 1992 an appellate court dismissed the applicants’ appeal.", "10. In the meantime, on 23 October 1991, a public prosecutor froze property of M.’s company, the value of which corresponded to SKK 2,185,000, with a view to securing the claims of 21 aggrieved persons.", "11. On 28 December 1992 M.’s mother returned SKK 50,000 to the applicants. In a written statement of 10 February 1995 M. admitted his debt in respect of the applicants.", "12. In 1996 the charges against M. were enlarged to comprise economic offences which had no bearing on the applicants’ claim and which the accused had allegedly committed in the context of the dissolution of the former Czech and Slovak Federal Republic.", "13. Following the enlargement of the charges against M. his bank account was blocked in the context of the criminal proceedings.\nThe Government submitted that the sum blocked amounted to SKK 8,885,006.\nThe applicants submitted, with reference to an article published in a weekly, that the Bratislava Regional Prosecutor had given his consent, in 1997, to unblock the account in which approximately SKK 64 millions had been deposited. The article further states that most of the money had subsequently been transferred abroad. In another article published in the same weekly the General Prosecutor confirmed that he had intended to start disciplinary proceedings against the Regional Prosecutor in that regard. However, the prosecutor had resigned from his post.", "14. On 11 February 1998 the Bratislava Regional Prosecutor indicted M. before the Bratislava Regional Court. On 21 June 1999 the Regional Court returned the case to the public prosecutor for further investigation.", "15. On 14 September 2001, the applicants made a written submission to the Bratislava Regional Court which was dealing with the criminal charges against M. The Regional Court interpreted the submission as a civil claim for damages and transferred it to the Považská Bystrica District Court.", "16. A new indictment against M. was filed with the Bratislava Regional Court on 3 December 2001. The indictment concerned numerous offences and, in addition to M., two other persons.", "17. On 28 February 2002 the criminal judge decided to deal separately with several aspects of the case, including those which were relevant for the determination of the applicants’ claim.", "18. On 13 August 2003 a Považská Bystrica District Court judge informed the applicants, in reaction to their above submission of 14 September 2001, that criminal proceedings against M. were still pending and that Article 83 of the Code of Civil Procedure prevented the court from dealing with a civil action for damages in the same case. The applicants were invited to inform the court whether they maintained their action and were instructed how to rectify formal shortcoming in their submission.", "19. In a letter of 5 September 2003 the applicants replied that their above letter of 14 September 2001 had been meant for the judges dealing with the charges against M. and that they were aware that they could not have separate civil proceedings for damages brought against M. as the criminal proceedings against him were still pending.", "20. In the meantime, on 14 March 2003, the applicants complained to the Constitutional Court about a violation of their right to a hearing without unjustified delay.", "21. On 19 September 2003 the Považská Bystrica District Court judge informed the Constitutional Court about the contents of her above letter to the applicants of 13 August 2003. No reference was made to the applicants’ reply of 5 September 2003.", "22. On 25 September 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision states:\n“It follows from ... the submission of the District Court that, at present, proceedings are pending before it upon the initiative of the [applicants]... The subject-matter of those proceedings is the claim for damages against [M.] which the applicants have also submitted in the context of the criminal proceedings before the Regional Court. The applicants therefore have, provided that they overcome the obstacle of litis pendens and bring their [civil] action in compliance with the formal requirements as instructed by the District Court, a different effective remedy at their disposal in the context of proceedings before a civil court...\nIn the Constitutional Court’s view, an action for damages is an effective remedy in respect of [the applicants], as a [civil] claim for compensation by persons who have suffered damage may form the basis of their own case in respect of which (unlike persons who join criminal proceedings with a claim for damages) they enjoy the guarantee of ... a hearing without undue delay...\nIt follows that the alleged failure of the Regional Court to proceed with [the criminal case against M.] speedily can have no bearing on the applicants’ constitutional right to a hearing without undue delay... In the circumstances, it is the applicants’ claim for damages which is to be considered as their case; determination of such a claim is not the purpose of the criminal proceedings and, in addition, the applicants can claim damages before a civil court provided that they comply with the statutory requirements...”", "23. On 24 November 2004 the Bratislava Regional Court convicted M. in proceedings concerning the charges which were not related to the applicants’ claim. M. was sentenced to 10 years’ imprisonment and the court ordered him to compensate SKK 58 million to the Ministry of Finance. The convicted persons appealed and the proceedings are pending before the Supreme Court.", "24. The Bratislava Regional Court is expected to start determining the remaining charges against M. (which concern fraud in respect of more than 20 individuals including the applicants) in the course of 2005." ]

[ 3 ]

[ "10. The case concerns the killing on 19 July 1996 of Mr Angelov and Mr Petkov by a member of the military police who was attempting to arrest them.", "11. All the applicants are Bulgarian nationals of Roma origin.", "12. Ms Anelia Kunchova Nachova, who was born in 1995, is Mr Angelov's daughter. Ms Aksiniya Hristova, who was born in 1978, is Ms Nachova's mother. Both live in Dobrolevo, Bulgaria. Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov, who were born in 1955 and 1954 respectively and live in Lom, Bulgaria, are Mr Petkov's parents.", "13. In 1996 Mr Angelov and Mr Petkov, who were both 21 years old, were conscripts in the Construction Force (Строителни войски), a division of the army dealing with the construction of apartment blocks and other civilian projects.", "14. Early in 1996 Mr Angelov and Mr Petkov were arrested for being repeatedly absent without leave. On 22 May 1996 Mr Angelov was sentenced to nine months' imprisonment and Mr Petkov to five months' imprisonment. Both had previous convictions for theft.", "15. On 15 July 1996 they fled from a construction site outside the prison where they had been brought to work and travelled to the home of Mr Angelov's grandmother, Ms Tonkova, in the village of Lesura. Neither man was armed.", "16. Their absence was reported the following day and their names put on the military police's wanted list. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military Police Unit.", "17. At around twelve noon on 19 July 1996, the officer on duty in the Vratsa Military Police Unit received an anonymous telephone message that Mr Angelov and Mr Petkov were hiding in the village of Lesura. On at least one of the previous occasions when he had been absent without leave, it was there that Mr Angelov had been found and arrested.", "18. The commanding officer, Colonel D., decided to dispatch four military police officers, under the command of Major G., to locate and arrest the two men. At least two of the officers knew one or both of them. Major G. apparently knew Lesura because, according to a secretary who worked at the town hall and was heard later as a witness, his mother was from the village.", "19. Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet-proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” (криминално проявени) – an expression used to denote persons with previous convictions or persons suspected of an offence – and that they had escaped from detention. The officers were instructed to use whatever means were dictated by the circumstances to arrest them.", "20. The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was armed with a personal handgun and a 7.62 mm calibre Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation.", "21. The officers were briefed orally by Major G. on their way to Lesura. Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side.", "22. At around 1 p.m. the officers arrived in Lesura. They asked a secretary at the town hall and one of the villagers, Mr T.M., to join them and show them Mr Angelov's grandmother's house. The vehicle drove into Lesura's Roma district.", "23. Sergeant N. recognised the house since he had previously arrested Mr Angelov there for being absent without leave.", "24. As soon as the jeep drew up in front of the house, between 1 and 1.30 p.m., Sergeant K. recognised Mr Angelov, who was inside, behind the window. Having noticed the vehicle, the fugitives tried to escape. The officers heard the sound of a window pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the garden gate, the former going to the west side of the house, and the latter entering the house. Sergeant N. headed towards the east side of the house. Sergeant S. remained with the car, together with the secretary who worked at the town hall and Mr T.M.", "25. Sergeant N. later testified that, having noticed Mr Angelov and Mr Petkov escaping through the window and running towards a neighbour's yard, he had shouted: “Stop, military police!” He had pulled out his gun, but had not fired any shots. The two men had carried on running. Sergeant N. had run out on to the street in an effort to intercept them by cutting past several houses. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I'll shoot!” It was then that the shooting had started.", "26. Major G. stated in his testimony:\n“... I heard Sergeant N. shouting: 'Freeze, police' ... I saw the conscripts; they were running and then stopped in front of the fence between Ms Tonkova's and the neighbour's yards ... I saw that they were trying to jump over the [chain-link] fence, so I shouted: 'Freeze, or I'll shoot!' I released the safety catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle upwards with my right hand, almost perpendicular to the ground ... The conscripts climbed over the [chain-link] fence and continued to run, I followed them, then I fired one, two or three more times in the air and shouted: 'Freeze!', but they continued running. I again fired shots in the air with the automatic and shouted: 'Freeze, or I will shoot with live cartridges.' I warned them again, but they continued running without turning back. I fired to the right [of the two men] with the automatic after the warning, aiming at the ground, hoping that this would make them stop running. I again shouted 'Freeze!' when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence. I aimed at their feet. The ground where I stood was at a lower level ... [B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them. The gradient there was a bit steep, [I] was standing on lower ground ... the second fence was on the highest ground, that is why when I fired the first time I aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I aimed at the conscripts, but fired at their feet. Under Regulation 45 we can use firearms to arrest members of the military forces who have committed a publicly prosecutable offence and do not surrender after a warning, but in accordance with paragraph 3 of [that regulation] we have to protect the lives of the persons against whom [we use firearms] – for that reason I fired at [the victims'] feet – with the intention of avoiding fatal injury. The last time that I shot at the conscripts' feet, I was twenty metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down ...They were both lying on their stomachs, and both gave signs of life, ... moaning ... then Sergeant S. appeared, I called him ... and handed him my automatic rifle ...”", "27. According to the statements of the three subordinate officers, Mr Angelov and Mr Petkov were lying on the ground in front of the fence, with their legs pointing in the direction of the house from which they had come. One of them was lying on his back and the other on his stomach.", "28. A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova's house. Then he had heard somebody shout: “Don't run, I am using live cartridges.” He had then heard shots. He had looked into the next yard and seen Mr Angelov, whom he knew, and another man leap over the chain-link fence between Ms Tonkova's and another neighbour's yards. He had not seen the man who had shouted as he was hidden from view behind Ms Tonkova's house. Then he had seen Mr Angelov and Mr Petkov fall to the ground and the man who had shot them emerge, holding an automatic rifle. Mr Z. further stated:\n“The other men in uniform then started remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he should not have come with them. Of those who came in the jeep, only the senior officer fired ... I know him by sight, he has relatives in Lesura.”", "29. Sergeant S. stated that on arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house: “Freeze, police!” He had also heard Major G. shout “Freeze, police!” several times from the west side of the house. Then Major G. had started shooting with his automatic weapon, while continuing to shout. Sergeant S. had then entered the yard. He had seen Major G. leap over the chain-link fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Major G. had gone to get the jeep and had reported the incident over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in the vehicle.", "30. The head of the Vratsa Military Police Unit and other officers were informed of the incident at around 1.30 p.m.", "31. Sergeant K. testified that he had entered the house and had been speaking to Mr Angelov's grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to stop. In the house, he had noticed that a window pane in the room overlooking the yard had been broken. He had been on the verge of leaving the house when he heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the fugitives had been wounded. Sergeant K. had then climbed over the chain-link fence and approached the wounded men, who were still alive and moaning. He had found himself holding the automatic rifle, but could not remember how it had come into his possession. He had opened the magazine and seen no cartridges in it. There was only one cartridge left in the barrel.", "32. Immediately after the shooting, a number of people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded men to Vratsa Hospital, while Major G. and Sergeant N. remained at the scene.", "33. Mr Angelov and Mr Petkov died on the way to Vratsa. They were pronounced dead on arrival at the hospital.", "34. Mr Angelov's grandmother, Ms Tonkova, gave the following account of the events. Her grandson and Mr Petkov had been in her house when they had noticed a jeep approaching. She had gone outside and seen four men in uniform. They had all entered the yard. One of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She had been in the yard, pleading with the man who had been shooting to stop. However, he had walked towards the back of the house. Then she had heard shooting in the backyard. She had followed and then seen her grandson and Mr Petkov lying in the neighbours' yard with bullet wounds.", "35. According to another neighbour, Mr M.M., all three policemen were shooting. Two of them had fired shots in the air and the third officer – who had been on the west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps more. Then he had seen the military policemen go to the neighbouring yard, where Mr Angelov and Mr Petkov had fallen. That yard belonged to Mr M.M. and his daughter. On seeing his grandson – a young boy – standing there, Mr M.M. had asked Major G. for permission to approach and to take him away. Major G. had pointed his gun at him in a brutal manner and had insulted him, saying: “You damn Gypsies!” (“мамка ви циганска”).", "36. On 19 July 1996 all the officers involved made separate reports on the incident to the Vratsa Military Police Unit. None of them was tested for alcohol.", "37. A criminal investigation into the deaths was opened the same day, and between 4 and 4.30 p.m. a military investigator inspected the scene. In his report he described the scene, including the respective positions of Ms Tonkova's house, the first chain-link fence, and the spent cartridges and bloodstains found there. He indicated that the structure of the first chain-link fence was damaged and the fence had been torn down in one place.", "38. A sketch map was appended to the report. It showed the yard of Ms Tonkova's house and the neighbouring yard where Mr Angelov and Mr Petkov had fallen. The places where spent cartridges had been found were indicated. The sketch map and the report gave only some of the measurements of the yards. The gradient and other characteristics of the terrain and the surrounding area were not described.", "39. Nine spent cartridges were retrieved. One cartridge was found in the street, in front of Ms Tonkova's house (apparently not far from where the jeep had stopped). Four cartridges were discovered in Ms Tonkova's yard, behind the house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the yard of the neighbour (Mr M.M), close to the place where the bloodstains were found. The exact distance between those cartridges and the bloodstains was not given. A ninth cartridge was found subsequently and handed in to the military police by Mr Angelov's uncle. There is no record of where it was found.", "40. The bloodstains were a metre apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance between the bloodstains and the second fence that Mr Angelov and Mr Petkov had apparently been trying to scale when they were shot was not indicated. Samples of the bloodstains were taken by the investigator.", "41. On 21 July 1996, a pathologist carried out an autopsy.\nAccording to autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to the chest”, the direction of the shot having been “from front to back”. The wound was described as follows:\n“There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet with missing tissues, jagged and torn edges turned outwards.”", "42. As regards Mr Angelov, the report found that the cause of death had been “a gunshot wound, which [had] damaged a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated:\n“There is a round wound on the left of the buttocks at a distance of 90 cm from the feet ... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval wound of 2.1 cm with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.”", "43. The report concluded that the injuries had been caused by an automatic rifle fired from a distance.", "44. On 22, 23 and 24 July 1996 the four military police officers, two neighbours (M.M. and K.), the secretary who worked at the town hall, and Mr Angelov's uncle were questioned by the investigator. Mr Petkov's mother was also questioned subsequently.", "45. On 1 August 1996 Major G.'s automatic rifle, a cartridge that had been found in it and the nine spent cartridges found at the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report, the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable.", "46. A report by a forensic expert dated 29 August 1996 found an alcohol content of 0.55 g/l in Mr Petkov's blood and 0.75 g/l in Mr Angelov's blood (under Bulgarian law it is an administrative offence to drive with a blood alcohol content of more than 0.5 g/l).", "47. On 20 September 1996 a forensic examination of the bloodstains found at the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the victims' blood groups.", "48. On 20 January and on 13 February 1997 another neighbour (Mr T.M.) and Ms Hristova (one of the applicants) were questioned. On 26 March 1997 Mr Angelov's grandmother and a neighbour, Z., were questioned.", "49. On 7 January 1997 the families of Mr Angelov and Mr Petkov were given access to the investigation file. They requested that three more witnesses, T.M., Ms Tonkova and Z.H. be heard. Their request was granted. The witnesses were heard by the investigator on 20 January and 26 March 1997. The applicants did not ask for any other evidence to be obtained.", "50. On 31 March 1997 the investigator completed the preliminary investigation and drew up a final report. He noted that Mr Angelov and Mr Petkov had escaped from detention while serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He had aimed at them only after seeing that they were continuing to run away and might escape. He had not sought to injure any vital organs. The investigator therefore concluded that Major G. had acted in accordance with Regulation 45 of the Military Police Regulations and made a recommendation to the Pleven regional prosecutor's office that the investigation should be closed as Major G. had not committed an offence.", "51. On 8 April 1997 the Pleven military prosecutor accepted the investigator's recommendation and closed the preliminary investigation into the deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military Police Regulations. He had warned the two men several times and fired shots in the air. He had shot them only because they had not surrendered, as there had been a danger that they might escape. He had sought to avoid inflicting fatal injuries. No one else had been hurt.", "52. When describing the victims' personal circumstances, including details of their family, education and previous convictions, the prosecutor stated in the order that both men originated from “minority families”, an expression mainly used to designate people from the Roma minority.", "53. By an order of 11 June 1997, the prosecutor of the armed forces prosecutor's office dismissed the applicants' subsequent appeal on the grounds that Mr Angelov and Mr Petkov had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations.", "54. On 19 November 1997 the prosecutor from the investigation review department of the armed forces prosecutor's office dismissed a further appeal on grounds similar to those that had been relied on by the other public prosecutors.", "55. In its country reports of the last few years, the Council of Europe's European Commission against Racism and Intolerance (ECRI) has expressed concern regarding racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia.", "56. The report on the situation of fundamental rights in the European Union and its member States in 2002, prepared by the European Union network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of European Union member States, such as Austria, France, Greece, Ireland, Italy and Portugal.", "57. In its second report on Bulgaria, published in March 2000, ECRI stated, inter alia:\n“Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma/Gypsy community. ... [T]he Human Rights Project documents in its Annual Report for 1998 numerous ... cases of police misconduct towards ... Roma ... It cites as the most common violations: use of excessive physical force during detention for the purposes of extorting evidence; unjustified use of firearms ... and threats to the personal security of individuals who had complained against the police to the competent authorities. ... The Human Rights Project notes ... that the majority of complaints filed by this non-governmental organisation on behalf of Roma victims of police violence have not been followed up by the authorities. ... [V]ictims seem unwilling to come forward with complaints, particularly when they are awaiting court sentences ... [There is apparently also] some unwillingness on the part of the authorities to admit that problems of police misconduct do exist. ...\nECRI [reiterates its recommendation] that an independent body be set up – acting at central and local level – to investigate police, investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished. ...\nECRI is concerned at the persistence of widespread discrimination against members of the Roma/Gypsy community in Bulgaria. ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards Roma/Gypsy communities, often with the silent collusion of local police.”", "58. In its third report on Bulgaria, published in January 2004, ECRI stated, inter alia:\n“[Since ECRI's second report,] there have been no changes in the Criminal Code [to ensure that criminal law provisions fully allow any racist motivation to be taken into account]. ... ECRI recommends that the Bulgarian authorities insert a provision in the Criminal Code expressly stating that racist motivation for any ordinary offence constitute[s] an aggravating circumstance. ...\nECRI is concerned about allegations of instances of excessive use of firearms by the police, which have sometimes led to the death of Roma. ... ECRI strongly recommends that the Bulgarian authorities take steps to restrict the use of firearms by the law enforcement agencies to cases where their use is really necessary. In particular, it urges the Bulgarian authorities to amend the law to this end and ensure that international standards are conformed to in practice in this field.\nECRI is particularly concerned about the findings ... that the proportion of people of Roma origin who state that they have been subjected to physical violence in police stations is three times higher than the proportion of people of Bulgarian origin. ... So far, the Bulgarian authorities have not set up an independent body to investigate ill‑treatment or acts of discrimination committed by members of the police force. ...\nECRI is pleased to learn that a specialised human rights committee was set up in the National Police Department in August 2000 ... Numerous schemes have been launched to provide human rights training for police officers ...\n...\nThe Framework Programme for Equal Integration of Roma in Bulgarian Society is unanimously considered, including by Roma representatives, to be well structured and fairly comprehensive ... There is, however, a unanimous feeling within the Roma community and among non-governmental organisations, that, apart from the few initiatives mentioned in this report, the programme has remained a dead letter ... The view in certain quarters is that the government lacks the political resolve to carry through such a programme ... ECRI is very concerned to learn that, four years after the adoption of the Framework Programme, its implementation is still in its early stages. ...”", "59. Non-governmental organisations, such as Human Rights Project and Amnesty International have reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents." ]

[ 8, 0 ]

[ "4. The applicant was born in 1951 and lives in Vienna. He is a tax accountant by profession.", "5. In December 1989 the applicant, in the course of an inspection of his tax accountant office by tax inspectors (Betriebsprüfung) filed reports (Selbstanzeigen) in which he incriminated himself. He informed the Vienna Tax Authority for the 3rd and 11th District that he had made false statements in his income tax forms when he declared losses resulting from participation in the W. and G. company.", "6. On 11 May 1994 the Salzburg-Land Tax Office (Finanzamt) instituted administrative criminal proceedings on suspicion of tax evasion against the applicant. The applicant's objection was of no avail.", "7. Having held hearings on 2 June, 3 November and 4 December 1995, the Trial Board (Spruchsenat) at the Salzburg-Land Tax Office convicted the applicant on the latter date under Section 34 § 1 of the Tax Offences Act (Finanzstrafgesetz) of negligent tax evasion and sentenced him to a fine of ATS 700,000 (approximately 50,900 euros). It further ordered him to pay the costs of the proceedings. The applicant and the Public Prosecutor (Amtsbeauftragter) filed an appeal.", "8. On 27 June 1996 the Appeals Board (Berufungssenat) at the Salzburg Regional Directorate of Finance (Finanzlandesdirektion), having held a hearing on the same day, granted the Public Prosecutor's appeal and convicted the applicant of intentional tax evasion under Section 33 § 1 of the Tax Offences Act. The sentence remained unchanged.", "9. Subsequently, on 20 September 1996, the applicant filed a complaint with the Administrative Court and requested an oral hearing. He complained inter alia that the Salzburg-Land Tax Office's had lacked jurisdiction in the proceedings at issue and that in the hearing before the Appeal's Board he had not been questioned.", "10. The Salzburg Regional Directorate of Finance filed comments on the applicant's complaint on 12 November 1996.", "11. On 10 December 1996 the Administrative Court granted suspensive effect to the applicant's complaint.", "12. On 22 September 2000 the Administrative Court, without having held a hearing, dismissed the applicant's complaint and ordered him to pay the costs of the proceedings before it. Referring to its case-law, it stated that the Salzburg-Land Tax Office had been competent to conduct the proceedings at issue. Regarding the applicant's complaint that he had not been questioned in the hearing before the Appeal's Board, it noted inter alia that the applicant had not submitted that he had been prevented from presenting his arguments on his own motion in the hearing before the Appeal's Board.\nThe judgment was served on the applicant's counsel on 20 October 2000." ]

[ 3 ]

[ "4. The applicant was born in 1956 and lives in Kostroma.", "5. In 1998, after 23 years of military service, the applicant was dismissed due to a structural reorganisation. He became eligible for being granted social housing and was placed on a waiting list.", "6. In 2001 he sued the Kostroma Town Administration, seeking to obtain social accommodation by the State. He invoked his statutory entitlement to receive a flat within three months of the placement on the waiting list.", "7. On 29 August 2001 the Sverdlovskiy District Court of Kostroma granted his claim and held that the Kostroma Town Administration was to provide the applicant with a flat in accordance with applicable housing standards. The judgment expressly referred to the three-month statutory time-limit for granting the accommodation.", "8. The Kostroma Town Administration requested to stay the enforcement of the judgment for six months. On 10 January 2002 the Sverdlovskiy District Court of Kostroma dismissed their request and held that the time-limit fixed for the enforcement of the judgment was compulsory.", "9. On 10 June 2003 the Kostroma Town Administration issued the applicant with an occupancy voucher in respect of a flat in Kostroma measuring 70.77 m2." ]

[ 3, 9 ]

[ "4. The applicant was born in 1962 and lives in Staryy Oskol, Belgorod Region.", "5. In 1986 the applicant was engaged in emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant’s entitlement to certain State benefits is linked to the category of disability assigned to him as a result of the deterioration in his health arising from that event.", "6. In 1999 the applicant applied for free accommodation from the State. His housing conditions were recognised as substandard and he was placed on a waiting list.", "7. In 2001 the applicant brought proceedings against the Belgorod Regional Administration, contesting its failure to make accommodation available to him within three months of placing him on a waiting list.", "8. On 10 December 2001 the Starooskolskiy Town Court of the Belgorod Region ruled in the applicant’s favour. It referred to the Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion, noted that the applicant's accommodation was substandard and ordered the Belgorod Regional Administration to provide the applicant with a flat “in accordance with the applicable standard conditions and with the order of precedence on the waiting list”. This judgment was not appealed against, and enforcement proceedings were instituted on 6 February 2002.", "9. On 28 June 2002 the bailiffs’ service informed the applicant about a lack of progress in the enforcement proceedings, due to an insufficient number of flats allocated to the waiting list. It advised the applicant to apply to the Starooskolskiy Town Court for replacement of the in‑kind award, conferred by the judgment of 10 December 2001, with an equivalent amount of money.", "10. On 9 October 2002 the bailiffs’ service informed the applicant that it had sought instructions from the Starooskolskiy Town Court concerning enforcement of the judgment of 10 December 2001. In particular, it asked that a time-limit be imposed, within which the authorities were to provide the applicant with a flat.", "11. On 2 December 2002 the Oktyabrskiy District Court of Belgorod examined the applicant’s complaint about the failure of the bailiffs’ service to enforce the judgment of 10 December 2001. It found no fault on the part of the service because the judgment had not included a time-limit for enforcement.", "12. On 31 July 2003 the Presidium of the Belgorod Regional Court conducted supervisory review of the judgment of 10 December 2001. It held that the statutory time-limit of three months was applicable and not amenable to further extensions. It removed the condition that the flat was to be provided in accordance with the order of precedence on the waiting list and upheld the remainder of the judgment.", "13. The applicant was still waiting for accommodation in March 2004.", "14. According to the applicant, on 5 March 2004 a group of five people, including the applicant, began a hunger strike to protest against the poor level of welfare protection provided for the Chernobyl victims. The mayor of Staryy Oskol launched a public call for donations in support of the protestors and collected the amount necessary to provide all of them with housing. The applicant submitted a statement signed by four other protesters in support of his version of events.", "15. According to the Government, on 2 July 2004 the mayor of Staryy Oskol decided, pursuant to the judgment of 10 December 2001, to provide the applicant with a flat measuring 86.39 m², valued at 834,960 Russian roubles.", "16. On 8 July 2004 the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him. He found the flat satisfactory.", "17. No decision appears to have been taken as to the pending enforcement proceedings." ]

[ 3, 9 ]

[ "6. The applicants were born in 1932 and 1958, respectively, and live in Hrgovljani, Croatia.", "7. On 12 February 1992 the applicants' house in Hrgovljani was blown up by unknown perpetrators.", "8. On 9 February 1995 the applicants instituted civil proceedings in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages for their destroyed property from the State.", "9. On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation. The new legislation was to be enacted within six months.", "10. On 5 February 1996 the Zagreb Municipal Court stayed the proceedings pursuant to the above legislation.", "11. On 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”).", "12. On 23 September 2003 the Zagreb Municipal Court resumed the proceedings.", "13. On 5 May 2004 the court dismissed the applicants' claim finding that it no longer had jurisdiction in the matter.", "14. On 18 June 2004 the applicants appealed against the above decision. It appears that the proceedings are still pending before the second instance court." ]

[ 3 ]

[ "15. The applicants are Romanian nationals of Roma origin. They used to live in the village of Hădăreni, in the Mureş district, and are agricultural workers. After the events described below, some applicants returned to live in Hădăreni, while others, who are homeless, live in various parts of the country. Mr Iulius Moldovan is currently living in Spain and Mrs Maria Floarea Zoltan is living in the United Kingdom.", "16. The facts of the case, as submitted by the parties, may be summarised as follows:", "17. On the evening of 20 September 1993 a row broke out in a bar in the centre of the village of Hădăreni (Mureş district). Rapa Lupian Lăcătuş and Aurel Pardalian Lăcătuş, two Roma brothers, along with another Rom, Mircea Zoltan, began to argue with a non-Rom, Cheţan Gligor. The verbal confrontation developed into a physical one which ended with the death of Cheţan Crăciun, who had come to the aid of his father. The three Roma then fled the scene and sought refuge in a neighbour's house.", "18. Soon afterwards, news of the incident spread and a large number of villagers learned of Cheţan Crăciun's death. Enraged, they gathered together to find the Roma. The angry mob arrived at the house where the three were hiding and demanded that they come out. Among the crowd were members of the local police force in Hădăreni, including the Chief of Police Ioan Moga, and Sergeant Alexandru Şuşcă, who had heard of the incident. When the brothers refused to come out, the crowd set fire to the house. As the fire engulfed the house, the brothers tried to flee but were caught by the mob who beat and kicked them with vineyard stakes and clubs. The two brothers died later that evening. Mircea Zoltan remained in the house, where he died in the fire. It appears that the police officers present did nothing to stop these attacks. The applicants alleged that, on the contrary, the police also called for and allowed the destruction of all Roma property in Hădăreni.", "19. Later that evening the villagers decided to vent their anger on all the Roma living in the village and proceeded to burn the Roma homes and property in Hădăreni, including stables, cars and goods. The riots continued until the following day. In all, thirteen Roma houses belonging to the applicants were destroyed.\nThe individual applicants made the following allegations:", "20. The applicant alleged that it was on his property that the three Roma were killed on 20 September 1993. His home and other property were set on fire and destroyed.", "21. The applicant alleged that her house and various personal possessions were destroyed by the fire.", "22. The applicant alleged that, on the evening of 20 September 1993, an angry mob had appeared at her door, entered the house and destroyed all her belongings. The mob had then proceeded to set fire to her home and she had watched as the flames destroyed it. The next day, when she had returned home with her husband and daughter, she had been met by an enraged mob of villagers who had prevented her from entering the house. Police officers Ioan Moga, Alexandru Şuşcă and Florin Nicu Drăghici had taken hold of her, sprayed pepper in her face and then proceeded to beat her badly. Costică Moldovan had witnessed these events. Colonel Drăghici had also fired at Costică Moldovan and his family as they tried to return home to fetch their pigs. The applicant declared that her house had been damaged and that she had lost valuables and other possessions.", "23. The applicant alleged that on the evening of 20 September 1993 she had learned from her eleven-year-old daughter what was happening in Hădăreni. Her daughter had told her that a neighbour had said that the non-Roma villagers wanted to kill all the Gypsies in retaliation for the death of Cheţan Crăciun.", "24. Fearing for the safety of her children, the applicant had taken them to her mother's house. Later that evening, when she returned, she witnessed several people gathered in front of the courtyard throwing stones and pieces of wood and eventually setting her house on fire. As she ran back to her mother's house, she saw three people armed with clubs, urging the mob to set fire to it. Within minutes, her mother's home was in flames.", "25. The following day the applicant had attempted to return to what was left of her home to assess the damage. As she approached her property, she had been threatened verbally and physically by an angry mob of non-Roma villagers and police officers. One villager had threatened her with a shovel and others had violently thrown rocks at her. The villagers, including the police officers present, had prevented her from entering what remained of her home. Fearing for her safety, the applicant and her children had left Hădăreni.", "26. Later that day she had once again attempted to return to her home along with other Roma villagers. This time the applicant had found the road to her house entirely blocked by an even larger crowd of villagers, all of whom had been carrying clubs. Police officers had also been among the crowd. Among the enraged mob of villagers, the applicant had recognised Officer Nicu Drăghici, who was holding a truncheon. A police car had even pursued the applicant and other Roma trying to return to their homes, firing shots at them and shouting at them to leave the village. The applicant alleged that her house had been destroyed and that she had lost valuable goods.", "27. Petru (Gruia) Lăcătuş alleged that his house had been destroyed, as had the three cars he had had in the courtyard.", "28. The applicant stated that, on the night of 20 September 1993, her husband, Mircea Zoltan, and her two brothers, Rapa Lupian Lăcătuş and Aurel Pardalian Lăcătuş, had been brutally murdered in the Hădăreni pogrom. She alleged that one of the thirteen Roma houses set on fire that evening had belonged to her late mother, Cătălina Lăcătuş.", "29. The applicant alleged that his house had been destroyed and that he had lost valuable goods. His wife had been pregnant at the time of the incident and, because she had been beaten and had experienced severe fear, the baby had been born with brain damage.", "30. In the aftermath of the incident the Roma residents of Hădăreni lodged a criminal complaint with the Public Prosecutors' Office. The complainants identified a number of individuals responsible for what had occurred on 20 September 1993. Among those identified were several police officers: Chief of Police Ioan Moga, his assistant Sergeant Alexandru Şuşcă, Colonel Florentin Nicu Draghici, a certain Panzaru from Luduş, and Lieutenant Colonel Constantin Palade, the Mureş County Chief of Police.", "31. Thereafter, an investigation was initiated which identified the offenders who had actively participated in the killing of the Lăcătuş brothers and Mircea Zoltan, and the destruction of Roma houses and other property.", "32. On 21 July 1994 three civilians – P.B., I.B. and N.G. - were remanded in custody. They were charged with extremely serious murder (under Articles 174 and 176 of the Criminal Code) and arson (under Article 217 § 4 of the Criminal Code). However, a few hours later they were released and all warrants for their arrest were set aside by order of the General Prosecutor.", "33. By an order of 31 October 1994, on the basis of ample evidence that suggested police involvement in the incident, the case was sent to the Târgu-Mureş Military Prosecutors' Office, which had jurisdiction to investigate crimes committed by police officers. According to the order of the Public Prosecutors' Office of the Târgu-Mureş Court of Appeal, Lieutenant Colonel Palade had organised a small meeting with non-Roma villagers after the incident, advising them “not to tell anyone what the police had done if they wanted the incident to be forgotten and not have any consequences for themselves.”", "34. By a resolution dated 15 November 1994, the Târgu-Mureş Military Prosecutors' Office ordered an extension of the investigation and the initiation of a criminal investigation in respect of Chief of Police Moga and Sergeant Şuşcă. According to the military prosecutor, the evidence produced so far indicated that these persons had incited the villagers to commit acts of violence against the Lăcătuş brothers and had even directly participated in setting fire to certain houses. On the basis of oral evidence, the prosecutor found that officers Moga and Şuşcă had participated in the events and “repeatedly” incited the villagers to take action against the men barricaded in the house, telling them to “set them on fire, because we cannot do anything to them”. Moreover, he found that Lieutenant Colonel Palade had required the inhabitants of Hădăreni “not to tell anyone anything about the actions of the police officers, and everything will be forgotten and you shall bear no consequences.”", "35. On 10 January 1995, having regard to the involvement of Colonel Palade, the Târgu-Mureş Military Prosecutor declined jurisdiction to investigate the case and referred it to the Bucharest Territorial Military Prosecutors' Office.", "36. On 22 August 1995 Colonel Magistrate M.S., the military prosecutor at the Bucharest Military Court, decided not to open a criminal investigation, stating that the evidence produced in the case had not confirmed the participation of Chief of Police Moga, Lieutenant Colonel Palade or Sergeant Şuşcă in the crimes committed during the riots. As to the statements made by various witnesses confirming the involvement of these police officers, the prosecutor found that one of them had been made by the sister of two of the victims and, given the fact that the officers had punished the victims several times, her evidence was obviously tendentious. The prosecutor found the other oral evidence confused. He concluded that the police officers could not be accused of having committed crimes, “even though one should accept that during the events they had used words such as 'do what you want, I have a family to take care of' or 'they will come out immediately if you set the house on fire'. Moreover, we cannot consider the lack of initiative and the inability of the two policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity.”", "37. In September 1995, the Head of the Bucharest Territorial Military Prosecutors' Office upheld the decision, refusing to open an investigation, and all charges against the police officers were dropped. An appeal lodged by the injured parties was dismissed by the Military Prosecutors' Office of the Supreme Court of Justice.", "38. On 12 August 1997, the Public Prosecutor of the Târgu-Mureş Court of Appeal issued an indictment charging eleven civilians suspected of having committed crimes on 20 September 1993.", "39. Certain testimonies confirmed that the police had promised the villagers involved in the riot that they would help to cover up the entire incident. Several defendants testified that two police cars driving to the scene of the incident that night had ordered, over their loudspeakers, that the house where the three Roma victims were hiding be set on fire.", "40. On 11 November 1997 a criminal trial, in conjunction with a civil case for damages, began against the civilian defendants in the Târgu-Mureş County Court. During these proceedings, the applicants learned of the overwhelming extent of the evidence against the police. Various witnesses testified that police officers had not only been present that evening but had actually instigated the incident and then stood idly by as the two Lăcătuş brothers and Mircea Zoltan were killed and Roma houses destroyed. In this connection, witnesses cited the names of Chief of Police Moga, Colonel Drăghici and Sergeant Şuşcă.", "41. In the light of numerous testimonies implicating additional individuals – both civilians and police officers – the applicants' lawyer asked the court to extend the indictment of 12 August 1997. As a result, the civilian prosecutor sent the relevant military prosecutor the information on which to base proceedings before a military court against the officers concerned.", "42. The applicants Iulius Moldovan and Floarea Zoltan asked the court in writing to extend the criminal charges. According to them, the prosecutor refused to do so.", "43. On 23 June 1998 the Târgu-Mureş County Court severed the civil and the criminal case because the criminal investigation had already lasted four years and the determination of the civil aspect would take even longer.", "44. On 17 July 1998 the Târgu-Mureş County Court delivered its judgment in the criminal case. It noted the following:\n“The village of Hădăreni, belonging to the commune of Cheţani, is situated in the south-west Mureş district on the main road between Târgu-Mureş and Cluj and has a population of 882 inhabitants, of which 641 are Romanians, 145 Hungarians and 123 Roma.\nThe Roma community represents 14% of the total population and the marginal lifestyle of some categories of Roma, especially the ones who settled in the village after 1989, has often generated serious conflicts with the majority of the population.\nDue to their lifestyle and their rejection of the moral values accepted by the rest of the population, the Roma community has marginalised itself, shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society.\nMost of the Roma have no occupation and earn their living by doing odd jobs, stealing and engaging in all kinds of illicit activities. As the old form of common property that gave them equal rights with the other members of the community was terminated, the Roma population were allocated plots of land. However, they did not work the land and continued to steal, to commit acts of violence and to carry out attacks, mainly against private property, which has generated even more rejection than before.\nGroups of Roma have started arguments with the young people in the village, attacked them or stolen their goods and money.\nMoreover, they ostentatiously use insults, profanities and vulgar words in public places. ...\nThe records of the criminal-investigation authorities and of the courts of law in Mureş County disclose that seven criminal cases were registered between 1991 and 1993, having as their object acts of violence ranging from simple blows to murder.\nIn fact, the real number of the crimes committed by the Roma was much higher, but many of them were not judged in court because the injured parties did not file complaints, withdrew them or made peace with the perpetrators, for fear of vindictive threats by the Roma.\nThe community feels that most of the disputes were solved in an unfair, unsatisfactory manner in favour of Roma and this has caused an increase in the number of personal or collective vindictive actions.”", "45. The court went on to establish that, on the evening of 20 September 1993, the Lăcătuş brothers and Mircea Zoltan had been waiting at the village bus station and had quarrelled with Cheţan Gligor about the attempts made by the three Roma to attract the attention of a girl. Answering the Roma's mockery and insults addressed to him and to his cow, Cheţan Gligor started to threaten the Roma with his whip and even hit Pardalian Lăcătuş. A fight followed, during which Cheţan Crăciun, who had intervened to defend his father, was stabbed in the chest by Rapa Lupian Lăcătuş. The Roma ran away, while Cheţan Crăciun was brought to the hospital, where he died about half an hour later. During that time the Roma took refuge in the house of the applicants Lucreţia and Iulius Moldovan, while villagers gathered around the yard of the house. Two police officers, Chief of Police Moga and Sergeant Şuşcă, arrived at the scene of the incident minutes later, having been called by some villagers. The policemen were allegedly under the influence of alcohol. Before and after the arrival of the police, the villagers threw stones, pieces of wood and clods of earth at the house and shouted things like “Set fire to the house! Let them burn like rats!” A villager started to throw flammable materials at the house and was soon followed by others, including children. When the fire spread, two of the Roma men came out of the house. Rapa Lupian Lăcătuş was immediately immobilised by Mr Moga, while Pardalian Lăcătuş managed to run away. Mircea Zoltan was stopped from coming out of the house by a villager and was hit by another's fist and a shovel, which finally led to his dying in the fire. His carbonized body was found the following day in the burned-down house. The autopsy report established that he had died from respiratory failure, 100% carbonized.", "46. To escape the fury of the villagers, Chief of Police Moga took Rapa Lupian Lăcătuş to the cemetery, after trying in vain to enter several courtyards in the village, which were all locked. The court noted that “the policeman [Moga], realising his presence was useless, abandoned his prisoner to the infuriated crowd”. According to the autopsy report, Rapa Lupian Lăcătuş died a violent death from shock and internal bleeding, with multiple traumatic injuries affecting his liver, a hemiperitoneum and peripheral haematoma on 70% of his body.", "47. Pardalian Lăcătuş was caught by the crowd near the cultural centre, where he was beaten to death. The autopsy report found that he had died as a result of direct blows from blunt objects causing eighty-nine lesions on his body (multiple fractures of his arms, ribs and thorax, and multiple traumatic injuries and contusions).", "48. During the trial, all the civilian defendants stated that, in addition to officers Moga and Şuşcă, two other policemen had arrived from the city of Luduş and encouraged the crowd to set fire to the houses. Two police cars had also arrived at Hădăreni, from which it was announced over loudspeakers that only the detached houses of the Gypsies should be set on fire in order not to cause accidents. At a meeting held the next day in the village square, Lieutenant Colonel Palade stated that the case would be covered up and a scapegoat found.", "49. All the accused stated that they had been arrested for the first time in 1994, but only for a few hours or days, after which they had been released in order to allow them to harvest the crops, a reason they found strange, since most of them were not farmers. They also stated that very few questions were put to them and that the prosecutor even tried to put pressure on them. They were not questioned further until 1997, when they were arrested again.", "50. The court further established that the villagers had declared that, on the night in question, the village was to be “purged of the Gypsies”, an intention clearly put into action, and found that,\n“The majority of the population of Hădăreni was directly or indirectly supported by the representatives of the authorities who came to the village and not only did nothing to stop the houses being set on fire, but also surrounded the area with groups of gendarmes.”", "51. The court found that the action was not premeditated, but that all those present had acted jointly, in different ways (assault, murder, fire, destruction, etc.), to reach their declared goal of eliminating the Roma community from the village.", "52. The court held that the preliminary investigation had been inadequate:\n“We deem that the inadequate manner in which the acts and ... procedures related to the investigation were performed reflect a negative attitude ... The same can be noted regarding the delayed submission of the autopsy reports on the victims (Cheţan Crăciun, Lăcătuş Rapa Lupian and Zoltan Mircea died on 21 September 1993 and the forensic reports were drafted in November 1993; mention should be made of the fact that none of the four forensic reports gave specific dates, but only an indication of the month when they were drafted) ... [Moreover,] the electoral meeting organised at the village stadium, attended by politicians, representatives of the police and the law, ... asked the population not to tell the truth and to delay the resolution of the case.”", "53. The court also noted that the prosecution had not agreed to an extension of the criminal investigation or to the initiation of criminal proceedings against “other persons”. Therefore, the court could only rule in respect of those perpetrators prosecuted in accordance with Article 317 of the Code of Criminal Procedure.", "54. The court convicted five civilians of extremely serious murder under Articles 174 and 176 of the Criminal Code and twelve civilians, including the former five, of destroying property, outraging public decency and disturbing public order. Among those convicted of destruction of property and disturbance was V.B., the Deputy Mayor of Hădăreni. The court pronounced prison sentences ranging from one to seven years, and noted that those given terms of less than five years had half the sentence pardoned under Law no. 137/1997. The court justified the sentences as follows:\n“Taking into consideration the characteristics of this particular case, the punishments applied to the defendants might seem too mild compared to the gravity of the crimes. We consider that, as long as persons who contributed to a greater extent to the criminal actions were not prosecuted and were not even the subject of an investigation, although there was enough evidence to prove their guilt, the defendants who were prosecuted should not be held responsible for all the crimes committed, but only for that part for which they are liable.”", "55. On 17 July 1998, the Public Prosecutors' Office appealed against this judgment, asking, inter alia, for heavier sentences. On 15 January 1999, the Târgu-Mureş Court of Appeal convicted a sixth civilian, P.B., of extremely serious murder under Articles 174 and 176 of the Criminal Code, sentencing him to six years' imprisonment. It also increased the sentence under Article 174 in respect of N.G. to six years' imprisonment. However, it reduced the other sentences under Articles 174 and 176: in respect of V.B. and S.I.P. from seven to six years' imprisonment, in respect of V.B.N. and S.F. from five to two years' imprisonment, and in respect of N.B., I.B. and O.V. from three to two years' imprisonment. Finally, it discontinued the criminal proceedings against the Deputy Mayor V.B.", "56. The Court of Appeal also reduced the sentences of those convicted of destruction of property under Article 217 of the Criminal Code.", "57. On 22 November 1999, the Supreme Court of Justice upheld the lower courts' convictions for destruction, but reduced the charges of extremely serious murder to a lesser charge of serious murder with extenuating circumstances for V.B., P.B. and S.I.P., sentencing them to five years' imprisonment. It acquitted P.B. and N.G.", "58. By a decree of 7 June 2000, the President of Romania issued individual pardons to S.I.P. and P.B., convicted of serious murder, whereupon they were released.", "59. On 22 August 1999, following new evidence brought to light in the criminal trial, the applicants lodged an appeal with the Military Prosecutors' Office of the Supreme Court of Justice against the decision of 22 August 1995 not to open an investigation against the police officers involved in the incidents of 20 September 1993.", "60. On 14 March 2000 the Chief Military Prosecutor of the Supreme Court of Justice upheld the military prosecutor at Bucharest Military Court's decision of 22 August 1995.", "61. By decision no. 636 of 19 November 1993, the Romanian Government allocated 25,000,000 Romanian lei (ROL)[1] for the reconstruction of the eighteen houses destroyed by fire on 20 September 1993. The Government decided, moreover, that this amount could also be used as financial assistance for the families affected in order to help them replace items of strict necessity destroyed during the fire. However, only four houses were rebuilt with this money and none of the families received financial assistance.", "62. By a Government decision of 30 November 1993, a commission for the co-ordination of the reconstruction of the houses was created. Members of this commission included the mayor of Cheţani, G.G., and his Deputy, V.B.", "63. In a letter of 30 June 1994 addressed to the Government, the Prefect of Mureş indicated that an additional amount of ROL 53,000,000[2] was needed to rebuild the remaining ten houses.", "64. By decision no. 773 of 25 November 1994, the Government granted an additional sum of ROL 32,000,000[3] in funds, which had been earmarked for natural disasters occurring between March and September 1994. Four other houses were rebuilt. As shown in photographs submitted by the applicants, these constructions were defective, as there appear to be huge gaps between the window frames and the walls, and the roofs only partially cover the houses.", "65. In a letter dated 30 November 1994 addressed to the Prefect of Mureş, Petru Rostaş, the father-in-law of the applicant Otilia Rostaş, requested that her house be rebuilt as a priority because, since the events, she had been living with her four children in a hen-house.", "66. In a letter dated 8 November 1995, Liga Pro Europa, a human-rights association based in Târgu-Mureş, informed the Prefect that six houses had still not been rebuilt, which meant that six families had to spend another winter without a dwelling. Moreover, according to the association, most of the victims had complained about the bad quality of the rebuilt houses and alleged that the money allocated for this purpose had been improperly used.\nIn a letter addressed to the Prefect in 1995, the mayor of Cheţani (of which Hădăreni is a part), G.G., a member of the reconstruction commission, reported that, of the fourteen houses destroyed by the fire, eight had been rebuilt or almost rebuilt. Concerning the remaining six houses, he reported that three of them posed “special problems” based in part on “the behaviour of the three families”, “the seriousness of the acts committed and the attitude of the population of Hădăreni towards these families”. In particular, one of the houses to be rebuilt was on land near the non-Rom victim's family (Cheţan Crăciun), who refused to have Gypsy families living close by. Another problem mentioned by the mayor was the house of the late mother of two of the Roma “criminals” who had died during the 1993 events. It appeared that, after the events, the Lăcătuş family had started living in the city of Luduş, so the mayor had proposed that a house be built for them at a place of their choice.", "67. To date, six houses have not been rebuilt, of which two belonged to the applicants Petru (Dîgăla) Lăcătuş and Maria Floarea Zoltan. According to an expert report submitted by the Government, the damage caused to the houses of Petru (Gruia) Lăcătuş and Moldovan Maria had not been repaired, whereas the houses of Iulius Moldovan and Otilia Rostaş had been rebuilt but required finishing work.", "68. On 2 September 1997 the applicant Iulius Moldovan wrote a letter to the President of Romania, informing him that six houses, including his, had still not been rebuilt. He urged the President to grant the necessary funds for the reconstruction of the houses, since he and his family were living in very difficult conditions in the home of the Rostaş family: fifteen people, including nine children, were living in two rooms and sleeping on the floor, which resulted in the children being continually ill.", "69. The applicants submitted that, in general, following the events of September 1993, they had been forced to live in hen-houses, pigsties, windowless cellars, or in extremely cold and deplorable conditions: sixteen people in one room with no heating; seven people in one room with a mud floor; families sleeping on mud or concrete floors without adequate clothing, heat or blankets; fifteen people in a summer kitchen with a concrete floor (Melenuţa Moldovan), etc. These conditions had lasted for several years and, in some cases, continued to the present day.", "70. As a result, the applicants and their families fell ill. In particular, the applicant Petru (Gruia) Lăcătuş had developed diabetes and begun to lose his eyesight.", "71. Following the decision of 23 June 1998 to sever the civil and criminal proceedings, on 12 January 2001 the Mureş Regional Court delivered its judgment in the civil case. The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents (furniture, etc.), as well as non-pecuniary damages. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of these acts. Basing its decision on an expert report, the court awarded pecuniary damages for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded pecuniary damages in respect of the partial or total destruction of the houses of six Roma, including those of the third and fifth applicants. The court rejected the other applicants' request for pecuniary damages in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same or even higher than the original buildings. It further refused all applicants damages in respect of belongings and furniture, on the ground that they had not submitted documents to confirm the value of their assets and were not registered as taxpayers capable of acquiring such valuable assets. The court stated, inter alia:\n“Mr Iulius Moldovan did not submit documents proving with certainty that he had any belongings. He claimed in particular that he was in the sheep business, from which he drew a substantial income, for instance, that he had a ton of wool in the attic of his house. However, from the information obtained by the court from the local tax office in Cheţani, it appears that the civil party was not registered as having any income. ...\nThe damage suffered because of the destruction of the chattels and furniture has not been substantiated. The civil parties consider that their own statements, the lists of the belongings destroyed submitted to the court and the statements of the other witnesses who are also civil parties should be enough to substantiate their claims. Having regard to the context in which the destruction occurred and to the fact that all civil parties suffered losses, the court will dismiss as obviously insincere the statements made by each civil party in relation to the losses suffered by the other civil parties.\nLast but not least, the type of belongings allegedly destroyed and the quantity of goods allegedly in the possession of each civil party show a much more prosperous situation than that which a family of average income could have. Neither civil party adduced proof of having an income such as to allow them to acquire so many goods. As noted previously, the parties had no income at all. Moreover, the shape of the houses, the materials used for their construction and the number of rooms show an evident lack of financial resources. It should be stressed in this context that only work can be the source of revenue, and not events such as the present one...”", "72. The court finally rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.", "73. The court ordered the villagers convicted in the criminal trial to pay the damages awarded.", "74. Having regard to some procedural errors in the Mureş Regional Court's judgment, the applicants lodged an appeal with the Mureş Court of Appeal.", "75. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş Regional Court: the hearings had been held in the absence of the accused and their lawyers; one of the original applicants, Adrian Moldovan, had not been summoned; the public prosecutor had not been given leave to address the court; a number of expert reports ordered by the court had not been completed, and confusion had been created as to the number and names of the victims and their children. The Court of Appeal concluded that these errors rendered the proceedings null and void. It therefore quashed the judgment of 12 January 2001 and ordered a new trial of the case.", "76. The Mureş Regional Court delivered its judgment in the civil case on 12 May 2003. The court noted that the victims had requested pecuniary damages for the destruction of houses and their contents (furniture, etc.), as well as non-pecuniary damages. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed. As a result of these events, the State had granted some money for the reconstruction of the houses.\nBasing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the following damages to be paid by the civilians found guilty by the criminal court:\n(a) Iulius Moldovan was awarded ROL 130,000,000[4] in pecuniary damages in respect of the destroyed house, to be revised to take account of any devaluation in the national currency. The court further heard evidence from witnesses confirming that various assets belonging to the applicant, including furniture, belongings and the proceeds from the sale of more than 260 sheep, had been destroyed during the fire. However, the court refused to award damages on the ground that it was impossible to assess the loss.\n(b) As regards Otilia Rostaş, the court noted that her house did not appear on the list of the houses (totally or partially) destroyed drawn up by Cheţani Town Hall. The court heard testimony confirming the destruction of part of the roof and of the wooden structure of her house, but noted that there was no evidence to evaluate the damage. Therefore, it rejected the request for pecuniary damages.\n(c) Petru (Gruia) Lăcătuş was awarded ROL 16,000,000[5] in pecuniary damages in respect of the destroyed house. The court noted the applicant's claim that various assets he had owned had been destroyed during the fire – furniture, three cars, jewellery and money – but rejected it as unsubstantiated.\n(d) As regards Melenuţa Moldovan, the court awarded ROL 28,000,000[6] for the destroyed house. The court heard evidence from two witnesses confirming that the applicant had had various belongings which had been destroyed by the fire, but refused to award damages in that respect, as there was no evidence as to their value.\n(e) Maria Moldovan was awarded ROL 600,000[7] for the destroyed house. The court rejected her claim in respect of the destroyed belongings as there was no evidence as to their value.\n(f) Petru (Dîgăla) Lăcătuş was awarded, together with Floarea Maria Zoltan and Monica Simona Lăcătuş, as the brother and sisters of the deceased victims, ROL 60,000,000[8] for the destroyed house, to be revised to take account of any devaluation in the national currency. The court rejected their claim in respect of their destroyed belongings on the ground that the losses had not been substantiated. It also rejected as unsubstantiated the claim for the reimbursement of the money spent on the burial of the victims.\n(g) Floarea Maria Zoltan, the widow of one of the victims who had died burned alive during the riots, also requested a maintenance allowance for her minor child. The court noted that although the applicant claimed that her husband used to be a manufacturer of woollen coats, she had not submitted any evidence as to his income, and therefore decided to take the statutory minimum wage as the basis for the calculation of the allowance, namely, ROL 2,500,000[9]. Moreover, it found that it was impossible to establish how much the applicant's husband used to spend on his child's maintenance, and applied the minimum granted by the Family Code, that is one quarter of the minimum wage, which amounted to ROL 625,000[10]. Finally, the court took into account that the deceased victims had provoked the crimes committed and decided to halve the above-mentioned amount. It therefore awarded ROL 312,500[11] per month in maintenance allowance for the applicant's minor child.\nFinally, the court rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.", "77. On appeal by the persons convicted and the applicants, the Târgu-Mureş Court of Appeal gave judgment on 24 February 2004. The court recalled that, under the combined provisions of the Civil Code and the Codes of Criminal and Civil Procedure, it was bound by the ruling of the criminal court. Referring to recent publications by Romanian authors in the field of civil law and the Court's case of Akdivar v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV), the court found that,\n“By their behaviour, the accused infringed the property rights of the complainants, for which pecuniary damages had already been awarded; however, some of the civil parties should also be awarded damages from a moral point of view. Some of the civil parties were deprived emotionally, as a result of the damage sustained, of the security which they had felt in the destroyed houses, of the comfort they had enjoyed as a result of the facilities of the houses, all these movable and immovable goods being the result of their work, which guaranteed them a normal standard of living, having regard to their personalities ...\nAs shown above, the accused committed the crimes in a state of provocation, which led the court to apply the provisions of Article 73 of the Criminal Code [regarding extenuating circumstances]. For this precise reason, the civil parties enumerated below are entitled to a certain amount of damages, but not the amount requested...”\nThe court awarded the following amounts: ROL 100,000,000[12] to Floarea Maria Zoltan as it found that she had had to leave the village and wander homeless in the country and abroad; ROL 50,000,000[13] to Iulius Moldovan as he had been profoundly affected by the events, had lost his fortune and his health had deteriorated substantially; ROL 30,000,000[14] to Otilia Rostaş as she had suffered psychological and emotional trauma for the same reasons; ROL 20,000,000[15] to Melenuţa Moldovan for the same reasons as Otilia Rostaş; ROL 15,000,000[16] to Maria Moldovan for the psychological trauma suffered as a result of the partial destruction of her house; and ROL 70,000,000[17] to Petru (Dîgăla) Lăcătuş since he had sustained deep emotional damage and felt insecure as a result of the burning of his parents' house. No award was made in respect of Petru (Gruia) Lăcătuş.", "78. The civil parties filed an appeal against this judgment, which was rejected by a final decision of the Court of Cassation, on 25 February 2005." ]

[ 8, 1, 3, 4 ]

[ "9. The case concerns the national authorities' failure to implement the domestic courts' order to shut down three thermal power plants which pollute the environment in the province of Muğla, in south-west Turkey.", "10. The applicants are all lawyers who live and practise in İzmir, a city which is approximately 250 kilometres from the site of the power plants. Relying on Article 56 of the Constitution and section 3(a) of the Environment Act (see paragraphs 46 and 47 below), the applicants argued that it was their constitutional right to live in a healthy and balanced environment, and their duty to ensure the protection of the environment and to prevent environmental pollution.", "11. The Yatağan, Yeniköy and Gökova thermal power plants have been operated for many years by the Ministry of Energy and Natural Resources and the public utility company Türkiye Elektrik Kurumu (“TEAŞ”) in Muğla, in the Aegean region of Turkey. In the course of their operation, the poor-quality coal used by the plants to produce energy has caused pollution and harmed the region's biological diversity.", "12. By petitions of 16 April 1993, 28 April 1993 and 11 February 1994, the applicants called on the Ministries of Health, of the Environment and of Energy and Natural Resources, TEAŞ and the Muğla provincial governor to take action to halt the operation of the Gökova, Yatağan and Yeniköy thermal power plants. They claimed that these three power plants had failed to obtain the requisite licences and that their operation constituted a danger to public health and to the environment.", "13. The above-mentioned administrative authorities did not reply to the applicants' request, which, under section 10(2) of the Administrative Procedure Act (Law no. 2577), amounted to a refusal.", "14. On 16 July 1993, 18 July 1993 and 18 May 1994 the applicants brought three separate actions in the Aydın Administrative Court concerning the Gökova, Yatağan and Yeniköy power plants respectively, against the Ministries of Health, of Energy and Natural Resources and of the Environment, TEAŞ and the Muğla provincial governor's office. They requested that the administrative decision refusing to halt the power plants' operation be set aside. The applicants further asked the court to order an interim measure to suspend the activities of these power plants on the ground that they were causing irreparable harm to nature and to public health. As to their legal capacity to bring the proceedings in question, the applicants relied on Article 56 of the Constitution and sections 3 and 30 of the Environment Act (see paragraphs 46, 47 and 50 below).", "15. The Aydın Administrative Court appointed a panel of experts, composed of three university professors who were experts in forestry, the environment and chemistry respectively, with a view to determining the effects of the three power plants' operation on the environment.", "16. On 16 February 1996 the experts submitted their reports to the court. They concluded that the plants emitted considerable amounts of nitrogen dioxide and sulphur dioxide and were not equipped with the mandatory chimney filters. They found that the power plants constituted a danger to a zone measuring 25-30 kilometres in diameter. Accordingly, they recommended that the Gökova power plant be immediately shut down, that one unit in each of the Yeniköy and Yatağan power plants should cease to operate and that desulphurisation units should be installed in them.", "17. On 20 June 1996 the Aydın Administrative Court issued an interlocutory injunction for suspension of the power plants' operation. It found that TEAŞ had been operating the plants since 1994 under the guise of “test operations”, without having obtained the requisite permits for construction, gas emissions and the discharge of waste water. On the basis of the experts' findings, the court noted that the plants had already caused pollution that was harmful to human health and the environment and that their continued operation could cause irreparable harm to the public. Consequently, it ruled that the administrative authorities' decision refusing to halt the plants' operation had been unlawful.", "18. On 29 August 1996 the Regional Administrative Court in Aydın, an appellate body responsible for examining decisions given by a single judge in the administrative courts, dismissed the defendant authorities' appeal against the injunction of 20 June 1996.\n(a) The case of the Gökova power plant", "19. The applicants alleged before the Administrative Court that the continued operation of the Gökova power plant would lead to environmental disaster. In particular, it would reduce the number of marine fish species, harm forests and agricultural areas and would have an adverse impact on tourism on account of the risk of hazardous emissions. In this connection, they claimed that the authorities had failed to prepare an environmental impact report and to obtain the necessary operating permits.", "20. In its submissions to the Administrative Court, the Ministry of Energy and Natural Resources disputed the applicants' legal capacity to bring the action in question, alleging that they did not have a legal interest to bring such an action as required by section 5(2) of the Administrative Procedure Act (see paragraph 55 below). It further claimed, inter alia, that there was no requirement to obtain an environmental impact report and that the authorities had already applied for the requisite permits. It also noted that the authorities were taking the necessary steps to install a new flue gas desulphurisation system.", "21. In addition to those submissions from the Ministry of Energy and Natural Resources, the Ministries of Health and of the Environment, TEAŞ and the Muğla provincial governor's office claimed that the case ought to be dismissed because the necessary equipment would be installed in the plant to prevent pollution.", "22. On 30 December 1996 the Aydın Administrative Court set aside the defendant authorities' decision to refuse to halt the operation of the Gökova power plant. In its decision, the court first dismissed the objection concerning the applicants' alleged lack of a legal interest to bring an action to halt the plant's operation. Referring to section 2 of the Administrative Procedure Act, the court noted that there was no requirement to claim a violation of a personal interest in cases concerning the protection of the environment or the historical and cultural heritage, or which were closely related to issues of public interest (see paragraph 53 below). It further found that the thermal power plant was being operated as a “test operation” and did not have the requisite permits. In this connection, the court found, inter alia:\n“... Furthermore, in order to determine whether the thermal power plant caused damage to the environment, a survey of the area was conducted by three experts, namely Professor M. Doğan Kantarcı, Professor Ayşen Müzzinoğlu and Professor İlker Kayadeniz. The [aforementioned experts'] report, on which this judgment is based, noted that the Kemerköy (Gökova) thermal power plant consisted of three units, each capable of generating 210 megawatts of electricity. The plant uses poor-quality lignite coal to generate energy. It has no equipment for filtering sulphur dioxide and nitrogen oxide gases discharged through its chimneys ... Each of the three units of the Kemerköy thermal power plant uses 1.4 million tonnes of coal. It is not possible to decrease air pollution by reducing the capacity of a thermal power plant which uses poor-quality coal. It appears that 110.5 million tonnes of coal are stocked on the thermal power plant's premises. Given that the annual amount of coal to be used by the three units is around 4.2 million tonnes, the thermal power plant would need to operate for twenty-six years to use up all the coal. If even one unit of the Kemerköy power plant were to operate, this would have a detrimental effect on the environment. The gas emitted from the chimneys disperses over an area measuring approximately 2,350 kilometres in diameter ... Should three units of the Kemerköy and two units of the Yeniköy thermal power plants be operated, the Datça and Betçe zones of the Reşadiye peninsula would be adversely affected by sulphur dioxide. The delivery of coal to the power plant by ship would also cause marine pollution. [It follows] that the operation of the Kemerköy power plant has a harmful effect not only on the areas in the vicinity but also on distant areas. [Accordingly], in order to remove the sulphur dioxide from the gas discharged through the chimneys, desulphurisation units must be installed. This would remove 95% of the sulphur dioxide.\nOur country's electrical energy needs can never be disregarded. However, the electricity plants in operation, or to be constructed, must meet the requirements of the above-mentioned regulations, so that the public interest is respected. The public interest cannot be said to have been respected if irreparable harm is caused to the environment merely in order to generate electricity.\nIt appears that the requisite measures were not taken prior to the plant's construction and the start of operations. Despite the possibility of minimising the adverse environmental effects of the power plants, which represent a long-term State investment, it is obvious that the necessary steps were not taken or that little was done from the planning stage to the point of commencing operations.\nThe financial cost of installing a flue gas desulphurisation system must not be a deterrent. Discussion of the financial cost of the benefit that would accrue to the population from the measures to be taken by the administration is incompatible with the aim of a social State ...”", "23. Given that the thermal power plant had caused environmental pollution, that no preventive measure had been taken and that the requisite permits for construction, operation, gas emission and the discharge of waste water had not been obtained, the court concluded that the refusal of the applicants' request to halt the plant's operation had been unlawful.\n(b) The case of the Yeniköy power plant", "24. The applicants contended before the Administrative Court that the operation of the Yeniköy power plant without the requisite permits and installations would lead to environmental disaster. They therefore asked the court to set aside the administrative authorities' decision to refuse to halt the plant's operation.", "25. The Ministry of Energy and Natural Resources claimed that the power plant had received the requisite construction permit and that TEAŞ was taking the necessary steps to install flue gas desulphurisation equipment. However, it denied that the power plant was polluting the environment and claimed that closure of the plant would give rise to energy shortages in the Aegean region.", "26. The Ministry of Health submitted that the plaintiffs did not have a legal interest to bring such an action as required by section 5(2) of the Administrative Procedure Act (see paragraph 55 below). It contended, inter alia, that the relevant authorities were taking the necessary steps to prevent the plant from polluting the environment.", "27. The Ministry of the Environment maintained that it did not have authority to issue an operating permit for power plants but was nonetheless required to submit its opinion on such permits. It noted that it had already sent an opinion to the Ministry of Health and to TEAŞ. In its view, no environmental impact report was required in respect of the power plant, since it had been constructed prior to the enactment of the Environment Act.", "28. For its part, TEAŞ asserted that the plaintiffs did not have a legal interest in the action and that the case should therefore be dismissed. It alleged, inter alia, that the power plant had received the requisite permits from the authorities and that it had been equipped with electronic chimney filters. The company further claimed that there was no alternative energy supply, and that the power plant's closure would result in energy shortages in the region.", "29. On 30 December 1996 the Aydın Administrative Court delivered a judgment similar to that in the case of the Gökova thermal power plant, and set aside the administrative authorities' decision to refuse to close the Yeniköy thermal power plant. Relying on the experts' report, the court noted that the Yeniköy plant did not have the necessary operating permits and that it had already polluted the environment. It therefore found that the administrative authorities' decision had been unlawful.\n(c) The case of the Yatağan power plant", "30. The applicants argued before the Administrative Court that the Yatağan power plant had been in operation since 1982 and that the damage it caused to the environment had been observed since 1985. They contended that the defendant authorities had failed to obtain the requisite permits for the power plant's operation. They therefore asked the court to set aside the administrative authorities' decision to refuse to close the plant.", "31. As they had done in the cases of the Gökova and Yeniköy plants, the defendant administrative authorities challenged the applicants' legal interest to bring an action in the Administrative Court for the purpose of shutting down the Yatağan plant. They denied that the plant polluted the environment and claimed that the necessary permits would be obtained and that flue gas desulphurisation equipment would be installed. The administrative authorities also pointed out that there would be a significant energy shortage in the region if the plant's operation were to be halted. They asked the court to dismiss the action.", "32. On 30 December 1996 the Aydın Administrative Court dismissed the defendants' objection concerning the applicants' alleged lack of legal interest and set aside the administrative decision to continue the plant's operation without obtaining the requisite permits. Referring to the experts' report, the court reasoned that the plant was polluting the environment and therefore concluded that the administrative decision to refuse to halt the plant's operation had been unlawful.", "33. By decisions of 3 and 6 June 1998, the Supreme Administrative Court upheld the above-mentioned three judgments of the Aydın Administrative Court.", "34. On 26 April 1999 the Supreme Administrative Court rejected the defendant authorities' requests for rectification.", "35. By virtue of section 28 of the Administrative Procedure Act and of Article 138 § 4 of the Constitution, the administrative authorities are obliged to comply with court decisions and to enforce them within thirty days following service of the decision (see paragraphs 57 and 58 below).", "36. By a decision of 3 September 1996, the Council of Ministers, composed of the Prime Minister and other cabinet ministers, decided that the three thermal power plants should continue to operate, despite the administrative courts' judgments. The Council of Ministers reasoned that closure of the plants would give rise to energy shortages and loss of employment and would thus affect the region's income from tourism. Taking the view that the necessary measures were being taken by the authorities with a view to preventing the plants from polluting the environment, the Council of Ministers decided that the plants' operation should not be halted.", "37. In letters of 6 and 14 September 1996, the applicants asked the defendant administrative authorities to enforce the judgments of the Aydın Administrative Court.", "38. On 11 November 1996 the applicants filed criminal complaints with the offices of the Ankara Chief Public Prosecutor and of the public prosecutors in the jurisdictions in which the plants were situated. They asked the prosecutors to institute criminal proceedings against the members of the Council of Ministers and other relevant administrative authorities for failure to execute the court decisions.", "39. In a letter of 20 November 1996, the Ministry of Energy and Natural Resources informed the applicants that the operation of the three thermal power plants would not be halted. It was noted that the power plants were responsible for 7% of the country's total electricity production and that their contribution to the economy was estimated at around five hundred billion Turkish liras. The Ministry further argued that 4,079 people would lose their jobs and the region's tourist sector would be adversely affected if these plants were to cease to operate. It was further claimed that contracts had already been signed for the installation of new flue gas desulphurisation systems and that the necessary measures were therefore being taken to protect the environment and public health.", "40. On 27 November 1996 the Ankara Chief Public Prosecutor issued a decision not to prosecute the Prime Minister and other ministers, having regard to Article 100 of the Constitution which stipulated that the prosecution of these authorities would require a parliamentary investigation.", "41. On 25 December 1996 the Yatağan Chief Public Prosecutor issued a decision not to prosecute the director of the Yatağan thermal power plant, given that the Aydın Administrative Court's judgment had not been served on him, and that TEAŞ's directors were not responsible for taking action to comply with the court's judgment.", "42. On 12 March 1997 the Milas Chief Public Prosecutor issued a decision not to prosecute the directors of the Yeniköy and Gökova thermal power plants. The Chief Public Prosecutor stated that the directors of the power plants were merely implementing the Council of Ministers' decision of 3 September 1996 and that there were no grounds for considering that they were deliberately refusing to comply with the administrative courts' judgments.", "43. The applicants submitted a copy of nine judgments given by the Yatağan Magistrates' Court in civil matters (sulh hukuk mahkemesi). In these cases, brought against TEAŞ, the plaintiffs, who were farmers living in the vicinity of the Yatağan thermal power plant, alleged that the quality and quantity of their olive and tobacco production had been adversely affected by the poisonous gas and ash emitted by the power plant and that they had therefore suffered pecuniary damage (Files nos. 1998/80, 1998/81, 1999/68, 2000/225, 2000/226, 2000/499, 2001/72, 2001/73, 2001/76; and decisions nos. 1998/108, 1998/113, 1999/339, 2000/164, 2000/183, 2001/59, 2001/75, 2001/78, 2001/79).", "44. The Yatağan Magistrates' Court acceded to the plaintiffs' claims and awarded each of them compensation. Relying on expert reports on the plaintiffs' land, the court found that the hazardous gas emitted by the power plant had caused considerable damage to cultivation in the region, in that olive trees and tobacco plants suffered from incomplete leaf growth and were unable to produce a sufficient yield.", "45. The Court of Cassation upheld all nine judgments of the Yatağan Magistrates' Court." ]

[ 3 ]

[ "6. In February 1995 the applicant was hired as a cook by a private limited company, Air Inn, which ran a restaurant in an Airport. Air Inn had rented the premises from the Civil Aviation Administration (Luftfartsverket), hereinafter called the CAA, which is a public body responsible for airports, air-traffic control and air safety in Sweden. When hired, the applicant was provided with a document giving him access to sensitive areas at the airport.", "7. On 1 July 1996 the Security Protection Act (Säkerhetsskyddslagen 1996:627) and the Security Protection Ordinance (Säkerhetsskyddsförordningen 1996:633) entered into force, on the basis of which, in 1998 Air Inn requested that the CAA run a security check, including a check of registers, on the applicant. The CAA had to request the National Police Board (Rikspolisstyrelsen) to check the registers. Thereafter, the National Police Board had to turn over the case, including the information found, to the Records Board (Registernämnden). The latter decided to communicate to the CAA that the applicant had been convicted of assault twice, in 1979 and 1998, respectively. The Records Board’s decision included the date of the judgments, the case numbers, the name of the district court, the criminal offences of which the applicant had been found guilty and the sentences imposed on him. The judgments, which were public and available at the relevant district court, were not enclosed with the decision. Subsequently, at a meeting with Air Inn and the Director of the Airport, the applicant had an opportunity to comment on the judgments. The applicant maintained that the first conviction concerned a youthful misdemeanour that had occurred more that twenty years earlier and that the last had stemmed from an incident within the applicant’s family at a time when the applicant had been under a great deal of stress due to his stepson’s psychiatric handicap (DAMP - deficit in attention, motor‑function and perception).", "8. By decision of 27 November 1998 addressed to Air Inn, the CAA found the applicant unreliable from a security point of view. Air Inn was accordingly ordered to prevent the applicant from participating in activities requiring personnel to pass a security check, and to turn in his airport access document to the Director of the Airport. The decision could not be appealed against. Air Inn had no opportunities to transfer the applicant to other work locations and he was thus given notice and suspended from work as from 1 February 1999.", "9. Subsequently, on the applicant’s behalf, his trade union, the Hotel and Restaurant Workers’ Union, instituted proceedings against Air Inn before the Labour Court claiming that the dismissal be declared void as being unjustified. By judgment of 16 February 2000, finding that Air Inn had no alternative other than to comply with the CAA’s decision, and that the applicant’s lack of access to the work place amounted to such a legal hindrance that Air Inn could invoke the right to be released from the employment agreement, the Labour Court found against the applicant.", "10. During the proceedings a main issue to be determined was whether the Labour Court had authority to review the decision of the CAA, notably whether the decision was based on legislation contravening the Swedish Instrument of Government (Regeringsformen) or otherwise was unlawful and thus not binding for Air Inn. The Labour Court answered this in the negative, stating inter alia that neither the Security Protection Act nor the Ordinance contained any rules on appeal against such a decision, and that even if the legality of the decision may be challenged elsewhere, formally or on the merits, nevertheless in the case before it the circumstances were such that Air Inn had to comply with the decision." ]

[ 3 ]

[ "8. The applicants, who are husband and wife, were born in 1936 and 1937 respectively and live in Donetsk in the Rostov Region of Russia.", "9. The applicants receive old-age pensions. Under section 120 of the State Pensions Act of 1990, old-age pensions were payable in the month for which they were due. From June to December 1998 and from January to April 1999 the applicants received their pensions, totalling approximately 439 and 355 Russian roubles (RUR) per month, several months in arrears. In particular, the pensions due for June 1998 were paid on 14 August 1998; for July 1998 on 6 November 1998; for August 1998 on 14 December 1998; for September 1998 on 15 January 1999; for October 1998 on 9 February 1999; for November 1998 on 1 March 1999; for December 1998 on 25 March 1999; for January 1999 on 16 April 1999; for February 1999 on 18 June 1999; for March 1999 on 26 July 1999 and for April 1999 on 27 August 1999.", "10. According to the applicants, inflation and devaluation of the Russian rouble during this period meant that pensions paid several months in arrears had lost a significant part of their value by the time they were paid.", "11. According to information obtained by the applicants from the Donetsk Town Department of State Statistics, the month-on-month inflation rate ran at 2.7% in August 1998, 37.3% in September 1998, 4.4% in October 1998, 4.8% in November 1998, 10.2% in December 1998, 8.8% in January 1999, 5.9% in February 1999, 3.4% in March 1999 and 3.8% in April 1999.", "12. According to information from the Central Bank of the Russian Federation, the official exchange rate was approximately 6.2 Russian roubles to the US dollar in the period June - August 1998, 9.3 in September 1998, 15.8 in October and November 1998, 17.9 in December 1998, 20.7 in January 1998, 22.8 in February 1999, 22.9 in March 1999 and 24.2 in April 1999.", "13. In December 1999 the applicants lodged an action with the Donetsk Town Court for damages in respect of the delays in payment of their pensions. In particular, they claimed index-linking of their pensions in line with inflation. The action was lodged against the Pension Fund which was responsible for the financing of pension payments.", "14. On 26 January 2000 the Town Court refused to entertain the action on the ground that it had been lodged against the wrong respondent.", "15. In February 2000 the applicants lodged an equivalent action against the Donetsk Social Security Authority, which was responsible for the calculation of pensions. During those proceedings, the Social Security Authority argued that the proper respondent in the case was the Pension Fund and not the Authority. The Town Court rejected that objection.", "16. On 18 July 2000 the Town Court dismissed the applicants’ action. It confirmed that there had been delays in payment of the pensions but established no fault on the part of the Social Security Authority, which had calculated the pensions and filed requests for their payment in due time. The court found that the pensions had been paid late because the Pension Fund had failed to finance the payments in time. The court also considered that the applicants had failed to substantiate the pecuniary and non-pecuniary damage allegedly sustained as a result of the delays.", "17. On 13 September 2000 the applicants’ appeal was dismissed by the Rostov Regional Court. The appeal court stated that the delays were not the fault of the Social Security Authority because it merely made payments on receipt of funds from the Pension Fund, which had been delayed.", "18. Subsequently, the applicants unsuccessfully tried to have their case re-examined by way of the supervisory review procedure. On 13 April 2001 the Rostov Regional Court refused to re-open the proceedings." ]

[ 9 ]

[ "8. The applicant was born in 1954 and lives in Zagreb.", "9. On 10 July 1991 M.T. and H.T. (“the plaintiffs”) brought an action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the applicant seeking damages for breach of contract.", "10. From 27 November 1991 until 27 January 1992 the plaintiffs were represented by their legal counsel, M.V. and thereafter by his daughter, S.T., who took over her father's law practice.", "11. The plaintiffs, but not M.V., attended the first hearing in the case that was held on 11 December 1991. M.V.'s activity in the proceedings was thus limited to filing one set of submissions with the court on 2 December 1991 in which he responded to the applicant's arguments.", "12. At the next hearing held on 27 January 1992 S.T. replaced her father as the plaintiffs' counsel.", "13. On 28 April 1992 the Municipal Court gave judgment for the plaintiffs. Following an appeal by the applicant, on 9 February 1993 the Zagreb County Court (Okružni sud Zagreb) quashed the first-instance judgment and remitted the case to the Municipal Court.", "14. In the resumed proceedings, on 6 July 1993 the Zagreb Municipal Court again gave judgment for the plaintiffs. The applicant appealed.", "15. On 27 September 1994 the Zagreb County Court reversed the first-instance judgment, only accepting part of the plaintiffs' claim.", "16. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske) in which he argued, inter alia, that he had been unable to present his case properly in the Municipal Court.", "17. On 8 December 1999 the Supreme Court dismissed the applicant's appeal on points of law.", "18. On 28 July 2000 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske).", "19. Following the service of the Supreme Court's decision, on 24 August 2000 S.T. informed the Zagreb Municipal Court that she had ceased to act for the plaintiffs some four years earlier and that the decision should have been served on the plaintiffs directly.", "20. On 18 December 2000 the Constitutional Court dismissed the applicant's complaint. It found that the articles of the Constitution on which the applicant sought to rely did not contain any substantive provisions enshrining human rights or fundamental freedoms.\nJudge M.V. was a member of the panel of five judges which delivered that decision. The panel was presided over by another judge. The applicant became aware of the composition of the panel when he received the Constitutional Court's decision." ]

[ 3 ]

[ "4. The applicant is a Turkish national, who was born in 1961 and he lives in Adana.", "5. On 16 November 1994 F.A. and her son, İ.A., filed a complaint with the gendarmes and submitted that they had received a threatening letter from the PKK. The letter which was written on purple paper and sealed with the symbol of the PKK read: “You have to change your statement concerning our friend or both of you will die.” F.A. and İ.A. stated that they had been summoned to give evidence in connection with an ongoing investigation against certain PKK members. They further maintained that they knew the person who had sent the letter.", "6. Accordingly, the gendarme officers initiated an investigation, which led to the arrest of the applicant.", "7. On 17 November 1994 the applicant was arrested on suspicion of sending threatening letters on behalf of the PKK. Samples of the applicant's handwriting were taken and sent to the laboratory for examination.", "8. The Regional Criminal Police Laboratory compared the handwriting of the applicant to the handwriting on the letter. It concluded that the characteristics of the applicant's handwriting had similarities with the handwriting on the letter.", "9. On 18 November 1994 the applicant gave a statement to the gendarmes and denied all the accusations against him. He submitted that he had no connections with the PKK and that he had not written the letter.", "10. The same day, he was questioned by the Adana public prosecutor. In his statement to the public prosecutor, he mainly repeated his police statement and denied the charges against him.", "11. The applicant was then taken before the Adana Magistrate's Court in Criminal Matters on the same day. He pleaded not guilty before the judge. He denied the allegation that he had carried out activities on behalf of the PKK. He further asserted that his signature which had been used for handwriting analysis had not been taken in accordance with the domestic legislation. After examining the expert report and the applicant's submissions, the court concluded that the sample of the applicant's handwriting which had been used for comparison had not been taken in accordance with the law. It accordingly concluded that there was not sufficient evidence to establish that the applicant had committed the alleged offence and ordered his release.", "12. In an indictment dated 26 December 1994, the public prosecutor attached to the Konya State Security Court initiated criminal proceedings against the applicant. He charged him with being a member of an armed gang under Article 168 § 2 of the Criminal Code. He based himself on the report of the Regional Criminal Police Laboratory which had concluded that the applicant's handwriting had similarities with the handwriting on the threatening letter sent to F.A. and İ.A.", "13. Before the court, the applicant contested the charges against him. He stated that he had no connection with the PKK and that the allegations were baseless.", "14. On 8 June 1995 the court ordered the Forensic Medicine Institute to carry out a handwriting examination.", "15. On 17 July 1995 the Forensic Medicine Institute sent a letter to the court and requested further specimens to make an accurate comparison. In this respect, they required the applicant to write down the text of the letter in small letters, and the text on the envelope in capital letters. The Institute further requested the applicant to submit specimens of his handwriting, which he had written in the past.", "16. After an examination of the above-mentioned samples, the Institute delivered two reports, dated 22 January 1996 and 22 January 1997. It was established that the characteristics of the applicant's handwriting had similarities with the handwriting on the letter and that the letter was written by the applicant.", "17. The Konya State Security Court held twenty-six hearings, the last on the 28th April 1997.", "18. On 16 May 1997 the case was transferred to the Adana State Security Court. Between this date and 14 October 1997 the court held seven hearings.", "19. In his final observations on the merits, the public prosecutor changed the accusation against the applicant and accused him of aiding an armed gang under Article 169 of the Criminal Code.", "20. In his final defence submissions, the applicant denied the allegations under Article 169 of the Criminal Code and stated that he had not written the letter and that he had no connection with the PKK. He further challenged the findings of the experts' reports.", "21. On 14 October 1997 the Adana State Security Court, which was composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to three years and nine months' imprisonment pursuant to Article 169 of the Criminal Code. The applicant was further debarred from public service for three years. In its judgment, the court found it established that the applicant had sent a threatening letter on behalf of the PKK to F.A. and İ.A. who were to give statements against certain PKK members in connection with another criminal case. The court based itself on expert reports which had concluded that the letter was written by the applicant.", "22. After holding a hearing, on 30 June 1999 the Court of Cassation dismissed the applicant's appeal." ]

[ 3 ]

[ "7. The applicant was born in 1956 and lives in Durham.", "8. Between 1987 and 1997, the applicant lived in a stable relationship with Miss D. They never married.", "9. On 18 June 1991, Miss D. had a daughter. The applicant was registered as father on the birth certificate.", "10. In October 1997, the applicant and Miss D. separated. On 29 June 1998, they entered into a Deed of Separation by which the applicant undertook to pay weekly maintenance of 25 pounds sterling (GBP) for his daughter. In the 1998-1999 tax year, he paid GBP 1,300 under the Deed. The sum increased over time in accordance with the applicant’s increase in earnings. Since April 2002, the applicant has made weekly maintenance payments of GBP 35.", "11. For the year of assessment 1997-1998, the applicant was granted relief on his self-assessment tax return for the maintenance payments made under the Deed. The Government state that this was an error by the Inland Revenue. In 1998-1999, the applicant put in a further claim to deduct these maintenance payments. This would have reduced his income tax liability by GBP 195.", "12. By letter dated 21 December 2000, the Inland Revenue refused the claim for tax relief in respect of the maintenance payments: “because you were never married to your daughter’s mother.”", "13. The applicant appealed against the refusal to a tax tribunal, namely the General Commissioners for the Division of Durham, invoking the provisions of the Convention.", "14. A hearing took place on 11 July 2002. The applicant was unrepresented. On the morning of the hearing, counsel for the Inland Revenue presented him with a large file of the authorities on which the Inland Revenue sought to rely.", "15. On 15 August 2002, the General Commissioners rejected his appeal, primarily on the ground that the Human Rights Act 1998 did not apply to the case as it had only come into force on 2 October 2000 after the tax year in question.", "16. Miss D. married during the 1999-2000 tax year, on 24 July 1999." ]

[ 8, 9 ]

[ "4. The applicant was born in 1940 and lives in Izmir.", "5. On 6 February 1998 the General Directorate of National Airports expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot of land and the relevant amount was paid to her when the expropriation took place.", "6. Following the applicant's request for increased compensation, on 29 April 1999 the Antalya Civil Court of First-instance awarded her additional compensation plus interest at the statutory rate.", "7. On 20 October 1998 the Court of Cassation quashed the judgment of the First-instance court.", "8. On 18 April 2000 the Antalya Civil Court of First-instance awarded the applicant an additional compensation of 3,400,000,000 Turkish liras (TRL) plus an interest at the statutory rate applicable at the date of the court's decision.", "9. On 27 June 2000 the Court of Cassation upheld the judgment of the Antalya Civil Court of First-instance.", "10. On 26 October 2000 the Court of Cassation rejected the General Directorate of National Airports' request for rectification.", "11. On 7 December 2000 the General Directorate of National Airports paid the amount of TRL 8,138,266,000 to the applicant." ]

[ 9 ]

[ "4. The applicant was born in 1942 and lives in Moscow.", "5. In June 2001 the applicant was advised by the Housing Policy Department of the North-Eastern Administrative District Council that the building in which she owned a flat had been scheduled for demolition within the framework of a city-wide programme for reconstruction of Soviet-era housing. The applicant was offered a substitute flat in a remote area of Yuzhnoye Butovo. After the applicant had rejected the offer, the Council sued her for eviction and resettlement.", "6. On 27 September 2001 the Babushkinskiy District Court of Moscow found for the Council. It ordered the applicant's eviction from her old flat and transferred her title in it to the Council's account. It also held that the new flat in Yuzhnoye Butovo should be transferred into the applicant's ownership. On 6 December 2001 the Moscow City Court upheld the judgment of 27 September 2001.", "7. On 24 January 2002 enforcement proceedings were opened. On 2 April 2002 bailiffs relocated the applicant into the new flat.", "8. The applicant asked the court to clarify the judgment of 27 September 2001. She submitted that title in the new flat had not been transferred to her because the local council had asked her to pay for additional living surface and to advance the registration fee.", "9. On 26 August 2002 the Babushkinskiy District Court delivered a procedural order (определение). It interpreted Article 49.3 of the Housing Code (see below) in the sense that, where eviction was required because of demolition of a building, registration fees were to be borne by the party who sought eviction, that is the North-Eastern District Council.", "10. On 10 April 2003 a court bailiff requested the Municipal Housing Department of the North-Eastern Administrative District Council to report why the judgment of 27 September 2001, as clarified on 26 August 2002, remained unenforced in the part concerning the transfer of title to the applicant.", "11. On 7 May 2003 the Municipal Housing Department responded to the bailiff that the judgment had not imposed the obligation to transfer title on the Department and that it was not competent to act on behalf of the North-Eastern Administrative District Council.", "12. According to the Government, on 4 December 2003 the Presidium of the Moscow City Court quashed, by way of supervisory-review proceedings, the procedural order of 26 August 2002 and remitted the matter for a fresh examination. On 20 May 2004 the Babushkinskiy District Court refused the applicant's request for a clarification of the judgment of 27 September 2001. Copies of these decisions were not made available to the Court." ]

[ 3, 9 ]

[ "8. In a decision of 27 November 1989 the Labour‑Expert Medical Commission (“the LEMC” – see paragraph 19 below) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he qualified for second-degree disability. From that point on the applicant was undergoing biannual medical examinations at the LEMC, and each time his diagnosis and degree of disability were confirmed.", "9. Apparently due to a deterioration of the applicant's health, in a decision of 9 December 1997 the competent LEMC revised his disability to first‑degree, without the need for another person's assistance. Later, on 21 May 1998, another LEMC decided that the applicant qualified for first‑degree disability in need of another person's assistance.", "10. The chief expert at the Central Labour‑Expert Medical Commission (“the CLEMC” – see paragraph 19 below) at the Ministry of Health appealed against the latter decision. On 18 June 1998 the CLEMC overturned the LEMC's decisions of 9 December 1997 and 21 May 1998 and the applicant's disability status was set back to second‑degree.", "11. The applicant lodged an appeal against this decision with the Supreme Administrative Court.", "12. On 6 October 1998 a three‑member panel of the court declared the applicant's appeal inadmissible. It held that the appealed decision was not subject to judicial review, in accordance with section 23(c) of the Implementing Regulations of the Labour Code of 1951, section 29a of Regulation no. 36 of the Minister of Health, and section 11(2) of the Implementing Regulations of the Pensions Act (see paragraph 22 below).", "13. The applicant appealed to a five‑member panel of the Supreme Administrative Court, arguing that the refusal of the three-member panel to examine the appeal was contrary to Article 120 § 2 of the Constitution and Article 6 of the Convention. He submitted that the CLEMC's determination directly affected the amount of disability pension that was allotted to him.", "14. The five‑member panel upheld the three-member panel's decision in a final decision of 1 March 1999, holding that under section 23(c) of the Implementing Regulations of the Labour Code of 1951 the CLEMC's decisions were final and not subject to judicial review." ]

[ 3 ]

[ "9. The applicant was born in 1956 and lives in the village of Zhdimir in the Oryol Region of Russia.", "10. On 8 July 2000 the applicant was arrested and detained on suspicion of having committed theft of aluminium wire. He was placed in a cell intended for the detention of administrative offenders (“KAZ”) at the Znamenskiy district police station in the village of Znamenskoye.", "11. On 9 July 2000 the applicant lodged a complaint with an investigator of the Znamenskiy District Police Department of the Oryol Region, seeking to have the lawfulness of his arrest and detention challenged before the Znamenskiy District Court of the Oryol Region and requesting that he be released. The complaint was never sent to the court.", "12. On 11 July 2000 the applicant was charged with theft. On the same day an order for his pre-trial detention was issued by the investigator and confirmed by the prosecutor of the Znamenskiy District of the Oryol Region.", "13. On 13 July 2000 the applicant was transferred to detention facility no. 1 (Investigatory Isolation Ward no. 1) in the town of Oryol.", "14. On 27 July and 9 August 2000 the applicant again complained about the unlawfulness of his arrest and detention, this time to the Sovetskiy District Court of Oryol. The complaints reached the court on 7 and 16 August 2000 respectively.", "15. On 17 August 2000 the Sovetskiy District Court asked to be sent the case file for examination and scheduled a hearing for 23 August 2000. The hearing was not held, since the case file had not been communicated and the applicant had not been brought to court.", "16. On 22 August 2000 the applicant's counsel wrote to the prosecutor of the Znamenskiy District of the Oryol Region, complaining about the investigator's failure to transfer the applicant's complaint of 9 July 2000, alleging unlawful detention, to a court. The prosecutor did not react.", "17. On 5 September 2000 the Sovetskiy District Court held a hearing. The court found that the applicant's arrest and detention were unlawful and ordered that he be released directly from the courtroom.", "18. On 18 December 2001 the Khotynetskiy District Court of the Oryol Region remitted the criminal case against the applicant on a charge of theft to the public prosecutor of the Znamenskiy District of the Oryol Region for further investigation.", "19. By a decision of 12 September 2003 the Znamenskiy District Court of the Oryol Region discontinued criminal proceedings in view of the fact that the prosecution service had dropped the charges against the applicant.", "20. The applicant brought proceedings for non-pecuniary damage caused as a result of his detention.", "21. On 23 April 2004 the Zheleznodorozhniy District Court of Oryol held:\n“...the court has come to the conclusion that the plaintiff Rytsarev was unlawfully held in custody during the preliminary investigation for a total of over 56 days..., which caused him moral and physical suffering. Furthermore, with regard to compensation for non-pecuniary damage, the court takes into account that, while detained in the KAZ of the Znamenskiy District of Oryol Region from 8 July to 12 July 2000 inclusive, Rytsarev was not given food since, according to the report for the period from 6 to 15 July 2000 by the public catering enterprise “Znamenskoye”, which supplies meals for persons detained in the Znamenskiy district police department's KAZ, food was not delivered to the district police department from 6 to 13 July 2000... In that connection, the court cannot account of two applications from the head of the district police department ... requesting two meals for detainees, since one is undated and the other is dated 11 July 2000, in other words four days after Rytsarev was detained, and they do not indicate for whom the meals were ordered... Equally, it follows from the application by ... Rytsarev's brother ... that food parcels ... [for Rytsarev] were not accepted from him or other relatives [by the Znamenskiy district police department's KAZ]. Only water and tea were accepted...”", "22. The court awarded the applicant 30,000 Russian roubles (RUR) for non‑pecuniary damage. The judgment came into force on 2 June 2004.", "23. According to the Government, the sum awarded was paid to the applicant on 25 October 2004 in execution of the judgment. This was not denied by the applicant.", "24. According to the applicant, he was given no water or food during his detention in the Znamenskiy district police station's KAZ from 8 to 12 July 2000 inclusive. His relatives were allowed to pass him only water and tea in two 1.5 l bottles on 9 July 2000. He was not taken out for exercise or permitted to go to a lavatory, which was located outside the building, as frequently as he needed.", "25. Records of the applicant's questioning on 9 July 2000 contain a statement by him to the effect that he had not eaten anything since the previous day and had not been given water. Similarly, records of his questioning on 12 July 2000 contain statements that he had not been given anything to eat and drink, that he had been brought water by his brothers and that the investigator had offered to give him food in exchange for a guilty plea.", "26. The applicant's complaint of 22 August 2000 about the conditions of his detention was dismissed on 23 August 2000 as ill‑founded by the Znamenskiy District prosecutor's office. However, the prosecutor noted that there had been no courtyard suitable for detainees' exercise on account of repair work.", "27. In their observations of 3 October 2003 the Government submitted that daily meals had been served to detainees at lunchtime by the only catering enterprise in the village. The detainees had been served only tea for breakfast and dinner. Food from relatives was accepted without restrictions. According to police officers from the Znamenskiy district police station, the applicant refused meals provided by the police. However he received daily food parcels from his relatives, without restrictions. There were no limitations on drinking water. He did not complain about the shortage of water or food. Thus, when questioned by the district prosecutor on 11 July 2000 he made no complaints about his detention conditions. He asked only that a doctor be called since he felt unwell, and that request was granted. The applicant was regularly taken out to a lavatory. He was not tortured and no degrading acts were performed against him." ]

[ 2 ]

[ "8. On 25 October 1994 a warehouseman found 5.684 kg of cocaine hidden in a consignment of green papaya fruits from Brazil, ordered by the applicant. The discovery was reported to the police, who on the same day interviewed the applicant. He denied having any knowledge of the cocaine and explained that he had ordered the fruits because he contemplated developing a health product made from the seeds.", "9. On 13 December 1994 at Copenhagen Airport when the applicant was about to emigrate to England he was arrested and charged with drug trafficking.", "10. On 14 December 1994 the City Court in Copenhagen (Københavns Byret) decided with reference to section 762, subsection 1 (iii) and section 770a of the Administration of Justice Act (Retsplejeloven) that the applicant be detained on remand and in solitary confinement. The time limit was fixed at 28 December 1994 with regard to the solitary confinement and at 10 January 1995 as concerns the pre-trial detention. The City Court referred notably to the facts that a person, PL, whom the applicant had known as one of his acquaintances for just under six months had been arrested in the same case, that PL had picked up a load of papaya fruits shortly after the applicant's consignment of papaya fruits had been delivered to him, that co‑offenders were assumed still to be at large, that further investigation was required in the case, and that the applicant had taken up residence in London after the commencement of the case.", "11. On appeal to the High Court of Eastern Denmark, the decision was upheld on 17 December 1994 on the grounds stated by the City Court.", "12. During a police interview on 21 December 1994 the applicant stated that in October 1994 he had been contacted by a Brazilian papaya fruit farmer, called RS, in search of a business partner in Denmark. RS had found the applicant via a friend, RB, whom the applicant knew from the USA. Accordingly, the applicant had contacted PL in order to obtain his assistance with the importation.", "13. On 28 December 1994 the City Court extended the solitary confinement until 10 January 1995. It appears from the court record that the applicant's counsel had confirmed in writing that the applicant had consented to this extension without appearing in court.", "14. The detention on remand in solitary confinement was prolonged by the City Court on 10 January 1995, upheld on appeal on 16 January 1995 by the High Court, which found among other things that no reasonable explanation of the applicant's importation of papaya fruits had been brought to light, and that the applicant's importation of the fruits seemed to constitute the link between PL and the cocaine.", "15. The applicant's pre-trial detention in solitary confinement was prolonged anew by the City Court on 7 February and 7 March 1995. The applicant appealed against the latter decision to the High Court, and submitted in this connection his diary, which contained notes as to RS and RB on the dates 11 and 14 October 1994. The applicant explained that RS and RB had been supposed to come to Denmark on 14 October 1994, but that they had never showed up. On 24 March 1995 the High Court confirmed the City Court's decision of 7 March 1995 on the following grounds:\n“...Despite the new information in [the applicant's] diary book notes, his importation of papaya fruits is still found to constitute the link between [PL], also charged, and the discovery of the cocaine. This is supported by the telephone call made by [the applicant] on 24 October 1994 [to PL]. Therefore, the reasons for continued detention on remand under Section 762, Subsection 1 (i) and (iii), and for continued solitary confinement are still justified as stated in the City Court order of 7 March 1995.”", "16. The pre-trial detention in solitary confinement was further extended as follows; by the City Court on 4 April 1995, upheld on appeal by the High Court on 20 April 1995; by the City Court on 25 April 1995, upheld on appeal by the High Court on 11 May 1995; by the City Court on 30 May 1995; on 27 June; 7 July; 25 July; 22 August; 19 September 1995.", "17. PL admitted to cocaine smuggling on 12 September 1995. In addition, he stated that the applicant had participated, but under the belief that the smuggling concerned diamonds. Having been confronted with this statement, during an interview with the police on 26 September 1995 the applicant explained that he and PL had actually planned to smuggle diamonds in the papaya fruits. After the papaya fruits had been delivered on 24 October 1994, PL had informed the applicant that the diamonds had arrived safely and that PL had sold them for a profit amounting to 500,000 Danish kroner (DKK). When the applicant had been confronted by the police and the press with the discovery of the cocaine, he had panicked and decided to emigrate to England. The applicant admitted that his previous explanation about RS and RB, and the notes in his diary had been fabricated, and made up by him and PL before their arrest as a “cover story”.", "18. On 3 October and 17 October 1995, the City Court upheld the applicant's pre‑trial detention in solitary confinement on the basis of submitted letters containing the applicant's and his counsel's consent. At a court hearing before the City Court on 31 October 1995, the applicant and counsel were present and objected to the continued confinement. The City Court decided as follows:\n“...the court finds it necessary under section 770 a of the Administration Act to maintain the solitary confinement in view of the prosecutor's information on the divergences between particular [the applicant's] and the detained PL's statements as to whether the two persons had had discussions in relation to the smuggling of cocaine in connection with the agreement between them on smuggling from Brazil. Despite the duration of the pre‑trial detention, the court finds that the solitary confinement must be maintained at least until the examination in court has been carried out, and it should be noted that the examination has been fixed for 24 and 28 November 1995.”\nOn appeal, on 2 November 1995 the decision was upheld by the High Court", "19. At the court hearing before the City Court on 28 November 1995 the applicant confirmed the explanation he had given on 26 September 1995 and the City Court lifted the solitary confinement. Nevertheless, the applicant remained voluntarily in solitary confinement until 12 December 1995.", "20. During the period when the applicant was detained in solitary confinement he was placed in the Western Prison (Vestre Fængsel). The cells there have an area of about eight square metres. They are furnished with a bed, a table, a chair, a lamp, a bookcase, a cupboard, a radio, a television set, a refrigerator/freezing compartment, a duvet, a pillow, a mirror, a sink, bed linen, a tea-towel and a towel. There is a window in each cell placed in a high of approximately 3 meters above the floor. The flooring in the cell is terrazzo/cement.", "21. Being detained on remand in solitary confinement in the Western Prison, the applicant was totally excluded from association with other inmates. He followed the daily routine in the so-called segregation wing and could use the fitness room, borrow various games, occupy himself with various hobby activities such as painting and borrow books once a week, buy goods in the shop, including newspapers, and receive tuition, including school tuition. He was allowed to two daily exercise periods (morning and afternoon), each lasting half an hour, but it was up to him to decide whether to make use of the outdoor exercise option.", "22. Visits from the applicant's family and friends were only allowed under supervision. The applicant's mother visited the applicant twice in the period from 14 December 1994 until 10 January 1995. Thereafter, during a shorter period, the applicant refused to receive visitors. From 7 March 1995 she visited him every week for approximately one hour. It appears that in the beginning friends came along with her, up to five persons at a time, but that the police limited the visits to two persons at a time in order to be able to check that the conversations did not concern the charge against the applicant. Since February 1995, the applicant's father along with a cousin visited the applicant every two weeks.", "23. The applicant's counsel came to visit the applicant approximately once a week. It appears from the case-file that counsel sent herbal medicine to the applicant a couple of times. Also, it appears that on one occasion the prison staff asked the prison management to consider limiting the visits from counsel because these seemed to be more frequent and last a lot longer than usual counsel visits. The prison management discussed the matter with counsel, but no restrictions were imposed.", "24. Moreover, during the segregation period, the applicant was questioned by police officers investigating the case, notably by one named JL. Also, on several occasions the applicant was brought before the court in connection with extensions of the time limits for the pre-trial detention and solitary confinement and court hearings. On these occasions, he had contact with police officers as well as his counsel, the judge and the public prosecutor.", "25. The applicant had contact with the prison staff on numerous occasions every day, including when food was dispensed, when food boxes were collected afterwards, when he opted for outdoor exercise, when he bathed and when he chose to use the fitness room.", "26. In the period from March until December 1995, the applicant received roughly fifty lessons in English and French from one of the prison teachers, thus once a week and for approximately 1 hour and 15 minutes.", "27. In addition, the applicant visited the prison chaplain once a week for about one hour in the latter's office.", "28. Furthermore, during the period from 14 December 1994 until 28 November 1995, the applicant had contact twelve times with a welfare worker, it appears for the last time, on 11 December 1995, when the applicant stated that being in solitary confinement (voluntarily since 28 November 1995) was getting him down so much that he would probably choose to leave it. Furthermore, he stated that he had no immediate problems with which the social worker or the Prison and Probation service (Kriminalforsorgen) could assist him. Instead, he talked about the problems that the case had caused him, including the fact that he felt betrayed by people whom he thought were good friends.", "29. In the same period, the applicant was treated by a dentist a couple of times and by a physiotherapist thirty-two times.", "30. During the applicant's detention on remand in solitary confinement from 13 December 1994 until 28 November 1995 medical inspections were carried out twenty-seven times by a doctor.", "31. From the prison medical journals submitted it appeared, among other things, that the applicant from 13 December 1994, the day of his arrest, at 8 p.m. until 14 December 1994 12.30 p.m. was placed in an observation cell, as he had stated that he suffered from claustrophobia and had said that he was contemplating suicide. During this period he was observed thirty-six times by the prison staff and twice by nurses. He was given a sleeping pill for that night (and for the following nights during a week).", "32. On 11 January 1995 a doctor attended the applicant and refused to prolong the prescription for sleeping pills. The doctor established that the applicant had no complaints of claustrophobia and advised him to do “physical exercise” to achieve natural fatigue instead of chemical, tablet-induced sleep.", "33. At the beginning of/mid January 1995 the applicant went on a hunger strike, although he drank fruit juices. In this connection the applicant was monitored every day on 16, 17 and 18 January 1995 by nurses and doctors.", "34. On 17 January 1995 the applicant told a doctor that he was determined to starve himself to death. The prison doctor informed him of the relevant Danish regulation, which prescribes respect for the desires of mentally competent persons, even the desire to die. The doctor found the applicant mentally capable and not abnormal for the purposes of taking this decision. The doctor received and accepted the applicant's refusal of medical intervention (artificial feeding at any future potentially fatal weakening of the applicant's health). The doctor furthermore found the applicant physically normal and without any acetone smell (usual occurrence at fasts). The doctor prescribed him a sleeping pill for that night. According to the prison rules, the doctor also requested a psychiatric assessment of the applicant – a requirement when inmates go on hunger strike even if no signs of mental disorder are found.", "35. The following day, on 18 January 1995 the applicant informed a doctor that he was drinking but that he expected to be dead within three weeks. The doctor found the applicant normal and without any signs of dehydration. As to the applicant's mental health, the doctor waited for the psychiatric examination, which was scheduled to take place on the same day. The latter concluded:\n“Visit to a thirty-year-old male, charged with Article 191[of the Penal Code (straffeloven)], of which, according to him, he is innocent. He is now carrying out a hunger strike, as a protest against his perception that the press and others have convicted him in advance, and he is fully aware of the consequences of such an act and is at present writing farewell letters, his will, etc. Diagnosis: situational reaction.”", "36. Due to the applicant's decision to continue his hunger strike, the prison doctor ordered that twice a week he be checked by a doctor, be weighed and have his urine checked for ketonic substances which may occur during fasting. The applicant decided to start eating again at the end of January.", "37. Once, in March 1995 an EEG scanning was carried out, notably to check the applicant for epilepsy.", "38. On 1 May 1995 a doctor attended the applicant because he complained of continuous pain in his lower back. The doctor ordered that he be given an extra mattress and referred him to a physiotherapist.", "39. On 12 December 1995 the applicant decided to leave the solitary confinement he had volunteered for since 28 November 1995. Moreover, having volunteered for kitchen duty, he was attended to by a doctor, as the chief consultant of the Copenhagen Prisons had stated that inmates with indications of for instance mental disorders or significantly deviating conduct were not accepted for kitchen duty.", "40. During the applicant's detention on remand in solitary confinement from 13 December 1994 until 28 November 1995 medical inspections were carried out forty-three times by a nurse.", "41. After the solitary confinement had been lifted on 28 November 1995, the applicant's detention on remand was prolonged several times by the courts until 14 May 1996, when the High Court sitting with a jury acquitted the applicant of the drug offences. However, on the basis of the applicant's confession he was convicted of aggravated tax fraud and sentenced to 8 months' imprisonment and an additional fine of DKK 875,000 (or in the alternative 60 days' imprisonment).", "42. By a City Court judgment of 21 June 1996, a co-accused, MP, who in the meantime had been extradited from the USA, and PL were convicted of the cocaine smuggling.", "43. On 12 July 1996, the applicant claimed compensation for pecuniary and non-pecuniary damage pursuant to Section 1018a of the Administration of Justice Act for having been detained from 14 December 1994 until 14 May 1996. The total claim for compensation amounted to more than DKK 19 million, thereof DKK 10 million for injury to his feelings and reputation. In support of the latter counsel referred to the unusually long, unjustified pre-trial detention, the massive press attention given to the case, to the fact that the applicant was a well-known person and that the case therefore had been unusually and extraordinarily insulting to him. The prosecution first considered the claim, and then in June 1997 it was brought before the City Court.", "44. In a letter of 10 July 1997 counsel stated that she also wished to invoke Article 3 of the Convention and for this purpose she requested that a report be procured from the Legal‑Psychiatric Clinic (Retspsykiatrisk Klinik) concerning the applicant's mental state of health during and after his detention on remand. On 18 September 1997 the City Court complied with his request, and the report was submitted on 19 January 1998 stating, inter alia:\n“The subject is a now 32-year-old male, who had never exhibited any signs of a mental disorder until just over three years ago. From his early youth and until 1992 he was a successful competition swimmer. As from 1990 he was self-employed in a business which he ran successfully until his arrest in December 1994. Until his arrest he seems always to have functioned well. He has never abused any drugs or alcohol.\n During this examination he was found of normal to good intelligence. There is no basis for assuming that he suffers from epilepsy or any other organic brain disease. [The applicant] states having delusions of persecution and that he suffers from megalomania, and he appears distrustful and on guard. His perception of reality is lacking to such an extent that he can be characterised as psychotic. A final clarification of his illness cannot be made, but most likely he suffers from a paranoid psychosis. Since his release, probably due to his psychotic condition, the [applicant's] way of living has been affected by a considerable and vagrant travel activity, which to some degree has been characterised by a lacking capability to maintain human contacts, to make bond or to root himself in localities.\nOn the basis of the information available it must be assumed that [the applicant's] mental suffering coincided with the period when he was detained on remand in solitary confinement. Moreover, taking into account [the applicant's] distinct personality and mental vulnerability, it is probable that the out-break and the progress of [his] illness are causally linked to the fact that he was solitary confined during a longer period”.", "45. In addition, statements of 30 March and 4 May 1998 from the Medico‑Legal Council (Retslægerådet) were submitted before the City Court. In the former it was stated inter alia:\n“... the Medico-Legal Council states that until about three years ago [the applicant] did not seem to exhibit any signs of a mental disorder or personality disorder. He is of good intelligence.\nDuring his prolonged pre-trial detention and solitary confinement in the period from December 1994 until May 1996, he developed a psychosis, characterised particularly by failing perception of reality and grandeur. It is difficult to fix the exact time when the psychosis developed during the pre-trial detention. At a psychiatric visit on 18 January 1995 no psychosis-like symptoms were found, but a “situational reaction” and a hunger strike. During the forensic psychiatric examination - completed in January 1998 - he was found both by clinical psychiatric testing and by psychological testing to be psychotic, probably suffering from a paranoid psychosis (mental disorder with delusions).\nIn the Medico-Legal Council's view it is very difficult to establish [the exact cause for the applicant's mental illness], but it is reasonable to assume that the considerable and long lasting mental strain which the case involved, presumably in conjunction with a distinct personality characterised by sensitivity and vulnerability significantly influenced the progress of the mental illness. The solitary confinement was a particular and severe mental strain, but also other circumstances like the charge and the subsequent indictment may have contributed to the progress of the applicant's mental disorder.”\nIn the latter the Medico‑Legal Council supplemented:\n“ ... The Council finds it substantiated that the main diagnosis is paranoid schizophrenic and not a post traumatic stress reaction, as the condition is a psychosis-like condition. But heavy mental strain is one of the prerequisites both for development of [the applicant's] psychosis and for the development of a post‑traumatic stress reaction, and in addition to the psychotic symptoms [the applicant] exhibits symptoms which are characteristic of a post-traumatic stress reaction (irritability, concentration difficulties, sleeping difficulties, nightmares, depressive tendencies with suicidal thoughts).\n... the Council cannot assess or make any statement as to whether the mental disorder is permanent.”", "46. Moreover, an assessment of 3 August 1998 by the National Board of Industrial Injuries (Arbejdsskadestyrelsen) was submitted as to the applicant's degree of disablement and loss of working capacity as a result of his mental illness. The Board estimated that the degree of the applicant's disablement amounted to approximately 30 % and that he had lost 1/3 of his working capacity.", "47. During the proceedings before the City Court, the applicant and fifteen witnesses were heard. The witnesses testified about their knowledge of the applicant's income, businesses and possessions, and about their observations of the applicant before, during and after the criminal proceedings. None of the doctors or the nurses that had carried out the medical inspections of the applicant during his pre-trial detention in solitary confinement were heard or summoned before the City Court. With regard to his behaviour during this period i.e. from 13 December 1994 until 28 November 1995 the following witnesses testified in so far as relevant:", "48. The applicant's mother stated, among other things, that she felt that it was worst for the applicant during the detention period when he was also solitary confined. Thereafter, he became more human and spoke more coherently. During the solitary confinement he wrote some letters with weird contents, including a letter with incomprehensible presentation of how the universe works. She had talked with counsel about getting a psychologist in from outside, but it was too difficult to cope with and nothing came of it. She would describe the difference in the applicant's behaviour before and after by saying that he used to be dynamic, committed and extrovert but had become grumpy and inaccessible.", "49. The applicant's cousin stated, among other things, that the applicant seemed deeply unhappy and preoccupied. Often he was just listening. He had also changed appearance, having grown a big beard and lost weight. The applicant became better as time passed, as if he had found some peace.", "50. The prison chaplain stated, among other things, that the applicant moved with great care around the grounds and walked practically sideways along the wall. He moved like a person who had done no exercise and seemed timid. The applicant needed exercise, both physically and mentally. He had a great feeling of powerlessness. The applicant seemed different than other inmates, like a stranger in that he could both think and talk and was not already broken. The chaplain found that in general persons detained in solitary confinement lose their concentration. This was also the case as regards the applicant. The applicant cheered up and felt stimulated by the visits to the chaplain and it had been difficult to end the consultations as the applicant kept finding new subjects and knew which subjects were interesting to the chaplain.", "51. The prison teacher stated, among other things, that the applicant from the first day seemed desperate. Subsequently he appeared resigned. On his index card of 18 September 1995, the teacher had noted that the applicant got more and more depressed. The applicants' physical condition worsened, he got careless about himself, both concerning clothing and hygiene. The applicant read a lot, although he encountered difficulties in concentrating.", "52. Police officer JL, who investigated the case against the applicant and regularly kept visits to the applicant under surveillance, stated among other things, that the applicant's mental state appeared the same, whether questioned in the presence of his counsel or receiving visits. At some time the applicant turned his sports jersey the wrong side out as he did not wish to be like everybody else. He wanted to be a loner.", "53. During the proceedings before the City Court the applicant raised his claim for compensation to DKK 22,556,334. By judgment of 1 October 1998 the City Court granted the applicant compensation in the amount of DKK 790,475 and stated inter alia:\n“... Having regard to the findings on the evidence in the High Court's verdict of 14 May 1996, and to the evidence produced during these proceedings, the court finds it established that an agreement had been concluded between PL and MP on the smuggling of cocaine from Brazil to Denmark so that the cocaine was to be hidden in a consignment of papaya fruits. Accordingly, in Brazil MP placed the cocaine in a pallet with green papaya fruits to be imported by the firm..., from which [the applicant] had ordered the fruits. However, PL had tricked [the applicant] into establishing ... a health firm, and ordering the papaya fruits via this firm by stating that the import of green papaya fruits was to cover smuggling of diamonds, although to PL cocaine was involved. After the arrival [of the papaya fruits] complications arose whereby the smuggled cocaine was discovered.\n[The applicant] had taken initiatives as to the potential commercial exploitation of green papaya fruits for health products, etc.\nThe court finds that [the applicant] has exhibited considerable contributory negligence by embarking on an agreement with PL on the smuggling of diamonds from Brazil. He knew that PL was a trained gemmologist, but their acquaintance was of recent date and his efforts to ensure that PL's criminal intention was limited to diamond smuggling were poor. PL's statement to the effect that at some time he briefly remarked to [the applicant] that he had previously tried to smuggle cocaine is contested by [the applicant] and no decisive weight has been attached to it in this assessment of the evidence.\n...On the evidence [before it] the court finds that [the applicant] started establishing [the health firm] to be in charge of the import of papaya fruits etc. after having agreed with PL to assist in smuggling diamonds from Brazil hidden in consignments of papaya fruits. According to the evidence it cannot be excluded that [the applicant] also intended to obtain a commercial profit from [the health firm]. However, having regard to the applicant's knowledge of the discovery of the cocaine and to the police interviews in general, the court finds that [the applicant] should have realised that the investigation theory of the police was that [his established health firm] was only a cover for the import of cocaine, and that any profit from the sale of health products made from papaya fruits was quite immaterial. Furthermore, the court notes that [the applicant's] rather experimental/impulsive way of starting up his firm was suited to strengthen this assumption by the police, and that the applicant should have realised this.\nAfter the police had found the cocaine and after the press publicity on 26 October 1994, but before his own arrest, [the applicant] chose together with PL to agree on a false statement about the background of his import of papaya fruits, ...[the story about RS and RB] supported by construed diary notes. [The applicant] maintains that he asked PL repeatedly at this stage whether PL had anything to do with the cocaine. Despite PL's denials [the applicant] should have suspected serious mischief at least at this stage.\n[The applicant] was arrested on 13 December 1994. He did not change his statement until 26 September 1995, when during an interview [with the police] he told about the planned diamond smuggling. This statement was repeated at the hearings before the court on 28 and 30 November 1995 and then maintained. The solitary confinement was terminated at the court hearing on 28 November 1995.\n... accordingly, the court finds that [the applicant] has exhibited contributory negligence by way of his suspicious conduct/failure to clear himself of suspicion, partly by having embarked on the alleged smuggling of diamonds and taking relevant steps, having construed and made use of a false cover story and having failed to explain the true facts of the case until the autumn of 1995, whereby he must also have realised that with this course of events in the autumn of 1995 he himself had considerably contributed to causing doubts about the correctness of his present statement, cf. in this respect [the High Court decision of 15 January 1996 as to the continued pre-trial detention].\nThe court finds that the contributory negligence exhibited by [the applicant] therefore entails that he has basically forfeited the right to compensation for the harm inflicted on him by the arrest and the pre-trial detention...\nIn accordance with the opinion of the Medico-Legal Council the court finds that the applicant did not show any signs of mental disorder or personal disorder [before his arrest], but that during the prolonged pre-trial detention and solitary confinement he developed a psychosis, particularly characterised by a failing perception of reality, delusions of reference as well as delusions of persecution and of grandeur. It is impossible to fix the exact time when the psychosis developed during the pre-trial detention as no psychosis-like symptoms were found at a psychiatric visit on 18 January 1995, but a “situational reaction” and a hunger strike, whereas in the forensic psychiatric examination - completed in January 1998 - [the applicant] was found psychotic, probably suffering from a paranoid psychosis (mental disorder with delusions) ...\nParticularly concerning the European Convention on Human Rights and the basis of responsibility in general:\n... generally, any kind of deprivation of liberty constitutes a strain on the person involved. Such a strain manifests itself even more with regard to pre-trial detention in solitary confinement, which entails complete exclusion from association with other inmates, and visits only to a limited extent and subject to surveillance. In some cases this strain may, for a particular individual, prove to have consequences beyond what is generally foreseeable and predictable by the legislator owing to that individual's mental preparedness and life situation in general.\nIt must be presumed that the legislator considers solitary confinement necessary for the sake of the investigation, particularly in grave criminal cases committed by a group of persons acting in a more organised way, in which the clearing up to a great extent depends on the persons' lack of opportunities to harmonise their statements mutually and with others.\nIn order to balance the interests of the detainee against the interest of the society in prosecuting crimes, the legislator has laid down provisions on solitary confinement cf. sections 770a to 770c of the Administration of Justice Act. Thus, the use of totally solitary confinement is limited to a continuous period of eight weeks [except for] cases, where the charge concerns an offence being punishable under the law by imprisonment for six years or more, which are not subject to any restriction in time. The charge against [the applicant] for drug offences under Article 191 of the Penal Code satisfies this condition. Under section 770b, the courts must check whether the purpose of the solitary confinement can be fulfilled by less radical measures, and they must ensure that the measure is not disproportionate to the importance of the case and the sanction that may be expected if the person charged is found guilty. Furthermore, under this provision the court must “take into account the special potential strain on the person charged owing to his youth, or physical or mental weakness” when it orders solitary confinement.\nIn the opinion of the court, the legislator has thus realised that solitary confinement may at worst result in an unintended harmful effect owing to the mental weakness of the person charged. This is attempted countered by imposing a duty on the Prison and Probation Service staff (kriminalforsorgens personale), including the prison doctor, to be aware of any danger signals, according to which psychiatric monitoring may prove relevant.\nThe question of medical monitoring may be raised by everybody who is in contact with the detainee, including counsel, as well as the detainee himself and the prison staff. If so, the judge responsible for a continuation of the pre-trial detention in solitary confinement must decide whether the interest of society in prosecution must give way for the mental wellbeing of the person charged, with particular regard to the risk of permanent mental harm.\nIt is a matter for the courts to check and apply the provisions of the law compared with general principles of law, including the principles expressed in the European Convention on Human Rights... as incorporated into Danish law by Act No. 285 of 29 April 1992.\nArticle 3 of the European Convention on Human Rights sets out that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 5 of the Convention provides for the situations in which a person may exceptionally be deprived of his liberty.\n[The applicant's] detention on remand was ordered due to the risk of influencing others and the risk of evasion, and solitary confinement was imposed in addition due to the risk of influencing others.\nPursuant to the case-law of the European Commission of Human Rights, a decision as to whether Article 3 of the Convention is violated depends on a specific assessment of the circumstances of the case, particularly the stringency of the solitary confinement, its duration, the purpose of the solitary confinement and its effect on the inmate's health. In addition to the specific elements of the case, the court has taken into account the assessments made by the European Commission of Human Rights, the Human Rights Committee of the United Nations (CCPR), the Committee against Torture of the United Nations (CAT), and the Committee for the Prevention of Torture of the Council of Europe (CPT) on the conditions of solitary confinement in Denmark as well as national deliberations, most recently report (betænkning) No. 1358/1998 on pre‑trial detention in solitary confinement...\nThe court finds that the pre-trial detention in solitary confinement and the subsequent ordinary pre-trial detention did not involve any violation of Article 3 of the Convention by virtue of its duration, form or conditions, as seen in relation to the nature of the suspected offence. The same applies as to the effect of the imprisonment on [the applicant's] health.\nHowever, the court finds that the detention on remand in solitary confinement has had a mental consequential effect to [the detriment of the applicant and that it] occurred under such circumstances as to trigger liability for the Government [for the following reason].\nIt must be assumed, even without the establishment of committed human errors e.g. by failing monitoring, that incidents may occur, where the detained subsequently are found to have developed psychiatric damage, which to a significant extent has been caused by the pre-trial detention [as opposed to normal predictable mental after‑effects], and which may be entailed by the usual administrative rates fixed to cover non-pecuniary damage.\nIn the present case, having regard to the medical statements, the court finds it established that [the applicant] suffers from a paranoid psychosis (mental disorder with delusions) and a traumatic strain-reaction, and that the detention on remand to a very significant extent caused this.\nThe public authorities have a special duty of solicitude for detainees, which entails liability to compensation should they fail to comply with this duty. With regard to solitary confinement the court finds that a strengthened degree of culpability must be employed towards the public authorities.\nIt may be difficult for the surroundings to recognise in particular a paranoid psychosis. However, having regard to the information provided by [the applicant] about his claustrophobia and his contemplation of suicide, which resulted in his placement in an observation cell, the court finds that [the applicant], maybe already at the time of the arrest, behaved in such a way that could and should have caused a closer observance in the period to follow, than were actually performed of [the applicant's] mental development, in any case subsequent to [the applicant's] hunger strike in January 1995. The court finds that the authorities carry the burden of proof that the [above] circumstances have had no influence on the psychiatric damage incurred. Thus, the court finds that it cannot be excluded that the mental damage to a significant extent could have been avoided or reduced by a more thorough observation, and that the courts [had such an observation been carried out] would have had an opportunity for balancing the risk of (permanent) damage against the interest of the investigation cf. section 770b of the Administration of Justice Act.”", "54. Both the applicant and the prosecution appealed against the City Court judgment of 1 October 1998 to the High Court of Eastern Denmark.", "55. Before the High Court a letter of 5 October 1998 was submitted containing an account of the nurses' monitoring of the applicant during his pre‑trial detention in solitary confinement during the period from 13 December 1994 until 28 November 1995. Thus, as to the forty-three medical inspections which had been carried out by nurses the head of nursing stated inter alia:\n“. It does not appear at any time from the nurses' report books summarising the visits that the nurses suspected that [the applicant] was developing a paranoid psychosis. Considering the nurses' background both in the prison service and the psychiatric system, one would expect that the nurses who made these visits would have observed it, if [the applicant] had been developing a psychosis-like condition. It should be added that the nurses' visits in the south wing [where the applicant was placed] were performed by the “permanent nurses” of the south wing, who were [therefore] able to monitor any changes in [the applicant's] mental condition.”", "56. The head of nursing also testified before the High Court and explained the routines and observations of the prison nurses, including that the applicant gave cause for discussion only once at the nurses' morning conferences, namely when he was on his hunger strike. Otherwise, he was considered “nice and talkative”", "57. A similar account was made as to the doctors' monitoring of the applicant, i.e. twenty-seven medical examinations carried out by doctors in the relevant period. In a letter of 2 October 1998 the chief consultant of the Copenhagen Prisons (Københavns Fængsler), a specialist of internal medicine and medical gastroenterology concluded inter alia:\n“that [the applicant] was not at any time found to be mentally ill to a major extent corresponding to the otherwise obvious and probable harmful effect of the solitary confinement ordered by the courts;\n that at no time [the applicant] was found to be borderline psychotic, not to mention psychotic (thus not suffering from a paranoid psychosis either);\nthat the psychiatrist's assessment of [the applicant] on 18 January 1995 was carried out for administrative reasons only in connection with [the applicant's] short-term refusal to eat, which had caused no complications (it was not a total fast as [the applicant] drank juice). The psychiatric assessment was not carried out due to an uncertainty on the prison doctor's behalf as to [the applicant's] mental state, [since] neither the ordinary prison doctor nor, in particular, the psychiatrist had found [the applicant's mental state] very remarkable or even mentally threatened. [Instead] the psychiatrist made the said administrative assessment to make doubly sure that [the applicant] was found competent [to cope with the situation] concerning his refusal to eat.”", "58. The chief consultant did not question that the applicant was found to be psychotic during the period of psychiatric observation from 8 December 1997 until 19 January 1998, but underlined that the applicant had not been found to be significantly mentally ill, borderline psychotic or psychotic during the period of detention from 13 December 1994 until 14 May 1996. None of the highly qualified and well‑trained doctors and nurses attending the applicant during that period had noted any signs of mental disorder in the applicant. He pointed out that the said doctors and nurses had plenty of experience with examining inmates held in solitary confinement and that they knew what telltale signs of oncoming or existing mental disorder to look for when examining such inmates. Accordingly, in the chief consultant's opinion, it could not established that the mental disorder, found when examining the applicant a year and a half after the determination of his detention, actually began during his detention at the Western Prison.", "59. The chief consultant also provided a general account on visits and assessments of detainees. He mentioned that such may take place at counsel's request. In this respect the letter stated as follows:\n“Concerning [the applicant] it should be noted in this connection that the doctors [of the Prison and Probation Service] have received no inquiries during the said detention period from [the applicant's] prosecutor or two counsel, apart from the letter of 18 January 1995 from [the applicant's] first counsel and the letter of 21 June 1995 from [the applicant's] second counsel.\n In the letter of 18 January 1995 [the first counsel] stated that he found the applicant very depressed, and he asked that doctors attend to [the applicant]. No letter of reply was sent to [the first counsel] since he had not requested such, and since he had stated in the letter that he had not notified [the applicant] that he had written the said letter (all other things being equal, a reply would require [the applicant's] specific consent and thus indicate to [the applicant] that his counsel had sent a letter without his consent), but the most important reason for not sending a reply was the fact that [the applicant] had not been found depressed in connection with a medical assessment, including the psychiatric assessment made on 18 January 1995. If the latter had been the case, a letter of reply would have been forwarded to counsel nevertheless, possibly even without [the applicant's] specific (informed) consent, and ... also from the prison doctor to the judicial instances via the Prison and Probation Service.\n In the letter of 21 June 1995 [the second counsel] asked that herbal medicine ... be given to [the applicant].\nOtherwise, [the two counsel] have not given notice orally, by telephone or in writing about any deviant state observed as to [the applicant]. [It should be noted in this respect that notably [the second counsel] and the doctors [of the Prison and Probation Service] are in regular good contact concerning the inmates' state of health and particular complex matters related thereto, also in relation to court measures, such as solitary confinement]. The doctors [of the Prison and Probation Service] are pleased to receive notices from everybody (including school teachers, ministers of religion etc. within and outside [the Prison and Probation Service], not to mention the applicant) regardless of the nature of the notices and the information since, all other things being equal, such notices give the doctors better possibilities of performing their work of ensuring the best possible conditions for the inmates' health subject to the terms ordered by the courts. “", "60. The chief consultant was heard as a witness before the High Court. He explained in more general terms the routines of the prison doctors and the attention focused on inmates held in solitary confinement for long periods and he gave further description of some of the findings noted in the medical record sheet relating to the applicant.", "61. The applicant's case was discussed at the daily conferences between the doctors. The witness himself never saw the applicant. There were no signs that the applicant was characterised by incipient isolation syndrome. The symptoms of this syndrome are difficulties of concentrating, sleeping trouble, disturbed perception of time and space, disturbed interpretation of sensory impulses, depression, possibly with self destruction and thought of low self-esteem, fits of anxiety, lack of interests in surroundings. This may develop into a borderline psychosis, the symptoms being delusions/paranoia, feeling of unreality and into an actual psychosis. When he suspects incipient isolation syndrome, he writes to the prison management about it with a view to forward it to the counsel and the prosecutor. In 1998, for example, the witness wrote such letters in thirty‑two cases. He did not know exactly how many letters like that he wrote in 1995, but he has not changed practise in this respect since 1992.", "62. As to the notes in the medical record of 17 January 1995, when the applicant was on hunger strike, the chief consultant specified that doctors always assess whether a person is mentally competent and understands the consequences of a hunger strike and that all doctors have psychiatric training. He would rather call the applicant's hunger strike a refusal to eat, since he drank plenty of water and juice, which contains calories and nourishment. According to the Medical Act (Lægeloven), a doctor is not allowed to interrupt a competent person's hunger strike by force. He may try to procure consent to treatment when the person becomes weak. The applicant granted no such consent. Force may be used against mentally ill persons.", "63. As to the psychiatric attendance on 18 January 1995 the witness stated inter alia that the applicant was found to suffer from a situational reaction such as many new detainees do. It is not uncommon in the Western Prison that inmates state their intention of going on hunger strike. The applicant was not in any bodily danger, but might in time become mentally endangered. Thus, the close observation of the applicant continued.", "64. The Director of the Copenhagen Prisons gave his account before the High Court of the monitoring of the applicant during the latter's pre-trial detention and period of solitary confinement. In a letter of 7 October 1998 he stated, among other things:\n“For the purpose of this account the prison management has procured information on [the applicant's] stay in the prison from the chief consultant, the head of nursing, the welfare worker, supervisory staff [at the applicant's unit] and from his workplace in the prison.\nSupervisory staff in the south wing [which monitored the applicant during his entire period in solitary confinement] stated that despite the solitary confinement he functioned well, knew how to structure his everyday life and occupy himself, and he did not in any way appear mentally conspicuous.\nAt no time did the staff find any reason to contact the health staff to obtain a psychiatric assessment, which is otherwise an initiative very frequently taken by staff.\nThe principal officer of the west wing [to which the applicant was transferred after the solitary confinement] and the staff in the kitchen where he worked have stated the same.\n[The applicant's] welfare worker who regularly talked with him during his entire detention has also stated the same.\nWith reference to the comments of the court [in connection with the compensation proceedings] decisive importance must be attached, however, to the question whether these assessments are supported by the doctors' monitoring of [the applicant].\nThe chief consultant has provided the appended statement on the case. For details please refer to this assessment.\nIt appears from the chief consultant's statement that during his entire period of detention [the applicant] has been extremely carefully monitored and assessed by doctors.\nVisits by doctors, including psychiatrists, may be carried out at the request of the health staff of the Copenhagen Prisons, but may also be carried out at the request of staff, counsel or the prosecutor. In [the applicant's] case, counsel only once requested a visit from a doctor [i.e. the first counsel in his letter of 18 January 1995], which had, however, already been made by a psychiatrist in connection with the hunger strike, cf. below.\nDuring all visits, doctors and nurses of the Copenhagen Prisons have their attention directed at signs of psychoses, both obvious signs and minute signs. They are, of course, particular attentive to such signs in a case of solitary confinement, which is in itself a stressful measure.\nIf, in connection with a visit, a doctor finds even the slightest suspicion that the inmate is or may possibly be on his way to become mentally ill, a statement to that effect is given to counsel and the prosecutor.\nThis was not done in [the applicant's] case, as there was never at any time any suspicion of a mental illness.\nThe reason why [the applicant] was attended to by a psychiatrist on 18 January 1995 at the initiative of the Copenhagen Prisons was not that a mental illness was suspected, but solely that the internal guidelines prescribe this when inmates go on hunger strike. Anyway, no psychopathological characters were found at the examination, but a situational reaction ...Particularly referring to the chief consultant's statement, the Copenhagen Prisons repudiate that [the applicant] has been subjected to failure of health monitoring. During his entire stay, [the applicant] was regularly visited by doctors and nurses, and these visits have not given any rise to any suspicion of mental disorders...”", "65. Moreover, by letter of 8 October 1998 the Director of the Western Prison gave his account of the monitoring of the applicant during the latter's pre-trial detention and solitary confinement. The letter read inter alia:\n“After the passing of the judgment in the compensation proceedings on 1 October 1998 I have had conversations with the following persons about [the applicant's] stay in the Copenhagen Prisons:\nDW, then social worker in the east unit, states that [the applicant] was an intelligent and interesting young man. During his stay [the applicant] started painting. He read a lot. His behaviour was not conspicuous. He seemed present during conversations. He was bitter and angry with the police and felt unjustly treated. These thoughts did not seem pathological to DW.\nJL, prison officer, ... , who knew [the applicant] during his entire stay in the south wing, stated that he painted, was active and seemed to function well. He was good-humoured to be with and was given a rather free rein. He was always ready with a gay remark. He was considered by all staff as a person who functioned well and was not conspicuous. He knew how to establish an everyday life. He felt unjustly treated by the system and thought that solitary confinement in general could be considered as some kind of torture.\nCL, prison officer, ... , who also monitored [the applicant] in the south wing, stated that he was not pathologically conspicuous. He was quite ordinary to talk to. In the circumstances he managed the solitary confinement incredibly well.\nJEL... who was the foreman in the kitchen where [the applicant] worked after the solitary confinement, stated that he did not seem mentally conspicuous or affected by the long solitary confinement.\nVB, principal officer, west wing, stated that [the applicant] functioned well during his stay in the west wing after the solitary confinement and did not seem affected by the solitary confinement.”", "66. Additional statements from the Legal‑Psychiatric Clinic and the Medico‑Legal Council were submitted on 29 April 1999 and 9 August 1999 respectively, and the applicant and several witnesses were heard.", "67. By judgment of 27 August 1999 the High Court granted the applicant compensation in the amount of DKK 1,334,600 covering as follows:\n non-pecuniary damage DKK 100,000\n lost earnings DKK 125,000\n loss of working capacity DKK 1,022,000\n disablement DKK 87,600", "68. The High Court found that the applicant's mental illness was caused or mainly caused by the solitary confinement, but pointed out that on the basis of the medical statements before it, it was not possible to establish when the mental disorder broke out or how it had progressed. On the material before it, the court found it established that during his detention the applicant had been treated in a proper manner. Thus, having regard to the reason for the solitary confinement and the treatment of the applicant during this period, the court found that in spite of the duration of the solitary confinement and its serious effects on the applicant's mental health, Article 3 of the Convention could not be considered breached.", "69. The court found that compensation for non-pecuniary damage was justified pursuant to section 1018a § 2 of the Administration of Justice Act for the deprivation of liberty exceeding the sentence laid down in the verdict of 14 May 1996. However, according to section 1018a § 3 of the said Act the applicant was found to a considerable extent to have given rise to the measures himself, due to so-called “own fault”, in the period between 13 December 1994 until 26 September 1995, when the applicant made the statement to the police as to his participation in diamonds smuggling. Accordingly, a sum of DKK 100,000 was found to be reasonable. Also, the compensation for lost earnings was reduced due to “own fault”.", "70. The amounts for disablement and loss of working capacity were calculated on the basis of the Compensation Act (Erstatningsansvarsloven), and the information on the applicant's previous yearly income. Since no exact moment of injury could be established the court chose 13 December 1994 as the starting point. Considering that it was common knowledge to the authorities that solitary confinement entails a risk of disturbing the mental health, and taking into account the extraordinary and severe damage, which the long lasting detention in segregation caused the applicant, the court found no reason to reduce these amounts on the “own fault” considerations.", "71. Finally, the High Court decided that the Government should pay all the legal costs before the City Court as well as before the High Court.", "72. Having been granted leave to appeal, before the Supreme Court (Højesteret) the applicant claimed compensation in the amount of DKK 18,618,602.36 for pecuniary and non-pecuniary damage. By judgment of 5 September 2000 the Supreme Court reduced the amount to be paid in compensation to DKK 1,109,600, covering as follows:\n \nnon-pecuniary damage DKK 0\nlost earnings DKK 0\nloss of working capacity DKK 1,022,000\ndisablement DKK 87,600", "73. The Supreme Court agreed unanimously with the High Court that the solitary confinement was the main reason for the applicant's mental suffering. Also, noting that there was no reason to assume that the applicant had not been treated in a proper manner during his detention on remand, it confirmed the High Court's finding that the case disclosed no appearance of a violation of Article 3 of the Convention.", "74. Moreover, the Supreme Court upheld the High Court's finding that to a significant extent the applicant himself gave rise to measures taken against him, and pointed out that the applicant's explanations during the criminal proceedings did not leave an impression of being provided by someone who lacked ability to act rationally.", "75. As to the amounts regarding compensation for disablement and loss of working capacity the Supreme Court confirmed that it was common knowledge that solitary confinement entails a risk of disturbing the mental health. On the other hand it found that the applicant could not have foreseen, by his conduct and the measures to which he was consequently subjected, that accordingly he would be induced a permanent mental disorder causing loss of working capacity and disablement. Therefore, the Supreme Court endorsed that the amounts covering compensation for disablement and loss of working should not be reduced on “own fault” considerations.", "76. As to the applicant's claim covered by Section 1018a, Subsection 2 cf. Subsection 1, the majority of the Supreme Court (three judges) stated:\n“We find that by participating in the papaya project and by his attitude shown during part of the detention period, notably by having actively opposed the investigation of the case, [the applicant] is thereby excluded from obtaining compensation for these claims pursuant to Section 1018a, Subsection 3 of the Administration of Justice Act.”\nA minority of two judges stated:\n“When assessing the 'own fault' shown by [the applicant], regard must be had to the difficult situation he was facing and to the severity of the measure [he was subjected to], thus in our view [own fault] should not influence the compensation to be awarded to cover lost earnings as to the period after 12 October 1995 or non-pecuniary damage as to the period after 26 September 1995. The case contains no such special circumstances, which can justify a deviation from the administrative rates fixed to cover non‑pecuniary damage.\nOtherwise agreeing with the High Court's reasoning concerning each of the claims we find that the applicant, in addition to compensation for loss of working capacity and disablement, be granted DKK 250,000 covering lost earnings and DKK 106,800 covering non-pecuniary damage.”", "77. The Supreme Court decided that the applicant pay legal fees in the amount of DKK 37,500 inclusive VAT." ]

[]

[ "4. The applicants were born in 1914, 1920, 1921 and 1945 respectively. The first lives in Timişoara, the second in Delémont (Switzerland) and the others in Arad.", "5. The first two applicants and their deceased brother, Mircea Stoinescu, whose heirs are the other two applicants, were the owners of a house in Arad. In 1950 the State took possession of that house under Decree no. 92/1950 on nationalisation. The house was converted into four flats intended for rental.", "6. On 27 September 1993 the first two applicants and Mircea Stoinescu brought an action for the recovery of possession of immovable property in the Arad Court of First Instance against Arad Town Council and R., a State-owned company responsible for the management of property belonging to the State. After the death of Mircea Stoinescu, the action was pursued by his heirs, Mrs Felicia Stoinescu and Mrs Maria Tăucean. The applicants sought a declaration that they were the rightful owners of the house and appurtenant land that the State had, in their opinion, wrongfully seized in 1950. They claimed that, under Article 2 of Decree no. 92/1950, property belonging to persons in certain social categories was not subject to nationalisation, and that they fell within such a category. In their view, the nationalisation of the house in question had therefore been improper and unlawful.", "7. In a judgment of 12 April 1994, the Arad Court of First Instance dismissed the applicants' action, refusing to rule on the merits on the ground that they could not obtain redress for the damage they had sustained until the enactment of special legislation introducing reparation measures. The judgment was upheld by the Arad County Court on 3 November 1995. The applicants appealed against that decision.", "8. In 1996 the tenants of the flats making up the house applied to purchase them, relying on Law no. 112/1995. Arad Town Council informed the R. company that a dispute was pending concerning the title to the house and instructed it not to pursue the sale of the flats in question.", "9. Consequently, the tenants of three flats had their purchase applications rejected, but not H.D. (a former football player and international celebrity) and his wife, to whom the R. company sold flat no. 3 on 18 December 1996.", "10. On 25 February 1997 the Timişoara Court of Appeal upheld an appeal by the applicants and remitted the case to the Arad Court of First Instance for a decision on the merits.", "11. On 12 May 1997 Mr and Mrs D. applied to intervene in the Court of First Instance proceedings on the ground that they had been the owners of flat no. 3 since its sale on 18 December 1996.", "12. Further to the couple's application to intervene, the applicants requested the court to find that the sale of flat no. 3 was null and void. In their view, as the nationalisation had been improper and unlawful, the State could not have been the rightful owner of the property and thus could not lawfully have sold any part of it. The applicants relied in particular on Article 966 of the Civil Code, whereby an undertaking entered into on an erroneous or unlawful basis could not produce any useful effect.", "13. On 7 June 1997 the Arad Court of First Instance held that the nationalisation of the house had been unlawful and that the applicants were therefore the rightful owners. However, the court rejected the request for the rescission of the contract of sale between the State and Mr and Mrs D., on the ground that the couple had made the purchase in good faith.", "14. The applicants appealed against that judgment. On 28 November 1997 the Arad County Court allowed the appeal and remitted the case to the Court of First Instance for reconsideration.", "15. In a judgment of 6 July 1998, the Arad Court of First Instance held that the nationalisation of the house had been unlawful, that the applicants were the rightful owners and that the contract of sale between the State and Mr and Mrs D. was null and void.", "16. On 2 February 1999 the Arad County Court allowed an appeal by Mr and Mrs D. and dismissed the applicants' action, finding that the nationalisation had been lawful and that, consequently, the sale by the State of flat no. 3 was also lawful.", "17. The applicants appealed to the Timişoara Court of Appeal, which gave its judgment on 30 June 1999. It partly allowed the applicants' appeal in so far as it found the nationalisation to have been unlawful and acknowledged that they had remained the rightful owners of the property. However, it dismissed the appeal as regards the rescission of the sale of flat no. 3, considering that the State had been presumed to be the owner of the property at the time of the sale, in spite of the dispute over the property that was pending in the courts. It moreover relied on the fact that Law no. 112/1995, which had formed the statutory basis for the sale of the property, did not provide for any penalty in respect of property sold when the title to it was in dispute before the courts. The Court of Appeal did not address the applicants' argument relating to the principle of unjust enrichment (see paragraph 27 below).", "18. On 20 August 2001 the applicants again requested the Arad Court of First Instance to order the rescission of the sale of flat no. 3, contending that the purchasers had broken the law. Their action was dismissed on 13 December 2001 on the ground that the matter had become res judicata." ]

[ 3, 9 ]

[ "8. The applicant was born in 1937 and lives in Ulyanovsk.", "9. On 6 September 2002 the Guberniya newspaper published a piece written and signed by the applicant. The entire text of the piece, entitled “[My] statement” («Заявление»), read as follows:\n“The voting ballots were still being counted, but it was already clear that General V.A. Shamanov had been elected Governor of the Ulyanovsk Region. That very night he made the following verbatim statement: 'Let me tell you bluntly and frankly – the local press has to be dealt with thoroughly'.\nDuring his electoral campaign General [Shamanov] made many promises to the residents of Ulyanovsk. But, in my opinion, he has kept only one: [he is] 'waging war' against the independent press, against journalists. The judicial proceedings in Shamanov's action against the highly talented Ulyanovsk journalist Dyomochkin are still pending. But the criminal prosecution of a journalist is exceptional. Yulia Shelamydova, editor-in-chief of the Simbirskiye Izvestia newspaper, has been sentenced to one year of correctional labour. Let us leave aside the legal aspects of that case: the full text of the court judgment has not yet been published and I hope there will be many more judicial proceedings, not only in Ulyanovsk, but also in Moscow. But there is a moral dimension to this case. How can three robust men, of whom two are Generals and one is a Hero of Russia, wage a battle against a woman who is still a young girl! This brings to mind Shamanov's support for Colonel Budanov, who killed a 18-year-old [Chechen] girl. No shame and no scruples!”\n(“Еще шел подсчет голосов, но было уже ясно: губернатором Ульяновской области избран генерал Шаманов В.А. Этой же ночью он заявил буквально следующее: «С местной прессой, прямо и откровенно скажу, предстоит детально разобраться».\nВо время избирательной кампании генерал обещал ульяновцам много. Но выполнил, с моей точки зрения, только одно: «воюет» с независимой прессой, с журналистами. Еще продолжаются суды по иску Шаманова В.А. к талантливейшему журналисту – ульяновцу Демочкину Г.А. Но преследование журналиста в уголовном порядке – это уникальный случай. Юлия Шеламыдова – главный редактор газеты «Симбирские известия» - осуждена на год исправительно-трудовых работ. Оставим пока в стороне юридический аспект этого дела: еще не опубликован полный текст решения суда, по этому поводу будет, надеюсь, еще много судов, причем не только в Ульяновске, но и в Москве. Но есть моральный аспект в этом деле. Как могут три здоровых мужика, из которых два – генерала, в том числе один – даже герой России, «воевать» с женщиной, более того – с молоденькой девчонкой! Почему-то вспоминается поддержка Шамановым В.А. полковника Буданова, убившего 18-летнюю девушку. Ни стыда, ни совести!”)", "10. On 10 September 2002 Mr Shamanov brought a civil defamation action against the applicant, the editor's office and the newspaper's founder – the Fund for Assistance to Disenfranchised Communities Goryachev-Fond (“the Fund”). He claimed that the assertion alleging that he had no shame and no scruples was untrue and damaging to his honour and reputation. He sought 500,000 roubles ((RUR), approximately 20,000 euros (EUR)) in compensation for non-pecuniary damage.", "11. On 14 November 2002 the Leninskiy District Court of Ulyanovsk found for the plaintiff. The court held as follows:\n“In the article the author asserts that Shamanov, Governor of the Ulyanovsk Region, has no shame and no scruples. The very tenor of the article confirms that the contested statements contain precisely such an assertion. [The applicant's] assertion in this article that the plaintiff has no shame and no scruples is clearly damaging because it impairs his honour, dignity and professional reputation... The [applicant] did not produce before the court any evidence showing the truthfulness of that statement about the plaintiff...”\nThe court ruled:\n“... the statement to the effect that the plaintiff has no shame and no scruples, published in [the applicant's] piece... [is] untrue and damaging to Shamanov's honour, dignity and professional reputation”.", "12. The court held the Fund liable for RUR 5,000 (EUR 200) and the applicant liable for RUR 2,500 (EUR 100) in respect of non-pecuniary damage to the plaintiff. The Fund was also ordered to publish, by way of rectification, the operative part of the judgment.", "13. The applicant and the Fund lodged an appeal. The applicant pointed out that the District Court had failed to distinguish “opinions” from “statements”. He submitted that his right to hold and impart opinions was guaranteed by Article 29 of the Russian Constitution and the contested statement was his personal assessment of Mr Shamanov's actions. Furthermore, he argued that the contested expression was an idiom in the Russian language, and was commonly used to give an ethical appraisal of a person's deeds.", "14. On 24 December 2002 the Ulyanovsk Regional Court upheld the judgment of 14 November 2002. The court endorsed the conclusions of the first-instance court and added:\n“The arguments... about the court's confusion of the term 'opinions' and the term 'statements' (сведения) cannot be taken into account because [the applicant's] opinion had been printed in a public medium and from the moment of publication it became a statement.”", "15. The applicant's subsequent attempts to initiate supervisory review proceedings proved unsuccessful. On 22 August 2003 the Supreme Court of the Russian Federation dismissed his application for the institution of supervisory-review proceedings." ]

[ 6 ]

[ "8. The applicant is a Russian open joint-stock company which was set up in Moscow in 1994 by the Federal Ministry of State Property Management (“the Ministry”) in pursuance of a directive from the President of Russia and a Government decree. Its purpose was to hold shares of former state enterprises which produced electrical equipment for the railways. The applicant company's initial capital was formed by State property. Various individuals and private companies also became shareholders at a subsequent point.", "9. On 14 November 1995, following a directive to that effect by the President of Russia, the Ministry adopted a resolution by which the applicant company was liquidated and a liquidation committee was appointed.", "10. The applicant company, represented by its director general, joined proceedings brought by one of its minority shareholders before the Lyublinskiy District Court of Moscow seeking to have the Ministry's resolution of 14 November 1995 and a number of follow-up resolutions declared void.", "11. The applicant company asked the District Court to issue an interim injunction prohibiting liquidation pending a trial and to strip the liquidation committee of its powers. On 29 October 1998 the District Court issued the injunction. It also prohibited the liquidation committee from acting on behalf of the applicant company in legal proceedings.", "12. On 17 May 2000 the District Court found in favour of the applicant company and its co-plaintiffs. The court noted that the decision to liquidate the applicant company was one that could be taken only by a general assembly of its shareholders. The Ministry held less than 50% of the applicant company's shares at the material time, and its decision to liquidate the applicant company ran counter to the law. The court held that the resolution of 14 November 1995 and the follow-up resolutions were void and ordered the Ministry to annul them. The Ministry did not appeal and the judgment came into force on 28 May 2000.", "13. Some time later the Ministry successfully applied for intervention in the proceedings by the Moscow public prosecutor. On 10 April 2001 the prosecutor lodged an application for supervisory review (протест в порядке надзора) of the judgment of 17 May 2000, seeking to have it set aside.", "14. On 10 May 2001, further to the prosecutor's request, the Presidium of the Moscow City Court, which was composed of five judges, reviewed the case. The court heard submissions from the acting public prosecutor of Moscow, who supported the request. The applicant company did not attend the hearing as it had not been informed that it was to be held.", "15. Referring to the outcome of other proceedings before different courts in 1997‑1999, the Presidium of the Moscow City Court stated that the Ministry had been the sole shareholder of the applicant company at the material time. It was thus empowered to take a decision on liquidating the applicant company in accordance with the relevant substantive law. The director general had no authority to bring proceedings on behalf of the applicant company, since his authority had been ended by the ministerial resolutions in dispute. The District Court should have ensured that the liquidation committee took part in the proceedings. Its failure to do so had made it impossible to establish all the facts which were relevant for the proper examination of the case.", "16. The Presidium of the Moscow City Court granted the prosecutor's request, quashed the judgment of 17 May 2000 and ordered a fresh examination of the case by the Lyublinskiy District Court, with a different composition.", "17. The applicant company was not served with either a copy of the prosecutor's request or a copy of the decision of 10 May 2001. It learned of those developments in October 2001.", "18. Following jurisdictional changes the case was transferred to the Commercial Court of Moscow, which examined it on 25 March 2003. That court held that the fact that the proceedings had been brought by the applicant company, in the person of its director general, was consistent with the applicant company's regulations. The director general had never been relieved of his post through an established procedure. The dispute originated in the liquidation of the applicant company and concerned, inter alia, the lawfulness of the liquidation committee's appointment. That being the case, the applicant company could not be deprived of its right to a court and its action ought to be examined. The court further held that the Ministry had not been the sole shareholder of the applicant company and that it had had no authority under the legislation to liquidate the applicant company unilaterally.", "19. By a decision of 25 March 2003, the Commercial Court of Moscow found for the applicant company and its co-plaintiffs. It declared void the resolution of 14 November 1995 and the follow-up resolutions and ordered the Ministry to annul them. The Ministry did not appeal and the judgment entered into force on 25 April 2003." ]

[ 3 ]

[ "8. The applicant was born in 1965 and lives in Ternopil, Ukraine.", "9. From 1996 to 2000 the applicant and her family lived and worked in the Chukotka Region in the Russian Federation.", "10. In the winter of 1998 the applicant was taken to a hospital in the town of Bilibino. According to the applicant, local doctors failed to diagnose her correctly and provide adequate treatment; as a result her health was seriously damaged.", "11. In August 1998 the applicant brought a medical malpractice suit against the municipal health protection institution “Bilibino Central District Hospital” (муниципальное учреждение здравоохранения «Билибинская центральная районная больница»).", "12. On 21 February 2000 the Bilibinskiy District Court of the Chukotka Region allowed the applicant's action and awarded her RUR 60,000 (EUR 2,109). The judgment was not appealed against and on 1 March 2000 it became final and enforceable.", "13. After the hospital had failed to pay the judgment debt for over a year the applicant sent complaints to the President of the Russian Federation, the Minister of Health, the Court Bailiffs' Service and other authorities.", "14. On 15 November 2001 the Chukotka Regional Department of the Ministry of Justice (in charge of the court bailiffs) advised the applicant as follows:\n“...it was established that the debtor had no cash funds in its accounts. According to its founding documents, the debtor is an institution and, pursuant to Article 120 of the Civil Code, an institution is only liable to the extent of its cash funds. Article 298 § 1 of the Civil Code provides that an institution may not alienate or otherwise dispose of the property attached to it or of the property acquired at the expense [of its owner].\nIn accordance with Information Letter no. 45 of the Presidium of the Supreme Commercial Court of the Russian Federation of 14 July 1999 'On the recovery out of the property of an institution', if the debtor, who is an institution, lacks cash funds, then recovery is not possible out of the other property assigned to the institution by its owner...”", "15. The Justice Department further informed the applicant that the enforcement proceedings had been closed on 30 November 2000 because the enforcement had been impossible, but it was open for the applicant to initiate the enforcement proceedings again.", "16. On 29 November 2001 the Chukotka Regional Department of the Ministry of Justice forwarded the applicant's complaint to the chief court bailiff of the Bilibino District, for enforcement.", "17. On 10 December 2001 the Chukotka Regional Department of the Ministry of Justice responded to the applicant and gave the same explanation as in the letter of 15 November 2001. It also added that in respect of the hospital there were several other enforcement proceedings having the first and second rank, whilst the applicant's claim only had the fifth rank.", "18. On 18 January 2002 a court bailiff confirmed again that the hospital had no cash funds and that the recovery could not be made out of its property.", "19. On 28 January 2002 the bailiff required the Bilibino clearing centre to seize the cash funds of the hospital.", "20. On 6 February 2002 the bailiff determined that the enforcement was not possible due to the debtor's lack of funds. The enforcement proceedings were definitively closed and the writ of execution was returned to the applicant." ]

[ 3, 9 ]

[ "4. The applicants were born in 1926 and 1943 respectively, and live in Antalya.", "5. On 17 December 1997 the General Directorate of National Airports expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot and the relevant amount was paid to them when the expropriation took place.", "6. Following the applicants' request for increased compensation, on 20 March 1998 the Antalya Civil Court of First-instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court's decision.", "7. On 9 June 1998 the Court of Cassation quashed the judgment of the Antalya Civil Court of First-instance.", "8. On 28 September 1998 the Court of Cassation rejected the applicants' request for rectification of the judgment of 9 June 1998.", "9. On 20 December 1999 the Antalya Civil Court of First-instance awarded the applicants additional compensation of 33,318,109,000 Turkish liras (TRL) plus interest at the statutory rate running from 17 December 1997, the date on which the title deed to the land had been transferred to the General Directorate of National Airports in the land registry.", "10. On 29 February 2000 the Court of Cassation upheld the judgment of the Antalya Civil Court of First-instance.", "11. On 8 May 2000 the Court of Cassation rejected the applicants' request for rectification.", "12. On 7 June 2000 the General Directorate of National Airports paid the applicants an overall amount of TRL 77,103,800,000." ]

[ 9 ]

[ "4. The applicants were born in 1945, 1935, 1948 and 1938 respectively and live in İskenderun and Belen respectively.", "5. In 1993 the applicants' plots of land in İskenderun were expropriated by the General Directorate of National Roads and Highways. A committee of experts assessed the value of these lands and the determined amounts were paid to them when the expropriation took place.", "6. On 20 August, 10 October and 21 November 1996 respectively, the applicants filed separate actions for compensation with the İskenderun Civil Court of First Instance.", "7. On 19 September 1997 the first-instance court ordered the administration to pay Mıstık Ateş 41,410,845,000 Turkish liras (TRL) plus interest at the statutory rate, running from 7 August 1996, the date on which the ownership of the property was transferred to the National Water Board.", "8. On 25 September 1997 the first-instance court ordered the administration to pay Gülizar Pembe TRL 6,467,500,000 plus interest at the statutory rate, running from 11 September 1996, the date on which the ownership of the property was transferred to the National Water Board.", "9. On the same day, the first-instance court ordered the administration to pay Yüksel Bozkaya TRL 80,274,368,000 plus interest at the statutory rate, running from 23 October 1996, the date on which the ownership of the property was transferred to the National Water Board.", "10. On 7 October 1997 the first-instance court ordered the administration to pay İsmail Karapınar TRL 13,075,000,000 plus interest at the statutory rate, running from 11 September 1996, the date on which the ownership of the property was transferred to the National Water Board.", "11. The Court of Cassation upheld the above-mentioned judgments of the İskenderun First Instance Court on 11 May, 20 May and 25 May 1998 respectively.", "12. On 8 April, 13 April, 12 May and 4 June 1999 respectively, the administration paid the applicants the amounts due together with interest." ]

[ 9 ]

[ "4. The applicant was born in 1938 and lives in the town of Nova Kakhovka, Kherson region, Ukraine.", "5. On 4 August 2000 the Nova Kakhovka Town Court awarded the applicant UAH 3,150.00[1] in salary arrears against his former employer – the Southern Machinery Construction factory (the majority share of which – 70% – was owned by the State). The judgment was not appealed and became final.", "6. On 3 July 2001 the Nova Kakhovka Town Court awarded the applicant UAH 1,180.00[2] in compensation for moral damage against the same factory.", "7. By letter of 14 February 2003, the Head of the Kherson Regional Department of Justice of Ukraine informed the applicant that the enforcement proceedings against the factory had been stayed due to the opening of bankruptcy proceedings against the debtor.", "8. On 17 May 2004 the Nova Kakhovka Town Court awarded the applicant UAH 13,460.72[3] in compensation for the delay in payment of the salary arrears against the same debtor. The enforcement proceedings in respect of this judgment were initiated on 24 June 2004.", "9. The judgments remain unenforced." ]

[ 3, 9 ]

[ "7. The applicant, Mr Alexei Scutari, was born in 1930 and lives in Edineţ.", "8. In 1949 the Soviet authorities nationalised the property owned by his parents and deported his family to Siberia.", "9. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of Soviet repression to claim compensation for their nationalised property.", "10. In 2001 the applicant brought an action against the Local Treasury Department in respect of the latter's refusal to pay him compensation.", "11. On 26 July 2001 the Orhei District Court found in favour of the applicant and ordered the Local Treasury Department to pay him compensation of 41,705 Moldovan Lei (MDL) (the equivalent of 3,700 euros (EUR) at the time).", "12. The applicant obtained an enforcement warrant which the bailiff failed to enforce. On an unspecified date the applicant wrote to the Ministry of Justice, complaining about the non-enforcement of the judgment of 26 July 2001. In a letter of 7 May 2003, the Ministry of Justice assured the applicant that everything possible was being done to enforce the decision, but that the Local Treasury Department did not have any money in its account.", "13. On 20 February 2004, after the case had been communicated to the Government, the judgment was enforced. The applicant wrote a receipt addressed to the head of the Edineţ Department of Execution of Judgments in which he confirmed that he had received the money in accordance with the judgment of 26 July 2001 and that he had no more claims against the debtor and against the Department of the Execution of Judgments." ]

[ 3, 9 ]

[ "9. The applicant was born in 1978 and lives in Paris.", "10. She arrived in France on 26 January 1994, aged 15 years and 7 months, with Mrs D., a French national of Togolese origin. She had a passport and a tourist visa.", "11. It had been agreed that she would work at Mrs D.'s home until the cost of her air ticket had been reimbursed and that Mrs D. would attend to her immigration status and find her a place at school. In reality, the applicant became an unpaid housemaid for Mr and Mrs D. and her passport was taken from her.", "12. In the second half of 1994, Mrs D. “lent” the applicant to Mr and Mrs B., who had two small children, so that she could assist the pregnant Mrs B. with household work. Mrs B. also had another daughter from a first marriage who stayed with her during the holidays and at weekends. The applicant lived at Mr and Mrs B.'s home, her father having given his consent.", "13. On her return from the maternity hospital, Mrs B. told the applicant that she had decided to keep her.", "14. The applicant subsequently became a general housemaid for Mr and Mrs B. She worked seven days a week, without a day off, and was occasionally and exceptionally authorised to go out on Sundays to attend mass. Her working day began at 7.30 a.m., when she had to get up and prepare breakfast, dress the children, take them to nursery school or their recreational activities, look after the baby, do the housework and wash and iron clothes.\nIn the evening she prepared dinner, looked after the older children, did the washing up and went to bed at about 10.30 p.m. In addition, she had to clean a studio flat, in the same building, which Mr B. had made into an office.\nThe applicant slept on a mattress on the floor in the baby's room; she had to look after him if he woke up.", "15. She was never paid, except by Mrs B.'s mother, who gave her one or two 500 French franc (FRF) notes.", "16. In December 1995 the applicant was able to escape with the help of a Haitian national who took her in for five or six months. She looked after the latter's two children, was given appropriate accommodation and food, and received FRF 2,500 per month.", "17. Subsequently, in obedience to her paternal uncle, who had been in contact with Mr and Mrs B., she returned to the couple, who had undertaken to put her immigration status in order. However, the situation remained unchanged: the applicant continued to carry out household tasks and look after the couple's children. She slept on a mattress on the floor of the children's bedroom, then on a folding bed, and wore second-hand clothes. Her immigration status had still not been regularised, she was not paid and did not attend school.", "18. On an unspecified date, the applicant managed to recover her passport, which she entrusted to an acquaintance of Mr and Mrs B. She also confided in a neighbour, who alerted the Committee against Modern Slavery (Comité contre l'esclavage moderne), which in turn filed a complaint with the prosecutor's office concerning the applicant's case.", "19. On 28 July 1998 the police raided Mr and Mrs B.'s home.", "20. The couple were prosecuted on charges of having obtained from July 1995 to July 1998 the performance of services without payment or in exchange for payment that was manifestly disproportionate to the work carried out, by taking advantage of that person's vulnerability or state of dependence; with having subjected an individual to working and living conditions that were incompatible with human dignity by taking advantage of her vulnerability or state of dependence; and with having employed and maintained in their service an alien who was not in possession of a work permit.", "21. On 10 June 1999 the Paris tribunal de grande instance delivered its judgment.", "22. It found that the applicant's vulnerability and dependence in her relationship with Mr and Mrs B. was proved by the fact that she was unlawfully resident in France, was aware of that fact and feared arrest, that Mr and Mrs B. nurtured that fear while promising to secure her leave to remain – a claim that was confirmed by her uncle and her father – and by the fact that she had no resources, no friends and almost no family to help her.", "23. As to the failure to provide any or adequate remuneration, the court noted that it had been established that the young woman had remained with Mr and Mrs B. for several years, was not a member of their family, could not be regarded as a foreign au pair who had to be registered and given free time in order to improve her language skills, was kept busy all day with housework, did not go to school and was not training for a profession and that, had she not been in their service, Mr and Mrs B. would have been obliged to employ another person, given the amount of work created by the presence of four children in the home.\nIt therefore concluded that the offence laid down in Article 225-13 of the Criminal Code (see paragraph 46 below) was made out.", "24. The court also found it established that Mr and Mrs B. were employing an alien who was not in possession of a work permit.", "25. The court noted that the parties had submitted differing accounts concerning the allegations that the working and living conditions were incompatible with human dignity.\nIt found that the applicant clearly worked long hours and did not enjoy a day off as such, although she was given permission to attend mass. It noted that a person who remained at home with four children necessarily began his or her work early in the morning and finished late at night, but had moments of respite during the day; however, the scale of Mrs B.'s involvement in this work had not been established.", "26. The court concluded that, while it seemed established that employment regulations had not been observed in respect of working hours and rest time, this did not suffice to consider that the working conditions were incompatible with human dignity, which would have implied, for example, a furious pace, frequent insults and harassment, the need for particular physical strength that was disproportionate to the employee's constitution and having to work in unhealthy premises, which had not been the case in this instance.", "27. As to the applicant's accommodation, the court noted that Mr and Mrs B., who were well-off, had not seen fit to set aside an area for the applicant's personal use and that, although this situation was regrettable and indicated their lack of consideration for her, her living conditions could not be held to infringe human dignity, given that a number of people, especially in the Paris region, did not have their own rooms. Accommodation which infringed human dignity implied an unhygienic, unheated room, with no possibility of looking after one's basic hygiene, or premises which were so far below the applicable norms that occupation would be dangerous.", "28. Accordingly, the court found that the offence laid down in Article 225‑14 of the Criminal Code (see paragraph 46 below) had not been made out.\nNonetheless, the judges concluded that the offences of which Mr and Mrs B. were convicted were incontestably serious and were to be severely punished, particularly as the couple considered that they had treated the applicant quite properly.\nAccordingly, they sentenced them to twelve months' imprisonment each, of which seven months were suspended, imposed a fine of FRF 100,000 and ordered them to pay, jointly and severally, FRF 100,000 to the applicant in damages. In addition, Mr and Mrs B. forfeited their civic, civil and family rights for three years.", "29. Mr and Mrs B. appealed against this decision.", "30. On 20 April 2000 the Paris Court of Appeal gave an interlocutory judgment ordering further investigations.", "31. On 19 October 2000 it delivered its judgment on the merits.", "32. The Court of Appeal found that the additional investigation had made it possible to confirm that the applicant had arrived in France aged 15 years and 7 months, in possession of a passport and a three-month tourist visa. During the period that she lived with Mrs D., from January to October 1994, she had been employed by the latter, firstly, to do housework, cook and look after her child, and, secondly, in the latter's clothing business, where she also did the cleaning and returned to the rails clothes that customers had tried on, without remuneration.", "33. Around October 1994 the applicant had spent a few days at Mr and Mrs B.'s home, shortly before Mrs B. gave birth to her fourth child. She travelled by underground to Mr and Mrs B.'s home every day and returned to Mrs D.'s house in the evening to sleep.", "34. In July/August 1994 she was “lent” to Mr and Mrs B., and stayed in their home until December 1995, when she left for Mrs G.'s home, where she was remunerated for her work and given accommodation. She had returned to Mr and Mrs B. in May/June 1996 on her uncle's advice.", "35. The Court of Appeal noted that it had been established that the applicant was an illegal immigrant and had not received any real remuneration.\nFurther, it noted that it appeared that the applicant was proficient in French, which she had learnt in her own country.\nIn addition, she had learnt to find her way around Paris in order, initially, to go from Mrs D.'s home to the latter's business premises, and later to travel to Maisons-Alfort, where Mrs G. lived, and finally to return to Mr and Mrs B.'s home.", "36. She had a degree of independence, since she took the children to the locations where their educational and sports activities were held, and subsequently collected them. She was also able to attend a Catholic service in a church near Mr and Mrs B.'s home. In addition, she left the house to go shopping, since it was on one of those occasions that she had met Mrs G. and agreed with her to go to the latter's home.", "37. The Court of Appeal further noted that the applicant had had an opportunity to contact her uncle by telephone outside Mr and Mrs B.'s home and to pay for calls from a telephone box. She had met her father and her uncle and had never complained about her situation.", "38. Furthermore, Mrs B.'s mother confirmed that the applicant spoke good French and that she was in the habit of giving her small sums of money for family celebrations. She had frequently had the applicant and her grandchildren to stay in her country house and had never heard her complain of ill-treatment or contempt, although she had been free to express her views.", "39. The applicant's uncle stated that she was free, among other things, to leave the house and call him from a telephone box, that she was appropriately dressed, in good health and always had some money, which could not have come from anyone but Mr and Mrs B. He had offered to give her money, but she had never asked for any. He added that he had raised this question with Mrs B., who had told him that a certain amount was set aside every month in order to build up a nest egg for the applicant, which would be given to her when she left, and that the girl was aware of this arrangement.\nHe stated that, on the basis of what he had been able to observe and conclude from his conversations with the applicant and with Mrs B., the girl had not been kept as a slave in the home in which she lived.", "40. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants' intention to create a nest egg that would be handed over to her on departure had not been seriously disputed), in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established.\nIt also considered that it had not been established that the applicant was in a state of vulnerability or dependence since, by taking advantage of her ability to come and go at will, contacting her family at any time, leaving Mr and Mrs B.'s home for a considerable period and returning without coercion, the girl had, in spite of her youth, shown an undeniable form of independence, and vulnerability could not be established merely on the basis that she was an alien.\nAccordingly, the Court of Appeal acquitted the defendants on all the charges against them.", "41. The applicant appealed on points of law against that judgment. No appeal was lodged by the Principal Public Prosecutor's Office.", "42. In a letter of 27 October 2000 to the Chair of the Committee against Modern Slavery, the public prosecutor attached to the Paris Court of Appeal wrote:\n“In your letter of 23 October 2000 you asked me to inform you whether the public prosecution office under my direction has lodged an appeal on points of law against the judgment delivered on 19 October 2000 by the Twelfth Division of the court which heard the appeal in the criminal proceedings against Mr and Mrs B.\nThe Court of Appeal's decision to acquit the defendants of the two offences of insufficiently remunerating a person in a vulnerable position and subjecting a person in a vulnerable or dependent state to demeaning working conditions was based on an assessment of elements of pure fact.\nSince the Court of Cassation considers that such assessments come within the unfettered discretion of the trial courts, an appeal on points of law could not be effectively argued.\nThat is why I have not made use of that remedy.”", "43. The Court of Cassation delivered its judgment on 11 December 2001. It ruled as follows:\n“All judgments must contain reasons justifying the decision reached; giving inadequate or contradictory reasons is tantamount to giving no reasons.\nAfter an investigation into the situation of [the applicant], a young Togolese national whom they had employed and lodged in their home since she was 16, V. and A.B. were directly summoned before the criminal court for, firstly, taking advantage of a person's vulnerability or dependent state to obtain services without payment or any adequate payment, contrary to Article 225-13 of the Criminal Code and, secondly, for subjecting that person to working or living conditions incompatible with human dignity, contrary to Article 225-14 of the same Code.\nIn acquitting the defendants of the two above-mentioned offences and dismissing the civil party's claims in connection therewith, the appeal court, having noted that [the applicant] was a foreign minor, without a residence or work permit and without resources, nonetheless stated that her state of vulnerability and dependence, a common constituent element of the alleged offences, had not been established, given that the girl enjoyed a certain freedom of movement and that vulnerability could not be established merely on the basis that she was an alien.\nFurthermore, in finding that the offence defined in Article 225-13 of the Criminal Code had not been made out, the court added that 'it does appear that the applicant has not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants' intention to build up a nest egg that would be handed over to her on departure has not been seriously disputed)'.\nFinally, in acquitting the defendants of the offence set out in Article 225-14 of the Criminal Code, the courts found that subjection to working or living conditions incompatible with human dignity 'had not been established'.\nHowever, in ruling in this way, with reasons that were inadequate and ineffective with regard to the victim's state of vulnerability and dependence and contradictory with regard to her remuneration, and without specifying the factual elements which established that her working conditions were compatible with human dignity, the Court of Appeal failed to draw from its findings the legal conclusions that were required in the light of Article 225-13 of the Criminal Code and did not justify its decision in the light of Article 225-14 of that Code.\nThe judgment must therefore be quashed.\nFor these reasons,\n[The Court of Cassation] quashes the above-mentioned judgment of the Paris Court of Appeal dated 19 October 2000 but only in respect of the provisions dismissing the civil party's requests for compensation in respect of the offences provided for in Articles 225-13 and 225-14 of the Criminal Code, all other provisions being expressly maintained, and instructs that the case be remitted, in accordance with the law, for a rehearing of the matters in respect of which this appeal has been allowed. ...”", "44. The Versailles Court of Appeal, to which the case was subsequently referred, delivered its judgment on 15 May 2003. It ruled, inter alia, as follows:\n“As was correctly noted at first instance, the evidence shows that [the applicant], an alien who arrived in France at the age of 16, worked for several years for Mr and Mrs B., carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 a.m. to 10 p.m., without receiving any remuneration whatsoever; contrary to the defendants' claims, she was not considered a family friend, since she was obliged to follow Mrs B.'s instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased.\nIn addition, there is no evidence to show that a nest egg has been built up for her, since the list of payments allegedly made by the defendants is in Mrs B.'s name.\nIt was only at the hearing before the tribunal de grande instance that the defendants gave the victim the sum of 50,000 francs.\nFinally, far from showing that [the applicant] was happy to return to Mr and Mrs B.'s home, the conditions in which she did so after an absence of several months are, on the contrary, indicative of the pressure she had been subjected to by her family and of her state of resignation and emotional disarray.\nWith regard to the victim's state of dependence and vulnerability during the period under examination, it should be noted that this young girl was a minor, of Togolese nationality, an illegal immigrant in France, without a passport, more often than not without money, and that she was able to move about only under Mrs B.'s supervision for the purposes of the children's educational and sports activities.\nAccordingly, it was on appropriate grounds, to which this court subscribes, that the court at first instance found that the constituent elements of the offence punishable under Article 225-13 of the Criminal Code were established in respect of the defendants.\nWith regard to the offence of subjecting a person in a vulnerable or dependent position to working or living conditions that are incompatible with human dignity:\nAs the court of first instance correctly noted, carrying out household tasks and looking after children throughout the day could not by themselves constitute working conditions incompatible with human dignity, this being the lot of many mothers; in addition, the civil party's allegations of humiliating treatment or harassment have not been proved.\nEqually, the fact that [the applicant] did not have an area reserved for her personal use does not mean that the accommodation was incompatible with human dignity, given that Mr and Mrs B's own children shared the same room, which was in no way unhygienic.\nAccordingly, the constituent elements of this second offence have not been established in respect of Mr and Mrs B.\nIndependently of the sums due to [the applicant] in wages and the payment of 50,000 francs in a belated gesture of partial remuneration, Mr B., whose intellectual and cultural level was such as to enable him to grasp fully the unlawfulness of his conduct, but who allowed the situation to continue, probably through cowardice, has, together with Mrs B., caused [the applicant] considerable psychological trauma, for which should be awarded 15,245 euros in compensation, as assessed by the court of first instance.”", "45. On 3 October 2003 the Paris industrial tribunal delivered judgment following an application submitted by the applicant. It awarded her 31,238 euros (EUR) in respect of arrears of salary, EUR 1,647 in respect of the notice period and EUR 164 in respect of holiday leave." ]

[]

[ "4. The applicant is a water management association founded under Act no. 57 of 1995 on Water Management, with its seat in Mezőtúr, Hungary.", "5. On 18 December 1996 the applicant requested the Szolnok District Court to issue an order for payment against a limited liability company. On 27 March 1997 the respondent objected to the order and brought a counter-claim against the applicant. The proceedings continued as civil litigation.", "6. The District Court held hearings on 20 February, 8 April and 16 September 1998. In the meantime, on 10 July 1998 the District Court imposed a fine on the applicant’s legal representative for having failed to submit some requested documents.", "7. On 22 October 1998 the District Court appointed an expert architect. The expert submitted his opinion on 14 May 1999. The parties submitted their observations on 28 June and 23 September 1999.", "8. At the hearing of 24 September 1999, the applicant’s legal representative failed to appear. The court imposed a fine on him and invited him to make a statement in writing. He submitted his statement on 29 October 1999.", "9. The District Court held hearings on 13 December 1999 and 27 March 2000.", "10. On 31 May 2000 the court heard the parties’ representatives, the expert and some witnesses.", "11. On 8 June 2000 the District Court dismissed the applicant’s action and partly accepted the respondent’s counter-claim.", "12. On 23 November 2000 the Jász-Nagykun-Szolnok County Regional Court dismissed the applicant’s appeal. It filed a petition for review.", "13. On 17 April 2003 the Supreme Court dismissed the petition for review." ]

[ 3 ]

[ "9. The applicant was born in 1949 and lives in Witoszόw Dolny, Poland.", "10. The proceedings described below have already been examined by the Court from the point of view of the “reasonable time” requirement. In its judgment of 30 October 1998 the Court unanimously held that the Polish authorities had been in breach of Article 6 § 1 (Reports 1998-VIII, pp. 3387-3400).", "11. On 25 May 1992 the applicant, who was at that time the owner and the president of the management board of the company “Polpure” sued the Świdnica Municipality (Miasto Gmina) in the Wałbrzych Regional Court (Sąd Wojewódzki), seeking payment for construction works which it had carried out for the defendant. He also sought damages for the defendant’s delay in payment and penalties resulting from the breach of contract.", "12. On 27 May 1992 the company was exempted from court fees due for lodging the claim.", "13. On 7 September 1992 the Wałbrzych Regional Court gave judgment. It declared certain clauses of the contract null and void, as being in breach of a number of substantive civil law provisions.", "14. Following the applicant’s appeal, the judgment was later quashed and the case remitted.", "15. On 1 February 1993 the Wałbrzych Regional Court allowed the applicant’s claim for payment but declared null and void a clause of the contract that imposed penalties for the breach of contract. The parties’ further appeals were dismissed by the Wrocław Court of Appeal (Sąd Apelacyjny) on 27 April 1993.\n(ii) Facts after 1 May 1993", "16. On 25 June 1993 the Ombudsman filed with the Supreme Court (Sąd Najwyższy) an extraordinary appeal on behalf of the company, submitting that the Court of Appeal’s judgment had been in flagrant violation of substantive civil law and had unduly restricted the parties’ freedom of contract. That appeal was rejected on 7 October 1993.", "17. On 28 January 1994 the Supreme Court, on an application made by the applicant, reopened the extraordinary appeal proceedings. It amended its judgment of 7 October 1993, set aside the judgments of 1 February and 27 April 1993 and remitted the case to the court of first instance. It ordered that the claims, save for the already-awarded claim for payment, be reconsidered. The Supreme Court held that the previous judgments were in breach of substantive civil law. It gave guidelines as to how to proceed with the claims.", "18. On 5 May 1994 the applicant modified the claims and asked for a total award of 18,321,586,800 old Polish zlotys (PLZ). He also made an application to the Regional Court, asking for an exemption of the company from all court fees involved in the litigation.", "19. On 6 June 1994 the court partly granted the application and exempted the company only from a court fee due for lodging the modified claim (which would normally have amounted to PLZ 932,080,000), except for the first PLZ 66,000,000.", "20. The court observed that while it was true that the applicant’s company had encountered significant difficulties in recovering payments from third parties, had lost its credit solvency and was charged with debts, it had not yet been declared insolvent and was, accordingly, able to continue its commercial activity. In view of that, the court considered that exempting it from all future court fees would not be justified.", "21. On 20 July 1994, on an appeal filed by the applicant, the Wrocław Court of Appeal quashed that decision and held that the exemption from the court fee due for lodging the claim, granted on 27 May 1992, was still in force and applied to the modified claim.", "22. In a judgment of 20 February 1995 the Wałbrzych Regional Court ordered the defendant to pay pecuniary penalties to the applicant, but reduced their amount to PLZ 1,844,300,000 because it considered that the penalties originally fixed in the contract were excessive. It dismissed the claim for damages arising from the defendant’s delay in payment.", "23. On 30 March 1995 the applicant appealed against the judgment of 20 February 1995, arguing that the court had not made certain findings of fact which were relevant to the outcome of the case and that it had committed a number of procedural errors. He also asked for an exemption from court fees due for lodging an appeal on behalf of the company. That fee amounted to 84,593.54 new Polish zlotys (PLN). The Regional Court partly exempted the company, ordering that it should pay PLN 40,000.", "24. On 25 May 1995 the Wrocław Court of Appeal, on the applicant’s appeal lodged on behalf of the company, quashed that decision and exempted the company from the entire fee due for lodging the appeal. The court, finding that all the company’s assets had been attached in enforcement proceedings against it, that its bank accounts had been frozen and that its debts exceeded PLN 1,605,184, held that it was impossible for it to pay the fee in question.", "25. On 31 August 1995 the Wrocław Court of Appeal set aside the judgment of 20 February 1995 in so far as it had rejected the applicant’s claim for damages for the defendant’s delay in payment. It ordered that that claim be reconsidered since the trial court had failed to comply with the Supreme Court’s legal opinion and guidelines on that matter. It also criticised the manner in which the trial court had taken expert evidence.", "26. On 23 October 1996 the Wałbrzych Regional Court dismissed the claim for damages.\n(b) Applications for an exemption from court fees for proceeding with the appeal of 29 November 1996", "27. On 29 November 1996 the applicant filed, through the Wałbrzych Regional Court, an appeal to the Wrocław Court of Appeal. He submitted, among other things, that the Regional Court had for the second time failed to comply with the guidelines given by the Supreme Court and the Court of Appeal in respect of the claim for damages for the defendant municipality’s delay in payment and that it had disregarded the instructions given by the Court of Appeal in the judgment of 31 August 1995. The value of the claim asserted in the appeal proceedings was PLN 3,511,334.03. The applicant asked for an exemption from court fees due for lodging an appeal. The relevant part of his application read:\n“The plaintiff’s application for an exemption from court fees is based on the fact – a fact already ascertained by the court – that its financial situation has not improved but has become more difficult. The entire sum awarded by the previous judgment was, without any basis whatsoever, attached by the Bailiff of the Świdnica District Court. The defendant municipality, for its part, unjustifiably deducted its debts... from the sums awarded. The adjudicated claim was not therefore satisfied and the Bailiff in addition deducted from that sum PLN 73,014.28 by way of [costs of enforcement proceedings]. In consequence, the plaintiff sustained further loss. Moreover, the plaintiff’s debts have been climbing rapidly due to interest on arrears.”", "28. On 3 January 1997 the Wałbrzych Regional Court exempted the applicant’s company from all court fees save for the first PLN 20,000 and dismissed the remainder of the application. The relevant part of that decision read:\n“... the applicant has declared that it is still conducting its business activity, although it has limited it considerably. It emerges from entries made in the company’s cash book from January to October 1996 that since June 1996 cash holdings and disbursements exceeded PLN 20,000 and, in October, they reached PLN 44,000.\nIn the circumstances, exempting the applicant from the entire fee would be unjustified and that court exempts it only from fees exceeding PLN 20,000.”", "29. The applicant appealed against that decision on 15 January 1997. The appeal read, in so far as relevant:\n“... the Regional Court made erroneous findings in respect of the plaintiff’s financial situation: 1. As the plaintiff already stated, its situation, [assessed as bad by the Court of Appeal already on 25 May 1995] had not improved but had become worse. [the applicant further repeated the arguments adduced in the above-cited application]; 2. The plaintiff has already produced abundant documentary evidence [including the 1995 balance sheet, cash books, the relevant bank report and documents setting out financial analyses of the company’s standing] confirming the previously-described financial situation, a situation with which the Regional Court has become well acquainted throughout that lengthy trial. That situation is as follows: in the year 1995 the company sustained losses; in the year 1996 it sustained losses in each month; the income did not cover debts (the outstanding debt is PLN 4,945,74); all assets were attached (see the enclosed list of court files); the bank account is practically empty (see the bank’s report); ... the outstanding debt of PLN 4,945.74 was eventually covered by the partner in order to avoid the institution of winding-up proceedings. ...; 3. There is no dispute that the defendant ruined the plaintiff company ... which now is able to carry out only casual construction works; 4. The opinion of the Court of Appeal expressed in its decision of 25 May 1995 [as to the bad financial situation of the applicant’s company] is therefore still valid\n...”", "30. On 13 February 1997 the Wrocław Court of Appeal dismissed the appeal, considering that the applicant’s company had sufficient means to pay the court fees. The court stressed that, pursuant to Article 113 § 2 of the Code of Civil Procedure, grounds for exempting a legal person from court fees were stricter; the court “could” but did not “have to” exempt it from such fees even if it proved that it did not have means to pay them. Furthermore, the Court of Appeal observed that since the applicant’s company still continued its business activity and derived a systematic income from it (which, recently, had been in excess of the PLN 20,000 needed for the required court fees), the Regional Court had correctly concluded that the applicant could pay that sum. A prospective litigant, the court added, should take into account the need to secure the court fees for the litigation and put aside part of his or its income for that purpose.", "31. On 9 March 1997 the applicant made another application for an exemption from court fees, arguing that in the course of the prolonged litigation his company’s financial situation had deteriorated very significantly. He stressed that three days earlier the Bailiff had frozen the last two of the company’s bank accounts and attached PLN 2,214.15 and PLN 1,294.83 respectively (those sums had been the applicant’s salaries). Furthermore, the Świdnica Tax Office (Urząd Skarbowy) had ordered the company to pay immediately PLN 28,656.90 in tax arrears, together with default interest. In the circumstances, the company did not have any means whatsoever to pay the court fees. The applicant produced the relevant documentary evidence in support of his application. Those documents showed that the company had incurred a loss of PLN 23,711.04 in the year 1996, a loss of PLN 425,49 in January 1997 and a loss of PLN 4,954.79 in February 1997.", "32. On 3 April 1997 the applicant’s lawyer filed a pleading with the Regional Court and asked it to hear evidence from the applicant in order to establish the current financial standing of the company.", "33. On 14 April 1997 the court exempted the company from court fees exceeding PLN 10,000. It observed that in December 1996 the applicant’s company had an income of PLN 20,000 and that it could therefore pay the court fees previously imposed on it. In the court’s opinion, the documents produced by the applicant showed that since December 1996 to March 1997 the company’s management could have put aside money for securing court fees. However, having regard to the new facts supplied by the applicant on 9 March 1997, the court considered that the original fee should be reduced.", "34. The applicant appealed on 8 May 1997. He stated, among other things, that he had been a “well-known bankrupt” and that he had no means whatsoever to pay court fees and, by reason of the fact that the company had lost its credit solvency, he could not even obtain a loan for the purpose of securing court fees. Yet as he had obtained a modest financial support, i.e. PLN 500 from a third person, he was prepared to pay that sum to the court. He further criticised the court for having considered only cash reports, which had not reflected the real state of the company’s business, and for having ignored the fact that under the applicable laws his company had a legal duty to disburse all cash in hand for tax arrears. He also stressed that the court had completely overlooked the losses the company had incurred.", "35. On 9 June 1997 the Wrocław Court of Appeal dismissed the appeal. It considered that despite the losses sustained, the company could have put aside money for the court fees in question. In the court’s view, the company’s cash holdings should, in the first place, have been used for the court fees. The court also observed that the company should have regarded payment of those fees as its priority. Lastly, the court noted that the proceedings relating to the exemption from court fees had lasted for such a long time that the plaintiff could have secured money for the fees.", "36. On 16 July 1997 the applicant made yet another application for an exemption from the court fees for lodging the appeal, save for the first PLN 500. He asked the Regional Court to obtain expert evidence and to hear evidence from himself as the president of the management board in order to establish the financial standing of his company. He submitted documents showing that he had in the meantime applied to two banks for loans to secure the court fees but that his applications had been rejected because of the very bad financial situation of the company. On 12 August 1997 the applicant filed a pleading and produced further documentary evidence. It emerged from the relevant documents that from 1 January to 30 June 1997 the applicant’s company had incurred a loss of PLN 3.090,71.", "37. On 17 July 1997 the applicant paid PLN 500 to the court.", "38. On 1 September 1997 the Wałbrzych Regional Court refused to grant the plaintiff any further exemption from court fees. The court reiterated the grounds already cited in its previous decisions. It rejected the application for evidence to be obtained from the applicant and the expert proposed by him.", "39. The applicant appealed against that decision, but on 16 October 1997 the Wrocław Court of Appeal rejected his appeal.", "40. On 15 December 1997 the applicant asked the Regional Court to allow him to pay the fee in instalments but his application was refused.", "41. On 17 December 1997, the Wałbrzych Regional Court refused to proceed with the appeal against the judgment of 23 October 1996 and rejected it for non-compliance with the court’s decision ordering the company to pay the court fees for lodging the appeal.", "42. From 29 January to 30 March 1998 both the Regional Court and the Court of Appeal considered the applicant’s subsequent, repeated and eventually unsuccessful applications for an exemption from court fees.", "43. On 29 May 1998 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision rejecting his appeal of 29 November 1996 on formal grounds.", "44. The applicant lodged with the Supreme Court a cassation appeal against that decision on 30 June 1998. The company was ordered to pay a court fee of PLN 10,000 for proceeding with the cassation appeal. That sum was paid on 16 November 1998. The applicant first submitted that the company had never paid a court fee to proceed with the cassation appeal since it could not afford it. Subsequently, he stated that that amount was paid by his friends on his behalf.", "45. The cassation appeal was rejected on 10 June 1999." ]

[ 3 ]

[ "7. The applicants, Mr Grzegorz Jedamski and Mrs Teresa Jedamska, are a married couple. They are Polish nationals, who were born in 1954 and 1960, respectively. They live in Mikołajki Pomorskie, Poland.", "8. The proceedings summarised below have already been examined by the Court under Article 6 § 1 of the Convention from the angle of the “reasonable time” requirement. In its judgment of 26 July 2001 (Jedamski v. Poland appl. no. 29691/96) the Court (former Fourth Section) unanimously held that there had been a violation of Article 6 § 1.", "9. On 22 December 1992 the Łódź Bank of Development (Łódzki Bank Rozwoju), submitting a bill of exchange payable to bearer which required the first applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court (Sąd Rejonowy) to issue an order for payment against him.", "10. On 14 January 1993 the court granted the plaintiff’s claim and ruled that the first applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order. The first applicant appealed.", "11. On 11 February 1993, acting under a provisional writ of execution of 1 February 1993 and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court (Komornik Sądu Rejonowego) made an order attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu) and an unknown sum of cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court.", "12. On 26 February 1993 the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff (skarga na czynności komornika), relying on Article 767 of the Code of Civil Procedure and arguing that the attached shares constituted the matrimonial property of the applicants, whereas the execution was against the applicant alone.", "13. On 12 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA (Bank Inicjatyw Gospodarczych SA). The BIG Bank SA replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings.", "14. On 23 February 1999 the Łódź Regional Court quashed the order for payment and awarded the plaintiff bank 1,954,097.49 new Polish zlotys (PLN) [approx. EUR 442,000] together with interests and costs of the proceedings. The plaintiff bank and the first applicant appealed against that judgment.", "15. On 9 April 1999 the Łódź Regional Court secured the plaintiff’s already-awarded claim by attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu), an amount of PLN 984,674.50 in cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.) and shares in the former Łódź Bank of Development (Łódzki Bank Rozwoju) (taken over by the BIG Bank SA) deposited in the Łódź District Court by the Bailiff of the Łódź District Court (Komornik Sądu Rejonowego).", "16. On 6 October 1999 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed the appeal lodged by the first applicant against the decision of 9 April 1999.", "17. On 19 October 1999 the Łódź Court of Appeal upheld the decision of 23 February 1999.", "18. On 16 November 2000 the Bailiff of the Warsaw District Court discontinued the enforcement proceedings instituted under the writ of execution of 1 February 1993. Nevertheless, the attachment of the applicants’ property made on 9 April 1999 remained in force.", "19. On 26 January 2001 the Supreme Court dismissed the cassation appeal lodged by the first applicant.", "20. On 10 May 2001 the Supreme Court rejected the first applicant’s request to reopen the proceedings.", "21. On 28 December 2000 the applicants sued the Warsaw BIG Bank SA in the Warsaw Regional Court (Sąd Okręgowy). They sought damages of PLN 340,000,000 claiming that the attachment of their property, in particular the shares, made at the BIG Bank SA request on the basis of the quashed order for payment of 14 January 1993, deprived them of any future profit-making trade in shares at the Warsaw Stock Exchange.", "22. On 23 January 2001 the applicants informed the court that, on 5 January 2001, as a result of the banks’ merger, the BIG Bank SA (Bank Inicjatyw Gospodarczych SA) had been taken over by the BIG Bank Gdański SA. From that date onwards, the BIG Bank Gdański SA replaced the former bank as a defendant in the proceedings. On an unknown date the court ordered the applicants to pay a court fee of PLN 100,000 for lodging the claim.", "23. On 23 January 2001 the applicants asked the Warsaw Regional Court to exempt them from payment of that fee. They also submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. Their application read, in so far as relevant:\n“... The plaintiffs ask for an exemption from the court fee on the ground that they cannot pay that sum as it will entail a substantial reduction in their standard of living.\nThe plaintiffs’ matrimonial property was seized by the Bailiff acting upon the decision of the Łódź Regional Court of 9 April 1999.\n[in connection with that argument, the applicants produced a copy of that decision]\nTheir income from a farm, which is the second applicant’s personal property, does not suffice for the payment of PLN 3,957.50 the plaintiffs owe in tax arrears.\n[in connection with this argument, the applicants produced a copy of a certificate issued by the Mikołajki Pomorskie Commune Office (Urząd Gminy) stating the anticipated income and tax arrears]\nThe plaintiffs declare that they are not deriving the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production.\nThe plaintiffs further state that, given that their other assets were attached, their only present income is that from the farm. In the circumstances, the plaintiffs are unable to pay the court fees.\nFinally, the plaintiffs inform [the court] that in other civil proceedings, the Łódź Regional Court, in its decision of 9 June 1999, exempted the first applicant from paying the full amount of fees.\n[in connection with that argument, the plaintiffs produced a copy of that decision]”\nThe declaration of means made by the first applicant read, in so far as relevant:\n“The plaintiff asks for an exemption from court fees on the ground that he cannot pay the fee in question [as it will] entail a substantial reduction in his standard of living.\nHe has the following items of property:\n1) no personal property; the average anticipated annual income from the agricultural farm is estimated at PLN 66,140.43;\n2) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff);\n3) 11 shares in the BIG BG SA;\n4) audio and television equipment; furniture.”", "24. The declaration of means made by the second applicant read, in so far as relevant:\n“The plaintiff asks for an exemption from court fees on the ground that she cannot pay the fee in question [as it will] entail a substantial reduction in her standard of living.\nShe has the following items of property:\n1) agricultural farm, the average anticipated annual income from which is estimated at PLN 66,140.43;\n2) car;\n3) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff);\n4) 11 shares in the BIG BG SA;\n5) audio and television equipment; furniture.”", "25. On 30 January 2001 the court rejected the applicants’ application. The reasons for that decision read, in so far as relevant:\n“... As it emerges from the plaintiffs’ declarations of means, the second applicant is a sole owner of the farm of 57.44 ha ... The annual anticipated income from the farm amounts to PLN 66,140.43 and constitutes the only source of the plaintiffs’ income. Moreover, the plaintiffs are the owners of PLN 984,674.50 in cash, 62,500 shares in the BRE Bank SA and 9,950 shares in the BIG Bank SA. It is true that their cash and shares have been attached by the decision of the Łódź Regional Court, but the plaintiffs’ real financial situation does not seem to be as bad as they present it. Taking into consideration their assets and income derived from the farm, the plaintiffs are able to pay the full amount of the court fees without any reduction in their family’s standard of living. When deciding to bring the present claim, the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees. They should therefore have secured financial means in anticipation of the litigation...”", "26. On 13 February 2001 the applicants lodged an interlocutory appeal (zażalenie) against that decision. They alleged a breach of Article 113 § 1 of the Code of Civil Procedure and Article 6 § 1 of the Convention. The applicants maintained that it had clearly emerged from the documents produced by them, in particular the Łódź Regional Court’s decision to secure the plaintiff’s claim for payment by attaching the applicants’ shares and the declaration setting out the average anticipated annual income from the farm, that they were unable to pay the court fee of PLN 100,000 imposed on them.", "27. On 9 March 2001 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The relevant part of that decision read:\n“... The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means. This conclusion cannot be changed by the fact that part of their property is attached in other civil proceedings. The plaintiffs still remain the owners of their property and, consequently, should be able to take necessary measures to gather sufficient means to pay the court fees. The plaintiffs are involved in a number of proceedings concerning pecuniary and non-pecuniary rights to their shares in commercial companies and, in the past, they made a large number of transactions on the stock exchange market. These facts indicate that the plaintiffs ... cannot be regarded as indigent and that the court fees for lodging their claim should not be borne by the State.\nTheir declaration of means is dubious because it is not complete. The plaintiffs did not indicate precisely whether they had title to their apartment. They did not reveal the real income derived from the farm. Nor did they produce any information concerning the type of activities in which they are engaged on their farm. Moreover, [the first applicant] failed to indicate his place of employment; his being his wife’s dependant seems doubtful.... Lastly, the plaintiffs did not supply any information concerning their house or the farm equipment. That information would have enabled the court to ascertain their real standard of living.\nAssessing all the circumstances, the following conclusion can be drawn: the plaintiffs, who have failed to show their current financial situation and to reveal their income, cannot successfully challenge the first-instance decision which rejected their application for an exemption from court fees. They cannot therefore complain that they are deprived of access to a court.\nIn addition, it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [that value] depended on the plaintiffs....”", "28. On 30 April 2001 the Warsaw Regional Court ordered the applicants to pay PLN 100,000 for lodging their claim. The applicants did not pay that sum. As a consequence, on an unknown date, the Warsaw Regional Court ordered that the applicants’ statement of claim be returned to them (zarządził zwrot pozwu), which meant that their claim was of no legal effect and that the relevant proceedings were, for all legal and practical purposes, regarded as having never been brought before the court." ]

[ 3 ]

[ "8. The applicants were born in 1967 and 1970 respectively and live in Vantaa.", "9. A shop selling fur coats in Kokkola was burgled on 1 March 1995. Two men, M. and R., were charged with aggravated theft before the District Court of Kokkola (käräjäoikeus, tingsrätten). On 10 April 1995 the District Court convicted them both as charged. The convictions were based on their acknowledgement of the charges.", "10. The police investigation concerning the applicants as suspects in the above-mentioned offence began on 11 May 1995, when they were taken into police custody. The first applicant was arrested on 12 May 1995 by a decision of the District Court. The second applicant was arrested on the same day, but released in the afternoon.", "11. The criminal proceedings against the applicants were instituted before the above District Court on 5 June 1995. They were charged with aggravated theft. They were suspected of having stolen fur coats worth 327,500 Finnish marks (FIM; 55,081.55 euros (EUR)) as accomplices with M. and R., who had already been convicted of the same offence. The applicants denied the charges.", "12. According to the indictment, the applicants visited the fur shop in the beginning of February 1995 and made themselves familiar with the shop and its merchandise. The second applicant tried on headgear and promised to collect it the following week after it had been altered to fit her. The applicants did not, however, return to the shop at the agreed time, or later. During their visit to the shop, the first applicant requested to see the most expensive fur coat and the salesman showed him a rack with the most expensive furs. Later on, the first applicant proposed to M. to steal fur coats from the shop. At the end of February M. and the applicants contacted R., who lived in the Helsinki area, and apparently M. asked R. to take part in the burglary. Having rented or borrowed a Chevrolet Chevy van from D. on 28 February 1995, R. and M. drove to Kokkola, the applicants driving ahead of them in their light coloured Opel. M. and R. spent the night in the applicants’ home in Kokkola. The following day, i.e. on 1 March 1995, the first applicant showed M. and R. the fur shop by driving past it a couple of times in the above-mentioned Opel. Then all three of them returned to the apartment. The applicants stayed at home while M. and R. returned to the shop in the van, broke into the shop and stole the fur coats. Immediately after the burglary M. and R. left for Espoo, a town in the Helsinki area. The applicants followed M. and R. to Espoo in their own car. Together they hid the fur coats in a garage rented by the first applicant. Later on, the first applicant, M. and R. began to market the fur coats.", "13. M. and R. were not present as the summons to appear before the court had not been served upon them. The public prosecutor referred in evidence to the statements given by them during their own police investigation. According to M.’s statement, the first applicant had told him that the applicants had visited the shop in order to buy headgear and while there, he had got the idea of stealing the furs. The first applicant had proposed that M. break into the shop. M. had considered the proposal and eventually, about a month later, accepted it as he was in need of money. According to M., the applicants did not take part in the burglary. In the beginning, the first applicant had said that the money would be divided into four parts, i.e. the second applicant would also have got her share. In R.’s statement to the police he said that the first applicant had told him about his plans of breaking into a fur shop, which the applicants had visited in order to buy something for the second applicant. R. could not, however, remember whether it was M. or the first applicant who had asked him to join them. R. told the police that he and M. had driven to Kokkola in the van, following the applicants. They had spent the night at the applicants’ apartment. The next day, the first applicant, M. and R. went to have a look at the shop in the first applicant’s car. In the evening M. and R. returned to the shop, while the applicants stayed at the apartment. After the burglary they all left for Helsinki, but in two separate cars. They all met twice for coffee during the journey. Having reached Helsinki, they went to a garage to which the first applicant had the keys. Later on M. and the first applicant began to market the furs. According to R., the burglary was the first applicant’s idea. M. and R. had not even visited Kokkola before the burglary.", "14. At this point the applicants’ counsel noted that if the applicants were to be convicted on the basis of the statements given by M. and R., they should be heard in person before the court.", "15. The fur shop’s salesman V. gave testimony before the District Court. He identified the applicants as the couple who had visited his shop in February. The day of the burglary he had noticed a white car driving by with three men in it. All three had turned their heads looking at the shop, but they had been too far away to recognize.", "16. The lender of the van, D., was heard as a witness before the court. He repeated his statement given during the police investigation, inter alia, that having been questioned by the police [on 13 March 1995] he was contacted by the first applicant, who wanted to know what D. had told the police, but before the District Court D. was no longer certain as to whether it was the first applicant or R. who had queried what he had told the police. D. was also uncertain as to whether he had seen the applicants in R.’s company before lending his van or after it had been returned to him. Furthermore, D. said that at the relevant time he was selling and buying cars and that he had discussed a car deal with the first applicant when they met. D. also said that his van did not carry any stickers or the like.", "17. Police officer Y. was also heard as a witness before the District Court. He told the court that he had in general kept an eye on the first applicant as he was aware of his past. The day of the burglary he had seen a van parked in the parking lot outside the applicants’ apartment. He was not certain as to whether it was the same van as the one used by M. and R. in the burglary. Y. had noticed that the van carried a yellow sticker from which he had concluded that the car originated from the Helsinki area.", "18. At this point the public prosecutor referred to the first applicant’s statement during the police investigation according to which he did not remember ever visiting the fur shop, but that he might have gone there while Christmas shopping. Moreover, the first applicant had told the police that he had discussed a car deal with D., but he had concealed the fact that he had been present when the van was returned.", "19. The public prosecutor referred to the second applicant’s statement during the police investigation, according to which she denied having ever visited the fur shop or that M. and R. had spent the night at the applicants’ apartment in Kokkola. Furthermore, she told the police that she had visited a friend, I., in Espoo, on the day of the burglary.", "20. The public prosecutor pointed out that I. when questioned as a witness by the police [on 31 May 1995] did not confirm the second applicant’s story. According to I., the second applicant had rung her a couple of weeks earlier and asked her to give her an alibi. I. was not heard before the District Court during this session.", "21. The District Court adjourned the case until 29 June 1995, ordering the public prosecutor to call M. and R., who were in liberty, to be heard before the court.", "22. On 29 June 1995, the public prosecutor requested that the case be adjourned as M. and R. had not been summoned yet. The District Court adjourned the case until 11 October 1995.", "23. On 11 October 1995 the case was heard before the court again. M. and R. were absent even though they had been summoned. The public prosecutor noted that according to Article 6 § 3(d) of the European Convention on Human Rights and Fundamental Freedoms, the applicants had a right to examine or have examined the witnesses against them, but that right was not unconditional. He referred to two judgments of this Court (Asch v. Austria, judgment of 26 April 1991, Series A no. 203 and Artner v. Austria, judgment of 28 August 1992, Series A no. 242‑A). In particular, the public prosecutor referred to the principle according to which there was no violation of Article 6 § 3(d), if the conviction was primarily based on other evidence submitted during the trial. In this respect, he referred to the evidence given by the witnesses and argued that the applicants could be convicted even though they had not been able to examine M. and R. as witnesses during these proceedings. The District Court again adjourned the case until 29 February 1996, ordering the public prosecutor to summon M. and R. to be heard before the court.", "24. On 28 February 1996 M. sent a facsimile to the District Court, withdrawing all his statements during the police investigation concerning the applicants as they were false. He alleged that he had personal reasons to make erroneous statements and, while in detention, had been given to understand that such statements could contribute to his release. Moreover, he informed the court that he was aware of the fact that he could not be forced to appear before the District Court. M.’s facsimile was communicated to the applicants and to the public prosecutor at the hearing of 29 February 1996.", "25. On that same day, the District Court rejected the charges against the applicants as it found that the mere fact that V. had given evidence that the applicants had visited his shop as customers in February and that the van used in the burglary had been seen parked in the parking lot close to the applicants’ apartment did not show that the applicants had committed the offence with which they were charged.", "26. The public prosecutor appealed to the Vaasa Court of Appeal (hovioikeus, hovrätten), requesting that the applicants be convicted as charged. According to him, the evidence presented before the District Court, taking into account also the statements of M. and R., was strong enough to justify a conviction.", "27. On 26 November 1996 the Court of Appeal held an oral hearing, in which the applicants, V., D. and Y. were reheard. D. clarified that the applicants had been in M.’s and R.’s company when the van was returned to him and that it was the first applicant who had queried what D. had told the police when he was questioned.", "28. In addition I. was heard as a witness before the Court of Appeal. She testified that the second applicant had visited her in Espoo in the afternoon of 1 March 1995. I. was certain that the first applicant had dropped the second applicant off at the apartment and then picked her up a couple of hours later. According to I., the version given to the Court of Appeal was the truth. When questioned by the police, she had not been able to tell the truth due to the police officer’s unpleasant attitude towards her. At that time, she did not want to get involved in the case.", "29. M. and R. were not summoned and they were not heard before the Court of Appeal. Nor did the applicants request that M. and R. be heard.", "30. On 27 December 1996 the Court of Appeal convicted the first applicant of aggravated theft and sentenced him to one year and ten months’ imprisonment. The second applicant was convicted of aiding and abetting the above-mentioned offence by visiting the fur shop together with the first applicant. She was sentenced to a suspended term of four months’ imprisonment. The Court of Appeal, having first referred to the Court’s judgments Asch v. Austria and Artner v. Austria, cited above, found that:\n“M.’s and R.’s statements concerning the events given during their police investigation and repeated before the District Court [in their own case] are supported by other evidence presented in the present case. V. observed the applicants visit the fur shop and D. noted the presence of the applicants when the borrowed van was returned to him. Moreover, the first applicant showed an interest in what D. had told the police. Furthermore, the statements of M. and R. are supported by Y.’s observation of D.’s van in Kokkola close to the applicants’ apartment.\nEven though the applicants did not have an opportunity to put questions to M. and R., they had an opportunity to submit arguments against their statements, both during the police investigation and also before the District Court as well as the Court of Appeal. The applicants have, nevertheless, denied having ever visited the fur shop, which, taking into account the certainty of V. as to the applicants’ identity, tends to diminish the credibility of the applicants’ statements.\nThe Court of Appeal does not find that the changing of I.’s statement - or the reasons given for the change - are credible. The Court of Appeal finds it irrelevant that M. has, in a facsimile submitted to the District Court, retracted his earlier statement.”", "31. The applicants requested leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), arguing that they should have had a right to examine M. and R. before the courts, as the other evidence was not strong enough to support their convictions. The alleged fact that they had visited a shop or passed by it did not prove that they had committed the serious offences they were convicted of. Furthermore, on the day of their alleged visit to the fur shop they had both been at an oral hearing before the District Court of Espoo, which is situated some 490 kilometres from Kokkola, and could not even in theory have been at the shop at the time mentioned in the judgment. The applicants later submitted to the Supreme Court a copy of the District Court’s minutes of that day in support of their argument.", "32. On 9 June 1997 the Supreme Court refused the applicants leave to appeal." ]

[ 3 ]

[ "4. The applicants were born in 1956, 1954 and 1955 respectively and live in Munich, Germany.", "5. In 1995 the Sakarya Governor’s office expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot of land and the relevant amount was paid to them when the expropriation took place.", "6. Following the applicants’ request for increased compensation, on 11 September 1997 the Sakarya Civil Court of First-instance awarded them an additional compensation of 865,267,950 Turkish liras (TRL)[1] plus interest at the statutory rate running from 12 December 1995, the date on which the title-deed to the land had been transferred to the Sakarya Governor’s Office. In the course of the proceedings, the court conducted on-site visits and requested three expert reports which concluded that the land in question was development land (arsa). In view of a judgment rendered by the Joint Civil Chambers of the Court of Cassation which ruled that the lands within the vicinity of the Sakarya organised industrial zone should be considered as agricultural lands, the court decided that it would not take the three expert reports into account. It therefore relied on a fourth expert report which served as a conciliation report for a calculation of the amount due to the applicants.", "7. The applicants appealed against the judgment of the Sakarya Civil Court of First-instance. In their submissions, the applicants contested the court’s decision to take solely the last expert report into consideration.", "8. On 12 February 1998 the Court of Cassation upheld the judgment of the Sakarya Civil Court of First-instance.", "9. On 1 April 1998 the Sakarya Governor’s Office paid the amount of TRL 1,513,641,033[2] to the applicants.", "10. On 26 May 1998 the Court of Cassation rejected the applicants’ request for rectification." ]

[ 9 ]

[ "12. The applicant, born in 1972, originates from the former Zaire (currently the DRC). He arrived in Finland on 20 July 1998 and immediately applied for asylum.", "13. On his arrival in Finland the applicant filed an asylum request written in French, stating that he had left the DRC 13 months ago; that he had been trained to join the presidential guards and had been working as an informant in Office D of the special force responsible for protecting the then President Mobutu (Division Spéciale Présidentielle; “the DSP”); that he had belonged to the President’s and the DSP Commander-in-Chief’s inner circle; that he had been arrested in Angola while in the possession of a DSP badge and a photograph of Mobutu; that his life was in danger on account of his position and his Ngbandi origin; and that Laurent-Désiré Kabila’s regime (who had seized the power in the DRC in May 1997) had put out a warrant of arrest on former DSP agents. The applicant named three high-ranking officers within the DSP whose grades he also indicated.", "14. According to the record of the asylum interview with the applicant on 22 July 1998, it was conducted with the assistance of a French interpreter. The applicant stated that he had been born on 2 December 1972 in Gbadolite in former Zaire; that he was a Christian of the Ngbandi tribe; that he had been a DSP agent by profession; that he had resided at Pavillon no. 22 at the presidential compound Camp Tshatshi in Kinshasa; that he was single; that his mother tongue was Lingala and that he also knew French, Kigongo and Swahili. He indicated the names of his parents and sister. He had gone to elementary and high school for a total of 12 years and had undergone a one-year training programme to become a garde civile. He had performed his military service in 1989-90, receiving the grade GT 2 (regional guard, class II). He also indicated his salary while working in the DSP.", "15. The applicant further stated that he had been an asylum seeker in the Netherlands from 9 August 1993 to 26 October 1995, when he had been deported. On his return he had been living at Camp Tshatshi together with the President’s nephew, a named general. He had had at his disposal two rooms, a living room, a shower and parking spaces for his two cars. He had also had a considerable amount of money at his disposal.", "16. Asked why he did not carry a passport on arriving in Finland, he had stated that it had remained with a (named) Commander in the President’s administration when the applicant had left the DRC.", "17. Asked to describe his departure from the DRC, the applicant stated that he had left Kinshasa by boat to go to the airport in Brazzaville (the Republic of Congo) on 17 May 1997. At the end of June 1997 he had continued by train to Point Noir and from there by boat to Cabinda in Angola. There he had been staying for three months in order to acquire an Angolan identity card; he had been living in a house owned by a local. He had then travelled to Luanda by plane; he had run into some difficulties as he had not been speaking Portuguese; he had been arrested but had been allowed to continue his journey after he had paid some money. He had stayed in Luanda in the Petragol neighbourhood for one month, following which he had been detained in the Viana prison for three months (in October 1997), the authorities having taken him for a soldier in Mobutu’s forces as he had been unable to speak Portuguese. During his detention a rifle had been used to hit him in the shoulder and he had been forced to dig graves. In 1998 he had been transferred to an army prison in Bengela, where he had spent a further five months. Prisoners had been forced to take part in armed fighting but the applicant had managed to avoid this due to his injured and infected shoulder. The fighting had occurred at the diamond mines where Angolan rebels (the Savimbi guerrilla) had been fighting President José Eduardo do Santos’s troops.", "18. After a fellow detainee, Antonio, had promised to help him out of prison the applicant had arrived in the Namibian border town Santa Clare on 14-15 July 1998. With the assistance of a “merchant” he had left for South Africa through Namibia on 16-17 July, travelling under a cover on a truck. From Johannesburg he had departed for Amsterdam on a KLM flight on 19 July. The airport staff had helped him embark on the plane even though he had possessed no documents. From Amsterdam he had continued on a KLM flight to Helsinki on 20 July. Antonio had arranged for someone to explain to the applicant how to get to Helsinki. In Amsterdam the applicant had been able to transfer to the plane for Helsinki simply by showing his boarding pass.", "19. As for his reasons for leaving the DRC in 1997, the applicant stated that when President Mobutu had fled and had been replaced by Laurent-Désiré Kabila, the latter’s regime had started killing all who had been working under Mobutu. Were the applicant to return to the DRC he too would be killed as a former DSP agent. In addition, he was of the Ngbandi tribe to which Mobutu also belonged.", "20. Asked how he had organised his trip the applicant stated that Antonio had paid USD 15,000 for the whole “package”. The applicant had possessed some money of his own as well as diamonds. Before leaving the DRC he had stolen diamonds from “the office of the Lebanese”; actually, it had not been a theft but “a question of saving a life”. The diamonds had belonged to Mobutu’s son; the applicant had sold them in Angola for USD 20,000, aided by a friend named Roberto. The applicant had not seen which country’s passport Antonio had organised for him to use.", "21. Asked about his political activities the applicant stated having worked as a secret agent for Mobutu’s army from 1990 (in the office of the DSP and Office D of the Bureau d’Intelligence). Under the cover of a civilian in the street he had been listening in on the opposition’s criticism of Mobutu and had denounced various individuals critical of the regime. In 1993 the (named) Commander of Office D had sent him to the Netherlands to denounce individuals criticising Mobutu. After he had reported their names to the Commander their families in Zaire had been apprehended. The applicant had travelled to the Netherlands on an Angolan passport under the name of Alexandre.", "22. Asked whether he had ever been convicted and sentenced, formally wanted by the authorities or tortured or threatened, the applicant answered in the negative.", "23. Responding to a request for assistance from the Finnish authorities, the Dutch Ministry of Justice, in December 1998 confirmed – after having matched the applicant’s fingerprints – that he had applied for asylum in the Netherlands in 1993, that his request had been refused in December that year and that his objection to the refusal had been declared unfounded in April 1994.", "24. It emerges from the material forwarded by the Dutch authorities that when seeking asylum in 1993 the applicant had referred to his father as a military official; that from 1991 the two had been leaking information about the DSP to the opposition group UDSP and had eventually been arrested; that the applicant had been playing on the same football team as President Mobutu’s son; that on 27 July 1993 he had been granted leave to play a match after which he had managed to escape during a meal with the team; and that afterwards he had travelled to the Netherlands via Bandundu, Ilebo, Lumubashi, Lusaka, Namibia and South Africa.", "25. The Dutch authorities had concluded that the applicant’s account in 1993 had not been credible.", "26. On 6 March 2001 the Directorate of Immigration (ulkomaalais-virasto, utlänningsverket) ordered the applicant’s expulsion to the DRC and prohibited him from re-entering Finland, or from entering Sweden, Norway, Denmark or Iceland for two years. The Directorate found the applicant’s account of his having belonged to President Mobutu’s and the DSP Commander’s inner circle not credible. The applicant had also failed to prove his identity. If returned, the applicant would not face any real risk of treatment contrary to Article 3 merely on account of belonging to the same tribe as the former President or having worked as a lower-ranking official in his administration. As far as the Directorate was aware, only higher-ranking officials who had been abusing their office risked prosecution by the Kabila regime. That regime had actually been quite accepting of officials having worked for Mobutu and many such officials of senior rank had already returned to the country. The regime in the DRC had changed again in 2001, following which the general situation in the country had improved.", "27. The Directorate of Immigration further noted that the applicant had been found guilty on two counts of shoplifting in August 1999.", "28. The applicant appealed to the Administrative Court of Helsinki on 26 April 2001.", "29. At the hearing before the Administrative Court on 17 May 2002 the applicant – assisted by counsel and an interpreter – stated that he was the son of an officer in the DSP and had been sent to military service at the age of fourteen. He had passed his school examination in 1990. His first missions for the DSP had involved infiltrating dissident student associations at universities. About 15 secret agents had been operating at different faculties. During a mission to Lumumbashi he had been investigating cobalt smuggling to South Africa. He had travelled to Johannesburg as a “student” and had denounced someone who had eventually been arrested. He had sworn two oaths of loyalty, one for the FAZ (Forces Armées Zairoises) and a further one for President Mobutu and the DSP. The latter had been responsible for the President’s security and had been led by a general and his deputy, both of whom the applicant named. The President’s son Kongulu, a captain by rank had been N.’s friend; they had slept in the same pavillon (no. 22 in the first zone of Camp Tshatshi), with the President’s uncle Zimanga Mobutu and his children. The first zone of the compound had comprised altogether 35 pavillons, intended only for the President’s family. The compound had also comprised a second, less protected outer zone. N. drew a map of the compound to show where pavillon no. 22 had been located in relation to the presidential quarters. He also drew a map of the presidential offices as well as of those of the DSP and FAZ. He indicated on the map the location of the President’s special entrance and exit as well as the football field on the compound.", "30. After the applicant had returned from South Africa the DSP commander had assigned him for a mission to the Netherlands. After he had disposed of his Zairean passport in Johannesburg “people smugglers” had handed him a different one. The aim of this mission had been to denounce people who were falsifying Mobutu’s signature to collect money. Moreover, as President’s Mobutu’s son had not been allowed to enter Belgium to trade in cobalt and diamonds the applicant and other DSP agents were assigned to organise his illegal entry into Belgium on a regular basis so he could do his business. A further aim of this mission had been to denounce dissidents in the Netherlands so that reprisals could be taken on their families in Zaire.", "31. The applicant had been escorted out of the Netherlands by police towards the end of 1995. During a further DSP mission to the region of Goma, where troubles had begun with Rwandan refugees entering Zaire, he had found out that Laurent-Désiré Kabila’s rebel troops had been infiltrating and poisoning Zairean soldiers.", "32. Around the end of 1995 it had been discovered that information on President Mobutu’s health was being leaked to Kabila’s troops, involving a suspected traitor within DSP. The main suspect – the head of the postal and telecommunications services who had masterminded the tapping of mobile phones – had eventually fled to USA but had returned when Kabila had taken over power.", "33. As for the events surrounding the overthrow of President Mobutu, the applicant had been woken up by DSP agents during the night 16-17 May 1997 as the DSP could no longer protect the President against Kabila’s troops. The President had told his security staff he would leave for Gbadolite the next morning and that a general within FAZ/DSP “had to die” as he had asked the soldiers to lay down their guns and surrender to Kabila’s troops. A general had been appointed Prime Minister during the emergency state. President Mobutu had told his son Kongulu that he should leave the country as the last member of their family. The applicant had been with Kongulu in the presidential Palais des Marbres when word came that the general in question had been killed. In the morning of 17 May the rebels had entered Kinshasa. The DSP commander had already left for Brazzaville after dispatching the President by plane to Gbadolite. The applicant and others (some 600 persons in total) had crossed the river to escape from Kinshasa to Brazzaville in canoës rapides. From Brazzaville they had planned to fly to Gbadolite. From the Brazzaville airport (“Maya-Maya”) Kongulu had telephoned to ask for a plane to pick them up. The pilot had refused to fly the plane out of Brazzaville as it had been the property of the Republic of Congo. The group had then decided to split up and to take different routes. The applicant and two or three others had gone by train to Pointe Noire and from there by boat to Cabinda in Angola. As he had spoken no local language, he had found a Lingala-speaker and had been able to procure an Angolan identity document paper. The group had nonetheless been arrested at the Cabinda airport as they spoke no Portuguese. Immigration officials had detained them in a room but after the group had bribed a commander they had been able to leave by plane to Luanda. It had been quite common for Zaireans to enter Angola by bribing border officials.", "34. In Luanda N. had failed to obey a police officer in the street since he had not understood Portuguese. He had been detained at the Viam police station, where he had been assaulted. Marks of this were still visible on his body. He had been transferred to the Bengela prison where he been forced to dig graves. Some prisoners had been “recruited” to fight in the army of the Angolan leader Eduardo against the rebel leader Savimbi. N. had avoided this, as he had been injured in the shoulder and could not carry a fire arm.", "35. The applicant had eventually been able to bribe a Lingala-speaking captain to let him “escape”. His friends had brought the necessary money and the captain had accompanied him to Santa Clara at the Angolan-Namibian border. In Santa Clara, Angolan shop owners had organised “people smuggling” to Johannesburg via Windhoek.", "36. The DSP agents had not intended to leave Zaire for good. When President Mobutu had been forced to escape to Morocco to avoid being taken hostage by pro-Kabila agents, N. had decided to go to Johannesburg to join the DSP commander and another DSP general, following which they had repeatedly re-entered Zaire to lead troops in the fighting against Kabila’s army. The two generals had eventually been arrested on the orders of President Mandela following a request by Kabila.", "37. Replying to questions from his counsel, the applicant further explained that President Mobutu had left for Morocco in a Russian cargo plane used for smuggling weapons to the rebel leader Savimbi in Angola. A Mercedes-Benz car had been driven onto the plane so the President could sit properly. While in Brazzaville the applicant and others in his group had watched on CNN how civilians in Kinshasa had been showing the houses of Mobutu’s supporters to the rebels. The applicant would have been killed instantly had he returned then. Mobutu supporters who had been denounced had either been shot, burned alive by being placed in a car tyre set on fire or burned inside cars, as CNN had shown. If the applicant were to be returned to the DRC, those in power and even civilians would recognise him and he would be “attacked” since he had been close to Mobutu. If returned to DRC, a soldier such as himself could even be killed by DSP soldiers currently protecting President Kabila.", "38. Replying to questions from the lawyer for the Immigration Board, the applicant reiterated the name of President Mobutu’s son: Kongulu (a.k.a. “Saddam Hussein”). The applicant further contended that he had sought asylum in the Netherlands for infiltration purposes.", "39. When asked by a judge whether he had had “his” passport on him when leaving Johannesburg for Amsterdam, the applicant answered in the negative. He had paid one of the “people smugglers” who had been working with airport staff to let him go through to the gate only with a boarding pass.", "40. N. had originally wished to go to Australia but this had not been possible to organise due to the number of transits and the need to show a passport. He had not wished to go to France, where many Zaireans were living and he could have been recognised as someone who had been close to Mobutu. The “agent” organising his trip had suggested Finland and the applicant had accepted. As the itinerary had been Johannesburg-Amsterdam-Helsinki he had received two boarding passes already in Johannesburg. The name on his boarding pass had been Joao or something to that effect. There had been no need for him to show a passport. He had financed the ticket by having sold diamonds in Angola. The President’s son had given him diamonds before they had parted. In Amsterdam a person had showed the applicant to the gate for the plane for Finland.", "41. The applicant had not been in touch with his mother, father or sibling as the phone numbers had changed with the new Government.", "42. Questioned further by another judge the applicant stated that the President’s son had authorised DSP agents to take diamonds from the mines. He had been able to cross the border to Angola without any verification taking place. When he had been detained, the diamonds had been in his briefcase which had been locked with a code. He had carried it personally to Luanda and had left it in a house there. When he had been arrested the other members of his party had taken care of his belongings, including the briefcase. The diamonds had been unpolished. As he had had to bribe persons and help various friends out he had sold the last ones in Johannesburg. Their total value had been at least USD 45,000. He had had “a little bit” of money left when he arrived in Finland.", "43. Questioned further by the third judge the applicant explained that his military service had lasted nine months in total; he had been trained as a commando in DSP. After this he had returned to school. His training to become a garde civile had occurred at the age of 17-18. After nine months of training he had returned to DSP and had been expecting to be promoted to lieutenant. He had grown up with the President’s son Kongulu from the age of three, when he had arrived in Kinshasa. Kongulu, two years older, had died in 1999. The applicant had not sought to contact Kongulu’s family and did not know their whereabouts. Kongulu had had three brothers, one of whom had died in AIDS. The applicant had been sent to undergo military service as a punishment for being stubborn.", "44. Questioned about his work and life in Finland the applicant stated that while he was volunteering in the Helsinki refugee reception centre, he was afraid of making friends with other Congolese as they might find out that he had been in DSP and take revenge on him. Two other nationals of the DRC had received residence permits in Finland.", "45. In its final pleadings to the Administrative Court the Immigration Directorate considered the applicant’s account not credible. There were significant contradictions in his account of his military service as well as discrepancies between the asylum record and his oral statements. While he had recounted many facts, he was not generally credible.", "46. Counsel for the applicant underscored that the asylum record from the interview on 22 July 1998 had been very meagre. In his oral statement the applicant had given a detailed and coherent account and his credibility was beyond doubt. The Immigration Board was claiming on very weak grounds that he was not credible. If there was any hesitation as to his credibility, the scales should tip in his favour. He risked persecution in DRC due to his nationality, ethnicity and political opinion. He not only feared ill-treatment emanating from the current regime but also from individual civilians seeking revenge. As he had no home to return to in the DRC he would be easily recognisable as a stranger and risk being questioned. The general human rights situation in the DRC was poor: security forces were carrying out killings and torture was wide-spread.", "47. Counsel noted that all four interpreters had experienced difficulties following N’s vivid account. The asylum record indicated wrongly that the applicant had been living in the presidential palace whereas he had been living within the presidential compound.", "48. On 20 June 2002 the Administrative Court refused the applicant’s appeal by two votes to one. The majority noted that he had been appearing under different names. As an asylum seeker in the Netherlands he had stated that he had been a player on the DRC national football team led by President Mobutu’s son. The applicant’s father was said to have been working in the DSP. When seeking asylum in Finland the applicant had stated that he had worked in the DSP; that he had formed part of Mobutu’s inner circle; that he had been the childhood friend of Mobutu’s son; that he had been sent to the Netherlands to denounce asylum seekers from the DRC; and that he had assisted Mobutu’s son in entering Belgium from France. At the oral hearing the applicant had provided a fairly extensive and detailed account of his activities in the DRC following his removal from the Netherlands as well as of his escape via Brazzaville to Angola during Kabila’s coming to power. The account of his escape via Namibia and Johannesburg in 1998 had resembled significantly the account he had provided to the Dutch authorities when entering that country in 1993. The Administrative Court did not find credible the account of his itinerary in 1998, including his having been able to embark on the plane from Johannesburg without a valid ticket and passport. In those circumstances and considering that it had not been possible to verify his true identity the Administrative Court was not convinced of his general credibility. Moreover, the information he had presented regarding the DSP, Mobutu’s son’s family life and the presidential compound did not in itself show that the applicant had been in the DRC in such a position as to be of particular interest to the current regime. Hence he was not likely to have any justified fear of being persecuted or subjected to inhuman or degrading treatment or to any other serious violation of his rights, if returned to his country.", "49. The dissenting judge found the applicant’s account inconsistent despite its richness in detail. It did not therefore permit the drawing of any reliable conclusion as to his relationship with President Mobutu’s administration or as to whether he had worked in the DSP and, if so, in what position. Considering his detailed account the applicant could, on the one hand, have belonged to Mobutu’s and his relatives’ inner circle without having had any direct contact with the President himself. On the other hand, the applicant could also have received the information regarding Mobutu’s administration from other sources. As his identity and background had not been convincingly established it could not be assessed whether the reason for his departure from the DRC had been persecution within the meaning of section 30 (1) of the Aliens Act. He could therefore not be granted asylum. Despite the lack of clarity of his account it could not be excluded however that he had been one of Mobutu’s personal guards. This lack of clarity should be interpreted to the applicant’s benefit. According to the UNHCR Instructions of January 1998, soldiers of the DSP were assessed as being at a particularly significant risk of being subjected to inhuman or degrading treatment or other serious violations of their rights. The applicant therefore remained in need of protection within the meaning of section 31 of the Aliens Act and should have been granted a residence permit to that effect.", "50. The dissenting référendaire, relying on essentially the same reasons as the dissenting judge, concluded that the applicant should have been granted asylum as being in need of protection from persecution within the meaning of section 30 (1) of the Aliens Act.", "51. The applicant applied to the Supreme Administrative Court for leave to appeal asked for stay of enforcement.", "52. On 30 October 2002 the applicant was detained by the police and informed that he would be deported on 5 November 2002. His counsel was informed that the Supreme Administrative Court would not grant or rule on his request for a suspension of the deportation order. He was later informed that the applicant would be removed from the country on 6 November 2002.", "53. On 5 November 2002 the Government of Finland decided not to deport the applicant to the DRC until the Court had examined the applicant’s application, following the Court’s interim measure under Rule 39 of the Rules of Court (see § 5 above).", "54. The applicant and his common-law wife E. met each other in 1999 in Helsinki while they were both asylum seekers. They lived together in a reception centre for nine months until her deportation on 22 February 2000, her first asylum request having been refused.", "55. In April 2002 E. visited the applicant for five days after her prohibition on re-entry had expired. As a result of this visit E. became pregnant. After this they kept up the contact by phone and mail.", "56. On 28 October 2002 E. arrived in Finland and filed a fresh request for asylum the same day. She moved in with the applicant in the reception centre in Helsinki. On 31 October 2002 the Directorate of Immigration refused the request as being manifestly ill-founded.", "57. In January 2003 a child was born to the applicant and E. The applicant’s acknowledgement of paternity was confirmed by the Helsinki District Court in February 2003.", "58. On 4 March 2003 the Supreme Administrative Court granted the applicant leave to appeal but went on to refuse his appeal without an oral hearing. It found it established that on 10 August 1993 N. had applied for asylum in the Netherlands, claiming to be a football player and alleging that his brother and father had been working in the DSP. On his arrival in Finland on 20 July 1998 he had filed a hand-written statement in French to the effect that he had left the DRC 13 months earlier (i.e. in June 1997) as President Mobutu and his close entourage had been chased out of the country. In Angola he had been detained because he had been in possession of a badge issued by the DSP and a photograph of President Mobutu. In his asylum interview on 22 July 1998 the applicant had claimed to have been a secret agent in the DSP and an infiltrator, whose actions in the Netherlands had led to the arrest of asylum seekers’ family members in the DRC. Following his deportation from the Netherlands he had allegedly been living with the nephew of the former President.", "59. The applicant had claimed to have been detained for eight months in Angola, whereas in Zaire he had not been arrested, tortured, threatened. Neither had any warrant of arrest been put out in respect of him.", "60. When arriving in the Netherlands the applicant had presented a identity document issued in former Zaire on 25 October 1984, indicating as his date and place of birth 2 December 1972 in Kinshasa. He had claimed to have gone to school in Kinshasa in 1978-1991. In Finland he had presented no identity document but had claimed to have been born in Gbadolite. He had allegedly gone to school for twelve years and had performed his military service in Kinshasa in 1989-90.", "61. According to the records, the applicant had appeared under four different names. In his appeal to the Administrative Court he had explained the reasons for using those different names. The Supreme Administrative Court nevertheless considered that his identity and ethnic origin had remained unclear, which weakened the credibility of his account.", "62. The Supreme Administrative Court further noted that his statements about the reasons for his arrests in Angola had differed. In particular, his allegation that he had, on that occasion, been carrying a DSP membership card and a picture of President Mobutu was not credible. Neither did the Supreme Administrative Court find credible all aspects of his account of his journey to Finland.", "63. In sum, the applicant had not shown in a credible manner that he had remained in the DRC until 17 May 1997. Neither had it been established where he had been residing between his expulsion from the Netherlands in October 1995 and his arrival in Finland in July 1998. Even assuming that he had been sent to the Netherlands to infiltrate other asylum-seekers from his country, the Supreme Administrative Court did not find it credible that he would have gone there as an infiltrator in the manner recounted by him had he really belonged to Mobutu’s close entourage. Taking all the elements into account, it was justified to suspect that his various accounts were not based on facts which had actually occurred. This also weakened his overall credibility. His account as presented to the Finnish authorities could not therefore be used as the sole basis for the court’s decision.", "64. The five judges on the Supreme Administrative Court unanimously concluded as follows:\n“Taking into account the recent developments in the DRC which have taken place since the applicant has allegedly left the country, the period of time which has passed since his departure, the significant lack of credibility in respect of his allegations concerning the risks he will be facing on his return to the DRC, the fact that he has not even claimed that he has had any contact with the local authorities who have been in office since the change of the regime on 17 May 1997 or that he would have come to their knowledge, the Supreme Administrative Court cannot consider that the applicant is facing a real risk of becoming a subject of interest to the present rulers. Therefore, [the applicant] does not have a well-founded fear of persecution for reasons of his ethnic origin, membership of a particular social group or political opinion within the meaning of Section 30, subsection 1, of the Aliens’ Act. Thus, he cannot be granted asylum. Even though the general security situation in Kinshasa, the capital of the DRC, is still very delicate, there is no well-founded reason to assume that [the applicant] would face a risk of being subjected to serious human rights’ violations or to inhuman or degrading treatment in his country of origin. Thus, he cannot be issued a residence permit on the basis of his need of protection either.”", "65. The Supreme Administrative Court furthermore found that the applicant’s family life as established in Finland was not such as to attract protection under Article 8 of the Convention, given that neither parent had a valid residence permit or any other connection with Finland.", "66. K.K. arrived in Finland on 14 February 2002 and filed for asylum or a residence permit on humanitarian grounds on account of her background in the DRC. She claimed to have been a soldier in the DSP. She had been arrested following the murder of President Laurent-Désiré Kabila in January 2001. She had been detained for some nine months during which she had allegedly been raped repeatedly by guards. Her request was refused by the Directorate of Immigration on 21 November 2002. She then appealed to the Helsinki Administrative Court which held an oral hearing on 30 January 2004.", "67. On 8 March 2004 the Administrative Court, by two votes to one (with the référendaire also dissenting), upheld the refusal of asylum but referred the question of a residence permit back to the Directorate, instructing it to issue K.K. with such a permit. The Administrative Court reasoned as follows:\n“The appellant is no longer likely to be arrested in her country of origin on account of the investigations into the murder of (President) Kabila. The appellant’s personal prison experiences do not result from (her) belonging to a (specific) group in society or from her political views. Hence she cannot be granted asylum.\nFollowing the change of President in (the DRC) in January 2001 the general security and human rights situation in the country has improved. The appellant has stated having resided in Kinshasa prior to leaving the country. The Kinshasa area is relatively calm. The fact that armed confrontations are still occurring, particularly in the Eastern parts, and that the country’s human rights situation is not yet stable, is not as such a sufficient ground for granting (the appellant) international protection. When, however, account is taken of the entirety of the circumstances as recounted by the appellant as well as of the information available from international news sources regarding the treatment of soldiers serving the Mobutu regime, it is justified to find that the applicant might, on account of her military background and her past experiences, risk being subjected to inhuman or degrading treatment in her country of origin. (She) is therefore in need of protection within the meaning of section 31 of the Aliens Act and shall, for this reason, be issued with a residence permit.”", "68. The dissenters found, even assuming K.K.’s account to be truthful, that there was no reason for supposing that she would still risk ill-treatment or other serious violations of her rights if returned to the DRC. The dissenters relied on the progress which had taken place in the country as well as on the fact that she had been of no particular interest to the authorities following the coup d’états in 1997 and 2001. She was therefore not in need of protection.", "69. In a letter of 16 April 2003 submitted to the Court in support of the applicant’s case Ms. K.K. stated that she had formed part of the DSP as first sergeant-major based at Camp Tshatshi in Kinshasa. She had been working in the reconnaissance unit of the Camp Commander (au service des renseignements pour la sécurité des militaires). She had been arrested on 20 March 2001, a few days after the then President Laurent-Désiré Kabila had died together with all soldiers of the (former) FAZ who had been on duty during the coup d’état on 15-16 January 2001 (when President Kabila had been assassinated). After several former military officials had been killed in prison the applicant and her family had decided to seek asylum abroad.", "70. K.K. confirmed having worked with the applicant, whom she had recognised as having been a military official dealing with security matters in the General Staff of the DSP (militaire évoluant à la sécurité d’état major de la DSP).", "71. At the hearing before the Court’s Delegates in Helsinki (see below) K.K. handed in a copy of her military passport (carte d’identité de service pour les forces armées zairoises) indicating her grade as first sergeant-major. She also handed in some photographs depicting herself and other soldiers in a uniform specific to the DSP.", "72. On 17 June 2003 the Helsinki Administrative Court refused E.’s appeal against the refusal of asylum or a residence permit on humanitarian grounds. It quashed the decision of to expel E. and returned the matter to the Directorate of Immigration as the child born to E. in Finland had not been covered by the initial decision.", "73. In a further decision of 16 July 2003 the Directorate of Immigration refused E. and her new-born child a residence permit and ordered their expulsion to Russia.", "74. Following E.’s appeal the Administrative Court, on 10 October 2003, stayed enforcement of the expulsion order.", "75. On 10 August 2004 the Administrative Court refused E.’s appeal. It found, inter alia, that in the circumstances at hand E. and her family could, in the first place, be expected to settle and lead their family life in Russia, that being the country of origin of E., her child with the applicant and her two other children in Russia.", "76. E.’s further appeal remains pending with the Supreme Administrative Court.", "77. Before the Court’s Delegates the applicant maintained that he had been working for the DSP which had sent him to be trained in the garde civile. He stated the names and ranks of the commander of the garde civile and the Headquarters of the FAZ, of which the DSP had formed part. Officials in the DSP had been better paid than ordinary soldiers in the FAZ. The applicant’s father had been one of Mobutu’s body guards.", "78. The applicant had been gathering information used for protecting President Mobutu. He had formed part of the bataillon de sécurité which had been responsible for that protection. Some DSP members had been responsible for guarding the President physically, whereas others had been assigned to information-gathering. The applicant had been working in the DSP headquarters. He had been infiltrating students at different universities and gatherings of Mobutu opponents. On each occasion there had been either six or twelve DSP members attending, in civilian clothes but armed. They had interfered with the gatherings and had identified the leaders who needed to be killed. After the applicant had denounced the persons in question other agents, specialised in torture, had taken over. His reports to his superiors, which had always been oral, had been forwarded to the President.", "79. The first (inner) zone at Camp Tshatshi had accommodated the presidential office as well as the headquarters of the Defence Department and the DSP. The applicant had been living with the children of the President’s older brother. The residential premises within the first zone had served as hotels previously. The applicant had had three service vehicles at his disposal.", "80. The applicant had met K.K. for the first time around 1989. He had taken the initiative to address her as she had been obliged to respect him as the son of an officer. He had not been working closely with K.K. as she had formed part of the garde républicaine d’honneur which had been in charge of the security of the Camp Tshatshi, its soldiers and families and had been led by a different commander. As he had been working in the DSP headquarters he had effectively occupied a higher position than K.K. Unlike the applicant, she had been living in the second zone of the compound. He had not had any social contact with K.K. Even though she had been of higher rank, she and other officers had been required to show respect for the applicant and others forming part of the Mobutu family.", "81. The applicant confirmed having filed for asylum in the Netherlands in 1993 in order to carry out his mission for the DSP which had been to infiltrate DRC asylum-seekers critical of Mobutu in order to denounce them to the Mobutu administration. He had denounced more than ten persons in this way. He had not been the only agent involved in such activities in the Netherlands.", "82. At the time of seeking asylum in the Netherlands the applicant had stated being a member of the Basaït tribe “for camouflage purposes”. For the same purposes his whole account to the Dutch authorities had been untruthful.", "83. The applicant confirmed being able to speak French, English, Swahili and some Kikongo.", "84. The applicant had been issued with an identity card by the FAZ, indicating that he had been working in the DSP. Given his urgent departure from Kinshasa in 1997 he had not taken along that card or any other personal documents. He had only taken the diamonds. At any rate, as at the time passports were being handed out only for travel to specific locations he had not had a passport at hand.", "85. In Angola he had “purchased” an Angola identity card. Later, in connection with “paying” for being released from prison he had been able to “purchase” an Angolan passport. The Angolans were suspecting all individuals originating from former Zaire of supporting the rebel leader Savimbi in the fight against the Angolan President Eduardo. Even with his Angolan identity papers he could not avoid being arrested as he had addressed the police officers in Lingala and they immediately suspected his papers had been falsified.", "86. As to the certificate of his degree (brevet) which he had brought with him to Finland by hiding it in his shoe, the applicant claimed it had been seized by the Finnish border police never to be seen again.", "87. As far as the applicant was aware, no warrant of arrest had been issued in his regard in the DRC.", "88. The applicant’s uncle, a general, had been the commander of the DSP. They had been in contact both professionally and within the family circle. The applicant’s father had been commander of the information service.", "89. As the Supreme Administrative Court’s refusal of his appeal had been reported in newspapers and on the Internet the whole Congolese community in Finland had learnt of the reasons underlying the applicant’s asylum claim.", "90. The applicant had not had any contact with his family (parents, sister or other relatives) since the day when he had left Kinshasa for Brazzaville in 1997. The new regime had changed all telephone numbers and the applicant had not been able to make contact.", "91. When the applicant and E. had met in 1999, E. had asked about his background in the DRC. He had told her he had been a friend of the President’s son but had declined to elaborate, telling her such information was secret. If they were to go to Africa one day, he would tell her more.", "92. The applicant stated that the interpreter assigned to him had found it difficult to translate the applicant’s account during his asylum interview on 21 July 1998. This had become obvious to the interviewing police officer but the applicant had not raised the point at the time.", "93. When the applicant and K.K. had met again in Finland he had asked K.K. to send a letter to the Court after their respective asylum claims had been refused. He had not assisted her; someone else had helped her write the letter in French.", "94. E. confirmed being a Russian citizen. She had known the applicant for some five years. She had one child by the applicant and two by her ex-husband. After having been removed from Finland she had remained in contact with the applicant by telephone and correspondence. The applicant had never disclosed anything to her about his life or family in the DRC. When she had asked him about his work there, he had declined to reveal anything, saying the information was secret. For the same reason, he had also declined to enter into any details regarding his mission to the Netherlands. Some time before her removal from Finland in 2000 he had told her he could not return to the DRC as the threatening situation there could lead to both of them being killed. They had never discussed his work or his country further.", "95. E. further stated that while living in Russia her two older children had been subjected to constant verbal abuse due to the colour of their skin. They had been unable to attend school for this reason. The family had also experienced harassment by the authorities (arbitrary fines, etc.). Her two older children were being cared for by her mother in Russia. E. had divorced in 2000 and her older children had no contact with their father.", "96. E. considered that if she, the applicant and their mutual child had to settle in Russia they would have no means of survival as the applicant would never be able to find employment.", "97. E. had never considered joining the applicant were he to return to the DRC as their predicament would be similar to the one they would be facing in Russia; the applicant had no relatives, residence or means in the DRC. Should the applicant be threatened on their return on account of his secret work before leaving his country, she too would fear for her life.", "98. Mr Heinonen has been the head of the Africa section in the Directorate of Immigration since 1999. From 1995 to 1999 he was working as an adviser in charge of preparing decisions on asylum claims by Congolese and others persons of African origin. He was responsible for refusing the applicant’s claim for asylum.", "99. Mr Heinonen found it striking that the asylum interview with the applicant had been extremely short. Even though the processing of his claim had lasted around two years in view of the application of “the Dublin Convention”, the applicant had never wished to elaborate on the brief information he had given at the outset and had never referred to any sort of persecution. During this period of time the applicant could, for example, have submitted photographs showing him with Mobutu family members. On the evidence before it, the Directorate of Immigration had had to assume that he had not been part of Mobutu’s close family or of the DSP. Even assuming he had formed part of the DSP, it had to be assumed that he had been a low-ranking informant.", "100. Mr Heinonen also found it remarkable that the applicant had not been able to provide any identity card, travel document, certificate of education or the like. Neither did the asylum file contain any indication of such a document having been presented at the applicant’s arrival in Finland. Apart from his oral statements the only information relating to his background which the Directorate of Immigration had at its disposal was the material forwarded by the Dutch authorities.", "101. Mr Heinonen did not share counsel’s assessment that the applicant’s account had been consistent and precise. It had contained many controversial points: for example, while he had claimed to originate from the Ngbandi tribe in Equateur, he did not speak Ngbandi but Lingala, Kikongo and Swahili. Kikongo is being spoken in the Bas-Zaire where he had claimed to originate from when seeking asylum in the Netherlands. Other elements had also suggested that he originated from Bas-Zaire. Moreover, while claiming that he had been arrested in Angola as he had not mastered Portuguese, the most common language spoken there is actually Kikongo. By way of further example, although he had claimed to have “purchased” an Angolan passport he had stated, on arriving in Finland, that he knew neither the country nor the name of the passport he had been travelling on. Moreover, if as he claimed, he had brought diamonds along to Brazzaville, why would he have ventured into Angola, at the time a very dangerous country?", "102. Mr Heinonen confirmed that on arriving in Finland the applicant had volunteered the information that he had been an asylum seeker in the Netherlands under a different name. It should be borne in mind, however, that the applicant was not a first-time asylum seeker and had provided many details to the Dutch authorities in support of his first asylum claim.", "103. Even assuming that the applicant had been a member of the DSP, he would not face any danger if returned to that country at present. As had emerged in the case of K.K., she had been able, as a lower-ranking DSP member, to continue as a soldier in the army of Mobutu’s successor Laurent-Désiré Kabila. A former DSP member maintaining connections with rebel or foreign forces in the pursuit of seeking to overthrow the current DRC government would certainly be of interest to that government and could be given international protection in Finland. N., however, had not put forward any such elements.", "104. Mr Heinonen had taken part in a fact-finding mission to Kinshasa in 2000. Since that year the situation in the DRC had improved drastically. Already that year, however, the applicant could have been returned to the DRC without facing any problems other than economic ones.", "105. The Directorate of Immigration was dealing with dozens of cases a year involving DRC citizens. In a few of those cases asylum or a residence permit had been granted, either in view of the person’s need for protection or on humanitarian grounds.", "106. In the mid-1990s the Finnish Central Criminal Police had concluded that 70-80 % of some 100 documents relied on by asylum seekers from former Zaire had been falsified. Some of the asylum-seekers had also been in the possession of blank documents (such as birth certificates) as well as official stamps.", "107. As for the conclusion reached by the Supreme Administrative Court in the case of K.K., Mr Heinonen suggested it might have been motivated by her gender and the allegations of sexual abuse she had made.", "108. Mr Heinonen was not aware of any DSP member having suffered ill-treatment on his or her return to the DRC from a European country. Some countries had been sending back up to 100 persons a year. In a few cases the Finnish authorities had monitored the person’s return closely to ensure that it had been safe.", "109. As for the applicant’s prospects of settling with E. and their child in Russia, Mr Heinonen indicated that in accordance with current practice even a common-law spouse of foreign origin could be granted a three-month visa before being able to seek a one-year residence permit and eventually Russian citizenship.", "110. K.K. had completed her military training in 1972, following which she had been sent to work in the DSP, being part of the female platoon. She had first seen the applicant around 1989 but had never been close to him. She knew he had been working in the “bataillon special” but his rank had been unknown to her. They had been greeting one another in passing at Camp Tshatshi. She had also seen the applicant during parades on the compound. She had understood that he had been part of Mobutu’s entourage as he had been speaking the President’s language Ngbandi and had occupied a good position at Camp Tshatshi. Ngbandi-speakers had been in a privileged position during Mobutu.", "111. After President Mobutu had been removed from power in 1997 the DSP had been discontinued and former members had been tortured, subjected to forced labour and malnourished. Those who had remained in the country had eventually been offered re-training in President Kabila’s army. Eventually K.K. and other colleagues had been offered to assume essentially the same duties as before, namely to guard the entrance to Camp Tshatshi and to verify the identity of anyone accessing or leaving the compound. She had not seen the applicant after the soldiers on the compound had been told to vacate it in the aftermath of the coup in 1997.", "112. K.K. confirmed having been questioned following the coup d’état on 15-16 January 2001, together with other members of the former DSP and FAZ who had been on duty on 15 January. She had been detained from March until 31 December 2001, when she had been released after her family had bribed a person in charge. She had been told by that person to leave the country immediately, which she had done.", "113. K.K. was not aware of any case involving ill-treatment of a former DSP member having been returned to the DRC.", "114. All members of the DSP were also soldiers of the FAZ. Those detached to the DSP received an emolument in addition to their salary from FAZ. K.K. stated the same salary as that indicated by the applicant in his testimony.", "115. When they had been in charge of protecting Mobutu the DSP members’ uniform had been distinct from the one worn by ordinary soldiers of the FAZ. When they had been protecting Kabila they had been wearing civilian clothes.", "116. After both K.K.’s and the applicant’s asylum claims had initially been refused K.K. had sent a facsimile to the Court at the applicant’s urging. He had not written it for her; someone else had helped her write it in French.", "117. In guidelines issued by the United Nations High Commissioner for Refugees (“UNHCR”) in January 1998 regarding refugees and asylum seekers from the DRC, soldiers of the DSP were generally assessed as a category risking persecution on account of association with the former (Mobutu) regime. UNHCR noted that these soldiers were mainly from Mobutu’s tribe (Ngbandi) or region (Equateur). Members of the Ngbandi tribe were not however assessed to be at risk purely on account of their ethnic origin.", "118. Among the other categories assessed to be at risk were high-ranking officers of the FAZ; members of the garde civile (with the exception of its commander-in-chief to whom an exclusion clause in the Refugee Convention might be applicable); leading and active members of pro-Mobutu parties and other political allies, except for current sympathisers or members of the opposition who were not playing a substantial role within those parties; and Mobutu family members and close collaborators, especially those from the Ngbandi tribe or the Equateur region.\n(b)2002 position paper", "119. A UNHCR position paper of June 2002 urged States to exercise very serious caution in cases of involuntary return of individuals with a military profile or background. Security agencies and immigration authorities systematically arrested former militaries, in some cases even those returning voluntarily, where previous negotiations with the Ministry of Defence had not taken place.\n(c)2002 country report", "120. A country report prepared for the Eighth European Country of Origin Information Seminar in June 2002 stated the following of particular relevance to the present case (pp. 99-100):\n”Former members of the Forces armées zairoises (FAZ)\nNot all, but many of the former Mobutu soldiers have been persecuted since President Kabila came to power in May 1997. Some were taken to Kitona military base, ostensibly for ideological and military training. Many of them were caught up in that base at the time of the resumption of the war in August 1998. Many are feared to have lost their lives there or have been accused of being in alliance with Rwanda or with the armed opposition, and indeed many of them have been targeted. There are some who have joined the new army, so it cannot be said that all of them are targeted by the government, but indeed some have been. Another element that creates a potential problem for members of MPR and former Mobutu soldiers is the aforementioned perception that some former members of the Mobutu government are plotting to launch an attack on Kinshasa from Brazzaville. Some of the FAZ soldiers, particularly the members of the Division spéciale présidentielle (DSP), which was the bodyguard corps of President Mobutu, also fought in the wars in Brazzaville and joined the Congo-Brazzaville army. Many of them still remain there. Since about 1999 there have been reports and fears on the part of the DRC government that some of these people are organising and regrouping with an intention of returning by force to Kinshasa and recapturing state power. So these people will still remain at risk, whether or not they may be directly or not at all involved in plots against the DRC government. Indeed some of them are currently in custody. There have been attempts by the two governments to create an understanding by actual agreements not to attack each other, but there still seems to remain a kind of mistrust between them. As a result, at least the Kinshasa regime fears that there could be an attack from Brazzaville. Another significant factor is that many of these ex-FAZ joined the MLC armed political group and as a result were also evidently fighting against the Kinshasa government. Now that some form of power-sharing agreement has been signed, if it is implemented, one would assume that these former soldiers will end up in the national army. This may happen, but again this agreement has yet to be actually implemented. By and large the risk of persecution will depend on the specific circumstances of the particular individual. As regards the question of how important the military rank of a former Mobutu soldier is in this context, it has to be borne in mind that in some of these armies a rank may not always mean what it does in better established armies. Particularly in the DRC, a low-ranking soldier may politically have more power than a top general. There have been cases where a sergeant would beat up a major. Yet, the major, coming from an ethnic group that is not closely allied to the president, would not hit back or get the sergeant, corporal or even private who attacked him punished. He would not dare to touch him, although he is e.g. only a private, because he comes from Katanga. Without connections to influential persons at the top, being a general does not really mean much under such circumstances. In the case e.g. of Rwanda a Tutsi private may be able to challenge the power of a Hutu senior officer, not because he has been ordered to do so by the president or by someone else, but because he feels that he can do anything with impunity, that nobody will touch him because he happens to come from the ethnic group that is supposedly or really in power.\nFamily members of Mobutu officials\nIt would be possible that the children of such a soldier, be it a high-ranking officer or a private, would be targeted by the new authorities due to the fact that their father held the respective position during the Mobutu regime. Sometimes people are abused without any justification at all. On the other hand, even a civilian, linked to someone who was in a powerful position, may have been responsible for abuses for which he may be held liable or be subjected to reprisals. To cite an example, when a general’s or minister’s son drives an expensive foreign car or a military Land Cruiser, misuses power - or others only think he misuses power - or makes a lot of money, people would assume that he would not have that power and/or money if he was not related to the minister. Hence, when that minister leaves power, that individual, too, could be at risk. While this does not happen on a regular basis, it is however a real possibility. ...”\n(d)October 2003 report", "121. According to a further UNHCR assessment of October 2003, certain individuals who had either been deported or had returned voluntarily to the DRC could face serious problems if interrogated by security forces upon arrival in Kinshasa. Should the authorities discover that a deportee had a political or military profile, or had sought asylum abroad owing to such a background, he or she could be at risk of arbitrary detention and ill-treatment (“International Protection Considerations Regarding Asylum Seekers and Refugees from the Democratic Republic of the Congo”, p. 100, § 393).", "122. The Immigration and Nationality Directorate of the Home Office has been issuing annual and even more frequent assessments of the situation in the DRC. The country report of October 2004 – which also relies on sources going back to 2002 – made the following assessment of the current situation inter alia with regard to the groups mentioned below:\n“ Persons Associated with the Mobutu Regime 6.107 An information response by the Canadian Immigration and Refugee Board (IRB) dated 3 April 2003 about the treatment of former diplomats and other individuals perceived as sympathisers with the former President stated that:\n‘According to Le Potentiel, many exiled high officials have returned to the country (1 Nov. 2002). The same Congolese newspaper added that ‘Mobutists’ are now present everywhere, including in government positions (Le Potentiel 28 Mar. 2003). Referring to ‘people who were linked to former President Mobutu and the MPR [Mouvement Populaire de la Revolution - Mobutist political party],’ a November 2002 report stated that ‘persecution may result from either having held a very senior visible position in the party, the government or the security forces, or from overt opposition to the current government.’ (ACCORD/UNHCR 28 Nov. 2002).’ 6.108 Two further IRB reports dated 2 March 2004 and 26 March 2004 indicated that there was no particular adverse treatment of members of the Ngbandi tribe, or the Mbunza ethnic group, or persons from the Equateur province [associated with the former President Mobutu], based on interviews with the president of the Congolese human rights group ASADHO, and a journalist specialising in the Great Lakes region. The sources explained that the transition institutions (government, parliament, senate, army and others) comprise individuals from various ethnic groups including the Ngbandi and Mbunza, like those of other tribes in Equateur. 6.109 Another IRB response dated 10 April 2003 reported that the Congolese human rights group Journaliste en Danger was not aware of any ordinary Congolese citizen who had been prevented by the Congolese authorities from renewing a passport issued during the Mobutu regime. On the contrary the authorities had encouraged people to replace their old Zairian passports for the new Congolese ones. 6.110 A country fact finding report of 2002 by the Belgian General Commission for Refugees and Stateless Persons (CEDOCA) reported that after Laurent Kabila ousted Mobutu in May 1997 many high-ranking officials of the former Mobutu regime were arrested and imprisoned in the CPRK Prison in Kinshasa. Others managed to avoid being arrested by leaving the country. The report stated that the security situation improved for persons closely associated with the Mobutu regime when Joseph Kabila came to power in January 2001, and even more so, after the Sun City Peace Accord was signed in April 2002. A large number of persons closely associated with the Mobutu regime had now returned to the DRC. 6.111 The CEDOCA Report also stated that distant relatives of Mobutu living in Kinshasa had not encountered any problems through being associated with Mobutu, and also that negotiations took place in 2002 between Kinshasa and Rabat to repatriate the remains of Mobutu. According to the report, persons who were closely associated with the MPR during the Mobutu regime were not at risk of persecution by the security forces and could therefore return to the country if they were abroad. The report concluded that ‘If Mobutu’s followers are not suspected of collaboration with the rebels, they are no longer persecuted. Affiliation to Mobutu’s former MPR [political party] does not involve the risk of political persecution.’ 6.112 According to a CNN Online news report dated 23 November 2003, close relatives of Mobutu returned to the DRC from exile in 2003. Manda Mobutu, the son of the former president, returned to the DRC in November 2003 from exile in France, with his sister, Yanga, to prepare his political party for the elections due to take place in 2005. Manda’s half-brother, Nzanga Mobutu, returned to the DRC from exile in August 2003. According to a news report by ‘The Independent’ (UK newspaper) dated 28 November 2003, the Mobutu sons returned to the DRC with President Joseph Kabila’s blessing, and Leon Kengo wa Dondo, a former prime minister under the Mobutu regime and other persons associated with the Mobutu regime had also returned to the DRC.\nFormer Soldiers of Mobutu Regime including FAZ 6.113 An information response dated 26 March 2004 by the IRB about the treatment of a person whose family members had served in the army under former President Mobutu stated that:\n‘The President of the African Association for the Defence of Human Rights (Association africaine de défense des droits de l’homme, ASADHO) said during a 25 March 2004 telephone interview that his organization is not aware of any particular treatment that would be imposed on a person merely because members of his or her family had served in the former army, under the Mobutu regime. He added that most members of the Zairean Armed Forces (Forces armées zaïroises, formerly FAZ) are currently serving in the Congolese Armed Forces (Forces armées congolaises, FAC) (ASADHO 25 Mar. 2004).’ 6.114 According to a country fact finding report of 2002 by the Belgian general Commission for Refugees and Stateless Persons (CEDOCA) the security situation in the DRC for former soldiers of the FAZ has improved since Joseph Kabila became president in January 2001. According to the CEDOCA report, in 2002, many former FAZ soldiers were serving in the current Congolese army. In 2002, all the key positions in the Forces armées congolaises (FAC) high command were occupied by former FAZ soldiers and an estimated 20,000 to 25,000 former FAZ soldiers were living in Kinshasa. The same report concluded ‘When ex-FAZ members are not suspected of collaboration with the rebels, they are no longer persecuted.’ 6.115 During the course of a country of origin information seminar in June 2002, sponsored by UNHCR and the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), which was addressed by representatives from Amnesty International and UNHCR, it was stated that the rank of a soldier might not always mean what it did in better established armies. It was stated that a low- ranking soldier may politically have more power than a top general, by virtue of his ethnic group and connections to influential persons. 6. 116 According to a report dated 4 May 2004 from the United Nations (UN) Integrated Regional Information Networks (IRIN) an agreement had just been reached between the DRC and the neighbouring Republic of Congo to repatriate former combatants in both countries. IRIN stated that:\n‘Similarly, the RoC [Republic of Congo] has, since 1997, been home to some 4,000 soldiers of the defunct Special Presidential Division of the late DRC president, Mobutu Sese Seko, and of his Zairean Armed Forces, or FAZ. The presence of these former soldiers has caused both Congos to trade mutual accusations of supporting coup makers, despite the existence of a non-aggression pact. In March, authorities in Kinshasa accused Brazzaville, and the ex-FAZ, of taking part in the 28 March [2004] attack on military targets in the DRC capital, Kinshasa. . . . In 2002, both Congos signed an agreement with the International Organisation for Migration for the repatriation of the ex-FAZ and former soldiers seeking refuge in RoC but nothing concrete has been achieved.’ ”" ]

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[ "11. The facts as submitted by the parties may be summarised as follows.", "12. All of the applicants reside in Istanbul.", "13. The applicants Ali Şimşek, Şaziment Simşek, Dilay Şimşek, Erkan Şimşek, Gökhan Şimşek and Şenay Şimşek are relatives of Dilek Şimşek Sevinç, who died during the Gazi incident.", "14. The following applicants are all relatives of persons who also died during the Gazi incident:\n–Hakkı Yılmaz is the father of Dinçer Yılmaz (deceased);\n–Hüseyin Kopal is the father of Reis Kopal (deceased);\n–Cemal Poyraz is the father of Zeynep Poyraz, (deceased);\n–Mustafa Tunç is the father of Fevzi Tunç (deceased);\n–Mahmut Engin is the father of Sezgin Engin (deceased);\n–Arslan Bingöl is the husband of Fadime Bingöl (deceased);\n–Veli Kaya is the father of Mümtaz Kaya (deceased);\n–Mehmet Gürgen is the father of Hasan Gürgen (deceased);\n–Çiçek Yıldırım is the mother of Ali Yıldırım (deceased);\n–Hüseyin Sel is the father of Hasan Sel (deceased); and\n–Mukaddes Gündüz is the wife of Mehmet Gündüz (deceased).\nThe remaining applicants are relatives of persons who died during the Ümraniye incident:\n–Hacer Baltacı is the wife of İsmail Baltacı (deceased);\n–Sabri Puyan is the brother of Hasan Puyan (deceased);\n–Zeynel Abit Çabuk is the father of Hakan Çabuk (deceased);\n–Aynur Demir is the wife of Genco Demir (deceased); and\n–Aligül Yüksel is the son of İsmihan Yüksel (deceased).", "15. Gazi is a neighbourhood located within the Gaziosmanpaşa district of Istanbul. A majority of residents living in the Gazi neighbourhood belongs to the Alevi sect.", "16. At around 9 p.m. on 12 March 1995, a group of unidentified persons opened fire from a taxi on five cafés situated in the Gazi neighbourhood. The shooting continued for approximately five minutes. An elderly person, Halil Kaya, was killed and twenty-five persons were wounded. Many shops were badly damaged during the shooting. The perpetrators of the attack killed the driver of the taxi and fled.", "17. Following this incident, residents of the neighbourhood gathered on the street outside the cafés and in front of the Cemevi[1] to protest against the indifference displayed by police officers after the shooting. People also gathered outside the hospitals, where injured people were being treated. At about midnight, the group started marching towards the local police station. The police set up barricades with panzers and subsequently attacked the group with their truncheons and the butts of their weapons.", "18. At 4 a.m. on 13 March 1995, the Istanbul governor and the chief of police went to the Gaziosmanpaşa governor’s office and held a meeting with the community leaders to stop the incidents. The demonstrators began to calm down.", "19. At that moment two panzers approached the demonstrators and began firing at them. As a result, Mehmet Gündüz was killed on the spot and ten persons were injured.", "20. In the morning of 13 March 1995 thousands of people from the surrounding neighbourhoods joined the demonstrators. According to the applicants, there was no provocation by any terrorist organisation. Some of the demonstrators started throwing stones and coins at the police barricades.", "21. At 11 a.m. police began firing from behind their barricades. Snipers were positioned on nearby buildings, targeting the protesters. During the firing, Fadime Bingöl and Sezgin Engin were killed and a number of others were injured.", "22. The killing of these two persons raised the tension and the demonstrators began advancing towards the police barricades at 2 p.m. Uniformed and plainclothes police officers, who had positioned themselves behind the barricades, on the side streets and on some of the buildings, fired intensively. For about twenty minutes, the police officers chased a number of demonstrators who were trying to run away from the scene and shot them. Zeynep Poyraz, Dilek Şimşek Sevinç, Ali Yıldırım, Reis Kopal, Mümtaz Kaya, Fevzi Tunç, Hasan Sel, Hasan Gürgen, Dinçer Yılmaz and Hasan Ersürer were shot and killed. More than a hundred persons were injured. The police prevented the demonstrators from taking the wounded persons to hospital.", "23. At 3.15 p.m. the same day the police attacked the crowd who were attending the funerals of Halil Kaya and Mehmet Gündüz. Military reinforcements were called to the area. The applicants state that the group did not protest against the soldiers.", "24. At 4 p.m. a curfew was imposed in the area.", "25. In total, fifteen people, including a person in the café, Halil Kaya, and the taxi driver were killed, and 276 people were injured during these events.", "26. The events in the Gazi neighbourhood sparked widespread outrage throughout the country and a number of demonstrations were held in different parts of Turkey during which the actions of the police were condemned.", "27. On 15 March 1995 a large crowd gathered in the Mustafa Kemal neighbourhood, located within the Ümraniye district of Istanbul. The group began marching towards the funerals of those who had been killed during the Gazi incident.", "28. At 2.30 p.m. the same day, the crowd came across barricades which had been set up by the police in a square outside a primary school. A number of demonstrators started throwing stones towards the barricades, upon which, without any warning, uniformed and plainclothes police officers began firing at the crowd. No one in the group returned fire. None of the police officers were killed or injured. Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk were killed during the shooting. More than twenty people were injured.", "29. Upon receipt of information that five cafés in the Gazi neighbourhood were under fire, police officers were sent to the scene of the incident. When the police officers arrived in front of the cafés, they saw a crowd of forty people who were shouting slogans against the police. The crowd attacked the police vehicles and the police officers were unable to conduct an investigation. Therefore they called for reinforcements. Following the arrival of additional security forces, the police conducted an investigation and wounded persons were sent to hospital. At the same time, some people from the neighbourhood joined the protesting group. Together, they started shouting slogans, and throwing coins and stones at the police. Some of the protesters had fire bombs in their hands. With the participation of other people from the neighbourhood, the crowd became larger and they started to march towards the Gazi Police Station. Many shops and vehicles were set on fire. Some masked men in the crowd threw fire bombs towards the police officers. In order to prevent the crowd from going further, the police officers built barricades. Security forces verbally warned people to stop. They then used pressurised water and batons to disperse the crowd. When they were not able to disperse them, they fired warning shots in the air. However, the crowd continued to walk towards the security forces and attacked the panzers with fire bombs. The riot in the Gazi neighbourhood lasted for two days. At the end of the second day, a curfew was imposed in the area. During the riot, 13 people died and 195 persons (152 residents, 36 police officers and 7 soldiers) were wounded.", "30. Following the incidents that took place on 12 March 1995, the security forces received intelligence reports about further possible riots in the Ümraniye area. In order to prevent any untoward occurrences, a meeting was organised on 14 March 1995 at the Ümraniye district security directorate building. The district director of security, the mayor of the neighbourhood and the president of the Pir Sultan Abdal Association participated in the meeting, which was presided over by the district governor. During the meeting, the situation was discussed and residents were requested not to be influenced by provocation. In the morning of 15 March 1995, upon threats from a terrorist organisation, all the shops in the neighbourhood closed down as a sign of protest. A second meeting was held to discuss the situation. At about 1 p.m. the same day, a group of 1,500 people gathered in front of the Pir Sultan Abdal Association in the Mustafa Kemal neighbourhood and started to march towards the Örnek neighbourhood. The security forces announced that the march was illegal and requested the participants to disperse. The group started shouting slogans and continued to march. The number of people increased to thousands. Some of the protesters were wearing red berets and scarves. Some people from the crowd threw stones and coins at the security forces. As the tension increased, the group started attacking the security forces with bricks and stones. The security forces took precautions and established a security line. After some time, armed men, who were amongst the group, started shooting towards the security forces and the crowd. The security forces fired warning shots in the air and the attack stopped. The wounded persons were taken immediately to hospital. While the wounded were being evacuated, the crowd continued shouting slogans and throwing stones from behind the shelters. Traffic was also halted by burning tyres. Military forces arrived at the scene, a curfew was established and the entrance to the neighbourhood was placed under strict control.", "31. Following the incidents, the domestic authorities immediately commenced investigating the events. Several witness statements were taken, autopsies were conducted and the bullets recovered from the bodies of the wounded and dead persons were sent for ballistic examination. Seven ballistic reports were prepared by the Istanbul Forensic Medicine Institute on 26 and 31 July, 11 September and 15 November 1995, 27 October 1997 and 12 October 1999, respectively. According to these reports, none of the bullets that had been recovered from the bodies of the victims matched the weapons of the security forces who were on duty during the two incidents.", "32. In accordance with Article 22 of Law No. 3713 on the Prevention of Terrorism, in April 1995 the families of the deceased persons were paid 150,000,000 Turkish Liras (TRL), the equivalent of 2,800 euros (EUR), by way of compensation from the Social Collaboration and Solidarity Encouragement Fund (Sosyal Yardımlaşma ve Dayanışmayı Teşvik Fonu).", "33. On 11 April 1995 Arslan Bingöl, Celal Sevinç, Çiçek Yıldırım, Mukaddes Gündüz, Sabahat Engin and Cemal Poyraz filed a criminal complaint with the Gaziosmanpaşa public prosecutor against the Ministry of the Interior, the Governor of Istanbul, the Director of the Istanbul Police and the police officers who were involved in the incidents of 12-13 May 1995 in the Gaziosmanpaşa district. They maintained that their relatives had been killed by police officers who had used more force than was absolutely necessary. They further alleged that the crowd which protested against the police had not used firearms and that the police had opened fire at the crowd without any warning. They maintained that the police should have first used pressurised water, tear gas or plastic bullets to disperse the demonstrators. According to the complainants, the police deliberately used firearms against the demonstrators who were residents of the Gazi district and who belonged to the Alevi sect.", "34. Following this criminal complaint, the Public Prosecutor commenced an investigation into the events. On 19 April 1995 he issued a decision of non-jurisdiction to examine the complaint against Hayri Kozakçıoğlu, the Governor of Istanbul. The prosecutor accordingly sent the file to the Ministry of the Interior for further investigation.", "35. On 4 July 1995 the public prosecutor issued a decision of non-prosecution against Necdet Menzir, the Head of the Istanbul Security Department.", "36. On 5 July 1995 the prosecutor decided that no criminal prosecution could be initiated against Nahit Menteşe, the Minister of the Interior. He held that, in his capacity as the Minister, Mr Menteşe did not have legal responsibility concerning the alleged events.", "37. On the same day, the public prosecutor also decided to separate the investigation concerning the death of Dinçer Yılmaz, Sezgin Engin, Mümtaz Kaya, Hasan Gürgen, Hasan Sel and Hasan Ersürer from the other killings. This file was accordingly registered under file no. 1995/6570.", "38. On 10 July 1995 the public prosecutor filed an indictment with the Eyüp Assize Court against twenty police officers who had been on duty during the demonstrations between 12 and 13 May 1995. The indictment involved the death of Dilek Şimşek Sevinç, Reis Kopal, Zeynep Poyraz, Fevzi Tunç, Fadime Bingöl, Ali Yıldırım and Mehmet Gündüz. In his indictment, the prosecutor relied on witness statements, medical reports, police reports, autopsy reports, video footage and newspaper clippings. He stated that, following the attack on the cafés located in the Gazi district and upon provocation from an illegal organisation, the residents of the neighbourhood had started protesting against the police. The crowd marched towards the local police station, chanting slogans, and throwing stones and fire bombs. Some people among the group fired at the police officers. The crowd was shouting slogans to incite hatred between the Alevis and Sunnis. The prosecutor further maintained that the police panzers had opened fire at the crowd to disperse the demonstrators and, as a result, Mehmet Gündüz was shot and killed. A police officer, identified as Adem Albayrak, had further shot and killed Ali Yıldırım, Dilek Şimşek Sevinç and Fadime Bingöl. Another police officer, whose identity could not be established, shot and killed Reis Kopal. Adem Albayrak, together with Officer Mehmet Gündoğan, killed Zeynep Poyraz. The prosecutor alleged that the officers in the panzer, together with Officer Gündoğan, had shot and killed Fevzi Tunç. The prosecutor therefore requested the court to prosecute these officers for intentional homicide under Article 448 of the Criminal Code.", "39. Mukaddes Gündüz (wife of Mehmet Gündüz), Mustafa Tunç (father of Fevzi Tunç), Çiçek Yıldırım (mother of Ali Yıldırım), Cemal Poyraz (father of Zeynep Poyraz), Celal Sevinç (husband of Dilek Şimşek Sevinç), Ali Şimşek (father of Dilek Şimşek Sevinç), Hüseyin Kopal (father of Reis Kopal) and Aslan Bingöl (husband of Fadime Bingöl) intervened in the proceedings.", "40. On 13 July 1995 the Eyüp Assize Court decided to transfer the case to another city for security reasons as its location was very close to the vicinity where the incident had taken place.", "41. On 15 August 1995 the Court of Cassation upheld the decision of the Eyüp Assize Court and decided to transfer the case to the Trabzon Assize Court, approximately 1000 kilometres away from Istanbul.", "42. On 11 September 1995 the Trabzon Assize Court held a preliminary hearing. It decided to send letters rogatory to a number of courts to take statements from fifty eye-witnesses. It also decided that taking oral evidence from another 250 witnesses would be considered at a later stage. It finally requested the public prosecutor to find the current addresses of the twenty accused police officers who, since the incident, had been posted elsewhere in the country. It adjourned the examination of the case until 15 November 1995.", "43. On 15 November 1995 the Trabzon Assize Court stayed the trial on the ground that the indictment lacked the prior authorisation of the Istanbul Provincial Administrative Council to initiate criminal proceedings against the police officers. It therefore sent the case-file to the governor’s office in Istanbul, in accordance with the Law on the Prosecution of Civil Servants. The applicants filed an objection against this decision with the Court of Cassation.", "44. On 8 October 1996 the Court of Cassation decided that the decision of the Trabzon Assize Court to stay the proceedings was not a final decision and, as such, the Court of Cassation did not have jurisdiction to examine this appeal. On 15 October 1996 the prosecutor at the Court of Cassation appealed against this decision.", "45. On 17 December 1996 the Joint Criminal Chambers of the Court of Cassation confirmed that the Court of Cassation was not the competent forum to examine the appeal request. Accordingly, the case file was transferred to the Rize Assize Court.", "46. On 3 March 1997 the Rize Assize Court found in line with the applicants’ objection and decided to quash the decision of the Trabzon Assize Court dated 15 November 1995. It held that a prior authorisation from the Istanbul Provincial Administrative Council was not necessary to commence the prosecution of the accused police officers.", "47. On 28 March 1997 the Trabzon Assize Court insisted that its decision of 15 November 1995 was valid and that the authorisation of the Istanbul Provincial Administrative Council was required to try the defendants. It decided to send the file to the Ministry of Justice to obtain a written order instructing the public prosecutor at the Court of Cassation to refer the case to the Court of Cassation. The Trabzon public prosecutor was requested to forward the file to the Ministry of Justice.", "48. On 31 March 1997 the Trabzon public prosecutor sent the file to the Ministry of Justice together with his observations, in which he stated that the issue had already been examined by the Joint Criminal Chambers of the Court of Cassation and that, in his opinion, it was not necessary for the Ministry of Justice to issue a written order.", "49. On 13 May 1997 the Ministry of Justice returned the file to the Trabzon Assize Court, rejecting its request for a written order.", "50. On 23 May 1997 the president of the Trabzon Assize Court submitted a two-page letter informing the court about his decision to abstain from sitting as a member of the court during the prosecution of the police officers. In his letter, the president stated that it was impossible for him to remain impartial and independent during the trial of the police officers when his own life was being protected by members of the security forces. He also stated that, in his opinion, the police officers were not guilty and the Gazi district incident was a premeditated riot against the security forces.", "51. On 13 June 1997 the Trabzon Assize Court resumed the trial and held a preliminary hearing. The president of the court, who had abstained from hearing the case, was replaced by another judge.", "52. On 16 September 1997 the Trabzon Assize Court held the first hearing in the case. The defendants did not attend the hearing but were represented by their lawyers. During the hearing, the court heard testimonies from the interveners, namely Mustafa Tunç, Çiçek Yıldırım, Ali Şimşek, Cemal Poyraz and Aslan Bingöl. All interveners complained that the police had used excessive force against the demonstrators, which had led to the killing of their relatives. As none of them were eye-witnesses to the events, they were unable to give precise details about the incident. However they asked the court to punish those who were responsible for the killings. The same day, the court heard evidence from two people who had been injured during the Gazi Incident. In their statements, both witnesses stated that they had been severely beaten by the police. They also identified the accused officer Adem Albayrak as the officer who had beaten them. At the end of the hearing, the court ordered the detention on remand of eight of the defendants. It also summoned the remainder of the defendants to the next hearing.", "53. In its hearing held on 17 November 1997, the court took statements from fifteen accused police officers. Before the court, the defendants stated the following:\nAdem Albayrak\n“At that time, I was a working at the Gaziosmanpaşa District Security Directorate Investigation Unit. Following the attack on the cafés, I was called to the scene with other police officers. I was in command of one of the units. During the incident, I was in civilian clothes, equipped with a handgun. I did not have a rifle or other firearms. When I arrived at the scene, I saw that a huge crowd had already gathered in front of the police station. Some of the demonstrators were throwing stones and fire bombs at the police officers. There were terrorists amongst the demonstrators. They set fire to a white car and a gas container was thrown at this car from a nearby building. The demonstrations continued for about 4 hours. With the help of two panzers, the police officers were trying to disperse the crowd. At some point, the demonstrators marched back but I did not follow them. I stayed near the police station the whole time. Some civilians fired at the police officers from the roofs of the buildings. I did not fire at the crowd. I deny the charges brought against me.”\nMehmet Gündoğan\n“When I arrived in the Gazi district, there was a huge gathering. The demonstrators were carrying banners. The officers warned them and fired in the air. Some of the demonstrators fired at the police. I was equipped with a handgun; I did not have a rifle. I admit that I am the person in the photograph holding a stick with my right hand and a gun with my left hand. However the security of the gun was locked. I did not fire at the demonstrators.”", "54. The same day, the court heard the statements of thirteen other defendants who had been on duty in the panzers at the time of the incident. All of the accused officers denied firing at the crowd. They stated that there were three panzers at the scene on 13 March 1995. The panzers had acted as protective shields for the police officers who were trying to disperse the crowd. According to the accused officers, the crowd was not peaceful; the demonstrators were chanting slogans, and throwing stones and fire bombs at the police. The three panzers had been ordered to drive towards the demonstrators to force them to disperse. All the police officers acknowledged that they had had handguns but denied having had rifles.", "55. On 15 December 1997 the court heard the statements of two other accused police officers, who maintained that the crowd was not peaceful, but was chanting slogans, and throwing stones and fire bombs at the police. They denied firing at the crowd and stated that some people in the group had fired at the police. The same day, the court took statements from Hüseyin Kopal, who had intervened in the proceedings, and six more eye-witnesses. Their accounts may be summarised as follows:\nHüseyin Kopal\n“I am Reis Kopal’s brother. When Reis did not come home on the day of the incident, I was worried about him. I therefore went to the Gazi district looking for him. It was very crowded. There was a clash. The demonstrators were throwing stones at the police. I saw three dead bodies near a wall. I later learned that these belonged to Fevzi Tunç, Ali Yıldırım and Sezgin Engin. Uniformed and plainclothes police officers were firing at the crowd. I saw the accused officer, Adem Albayrak, shooting at the crowd with a M5 type rifle. I continued looking for my brother. A few minutes later, I witnessed the killing of Mümtaz Kaya. He was shot by a police officer near the high school. I was not able to find my brother and I returned home. Later that night, as I was watching the events from the TV, I recognised my brother. He was amongst the demonstrators, throwing stones at the police. We were later informed that he was shot dead during the incidents.”\nŞeyho Tunç\n“On 13 March 1995 I went to the Gazi district. When I arrived near the police station, a clash broke out. Police officers targeted the demonstrators and fired at them. I saw the accused police officer Adem Albayrak firing at Fevzi Tunç. Adem Albayrak was in civilian clothes, equipped with a rifle.”\nMahmut Türkmen\n“At the time of the incident, I was working at the Cemevi. Following the attack on the cafés, we tried to convince the residents to calm down. At about 4 a.m. a panzer drove towards our building and projected a light. Thereafter I heard gunshots. Mehmet Gündüz was shot and killed during the shooting. Because of the light, I was unable to see whether the firing came from the panzer or somewhere else.”\nErkan Şimşek\n“I am the brother of Dilek Sevinç who died during the Gazi incident. Following the attack on the cafés, together with Dilek and my younger sister Dilay we approached the police station to see what was going on. One plainclothes police officer, namely Mehmet Gündoğan, started beating me. Then some other police officers started firing at the crowd. Dilek was shot as a result of the shooting. She was shot by a plainclothes police officer who was wearing jeans and holding a rifle. I later learned from the press that his name was Adem Albayrak.”\nŞahnaz Türkkan\n“I am the neighbour of Fadime Bingöl who was shot dead during the Gazi incident. On the day of the incident, Fadime was worried about her daughter who had gone to school. When she saw that other students were returning to their houses, she wanted to go out and find her daughter. I accompanied her. Together, we went towards the crowd. When we were in front of the pharmacy, Fadime climbed on a ladder in order to be able to see her daughter in the crowd. Suddenly there was shooting, and I saw Fadime fall down. She was shot by a police officer who was standing on the opposite side of the road. I cannot identify the officer as he was wearing a helmet.”\nSongül Bingöl\n“Fadime Bingöl is my relative. On the day of the incident, we went out to search for Fadime’s daughter who had gone to school in the morning. Fadime climbed on a ladder in front of the pharmacy, looking for her daughter. She was shot in the face by police officers standing on the opposite side of the building.”\nSafiye Obalı\n“On 13 March 1995 at about 10 a.m. together with my sister-in-law Fadime Bingöl, we went out looking for Fadime’s daughter. We first went to the Cemevi, then continued walking. Fadime saw a ladder and climbed on it to find her daughter in the crowd. At that time plainclothes and uniformed police officers started firing at the crowd. Fadime was shot in the face. I could not see who shot her. I just saw police officers shooting at the crowd.”", "56. On 28 January 1998 the court held its fourth hearing and took the statement of an accused police officer, Sedat Özdemir. Mr Özdemir maintained that he had been on duty in one of the panzers during the Gazi incident. He explained that the panzers had been used as shields to protect the police officers from the crowd. He stated that all of the officers in the panzer were equipped with handguns.", "57. The same day, the court further heard oral evidence from two witnesses, namely Sadık Bakır and Hıdır Elmas. Both witnesses had been working at the Cemevi at the time of the incidents. They maintained that, following the attack on the cafés on 12 March 1995, people started gathering in front of the Cemevi. While they were waiting peacefully in front of the building, at about 4 a.m. a panzer approached and projected its lights towards the Cemevi. The witnesses recalled hearing gun shots and maintained that Mehmet Gündüz had been shot and killed and several people wounded as a result of this shooting.", "58. On 27 February 1998 the court heard witness statements, which may be summarised as follows:\nPetrikan Konak\n“I am a police officer. On the day of the incident, we were called to the Gazi district as reinforcement. We waited in front of the local police station for a long time. We were confronted with a large gathering. They were shouting slogans. In the morning, military forces arrived at the scene. The crowd was attacking the police barricade with stones and bricks. Fire bombs were thrown at the police. As I was behind, I could not see clearly what was going on near the barricades, but at some point the crowd started marching back. Some officers followed them. I heard screams and gunshots but I never left the police station. I saw that some of the police officers from the anti-terrorism branch were equipped with MP5 rifles and Kalashnikovs. They were wearing bullet proof vests.”\nEngin Turan\n“I was waiting in the Cemevi on the night of the incident. At about 4 a.m., I saw a panzer which projected its lights onto the building. Then from behind the panzer, I heard gun shots. Many people were hit during the firing. We tried to take the wounded persons to hospital. One of the wounded persons died on the spot. I later learned that his name was Mehmet Gündüz.”\nFazıl Dural\n“I am a journalist. I work for one of the weekly magazines. On Sunday when I heard about the Gazi incident, I went to the district at about 11 p.m. When I was in front of the police station, I heard an explosion. Then I saw the panzers. They were trying to extinguish a taxi that was on fire. On the left side, I saw police officers shooting in the air with their hand guns. From their clothes, I understood that they were from Rapid Intervention Force. I saw that many of the police officers acted in panic. A commander shouted, “Stop or you will shoot each other”. Someone from a nearby building threw a gas container at the burning taxi. The car exploded. Children were attacking the shops by throwing stones. I saw some people with fire bombs; their faces were covered. I assumed they were members of an illegal organisation. They were throwing these fire bombs at the panzers. An announcement was made from the Cemevi, asking the residents to go home. The crowd started calming down. I went to a nearby café to wait. After some time, someone rushed into the café and shouted, “They’ve started attacking”. When we went to the Cemevi, I saw that a panzer was projecting lights on the crowd, and guns were fired from behind the panzers. Many people were wounded. Mehmet Gündüz died on the spot.”\nMaksut Doğan\n“I am the director of the Cemevi. I was watching TV when I heard about the attack on the cafés. Immediately, I went to the Cemevi. A group of 200-300 persons had gathered in front of our building. The mayor of the district talked to the group and told them to go home. While we were trying to organise the funeral of Halil Kaya, at about 4 a.m. two panzers approached our building. One of them projected its lights onto the building. At first, I heard two gun shots. Then the shooting continued. A person who was waiting in front of the Cemevi was shot and killed.”\nNazmi Yükselen\n“Fevzi Tunç, who was killed during the Gazi incident, was my colleague. On the day of the incident, I was at Fevzi’s apartment in Gazi district. Together we were watching a football game. While we were watching TV, we heard about the attack on the cafés. We did not go out that night. The following morning at about 10 a.m. we went out. When we approached the Cemevi, we came across a huge crowd. Our aim was to catch the bus. However, at that moment we heard gun fire. We saw someone fall down. Fevzi went to help him. I then saw two police officers pointing their guns at us. One of them was wearing a uniform; the other was in civilian clothes. The police officer who was dressed in civilian clothes was holding a M5 rifle. They both fired at us. Fevzi was shot from a distance of 60-70 metres.”", "59. On 2 April 1998 the court heard the statements of three interveners, Menevşe Poyraz, Haydar Kopal and Şaziment Şimşek, none of whom had been eye-witnesses to the incident. They all requested the court to punish those responsible for the killing of their relatives. The same day, the court heard evidence from Özlem Tunç and Mahmut Yağız. In her statement Özlem Tunç submitted that she was living in the Gazi district at the time of the incident. On the day of the incident, she was at home when she heard the attacks on the cafés. She went out with her mother to see what was going on. She witnessed police officers attacking the crowd. She was severely beaten by the police. She saw the dead body of Fevzi Tunç and witnessed the death of Fadime Bingöl. She stated that Fadime was standing right in front of her when she had been shot in the face. However, the witness had not been able to see who had fired the shot.", "60. When asked about his recollection of the incident, the second witness Mahmut Yağız explained that on 13 May 1995 at about 10 a.m. he had gone out to see the events. The streets had been extremely crowded. He recalled hearing gun shots and seeing a group of demonstrators throwing stones at the police. He also remembered seeing two police officers, in civilian clothes, firing with rifles from behind a car. He explained that, as a result of the firing, four persons had been shot and killed. He subsequently learned that amongst the dead were Fevzi Tunç, Reis Kopal and Sezgin Engin. The witness maintained that the killing of these persons had raised the tension and the crowd had started throwing stones at the police. He recalled seeing two uniformed police officers fire at the crowd, targeting the demonstrators.", "61. While the proceedings before the Trabzon Assize Court were under way, on 5 March 1998 the Gaziosmanpaşa public prosecutor filed another indictment with the Eyüp Assize Court against the two police officers Adem Albayrak and Mehmet Gündögan for the killing of Sezgin Engin and Mümtaz Kaya during the Gazi incident. On 10 March 1998 the Eyüp Assize Court decided to join these proceedings to those already pending before the Trabzon Assize Court. At its hearing on 2 April 1998, the Trabzon Assize Court endorsed this decision. The applicants Veli Kaya and Mahmut Engin intervened in those proceedings. At its hearing held on 7 May 1998, the court took their statements. Both Mr Kaya and Mr Engin asked the court to find the police officers who had shot and killed their sons.", "62. On 7 May 1998 the court heard the testimony of Sevgili Kaya, the mother of Mümtaz Kaya. She gave the following account:\n“On 13 March 1995 I went to the Gazi district together with my son to visit a friend. On the way, we saw a large group of people. Suddenly, the group started running away. My son panicked and tried to escape. Police officers in civilian clothes fired at the people who were running away. My son was shot. I saw the officer who shot Mümtaz. He was in civilian clothes wearing a coat. I also saw the same officer shoot Zeynep Poyraz.”", "63. When asked to identify the officer who had shot her son, Sevgili Kaya identified Mehmet Gündoğan amongst the defendants. She also stated that it was the same police officer who had shot Zeynep Poyraz.", "64. The same day the court heard the statement of Nuriye Yıldız. She stated:\n“I was in the Gazi district to visit a relative. I stayed there on Sunday and on Monday morning I went out to go back to my house. Near the school, which is close to the Cemevi, I met Mümtaz Kaya and his mother. Suddenly a clash broke out and Mümtaz was shot by a police officer. The officer, who shot Mümtaz from 15 metres away, was in civilian clothes, holding a truncheon with one hand and a gun with the other. People were chased by the police. I also saw panzers.”", "65. When the witness was asked to identify the police officer who had shot Mümtaz, she pointed out Mehmet Gündoğan and confirmed before the court that it was Mehmet Gündoğan who had shot Mümtaz.", "66. At its ninth hearing on 12 June 1998, the court took evidence from two eye-witnesses. Their accounts may be summarised as follows:\nMuharem Buldukoğlu\n“I was in the Gazi district when the incidents took place. I first saw the panzers and the officers who had been positioned behind the panzers. There was a group of people waiting in front of the panzers. Suddenly the panzers started driving towards the gathering. People started running away. I saw Zeynep Poyraz being shot and she fell down. She was shot from a distance of 50-60 metres. I did not see who shot her. Zeynep was not attacking the officers and she was not a member of an illegal group; she was just trying to run away from the police.”\nYalçın Yılmaz\n“I was in the Gazi district at that time. There was a large group of people out on the streets. Amongst the group, I recognised Reis Kopal, who is a relative. Reis was throwing stones at the police. The police started firing at the group and Reis fell down. I saw two police officers equipped with rifles. One of them was wearing a uniform, the other one was in civilian clothes.”", "67. When the witness was asked by the court to identify the police officer who had shot Reis Kopal, he pointed out Adem Albayrak amongst the defendants.", "68. The Trabzon Assize Court further held 21 hearings until 3 March 2000 and heard testimonies from six more witnesses, mainly journalists who had reported the incidents. The defendant police officers Mehmet Gündoğan and Adem Albayrak were released from detention on 6 November 1998 and 3 March 2000 respectively pending trial.", "69. On 3 March 2000 the court delivered its judgment. Basing itself on autopsy reports, ballistics reports, incident reports, testimonies, photographs and video footage of the incident, the court found it established that police officer Adem Albayrak had shot and killed Dilek Şimşek Sevinç, Reis Kopal, Fevzi Tunç and Sezgin Engin. It accordingly sentenced him to six years and eight months’ imprisonment, pursuant to Article 448 of the Criminal Code, and barred him from public service for four months and twenty-eight days. The court also found police officer Mehmet Gündoğan guilty of killing Mümtaz Kaya and Zeynep Poyraz and sentenced him to three years and four months’ imprisonment, and barred him from public service for two months and fourteen days, pursuant to Article 448 of the Criminal Code. The remaining eighteen police officers were acquitted of the charges against them.", "70. On 5 April 2001 the Court of Cassation upheld the judgment of the Trabzon Assize Court in respect of the acquitted police officers. However it quashed the first-instance court’s judgment in respect of the convictions of Adem Albayrak and Mehmet Gündoğan. It held that the first instance court had failed to establish the facts of the case. Holding that the assize court’s evaluation of evidence was insufficient, the Court of Cassation quashed this part of the judgment.", "71. On 4 June 2001 the Trabzon Assize Court resumed the proceedings. It held four hearings and re-examined the case file.", "72. On 5 November 2001 the court applied the decision of the Court of Cassation and rectified its former judgment. Accordingly, the Assize Court found Adem Albayrak guilty of killing Fevzi Tunç, Reis Kopal and Dilek Sevinç and sentenced him to five years’ imprisonment. Adem Albayrak was further barred from public service for three months. The court acquitted him of the remaining charges against him, namely the killing of Sezgin Engin.", "73. The court found that Mehmet Gündoğan was guilty of killing Mümtaz Kaya, contrary to Article 448 of the Criminal Code. It accordingly sentenced him to one year and eight months’ imprisonment, and barred him from public service for three months. It acquitted Mehmet Gündoğan of the remaining charges against him, namely the killing of Zeynep Poyraz. Finally, pursuant to Section 6 of the Execution of Sentences Act (Law no. 647), the court decided to suspend the sentence of Mehmet Gündoğan, considering that the accused did not have a tendency to break the law again.", "74. On 11 June 2002 the Court of Cassation upheld the judgment of the first instance court.", "75. The investigation which had been commenced in April 1995 concerning the killing of Dinçer Yılmaz, Hasan Gürgen, Hasan Sel and Hasan Ersürer is still pending before the Gaziosmanpaşa Public Prosecutor under file no. 1995/6570 (see paragraph 37 above). During the investigation, the public prosecutor took oral evidence from witnesses, and examined the autopsy reports, the photographs taken during the demonstration and the video footage of the event. He further requested the list of police officers who had been on duty during the Gazi incidents and ordered a ballistic examination of their guns. As the bullet which killed Dinçer Yılmaz could not be found, no ballistic examination could be performed. According to the Government, the authorities are still searching the perpetrators.", "76. On 11 April 1995 a criminal complaint was filed with the Üsküdar public prosecutor’s office against the Ministry of Interior, the Governor of Istanbul, the Director of the Istanbul Security Department and the police officers who were involved in the incidents of 15 March 1995 in the Ümraniye district. It was submitted that, as a result of the disproportionate use of firearms by the police, five persons, namely Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk, were killed and twenty others were injured. It was argued that the Ministry of Interior, the governor of Istanbul and the director of the Istanbul police headquarters had been negligent in failing to control the actions of the police. The relatives of the deceased persons further argued that the police officers had even followed those running away from the scene and fired at them. They contended that the demonstrators had not fired at the police and, in support of this allegation, they maintained that no police officers had been injured or killed during the Ümraniye incident.", "77. On 15 April 1997 the Üsküdar prosecutor’s office decided not to prosecute the 238 police officers who had been on duty during the Ümraniye incident. He stated that police officers had fired warning shots in the air to disperse the demonstrators and concluded that the deceased persons had not been killed by fire opened by members of the Rapid Intervention Force. It had not been possible to establish the accuracy of the claims that a number of civilians who opened fire on the crowd were plainclothes police officers. In reaching this conclusion, the Üsküdar public prosecutor’s office had regard to the eye-witness accounts of a number of persons, including the relatives of the deceased persons. A number of police officers working at the Ümraniye police headquarters had also been questioned. Eight bullets which had been removed from the bodies of the deceased and the injured persons had been compared with those obtained from the weapons of the 238 defendants. As a result, it was established that these eight bullets had not been fired from any of the weapons owned by the defendants. Video recordings and a number of pictures of the scene were obtained by the prosecutor’s office but they turned out to relate to events which had taken place after the killing of the applicants’ relatives. It was concluded that it had not been possible to identify the demonstrators who had opened fire at the crowd. The prosecutor further held that the firing in the air by police officers did not constitute a criminal offence. Finally, the prosecutor noted that, as the ballistic examinations of the weapons belonging to seven other police officers had not yet been concluded, a decision as to whether to prosecute these officers would be taken at a later date.", "78. The applicants Sabri Puyan, Hacer Baltacı, Aynur Demir and Aligül Yüksel appealed against the decision.", "79. On 13 November 1998 the appeal was dismissed by the Kadıköy Assize Court.", "80. On 10 November 1998 the Üsküdar prosecutor’s office decided not to prosecute the remaining seven police officers for the same reasons it had relied on in its decision of 15 April 1997.", "81. On 30 November 1998 the applicants appealed against the decision of 10 November 1998 not to prosecute. Their appeal was rejected." ]

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[ "7. The applicant was born in 1956 and lives in Poznań, Poland.", "8. On an unknown date in 1997 the applicant’s husband lodged a petition for divorce with the Poznań Regional Court (Sąd Okręgowy). The applicant did not agree to a divorce and asked the court to dismiss the petition.", "9. On 1 November 1997 the court made an interim periodical payments order requiring the applicant’s husband to pay 2,500 Polish zlotys (PLN) for maintenance in respect of their 3 children pending the proceedings.", "10. On 21 September 1999 the Poznań Regional Court granted a decree of divorce. The court held that the marital breakdown was irretrievable and that both spouses had been at fault in respect of the breakdown of their marriage. It ordered that a final court fee (“wpis ostateczny”) of PLN 10,000 should be borne by the parties in equal shares (PLN 5,000 each).", "11. On 20 October 1999 the applicant appealed against the divorce decree. She contested the findings made by the Regional Court in respect of the breakdown of the marriage and her being responsible for the marital breakdown. She also asked the court to rule that adultery on the part of her husband had been the main reason why their marriage had ended.", "12. On 25 October 1999 the court ordered the applicant to pay a court fee of PLN 10,000 for lodging the appeal.", "13. On 3 November 1999 the applicant made an application for an exemption from that fee. She argued, in particular, that a court fee for lodging an appeal constituted in fact an interim court fee (“wpis tymczasowy”) and that it should be estimated pursuant to section 11 of the Ordinance of the Minister of Justice of 17 December 1996 on Determining Court Fees in Civil Cases (Rozporządzenie Ministra Sprawiedliwości w sprawie określenia wysokości wpisów w sprawach cywilnych). It could not, therefore, exceed the maximum interim court fee in divorce proceedings, which was PLN 600. The applicant further submitted that she was in a difficult financial situation and that she was not able to pay the fee in question. She also stressed that the sum required from her was unusually high and out of any proportion to her standard of living.", "14. On 8 November 1999 the Poznań Regional Court dismissed the application, considering that the applicant had “not shown that her financial situation made it impossible for her to pay the fee”. It held that she had not supplied a detailed statement concerning her financial situation.", "15. On 20 November 1999 the applicant lodged an interlocutory appeal against that decision. She maintained that she had already submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. The Poznań Court of Appeal (Sąd Apelacyjny) dismissed that appeal on 30 November 1999. That decision did not contain any reasons.", "16. On 16 December 1999 the Poznań Regional Court ordered the applicant to pay, within seven days, a court fee of PLN 10,000 for lodging the appeal of 20 October 1999, on pain of it being rejected.", "17. On 10 January 2000 the applicant lodged the second application for an exemption from court fees. She submitted that, given her financial means, she could pay only a sum not exceeding PLN 3,300. The applicant argued that she was not employed and that her only means were payments for her share in marital property received from her husband. She further maintained that she had not put money aside for the litigation since she had not expected the court fee to be so high. The applicant also stressed that the case was relatively simple but that important issues were at stake for her in the proceedings because they related to her civil status. Moreover, she pointed out that in other, more complex proceedings (concerning the marital property division) the Poznań Regional Court levied a moderate court fee of PLN 4,660 on each party.", "18. On 13 January 2000 the Poznań Regional Court dismissed the application for a partial exemption from court fees and rejected the appeal against the divorce decree of 21 September 1999 for non-compliance with the court’s decision ordering the applicant to pay the court fee for lodging that appeal. The court held that the applicant had failed to indicate whether paying the full amount of court fees would entail a substantial reduction in her standard of living.", "19. On 28 January 2000 the applicant lodged an interlocutory appeal against that decision. On 22 February 2000 the Poznań Court of Appeal dismissed the appeal. It held that the applicant’s financial situation was good since she had already received PLN 300,000 from her husband on the basis of a lump sum order made in the proceedings concerning the division of their marital property, and that she would receive more payments.", "20. On 20 March 2000 the applicant lodged a cassation appeal with the Supreme Court against that decision. She repeated the arguments raised in her earlier applications.", "21. On 29 March 2000 the Poznań Court of Appeal ordered the applicant to pay a court fee of PLN 10,000 for lodging the cassation appeal.", "22. On 5 April 2000 the applicant made an application for a partial exemption from court fees in the cassation proceedings. She submitted that she was able to pay the court fees not exceeding PLN 3,300. She further maintained that her financial situation was difficult because she was not employed and her only asset was the lump sum received from her husband; that sum, however, had to be disbursed not only for her needs but also for maintenance of her two minor children who lived with her.", "23. On 17 April 2000 the Poznań Court of Appeal dismissed the application. The decision did not contain any reasons.", "24. The applicant did not pay the fee of PLN 10,000. As a consequence, on 16 May 2000, the Poznań Court of Appeal rejected her cassation appeal on formal grounds.", "25. On 26 May 2000 the applicant lodged an interlocutory appeal against that decision. On 30 May 2000 the Poznań Court of Appeal ordered the applicant to pay a court fee of PLN 2,000 for lodging the interlocutory appeal.", "26. On 6 June 2000 the applicant made another application for an exemption from court fees in the interlocutory appeal proceedings. On 9 June 2000 the court again ordered her to pay a court fee of PLN 2,000.", "27. On 9 June 2000 the Poznań Court of Appeal dismissed her application for an exemption from court fees in the interlocutory appeal proceedings. That decision was upheld on appeal on 12 July 2000." ]

[ 3 ]

[ "5. The applicants were respectively born in 1932, 1963, 1941 and 1940 and live in Florence.", "6. M.S. was the owner of a flat in Florence, which he had let to E.D.L. and after her death to her daughter S.L.D.B.", "7. In a writ served on the tenant on 19 October 1989, M.S. informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked her to vacate the premises by that date. He summoned the tenant to appear before the Florence Magistrate.", "8. By a decision of 9 November 1989, which was made enforceable on 21 November 1989, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.", "9. On 12 June 1993, M.S. died, his wife and children – the actual applicants – inherited the flat and became party to the proceedings as heirs.", "10. On 14 December 1993, the applicants served notice on the tenant requiring her to vacate the premises.", "11. On 18 January 1994, they informed the tenant that the order for possession would be enforced by a bailiff on 8 March 1994.", "12. Between 8 March 1994 and 3 December 1998, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.", "13. On 27 July 1999, pursuant to section 6 of Law no. 431/98, the tenant asked for a suspension of the eviction proceedings.", "14. The eviction proceedings were suspended until 26 January 2001.", "15. On 8 March 2001, the applicants served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 14 May 2001.", "16. On that date, the bailiff made one attempt and discovered that the tenant had left the premises on 10 May 2001.", "17. Consequently, the applicants recovered possession of the flat." ]

[ 3, 9 ]

[ "5. The applicant was born in 1945 and lives in Rome.", "6. A.C., the applicant's aunt, was the owner of a flat in Rome, which she had let to C.R.", "7. In a registered letter of 10 May 1985, A.C. informed the tenant that she intended to terminate the lease on expiry of the term on 30 April 1986 and asked her to vacate the premises by that date.", "8. In a writ served on the tenant on 10 July 1985, A.C. reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.", "9. By a decision of 14 November 1985, 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 31 May 1986.", "10. On 29 May 1986, A.C. served notice on the tenant requiring her to vacate the premises.", "11. On 24 July 1986, she informed the tenant that the order for possession would be enforced by a bailiff on 5 August 1986.", "12. Between 5 August 1986 and 20 November 1998, the bailiff made thirty-six attempts to recover possession. Each attempt proved unsuccessful, as A.C. was not entitled to police assistance in enforcing the order for possession.", "13. In the meanwhile, on 9 November 1998, A.C. died and her nephew, the applicant, inherited the apartment.", "14. On 22 July 1999, pursuant to Law no. 431/98, the tenant asked for a suspension of the enforcement proceedings.", "15. After that, on an unspecified day of 1999, the applicant became party to the national proceedings.", "16. The enforcement proceedings were suspended first until 30 May 2000 and then until 16 November 2000.", "17. On 30 January 2001, the tenant spontaneously left the premises and the applicant recovered possession of the flat." ]

[ 3, 9 ]

[ "5. The applicants were respectively born in 1938, 1943 and 1948 and live in Rome.", "6. The applicants' father was the owner of a flat in Rome, which he had let to V.D.C.", "7. In a writ served on the tenant on 24 January 1984, the applicants' father informed the tenant that he intended to terminate the lease on expiry of the term and summoned him to appear before the Rome Magistrate.", "8. By a decision of 17 April 1984, which was made enforceable on 2 May 1984, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 16 April 1985.", "9. On 2 May 1984, the applicants' father served notice on the tenant requiring him to vacate the premises.", "10. On 3 April 1987, he informed the tenant that the order for possession would be enforced by a bailiff on 12 May 1987.", "11. Between 12 May 1987 and 29 March 2001, the bailiff made forty-six attempts to recover possession. Each attempt proved unsuccessful, as the applicants' father was not entitled to police assistance in enforcing the order for possession.", "12. In the meanwhile, on 14 February 1992, the applicants' father died and the applicants inherited the flat.", "13. On 18 July 1998, they became party to the eviction proceedings as heirs.", "14. On an unspecified date of April 2001, the applicants recovered possession of the flat with the assistance of the police." ]

[ 3, 9 ]

[ "5. The applicant was born in 1936 and lives in San Giovanni Lupatoto (Verona).", "6. G.S., the applicant's father, was the owner of a flat in Cagliari which he had let to G.A.S.", "7. In a registered letter of 3 June 1991, the applicant's father 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.", "8. In a writ served on the tenant on 24 February 1992, the applicant's father reiterated his intention to terminate the lease and summoned the tenant to appear before the Cagliari Magistrate.", "9. By a decision of 23 March 1992, which was made enforceable on the same day, the Cagliari Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 June 1992.", "10. On 20 July 1992, the applicant's father served notice on the tenant requiring him to vacate the premises.", "11. On an unspecified date, the applicant's father made a statutory declaration that he urgently required the premises as accommodation for himself.", "12. Subsequently, he informed the tenant that the order for possession would be enforced by a bailiff on 13 October 1992.", "13. Between 13 October 1992 and 23 June 1995, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as the applicant's father was never granted the assistance of the police in enforcing the order for possession.", "14. On 25 May 1995, the applicant's father made a request for police assistance.", "15. On 27 July 1995, the Cagliari Prefect informed him that the police assistance would be granted after 30 September 1996.", "16. On 22 September 1997, the applicant's father died and his daughter, the actual applicant, inherited the flat and took part in the proceedings as an heir.", "17. On 13 July 1998, the Prefect informed the bailiff that the police assistance would be granted only after 31 December 1998, as there was no urgent necessity, the applicant's father having died.", "18. On 19 April 1999, the applicant served on the tenant the order to vacate the premises.", "19. On 3 May 1999, she informed the tenant that the order for possession would be enforced by a bailiff on 25 May 1999.", "20. On an unspecified day of May 2001, the tenant spontaneously vacated the premises and the applicant recovered possession of the flat." ]

[ 3, 9 ]

[ "8. The first applicant, Bronisław Rosenzweig, is a German national, who was born in 1941 and lives in Berlin. The second applicant is “Bonded Warehouses Ltd”, a public company.", "9. On 18 February 1994 the Main Customs Office granted a licence to run a bonded warehouse in Słubice to the applicant company “International Bonded Warehouses Ltd.”.", "10. On 29 May 1995 the German customs office at Frankfurt/Oder stated in writing that the German customs authorities had no objections to the operation of the applicant company.", "11. On 1 June 1995 a further permit was given for exporting merchandise via the border crossing in Słubice by the Director of the local Customs Office in Słubice.", "12. The applicant submitted that it had been repeatedly suggested that the company should pay various bribes to the customs officials if it wished to continue its operation undisturbed. The Government did not respond to this submission.", "13. By a letter of 22 November 1995 the Director of the local Duty Office in Słubice stated that from 27 November 1995 on he would revoke the permit of 1 June 1995 for exporting merchandise via the Słubice border crossing. It was argued that the permit of 1 June 1995 was not in conformity with an agreement with the Federal Republic of Germany regarding the border crossings and trans-border movements of goods and persons.", "14. On 27 November 1995 the customs officers ordered that the headquarters of the applicant company be closed and affixed official seals on its door, preventing it thereby from conducting further business. On the same day the applicant company complained to the Main Customs Office, submitting that there were no legal grounds on which the permit should be revoked and that the letter of 22 November 1995 was not an administrative decision, which made it impossible to lodge a formal appeal against it.", "15. In a letter of 21 December 1995 the applicant company reiterated its complaint and stressed that the director of the Słubice Customs Office had failed, despite the company's repeated requests, to give any legal basis for the revocation of the permit. It was argued that the revocation of the permit breached economic freedom as guaranteed by the Constitution, and clearly infringed the terms of a valid licence which the company had received from the Main Customs Office in February 1994.", "16. On 9 February 1996 the applicant company lodged a complaint under Article 17 of the Supreme Administrative Court's Act about the Main Customs Office's failure to give a decision following the appeal of 27 November 1995. It was submitted that the company had a valid permit given under the provisions of customs law. However, the company's operation had been de facto rendered impossible by the letter of 22 November 1995 as it could not run the warehouse if it was not allowed to export merchandise.", "17. In reaction to this complaint, on 14 February 1996 the Main Customs Office informed the applicant company that the permit of 1 June 1995 was of a temporary character. It was to remain valid only until a bridge in nearby Świeck was to be constructed. After the construction of this bridge had been terminated, the border crossing in Słubice was to be used only for small trans-border movement of goods and persons. This was to be understood as allowing for crossing of the border by persons, but taking merchandise out of the country via this crossing did not fall within the ambit of the notion of the “small trans-border movement of goods and persons” and therefore the permit of 1 June 1995 had to be revoked under Article 21 of the Customs Law.", "18. The applicant company appealed, submitting that the revocation of the exporting permit would practically mean that the company had to stop its business operation, carried out under the valid licence of February 1994.\nOn 21 August 1996 the applicant company and the Director of the Legal Department of the Main Customs Office concluded a settlement to the effect that the applicant company would withdraw the appeal it had lodged with the Supreme Administrative Court against the position taken by the Office in its letter of 14 February 1996 and the President of the Office would set aside the decision of the Director of the Słubice Customs Office of 22 November 1995.", "19. On 21 December 1996 the Main Customs Office set the decision of 22 November 1995 aside and ordered that the question be re-examined by the Director of the Słubice Customs Office.", "20. By a letter of 31 January 1997 the German customs office at Frankfurt/Oder confirmed that the German customs authorities had no legal objections whatsoever against the operation of the applicant company.", "21. On 28 May 1997 the Rzepin Customs Office revoked the permit for exporting merchandise by the applicant company via Słubice, stating that the Słubice border crossing was under Polish law designed only for the so‑called “small trans-border movement of goods and persons” and that, therefore, no merchandise could be exported via this crossing.", "22. The applicant company appealed.", "23. On 20 August 1997 the Main Customs Office quashed the decision of 28 May 1997 and discontinued the proceedings, considering that the impugned decision had been in breach of applicable provisions of procedural law since it had not been given in any of the types of proceedings on the merits provided for by the Code of Administrative Procedure.", "24. The applicant company requested that the legal meaning of this decision be interpreted. It emphasised that it was important for it to have clarified whether the original permit of 1 June 1995 was still valid. This, on the plain meaning of the text of this decision, was unclear.", "25. In an interpretative decision of 23 September 1997 the Main Customs Office explained that the fact that the decision of 28 May 1997 had been set aside was to be understood in such a way as to mean that the legal situation existing before this decision had been given still obtained.", "26. The applicant company requested that this issue be re-examined, asking whether the quashing of the decision of 28 May 1997, revoking the permit of 1 June 1995, was to mean that this permit was still valid.", "27. In a decision of 14 November 1997 the Main Customs Office held that the purpose of the decision of 23 September 1997 was not to decide whether the permit of 1 June 1995 was still valid. It upheld the decision of 23 September 1997.", "28. The applicant company appealed to the Supreme Administrative Court, arguing that the decisions of the Main Customs Office lacked clarity. The Office had set aside the revocation of the permit, but did not confirm whether the original permit was valid. Therefore it was impossible to establish what was the actual legal situation of the company as far as the validity of its permits was concerned. The applicant company emphasised that it was de facto treated by the customs authorities as if the export permit of June 1995 had been effectively revoked.", "29. In a judgment of 2 April 1998 the Supreme Administrative Court quashed the decisions of 23 September and 14 November 1997. The court found that the decision of 23 September lacked clarity in that it did not allow the applicant company to elucidate the fundamental uncertainty as to the legal consequence of this decision. Neither were these doubts dispelled by the decision of 14 November in which the Main Customs Office had failed to explain what was the legal situation of the applicants' permit to run their business, and in particular, whether it could still rely on the permit of 1 June 1995.", "30. By a decision of 5 June 1998 the Main Customs Office stated that the decision of 20 August 1998 was to be understood in such a way that the applicant's rights stemming from the decision of 1 June 1995 remained intact.", "31. On 20 June 1998 the Main Customs Office instituted proceedings in order to have the licence to run the warehouse of 18 February 1994 set aside, considering that the applicant company had not been conducting its business for a period longer than three months, without having informed the competent authorities thereof, as required by law.", "32. On 30 November 1998 the Main Customs Office set aside the 1994 licence to run the warehouse, having found that after 20 August 1997 the applicant company had ceased its business activities. Under the provisions of the Customs Code, the customs authorities were obliged to withdraw the licence to run the bonded warehouse if the company enjoying such licence was not exercising it for a period longer than three months.", "33. The applicant company appealed. It argued inter alia that it could not have run the warehouse after 20 August 1997, given that the Słubice Customs Office had withdrawn its permit for exporting merchandise by the applicant company via Słubice, which had made it impossible to continue its business operation.", "34. On 5 March 1999 the Main Customs Office, having re-examined the case, discontinued the appellate proceedings. The office observed that the applicant was wrong in confusing the proceedings regarding the validity of the June 1995 permit with the present proceedings, in which it was the validity of the earlier licence, granted in 1994, which was at issue. The validity of the 1994 licence had not been questioned in the previous proceedings and therefore there were no grounds on which to accept that the applicant was prevented to run its business.", "35. It further noted that the proceedings had to be discontinued since on 1 January 1998 a new Customs Code had entered into force. It provided that various customs licences issued under the old Customs Act were to remain valid for twelve months, during which companies having such licences could lodge new requests to have new licences issued. The applicant company had not submitted such request and the validity of its 1994 licence had consequently expired on 31 December 1999. Therefore the proceedings would not serve any purpose and should be discontinued.", "36. The applicant company appealed. It argued, inter alia, that when giving the contested decision, the Main Customs Office had breached the law in that it entirely failed to take into consideration all circumstances relating to the proceedings concerning the withdrawal of the permit to export. These proceedings, which had lasted from August 1997 until June 1998, had rendered it impossible for the company to continue its business operation. Therefore it was unreasonable to revoke the 1994 licence on the ground that the company had ceased its business activities.", "37. On 5 November 1999 the Supreme Administrative Court quashed the decision of 5 March 1999 as not being in compliance with law. It considered that the Main Customs Office had incorrectly held that the proceedings had become devoid of purpose. At the time when they had been instituted, i.e. on 20 June 1998, the applicant company's licence was still valid. It therefore had a legal interest in clarifying its legal situation and to confirm whether it was still authorised to run its business.", "38. On 23 March 2000 the Main Customs Office, having regard to the judgment of 5 November 1999, set aside the decision of 30 November 1998, revoking the 1994 licence to run the warehouse.", "39. The applicant company did not resume its operations afterwards. The first applicant submitted that as a result of the withdrawal of the permit and the licence to run the company, described above, it was impossible for him as the principal shareholder and, likewise, for the applicant company, to resume their business operations. It is the withdrawal of those decisions authorising the company to run its business which constitute the basis of the applicant's claims of pecuniary damage under Article 41 of the Convention. The Government did not respond to this argument." ]

[ 9 ]

[ "5. The applicants were respectively born in 1943 and 1972 and live in Milan.", "6. E.G., the first applicant's husband and the second applicant's father, was the owner of a flat in Milan, which he had let to R.M.", "7. In a registered letter of 24 June 1985, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 29 December 1985 and asked him to vacate the premises by that date.", "8. In a writ served on the tenant on 23 October 1985, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.", "9. By a decision of 5 December 1985, which was made enforceable on 14 December 1985, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 December 1986.", "10. On 30 March 1987, the owner served notice on the tenant requiring him to vacate the premises.", "11. On 17 April 1987, he informed the tenant that the order for possession would be enforced by a bailiff on 15 May 1987.", "12. Between 15 May 1987 and 11 July 1996, the bailiff made thirty-one attempts to recover possession. Each attempt proved unsuccessful, as, the owner was not entitled to police assistance in enforcing the order for possession.", "13. On 14 July 1996, the owner died and the applicants inherited the flat and became part of the proceedings as heirs.", "14. Between 12 November 1996 and 30 November 1999, the bailiff made eleven attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.", "15. On 14 November 2000, the tenant died and the applicants recovered possession of the flat." ]

[ 9 ]

[ "10. The applicants, all Finnish nationals, are:\n(i.) Mr Paavo Alatulkkila, born in 1935 and resident in Ylitornio, both as the owner of the real properties Harju 15:124 and Töysä 16:43 in Alkkula and as Chairman of the Alkkula fishing association;\n(ii.) Mr Toivo Honkaniemi, born in 1954 and resident in Ylitornio, both as the owner of the real property Mattila 2:5 in Armassaari and as Chairman of the Armassaari fishing association;\n(iii.) Mr Aatos Korpi, born in 1957 and resident in Kainuunkylä, both as owner of the real property Marjala 19:43 in Kainuunkylä and as Chairman of the Kainuunkylä fishing association;\n(iv.) Mr Lauri Rousu, born in 1945 and resident in Karunki, both as owner of the real properties Koivuranta 9:33 and Kaivosoja 27:53 in Karunki and as Secretary to the Karunki fishing association;\n(v.) Mr Matti Kanninen, born in 1934 and resident in Kukkola, both as owner of the real property Niskala 15:42 in Kukkola and as Chairman of the Siikala whitefish fishing association;\n(vi.) Mr Kaarlo Lampinen, born in 1934 and resident in Tornio, both as owner of the real property Kaishannu 25:33 and as Chairman of the Nuotioranta fishing association;\n(vii.) Mr Pekka Mäkinen, born in 1954 and resident in Tornio, both as owner of the real properties Luotola 1:47, Hanhisaari 1:51, Viheriälä 1:79 and Paavola 1:103 in Pirkkiö and as Chairman of the Pirkkiö association for joint ownership;\n(viii.) Mr Timo Kanniainen, born in 1949 and resident in Tornio, both as owner of the real property Kanniainen 8:21 and as Chairman of the Alaraumo association for joint ownership;\n(ix.) Mr Ville Alakuijala, born in 1941 and resident in Tornio, both as owner of the real property Rantalahti 29:36 in Laivaniemi and as Chairman of the Laivaniemi association for joint ownership;\n(x.) Mr Antti Stark, born in 1944 and resident in Lautiosaari, both as owner of the real property Stark 33:14 in Kaakamo and as Chairman of the Kaakamo fishing association and the Kaakamo association for joint ownership.\nThe applicants are owners of water areas, or are fishermen, in the Gulf of Bothnia. They are also elected representatives of their respective local fishing co-operative (kalastuskunta, fiskelag) or association for joint ownership (jakokunta, osakaskunta; samfällighet, delägarlag).", "11. By decision of 26 April 1996 and in application of the Fishing Regulation (kalastussääntö, fiskestadgan) for the Tornio River (Torniojoki/Torne älv) Area, the Finnish-Swedish Frontier Rivers Commission (suomalais-ruotsalainen rajajokikomissio, finsk-svenska gränsälvskommissionen) prohibited inter alia all fishing of salmon and sea trout in the relevant waters in the open sea during 1996 and 1997. Fishing other species in the relevant sea area with fixed equipment was prohibited during the periods 1 May-5 July 1996 and 1 May-5 July 1997. The Commission further prohibited all fishing of salmon and sea trout in the river area, except for fishing with hand-held equipment which was authorised on certain days of the week during the period 1 May-15 August 1996 and 1 May-15 August 1997. With some minor exceptions, all fishing in the river area was prohibited during the periods 15 September-15 November 1996 and 15 September-15 November 1997.", "12. The Commission's decision was announced publicly on 29 April 1996.", "13. The Fishing Regulation was issued following the enactment of Act no. 902/1971 incorporating the Finnish-Swedish Frontier Rivers Agreement (as far as Finland was concerned). A subsequent agreement to amend Annex B of the Agreement was incorporated into Finnish law by Decree no. 67/1987, entitling the Frontier Rivers Commission to decide on the protection of a particular fish species or on the prohibition or restriction of fishing with equipment which had proved harmful for the species either in the entire fishing area or in a specific part thereof, provided such a measure was deemed necessary for the preservation of the species in question for a maximum period of two years at a time (section 22, subsection 2 of the Regulation).", "14. The applicants indicated at paragraph 10(x.) above received FIM 14,183.75 (EUR 2,385.54) in compensation paid out of the supplementary State budget for 1996 with a view to covering economic losses which they suffered during the 1996 fishing season due to the restrictions imposed by the Frontier Rivers Commission. The relevant Government decision (no. 328/1996) was applicable to professional fishermen fishing in the sea area adjacent to the Tornio river.", "15. Meanwhile, on 13 June 1996 the Supreme Court of Sweden (högsta domstolen) dismissed charges concerning fishing in violation of the prohibition which the Frontier Rivers Commission had imposed on fishing with certain equipment. The Supreme Court held that the Commission's order issued by virtue of section 22, subsection 2 of the Fishing Regulation could not be applied, since the Agreement and the Regulation had not been brought into force and implemented as required by the Swedish Constitution, namely by an Act of Parliament (decision No. DB 118; NJA 1996 p. 370).", "16. At the beginning of 1997 Finland and Sweden declared that certain provisions of the Fishing Regulation, including section 22, subsection 2 of the Regulation, should not be applied.", "17. Thereafter Finland enacted the Act on Fishing in the Tornio River Fishing Area (494/1997) which entered into force on 5 June 1997. The Act entitles the Ministry of Agriculture and Forestry to issue rules concerning fishing on the Finnish side of the Tornio river. A decision to that effect (496/1997) entered into force at the same time as the Act. The decision was essentially identical to the Frontier Rivers Commission's decision of 26 April 1996. In 1998 the Ministry issued a new decision (319/1998).", "18. Meanwhile, on 5 August 1997 the Rovaniemi Court of Appeal (Finland) found that the sections of the Fishing Regulation concerning prohibited fishing equipment and applicable sanctions fell within the scope of the legislation. As Annex B (containing the Fishing Regulation) had been brought into force by a Decree, the Court of Appeal decided not to apply certain sections of the Regulation by virtue of section 92, subsection 2 of the Constitution Act of Finland (Suomen hallitusmuoto, Regeringsformen för Finland, 94/1919) which was in force at the material time (decisions nos. 625-628).", "19. On 31 December 1998 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed a request lodged by, among others, the associations represented by applicants listed at paragraph 10(vii.)-(x.) above, and whereby they sought to have the Frontier Rivers Commission's decision of 26 April 1996 annulled. The associations had argued that the decision was contrary to the Constitution and ordinary law (including Article 6 of the Convention and Article 1 of Protocol No. 1 as incorporated). Furthermore, the Commission had allegedly failed to hear the associations in a matter affecting the civil rights both of individual owners of fishing waters and of fishermen entitled to the continued enjoyment of the compensation in natura which had been awarded by the Water Court of Northern Finland in 1979. The applicants did not request an oral hearing before the Supreme Administrative Court.", "20. In its submissions to the Supreme Administrative Court the Frontier Rivers Commission had stated, inter alia, that it was hardly for an organ established by a bilateral agreement to examine whether the Fishing Regulation contravened the Finnish Constitution. The fishing restriction addressed in the annulment request had been imposed of the Rivers Commission's own motion after it had afforded the known parties an opportunity to comment in writing on the fishing restrictions proposed by the Finnish and the Swedish expert whom the Rivers Commission was regularly consulting. According to the dispatching list, all those who had sought an annulment – except for the Laivaniemi association for joint ownership (the applicants at paragraph 10(ix.) above) – had been so consulted and had also commented on the proposal. The nature of the matter had not been such that an oral hearing could have been expected to further the examination thereof.\nThe Rivers Commission further opined that the prohibition in question had only concerned salmon and trout and had been consistent with the restriction imposed simultaneously in respect of the Swedish coastal waters. Moreover, as the Commission's decision of 26 April 1996 was to be considered administrative in nature, the Fishing Agreement did not provide for any ordinary appeal against it, nor for any extraordinary remedy.", "21. The Supreme Administrative Court had also obtained opinions on the annulment request from the Ministry for Foreign Affairs and the Ministry for Agriculture and Forestry. The applicants had commented on the aforementioned three opinions.", "22. In its decision the Supreme Administrative Court held:\n\"The Frontier Rivers Agreement between Finland and Sweden, annex B of it being the Fishing Regulation for the Tornio River fishing area, has been incorporated by law no 902/1971.\nArticle 8 of chapter 1 of the Frontier Rivers Agreement ordains that, unless there are other special provisions in the Agreement, the applicable law in each State is the law in force in that State. With regard to the above, the national Fishing Act is applicable where the Frontier Rivers Agreement does not contain special provisions on fishing.\nAccording to paragraph 116, subsection 1 of the Fishing Act, the Act and the Decree issued on the basis of the Act are applied also to waters located at the frontier of a State, unless there are provisions stating otherwise that are based on a contract with another State. Paragraph 116, subsection 2 ordains, that when an international agreement binding on Finland or the preservation of fish stocks so requires, a decree can be used to bring into force provisions regarding the fishing or catching of seafood by Finnish nationals outside Finnish waters. On the basis of subsection 3 of the same paragraph the decree may also, if an agreement referred to in subsection 2 so requires or for another reason, contain provisions regarding restrictions on catching within or outside Finnish waters.\nA subsection 2 has been added to paragraph 22 of the Fishing Regulation for the Tornio River area on the basis of an agreement with Sweden, incorporated with decree no 667/1987, amending annex B of the Frontier Rivers Agreement. According to subsection 2, the Frontier Rivers Commission may protect by law a species of fish or limit the use of a trap that has proven harmful, either for the entire fishing area or a part of it, if this is necessary for preserving the species in question, for at most two years at a time. With regard to the above-mentioned paragraph 116 of the Fishing Act, the said addition of subsection 2 to paragraph 2 of the Fishing Regulation could be brought into force with a decree. \nIt appears from the documents that a reply to the proposal by the Frontier Rivers Commission concerning fishing restrictions for 1996 and 1997 was submitted in writing on 12 April 1996 by inter alia the Kaakamo fishing association, the Alaraumo fishing association, the Laivaniemi fishing association, which on the basis of paragraph 6 of the Common Land Act acts as legal representative in matters concerning the Laivaniemi area and the common special prerogative, as well as by the Pirkkiö fishing association and certain other associations. Considering the fact that the decision of the Frontier Rivers Commission was issued on 26 April 1996, all the applicants for annulment have been aware of the pending project and have had the opportunity to make known their opinions on the matter before it was decided.\nChapter 2, paragraph 22, subsection 2 of the Water Act ordains, that if building in the waterways causes the fish or fishing apparent harm, the permit-holder should be charged with the duty to take action to prevent or reduce damage to the fish and fishing as well as, if needed, to monitor the results of his action in the water area where damage has also been done (fish preservation duty). Such action may consist, according to the nature of the building and its effects, inter alia of planting fish stocks. According to chapter 10, paragraph 24a subsection 3 the same duty may be imposed on the holder of a permit.\nThe purpose of the above-mentioned fish preservation duty is not primarily to ensure certain amounts of catch, but to ensure the preservation of stocks of fish, which has also been the aim of the decision by the Frontier Rivers Commission concerning the prohibition on the fishing of salmon and trout. The decision of the Frontier Rivers Commission does not invalidate the aim of restocking obligations in the way presented in the annulment application. The purpose of the decision is to strengthen fish stocks and thus ensure fishing opportunities in the future. The decision of the Frontier Rivers Commission cannot on the grounds specified in the annulment application be held to be contrary to Article 6 of the European Convention of Human Rights or paragraphs 5 and 12 of the 1919 Constitution.\nOn the basis of the above, the decision sought to be annulled is not based on manifestly incorrect application of the law or a (procedural) error that might have fundamentally affected the decision. Neither does the application contain any other annulment ground mentioned in paragraph 63 of the Administrative Procedure Act. \"", "23. Informal negotiations between Finland and Sweden on further amendments to the Agreement began in June 1999.", "24. In a judgment of 6 April 2001 the Swedish Supreme Court ordered the State to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the Tornio river area on the basis of the Frontier Rivers Agreement at the time when it had been implemented by a Government Decree delegating to the Rivers Commission, without a basis in an Act of Parliament, the power to restrict fishing (case no. T 3310-00)." ]

[]

[ "4. The applicant was born in 1965 and lives in Lublin, Poland.", "5. On 3 January 1996 the applicant was arrested by the police. On 5 January 1996 the Lublin District Prosecutor charged the applicant with homicide and larceny and remanded him in custody. The prosecutor considered that the applicant's detention was necessary because there existed the danger of pressure being brought to bear on witnesses. In addition, the charges laid against the applicant carried a significant danger to society at large.", "6. On 22 February 1996 the applicant applied for release but on 23 February 1996 the prosecutor dismissed it.", "7. On 13 November 1996 the applicant was indicted before the Lublin Regional Court (Sąd Wojewódzki).", "8. On 27 October, 8 and 10 December 1997 and 15 January and 25 February 1998 the Lublin Regional Court held hearings in the applicant's case. During those hearings the court extended the applicant's pre‑trial detention.", "9. On 31 March 1998 the Lublin Regional Court delivered a judgment in which it convicted the applicant as charged and sentenced him to twelve years' imprisonment.", "10. The applicant appealed against his conviction and on 13 August 1998 the Lublin Court of Appeal (Sąd Apelacyjny) quashed his conviction and remitted the case to the Lublin Regional Court.", "11. On 15 September and 17 December 1998 the trial court held hearings. On 15 December 1998 the court again prolonged the applicant's detention relying on strong suspicion that the applicant committed the crime and on the gravity of charges.", "12. On 23 March 1999 the Lublin Regional Court extended the applicant's detention. The applicant appealed against this decision but his appeal was dismissed on 14 April 1999 by the Lublin Court of Appeal. The appellate court gave the following reasons for its decision:\n“Marek Czarnecki is charged with murder for which Article 148 § 1 of the Criminal Code provides a prison term exceeding 8 years. Therefore, according to Article 258 § 2 of the Code of Criminal Procedure the pre-trial detention can be justified by the heavy sentence: in those circumstances it is not necessary to give other grounds for the continued pre-trial detention such as the risk of flight or obstructing the proper course of proceedings.\nFurthermore, one cannot agree with the accused's submission that the evidence collected in his case does not make it probable that he committed the crime. The Court of Appeal quashed his conviction because there were errors in the proceedings before the court of first instance as a result of which it was impossible to make it 100% certain that the accused had committed the crime. The absolute certainty, which is necessary for a conviction, should be distinguished from a probability that the crime was committed.\nThe court is of the view that the evidence collected in the case shows that there is a significant probability that the accused committed the crime with which he is charged. Accordingly, the requirement of Article 249 § 1 of the Code of Criminal Procedure is fulfilled.\nAs there are no reasons for release from the pre-trial detention (259 § 1 of the Code of Criminal Procedure) it was necessary to decide as in the operative part.”", "13. The applicant appealed against the decision of 14 April 1999 but his appeal was rejected on 10 May 1999 by the President of the Lublin Court of Appeal because it was not provided by the law. The applicant filed a further appeal to the Supreme Court (Sąd Najwyższy) but on 18 August 1999 it rejected his appeal for the same reason.", "14. The applicant made a fresh application for release but it was dismissed on 14 September 1999 by the Lublin Regional Court. The court gave the following reasons for its decision:\n“Marek Czarnecki is charged with the commission of a crime described in Article 148 § 1 of the Criminal Code. In his application he points to the prolonged criminal proceedings against him and the necessity to provide care for his parents.\nThe Regional Court is of the view that both arguments submitted by the accused should be dismissed. It is not the Regional Court's fault that the court proceedings are prolonged. Recently, it was the accused himself who torpedoed the proceedings which were to take place during the last hearing.\nAs for the difficult situation of the accused's parents, it is not that tragic since the accused's brother has recently moved out of their flat and he would not have done it if the situation had been worrying.\nIt should further be stated that a charge concerning the commission of a crime and a possible heavy prison sentence in themselves constitute grounds for pre‑trial detention.\nTaking the above into consideration the Regional Court has not found any grounds for changing the preventive measure.”", "15. On 28 September 1999 the Lublin Regional Court extended the applicant's detention until 30 December 1999. The Court gave the following reasons for its decision:\n“Marek Czarnecki is charged with the commission of a crime which carries a prison sentence exceeding 8 years. The evidence collected in the case shows that there is a significant probability that the accused has committed the crime with which he is charged. Taking the above into consideration and the lack of the grounds listed in Article 259 § 1 of the Code of Criminal Procedure, as well as the necessity to secure the proper conduct of the court proceedings it was decided as in the operative part.”", "16. In 1999 the trial court held several hearings at which it heard witnesses.", "17. On 25 April, 12 September and 28 December 2000 as well as on 25 March, 29 May and 7 August 2001 the Lublin Regional Court further prolonged the applicant's detention repeating reasons for the detention previously given.", "18. The applicant's numerous appeals and applications for release were unsuccessful.", "19. It appears that at the hearing held on 10 September 2001 the prosecutor dropped the charges of homicide against the applicant.", "20. On 10 September 2001 the Lublin Regional Court gave judgment. It acquitted the applicant of homicide, convicted him of larceny and sentenced him to one year and six months' imprisonment. On the same date the applicant was released from the detention.", "21. Between 27 February and 18 May 1997 the applicant served a prison sentence resulting from a conviction in another case." ]

[ 2 ]

[ "12. The applicants were born in 1978, 1963, 1955 and 1975 respectively and live in Şırnak. They are close relatives of Serdar Tanış and Ebubekir Deniz, respectively the President and Secretary of the Silopi branch of the People's Democracy Party (Halkın Demokrasi Partisi (HADEP)).", "13. The applicants alleged that Serdar Tanış and Ebubekir Deniz received death threats from the Silopi gendarmerie command and the Şırnak gendarmerie regimental headquarters on account of their political activities.", "14. At about 1.30 p.m. on 25 January 2001, three people in a blue Fiat purporting to be police officers attempted to force Serdar Tanış to get into the car. Having informed them that he would go to the central gendarmerie station only if he received an official summons, he made his way to HADEP's offices. On receiving a call on his mobile phone from the gendarmerie commanding officer, he went to the station accompanied by Ebubekir Deniz. Three witnesses, Ömer Sansur, İsa Kanat and Hamit Belge, saw them enter the station.", "15. An hour later, unable to reach the men on their mobile phones, their families and lawyers asked the Silopi public prosecutor and the Silopi gendarmerie command for information. The commanding officer, Süleyman Can, told them on the telephone that neither man had attended the station or been taken into custody.", "16. On 1 February 2001, after the incident was reported in the press, the Şırnak provincial governor issued a written statement indicating that the two men had gone to the Silopi gendarmerie station on 25 January 2001, stayed for half an hour, and then left the premises.", "17. The applicants said that they had received no news of Serdar Tanış or Ebubekir Deniz since 25 January 2001. Neither man had shown any sign of life.", "18. The Government said that, on 17 and 18 January 2001 respectively, Serdar Tanış and his father, Şuayip Tanış, attended the Silopi gendarmerie station to speak to the commanding officer. They signed the visitors' register, which indicated the times of their arrival and departure.", "19. At 2 p.m. on 25 January 2001, Serdar Tanış and Ebubekir Deniz went to the station to see the commanding officer. As he was not there, they spoke to another officer and left the building at 2.30 p.m. They signed the visitors' register on entering and leaving the building.", "20. After criminal complaints were lodged by the two men's families, the Silopi public prosecutor launched an investigation and took statements from the applicants. The relevant authorities were notified that they were missing and their photographs and descriptions were circulated to the public prosecutor's offices and police headquarters in the province.", "21. On 26 February 2001, at the request of the prosecutor leading the investigation, the district court made an order under Article 143 of the Code of Criminal Procedure restricting access to the preliminary investigation file.", "22. On 3 March 2001 the authorities seized a letter discovered when searching a vehicle that had crossed the border from northern Iraq which indicated that Serdar Tanış and Ebubekir Deniz were in a PKK (Workers' Party of Kurdistan) camp in Doloki (Iraq). The driver and owner of the vehicle and Serdar Tanış's father were taken into custody, but released after making statements.", "23. Three delegates from the Court took the following depositions in Ankara between 28 and 30 April 2003. The depositions of Divan Arsu, Mehmet Ata Deniz and Zehra Deniz were obtained through an interpreter.", "24. Şuayip Tanış said that he was an applicant and Serdar Tanış's father. He was living in Cizre at the material time, and ran a petrol station in Başveren (Silopi). He last saw his son, who lived in Silopi, on 24 January 2001.", "25. Before commencing his military service, that is to say prior to November 2000, his son had worked as a driver transporting fuel from Iraq. Serdar Tanış was the only child providing for the family, as the other children had not completed their studies. The witness said that he had heard that after returning from military service Serdar Tanış and a group of friends had taken steps to open a local branch of HADEP in Silopi.", "26. In October 2000 the witness and his brother were arrested by gendarmes on their way to work. His brother was released, but the witness was taken to Cizre district gendarmerie station. On the same day the gendarmes searched his home in his presence and made him sign a record. He was then taken to Şırnak gendarmerie headquarters, where he was held for seven days. He was made to wear a blindfold during questioning, so could not identify his interrogator. His interrogator told him: “Give up your HADEP activities. If you don't, it will cost you your life.” The witness was tried with four co-defendants and spent approximately fifty-seven days in prison. The person who made the accusations against them subsequently sent a letter to the authorities informing them that he had been acting under duress and did not even know the defendants.", "27. The witness then gave details of a meeting he had had with the commanding officer, Levent Ersöz, at the Şırnak regimental headquarters. The commanding officer had threatened him, saying: “Give up the idea of opening a local branch of HADEP in Silopi. I don't want to hear what you have to say, this is my area. If you don't give it up, I will not let you live.”", "28. The witness said that he had also been summoned by Süleyman Can, the commanding officer of the Silopi district gendarmerie, in January 2001, approximately two weeks before his son went missing. Süleyman Can had said to him “Tell Serdar to give up this business” and had telephoned Levent Ersöz, who asked to speak to the witness and said: “Why didn't Serdar come and see me? You tell him that if he doesn't come today, I'll kill him if he ever sets foot in the Şırnak area again. Tell him that. He knows my position and rank.”", "29. The witness and his son Müdür went back to see Süleyman Can, who repeated his earlier warning: “Tell him to give up that business. All his colleagues have resigned. He's the only one who's stayed on. If he doesn't resign, he'll come to grief.” Before leaving the premises, they asked Süleyman Can to convince Serdar Tanış himself or to put pressure on him.", "30. On being asked by the witness why he had not gone to see the Şırnak commanding officer, Serdar Tanış replied that he had spoken to him on the telephone and added that after the party's inauguration he had received a call from Süleyman Can and had told him: “Commanding Officer, if I give it up, someone else will replace me. I was born in the area and know the situation better and am not carrying out any illegal activity; I will not leave the party.”", "31. The witness's nephew Eyüp Tanış told him that on 25 January 2001 an attempt had been made to force Serdar Tanış into a vehicle outside the post office. He had told the occupants that he would only do as they said if he received a call from the “official” authorities.", "32. The witness said that his son and Ebubekir Deniz went to the gendarmerie station after receiving a telephone call from that source. The two men got on well and worked together for HADEP. Ebubekir Deniz had also received threats because of his political activities and, like Serdar Tanış, had been forced into hiding before the branch opened. Owing to the intimidation, he had been unable to continue working. The witness added that the entire family had suffered as a result of Serdar Tanış's political activities.", "33. He said that on the night of 25 January he was informed by his nephew İdris Tanış that Serdar Tanış and Ebubekir Deniz had not returned from the station. For four or five days the authorities denied that they had been there. On the sixth day the commanding officer said that, as he had been out on a tour of inspection, the two men had been seen by a non-commissioned officer, Selim Gül, and had left the premises half an hour later. The witness lodged a complaint with the public prosecutor on 28 or 29 January. Subsequently he and Mehmet Ata Deniz went to see the commanding officer Süleyman Can, who repeated that they had been on the premises for half an hour, but had then left. He told them: “We handed them over to the JİTEM [Jandarma İstihbarat Terörle Mücadele – Gendarmerie Anti-Terrorist Intelligence Branch] ... the JİTEM does not take orders from the regimental commanding officer.”", "34. The witness affirmed that he had been held in custody at the Şırnak Security Directorate because of a letter addressed to him that had allegedly been seized in a vehicle that had entered Turkey from Iraq. The police told him that the letter said that his son was in the PKK camps. The witness considered that incident to be part of a “plot” against them.", "35. Eyüp Tanış said that he was born in 1976 and was living in Silopi at the material time. He was a cousin of Serdar Tanış and a former administrator of the local branch of HADEP.", "36. He too stated that threats had been made against Serdar Tanış by the regimental commanding officer of the gendarmerie because of his attempts to open a local branch of HADEP in Silopi. Serdar Tanış had been subjected to intimidation and followed by plain-clothes police officers. He had been forced to leave Silopi and had spent approximately one month in Diyarbakır. The witness said that he too had been followed on a number of occasions. All seven of the HADEP party administrators had received threats and three had resigned as a result.", "37. On the morning of 25 January 2001, the witness and Serdar Tanış went to the HADEP offices, where the other party members were also present. Towards noon he went with Serdar Tanış to the post office. A car with three people inside pulled up in front of them. The driver and one of the passengers opened a rear door and asked them to get in. Serdar Tanış refused, saying: “We don't know you and if there's anything to be discussed, then we'll talk in an official institution, at the Silopi gendarmerie station or Security Directorate if you like – in an official place like that.” Unable to persuade the witness and Serdar Tanış to accompany them, the three people, who said they were police officers, left the scene. The witness and Serdar Tanış then returned to HADEP's offices. The witness left for a short period during which it appears that Serdar Tanış received a telephone call from the commanding officer of the gendarmerie and went to the station with Ebubekir Deniz. After waiting for approximately twenty minutes, the witness made several unsuccessful attempts to reach Serdar Tanış on his mobile phone. According to the witness, the driver of the minibus who took them to the station saw them enter the building.", "38. The witness said that he made a statement before the Silopi public prosecutor. He also answered questions by an investigating officer and provided a description enabling an identikit picture to be prepared of the two people who attempted to force Serdar Tanış and Ebubekir Deniz into the car. He subsequently attended the public prosecutor's office three times to examine photographs. At one of the sessions he indicated that he recognised the driver of the car in one of the photographs and found a strong likeness in another. In that connection, the witness confirmed the content of the identification record that was drawn up on 26 February 2001.", "39. The threats prompted by their political activities in HADEP continued after January 2001 and on one occasion the police searched the party's offices.", "40. The witness added that before starting his military service Serdar Tanış was in the business of transporting fuel from Iraq and did not engage in any political activity. He repeated that on 25 January Serdar Tanış went to the Silopi gendarmerie station with Ebubekir Deniz after receiving a telephone call from the commanding officer. The two men had been subjected to intimidation by the authorities when transporting fuel in their vehicles. They had threatened to withdraw Ebubekir Deniz's operator's licence and certificate. All the intimidation was linked to their political activities.", "41. The witness said that following Serdar Tanış's disappearance he became the acting President pending the next HADEP congress. In 2002 he was taken into custody at Silopi gendarmerie station. Around 7 a.m. one morning a military vehicle drew up outside his house. He was taken to the Silopi gendarmerie station. He was blindfolded and told: “You must resign from HADEP!” He refused and was tortured and threats were made to kill him like Serdar Tanış and Ebubekir Deniz. He was brought before a judge and accused of having PKK documents at his home. He lodged a criminal complaint against the officers who were on duty when he was in custody.", "42. Yakup Tanış said he was an applicant and one of Serdar Tanış's brothers. He was born in 1978 and was studying in Isparta at the material time. He returned to Silopi on 27 January 2001 following his brother's disappearance.", "43. He saw his brother when their father was taken into custody by the gendarmerie. His father telephoned him to say that he was with an officer and asked him to contact Serdar Tanış to persuade him to resign from HADEP.", "44. Yakup Tanış also confirmed that the family had been subjected to intimidation by the authorities on account of his brother's political activities. Serdar Tanış could not remain in Silopi. He feared that he would be arrested and had been threatened by Levent Ersöz and Süleyman Can, the commanding officers of the gendarmeries of Şırnak and Silopi respectively. Ebubekir Deniz was in the same position. Serdar Tanış had sent a complaint to the authorities about the threats that had been made against him and had asked for protection. The witness said that he had seen the complaint in question.", "45. The witness said that despite various attempts he was unable to gain any information from the authorities about his brother. He had even been taken to the police station twice, where he was instructed not to write any further letters to the authorities. A person called Mahmut had threatened to kill him like his brother.", "46. Mehmet Ata Deniz said that he was an applicant and Ebubekir Deniz's brother. He was assisted by an interpreter when giving evidence. He was born in 1963 and lived in Silopi.", "47. He confirmed that before they went missing his brother and Serdar Tanış had been forced to go to Diyarbakır by the threats and intimidation to which they had been subjected on account of their activities as members of HADEP. Their wives, who lived in Silopi, feared reprisals by the authorities and moved frequently.", "48. The witness said that approximately twenty days before his disappearance his brother had been arrested at the Habur checkpoint at the border with northern Iraq, and his operator's licence had been seized. The intimidation against his brother had begun when he joined HADEP.", "49. The witness described a meeting he had had with Captain Süleyman Can. He and Şuayip Tanış had gone to the gendarmerie station to make enquiries about Serdar Tanış and Ebubekir Deniz. He had said to the captain: “You have handed them over to the JİTEM”, to which the captain had replied that the JİTEM was not under his orders or the orders of the Şırnak regimental commanding officer.", "50. The witness said that he had made two statements to the Silopi public prosecutor without the assistance of an interpreter. His statements had been recorded by the public prosecutor, who had noted that he was illiterate and did not understand Turkish.", "51. The three witnesses were born in 1981, 1978 and 1975. Zehra Deniz is the wife and Divan Arsu the partner of Ebubekir Deniz. Selma Güngen is Serdar Tanış's wife.", "52. They confirmed that the authorities had threatened and intimidated both men on account of their activities as members of HADEP. They said that they had been afraid to remain in Silopi and had been forced to leave their home for a time.", "53. Ömer Sansur was born in 1981 and was living in Silopi at the material time.", "54. He said that he was present at HADEP's offices when Serdar Tanış received a telephone call from the gendarmerie station. Although it was Serdar Tanış who received the summons to go to the station, Ebubekir Deniz insisted on accompanying him.", "55. The witness said that he had driven the two men to the station and dropped them off approximately 20 metres from the main entrance.", "56. The two witnesses were born in 1963 and 1951 respectively and lived in Silopi at the material time.", "57. They said that they saw Serdar Tanış and Ebubekir Deniz as they were about to enter the gendarmerie headquarters by the main entrance. The two men waved at them.", "58. Ebcet Sunmez was born in 1978 and was living in Cizre at the material time. He was a lorry driver and travelled from time to time to Iraq with Serdar Tanış and Ebubekir Deniz. He knew Serdar Tanış well, as they were from the same village.", "59. He said that Serdar Tanış had told him in telephone conversations that he had been subjected to intimidation and threats because of his political activities, and that he had had to leave Silopi for approximately one month and had attended to the administrative formalities required to open a branch of HADEP in Silopi in Diyarbakır.", "60. The witness gave this account of a visit he and Şuayip Tanış had made to the commanding officer of the Silopi gendarmerie Süleyman Can:\n“Approximately twenty days before Serdar Tanış's disappearance, I drove Şuayip Tanış to the Silopi district command. He had been summoned by Süleyman Can, who met us and told Şuayip Tanış that he wanted to speak to Serdar Tanış to get him to give up his activities as a member of HADEP. Süleyman Can said that Levent Ersöz, the commanding officer of the Şırnak regiment, had asked to speak to Şuayip Tanış. He reached Levent Ersöz on the telephone in İdil where he was on a tour of inspection. After speaking for approximately three minutes outside his office, Süleyman Can passed the telephone to Şuayip Tanış. As it was a cordless phone, I was able to hear the conversation. The commanding officer said to him: 'Tell Serdar to come and see me tomorrow, otherwise he had better not ever set foot in Şırnak again, or I'll kill him.' ”\nThe witness added that after leaving the station Şuayip Tanış telephoned Serdar Tanış to ask him to go and see the commanding officer. After that incident, he encountered Serdar Tanış in HADEP's offices in Silopi and told him that he had seen Süleyman Can.", "61. The witness said that Şuayip Tanış had been arrested prior to 25 January 2001, probably as a result of his son's political activities.", "62. Sezgin Tanrıkulu said that he was born in 1963 and was living in Diyarbakır at the material time. He was a lawyer and a representative of the Human Rights Association in Diyarbakır.", "63. He did not know Serdar Tanış or Ebubekir Deniz personally. However, he had been informed of the threats that had been made against them on account of their activities as members of HADEP. He learnt of their disappearance on 26 January 2001.", "64. The witness said that on 29 January 2001 he, the President of the Human Rights Association in Diyarbakır, Osman Baydemir, and two other people went to see the Silopi public prosecutor, Kubilay Taştan. Mr Taştan told them that he had spoken on the telephone with the commanding officer of the Silopi gendarmerie, who had affirmed that Serdar Tanış and Ebubekir Deniz had not been taken into custody or been to the station. The delegation from the Human Rights Association asked the public prosecutor why he had not gone to the station himself. The public prosecutor replied that he considered the answer he had received from the commanding officer on the telephone sufficient and urged them to pursue their enquiries in Şırnak.", "65. The witness said that he and Osman Baydemir had failed to get an audience with either the commanding officer of the Silopi gendarmerie or the district governor. The delegation went the same day to see the Şırnak public prosecutor. He had been informed of the incident and was waiting for written information from the Silopi public prosecutor's office. He said that he would then enquire of the commanding officer of the Şırnak gendarmerie regiment whether the two men had been taken into custody. He told the delegation that he had no power to take any other action.", "66. On 31 January 2001 the witness drafted a report with other lawyers entitled “The Silopi Disappearance Report”, which brought the matter to the attention of the public. As a result, the disappearance of Serdar Tanış and Ebubekir Deniz was widely reported in the media. Approximately four days after the media became involved, the Şırnak provisional governor issued a statement to say that the two men had attended the gendarmerie station but had left a short time later.", "67. The witness said that on 4 February 2001 he and Osman Baydemir made a public statement asking the authorities to explain why they had denied the truth and to reply to various questions. As a result of their statement, they were prosecuted and tried before being acquitted of the charges.", "68. Osman Baydemir was born in 1971. He lived in Diyarbakır and was the President of the Human Rights Association at the material time. He is now the mayor of Diyarbakır.", "69. On 26 January 2001 the association was informed by İdris Tanış that Serdar Tanış and Ebubekir Deniz were missing. It tried to contact the authorities but was unable to obtain any information.", "70. The witness said that he went to Silopi on 29 January with Sezgin Tanrıkulu and two other people. He described the meetings with the public prosecutors and confirmed what Sezgin Tanrıkulu had said in his statement. He said that he had formed the view that the Silopi public prosecutor appeared to be bound by the gendarmerie's denials and had told them that he had not questioned any of the gendarmes concerned or gone to the scene to make enquiries.", "71. Resul Sadak was born in 1959 and was living in Şırnak at the material time. In January 2001 he was the President of the local branch of HADEP in Şırnak. He knew Serdar Tanış and Ebubekir Deniz from their activities in the party.", "72. He confirmed that members and leaders of HADEP were subjected to threats and intimidation. He himself had been taken into custody after the application was made to open a party office in Silopi.", "73. In 1999, when he and others were in the process of trying to open a local branch of HADEP in Şırnak, they too had been subjected to intimidation and threats by the authorities. Three members of the party in Silopi had been forced to resign as a result of the intimidation. The party had only been able to assemble five members instead of seven. Serdar Tanış had informed him of the pressure being exerted on him and in January 2001 had handed over a letter in his presence to the President of the Diyarbakır office of HADEP giving details of the threats and intimidation to which he and members of the party in Silopi had been subjected by the commanding officer of the Şırnak regiment.", "74. The witness asserted that at the beginning of January 2001 he was arrested by gendarmes on the road from Şırnak to Diyarbakır and summoned to the Şırnak regimental headquarters. The commanding officer threatened him and expressed his displeasure at the opening of local party branches in Silopi and Cizre. He asked him not to open the offices, saying: “If you do not give it up, I will strangle you at the Kasrik Pass. Go and complain to whoever you want. You'll be in big trouble.”", "75. The witness said that Serdar Tanış had received a number of telephone calls in his presence from the commanding officers of the Silopi and Şırnak gendarmeries, and had informed him of the threats and pressure to which he had been subjected in an effort to persuade him to resign.", "76. He said that he had informed the Şırnak public prosecutor of the threats and intimidation to which they had been subjected as a result of their political activities in HADEP and lodged a complaint.", "77. Ali Ürküt was born in 1959 and was the President of the Diyarbakır office of HADEP at the material time.", "78. He said that he had known Serdar Tanış and Ebubekir Deniz since the end of 2000 and that they often came to Diyarbakır. He personally oversaw their attempts to secure permission from the authorities to open a local party branch in Silopi and witnessed the enormous difficulties they encountered.", "79. Serdar Tanış informed him of all the threats and intimidation to which he and his entourage had been subjected. The witness overheard a telephone conversation in which Serdar Tanış's father Şuayip Tanış, who was in custody at the time, called his son to ask him to see the commanding officer of the Şırnak gendarmerie regiment immediately.", "80. The witness said that Serdar Tanış had been anxious and concerned about the threats and arranged for his lawyer to draft five or six copies of a petition to the public prosecutor and other authorities, informing them of the intimidation and pressure to which he and his entourage were being subjected by the commanding officer of the Şırnak gendarmerie regiment. On 8 January 2001 Serdar Tanış gave him the petitions. However, fearing reprisals, he kept them until 25 January 2001, when he handed them over to the lawyers dealing with the case.", "81. Mahmut Damar was born in 1971. He was a sergeant at Silopi gendarmerie district command and a traffic team commander at the material time.", "82. He said that approximately eighty people worked at the station. He described the premises and said that in addition to the main entrance there was a separate entrance for officers on the left-hand side of the building.", "83. From 25 January until 9 a.m. on 26 January 2001 he was the duty officer and assisted non-commissioned officer Faruk Atalay. His duties were to monitor and record incidents and to supervise the activities of the soldiers. Sergeant Veysel Ateş was responsible for recording the names of visitors at the main entrance.", "84. Mr Damar said that visitors were required to leave proof of identity and to sign the register. They were given a badge to enter the building.", "85. He said that no incidents had been recorded on 25 January 2001. He did not know Serdar Tanış or Ebubekir Deniz and learnt of their disappearance from the press and from discussions within the gendarmerie.", "86. Cemal Güldüler was born in 1968 and was a non-commissioned officer at Silopi district gendarmerie command at the material time. He had administrative duties relating to personnel.", "87. He said that he did not know Serdar Tanış or Ebubekir Deniz. He had heard of them and was informed of the incident after receiving a summons from the Silopi public prosecutor.", "88. The witness said that in January they carried out a tour of inspection. He could not remember whether the commanding officer of the Şırnak regiment had taken part. He confirmed that people entering or leaving the station were required to sign a register.", "89. Arif Aydoğan was born in 1979. He was performing his military service at Silopi district gendarmerie command at the material time. He was on guard duty inside the building.", "90. He did not know Serdar Tanış or Ebubekir Deniz. He had heard of them through the public prosecutor.", "91. The witness said that he could not recall the following statement he made on 29 January 2001:\n“The witness was shown photographs of Serdar Tanış and Ebubekir Deniz. He said, 'The persons you have shown me did not enter the station while I was on duty ... on 25 January 2001. As a great many civilians enter or leave the station, it is not easy to keep track of them'.”", "92. Mehmet Taşdan was born in 1979. He was performing his military service at Silopi district gendarmerie command at the material time. He was on guard duty at the main entrance to the station.", "93. He said that the visitors' registers were kept by Veysel Ateş.", "94. He did not know Serdar Tanış or Ebubekir Deniz. He had made a statement to the public prosecutor, who showed him photographs of the men and asked him if he knew them and whether he had seen them previously at the station. That is how he learnt that they were missing.", "95. Selim Gül was born in 1968. He was a non-commissioned officer engaged in operations intelligence at Silopi district gendarmerie command at the material time.", "96. He said that his job was to gather intelligence for use in maintaining public order and preventing crime. He was the leader of a two-man team. He and his colleague reported to the commanding officer, Süleyman Can. The usual source of their information was individuals.", "97. The witness knew Serdar Tanış and Ebubekir Deniz. Serdar Tanış contacted him by telephone at the end of 2000 to ask him for help as his father had been taken into custody for providing assistance and support to a terrorist organisation. Serdar Tanış offered to provide information in exchange. The witness first met Serdar Tanış in January 2001 in the commanding officer's office. Their discussion lasted several minutes, but the witness could not remember what it was about. They did not speak about Serdar Tanış's HADEP activities and he was not subjected to pressure or intimidation.", "98. The witness said that Serdar Tanış provided him with information. He got in touch when he had information to pass on and in some ways acted as an agent for the witness and Captain Süleyman Can. The witness said that the first time he saw Ebubekir Deniz was on 25 January 2001.", "99. On that date he saw both Serdar Tanış and Ebubekir Deniz in the waiting-room on the second floor of the gendarmerie station. They had come to see Süleyman Can about Ebubekir Deniz being disqualified from driving. The witness did not summon them to the building. As the commanding officer was not there, they left the waiting-room, Ebubekir Deniz first. The witness spoke with Serdar Tanış for approximately thirty seconds and he handed him documents wrapped in a newspaper he had taken out of the inside pocket of his jacket. One of the documents concerned HADEP, the other, contraband. The witness parted company with the two men in the building and saw them leave by the main entrance. However, he lost sight of them once they were in the street.", "100. The witness did not recall when or how he was informed of their disappearance. He was questioned by the public prosecutor about it. He could not really remember whether he had handed the documents over to the public prosecutor.", "101. He said that he gathered information about HADEP and other political parties as part of his job and that gendarmerie officers working in intelligence used unmarked vehicles when necessary. Taşkın Akgün worked for the intelligence service at the regimental headquarters of the Şırnak gendarmerie. The witness did not know whether Taşkın Akgün and other gendarmes came to Silopi in civilian dress on 25 January 2001. He contacted him after the men's disappearance in order to work with him on the investigation.", "102. Veysel Ateş was born in 1975. He was performing his military service and had the rank of sergeant at Silopi district gendarmerie command at the material time. He was responsible for keeping the visitors' registers and carrying out the checks necessary for that purpose.", "103. He said that once the checks had been carried out visitors were allowed to go to the relevant office unaccompanied.", "104. He knew Serdar Tanış, who had already been to the gendarmerie station in the past. The witness was on duty on 25 January 2001. Serdar Tanış arrived with Ebubekir Deniz. They appeared relatively calm and he spoke with them briefly. They told him that they had come to see the commanding officer Süleyman Can. He informed them that he had gone out. Serdar Tanış asked when he would be back. The witness replied that the commanding officer did not give them any information about his schedule. Serdar Tanış decided to wait for him in the waiting-room. He entered their names in the register and the two men signed the book using his pen. The witness gave the following account of what ensued: “After a few minutes Serdar Tanış and Ebubekir Deniz returned to reception. I gave Serdar Tanış his mobile phone, they signed the register and left the premises. They did not say whether they had seen anyone else and did not ask to see Selim Gül.”", "105. As regards the visitors' register, the witness explained that when his turn of duty came to an end he would show the register to the officer relieving him, who would check it and sign at the foot of the last page. The witness was unable to explain why there was no signature in the register for 25 January 2001, whereas the corresponding page for 5 January 2001 did have one.\nThe visitors' register showed that Serdar Tanış had been to the station on 18 January 2001.", "106. The witness said that he clearly recalled that he had not seen any vehicle pass through the entrance to the building on that date, other than military vehicles.", "107. Yücel Erteki was born in 1979. He was performing his military service as a sentry at Silopi district gendarmerie command.", "108. He said that he had not been informed of the disappearance of Serdar Tanış and Ebubekir Deniz. From his post, he could not see people entering or leaving the building. He could not recall being summoned by the public prosecutor. However, he acknowledged that the signature on a statement taken by the public prosecutor was his.", "109. Mehmet Bozca was born in 1966. He was a non-commissioned officer serving in the operations unit of the Şırnak gendarmerie at the material time.", "110. He said that he had heard of Serdar Tanış and Ebubekir Deniz following anonymous information received at the gendarmerie station in March. While he could not remember the precise content of the information, the gist was that two people, who may have been Serdar Tanış and Ebubekir Deniz, had been taken by lorry to PKK camps in northern Iraq. The gendarmerie passed the information on to the anti-terrorist branch of the Security Directorate and drew up a report. He played no further part in the case.", "111. The witnesses were born in 1972, 1970, 1949, 1970 and 1972 respectively. They were police officers at the Habur Security Directorate and responsible for immigration control at the border with northern Iraq.", "112. They were informed that Serdar Tanış and Ebubekir Deniz were missing and were asked whether the two men had left or entered Turkey through the Habur checkpoint.", "113. Acting on information from an anonymous informant, the witnesses stopped a lorry that had entered Turkey from Iraq and, during a search that took approximately five hours, seized a letter and a small bottle filled with green powder. They were somewhat surprised as the information related to a possible haul of leaflets issued by an illegal organisation. The driver was present during the search and denied any implication in the incident. They informed the Silopi public prosecutor, who came out to the checkpoint. The letter was intended for Şuayip Tanış and said that Serdar Tanış and Ebubekir Deniz were in PKK camps in northern Iraq.", "114. Süleyman Can was born in 1968 and was the commanding officer of the Silopi district gendarmerie at the material time.", "115. He said that his superior was Colonel Levent Ersöz, the commanding officer of the Şırnak gendarmerie regiment. He would converse with him several times a day.", "116. He described the location of his office. Visitors waited in the waiting-room opposite his office and he saw them when he had time.", "117. He had not known Serdar Tanış and Ebubekir Deniz before November 2000. He knew the former through his political activities as a member of HADEP. Serdar Tanış was in contact with non-commissioned officer Selim Gül and provided important information on the trafficking of arms, fuel, drugs and illegal products.\nThe witness met Şuayip Tanış for the first time in January. As the witness had only just been appointed to the post, Şuayip Tanış paid him a courtesy visit. He was accompanied by another person. Şuayip Tanış mentioned that his son, Serdar, had just become President of the local branch of HADEP in Silopi and would shortly be paying him a visit. The witness asked Şuayip Tanış to congratulate his son on his behalf.", "118. The witness said that in principle the establishment of a local party office or a change in its membership would be of no interest to him. However, certain information and material in his possession had raised concerns about possible links between HADEP and the terrorist organisation KADEK (Kurdistan Freedom and Democracy Congress). He did not at any stage ask Serdar Tanış and Ebubekir Deniz to give up their activities as members of HADEP.", "119. He met Şuayip Tanış again on 17 January 2000. He came to pay him a visit with his brother Mustafa Tanış and two other people. This too was a courtesy visit. On 18 January Serdar Tanış himself came to visit him. The witness had already spoken with him on the telephone but this was the first time he had seen him. Serdar informed him of his new position at the local branch of HADEP and confirmed that he continued to see non-commissioned officer Selim Gül. Serdar told the witness: “Do not have any suspicions about me, I wish to collaborate closely with the State, with all the agents of the State, the gendarmerie, the police and the district governor.” He added that party leaders and other people had been putting pressure on him. He had left Silopi for a time and had travelled to Van, Cizre and Diyarbakır to attend to personal matters and HADEP's affairs. The witness said that their meeting took place in a very friendly atmosphere and he even called in Selim Gül. This was the first time Selim Gül had met Serdar Tanış, as they had previously only spoken on the telephone. Serdar Tanış had contacted Selim Gül for help when his father was in custody and offered to provide information in exchange. The witness said that he had never met Ebubekir Deniz; however, he had seen his name mentioned in an official document as someone engaged in the transport of fuel from northern Iraq.", "120. On the morning of 25 January 2001, the witness played host to a team of eight or nine inspectors whom he accompanied on a tour of inspection of the Ortaköy and Botaş gendarmerie posts (having left the station at approximately 1.30 p.m.). He did not return to the station until 5.30 p.m. or 6 p.m. and did not speak to Selim Gül that day. He saw him at about 5 p.m. the following day. The witness said that he was replaced by the duty officer during his absence. None of his superiors or other officers from the Şırnak regimental headquarters visited the Silopi district command on 25 January.", "121. The witness said that on his return to the station in Silopi he received a telephone call from the Silopi public prosecutor, Kubilay Taştan, enquiring whether two people, who were members of HADEP, had been taken into custody at Silopi district gendarmerie command. He said that they had not, but that he would make enquiries at other gendarmerie posts. The public prosecutor rang back at about 9 p.m. and the witness informed him that his enquiries indicated that neither Serdar Tanış nor Ebubekir Deniz had been taken into custody at any stage.\nIt was not until the following day that Süleyman Can learnt that Serdar Tanış and Ebubekir Deniz had come to see him. Selim Gül told him that he had spoken with the two men, who said that Ebubekir Deniz was having problems with his fuel transport business and needed his help. Before leaving the building Serdar Tanış handed some documents on HADEP to Selim Gül. The witness refused to divulge the content of those documents.", "122. It was the witness's understanding that the public prosecutor was fully empowered to inspect the gendarmerie station (or to carry out an investigation). When visiting the station, the public prosecutor would inspect the registers and cells and thus perform routine checks.", "123. With regard to HADEP's activities, the witness said that they were relatively concerned about the party's links with KADEK. He added:\n“KADEK is a terrorist organisation and has a great deal of influence over HADEP. I informed Serdar Tanış about this and asked him to keep me informed of any developments. He assured me that Selim Gül and I would be informed without delay and that he would not be doing anything illegal. Prior to 26 January 2001 I had not spoken about Serdar Tanış and Ebubekir Deniz to my superior, Levent Ersöz. He had not asked me any questions about them. Following their disappearance, the public prosecutor and the Ministry of the Interior investigators made enquiries. All the enquiries focused on the Silopi district gendarmerie command. We also made enquiries: we questioned a number of people, some 400 soldiers, worked in close cooperation with the police and circulated posters bearing their photographs. However, when the letter was seized by police at the Habur border control, we directed our investigations to northern Iraq.\nI repeat that no pressure was exerted by command as a result of HADEP's activities. The resignations of some of HADEP's members was an internal party affair. The allegations of threats and intimidation made by Şuayip Tanış are without foundation. He came to pay me a courtesy visit and brought me a gift, which I declined. No one ordered Serdar Tanış and Ebubekir Deniz to come to the station. I did not witness a call by Levent Ersöz to Şuayip Tanış on 5 January 2001; he did not say that unless Serdar Tanış came to see him he would never be able to set foot in Şırnak again and he would kill him. I repeat that neither Serdar Tanış nor Ebubekir Deniz were at any stage taken into custody. On 25 January they came to the station and then left.”", "124. The witness said that after returning from his tour of inspection at about 5.30 p.m. on 25 January 2001 he was contacted by Mr İdris Tanış and the public prosecutor Kubilay Taştan. He told them that neither of the missing men was in custody and gave the same reply to the district governor the following day. In response to the district governor's comments, he checked the register of visitors' arrivals and was informed of Serdar Tanış and Ebubekir Deniz's visit. On 28 or 29 January 2001 the public prosecutor summoned the gendarmes and requested the registers.", "125. As to the allegation that the visitors' register was not signed by the duty officer on 25 January 2001, the witness explained that there was no rule on the subject and that it was left to the duty officer's discretion. The important point was to note comings and goings.", "126. The witness did not know the officers on the interrogation and intelligence team at the Şırnak regimental headquarters. He was unable to comment on the document the Silopi public prosecutor had sent to the Şırnak public prosecutor asking to be allowed to interview the officer who had telephoned Serdar Tanış (on his mobile phone) at 1.44 p.m. on 25 January 2001 and indicating that the persons who had attempted to force him into their car at around 1.30 p.m. had been identified.", "127. The witness said that he was questioned by the public prosecutor in February 2002, by which time he had been transferred to the Baykan district. The public prosecutor had not summoned him earlier. He said that certain teams from the Şırnak regimental headquarters (dealing with intelligence) wore plain clothes and used unmarked cars.", "128. The witness denied telling Mehmet Ata Deniz that the JİTEM was not under his orders or the orders of the commanding officer of the Şırnak gendarmerie regiment. He said that he knew nothing about the JİTEM and had never heard of the existence of such a unit within the gendarmerie.", "129. Kubilay Taştan was born in 1969 and was one of the Silopi public prosecutors at the material time. There were three public prosecutors in Silopi at the time, Hakan Başverdi, Gündoğan Öztürk and the witness.", "130. He did not know Serdar Tanış and Ebubekir Deniz and had never met them. He was informed of the incident at about 5 p.m. on 25 January 2001 by Mr İdris Tanış. He contacted the commanding officer of the Silopi gendarmerie on the telephone and asked his replacement to make enquiries of all the gendarmerie posts. Süleyman Can called him back to say that neither of the missing men had been to the gendarmerie station or taken into custody.\nAfter receiving that information he did not consider an on-site inspection necessary. The procedure was that the commanding officer of the gendarmerie had a duty to inform him whenever anyone was taken into custody and of the reasons for the arrest. He regarded everything he was told by the gendarmes as true. He gave the following account of the events:\n“We considered that Serdar Tanış and Ebubekir Deniz had not been taken into custody. The investigation proceeded orally. I found the information provided by the commanding officer to be satisfactory. On 26 January 2001 I contacted the Şırnak, Cizre and İdil public prosecutors' offices by telephone and asked whether the missing men had been detained within their sectors. They said they had not. Later that day Mr Tanış arrived with the father of one of the missing men. We took a statement from him, they lodged their complaint and the investigation began that day. On 27 and 28 January I took a statement from someone who said that he saw Serdar Tanış and Ebubekir Deniz enter the district gendarmerie command and gave instructions to the commanding officer to send full lists of the names of the soldiers and officers who were on the premises on 25 January 2001. I also questioned five or six soldiers who were on duty that day. I repeat that it would not have been possible to conceal any detention from me and that there would have been no point in my going to the station. On 29 January 2001, in accordance with our internal organisation procedure, I handed the investigation file over to my colleague Gündoğan Öztürk, who took evidence from various gendarmes and members of the armed forces. On the same day a delegation from the Human Rights Association came to see me and asked me questions about the investigation. I did not say that they should look for Serdar Tanış and Ebubekir Deniz in Şırnak. I always spoke to Süleyman Can on the telephone and did not meet him in person. We did not receive any information about what had happened to the missing men. I saw the visitors' register and the custody record on 29 January 2001 and checked the signatures.”", "131. With regard to the investigation procedure, the witness said that, when investigating a case, the public prosecutor was in all cases entitled to enter the gendarmerie station, make enquiries on the premises and carry out judicial checks, such as inspecting the cells or checking the lawfulness and conditions of detention.", "132. He expressed no view on the allegation that a gendarme had called Serdar Tanış to ask him to come to the station. He said that he could not divulge the name of that person as the investigation was confidential.", "133. Gündoğan Öztürk was born in 1971 and was a public prosecutor in Silopi at the material time.", "134. He did not know Serdar Tanış or Ebubekir Deniz. He was in charge of the investigation into the disappearance of the two men for a period of five months before being transferred on 12 July 2001.\nHe gave the following account:\n“There were three public prosecutors in Silopi. One of us was on duty each week. I was given the file on the case by Kubilay Taştan. He had taken some statements and requested the registers from the station. I questioned the gendarmes who were present at Silopi district gendarmerie command on 25 January 2001 and carried out a proper investigation taking all possibilities into account. On a number of occasions I used Eyüp Tanış, who was a key witness in this case. I sent him to Diyarbakır so that an identikit picture could be made of the people who had attempted to force Serdar Tanış into a car. I asked for the people who had telephoned him to be identified and photographs of all personnel at Silopi district gendarmerie command were shown to Eyüp Tanış. The public prosecutors' offices in the region were informed that the two men were missing. Copies of the visitors' registers to the station were sent to the Institute of Forensic Medicine. I did not take a statement from Süleyman Can as I was not given the authority to do so, as when a commanding officer was accused of an offence authorisation was needed from the Ministry of Justice. I questioned the other gendarmes as suspects.\nUntil 26 February 2001 those concerned had access to the documents in the investigation file and a copy of the material in the file was given to İdris Tanış. However, the information had been disseminated by the media, including the media controlled by the illegal organisation. Therefore, further to an application by me with a view to bringing the investigation to a successful conclusion, the judge made an order on 26 February 2001 imposing restrictions on access to the file. It is true that the commanding officer of the Silopi gendarmerie had earlier sought an order making all the statements from the gendarmerie personnel confidential.”", "135. In response to a question regarding the identity of the person who had telephoned Serdar Tanış on 25 January 2001, the witness replied:\n“No call was made by the commanding officer of the Silopi gendarmerie. The list compiled by the telephone operators indicates the name of the person who rang Serdar Tanış. That name appears in the file. When we sent a copy of the investigation file to the Ministry of Justice, the names had not been deleted. Since the person concerned was not in Silopi, I had no jurisdiction to question him or her or to organise an identification procedure. I informed the competent public prosecutor's office and it was its responsibility to take the necessary action.”", "136. Hakan Başverdi was born in 1968 and was a public prosecutor in Silopi at the material time.", "137. He did not know Serdar Tanış or Ebubekir Deniz and was not personally responsible for the investigation. However, the other two public prosecutors worked with him. 1. The petitions lodged with the Silopi public prosecutor's office by İdris Tanış on 26 January 2001 and by Şuayip Tanış and Mehmet Ata Deniz on 29 January 2001", "138. The applicants alleged that Serdar Tanış and Ebubekir Deniz had been threatened and intimidated by the commanding officer of the Şırnak gendarmerie regiment on account of their activities as members of HADEP. They stated that after being summoned by the commanding officer of the Silopi gendarmerie the missing men had gone to the station on 25 January 2001. There had been no news of them since.", "139. On 26 January 2001 the public prosecutor Kubilay Taştan took evidence from Eyüp Tanış and Ömer Sansur. The latter said that, following a telephone call from the commanding officer, he had taken Serdar Tanış and Ebubekir Deniz by car to the Silopi gendarmerie.\nThe telephone records showed that Serdar Tanış had received a call on his mobile phone at 1.44 p.m. on 25 January 2001.", "140. On 27 January 2001 statements were taken from Eyüp and İdris Tanış at the Silopi Security Directorate. Eyüp Tanış described the men who had attempted to force him and Serdar Tanış to get into their car. İdris Tanış said that Eyüp and Serdar Tanış had been intimidated in the past on account of their activities as members of HADEP and that he was worried about their safety.", "141. On 28 January 2001, further to an oral request from the Silopi public prosecutor's office, the commanding officer of the Şırnak gendarmerie regiment sent two notes to the Şırnak and Silopi public prosecutors' offices and to the Şırnak provincial governor indicating that:\n(a) Serdar Tanış went to the Silopi district gendarmerie command of his own accord on 18 January 2001, and during his meeting there he was not threatened on account of his political activities or forced to resign from his position as leader of the local branch of HADEP;\n(b) On 25 January 2001, Serdar Tanış and Ebubekir Deniz went to the station of their own free will and left the building at 2.30 p.m.;\n(c) During the visit, the commanding officer was out inspecting the Ortaköy gendarmerie post;\n(d) Serdar Tanış was a gendarmerie informant;\n(e) On 25 January 2001 Serdar Tanış handed over certain documents to a non-commissioned officer and sought the latter's help with respect to the revocation of Ebubekir Deniz's operator's licence;\n(f) The purpose of all the allegations that had been made was to tarnish the image of the security forces, to misinform the public and to put pressure on the courts following the arrest of HADEP leaders in Şırnak on account of their links with the PKK. The persons concerned had issued official statements indicating that they had received death threats and those allegations had appeared in the 5 January 2001 edition of the Yeni Gündem newspaper.", "142. On 29 January 2001 the public prosecutor Kubilay Taştan took statements from two witnesses who said that they had seen Serdar Tanış and Ebubekir Deniz enter the gendarmerie station together, from the applicants Şuayip Tanış and Mehmet Ata Deniz, and from four gendarmes from Silopi station. The gendarme Veysel Ateş said that Serdar Tanış was wearing a suit and entered the building with Ebubekir Deniz. The two men left approximately half an hour after arriving. The gendarme Yücel Erteki stated that Ebubekir Deniz arrived at the station half an hour before Serdar Tanış.", "143. On 30 January 2001 the public prosecutor Gündoğan Öztürk took statements from two gendarmes who said that the missing men had not been taken into custody in any of the gendarmerie posts and that they had no information about them.", "144. As to the other statements taken by the Silopi public prosecutor's office, the Court notes that certain names and information have been deleted from the documents the Government produced on 5 March 2003. The Government stated that, owing to a confidentiality order made by the competent court, they were unable to disclose the name or details of the person who had telephoned Serdar Tanış on 25 January 2001, whom the public prosecutor Gündoğan Öztürk had identified, or to provide the unexpurgated investigation file containing the information that had been deleted from the file sent originally.", "145. On 19 November 2001 Şuayip Tanış and his brother Nurettin were questioned by the public prosecutor. Nurettin Tanış stated that in January 2001 they were arrested on the Silopi road while on their way to Cizre by three people in civilian dress who asked Şuayip Tanış to go to the Şırnak regimental headquarters. Şuayip Tanış went to see the commanding officer Levent Ersöz, who told him that Serdar Tanış should resign from his position in HADEP.", "146. On 22 April 2003 the Silopi public prosecutor sent the case file to the public prosecutor at the Diyarbakır National Security Court.", "147. On 6 October 2003 the Government sent the Court a letter from General Levent Ersöz, stating that the investigation by the Silopi public prosecutor was still pending and that a simultaneous investigation by the Court would interfere with due process and undermine the investigation. He said that he had submitted his written statement to the domestic court authorities and refused to appear as a witness before the Court.", "148. In a letter of 25 November 2003, the Government informed the Court of the outcome of the proceedings concerning the complaint lodged with the Şırnak public prosecutor by Resul Sadak of intimidation against HADEP party members. They said that the investigation had begun on 2 March 2001. The public prosecutor had declared that he had no jurisdiction ratione materiae and had returned the case file to the Şırnak Administrative Council. In an order dated 1 June 2001, the Administrative Council had concluded that there were no grounds for prosecuting the gendarmes against whom the accusations had been made.", "149. In a letter to the Court dated 1 December 2003, the applicants' representative said that the person who made the telephone call to Serdar Tanış had been identified by the Silopi public prosecutor as the head of the intelligence and interrogation unit of the Şırnak gendarmerie regiment, Taşkın Akyün. He said that the file showed that Mr Akyün and two gendarmes from the same unit had attempted to force Serdar Tanış to get into the car on 25 January 2001.", "150. On 20 May 2002 the Şırnak public prosecutor ruled that the commanding officer of the Şırnak gendarmerie, Levent Ersöz, had no case to answer on the charge of making threats in order to secure compliance with an ultimatum.", "151. On 20 May 2003 Şuayip Tanış asked the President of the Siirt Assize Court to review that decision and again alleged that death threats had been made. His application was dismissed on 19 January 2004 on the ground that there was no evidence in the file to show that the accused had threatened Şuayip Tanış.", "152. On 9 February 2004 the public prosecutor ruled that seventy-three of the defendants, including forty-eight gendarmes, had no case to answer. His findings were as follows:\n“The document ... dated 22 April 2003 drafted by the Silopi public prosecutor's office on the kidnapping incident has been examined.\n... the Silopi public prosecutor's office, on 22 April 2003, when referring the investigation file concerning the disappearance of the President and Secretary of the local branch of HADEP in Silopi, Serdar Tanış and Ebubekir Deniz, ... asserted that the events in this case fell within the jurisdiction of the National Security Court for the following reasons: 1. As regards defendants nos. 1 to 47 and defendant no. 71 – at approximately 1 p.m. on the date of the incident three individuals claiming to be police officers pulled up in a vehicle in front of Serdar Tanış and Eyüp Tanış outside Silopi Post Office and asked them to get in. Serdar Tanış and Eyüp Tanış refused, saying that they would go to the gendarmerie headquarters only if they received a call from the authorities. Serdar Tanış received a telephone call at about 2.30 p.m. and was summoned to the Silopi district gendarmerie command. Serdar Tanış and Ebubekir Deniz went to the gendarmerie headquarters and have not been heard of since.\nApproximately twenty-five days before the incident, the commanding officer of the Şırnak gendarmerie regiment had summoned Serdar Tanış's father, Şuayip Tanış, and threatened him telling him that his son should resign from his position as President of the local branch of HADEP as otherwise neither he nor his family would be allowed to live. The missing men were abducted by the security forces. Acts of serving security forces in the region contravened Article 174 § 2 of the Turkish Criminal Code and fell within the jurisdiction of the National Security Court. 2. As regards defendant no. 70 – according to information received on police telephone numbers 155 and 156 approximately one month previously, the President of the HADEP provincial office in Şırnak, Resul Sadak, had sent Serdar Tanış and Ebubekir Deniz in a state of unconsciousness from Silopi to northern Iraq where they were to be handed over to the PKK in exchange for 5,000 [United States] dollars [USD]. Such conduct contravened Article 168 § 1 of the Turkish Criminal Code and fell within the jurisdiction of the National Security Court. 3. As regards defendants nos. 48 to 60, 62 to 69 and 72 – calls were made from their telephones after 25 January 2001 to number 0542 8078821, which is Ebubekir Deniz's telephone number. Such conduct contravened Article 169 of the Turkish Criminal Code and fell within the jurisdiction of the National Security Court. 4. As regards defendant no. 61, Zeki Genç – the defendant has made a statement to the press saying that he killed the two missing men.\nHaving regard to the material in the investigation file and information obtained from the additional investigation by this office: 1. As regards defendants nos. 1 to 47 and defendant no. 71, who are serving members of the security forces in the region and local informants.\nFirstly, an order was made to sever the investigation file concerning the allegations of death threats made by the commanding officer of the Şırnak gendarmerie regiment, the head of the security forces in the region, against Şuayip Tanış, the father of the missing Serdar Tanış, and to send it to the Şırnak public prosecutor's office for investigation. Following the investigation by the Şırnak public prosecutor's office ..., a decision was made on 20 May 2002 that there was no case to answer as the only evidence was abstract allegations. Following an objection by Şuayip Tanış's representative, Tahir Elçi, the President of the Siirt Assize Court decided on 19 January 2004 ... to reject it, for want of sufficient evidence to institute proceedings or try ... the commanding officer of the Şırnak gendarmerie, and to uphold the decision that there was no case to answer.\nSince that decision is final, the allegation that 'he [Serdar Tanış] was threatened with death twenty-five days before the incident', which constitutes the basis for the allegations that the said persons were kidnapped and executed by the security forces, is still pending and has not been made out.\nFurther, as regards the allegation that Serdar Tanış and Ebubekir Deniz were summoned by the commanding officer of the Silopi district gendarmerie shortly before they went missing, that it has been impossible to obtain any news about them since and that they were kidnapped by the security forces:\nHaving regard to the information provided to the investigators by the commanding officer of the Silopi gendarmerie and the examination by the local public prosecutor's office of the registers kept by the Silopi district gendarmerie command;\nIt has been established from the signatures in the visitors' register at the district gendarmerie command that the missing persons arrived at the Silopi district gendarmerie command at 2 p.m. on the day they disappeared; that the records state that they left at 2.30 p.m.; that their signatures on their arrival and departure appear opposite their names; that these signatures were sent to the Institute of Forensic Medicine for comparison with samples of their signatures obtained by the local public prosecutor's office from various public records; and that the department of the Istanbul Forensic Medical Institute specialising in handwriting analysis ... concluded in its report of 29 June 2001 ... that the signatures in the register opposite the names of the missing men ... were those of Serdar Tanış and Ebubekir Deniz.\nFurther, according to the Silopi gendarmerie, Serdar Tanış was a local informant. He provided information and documents about past or future incidents in the region. On the day of his disappearance he attended the gendarmerie headquarters for that reason. ... the visitors' register shows that on 5 and 17 January 2001 his father, Şuayip Tanış, and on 18 January 2001 Serdar Tanış himself, went to the gendarmerie headquarters; it was also noted that there was a fact sheet in the name of Serdar Tanış among the fact sheets giving details of the sources and means of obtaining information held by the central gendarmerie command at the Ministry of the Interior where the names of local informants were listed.\nIn the light of these explanations, the investigation file does not contain sufficient information and evidence to establish that the missing persons have been kidnapped by the security forces. 2. As regards defendant no. 70, Resul Sadak – in view of the information received by the security forces at 3.15 p.m. on 4 March 2001 from a person who did not disclose his or her identity and has not been identified ('I do not recall the date exactly, I negotiated with Resul Sadak, a member of HADEP, to take two people to the north of Iraq in exchange for USD 5,000. I smuggled them to the north of Iraq via the Habur border checkpoint in a lorry. On the way, the road was blocked by armed individuals who took the two men with them. They also took the USD 5,000. I asked Resul Sadak for this money on my return, but he did not give it to me.'), it was alleged that the defendant had sent the missing persons to the PKK in northern Iraq in exchange for money.\nIn view of:\n(a) the denial of these accusations by the defendant;\n(b) the failure to identify the informant;\n(c) the informant's failure to ask the authorities to take action;\n(d) the lack of concrete evidence to support the allegation;\nthe investigation file does not contain sufficient information and evidence to establish the truth of that allegation. 3. As regards defendants nos. 48 to 60, 62 to 69 and 72 – although the telecommunications records established that calls were made after the disappearance of the two men to telephone number 0542 8078821, which is registered in the name of Ebubekir Deniz, that telephone is not used by Ebubekir Deniz, but by his uncle Mehmet Reşat Tanış, who has used it since 2000 and who received the calls that were made to it. In view of that fact, the investigation file does not contain sufficient information or evidence to establish that the defendants established contact with Ebubekir Deniz after the date of his disappearance. 4. As regards defendant no. 61, Zeki Genç – it has been claimed that the defendant had stated in the press that he killed the missing men.\nHowever, in view of:\n(a) the statements made by the defendant on 10 May 2002 to the public prosecutor, in which he said that after seeing a group of HADEP party members set the Turkish flag on fire and insult martyrs [people who had been killed by PKK militants] he had snatched back the flag and injured a person in the leg for insulting his brother, a martyr, that he had no connection with the missing persons and the article in the 15 November 2001 edition of the Star newspaper was exaggerated, that he rejected the accusation and did not know the missing persons;\n(b) the fact that it is impossible to find concrete evidence to support the newspaper article;\nthe investigation file does not contain sufficient information and evidence as regards this allegation.\nIn the light of the above findings:\nThe defendant's implication ... in the disappearance of the two men has not been sufficiently established to enable criminal proceedings to be instituted under Article 163 of the Code of Criminal procedure.\nDecides, pursuant to Articles 164 and 165 of the Code of Criminal Procedure:\nThat, in the light of the lack of evidence, no criminal proceedings should be brought against the defendants;\nThat in view of the confidentiality order issued by the Silopi District Court on 11 December 2001 under the provisions of the Code of Criminal Procedure and the restriction imposed on the rights of the parties or their representatives to examine the case file and to take copies of documents, owing to the fact that when the investigation was carried out by the local public prosecutor's office statements were obtained from local informants in which their names and addresses were given, it is necessary to remove from the file and hold at the public prosecutor's office at the National Security Court pursuant to section 6 of the Prevention of Terrorism Act the statements of the local informants, the information relating to their identity and a copy of the documents, without prejudice to the merits;\nTo return the case file to the Silopi public prosecutor's office, which has jurisdiction in the area in which the incident took place, in order to discover the real culprits;\nTo serve a copy of the decision on the complainants, their representatives and the defendants;\nTo serve a copy on the Department of Criminal Affairs, on the Department of International Law and External Relations at the Ministry of Justice, as the case is the subject of an application to the European Court of Human Rights; and\nTo serve a copy of the decision on the commanding officer of the Şırnak provincial gendarmerie, as the accused include gendarmerie officers.”", "153. The applicants appealed against the decision that there was no case to answer. Their appeal was dismissed by the Malatya National Security Court on 3 May 2004. The relevant passages from its decision read as follows:\n“Having considered the grounds of appeal and the investigation file: 1. The decision that the defendants, who are public servants, have no case to answer concerns Article 174 § 2 of the Criminal Code [which governs offences against political freedom]. No such order has been made in the case concerning the disappearance. The decision contains an order to pursue the investigation into that incident. 2. A decision that there is no case to answer is not a final decision. The proceedings will resume if new evidence comes to light before the end of the limitation period. Proceedings may be brought de novo against an accused who has been found to have no case to answer or against other suspects (Article 167 § 2 of the Code of Criminal Procedure).\nIn the present case, the offence in respect of which the appeal has been made is within the jurisdiction of the National Security Court. No additional investigation has been ordered under Article 166 § 2 of the Code of Criminal Procedure since no defect liable to affect the merits has been found. However, it would appear advisable to take the following steps when gathering evidence in the course of the investigation:\n(a) To obtain a new statement from Taşkın Akyün regarding the point referred to in the document issued on 11 June 2001 by the Silopi public prosecutor's office; to organise a confrontation between the witness Eyüp Tanış and Taşkın Akyün, in accordance with the procedure, in order to clear up the uncertainty over identification; to establish why Taşkın Akyün called Serdar Tanış at 1.44 p.m. on 25 January 2001;\n(b) To trace the record drawn up on 12 January 2001 concerning the lorry with registration number 73 DK 558 and to obtain a statement from Sami Tanış, whose name is mentioned in the record, in order to determine why Ebubekir Deniz went to the gendarmerie headquarters;\n(c) In order to determine whether Eyüp Tanış and Serdar Tanış were threatened on the day of the incident [attempt made to force them to get into a vehicle], to identify the registration number of the vehicle concerned, and establish why the eyewitness Eyüp Tanış failed in broad daylight to note a single letter from the number plate which was very close to him when he had given a detailed description of the people who had tried to force them to get into the vehicle;\n(d) To send the photograph of Serdar Tanış in the case file and the photograph allegedly portraying Serdar Tanış with a militant from the organisation to the relevant department at the Istanbul Institute of Forensic Medicine to see whether the two photographs are of the same person.\nHaving regard to the aforementioned considerations:\nDecides, following its examination of the case file, dismissing the appeal and sitting as a court of last instance: 1. To dismiss the complainants' objections to the public prosecutor at the National Security Court's decision of 9 February 2004 that there was no case to answer concerning the offence under Article 174 of the Criminal Code of using threats or violence to prevent the exercise of political rights, as the decision complied with the rules of procedure and the law; 2. To pursue the investigation, to send the case file to the Silopi public prosecutor's office to remedy the defects noted in the investigation and listed above ...\nTo remit the case file to the public prosecutor's office at the Diyarbakır National Security Court.”" ]

[ 0, 1, 2 ]

[ "4. The applicants were born in 1974 and 1975 respectively and live in Bucharest.", "5. Following an incident on 17 March 1993 in which C.D. was robbed of some gold jewellery after being set upon and thumped by a group of people, the applicants were arrested and remanded in custody on 14 April 1993.", "6. In an indictment of 10 June 1993 issued by the public prosecutor's office at the Bucharest Court of First Instance, the applicants were committed for trial on a charge of robbery, an offence punishable under Article 211 § 1 of the Criminal Code.", "7. By a judgment of 24 November 1993, they were acquitted and released. The court held that the facts in respect of which they had been prosecuted could not be attributed to them.", "8. The prosecution appealed. The Bucharest County Court gave judgment on 12 July 1994 holding that the steps taken by the prosecution in the criminal proceedings were null and void. It therefore set the judgment of 24 November 1993 aside and referred the case back to the public prosecutor's office. It noted, in particular, that the steps taken by the prosecution against the applicants had been taken in the absence of a lawyer and that, furthermore, the prosecution had omitted to question certain witnesses during the investigation and had failed to examine a number of essential facts that could have led to the identification of the perpetrators of the incident that had occurred on 17 March 1993.", "9. That decision became final after being upheld by the Bucharest Court of Appeal in a judgment of 27 October 1994. Subsequently, the criminal proceedings were reopened by the public prosecutor's office at the Bucharest Court of First Instance.", "10. In an order of 11 November 1997, the prosecutor N.O. decided to discontinue the proceedings. In his order he stated that, although the facts of which the victim, C.D., had complained had actually happened, it could not be proved beyond all doubt that the responsibility lay with the applicants. The prosecutor also pointed out that a long period of time had elapsed since the incident in question and ordered the police to take no further action in the case.", "11. The prosecution served that decision on the applicants, at their request, by letters dated 11 March and 4 December 1998 respectively.", "12. On 12 May 1999 the Principal Public Prosecutor at the Bucharest County Court set aside the order of 11 November 1997 and, relying on Articles 220 and 270 of the Code of Criminal Procedure, ordered the proceedings to be reopened against the applicants for robbery and inciting third parties to give false evidence, offences punishable under Articles 211 and 260 of the Criminal Code respectively. The public prosecutor's office considered that the decision of the hierarchically lower public prosecutor's office had been inconsistent with the evidence on the file and that, furthermore, the prosecution had been incomplete because various steps had not been taken, such as bringing the presumed perpetrators face to face in the presence of their lawyers and taking evidence from certain witnesses.", "13. On 26 May 2000 a police officer who had investigated the charges brought against the applicants asked the prosecuting authorities to stop the prosecution.", "14. On 9 February 2001 the prosecuting authorities sent the investigation file back to the same police authority. No procedural steps were taken between 27 April and 30 November 2001. On 14 January 2002 the police referred the case to the public prosecutor's office at the Bucharest Court of First Instance, which referred it back to the police authority on 17 October 2002 for them to continue the investigation in respect of the applicants.", "15. On a number of occasions in 2003 and 2004, the prosecuting authorities summoned the applicants, the injured party and several witnesses for questioning in relation to the incident that had occurred on 17 March 1993 (see paragraph 5 above). The documents provided show that the witnesses refused to comply with the summons on the ground that they could no longer recall the matters about which the prosecution wanted to question them.", "16. In an order of 21 April 2005, the public prosecutor's office noted that the special limitation period for prosecuting the applicants, which was twelve years having regard to the maximum sentence for which they were liable for robbery, had expired on 17 March 2005. It accordingly ordered the criminal proceedings to be discontinued." ]

[ 3 ]

[ "4. The applicant was born in 1950 and lives in the city of Uzhgorod, the Zakarpatye region.", "5. In May 1999 the applicant instituted proceedings against the Uzhgorod Social Security Department (the “SSD”), alleging that it had erroneously calculated his period of employment in posts of hardship, thus lowering the amount of the pension to which he was entitled.", "6. On 23 July 1999, after four hearings, three of which were adjourned due to the failure of the applicant's representative to appear, the Uzhgorod City Court (hereafter “the City Court”) allowed this complaint, ordering the SSD to include three years and five months of the applicant's employment at the Elektrodvygun Company in the said calculation.", "7. On 20 January 2000, at the SSD's request, the City Court quashed the judgment of 23 July 1999 due to new circumstances and remitted the case for a fresh consideration.", "8. According to the documents provided by the Government, between February 2000 and January 2001 the court held one hearing. The scheduled hearings were cancelled on four occasions due to the applicant's failure to appear and on six occasions due to the absence of both parties.", "9. In the meantime the applicant requested that the trial judge be removed from the case, alleging that he intentionally delayed the proceedings. On 6 April 2000 the request was granted by the Acting President of the City Court, who found that “the proceedings were unduly delayed for different reasons” and assigned the case to another judge with a view to expediting the consideration of the claim.", "10. On 26 January 2001 the court dismissed the case because of the applicant's failure to appear.", "11. On 8 June 2001 the Deputy President of the Zakarpatye Regional Court, upon the applicant's request, filed a protest (an extraordinary appeal) against this decision. On 14 June 2001 the Presidium of the Zakarpatye Regional Court granted the protest, stating that there was no indication in the case file that the applicant had been duly informed about the time and place of the hearing. The decision of 26 January 2001 was quashed and the case was remitted for fresh consideration.", "12. On 26 June 2001 the City Court allowed the applicant's claim and ordered the SSD to recalculate the period of the applicant's employment in hardship posts.", "13. On 27 August 2001 the court ordered the Uzhgorod Department of the Pension Fund of Ukraine (the “Fund”) to enforce the judgment.", "14. On 8 October 2001 the Fund challenged the judgment of 26 June 2001 under the cassation procedures it had not been the defendant in the case. On 28 November 2001 the Supreme Court returned the appeal without an examination on account of its formal shortcomings. On 6 February 2002 the Fund produced an amended cassation appeal.", "15. On 16 May 2002 the panel of three judges of the Supreme Court decided to transfer the case for hearing by a judicial chamber", "16. The Supreme Court held one hearing. On 28 November 2002 it quashed the judgment of 26 June 2001 and remitted the case for a fresh examination.", "17. On 24 February 2003 the City Court appointed a technical expert from the State Department of Work Security to give an opinion in the case. On 7 April 2003 the expert informed the court that the relevant tests could not be carried out in the Department of Work Security for lack of adequate facilities. On 23 April 2003 the court appointed another expert and ordered that the appropriate examinations be performed in the Uzhgorod City Department of Work and Social Security. The expert's opinion was submitted on 27 May 2003.", "18. On 2 June 2003 the applicant challenged the participation of the trial judge on the ground of his alleged objective partiality. The same day the applicant's motion was upheld and the case was assigned to another judge.", "19. The proceedings were resumed on 7 August 2003. On 11 August 2003 the City Court allowed the applicant's claim. On 11 November 2003 the Zakarpatye Regional Court of Appeal upheld this judgment. On 16 January 2004, following the Fund's cassation appeal, the case was referred to the Supreme Court where it is apparently still pending.", "20. In August 1999 the SSD granted the applicant an increased pension in compliance with the judgment of 23 July 1999.", "21. In January 2000 this decision was quashed due to the Uzhgorod City Court's resumption of the judicial proceedings relating to the applicant's claim.", "22. On 16 July 2001 the Uzhgorod City Bailiffs' Service instituted enforcement proceedings for the judgment of 26 June 2001. According to a letter dated 20 November 2002 from the Fund, there had been several interruptions in the proceedings: in September 2001 they were suspended due to the Fund's request for the reopening of the case due to new circumstances; in March and October 2002 they were again suspended pending the examination of the Fund's cassation appeal. However, now the judgment had been fully enforced. The applicant had been awarded an increased pension and paid a lump sum of UAH 4,806[1] in back-payments. The applicant does not deny receiving this money.", "23. On 28 November 2002 the Supreme Court suspended the execution of the June 2001 judgment pending the examination of the Fund's cassation appeal.", "24. The applicant attempted on many occasions to institute criminal proceedings against A. (a pension expert) for alleged extortion. On 18 May 2001 the Uzhgorod City Prosecutor's Office rejected the applicant's complaints in the absence of any corpus delicti.", "25. In 1952 the applicant and his family had been deported from Ukraine to Chechnia by the Soviet authorities.", "26. By letter of 15 December 1999, the Zakarpatsky Regional Department of the Security Service informed the applicant that it was within the competence of the Uzhgorod Commission on the Rehabilitation of the Victims of Political Persecution to grant him compensation for these events.", "27. The applicant maintains that he has some UAH 20.000 deposited with the Savings Bank. However, this deposit has been “frozen” since 1992." ]

[ 3 ]

[ "5. The applicant was born in 1964 and lives in Ankara.", "6. The applicant was the mayor of the Sincan District in Ankara at the time of the events. In January 1997, the Culture and Education Department of the Sincan District Council, which was in charge of organising public activities and events during religious and national days, prepared a thirty-day programme for the month of Ramadan. The draft programme was submitted to the applicant for his approval. Upon his authorisation, the organising committee started the necessary preparations.", "7. One of the events, which had been foreseen for 31 January 1997, was called the “Jerusalem Night”. The aim of this event was to protest against the genocide and oppression of Muslims in Israel and Palestine. The Ambassador to Iran and a journalist called Nureddin Şirin were invited to the event as speakers. Furthermore, a five-minute play was written for that evening. The play took the form of a conversation between a father and his son about life in Palestine and the struggle of the Palestinian people.", "8. The event was announced months in advance and representatives of several embassies as well as important personalities living in the district were invited. The meeting hall was decorated with posters of martyrs who had given their lives for the liberation of Jerusalem. The applicant made the opening speech.", "9. On 6 February 1997 the applicant was taken into police custody. He was accused of disseminating propaganda in support of an armed illegal organisation, namely the Hezbollah, and of provoking hatred and hostility on the basis of a distinction between races and regions.", "10. In his statement taken at the police station, the applicant stated that the “Jerusalem Night” was organised as part of a thirty-day programme during the month of Ramadan and it was an activity of the Sincan District Council. He explained that the posters portrayed Muslim leaders who had given their lives for the liberation of Jerusalem. The applicant denied having connections with any illegal organisation.", "11. On 13 February 1997 the applicant was brought before the public prosecutor. During his questioning, he repeated the statements he had made at the police station. He pointed out that his speech did not contain any elements that would provoke hatred amongst those who did not wear headscarves.", "12. On the same day the applicant was brought before the investigating judge attached to the Ankara State Security Court. In his statement taken by the investigating judge, the applicant explained that he supported the secular system and did not approve of the regime in Iran. He stated that he had no connections with any terrorist organisation. He was subsequently placed in detention on remand.", "13. In an indictment dated 7 March 1997, the public prosecutor attached to the Ankara State Security Court initiated criminal proceedings against the applicant. It was alleged that he had disseminated propaganda in support of an armed, illegal organisation and that his actions had amounted to incitement to hatred and hostility on the basis of distinctions between races and regions. The prosecution called for the applicant to be sentenced pursuant to Articles 169 and 312 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.", "14. Before the Ankara State Security Court, which was composed of three judges including a military judge, the applicant contested the charges against him. He argued that the “Jerusalem night” was part of the social activities of the Sincan District Council and that he did not intend to incite people to hatred and enmity. He had emphasised the importance of unity and solidarity during his speech. He stated that he was joking when he said that the Shariah would be forcibly injected into secularists.", "15. On 2 July 1997 the applicant was released from detention on remand pending trial.", "16. Before delivering its judgment, the Ankara State Security Court firstly established the status of Hezbollah in Turkey. In this respect, it relied on a report prepared by the National Intelligence Organisation (MIT), dated 30 April 1997, which referred to the structure and goals of Hezbollah. The court further based itself on another report prepared by the General Directorate of Security, dated 24 October 1996. In this report, it was stated that Hezbollah had been involved in many terrorist attacks throughout Turkey. Finally, the court examined a report from a book called “the Eurasia File” (Avrasya Dosyası), which was published by the International Relations and Strategic Studies Centre. In the light of all the evidence before it, the court rejected the applicant's assertions that Hezbollah was not active in Turkey and that it was solely a national movement which operated in Palestine.", "17. On 15 October 1997 the Ankara State Security Court concluded that the applicant had aided and abetted a terrorist organisation, by making propaganda for it and by inciting persons to hatred and enmity by discriminating against class, religion and region. It found the applicant guilty as charged and sentenced him to four years and seven months' imprisonment. The court further disbarred the applicant from public service for three years.", "18. The applicant appealed to the Court of Cassation. In his submissions to the Court of Cassation, the applicant defended himself against the charge of incitement to hatred and enmity, contrary to Article 312 of the Criminal Code, and argued that he had called for unity and solidarity in his speech.", "19. On 21 September 1998 the Court of Cassation dismissed the applicant's appeal, upholding the Ankara State Security Court's assessment of evidence and its reasons for rejecting the applicant's defence." ]

[ 3 ]

[ "10. The applicant is a Ukrainian national who was born in 1958 and currently resides in Donetsk. He is a lawyer practising in Ukraine.", "11. On 31 July 1999 the Central Electoral Commission registered the applicant as the representative of a candidate for the presidency of Ukraine, Mr Olexander O. Moroz. The latter was the leader of the Socialist Party of Ukraine at the time.", "12. On 31 October 1999 the Kyivsky District Prosecution Service of Donetsk (the “Kyivsky Prosecution Service”) conducted a criminal investigation into allegations that the applicant had interfered with the citizens' right to vote (Article 127 § 2 of the Criminal Code of Ukraine – “the CC”).", "13. On 1 November 1999 the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate, the incumbent President Mr Leonid D. Kuchma. The applicant had allegedly disseminated this information on 30 and 31 October 1999 in the form of a statement by the Speaker of the Verkhovna Rada (Parliament) published in a special nationwide issue of the Verkhovna Rada newspaper Holos Ukrayiny (газета “Голос України”). The text of the article disseminated by the applicant reads as follows:\n“Holos Ukrayiny / newspaper of the Verkhovna Rada of Ukraine / Special edition 29 November 1999 / free copy\nAppeal of the Verkhovna Rada of Ukraine to the Ukrainian citizens\nWe, members of the Verkhovna Rada of Ukraine, are forced to appeal to you in this special edition of the parliamentary newspaper in view of an emergency existing in Ukraine. In fact, a coup d'état has taken place in the country, but the truth is carefully concealed from the people. We are being deceived! A person who appeared on TV and travelled around the country during the last week allegedly as the President of Ukraine Mr L.D. Kuchma is not the person he is pretending to be. It is only a clone of the President, who is being used by Mr Kuchma's criminal entourage to deceive people in the course of the presidential elections in order to retain power. The true President of Ukraine Mr Leonid Kuchma died on 24 October 1999 in Kyiv of acute heart deficiency caused by alcohol-related myocardiodystrophy. His body was cremated in strict secrecy and the ashes were taken abroad. Power has in fact been actually seized by the groups of Rabinovyches, Volkovs, Kobzons and Pinchuks.\nPeople are being intimidated, and forced to vote for the false Kuchma. There is a blatant information blockade of the opposition candidates. The Verkhovna Rada of Ukraine declares that it assumes control over the presidential elections. Each and every act of unlawful dismissal or other persecutions against people connected with the elections will be seen as a criminal offence. We bring this to the attention of the management of businesses and medical and educational institutions.\nThe powerful propaganda machine aimed at fooling the people has started its work. Power in Ukraine has been usurped.\nThe Verkhovna Rada declares that the only legitimate source of power in the State is the Ukrainian Parliament.\nThe Verkhovna Rada calls on all citizens of Ukraine not to allow the presidential elections to be hampered or to be declared unlawful in a manner that will lead to the establishment of a fascist regime in Ukraine.\nSpeaker of the Verkhovna Rada of Ukraine", "14. Following the applicant's arrest, the Kyivsky Prosecution Service carried out a formal criminal investigation into the allegations made against him.", "15. On 3 November 1999 the Kyivsky Prosecution Service decided to detain the applicant on suspicion of having committed a crime under Article 127 § 2 of the CC (see paragraph 41 below). The applicant was detained in the Temporary Investigative Isolation Unit of the Donetsk Region. He remained there until 10 November 1999.", "16. On 5 November 1999 the applicant was formally charged with having committed an offence under Article 127 § 2 of the CC (see paragraph 41 below). The prosecution service classified his actions as having been committed by an official.", "17. On 10 November 1999 the applicant lodged an application (dated 6 November 1999) with the Voroshylovsky District Court of Donetsk to be released from detention. On 17 November 1999 the court dismissed his application.", "18. On 11 November 1999 the applicant was transferred to the Donetsk Investigative Detention Centre No. 5.", "19. On 16 November 1999 the applicant underwent a medical examination. He was found to be suffering from bronchitis and second-degree hypertension. The medical commission recommended that the applicant be hospitalised.", "20. On 22 November 1999 the Kyivsky Prosecution Service completed the pre-trial investigation into the applicant's case and committed him for trial.", "21. On 25 November 1999 the case file was transferred to the court. On 10 December 1999 the Kuybyshevsky District Court of Donetsk (the District Court”) committed the applicant to stand trial on charges of interference with the citizens' right to vote, contrary to Article 127 § 2 of the CC (see paragraph 41 below). It also decided not to release him from detention.", "22. In the course of the trial Judge T. of the District Court on 7 March 2000 passed a resolution (постанову) ordering an additional investigation into the circumstances of the case. He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him. In particular, he stated:\n“... in the indictment containing the charges brought against him it was not shown by the prosecution how Mr Sergey P. Salov had influenced the election results or how he wanted to influence them...\nFrom the material in the case file it can be seen that the applicant disseminated a forged copy of the newspaper Holos Ukrayiny to only five persons; no other information with regard to the attempts by Mr Sergey P. Salov to influence the election results has been established by the investigation during the judicial consideration of the case...\nThe investigation has not sufficiently shown that the actions of Mr Sergey P. Salov constituted a criminal offence...\nThe investigative bodies did not consider the issue of whether [the applicant's] acts could be considered a criminal offence under Article 125 § 2 of the Criminal Code [libel] ... [i.e. whether] the actions of the defendant could be understood as dissemination of untrue information about another person (Mr Leonid D. Kuchma) ... on the basis of motives not directly related to the conduct of the elections. ...\nThe court considers that the investigative authorities have conducted their preliminary investigation insufficiently and that this cannot be rectified in the course of the trial, ... the court cannot convict Mr Sergey P. Salov of a crime under Article 125 § 2 of the Criminal Code [libel] since it cannot reclassify his actions, and the case must therefore be remitted for additional investigation...\nThis resolution is not subject to appeal in cassation; however, the prosecutor may lodge a complaint against it within seven days of its adoption.”", "23. On 30 March 2000 the deputy prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court (“the Presidium”) against the resolution of 7 March 2000 and requested the initiation of supervisory review proceedings in the applicant's case. He also sought to set aside the resolution of 7 March 2000 in which the case had been remitted for additional investigation. The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant's interference with the citizens' right to vote (Article 127 § 2 of the CC). On the same date the registry of the court acknowledged receipt of the protest.", "24. On 5 April 2000 the Presidium, composed of its President, L.V.I., and the judges R.L.P., P.L.V., R.L.I., M.M.I. and B.A.M., in the presence of a prosecutor, quashed the resolution of 7 March 2000 and remitted the case for further judicial consideration. In particular, the Presidium found that the District Court had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged. It had also not mentioned which particular investigative measures the prosecution was required to take. The Presidium decided not to release the applicant from detention. In particular, it stated:\n“... In finding that Mr Salov's actions had the mens rea of a crime provided for by Article 125 § 2 of the Criminal Code of Ukraine, the court, in violation of Article 22 of the Criminal Code, did not examine circumstances essential to this kind of conclusion. The court did not rule on the applicant's intent in his actions referred to in the indictment, whereas the bodies responsible for the preliminary investigation found that Mr Salov had intended to commit a completely different offence. The court did not deal with this [argument of the prosecution] and unfoundedly concluded that the applicant's actions might entail the corpus juris delicti of a crime provided for by Article 125 § 2 of the Criminal Code of Ukraine.”", "25. On 24 April 2000 the District Court dismissed a petition filed by the applicant's lawyer requesting that the case be remitted for additional investigation. It also dismissed the applicant's application for release from detention.", "26. On 1 June 2000 the District Court dismissed a further application for the applicant's release.", "27. On 16 June 2000 the District Court changed the preventive measure applied in respect of the applicant to an undertaking not to abscond.", "28. On 6 July 2000 the District Court, chaired by Judge T., who had heard the case on 7 March 2000, convicted the applicant of interfering with the citizens' right to vote for the purpose of influencing election results by means of fraudulent behaviour. The District Court sentenced the applicant to five years' imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 Ukrainian hryvnyas (UAH)[1]. It held as follows:\n“In October 1999 Mr Sergey P. Salov received, in unidentified places, from persons whose identity was not established in the course of the investigation copies of a forged issue of the Holos Ukrayiny newspaper of 29 October 1999. This issue contained information provided by the Speaker of the Parliament (Verkhovna Rada) of Ukraine, Mr Oleksandr O. Tkachenko, concerning the death of the incumbent President, Mr Leonid D. Kuchma ... and a coup d'état perpetrated by criminal circles surrounding him ... This issue contained an appeal by the Parliament of Ukraine to Ukrainian citizens urging them not to sabotage the presidential elections ... in order to prevent the establishment of a fascist regime...\nNotwithstanding the false nature of the information contained in the issue in question ..., Mr Sergey P. Salov decided to disseminate copies of it to voters in the Kyivsky District for the purpose of interfering with their right to vote and in order to influence the results of the presidential elections...\nAccording to a forensic examination, ... the eight issues in question were copies of the original version printed with the use of modern software...\nThe acts of Mr Sergey P. Salov constituted an interference with the exercise of the citizens' right to vote..., they hindered the voters' right to participate in the elections ... [The] dissemination of false information about Mr Leonid D. Kuchma's death was fraudulent ..., the information could have influenced the results of the elections ... and could have prevented voters from electing that candidate as President...”", "29. On 15 September 2000 the Donetsk Regional Court, composed of the judges D.A.D., G.G. and D.A.V., upheld the judgment of 6 July 2000.", "30. On 3 November 2000 and 9 February 2001 respectively the Regional Court and the Supreme Court of Ukraine dismissed, as being unsubstantiated, the applicant's complaints and his request for a supervisory review of his conviction.", "31. On 22 November 2000 the Donetsk Lawyers' Qualifications and Disciplinary Commission annulled the applicant's licence to practise as a lawyer (no. 1051, issued on 17 December 1997). It based its decision on the applicant's conviction of 6 June 2000.", "32. On 23 April 2004 the applicant received a new licence to practise as a lawyer (no. 1572), after passing an examination before the Donetsk Lawyers' Qualifications and Disciplinary Commission and paying the sum of UAH 1,200[2]. He was allowed to sit exams after the legal effects of his conviction were annulled (погашена судимість).", "33. In July 2000 the applicant instituted proceedings in the Voroshylovsky District Court of Donetsk against the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior, claiming compensation for the non-pecuniary and pecuniary damage resulting from his unlawful 10-day detention in 1999 in the Temporary Investigative Isolation Unit (Ізолятор Тимчасового Утримання). In particular, it was contended that he should have been held in the Investigative Detention Centre (Слідчий Ізолятор) and not in the Temporary Investigative Isolation Unit, as his status had been that of a suspect in criminal proceedings.", "34. On 15 June 2001 the Voroshylovsky District Court of Donetsk allowed his claims in part. It also ordered the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior to pay UAH 3,000 (EUR 500) to the applicant.", "35. On 22 November 2001 the Donetsk Regional Court of Appeal decided that the State Treasury, and not the prosecution service or the Ministry of the Interior, was liable for compensating the applicant. It therefore ordered the Donetsk Regional State Treasury Department to pay the applicant UAH 3,000 (EUR 500) in compensation for pecuniary and non-pecuniary damage.", "36. The applicant alleges that this compensation was not paid to him." ]

[ 6, 2, 3 ]

[ "6. The applicants, Mr Adem Kepeneklioğlu and Mr Mehmet Hakan Canpolat, are Turkish nationals, who were born in 1954 and 1964 respectively. When they lodged their application with the Court they were imprisoned in Turkey.", "7. On 29 and 30 June 1992 the applicants were taken into custody in Istanbul by police officers from the Istanbul Anti-Terrorist Branch. On 13 July 1992 they were detained on remand.", "8. On 27 July 1992 the Public Prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicants of, inter alia, organised murder and armed burglary, as well as being members of an illegal terrorist organization.", "9. On 25 November 1992 the Istanbul State Security Court commenced the trial against the applicants and three other accused and prolonged the applicants' detention.", "10. On 3 April 1998 the Istanbul State Security Court convicted the applicants under Article 146 of the Criminal Code and sentenced them to death.", "11. On 10 March 1999 the Court of Cassation quashed the judgment.", "12. On 12 June 2001 the Istanbul State Security Court convicted them of the same crimes.", "13. On 4 February 2002, upon the applicants' appeal, the Court of Cassation upheld the judgment of the State Security Court." ]

[ 3 ]

[ "4. The applicant was born in 1956 and lives in the city of Simferopol, the Autonomous Republic of Crimea, Ukraine.", "5. In the course of civil proceedings for defamation brought by a Member of Parliament in which the applicant was a co-defendant, the applicant was summoned to a court hearing in April 1998 (exact date unknown). According to the applicant, the summons was never served on him properly, and the postman later confirmed this.", "6. On 18 May 1998 the court imposed a fine of UAH 17[1] on the applicant for his failure to appear. The court also indicated in its decision that the applicant could appeal within ten days. According to the applicant, he received this decision on 28 May 1998.", "7. On 3 June 1998 the applicant lodged an appeal against the decision of 18 May 1998. In his appeal the applicant did not indicate the reasons for lodging it outside the time-limit and did not request its extension. On 5 June 1998 the Kievskiy District Court of Simferopol rejected the appeal as having been submitted too late.", "8. On 12 July 1998 the applicant lodged with the Highest Court of the Autonomous Republic of Crimea (hereinafter the “HCARC”) an appeal against the decision of 5 June 1998 together with a request for the composition of the first instance court to be changed. In January 1999 the applicant was informed that the HCARC had only received the request but not the appeal.", "9. Within the framework of the same set of civil proceedings, the applicant was summoned to appear before the court on 9 October 1998. The applicant maintains that he informed the court in advance that he would not be able to attend because of his holiday plans. On 8 October 1998 the applicant requested Mr B. to inform the judge that he could not attend the hearings due to his illness. According to Mr B., he did so on 9 October 1998. The court nevertheless decided to institute administrative proceedings against the applicant for his repeated failure to appear before the court.", "10. On 1 December 1998 the court decided in the applicant's presence to impose seven days' administrative detention on him for contempt of court, as manifested by his repeated failure to appear. The court found that the applicant was at his place of work on the day of the hearings, as confirmed by his employer – the Prosecutors' Office of the Autonomous Republic of Crimea (hereinafter the “POARC”). The court found no evidence in the case file indicating that the applicant had officially informed the court of any good reason for his absence. It disregarded the sick leave certificate produced by the applicant for the date in question.", "11. The same day the applicant was arrested and placed in a cell, which he described as cold.", "12. The applicant's arrest was covered by the local press in December 1998.", "13. On 2 December 1998 the POARC lodged an extraordinary appeal (protest) with the HCARC. This appeal suspended the enforcement of the decision of 1 December 1998 and the applicant was released after spending 16 hours in detention.", "14. In its appeal the POARC did not dispute the fact that the applicant had committed an administrative offence, but considered that the applicant had to be sanctioned under the Disciplinary Statute of the Prosecutor's Office rather than under administrative proceedings.", "15. On 3 December 1998 the President of the HCARC rejected this appeal.", "16. From 7 to 21 December 1998 the applicant was in hospital suffering from an acute form of chronic urological disease. According to the applicant, this illness was caused by his detention in the cold cell on 1 December 1998.", "17. On 10 December 1998 the applicant lodged a request with the HCARC for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 29 January 1999 by the President of the HCARC.", "18. From 25 to 31 December 1998 the applicant served the remainder of the administrative detention.", "19. On 4 January 1999 the applicant was dismissed from his position as a prosecutor attached to the POARC.", "20. On 21 January 1999 the applicant lodged a further request with the Supreme Court of Ukraine for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 24 March 1999.", "21. In October 2001 the applicant was diagnosed with Hepatitis C, which he believed he could have contracted in the prison or in the hospital in December 1998.", "22. In 1996, the former Prosecutor of the Autonomous Republic of Crimea, Mr K., lodged a claim with the Simferopolskiy District Court of the Autonomous Republic of Crimea against the applicant for defamation. On 6 June 2000 the court found against the applicant and ordered him to pay UAH 10,000[2] in compensation for moral damage. The applicant was not present at the final court hearing.", "23. On 20 September 2000 the Simferopolskiy District Court rejected the applicant's cassation appeal as having been submitted too late.", "24. In October 2000 the applicant lodged a request for extraordinary review with the President of the HCARC. The Deputy President of the court allowed this request and lodged an extraordinary appeal with the court.", "25. On 2 February 2001 the plenary of the HCARC allowed the appeal. The decision of 6 June 2000 was quashed in part on the ground that some of the matters covered by that decision had been finally decided within the framework of other proceedings. The court also reduced the amount of the fine to be paid by the applicant to UAH 1,000[3].", "26. On 6 December 2001 the panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal under the new cassation procedure." ]

[]

[ "9. On 28 May 1992 the applicant divorced. The court declared that both spouses should retain full and unrestricted parental rights with respect to their minor daughter M., born on 3 May 1984, but it ordered that she should live with her mother.", "10. Since the applicant could not reach an agreement with his former wife as to the exercise of custody, on 24 November 1992 he requested the Toruń District Court to determine the access arrangements. On 11 May 1993 the court ordered that M. should visit the applicant twice a month for weekends. They were also to spend one month together during the summer holidays and one week during the winter holidays.", "11. In the meantime, between June 1992 and 23 October 1993, the applicant made a number of unsuccessful attempts to see his child. The applicant therefore instituted enforcement proceedings on 8 June 1993, following the decision of 11 May 1993. On 18 October 1993 the Toruń District Court ordered the mother to give the applicant access to M. on pain of a fine. On 7 January 1994 the court imposed on the mother a fine for non‑compliance with its order in the amount of 100,000 (old) złotys. [1]", "12. On 8 February 1994 the Toruń District Court, upon the applicant's request, changed the access arrangements. The court ruled that the applicant should be allowed to take M. from her place of residence on every first and every third Friday of the month, as from 6.30 p.m., and bring her back on Sunday before 7.30 p.m. The court further set out detailed rules as to holidays, with reference to exact dates.", "13. Following these detailed arrangements, the applicant made further attempts to see M., but again to no avail. According to the applicant, every time he went to fetch his daughter at the appointed hour, either no one answered the door bell or he was informed that his daughter was out, busy, sleeping or not willing to see him. The applicant complained to various authorities, including the Toruń Commission for the Protection of the Rights of the Child, and the Ombudsman, but was informed that only the courts had the power to enforce a judicial decision in respect of access to a child.", "14. On 6 May 1994 the applicant instituted enforcement proceedings in respect of the decision of 8 February 1994. Hearings were held in these proceedings on 15 and 30 June, 11 July and 18 August 1994. At the hearing of 18 August the court gave an order by which M.'s mother was obliged, on pain of a fine, to grant the applicant access to the child. On 15 September 1994 she appealed, arguing that she had never impeded the applicant's access to his daughter.", "15. On 28 October 1994 her appeal was dismissed. On 17 November 1994 the applicant called on her to comply with the court's decision.", "16. On 5 December 1994 the applicant requested the court to impose a fine on his ex-wife for non-compliance with the access decision.", "17. On 18 January 1995 a hearing was held at which the applicant maintained his motion of 5 December 1994. The child's mother requested the court to adjourn the decision pending the termination of the proceedings concerning access. On 19 January 1995 the court imposed on her a fine of PLN 10 and ordered her to give the applicant access to his daughter within one week, on pain of a further fine. On 8 March 1995 the applicant requested the court to impose another fine on his former wife.", "18. On 15 May 1995 a hearing was held, which the mother failed to attend. Her lawyer asked the court to stay the proceedings, submitting that their result hinged on the outcome of the pending access proceedings, which the parties had meanwhile instituted on 29 October 1994 (paragraph 33 below). The court adjourned the hearing. At the next hearing held on 29 May 1995, the child's mother declared that the child had refused to have contact with her father. She requested the court to call witnesses. The court dismissed her request, considering that this was irrelevant to the proceedings at hand and scheduled the adoption of a decision for 31 May 1995. The hearing to be held on that date was adjourned, as on 30 May 1995 the applicant had submitted a letter from M. as evidence. On 16 June 1995 a hearing was held. The court imposed on the mother a fine of an unspecified amount and ordered her to give the applicant access to his daughter in accordance with the access arrangements.", "19. On 17 July 1995 the applicant lodged a new motion with the Toruń District Court for the enforcement of the decision of 8 February 1994, requesting that the mother be called upon to comply with the decision within a week on pain of a fine and that, in case of non-compliance, a further fine be imposed on her. As the applicant failed to pay the court fee, the court refused to deal with the motion. The fee having subsequently been paid, a hearing was scheduled for 27 September 1995. It was adjourned as the child's mother failed to attend.", "20. The next hearing was held on 3 October 1995. M.'s mother declared that her daughter kept refusing to see the applicant. On 13 October 1995 the court imposed a fine of 20 new Polish zlotys on her and ordered her to comply with the access order.", "21. On 22 November 1995 the applicant again requested that enforcement proceedings be instituted.", "22. A hearing scheduled for 26 April 1996 was adjourned until 10 May 1996 at the applicant's request. In her pleadings of 9 May 1996, M.'s mother requested the court to dismiss the enforcement motion and to question four witnesses. On 10 May 1996 a hearing was held. The applicant requested the court to adjourn it so that he could comment on these pleadings. The court allowed his request.", "23. On 25 May 1996 the applicant submitted his comments. At a hearing on 29 May 1996, the court obliged the applicant's former wife to reply to his arguments within ten days. At a hearing held on 21 June 1996, she asked the court to stay the proceedings until completion of the pending proceedings concerning the new determination of the access rights.", "24. In pleadings submitted on 6 September 1996 the ex-wife requested that an expert opinion prepared in the proceedings concerning the access rights, from which it was deduced that the applicant's daughter should not be compelled to have contact with her father, be included in the case file.", "25. On 24 October 1996 a hearing was scheduled for 15 November 1996. At this hearing the child's mother renewed her request for an adjournment until the proceedings concerning the custody rights were completed.", "26. On 25 November 1996 she requested the court to question two other witnesses in respect of the child's attitude towards the applicant. A hearing scheduled for 13 December 1996 was adjourned upon the applicant's request until 8 January 1997. The hearings to be held on 8 January, 29 January and 14 February 1997 were adjourned on the ground that the proceedings concerning the access rights were still pending.", "27. At a hearing on 14 March 1997, the court decided to take evidence by questioning the parties. By a decision of 20 March 1997, the court imposed a fine in the amount of PLN 400 on the applicant's former wife and ordered her to give the applicant, within a week, access to his daughter. She appealed, arguing that she was not responsible for the lack of contacts between the applicant and his daughter. It was M. who was reluctant to see her father. Taking into consideration the fact that the girl had reached the age of 13, the contacts were no longer dependent solely on her mother's will.", "28. On 12 June 1997 the Toruń Regional Court allowed the appeal, quashed the decision of 20 March 1997 and dismissed the applicant's request, considering that, since the daughter had turned thirteen, contacts with her were no longer dependent solely on her mother's will. The evidence available to the court did not allow the conclusion that it was the applicant's former wife impeding those contacts. The provisions of Article 1050 of the Civil Procedure Code, concerning the enforcement of non-pecuniary obligations, did not oblige a mother to take steps to change her child's attitude to the father.", "29. On 16 January 1998 the applicant requested the Toruń District Court to institute a further set of enforcement proceedings. On 18 March 1998 the court held a hearing. M.'s mother failed to comply with the summons and a fine was imposed on her for her unjustified absence.", "30. At a hearing held on 15 April 1998 the court questioned the parties. M.'s mother said that she had complied with the access decision at the beginning, but later M. had started to refuse to see the applicant. The court admitted evidence from the files of the other judicial proceedings between the parties.", "31. On 21 April 1998 the court ordered the applicant's former wife to give the applicant access to his daughter on pain of a fine of PLN 500. She appealed, arguing that the applicant's access to his daughter did not depend solely on her will, taking into account that the child was fourteen years' old.", "32. On 28 July 1998 the Toruń Regional Court allowed her appeal and dismissed the applicant's motion to have the enforcement proceedings instituted, on the same grounds as the decision of 12 June 1997 (paragraph 28 above). The court further noted that the applicant was not prevented from persuading his daughter, who had other interests than spending time with her father, to see him.", "33. On 29 October 1994 both the applicant and his former wife requested the Toruń District Court to alter the access arrangements as determined in the decision of 8 February 1994. In these proceedings the court requested a report from an expert in psychology. The expert, having met both parents, the daughter and her school teacher, delivered an initial psychological report on 9 April 1996 and a supplementary report on 16 October 1996. The expert concluded that M. had emotional ties with both parents and that it was in her best interests to continue living with her mother and to maintain regular and undisturbed contacts with the applicant.", "34. The expert found that M. was not afraid of the applicant but that she was stressed by the fact that any encounter between her mother, her mother's new partner and the applicant might give rise to a quarrel. Having regard to the applicant's former wife's hostility to the applicant's contacts with M., the expert recommended that the enforcement of the access rights be supervised by a court officer.", "35. On 20 March 1997 the Toruń District Court, having regard to the expert's conclusions, dismissed the motions for a change of the access arrangements. As a result, the decision of 8 February 1994 remained in force. Moreover, the court appointed an officer to supervise the exercise of custody rights by the mother.", "36. On 17 November 1997 the applicant instituted enforcement proceedings. However, the court informed him that his motion was inadmissible since the mother's conduct was to be supervised by a court officer appointed under that decision.", "37. In 1998 he again instituted enforcement proceedings and, on 21 April 1998, the Toruń District Court imposed on the mother a fine of PLN 500. She successfully appealed, the Toruń Regional Court allowing her appeal on 28 July 1998, again referring to M.'s age and finding that the contacts between M. and the applicant no longer depended on the mother's will.", "38. From May 1997 onwards, the applicant considered that all his requests to impose further fines on his former wife were bound to fail, either in the first instance or upon the mother's appeal, for the same reasons on which the courts relied in their earlier decisions - M. being over 13 years old. Nevertheless, finding it impossible to enforce his right of effective access to his child, the applicant unsuccessfully filed a number of further motions with the court.", "39. On 20 March 1997 the court appointed an officer to supervise the exercise of custody rights by the mother (paragraph 35 above). Both the applicant and M.'s mother appealed, to no avail.", "40. On 10 November and 1 December 1997 the supervision officer submitted reports to the court.", "41. On 3 January 1998 the officer accompanied the applicant to M.'s apartment. She refused to go for a walk with him. The officer talked with her for 25 minutes, but the girl refused to go out.", "42. On 22 January, 9 March, 9 May and 9 August 1998, the supervision officer submitted reports to the court. In an undated report submitted on 22 January 1998, it was stated that M. lived with her mother, her husband and her half-sister, had her own room and good living conditions. It was further stated that the applicant kept coming to see M. at times determined in the access order, but that the contacts were limited to brief conversations through the entry-phone. When asked why she did not want to see her father, M. had been evasive. Her mother had said that she had nothing against M.'s contacts with her father, but that she would not force her to see him.", "43. In a report of 23 January 1998, the supervision officer reported that, during the visit to be held on the first Saturday of that month, M. refused to see her father when he came to see her. She failed to explain why. Her mother reiterated that she would not force the child to see the applicant. The officer further remarked that the attitude of the mother was inflexible.", "44. In a report dated 9 May 1998, the supervision officer stated that M.'s mother and her husband had declared that they had not been preventing M. from seeing her father, but that they would not oblige her to do so, given that she herself was reluctant.", "45. On 8 September 1998 the officer held a meeting in which the applicant, his daughter and her mother participated. The girl said that she wished to maintain contact with the applicant, but did not want to visit him at his home. The supervision officer reported to the court that the applicant had reacted violently to this, and that the child seemed to be afraid of him.", "46. In a report of 10 November 1998 it was stated that the applicant was coming to see M. twice a month, but that the child did not want to see him. Her mother did not oppose her seeing her father. It was further remarked that M. had become mature enough to see or visit her father alone, had she wished to do so.", "47. On 1 December 1998 another supervision officer, Ms M.S., was appointed. On 15 December 1998 she submitted her first report to the court on the conditions of the child's upbringing. On 5 March 1999 she accompanied the applicant to the block of flats where his daughter lived. Initially the child refused to come down to see the applicant, but eventually she agreed and they talked for twenty minutes. On 15 March and 15 June 1999 the officer submitted further reports to the court.", "48. On 15 October 1999 a new supervision officer, Mr J.S., submitted his report to the court. Further reports were submitted on 30 January, 30 April, 30 July and 30 October 2000.", "49. On 5 December 2000 Ms R.S., the first supervision officer, was re‑appointed to the applicant's case. On 2 February 2001 she went to M.'s apartment, but there was nobody at home. On 31 March 2001 she again visited the family. M. was not at home at that time. Her mother and her stepfather were verbally aggressive towards the officer, refused to co‑operate and ordered her to leave the flat. Subsequently, the officer summoned M.'s mother for a meeting on 20 April 2001 and criticised her conduct during that incident. On 31 June 2001 the officer submitted a further report on the child. On 20 July, 19 August and 6 September 2001, she visited M. and submitted a report on 31 September 2001.", "50. In a report to the court, dated 31 June 2001, it was stated that the supervision officer had established that the applicant was coming to see M. regularly twice a month. The form of the contacts had not changed, i.e. they talked on the staircase.", "51. On 31 December 2001 the court officer submitted a further report, in which she stated that she had suggested that the applicant and M. go out together, but that he was reluctant, considering that this would be humiliating for him.", "52. A further statement as to the child's unwillingness to see the applicant was made in a report of 21 March 2002.", "53. On 14 May 2002 the Toruń District Court discontinued the enforcement proceedings in view of the fact that the applicant's daughter had reached majority.", "54. On 8 June 1993 the applicant informed the Toruń District Court that between 1 November 1992 and 7 June 1993 he had spent eleven days with his daughter and that he had also recently started meeting her during the school breaks. On 18 October 1993 the applicant admitted before the court that he had been meeting his daughter twice a week at school. During Christmas 1993 M. stayed with the applicant for two hours.", "55. In January 1994 the applicant met M. twice during the weekends. She also visited the applicant in his apartment on 18 February 1994 and on the first weekend of March. On 18 March 1994 the applicant could not see M. because she was ill. They spent the second day of Easter together. On 3 and 18 May 1994 M. was ill and could not see the applicant. She informed the applicant thereof by a letter of 18 May. The applicant visited her in her apartment on the first weekend of June. Before the applicant's visits planned for 2 and 16 August 1994, M.'s mother informed the applicant that the girl did not wish to see him. Later on, in September, M. informed the applicant that she would not visit him on the first Friday in September. Likewise, on 7 and 21 October 1994 she refused to go with him to his apartment.", "56. During Christmas 1995 M. spent two hours with the applicant.", "57. On 19 April and 3 May 1996 M. refused to speak to the applicant, who was waiting for her at the entrance to her block of flats. Later on, the applicant met M. on 4, 18 and 20 September. On 6 and 22 November 1996 M. opened the door when the applicant came to see her, but refused to go out with him.", "58. Apparently throughout this time the applicant was coming to the applicant's school to see her and talk to her either during the breaks or in front of the school, after she finished her lessons. During a court hearing held on 14 March 1997, the applicant declared that he had stopped doing so, as this was making M. nervous.", "59. When the applicant came to see M. on 3 January 1997, she was not at home. On 17 January, 21 February and 7 March 1997 M. did not want to talk to the applicant as she was doing something else at that time. On 21 March, 18 July, 13 and 17 October 1997 the applicant and M. met and talked briefly, for several minutes, in front of the door to the apartment where M. lived. On these occasions M. was unwilling to have longer conversations with the applicant, saying that she was busy. On 18 April, 16 May, 18 July, 5 September and 5 December 1997, M. also refused to see the applicant, referring to other things she preferred or was obliged to do. On 1 August 1997 M. refused to spend holidays with the applicant. On 7 November 1997 M. and the applicant had a conversation for half an hour, at the entrance to M.'s block of flats. On 21 November 1997 when the applicant came to see her, she was not at home. On 19 December 1997 M. could not leave the apartment to talk to the applicant on the staircase, as she was taking care of her younger sister.", "60. On 2 January 1998 M. refused to see the applicant when he came as she was seeing a friend. On 3 January 1998, she also refused to see him as she was busy doing something else. On 16 January 1998 the applicant and M. talked briefly on the staircase of her block of flats. She refused to see him the following weekend. On 6 February 1998 they met again in the yard of the block and talked briefly. On 20 February 1998 M. refused to leave the apartment to see the applicant, because she was busy. On 6 and 20 March and 3 April 1998, she was not at home when he came to see her. At a hearing held before the court on 15 April 1998, the applicant acknowledged that he had met M. three times at school during that year. On 14 May 1998 the applicant gave M. the maintenance payment due for this month. On 15 May they talked for fifteen minutes. On 5 June 1998 when the applicant came to see M. she was not at home. On 19 June 1998 M., the applicant and the court officer talked for several minutes at the entrance to M.'s block of flats. On 8 September 1998 the applicant talked to M. at a meeting organised by the supervisory officer.", "61. On 5 March 1999 the applicant and the supervision officer met M. at the entrance to the block of flats. M. left them after few minutes. From March to June 1999 the applicant met M. once. On 17 September 1999 the applicant and M. talked for twenty minutes.", "62. On the first Friday of January 2000, the applicant and M. met for several minutes. On 24 July 2000 the applicant met M. walking down the street and they talked for fifteen minutes.", "63. On 31 September 2001 M. told the supervision officer that she was normally seeing the applicant twice a month.", "64. On 17 January, 1 February, and 1 and 15 March 2002, the applicant and M. talked on the staircase, in front of her apartment." ]

[ 3 ]

[ "4. The applicant was born in 1960 and lives in France.", "5. He is the proprietor and managing director of Berfin, a publishing house which in November 1993 published a novel by Abdullah Rıza Ergüven entitled “Yasak Tümceler” (“The forbidden phrases”). The book conveyed the author's views on philosophical and theological issues in a novelistic style. Two thousand copies of it were printed in a single run.", "6. In an indictment of 18 April 1994, the Istanbul public prosecutor (“the public prosecutor”) charged the applicant under the third and fourth paragraphs of Article 175 of the Criminal Code with blasphemy against “God, the Religion, the Prophet and the Holy Book” through the publication of the book in question.", "7. The public prosecutor's indictment was based on an expert report drawn up at the request of the press section of the Istanbul public prosecutor's office by Professor Salih Tuğ, dean of the theology faculty of Marmara University at the material time. In his report of 25 February 1994 the expert observed:\n“... the author arbitrarily uses theories about the physical substance of the universe, creation and the existence of natural laws to sway readers' minds towards the conclusions he wishes to be drawn from the book. In particular, in the passages on theology he imprisons readers within the limits of his own views, which are devoid of all academic rigour. ... He criticises the beliefs, ideas, traditions and way of life of Anatolian Turkish society by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit. ... This way of thinking, based on materialism and positivism, leads to atheism in that it renounces faith and divine revelation ... Although these passages may be regarded as a polemic in support of the author's philosophical views, it may be observed that they also contain statements that imply a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam ... In the author's view, religious beliefs and opinions are mere obscurities, and ideas based on nature and reason are described as clear-sighted. The author describes religious faith as a 'desert mirage', a 'primitive idea' and 'desert ecstasy', and religious practices as 'the primitivism of desert life'. ...”", "8. In his report the expert quoted numerous passages from the book under review, in particular:\n“... just think about it, ... all beliefs and all religions are essentially no more than performances. The actors played their roles without knowing what it was all about. Everyone has been led blindly along that path. The imaginary god, to whom people have become symbolically attached, has never appeared on stage. He has always been made to speak through the curtain. The people have been taken over by pathological imaginary projections. They have been brainwashed by fanciful stories ...\n... this divests the imams of all thought and capacity to think and reduces them to the state of a pile of grass ... [regarding the story of the Prophet Abraham's sacrifice] it is clear that we are being duped here ... is God a sadist? ... so the God of Abraham is just as murderous as the God of Muhammad ...”\nThe expert concluded his report as follows:\n“The passages which I have quoted from the book form the actus reus of the offence provided for in Article 175 of the Criminal Code. As regards the mens rea, my analysis shows that it has been made out, especially since the author entitled his book 'The forbidden phrases'.”", "9. In a letter of 28 June 1994 to the Istanbul Court of First Instance, the applicant contested the expert report. He requested a second opinion, arguing that the book was a novel and should have been analysed by literary specialists, and questioned the expert's impartiality.", "10. On 2 November 1995 a committee of experts, composed of Professors Kayıhan İçel, Adem Sözüer and Burhan Kuzu, submitted its report.", "11. In a letter of 19 April 1996 to the Court of First Instance, the applicant disputed the accuracy of the second expert report and argued that it was a copy of the first report.", "12. On 24 April 1996 the applicant submitted before the Court of First Instance that the book was neither blasphemous nor insulting within the meaning of the third paragraph of Article 175 of the Criminal Code and merely conveyed its author's philosophical views.", "13. In a judgment of 28 May 1996, the Court of First Instance convicted the applicant and sentenced him to two years' imprisonment and a fine. It commuted the prison sentence to a fine, so that the applicant was ultimately ordered to pay a total fine of 3,291,000 Turkish liras (equivalent at the time to 16 United States dollars). In its reasoning the court referred to the second expert report and cited the following passage from the book:\n“Look at the triangle of fear, inequality and inconsistency in the Koran; it reminds me of an earthworm. God says that all the words are those of his messenger. Some of these words, moreover, were inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual relations with a dead person or a live animal.”", "14. On 3 September 1996 the applicant appealed to the Court of Cassation. In his grounds of appeal he submitted that in the book in question the author had merely expressed his views, and challenged the content of the expert reports.", "15. On 6 October 1997 the Court of Cassation upheld the impugned judgment.", "16. The applicant was notified of the final judgment by means of a payment order postmarked 2 December 1997." ]

[]

[ "7. The applicant was born in 1946 and lives in Norway.", "8. In 1987 the applicant married a Polish national M.C. In 1989 M.C. gave birth to their first daughter A. Subsequently, their son B was born in 1992 and their second daughter C in 1994.", "9. The applicant and his family lived in Norway. The household also included S.C., the son of M.C. born in 1980 of her previous marriage.", "10. On 22 November 1994 M.C. was committed to a psychiatric institution for more than two months. According to the applicant she was diagnosed with “a clear paranoid psychosis”.", "11. S.C. suffered from development disorders caused by “massive rejection” by his mother.", "12. On 31 March 1998 the applicant and M.C. separated. Subsequently, they filed for divorce.", "13. On 15 June 1998 the Inderøy District Court granted the applicant the custody of A, B and C. Moreover, the court granted M.C. visiting rights. She was allowed to visit the children in their house once a week and every second weekend after giving the applicant a three-day written notice. At the same time, the court issued a restraining order prohibiting M.C. from visiting the children in their schools. The applicant and M.C. were both granted parental authority.", "14. On 17 July 1998 the Trondheim Regional Court dismissed M.C.'s appeal against the District Court's decision.", "15. On 28 August 1999 M.C. abducted A, B and C and took them to Poland.", "16. On 31 August 1999 the applicant applied to the Polish Ministry of Justice – designated as a Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the children.", "17. On 9 September 1999 M.C. applied to the Warsaw District Court for a decision declaring that A, B and C were habitually resident in Warsaw. She also applied for a restraining order prohibiting the applicant from removing the children from Poland.", "18. On 24 September 1999 the applicant's application for the return of the children was submitted by the Polish Central Authority to the Warsaw District Court.", "19. On 5 October 1999 the Warsaw District Court stayed the proceedings concerning the application lodged by M.C. The court's decision was based on Article 16 of the Hague Convention.", "20. On 22 November 1999 a Polish translation of an expert opinion obtained by the Inderøy District Court on 4 October 1999 was submitted to the Polish Ministry of Justice.", "21. On 25 November 1999 the Warsaw District Court held a hearing in a case concerning the applicant's application for the return of the children. M.C., whose lawyer did not attend the hearing, informed the court that she would like to submit later certain documents confirming that she and her children had been ill-treated by the applicant. The hearing was adjourned until 6 December 1999.", "22. On 6 December 1999 the court requested an expert opinion on the relationships between the children and their parents and on whether the return of the children to the applicant would lead to psychological or physical damage to the children. The hearing was adjourned until 10 January 2000.", "23. On 7 December 1999 the applicant, M.C. and the children were interviewed by the Warsaw Family Consultation Centre, which was responsible for preparing the expert opinion.", "24. On 5 January 2000 the Inderøy District Court granted the applicant parental authority in respect of A, B and C and changed M.C.'s visiting rights. It considered that M.C. had unlawfully taken the children to Poland.", "25. On 10 January 2000 the hearing before the Warsaw District Court was adjourned sine die because the expert opinion was not ready.", "26. The expert opinion was submitted on 2 February 2000. It had six pages and ended with the following conclusion:\n“The emotional ties of the children with both parents still exist but are disturbed as a result of conflicts in the family environment. The father's attitude to the children does not raise any problems and the mutual relationships between him and [B] and [C] are correct.\nHowever, significant problems exist in the relationship between the father and [A], who partly identifies herself with her mother and whose attitude to the father is dictated by [the mother]. Therefore, transferring her to the care of the father may be difficult.\nNevertheless, the existing disturbances in the behaviour of [A] show that the father will better guarantee a proper functional development in future.\"", "27. On 24 February 2000 the Warsaw District Court held a hearing.", "28. The next hearing took place on 2 March 2000. The Warsaw District Court allowed an application for the return of the children lodged by the applicant and ordered M.C. to return them to the applicant. As M.C. declared that she would appeal this decision, the court granted the applicant visiting rights pending the outcome of the appellate proceedings. During the hearing the counsel for the applicant asked the judge to take the children away from M.C. and place them in a child care facility as there was a risk that M.C. would hide the children. However, the judge refused the request as she considered that such a risk did not exist.", "29. Subsequently, M.C. lodged with the Warsaw Regional Court an appeal against the District Court's decision of 2 March 2000.", "30. On 30 May 2000 the Warsaw Regional Court held a hearing. The counsel for M.C. submitted a medical certificate confirming that she was sick and could not attend the hearing. The court adjourned the hearing until 4 July 2000.", "31. On 4 July 2000 the Warsaw Regional Court dismissed an appeal lodged by M.C. During the hearing M.C. and her lawyer declared that the children would be hidden.", "32. On 27 July 2000 the enforcement proceedings began. The bailiff (komornik) requested M.C. to return the children but she refused.", "33. On 31 July 2000 the applicant paid 1,600 Norwegian kroner to the bailiff.", "34. On 14 September 2000 the bailiff referred the case file to the Warsaw District Court.", "35. On 19 October 2000 the court held the first hearing in the enforcement proceedings. M.C. did not attend it. She submitted a medical certificate confirming that she was sick.", "36. The next hearing before the Warsaw District Court was held on 23 November 2000. The court adjourned the hearing as it considered that it was necessary to hear both parties to the proceedings.", "37. On 5 December 2000 the Polish Central Authority informed the Norwegian Central Authority about the District Court's decision of 23 November 2000. The applicant submitted that the Polish Central Authority had not informed him that he should have attended the hearings held on 19 October and 23 November 2000 and that he had not received summonses from the Warsaw District Court to attend them.", "38. On 7 January 2001 the applicant was examined in Warsaw by a court expert in psychology.", "39. On 8 January 2001 the Warsaw District Court held a hearing. The court ordered M.C. to return the children to the applicant within seven days. It also decided that if she did not comply with the order she would be punished with a 1,000 Polish zlotys fine or a ten-day prison term in default. The court also ordered the bailiff to take the children away from M.C. by force if they were not returned within seven days.", "40. M.C. appealed the District Court's decision of 8 January 2001 but her appeal was dismissed on 6 March 2001 by the Warsaw Regional Court.", "41. On 2 April 2001 the bailiff sent to the District Committee for the Protection of the Rights of the Child in Warsaw a written request for their assistance in the enforcement of the District Court's order to take the children away from M.C. by force. The request referred to Article 1092 of the Code of Civil Procedure and included information that the bailiff would enforce the court's order on 19 April 2001 at 1 p.m. at M.C.'s house in Warsaw.", "42. On 4 April 2001 the Norwegian Central Authority passed to the Polish Central Authority the applicant's concerns that M.C., who had already hidden the children in the past, might hide them again and asked whether it was possible to take any measures to prevent this and in particular to bring forward the date of enforcement of the court order.", "43. On 9 April 2001 the Polish Central Authority replied in the following terms:\n“I would like to inform you that there is no possibility [of executing] the Court decision in another way. It is true that the Court of Justice is allowed to [take preventive] measures but the execution of the measures will be held on the same bases as the [substantive] decision. Mr. N (...)'s anxieties have been transmitted to the proper court.\nThe [execution of the decision] may not take place before the established date.”", "44. On 17 April 2001 the applicant had a meeting with the bailiff. He informed the applicant that following his request of 2 April 2001 he had contacted the Committee. He had been advised that it would not send a representative to assist in the enforcement of the court's decision on 19 April 2001. In addition, a person speaking on behalf of the Committee had made the following statement to the bailiff:\n“You understand that I do not agree with that and the mother of the children will be immediately informed about the date and time of the enforcement.”", "45. According to the applicant, the bailiff did not take any steps to speed up enforcement of the court's order.", "46. On 19 April 2001 the bailiff assisted by two police officers and accompanied by a social worker, the applicant and the Norwegian consul came to the M.C.'s house to enforce the court order. However, neither M.C. nor the children were present. M.C.'s mother, who lived in the house, informed the bailiff that M.C. and the children “had left around 12 April 2001 for an unknown destination”.", "47. Subsequently, the police authorities in Poland and Norway were informed that M.C. had abducted the children and was hiding them in Poland.", "48. On 31 August 2001 the Norwegian Central Authority submitted to its Polish counterpart details of M.C.'s bank account held in Warsaw into which she was receiving her pension from Norway.", "49. On 17 September and 14 November 2001 the Norwegian Central Authority inquired of the Polish Central Authority about developments in the search for the applicant's children but received no reply.", "50. On 12 December 2001 the Norwegian Central Authority submitted to the Polish Central Authority a third request for information about developments in the applicant's case. The request was signed by two senior officers of the Authority.", "51. On 19 December 2001 the Polish Central Authority informed its Norwegian counterpart that details of M.C.'s bank account had been passed to the prosecution service, which was investigating this lead. It also advised the Norwegian authorities about new legislation which since 27 September 2001 had made a guardian (kurator sądowy) responsible for the enforcement of court decisions allowing applications for the return of children. Therefore, on 14 December 2001 the Warsaw District Court had allowed an application lodged by the applicant's lawyer and had decided that a guardian should take the children away from M.C. when her address was established.", "52. On 6 April and 18 June 2002 the applicant wrote to the Chief Police Commissioner in Warsaw asking for help in finding his children but did not receive any reply.", "53. On 9 July 2002 the applicant received a telephone call from S.C., at that time aged 22, who was on holiday in Poland. S.C. informed him that A was visiting M.C.'s aunt in Warsaw. The applicant immediately contacted the police authorities in Norway and Poland while S.C. kept A under observation.", "54. On 10 July 2002 A. returned to the applicant's house in Norway.", "55. On 9 September 2002 the Warsaw District Court asked an elementary school in Warsaw whether B and C were attending it. On 28 October 2002 the court asked the local educational authority in Warsaw whether the children were attending any of the schools managed by it.", "56. On 20 December 2002 the Norwegian Minister of Justice sent a letter to his Polish counterpart asking him to look into the applicant's case.", "57. On 23 January 2003 a meeting of representatives of institutions engaged in the search for the children took place in Warsaw. It was organised by the Polish Ministry of Justice.", "58. On 29 January 2003 the Warsaw District Court asked the Social Security Board where M.C. was collecting her pension.", "59. On 10 February 2003 the court requested two other elementary schools whether B and C were attending them. On the same day it was informed by the International Police Cooperation Bureau in Warsaw that M.C. had made a phone call from Warsaw to Norway.", "60. On 17 February 2003 the Warsaw District Prosecutor informed the Warsaw District Court that M.C. had been arrested in Białystok, Poland several months before.", "61. On 18 February 2003 the Polish Ministry of Justice replied to the letter of 20 December 2002. The reply referred to the conduct of the proceedings in the applicant's case and the fact that M.C. was being prosecuted on charges of forgery of documents and use of false identity. She was under police supervision and was not allowed to leave Poland.", "62. On 28 February 2003 the Białystok District Prosecutor informed the Warsaw District Court that the prosecution service had lodged with the Białystok District Court a bill of indictment against M.C. She was charged with the forgery of documents as she had apparently adopted false identities for herself and for B and C.", "63. On 15 April 2003 a guardian took B and C away from M.C.", "64. On 16 April 2003 the children were returned to the applicant." ]

[ 3, 4 ]

[ "4. The applicant, Mr İbrahim Acar was born in 1933 and lives in Siirt.", "5. On 9 October 1990 the General Directorate of National Roads and Highways expropriated three plots of land belonging to the applicant.A committee of experts assessed the value of the plots and the relevant amount was paid to him on 12 and 13 August 1996.", "6. On 15 October 1996 the applicant initiated proceedings for additional compensation. Following the applicant’s request for increased compensation, on 1 September 1997 the Baykan Civil Court of First‑Instance awarded him additional compensation of 163,847,000 Turkish liras (TRL)[1] plus interest at the statutory rate applicable at the date of the court’s decision, running from 8 November 1996.", "7. On 28 September 1998 the Court of Cassation upheld the judgment of the first-instance court.", "8. According to the order of the General Directorate of National Roads and Highways, the amount due was paid to the applicant on 22 December 1998. The applicant claimed that he was paid on 4 January 1999. He received a total of TRL 368,837,000.[2]" ]

[ 9 ]

[ "7. The applicants were born in 1947 and 1968 respectively and live in Warrington.", "8. The first applicant, B, married A and this marriage ended in divorce in 1987. B and A had a son together, C. The first applicant then married D. The first applicant and D separated in August 1994 and the divorce was finalised on 9 July 1997.", "9. The second applicant, L, married C, the first applicant's son from his first marriage. The first applicant and the second applicant were therefore father-in-law and daughter-in-law. The second applicant and C separated in 1995 and their divorce was finalised on 8 May 1997. The second applicant and C have a son together, W. The first applicant is, therefore, W's grandfather.", "10. A relationship developed between the first and second applicants in 1995 after C had left the second applicant's matrimonial home. The applicants have been cohabiting since 1996. W lives with the applicants and only has sporadic contact with his father, C. W now calls the first applicant “Dad”. The applicants plan to adopt W which is permitted by domestic adoption law.", "11. In a letter dated 29 May 2002, the first applicant wrote to the Superintendent Registrar of Deaths and Marriages at Warrington Register Office to inquire about whether he could marry the second applicant. In a letter dated 13 June 2002, the Superintendent Registrar stated that under the relevant domestic legislation, it would be impossible for the applicants to marry unless A and C were both dead:\n“... The only circumstances a marriage could be allowed between yourself and [L] would be if you had both attained the age of twenty one and you could produce evidence of the death of your son and his mother (your first wife).”", "12. The applicants subsequently sought legal advice on whether there was any remedy against the decision of the Superintendent Registrar but were advised by counsel that no remedy existed since the basis for the decision was primary legislation, namely, the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986." ]

[]

[ "4. The applicant was born in 1930 and lives in Kyiv.", "5. In December 1998 the applicant brought proceedings against Mr S. (her neighbour), alleging that he had unlawfully seized and re-designed a corridor (measuring approximately 4 square meters) in their shared house.", "6. On 28 December 1998 the Podilskyy District Court of Kyiv (hereafter “the District Court”) allowed the applicant's claim. She was awarded the ownership of the disputed corridor and Mr S. was ordered to restore its original design.", "7. On 17 May 1999 the District Court, at the applicant's request, quashed its decision of 28 December 1998 due to new circumstances (namely, that the shared house had historical value) and reopened the proceedings.", "8. On 19 August 1999 the District Court allowed the applicant's claim, declared the corridor in question to be the applicant's property and ordered Mr S. to remove the unauthorised changes in the corridor's design. No appeal was lodged against the judgment and it became final ten days later, on 29 August 1999.", "9. Enforcement proceedings commenced in October 1999.", "10. On 8 February 2001, while the enforcement proceedings were in progress, the Deputy President of the Supreme Court lodged a supervisory protest (an extraordinary appeal) against the judgment of 19 August 1999 on the ground that the first instance court had erred in its assessment of evidence and in the application of the law.", "11. The protest was examined on 26 February 2001 by the Presidium of the Kyiv City Court. Having accepted the reasons advanced by the Deputy President of the Supreme Court, the Presidium quashed the judgment 19 August 1999 and remitted the case for fresh consideration.", "12. On 3 July 2002 the District Court dismissed the applicant's claim due to her failure to pay in full the State tax for the introduction of the complaint. The applicant did not appeal against this decision." ]

[ 3, 9 ]

[ "4. The applicant was born in 1952 and currently resides in the town of Pervomayskiy, the Kharkiv region, Ukraine.", "5. On 26 March 2001 the Pervomayskiy Town Court ordered the Khimprom State Enterprise to pay the applicant UAH 3,923.4 (around 640 euros –“ EUR”) in salary arrears.", "6. In August 2001 the applicant instituted proceedings in the Pervomayskiy Town Court against the Pervomayskiy Bailiffs' Service for failure to enforce the judgment in her favour. On 7 September 2001 the court found against the applicant, finding no fault on the part of the Bailiffs. On 19 November 2001 and 10 April 2002, respectively, the Appellate Court of the Kharkiv Region and the Supreme Court of Ukraine upheld the decision of the first instance court.", "7. The enforcement proceedings were suspended from 18 July 2001 until 10 September 2001 pending the proceedings against the Bailiffs' Service instituted by the applicant in the Pervomayskiy Town Court.", "8. On 18 June 2001 the procedure for the forced sale of the debtor's assets was suspended due to the moratorium on the forced sale of property belonging to State enterprises introduced by the President.", "9. The enforcement proceedings were also suspended from 4 September 2003 until 13 January 2004 pending the bankruptcy proceedings initiated against the debtor.", "10. On 24 June 2004 the applicant was informed by a letter from the Bailiffs' Service that the judgment in her favour was not executed due to the substantial number of enforcement proceedings against the debtor and the latter's lack of funds.", "11. The judgment of 26 March 2001 remains unenforced." ]

[ 3 ]

[ "8. The applicant was born in 1974 and lives in Chişinău. He is the former senior assistant to the prosecutor of the Centru District of Chişinău.", "9. On 24 July 2002 the applicant was arrested by the Moldovan Secret Services on charges of bribe-taking. Later the charges were modified to corruption (trafic de influenţă).", "10. On 15 August 2002 the Chişinău Regional Court ordered the remand of the applicant for a period of thirty days. The remand was later prolonged by the decisions of the Buiucani District Court of 2 September 2002 and 10 October 2002.", "11. On 15 November 2002 the Court of Appeal ordered the applicant's release from detention.", "12. On 4 April 2003 the applicant was convicted by the Court of Appeal and sentenced to ten years' imprisonment. He was immediately put in detention. The applicant appealed against that decision. The outcome of the proceedings is unknown to the Court.", "13. The applicant's complaints regarding the conditions of detention relate to two periods of detention served in the Remand Centre No. 3 of the Ministry of Justice (Izolatorul Anchetei Preliminare Nr. 3), namely between 18 October 2002 and 15 November 2002, and between 4 April 2003 and 13 December 2003.\n(a) The applicant's submissions", "14. The applicant claims to have been detained in a 25 m² cell together with at times more than twenty people. There were twenty metal bunk-beds, with no mattresses or covering and it was not always possible to have access to a bed because of overcrowding. After lodging his application with the Court, he was transferred to a smaller cell of 15 m², where he claims to have had to take turns in sleeping, because of overcrowding, and where the conditions were allegedly considerably worse than before.", "15. Smoking inside the cells was not prohibited by the internal regulations of the prison, and because of lack of alternative smoking facilities, the inmates had to smoke inside the cells. The applicant suffered from asthma and the prison administration was aware of this since he had been arrested and brought to prison immediately after undergoing asthma treatment in hospital, where he was arrested. Because of the exposure to cigarette smoke the applicant suffered many asthma attacks, which usually happened two or three times a day.", "16. There was no adequate medical assistance. Although there were medical personnel in the penitentiary, their ability to help was limited because of lack of medication. The applicant asked the prison doctor on many occasions for medical assistance, but he was refused. He was told that the prison did not have the necessary medication. Because of the lack of medication he had to endure the attacks and wait for them to pass, being obliged to sit in a vertical position. His attacks became more frequent and started to last longer. While the prison doctor knew that the applicant suffered from asthma, he gave his permission for the applicant to be placed in a cell with smokers. The applicant had to rely entirely on the supply of medication from his family.", "17. His situation was worsened by the fact that the cell's window was closed by shutters and there was no fresh air coming through it. Moreover, the cell was not provided with a ventilation system, and was therefore very damp.", "18. Because of lack of heating and insulation the cell was very cold during the winter and very hot during the summer.", "19. The shutters on the windows prevented daylight from coming in. Nevertheless, the prison administration limited the electricity supply to the cells to only six hours per day; therefore the inmates had to live in darkness and had great difficulty in preparing food.", "20. Water was provided to the cell for only ten hours per day, sometimes less. Access to warm water was limited to only once in fifteen days. There were no facilities for washing and drying clothes. The inmates had to dry their clothes in the cell.", "21. Because of poor medical assistance and bad hygienic conditions, the cells were infected with bed bugs, lice and ants. The inmates were exposed to infectious diseases like tuberculosis, skin and respiratory infections.", "22. The toilet was situated at 1.5 metres from the dining table and was permanently open. It was impossible to prevent the bad smell because of the lack of adequate water supply and lack of cleaning products.", "23. There was no library in the prison and the inmates did not have access to newspapers or other publications. There were no appropriate facilities for recreation and exercise.", "24. The food served to the inmates was of a very bad quality. It consisted of boiled water with a bad smell and was almost inedible. The applicant submitted that the Government spent 2.16 Moldovan Lei (MDL) (the equivalent of 0.14 euros (EUR) at the time) for one detainee's food per day, while the price of a loaf of bread was more than MDL 3.\n(b) The Government's submissions", "25. The applicant was detained in cell no. 16 with a surface of 28.4 m², designed for fourteen detainees, and in cell no. 138 of 19.3 m², designed for ten detainees.", "26. In accordance with Article 17 of the Law on Pre-Trial Detention, the applicant could have asked the prison authorities to be removed to another cell with non-smokers.", "27. The detainees were provided with medical assistance in accordance with the law. When a prisoner needed medical assistance that could not be provided by the prison doctors, he could be taken to a regular hospital. The prison was provided with medication by the State; however, in cases when the prison lacked certain medication, the detainees had the right to receive it from their relatives. Since the applicant was provided with all the necessary medication, no medical report prescribing other medication was drafted.", "28. The prison authorities were aware of the applicant's asthma. According to the Government, the prison register stated that the applicant requested medical assistance only twice, on 2 September and 5 November 2003. In their observations of 31 May 2004, the Government stated that on 5 November 2003 a doctor consulted him and prescribed medication. The Government did not present to the Court a copy of the prison register.\nIn their supplementary observations on the merits of 10 May 2005, the Government stated that medical assistance and medication were provided to the applicant on both days that he requested them. The Government provided a copy of a hand-written report of 13 May 2004, in which a prison doctor informed the chief medical doctor of the prison that the applicant had been examined by him on those dates and that medication had been provided to him.", "29. Ventilation of the cells was effected by opening the windows and fanlights during the detainees' exercise period and by the common ventilation system.", "30. Heating was provided by the prison's own heating system which used natural gas and coal.", "31. The cells had access to daylight, and electricity was provided continuously.", "32. The cells were permanently provided with tap water, and accordingly the inmates enjoyed an adequate level of hygiene. The Government also stated that the detainees had access to warm water.", "33. The toilets were separated from the rest of the cell by a wall in order to ensure the privacy of the detainees.", "34. The cells were equipped with radio sets, sometimes with television sets.", "35. The applicant enjoyed the right to a daily walk outside for one hour with the possibility of exercising.", "36. The detainees were provided with free food in accordance with the norms provided by the Government and the quality of food was satisfactory. The prison was provided on a daily basis with bread, vegetable oil, vegetables, tea and sugar. Because of insufficient funding, the provision of meat, fish and dairy products was not always possible. However, the detainees were allowed to receive once a month a parcel with food from their families. Moreover, the detainees had the right to buy food from the prison shop at least once a month, and to spend up to MDL 18 (the equivalent of EUR 1.2 at the time).", "37. There was no intention to humiliate or to debase the applicant and the prison authorities did not undertake any action in order to humiliate him.", "38. The letters sent to him by his mother did not always reach him. In support of this submission the applicant sent the Court a receipt of a registered letter with acknowledgement of receipt sent to him by his mother on 1 October 2003, which never reached him.\n(b) The Government's submissions", "39. According to Article 18 of the Law on Pre-Trial Detention, detained persons needed a written authorisation from the body in charge of their cases in order to be able to correspond with their families. The applicant did not have an authorisation to correspond with or communicate by telephone with his relatives because of the seriousness of the offence he was charged with and in the interests of justice.", "40. The applicant also submits that he was precluded from seeing his wife and his daughter and that he could not have telephone contact with them.", "41. On 30 June 2003 the applicant together with other cellmates lodged a complaint with the Prosecutor General, in which the applicant complained inter alia about the ban on receiving visits, including long term visits, from his family and other persons. The prisoners asked the Prosecutor General to order the prison authorities to allow them have long term visits, telephone conversations and other kinds of contact with their relatives.", "42. On 7 July 2003, the Prosecutor General's Office informed the applicant that his complaint had been forwarded to the Prosecutor's Office of Chişinău.", "43. On 25 August 2003 the applicant and his cellmates wrote a new letter to the Prosecutor General's Office complaining about the lack of reply from the Prosecutor's Office of Chişinău to their letter. The prisoners repeated their complaints about the ban on visits by relatives and on telephone conversations with them and complained about an alleged breach of Article 3 of the Convention.", "44. On 28 August 2003 the applicant received a letter from the Prosecutor's Office of Chişinău dated 9 August 2003 by which his complaints about the ban on visits were dismissed. In particular it stated: “...all the rights of remanded persons are provided for by Article 16 of the Law on Pre-Trial Detention. Such rights as telephone conversations and long or short term visits by relatives or other persons are not provided for in that law. The fact that these rights are not expressly forbidden does not mean that they are guaranteed”.", "45. On 1 September 2003 the applicant and his cellmates challenged the Prosecutor's refusal of 9 August 2003 before the Râşcani District Court. Relying on Article 8 of the Convention and on domestic legislation, they complained about the prison authority's and prosecutor's denial of their right to have visits, including long term visits, from their relatives, telephone conversations and other kinds of contact with relatives and other persons. They asked the court to oblige the prosecutor to solve their problem. They also asked the court to hear the case in their presence.", "46. On 11 September 2003 the Prosecutor General's Office wrote the applicant a letter dismissing the complaints.", "47. On 3 November 2003 the applicant and his co-detainees lodged a supplementary application with the Râşcani District Court asking it to examine their application of 1 September 2003. They argued that in accordance with the Code of Criminal Procedure, the Court was obliged to examine their application within ten days of receipt. The court's failure to comply with that deadline constituted a breach of their right to an effective remedy under Article 13 of the Convention.", "48. In the meantime, on 23 October 2003, judge V.M. from the Râşcani District Court examined the applicant's and his cellmates' application of 1 September 2003 in their absence and dismissed it. The court considered that the application had a general character and did not refer to any specific events. The court issued a decision with the application number 13-69/03 dated 23 October 2003.", "49. On the same date, the same judge from the Râşcani District Court examined an application of other detainees from Cricova prison concerning alleged abuses by police during a prison riot and dismissed it. The court's decision had exactly the same application number and the same date as the decision in respect of the applicant and his cellmates.", "50. On 29 January 2004 the Râşcani District Court informed the applicant and his co-detainees that their application had been dismissed on 23 October 2003.", "51. On 4 March 2004 the applicant and his co-detainees wrote a letter to the Râşcani District Court and asked for a copy of its decision of 23 October 2003.", "52. On 10 March 2004 the applicant and his co-detainees appealed against the decision of 23 October 2003 to the Chişinău Court of Appeal. In their appeal application they stated inter alia that the Râşcani District Court had examined their case in their absence and that it had not even sent them a copy of its decision.", "53. On 26 March 2004 the Râşcani District Court sent the applicant and his cellmates a copy of its decision of 23 October 2003 which referred to the riot at Cricova prison.", "54. On 14 April 2004 the applicant and his cellmates sent a new letter to the Râşcani District Court and informed it that the decision sent to them on 26 March 2004 did not refer to their case and asked for a copy of their decision. The Court does not have information as to whether the applicant and his cellmates received a reply to this letter.", "55. On 28 June 2004 the Chişinău Court of Appeal examined the applicant's appeal against the decision of the Râşcani District Court and dismissed it by a final judgment. In its judgment the Court of Appeal indicated that the applicant and his lawyer had been present at the hearing. However, the facts and the law part referred to the Cricova prison riot and did not have any connection with the applicant's case.\n(b) The Government's submissions on the facts", "56. The Government submit that according to Article 19 of the Law on Pre-Trial Detention, a detained person needed a written authorisation from the investigation body in charge of his case in order to be able to receive visits from family or from other persons.", "57. They claim, and the applicant does not deny, that he received visits from his mother on 30 May 2003, 12 November 2003 and 12 December 2003.", "58. The relevant parts of the CPT's report concerning the visit to Moldova between 11 and 21 October 1998 read as follows:\n“77. Prisoners were accommodated primarily in five buildings. Buildings I, II and VII for the most part accommodated remand prisoners. Male juveniles were held in a section of building III, the basement of which was reserved for prisoners in transit. Women had a separate detention area, situated in Building V. Sentenced prisoners were scattered among the various buildings, except for the buildings housing the detachment of convicted prisoners employed as workers, situated in Building VIII. It should also be noted that all prisoners sentenced to life imprisonment were accommodated in the basement of Building II.\n... 80. In contrast, in all the other detention areas, living conditions of the vast majority of the prison population left a considerable amount to be desired. In most of the cells, the living space per prisoner was well below the minimum standard set and the cramming in of persons had reached an intolerable level. For example, in Buildings I and II, up to 16 people were accommodated in cells of 24 m², 24 people had to share a cell of 32 m², and 29 people were packed into a cell of 52 m². In the juveniles' section in Building III, 12 young people were placed in a cell of 21 m² and 16 in a cell of 23 m². In addition, the delegation observed that cells of 8 m² to 9 m² accommodated up to four people.\nFurthermore, in these cells access to natural light was very limited, artificial lighting was mediocre, and the air polluted and rank. For prisoners still under investigation (i.e. over 700 prisoners), the situation was even worse, their cells being virtually totally without access to natural light because of the thick external metal blinds covering the windows. By force of circumstances, the equipment was reduced to the bare minimum, comprising metal or bunk beds which were extremely rudimentary and in a poor state, and a table and one or two benches. Furthermore, in many cells, there were not enough beds and prisoners had to share them or sleep in turns. In addition, the bedding was in a bad condition; the very small stocks of mattresses, blankets and sheets was not enough and many prisoners without family or resources had to sleep just on the bed frame.\nThe cells had a sanitary annex, a real source of infection. Above the Asian toilet was a tap which served both as a flush and as a source of water which prisoners could use to freshen up or wash. Moreover, this area was only partially partitioned by a small low wall less than one metre high, which meant that it was not possible to preserve one's privacy.\nThe state of repair and cleanliness in the cell blocks, overall, was also of considerable concern. In addition, many of the cells were infested with cockroaches and other vermin and some prisoners also complained that there were rodents.\nTo sum up, the living and hygiene conditions for the vast majority of the prison population were execrable and, more particularly, constituted a serious health risk. 81. The three transit cells in use at the time of the visit in Building III deserve particular mention. The situation in terms of living space in the cells was without a doubt the worst seen. Up to 18 prisoners were crammed into cells of 18 m². Half of the surface was taken up by a two level wooden platform (without mattress and blankets) completely blocking the window. In addition, the artificial lighting was mediocre and the atmosphere there was suffocating. As the remaining surface of the cell was filled up with the detainees' belongings and an Asian toilet, the detainees had no other choice but to pile onto the two levels of the platform. A number of detainees had been accommodated in these intolerable conditions for three to four months. 82. As regards washing facilities for prisoners, they had weekly access to the showers. However, the number of showers was notoriously inadequate for the male population (23 showers for approximately 1400 detainees, and moreover, its functioning was unreliable). In addition, prisoners who were not in a position to receive the basic washing necessities from their families were totally left without because of the lack of soap and towels in the prison. 83. The material conditions described above were further aggravated by another major inconvenience. Prisoners had to put up with very loud and repetitive music which was ongoing throughout the day and broadcast by loud speakers in the yard from 6 o'clock in the morning to 10 o'clock at night. The reason given for this measure was to ensure that the various categories of prisoners had no contact with each other. Many prisoners complained about this situation and the delegation was able to see for itself how obtrusive it was. For example, in many of the cells it was virtually impossible to hold a conversation.\n... 98. The health care staff in prison No. 3 comprised nine full-time doctors, assisted by seven assistants, 11 nurses and a psychologist. The nine doctors were as follows: one doctor in charge of the prison medical service, two general practitioners, two pneumologists, a psychiatrist, a dermatologist, a radiologist and a dentist. In addition to providing a consultation facility, the medical staff was responsible for an infirmary with a capacity of 70 beds, although in reality, this area accommodated 200 patients, primarily patients suffering from tuberculosis.\nThe medical team could at a pinch be considered sufficient. However, such is not the case for the team of assistants and nurses.”", "59. The relevant parts of the CPT's report concerning the visit to Moldova between 10 and 22 June 2001 read as follows:\n“69. The visited penitentiary establishments were severely affected by the country's economic situation. The budget ceiling for spending on the prison service under the 2001 Finance Act had been set at 48.7 million Lei (approximately 4.2 million Euros) or 38,9% of the resources needed per year. As a result, prisons suffered from severe shortages from every standpoint. For example, the daily budget for feeding a prisoner was 2.16 Lei, just 38.8% of the current statutory norm. Prisons also suffered form cuts in electricity, water and heating, not to mention the unavailability of medicines necessary for treating prisoners.\nIn their letter of 5 November 2001, the Moldovan authorities refer to the efforts made at the beginning of 2001 by the Department of Prison Administration to obtain humanitarian aid from international organizations and individuals, in order to resolve the most urgent problems of the prison system (2.3 million Lei have been obtained in this way).\nThe CPT recognizes the laudable efforts made by the Moldovan prison administration and these deserve to be supported. Nevertheless, the Committee has already recalled on several occasions that there are certain basic necessities of life that must, in all circumstances, including in a serious economic situation, be assured by the state in respect of persons for which it is responsible. Nothing can ever exempt the state from this responsibility.\nAs a consequence, the CPT calls upon the Moldovan authorities, at the highest political level, to take without delay the necessary measures in order that all prisons in Moldova may adequately assure the basic necessities of life for all detainees.\n... 78. The description of Prison No. 3 in Chişinău in paragraph 77 of the report on the 1998 visit is still valid. As previously indicated, this establishment suffered from severe overcrowding: 1,892 prisoners (mainly remand prisoners), including 127 women and 122 juveniles, for 1,480 places. 82. For example, the follow-up visit to Prison No. 3 in Chişinău revealed positive changes which the CPT welcomes. It particularly approves of the removal of the heavy blinds covering the windows of cells looking onto the interior of the establishment. It is also planned to replace the blinds on the windows looking onto the street with an alternative arrangement that will let in sufficient natural light.\n...\n...Major repairs had also been made to the heating with, in particular, the installation of a new boiler, while the prison's central showers had been completely renovated (three shower rooms were operational and a fourth was being repaired) with the help of former prisoners and prisoners' families. This made it possible for male prisoners to take a shower, with hot water, every ten days. In certain buildings, moreover, repair work on the electrical system and painting of the corridors had been completed. A few cells were currently undergoing refurbishment.\nThat said, the appalling living conditions and state of hygiene in buildings I, II and III, including the transit cells, described in paragraphs 80 and 81 of the previous report, had not changed (except as far as access to natural light is concerned). Indeed, the acute overcrowding in these buildings exacerbated matters still further. In the few cells viewed that were properly equipped and fitted out, this was due to the prisoners themselves, who had been able to procure what was needed from their families.\n... 87. The absence of organised activity programmes was a common feature of the establishments visited. This was undoubtedly a consequence of the economic situation and overcrowding, but also of the restrictive legislation governing the categories of prisoners accommodated there. Only a minute fraction of the prison population had work: some sixty in Bender and Chişinău and twenty-seven in Cahul. The majority of these prisoners formed part of the workforce allocated to the various prison duties. Other forms of activity were almost non-existent. It should be noted, however, that some efforts had been made in Prison No. 3, following the CPT's recommendations. For example, the outdoor exercise areas had been equipped with modest sports facilities. In this context, management plans to fit out two sports halls as soon as possible deserve particular support. Improvements had also been made to the juvenile detention regime: a television room had been provided and a few activities organised, such as music, singing and group discussions/debates. However, these early attempts to meet the needs of young persons remain an isolated example. In the other establishments, they were left entirely to their own devices.\n... 92. The follow-up visit to Prison No. 3 showed that compared with 1998 (see paragraph 98 of the report) the situation regarding health staffing levels had deteriorated. In particular, the number of nurses had fallen (from eleven to eight) added to which, two of these posts were vacant. The number of doctors and medical assistants remained the same, 9.5 and 7 respectively, but the post of head doctor was vacant. Such a team is not sufficient to meet the needs of almost 2,000 prisoners, a significant number of which were in the prison hospital (149), particularly as far as the care staff is concerned (medical assistants and nurses). The number of complaints received concerning access to medical staff and medical care is therefore hardly surprising.\n... 95. As indicated in the preliminary remarks, the supply with necessary medication was problematic in the visited establishments. The detainees mostly depended on their families or on non-governmental organisations in order to obtain the necessary medication (for example, Pharmaciens sans Frontières at Prison No. 3)... 98. From the standpoint of medical confidentiality, medical examinations and consultations did not take place in appropriate conditions in any of the establishments. As a rule, everything took place in the custody areas at cell doors (through the hatch), in the presence of guards. If prisoners had to be treated in a consultation room, guards were also in attendance. The situation in Prison No. 3, in the so-called \"procedure\" room in the infirmary, was particularly undignified. Treatment was administered through a closed door with bars, with an opening measuring 37 cm². The patients concerned then had to present the relevant part of the body, be it forearm or buttocks, in full view of other prisoners and staff. 99. There also needs to be a review of access to a doctor and a medical assistant. The delegation observed that when they were doing their daily rounds, the medical assistants only had minimal contact with prisoners, and always in the presence of guards. As a result, it proved very difficult to request consultations, which had to be done through guards. Many complaints were received about the considerable delays in gaining access to care staff and the barriers erected by guards. The CPT recommends that this situation be remedied. 100. There are several indicators to suggest that the situation regarding tuberculosis, already a matter of concern in 1998, is deteriorating. For example, in Prison No. 3, there has been a constant increase in the number of recorded active cases, from 54 in January 2000 to 121 in June 2001. Moreover, according to statistics supplied, tuberculosis accounts for 42% of the deaths in prison. 121. The CPT notes the improvements made in Prison No. 3 to the conditions in which visits take place, with the refurbishment of the booths used for short visits and rooms fitted out for convicted prisoners' long visits. Nevertheless, the visiting areas remain insufficient, given the capacity of the establishment. ... The CPT invites the Moldovan authorities to develop the facilities for visits in the establishments visited at the earliest possible opportunity.”", "60. In paragraph 87 of its report concerning the visit to Azerbaijan between 24 November and 4 December 2002, the CPT recommended that prison authorities should offer a minimum of 4 m² per prisoner." ]

[ 1, 4 ]

[ "8. On 4 November 1993 the Szczecin Regional Prosecutor charged the applicant with the offence of obtaining 71,000,000,000 PLZ under false pretences. On the same date the prosecutor issued a warrant of arrest against the applicant. The applicant was arrested on 6 November 1993 and on 9 November 1993 the Szczecin Regional Prosecutor detained him on remand for three months. On 16 November 1993 the applicant appealed against the detention order. By a decision of 22 November 1993 the Szczecin Regional Court upheld it.", "9. On 13 December 1993 the Szczecin Regional Prosecutor prolonged the investigations. On 28 January 1994 the Szczecin Regional Court prolonged the applicant’s detention until 6 May 1994. The court observed that the charges laid against him were sufficiently substantiated and that extensive evidence had still to be taken in the case. There were serious grounds for believing that the applicant, if he were to be released, would go into hiding.", "10. On 26 April 1994 the Szczecin Regional Prosecutor decided to prolong the investigations case until 6 September 1994.On 29 April 1994 the Szczecin Regional Court prolonged the applicant’s detention until 6 September 1994. The court considered that further evidence was required to establish all the facts of the case and that the detention was indispensable to ensure the proper conduct of the proceedings. On 15 June 1994 the Poznań Appeal Court upheld this decision.", "11. In May and June 1994 at least thirty one witnesses were heard. On 9 August 1994 the prosecutor dismissed the requests for release submitted by the applicant, his wife and his counsel in June and July 1994. On 9 September 1994 the Appeal Prosecutor upheld this decision.", "12. Between 11 July and 7 September 1994 the prosecuting authorities questioned twenty-four witnesses. On 22 August 1994 the prosecutor prolonged the investigation of the case. By a decision of 26 August 1994 the Szczecin Regional Court prolonged the applicant’s detention until 6 November 1994, having regard to the necessity of continuing investigative proceedings. In particular, there was a need to carry out certain specific examinations and to examine a number of witnesses. On 4 October 994 the Poznań Appeal Court upheld this decision.", "13. On 21 September 1994 the applicant again requested his release, relying on the fact that his wife was in hospital. This request was dismissed on 26 September 1994 on the ground that she was capable of taking care of the children and of carrying on business activities.", "14. On 7 October 1994 the prosecutor prolonged the investigation until 31 May 1995. On 4 November 1994 the Supreme Court further prolonged the applicant’s detention until 6 May 1995, considering that there was sufficient likelihood that he had committed the offence in question and there was a real danger of collusion on his part. The case was complex and multi-layered. It was necessary to pursue further investigative proceedings, including a request for judicial assistance from the prosecution authorities abroad. The court observed that the applicant had relapsed into crime and that he had been sought by a wanted notice at the initial stage of proceedings.", "15. On 14 December 1994 the prosecutor dismissed the applicant’s request for release. Upon the applicant’s appeal the Poznań Appeal Prosecutor upheld the contested decision on 16 January 1995. Between 17 and 27 January 1995 the prosecutor heard fourteen witnesses and appointed one additional expert in building matters. On 16 January 1995 the prosecutor dismissed the applicant’s subsequent request for release. On 3 February 1995 the Poznań Appeal Prosecutor upheld the contested decision.", "16. Between 1 February and 2 March 1995 the prosecutor heard twenty-five witnesses. On 23 February 1995 the prosecutor amended the charges already brought against the applicant.\n 17. On 13 April 1995 the Regional Prosecutor dismissed the applicant’s request for release of 11 April 1995. On 5 May 1995 this decision was upheld by the Poznań Appeal Prosecutor. On 4 May 1995 the Regional Prosecutor closed the investigation and on 5 May 1995 submitted the bill of indictment against the applicant to the Szczecin Regional Court. The bill of indictment numbered 150 pages, listed 111 witnesses to be summoned and requested 716 items of evidence to be disclosed at the hearing.", "18. On 5 May 1995 the applicant requested that the case be referred back for further investigation. On 17 May 1995 the Szczecin Regional Court allowed this request. On 23 May 1995 the Regional Prosecutor appealed against this decision. On 6 July 1995 the Poznań Court of Appeal adjourned the examination of the appeal and requested the Supreme Court to provide an interpretation of the legal issues arising in the case.", "19. On 31 July 1995 the Supreme Court transferred the case-file back to the Poznań Court of Appeal for an examination of the applicant’s requests for release of 1 and 28 June 1995. On 10 August 1995 the Poznań Court of Appeal dismissed these requests. On 22 September 1995 the Supreme Court issued a resolution concerning certain legal questions involved in the case. On 6 October 1995 the Poznań Court of Appeal set aside the decision concerning the referral of the case back for further investigation.", "20. On 3 and 7 November 1995 the applicant again requested to be released and offered a bail bond. On 8 November 1995 the Szczecin Regional Court refused to release him. On 21 December 1995 the Poznań Court of Appeal dismissed his appeal.", "21. On 21 December 1995 the Poznań Court of Appeal decided that the case should be examined by the Koszalin Regional Court.", "22. On 8 and 16 January 1996 the applicant again requested to be released on bail. On 31 January 1996 the Koszalin Regional Court dismissed this request. On 13 March 1996 the Gdańsk Court of Appeal dismissed his appeal. The applicant’s subsequent requests for release were dismissed on 5 and 29 April 1996. The applicant’s subsequent requests for release of 6 May, 19 and 24 June 1996 were dismissed at the hearing held on 24 June 1996. At the hearing on 25 June 1996 the applicant again unsuccessfully requested to be released on bail.", "23. On 23 July 1996 the applicant again requested to be released. His request was dismissed on 13 August 1996. On 27, 28 and 29 August 1996 the court held further hearings. The applicant’s request to be released on bail of 29 August 1996 was dismissed on 30 August 1996. The applicant’s appeal was dismissed by the Gdańsk Court of Appeal on 25 September 1996 on the ground that his three-year detention was justified in view of the high probability of his guilt, the seriousness of the charges against him and the risk of a long-term imprisonment. There were no grounds to replace the detention by a more lenient preventive measure given that the bail in the form of real estate, as proposed by the applicant, was of a relatively small value by comparison with the extent of damage caused by him.", "24. On 22 November 1996 the Koszalin Regional Court requested the Supreme Court to prolong the detention until 31 December 1997. The court submitted that the applicant’s detention was justified by the existence of a sufficient probability of his guilt and the gravity of the charges against him. In addition, the amount of the evidence in the case was enormous. The regional court also expressed the opinion that the applicant, if released, would deliberately obstruct the course of the proceedings or go into hiding.", "25. On 28 November 1996 the Koszalin Regional Court dismissed the applicant’s requests for release of 12 November 1996.", "26. On 3 January 1997 the Supreme Court prolonged the applicant’s detention until 31 December 1997. The court relied on the grounds invoked in the previous decisions, i.e. sufficient probability of the applicant’s guilt, a justified fear of his absconding as well as the exceptional complexity of the case and the lack of grounds for release provided by Article 218 of the Code of Criminal Procedure.", "27. On 22 January 1997 the Gdańsk Court of Appeal refused to examine the applicant’s appeal against the decision of 28 November 1996, pointing out that by virtue of a decision of the Supreme Court of 3 January 1997 his detention on remand had been prolonged until 31 December 1997.", "28. On 6 February 1997 the Koszalin Regional Court refused to release the applicant, considering that the grounds on which the detention had been ordered had not ceased to exist. The subsequent hearings in the case were held on 10, 11, 12, 13 and 14 March 1997. The applicant offered bail in the form of a mortgage of real estate belonging to a third person. The court dismissed this request and adjourned the hearing until 15 April 1997.", "29. On 15, 16, 17 and 18 April 1997 the court held hearings. The applicant’s requests for release were dismissed at the latter hearing. His subsequent requests were dismissed on 20 April, 19 and 30 May 1997 respectively. On 23, 23, 25, 26 and 27 June 1997 the court held hearings. At the hearing of 26 June 1997 the applicant requested to be released on bail and under police supervision. On 27 June 1997 the court dismissed that request. In the meantime the court ordered that the applicant be examined by psychiatrists and a psychologist. The opinion on his mental health was submitted to the court on 10 July 1997.", "30. On 16 July 1997 the court again refused to release the applicant. The subsequent hearings in the case were held on 25, 25, 27, 28 and 29 August 1997. At the latter hearing the applicant requested to be released on bail. The court adjourned the examination of the applicant’s request for release and ordered that he should submit within 14 days documents concerning the real estate offered as bail by the third person.", "31. On 9 September 1997 the requested documents were submitted. On 23 September 1997 the Koszalin Regional Court ordered that the applicant be released and remain under police supervision on condition that he paid 20,000 PLN. It considered that bail in the form of real estate, which belonged to a friend of the applicant, was not acceptable in view of the fact that it constituted part of a matrimonial property.", "32. On 19 and 30 September, and 2 and 3 October 1997 the court held further hearings. At the hearing on 29 September 1997 the court again considered the question of the amount of bail offered by the third person. On 30 September and 2 October 1997 the applicant appealed against the decision of 23 September 1997. On 3 October 1997 the applicant once again requested the court to accept a bail bond.\n 33. At the hearing of 3 October 1997 the court dismissed the applicant’s requests for release, emphasising that the time-limit of 14 days for paying the bail sum proposed was still valid and the applicant’s appeals were premature.", "34. Further hearings were held on 27, 28 and 29 October 1997. At the hearings of 29 October and 5 November 1997 the applicant again requested to be released on bail. On 7 November 1997 he appealed against the decision of 3 October 1997. On 18 November 1997 the applicant requested to be released. On 20 November 1997 the Koszalin Regional Court dismissed the applicant’s requests for release and ordered again that his detention be continued. However, the court envisaged the possibility of imposing a less severe preventive measure provided that the applicant paid 20,000 PLN as bail.", "35. On 28 November 1997 the applicant again requested to be released under police supervision. On the same day he appealed against the decision of 20 November 1997. On 1 December 1997 the Koszalin Regional Court ordered that the applicant be released on condition that he paid 15,000 PLN. The court noted that police supervision alone was not a sufficient preventive measure in the circumstances of the case. Since the applicant did not pay the bail, his detention on remand continued.", "36. At the hearing on 18 December 1997, the Koszalin Regional Court requested the Supreme Court to extend the applicant’s detention on remand until 30 June 1998. The court found that the applicant’s request to have certain witnesses heard and some additional expert opinions taken would cause a delay in the final stage of the proceedings. Furthermore, there was a reasonable risk that the applicant, if released, would deliberately obstruct the proper course of the proceedings or go into hiding. The court refused to impose police supervision on the applicant, offering again the possibility of granting bail in the sum of 15,000 PLN.", "37. By virtue of the Supreme Court decision of 20 January 1998 the applicant’s detention was prolonged until 30 June 1998. On 23 January 1998 the Koszalin Regional Court dismissed the applicant’s request for release of 20 January 1998, finding that the circumstances justifying the applicant’s detention had not ceased to exist. Besides, the applicant had not availed himself of the possibility of paying bail in the amount of PLN 15,000 given to him by the court on 1 December 1997.", "38. The applicant’s subsequent requests for release were dismissed on 12, 23 February and 3 March 1998. In its decision of 23 February 1998 the court observed that more time was required in order to assess new evidence submitted by the applicant and that there was a serious threat that the applicant might obstruct and prolong the proceedings. In its decision of 3 March 1998 the court referred to the reasoning of the previous decisions.", "39. Further hearings were held on 25 and 16 May 1998. At the latter hearing the applicant again requested to be released on bail in the amount of 15,000 PLN. The court dismissed this request at the same date. The applicant’s subsequent request for release of 5 June 1998 was dismissed on 19 June 1998.", "40. The last hearing in the case was held on 26 June 1998. On the latter date the court decided to release the applicant. On 29 June 1998 the court delivered judgment in the case and sentenced the applicant to six and a half years imprisonment." ]

[ 2 ]

[ "4. The applicants were born in 1955 and 1931 respectively, and live in Prešov.", "5. On 28 May 1992 the applicants requested the Prague Regional Commercial Court (krajský obchodní soud) to order a private company to cease using their patent illegally, and to pay them compensation for it. On 15 June 1992 the court received their action.", "6. On 23 March 1994 the applicants were invited to pay the court fees.", "7. On 5 October and 16 November 1994 and 24 January 1995, the court held hearings.", "8. In the meantime, between 3 August and 10 November 1994, the parties to the proceedings, upon the court's request of 11 July 1994, had submitted their respective observations and comments concerning the merits of the case.", "9. On 30 January 1995 the court received the applicants' patent certificate (patentová listina), issued by the Office of Industrial Intellectual Property (Úřad průmyslového vlastnictví) (hereinafter the “OIP”) on 9 January 1995.", "10. On 10 June and 9 October 1996 respectively, the applicants, upon the court's requests of 16 May and 1 October 1996, specified the product allegedly violating their patent. The specifications were received by the court on 14 June and 14 October 1996 respectively.", "11. On 15 October 1996 the court received the OIP's information that, on 11 November 1995, the patent in question had been partly quashed and that, on 15 December 1995, new proceedings before the OIP concerning the patent had commenced.", "12. On 22 October 1996 the court requested the defendant to submit documentation related to its product, specified by the applicants on 14 October 1996.", "13. On 18 December 1996 the applicants sent to the court a copy of the OIP's decision of 12 December 1996, confirming that the product manufactured by the defendant fell within the ambit of the applicants' patent.", "14. On 31 March 1998 the applicants sent to the court the OIP's decision and a decision of the OIP's President of 17 March 1998, dismissing the defendant's appeal against the OIP's decision of 12 December 1996.", "15. On 14 October 1999 the court adjourned the hearing scheduled for 19 November to 9 December 1999 due to the judge's illness.", "16. On 18 November 1999 the applicants specified their claim. On 25 November 1999 the court received the specifications.", "17. On 9 December 1999 the court held a hearing, at which the applicants again modified their action. The court requested them to specify the facts and to supplement their request for modification of the action of 18 November 1999. On 20 December 1999 the applicants specified their action.", "18. On 25 September 2000 the court fixed a hearing for 27 November 2000, at which it partly accepted the applicants' modification of their action.", "19. On 24 November 2000 the applicants specified their claim for damages.", "20. On 27 November 2000 the court held a hearing, at which the applicants again requested modification of their action, which the court granted.", "21. On 26 February 2001 the court held a hearing, at which it stayed the proceedings pending the\n outcome of proceedings before the OIP concerning the defendant's request to annul the patent.", "22. On 28 February and 28 August 2001 respectively, the court requested the OIP to inform it about the progress of the proceedings, which the latter did on 4 September 2001. On 10 January 2002 the court received the decision of the OIP's President of 9 January 2002, dismissing the defendant's appeal of 25 June 2001, against which the defendant had appealed to the High Court (Vrchní soud).", "23. On 17 April 2002 the court stayed the proceedings pending the High Court's decision. Upon the applicants' appeal of 24 May 2002, supplemented on 29 May 2002, and after the case file had been submitted to the High Court on 6 June 2002, the latter modified the court's decision on 8 August 2002 so that the proceedings could be continued. On 13 August 2002 the case file was remitted to the Municipal Court.", "24. On 15 November 2002, after having held a hearing on 6 November 2002, the Municipal Court partly granted the applicants' action.", "25. On 2 October 2003 and 31 March 2004 respectively, the High Court and Supreme Court (Nejvyšší soud) upheld the judgment." ]

[ 3 ]

[ "7. The applicant was born in 1960 and lives in Adana.", "8. At the time of the events, the applicant was a member of the Peoples’ Democracy Party (Halkın Demokrasi Partisi, hereinafter “HADEP”).", "9. On 26 June 1994 the applicant made a speech during HADEP’s first annual congress. According to the text of the speech, transcribed by three police officers on 30 June 1994, he stated the following:\n“Dear Chairman, dear delegates and dear guests, I welcome you all. We are holding this first congress of our party at a time when extraordinary circumstances are affecting the Kurdish nation and the Turkish proletariat. Our historical duties and obligations are ever more important at this time. At around this time last year most of us present had gathered at DEP’s first congress. The attacks against us and against our people were at their peak. The imperialist savagery aimed at our nation and our country had been continuing before the eyes of the world. When we were talking that day, we underlined what policies our democracy should follow in the light of the developments which were taking place. Important social and political developments have taken place since then. It was happening so fast that before we had a chance to think and analyse what was going on, new developments were taking place. These developments have proved us right. Without repeating what we said one year ago, I would like to remind you of the following: the biggest hurdle for the democratisation of Turkey is the existence of the problem of Kurdistan. The reality is that Kurdistan is a colony. It is not possible for Turkey to be a democracy without solving the status of Kurdistan. The precondition for democracy to be established is to defend and to support the Kurdish nation’s right to self-determination. Therefore, any means employed by the Kurdish nation in order to exercise this right in a free atmosphere is legal and justified.\nAs we have said before, it is impossible not to collide with all the legal constraints and formalities imposed by the Republic of Turkey. This is because the existing legal system of the Republic of Turkey is formulated in such a way as to make the colonisation of Kurdistan lawful. For us, on the other hand, it is not what is lawful that should be the starting point in our struggle, but what is legal.\nWhat Kurds mean to the [Turkish] Parliament has been evident in the practice of the last seventy years. To the world at large, the presence of the Kurdish parliamentarians in Parliament has always been interpreted as evidence that Parliament represents the political will of both the Turkish nation and the Kurdish nation. When, therefore, Parliament is presented as a legal entity, the imperialist terror imposed on Kurdistan has become lawful. The fact is, however, that for the Kurds this Parliament has done nothing other than legislate laws sending Kurds into exile, sentencing them to death, assimilating them, adopting the Takriri Sükun Act[1] and creating emergency regions and declaring martial law.\nUnfortunately, these realities have not been adequately dealt with during the time of DEP. This last year has shown us just how right we were in our conclusions. The imperialist violence has increased day by day and a large number of settlements has been evacuated and destroyed and hundreds of thousands of people have been forced to flee. Hundreds of people have become martyrs. Thousands have been injured. Tens of thousands of our people have been detained and tortured. On the one hand, the poor people have been made to bear the cost of this unjustified imperialist war and, on the other hand, the masses in the metropolitan areas have been indoctrinated by chauvinistic propaganda. But, despite all this, people have not been made to take action. No resistance was created. Backward steps have been taken instead of resisting the embargoes and seizures created by the imperialist terror. The people were not shown a target. People have been isolated. But all this did not help anyone. Parliamentarians, party members and chairmen have been killed. The Parliament of the Turkish Republic, which was called upon to help, has kicked six parliamentarians out. They were arrested. Subsequently, DEP was closed down and its remaining parliamentarians were kicked out of Parliament. Despite these failures of the politicians in the legal arena, the Kurdish nation continued its struggle for freedom with decisiveness and self-sacrifice.\nUnfortunately, the Kurdish nation has been deprived of any active support it expected from us. No doubt, our friends’ understanding of the legal struggle has played a big role in this. This has resulted in the disintegration of different struggles. Different struggling parties were then alienated from each other. As a result, and as planned by the Turkish Republic, these different struggling parties became inactive. Unfortunately, this social resistance did not fit into our party colleagues’ understanding of legality. In order to make it fit we have to make the Kurdish nation a nation of slaves. Members of the Kurdish nation have never accepted and will never accept slavery.\nWhat is expected from us is very obvious. Firstly, the rights of these oppressed people who want to govern themselves must be recognised without any question. Secondly, and as part of our democratic characteristics, we have to carry out our duties. We cannot escape from this historical obligation. Running away and taking backward steps will not result in anything other than our surrender. The prevailing circumstances have shown us once again that making attempts at reconciliation and doing nothing else will not help us to overcome our existing problems. We will not get anywhere by repeating our mistakes.\nTherefore HADEP should, in accordance with its historical mission, put into action policies which would direct the peoples’ anger at heightened resistance. A party programme which does not correspond to our problems, which does not contain solutions and which is confined to legal boundaries is bound to be unsuccessful. ...”", "10. At this point the applicant was stopped by the chairman of the congress from continuing his speech. He was rebuked for criticising the Party’s constitution.", "11. On 31 January 1996 the public prosecutor at the Ankara State Security Court filed an indictment in which he accused the applicant of disseminating propaganda against the indivisible integrity of the State, an offence under Article 8 of the Prevention of Terrorism Act.", "12. The applicant was kept in detention on remand between 14 November 1996 and 16 December 1996.", "13. At a hearing which took place on 16 December 1996 before the Ankara State Security Court, the applicant’s lawyer did not deny that his client had used words such as “Kurdish” and “Kurdistan” in his speech. However, he maintained that, taken as a whole, the speech had not disseminated propaganda against the indivisible integrity of the State. The lawyer further referred to his client’s right to freedom of speech, guaranteed by Article 10 of the Convention, and requested the court to acquit his client.", "14. On 22 January 1997 the Ankara State Security Court, which was composed of three judges including a military judge, found the applicant guilty of an offence under Article 8 § 1 of the Prevention of Terrorism Act, and sentenced him to one year’s imprisonment and a fine. It concluded, in particular, that the applicant, by stating that any means employed by the Kurdish nation in order to exercise its right to self determination were justified, had disseminated propaganda against the indivisible integrity of the State.", "15. The applicant appealed against the judgment. In his appeal, the applicant stated that he had made his speech during a party political meeting, and that he had merely conveyed opinions about the economic and social improvement of the country, doing so in the exercise of his right to freedom of expression.", "16. The Chief Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the applicant’s appeal. The opinion was not notified to the applicant.", "17. On 1 March 1999 the Court of Cassation upheld the judgment of the Ankara State Security Court, finding that the applicant’s grounds of appeal were unfounded.", "18. On 21 December 2000 Law No. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated. Accordingly, on 12 February 2001 the Ankara State Security Court decided to defer the applicant’s sentence. As a result, the applicant did not pay the fine or serve his prison sentence." ]

[ 6, 3 ]

[ "7. The applicant was born in 1950 and lives in Järvenpää.", "8. On 11 October 1993 the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) interrogated the applicant as a suspect in the offence of aiding and abetting an aggravated embezzlement. The pre-trial investigation was concluded on 15 December 1993 and the file was transmitted to the public prosecutor on 17 December 1993.", "9. The indictment was served on the applicant on 14 March 1996. On 9 September 1996 criminal proceedings were instituted against him and three other defendants before the District Court (käräjäoikeus, tingsrätt) of Tuusula. The prosecutor charged two of them with aggravated embezzlement and the applicant and another co-defendant with aiding and abetting the said offence between 9 June and 22 August 1989. The complainant, now a limited liability company to which the ownership of a bank group had been transferred, joined the proceedings and presented an accessory claim for damages and legal costs. All defendants denied the charges.", "10. On 10 September 1996 the prosecutor requested an adjournment in order to present further evidence. The case was adjourned until 21 November 1996, when seven prosecution witnesses gave evidence. The case was then adjourned until 30 January 1997 so as to enable the prosecutor to call additional witnesses. At that third hearing the District Court heard evidence from three further prosecution witnesses.", "11. At the fourth hearing on 21 March 1997 a witness called by one of the defendants gave evidence. The prosecutor and one of the defendants requested a further adjournment which was granted.", "12. At the fifth hearing on 23 May 1997 the District Court took evidence from a prosecution witness and three defence witnesses. At the request of one of the defendants the case was adjourned.", "13. At the sixth hearing on 27 June 1997 the District Court heard two further defence witnesses. One of the defendants asked for a further adjournment in order to present additional evidence.", "14. At the seventh hearing on 15 August 1997 a further defence witness gave evidence. At the request of two of the defendants the case was adjourned.", "15. At the eighth hearing on 26 September 1997 two defence witnesses gave evidence. The applicant requested an immediate dismissal of the charge against him, arguing that it was not detailed enough and did not describe the essential elements of the offence he had been charged with. On the District Court’s refusal, he asked that the proceedings be suspended in anticipation of the outcome of his appeal to the Court of Appeal (hovioikeus, hovrätt) of Helsinki in a related matter. The District Court refused this request as well but adjourned the case in order to allow the parties to submit their closing arguments.", "16. At the ninth hearing on 13 November 1997 the applicant requested that the complainant be ordered to reimburse his legal costs.", "17. In its judgment of 13 November 1997 the District Court acquitted all defendants and dismissed the complainant’s accessory claim for damages. Noting that the complainant had merely joined the proceedings brought by the public prosecutor, the court also dismissed the applicant’s claim that the complainant be ordered to reimburse his legal costs.", "18. The prosecutor, the complainant, the applicant and a co-defendant appealed to the Court of Appeal which rejected their appeals on 31 December 1998.", "19. The applicant’s acquittal acquired legal force on 2 March 1999, when the prosecutor’s and the complainant’s deadline for seeking leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) expired. The applicant and a co-defendant sought similar leave to appeal against the Court of Appeal’s refusal of their costs claim. Such leave was refused on 28 September 1999." ]

[ 3 ]

[ "4. The applicant was born in 1949 and lives in Siirt.", "5. On 20 December 1990 the General Directorate of National Roads and Highways expropriated three plots of land belonging to the applicant.A committee of experts assessed the value of the plots of land and the relevant amount was paid to him.", "6. Following the applicant's request for increased compensation, on 8 September 1998 the Baykan Civil Court of First-instance awarded him additional compensation of 114,180,000 Turkish liras (TRL)[1], plus interest at the statutory rate applicable at the date of the court's decision. In order to calculate the amount of increased compensation, the court consulted several experts.", "7. The General Directorate of National Roads and Highways appealed against the judgment of 8 September 1998.", "8. On 19 October 1998 the Court of Cassation upheld the judgment.", "9. According to the order of the General Directorate of National Roads and Highways, the amount of TRL 248,595,000[2] was paid to the applicant on 22 December 1998. The applicant claimed that he was paid on 4 January 1999." ]

[ 9 ]

[ "4. The applicant was born in 1937 and lives in Istanbul.", "5. In 1996 the National Water Board (Devlet Su İşleri) expropriated a part of the applicant’s plot of land. A committee of experts assessed the value of the plot of land and the relevant amount was paid to her.", "6. Following the applicant’s request for increased compensation, on 14 July 1997 the Bursa Civil Court of First-instance awarded her additional compensation plus interest at the statutory rate.", "7. On 14 October 1997 the Court of Cassation held a hearing and quashed the judgment of the First-instance court.", "8. On 27 April 1998 the Bursa Civil Court of First-instance awarded the applicant additional compensation of 3,591,690,496 Turkish liras (TRL)[1] plus interest at the statutory rate, running from 29 August 1996, applicable at the date of the court’s decision.", "9. On 7 July 1998 the Court of Cassation held a hearing and upheld the judgment of the Bursa Civil Court of First-instance.", "10. On 6 October 1998 the Court of Cassation dismissed the applicant’s request for rectification.", "11. On 29 December 1998 the National Water Board paid TRL 7,101,232,000[2] to the applicant." ]

[ 9 ]

[ "9. The applicant, a Turkish citizen of Kurdish origin, was born in 1940 and lives in the town of Cizre, in south-east Turkey.", "10. The facts surrounding the death of the applicant's son, Mesut Dündar, are disputed by the parties.", "11. The facts as presented by the applicant are set out in Section B below (see paragraphs 12-23). The Government's submissions concerning the facts are summarised in Section C below (see paragraphs 24-35). Documentary evidence submitted by the Government is summarised in Section D (see paragraphs 36-57 below).", "12. The applicant's son Mesut Dündar was born in 1972. When he was a child Mesut Dündar suffered from meningitis. The applicant was unable to have him treated and he remained mentally disabled.", "13. Mesut Dündar was always interested in Kurdish national music, poetry and colours and on many occasions used to walk in front of the crowd on Kurdish national holidays, carrying the Kurdish colours; yellow, red and green.", "14. These activities of Mesut Dündar attracted the attention of the police, who took to following him and, on occasions, raided his family home. Mesut Dündar was taken into custody three times, and on each such occasion he was beaten and tortured by the police.", "15. In about July 1992, police officers from Cizre Police Headquarters raided the applicant's home and told the applicant that they had come to take Mesut Dündar to Elazığ Psychiatric Hospital for treatment. They took the applicant and Mesut Dündar to the Police Headquarters. Mesut Dündar was terrified that he would be killed in the hospital and jumped out of a window and escaped.", "16. Thereupon the police officers took the applicant around Cizre town centre and neighbouring villages for three days, during which they unsuccessfully looked for Mesut Dündar. The police officers beat the applicant and threatened him by saying that they would kill him if he did not find his son and hand him over to the police. The applicant was released at the end of the third day, only after having promised the police officers that if he saw his son he would bring him in himself.", "17. Mesut Dündar did not return home because of his fear of the police. He stayed with friends and telephoned the applicant's house every day in order to speak to his mother. The police often visited the applicant's house to ask about Mesut Dündar's whereabouts.", "18. After some time, Mesut Dündar no longer telephoned and the police no longer came to the applicant's home. The applicant therefore began to suspect that the police had caught Mesut Dündar.", "19. On 6 September 1992 Mesut Dündar's strangled body was found near the Şeyh Değirmenci watermill, near the Sulak village. A report of an interview with four women from Sulak, who had been taking yoghurt to the market in Cizre in the early hours of that day, and another person, was published in Özgür Gündem newspaper on 19 November 1992. According to this interview, four armed persons, one of whom was thought to be a police officer, had strangled Mesut Dündar while his arms were tied behind his back. Soldiers, who had come to the place where Mesut Dündar had been strangled following the killing, had dragged his body behind an armoured personnel carrier, claiming that they were doing so because they thought there might be a booby-trap under the body.", "20. The applicant's family heard at a later stage that Mesut Dündar's corpse was at the hospital. A member of the family went to the hospital where the body was handed over to him. The whole of Mesut Dündar's ribcage, throat and neck were covered in bruises. His face and eyes were dirty with mud and there were red spots and bruises in 34 places on his neck.", "21. The police took a statement from the applicant, asking him, “Who could have killed your son? Who do you suspect? Did you have any enemies?” Mesut Dündar's possessions were then handed over to the applicant.", "22. The applicant contacted the Prosecutor and asked him what had happened to his son. The Prosecutor told him that Mesut Dündar had been strangled. He did not take any statements from the applicant, nor did he ask the applicant whether he wished to start legal proceedings.", "23. On 13 September 1994 the applicant and his family lodged a petition with the Cizre Prosecutor to find out whether there was an on-going investigation and what stage it had reached. The prosecutor had been friendly until the applicant mentioned the case of Mesut Dündar. The applicant was told by the Prosecutor's clerk that the case was closed. The applicant later discovered that the investigation was continuing.", "24. The authorities were informed about the killing when the headman (muhtar) of the Sulak village approached the Gendarme Headquarters on 7 September 1992 and reported that he had seen a body at the road intersection of his village.", "25. In his testimony of 18 October 1992, the muhtar stated that, after he had informed the gendarmerie, the Prosecutor and a number of gendarmes had arrived at the scene. The Prosecutor had warned those present that the body could be booby-trapped and a decision was taken to trail the body for a short distance with a rope attached to an armoured vehicle. When it was clear that the body had not been booby-trapped, the Prosecutor and the doctor carried out an in situ examination of the body. The body was then taken to Cizre by car.", "26. On 8 September 1992 the Gendarme Headquarters forwarded their reports of the incident, together with a sketch showing the position of the body where it was found, to the Prosecutor's office in Cizre. The Gendarmerie Headquarters informed the Prosecutor that the identity of the person(s) who had strangled the victim was not known.", "27. A criminal investigation was opened immediately by the Cizre Prosecutor. The Prosecutor instructed the Cizre Gendarmerie Headquarters on 10 September 1992 to carry out a comprehensive investigation and to keep him informed on a regular basis about this investigation.", "28. On 7 September 1992 the Prosecutor took a statement from the applicant. He told the Prosecutor that his son had been mentally ill and beyond his control. He further said that he had no complaints against anyone.", "29. The Cizre Gendarmerie Headquarters informed the Cizre Prosecutor on 14 November and 14 December 1992 and 24 February and 30 May 1993 that the investigation was still continuing and that there had not been any developments.", "30. On 7 December 1993 the Prosecutor instructed the Cizre Gendarmerie Headquarters to up-date him every three months. On 31 May 1994 the Prosecutor instructed the Cizre Gendarmerie Headquarters to continue the investigation until the expiry of the statutory limitation period.", "31. The Cizre Gendarmerie Headquarters regularly continued to inform the Prosecutor that there had been no developments in the investigation.", "32. On 19 February 1996 the Mayor of Şırnak informed the Gendarmerie Headquarters in Ankara that the allegation that Mesut Dündar had been taken into custody prior to his death was baseless. In support of his submissions, the Mayor enclosed copies of the custody ledgers in which Mesut Dündar's name did not feature.", "33. The Cizre Prosecutor informed the Ministry of Justice that the allegation that the applicant had not been given any information by his office was baseless.", "34. According to an indictment filed by the Midyat Prosecutor with the Midyat Assize Court on 11 December 1989, a certain T.M. and the applicant's deceased son, Mesut Dündar, had raped a nine-year old boy in breach of Article 414 of the Criminal Code. As a result, Mesut Dündar had been arrested on 1 December 1989.", "35. On the basis of a report prepared by the Forensic Medicine Directorate on 25 October 1991, which stated that Mesut Dündar was seriously, mentally impaired, the trial court held that Mesut Dündar could not be held criminally responsible for his actions. On 17 December 1991 the trial court ordered Mesut Dündar to be detained in a mental institution for a minimum period of one year. The decision became final on 27 May 1992 and was forwarded to the office for the execution of judgments on 22 June 1992. This had been the reason for police officers' visit to the applicant's house in July 1992 - to take Mesut Dündar to the Elazığ Psychiatric Hospital.", "36. The following information appears from the documents submitted by the Government.", "37. On 11 December 1989 the Midyat Prosecutor filed an indictment with the Midyat Assize Court in which Mesut Dündar was charged with the rape of a nine year old boy on 29 November 1989.", "38. Pursuant to a request made by the Miday Assize Court, the Forensic Medicine Directorate examined Mesut Dündar on 16 October 1991. The Forensic Medicine Directorate concluded in their report, drawn up on 25 November 1991, that Mesut Dündar was an imbecile and therefore he did not have criminal culpability. The report recommended the detention of Mesut Dündar in a mental institution.", "39. On 17 December 1991 the Midyat Assize Court established that Mesut Dündar and a certain T.M. had raped the nine-year old child. Taking into account the report of the Forensic Medicine Directorate, the Assize Court ordered Mesut Dündar's detention in a mental institution for a minimum period of one year, during which time he would receive psychiatric treatment. This judgment became final on 27 May 1992, following the rejection by the Court of Cassation of the appeal lodged by T.M.", "40. On 8 September 1992, the Cizre Prosecutor and a doctor carried out an in situ examination of Mesut Dündar's body at a location near the Sulak village, approximately 7 kilometres from the town of Cizre. They recorded their findings. According to their report, the body had been trailed with a rope in case there had been a booby-trap under it. After it had been established that it was safe, the body had been searched and a PKK flag found in one of the pockets.", "41. The cause of death was established by the doctor as asphyxiation, caused by strangulation. Rigor mortis and post mortem hypostasis had set in. The cause of death having been thus established, the doctor decided that a full autopsy was not necessary. The Prosecutor issued a burial license.", "42. Also on 7 September 1992 the Cizre Prosecutor questioned the applicant. He told the prosecutor that his son had been mentally ill and beyond his control. The applicant did not have any complaint against anyone for the murder of his son.", "43. According to a report which was prepared by the deputy commander of the Cizre District Gendarmerie Headquarters on 8 September 1992 and forwarded to the Prosecutor's office in Cizre, it had been established that Mesut Dündar had been strangled elsewhere and his body dumped at the place where it was found.", "44. On 10 September 1992 the Cizre prosecutor instructed the Cizre Gendarmerie Headquarters to carry out a “secret and a proper search” for the perpetrator(s) of the murder. The Prosecutor also asked to be kept informed regularly about the investigation.", "45. On 14 September 1992 the Cizre Prosecutor summonsed the applicant and his son Esvet Dündar to his office.", "46. According to a report drawn up by three gendarme soldiers on 13 November 1992, “the perpetrator(s) of the murder of Mesut Dündar had been secretly and properly searched for by the soldiers but could not be found. The office of the Prosecutor would be informed once the perpetrator(s) were found”.", "47. Between 19 February 1993 and 15 February 1996, the Cizre Prosecutor repeated his above mentioned instructions to the Cizre Gendarmerie Headquarters (paragraph 44) and asked the Gendarmerie to continue to inform his office every three months of any developments until the expiry of the statutory limitation period on 7 September 2007.", "48. Gendarmes from the Cizre Gendarmerie Headquarters drew up identical reports on 29 May 1993, 18 April and 18 May 1994, 28 March, 3 June and 18 June 1995, and finally on 19 June 1995. These reports were forwarded to the Cizre Prosecutor.", "49. According to a report, drawn up by gendarmes on 5 January 1996, it had been established that Mesut Dündar had been killed by members of the PKK who had then left the PKK flag in the deceased's pocket.", "50. On 18 February 1996 the gendarmerie informed the Prosecutor that they were unable to find any person who knew the identity of the perpetrators.", "51. On 18 March 1996 the Cizre Prosecutor summonsed the applicant and two of his relatives to his office.", "52. On 19 March 1996 the Cizre Prosecutor sent a letter to the Ministry of Justice's International Law and Foreign Affairs Directorate (hereinafter “the Directorate”) in which he stated that the investigation into the murder was continuing and that his office was being kept informed every month by the gendarmerie. The applicant had not informed the Prosecutor's office of his allegations, namely that his son had been detained at the police headquarters and that his son had subsequently escaped, or that four female villagers had seen four armed men strangling Mesut Dündar. The Prosecutor had not, therefore, taken these allegations into account in his investigation. He would, however, from that moment on.", "53. On 12 April 1996 a statement was taken from the applicant by the Cizre Prosecutor. The applicant confirmed the accuracy of the contents of the statement he had made on 7 September 1992 (see paragraph 42 above) and further stated that his son had been arrested by police who had wanted to take him to a psychiatric hospital. However, his son had managed to escape from the window of the police station. The applicant and police officers had unsuccessfully searched for him for three days. Mesut Dündar had never returned since that date. The applicant had been told by a number of children that they had seen Mesut Dündar. Police officers had also visited his home and looked for Mesut Dündar. Following the discovery of the body of his son, the applicant had been told by a number of people that four women from the Sulak village had seen his son while he was being beaten up by four people. The women did not know whether the four men had been police officers. The reason why the applicant suspected that the police were responsible for the murder of his son was because the police officers had insisted on finding Mesut Dündar following his escape from the police station and had repeatedly come to his house to find Mesut Dündar.", "54. On 17 and 19 April 1996 the Cizre Prosecutor questioned Esvet and Abdulaziz Dündar, the brothers of Mesut Dündar. Both brothers gave similar statements to that of their father.", "55. On 19 April 1996 the Cizre Prosecutor asked the Cizre Gendarmerie Headquarters to find the four women who, according to the applicant, had witnessed the strangulation of Mesut Dündar.", "56. On 20 May and 26 June 1996 the deputy commander of the Cizre Gendarmerie Headquarters informed the Cizre Prosecutor that none of the villagers in Sulak had witnessed the strangulation of Mesut Dündar.", "57. The gendarmerie continued to draw up similar reports until 1999 which were then forwarded to the Cizre Prosecutor." ]

[ 0 ]

[ "8. The applicant was born in 1979 and lives in Istanbul.", "9. On 6 February 1999 the applicant was arrested and taken into police custody by police officers from the Anti-Terror Branch of the Istanbul Security Directorate on suspicion of his membership of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan).", "10. On the same day the public prosecutor granted the request of the Anti-Terror Branch to place the applicant in police custody for four days at the Anti-Terror Branch of the Istanbul Security Directorate.", "11. On 10 February 1999 the Istanbul State Security Court extended the custody period for a further two days.", "12. On 10 February 1999 the applicant was taken to Haseki Hospital, where he was issued with a medical report. In the report ‘surface erythema and scrapes on the proximal part of both arms’ were noted. On the same day the applicant was allegedly forced to sign a statement explaining that the bruises on his arms had been caused by a dust allergy.", "13. On 12 February 1999 the applicant was brought before the public prosecutor of the Istanbul State Security Court and then before a judge at the Istanbul State Security Court, where he stated that he had been subjected to physical and emotional violence. The court ordered the applicant’s detention on remand.", "14. On the same day, a doctor at the Forensic Medical Institute of the Istanbul State Security Court examined the applicant and reported bruises of 30‑40 cm x 7-8 cm on both upper arms and an ecchymose under his left arm joint, as well as a complaint of backache. In the report, it was also noted that the signs of physical violence were sufficient to prevent the applicant from working for three days.", "15. On 16 February 1999 the public prosecutor of the Istanbul State Security Court filed a bill of indictment, charging the applicant with the criminal offence of being a member of an illegal organisation described in Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).", "16. At the first hearing of 27 April 1999 the applicant repeated his allegation of ill-treatment before the Istanbul State Security Court. He also requested an allergy test and an examination of his signature. The court rejected his requests.", "17. On 13 August 1999 the applicant was able to consult a dermatologist, who examined the applicant and found no indication of any allergies.", "18. On 29 April 1999 the public prosecutor filed an indictment with the Istanbul Assize Court, charging the two police officers whose signatures were on the applicant’s statement made in custody with a criminal offence proscribed by Article 243 of the Criminal Code. In his indictment the public prosecutor cited the two medical reports drawn up in respect of the applicant, which mentioned the bruises on his arms.", "19. On 3 May 1999 the Assize Court ordered that a letter be sent to the applicant inviting him to take part in the proceedings.", "20. At the hearings on 23 June and 23 September 1999, the court issued bench warrants for the applicant in order to consider his testimony as a witness. The responses to these warrants from the local authorities revealed that the applicant was detained in Üsküdar E Type Prison.", "21. At the hearings on 30 November and 14 December 1999, the court ordered that written notifications be sent to Üsküdar Prison in order to secure the presence of the applicant before the court.", "22. The prison administration informed the court that the applicant had refused to attend the hearings and provided letters to this effect. These documents did not bear the applicant’s signature.", "23. On 30 December 1999 the Assize Court heard the defendant police officers. It took note of the documents sent by the prison administration, and subsequently dispensed with the applicant’s testimony on the grounds that the applicant had chosen not to attend the hearing, and that taking his testimony would not affect the verdict. The court further stated that the applicant had not brought a specific complaint regarding his allegations; the criminal proceedings were instituted by the public prosecutor on his own initiative based upon the information he had obtained from the State Security Court. It took note of the applicant’s previous statements and acquitted the police officers of the offence on account of a lack of evidence.", "24. On 8 May 2000 the applicant filed another complaint with the Fatih Public Prosecutor’s Office against the same police officers.", "25. On 9 May 2000 the Public Prosecutor’s Office issued a decision of non-prosecution, referring to the trial that had already been held before the Istanbul Assize Court." ]

[ 1 ]

[ "4. The applicant was born in 1960 and lives in the city of Lysychansk, the Lugansk region, Ukraine.", "5. By two separate decisions of 7 July 1999, the labour disputes commission ordered the Pryvolnyanska State Mine (the “Mine”) to pay the applicant UAH 1,418.27 (around 236 euros – “EUR”) in salary arrears.", "6. In August 1998 the Lysychansk City Bailiffs’ Service instituted enforcement proceedings in respect of the above decision.", "7. On 2 January 2001 the Lugansk Regional Arbitration Court initiated bankruptcy proceedings against the Mine.", "8. On 15 February 2002 the Lysychansk City Court ordered the Mine to pay the applicant UAH 2,931.63 (around EUR 488) in salary arrears.", "9. On 11 April 2002 the Bailiffs’ Services instituted enforcement proceedings in respect of the decision of 15 February 2002.", "10. According to the Government, on 28 November 2003 the sum of UAH 4,259.90 was transferred to the applicant’s bank account.", "11. According to the applicant, he was not paid all the amounts awarded by the decisions at issue, the outstanding debt being UAH 42.60 (around EUR 7).", "12. On 1 December 2003 the Bailiffs’ Service discontinued the enforcement proceedings in respect of the decisions of 7 July 1999 and 15 February 2002 on the ground that these decisions had been enforced in full.", "13. The applicant did not challenge the Bailiffs’ decision of 1 December 2003 before the domestic courts." ]

[ 3 ]

[ "4. The applicants were born in 1960 and 1967 respectively and live in Diyarbakır.", "5. On 16 November 1993 the applicant was taken into custody by the security forces at the Sağırsu Gendarmerie Command.", "6. In a report drafted by the gendarmes and signed by the applicant on the same day, it was stated that he was taken into custody on the basis of information contained in a document found on a PKK[1] terrorist.", "7. In his statement taken by the gendarmes on 30 November 1993 the applicant confessed in detail to his involvement in the activities of the PKK.", "8. On 1 December 1993 the applicant and five others were examined by a doctor at the Siirt Forensic Department, who concluded there were no traces of blows on their bodies.", "9. Later on the same day, the applicant was first brought before the Siirt Public Prosecutor then before the judge at the Siirt Magistrates Court where he refuted his statements dated 30 November 1993 and he contested his involvement in the activities of the PKK. He confessed to having possessed a Kalashnikov rifle without a permit. The court ordered his detention on remand.", "10. In his petition dated 2 December 1993 filed with the Siirt Assize Court, the applicant alleged that he had been severely tortured for eighteen days while in police custody. He stated that he had been told to strip, blindfolded, severely beaten and strung up by his arms. Moreover, he objected to the court’s decision to detain him on remand.", "11. On an unspecified date the Siirt Public Prosecutor issued a decision of non-jurisdiction as the charges against the applicant fell within the competence of the State Security Courts.", "12. On 21 December 1993 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicant with engaging in acts aimed at the separation of a part of the territory of the State, under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.", "13. At the hearing held on 24 February 1994, the applicant denied the allegations against him and claimed that he had been forced to sign the statements drafted in police custody. The court refused the applicant’s request for release pending trial, in view of the state of the evidence and the nature of the offence of which he was accused. It further decided to join the applicant’s case to the second applicant’s case, as they raised similar issues.", "14. On 24 October 1993 the applicant was taken into custody by the security forces at the Siirt Gendarmerie Command. According to the arrest report drafted by the gendarmes and signed by the applicant, he was taken into custody in the village of Koçlu in the course of an investigation concerning the PKK.", "15. On 26 October 1993 the applicant took the police officers of the Prevention of Terrorism Department of the Siirt Security Directorate to where he was hiding weaponry, namely a Kalashnikov rifle, a hand grenade and bullets. The police officers later drafted an on-site inspection report, describing the location of the hideout and the weapons found there.", "16. In his statement taken by the gendarmes on 3 November 1993, the applicant confessed in detail to his involvement in the activities of the PKK.", "17. On 5 November 1993 the applicant and six other suspects were taken to the Siirt Forensic Department for an examination. According to the medical report drafted on the same date, no traces of blows were found on the applicant’s body.", "18. On the same day, the applicant was brought before the Siirt Public Prosecutor where he accepted having possessed a rifle, a hand grenade and bullets, but denied having participated in the activities of the PKK. Later he was brought before the Siirt Magistrates Court where he reiterated that he had no involvement in the activities of the PKK. The court ordered his detention on remand.", "19. In a petition dated 30 November 1993 filed with the Siirt Assize Court, the applicant refuted all the charges brought against him and requested to be released. He alleged that while he was held in police custody, he had had to accept all the allegations against him as he had been severely tortured. Moreover, he maintained that, as the police officers had threatened him, he was afraid to complain about these acts before the public prosecutor and the judge at the criminal court.", "20. On an unspecified date, the Siirt Public Prosecutor issued a decision of lack of jurisdiction as the charges against the applicant fell within the competence of the State Security Courts.", "21. On 6 December 1993 the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court, accusing the applicant and six others of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.", "22. On 24 March 1994, upon the request of the judge at the Diyarbakır State Security Court, the Siirt Assize Court took the statements of eight police officers from the Prevention of Terrorism Department of the Siirt Security Directorate, who had questioned the second applicant and had drafted the on-site inspection report. The police officers described the course of events during the on-site inspection. They also maintained that no pressure had been inflicted on the accused.", "23. At the hearing of 29 March 1994, the applicants were not present before the Diyarbakır State Security Court. It therefore issued summonses to them for the next hearing, scheduled for 10 May 1994. The court requested that a ballistic examination be carried out by the Diyarbakır Forensic Institute concerning the rifle found in the possession of the second applicant. It continued the applicants’ remand in custody pending trial, but released four other accused persons.", "24. At the hearing of 10 May 1994, some of the accused, including the applicants, were present in court. The statements of the police officers who had signed the on-site inspection report were submitted to the court. The court also heard two defence witnesses and asked the accused for their comments. The lawyers of both applicants maintained that they did not have any comments to make concerning these statements. They also demanded the applicants’ release pending trial, contending that the accusations brought against them were unfounded. The court ordered the prolongation of their detention on remand considering the nature of the charges and the content of the case-file.", "25. At the nine subsequent hearings which were held between 10 May 1994 and 5 July 1995, the Diyarbakır State Security Court was unable to reach a decision as the relevant ballistic report had not been received. At each hearing, the court rejected the applicants’ requests for release pending trial, in view of the state of the evidence and the nature of the offence.", "26. On 25 September 1995 the court received the ballistic report. At the following hearing, held on 21 November 1995, the public prosecutor submitted his opinion on the merits. He proposed that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The court rejected once again the applicants’ request for release pending trial because of the serious nature of the charges and the state of the evidence.", "27. At the hearing of 5 December 1995, the Diyarbakır State Security Court was unable to give a final decision as the prison authorities had failed to bring the first applicant to court. On 26 December 1995 and 27 February 1996, the court rescheduled the hearing to a later date in order to obtain this applicant’s final statements.", "28. On 26 March 1996 the prison authorities again failed to bring the first applicant before the Diyarbakır State Security Court. His lawyer maintained that the applicant was absent against his will and requested the court to postpone the hearing in order to take his last statements. The second applicant repeated his previous statements. The court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the State. The court sentenced them to twelve years and six months’ imprisonment under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The decision was given in the absence of the first applicant.", "29. The applicants appealed against the decision of the Diyarbakır State Security Court.", "30. On 12 May 1997 the Court of Cassation quashed the decision on the ground that the Diyarbakır State Security Court did not respect the rights of defence during the proceedings. It emphasized in its decision that the court had convicted the first applicant in his absence, depriving him of his right to submit his final defence. It held that, due to the close connection between the accused, it was appropriate to quash the decision in favour of all the accused.", "31. On 1 July 1997 the Diyarbakır State Security Court served a summons on the applicants for the following hearing.", "32. On 27 August 1997 the court sent a notice to the Public Prosecutor to ascertain the prison in which the applicants were detained and the address of two of the accused who were released pending trial. Moreover, it requested the population registry office to confirm the apparent death of one of the accused.", "33. At the hearing of 7 October 1997 the court requested the transfer of the applicants, who were detained in Amasya and Bartın prisons, to the Diyarbakır Prison.", "34. On 18 November 1997 the court postponed the hearing once again as the applicants were still not present and the addresses of the other accused were not yet known to the court.", "35. On 27 January 1998 and 10 March 1998 the applicants were present before the court. They submitted their opinion concerning the decision of the Court of Cassation. However, as the other accused, who had been released pending trial, failed to appear, the court was once again unable to reach its final decision.", "36. The applicants did not attend the following nine hearings. According to the prison records it was their express wish to not to attend. Moreover during this period neither the office of the public prosecutor nor the population register office submitted to the court the requested information concerning the other accused.", "37. At the hearing of 6 April 1999, in the presence of only the applicants’ lawyers, the Diyarbakır State Security Court gave its final decision. It convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. It acquitted one of the accused and decided to sever the case concerning the others whose addresses were still unknown to the court.", "38. On 2 June 1999 the applicants appealed to the Court of Cassation. In their petition they maintained that, according to Article 135 (a) of the Code on Criminal Procedure, statements that are obtained using forbidden methods, such as torture, pressure or ill-treatment, cannot be taken into consideration by the court. They contended that they had signed their statements under pressure, without knowing their contents. They therefore requested the quashing of the State Security Court’s decision, arguing that it was mainly based on their statements taken in police custody.", "39. On 9 November 1999 the Court of Cassation upheld the decision of the first instance court." ]

[ 2, 3 ]

[ "4. The applicant was born in 1961 and lives in Turkey.", "5. On 23 May 1995 the applicant was taken into custody by police officers from the Antalya Security Directorate on suspicion of membership of an illegal organisation, the TDKP/GKB (Turkish Revolutionary Communist Party / Young Communist Union). He was subsequently taken to the Antalya Security Directorate Building, where he was interrogated. During his police interrogation the applicant signed a statement. He claims to have been subjected to pressure and ill-treatment when signing the document.", "6. On 28 May 1995 the applicant was brought before a judge who ordered his detention on remand.", "7. On 27 June 1995 the public prosecutor at the Izmir State Security Court filed an indictment charging the applicant under Article 168 § 2 of the Criminal Code with membership of the TDKP/GKB.", "8. On 18 April 1996 the Izmir State Security Court convicted the applicant as charged and sentenced him to 12 years and 6 months’ imprisonment. The court further debarred the applicant from working in the civil service.", "9. On 13 October 1997 the applicant appealed.", "10. On 2 February 1998 the Court of Cassation dismissed the applicant’s appeal upholding the Izmir State Security Court’s judgment. The decision of the Court of Cassation was pronounced in the absence of the applicant and his lawyer and it was not notified to them.", "11. On 26 February 1998 the decision of the Court of Cassation was deposited with the registry of the Izmir State Security Court.", "12. With a letter dated 23 June 2005, the applicant’s representative informed the Court that the applicant had been conditionally released from prison on 5 October 2004 after having served three quarters of his sentence." ]

[ 3 ]

[ "4. The applicant was born in 1971 and lives in the town of Pervomaisk, the Kharkiv region, Ukraine.", "5. In 1998 and 2001, respectively, the applicant instituted two sets of proceedings in the Pervomaisk Town Court against the Pervomaisk chemical factory “Khimprom” (the “PCFK”) – a State-owned enterprise – to recover unpaid salary. By decision of 2 November 1998, the court awarded the applicant UAH 2,974.79 (473 euros – “EUR”) in salary arrears and other payments. By another decision of 24 April 2001, the court awarded him UAH 2,307.11 (EUR 358) in salary arrears.", "6. On 9 July 2001 the Bailiffs’ Service informed the applicant that the judgments given in his favour were not executed due to a large number of enforcement proceedings against the debtor and that the procedure for the forced sale of assets belonging to the debtor was suspended due to the moratorium on the forced sale of property belonging to State enterprises introduced by the President.", "7. In July 2001 the applicant instituted proceedings in the Pervomaisk Town Court against the bailiff of the Pervomaisk Town Bailiffs’ Service for failure to enforce the judgments in his favour. On 5 September 2001 the court found against the applicant, finding no fault on the part of the bailiff.", "8. On 21 November 2001 and 8 April 2002, respectively, the Kharkiv Regional Court of Appeal and the Supreme Court of Ukraine upheld the judgment of the first-instance court.", "9. Between 4 September 2003 and 13 January 2004 the enforcement proceedings were suspended due to the initiation of bankruptcy proceedings against the PCFK.", "10. On 13 July 2004 the Bailiffs’ Service informed the applicant that he was number 44 on the creditors’ waiting list in respect of the enforcement of the judgment of 2 November 1998. He was also number 472-474 on the creditors’ waiting list in respect of the enforcement of the judgment of 24 April 2001.", "11. The judgments in the applicant’s favour remain unenforced." ]

[ 3 ]

[ "4. The applicant was born in 1948 and is currently serving a prison sentence at Penitentiary No. 8 in Zhytomyr (see in the latter respect Lupandin v. Ukraine (dec.), no. 70898/01, 7 October 2003).", "5. In September 1995 the applicant had a serious accident at work in the Petrovskaya Mining Company (a State-owned enterprise, hereafter the “PMC”).", "6. A year later, in September 1996, the PMC decided to pay the applicant a lump sum in compensation for the injury. However, no payment was made and in early 1997 the applicant sued the PMC for compensation for the industrial injury. On 20 March 1997 the Petrovsky District Court of Donetsk found for the applicant and awarded him UAH 16,445.74[1]. No appeal was lodged against the judgment and it became final ten days later, on 30 March 1997.", "7. On 10 April 1997 the Petrovsky District Bailiffs’ Service (hereafter “the Bailiffs’ Service”) instituted proceedings to enforce the judgment of 20 March 1997.", "8. On 20 March 2002 the Donetsk Regional Court of Arbitration instituted bankruptcy proceedings against the PMC and issued an injunction barring the debt recovery.", "9. On 18 April 2002 the Bailiffs’ Service stayed the execution proceedings against the Company pending the resolution of the bankruptcy case.", "10. In letters of 12 June and 15 and 25 October 2002 the Bailiffs’ Service informed the applicant that the enforcement proceedings were impeded by ongoing bankruptcy litigation and the entry into force of the 2001 Law on the Introduction of a Moratorium on the Forced Sale of Property which barred the attachment and sale of the Company’s capital assets.", "11. On 7 April 2003 the Donetsk Regional Commercial Court discontinued the bankruptcy proceedings against the PMC and, accordingly, the Bailiffs Service resumed the execution proceedings in the applicant’s case. However, it appears that the gradual enforcement of the judgment of 20 March 1997 continued even during the period when the proceedings were formally suspended, as by October 2003 (when the case was communicated to the Government for observations) the applicant had been paid a total of UAH 5,712.88[2] in several instalments, including UAH 100[3] on 30 October 2002 and UAH 200[4] on 6 February 2003.", "12. On 7 November and 1 December 2003 the applicant was repaid the remainder of the amount awarded by the judgment of 20 March 1997.", "13. On 15 December 2003 the Bailiffs’ Service terminated the enforcement proceedings as the judgment in the applicant’s favour had been enforced in full." ]

[ 3 ]

[ "4. The applicant was born in 1948 and lives in the city of Zhytomyr, Ukraine.", "5. On 28 January 2000 the applicant retired from his post in the Zhytomyr Regional Police Department (hereafter “the Police Department”). Having received no redundancy pay, to which he was entitled, the applicant instituted proceedings against the Police Department, seeking the recovery of the debt.", "6. On 7 November 2001 the Koroliovsky District Court of Zhytomyr awarded the applicant UAH 7,410[1] in redundancy pay arrears. On 12 March 2002, the Zhytomyr Regional Court of Appeal (hereafter “the Court of Appeal”), on the Police Department’s appeal, re-examined the case and upheld this judgment.", "7. On 19 March 2002 the Koroliovsky District Bailiffs’ Service (hereafter “the Bailiffs’ Service”) instituted enforcement proceedings in respect of the judgment of 7 November 2001 and joined the applicant’s case to other enforcement actions against the debtor.", "8. On 14 June 2002 the Bogunsky District Court of Zhytomyr rejected the applicant’s complaint about the bailiffs’ inactivity. The court stated that in October 2001, acting in the course of the enforcement proceedings to which the applicant’s case was subsequently joined, the Bailiffs’ Service levied the Police Department’s bank account, which revealed no funds suitable for attachment. The court found that no further actions regarding the Police Department’s account were possible in the absence of budgetary funds earmarked for such purposes. This judgment was upheld by the Court of Appeal on 26 August 2002 and by the Supreme Court on 13 January 2003.", "9. On 17 January 2004 the Koroliovsky District Court of Zhytomyr, on the Police Department’s request, temporarily suspended the enforcement proceedings. On 6 April 2004 the Court of Appeal quashed this decision as it was taken in the applicant’s absence and manifestly unfounded. On 14 May 2004 the Koroliovsky District Court of Zhytomyr ultimately rejected the Police Department’s request.", "10. On 23 September 2004 the Bailiffs’ Service terminated the enforcement proceedings as the judgment of 7 November 2001 had been enforced in full." ]

[ 3, 9 ]

[ "4. The applicants live in Izmir.", "5. On 7 June 1996 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants. A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place.", "6. Following the applicants’ request for increased compensation, on 22 June 1998 the Bornova Civil Court of First-instance awarded them additional compensation plus interest at the statutory rate.", "7. On 8 December 1998 the Court of Cassation quashed the judgment.", "8. On 27 July 1999 the Bornova Civil Court of First-instance awarded the applicants additional compensation plus interest at the statutory rate.", "9. On 12 October 1999 the Court of Cassation quashed the judgment.", "10. On 15 May 2000 the Bornova Civil Court of First-instance awarded the applicants additional compensation of 9,976,332,312 Turkish liras (TRL)[1] plus interest at the statutory rate applicable at the date of the court’s decision, running from 26 February 1998, the date on which the title deed to the land had been transferred to the General Directorate of National Roads and Highways in the land registry.", "11. On 11 September 2000 the Court of Cassation upheld the judgment.", "12. On 13 August 2001 the General Directorate of National Roads and Highways paid the applicants TRL 28,686,390,000[2]." ]

[ 9 ]

[ "5. The applicants were born in 1971 and 1975 respectively and live in Istanbul.", "6. On 11 March 1996 the Küçükyalı Police Station was informed that a poster with a bomb had been hung over the Küçükyalı Bridge. Following their arrival at the bridge, the police found a cloth-poster of 2x1 metres on which it was written “We have and will demand the account of Gazi[1], MLKP[2]”, (Gazinin hesabını sorduk, soracağız, MLKP). According to the police report, the box looked as if it contained a bomb. However, it did not.", "7. On 12 March 1996 the first applicant was arrested and taken into police custody on suspicion of her involvement in the hanging of the poster. On 19 March 1996 she was brought before the public prosecutor’s office at the Istanbul State Security Court and before the Istanbul State Security Court. The court remanded her in custody.", "8. On 12 June 1996 the second applicant was arrested and taken into police custody on suspicion of his involvement in the above-mentioned incident. On 18 June 1996 he was brought to the public prosecutor’s office at the Istanbul State Security Court and before Istanbul the State Security Court. The court remanded him in custody.", "9. On 26 March 1996 and 20 June 1996 respectively, the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court accusing the applicants of aiding and abetting an illegal organisation, namely the MLKP. The public prosecutor requested that the applicants be convicted and sentenced under Article 169 of the Criminal Code and Article 5 of Law no. 3713.", "10. On 1 April 1996 the Istanbul State Security Court commenced the trial of the first applicant together with other co-accused.", "11. On an unspecified date, the first and second applicants’ case files were joined and they were tried before the Istanbul State Security Court along with four other suspects accused of the same offence.", "12. On 23 October 1997 the Istanbul State Security Court, relying on the statements given by the applicants and the other suspects to the police, the public prosecutor and the court, convicted the applicants as charged and sentenced them to three years and nine months’ imprisonment.", "13. Following a hearing held on 21 June 1999, the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of the Istanbul State Security Court. On 21 July 1999 the judgment of the Court of Cassation was deposited with the registry of the Istanbul State Security Court." ]

[ 3 ]

[ "4. The applicant, Mr Volodymyr Ivanovich Trykhlib, was born in 1961 and lives in Nova Kahovka, the Kherson region.", "5. The facts of the case, as submitted by the parties, may be summarised as follows.", "6. Between 1997 and 2000 the applicant brought a number of proceedings (see the annexed table) against the Pivdenelektromash Company (a State-owned entity; hereafter “the Company”), seeking the recovery of salary arrears. Two sets of these proceedings were instituted in the Novokahovsky City Court, while the rest of them were brought to the Labour Disputes Commission of the “Pivdenelektromash” company (hereafter “the LDC”). The decisions given by the court and the LDC awarded the applicant the salary arrears which he claimed. These decisions were sent for execution to the Novokahovsky City Bailiffs’ Service (hereafter “the Bailiffs’ Service”).", "7. The decisions in the applicant’s favour were gradually enforced until 5 June 2000 when the Kherson Regional Court of Arbitration (hereafter “the Arbitration Court”) instituted bankruptcy proceedings against the Company and issued an injunction barring the debt recovery.", "8. On 20 June 2000 the Bailiffs’ Service stayed the execution proceedings against the Company pending the resolution of the bankruptcy case.", "9. By letter of 10 August 2000, the Supreme Court of Arbitration directed that the enforcement of salary arrears cases could continue pending the bankruptcy and rehabilitation proceedings.", "10. In a letter of 11 December 2000 the Bailiffs’ Service requested permission from the Arbitration Court to continue the enforcement proceedings. On 12 January 2001 Judge V. informed the Bailiffs that the claims based on court decisions awarding salary arrears could be paid from the proceeds of the finished products and raw materials belonging to the Company. The Judge stated that an injunction made under Article 12 of the Law of 14 May 1992 “on the Restoration of a Debtor’s Solvency or the Declaration of Bankruptcy” (hereafter “the Bankruptcy Act”) did not apply to salary payments.", "11. On 11 January 2001 the Bailiffs ordered the attachment of the Company’s accounts.", "12. On 15 January 2001 the Arbitration Court approved the rehabilitation proposal and appointed a trustee to run a bankruptcy rehabilitation programme for the Company’s business performance.", "13. On 22 March 2001 the Bailiffs’ Service, referring to the judge’s letter of 12 January 2001, requested the trustee to inform them about the existence of the finished products and raw materials suitable for attachment.", "14. However, on 17 January 2002 Judge V. reversed his opinion about attaching and selling the Company’s property, particularly as the rehabilitation proceedings were pending, the success of which, in his view, could be jeopardised if the Bailiffs’ actions continued.", "15. On 23 January 2002 the Prominvest Bank servicing the Company’s accounts refused to freeze them on the Bailiffs’ request. The bank, inter alia, rejected as irrelevant the Bailiffs’ reference to the directive of the Supreme Court of Arbitration of 10 August 2000 (see paragraph 9 above).", "16. On 14 August 2002 the Kherson Regional Bailiffs’ Service notified the applicant that by December 1999 he had been paid a total of UAH 3,477. The payment of the remainder of the awarded amount was impeded by ongoing bankruptcy litigation and the entry into force of the 2001 Law on the Introduction of a Moratorium on the Forced Sale of Property which barred the attachment and sale of the Company’s capital assets.", "17. In their observations of 1 September 2003 the Government stated that by 2003 all but two of the LDC’s decisions (15 and 29 March 2000) and both court judgments in the applicant’s favour had been executed, the outstanding debt being UAH 1,277.51[1], out of a total UAH 13,301,688.24[2] owed by the Company to its creditors. In their observations of 21 June 2004, the Government – while confirming the sum above – referred to the LDC decisions of 23 February and 29 March 2000 as having remained un-enforced.", "18. The applicant challenged these submissions, stating that the Government had failed to mention the LDC decision of 12 April 2000, which, according to him, had not been executed either. He alleged that the amount due to him totalled UAH 3,783.57[3].", "19. On 9 December 2003 the Minister for Justice issued a circular letter, informing the Bailiffs that the injunction against debt collection in bankruptcy cases did not extend to warrants of execution in salary arrears cases.", "20. On 15 January 2004 the Bailiffs’ Service resumed the execution proceedings in the applicant’s case. On 23 January and 10 February 2004 it ordered the attachment of the Company’s accounts. However, on 27 February 2004 the Kherson Regional Commercial Court, on the trustee’s appeal, quashed these decisions because the Bankruptcy Act envisaged the obligatory suspension of enforcement proceedings pending the resolution of a bankruptcy case. The exemption of salary arrears payments from a general injunction against debt recovery concerned only the Company’s current salary expenditures.", "21. The Government provided the Court with a copy of a certificate issued on 2 February 2004 by the chief accountant of the Company, attesting that the applicant had refused to accept a sum of UAH 2,000[4] offered to him by the Company as compensation for salary arrears. The applicant stated that the payment of this amount was conditioned by the withdrawal of his application before the Court.", "22. From 1998 to 1999 the applicant on several occasions unsuccessfully attempted to bring criminal proceedings against the officials of the Bailiffs’ Service for their allegedly unlawful inactivity. On 8 February 1999 the Novokahovska City Prosecutor’s Office ultimately rejected the applicant’s complaint due to the lack of evidence to justify any criminal proceedings against the Bailiffs. On 7 May 1999 the Novokahovsky City Court upheld this decision.", "23. On 12 January 2000 the Novokahovsky City Court declared inadmissible the applicant’s complaints concerning the Bailiffs’ inactivity because of his failure to comply with procedural requirements. On 15 March 2000 the applicant’s request for leave to appeal was also rejected as he had failed to comply with the procedural requirements provided by law.", "24. In December 2000 the applicant applied to the Novokahovsky City Court against the Bailiffs’ Service seeking a declaration that the enforcement proceedings in his cases were inadequate. On 8 May 2001 the court rejected the applicant’s claim, finding that no fault had been committed by the Bailiffs as the delay in the enforcement of the LDC decisions had been caused by the debtor’s lack of funds. It also took into account the 5 June 2000 injunction barring collection of the Company’s debts. On 27 June 2001 the Kherson Regional Court upheld this judgment." ]

[ 3 ]

[ "6. The applicant was born in 1964 and lives in Batman.", "7. On 7 February 1993 the applicant was taken into custody in Batman by police officers from the Batman Anti-Terrorist Branch and he was held in custody until 5 March 1993.", "8. On 5 March 1993 the Batman Criminal Court ordered the applicant’s remand in custody.", "9. On 6 April 1993 and on 10 October 1994 the Public Prosecutor at the Diyarbakır State Security Court filed two different bills of indictment accusing the applicant of being a member of an illegal terrorist organization and undermining the integrity of the State.", "10. On 5 May 1993 the State Security Court commenced the trial against the applicant and twenty-one other suspects, and prolonged the applicant’s detention.", "11. On 1 December 1995, the State Security Court convicted the applicant under Article 125 of the Criminal Code, and sentenced him to life imprisonment. The charges had been brought under Articles 168 and 125 of the Criminal Code.", "12. Thereafter, the Court of cassation quashed the judgment three times, remitting it to the first-instance court, which reached the same conclusions as before:\n–Court of Cassation decisions quashing the judgments on 9 July 1996, 31 January 2000 and 2 April 2001;\n–the repetitive State Security Court decisions on 11 June 1999 (after numerous hearings), 28 September 2000 (after numerous hearings in the applicant’s absence) and 31 January 2002 (also after numerous hearings).", "13. On that latter date, the State Security Court convicted the applicant under Article 168/2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. He was released the same day.", "14. The applicant did not appeal against this judgment. On 7 February 2002 it became final." ]

[ 2, 3 ]

[ "9. The applicant was born in 1969 and lives in the town of Seyhan, within the administrative jurisdiction of the province of Adana.", "10. The facts surrounding the events of 5 October 1994 are disputed by the parties.", "11. The facts as presented by the applicant are set out in Part B below (see paragraphs 12-21). The Government’s submissions concerning the facts are summarised in Part C below (see paragraphs 22-23). Documentary evidence submitted by the applicant and the Government is summarised in Part D (see paragraphs 24-27 below) and Part E (see paragraphs 28-52 below) respectively.", "12. On 3 October 1994 Rehib Çabuk and Sefer Cerf were killed in Adana. They were, respectively, district leader and administrative board member of HADEP (Halkın Demokrasi Partisi, People’s Democracy Party), a pro-Kurdish political party. The applicant witnessed the killing and attended the funeral on 4 October 1994.", "13. On 5 October 1994, at about 11 a.m., while the applicant was sitting in the Erzurumlular Café in the Mutlu neighbourhood in Adana, two persons, who later identified themselves as policemen, entered the café. Both were from the anti-terrorism branch of the police and both were armed with pistols. They told the applicant to come out of the café. On leaving the café the applicant was put in a white Renault car, with the registration number 01 HC 644.", "14. There were two other police officers inside the car, both armed with MP-5 automatic weapons. The applicant’s elder brother Suphi Dizman, who was also in the café, asked the police officers why they were taking his brother away. The police told him that they wanted to ask his brother a number of questions and they would then return him to the café.", "15. The car drove in the direction of Kabaktepe and stopped in a deserted field. The applicant was taken out of the car. As soon as he got out, the police officers started to punch and kick him and to beat him with the butts of their guns. The police officers told the applicant that they had seen him at the funeral of Sefer Cerf and Rehib Çabuk the day before. They threatened him and told him that if he continued to be involved in such activities, his end would be like those of the dead HADEP members.", "16. The police officers questioned the applicant about a number of local people. The applicant was also forced to report the activities of local shopkeepers, who were allegedly selling the newspaper Özgür Ülke, a pro-Kurdish newspaper, and who were collecting money, presumably for the Kurdistan Workers’ Party (hereinafter “the PKK”). The applicant was threatened that if he did not report the political activities of these shopkeepers regularly, he would be killed.", "17. The applicant denied that he was involved in such activities and protested that they had no reason to treat him like a criminal. He was then put into the car and driven towards the town. Before releasing him, the officers gave the applicant an address and ordered him to be there on the following Friday evening.", "18. When the applicant got home, his relatives took him to the hospital where it was established that his jaw bone had been broken and required surgery.", "19. The applicant, with the assistance of a lawyer, submitted a petition to the Adana Prosecutor’s office on 7 October 1994 and requested the Prosecutor to initiate criminal proceedings against the police officers who had ill-treated him. He gave a detailed account of the incident and described the physical features of the police officers in question. The applicant asked the Prosecutor to send him to the Forensic Medicine Directorate to obtain a medical report which could be used as evidence in the criminal proceedings.", "20. The report was obtained from the Adana Forensic Medicine Directorate on 7 October 1994 (for content see paragraph 27 below).", "21. The applicant received no replies from the Prosecutor.", "22. A medical report was issued by the Forensic Medicine Directorate on 7 October 1994 according to which the applicant was unable to work for a period of 25 days.", "23. The applicant made an application to the Adana Public Prosecutor on 7 October 1994. On 10 October 1994 the Adana Public Prosecutor commenced an investigation into the applicant’s allegations of ill-treatment under file no. 1994/29324.", "24. The following information appears from the documents submitted by the applicant.", "25. On 6 October 1994 the applicant submitted a petition to the Prosecutor’s office in Adana. The contents of this petition formed the basis of his submissions under Part B above (see paragraphs 12-20). He also informed the Prosecutor that he had been taken to hospital after having been released by the police. It had been established at the hospital that his jaw had been broken and required surgery. The applicant submitted the x-rays to the Prosecutor and told him that he wanted to press charges against the police officers. He finally asked the Prosecutor to be sent to the Forensic Medicine Directorate.", "26. On 7 October 1994 the applicant submitted another petition to the Prosecutor’s office in Adana and repeated the contents of his previous petition. He also described the physical features of the police officers in this petition.", "27. According to a medical report prepared by the Forensic Medicine Directorate in Adana, the applicant’s left jawbone had been broken. The report was based on an examination of the applicant as well as of x-rays. The report concluded that the fracture did not constitute a danger to life but would prevent the applicant from working for 25 days.", "28. The following information appears from the documents submitted by the Government.", "29. It appears from this decision that the Adana Prosecutor, after having received the applicant’s petitions, had decided on an unspecified date that he lacked jurisdiction to prosecute the police officers and had forwarded the investigation file to the Adana Administrative Council in order to obtain an authorisation to prosecute the police officers.", "30. On 24 November 1994 the Adana Administrative Council, which was presided over by the deputy Governor of Adana and consisted of six civil servants, found that there was insufficient evidence to open an investigation and decided to decline authorisation for the prosecution of Yaşar Soyyiğit, Hacı Kara, Mustafa Duman and Kadri Dursun, police officers who worked for the anti-terrorism branch of the Adana Police who had allegedly intimidated and ill-treated the applicant on 5 October 1994.", "31. The Administrative Council based its decision on the fact that the applicant, who claimed to have been ill-treated on 5 October 1994, had not asked for his transfer to the Forensic Medicine Directorate until 7 October 1994. It appears from this decision that the investigation file had been forwarded to the Administrative Council by the Legal Affairs Department of the Adana Police Headquarters, together with a letter drawn up by that department on 18 November 1994.", "32. On 7 December 1994 the Disciplinary Board of the Adana Police decided not to impose any disciplinary measures on the police officers due to a lack of evidence establishing that they had committed the acts complained of. In this decision the applicant was reported as having stated that he had been beaten up by the police officers and that he had been given a medical report showing that he was unable to work for 25 days. The applicant had no complaints against anyone. The applicant’s brother apparently told the Disciplinary Board that his brother had been taken away from the café by the four officers but that he also did not have any complaints against anyone.", "33. In the decision of the disciplinary board, Yaşar Soyyiğit, one of the four police officers, was reported as having stated that he and his colleagues had carried out an identity check in the café during which they were suspicious about the applicant. They had asked him a number of questions in the café and left. They had not beaten him up. The remaining three police officers apparently confirmed the statement given by Yaşar Soyyiğit.", "34. On 31 May 1996 the Council of State quashed the Adana Administrative Council’s decision declining authorisation for the prosecution of the four police officers in so far as it concerned the offence of ill-treatment and upheld the decision not to grant authorisation to prosecute them for the allegation of intimidation. The Council of State further held that the four police officers should be tried before the Adana Criminal Court of First Instance. According to the Council of State, the medical report proved that the applicant had been ill-treated by the four police officers as alleged.", "35. The decision of the Council of State was forwarded to the Adana Prosecutor’s office on 7 August 1996. On 8 August 1996 the Adana Prosecutor forwarded the decision to the Adana Criminal Court of First Instance and asked that court to take the necessary action.", "36. On 11 August 1996 a preliminary hearing was held before the Ninth Chamber of the Adana Criminal Court of First Instance (hereinafter “the trial court”). The court decided to summons the defendants for the next hearing on 14 November 1996 and further decided to obtain the defendants’ identity cards and documents showing their criminal records.", "37. On 12 August 1996 the Adana Prosecutor sent a letter to the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) and informed the Directorate of the decisions referred to above. The Prosecutor added that the criminal proceedings were pending before the trial court under case-file no. 1996/818 and that a hearing was scheduled for 14 November 1996. In this letter the Prosecutor referred to a letter sent by the Directorate to his office on 7 June 1996 and a reply sent by his office on 13 June 1996.", "38. On 21 August 1996 the trial court asked the Adana Prosecutor to obtain the defendants’ identity cards before the hearing on 14 November 1996.", "39. On 27 August 1996 the Directorate sent a letter to the Ministry of Foreign Affairs and referred to the application lodged by the applicant with the Commission. The Directorate informed the Ministry of the decisions referred to above and added that the criminal proceedings were pending before the trial court under case-file no. 1996/818. The Directorate also referred to a letter sent by the Ministry on 31 May 1996 and their reply of 26 June 1996.", "40. On 5 September 1996 the anti-terrorist branch forwarded to the trial court the identity document of one of the defendants, Yaşar Soyyiğit.", "41. On 14 November 1996 the hearing resumed before the trial court. Only two of the defendants, namely Yaşar Soyyiğit and Hacı Kara, were present in the court room. According to postal receipts, the remaining two defendants had also been summonsed.", "42. Both Mr Soyyiğit and Mr Kara told the trial court that they had gone to the café on the day in question and checked the identity card of the applicant. When they had established that he was not wanted by the authorities for any offence, they had returned the identity card to the applicant. They had not beaten him up. The defendants confirmed the accuracy of the statements they had made during the preliminary investigation.", "43. The trial court, noting that all defendants except Yaşar Soyyiğit had since been posted elsewhere, decided to send letters rogatory to the courts in whose jurisdiction the two absent defendants were living and asked those courts to take statements from them. The trial court also decided to send letters to the Registry Office for Births, Marriages and Deaths to ask for the birth registry records of the defendants. The trial court, noting that the applicant had “inadvertently not been summonsed”, decided to summons him for the next hearing on 29 January 1997.", "44. On 9 December 1996 the Karakoçan Criminal Court of First Instance, acting on the letter rogatory from the trial court, took a statement from Mustafa Duman, one of the two defendants who had failed to attend the hearing before the trial court on 14 November 1996. Mr Duman told the court that neither he nor any of his colleagues had ill-treated the applicant. According to Mr Duman, the applicant had been a PKK member and it was for this reason that he had made the allegations of ill-treatment against the police.", "45. On 25 December 1996 the Akçakale Criminal Court of First Instance, also acting on the letter rogatory from the trial court, took a statement from Kadri Dursun, the fourth defendant. Mr Dursun told the court that he did not remember the incident which, in any event, was just an allegation. He did not even know the applicant.", "46. During the hearing that was held before the trial court on 29 January 1997, the applicant confirmed the accuracy of the contents of his statement taken at the Police Headquarters previously. He further informed the trial court that he wanted to press charges against the defendants. The applicant’s brother Suphi Dizman also confirmed the accuracy of the contents of his statement taken at the Police Headquarters previously and added that the four police officers had beaten up his brother and broken his jaw as a result.", "47. The trial court adjourned the hearing until 27 March 1997 on account of the failure of the Akcakale court to forward Kadri Dursun’s statement in time.", "48. The hearings on 27 March, 4 June and 15 September 1997 had to be postponed on account of the failure of the authorities to submit to the trial court the identity card of Kadri Dursun and the criminal records of Mustafa Duman.", "49. At the hearing on 17 November 1997 the prosecutor was given additional time until 29 December 1997 to submit his observations.", "50. A final hearing took place on 29 December 1997. The defendants did not attend this hearing. The Prosecutor argued that, other than the applicant’s statement, there was no evidence to prove the allegation of ill-treatment. Furthermore, the applicant had obtained the medical report two days after the alleged event. The Prosecutor recommended to the trial court that the defendants be acquitted.", "51. The trial court, noting that the defendants had “vehemently denied the allegations” against them and taking into account the “fact that the medical report was issued two days after the alleged events”, concluded on 29 December 1997 that there was insufficient evidence to prove that the applicant’s injury had been caused by the defendants, and acquitted them.", "52. According to postal receipts submitted by the Government, the decision of the trial court was communicated to the defendants in March 1998." ]

[ 1 ]

[ "4. The applicant was born in 1951 and lives in the town of Shakhty, the Rostov Region.", "5. In 1987 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. In 1996 the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. The applicant was awarded compensation, to be paid monthly.", "6. On an unspecified date the applicant sued a local pension authority (Управление социальной защиты г. Шахты, “the authority”) for allegedly erroneous calculation of his monthly compensation and demanded arrears and damages.", "7. By judgment of 21 May 1999 the Shakhy Town Court of the Rostov Region granted the applicant’s claim and ordered the authority to recalculate his monthly compensation for the period between 14 May 1996 and 31 May 1999, to pay the applicant the arrears of RUR 134,442.46 in this respect and monthly compensation of RUR 4,547.75 with further indexation until any subsequent changes of legislation.", "8. The judgment of 21 May 1999 was not appealed against by the parties and came into force ten days later, on 31 May 1999.", "9. Some time thereafter the authority applied to the Town Court requesting to re-open the applicant’s case by reference to newly discovered evidence, such as his pay statements for twelve months preceding the disabling incident.", "10. On 10 July 2000 the Town Court granted the application and re-opened the proceedings.", "11. It appears that the defendant authority and the Town Court failed properly to notify the applicant of the re-opening proceedings and the decision of 10 July 2000.", "12. The applicant challenged the decision of 10 July 2000 by way of supervisory review by reference to this failure. His appeal also stated that the piece of evidence referred to by the authority could not be considered as newly discovered since it had been fully available to the Town Court during the first instance proceedings.", "13. On 9 November 2000 the Rostov Regional Court acting as a supervisory review instance set aside the decision of 10 July 2000. The court upheld the applicant’s arguments in full and by the same decision dismissed the authority’s arguments as unfounded.", "14. On 29 January 2001 the writ of execution in respect of the judgment of 21 May 1999 reached the baillifs and on 31 January 2001 they opened the enforcement proceedings in this connection.", "15. According to the Government, the authority complied with the judgment by five bank transfers, dated 29 March, 24 April, 30 May, 27 and 28 June 2002 respectively. As of 1 July 2002 the applicant has been in receipt of the monthly compensation of RUR 7,627.49, with no debts outstanding.", "16. According to the applicant, to date the judgment of 21 May 1999 has not been enforced in part relating to indexation of his monthly compensation until any subsequent changes in the legislation." ]

[ 3, 9 ]

[ "8. The applicant was born in 1967 and lives in Izmit.", "9. On 6 November 1992 the applicant was arrested by police officers from the anti-terrorism branch of the Izmit Security Directorate and was placed in custody on suspicion of membership of an illegal armed organisation, namely the TKP-ML/TIKKO (Communist Party of Turkey/Marxist-Leninist, Turkish Workers and Peasants’ Liberation Army).", "10. On 11 November 1992 the applicant was brought before the investigating judge at the Kocaeli Criminal Court. The same day, the investigating judge ordered the applicant’s detention on remand.", "11. On 10 February 1993 the public prosecutor at the Istanbul State Security Court filed an indictment with the same court accusing the applicant and his seven other co-defendants of being a member of an illegal armed organisation and having committed armed robbery. The public prosecutor invoked Articles 168 § 2 and 497 § 2 of the Criminal Code and Article 5 of Law No. 3713 (Anti-terror law).", "12. On 23 February 1993, the Istanbul State Security Court pronounced the applicant’s continuing detention on the ground that the reasons for his detention on remand had not disappeared.", "13. On 19 April 1994 the court decided to join the case with that pending before another court, as some of the defendants had been put on trial for similar charges before this court. Following this decision the number of the co-defendants of the applicant increased to twenty.", "14. In the course of the criminal proceedings the applicant made numerous submissions for his release pending trial. He claimed that he was innocent and had been held in detention on remand for an excessive period. The Istanbul State Security Court dismissed these requests at each of the forty-eight hearings held between 17 May 1993 and 12 June 2000. In ordering the applicant’s continued detention each time, it relied on “the nature of the offence, the state of the evidence and the duration of the detention”.", "15. On 12 June 2000 the Istanbul State Security Court convicted the applicant for being a member of an illegal organisation and committing the offence of armed robbery. The court sentenced the applicant to thirty-two years and six months’ imprisonment.", "16. The judgment was, ex officio, subject to appeal. The applicant also appealed against the judgment.", "17. On 15 May 2001 the Court of Cassation quashed the applicant’s conviction on the ground that the case-file did not enclose the applicant’s statement he made before the Kocaeli Assize Court, and remitted the case to the Istanbul State Security Court.", "18. On 3 October 2001 the Istanbul State Security Court held its first hearing after the case was sent back to it. The applicant repeated his request for release from detention on remand during the hearing; the court dismissed his request on account of “the nature of the offence charged and the state of evidence”.", "19. On 28 December 2001 the applicant was released from detention on remand.", "20. On 22 May 2004, following the abolition of the Istanbul State Security Court, the applicant’s case was transferred to the Istanbul 11th Assize Court.", "21. The case is still pending before the Istanbul 11th Assize Court." ]

[ 2, 3 ]

[ "4. The applicant was born in 1965 and lives in Požega.", "5. On 20 June 1991 the applicant sustained an injury in a traffic accident caused by a certain A.P., member of the Yugoslav People’s Army (“the YPA”).", "6. On 10 August 1993 the applicant brought a civil action against the State in the Požega Municipal Court seeking non-pecuniary damages in the amount of 150,000 Croatian kunas (HRK).", "7. On 21 June 1995 the Požega Municipal Court partly ruled in the applicant’s favour by awarding her HRK 26,530. The State appealed.", "8. In August 1996 the Požega County Court (Županijski sud u Požegi) quashed the first instance judgment and remitted the case.", "9. In the resumed proceedings, on 6 February 1998 the Požega Municipal Court delivered an interim judgment (međupresuda) finding the State liable for the damage. It held that the State had taken over not only the rights and property of the former Yugoslavia, but also its obligations. The State appealed.", "10. On 9 July 1998 the Požega County Court reversed the interim judgment finding that the State was not liable for the damage as it was not a legal successor of the former Yugoslavia and had not taken over any liability for damages caused by members of the YPA.", "11. On 9 September 1999 the applicant lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske) alleging that the County Court wrongly applied the substantive law.", "12. On 6 November 1999 the Amendments to the Civil Obligations Act (“the 1999 Amendments”) entered into force.", "13. On 23 January 2002 the Supreme Court returned the case-file to the Požega Municipal Court with the instruction to stay the proceedings, pursuant to the above Act.", "14. On 10 May 2002 the Požega Municipal Court decided to stay the proceedings. On 18 July 2002 the Požega County Court dismissed the applicant’s appeal against that decision.", "15. On 31 July 2003 the Act on the Liability of the Republic of Croatia for Damage Incurred in the Former Yugoslavia for which the Former Yugoslavia was Liable (“the 2003 Liability Act”) entered into force.", "16. Pursuant to the 2003 Liability Act, the proceedings resumed.", "17. On 3 September 2003 the Supreme Court upheld the applicant’s appeal on points of law, quashed the County Court judgment of 9 July 1998 and the Municipal Court’s judgment of 6 February 1998 and remitted the case to the first instance court.", "18. In the resumed proceedings, on 28 April 2004 the Municipal Court gave judgment partly accepting the applicant’s claim and awarded her HRK 101,000. The applicant appealed.", "19. On 15 February 2005 the County Court dismissed the applicant’s appeal and upheld the first instance judgment, which thereby became final.", "20. Meanwhile, on 14 May 2002 the applicant lodged a constitutional complaint concerning the length of the proceedings. On 27 May 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint." ]

[ 3 ]

[ "5. On 5 October 1993 the applicant bought a motorbike, produced in Belarus. The motorbike was sold by a Russian dealer company under a service warranty. The next day the motorbike got out of order. The service centre, indicated by the dealer company, refused to repair the motorbike.", "6. On 2 December 1993 the applicant brought an action against four defendants: the dealer company, the factory having produced the motorbike, based in Belarus, the service centre, and the Moscow Bureau of Technical Expertise. On 4 October 1994 the Meshchanskiy District Court of Moscow ordered the dealer company to pay damages to the applicant. The defendant appealed. On 28 March 1995 the Moscow City Court quashed the judgment and remitted the case to the first instance court.", "7. In 1995-1997 hearings were adjourned on five occasions due to both parties’ failure to appear, on two occasions – due to the defendant’s failure to appear, and on six occasions – because of the judge having been busy with other cases. Finally, on 12 November 1997 the Meshchanskiy District Court severed the applicant’s claims against the service centre. At the same time the court dismissed the applicant’s claims against the dealer company. On 12 January 1998 the Moscow City Court upheld this judgment. The proceedings against the service centre continued.", "8. In the proceedings against the service centre no hearings were held between 12 January 1998 and 12 April 1999. In the following months the examination of the case was adjourned on three occasions due to the defendant’s failure to appear.", "9. By a default judgment of 20 December 1999 the Meshchanskiy District Court held against the service centre awarding the applicant damages in the amount of 261,690 Russian roubles (RUR). Since no appeal followed within the time-limits established by law, on 31 December 1999 the judgment became final. The court issued an execution warrant and opened the enforcement proceedings.", "10. On 6 February 2000 the defendant lodged an appeal seeking, inter alia, to restore the time-limits allowed for the appeal. On 9 March 2003 the court decided to restore the time-limits and accepted the statement of appeal for examination on the merits. In the meantime RUR 30,267 were recovered from the service centre on the account of the amount due to the applicant under the judgment of 20 December 1999.", "11. By the decision of 18 May 2000 the Moscow City Court quashed the judgment of 20 December 1999, stating that the first instance court had failed to properly notify the defendant about the hearings. The case was remitted to the first instance court for new examination.", "12. By a judgment of 20 June 2000 the Meshchanskiy District Court dismissed the applicant’s action against the service centre. The court also ordered the applicant to reimburse the amount recovered from the service centre pursuant to the judgment of 20 December 1999.", "13. On 26 July 2000 the Public Prosecutor of the Meshchanskiy District of Moscow lodged with the Moscow City Court an appeal on behalf of the applicant. On 12 September 2000 the Moscow City Court quashed the decision of 20 June 2000 and remitted the case to the first instance.", "14. After the remittal of the case, the proceedings were stayed for a certain period of time. Within this period higher judicial authorities were examining the materials of the case-file for the purpose of bringing a supervisory review appeal against the decision of 12 September 2000. However, no supervisory review proceedings followed.", "15. The first hearing on the merits was scheduled for 2 October 2001. However, on this date the court decided to adjourn the case for two months due to the plaintiff’s failure to appear. In the subsequent months the examination of the case was adjourned on six occasions due to the defendants’ failure to appear or the absence either of the presiding judge (adjourned from 27 November 2001 until 29 January 2002) or the lay judges (adjourned from 20 May 2002 until 26 June 2002).", "16. In a letter of 7 February 2001, the Vice-President of the Moscow City Court informed the President of the Meshchanskiy District Court that the applicant’s claim against the producer factory remained unresolved since 1995.", "17. On 3 October 2002 the first instance court, by a default judgment, satisfied the applicant’s claim against the producer factory and rejected his claim against the dealer company.", "18. The producer factory appealed against this judgment. On 28 January 2003 the Moscow City Court quashed the judgment of 3 October 2002 and remitted the case to the first instance.", "19. In the following months the case was adjourned several times. Thus, on 16 April 2003 the case was adjourned due to the defendant’s failure to appear. On 1 July 2003 the court adjourned the case, ordering the plaintiff (the applicant) to clarify his claims, in particular, to indicate the amounts of damages claimed from each defendant. On 4 August 2003 the case was adjourned because of the judge having been busy with another case.", "20. In August 2003 the applicant complained about the length of proceedings to the Moscow City Court. In a reply letter of 30 September 2003 the Vice-President of the Moscow City Court acknowledged that since 1993 the dispute remained unresolved. The Vice-President reassured the applicant that the Moscow City Court would take charge of this case.", "21. On 3 September 2003 the applicant requested the court to adjourn the next hearing because of his absence from Moscow at the relevant dates. On 29 September 2003 the case was adjourned until 31 October 2003.", "22. On 31 October 2003 the first instance court dismissed the applicant’s complaints against the service centre and the producer factory. The court found that, although the name and address of the service centre had been indicated by the dealer company in the guarantee slip, there existed no contract imposing an obligation on the service centre to repair defective goods sold by the dealer company. As to the producer factory, based in Belarus, the court found that under the applicable Belarus law the producer could not have been held liable directly before the consumer of the goods. On 20 February 2004 the Moscow City Court upheld this decision." ]

[ 3 ]

[ "4. The applicant was born in 1953 and lives in Rostov-on-Don.", "5. In 1987 he took part in emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions.", "6. On an unspecified date the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. In 1994 the applicant was awarded compensation, to be paid monthly.", "7. In 1999 the applicant sued a local pension authority (Муниципальное учреждение социальной защиты населения Первомайского района г. Ростова-на-Дону - “the defendant”) requesting to increase his monthly compensation, backdate the increase and recover the unpaid amount. The applicant considered that the amount of compensation had been determined incorrectly.", "8. On 18 October 1999 the Pervomayskiy District Court of Rostov-on-Don (“the District Court”) granted the applicant’s claim and ruled that since 1 January 1999 his monthly compensation had been wrongly calculated. The court awarded the applicant the arrears of RUR 15,829.25 for the period between 1 January and 1 November 1999 and decided that as of 1 November 1999 the applicant was entitled to a monthly compensation of RUR 2,440.70, to be index-linked in line with changes of the minimum monthly wage.", "9. The judgment of 18 October 1999 was not appealed against by the parties and came into force on 29 October 1999.", "10. On 6 December 1999 the bailiffs instituted enforcement proceedings in respect of the judgment of 18 October 1999.", "11. Some time later the enforcement proceedings were terminated by reference to the lack of funding. On 22 March 2001 the bailiffs returned the writ and documents to the applicant. They referred to Decree No. 143 dated 22 February 2001 (see the relevant domestic law section below) and invited him to submit the documents to a local department of the Ministry of Finance (ОФК по Первомайскому району г. Ростова-на-Дону).", "12. The applicant followed this invitation and on the same day applied to the local department of the Ministry which four days later rejected the application. It appears that the applicant was invited to fetch a renewed writ of execution from the District Court.", "13. Having received the renewed writ from the court, the applicant re-submitted the documents to the Ministry which on 11 April 2001 rejected them, this time by reference to the absence of the defendant’s account at the Ministry.", "14. On 30 May and 1 July 2002 respectively the authorities transferred a total amount of RUR 38.661,22 in the applicant’s favour and informed him that the enforcement of the judgment of 18 October 1999 was thus finalised.", "15. It appears that the applicant disagreed. He informed the authority that they had failed to index-link his monthly compensation in line with the minimum monthly wage, as it was ordered by the judgment of 18 October 1999, and used a less favourable scheme of indexation.", "16. On unspecified date the authority requested the District Court to interpret the judgment of 18 October 1999 and uphold its scheme of indexation.", "17. By a decision of 6 March 2003 the District Court examined and granted the authority’s request. The decision was upheld on appeal by the Regional Court on 16 April 2003.", "18. On 3 June 2003 the bailiffs ruled that the defendant authority had duly enforced the judgment of 18 October 1999 and terminated the enforcement proceedings accordingly.", "19. Thereafter the applicant challenged both decisions by way of supervisory review.", "20. On 3 June 2004 the Regional Court, acting as a supervisory review instance, quashed the decision of 6 March 2003 as unlawful and remitted the request for interpretation for a fresh examination at the first instance. The court noted, in particular, that by accepting the authority’s interpretation of the judgment of 18 October 1999 the District Court had in fact varied its content and thus had acted unlawfully.", "21. On 5 July 2004 the District Court rejected the authority’s request for interpretation as unfounded.", "22. By first instance decision of 2 September 2004 which was upheld on appeal on 13 October 2004 the applicant was issued with a renewed writ of execution.", "23. On 28 November 2004 the bailiffs re-instituted enforcement proceedings in respect of the judgment of 18 October 1999 and requested the authority to enforce it insofar as the judgment had ordered indexation of the applicant’s monthly compensation.", "24. On an unspecified date the applicant brought proceedings against the pension authority claiming indexation for the delay of execution of the judgment of 18 October 1999.", "25. On 11 May 2001 the Justice of the Peace of the Pervomayskiy District examined and granted his claim. It ordered the authority to pay the applicant RUR 3,562.13 in damages for the period between 1 November 1999 and 1 February 2001 and the arrears of RUR 18,556.24.", "26. The judgment of 11 May 2001 was varied on appeal by the District Court on 22 October 2001. In particular, the court ordered the authority to pay the applicant RUR 6,341.73 in damages for the period between 1 November 1999 and 1 September 2001 as well as the arrears for the period from 1 November 1999 and 1 September 2001 of RUR 8,505.47. The decision of 22 October 2001 came into force on the same day.", "27. On 11 November 2001 the bailiffs instituted enforcement proceedings in relation to the decision of 22 October 2001. It appears that the defendant refused to comply with it by reference to the lack of funds and its disagreement with the amount of award.", "28. The decision of 22 October 2001 was enforced by the authorities by a bank transfer of 1 July 2002.", "29. On an unspecified date the applicant brought a fresh claim against the pension authority for an increase of his monthly compensation.", "30. By judgment of 25 December 2002 the District Court rejected the claim as unsubstantiated. On 26 March 2003 the judgment was upheld on appeal by the Rostov Regional Court.", "31. On an unspecified date the applicant brought a fresh claim against the authority in which he requested additional damages for non-enforcement of the judgment of 18 October 1999 and the decision of 22 October 2001. The applicant also referred to the authority’s failure to index-link the award of 18 October 1999 in line with changes of the minimum monthly wage and requested compensation in this respect as well.", "32. By decision of 25 April 2003 the District Court granted the application in part. By reference to the decision of 6 March 2003 (see § 17 above) the court rejected his claim for an increase of the award of 18 October 1999 in line with changes of the minimum monthly wage. In respect of the delay in enforcement of the judgment of 18 October 1999, the court ordered the authority to pay the applicant RUR 3,065.95 in damages for the period between September 2001 and 1 June 2002. As regards the decision of 22 October 2002, the court ordered RUR 2,722.88 in damages in the applicant’s favour for the period from November 2001 to July 2002.", "33. On 23 July 2003 the Regional Court upheld the decision of 25 April 2003 on appeal.", "34. It appears that the decision of 25 April 2003 was enforced in full on 26 April 2004.", "35. On an unspecified date the applicant applied to a court referring to the authority’s failure to abide by the judgment of 18 October 1999 insofar as the latter had ordered to index-link the applicant’s compensation in line with the minimum monthly wage.", "36. Having adopted a different scheme of indexation from the one suggested by the applicant and set out in the judgment of 18 October 1999, on 18 December 2003 the District Court partly granted his claim and ordered the authority to pay the arrears of RUR 28,947.24.", "37. The judgment of 18 December 2003 was upheld on appeal in full on 10 March 2004. The amount due to the applicant in this connection was paid on 13 September 2004." ]

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