Datasets:

coastalcph

/

lex_glue

like 45

[ "8. The applicant was born in 1957. He is currently serving a sentence of life imprisonment without parole eligibility.", "9. On 9 May 1990 the applicant, who had three previous convictions and prison sentences, was convicted of the murder on 17 July 1989 of three children, aged 8, 10 and 12, attempted rape of one of them, attempted rape of a woman in 1984 and attempted illegal crossing of the State border in August 1989. The court imposed the capital punishment.", "10. The applicant's conviction and sentence were upheld on appeal on 24 October 1990 by the Supreme Court.", "11. On 8 April 1994 a five-member chamber of the Supreme Court dismissed the applicant's ensuing petition for review (cassation).", "12. Article 375 § 5 of the Code of Criminal Procedure as in force at the time, provided that no execution could be carried out prior to the President's decision whether or not to exercise his power of pardon.", "13. The last executions of persons sentenced to the capital punishment were carried out in Bulgaria in November 1989.", "14. Following a period of a de facto moratorium on executions, on 20 July 1990 the Parliament adopted a decision “on deferral of the execution of death sentences” which read:\n“The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in Bulgaria.”", "15. Since the capital punishment remained in the Penal Code, the courts continued sentencing convicted persons to death or - as in the applicant's case - upholding on appeal death sentences delivered before 20 July 1990.", "16. Although no explicit undertaking by Bulgaria to abolish the death penalty was made at the moment of Bulgaria's accession to the Council of Europe on 7 May 1992, such a requirement was regarded as implied in the general undertaking to comply with Article 3 of the Statute of the Council of Europe (see the reports of the Parliamentary Assembly's commission on Bulgaria's compliance with its obligations and undertakings (report of 2 September 1998, Doc. 8180, §§ 5 and 125‑29 (urging the abolition as an implied obligation), and report of 17 January 2000, Doc. 8616, § 110 (noting with satisfaction the abolition of the death penalty)).", "17. On 10 December 1998 Parliament abolished the death penalty replacing it by life imprisonment without parole eligibility.", "18. By decision of 25 January 1999 the applicant's death sentence was commuted to life imprisonment without parole eligibility.", "19. On 29 September 1999 Bulgaria ratified Protocol No. 6 to the Convention.", "20. The death penalty was an issue often debated between 1990 and 1998. A number of members of Parliament expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty. The media periodically discussed the topic. It was widely known that the abolition of the death penalty was urged by the Council of Europe and other international organisations and was a step towards Bulgaria's European integration.", "21. During the relevant period the Penal Code was amended several times. Some amendments expanded the scope of the death penalty. At the same time, work started on a draft Penal Code which excluded the death penalty. In 1995 an amendment to the Penal Code introduced for the first time life imprisonment.", "22. The following attempts to reintroduce executions were made by supporters of the death penalty:", "23. On 27 May 1992 the Chair of the Parliamentary Legislative Committee and another member of Parliament introduced a motion proposing the annulment of the Parliament's decision of 20 July 1990.", "24. On 22 November 1993 a similar proposal was introduced in Parliament by a minority parliamentary group, the New Democracy Alliance. Two parliamentary committees discussed the issue and voted against reintroducing executions. On 1 February 1994 the Legislative Committee held a hearing on both proposals which were defeated.", "25. The issue of reintroducing executions was discussed several times in the Parliament elected at the end of 1994. There were four motions: two for a parliamentary vote on restarting executions and two for calling a referendum.", "26. The first proposal was discussed by the Parliamentary Committee on Government Institutions, which supported the idea of reintroducing executions by a majority of seven votes to six. Thereafter, a member of Parliament on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the Parliament. On one occasion the motion gathered the required number of votes to be entered on the weekly agenda, but eventually was not discussed. Most proposals to include the issue on the agenda of the Parliament's plenary session were defeated through abstention votes.", "27. The first motion for a referendum was defeated on a procedural ground as the proposed date in 1995 did not allow sufficient organisation time. The second proposal for a referendum, filed on 5 December 1995, was considered by the Human Rights and Religions Committee on 6 March 1996 and was defeated by eight votes to two, with two abstentions.", "28. On 29 January 1996 a proposal for restarting executions was introduced by opposition deputies. It was discussed by the Human Rights and Religions Committee and was defeated on 13 March 1996 by eight votes to three.", "29. According to section 130 of the Execution of Sentences Act, as in force at the relevant time, persons awaiting execution were to be detained in complete isolation, correspondence and visits being only possible if permitted by the competent prosecutor.", "30. On 2 August 1990 the Deputy Director of Central Prisons Board instructed prisons administrations that the Parliament's decision suspending executions also suspended by implication this restrictive regime of detention.", "31. The instruction stated, in so far as relevant, that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “special regime” (the regime of detention of recidivists and, after 1995, persons sentenced to life imprisonment: sections 43 and 127b of the Execution of Sentences Act as in force at the time). Inmates should have a bed, bedcover, a bed-side piece of furniture and a centrally operated radio loudspeaker. They should be allowed unlimited correspondence, newspapers and books, one visit per month, one hour of daily outdoor walk without contact with other categories of prisoners and the receipt of one food parcel every six months and a small amount of money. If possible, they could work in the cell.", "32. On 26 July 1996, the Director of the Central Prisons Board and a prosecutor of the Chief Public Prosecutor's Office issued an instruction which stated that, “in view of the continuing moratorium on executions”, persons sentenced to death should be allowed unlimited correspondence, one hour daily outdoor walk, one visit per month and the receipt of two food parcels and 30 packs of cigarettes per month and small amounts of money.", "33. The applicant was detained in the Sofia prison, in a wing for prisoners under the “special regime” provided for by section 56 of the Regulations on the Application of the Execution of Sentences Act, approximately twenty inmates. He changed cells several times but stated that all cells in the relevant prison wing measured 2 by 4 metres.", "34. Following a period of solitary confinement, on an unspecified date in 1990 the applicant was transferred to a cell where he lived with two or three other detainees.", "35. The applicant alleges that on 21 June 1995 he and eight other death‑sentence prisoners were moved to independent cells, where each of them was alone. It appears that the applicant remained in this cell at least until the end of 1998.", "36. According to the Government, the cell floor measured 2 by 3 metres. The ceiling was 3.30 metres high. According to the applicant, until October 1998, when new larger windows were installed in all cells, the cell window was small and did not allow sufficient light or fresh air. As a result, in summer it was very hot. Moreover, in winter it was very cold because the heating, covered by a bricks layer, was not working properly.", "37. There was one 60-Watts electric bulb in the cell. As it was installed on the wall above the door, its light was insufficient which made reading tiring for the eyes. It appears that the light was on all night.", "38. The applicant alleged that between June 1995 and January 1997 he had been sleeping on a plank-bed. In his recollection, a centrally operated radio loudspeaker was installed in March 1996. A proper bed and a bed‑side piece of furniture were provided in January 1997. After April 1998 the applicant possessed a portable radio receiver which was sent to him in a parcel.", "39. The Government provided photographs, apparently made in the summer of 1998, of the applicant's cell. It is visible that the cell's furbishing consisted of a bed, a bed-side piece of furniture and a small table. A loudspeaker and hangers were suspended on the wall. Books, a metal bowl, plastic bottles, clothes and blankets are visible on the photograph.", "40. Inmates were given one hour out-of-cell time in the morning in an open yard. There they could walk together with other inmates from the high security wing. The applicant could also leave his cell once again, in the evening, to use the sanitary facilities. During the remaining part of the day, he had to use a bucket full of water which served as a chamber pot. As a result, there was allegedly a constant stink in his cell.", "41. Inmates could have a shower once per week, for several minutes.", "42. One or two visits of one-half hour were allowed per month. Visits by lawyers were not limited. For the period 1990-1998 the applicant had thirty‑five visits.", "43. During the relevant period there was no limitation on correspondence. Between 1990 and 1 August 1998 the applicant received eighty-three food parcels and fifty-six money orders. He was also entitled to a small amount of money per month, which he used to buy toilet items and food from the prison shop. Nevertheless, he was often lacking items such as tooth paste, shaving cream, razors, cigarettes and coffee.", "44. The applicant received the same medical service as all other prison inmates. The Government submitted a copy of his medical record according to which he had been seen by a doctor or a dentist almost every month during the period 1990-1998. The infirmary was opened eight hours per day. The applicant was treated repeatedly in respect of back pain, including by physiotherapy. According to one of the medical doctors at the Sofia prison, the applicant was known for his frequent and unwarranted complaints.", "45. In February 1996 the applicant signalled a medical problem which turned out to be a swollen salivary gland. In April 1996 a medical doctor recommended surgery, but the applicant was only operated in July 1998. The applicant maintained that he had been refused timely surgical help despite his suffering. His medical records disclose that the swollen salivary gland problem persisted throughout 1997 and 1998, when the applicant underwent several examinations, including by external medical doctors. The applicant was treated with medicines. Twice during the relevant period, medical doctors noted in the applicant's medical record that surgery was not necessary at the particular stage, whereas other entries with illegible signatures indicate that the problem was noted as being acute. According to the director of the Sofia prison, all necessary measures had been taken. The applicant had been treated according to the doctors' recommendations. In July 1997 he had been admitted to hospital for examinations but had been sent back to the prison as he had behaved rudely with the medical staff. A disciplinary punishment had been imposed in that connection on 6 August 1997. The applicant submitted that as a result the operation of his gland had been postponed. According to the medical records, the applicant was again brought to the hospital for examinations and treatment in October 1997, but the applicant alleged that he had been quickly returned back to his cell. As of March 1998 the one doctor's opinion was that surgery was not yet necessary. The swollen salivary gland was eventually operated in July 1998. Tissue of the size of an egg was removed and examined but proved benign.", "46. During the relevant period the applicant sent numerous complaints in respect of the conditions of his detention to the Director of the Sofia Prison, to the Director of the Central Prisons Board, the Chief Public Prosecutor's Office and to other institutions. His complaints concerned the food in prison, allegedly insufficient heating, allegedly lost correspondence and other matters. He received answers to only a part of his complaints. With the exception of a request to use a radio receiver and some of the requests for medical treatment, all other complaints allegedly did not bring about any improvement of his situation.", "47. On an unspecified date in 1999 the applicant was moved to the Pleven prison.\nII. RELEVANT REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (“THE CPT”) 1. The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) on their visit to Bulgaria in 1995", "48. The CPT has not visited the Sofia prison where the applicant was detained.", "49. In 1995 it visited, however, two inmates sentenced to death and detained in the Stara Zagora prison facilities and described the conditions of detention there as follows:\n“The material conditions in the cells left a great deal to be desired: mediocre access to natural light and weak artificial lighting; inadequate heating; cell furnishings in a poor state of repair; dirty bed linen, etc. As regards out-of-cell activities, they were limited to 15 minutes per day for use of the sanitary facilities, one hour outdoor exercise (which the prisoners alleged was not guaranteed every day) and one visit per month. The two prisoners were not allowed to work (not even inside their cells), nor to go to the library, the cinema room or the refectory (their food was brought to the cell). In short, they were subject to an impoverished regime and, more particularly, were offered very little human contact. The latter consisted essentially of the possibility to talk to each other during outdoor exercise (which they took together), and occasional dealings with prison officers. Practically the only forms of useful occupation at their disposal were reading newspapers and books, and writing letters.\nThe above-described situation is in accordance with the rules concerning prisoners sentenced to death, adopted after the moratorium on the execution of the death penalty... Nevertheless, in the CPT's view it is not acceptable.\nIt is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. The delegation found that the regime applied to prisoners sentenced to death in Stara Zagora Prison did not provide such stimulation.\nThe CPT recommends that the regime applied to prisoners sentenced to death held in Stara Zagora Prison, as well as in other prisons in Bulgaria, be revised in order to ensure that they are offered purposeful activities and appropriate human contact. Further, the CPT recommends that steps be taken to improve the material conditions in the cells occupied at Stara Zagora Prison by prisoners sentenced to death.”", "50. In paragraphs 127‑133 of its 1999 report on Bulgaria, the CPT stated, inter alia:\n“[H]ealth care in Bulgarian prisons is provided by the Ministry of Justice ... Prison health-care staff are recruited by and administratively subordinated to the Main Prison Directorate, whose Medical Division is responsible for supervising their work. The prison health-care services apply general health guidelines and regulations issued by the Ministry of Health; further, arrangements can be made for hospitalising prisoners in need of urgent treatment in Ministry of Health establishments. However, it emerged that in the Ministry of Health's view, given the division of responsibilities, the issue of health care for prisoners lay outside its remit...\nA similar situation is found in many other countries in Europe, where the provision of health care is the responsibility of the authority in charge of prison establishments. However, the CPT believes that a greater involvement of the Ministry of Health in the provision of health care in the prison system would help to ensure optimum health care for prisoners, as well as implementation of the principle of the equivalence of health care in prison with that in the outside community... This approach is clearly reflected in Recommendation No R (98) 7 concerning the ethical and organisational aspects of health care in prison, recently adopted by the Committee of Ministers of the Council of Europe.\n[I]n order to guarantee their professional independence and quality of medical work, it is important that prison health-care staff be aligned as closely as possible with the mainstream of health-care provision in the community at large...\n The CPT also wishes to stress again that whatever institutional arrangements are made for the provision of health care in prisons, it is essential that prison doctors' clinical decisions should be governed only by medical criteria and that the quality and effectiveness of their work should be monitored by a qualified medical authority.\n[Some improvements since 1995 were reported.] Full-time doctors had been appointed, and posts for psychiatrists created, at all prisons, and steps were being taken to employ full-time trained nurses. Further, the shortage of medicines within the prison system had been overcome...\n[T]he delegation heard complaints from prisoners at [the prisons visited, in Burgas and Stara Zagora] about delays in gaining access to the doctor. Prisoners who wished to be medically examined announced that to the officer on duty during the morning roll-call. Such requests were meant to be entered in a special register kept on each unit and presented to the doctor every morning. Such a system is unexceptionable. However, the CPT must stress that all requests to see a doctor should be brought to the attention of the prison doctor; it is not for prison officers to screen such requests.”", "51. Historically, most Member States of the Council of Europe approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition. States which became members of the Council of Europe during the 1990s were urged by the Parliamentary Assembly to introduce moratoria on executions as a first step towards the abolition of the death penalty (see Report on the abolition of the death penalty in Europe, PA Doc. 7589 (25 June 1996)).", "52. The Committee has held that “in the absence of further compelling circumstances” prolonged detention on death row per se does not constitute a violation of Article 7 of the International Covenant on Civil and Political Rights (prohibition of cruel, inhuman or degrading treatment) (see Hylton v. Jamaica, Views of 16 July 1996, communication no. 600/1994, Errol Johnson v. Jamaica, Views of 22 March 1996, communication no. 588/1994; and Michael Wanza v. Trinidad and Tobago, Views of 26 March 2002, communication no. 683/1996).", "53. The Commission, when examining complaints by persons on death row, has found violations of Article XXVI of the American Declaration of the Rights and Duties of Man (prohibiting cruel, infamous or unusual punishment of persons accused of offences) and Article 5 §§ 1 and 2 of the American Convention on Human Rights (right to humane treatment and prohibition of torture, cruel, inhuman or degrading punishment or treatment) mainly on the strength of facts concerning irregularities in the sentencing process, the material conditions and regime of detention and ill-treatment in prison, while also taking into account the length of the period spent on death row (Andrews v. the United States of America, Case No. 11.139, Report No. 57/96, OEA/Ser/L/V/II.98, §§ 178‑83; Joseph Thomas v. Jamaica, Case No. 12.183, Report 127/01).", "54. The Privy Council, examining cases from Caribbean Commonwealth States, had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those States' Constitutions. Initially, the Privy Council considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings (de Freitas v. Benny [1976] A.C. 239, Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342), or indeed about any delay, “whatever the reasons”, including a temporary moratorium on executions which had been lifted (Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719).", "55. In 1993, departing from its earlier decisions, the Privy Council held that to execute the appellants, who had spent almost fourteen years on death row and had on three occasions lived through last minutes stays of execution, would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment (Pratt and Morgan v. The Attorney General for Jamaica and another [1994] 2 A.C. 1).", "56. In Pratt and Morgan, part of the relevant period was taken up by a temporary moratorium on executions.\n“[P]olitical debate on the desirability of retaining the death sentence in Jamaica ... resulted in a resolution of the Senate on 9th February 1979 to suspend all executions for a period of eighteen months pending the report of a Committee of inquiry. The Committee of Inquiry was appointed in June 1979. Before the Committee reported, an execution took place on 27th August 1980 which drew a protest to the Jamaican Privy Council from the Chairman of the Committee. No further executions took place before the Committee reported in March 1981. On 12th May 1981 executions were resumed” (Pratt, § 16).", "57. The judgment in Pratt and Morgan stated, inter alia:\n“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as 'inhuman or degrading punishment or other treatment' within the meaning of section 17(1) [of the Jamaican Constitution] there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime...\nIn their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence...\nThere may of course be circumstances which will lead the Jamaican Privy Council to recommend a respite in the carrying out of a death sentence, such as a political moratorium on the death sentence, or a petition on behalf of the appellants to [international human rights bodies] or a constitutional appeal to the Supreme Court. But if these respites cumulatively result in delay running into several years an execution will be likely to infringe section 17(1) and call for commutation of the death sentence to life imprisonment.”", "58. Further, calculating the normal length of relevant appellate proceedings in Jamaica and taking into consideration the time necessary for examination of applications to the Inter American Commission of Human Rights and the UN Human Rights Committee, the Privy Council held that:\n“in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment”.", "59. In cases which followed the Privy Council accepted a claim that a period of four years and ten months also warranted a finding in favour of the appellant (Guerra v. Baptiste and Others [1996] 1 A.C. 397) but dismissed appeals concerning shorter periods (Henfield v. The Attorney General of the Commonwealth of The Bahamas [1997] A.C. 413; Fischer (No. 1) v. The Minister of Public Safety and Immigration and Others (Bahamas) [1998] A.C. 673; and Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55) and held that save in exceptional circumstances, periods of pre-sentence detention should not be taken into account since, inter alia, “the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution, but ... anxiety and concern of the accused”(Fisher, § 14). In Higgs and David Mitchell, the Privy Council stated, inter alia:\n“If a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death... In Pratt ... the [Privy Council] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair. It is not the delay in itself which is a cruel and unusual punishment..., 'it is the act of hanging the man that is rendered cruel and unusual by the lapse of time”.", "60. The Supreme Court of India found that execution following inordinate delay after sentence of death violated Article 21 of the Indian Constitution which provides that “no one shall be deprived of his life or personal liberty except according to procedure established by law” and that the reasons for the delay were immaterial (Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348, Sher Singh and Others v. the State of Punjab [1983] 2 S.C.R. 582 and Smt. Treveniben v. State of Gujarat [1989] 1 S.C.J. 383).", "61. The United States' Supreme Court has refused to accept claims that lengthy detention on death row violated the prohibition, contained in the Eight Amendment to the Constitution of the United States of America, of cruel and unusual punishment, emphasising that the delay is due to the convicted person's own decision to make use of all possibilities to appeal (Knight v. Florida, 528 US 990).", "62. The Supreme Court of Canada has held that Canadian constitutional standards did not bar extradition to the United States of America of a defendant facing the death penalty (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779). However, in 2001 it changed its approach and held that if the person being extradited could face the death penalty, constitutional standards required that in all but exceptional cases assurances must be sought from the United States of America that the death penalty would not be imposed or, if imposed, would not be carried out (United States v. Burns, [2001] 1 S.C.R. 283)." ]

[ 1 ]

[ "5. The applicant was born in 1926 and lives in Florence.", "6. He is the owner of a flat in Florence, which he had let to A.B.", "7. In a registered letter of 10 June 1983, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.", "8. The tenant told the applicant that he would not leave the premises.", "9. In a writ served on the tenant on 22 December 1983, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.", "10. By a decision of 16 January 1984, which was made enforceable on 19 June 1984, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1984.", "11. On 17 September 1987, the applicant served notice on the tenant requiring him to vacate the premises.", "12. On 23 October 1987, he informed the tenant that the order for possession would be enforced by a bailiff on 15 December 1987.", "13. Between 15 December 1987 and 15 March 1999, the bailiff made thirty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.", "14. Pursuant to section 6 of Law no. 431/98, the enforcement proceedings were suspended until 10 September 1999.", "15. On 26 March 2001, the tenant agreed to leave the premises on 31 December 2002.", "16. On 31 December 2002, the applicant recovered possession of the flat." ]

[ 3, 9 ]

[ "5. The applicant was born in 1934 and lives in Warsaw, Poland.", "6. In 1989 the applicant, a lorry driver, was involved in a traffic accident. As a result of that accident he sustained serious head injuries. Subsequently, he was granted a disability pension.", "7. In 1991 a criminal court acquitted the applicant of breaching traffic regulations and established that the accident had been caused by a defective road surface.", "8. On 15 May 1992 the applicant lodged with the Warsaw Regional Court (Sąd Wojewódzki) an action for damages against the State Treasury – the Kielce Regional Directorate of State Roads (Dyrekcja Okręgowa Dróg Publicznych) and the State Insurance Company (PZU S.A).", "9. On 29 September 1992 the court decided to transfer the case to the Kielce Regional Court. On 30 October 1992, upon the applicant’s appeal, the Warsaw Regional Court quashed the decision of 29 September 1992.", "10. A hearing listed for 16 April 1993 was adjourned.", "11. A hearing scheduled for 18 June 1993 was adjourned at the request of the defendants.", "12. Subsequently, on 28 September 1993 the court held a hearing at which it heard the applicant.", "13. On 23 November 1993 the Busko-Zdrój District Court, at the trial court’s request, heard certain witnesses.", "14. On 11 February 1994 the trial court held a hearing at which the parties applied to adduce new evidence. Upon the defendants’ application the court adjourned the hearing sine die.", "15. On 14 February 1995 the court ordered an expert opinion. In June 1995 the opinion was submitted to the court.", "16. Between 12 February 1994 and 4 February 1996 no hearings were held.", "17. Subsequently, hearings were held on 5 February 1996, 13 May 1997 and 5 January 1998 at which the court heard expert witnesses and ordered new expert opinions.", "18. At the hearing held on 3 April 1998 the court joined as co-defendant a certain road works company.", "19. On 8 June, 10 September and 15 December 1998 the court held hearings. All of them were adjourned at the request of the defendants or because of the absence of witnesses.", "20. On 14 January 1999, at the trial court’s request, the Kielce District Court heard a witness.", "21. Subsequently, the trial court held hearings on 8 February and 1 April 1999.", "22. On 23 September 1999 the Warsaw Regional Court gave judgment. It awarded the applicant non-pecuniary damages and a monthly allowance to be paid by the State Treasury – the Regional Directorate of State Roads. The court dismissed the applicant’s claims in respect of two other co-defendants.", "23. On 3 March 2000 the State Treasury lodged an appeal against the judgment.", "24. On 31 July 2000 the Warsaw Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment in respect of the monthly allowance awarded to the applicant and remitted it to the first-instance court. It upheld the remaining part of the judgment.", "25. In February and March 2001 the applicant applied to adduce new evidence and asked the court to speed up the proceedings.", "26. The trial court held the first hearing on 20 September 2001.", "27. In 2002 the court held four hearings.", "28. On 19 January 2004 the Warsaw Regional Court held a hearing and on 22 February 2004 it gave a partial judgment (wyrok częściowy). The proceedings in respect of the remainder of the claim are pending before the Warsaw Regional Court." ]

[ 3 ]

[ "8. The applicant was born in 1951 and, at the time of lodging her application, lived in Nizip, Gaziantep, Turkey. She now lives in Paris, having apparently been granted asylum in France. The applicant stated that she made the application not only on her own behalf but also on behalf of her daughter and deceased husband. The case concerns the applicant’s allegations that her husband, Mehmet Şen, was abducted, tortured and killed by members of the security forces.", "9. The facts surrounding the death of Mehmet Şen, are in dispute between the parties.", "10. The facts as presented by the applicant are set out in Part A below. The facts presented by the Government are contained in Part B. The witness evidence taken by Delegates of the Commission at a hearing in Ankara is summarised in Part C. The summary of the other evidence submitted by the parties, in documentary form, which the Court considers relevant is to be found in Part D.", "11. The applicant’s husband, Mehmet Şen, was a Turkish national of Kurdish origin. He was an active member of the Democracy Party (the “DEP” Party) in Turkey until it withdrew from local elections. He had been the Party’s candidate for the post of the Mayor of Ayran (Birecik, Şanlı Urfa) in the 1994 local elections.", "12. Throughout his involvement with the DEP, Mehmet Şen was followed and threatened by plain-clothed police and this continued after the withdrawal of his candidacy. On 25 March 1994 Mehmet Şen informed the applicant that he was not being followed by the usual plain-clothed policemen but by other people whom he said might be “hit-men”.", "13. On 26 March 1994 at approximately 5 p.m., two plain-clothed policemen had a drink at the Çağdaş café in Birecik, which was owned by Mehmet Şen and Rasim Ağpak. At approximately 7 p.m., a Doğan SLX car (registration number 34 PLT 30) blocked the door of the café. Three plain-clothed persons entered, leaving the car engine running with a fourth person remaining in the vehicle. One of the three persons asked Rasim Ağpak whether he was Mehmet Şen. When he answered negatively, the person approached Mehmet Şen, who confirmed his identity and showed his identity card. Before the nine people in the café, the abductors stated that they were plain-clothed police who were there to take Mehmet Şen to the Security Directorate. Mehmet Şen was grabbed by the arms and taken away in the waiting car. It was later ascertained that a second car with four persons inside had left with the Doğan SLX vehicle.", "14. Upon hearing the news of the abduction, the applicant contacted, inter alia:\n(a) the Nizip Anti-Terrorism Department, who denied holding Mehmet Şen or any knowledge of the abduction;\n(b) the Gaziantep Security Directorate who also denied all knowledge; and\n(c) the Gaziantep Branch of the Human Rights Association, with a request that they look into the matter.", "15. Other persons also contacted the Gaziantep Security Directorate on the applicant’s behalf, but were told that Mehmet Şen was not in custody.", "16. On 28 March 1994 the applicant applied to the Nizip Prosecution by way of petition, reporting that Mehmet Şen had been abducted.", "17. On 30 March 1994 an unknown person telephoned the “Özgür Gündem” newspaper and the Gaziantep Branch of the DEP, saying that Mehmet Şen’s body was at the Gaziantep State Hospital. The applicant went to the hospital and, on examining the corpse, concluded that her husband had been killed under torture. She saw the body with the right eye gouged out, the right side of the head crushed to pieces, a broken right arm, broken fingers, marks of blows to the body, and a bullet wound to the head and one to the neck, with no traces of blood, implying that the shots had been fired after death.", "18. An autopsy report concluded that there was a bullet wound to the left side of the chest, a bullet wound above the right eyebrow, fired at almost point blank range, exiting the body from the back of the head, a bullet wound to the left cheek, fired at a distance of 95 cm, which had travelled through the body and lodged in the rib cage, that there were no other wounds, blows to the body or head, and that death had been caused by the bullet to the head.", "19. On 31 March 1994 the applicant and the DEP Member of Parliament for Siirt, Naif Güneş, met the representative of the Governor of Gaziantep. The Gaziantep Security Director and the Provincial Gendarmes Commander were also present. The Gendarmes Commander said that the body of Mehmet Şen had been found by a shepherd near the village of Karpuzkaya in the Şehit Kamil District of Gaziantep, and that the gendarmes had collected the body. The State Prosecutor, Naci Ayaz, gave the applicant the same information. He also stated that the body had had no identity card on it, and therefore the autopsy report was headed “unidentified body”.", "20. However, the applicant was informed that a person at the hospital had witnessed four plain-clothed policemen take Mehmet Şen’s body to the hospital morgue on the night of 29 March 1994.", "21. On 13 April 1994 the Gaziantep Branch of the Human Rights Association, on behalf of the applicant, made an application to the Governor of Gaziantep and the State Prosecution. On 22 April 1994, the Governor replied that it had not been possible to determine any suspect or suspects but that the inquiries were continuing. The State Prosecution also indicated that the inquiry into the death was continuing.", "22. The applicant was not satisfied with the inquiries and the answers she had been given. The official information she had received was allegedly inconsistent with her own. She therefore continued contacting the State for answers. She was informed on 26 May 1994 by the State Prosecutor that there had been no developments.", "23. According to the statements of Osman Özer, Durmuş Kaplan, Maksut Yıldırım, Rasim Ağpak and Abit Şahin, who had been present when Mr Şen was abducted on 26 March 1994, three people entered the café where Mehmet Şen was playing cards. One of them asked where he could find Mr Şen. When Mehmet Şen presented himself, he was asked to show his identity card. Then the person in question came closer to Mr Şen and showed him a card, the details of which the witnesses could not see. Osman Özer and Maksut Yıldırım also stated that the persons who came into the café had not openly presented themselves as plain-clothed policemen, so they could not say for certain that they were. Rasim Ağpak stated that Mehmet Şen had not asked any questions or resisted the abductors. It was as if he had known them.", "24. On 29 March 1994 Mehmet Şen’s body was found near the quarry of Karpuzkaya on the Kahramanmaraş-Gaziantep highway construction site. On the same day an autopsy was carried out. The autopsy report concluded that death had resulted from a fractured skull, the destruction of the cellular tissues of the brain and an internal haemorrhage due to a bullet wound. There were no signs of assault or torture.", "25. The Nizip Public Prosecutor started an investigation into the killing of Mehmet Şen. On 18 May 1994 a decision of non-jurisdiction was issued and the file was sent to the Gaziantep Public Prosecutor. According to the preliminary findings, Mehmet Şen had not been taken into custody by the security forces. The car in which he was driven away carried a false registration number. The investigation was still pending in June 1996.", "26. The facts of the case being in dispute between the parties, three Delegates of the Commission took evidence in Ankara between 16 and 18 June 1998. The applicant appeared before the Delegates, as did ten other witnesses for one or other party. Certain other witnesses had been summoned but failed to appear. The evidence of those who attended the hearing may be summarised as follows:", "27. Mrs Şen was born in 1951 and had been married to Mehmet Şen since 1971. She had been a teacher and he ran the Çağdaş coffee house in Nizip, owned by his brother. He had had no personal enemies or debts. Nor had he been involved in any vendetta.", "28. Mr Şen became politically active around 1991, helping to create the HEP Party and the DEP Party in 1992. The DEP withdrew from the 1994 local elections due to the intimidation of its members (threats, detention and murders).", "29. Her husband had been a leading member of DEP and, when he stood as a candidate for the post of the Mayor of Ayran in early 1994, he was threatened by the Gendarmes Station Commander of that constituency (who may have been called Sergeant-Major Orhan), and regularly picked up by the police for questioning. He was so intimidated that he resorted to carrying a licensed gun and rarely went out alone. He was taken to the police station many times and harassed. He sold the gun eventually as he was detained several times at night with a view to ascertaining whether the gun had been involved in incidents. However, this was just part of the harassment to which he was subjected.", "30. Two days before he was abducted, Mr Şen told his wife that he was being followed by hit-men, men who were not his previous surveillance officers. He had been alerted to this possibility by an acquaintance who had been detained and interrogated about Mr Şen, and about whom the interrogators had said that Mr Şen would be “done away with”. Some seven people had been killed in the recent past by unknown perpetrators because of their DEP affiliation and/or membership of the Kurdistan National Assembly. These hit men were not recognised by Mr Şen, who had known most of the local policemen. They were of medium height and able-bodied, carrying radios and guns. Mrs Şen had understood her husband to mean that they were contra-guerrillas operating under State authority, as confirmed in the later Susurluk report[1].", "31. On 16 March 1994 Mrs Şen was informed of her husband’s abduction 5 minutes after its occurrence by Osman Özer, one of the café’s employees. Mr Özer told her that two strangers had been in the café for tea. They seemed tense, made a telephone call and left. Then a Doğan SLX car (registration number 34 PLT 30) stopped in front of the café, blocking the door. Of the four unknown people in the vehicle, one stayed in the driver’s seat with the engine running, another, carrying a gun and a radio, waited at the door. That man was well dressed and middle-aged. Two others, casually dressed, strong looking and with apparent special training, walked towards Rasim Ağpak, who looked rather like Mr Şen, and then moved on to Mr Şen, who identified himself. The two flashed identity cards at the people in the café. The armed man at the door spoke into his radio, “OK, Sir, we’ve got him”, and then said to Mr Şen, “You’re coming with us to police headquarters. We have business with you.” Mr Şen tried to ask questions but was dragged towards the door by the two men, holding him under his armpits. He was put in the back of the car, which drove off immediately. Despite the shock and panic of the people in the café, they managed to note down the registration number of the car.", "32. These matters were discussed over and over again in the following days with Osman Özer, Rasim Ağpak, Maksut Yıldırım and Durmuş Kaplan because Mrs Şen wanted to learn as much as possible about the details of the incident. It was during such discussions with others that she learnt that another car, with four other plain-clothed people in it, drove off behind the first. She had not talked to Abit Şahin, who had also witnessed the events, as she did not know him.", "33. The people in the café had said that the abductors had been policemen because of the gun, the radio, the identity cards they had shown everyone and what they had said. However, the café witnesses were taken from their homes in the ensuing days, at 2 o’clock in the morning, for interrogation, and statements were demanded of them. This had intimidated them.", "34. Immediately after Mr Özer’s call, Mrs Şen called the Nizip Police Headquarters and the Anti-Terrorism Department. They said that they had not taken him into custody and had no information about him. They confirmed that they would investigate. She tried contacting the Mayor, a Member of Parliament, a delegation from Switzerland and DEP members, for them to make inquiries about her husband’s fate.", "35. Mrs Şen’s inquiries with the Urfa, Gaziantep and Birecik Police proved fruitless. Travelling had been difficult at the time because of roadblocks and identity checks, through which only the security forces could pass easily. She nevertheless went to Adana after she had been told by a lawyer called Çağatay Özaslan that the car number plate was a forged one used by the Adana Police. The Public Prosecutor there was not helpful. He referred to a DEP Member of Parliament who had been killed and added, “What can I tell you? What can I do?” She was advised to go home and wait.", "36. She then met a DEP member called Müskün Kurucu who told her that the Gaziantep branch of the DEP had telephoned to say that she should return home immediately. On her arrival, she was told that the body of her husband was in the morgue at the State hospital. The Gaziantep DEP and the newspaper “Özgür Gündem” had been telephoned by a well-spoken Turkish lady who had provided this information. Mr Şen’s relatives were called and Mrs Şen met her sister-in-law and father-in-law at the hospital, where a crowd had gathered, cordoned off by the police.", "37. Mrs Şen was not informed of the circumstances surrounding the recovery of the body. Subsequently, the Public Prosecutor of Gaziantep, Mr Naci Ayaz, informed her that the body had been found by the gendarmerie in the rural area of Karpuzkaya, in the Şehit Kamil District of Gaziantep. The body was unidentifiable, as it had no personal belongings or identity card on it, until the inner pocket of the suit, which the corpse was wearing, was ripped open to disclose Mr Şen’s name, written by his tailor on the lining. However, Mrs Şen said that the suit had not been tailor-made, but had been a ready-to-wear purchase from a shop. She did not recall the gendarmes mentioning this matter to her. She therefore insisted on further information as to how her husband’s body had been identified. She was told that her husband’s belongings were to be kept for the investigation. A ring and watch were returned to her father-in-law in the autumn of that year.", "38. The sight of her husband’s body was horrible: the right side of his head had been smashed; his right eye was not in place; his right hand fingers and arm appeared broken, and there was a hole through his throat with no blood around it. She saw only one bullet wound. She insisted on having a copy of the autopsy report, which she was not given until long after the burial, and which did not correspond to her observations (such as its description of two other bullet wounds to the face).", "39. Mrs Şen told the Public Prosecutor that her husband had been tortured, and insisted that a murder investigation be conducted. However, the Public Prosecutor would not listen to her and no statement or information was sought from her. As she persisted in visiting the Prosecutor regularly, a statement was taken from her a month later on 26 April 1994. However, no progress whatsoever was made in the investigation, even years later.", "40. After her husband had been killed, her house was put under constant surveillance, all visitors being recorded, and many asked by the policemen on duty why they were visiting such terrorists. Her 12-year-old daughter had been stopped as she was leaving school and asked by plain-clothed policemen whether her mother used her as a courier and what kind of papers she was carrying. She was so scared by this and the idea that she might be killed like her father, that she stopped attending school.", "41. Mrs Şen received threatening telephone calls at that time. The caller said that he was a contra-guerrilla and that she would be killed too. She changed the locks on the doors to her home as her husband had had his house keys on him when he had been abducted. She and her daughter were away on 28 May 1994 when special policemen unsuccessfully tried to enter the house, according to the employees of the bakery situated on the ground floor of her building. The police then went to the house of Mrs Şen’s friends where her daughter was staying and asked why they had taken in a terrorist’s daughter. The father of that family was placed in custody for four or five days and interrogated about his relationship with the Şen family.", "42. Mrs Şen was warned not to go home as there was a purple civilian car waiting at the corner of the street and that she would be taken away. Since then she has not returned home even to recuperate her belongings or souvenirs of her husband. Out of the same concerns, she was living separately from her daughter.", "43. She was taken into custody on 10 November 1995 in Diyarbakır and interrogated for 11 days about her alleged membership of the PKK (the Kurdistan Workers’ Party) (see her other application to the Convention organs – Nuray Şen v. Turkey, no. 41478/98, judgment of 17 June 2003).", "44. Mr Şen was an elderly gentleman, born in 1916. He was the father of the deceased Mehmet Şen. His son had not told him of his fears for his life prior to his abduction, nor of the difficulties he had faced as a politician. He had had no enemies whatsoever. Everyone liked him.", "45. Mr Şen was informed the morning after the event that his son had been seized by policemen the evening before. He intuitively knew that he was dead. He went to Nizip. His daughter-in-law had gone to Adana in search of her husband. In Nizip he heard from Gaziantep that his son had been killed.", "46. Mr Şen went to the Gaziantep Hospital to identify the body. He did not meet Nuray Şen there. He could not bear to look at his son’s tortured corpse, but noticed that an eye was missing, apparently caused by a bullet wound, and that he had a fractured finger. His son’s clothing was bloodstained. Apparently he had been killed by the police, perhaps because of his candidacy for Mayor.", "47. The police ordered him to remove the body, but he did not do so until the following day. A great crowd gathered. They took the body back to the village and buried it. There were police and gendarmes everywhere on alert, who behaved disrespectfully. Nuray Şen was at the funeral.", "48. One or two months later he was called to appear before the Prosecutor and Judge to receive his son’s personal possessions. He took the watch and ring but not the clothes which were soaked in blood. The only inquiry made later was by the Gendarmes Station Commander, Sergeant-Major Orhan, about Nuray Şen’s stay with him for 9 or 10 days, which dates the gendarmes deliberately recorded wrongly.", "49. Mr Şen was born in 1970. He was no relation to the deceased Mehmet Şen and did not know him.", "50. In May 1994 the witness was stopped at a police roadblock at the exit from Nizip, where everyone’s identity was checked. One could not leave Nizip without going through this checkpoint. He was also given a body search and asked why he was carrying a copy of the newspaper “Özgür Ülke”. He alleged that, because of his surname and the possession of the newspaper, he was taken into a field by three officers and tortured with beatings for two or three hours. In view of this experience, he could understand how Mehmet Şen had died.", "51. Mr Aktaran was born in 1958 and was a Public Prosecutor at Gaziantep a year after the events, from February to August 1995.", "52. The investigation into the death of Mehmet Şen was opened by the Gaziantep Chief Prosecutor, Naci Ayaz. The file was subsequently transferred to him. It contained witness statements taken by the police, Mrs Şen’s statement to the Prosecutor and the autopsy report, but provided no serious leads as to the perpetrator of the crime. There was no ballistic expertise of the bullet found in Mr Şen’s body or of the empty cartridge found near his corpse. No evidence had been taken from police witnesses because none had been identified as being implicated in the death. The suggestion that Mr Şen had been involved in vendettas was not taken up as it had no serious basis.", "53. On receiving the file, the witness found lacking an inquiry into the registration number of the car in which Mr Şen had been abducted – a honey-coloured vehicle with a registration containing the letters PLT, PUC or PUD. This inquiry revealed that either the car had had false number plates or that the witnesses had been mistaken about the registration number. He did not seek other information following the evidence of the eyewitness Osman Özer as to a green car with the number 34 PVC 30 or 34 PVD 30. He was unaware of any significant discrepancies in the overall evidence on this or other points.", "54. Mr Aktaran considered that he and his colleague had conducted a satisfactory investigation in the circumstances. Prosecutors do not need to take further evidence from people whose statements have already been taken by the police. At the outset he had been open-minded about the applicant’s allegation that the security forces might have been involved in the incident. However, there had been nothing in the various statements taken to suggest that an inquiry into any particular officers was required. He placed a permanent search warrant on the file, so that the investigation would remain open for another 20-25 years should new evidence appear.", "55. Mr Kelleci was born in 1973 and at the material time was working as a reporter for the Gaziantep office of the “Özgür Gündem” newspaper. He had been acquainted with Mr Şen.", "56. In a general operation against the “Özgür Gündem” newspaper on 11 December 1993, the witness was taken into custody and held for some six days. On the fourth day of his interrogation, the name of Mehmet Şen was mentioned with a threat “to finish him off” or “do him in” along with two other named persons. Mr Şen’s name was cursed. The witness thought that the remarks were intended to be passed on to Mr Şen. He later informed Mr Şen of this threat and advised him to take care.", "57. The next time he saw Mr Şen was at the morgue. His newspaper had been telephoned with the news by a well-spoken Turkish lady. He had taken the call himself. When he saw the corpse, of which he took photographs, he remarked the strange position of the wrists, which looked fractured. He did not see the injured side of the face which was turned parallel to the table. No autopsy had been performed on the body at that stage.", "58. On returning home from the morgue, he received an anonymous telephone call also threatening him with death.", "59. Mr Kelleci accompanied Mrs Şen and a delegation to the Governor’s office on 31 March 1994. Afterwards, the witness saw the Gaziantep Gendarmes Commander, Chief of Police Hüseyin Çapkın and the Deputy Governor. They stated that Mr Şen’s death was possibly linked to gambling debts and had not been perpetrated by the State. He told them of the death threat he had personally received but it was not taken seriously. They persisted with the gambling debt theory and assured him that Mr Şen’s murderer would be found.", "60. Mr Alan was born in 1958 and was a tailor by profession in Gaziantep, as well as the Chairman and District Leader of the DEP Party at the material time. He knew Mehmet Şen from their common political activities. In those days there had been many killings by unknown perpetrators which, together with the bombing of the Party’s headquarters in Ankara, led to their withdrawal from the imminent elections.", "61. Mr Şen came to his shop four days before his abduction and offered to repair his car. When driving it away, the witness noticed that Mr Şen was being followed by a white police car, a Renault Toros. This had happened to him too. The occupants were obviously plain-clothed policemen, whom he could identify if he saw them again. All Party members were under great pressure at that time. Even after the Party’s withdrawal from the elections, it continued: he was taken into custody at midnight on 29 March 1994, four days after Mr Şen’s abduction, and challenged about disseminating propaganda for the Welfare Party instead.", "62. On the drive into custody, he was told that Mr Şen had “changed worlds”, and that he would be “sent to the place where he is”. He had understood the remarks to mean that Mr Şen was dead and that he would be killed too. (He had not heard of the recovery of Mr Şen’s corpse at that stage, so he was not too sure.) Panicking, the witness claimed to have made certain telephone calls before he had been taken from his house, including a call to the normal police. He was then punched and, before the car left town, it turned round and deposited him at the police anti-terrorism department, some 220 meters from his house.", "63. Mr Alan was held in police custody for 16 days. The custody records indicating a shorter period were incorrect. He was interrogated under torture. Mr Şen was not mentioned but Mr Alan was told that his Party was “finished in Nizip”. He was subsequently remanded in custody for three months, accused of being, inter alia, a member of, and aiding and abetting, the PKK. On release, these charges were dropped and a remaining charge of possessing a gun without a licence was still pending. [2]", "64. Dr Erkol was born in 1962. She had worked as an expert in forensic medicine and as a lecturer at the Medical Faculty of Gaziantep University since 1990.", "65. Dr Erkol performed the autopsy on Mehmet Şen, whose identity was unknown at that time, as was that of his killer. Given the frequent blood feuds in the area, she suspected that the murder was another of that kind. She was struck by the fact that the victim had been blindfolded. Dr Ahmet Aslan, an unspecialised physician, assisted her at the autopsy. The Public Prosecutor, Naci Ayaz, whom the witness described as a meticulous and responsible professional, attended the procedure.", "66. The body, fully clothed, was inspected on site and photographed by Dr Aslan and the Prosecutor. It was then taken to the hospital for examination. The bloodstains on the victim’s jacket indicated that he had been shot whilst clothed and still alive. The clothes were removed at the morgue. Dr Erkol had been told prior to the autopsy, and then saw herself, that the name of Mehmet Şen had been written in biro on the inside pocket of the jacket, but that was insufficient evidence of identity. She did not follow the local news, so had not heard about Mr Şen’s abduction. It was not her responsibility to identify the corpse.", "67. The body was X-rayed to verify the placement of any bullets still lodged in it. The X-rays were not kept. There were two bullet wounds to the head, one bullet having remained lodged in the chest. They had caused extensive fracturing, brain damage and haemorrhaging, resulting in death, some 36 hours to four days before the autopsy. It would appear that Mr Şen had been killed two or three hours after his last meal. It was not possible to be more precise about the time of death given the limited facilities available in Gaziantep. The bullet which had entered and exited the skull had torn the victim’s eye out. Neither the arms nor fingers had been fractured, but their distorted position would have been due to the onset of rigor mortis.", "68. The remaining bullet would have been kept. It was probably of a wide calibre – 9 mm – fired from a short-barrelled gun, within a 95 cm range of the body. A ballistic analysis could prove valuable only if linked to a suspect weapon and a comparative study.", "69. The body showed no trace of ill-treatment. In the absence of any obvious external signs or allegations of torture, no examination of the internal organs was conducted. However, the body had begun to decompose, presenting signs of post-mortem discolouring, distortion through rigor mortis, and, with the bullet injuries and autopsy incisions, was a very ugly sight. An untrained person might understandably misconstrue these elements as evidence of ill-treatment. Moreover, the body was not washed down after the autopsy, so it may have looked even bloodier. Washing was for the hoca, a religious leader on duty at the morgue, or the family to perform. The hole in the throat seen by Mrs Şen would have been an autopsy incision.", "70. People cannot enter the morgue without the Prosecutor’s authorisation, other than perhaps a very close relative who might be allowed to view the body by the hoca. She could not tell from the poor photocopy of the photograph taken by the journalist, Mr Kelleci, purportedly of Mr Şen’s corpse in the morgue, whether that photograph had been taken before or after the autopsy. However, judging by the position of one of the hands in the photograph, it was probable it had been taken before the autopsy had been conducted.", "71. It transpired that the photographs provided by the Government at this point in the hearing, and in respect of which the witness noted several contradictions with the autopsy findings, were not of Mr Şen’s corpse.", "72. Mr Güdül was born in 1947 and was the official chauffeur for the law courts. He also accompanied the Prosecutor at autopsies.", "73. In the present case he had driven the Prosecutor to where the body had been found. It was on the road construction site but accessible by car, albeit very dusty because of the nearby sand quarries and frequent heavy lorry traffic. There were gendarmes at the scene, as well as a finger print expert, a clerk and a doctor. The Prosecutor made a record which included the position of the body. This procedure took about an hour. The body was lying on its back, clothed. There was a yellow, car-polishing cloth over its eyes. There was blood on the ground which had come from the back of the head. The body was transported by ambulance to the Gaziantep State Hospital morgue as an on-site autopsy was not possible. There had been no discussion as to its identity.", "74. He was sure that no one saw the corpse at the morgue other than the officials concerned. He described the same X-ray, medical procedures and findings as Dr Erkol, having been present throughout. He did not recall the name of Mr Şen being inscribed inside his jacket. He had had no idea who the individual was. That was a police matter. For him it was just an ordinary incident. He did not recall being present when Mr Şen’s father arrived at the morgue to identify the corpse, although his signature had been on the relevant document. The circumstances had been very distressing at the time.", "75. Mr Pekbalcı was born in 1956 and was a farmer by profession. He had been working on the road construction site, obtaining materials from the quarry using explosives. He had had a fright after one particular detonation when he spotted a corpse about 10 m away from him, which, without approaching it, he reported to the Gendarmes Station of Aktoprak. He signed a statement to that effect at the station. The place where the body was found was accessible by car but was frequented mostly by lorries. He had been working with İbrahim Kilit at the time.", "76. Mr Sünbül was born in 1970 and was a Gendarmes Non-commissioned Officer. At the material time he was Station Commander at the Şehitarif Sub-station which was attached to the Central District Station in Gaziantep. His superior was Hüseyin Kanat, the District Gendarmes Commander.", "77. Mr Sünbül had been at his station when MM Pekbalcı and Kilit reported the presence of a corpse on the Tekfen highway construction site. He took statements from them and then went with a unit of his men to the location. There they found the clothed body of a man, some 45-50 years old, lying on his back, with firearm wounds to his head and face. He checked the throat artery, confirming death, cordoned off the area and notified his superiors. Although there appeared to be two bullet wounds, only one cartridge was found, despite a thorough search of the immediate vicinity. He had no idea of the time of death or how long the body had been there. The person in charge of the criminal laboratory at the Provincial Gendarmes Headquarters took photographs. These would still be in the gendarmes’ files if they had not been sent to the Public Prosecutor.", "78. The next day he typed up a report from his notes about the corpse, which had not been identified as no identity papers had been found, although Mr Şen’s name had been written on the jacket. The Prosecutor must have been shown that. He had not been aware of Mrs Şen’s missing person report the day before. His station had not been informed of that. The abduction had taken place in Nizip and his station would not have been informed unless directly asked to make inquiries. He presumed that his superiors had conducted the necessary inquiries after he had told them about the name in the jacket.", "79. Mr Sünbül sent the empty cartridge case, together with the person’s ring and watch and the documents he had prepared, to the Public Prosecutor that day. The blindfold was also transmitted. It had the name and number of a petrol station on it, about which inquiries were made by his superior officer. No analysis was carried out of the soil near the corpse for the fibres of other clothes or the like. He could not recall whether casts were made of the footprints near the body.", "80. The body’s location had been accessible by car. The area consisted of compacted earth on which there were footprints. Only the site workers frequented the area and the body had been well hidden from view. There were no vehicle tracks within an 8 to 10 m perimeter of the corpse.", "81. He did not recall whether there had been checkpoints in place on the day the body was found. Subsequently, he interviewed local villagers and site workers in an unsuccessful effort to gather information about the incident. It would have been possible to have transported Mr Şen to the site using secondary roads and thus avoiding the road-blocks on the main route. If he had been informed of Mr Şen’s abduction, he would have instructed the checkpoints under his control to look out for him. At the checkpoint, people’s identity cards would be checked manually against a list of wanted persons. The officers could also search vehicles and persons who were suspect.", "82. Mr Kanat was born in 1969 and he was the Şehit Kamil District Gendarmes Commander at the material time, with six stations under his command, including a large central station. The workload was very heavy.", "83. After being notified of the incident by the Station Commander, he in turn notified the Provincial Gendarmes Commander and the regiment’s operations centre. He accompanied the Public Prosecutor to the scene, which had already been secured on his instructions by the Station Commander. The regiment’s team of crime specialists arrived in separate vehicles and carried out a systematic and detailed investigation. The photographs which they had taken should have been retained at the Gaziantep Central Gendarmerie. They would have been sent to the Public Prosecutor if requested. They were kept principally to assist in identifying the body and showing them to people assisting with the inquiries.", "84. Mr Kanat confirmed Mr Sünbül’s description of the corpse, the bullet wounds, the empty cartridge and the name written inside the jacket. The body seemed to have been in place for some time – perhaps 15 or 16 hours. He thought that a ballistic test had been made at a later date. The results would be in the Prosecutor’s file. The blindfold was marked with the name of a service station called Petrol Ofisi, from which it was thought that the victim could have been from Nizip. However, he had not heard of the abduction of Mr Şen beforehand. The area was searched for footprints or other leads. Footprints were found near the body which could have been those of the people who had discovered it. However, they were not recent enough for casts to be made.", "85. On the instructions of the Prosecutor, they searched the body and found a small piece of paper in the inner pocket of the jacket with the name Mehmet Şen written on it. It could also have been the case that the name had been written in very small letters on the pocket lining. Perhaps a dry cleaner had done this. They took the blindfold and notified the regiment’s operations’ centre to confirm the person’s identity. This was not confirmed until the witness returned to the main station in Gaziantep. He was not present at the autopsy but did attend the funeral.", "86. After establishing that the deceased person was Mehmet Şen, Mr Kanat went to Nizip where he started his inquiries. According to the statements of witnesses, the victim was last seen playing cards at the coffee shop. Three people entered the café and then left with him by car. The vehicle bore the registration number 35 PLT (or PLV) 30 which, following inquiries by the provincial police headquarters, proved to be false. Other similar numbers were searched unsuccessfully. He rejected any suggestion that the security forces in the area had been operating in vehicles with false number plates. All their vehicles had official plates. Inquiries were also made as to the identity of a woman who worked in a nightclub, and who was mentioned in the statements taken, but a check on all the nightclubs proved fruitless. Nothing suspicious was reported by the local stations or the check-points on the main road. In any event, it would not have been possible for them to check every passing vehicle as traffic was heavy. Besides, the killer could have taken the secondary roads with no roadblocks.", "87. At first he did not consider the possibility that the death had been perpetrated by officials. He thought that this was a settling of scores within the “organisation”, particularly as the victim had been a candidate in local elections, and such unpleasant incidents frequently occurred at the time. Later however he did make unofficial background inquiries into Mrs Şen’s allegation of official involvement, particularly concerning police employees, but he found no evidence to support her claims. He thus rejected this theory. He made no contact himself with Mrs Şen, the café employees or any DEP Party members. Statements were taken by his subordinates about the murder. The police also took statements, possibly because of the abduction offence which had occurred within their jurisdiction. No records were drawn up of inquiries which proved fruitless. So, for example, if someone had gone to the aforementioned petrol station but inquiries there had revealed nothing pertinent, no record of that visit would have been made.", "88. More than ten people had been murdered by firearms during the three years he was stationed in the area. Most of the perpetrators of those crimes had been found. The killer of an unknown person, whose head had been crushed beyond recognition, was not found, like the murderer of Mr Şen. These two incidents were unusual. He had heard that seven members of the DEP Party had been murdered, but did not know if it had occurred at the material time. He had not heard of groups of contra-guerrillas employed unofficially to eliminate political opponents or activists, other than what he had read in newspapers.", "89. Certain key witnesses failed to appear before the Delegates of the Commission: the eyewitnesses to the abduction of Mr Şen from the coffee shop, namely Osman Özer, Rasim Ağpak, Maksut Yıldırım, Durmuş Kaplan and Abit Şahin, who were to have been summonsed through the applicant’s representatives, and the principal Public Prosecutor in the case, Naci Ayaz, summonsed through the Government Agent. Mr Ayaz refused to attend the hearing because of a heavy workload. 1. The applicant’s complaint of 28 March 1994 to the Office of the Nizip Public Prosecutor and the latter’s ensuing investigative instructions", "90. The applicant declared that her husband had been abducted from his place of work by plain-clothed policemen on 26 March 1993 around 7 p.m. and that she had had no news of him since. There had been seven eyewitnesses to the event. The applicant also lodged a formal criminal complaint. The Prosecutor immediately ordered the Nizip Security Directorate, urgently, to make the necessary inquiries and take the pertinent statements. On 30 March 1994 the Prosecutor issued a similar instruction to the Gaziantep Population Service. That day, he also issued the burial certificate and authorisation. On 18 April 1994, the Prosecutor requested an urgent reply to his instructions from the Nizip Security Directorate.", "91. The Prosecutor, Naci Ayaz, instructed the Gaziantep Gendarmerie to make an in-depth, discreet investigation into the murder, to identify the assassins, and to respect their defence rights on arrest, to take the evidence of eyewitnesses and to transmit the results to him.", "92. Mr Kilit described how his colleague, Selahattin Pekbalcı, had found the corpse of Mehmet Şen while working nearby on 29 March 1994, and he had driven over with his lorry to see it and immediately notified the gendarmes. He did not get out of the lorry to examine the corpse more closely. Mr Pekbalcı stated that he had been recuperating cables for explosives work and, while walking down the highway, he had spotted the corpse. He then informed Mr Kilit and accompanied him to the gendarmerie.", "93. Mr Mehmet Sünbül, a Gendarmes Sergeant, recorded that Mr Pekbalcı had said to him that he had spotted the corpse on the highway construction site but had been too scared to go over to it. Mr Sünbül had made a sketch of the site and the placement of the corpse. That record also contained details of the few personal effects found on the deceased, which effects included a ring and watch.", "94. Mr Sünbül had made a sketch of the site and the placement of the corpse. He recorded that the body of an unidentified person had been found. The deceased was Mehmet Şen, killed by a bullet to the head. The crime had probably been committed some 24 to 36 hours before the body was discovered. The identity and number of the assassins were unknown. The minutes described, inter alia, how the gendarmes had been informed of the incident and the state of the corpse (see also paragraph 95 below).", "95. The Gendarmes Command had informed the Prosecutor’s Office by telephone that the body of an unidentified man had been found, shot, 2 km from the village of Karpuzkaya. Prosecutor Naci Ayaz and other officials went to the scene of the incident at the highway construction site. The area had been cordoned off. The state of the body was described and the evidence of Mehmet Sünbül was taken. He said that around 2 p.m. that day two construction workers had come to the Gendarmes Station and reported the body. He went with his team and the two workers to the scene. He found the body of a man of around 40 years of age, and gave other details about the corpse. An empty cartridge had been found a metre away. He noted that the name Mehmet Şen had been written in biro on the lining of the inside pocket of the deceased’s jacket. Photographs were taken of the body and the scene. The doctor present said that an autopsy could not be conducted there and then as night was falling, so the body was taken to the State Hospital.", "96. The state of the corpse and its clothing were described. The cause of death was found to have been a bullet wound to the skull, causing major brain damage and haemorrhaging, some 36 hours to 4 days before the examination.", "97. The report, written by Mr Hüseyin Kanat, described the finding of the body of an unknown person who had been murdered with a 9 mm calibre pistol. The deceased’s clothes and personal effects were depicted. On 29 March 1994 around 2 p.m. a telephone call was received at the gendarmerie from someone calling himself Mehmet Şen (sic), reporting the finding of a male corpse. The Chief Prosecutor was immediately informed. After an investigation, it was established that the person had been killed on 28 March 1994.", "98. The report, also written by Mr Hüseyin Kanat, gave the identity of the victim, his wife and their address. It mentioned the abduction on 26 March 1994 and that inquiries were continuing.", "99. The Prosecutor, Naci Ayaz, described the finding of an unidentified corpse near the Karpuzkaya village on 29 March 1994 and the subsequent identification of the body by Necip Şen, the father of the victim, the next day.", "100. The property found on or near the deceased was listed. It included a 9 mm empty cartridge, cigarettes and a lighter, and a windscreen cloth from the Bucak petrol station.", "101. Mr Kaplan stated that he had known Mehmet Şen for some 5 to 10 years. Mr Şen had been his associate in running the Çağdaş Café. On 26 March 1994 around 4 or 5 p.m., Mr Şen had been playing cards in the café with others. Mr Kaplan had been at another table. Three unknown men came into the café. Two stayed at the door and the third approached Mr Şen. While asking to see his identity, the man showed him his. The latter had had his back to Mr Kaplan and was carrying a walkie-talkie. One of the men at the door told him to hurry up, whereupon Mr Kaplan looked at him. He described that individual. Mr Şen left the café with them, quite normally, in a car with a registration number beginning with the numbers “34”. Before meeting Mr Şen, Mr Kaplan had known that he had been a heavily indebted gambler. Mr Şen’s brother in Germany paid his debts. Mr Şen knew a certain İnci Doğan, a hostess at the night club in Gaziantep. Mr Kaplan had previously discussed with Mr Şen the latter’s DEP Party candidature for the post of the Mayor of Ayran.", "102. Mr Kaplan confirmed his statement above (paragraph 101) and added that he had not seen whether an actual identity card had been shown to Mr Şen by the stranger who had approached him; nor did he hear the reason why Mr Şen was being taken away. Mr Şen had not seemed perturbed, however. Because of gambling debts amounting to 50-100 million Turkish lira, Mr Şen had sold two bakeries which he had owned, and his home and café were mortgaged.", "103. Mr Özer declared that he had known Mehmet Şen for 2 or 3 years. He was one of his associates in the running of the Çağdaş Café. On 26 March 1994 around 4 or 5 p.m., they had been playing cards with two others when three unknown men came into the café. Mr Özer described two of them. One man came over to the card table and asked for Mehmet Şen, who identified himself. On request, Mr Şen showed his identity card, which the man kept, and then showed his, asking Mr Şen to follow him, which he did without protest. The man said to them, “It’s not serious.” The four left in a metal green coloured Doğan SLX, registration number 34 PVC (or PVD) 30. He immediately notified Mrs Şen, but was unable to tell her who the men were. He added that he had read in the newspapers that Mr Şen had been a DEP Party candidate for the post of the Mayor of Ayran.", "104. Mr Özer essentially confirmed his statement of 1 April 1994 (paragraph 103 above), whilst amending the car registration number to 34 PLT (or PVT) 30, and adding that Mr Şen had had gambling debts and had been involved in a long-standing vendetta.", "105. Mr Şahin said that he had been a waiter at the Çağdaş Café. On 26 March 1994 Mehmet Şen had been playing cards with others there. All Mr Şahin had seen, around 7 p.m., was Mr Şen leaving with two other people, whose backs were turned to him and whom he was incapable of recognising or identifying. He had heard it said that these people had presented themselves as policemen.", "106. Mr Yıldırım had been playing cards with Mehmet Şen at the Çağdaş Café on 26 March 1994 when, around 5.15 p.m., a man had entered the café and asked Rasim Ağpak if he were Mr Şen, whereupon the latter identified himself. The individual showed Mr Şen a document enclosed in an identity wallet, and told him that he had to accompany him, which he did. Mr Yıldırım had not taken note of the individual or his appearance as he had had his back half-turned away from the man. Before leaving, Mr Şen asked Mr Özer for some money, but Mr Yıldırım had not looked at him at that point in order to avoid any embarassment. He had not been worried by any of this as he had been absorbed by the excitement of the card game. After drinking some tea, Mr Yıldırım went home. He knew that Mr Şen had been involved in a vendetta for years and that he liked going to nightclubs and gambling, thereby spending the money he made from the bakery which his brother had given him.", "107. Mr Ağpak said that on 26 March 1994, around 5.15 p.m., someone came up behind him while he was playing cards at the Çağdaş Café, asking whether he was Mehmet Şen. Before Mr Ağpak could turn round to see who was speaking to him, Mr Şen identified himself. Within a few seconds, Mr Şen had left the café. Mr Ağpak could not remember what the stranger had looked like or whether he had shown an identity card. He had continued playing cards as the matter did not concern him.", "108. On the basis of the statements made by the eyewitnesses, MM Kaplan, Özer, Yıldırım and Ağpak, a sketch was made of the inside of the Çağdaş Café where they had all been sitting when Mr Şen was taken away, the streets outside and the placement of the abduction vehicle, registration number 34 PLT 320 or 34 PVT 30.", "109. It was recorded that the investigations, including a car registration check, had so far not disclosed the identity of the killers of Mehmet Şen, but that inquiries were continuing.", "110. The report recounted that on 29 March 1994 the body of an unknown man was found 2 km from the village of Karpuzkaya. The autopsy revealed that he had been killed on 28 March 1994 by a gunshot wound to the head. Investigations discovered that the victim had been Mehmet Şen who, on 26 March 1994, had been abducted from a night club by three people in a car bearing the false registation number 34 PLT 30. Since then there had been no news of him.", "111. It was noted that the gold wedding ring and wristwatch belonging to Mehmet Şen were to be handed to his heirs.", "112. The applicant stated that her husband had been abducted from his café on 26 March 1994 around 7 p.m. by three people claiming to be plain- clothed policemen, in a honey-coloured Doğan SL car, registration number 34 PTL 30. Her enquiries of the local authorities revealed nothing. She later learnt of and saw his tortured body at the morgue of the Gaziantep State Hospital. The applicant recounted her husband’s fears on 25 March 1994 about two men who had been following him, and the eyewitness accounts of two strangers being in the café drinking coffee on the afternoon of the abduction. She suspected that her husband had been abducted, tortured and killed by contra-guerillas.\nb) on 25 April 1994 to the Diyarbakır Human Rights Association", "113. This statement essentially contained the applicant’s original allegations described above (see paragraphs 11-22 and 27-39). She added that she was now convinced that her husband had been abducted, tortured and killed by contra-guerillas because of his political beliefs and activities for the DEP Party.\nc) on 26 April 1994 to Prosecutor Naci Ayaz", "114. This statement essentially contained the applicant’s original allegations described above (see paragraphs 11-22 and 27-39). She claimed that four people had abducted her husband (rather than the three previously mentioned, paragraph 112 above). She could conceive that her husband had been murdered because of his political affiliations and ambitions, but was now of the view that it had been the work of contra-guerrillas. Seven DEP Party members had been abducted and murdered to date. She confirmed her criminal complaint and asked that her husband’s killers be brought to justice.\nd) on 13 May 1995 to the Kurdistan Human Rights Project, London", "115. The applicant recounted how her father-in-law, Necip Şen, had been called to the office of the Birecik State Prosecutor and handed his son’s ring and watch. He was informed that no progress had been made in the identification of his son’s murderers. However, on the many occasions on which the applicant had gone to the Gaziantep Prosecutor’s Office for a progress report, she had been told that no personal possessions had been found on her husband’s corpse. She therefore deduced that the Turkish State knew of her husband’s murder / murderers, and demanded to be told, inter alia, how the State had obtained the ring and watch, from whom, and for how long they had kept them, as well as the identity of the murderers and her husband’s last words.\ne) again on 13 May 1995 to the Kurdistan Human Rights Project, London", "116. Mrs Şen alleged that her father-in-law had been mentally tortured by the Urfa Anti-terrorist Department in January 1995 to give information about her current whereabouts and activities. Her relatives in Nizip and Gaziantep were being put under similar pressure. So she could no longer go home or work. Since giving an interview to Amnesty International, she had been denounced as a PKK member at a press conference given by a Turkish Government spokesman, relayed in the press and on television. Her death warrant had thereby been signed by the State and she requested international support. (The applicant later made other statements to the Convention organs, alleging her ill-treatment, which statements were dealt with separately in application no. 41478/98, decision of 30 April 2002.)", "117. Mr Dirik was recorded as saying that people had knocked on his door at 3.30 a.m. on the same day as Mehmet Şen’s abduction, 26 March 1994. İsmail Kelleci, a journalist at the “Özgür Gündem” newspaper, had been told by the Gaziantep Security Directorate in December 1993 that they knew what Arif Dirik and Mr Şen had been doing, that their patience had run out and that they were going to kill the two of them. Mr Dirik declared that he could no longer go home and that, if any action was taken against him, it would be the responsibilty of Hüseyin Çapkın and the Gaziantep Security Directorate. 25. The letter dated 22 April 1994 from the Gaziantep Provincial Gendarmes Command, on behalf of the Governor, to the Gaziantep Human Rights Association", "118. In response to their inquiries, the Association was informed that it had not been possible to determine the identity of the offenders, but that the investigation was being pursued in many directions in order to cast light on the incident.", "119. The letter enclosed the latest statements (three), records (four) and a rough sketch that had been drawn up for the investigation file.", "120. The Nizip Prosecutor stated that he had no geographical jurisdiction in the matter of the murder of Mehmet Şen. Accordingly, he referred the file to the Gaziantep Prosecution.", "121. In response to a request for information, the Governor explained that Mrs Şen had filed a petition with the Nizip Prosecutor on 28 March 1994 concerning the abduction of her husband. A body was found on 29 March 1994. The autopsy established that the victim had been shot, and inquiries revealed that the deceased was Mehmet Şen. The security forces denied any involvement in the matter. Any allegation to the contrary was an absolute, slanderous lie. Allegations by Mrs Şen that she had been ill-treated were also untrue. An investigation into the registration number, 34 PLT 30, of the car in which Mr Şen had been taken away, revealed false plates.", "122. The Prosecutor, Zekâi Aktaran, instructed the gendarmerie to make an in-depth, discreet investigation into the murder, to identify the assassins, and to respect their defence rights on arrest, to take the evidence of eyewitnesses and to transmit the results to him.", "123. The gendarmes recorded that little progress had been made in the investigation concerning the murder of Mehmet Şen. No new clues had been revealed by their inquiries, which were continuing.", "124. Lieutenant Hüseyin Kanat reported to the Gaziantep Prosecutor that no progress had been made in the identification of the corpse found shot on 29 March 1994. Moreover, no information had been gleaned concerning the murderer(s). The gendarmes had no clues or evidence which could throw any light on the case. The investigation would continue.", "125. Prosecutor Zekâi Aktaran requested the directorate to run a search on a metallic green Doğan SLX car, registration number 34 PUC (PUD) 30, or a honey-coloured Doğan SLX car, registration number 34 PTL 30. The directorate replied on 18 April 1995 that these registration numbers belonged to other vehicles of different makes and colours.", "126. The warrant stated that the search for the guilty person(s) had continued but their identity had not been established. The search would be kept open until time-barred on 30 March 2014, in accordance with Article 102 (1) of the Criminal Code. A letter of inquiry would be addressed to the gendarmerie every three months in the meantime.", "127. The reports recorded that on-site inspections of the scene of the crime had been made but no new elements had been discovered. The local villagers had been unable to shed light on the facts of the case and inquiries would continue.", "128. The destruction of the respective 1995 and 1997 monthly progress reports concerning attempts to identify the perpetrators of the murder on 28 March 1994, in the region of the Karpuzkaya village, was noted.", "129. The reports recorded that the investigation into the murder of Mehmet Şen had been concluded without the perpetrators being found, but that efforts to do so would continue. Some of these reports mentioned the patrol visits to the village of Karpuzkaya, 2.5 km from where the body of Mr Şen had been found. The villagers recalled the incident, but had not known the deceased and could not provide any further information, other than the idea that the incident could have been caused by passers-by on the inter-city road.", "130. The reports repeated the preceding gendarmes progress reports.", "131. Mr Oruç submitted a similar statement to that of Mr Yusuf Şen (paragraph 50 above) and Halil Alan (paragraphs 60-63 above): He had been taken into custody (authority unspecified) on 30 March 1995, on suspicion of being active for the PKK. He alleged that he was asked whether he knew Mehmet Şen who, because of his illegal activities, they had killed. He was then warned that, if he failed to confess, he would suffer the same fate. (He had not appeared before the Delegates to testify to this, as had been proposed at one stage by the applicant’s representatives.)", "132. Mrs Dirik said that Mehmet Şen had been a family friend. He had telephoned her one or two days before his kidnapping in an anxious state. He had wished to speak to her husband who was not in. After his abduction, her husband went with Nuray Şen to Adana to inquire whether Mehmet Şen was in police custody there. While he was away, around 2 to 3 a.m. at night, her doorbell rang and there was a loud banging on her door. Peering through the curtains, she saw two men and a taxi. She made a couple of telephone calls and was advised not to open the door. She thought it could have been the police, as her husband would have used his key and he had previously been threatened and taken into custody because of his political and trade union activities. Eventually the strangers left. The next morning she saw that the doorbell had been broken. At the Human Rights Association the following day, she heard that the tortured corpse of Mehmet Şen had been found. On being informed of this, her husband never returned to Gaziantep.", "133. Mr Dirik confirmed his wife’s statement above (paragraph 132 above). Prior to the events in question, on 10 December 1993 İsmail Kelleci had been detained in an operation against the “Özgür Gündem” newspaper. Mr Kelleci had told Mr Dirik that the police had asked whether he knew him and Mehmet Şen, to which Mr Kelleci replied that he knew the latter. The police allegedly stated that Mr Dirik would soon be killed. Mr Dirik had been taken into custody several times, fortunately with others; otherwise he feared he might have disappeared too. He had been a refugee in Germany since Mr Şen’s death. 41. Extracts of the Report dated February 1995 of Amnesty International, entitled “TURKEY a policy of denial”, submitted by the applicant", "134. The Amnesty Report alleged gross violations of human rights being inflicted on civilians in south-east Turkey in the context of the 10 year old conflict between Turkish Government forces and the PKK. It reported disappearances, extrajudicial executions and torture in police and gendarmes stations.", "135. The Government informed the Commission that, on 10 November 1995, the applicant had been taken into custody on suspicion of being a member of the PKK, and was the subject of a criminal investigation by the Prosecution Service of the Diyarbakır State Security Court.", "136. The Government informed the Commission, inter alia, that the investigation into the death of Mehmet Şen, under file no. 1994/3941, by the Gaziantep Prosecution Service was still pending, the perpetrators of the crime not yet having been identified.", "137. The Government informed the Commission that an investigation had been carried out by the Public Prosecutor, under file no. 1996/4823, into the applicant’s allegations to the Commission on 25 April 1995 that she had been tortured during her detention between 10 and 21 November 1995. The medical examinations which had been conducted at the time, on her arrest and release, showed no evidence of any violence to her person and, therefore, the Prosecutor had closed the investigation.", "138. The reports stated that the bullet examined was of the SPB make, 9x19 mm calibre, which could not be traced to any other previous incident involving unknown perpetrators. The report was accompanied by a covering letter dated November 1997 (actual day illegible), from the Gaziantep Central Gendarmes Command, explaining that an empty cartridge marked “Parabellum SPB”, found at the scene where the body of Mehmet Şen had been discovered, had been sent for an expert examination." ]

[ 0 ]

[ "8. The applicant is a Polish national who was born in 1952 and lives in Lębork, Poland.", "9. On 23 May 1990 the applicant acquired the right to a long-term lease of a flat (spółdzielcze lokatorskie prawo do lokalu) in a building owned by the Lębork Housing Co-operative (Spółdzielnia Mieszkaniowa).", "10. On 22 July 1993 the co-operative sued the applicant in the Lębork District Court (Sąd Rejonowy), seeking payment. On 25 October 1993 the court gave judgment and granted the claim. The applicant appealed against this judgment. On 19 January 1994 the Słupsk Regional Court (Sąd Wojewódzki) amended the first-instance judgment.", "11. Subsequently, the applicant twice requested the Minister of Justice to grant her leave to file an extraordinary appeal with the Supreme Court (Sąd Najwyższy). Her first request was rejected on 10 October 1994.", "12. On 31 January 1997, upon the applicant’s second request, the Minister of Justice filed a cassation appeal on the applicant’s behalf, contesting the judgment of the Słupsk Regional Court of 19 January 1994.", "13. On 29 April 1997 the Supreme Court quashed both judgments given in the applicant’s case and remitted the case to the court of first instance. It held that the lower courts had committed serious errors of fact and law.", "14. On 28 October 1997 the Lębork District Court joined the applicant’s case with similar proceedings against seven other members of the co‑operative.", "15. On 19 March 1998 the court held a hearing.", "16. On 8 May 1998 the court ordered that expert evidence be obtained.", "17. On 9 June 1998 the court exempted the applicant from half of the court fees due. The applicant appealed. On 29 December 1998 the Słupsk Regional Court rejected her appeal.", "18. On 29 February 2000 the trial court ordered that further expert evidence be obtained. On 19 May 2000 the expert submitted his report to the court. On 4 October 2000 the applicant challenged the expert’s opinion of 19 May 2000.", "19. On 5 October 2000 the court held a hearing and listed the next hearing for 17 October 2000.", "20. On 1 March 2002 the District Court gave judgment. On 8 April 2002 the applicant appealed against this judgment.", "21. It appears that the proceedings are pending." ]

[ 3 ]

[ "5. The applicant was born in 1939 and now lives in Israel. He owns ninety-nine per cent of the shares in Jason Development Enterprises Ltd (hereafter the “JDE”), a company registered in Ukraine.", "6. On 27 September 1997 the Vadul-Syretska Customs Service of the State Customs Department of Ukraine conducted a customs check of the coffee-tilling goods supplied by the Jason Industries company (the company owned by the applicant) as a contributory to the statutory fund of the joint‑stock company, JDE. The customs check showed that a cargo-customs declaration had been made by the representatives of JDE on the basis of false documents. On 29 September 1997 the Vadul-Syretska Customs Service initiated a criminal investigation into alleged smuggling and fraud offences.", "7. On the same date, the case was transferred to the prosecution service of the Chernivtsi Region (hereafter “the prosecution”) for further investigation. On the basis of resolutions of the prosecution of 10 and 20 October 1997, 18 November 1997 and 19 January 1998, the Vadul-Syretska Customs Service seized documents pertaining to the financial and commercial activities of JDE.", "8. On 13 October 1997 the prosecution seized the goods supplied to the statutory fund of JDE as evidence and on 16 October 1997 it froze JDE’s accounts. It also seized all of the company’s documentation, including accounting books and copies of contracts, as well as other property belonging to the company and the applicant.", "9. On 28 January 1998 the applicant was detained on suspicion of having committed a criminal offence under the Criminal Code of Ukraine (the “CCU”).", "10. On 30 January 1998 the prosecution ordered the applicant’s detention on remand in view of the pending criminal investigation against him.", "11. On 4 February 1998 the prosecution charged the applicant with smuggling (Article 70 of the CCU), financial fraud (Article 148-5 CCU) and fraud committed by an official (Article 172(2) CCU).", "12. On 5 February 1998 the prosecutor extended the deadline for the investigation by four months.", "13. On 17 March 1998 the prosecutor extended the applicant’s detention on remand by four months.", "14. On 6 April 1998 the prosecutor extended the deadline for investigation by five months and fourteen days.", "15. On 9 June 1998 the applicant was additionally charged with tax evasion (Article 148-2(2) CCU) and deliberate use of a forged document (Article 194(2) CCU).", "16. On 10 June 1998 the applicant was notified about the completion of the investigation.", "17. On 30 January 1999 the deputy prosecutor approved the bill of indictment issued by the investigating officer.", "18. On 3 February 1999 the case file was transferred to the Leninsky District Court of Chernivtsi (the “District Court”).", "19. On 29 June 1999 the District Court ordered the prosecution to conduct an additional investigation into the circumstances of the case since the investigation was incomplete. In the course of the proceedings the applicant lodged a motion with the District Court, seeking his release. His motion was rejected by the District Court since there was a risk that he might abscond.", "20. In July 1999 the prosecution sought the annulment of the remittal decision before the Chernivtsi Regional Court (the “Regional Court”) on the ground that there was already sufficient corroborating evidence.", "21. On 10 August 1999 the Regional Court rejected the prosecution’s application, considering that it was necessary to undertake additional investigations in order to reconstruct the crime.", "22. On 25 August 1999 the applicant was released from detention on the basis of the resolution of the prosecution’s investigator. The applicant was required not to leave his place of residence.", "23. On 22 September 1999 the applicant’s recognisance not to abscond was changed to an undertaking to appear before the investigating authorities and the court. On the same date, the criminal investigation against the applicant was suspended due to the issue of a search warrant against Ms Lodyanova (a suspect in the case).", "24. In September 1999 JDE instituted proceedings in the District Court against the Government of Ukraine, the Chernivtsi Regional Administration and the prosecution, seeking the return of its property and documents.", "25. On 15 September 1999 the District Court, by a letter addressed to JDE, stated that it would not consider the complaints directed against the legal entities as it had no jurisdiction over them.", "26. On 1 October 1999 the District Court, following JDE’s additional submissions, refused to consider the complaints against the Government of Ukraine and the prosecution service, on the ground that the complaints were outside its jurisdiction. It also held that the State arbitration courts had jurisdiction in the matter.", "27. On 27 October 1999 the Regional Court allowed JDE’s cassation appeal, quashed the ruling of 1 October 1999 and remitted the case for reconsideration by the same court.", "28. On 3 November 1999 the District Court suspended the proceedings in the case due to JDE’s failure to comply with the formal requirements of the Code of Civil Procedure for the introduction of the complaints (Article 137 of the Code). The court gave JDE until 16 November 1999 to rectify the mistakes.", "29. On 17 November 1999 the District Court refused to consider JDE’s claims because of its failure to comply with the ruling of 3 November 1999. On 1 December 1999 the Regional Court upheld this decision.", "30. On 14 December 1999 JDE lodged further complaints against the Government of Ukraine, the Chernivtsi Regional State Administration and the Prosecution Service of the Chernivtsi Region.", "31. On 6 January 2000 the District Court left JDE’s complaints without consideration on account of its failure to comply with the formal requirements of Article 137 of the Code of Civil Procedure for the introduction of complaints. JDE was given until 14 January 2000 to rectify the mistakes.", "32. On 17 January 2000 the District Court refused to consider JDE’s complaints due to its failure to comply with the ruling of 6 January 2000.", "33. On 2 February 2000 the Regional Court quashed the ruling of 17 January 2000 and remitted the case for consideration on the merits to the same court.", "34. On 24 April 2000 the District Court rejected JDE’s motion concerning compensation for moral and material damage caused to JDE by the Government of Ukraine, the Chernivtsi Regional State Administration and the Prosecution Service of Ukraine. In particular, it found that JDE’s complaints amounted to a separate claim, which had to be lodged with the court in compliance with Article 137 of the Code of Civil Procedure.", "35. On 25 April 2000 the District Court, in the course of a hearing in the presence of the parties, refused to consider JDE’s claims for the return of property and documents as being outside the courts’ jurisdiction, in accordance with Articles 227-1 and 248-3 of the Code of Civil Procedure and Article 234 of the Code of Criminal Procedure. It also decided to terminate the proceedings in the case.", "36. On 31 May 2000 the Regional Court upheld this decision. In particular, it stated that, for the time-being, JDE’s claims could not be determined in civil proceedings. It also noted that a different procedure for their consideration existed in the domestic law.", "37. In May 2000 the applicant instituted proceedings in the District Court against the prosecution, demanding termination of the criminal investigation against him. On 2 June 2000 the District Court rejected his claims as being outside the court’s jurisdiction under Article 248-3 of the Code of Civil Procedure and Article 234 of the Code of Criminal Procedure. In particular, it specified that the applicant had not availed himself of a special procedure for lodging complaints against acts of the investigator carried out in the course of the pre-trial investigation.", "38. On 20 July 2000 the criminal investigation was terminated on account of lack of corroborating evidence.", "39. On 19 September 2000 the deputy prosecutor quashed the resolution of 20 July 2000 due to the investigating officer’s failure to comply with the District Court’s instructions of 29 June 1999 (see paragraph 19 above). The prosecution remitted the case for additional investigations.", "40. On 22 November 2001 the District Court passed a resolution authorising the apprehension of Ms Lodyanova.", "41. On 7 December 2001 the prosecution informed the applicant that the criminal charges against him were still being investigated.", "42. The criminal investigation is currently suspended due to the nation-wide search for Ms Lodyanova." ]

[ 3 ]

[ "6. The applicant company has its registered office in Paris. The other two applicants were born in 1946 and 1957 respectively and live in Paris and Saint-Cloud.", "7. In its issue no. 1272, dated 1 February 1997, the weekly magazine Le Point published an “investigation” headlined “Vichy: Around the Papon Case”. Several pages focused on Mr Michel Junot, under the headline “1942-1943 Revelations: Michel Junot, deputy to mayor Jacques Chirac on the Paris City Council from 1977 to 1995, was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. The article included the following passages:\n“'It has to be said that, all political consideration set aside, Vichy's civil servants gave a remarkable example of efficient, skilful and honest administration.' That good-conduct citation, awarded in 1981, does not come from Maurice Papon, who has now been committed to stand trial in the Bordeaux Assize Court for 'complicity in crimes against humanity'. Those are the exact words used in L'illusion du bonheur, a book published ... by Michel Junot, a deputy mayor when Jacques Chirac ran Paris City Council between 1977 and 1995, who knows his subject, since he was Deputy Prefect in Pithiviers, in the département of Loiret, in 1942 and 1943. In that capacity he supervised the maintenance of order in the camp of that town, where thousands of Jews were interned before being deported to Auschwitz. Unlike Maurice Papon – and this is a significant difference between the two cases – he did not order anyone to be arrested, interned or transferred to Drancy.\nAfter the war Michel Junot enjoyed a brilliant career in France's highest administrative spheres before turning to politics. He was to become a member of parliament for Paris from 1958 to 1962, giving his allegiance to the CNI, which he never left. But it was on Paris City Council, where he served as mediator from 1977 to 1989 that he spent the longest part of his career. He is a former MEP and since 1978 has been the president of the Maison de l'Europe in Paris.\nUntil now, he has always maintained that the internment camps in his district, Pithiviers, and Beaune-la-Rolande some twenty kilometres away, were not under his control. His main duties were to inspect the local districts and to compile 'general and confidential information' files on local dignitaries. The Pithiviers camp? 'it was not under my jurisdiction. I never set foot in it' he told L' Express magazine in 1990.\nAn outright denial which is, however, inconsistent with several documents not previously published which Le Point has managed to obtain. Documents which clarify his field of activity.\n... when he was appointed Deputy Prefect at Pithiviers on 9 June 1942 ... the camps at Pithiviers and Beaune-la-Rolande, originally intended for German prisoners of war, were already being used as internment camps prior to their inmates being deported, the first having left on 8 May 1942.\nMichel Junot, who was to remain in office for exactly a year to the day, took up his post in Pithiviers on 24 August 1942, that is, less than a month before the departure, on 20 September 1942, of a fresh transport of Jewish deportees.\nOn that day a thousand detainees arrested during house-to-house searches in the Paris region, including 163 children under 18, were put on transport no. 35 and shipped off to Auschwitz via Drancy, the camp to the north of Paris.\nOn the eve of their departure, Michel Junot informed the Prefect of his concerns about maintaining order. 'I hereby inform you that I have just been notified of the entrainment of a thousand Jews from the Pithiviers camp tomorrow from 5 p.m. onwards at Pithiviers railway station, and that all the gendarmes in my district apart from one officer per squad are therefore required to assist with the entrainment ... .' ...\nTwo days later, on 22 September, Junot did not hide his satisfaction when sending the Prefect the following report: 'The day of 20 September 1942 went very smoothly throughout my district. The limited police presence planned for the afternoon of 20 September could not be deployed ... because all the gendarmes in the area, except for one officer per squad, were required for the entrainment of the Jewish detainees of the Pithiviers camp, whose departure I was suddenly notified of on 19 September at 3 p.m. The entrainment was to take place between 4 and 7 p.m. at Pithiviers station at the far end of the avenue de la République where the communists had called on ... the inhabitants of Pithiviers to demonstrate at 6.30 p.m., and I was concerned that some incidents might occur which could disrupt an orderly departure. But nothing of the sort happened and the town remained perfectly calm.' ...\nThen, in a 'monthly report' drafted eight days later for his superiors, he scrupulously went over the events again.\nOn 30 September 1942 he reported in detail on the situation in the two 'internment camps', as he headed the third paragraph of his report. 'The Beaune-la-Rolande camp, which has been empty since the end of August, has been cleaned', Junot stated. 'The conditions there are now excellent. Two transports of Jews passed through and spent twenty-four hours there before leaving for Drancy. There are only about twenty detainees left at the camp, doing maintenance work.'\nMichel Junot went on: 'The Pithiviers camp had been occupied since the end of August by 1,800 Jewish internees of all categories, French and foreign, men, women and children, some arrested during the August and December 1941 round-ups, others for having infringed the regulations of the occupying forces (demarcation line, wearing the star of David, etc.). All of them, except those married to Aryans and a few mothers of young children, were placed on trains bound for Germany on 20 September. Finally the last internees left Pithiviers in the evening of the 24th for Beaune-la-Rolande so as to clear the camp, which was due to receive communist internees. In fact this last Jewish transport spent only twenty-four hours in Beaune before being sent on to Drancy on the orders of the occupying forces.'\nDrancy was the last stop in France before they were deported to Germany and the final solution: their physical destruction. ...\nOn reading this dry civil servant's prose, the Acting Prefect of Loiret, Jacques Marti-Sane, expressed his satisfaction in writing. He was pleased with the orderliness which had prevailed during the entrainment of the deportees, who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers.\nIn an internal memorandum dated 1 October 1942 – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture, who was responsible for organisation and surveillance: 'The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions. In any event, in his capacity as the government representative in Pithiviers, he has the right to monitor the proper functioning of the camps. Accordingly, it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect, so that he is not bypassed.' ...\nNo fewer than seven transports left from camps in Loiret between June and September 1942, the last one under Junot's responsibility.\nIn his October report, the Deputy Prefect expressed his concerns over the difficulty in maintaining order in Beaune-la-Rolande, which was full of 'French and foreign Jews who have contravened the regulations of the occupying forces (in particular, attempts to cross the demarcation line) and whom the German police have sent to the Beaune camp'. As a conscientious official, Michel Junot went so far as to suggest: 'If there is a further rise in the number of internees, we should make plans to strengthen the security arrangements.'\nIn the same report, he pointed out that communists were gradually replacing the Jews in Pithiviers, though there were still 1,574 of the latter on 30 October 1942 compared with 1,798 on 26 September.\n'The presence of this camp inside my district means that the sub-prefecture is receiving a number of letters asking for leave to visit and even for people to be released. I have had some standard-form replies drafted explaining that I have no power to take such measures and that only the Prefect who took the internment decision has any authority in that respect. There is nothing to report from the camp, which is guarded most efficiently by a detachment of gendarmes', he wrote.\n...\nOn the day of the liberation of Orléans, 16 August 1944, Michel Junot was present. He waved the tricolour from the balcony of Loiret's prefecture. And he stood at the head of the prefecture steps to welcome André Mars, the commissaire de la République sent by General de Gaulle. But that did not stop him being swept away in the subsequent purge. On 14 December 1945, ten months after awarding Junot a 'certificate of participation in the Resistance', de Gaulle signed a decree removing him from office. The hero of Free France was acting in response to a decision of the National Purification Commission based on a report from the Loiret departmental liberation committee stating that Junot was 'a typical careerist, devoid of all moral scruples, not to be allowed to hold any kind of public office'.\n \nHowever, like many servants of the French State, Junot claimed to have been playing a double game. He explained that he had worked for a 'network' of the Central Intelligence and Action Bureau ... citing his activity on behalf of General de Gaulle's intelligence service in London under the Occupation and the medals he had received as a result. He must have been persuasive, because when peace returned he was to be found once more as permanent secretary to various Ministers, before becoming a deputy prefect again in 1956 and then prefect in 1957. ...”", "8. An interview with Mr Junot was also published as part of the investigation. It included the following statement by him:\n“... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps. At that time I did not know who was interned there. There had been communists, at the time of the breaking of the Germano-Soviet pact. And there were foreign Jews. We did not know their ultimate destination. We only knew that they were going to Drancy. Rumour had it that they were being sent to work in salt mines in Poland. We obviously knew that they were not going off on a pleasant holiday. But I did not learn of the existence of the extermination camps until April 1945 when the first deportees returned.\nWhen I took up office, on 24 August 1942, all the transports except one had already left.”\nWhen the interviewer asked Mr Junot if he thought this “renewed interest in those dark years” was “necessary for the young generations” he replied: “If Frenchmen in those days made mistakes, or sometimes committed war crimes, I think there is the discreet veil of history...”", "9. At 5 p.m. on 31 January 1997 the third applicant, who is a journalist with France Info (a radio station controlled by the applicant company), broadcast the following report:\n“According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.”\nThe way in which France Info operates is for the presenter to broadcast live, with two news bulletins and two news flashes per half-hour. He then breaks for an hour to update his information before going on air again. The above-mentioned broadcast was accordingly repeated by the third applicant and by other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, in either the same or a slightly different form. However, the broadcasts systematically specified that the report was based on an article published in Le Point. After 11 p.m., a number of news bulletins and flashes mentioned the fact that, “unlike Maurice Papon”, Michel Junot had never issued any orders for anyone to be arrested, interned or transferred to Drancy, sometimes adding that he was “responsible only for keeping order”.\nOn 1 February 1997, from 5.45 a.m. onwards, several news bulletins and flashes (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the allegations published in Le Point. According to the applicants, this point was made systematically after 11.04 a.m.", "10. Mr Junot brought proceedings in the Paris Criminal Court against the second applicant, who is publishing director of the applicant company (the publisher), the third applicant and the applicant company as principal, accessory and civilly liable respectively for the offence of public defamation of a civil servant, contrary to sections 29, first paragraph, and 31, first paragraph, of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”).\nIn their defence, the applicants argued that the case under section 31 of the 1881 Act was inadmissible, because Mr Junot had been retrospectively stripped of his status as a civil servant at the time of the Liberation. They also contended that the prosecution's case against the second applicant was inadmissible: the disputed statement had been broadcast live and its content could not therefore be construed as having been “fixed prior to being communicated to the public” within the meaning of section 93-3 of the Audiovisual Communication Act of 29 July 1982 (“the 1982 Act”). Moreover, they submitted that the third applicant had acted in good faith. In that connection, they argued that public interest in the period of the Occupation had been revived by the news of the Papon trial; that the third applicant had been in possession of the article published in Le Point on the previous day along with three agency dispatches; that it had been reasonable to link the cases of Mr Junot and Mr Papon because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers; that the use of the conditional tense and the absence of any personal comment about Mr Junot demonstrated the journalist's caution; and that France Info had reported Mr Junot's denials from 6 a.m. on 1 February onwards.", "11. By a judgment of 25 November 1997, the Paris Criminal Court (Seventeenth Division) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant. It fined them 20,000 French francs (FRF) each and ordered them jointly to pay FRF 50,000 in damages. It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on France Info every thirty minutes during a twenty-four hour period in the month following the date on which the judgment became final.\nWith regard to the defamatory nature of the disputed allegations, the judgment reads as follows:\n“Mr Junot is alleged ... to have personally played an active role in the deportation of Jews in his capacity as Deputy Prefect of Pithiviers. This allegation, which undoubtedly damages the honour of the civil party, is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before the Gironde Assize Court to answer charges that he participated in crimes against humanity – and that of Mr Junot, with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period, over which he believes that 'the discreet veil of history should be drawn'.\nThe fact that it was specified that, 'unlike Maurice Papon', Michel Junot 'did not issue any orders for anyone to be arrested, interned or transferred to Drancy' in no way detracts from the seriousness of the charge levelled at the civil party; the same can be said of the use of the conditional tense throughout the broadcasts.\nThe allegations in question also cast doubt on Mr Junot's membership of the Resistance, which was reported as a mere 'claim' on his part, and suggested that he had been stripped of his status by General de Gaulle at the end of the war. These words also damage the civil party's honour and reputation.”\nThe court found that Mr Junot had never lost the rank of Deputy Prefect, and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority. It found that section 31 of the 1881 Act was therefore applicable.\nWith regard to the good faith of the third applicant, the court found as follows:\n“There being a presumption that defamatory statements are made in bad faith, it is for the defendants to prove their good faith.\nIt should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence; such journalistic practice is particularly to be deprecated, because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty.\nThis is what happened with Mr Junot: having assumed that the enquiries made by his fellow journalists at Le Point were reliable, Bertrand Gallicher simply repeated the magazine's allegations against the civil party without checking them.\nAs evidence that he had carried out a serious investigation, Bertrand Gallicher told the Court that he had been in possession of the article published in Le Point on the previous day, and of three agency dispatches; however these dispatches, which simply quoted large sections of the magazine article, could not, without more, provide the journalist with a legal defence.\nThe journalist also produced the documents mentioned in Le Point: the Prefect's memorandum of 1 October 1942, Michel Junot's notes of 19 and 22 September 1942 and the monthly reports for September and October 1942; however, these documents did not give him grounds for asserting that Michel Junot, Pithiviers Deputy Prefect, had supervised the deportation of a thousand Jews or that he had admitted having organised the departure of a transport of Jewish deportees.\nNeither the memorandum from the Prefect of Loiret dated 1 October 1942 specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant, nor the memorandum of 19 September 1942 to the Prefect signed by Michel Junot and expressing his concerns about keeping order on 20 September 1942 in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the 'entrainment of a thousand Jews', nor the report drawn up by Michel Junot on 22 September 1942 on the events of the day, which had been 'perfectly calm', prove that Michel Junot, Deputy Prefect, had played a personal part in the organisation and departure of that transport for Drancy. In fact, what these documents show is that he complained of having been notified only belatedly of the 'entrainment of a thousand Jews', that he did not receive copies of all the instructions sent to the camp commandant, a memorandum from the Prefect having been required to ensure that he was not 'bypassed' and that his concern was to maintain order outside the camps.\nMichel Junot's monthly reports for September and October 1942 do not carry any more evidential weight in this respect; while the first mentions that most of the Jews in the Pithiviers camp had been 'entrained' on transports bound for Germany on 20 September 1942; while both report on the occupancy rate of the two internment camps situated in his district and thus establish his 'responsibility in principle' for the camps (using Mr Serge Klarsfeld's formula); while they keep the Prefect informed of relations with the German forces and the circumstances in which the anti-Jewish laws were being applied and certainly show that Mr Junot was performing his functions of Deputy Prefect under the Occupation with zeal and determination, and without being troubled by too many scruples, they nonetheless do not prove that he played a personal part in the deportation of Jews or that he organised the departure of a transport of Jewish deportees.\nTurning to the other documents cited by the defence, namely a letter dated 19 September 1942 from the secretary-general for the police on the Conseil d'Etat to the Orléans Regional Prefect and the latter's reply dated 21 September 1942, and a memorandum dated 19 September 1942 from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent, they cannot be regarded by the Court as having any evidential weight, since they are merely summarised on a plain sheet of paper.\nIn short, the documents in Bertrand Gallicher's possession did not give him grounds for alleging that Mr Junot was guilty of having participated in crimes against humanity.\nNor did these documents entitle the presenters who came on air after 0.33 a.m. on 1 February to repeat the allegation that the plaintiff had supervised the Jewish internment camps of Pithiviers and Beaune-la-Rolande and the maintenance of order in both camps.\nLastly, the testimony of Mrs Mouchard-Zay recounting the dramatic circumstances of the various round-ups of Jewish men, women and children, the conditions in which they were transferred to and arrived in the two camps of Pithiviers and Beaune-la-Rolande, and the dramatic change in public opinion which coincided with these events, does not prove that Mr Junot played any part in the organisation of these deportations.\nWhile being aware of the professional constraints imposed by the need to break news rapidly, which is inherent in the very nature of radio, the Court notes that the journalists, far from merely reporting raw news objectively, endorsed the interpretation adopted by some of their fellow journalists, while going further by making a connection with the 'Papon case', no doubt with the intention of making the story more sensational.\nThe disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations.\nIn relation to the allegation that Mr Junot was not a genuine member of the Resistance, the Court finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities, which in any event have been vouched for by Jean-Claude Aaron, the leader of the Masséna network, by Colonel Rémy and by several people of Jewish descent who described the help he had given them during the Occupation.\nFor all of the above reasons, the Court is unable to accept that [the third applicant] acted in good faith.”\nThe court found the second applicant, in his capacity as publishing director, not liable for the first broadcast, which had been made live by the third applicant on 31 January at 6 p.m. It found, however, that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air, and considered that such “systematic repetition of the disputed statements” should be construed as “rolling broadcasting” within the meaning of section 93-3 of the 1982 Act. The court concluded as follows:\n“[The second applicant], as publishing director, whose duty it is to control what is broadcast on the channel for which he is responsible, is therefore liable in law as principal for the offence of defamation.”", "12. On appeal by the applicants, the Paris Court of Appeal (Eleventh Criminal Appeal Division) upheld the judgment of 25 November 1997 by a decision of 17 June 1998.\nOn the question of the defamatory nature of the offending bulletin's content, it ruled as follows:\n“Words may be defamatory as the result of an insinuation, a question or an assertion. In addition, words must be assessed both in terms of their intrinsic meaning and in the light of their context.\nAttributing to Mr Junot responsibility for supervising the deportation of a thousand Jews and organising their despatch to Drancy was plainly an attack on his honour and dignity. The defence arguments ... tending towards proving the truth of the facts is not relevant here, quite apart from the fact that no evidence to that effect has been adduced. Moreover, comparing Mr Junot's position to that of Mr Papon, who had indeed just been committed for trial in the Bordeaux Assize Court, also necessarily had a defamatory resonance.\nThe same defamatory classification must also be given to the passage '[Mr Junot] ... claims to have been in the Resistance'. Coming as it does between the reference to his being sacked by General de Gaulle and the comparison to Mr Papon, this can only insinuate that Mr Junot's assertion was false.”\nOn the question of good faith, the judgment said:\n“Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language.\nThere is no doubt that providing information about the attitude of administrative officials during the period of the Occupation, particularly as regards one of the main dramas of that time, the deportation and extermination of Jews, is perfectly legitimate.\nNothing in the file reveals any particular animosity on the journalist's part towards the civil party.\nOn the other hand, the preliminary investigation was singularly lacking in rigour. The civil party has rightly observed that Mr Gallicher began to broadcast his remarks at 6 p.m. on 31 January, in other words when the issue of Le Point dated 1 and 2 February had just come out.\nIn seeking to establish their good faith the defence cite three dispatches (AFP, AP and Reuters) which mentioned the article in Le Point and the content of a television programme in which Mr Junot had taken part. But the use of agency dispatches as one's main source, especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made, if not to conduct an investigation, then at least to check the information. In addition, the wholly gratuitous assertion that Mr Junot admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view.\nAs regards the debate about whether Mr Junot had been a member of the Resistance, the Criminal Court rightly noted that the documents produced by the defence were not sufficient evidence to the contrary, whereas his participation has been attested to by the leader of the Masséna network, Jean-Claude Aaron, by Colonel Rémy and by a number of persons of Jewish origin who have drawn attention to Mr Junot's courageous attitude.\nMoreover, the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal, and here it should be noted, as clarification of this point may be helpful, that neither the use of the conditional tense pleaded in defence, nor the mention – very late in the day – of Mr Junot's denials, affect the gravity of the allegations made in dispatches broadcast several dozen times.\nThe content of the documents which the defendants learned of in Le Point is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect Junot's attitude at the time of the departure of the last transport of Jewish deportees on 20 September 1942.\nThe memo of 19 September from the deputy prefect to his prefect ... said: 'I have just been notified of the entrainment of a thousand Jews ... tomorrow', and he complained that he would therefore not have sufficient manpower to control a communist demonstration.\nThe same deputy prefect sent a memo, dated 22 September, informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly.\nThe memo of 1 October 1942 from the Prefect of Loiret seems to echo his subordinate's concerns about being informed in stipulating that the deputy prefect 'in his capacity as the government representative ..., has the right to monitor the proper functioning of the camps'.\nThe reports sent by Michel Junot to his prefect in September and October 1942 describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them.\nThe witness evidence heard in court did not provide any additional information about Mr Junot's duties.\nAs to the other documents produced in court, the Criminal Court rightly found, for reasons which the Court of Appeal endorses, that they did not appear to have been in the defendants' possession at the time when the statement was broadcast. Moreover, they do not necessarily weaken Mr Junot's argument, since they include one memo he wrote on 15 April 1943 to the Prefect of Orléans about improving the food and bedding in the camps. It ends with the following sentence: 'Although the management and administration of the camps does not form any part of my duties, I wish to bring this state of affairs to your attention ...'\nAll these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews.\nThe plea of good faith is accordingly rejected.”\nThe Court of Appeal noted the following in relation to the liability of the second applicant under section 93-3 of the 1982 Act:\n“... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control. But this cannot be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect. It is significant in this respect that such steps were taken from the morning of 1 February onwards, when the content of the offending statement was amended. Moreover, it would be stretching the concept of prior fixing to contend that it must involve mechanical recording. Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means. Therein lies the difference from 'live' broadcasting involving no repetition.”\nMoreover, by way of civil remedy, the court ordered the following announcement to be read out on France Info every two hours during a twenty-four hour period in the month following the date when the judgment became final:\n“By a judgment of the Paris Court of Appeal (Eleventh Division – Section A), Mr Bertrand Gallicher, journalist, and Mr Michel Boyon, publishing director of Radio France, were each fined FRF 20,000 and ordered to pay damages for having defamed Mr Michel Junot, former Deputy Prefect of Pithiviers. This judgment follows the broadcasting, on 31 January and 1 February 1997, of news bulletins falsely alleging that Mr Michel Junot had played a part in the deportation of a thousand Jews and wrongly casting doubt on his membership of the Resistance.”\nOn the subject of the broadcasting of the above announcement, the judgment reads as follows:\n“The Court is minded to uphold the order for the broadcasting of an announcement by France Info, which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of Articles 6 and 10 of [the Convention] ...\nThe Court does not agree, because freedom of expression under Article 10 of [the Convention] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others, which is the case here. It is true that the effect of this order, as indicated by the defence, will be to reduce the 'editorial space' available to France Info, but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect.\nLastly, it would be wrong to deny the claimant, whose rights are equally important, the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press.\nFurther, nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of Article 6 of the Convention ...”", "13. The applicants appealed on points of law. They submitted that the Court of Appeal had failed to apply the principle whereby the criminal law must be strictly interpreted, in that it had extended the scope of the presumption raised by section 93-3 of the 1982 Act (whereby the publishing director is liable as principal where “the content of the offending statement has been fixed prior to being communicated to the public”) to cover a “communication method based on repetition”. Relying in particular on Articles 6 and 10 of the Convention , they also complained of the order in the disputed ruling to broadcast the above announcement on France Info, the essence of their argument being that “there [was] no basis in legislation for the publication of a judicial announcement, which [was] nothing less than punishment for a civil wrong”.\nBy a judgment of 8 June 1999, the Court of Cassation (Criminal Division) dismissed the appeal for the following reasons, inter alia:\n“... In finding the publishing director liable as principal for the offence created by section 93-3 of the Audiovisual Communication Act of 29 July 1982, the Court of Appeal both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been, with the exception of the first bulletin, systematically broadcast on a rolling basis in exactly the same or in condensed form over a twenty-four hour period.\nIt further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public.\nThe court applied the law correctly in so ruling.\nThe content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section 93-3 [cited above]. ...\n... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law, they may issue such an order by way of a remedy at the request of the civil party. Such a remedy, when ordered in a form achievable under the technical constraints of the medium in which publication is ordered, [does not breach] the Convention provisions cited in the appeal.”", "14. The announcement referred to in paragraph 12 above was broadcast on France Info between 31 July and 1 August 1999." ]

[]

[ "4. The applicant was born in 1951 and lives in Budapest.", "5. The applicant was employed by the Ministry of Interior as a stoker. His employment was terminated on 20 October 1997 due to his constructive dismissal, following the employer’s alleged breach of contract.", "6. On 18 May 1995 the applicant brought an action before the Budapest Labour Court seeking the payment of additional wages and other benefits. On 24 August 1995 the defendant requested the court to dismiss the applicant’s claims.", "7. At the hearing of 25 August 1995 the court heard the parties and requested the applicant to specify his claims. The applicant complied with the request on 8 September 1995.", "8. On 1 July 1996 the Labour Court appointed an expert auditor. On 6 October 1996 the applicant’s lawyer requested that the expert’s opinion be submitted speedily.", "9. On 22 January 1997 the defendant informed the court that the applicant had not appeared to collect the money earmarked for him.", "10. On 17 November 1997 the Labour Court set a 10-day time-limit for the expert to submit his opinion. On 19 January 1998 the court withdrew the expert’s appointment since he had failed to respect the time-limit.", "11. On 5 May 1998 the court invited the defendant to submit documents, which it did on 24 July 1998.", "12. After the applicant had extended his action, the Labour Court, at a hearing on 30 October 1998, separated the new claims from the proceedings and registered them under another case number. The applicant has not submitted any documents concerning the state of the latter proceedings.", "13. In a judgment of 6 November 1998, the Labour Court dismissed the applicant’s action. The applicant appealed and on 28 December 1998 brought a motion for bias against the judges of the Budapest Labour Court.", "14. On 31 March 1999 the Budapest Regional Court, sitting as a second instance court, quashed the first-instance judgment and remitted the case to the Labour Court. It held that, as the expert had failed to submit his opinion, the first-instance court had relied only on the applicant’s calculations.", "15. On 9 December 1999 the applicant brought another motion for bias against the judges of the Budapest Regional Court. Subsequently, on 25 January 2000 the applicant’s motions were transferred to the Supreme Court for examination.", "16. On 5 April 2000 the Supreme Court appointed the Pest County Labour Court to hear the case in view of the fact that all the judges of the Budapest Labour Court had declared bias.", "17. On 16 June 2000 the Regional Court appointed a legal aid lawyer for the applicant.", "18. On 20 July 2000 the applicant lodged further submissions with the court. On 11 August 2000 the applicant’s lawyer submitted a preparatory document.", "19. At the hearing on 13 October 2000 the Regional Court heard the applicant and ordered the defendant to submit further documents.", "20. On 5 January 2001 the Regional Court heard the parties and informed them that a second defendant had joined the proceedings.", "21. The applicant’s motion for bias against the judges of the Regional Court was rejected by the Supreme Court on 27 February 2001.", "22. At the hearing on 26 November 2001 the applicant submitted a renewed motion for bias against the judges of the Regional Court. On 16 January 2002 the Supreme Court appointed the Tatabánya Labour Court to deal with the case.", "23. On 12 March 2002 the Labour Court heard the parties. On 5 April 2002 the court suspended the proceedings and requested the Budapest 5th District Municipality to give consideration to placing the applicant under guardianship.", "24. On the applicant’s appeal against the order to suspend the proceedings, the Komárom-Esztergom County Regional Court upheld the suspension of the case for 60 days.", "25. On 19 July 2002 the Municipality informed the Labour Court that the applicant was being examined with a view to placing him under guardianship.", "26. On 20 February 2003 the Labour Court requested information on the state of the guardianship proceedings.", "27. The proceedings are apparently still pending.", "28. On 20 October 1997 the applicant brought another action against his employer. He requested the Budapest Labour Court to declare that he had terminated his contract of employment lawfully, whereas his employer had failed to comply with certain essential elements thereof. He also claimed severance pay. The applicant informed his employer of his resignation only on 20 November 1997.", "29. On 12 March 1998 the applicant specified his claims.", "30. A hearing scheduled for 1 April 1998 was adjourned due to the illness of the presiding judge.", "31. On 25 June and 14 July 1998 the applicant modified his claims.", "32. At a hearing on 15 July 1998 the Budapest Labour Court heard the applicant and ordered that the documents he had submitted be sent to the defendant which had been unable to attend the hearing. In his submissions of 16 July 1998 the applicant requested that the minutes of this hearing be corrected.", "33. In a judgment of 4 November 1998 the Labour Court dismissed the applicant’s action.", "34. In the appeal proceedings, on 28 April 1999 the Budapest Regional Court held a hearing. The applicant submitted further documents.", "35. At the hearing on 11 June 1999, on the applicant’s request, the Budapest Regional Court appointed a legal aid lawyer for him. Following the latter’s withdrawal, another legal aid lawyer was appointed to deal with the case.", "36. On 3 September 1999 the applicant requested the court to appoint another lawyer for him as he was not satisfied with the work of the present one.", "37. The judges of the division selected to hear the case declared bias and withdrew from the case. Subsequently, on 7 October 1999 the president of the Regional Court selected another division. This division later declared bias also, having regard to the applicant’s behaviour in another case pending before it. On 26 October 1999 the case was transferred to a third division.", "38. On 13 November 1999 the Budapest Regional Court dismissed the applicant’s request for a change of lawyer.", "39. On 24 January 2000 the Regional Court quashed the first-instance judgment and remitted the case to the District Court.", "40. On 5 April 2000 the Supreme Court appointed the Pest County Labour Court to hear the case, given that all the judges of the Budapest Labour Court had declared bias.", "41. On 16 June 2000 the Regional Court appointed another legal aid lawyer for the applicant.", "42. On 20 July 2000 the applicant lodged further submissions with the court. On 11 August 2000 the applicant’s lawyer submitted a preparatory document.", "43. At the hearing on 13 October 2000 the Regional Court heard the applicant and ordered the defendant to submit further documents.", "44. On 5 January 2001 the Regional Court heard the parties and informed them that a second defendant had joined the proceedings.", "45. The applicant’s motion for bias against all the judges of the Regional Court was rejected by the Supreme Court on 27 February 2001.", "46. At the hearing on 26 November 2001 the applicant submitted a renewed motion for bias against the Regional Court. On 16 January 2002 the Supreme Court appointed the Tatabánya Labour Court to deal with the case.", "47. On 12 March 2002 the Labour Court heard the parties. On 5 April 2002 the court suspended the proceedings and requested the Budapest 5th District Municipality to consider the applicant’s placement under guardianship.", "48. On the applicant’s appeal against the order to suspend the proceedings, the Komárom-Esztergom County Regional Court upheld the suspension of the case for 60 days.", "49. On 19 July 2002 the Municipality informed the Labour Court that the applicant was being examined with a view to placing him under guardianship.", "50. On 20 February 2003 the Labour Court requested information on the state of the guardianship proceedings.", "51. The proceedings are still pending." ]

[ 3 ]

[ "9. The applicant was born in 1966 and lives in Izmir, Turkey.", "10. On 11 March 1994 the applicant was taken into custody by the officers from the Izmir Security Directorate Anti-Terror branch on suspicion of aiding and abetting an illegal terrorist organisation, the PKK.", "11. On 17 March 1994 the applicant was brought before the judge at the Izmir State Security Court. Before the court she pleaded not guilty and maintained that she did not accept the statements that she had made at the Security Directorate. She further denied the testimony of a witness, A.A., against her. Subsequently, the court ordered her release on account of insufficient evidence to remand her in custody.", "12. On 7 April 1994 the public prosecutor at the Izmir State Security Court filed an indictment with the court charging the applicant under Article 169 of the Criminal Code and Article 5 of Law no. 3713 (the Prevention of Terrorism Act 1991 as amended) with aiding and abetting the PKK.", "13. On 24 November 1994 the Izmir State Security Court convicted the applicant as charged and sentenced her to three years and nine months' imprisonment. She was further debarred from public service for three years. The court based its judgment on the following evidence: some ammunition found by the police, various weapons and the ballistics reports confirming the applicant's use thereof, invoices, a notebook used for recording expenditures of the PKK, photos of the applicant taken with some PKK militants, the statements made by the applicant at the Security Directorate, the statements made by S.A., A.A., M.T. and F.A. at the Security Directorate, the Public Prosecutor's office and before the court and finally the testimonies of T.T., N.F., A.O., H.K. and B.O., who were being tried by the same court for charges with other offences.", "14. On 25 September 1995 the Court of Cassation upheld the Izmir State Security Court's judgment of 24 November 1994.", "15. On 1 November 1995 the Izmir chief public prosecutor suspended the execution of the applicant's sentence until 28 April 1996 as she had given birth." ]

[ 3 ]

[ "8. The case mainly concerns events which took place in 1993 in the village of Ormaniçi in the Güçlükonak district of the Şırnak province in south-east Turkey. The applicants alleged that, on 20 February 1993, security forces had attacked Ormaniçi, as a result of which two children had died. The applicants further alleged that on the same day the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention. The applicants claimed that these men had been subjected to ill-treatment in detention, resulting in various serious injuries and the death of one villager. They further alleged that the security forces had returned to Ormaniçi later in 1993, when they had burned houses and destroyed harvested crops, and that they had returned once again in the spring of 1994 when they had killed four villagers and forced the villagers to leave Ormaniçi.", "9. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998 from 25 applicants, 8 other villager witnesses and 15 officials.", "10. The certified transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court.", "11. The parties' submissions on the facts (Sections A and B) and the proceedings conducted before the domestic authorities (Section C) are summarised below. The documentary material before the Court is summarised in Appendix II and the oral evidence to the Delegates in Appendix III, which appendices are available on the Court's website and which are held in the Court's archives.", "12. In the early morning of 20 February 1993, military forces attacked the village of Ormaniçi. Many soldiers were dressed in white camouflage gear. There was snow on the ground and it was very cold. The military forces started attacking the village with rifles and heavy weaponry and later moved into the village, systematically removing each family from their house and taking them to the village square. Many families were unable to dress and were forced into the open with their children without proper clothing and/or shoes.", "13. Most of the male villagers were beaten as they were taken to the village square, where they were made to lie face down in the mud and snow, and were subsequently blindfolded. The villagers arrived in the square between 10 a.m. and 12 noon and remained there until just before sunset. The women and children were also assembled near the village square but were not blindfolded.", "14. While the villagers were being gathered in the square, a detailed search of all the properties was conducted and the soldiers began systematically setting fire to the homes, using an incendiary agent that they appeared to have brought with them specifically for this purpose. Many of the animals which were kept in stables or were wandering around the village were shot, or burned in their stables.", "15. During the raid one soldier threw a bomb into the house of a villager called Mevlüde Ekin. The bomb exploded, causing severe intestinal injuries to her six-year-old-daughter Abide. Ms Ekin and her other children, together with Abide, were then evacuated to the village square. The village muhtar[2], Mehmet Aslan, was taken to the house of Mevlüde Ekin to accompany the soldiers in a search. It was claimed that somebody had been shooting from her house at the soldiers when the bomb was thrown. During this search a soldier inside the house was shot and killed instantaneously. The army commander instructed Mehmet Aslan to indicate that he had been shot by terrorists, whereas he had in fact been shot by another soldier.", "16. Just before sunset about twelve people who had been blindfolded, including Mevlüde Ekin's daughter Halime Ekin, were taken from Ormaniçi to Şırnak by helicopter. They were placed in custody in Şırnak. The remainder of the men were roped together and forced to walk blindfolded and, in many cases, without adequate clothing or footwear, from Ormaniçi to Güçlükonak. They had to walk some 7 kilometres in the snow, which took 2½ hours.", "17. When the men arrived in Güçlükonak, they were put into a partly constructed military building. The floors were wet and constantly under water to a depth of about 10 cm. There was no heating or furniture. Many of the men were not fed for several days. They were systematically tortured and forced, whilst blindfolded, to fingerprint statements which had been prepared for them. They suffered various forms of torture including electric shock treatment, burning with hot metal bars, beatings, and anal rape with a truncheon and with bottles.", "18. As a result of the walk to Güçlükonak and the conditions of detention there, many of the men suffered severe injuries to their feet, some of which required subsequent amputation of toes or feet. The men at Güçlükonak were moved to Şırnak by helicopter on or about 5 March 1993.", "19. The persons who had been taken directly to Şırnak were also tortured and forced to sign statements. Allegations were put to them that they were members or supporters of the PKK[3]. One man, İbrahim Ekinci, having been tortured, fell ill and was removed to hospital, where he died of pneumonia on 16 March 1993.", "20. On 21 February 1993, military forces returned to Ormaniçi to burn more houses and kill more animals. The women of the village, together with the children, slept in the mosque, in caves, and in some unburned outbuildings. Abide Ekin died in the mosque, without having received medical attention for her injuries. A few days later, another child, Ali Yıldırım, was killed as a result of the explosion of a mortar bomb or grenade that had been left in the village by the military forces after the attack on 20 February 1993.", "21. Most of the detained villagers were released either on 9 or 16 March 1993. They appeared before public prosecutors at Eruh (Siirt district) and many complained of the torture that they had suffered. On 30 April 1993 a number of the men were charged with terrorist offences, which were to be tried before the Diyarbakır State Security Court. A number of villagers remained in custody until approximately June 1993. Two villagers, Mehmet Nuri Özkan and Ali Erbek, were still in custody at the time of the oral hearing held in October 1998. Mehmet Nuri Özkan has been released since, but Ali Erbek is currently still in custody.", "22. Both before and at the time of the transfer of the men from Şırnak to Eruh a number were taken to the Mardin and Diyarbakır State Hospitals, where they were placed in the prison wing. After medical treatment, some had parts of their feet amputated. This was the case of Fahrettin Özkan, who was only 13 years old at the material time.", "23. At the time of their release on 9 and 13 March 1993 respectively, the majority of the detained men were taken by bus to Siirt and subsequently to a nearby village. For the most part they returned to Ormaniçi by mule since they were unable to walk. During the period between 9 March 1993 and the summer/autumn of 1993, as they gradually recovered from their injuries, many of the men attempted to rebuild the burnt houses.", "24. In the late summer or autumn of 1993 there was a further incident in Ormaniçi. On this occasion all the villagers were assembled near the school. Two women were taken into the school and tortured and the soldiers went to a number of houses and removed all of the harvested crops and destroyed them. Some more buildings were also burnt, and further animals died after eating contaminated food. Many of the villagers had left the village to live in caves nearby but had continued to cultivate their land.", "25. A number of other villagers returned to Ormaniçi in the spring of 1994. In or about May 1994 the soldiers came to the village once more and gunfire was heard in the orchards and fields nearby. After that the soldiers arrived in the village indicating that they had killed seven terrorists. In fact four villagers had been killed as well as three alleged members of the PKK. After this incident the villagers were given three days to leave the village, otherwise they would be killed. They all left and moved to various towns in south-east Turkey, including Güçlükonak, Tarsus and Siirt. A number also moved to İstanbul. They have been unable to return to the village since that date. Some have remained in a neighbouring village.", "26. In August 1994 the Government carried out an investigation in Ormaniçi into the events which had taken place there in February 1993. No investigation was carried out into the detention of the villagers in Güçlükonak or Şırnak, notwithstanding the injuries they had suffered whilst in custody. None of the applicants has been offered any compensation for their losses.", "27. While the security forces were approaching the village of Ormaniçi on 20 February 1993 in order to carry out a search in the valley of the Ormaniçi stream, they came under fire from the village.", "28. In the course of the ensuing clash, the roofs of some houses in the village caught fire as a result of being hit by tracer bullets fired in the course of the exchange of fire. No house was deliberately set on fire by members of the security forces involved in the incident. Although some livestock in the village may have died of suffocation caused by smoke, none of the members of the security forces involved deliberately killed any livestock there.", "29. Apart from one soldier who was killed when conducting a search in one of the houses of the village, nobody was injured or killed in Ormaniçi on 20 February 1993.", "30. Those villagers who were subsequently taken into detention were not ill-treated during their detention. The injuries sustained by a number of these villagers, which in the case of four villagers resulted in the amputation of toes, had been caused by frostbite, for which they received medical treatment while in detention.", "31. One of the villagers taken into detention, who suffered from epilepsy, was transferred to hospital while in detention. He subsequently died in hospital of natural causes.", "32. On 31 March 1993 the Eruh public prosecutor issued a decision of lack of jurisdiction in respect of 42 persons who had been taken into detention on 20 February 1993 in the village of Ormaniçi and referred the case to the office of the public prosecutor at the Diyarbakır State Security Court.", "33. On 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued a decision of non-prosecution in respect of 25 Ormaniçi villagers for lack of sufficient evidence of the charges of membership of the PKK or aiding and abetting the PKK. These villagers were consequently released.", "34. As regards the other 17 Ormaniçi villagers, on 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued an indictment committing them to appear before the State Security Court on charges of armed activities on behalf of the PKK, membership of the PKK and/or aiding and abetting the PKK. Although most of these villagers were released at some point in time, the villagers Mehmet Nuri Özkan and Ali Erbek were still in detention in October 1998. In September 1998 the proceedings before the State Security Court in the case were still pending.", "35. On 24 June 1993 the public prosecutor at the Diyarbakır State Security Court took a decision of non-prosecution in relation to the death on 17 March 1993 of İbrahim Ekinci, one of the Ormaniçi villagers taken into detention on 20 February 1993. In this decision it was noted that the cause of death found had been pneumonia and it was held that no offence had been committed in that the incident was due to no one's fault or influence. It was decided that, unless there were any objections, there were no grounds for instituting proceedings.", "36. The applicants did not make an official complaint about the destruction of their property and homes or about their treatment in detention. On 12 April 1993 Ayşe Ekinci filed a criminal complaint with the office of the public prosecutor in Cizre in relation to her husband İbrahim Ekinci, who had died in hospital while in detention.", "37. On 15 August 1994, on the basis of this criminal complaint, the Eruh public prosecutor took a decision of non-prosecution. In his decision it was pointed out that the cause of death found was pneumonia.", "38. After the Commission had communicated the applicants' complaints to the Government, the Turkish Ministry of Justice ordered an investigation into the events of 20 February 1993 in Ormaniçi, including the death of two children in the village.", "39. On 10 August 1994 the Siirt public prosecutor carried out an on-site inspection in Ormaniçi in order to establish whether houses had been demolished and burned and to take statements from applicants. He was accompanied by a civil engineer, who drew up a separate report on the conditions of the houses found in Ormaniçi. Also on 10 August 1994, the Eruh public prosecutor went to Ormaniçi in order to carry out an investigation of the death of two children, Abide Ekin and Ali Yıldırım, in the course of which the two children's remains were disinterred.", "40. On 27 June 1995 the Eruh public prosecutor issued a decision of lack of jurisdiction in the investigation concerning the death of Abide Ekin and Ali Yıldırım. In his decision it was found to have been established that the children had died as a result of the explosion of explosive devices with which they had played and which had been left unexploded after the incident in Ormaniçi on 20 February 1993. The offence was described as causing the death of two persons by leaving explosive material in the village. According to this decision, the perpetrators – referred to as defendants – were an unspecified number of illegal PKK terrorists. The decision further stated that the case file was to be transmitted to the office of the public prosecutor at the Diyarbakır State Security Court for further proceedings.", "41. On 21 July 1995 the public prosecutor at the Diyarbakır State Security Court decided that the Eruh public prosecutor – in co-operation with the Eruh District Gendarmerie Command, the Siirt Directorate of Security and the Siirt Provincial Gendarmerie Command – was to conduct a further investigation into the deaths of Abide Ekin and Ali Yıldırım and to communicate the results of this investigation to the office of the public prosecutor at the Diyarbakır State Security Court at regular intervals. It appears that such reports were sent on a regular basis. According to the wording of the last report made available, a letter of 3 June 1998 from the Siirt Provincial Directorate of Security to the office of the public prosecutor at the Diyarbakır State Security Court:\n“the incident occurred as a result of the activities of the outlawed PKK terrorist organisation and upon the establishment of open [as yet unknown] identities and apprehension of the perpetrators information will be submitted separately”.", "42. No information has been submitted as to the outcome of the investigation conducted by the Siirt public prosecutor into the destruction of houses in Ormaniçi." ]

[ 0, 1, 2, 4 ]

[ "6. The applicants, Stanisław Krzak and Anna Krzak, a married couple, are Polish nationals. They were both born in 1921 and live in Sławnowice, Poland.", "7. On 17 May 1988 W.Ł. (“the petitioner”) filed an application with the Żywiec District Court (Sąd Rejonowy), seeking a decision declaring that she had acquired a title to certain real property. The first applicant was one of the parties to the proceedings.", "8. On 23 April 1991 the Żywiec District Court gave a decision. It declared that W.Ł. and her husband M.Ł. had acquired the title to the property which consisted of four plots of land. The first applicant appealed against that decision.", "9. On 22 October 1993 the Bielsko-Biała Regional Court (Sąd Wojewódzki) set aside the first-instance decision and remitted the case in respect of one of the plots. It dismissed the remainder of the first applicant’s appeal.", "10. The hearing listed for 10 January 1994 was adjourned since the first applicant had been improperly summoned.", "11. On 7 February 1994 the court held a hearing. The first applicant was not present. At the next hearing, held on 18 March 1994, the court stayed the proceedings due to the death of M.K., one of the participants in the proceedings. On 29 August 1994 the court held hearing and resumed the proceedings. The hearing fixed for 11 October 1994 was adjourned at the petitioner’s request. The trial court held further hearings on 18 July, 6 September, and 6 October 1995.", "12. On 19 October 1995 the court held a hearing. The first applicant failed to appear. The next hearing took place on 29 November 1995.", "13. On 5 December 1995 the Żywiec District Court gave a decision (postanowienie). It held that W.Ł. and M.Ł. had acquired the title to the property in question.", "14. On 15 March 1996 the first applicant asked for leave to file an appeal out of time. He claimed that he had been sick and he had not been able to lodge an appeal against the final decision within the prescribed time limit.", "15. On 18 September 1996 the Żywiec District Court held a hearing in the appeal proceedings. At a further hearing held on 25 October 1996, the District Court dismissed the applicant’s appeal of 15 March 1996.", "16. Later, on an unknown date, the first applicant asked the Minister of Justice for leave to file a cassation appeal with the Supreme Court (Sąd Najwyższy) against the above-mentioned decisions of the Żywiec District Court. On 23 June 1998 the Minister of Justice lodged a cassation appeal on the first applicant’s behalf.", "17. On 8 October 1998 the Supreme Court quashed the decisions of the Żywiec District Court of 23 April 1991 and 5 December 1995 and remitted the case. It found that the District Court had not summoned all the parties to the proceedings.", "18. On 9 February 1999 the Żywiec District Court held a hearing. It ordered W.Ł. to produce certain documents. On 16 March 1999 the court stayed the proceedings because W.Ł. had failed to comply with that order. On 25 June 1999 the Bielsko-Biała Regional Court dismissed the first applicant’s appeal against that decision.", "19. On 26 July 1999 the Żywiec District Court dismissed the first applicant’s further appeal against the decision of 25 June 1999.", "20. In a letter of 9 December 2003 the applicants informed the Court that the proceedings are still pending before the Żywiec District Court.", "21. In 1991 the applicants requested the Żywiec District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against J.K. and W.K., complaining that the latter had destroyed their house and stolen their trees. On 30 September 1992 Żywiec District Prosecutor discontinued the investigation against the alleged culprits. On 15 March 1993 the Bielsko‑Biała Regional Prosecutor (Prokurator Wojewódzki) upheld this decision.", "22. In 1994, following the applicants’ complaint to the Minister of Justice, the Żywiec District Prosecutor reopened the investigation. On 15 February 1995 the District Prosecutor again discontinued the investigation considering that no criminal offence had been committed. The applicants subsequently complained to the Minister of Justice about that decision." ]

[ 3 ]

[ "4. The applicants were born in 1967 and 1969 respectively and live in Budapest.", "5. The first applicant is an illusionist and the second applicant is his partner.", "6. On 1 March 1994 the applicants entered into a contractual relationship with E. Cruise Lines, a Greek company, with a view to performing the applicants’ show on board the cruiser Pallas Athene for 8 months. On 24 March 1994 the Greek company shipped the applicants’ equipment on board Pallas Athene where, on the same day, it was destroyed by a fire. The applicants had no insurance. \nAs the Greek company refused to pay compensation for the damage, on 25 January 1995 the applicants brought an action before the Hungarian Pest Central District Court.", "7. On 2 February 1995 the District Court ordered the applicants to complete their statement of claims. The applicants complied with this order on 22 March 1995. On 7 April 1995 the court exempted the applicants from payment of an advance on court fees.", "8. On 3 July 1995 the court ordered the applicants to submit documents with a view to attaching them to the request for information on Greek law to be sent to the Greek authorities. The applicants complied with the order within ten days.", "9. On 15 December 1995 the Hungarian Ministry of Justice received the reply of the Greek authorities requesting further information on the case. On 22 May 1996 the District Court sent the completed request to the Hungarian Ministry of Justice.", "10. In reply to the applicants’ enquiry with the District Court as to whether the requested information on Greek law had been obtained, the Ministry of Justice informed the District Court that, due to an administrative mistake, the request had had to be re-sent to the Greek authorities on 27 January 1997.", "11. The Greek authorities’ reply was served on the District Court on 12 May 1997. In their observations of 20 June 1997 the applicants found the Greek authorities’ answer incomprehensible and requested the District Court to obtain more information from the Greek authorities.", "12. On 1 September 1997 the applicants submitted evidence.", "13. The District Court having completed the request for information according to the applicants’ observations, on 23 February 1998 the Hungarian Ministry of Justice forwarded the request to the Greek Ministry of Justice. The latter’s reply reached the District Court on 29 May 1998.", "14. On 23 December 1998 the defendant company received the District Court’s summons of 21 October 1998.", "15. At the applicants’ request, on 27 October 1998 the District Court granted priority to the case.", "16. On 20 April 1999 the District Court held a hearing. The representative of the defendant company, Mr K., a lawyer, failed to attend. The District Court was unable to establish whether the applicants’ pleadings and the summons issued by the District Court had been validly served on Mr K. in Greece. Therefore, the District Court ordered an adjournment and, through the Ministry of Justice, requested that:\n(i) the public prosecutor attached to the first instance court of Pireus verify whether service of the pleadings and the summons on Mr K. was valid under Greek law and whether Mr. K. was employed by the defendant company or whether he had a valid power of attorney;\n(ii) the first instance court of Pireus certify whether E. Cruise Lines was an existing company under the law of the place of registration, or whether it had merged with another company, and if so, whether the latter was the successor of the former.\nAssuming that the service was valid under either Hungarian or Greek law, the District Court ordered the defendant company to respond to the applicants’ pleadings within 30 days from the day of service.", "17. On 4 November 1999 the Greek Ministry of Justice replied that they were not in a position to fulfil the request for information about specific matters, on which only a lawyer could give an opinion. In their reply of 29 November 1999 the Hungarian Ministry of Justice reminded the Greek authorities that under the relevant provisions of the Greek-Hungarian bilateral Treaty on Legal Assistance and of the European Convention on Information on Foreign Law, they were obliged to provide the information requested.", "18. On 20 January 2000 the District Court informed the applicants that – according to the documents submitted by the Ministry of Justice on 14 January 2000 – the defendant company “had refused to be served with the pleadings and the summons without giving a reason” and that no information had been submitted concerning the state of Greek law.", "19. On 14 July 2000 the District Court again informed the applicants that the information concerning Greek law had not been submitted.", "20. On 1 February 2001 the District Court informed the applicants that – according to the Ministry of Justice – the Greek authorities had refused to provide the information requested.", "21. The continued efforts of the Hungarian Ministry of Justice and the Ministry of Foreign Affairs to urge the Greek authorities by notes verbales and telephone contacts on 7 March, 14 September, 12 November 2001, 16 January, 21 August and 19 September 2002 were unsuccessful.", "22. In the meantime, the Hungarian Ministry of Justice suggested to the District Court to apply Hungarian law instead of Greek law, a possibility provided under section 5 § 3 of Law-Decree no. 13 of 1979 on International Private Law, having regard to the protracted exchange of correspondence. On 3 June 2002 the District Court replied to the Ministry that the information on Greek law was still necessary. It considered that the Greek authorities’ refusal to provide information on a complex legal issue did not render impossible, as such, the establishment of the contents of the foreign law in question. The District Court therefore held that Hungarian law could not be applied.", "23. On a renewed enquiry, the Greek Ministry of Justice informed the Hungarian Ministry of Justice that it had taken all necessary steps in the case but had not yet received any information from the competent authorities.", "24. The proceedings are still pending before the District Court.", "25. Section 5 §§ 1 and 3 of Law-Decree no. 13 of 1979 on International Private Law reads as follows:\n“Establishing the content of foreign law\n(1) A court/authority shall ex officio request information about any foreign law unknown to it. If necessary, it shall obtain the opinion of experts and may take into account evidence submitted by the parties.\n(3) In case the content of the foreign law cannot be established, Hungarian law shall be applied.”" ]

[ 3 ]

[ "8. The applicant was born in 1958 and lives in Domaniόw, Poland.", "9. On 23 May 1994 the Wrocław Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with drug smuggling and detained him on remand in view of the reasonable suspicion that he had committed the offence in question, the serious nature of that offence and the risk that he might obstruct the proper conduct of the proceedings. On the same day, the applicant’s wife was charged with a similar offence and detained on remand. The prosecutor had ordered them to surrender their passports.", "10. Subsequently, on several occasions, the applicant asked the prosecutor to release him on bail, but all his applications were to no avail.", "11. On 3 August 1994, on an application by the Regional Prosecutor, the Wrocław Regional Court (Sąd Wojewódzki) prolonged the applicant’s detention on remand until 31 December 1994. The court held that there was a reasonable suspicion that the applicant had committed the serious offence with which he had been charged. It considered that the need to confront suspects with each other, to obtain evidence from abroad and expert evidence justified the prolongation of his detention in order to ensure the proper course of the investigation. That decision was upheld by the Wrocław Court of Appeal (Sąd Apelacyjny) on 25 August 1994.", "12. On 15 December 1994 the applicant’s wife was released from detention on health grounds.", "13. On 22 December 1994, on a subsequent application by the Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1995, repeating the reasons already invoked in the decision of 3 August 1994. The Wrocław Court of Appeal upheld that decision and the grounds therefor on 19 January 1995.", "14. On 3 January 1995 the applicant’s counsel informed the prosecutor that his client’s health was very bad and that, in particular, he had lost consciousness during one of their meetings in prison. He asked the prosecutor to release the applicant immediately. \nThe prosecution first asked the prison authorities to provide them with an updated report on the applicant’s health. However, prison doctors did not consider that the applicant’s condition militated against keeping him in custody.", "15. Meanwhile, on 22 December 1994, the applicant had filed an application for release on bail with the Wrocław Regional Prosecutor and offered a security in the form of his movable and immovable property. The application was dismissed by the Wrocław Regional Prosecutor on 22 December 1994 and, on appeal, by the Wrocław Prosecutor of Appeal (Prokurator Apelacyjny) on 5 January 1995. In those decisions the prosecutors referred to the need to ensure the proper conduct of the proceedings and considered that the applicant’s detention should continue until at least the end of the investigation, especially as the applicant had not confessed.", "16. On 28 February 1995 the prosecution lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on a charge of having smuggled not less than 30 kg of heroin. The bill of indictment comprised 21 charges against 15 co-accused.", "17. In March 1995 the applicant made 3 applications for release on health grounds. He complained about frequent headaches and states of unconsciousness, insomnia and heart-burning sensation. He also referred to his difficult family situation and, in particular, to the bad health of his wife, who was suffering from depressive neurosis and chronic gastritis. He produced the relevant medical certificates.", "18. On 21 March 1995 the Regional Court refused his applications. It considered that there was a sufficient likelihood that the applicant had committed the offence with which he had been charged. It also held that his detention should continue in view of the need to ensure the proper conduct of the trial. The court did not find that the situation of the applicant’s family was so serious as to justify his release on the grounds specified in Article 218 of the Code of Criminal Procedure.", "19. On 22 May 1995 the applicant again asked for release. In August 1995 he made several similar applications. He stressed that he had already spent nearly one year in detention. He referred to his own and his wife’s bad health, maintaining that she urgently needed help and support from him. He produced several medical and other certificates relating to her health and family situation.", "20. On 22 August 1995 the court rejected all the applications. It held that there was a sufficient appearance of likelihood that he had committed the offence in question. It further considered that that offence represented a serious danger to society and that, in view of that fact, there was a need to ensure the proper course of the trial. Referring to the applicant’s health, the court observed that the applicant was suffering only from neurosis, which was not in itself an obstacle to his continued detention. As regards his family situation, the court pointed out that other members of their family could provide his wife with the necessary care and assistance.", "21. The Wrocław Court of Appeal upheld that decision on 26 September 1995. It found that the charge against the applicant was sufficiently confirmed by evidence heard before the trial court. It also considered that, given the character of the offence, the complicated process of obtaining evidence and the stage of the proceedings, holding the applicant in custody was necessary to secure the proper conduct of the trial.", "22. In the meantime, on 4 August 1995, the Regional Court had rejected the applicant’s other applications for release, which he had filed on 3 July and 1 August 1995. This decision was upheld on appeal on 31 August 1995. The courts relied on two principal reasons, namely, on the reasonable suspicion that the applicant had committed the serious offence and the need to ensure the proper conduct of the proceedings. As regards the applicant’s health and his family situation, the courts found that there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure.", "23. On 13 October 1995 the trial began. The court heard evidence from defendants. Further hearings were held on 1 December 1995 and 19 and 25 January 1996. The applicant repeatedly – but with no success – asked for release.", "24. On 25 January 1996 the applicant asked the Regional Court to release him on bail. The court refused on the same day. On 23 February 1996 the decision was upheld on appeal. The courts held that the charge against the applicant had a sufficient basis in evidence that had so far been heard before the trial court. They considered that the applicant’s offence represented a serious danger to society and that the nature of the offence, as well as the modus operandi, justified the fears that the applicant would obstruct the process of obtaining evidence. As regards the applicant’s family situation, the courts observed that his wife was under the proper care in a psychiatric hospital and that her condition was not a reason to apply Article 218 of the Code of Criminal Procedure.", "25. On 31 January 1996 the applicant again asked for release on bail. He submitted that the health of his wife had markedly deteriorated and that she was in hospital. On 15 February 1996 the Wrocław Regional Court rejected the application in view of the reasonable suspicion that the applicant had committed the serious offence with which he had been charged and the need to secure the proper conduct of the proceedings. The court found that the bad health of the applicant’s wife was not a circumstance that could militate against his continued detention because she was being given care and treatment in hospital.", "26. The trial continued on 5 and 7 March and 10, 13 and 31 May, 26 June and 9 July 1996.", "27. In the interim, on 20 March 1996, the applicant had filed another application for release. He repeated his previous arguments and produced further documents describing the bad health and difficult personal situation of his wife. He stressed that the total length of his detention was very considerable.", "28. The Wrocław Regional Court rejected the application on 9 July 1996.", "29. On 29 July 1996, on the applicant’s appeal, the Wrocław Court of Appeal quashed the detention order and released him under the condition that he report weekly to the police station at his place of residence and surrender his passport to the court. In addition, the court imposed further restrictions on the applicant’s movement and ordered, inter alia, that he be prohibited from leaving the territory of Poland. The Court of Appeal did not share the applicant’s opinion that he should be released in view of his family situation and held that detention was by itself a measure that inevitably entailed serious consequences for an individual’s family life. It considered, however, that the length of the applicant’s detention, which had at the time exceeded two years, militated in favour of his release. The court stressed that that element, given the fact that the trial had reached an advanced stage, that evidence had been secured and that there was no danger that the applicant might obstruct the process of obtaining evidence, justified the opinion that the application of a less severe preventive measure would adequately secure the further course of the trial.", "30. The trial ended on 23 May 1997. At the final hearing the Regional Prosecutor dropped the charge of drug smuggling against the applicant and asked the court to find him guilty of supplying drugs on the market (“wprowadzenie do obrotu środków odurzających”). The Regional Court convicted the applicant of that offence and sentenced him to 3 years’ imprisonment and a fine of 15,000 Polish zlotys. The time spent by the applicant in detention pending trial was deducted from the sentence of imprisonment. The applicant did not appeal against his conviction.", "31. In their observations on admissibility and the merits, the Government submitted that, on 15 May 1995 the Wrocław Regional Police had obtained information from the Warsaw Office of Interpol, according to which the Italian authorities had issued an order to search for the applicant by a “wanted” notice in connection with the suspicion of his having been involved in money laundering and with their intended request for his extradition to Italy.", "32. The applicant maintained that throughout his trial he had been unaware of that fact and that he had learnt of it – and of the fact that he had already been sentenced in absentia by the Italian courts – on 15 December 2001, when he had been arrested by the German authorities. He produced the relevant warrant of arrest.", "33. In that connection, the applicant also submitted that the German courts had refused to extradite him to Italy because the Italian courts had not ensured him a fair trial in absentia. To begin with, he had not been informed of the charges. Nor had he been heard, summoned to stand trial or notified of the judgment. He produced the relevant decision given by the Dresden High Country Court on 19 February 2002. The court considered that his extradition to Italy was inadmissible because “in the trial preceding his conviction a minimum of his defence rights had not been respected”." ]

[ 2 ]

[ "7. The applicants were born in 1968 and 1967 respectively and live in Altenberge (Germany).", "8. Mrs Haase is the mother of twelve children. While she was married to M. she gave birth to seven children, Matthias, born in 1985, Sascha, born in 1986, Ramona, born in 1987, Alexander, born in 1988, Timo, born in 1990, and the twins Lisa-Marie and Nico, born in 1992. With her second husband, Mr Haase, she had five children. Anna-Karina was born in 1995, Sandra-Kristin in 1998, Maurice-Pascal in 2000 and Laura-Michelle on 11 December 2001. In December 2003 Mrs Haase gave birth to her last child.", "9. In 1993 the relations between Mrs Haase and M. deteriorated. In April 1993 M. instituted divorce proceedings and requested to be afforded parental rights over the children. By a decision of 29 October 1993 the Münster District Court (Amtsgericht) granted parental rights over the three younger children, Timo, Lisa-Marie and Nico, to Mrs Haase and over the four older children to her first husband. The Münster Youth Office appealed against the decision, but withdrew the appeal in September 1994. In December 1993 Mrs Haase moved with the three children to live withher present husband. On 18 November 1994 the Münster District Court pronounced Mrs Haase's divorce from her first husband. The applicants have been married since December 1994.", "10. In February 2001 Mrs Haase applied to the Münster Youth Office (Amt für Kinder, Jugendliche und Familien - KSD) for family aid. In order to be granted the aid, the applicants agreed to have their family situation assessed by a psychological expert. In May 2001 the Municipal Social Service instructed G. to draw up an expert report. The expert met Mrs Haase and three of her children on 26 September and 11, 15 17 and 22 October 2001 at the applicants' home.", "11. Being of the opinion that the questions put to the children by the expert were irrelevant for the purposes of family aid and having regard to the expert's objection to Mrs Haase attending the meetings with the children's teachers, the applicants refused to co–operate with the expert any longer.", "12. On 17 December 2001 the expert submitted his report to the Münster Youth Office. According to this report, the deficiencies in the children's care and home conditions risked jeopardising their development seriously. There was a damaging cycle of events in which the applicants were unreasonably harsh with their children on repeated occasions and had beaten them. The children needed to be in a secure long-term placement and any further contact between them and the applicants would have to be avoided.", "13. On the same day the Youth Office applied to the Münster District Court for an interim injunction (einstweilige Anordnung) withdrawing the applicants' parental rights over the seven children, namely their four children, Anna-Karina, Sandra-Christine, Maurice-Pascal and Laura-Michelle, and three of the children born during Mrs Haase's first marriage, namely Timo, Nico and Lisa-Marie.", "14. On that very day, i. e. on 17 December 2001, the Münster District Court, without hearing the parents or their children, issued the requested interim injunction. The applicants were ordered to hand over the children forthwith to the Münster Youth Office. The officer in charge of enforcing the decision was authorised to use force if necessary to collect the children. Relying notably on the findings of the expert report, the District Court found that the parents' inability to give the children satisfactory care and education and an abusive exercise of parental authority jeopardised the physical, mental and psychological well-being of all of the children to the extent that their separation from the applicants appeared to be the only possible solution to protect them. The District Court referred to the relevant provisions of the Civil Code (Articles 1666 and 1666a - see paragraphs 53 and 54 below).", "15. By a decision of 18 December 2001 the Münster District Court supplemented its decision of 17 December 2001, prohibiting all access between the applicants and their children and the three children of the first marriage, Timo, Nico and Lisa-Marie. The whereabouts of the children were not to be communicated to the applicants. The District Court further prohibited all access between the four other children of the first marriage and Mrs Haase. She was also forbidden to come nearer than 500 metres to the four other children's residence or their schools. The District Court considered that the expert opinion was sufficient evidence to show that the separation of the parents from their children was necessary for the protection of the children. It had further been shown that the parents would object and try by all means to exert pressure upon the children. In order to avoid stress to the children, these measures were necessary in their best interests. The parents were urged to recognise their own deficiencies in respect of the care and the physical and psychological well-being of the children and take into account the clearly expressed need of the children for a change in their situation. The parents were invited to accept - at least for the time being - the measures taken and to contribute as far as possible to a calming of the general situation. This was only possible if the parents accepted the existing circumstances. The approach of the Youth Office met in part the expressly stated wishes of the children. The District Court concluded that the momentarily inevitable measures were proportionate to the urgent needs and the objective interests of all of the children.", "16. The children were taken on the same day about noon from three different schools, a nursery and from home and were placed in three foster homes. The seven-day-old youngest daughter, Laura-Michelle, was taken from the hospital and since that time has lived with a foster family.", "17. In a letter of 18 December 2001 Dr W., a gynaecologist and head physician at the Johannesstift hospital in Münster, complained to the Münster District Court about the conduct of the authorities. He stated that, according to a telephone call of 17 December 2001, the six children of Mrs Haase as well as the newborn child in the hospital were to be removed from their mother without her knowledge. His patient was to be informed of the measure after her child had been taken from the nursery. Staff members were asked to take the child downstairs to the hospital's entrance and place it in a taxi.\nHe, as the head physician, and the medical hospital staff were surprised and shocked by the lack of warning and considered this conduct an affront to both Mrs Haase and the medical staff. Since 1992 Mrs Haase had been taken care of by the medical staff of the hospital. She had always given the impression of a being highly responsible person. She had come regularly to the preventive medical check-ups during her pregnancy. When she was accompanied by her children, the children behaved well, were friendly and well brought-up. There were no signs that they were in any way neglected or ill-treated.", "18. On 19 December 2001 the Youth Office informed the applicants that the children had been granted financial assistance in the sum of EUR 4,000 per month and that the parents had to contribute to these fees according to their financial means.", "19. On 19 December 2001 the applicants appealed against the District Court's decision of 17 December 2001. They submitted that it was difficult to understand that in the context of family aid an expert opinion on the parents' ability to bring up their children had been drawn up and that they had not been informed about this opinion. The contested decision was unexpected and had been given at a moment when Mrs Haase was in a critical state of health, having given birth to her daughter a week before. They proposed witnesses who would confirm that the children had not been ill-treated, but were being brought up with love and understanding.", "20. On 7 January 2002 the District Court held a hearing in the presence of the applicants assisted by a lawyer, Mrs Haase's first husband, representatives of the Münster Youth Office, a representative of a nursery and the expert G. The four witnesses of the applicants' own choosing were not heard and had to leave the courtroom.\nThe District Court instructed G. to proceed with the assessment of the remaining children and to finalise his report. It further appointed a new expert, H., to assess the applicants' capacity to bring up their children.", "21. In the following interviews to prepare the assessment, the applicants asked the expert make a tape-recording of the interviews. Upon the expert's refusal to do so, the applicants were unwilling to continue to co-operate with him.", "22. On 1 March 2002 the Hamm Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal against the decision of 17 December 2001. It noted that the District Court had had regard to the report submitted by the Youth Office in connection with its request of 17 December 2001 to revoke the applicants' parental rights and to the expert opinion submitted by G. and that the District Court had considered that the impugned measure was justified. The expert had concluded that the basic needs of the children were not satisfied and that patterns of violence and permanent shortcomings of all kinds determined the children's day-to-day life. It was thus necessary to put an end to the risk to which the well-being of the children appeared to be exposed. A new expert opinion was to be expected by the middle of April 2002. The Court of Appeal found that the applicants' appeal could therefore be dismissed without holding a hearing. It was against the best interests of the children to take them out of the new environment in which they were building up new contacts, and to restore them to their former family, there being the risk that they would be taken to a new environment again shortly afterwards.", "23. On 8 March 2002 the applicants challenged the judge at the Münster District Court for bias.", "24. On 4 April 2002 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, dismissed the applicants' request for an interim injunction.\nThe Federal Constitutional Court found that the applicants' constitutional complaint was neither inadmissible nor manifestly ill-founded. There were doubts in particular whether the courts had breached the applicants' right to a fair hearing and their right to respect for their family life. However, if the requested interim injunction was issued and if later the constitutional complaint had to be dismissed, the children would have to be taken from the applicants again and placed somewhere else. Having regard to the fact that the expert opinion was to be drawn up by mid-April 2002, the applicants should await the outcome of the main proceedings rather than have the children run the risk of being separated from their parents again later. It had to be assumed that the competent courts would conduct the main proceedings speedily having regard to the time element in these matters.", "25. On 10 April 2002 the Münster District Court dismissed the challenge to the judge and on 11 April 2002 another to the expert G.", "26. On 19 April 2002 the Münster District Court appointed a lawyer of the Münster Bar as curator ad litem (Verfahrenspfleger) to represent the children in the proceedings. It instructed the already appointed experts to submit the results of their investigations obtained so far and discharged them from any further expert activity. It appointed a new expert, Professor K., with a view to determining whether separating the children from the family was the only way of eliminating all danger for them.", "27. On 11 June 2002 Professor K. interviewed the applicants at their home. The interview lasted for six hours.", "28. On 21 June 2002 the Federal Constitutional Court, sitting as a bench of three judges, set aside the decisions of the Hamm Court of Appeal of 1 March 2002 and the Münster District Court of 17 December 2001 and referred the case back to the Münster District Court.", "29. In so far as the applicants complained about the decisions of the Münster District Court of 18 December 2001 and 7 January 2002, the Federal Constitutional Court declared the constitutional complaint inadmissible, since the applicants had failed to appeal against these decisions in accordance with section 19 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit - FGG).", "30. In so far as the constitutional complaint was admissible, the Federal Constitutional Court considered that, in accordance with the principles established in its case-law, the decisions of the Münster District Court and the Court of Appeal violated the applicants' family rights as guaranteed by Article 6 § 2, first sentence, of the basic Law, taken together with Article 6 § 3 (see “Relevant Domestic Law” below).\nThere were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality. The question whether the evidence established that there was a risk of harm to the children had not been adequately considered. The District Court and the Court of Appeal had merely referred to the report of the Youth Office and the expert opinion. It did not appear from their decisions whether the expert's conclusions were based on reliable facts. An assessment of the applicants' submissions and considerations as to the possibility of ordering alternative measures, that would not have required the total revocation of parental rights, had not been made. Both the Court of Appeal and the District Court had failed to question the children or give the persons taking part in the proceedings the opportunity to be heard.\nThe measures which had been ordered had led to a drastic change in the lives of all the persons concerned and constituted a particularly serious interference with parental rights. However, no inquiries had been made, even by telephone, before the decision was taken. No reasons were given justifying the urgency of the matter.\nThe Family Court had no information on the possible effects of its decision, since the Youth Office and the expert had not commented on this issue. When examining the advantages and disadvantages of a family measure it was, however, relevant to consider that a separation of the children from their parents could jeopardise the development of the children, in particular in their first years of life.\nThe courts had also failed to clarify the contradiction between the findings in the expert opinion according to which the applicants were not ready to co-operate and the fact that Mrs Haase herself had asked to be granted child-rearing guidance. Furthermore there was no indication whether and to what extent the applicants had refused any contact or help offered by the Youth Office and it was not clear which “specific measures granting assistance” (einzelne Jugendhilfemaßnahmen) had been carried out in the past and why they were not successful.\nThe District Court should have first clarified the questions which arose and in the meantime could have taken alternative provisional measures if there was serious reason to believe that the welfare of the children was at risk.", "31. According to the Federal Constitutional Court, it could not be excluded that, prior to the termination of the proceedings on the merits, which had to be dealt with as a priority, the District Court would issue another emergency decision. If so, the District Court was directed to examine carefully whether, in the light of the evidence obtained in the meantime, the continued separation of the children from the applicants was still justified and whether a repeated change of the children's place of residence would be in their best interests. If the District Court found that the present situation were to be maintained, it would have to consider whether the applicants should be granted a right of access, restricted or subject to conditions if necessary, and whether, in strict accordance with the principle of proportionality, the effects of such a decision should be limited in time.", "32. On 13 and 14 June 2002 four of the children, Timo, Nico, Anna-Karina and Lisa, were interviewed by the judge at the Münster District Court at the respective institutions where they were placed.", "33. According to the minutes of the District Court of 14 June 2002, Timo declared that he wished to return to his parents. He knew that there were certain reasons for placing him and his siblings in a different environment and confirmed that he had had too much work and strain at home. He sent his greetings to his brothers and sisters.", "34. Nico, Anna-Karina and Lisa were interviewed in another foster home. Nico stated that he wished to know whether his parents and his “favourite” father (Lieblingsvater) were all right. He asked why he could not join his “favourite” father and whether somebody, his parents, his father or Maurice, could not come to see him. Lisa and Anna were with him and, according to them, were all right. Lisa had let him know that she too wished to return home. He stated that he was fine. Asked about his dreams, he said that he wished to go to his “favourite” father who was very nice, better than his stepfather. In reply to the question whether the judge should leave a message, he dictated the following letter on a dictaphone: “Dear Sascha (his favourite brother), (his favourite sisters Lisa and Ramona), dear Alex, what a pity that we don't see each other ... Sascha, Matthias, Ramona, Alex, his favourite father and his parents should come and visit him.” (Lieber Sascha (sein Lieblingsbruder), (Lieblingsschwestern Lisa und Ramona) lieber Alex, schade, dass wir uns nicht sehen ... Sascha, Matthias, Ramona, Alex, sein Lieblingsvater und seine Eltern sollten ihn besuchen kommen.)\nThe following letter to his mother was recorded on a dictaphone: “Dear Mama, it is a pity that you do not come and best regards from Maurice and Sandra and Timo and Lisa. Lisa and Anna are all right. Yes and perhaps could you come to see us? Or is that not possible? “ (Liebe Mama! Schade, dass Du nicht kommst und liebe Grüsse von Maurice und Sandra und von Timo und von Anna und dass es Lisa und Anna gut geht. Ja und, vielleicht: könntet Ihr ja mal herkommen. Oder geht das nicht?)", "35. Anna-Karina stated that she felt fine. She was in the company of Lisa and Nico. Everybody said that she should tell her parents that everything was all right. She then added that she did not like it there.", "36. Lisa-Marie regretted that “poor Sandra” was all on her own without any member of the family. She would never bear this. She had to protect Nico and Anna. That was her duty as the elder sister. Nico was beaten very often in that place. She did not know the reason. In reply to a question, she stated that she was doing her homework thoroughly and that she was doing well in school. At home she had almost fallen asleep when doing her homework. When asked what message the judge could pass on, she said that she did not like the place and that she wished to return home. However, the staff did not believe her. She did not really like them. She did not want to go to another institution. She wished to go home. If she were not allowed to go home, she should at least be authorised to see everybody, her brothers and sisters, parents and stepfather. She missed taking Maurice to bed sometimes. Having been told that Nico wished to return to his “favourite” father, Lisa-Maria replied that, unlike Nico, she loved both her father and her stepfather.", "37. On 24 June 2002, as a consequence of the decision of the Federal Constitutional Court, the Münster District Court set down for hearing on 1 July 2002 the request of the Münster Youth Office of 17 December 2001 to provisionally revoke the parental rights of the applicants over the children. It transferred to the Youth Office the right to decide where the children should live (Aufenthaltsbestimmungsrecht). The District Court found that the best interests of the children did not require a modification of the present situation before a decision on the merits was given. The District Court considered that its decision of 18 December 2001 prohibiting the applicants all access to the children was still relevant, since it had not been set aside by the Federal Constitutional Court.", "38. On 1 July 2002 the Münster District Court held a hearing attended inter alia by the applicants assisted by a lawyer, Mrs Haase's first husband, the curator ad litem, a lawyer and representatives of the Münster Youth Office, the experts G. and Professor K. and the children's paediatrician Dr J. Professor K. gave details of her visit to the applicants' home on 11 January 2002 and resumed the content of the interview. Having studied the extensive files concerning the applicants and G.'s report, Professor K. could not confirm that the findings in the report were erroneous. She expressed the view that the children should not be returned to the applicants.\nThe children's paediatrician, Dr J., stated that all the children had been his patients since their birth except the daughter born in December 2001. Although he knew about the children's problems, in particular the difficulties with Nico, the applicants made a quite positive impression on him. It was a big family with many children. However, the applicants were loving parents who took great care of their children. There was no indication that the children had been beaten or otherwise abused.\nThe curator ad litem was opposed to contacts between the applicants and the children.", "39. By an interim injunction of the same day, namely 1 July 2002, the Münster District Court provisionally transferred the custody (Personensorge) over the children to the Münster Youth Office and confirmed its decision of 18 December 2001. The expert was instructed to add to her report. She was requested to comment in particular on whether, in the best interest of the children, it was necessary to maintain the access prohibition, whether the children should be granted access to the older children of the first marriage, Matthias, Sascha, Ramona and Alexander, and if appropriate, in what way such contact could be arranged while keeping the children's place of residence secret.", "40. The District Court relied in particular on the findings of the expert G. that the separation of the applicants from their children had to be maintained. The applicants were incapable of bringing up their children because of their own basic and irreparable educational deficiencies and their abuse of parental authority. The children were emotionally disturbed and presented unusual patterns of behaviour. They had been beaten and locked up. Furthermore the four older children of the first marriage had approved the separation of the younger children from their mother and had refused any contact with her. The sole reason why Mrs Haase was intent on giving a positive impression of herself was to obtain support from others. However, any such support was foredoomed.\nThe District Court noted that Professor K. had not yet submitted her report. However, she had confirmed the findings of the expert G. and had stated at the hearing of 1 July 2002 that there was no alternative to separating the children from the applicants. According to her, Mrs Haase had never been willing to call her own behaviour into question. She satisfied her own needs only and refused to accept child-rearing guidance with a view to reducing her own deficiencies. In fact, she had admitted not having undergone therapy in 1994. Professor K. had found that G.'s expert opinion could not be objected to.\nThe District Court considered that the numerous written statements of witnesses submitted by the applicants confirming that the children had not been beaten or ill-treated did not constitute sufficient evidence in their favour. Harm, such as verbal cruelty, could be of a psychological nature. The statement made by Lisa-Marie that she wished to return to the applicants did not reflect her real intention, but resulted from a conflict of loyalty.\nThe District Court further compared the situation described in an expert report drawn up in 1993 with the present situation: Mrs Haase was always well-dressed while her husband looked tired and worn out. It concluded that Mrs Haase was not aware of her problems. She aggravated with each new pregnancy the emotional deficiencies of the children. This had been confirmed by Professor K. after a discussion with the applicants on 11 June 2002.\nThe District Court affirmed that its decision of 17 December 2001 was based on its experience in cases where coercive measures had to be taken. Had the parents been warned of the requested measure, they would have offered resistance, as was shown by their own reaction and the excessive reaction of the media in the case. An enforcement of the court decisions with the intervention of the authorities and the police would have been contrary to the best interests of the children.", "41. On 16 July 2002 the applicants appealed against this decision to the Hamm Court of Appeal.", "42. On 20 August 2002 the applicants challenged Professor K. for bias. They complained that she had intentionally delayed the preparation of her expert report in order to separate the children from their parents for a longer period. She could not be relied upon to act in the best interests of the children. Without having seen them, she had recommended at the hearing before the District Court of 1 July 2002 that they be separated from the applicants. Her unfriendly conduct vis-à-vis the applicants, when interviewing them at their home on 11 June 2002, and the reference to files dating from Mrs Haase's divorce problems in 1993 confirmed the view that she was not impartial.", "43. On 18 September 2002 the applicants challenged the judge at the Münster District Court for bias. They referred to previous decisions given by that judge in favour of the Youth Office, allegedly in contrast to expert recommendations.\nOn 23 September 2002 the judge declined to stand down.\nOn 30 September 2002 the applicants' lawyer again challenged the judge at the District Court and Professor K. for bias.\nOn 7 October 2002 the Münster District Court dismissed the challenge to the judge on the ground that the applicants' allegations were unsubstantiated.", "44. On 10 December 2002 the Hamm Court of Appeal dismissed the applicants' appeal against the Münster District Court's decision of 7 October 2002.\nOn 19 December 2002 the Münster District Court rejected the challenge for bias in respect of Professor K.", "45. On 13 January 2003 Professor K. submitted her report. She confirmed her previous findings.", "46. On 19 February 2003 the Federal Constitutional Court, sitting as a bench of three judges, refused to entertain the applicants' constitutional appeal against the decisions of 10 December 2002 and 7 October 2002.", "47. On 18 February 2003 the Münster District Court held a hearing. The applicants, the Youth Office, the curator ad litem and the experts G. and K. were present. The curator ad litem declared that the children had adapted to the changed living conditions and appeared to be comfortable with the new situation.", "48. On 4 March 2003 three of the children living with their father, Matthias, Sascha and Alexander, were heard separately by the Münster District Court. They were opposed to seeing their mother.", "49. By a decision on the merits of 6 March 2003, the Münster District Court withdrew the applicants' parental rights over their four children and the three children of the first marriage previously living with them and prohibited access to them until June 2004. It relied on Articles 1666, 1666a and 1684 § 4 of the Civil Code (see paragraphs 53-55 below). The authorities were compelled to take the contested measures, which were justified under Article 6 § 3 of the Basic Law, and necessary in a democratic society for the protection of the health and the rights of the children within the meaning of Article 8 § 2 of the Convention. It found that the domestic situation was difficult and that the children were in danger. The applicants, in particular Mrs Haase, were inflexible and incapable of understanding the children's needs and with her it would be impossible to implement any educative measures. The conditions in which the children had been brought up were highly unsatisfactory. The children had made positive progress in the foster homes in which they had been placed, had gained in confidence and were less affected by behavioural disorders.", "50. By a separate decision of the same day the Münster District Court prohibited contact between Mrs Haase and her four eldest children, Matthias, Sascha, Ramona and Alexander before the end of 2004, or in the case of Mrs Haase's eldest son Matthias, before he attained his majority.", "51. The applicants appealed against the above decisions." ]

[ 4 ]

[ "10. The applicant was born in 1957 and lives in Plovdiv.", "11. On 11 March 1996 the Plovdiv District Prosecutor’s Office opened an investigation against Mr Hamanov, a bank branch manager, and several others, in connection with a number of financial transactions effected by them (see Yankov v. Bulgaria, no. 39084/97, § 11, 11 December 2003 and Hamanov v. Bulgaria, no. 44062/98, § 11, 8 April 2004).", "12. In the course of the investigation Mr Hamanov was accused, inter alia, of having guaranteed on behalf of the bank – without having the right to do so – nine promissory notes issued by companies related to the applicant.", "13. On an unspecified date in November 1996, in the course of questioning, Mr Hamanov stated that the applicant had prompted him to guarantee the promissory notes. On the basis of this statement the investigator decided to accuse the applicant of having incited and abetted Mr Hamanov to commit the alleged crime.", "14. On 14 November 1996 the applicant was charged under Article 282 §§ 2 and 3 in conjunction with Article 20 §§ 3 and 4 of the Criminal Code (“CC”) with having incited and abetted Mr Hamanov to breach his professional duties with a view to an unlawful gain for himself and others.", "15. Eight persons were charged in all. The charges were modified several times in the course of the investigation.", "16. During the investigation, which lasted about fourteen months, the investigator heard forty-seven witnesses, examined numerous financial and banking documents, commissioned expert reports, and undertook searches.", "17. On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor.", "18. On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence.", "19. The first hearing took place from 17 to 30 September 1997. The Plovdiv District Court heard the accused as well as several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment.", "20. The trial resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses were absent as they had not been subpoenaed properly and others, albeit subpoenaed, did not show up. The trial was adjourned until 7 January 1998.", "21. The trial resumed on 7 and 8 January 1998. The court adjourned it to 9 April, as some witnesses did not appear, and ordered an additional financial report.", "22. The hearing listed for 9 April 1998 was adjourned to 6 July and then again to 19 October by reason of the ill health of one of the applicant’s co‑accused.", "23. On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties.", "24. On 30 October 1998 the District Court found the applicant guilty of having incited and abetted Mr Hamanov to guarantee on behalf of the bank, without having the right to do so, nine promissory notes. It sentenced him to six years’ imprisonment and banned him from engaging in financial dealings for a period of nine years.", "25. The reasoning of the District Court’s judgment was deposited in the registry of that court on an unspecified date in late January 1999.", "26. Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant’s co‑accused against their detention. In practice, upon such an appeal, the entire case file would be transmitted together with the appeal.", "27. Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance.", "28. On 26 November 1998 the applicant appealed against his conviction and sentence.", "29. More than a year later, on 6 December 1999, the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000 because of health problems of the applicant.", "30. On 13 and 14 March 2000 the Regional Court resumed its hearing in the case.", "31. On 5 June 2000 the Regional Court quashed the lower court’s judgment and remitted the case to the preliminary investigation stage.", "32. The Regional Prosecutor’s Office, considering that the Regional Court’s judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the time-limit for such an appeal, which was brought by the prosecution authorities to the Supreme Court of Cassation. On 27 November 2000 that court dismissed the prosecution’s request.", "33. Nothing was done in the case thereafter, at least until April 2003, date of the latest information from the parties. At that time the investigation in the applicant’s case was pending before the prosecution authorities.", "34. On 14 November 1996 the applicant was arrested and brought before an investigator who decided to detain him. That decision was confirmed the same day by the District Prosecutor’s Office.", "35. On an unspecified date towards the end of November or the beginning of December 1996 the applicant applied for release to the District Prosecutor’s Office. He asserted that there was no evidence of him having committed a crime. Also, he had a permanent address and could not obstruct the investigation.", "36. On 3 December 1996 the District Prosecutor’s Office dismissed the application on the ground that the applicant had been charged with a serious intentional crime, in which case the law provided for pre‑trial detention. The testimony of two of the witnesses and certain documents indicated that the applicant had engaged in unlawful conduct. The District Prosecutor’s Office also found a likelihood that the applicant would try to hide important documents relating to the facts of the crime of which he was accused.", "37. On 4 December 1996 the applicant appealed to the Regional Prosecutor’s Office. He argued that there was no danger of him absconding, as he had a permanent address, nor of him impeding the investigation.", "38. The appeal was dismissed on 18 December 1996. The Regional Prosecutor’s Office held that since the applicant had been charged with a serious intentional crime, he had to be detained by virtue of paragraph 1 of Article 152 of the Code of Criminal Procedure (“CCP”). He could only be released if the exception of paragraph 2 of that Article was applicable. However, this was not the case, because there was a risk that if released he might impede the investigation by suborning witnesses and hiding documents, regard being had to the complexity of the case, the high number of witnesses to be questioned and the need to organise confrontations between the applicant and certain witnesses.", "39. On 20 December 1996 the applicant appealed to the Chief Prosecutor’s Office. He argued that there was no evidence of him having committed a crime and that the Regional Prosecutor’s Office had not relied on any specific facts justifying the conclusion that the applicant might abscond or tamper with evidence.", "40. On 17 January 1997 the Chief Prosecutor’s Office dismissed the appeal. It subscribed to the reasoning of the lower prosecutor’s offices, but also relied on the fact that there was another investigation pending against the applicant which, pursuant to Article 152 § 3 of the CCP, barred any possibility for release. That investigation had been opened during the 1980s and in 1997 was still pending without having proceeded to trial.", "41. On 18 February 1997 the applicant applied for release, arguing, inter alia, that his state of health was such that detention could be dangerous for him.", "42. On 26 February 1997 the applicant was sent to a hospital for a medical examination.", "43. On 4 March 1997 the Regional Prosecutor’s Office dismissed the applicant’s request for release on the ground of ill health but ordered his transfer to hospital. It referred to its earlier findings about the reasons for the applicant’s continuing in detention.", "44. On 14 March 1997 the applicant applied to the Chief Prosecutor’s Office for release on health grounds. The application was referred to the Regional Prosecutor’s Office.", "45. After examining the application, on 25 March 1997 the Regional Prosecutor’s Office ordered the applicant’s release on bail. It relied on the conclusions of the medical experts, noting that the applicant would not be able to maintain the required dietary regime and undergo the necessary medical supervision if he were returned from hospital to the detention facility. In addition, the supervising prosecutor and the investigator had come to the opinion that all documentary evidence had been gathered and the facts of the case had been clarified. Therefore, there was no risk of the applicant tampering with evidence. The investigation was continuing only in view of the fact that there were difficulties in summoning certain witnesses. Finally, there was no indication that the applicant would abscond. As to the fact that another investigation was pending against him, the Prosecutor’s Office found that this should not be used to the applicant’s detriment as the investigation in question had already been pending for more than ten years.", "46. On 28 March 1997 the applicant posted bail and was released." ]

[ 2, 3 ]

[ "10. The applicant was born in 1963 and lives in Plovdiv.", "11. On 11 March 1996 the Plovdiv District Prosecutor's Office opened an investigation against the applicant, who was a bank branch manager, and several others, in connection with a number of financial transactions effected by them allegedly in breach of the law (see Yankov v. Bulgaria, no. 39084/97, § 11, 11 December 2003, and Belchev v. Bulgaria, no. 39270/98, § 11, 8 April 2004).", "12. On 12 March 1996 the applicant was charged with having authorised thirty-five wire transfers abroad in breach of his professional duties and with a view to an unlawful gain for others.", "13. In the course of the investigation the applicant was also accused of having guaranteed on behalf of the bank nine promissory notes issued by companies related to a Mr Belchev, and of unlawfully possessing firearm ammunition.", "14. Eight persons were charged in all. The charges were modified several times in the course of the investigation.", "15. During the investigation, which lasted about fourteen months, the investigator heard forty-seven witnesses, examined numerous financial and banking documents, commissioned expert reports, and undertook searches.", "16. On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor.", "17. On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence.", "18. The first hearing took place from 17 to 30 September 1997. The District Court heard the accused as well as several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment.", "19. The trial resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses were absent as they had not been subpoenaed properly and others, albeit subpoenaed, did not show up. The trial was adjourned until 7 January 1998.", "20. The trial resumed on 7 and 8 January 1998. The court adjourned it to 9 April, as some witnesses did not appear, and ordered an additional financial report.", "21. The hearing listed for 9 April 1998 was adjourned to 6 July and then again to 19 October by reason of the ill health of one of the applicant's co‑accused.", "22. On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties.", "23. On 30 October 1998 the District Court found the applicant guilty. It sentenced him to nine years' imprisonment and banned him from holding the post of a director of a bank's branch for a period of twelve years.", "24. The reasoning of the District Court's judgment was deposited in the registry of that court on an unspecified date in late January 1999.", "25. Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant's co‑accused against their detention. In practice, upon such an appeal, the entire case file would be transmitted together with the appeal.", "26. Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance.", "27. On an unspecified date in November 1998 the applicant appealed against his conviction and sentence.", "28. More than a year later, on 6 December 1999, the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000 because of health problems of one of the applicant's co‑accused.", "29. On 13 and 14 March 2000 the Regional Court resumed its hearing in the case.", "30. On 5 June 2000 the Regional Court quashed the lower court's judgment and remitted the case to the preliminary investigation stage.", "31. The Regional Prosecutor's Office, considering that the Regional Court's judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the time-limit for such an appeal, which was brought by the prosecution authorities to the Supreme Court of Cassation. On 27 November 2000 that court dismissed the prosecution's request.", "32. Nothing was done in the case thereafter, at least until April 2003, date of latest information from the parties. At that time the investigation in the applicant's case was pending before the prosecution authorities.", "33. On 12 March 1996 the applicant was arrested and brought before an investigator who decided to detain him. The decision was later confirmed by a prosecutor.", "34. On 26 September 1997, during the first trial hearing, the applicant applied to the District Court for release. He submitted that he could not abscond because he had a wife and a child of whom he had to take care. He could not interfere with the investigation either, because all evidence had already been gathered. Finally, there was no risk of him committing an offence, because he had been dismissed from the bank where he had worked. The application was rejected by the District Court with the following reasoning:\n“[The applicant] has been charged with a serious intentional crime. There is still evidence to be gathered. [T]he court therefore considers that there is a real risk that the [applicant] will hinder the investigation.”", "35. On 7 October 1997 the applicant appealed. On 9 October the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 20 October the Regional Court upheld the impugned decision, finding that that applicant had been charged with a serious intentional crime and hence had to be detained.", "36. On 25 November 1997, during the second trial hearing, the applicant made a fresh request for release. He argued that the facts of the case had been elucidated: there were only two more witnesses to be questioned. There was hence no risk of him obstructing the investigation. There was no risk of him re-offending either. The District Court refused, reasoning succinctly that the applicant had been charged with a serious intentional crime, that there were no new circumstances, and that he should hence remain in detention. On 4 December the applicant appealed, arguing that there was no indication that he would flee, obstruct the investigation – especially in view of the fact that the case had progressed to trial –, or try to suborn witnesses or experts. On 5 December the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 15 December the Regional Court dismissed the appeal, finding that the applicant had been charged with a serious intentional crime and that hence his remaining in detention was justified, especially in view of the gravity of the alleged offence.", "37. On 8 January 1998, during the third trial hearing, the applicant again requested release. He averred that in view of the adjournment of the case his detention should not be prolonged any further. There was no risk of him obstructing the investigation or fleeing. The obduracy of the court to refuse his release made pre‑trial detention a form of punishment. Indeed, the other accused persons were on bail. The District Court refused in the following terms:\n“The court finds the [applicant's] request for release ill-founded. [He] has been charged with a serious intentional crime and thus has to be kept in detention. ... The fact that the other accused are not detained has nothing to do with the [applicant's] detention.”", "38. On 16 January 1998 the applicant appealed, averring that the facts of the case had already been clarified, that he had a permanent address and that his family seriously suffered from his continuing detention. On 22 January the District Court confirmed its decision and transmitted the appeal to the Regional Court. On 23 January that court dismissed the appeal, holding that the applicant had been charged with a serious intentional crime. Detention was therefore lawful under Article 152 of the Code of Criminal Procedure (“CCP”), under which persons charged with serious intentional crimes had to be detained, barring special circumstances. There had to be real facts establishing that there was no risk of the applicant absconding, re-offending or hindering the investigation for the exception of Article 152 § 2 to apply. The applicant's arguments relating to his lack of criminal record, permanent address etc. were not of a nature to prove the lack of such a risk.", "39. On 17 April 1998 the applicant filed an application for release, arguing that he had a permanent address and that he had no intention of absconding or interfering with the investigation. On 23 April the District Court held a hearing on the application and denied it in the following terms:\n“The court finds that the [applicant's] request for release is ill-founded. The charges against [him] concern a serious intentional crime and there is a risk that he may interfere with the investigation or commit another crime[.]”", "40. On 29 April 1998 the applicant appealed, arguing that his lengthy detention – more than two years – was not warranted. The following day the District Court confirmed its decision and forwarded the appeal to the Regional Court, which in turn dismissed it on 11 May, holding that there were no objective circumstances which could lead to the conclusion that the applicant would not interfere with the investigation. The length of detention was no reason to deviate from the strict requirements of Article 152 of the CCP.", "41. During the trial hearing which took place on 6 July 1998 the applicant again applied for release. He argued that there was no risk of him absconding, re-offending or fleeing. Moreover, given the adjournment of the case, his detention would exceed two and a half years, thus becoming a sort of punishment. The District Court rejected the request, finding briefly that the applicant had been accused of a serious intentional crime and that there had been no change of circumstances. On 15 July the applicant appealed, asserting that the facts of the case had been established and that he had no criminal record. On 22 July the District Court declined to alter its decision and forwarded the appeal to the Regional Court. On 27 July the Regional Court dismissed the appeal in the following terms:\n“[The applicant is charged with] a serious intentional crime. Under Article 152 [of the CCP] this is sufficient for the imposition of detention. The exceptions of Article 152 § 2 are not present, as [the applicant] may flee or obstruct the investigation.”", "42. On 12 August 1998 the applicant filed an application for release. He maintained that there were no facts indicating that he could abscond, re‑offend or hinder the investigation. On 10 September the District Court held a hearing on the application and rejected it. It held that the applicant had been accused of a serious intentional crime and that there was a risk of him impeding the investigation or re-offending. Moreover, the trial was about to finish. The applicant did not appeal to the Regional Court.", "43. All appeals filed by the applicant against the refusals of the District Court to release him were examined by the Regional Court in private, without the participation of the parties.", "44. The applicant has not alleged that his detention continued after the Regional Court quashed his conviction by a judgment of 5 June 2000." ]

[ 2, 3 ]

[ "20. The applicant was born in Georgia in 1944. He is currently in custody in Batumi, the capital of the Ajarian Autonomous Republic in Georgia.", "21. The applicant was formerly the mayor of Batumi, the capital of the Ajarian Autonomous Republic, and a member of the Ajarian Supreme Council. He was arrested on 4 October 1993 on suspicion of illegal financial dealings in the Batumi Tobacco Manufacturing Company, a private company, and the unlawful possession and handling of firearms. He was convicted on 28 November 1994 and given an immediate custodial sentence of eight years; orders were made for the confiscation of his assets and requiring him to make good the pecuniary losses sustained by the company. On 27 April 1995 the Supreme Court of Georgia, in a judgment on an appeal on points of law, upheld the applicant's conviction of 28 November 1994 for illegal financial dealings but quashed his other convictions. Instead of being transferred to prison to serve his sentence, the applicant remained in custody in the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic.", "22. By Decree no. 1200 of 1 October 1999, the Georgian President granted the applicant a pardon suspending the remaining two years of his sentence.\nThe relevant provisions of the decree read as follows:\n“... that [the following] shall be granted a pardon: 1. Tengiz David Assanidze, born in 1944, who was tried for offences under Articles 238 § 2, 96.1 and 45 of the Criminal Code and sentenced on 28 November 1994 to eight years' imprisonment by the High Court of the Ajarian Autonomous Republic; the remaining two years of his prison sentence shall be suspended and replaced by release on licence for the same period ...", "23. Despite the presidential pardon, the applicant remained in custody in the short-term remand prison of the Ajarian Ministry of Security.", "24. The Batumi Tobacco Manufacturing Company immediately challenged Presidential Decree no. 1200 of 1 October 1999 in the High Court of the Ajarian Autonomous Republic (“the Ajarian High Court”) on the ground that it had been granted unlawfully. Execution of the pardon was therefore stayed in accordance with Article 29 of the Code of Administrative Procedure.", "25. On 11 November 1999 the Ajarian High Court declared the pardon null and void on the ground that the statutory procedure that should have been followed before the President of Georgia could exercise his right of pardon had not been complied with.", "26. That judgment was quashed on 28 December 1999 by the Supreme Court of Georgia, which, in accordance with Article 360 of the Civil Code which was then in force, remitted the case to the Administrative and Tax Affairs Panel of the Tbilisi Court of Appeal.\nIn its submissions to that court, the Batumi Tobacco Manufacturing Company again contended that the pardon contravened the Presidential Decree of 13 May 1998 establishing the rules governing the exercise by the President of Georgia of his right of pardon, added to which the applicant had yet to make good the pecuniary damage the company had suffered.", "27. In the meantime, the applicant was charged with further criminal offences on 11 December 1999 (see paragraphs 33 et seq. below).", "28. In a decision of 24 March 2000, the Tbilisi Court of Appeal dismissed the Batumi Tobacco Manufacturing Company's complaints as unfounded. It ruled that the procedural defects pleaded (the failure to obtain the opinion of the Pardons Board and the applicant's lack of remorse) did not render the President's order unlawful, as the right of pardon was an absolute constitutional right vested in the President of Georgia. It said that, since the pardon granted to the applicant did not extend to the ancillary award of compensation for pecuniary damage, the company could bring further legal proceedings to enforce that award; as to the remaining points, the company had no grounds for contesting the appropriateness of the pardon or the legality of the President's order. The Court of Appeal also noted that the company was not entitled in law to call for the reopening of the criminal proceedings against the applicant. It stated that it considered the applicant's detention to be in violation of Article 5 § 1 of the European Convention on Human Rights.", "29. On 11 July 2000 the Supreme Court of Georgia dismissed an appeal on points of law by the Batumi Tobacco Manufacturing Company as unfounded. It noted that the impugned decision to pardon the applicant had left intact both the applicant's main sentence and the obligation to make good the pecuniary damage caused to the company. This was because the remaining two years of the sentence had been unconditionally suspended, the sentence being commuted to one of release on licence for the same period. The Supreme Court of Georgia said that the sole effect of the presidential pardon had accordingly been to secure the applicant's immediate release, while leaving intact the main and ancillary sentences. As to the President of Georgia's failure to follow the Rules on the Exercise of the Right of Pardon, the Supreme Court found that the decree of 13 May 1998 contained the working rules and regulations of the Office of the President of the Republic and that failure to observe them could under no circumstances prevent the Georgian President exercising his constitutional right of pardon.", "30. Even after 11 July 2000 the local authorities in the Ajarian Autonomous Republic continued to hold the applicant in the short-term remand prison of the Ajarian Ministry of Security in Batumi.", "31. The question of the legality of the applicant's pardon was referred by the Bureau of the Parliament on 24 June 2002 to the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities, which delivered its report on 26 September 2002 (see paragraphs 72 et seq. below).", "32. On 4 October 2002 the President of Georgia issued a decree amending the presidential decree of 13 May 1998 establishing the Rules on the Exercise of the Right of Pardon. A new Article 10.1 of the decree vested the President of Georgia with the power to pardon convicted persons, as defined by Article 73 § 1, sub-paragraph 14, of the Constitution, without complying with the additional requirements set out in the decree beforehand.", "33. On 12 November 1999 Mr David Assanidze, a close relative of the applicant who had been sentenced to twenty years' imprisonment by the Supreme Court of Georgia on 20 September 1996, gave an interview on a television channel broadcasting in the Ajarian Autonomous Republic in which he affirmed that the applicant had been one of his accomplices.", "34. Following that interview the applicant, who had remained in custody after being pardoned by the President on 1 October 1999, was charged on 11 December 1999 with being a member of a criminal association in 1993 and with the attempted kidnapping of V.G., the head of the regional department of the Ministry of the Interior for Khelvachauri (Ajarian Autonomous Republic).", "35. On 28 December 1999 the Batumi Court of First Instance remanded the applicant in custody pending the investigation of the new charges. According to the applicant, the pre-trial investigation into the case ended on 29 December 1999 and a five-volume case file was compiled.", "36. In a decision of 2 March 2000, the Georgian General Prosecutor's Office decided to take no further action, finding that the applicant's prosecution was not based on an arguable case and that all the circumstances and evidence relating to V.G.'s murder had been examined by the Supreme Court of Georgia in its unfettered discretion at Mr David Assanidze's criminal trial in 1996. The General Prosecutor's Office took the view that, since the exhaustive examination of the file relating to V.G.'s kidnapping and murder had not thrown up any evidence whatsoever that the applicant had been a member of the criminal association led by Mr David Assanidze, there were no grounds for charging him in connection with the same case six years after the event.", "37. On 20 March 2000 that decision was set aside by the Batumi Court of First Instance on an appeal by the civil party. Consequently, on 28 April 2000 the Prosecutor's Office of the Ajarian Autonomous Republic ordered the criminal proceedings against the applicant to be reopened. It brought the pre-trial investigation to an end by an order dated 29 April 2000.", "38. The applicant was committed to stand trial in the Ajarian High Court, where he denied all guilt. He maintained that this second prosecution was the result of a conspiracy to frame him. He denied ever having had any links with Mr David Assanidze or his associates, who prior to their arrest had been living as outlaws in the Ajarian forests. The applicant also said that he had at no stage hired them to kidnap V.G., who had been killed by Mr David Assanidze's gang, and, contrary to what had been affirmed by the three prosecution witnesses, kidnapping a State official would not have helped the applicant to consolidate his power as mayor of Batumi. He asked the judges to find him innocent.", "39. The Ajarian High Court found that, even though the applicant had denied helping to organise the kidnapping that had resulted in the victim's murder, his guilt was established by the depositions of three prosecution witnesses: Mr David Assanidze, the leader of the criminal gang, and two gang members, Mr Mamuka Mosiava and Mr Tamaz Jincharadze. On 20 September 1996 all three had been convicted with Mr Tamaz Assanidze, the applicant's brother, of, inter alia, V.G.'s murder.", "40. At the applicant's trial, a confrontation was arranged between Mr David Assanidze and the applicant, at which the former affirmed that the applicant had supplied him with funds and two machine guns to carry out the kidnapping.", "41. Mr Mamuka Mosiava said that he did not know the applicant and had never met him. He explained that he had merely caught a glimpse of the applicant when accompanying Mr David Assanidze to a meeting with him and had heard him instruct Mr David Assanidze to kidnap V.G.", "42. It appears from the judgment that Mr Tamaz Jincharadze, the third witness, was unable to appear in court owing to illness and was heard by the judges in the office of the governor of the short-term remand prison of the Ajarian Ministry of Security. He stated that he did not know the applicant and had only seen him on television. It was through Mr David Assanidze that he had learnt that the applicant's brother, Mr Tamaz Assanidze, had instructed their group to kill V.G. Mr David Assanidze did not want to be involved in murder and had been to see the applicant, whom he was convinced was behind the plot. It was at that meeting that the applicant had told Mr David Assanidze that there was no need to eliminate V.G., only to kidnap him. On 2 October 1993 the three members of the group had waylaid the victim in a street in Batumi and, on attempting to abduct him in accordance with the applicant's instructions, had killed him by accident.", "43. The Ajarian High Court said that it was not just the three witnesses' depositions which confirmed the applicant's guilt, but also the fact that they had been convicted by the Supreme Court of Georgia on 20 September 1996. Without elaborating further on that point, the Ajarian High Court said in conclusion that, even if there was a close relation between the applicant's case and that of Mr David Assanidze and his co-defendants, it constituted an independent criminal act involving participation in the activities of the criminal gang led by Mr David Assanidze and the organisation of V.G.'s kidnapping. In its view, the applicant was directly accountable under the criminal law for his part in those events.", "44. Consequently, on 2 October 2000 the applicant was convicted and sentenced to twelve years' imprisonment to be served in a strict-regime prison.", "45. The Ajarian High Court noted that since his arrest on 4 October 1993 the applicant had remained in custody at all times and had not been released after being granted a presidential pardon on 1 October 1999. Accordingly, he was deemed to have begun his sentence on 4 October 1993.", "46. The applicant appealed on points of law to the Supreme Court of Georgia. The central authorities made various attempts to secure his transfer from Batumi to Tbilisi for the day of the hearing. The Georgian Minister of Justice requested the Ajarian authorities through the intermediary of the Georgian Minister of State Security and the Public Defender (Ombudsperson) to arrange for the applicant's transfer to the capital, but in vain.", "47. On 29 January 2001 the Criminal Affairs Chamber of the Supreme Court of Georgia heard the appeal in the applicant's absence; it quashed the judgment of 2 October 2000 and acquitted the applicant.", "48. It said, inter alia:\n“The preliminary investigation and judicial investigation in the present case were conducted in flagrant breach of the statutory rules. The criminal file does not contain incontrovertible evidence capable of supporting a guilty verdict; the judgment is, moreover, self-contradictory and based on inconsistent conjecture and depositions from persons interested in the outcome of the proceedings that were obtained in breach of the procedural rules.\nThe convicted person, Tengiz Assanidze, did not admit the offences of which he was accused either during the preliminary investigation or at trial. He said that he had been charged as a result of a conspiracy against him by persons with an interest in his obtaining an unfavourable outcome to the proceedings.\nThe Supreme Court notes that there is no evidence in the file to refute his arguments. It has been established that Mr David Assanidze and Mr Tamaz Assanidze [the applicant's brother] were convicted on 20 September 1996 and that Mr David Assanidze, who repeatedly said that his accomplice was Mr Tamaz Assanidze, had at no stage implicated Mr Tengiz Assanidze at the material time. It was only on 12 November 1999 – six years and one month after the events – that, in an interview given to Ajarian television, Mr David Assanidze accused Mr Tengiz Assanidze of having been his accomplice. In that interview, Mr David Assanidze also expressed indignation and outrage at Mr Tengiz Assanidze's receipt of a presidential pardon and sought to denounce the authorities' attempts to portray him as an 'innocent lamb'.”", "49. The Supreme Court found that the investigating bodies and the court that tried the case at first instance had not sought to establish why Mr David Assanidze had waited for so long before implicating the applicant and had not done so at his own trial. Instead, they had merely affirmed: “Relations between Mr David Assanidze and Mr Tengiz Assanidze were healthy and it is inconceivable that Mr David Assanidze's belated allegations were made out of self-interest.” In the Supreme Court's view, however, the evidence in the case file suggested the contrary and “preclude[d] finding that Mr David Assanidze [had] no interest in making his allegations against the applicant or that they [were] founded and true”. It noted that the applicant had said that relations between him and Mr David Assanidze had become strained as a result of a dispute over the sharing of a family tomb where their fathers were buried. Mr David Assanidze had not denied the existence of that dispute at a hearing on 20 September 1999. The Supreme Court accordingly found that Mr David Assanidze's assertion that there was no ill-feeling between them in private did not reflect the truth.", "50. It held that the applicant could not be found guilty on the sole basis of affirmations made by Mr David Assanidze six years after the events in issue.", "51. The Supreme Court went on to note that, in addition to Mr David Assanidze, Mr Mosiava and Mr Jincharadze had also belatedly accused the applicant of participating in the activities of the criminal gang led by Mr David Assanidze. They too had only implicated the applicant several years after their trials. However, both men had said that they did not know the applicant and had only learnt of his involvement in the kidnapping through Mr David Assanidze himself. The Supreme Court ruled that in such circumstances Mr Mosiava's and Mr Jincharadze's statements could not constitute true and incontrovertible evidence.", "52. It was also noted that their assertions that the applicant had provided the gang with money and two machine guns to kidnap V.G. were not corroborated.", "53. After examining other evidence relied on by the court of first instance in the applicant's case and comparing it with Mr David Assanidze's depositions at his trial in 1996, the Supreme Court found:\n“Both [the applicant's] indictment and conviction rely solely on the depositions of persons who have a direct interest in the outcome of the proceedings against him and there is no other evidence of his guilt in the case file. The Court must therefore find that Mr Tengiz Assanidze has not committed an offence under the criminal law.”", "54. In addition, the Supreme Court found serious procedural defects in the criminal proceedings against the applicant. Among other matters, it noted that on 6 March 2000 the investigating officer in charge of the case had rejected a request by the applicant for a confrontation with Mr David Assanidze regarding the kidnapping charge on the ground that it was unconnected with Mr David Assanidze's case and intended only to delay the proceedings unnecessarily. In the Supreme Court's view, the investigating bodies had failed to carry out a thorough investigation into the allegation that the applicant was implicated in the case.", "55. The Supreme Court noted: “According to the impugned judgment, despite its connection with the case of Mr David Assanidze and his co-defendants, the present case concerned an independent criminal act. However, it is stated elsewhere in the same judgment that, in addition to other evidence against him, Mr Tengiz Assanidze's guilt was confirmed by the convictions of Mr David Assanidze and his co-defendants, which have become final.” The Supreme Court added that, in making that affirmation, the trial court “[had] not provide[d] any explanation as to how Mr David Assanidze's and his co-defendants' convictions confirmed Mr Tengiz Assanidze's guilt, since they [had been] convicted of the murder of an official, whereas Mr Tengiz Assanidze was accused of having organised his kidnapping”. Thus, in the Supreme Court's view, the trial court had not in fact decided whether the applicant's case should be treated as part of Mr David Assanidze's case or as an independent criminal act.\nThe Supreme Court therefore found the applicant's conviction unlawful on other grounds, pertaining to the classification in law of the acts concerned.", "56. Consequently, it held:\n“Mr Tengiz Assanidze's conviction on 2 October 2000 by the High Court of the Ajarian Autonomous Republic is quashed and the criminal proceedings against him discontinued, as his acts do not disclose any evidence of an offence.\nMr Tengiz Assanidze shall be immediately released.\nThis judgment is final and no appeal shall lie against it.\nMr Assanidze shall be informed that he has the right to bring proceedings for compensation for the damage caused by the illegal and unjustified acts of the bodies involved in his criminal case.”", "57. On 29 January 2001 the President of the Chamber of the Supreme Court forwarded the short version of the judgment acquitting the applicant to the Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice and the governor of the short-term remand prison of the Ajarian Ministry of Security for execution. He informed them that they would receive the reasoned version of the judgment subsequently.", "58. On 5 February 2001 the President of the Chamber sent them the reasoned version of the judgment acquitting the applicant for execution.", "59. That judgment was never executed and the applicant remains in custody in the short-term remand prison of the Ajarian Ministry of Security.", "60. The applicant's unlawful detention was denounced on a number of occasions by the General Prosecutor's Office of Georgia, the Public Defender, the Georgian Ministry of Justice and the Legal Affairs Committee of the Georgian Parliament. They contacted the local authorities concerned in the Ajarian Autonomous Republic, seeking his immediate release.", "61. In letters of 20 April and 22 May 2001, the General Public Prosecutor's Office of Georgia informed the applicant's wife as follows:\n“... [I]n response to your letter, I wish to inform you that the General Public Prosecutor's Office of Georgia is making every effort to secure compliance with the judgment of the Supreme Court of Georgia dated 29 January 2001 and to bring Mr Tengiz Assanidze's unlawful detention to an end.”", "62. In a letter of 20 April 2001, the Vice-President of the Supreme Court of Georgia informed the applicant's wife that the operative provisions of the judgment of 29 January 2001 acquitting her husband had been sent by facsimile transmission that day for execution to the Georgian Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice, the governor of the short-term remand prison of the Ajarian Ministry of Security and the governor of the long-term remand prison of the Ajarian Ministry of Security. He added that the reasoned judgment had been sent to them under cover of a letter of 5 February 2001. The Vice-President also said in his letter that on 9 February 2001 the Supreme Court of Georgia had received an acknowledgment of receipt slip signed by the governor of the short-term remand prison of the Ajarian Ministry of Security.", "63. On 18 May 2001 the Public Defender wrote directly to Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic:\n“... Your authorities have not yet responded to my recommendation of 31 January 2001, even though Mr Tengiz Assanidze remains in the Ajarian Ministry of Security prison in flagrant breach of the law. ... Under the Public Defender Act, it is both an administrative and a criminal offence not to comply with the Public Defender's recommendations if the Public Defender is thereby obstructed in the course of his or her duties. ... I would therefore ask you to comply with my lawful demands as Public Defender and to hold both the governor of the short-term remand prison of the Ajarian Ministry of Security and the Minister himself accountable.”", "64. On 10 May 2001 the President of the Legal Affairs Committee of the Georgian Parliament wrote to the General Public Prosecutor's Office of Georgia in the following terms:\n“... In a decision of 29 January 2001, the Supreme Court of Georgia acquitted Mr Tengiz Assanidze. However, he continues to serve his sentence in a cell at the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic. ... This constitutes a serious violation of ... Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... I would therefore ask you to take the necessary measures to prosecute those responsible for failing to comply with the aforementioned judicial decision.”", "65. In a letter of 7 June 2001, the director of the department responsible for the execution of sentences at the Georgian Ministry of Justice advised the applicant's wife that her husband was fully entitled to lodge an application against the Georgian State with the European Court of Human Rights. He stated in his letter: “We consider that the authorities of the Ajarian Autonomous Republic are acting in flagrant breach of the law and of human rights.”", "66. The central authority's efforts to secure the applicant's release were unsuccessful.", "67. According to the Government, on 3 September 2001 the Georgian courts martial prosecuting authority ordered certain officials from the Ajarian Ministry of Security suspected of failing to execute the judgment of 29 January 2001 acquitting the applicant to be charged with offences, in accordance with the Criminal Code. The police are trying to trace those concerned.", "68. In a letter of 8 January 2002, the applicant's son informed the Court that his father's health had deteriorated. According to a medical certificate dated 4 December 2001, the applicant was suffering from gastritis, cardiac insufficiency and gastro-oesophageal reflux. As this was causing him severe dietary problems, he required appropriate medical attention as a matter of urgency.", "69. On 28 May 2003 the Government produced to the Court a letter of 4 March 2003 from Mr E. Shevardnadze to Mr Aslan Abashidze, Head of the Ajarian Autonomous Republic, in which he stated:\n“You are a man with the State's interests at heart and I believe that I can count on your understanding in this situation. ... As you are aware, the Court [in Strasbourg] is very shortly due to decide whether to hold a hearing on the merits in the Assanidze case. The family is seeking three million euros in compensation. It is almost self-evident that Georgia will lose this case and that our State will be heavily condemned. There is a solution to this problem. Were Mr Assanidze to be released, his family would agree to withdraw the application.\nI am sure that you will play a part in taking the only decision that is just, that which is in Georgia's interests.”", "70. On 3 April 2003 the President of the Ajarian High Court sent a reply to the Georgian President. He began by accusing the Head of State of harbouring persons of Ajarian extraction who had fled Batumi to take refuge in Tbilisi after attempting to organise terrorist attacks on the Head of the Ajarian Autonomous Republic. He then drew the President's attention to the parliamentary committee's report (see paragraphs 72 et seq. below), which highlighted numerous irregularities in the proceedings that had led to the applicant's pardon and acquittal. Relying on the parliamentary committee's findings and Article 2 of Protocol No. 7 to the European Convention on Human Rights, the President of the Ajarian High Court suggested to the President of Georgia that the applicant's trial should be reopened so that his case could be reconsidered in the light of the matters set out in the report.", "71. He also said in his letter that the applicant's application to the European Court of Human Rights constituted an abuse of his right of application within the meaning of Article 35 § 3 of the Convention and that he had been aided in that task by the General Public Prosecutor's Office of Georgia, the Public Defender, the Supreme Court of Georgia and the National Security Council. He added that, as the parliamentary committee was a national authority within the meaning of Article 13 of the Convention, the applicant could not be regarded as having exhausted domestic remedies before 26 September 2002, the date of the committee's report. Drawing the Georgian President's attention to this point, he said that the Georgian Ministry of Justice had misled the European Court of Human Rights in its observations.", "72. In a letter of 30 July 2002, the Government informed the Court that on 24 June 2002 the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities had been requested by the Bureau of the Parliament to launch an inquiry into the circumstances in which a presidential pardon had been granted in the Assanidze case. The committee, which was composed of members of parliament assisted by university lecturers and practising lawyers, produced its report on 26 September 2002.", "73. Although its terms of reference were confined to issues relating to the presidential pardon, the committee also decided to examine the circumstances in which the applicant had been prosecuted and acquitted in the second set of proceedings. In the introduction to its report, the committee explained its reasons for so extending its terms of reference. In particular, it stated: “[T]he presidential pardon did not constitute an isolated act or separate procedure; in the present case, there was a close relation between all the proceedings and, in order to provide an overall view of the issues, it was considered appropriate to examine the chronology of the various sets of criminal proceedings brought against the applicant, the conduct of those proceedings and the merits of the decisions that were taken.” There were thus two separate parts to the report: one on the legality of the presidential pardon and the other on the decisions of the domestic courts in the criminal proceedings against the applicant.\n(a) The presidential pardon\n(i) Legality of the presidential pardon", "74. On 12 October 1998 the National Security Council examined the question of measures that needed implementing in the prison system. On a proposal by the Georgian President, it was decided that he would exercise his right of pardon. The prison authorities were asked to study the cases of convicted prisoners in their custody and to submit to the President any requests for a pardon, together with the files and assessments of the prisoners concerned. Requests for a pardon had to be made in these terms:\n“Dear President, I repent of the crime I have committed and ask you to remit the remainder of my sentence.”\nRequests made in the prescribed terms were examined and the President exercised his right of pardon in a number of cases.", "75. The parliamentary committee established that on 15 January 1999 the applicant had sent a letter to the Georgian President asking for the remainder of his sentence to be remitted. Since he had not made his request in the terms referred to above, the committee considered that his pardon did not satisfy the regulatory requirements in force and was therefore invalid. It also noted a number of other failings: “the [applicant's] file” had not been submitted to the Pardons Board appointed by the Georgian President, the applicant's name was not on the combined list of convicted persons seeking a pardon that was submitted to the President by the Ajarian authorities concerned and no appraisal of the applicant had been furnished by the Ajarian prison authorities in support of his request.", "76. The committee established that, in breach of the rules in force, the Vice-President of the National Security Council, one of the Georgian President's aides, had prepared and submitted to the President a recommendation for the applicant to be pardoned solely on the strength of the applicant's letter of 15 January 1999. The committee said that that request should have been referred to a court under the rules of criminal procedure and not to the President of Georgia as a request for a pardon.", "77. According to the committee, even assuming that the Georgian President had been entitled to grant the applicant a pardon without first complying with the statutory rule requiring requests for pardons to be examined by the competent board in the first instance, the decision had been taken shortly before the general election of October 1999 and was manifestly influenced by political considerations.\n(ii) Judicial review of the presidential pardon", "78. The committee considered that the reasons given by the Tbilisi Court of Appeal and the Supreme Court of Georgia in their judgments of 24 March and 11 July 2000 respectively did not comply with Articles 60 and 61 of the Administrative Code, which provide an exhaustive list of the grounds on which administrative acts may be declared null and void. Indeed, their effect was to render Article 42 of the Constitution, which guaranteed everyone the right to apply to a court to protect his or her rights, meaningless.", "79. It noted that under domestic law a presidential pardon was an administrative act for which judicial review lay in the administrative courts. As the applicant's presidential pardon had been challenged in the courts, it had not become enforceable until 11 July 2000, the date of the Supreme Court's decision.", "80. The committee criticised the reason advanced by the Tbilisi Court of Appeal on 24 March 2000 for dismissing the Batumi Tobacco Manufacturing Company's application for judicial review. In particular, it considered that the Tbilisi Court of Appeal had ruled on matters beyond the scope of the application, as the company had not sought an order reopening the criminal proceedings against the applicant. The Court of Appeal should not, therefore, have ruled on the lawfulness of the applicant's continued detention. Since those two issues were within the jurisdiction of the criminal courts, not the administrative courts, the committee considered that the Tbilisi Court of Appeal should have restricted its review to the legality of the contested presidential act.", "81. The committee further noted that the presidential pardon concerned only the prison sentence and not the applicant's duty to pay the Batumi Tobacco Manufacturing Company compensation for the pecuniary damage caused. The Tbilisi Court of Appeal should, therefore, also have examined the effects of the presidential pardon on that ancillary punishment.\n(b) The applicant's acquittal", "82. According to the committee, the second set of proceedings in which the applicant was acquitted was, like the first, tainted by various procedural defects at both the investigation and trial stages. In addition, the trial courts had failed to resolve contradictions in the various statements taken in the course of the investigation or to perform a thorough examination of the special circumstances of the case. In the committee's view, those circumstances should have been “treated as evidence by the courts and examined with a view to establishing the truth”.", "83. In order to illustrate this point, the committee conducted a detailed examination of various items of evidence and statements obtained in the criminal proceedings against Mr David Assanidze, Mr Tamaz Assanidze, Mr Nodar Shotadze and fourteen co-defendants, who had been convicted, inter alia, of the murder of the Ministry of the Interior official concerned (see paragraphs 33 et seq. above).", "84. The committee thus established that at the trial in the Supreme Court of Georgia in 1996 Mr David Assanidze and Mr Shotadze had “sought to identify” the applicant as one of the organisers of the attack on Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic. In its view, instead of “ignoring Mr David Assanidze's and Mr Nodar Shotadze's attempts to implicate the applicant in serious offences”, the judges of the Supreme Court of Georgia who heard the applicant's appeal on points of law should have brought “new criminal proceedings against [the applicant] in accordance with Article 257 of the Code of Criminal Procedure in force at the material time”, that is to say, in 1993.", "85. The committee considered that, in order to clarify certain details vital to the truth, the Supreme Court of Georgia should have heard evidence not only from the witnesses who were called, but also from Mr David Assanidze, who should have been questioned about his informal meeting with the judge who heard his case in 1996, and the judge himself. It should have sought to establish by whom and in what circumstances that meeting – at which Mr David Assanidze had accused the applicant off the record of taking part in his group's activities – had been recorded, and why the judge concerned had not mentioned it in his judgment of 20 September 1996.", "86. The committee criticised the Supreme Court for not hearing evidence from two other people who had also been implicated by Mr David Assanidze, and the applicant's son. It considered that the Supreme Court judges who heard the applicant's case should have ordered expert evidence to be obtained to establish when, by whom and how the weapons, the military munitions and technical equipment seized in Mr David Assanidze's case in 1996 had been purchased. Nor had they sought to ascertain why the prosecutor in the applicant's case had declined to make an order joining his case with Mr David Assanidze's.", "87. The committee found, lastly, that the Supreme Court of Georgia had “failed to remit the applicant's case to the investigating bodies for further investigation” and should not have taken “a decision to acquit that was illegal, unfair and based on insufficiently investigated facts”.", "88. In the committee's view, “the new circumstances revealed in its examination of the case for the purposes of the parliamentary report warranted investigation and analysis”. That proved that “the statutory remedies designed to elicit the truth [had] not yet been exhausted”. Referring to Articles 593 § 2 (g) and 539 of the Code of Criminal Procedure, it suggested that the applicant's trial should be reopened.", "89. On 25 March 2003 the General Prosecutor's Office of Georgia refused a request by the civil party for the applicant's case to be reopened and re-examined in the light of the parliamentary committee's findings. It found, inter alia, that the findings did not constitute new circumstances that could warrant a reopening of the applicant's case. In the absence of new circumstances, a judgment of the Supreme Court, which was final and could not be appealed against, could not be challenged under Georgian law.", "90. On 8 November 2002 the President of the Supreme Court of Georgia submitted to the Georgian President his observations on the findings in the parliamentary committee's report of 26 September 2002.", "91. He described the report as “tendentious”, “biased”, “unconstitutional” and “erroneous”. He noted, firstly, that the parliamentary committee had acted far outside the scope of its terms of reference and, instead of examining the circumstances in which the applicant had received a presidential pardon, had decided to review a judgment of the highest court of the land. In so doing, the committee had, in his view, contravened the fundamental constitutional rule requiring the separation of powers. The report undermined the notions of democracy and the rule of law. The President of the Supreme Court said that under the Constitution no one had the right to demand an explanation from a judge about a case. Criticism by a parliamentary committee of a final judicial decision against which no appeal lay served only to hinder execution of the decision and to discredit the judiciary.\n(a) The presidential pardon", "92. As regards the committee's findings on the subject of the presidential pardon, the President of the Supreme Court of Georgia noted, firstly, that the right conferred by the Constitution on the Georgian President to grant a pardon was absolute and unconditional and could be exercised independently of the regulations laying down the principles on which requests for a pardon were to be examined by the Presidential Office. He further noted that in many countries there was no right of appeal against a pardon, which constituted the ultimate act of humanity. The fact that the applicant's request for a pardon had not been examined beforehand by the Presidential Pardons Board could not render the pardon illegal, especially as, in the applicant's case, obtaining his file and details from the Ajarian prison authorities had been no easy task. The President of the Supreme Court of Georgia also pointed out that, in the instant case, the grant of a pardon also represented an attempt at restoring justice to a convicted prisoner who had been held for years in an unlawful place of detention.", "93. He added that the section of the report on the Ajarian High Court's judgment of 11 November 1999 declaring the presidential pardon null and void for procedural defects was entirely erroneous. He pointed out that on 11 November 1999 the New Code of Administrative Procedure had yet to come into force and that, in accordance with Article 360 of the Code of Civil Procedure – the statutory provision applicable to contested administrative cases at the time – the Tbilisi Court of Appeal had exclusive territorial jurisdiction to hear applications for judicial review of presidential acts. The President of the Supreme Court of Georgia said that it was regrettable that the committee had omitted to mention that the Ajarian High Court had on 11 November 1999, in breach of the law then in force, assumed jurisdiction to hear an application for judicial review of a pardon granted by the President of Georgia.\n(b) The applicant's acquittal", "94. In his observations, the President of the Supreme Court of Georgia noted that, in describing the judgment acquitting the applicant as biased, incomplete and illegal, the parliamentary committee had at no point mentioned the question of the applicant's interests or his unlawful detention. The President of the Supreme Court considered that the committee was thereby seeking to justify the applicant's continued detention despite his acquittal.", "95. The committee had chosen to review the judgment acquitting the applicant on its own initiative, but had not put forward a single plausible argument that pointed to the applicant's guilt. Nor had it shown that the Supreme Court could have returned a guilty verdict on the evidence before it. On the contrary, the committee saw no difficulty in an acquitted defendant being held in custody until such time as the issue of his guilt or innocence had been re-examined in the light of new circumstances. That, said the President of the Supreme Court in conclusion, was “totally unlawful”.", "96. The President of the Supreme Court considered it unfortunate that the committee had failed to mention that the applicant had been held since his conviction in the Ajarian Ministry of Security prison, in breach of the law. He noted that Mr David Assanidze, whose televised remarks ought, in the committee's eyes, to have prompted the Supreme Court of Georgia to convict the applicant, was serving his twenty-year prison sentence in the same prison.", "97. The passage in the report in which the committee found that the applicant would not have exhausted the statutory remedies until such time as his trial was reopened in the light of the new circumstances revealed by the parliamentary committee was described by the President of the Supreme Court as a “masterpiece of legal invention”. He recommended that the report be translated into various foreign languages so that international human rights organisations would also have access to it.", "98. The President of the Supreme Court regretted that the parliamentary committee had yielded to political pressure from certain groups, instead of helping justice to prevail, in accordance with the wish expressed at the end of its report.", "99. In conclusion, the President of the Supreme Court of Georgia said that he would leave the issue of the applicant's continued detention following his acquittal to the discretion of the Court in Strasbourg.", "100. In the 1080s Ajaria, part of the Bagratid Kingdom known as the “Kingdom of the Georgians”, was laid to waste by Seljuk invaders from the South. In the 1570s it was invaded by the Ottoman Empire. The sanjaks (districts) of Upper Ajaria and Lower Ajaria were formed there and the region was annexed to the vilayet (province) of Childir (Akhaltsikhe). Subsequently, at various times, the Ottomans and the adjoining Georgian principalities fought over the region. Under the terms of Article IV of the Treaty of Adrianople signed on 2 September 1829 between tsarist Russia and the Ottoman Empire, Ajaria was assigned to the latter.", "101. Article LVIII of the Treaty of Berlin signed on 13 July 1878 between the Russian and Ottoman Empires provided:\n“The Sublime Porte cedes to the Russian Empire in Asia the territories of Ardahan, Kars, and Batum together with the port of the latter.”", "102. Articles XI and XV of the Armistice Treaty signed on 30 October 1918 at Mudros between Great Britain and her allies, and Turkey provided:\n“XI. ... Part of Trans-Caucasia has already been ordered to be evacuated by Turkish troops, the remainder to be evacuated if required by the Allies after they have studied the situation there.”\n“XV. ... This clause to include Allied occupation of Batoum ...”", "103. The Armistice Treaty signed at Brest-Litovsk on 3 March 1918 between Germany, Austria-Hungary, Bulgaria and Turkey, and Russia provided:\n“IV. ... The districts of Erdehan, Kars, and Batum will likewise and without delay be cleared of the Russian troops. Russia will not interfere in the reorganisation of the national and international relations of these districts, but leave it to the population of these districts to carry out this reorganisation in agreement with the neighbouring States, especially with Turkey.”", "104. Article 107 of the Constitution of the Democratic Republic of Georgia, which was adopted on 21 February 1921, provided:\n“The inseparable parts of the Republic of Georgia, namely the district of Abkhazia-Sokhoumi, Muslim Georgia (district of Batumi) and the district of Zakatala, shall have the right of self-government for local affairs.”", "105. Article 2 of the Moscow Accords dated 16 March 1921 and signed by Russia and Turkey provided:\n“Turkey agrees to cede to Georgia suzerainty of the port of Batumi, together with the territory to the north of the border referred to in Article 1 of this Treaty that forms part of the district of Batumi ... on condition that: (a) the populations of these territories enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes. ...”", "106. On 16 July 1921 Ajaria was granted the status of an autonomous Soviet socialist republic forming part of the Soviet Socialist Republic (SSR) of Georgia.", "107. Article 6 of the Kars Treaty signed on 13 October 1921 between the government of Turkey and the governments of the Soviet Socialist Republics of Azerbaijan, Armenia and Georgia provided:\n“Turkey agrees to cede to Georgia suzerainty of the town and port of Batumi, together with the territory to the north of the border referred to in Article 4 of this Treaty that was formerly part of the district of Batumi ... on condition that:\n(i) The populations of the places specified in this Article enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes.\n(ii) Turkey is guaranteed free transit of goods and all materials to or from Turkey through the port of Batumi, free of customs, without hindrance, free of all duties and imposts and with the right for Turkey to use the port of Batumi without special costs. In order to implement this provision, a Committee of Representatives of Interested Parties shall be set up immediately after the signature of this Treaty.”", "108. On 24 August 1995, four years after the dissolution of the USSR, the Georgian Parliament adopted a new Constitution, Article 2 § 3 of which provides:\n“The internal territorial arrangement of Georgia shall be determined by constitutional law on the basis of the principle of division of power after the full restoration of the jurisdiction of Georgia over all its territory.”", "109. On 20 April 2000 the Constitution was amended by a constitutional law which replaced the term “Ajaria” with “Ajarian Autonomous Republic” and added a third paragraph to Article 3 of the Constitution, which reads:\n“The status of the Ajarian Autonomous Republic shall be determined by a constitutional law on the status of the Ajarian Autonomous Republic.”\nOn 10 October 2002 the Georgian Parliament enacted a constitutional law containing similar amendments and additions with respect to Abkhazia. It has not passed any similar legislation with respect to the Tskhinvali region (formerly, the “Autonomous District of South Ossetia”).", "110. The proposed constitutional law determining the status of the Ajarian Autonomous Republic (see Article 3 of the Constitution) has not yet been passed.", "111. Article 73 § 1, sub-paragraph 14, of the Constitution reads as follows:\n“The President of Georgia: ... has the right to grant convicted persons a pardon; ...”", "112. The relevant provisions of Article 1 of Decree no. 319 of 13 May 1998 on the exercise of the right of pardon provide:\nArticle 1\n“The President of Georgia may grant convicted persons a pardon in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution. In order to exercise this right, the President shall examine beforehand requests by convicted persons for a pardon that have been submitted by the Georgian courts, ..., petitions for a pardon lodged by members of parliament, private individuals, groups of private individuals, organisations or public bodies, and requests for convicted persons to be released from an obligation to pay compensation for pecuniary damage under an order of the Georgian courts made in favour of a public undertaking, institution or organisation.\nA pardon may be granted at the request of a convicted person if he or she admits his or her guilt and repents.”\nArticle 2 § 1\n“Requests and petitions for a pardon shall be examined by the Pardons Board before being submitted to the President. The board ... shall be set up to carry out a prior examination of requests and petitions made to the President for a pardon and to make recommendations in that regard. The board's recommendations shall be examined by the President, who shall take the final decision.”\nArticle 7\n“If granted a pardon, the convicted person shall be entitled to:\n(a) remission of all the main or any ancillary sentence, with or without deletion of his or her name from the criminal records;\n(b) remission of part of the main or any ancillary sentence, in other words, to a reduction in the length of his or her sentence;\n(c) have the remainder of his or her sentence commuted to a lesser sentence;\n(d) remission of all or part of an order of the trial court to pay compensation for pecuniary damage.”\nArticle 9\n“A pardon may not be granted to convicted persons:\n(a) who have been tried for a serious crime and sentenced to a term of imprisonment of more than five years and have not yet served at least half of their sentence;\n(b) who have been sentenced for the first time to a term of imprisonment of less than five years and have not yet served at least a third of their sentence;\n...\n(f) who are of bad character according to the institution in which they are being held and have a reputation for unacceptable violations of the applicable prison regulations.\nRequests by convicted persons falling within the provisions of this Article shall not be examined by the Pardons Board unless special circumstances so warrant.”\nArticle 10\n“Prior to its examination by the Pardons Board the request for a pardon shall be sent with the file documents produced by the penal institution concerned for opinion to the Supreme Court of Georgia, the General Prosecutor's Office and the Ministry of the Interior.\nPrior to being examined by the Pardons Board the request for remission of an obligation to pay compensation for pecuniary damage shall be sent with the file documents to the Supreme Court of Georgia, the territorial administrative authorities and self-governing authorities and any legal entity that is a civil party to the proceedings.\nThe aforementioned authorities' opinions and legal entity's observations shall be submitted to the Pardons Board within two weeks.”", "113. By Presidential Decree no. 426 of 4 October 2002, an Article 10.1 was added to the aforementioned Decree no. 319. It provides:\n“The President of Georgia shall have the right to grant a pardon to a convicted person in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution even if the additional conditions set out in this decree are not satisfied.”", "114. Article 360 of Chapter XIX of the Code of Civil Procedure, which contained the rules of procedure in administrative-law disputes before the Code of Administrative Procedure came into force on 1 January 2000 provided:\n“The application must be lodged with the court of appeal with territorial jurisdiction for the area in which the body from which the contested act emanated is situated.”", "115. The relevant provisions of the Code of Administrative Procedure provide:\nArticle 6 § 1 (a)\n“The courts of appeal shall hear as courts of first instance applications concerning: (a) the legality of administrative acts of the President of Georgia; ...”\nArticle 29\n“An application for judicial review of an administrative act shall stay execution of that act.”", "116. The relevant provisions of the Constitution are as follows:\nArticle 56 §§ 1 and 2\n“Parliament shall set up committees for the duration of its term to conduct preliminary studies of legislative issues, to implement decisions, and to supervise the activities of the Government and the bodies accountable to Parliament for their work.\nIn the circumstances set out in the Constitution and the Rules of Parliament, or at the request of at least a quarter of the members of parliament, committees of inquiry and other temporary committees shall be set up. The representation of the parliamentary majority on such committees shall not exceed one-half of the total number of the committee members.”\nArticle 42 § 1\n“Everyone shall be entitled to seek judicial protection of his or her rights and freedoms.”", "117. Article 60 of the Administrative Code, as amended on 2 March 2001, reads as follows:\n“1. An administrative decision shall be declared null and void\n(a) if it emanates from an unauthorised body or person;\n(b) if its execution could entail the commission of an offence;\n(c) if its execution is impossible for objective factual reasons;\n(d) if it is contrary to the law or if there has been a material breach of the statutory rules governing its preparation or adoption. 2. A breach of the law that results in a different decision from that which would have been taken had the law been complied with shall constitute a material breach of the statutory rules on the preparation and adoption of administrative decisions. 3. An administrative decision shall be declared null and void by either the body from which it originated or a higher administrative body on an internal appeal or an administrative court on an application for judicial review.”", "118. Article 257 of the former Code of Criminal Procedure, which was in force until 15 May 1999, provided:\n“If, during the course of the judicial examination of a case, circumstances come to light that indicate that the offence was committed by a person who has not been charged, the court shall make an order for criminal proceedings to be brought against that person and forward the decision to the inquiry and investigative bodies for execution.”", "119. The relevant provisions of the New Code of Criminal Procedure, which came into force on 15 May 1999, are as follows:\nArticle 539\n“A judgment or other judicial decision shall be ill-founded if: (a) a guilty verdict is returned that is not based on the evidence in the case; (b) there are unresolved conflicts of evidence that call into question the validity of the court's finding; (c) the court failed to take material evidence into account when reaching its decision; (d) the court reached its findings on the basis of evidence that was inadmissible or irrelevant; (e) the court rejected certain evidence in favour of other conflicting evidence without explaining its reasons for so doing; (f) the court did not afford the convicted person the benefit of the doubt.”\nArticle 593\n“1. The judgment ... may be quashed in whole or in part if new factual or legal circumstances come to light. 2. New factual circumstances shall entail a review of any court decision that is illegal or does not contain reasons. There shall be a review in particular when:\n(a) it is judicially established that the evidence of a witness or expert witness or of any other kind that constituted the basis for the impugned court decision was false; (b) it is judicially established that the trial judge, the public prosecutor, the investigating officers or prosecuting authority contravened the law when dealing with the case;(c) fresh evidence has come to light ... that may prove the innocence of a convicted person or the guilt of an acquitted person ...;(d) fresh evidence has come to light that shows that ... the evidence on which the decision was based was inadmissible.”", "120. Article 9 of the Institutional Law on the Supreme Court of Georgia of 12 May 1999 sets out the jurisdiction of the various chambers of the Supreme Court, including the Criminal Affairs Chamber:\n“The chambers ... of the Supreme Court of Georgia are courts of cassation which ... hear appeals on points of law against the decisions of the regional courts of appeal, the High Courts of the Autonomous Republics of Abkhazia and Ajaria and the Criminal Affairs Panel of the Supreme Court.”", "121. The relevant provisions of the New Code of Criminal Procedure are as follows:\nArticle 28 (a)\n“Criminal proceedings may not be brought and pending criminal proceedings shall be discontinued if the act or omission concerned is not an offence under the Criminal Code.”\nArticle 602 § 2\n“Judgments must be prepared for execution at the latest within seven days after the date on which they become enforceable.”\nArticle 604\n“1. It is for the court which delivered the decision to send the judgment or order for execution. The order relating to execution of the judgment and a copy of the judgment shall be sent by the judge or the president of the court to the body responsible for its enforcement. ... 2. The body responsible for its enforcement shall immediately inform the court which delivered the judgment of its execution. ...”", "122. Section 6(1) and (3) of the Detention Act of 22 July 1999 provides:\n“Sentences of imprisonment judicially imposed in a judgment shall be served in prison institutions supervised by the Ministry of Justice of Georgia.\nIn the territory of Georgia, these prison institutions shall be as follows:\n(a) ordinary-regime prisons;\n(b) strict-regime prisons;\n(c) isolation prisons.”" ]

[]

[ "9. The applicants (see paragraph 1), who were born in 1955, 1975, 1977, 1979, 1981, 1985, and 1988 respectively, are the wife and children of the deceased, Cavit Özalp, who was killed in 1995 while he was under custody.\nEvents concerning the death of Cavit Özalp", "10. Until 1994, the Özalp family resided in the Serçeler village in Bismil District in province of Diyarbakır. When the security forces started to pressurise the Özalp family members to become village guards, the family moved to Diyarbakır in the spring of 1994.", "11. On 21 August 1995 one of the applicants, Mr Hacı Özalp, went back to Bismil to visit the fields that belonged to his family. When he arrived in Bismil, he was stopped by soldiers and questioned about his father, Cavit Özalp. He was subsequently taken to the gendarme command, where he was further questioned about his father. During the interrogation, Hacı told them where they could find Cavit Özalp.", "12. On 24 August 1995 Cavit Özalp was taken into custody in Diyarbakır. On the same day, Hacı saw his father in custody however he was not allowed to speak to him.", "13. On 26 August 1995 Hacı was released from custody. On the same day, while he was still in Bismil, he was informed by an acquaintance that an incident had taken place in the Kamberli village and that it concerned his father. Consequently, when Hacı went to the Kamberli village to find out more about this incident, he met a villager, called Vehyettin, who told him that his father was dead.", "14. On the same day two police officers visited Cavit's house in Diyarbakır and told Hacı's uncle that Cavit had died.", "15. On 5 February 1996 the applicants' representatives filed a petition with the public prosecutor attached to the Diyarbakır State Security Court. Referring to the investigation that had been commenced into the death of Cavit Özalp and the decision of non-prosecution that had been delivered by the Diyarbakır State Security Court public prosecutor, the applicants' representatives requested a copy of the arrest and autopsy reports as well as the public prosecutor's decision of non-prosecution.", "16. The public prosecutor refused to give these documents and noted at the bottom of the petition the following:\n“It has been decided [by this office] that no prosecution should be brought about the death of Cevat Özalp [Note: Cavit's name is spelled out as Cevat in the public prosecutor's note.] pursuant to Article 96 of the Turkish Criminal Code. The investigations in order to apprehend the co-activists of Cevat Özalp are still ongoing. A copy of the investigation file could not have been given [to the representatives] in accordance with the relevant provisions of the Constitution, as it would constitute disclosure of the content and the subject matter of the investigation file.”", "17. On 24 August 1995 Cavit Özalp was taken into custody by the gendarmes from the Bismil Gendarme District Command on suspicion of membership of the PKK, proscribed as a terrorist organisation. He was suspected of aiding and abetting the PKK terrorists.", "18. On an unspecified date Cavit Özalp gave a statement to the gendarmes. He stated that the PKK terrorists were occasionally staying in his house and that he was providing them with food and military equipment such as weapons, clothes and medicine. He further stated that he had dug a shelter with the terrorists on the slopes of a hill near the Pamuk River in the Sarıhüseyin hamlet attached to the Serçeler village to hide some equipment.", "19. On 24 August 1995 Cavit Özalp was taken to the Bismil Health Center for medical examination. According to the medical report, there were no signs of ill-treatment on his body.", "20. On 26 August 1995 at 4 a.m. the gendarmes conducted a search to find out the location of the shelter that had been mentioned by Cavit Özalp in his statement. Cavit guided the soldiers to the shelter near the Şedat road in the Kamberli village. While protecting themselves in a secure distance, the soldiers asked him to open the cover of the shelter. As he opened the cover, the soldiers witnessed a big explosion, which tore Cavit's body into pieces. The explosives had been placed in the entrance to the shelter by other members of the PKK and the soldiers found weapons, medical equipment and clothes in the shelter. The incident was further reported to the Bismil public prosecutor.", "21. On the same day an on-site examination was conducted by the Bismil public prosecutor together with a doctor. According to an onsite body examination, it was established that both legs were severed as a result of the explosion. No other signs of injury were observed on the dismembered body. The doctor decided that it was unnecessary to conduct a full autopsy on the body. Cavit's corpse was then given to Mr Hasip Yılmaz, a member of the Kamberli village assembly. An incident report was further drafted by the gendarmes and was signed by three non-commissioned officers and the village mayor Mr Kütbettin Altunç.", "22. On 24 November 1995 the public prosecutor at the Diyarbakır State Security Court decided that no prosecution should be brought against Cavit Özalp on account of his membership of the PKK on the ground that he had died on 26 August 1995.", "23. On 14 November 1995 the Bismil public prosecutor accused the non-commissioned officer, Mr İlhan Yücel, of failing to take the necessary precautions when Cavit Özalp had been asked to open the cover of the shelter and of causing Cavit Özalp's death through negligence. However, as the public prosecutor did not have the jurisdiction to bring proceedings against the non-commissioned officer, he declared lack of jurisdiction and transferred the case file to the Bismil District Administrative Council.", "24. Subsequently, the District Administrative Council appointed a major as a rapporteur to conduct further investigations into the killing of Cavit Özalp. On 15 January 1996 the major took statements from the non-commissioned officers, Mr İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, who had been on site during the incident of 26 August 1995. The officers stated that Cavit Özalp had been taken into custody on suspicion of membership of the PKK and had confessed that he had been aiding and abetting the terrorists, providing them with food, clothes, weapons and medical equipment. The soldiers further stated that Cavit had mentioned a shelter which was used by the terrorists and when he was taken to the site to show the place of the shelter, the gendarmes had positioned themselves far from the shelter to prevent any loss of life. The soldiers explained that Cavit was asked to open the shelter, however he had died as a result of the explosion. The officers finally stated that medical equipment and clothes had been found in the shelter.", "25. Basing himself on the statements of the three accused non-commissioned soldiers, the incident and the body examination reports, on 23 January 1996 the rapporteur submitted his report to the District Administrative Council. He concluded that the security forces had taken all the necessary precautions before Cavit Özalp was asked to open the cover of the shelter. The report further stated:\n“Having regard to the fact that Cavit Özalp had confessed that he had dug a shelter [with the other terrorists] it was presumed that he could have known the place of the shelter and that he could have safely opened its cover himself. After the necessary safety measures had been taken, he had been asked to open the cover. However, he had died in an explosion. The explosives had been previously placed there by the terrorists. Neither the security forces nor Cavit Özalp had noticed the explosives.”", "26. The report concluded that the security forces had performed their duty with diligence and it was recommended that no prosecution be brought against the members of the security forces.", "27. On 28 February 1996 the Bismil District Administrative Council issued a decision stating that no prosecution should be brought against the members of the security forces. The council concluded that Cavit Özalp had died as a result of the explosion and that the accused members of the security forces had performed their duty with diligence.", "28. On 2 April 1996 the Diyarbakır Regional Administrative Court, to which the case had been automatically referred to by law, upheld the decision of the Bismil District Administrative Council. 3. Materials submitted by the parties\n(a)Arrest report, dated 24 August 1995, drafted by Bismil District Gendarmerie Command;\n(b)Custody records, dated 24 August 1995 which indicate that Cavit Özalp was taken into custody on 24 August 1995 at about 11 a.m.;\n(c)Undated statement of Cavit Özalp;\n(d)Medical report dated, 24 August 1995;\n(e)Report of incident, dated 26 August 1995;\n(f)Sketch map of scene of incident, dated 26 August 1995;\n(g)Autopsy report dated, 26 August 1995;\n(h)Non-jurisdiction decision of the Bismil public prosecutor's office, dated 14 November 1995;\n(i)Statements of the three non-commissioned officers, Mr İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, dated 15 January 1996;\n(j)Non-prosecution decision of the Diyarbakır State Security Court Public Prosecutor, dated 24 November 1995, delivered against Cavit Özalp;\n(k)Non-prosecution decision of Bismil District Administrative Council, dated 28 February 1996;\n(l)Decision of the Diyarbakır Regional Administrative Court, dated 2 April 1996, upholding the decision of Bismil District Administrative Council;\n(m)Petition of the applicants' representatives to the Diyarbakır State Security Court public prosecutor's office dated 5 February 1996 and the subsequent rejection of the public prosecutor;\n(n)Undated statement of Hacı and Makbule Özalp concerning the application." ]

[ 0 ]

[ "32. The applicant was born in 1970 and lives in Sollentuna (Sweden). The facts of the case, as submitted by the parties, may be summarised as follows.", "33. The applicant's brother Mehmet Salim Acar (son of Mehmet and Hüsna, born in Bismil in 1963), a farmer living in Ambar, a village in the Bismil district in south-east Turkey, disappeared on 20 August 1994. The facts surrounding the disappearance of the applicant's brother are in dispute between the parties.", "34. The facts as submitted by the applicant are set out in Section 1 below. The facts as submitted by the Government are contained in Section 2. A summary of the documents produced is set out in Part B.", "35. On 20 August 1994, while Mehmet Salim Acar was working in a cotton field near Ambar, a white or grey Renault car without any registration plates stopped. Two armed men in plain clothes – claiming to be police officers – got out of the car and asked Mehmet Salim to accompany them in order to help them find a field. When Mehmet Salim refused to get into the car, the two men threatened him with their weapons. They then took his identity card, tied his hands, blindfolded him, punched him in the head and stomach, forced him into their car and drove off.", "36. The scene was witnessed by Mehmet Salim's son İhsan Acar and İlhan Ezer, another farmer. After the car had driven off, İhsan ran home and told his mother Halise Acar what had happened, and she in turn informed the village headman. Abide Acar, Mehmet Salim's daughter, had seen her father sitting in the back of a “grey-coloured” car passing through the village while she and a neighbour were washing clothes in a stream. Another villager had allegedly seen Mehmet Salim being taken to the riverbank, where five other people had been waiting in another car. Mehmet Salim's hands and feet were tied, he was blindfolded and his mouth was taped. The two cars had reportedly driven off in the direction of Bismil. Nothing has been heard from Mehmet Salim since.", "37. Mehmet Salim's family filed a series of petitions and complaints about his disappearance to the authorities, including the Deputy Governor and the Bismil gendarmerie, in order to find out where and why he was being detained.", "38. On or around 27 August 1994, Mehmet Salim's sister Meliha Dal personally handed a petition about her brother's disappearance to the Deputy Governor of Diyarbakır. After reading the petition and, in her presence, speaking on the telephone with Ahmet Korkmaz, a non-commissioned officer (NCO) of the gendarmerie, the Deputy Governor told her that Mehmet Salim was in the hands of the State and that there was nothing that she could do for the time being.", "39. When leaving the Deputy Governor's office, Meliha Dal was approached by a police officer, Mehmet Şen, who volunteered to make enquiries about her brother with a friend in the “torture place” of the Bismil gendarmerie station. This police officer rang Meliha Dal three days later and told her that he had seen Mehmet Salim at the Bismil gendarmerie command and that he could take him some clothes and cigarettes. After Meliha Dal had fetched some clothes, the police officer told her that he would take them to her brother in one or two days' time. On 31 August 1994 the police officer called Meliha Dal again and told her that her brother had been taken away from the Bismil gendarmerie command but that he did not know where he had been taken to.", "40. On 29 August 1994 Hüsna Acar, Mehmet Salim's mother, filed a petition with the Bismil public prosecutor requesting an investigation into her son's disappearance. On 2 September 1994 the public prosecutor took statements from Hüsna, Halise and İhsan Acar, and the farmer İlhan Ezer.", "41. On 19 October 1994 Hüsna Acar asked the Bismil Chief Public Prosecutor for information about the progress of the investigation, but she received no reply.", "42. In letters of 29 November 1994 and 19 January 1995, the applicant asked the public prosecutor at the Diyarbakır National Security Court to investigate the whereabouts of his brother Mehmet Salim. These letters went unanswered.", "43. On 15 March 1995 the Bismil public prosecutor wrote to the Bismil gendarmerie commander, seeking a reply to his enquiry about the case. He wrote again on 17 May 1995 to enquire whether or not the detention of Mehmet Salim Acar might have been politically motivated.", "44. On 20 July 1995 the applicant asked the Bismil Chief Public Prosecutor for information about the case of Mehmet Salim Acar and accused gendarmerie officers İzzetin and Ahmet and village guard Harun Aca of being responsible for his brother's abduction.", "45. On 26 and 27 July 1995 the applicant sent letters to the Minister for Human Rights and the Minister of Justice, seeking information about his brother's whereabouts and condition. On 24 August 1995 the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the Diyarbakır Governor. In his reply of 30 August 1995, the applicant requested the Minister for Human Rights to ensure his brother's safety and to take urgent action.", "46. On 8 September 1995 gendarmes took further statements from Hüsna, Halise and İhsan Acar.", "47. On 22 September 1995 the applicant spoke on the telephone with gendarmerie captain İrfan Odabaş, of the Bismil gendarmerie command, who told him that Mehmet Salim Acar's whereabouts were unknown and asked him whether the abductors had made any ransom demand. The applicant replied that no such demand had been made but that he would pay in return for his brother's release.", "48. On 27 September 1995 the applicant was contacted by an unknown person who asked for 1,100,000,000 Turkish liras in return for his brother's release. The applicant accepted immediately. He was told that his brother would be interrogated at the Bismil gendarmerie command and that he would be able to meet him within a week.", "49. On 5 October 1995 Mehmet Salim's family were contacted by a person called Murat, who informed them that Mehmet Salim had been detained in Bolu and subsequently at a military base. He was alive and was working as an agent for the authorities. In order to have him released, the family would have to comply with the conditions of the Diyarbakır Regiment Commander, namely to keep secret the names of those who had abducted him, as well as the place where and the persons by whom he had been detained. The family refused to accept these conditions. On 10 October 1995 Murat contacted the family again and asked them to reconsider their position, otherwise Mehmet Salim would not be released.", "50. On 25 October 1995 Meliha Dal made a statement to the Bismil gendarmerie command to the effect that, in her opinion, the gendarmerie officers İzzet Cural and Ahmet Korkmaz and the former PKK (Workers' Party of Kurdistan) member Harun Aca, who had become a village guard, were responsible for her brother's abduction.", "51. On 30 October 1995 the home of Meliha Dal was raided by officers of the anti-terrorism branch of the Diyarbakır police, who threatened her with death and attempted to abduct her 12-year-old son.", "52. In November 1995 the applicant was informed by the Diyarbakır general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by two unidentified civilians claiming to be policemen.", "53. The applicant also filed a petition about his brother's disappearance with the Investigation Commission for Human Rights of the Turkish Grand National Assembly. On 1 December 1995, in reply to a request for information, the office of the Diyarbakır Governor informed the Investigation Commission for Human Rights that the case had been investigated, that the two gendarmerie officers whose names had been given by the applicant and his sister had not apprehended Mehmet Salim, that he had been abducted by two unidentified individuals and that the investigation of the case by the Bismil public prosecutor was ongoing. This information was transmitted to the applicant by the Human Rights Commission on 18 December 1995.", "54. On 10 June 1996 Hüsna Acar asked the Bismil public prosecutor for information about the progress of the investigation.", "55. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction (görevsizlik kararı) and transmitted the investigation opened in respect of gendarmerie officers İzzet Cural and Ahmet Babayiğit and village guard Harun Aca to the Diyarbakır Provincial Administrative Council for further proceedings under the Law on the prosecution of civil servants (Memurin Muhakematı Kanunu).", "56. On 25 November 1996 Meliha Dal requested the Diyarbakır Governor to open an investigation into Mehmet Salim's disappearance. On 10 December 1996 the applicant wrote a letter to the President of Turkey and filed a further petition with the Diyarbakır Provincial Administrative Council. On 11 December 1996 Hüsna Acar wrote a letter to the President of Turkey and to the Minister of the Interior, asking them to investigate the disappearance of her son Mehmet Salim. Both petitions were transmitted to the office of the Batman Governor.", "57. On 17 January 1997 the Diyarbakır Governor informed Meliha Dal in reply to her petition of 25 November 1996 that an investigation into the matter had been carried out by the Bismil Chief Public Prosecutor and that those responsible for the abduction of her brother remained unidentified.", "58. In a decision of 23 January 1997, the Diyarbakır Provincial Administrative Council decided not to take proceedings against the two gendarmerie officers and the village guard on the ground that there was insufficient evidence. This decision was confirmed by the Supreme Administrative Court (Danıştay) on 14 January 2000.", "59. On 2 February 2000 at 11 p.m., Meliha Dal and Hüsna and Halise Acar watched a news broadcast on the NTV television channel. The newsreader announced that four persons had been apprehended in Diyarbakır, one of whom was named Mehmet Salim Acar. Pictures of the apprehended men were shown and all three of them recognised Mehmet Salim Acar. The three women continued to watch the news all night and saw him again on the following day during the 8 a.m. television news broadcast.", "60. On 4 February 2000 Meliha Dal and Hüsna and Halise Acar informed the Bismil public prosecutor in person of what they had seen. The public prosecutor telephoned the office of the Diyarbakır public prosecutor and told the women afterwards that three persons by the name of Mehmet Salim Acar had been apprehended, but that, apart from the name, the particulars of the three men did not match those of their relative.", "61. Two days later, the Bismil public prosecutor informed Meliha Dal that her brother had in fact been apprehended, that he was being held in prison in Muş, and that he would be released after making a statement.", "62. On 16 February 2000 Meliha Dal told the Diyarbakır public prosecutor that she had seen her brother on television and asked the public prosecutor for information about his fate. The public prosecutor referred her to the Şehitlik police station, from where she was referred to the police headquarters for verification of the police computer records. There she was told that she would be informed about her brother and was asked to leave. She subsequently received no further information from the police headquarters.", "63. On 18 February 2000 Meliha Dal made a similar request to the office of the Diyarbakır Governor, and was again referred to the Şehitlik police station, which directed her to the anti-terrorism branch, where a police officer took a statement from her and recorded her particulars. After about an hour, Meliha Dal was told that her brother had not agreed to see his family. When she refused to accept this answer and insisted on seeing him, she was asked to leave. She was informed three days later that her brother was not in fact at the anti-terrorism branch. She was subsequently told to go to the prison in Muş. When she and İhsan Acar went to the prison, they were shown a person who was not Mehmet Salim Acar.", "64. On 23 March 2000 three officers from the anti-terrorism branch came to Halise Acar's home and asked her for a copy of her family's entry in the population register. She was told that they were looking for Mehmet Salim Acar throughout Turkey and that it was not established that he was dead.", "65. According to a decision of non-jurisdiction issued on 2 May 2000 by the Muş Chief Public Prosecutor, the person placed in pre-trial detention in Muş was a Mehmet Salih Acar whose year of birth and parents did not match the particulars of the applicant's brother.", "66. On 11 May 2000 Meliha Dal filed a petition with the Diyarbakır public prosecutor seeking an investigation into the sighting of her brother Mehmet Salim Acar during the television news broadcast.", "67. On 30 May 2000 the Diyarbakır Chief Public Prosecutor issued a decision not to open an investigation (tapiksizlik kararı) on the basis of the petition of 11 May 2000.", "68. Later in 2000 Meliha Dal spoke with a prison officer at Muş Prison. The officer confirmed that he had seen Mehmet Salim Acar when he and five or six others had been apprehended and taken to Muş Prison. According to Meliha Dal, the officer's description of Mehmet Salim corresponded to her brother's appearance.", "69. On 29 August 1994 the applicant's mother filed a petition with the Bismil public prosecutor's office requesting an investigation into the whereabouts of her son Mehmet Salim Acar, who had been kidnapped by two men.", "70. The public prosecutor opened an investigation, in the course of which statements were taken from Hüsna and Halise Acar and from the two eyewitnesses to the events, İhsan Acar and İlhan Ezer. İhsan Acar stated that two Turkish-speaking men wearing hats and glasses had asked his father to show his identity card and that he was then put in a grey car without licence plates. İlhan Ezer declared that a grey Renault TX-model car without licence plates had approached them, that one of the two men in the car, speaking with a western Anatolian accent and wearing glasses, had forced them to show their identity cards, saying they were police officers. The men did not give back Mehmet Salim's identity card, saying that they would bring him back after he had shown them someone's land.", "71. On 19 October 1994 Hüsna Acar filed another petition with the Bismil public prosecutor.", "72. On 15 March 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to investigate whether or not Mehmet Salim Acar had been kidnapped. In a letter of 17 May 1995, the Bismil public prosecutor asked the Bismil gendarmerie commander for information about the case.", "73. In a letter of 20 July 1995 to the Bismil public prosecutor, the applicant claimed that village guard Harun Aca, gendarmerie captain İzzettin and gendarmerie officer Ahmet had been involved in the kidnapping of his brother. On the basis of this letter, the public prosecutor decided to hear those allegedly involved and summoned all gendarmerie officers named Ahmet who worked at the Bismil gendarmerie command at the material time to be heard.", "74. On 8 September 1995 gendarmes took statements from Hüsna, Halise and İhsan Acar and from İlhan Ezer. On the basis of the applicant's allegation that Mehmet Salim Acar had been taken away by two officers of the Bismil gendarmerie and a local village guard, İlhan Ezer was asked whether the persons who had abducted Mehmet Salim Acar had worked at the Bismil gendarmerie command, which he denied. He further stated that Mehmet Salim Acar's behaviour had also not indicated that he knew these men.", "75. On 25 October 1995 İlhan Ezer made a statement to the Bismil notary public, in which he stated that he had seen the persons who had abducted Mehmet Salim Acar and that they were not Captain İzzet Cural and Sergeant Ahmet as alleged.", "76. On 6 November 1995 the Bismil public prosecutor took a statement from the gendarmerie officer Ahmet Uyar, who stated that he had just taken up his duties at the time of the incident and that he did not know anything about it. He further stated that there were two other gendarmerie officers named Ahmet, namely Ahmet Korkmaz, who had been killed by the PKK, and Ahmet Babayiğit, who had been transferred to a region with a different climate on medical grounds.", "77. On 23 November 1995 Harun Aca made a statement to both the gendarmerie and the Bismil public prosecutor, on which occasion he submitted a document proving that he had not been in Bismil between 19 July and 6 September 1994, when he had been participating in a security forces operation in Mardin.", "78. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır Provincial Administrative Council. The Administrative Council appointed Captain İrfan Odabaş as inspector for the investigation into the applicant's allegations that his brother had been taken into detention by gendarmerie captain İzzet Cural and NCO Ahmet Babayiğit under the guidance of temporary village guard Harun Aca.", "79. On 9 December 1996 İlhan Ezer made another statement to the gendarmerie in which he declared that he knew Captain İzzet and NCO Ahmet very well and that they were definitely not the men who had abducted Mehmet Salim Acar.", "80. On 25 December 1996 the gendarmerie took a statement from NCO Ahmet Babayiğit, who stated that he had not witnessed the incident and that he did not know anything about it.", "81. On 1 January 1997 the gendarmerie took a statement from Captain İzzet Cural, who denied that Mehmet Salim Acar had been apprehended and detained.", "82. On 23 January 1997 the Provincial Administrative Council issued a decision of non-prosecution, finding that there was insufficient evidence to take proceedings against İzzet Cural, Ahmet Babayiğit or Harun Aca.", "83. Mehmet Salim Acar has been included on the list of persons who are being searched for by the gendarmerie throughout Turkey, and the search for him continues.", "84. The person who was apprehended and shown during a television news broadcast in February 2000 was not the applicant's brother. Several persons being held in detention have the same name as the applicant's brother. However, their dates and places of birth and particulars are different from his.", "85. The parties have produced various documents concerning the investigation into the abduction of Mehmet Salim Acar[2].", "86. On 29 August 1994 Hüsna Acar filed a petition with the public prosecutor's office in Bismil requesting an investigation into the disappearance of her son Mehmet Salih Acar, who had been abducted ten days before by two unknown persons – armed with Kalashnikov rifles and wearing civilian clothes – in a taxi. In her petition Hüsna Acar further stated that her family had already made enquiries with the gendarmerie and the police, who had told them that they knew nothing about it. Hüsna Acar requested the public prosecutor to issue the necessary instructions in order to find her son as soon as possible.", "87. On 19 October 1994 Hüsna Acar filed a second petition with the Bismil public prosecutor, in which she requested an investigation into the disappearance of her son. She asked the public prosecutor in particular to verify whether her son had been apprehended and was being held by the security forces.", "88. By a letter of 20 July 1995, the applicant requested the Bismil public prosecutor to grant his family permission to visit his brother Mehmet Salim Acar who, according to the applicant, had been apprehended in August 1994 by the Bismil gendarmerie commander. The applicant stated that gendarmerie captain İzzettin, NCO Ahmet and Harun Aca, an inhabitant of Ambar, were responsible for his brother's life.", "89. By a letter of 26 July 1995, the applicant complained to the Ministry of Human Rights that in August 1994 his brother Mehmet Salim Acar had been apprehended by Captain İzzettin, NCO Ahmet and counter-guerrilla agent Harun Aca, and that since then his brother was being held at the Bismil gendarmerie command. The applicant further stated that his family had not received a positive reply from the Bismil public prosecutor and the Diyarbakır National Security Court, to which they had applied, and that they were disconcerted not to have been granted permission to contact Mehmet Salim even though they had evidence that he was being detained.", "90. The applicant submitted a similar petition to the Ministry of Justice on 27 July 1995.", "91. In a further letter of 30 August 1995 to the Ministry of Human Rights, the applicant stated that, in addition to his letter of 26 July 1995, he had learned from an official, who wished to remain anonymous, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cura on the basis of information supplied by the “confessor”[3] Harun Aca. Having interrogated him, Captain İzzet had concluded that Mehmet Salim was innocent and that Harun Aca's information had been incorrect. However, as Captain İzzet feared sanctions for having detained Mehmet Salim incommunicado and for too long, for having denied him the necessary medical care and for having failed to respect his defence rights, he had kept Mehmet Salim in detention. Considering that his brother risked being killed by Captain İzzet in order to conceal the matter, the applicant requested the Ministry of Human Rights to intervene as a matter of urgency.", "92. In an undated petition, Hüsna Acar requested the Investigation Commission for Human Rights of the Turkish Grand National Assembly to examine the case of her son Salih Acar, claiming that he had been taken into detention by Captain İzzet of the Ambar gendarmerie on 6 July 1994 and that nothing had been heard from him since. Hüsna Acar sent similar petitions, also undated, to the Ankara Human Rights Centre, the Diyarbakır Governor and the General Gendarmerie Command in Ankara.", "93. On 10 November 1995 the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition concerning Salim Acar had been registered on 3 November 1995 under no. 4467/2872, that the matter would be investigated and that he would be informed of the results of the investigation.", "94. By a letter of 10 June 1996 to the Bismil public prosecutor, Hüsna Acar requested to be provided with information about the steps taken in the investigation into the abduction on 29 August 1994 of her son Mehmet Salim Acar by Captain İzzet Cural and Sergeant Ahmet Kormaz. She further claimed that, on the day her son had been abducted, two other persons – whose names she did not mention – had been abducted in the same car, that one of them had been released and that her son had initially been taken to Bismil, then to Cınar and subsequently to Diyarbakır.", "95. On 5 August 1996 Hüsna Acar requested the Ministry of the Interior to take the necessary steps to find out whether her son Mehmet Salim Acar, who had been abducted in 1994 in a white taxi by two persons whose identities she did not know, was dead or alive.", "96. On 23 August 1996 Hüsna Acar and Halise Acar filed a criminal complaint of abduction and disappearance with the Bismil public prosecutor. They claimed that, three days before his disappearance, Mehmet Salim Acar had quarrelled with Mehmet Açan, who was also living in Ambar, about a pump. Mehmet Açan had told Mehmet Salim that he would definitely “disappear” within three days at the most. Three days later, Mehmet Salim was taken away by Captain İzzettin, Mehmet Açan and Harun Açan. Hüsna and Halise Acar requested the public prosecutor to carry out an investigation and to hand the three perpetrators over to the courts.", "97. On 25 November 1996 Meliha Dal lodged a complaint with the Diyarbakır Governor, claiming that her brother Mehmet Salim Acar had had a quarrel with the brothers Mehmet and Harun Açan. On that occasion, Harun Açan had threatened her brother with death. Three days later, her brother had been taken away by Captain İzzettin and Mehmet and Harun Açan. Meliha Dal further stated that the petitions filed by Halise and Hüsna Acar with the Bismil public prosecutor and the Ministry of the Interior had not led to any results and that the Bismil Governor and the Bismil gendarmerie authorities had not even contacted Halise and/or Hüsna Acar to discuss the matter. Meliha Dal requested the Governor to question Captain İzzettin and the brothers Mehmet and Harun Açan, as she believed that her brother might have been killed by them.", "98. On 10 December 1996 the applicant sent a letter to the president of the Diyarbakır Provincial Administrative Council claiming, inter alia, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca (see paragraph 142 below).\nOn the same day, the applicant sent a similar letter to the President of Turkey, requesting him to investigate what had happened to his brother.", "99. On 11 December 1996 Hüsna Acar filed a petition with the Ministry of the Interior, claiming that the Ambar villager Şakir Gün had extorted money and jewellery from her family in exchange for the release of her son Mehmet Salim. Considering that Şakir Gün was thus aware of her son's whereabouts and involved in his abduction, Hüsna Acar requested the Ministry of the Interior to intervene and investigate the matter.\nOn the same date Hüsna Acar sent an identical petition to the President of Turkey.", "100. The submitted copy of the custody records of the Bismil gendarmerie for the period between 8 July and 13 November 1994 does not contain an entry in the name of Mehmet Salih Acar or Mehmet Salim Acar.\n(b) Preliminary investigation by the Bismil public prosecutor", "101. On 29 August 1994, in an instruction written by hand at the bottom of the petition filed on that day by Hüsna Acar (see paragraph 86 above), the Bismil public prosecutor ordered the taking of a detailed statement from Hüsna Acar and the making of enquiries with the gendarmerie and the security forces. On 31 August 1994 he instructed the Bismil gendarmerie to ensure that Hüsna Acar came to his office to make a statement.", "102. On 2 September 1994 Hüsna Acar made a statement to the Bismil public prosecutor. She confirmed that she had filed a petition and stated that, about ten days before 29 August 1994, her son Mehmet Salih Acar had been taken away in a taxi by two men, who were wearing civilian clothes and armed with Kalashnikov rifles. Nothing had been heard from him since. Her grandson İhsan Acar had witnessed the incident. It appeared that the men had spoken Turkish and that they had driven off in the direction of Bismil.", "103. On the same day, Halise Acar also made a statement to the Bismil public prosecutor. She stated that her husband had disappeared ten or fifteen days earlier when he was in a cotton field with their son İhsan Acar. Two armed men had forced him to get into a taxi, which had driven off in the direction of Bismil. Nothing had been heard from him since. She further declared that she had been told that her husband had been with İlhan Ezer when he was taken away and that the taxi was a dark grey Renault without licence plates.", "104. Also on 2 September 1994, İhsan Acar (born in 1983) was heard by the Bismil public prosecutor. He stated:\n“On the day of the incident, my father and I were working in the field. When we went to sit under a tree to have lunch, İlhan Ezer, who was working in the field, joined us. There was a twenty-metre distance between my father and me. At this point, a grey-coloured taxi with no number plates came and stopped near my father. The persons in the car spoke with my father. I saw them take the identity cards of my father and of the person called İlhan and then return İlhan's identity card, and I saw my father get into the taxi. This taxi immediately headed towards the village of Ambar. Later, I went home and informed my mother. As I was far away, I was unable to recognise these people, but I heard that they were speaking Turkish. These people were wearing hats and glasses. That is all I know and what I have witnessed.”", "105. İlhan Ezer, who was also heard by the Bismil public prosecutor on 2 September 1994, declared:\n“On the day of the incident, while Mehmet Salih Acar and I were having lunch in the field below the village of Ambar, a Renault TX-model grey taxi without number plates approached us. The persons in the car asked us to hand over our identity cards. When we refused, they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards. The persons who asked for our cards had a western accent. Both of them were about 25 or 26 years old. One of them was wearing glasses. They did not give back Mehmet Salih's identity card. They said: 'Mehmet Salih will show us someone's field and then we will send him back.' That is all I know and what I have witnessed in relation to the incident.”", "106. On 13 September 1994 the Bismil public prosecutor informed the Bismil gendarmerie command that, about ten days before 29 August 1994, Mehmet Salih Acar had been abducted by two unknown persons – aged 25 or 26, speaking with a western Anatolian accent and one of them wearing glasses – who had come in a gunmetal Renault TX-model taxi without licence plates. The public prosecutor instructed the gendarmerie to carry out an investigation into the persons who had abducted Mehmet Salih Acar and, when found, to bring them to his office.", "107. On 25 January 1995 the Bismil public prosecutor sent a reminder to the Bismil gendarmerie command, urging the gendarmerie to speed up compliance with his instruction of 13 September 1994.", "108. By a letter of 7 February 1995, the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the requested investigation had been completed. Captain Cural appended to his letter a record dated 31 January 1995, signed by the gendarmerie officers İlhan Yücel, Ahmet Uyar and Yılmaz Pala of the Bismil central gendarmerie command, stating that enquiries had been made, but that it had not been possible to identify the persons who had abducted Mehmet Salih Acar.", "109. On 15 March 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to conduct a thorough investigation into the alleged abduction of Mehmet Salih Acar and, if this had in fact taken place, to tell him who was responsible and whether it had been politically motivated. He sent a reminder of this instruction to the Bismil gendarmerie command on 17 May 1995.", "110. By a letter of 22 June 1995, the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the investigation requested on 25 January 1995 had been completed. Captain Cural appended to his letter a record dated 20 June 1995, signed by the gendarmerie officers İlhan Yücel, Ismail Özden and Ahmet Uyar of the Bismil central gendarmerie command, stating that it had not been possible to locate or identify the persons who had abducted Mehmet Salih Acar.", "111. On 14 August 1995, acting on the petition filed on 27 July 1995 by the applicant (see paragraph 90 above), the Ministry of Justice requested the Bismil public prosecutor, as a matter of urgency, to provide information about Mehmet Salim Acar, who had allegedly been taken into detention at the Bismil gendarmerie command in August 1994 and who had not been allowed to see his relatives since, and about the legal steps taken in his case.", "112. By a letter of 21 August 1995, the Bismil central gendarmerie station commander Sergeant İlhan Yücel informed the Bismil district gendarmerie command that it was not known whether the abduction of Mehmet Salih Acar had, in some way or other, been politically motivated, that it was not known who had abducted him and that no news from him had been received since his abduction. Sergeant Yücel appended to his letter a record dated 14 August 1995, signed by himself, the gendarmerie officer Mustafa Candar and the Ambar muhtar[4] Mehmet İhsan Tuncay, with the same contents as the letter.", "113. Also on 21 August 1995 and in reply to the request of 14 August 1995, the Bismil public prosecutor informed the Ministry of Justice that it was asserted that Mehmet Salih Acar had been abducted about ten days before 2 September 1994 by two armed and unidentified persons, who had forced him to get into a taxi while he was working in the fields with his son İhsan Acar. The responsible authorities had been contacted in order to proceed with the search for him. However, the persons who had abducted Mehmet Salih Acar had not, to date, been identified and the investigation of the case was ongoing.", "114. On 18 September 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to ensure that Harun Acar from the village of Ambar reported to his office in connection with the investigation into the disappearance of Mehmet Salim Acar. On 21 September 1995 the Bismil gendarmerie district command instructed the Bismil central gendarmerie command to find Harun Acar's address.", "115. On 29 September 1995 Sergeant İlhan Yücel, the Bismil central gendarmerie commander, informed the Bismil gendarmerie district command that Harun Acar did not live in Ambar, that he was currently serving in an anti-terrorism unit and that his current address could be obtained from the Derik and Mazıdağı gendarmerie district commands. Sergeant Yücel appended to his letter an undated report, signed by the gendarmerie officers Mustafa Candal and Özay Yalbul, and the Ambar muhtar, Mehmet İhsan Tuncay, stating that Harun Acar had left no address when he was released from Diyarbakır E-type Prison but that he could be found by asking the Derik or Mazıdağı gendarmerie command. This information was transmitted to the Bismil public prosecutor on 10 October 1995.", "116. On 12 October 1995 the Ministry of Justice requested the Bismil public prosecutor to provide information about the steps taken in the investigation into the disappearance of Mehmet Salih Acar, which formed the subject matter of a complaint filed by the applicant with the European Commission of Human Rights, in which he alleged that his brother had been taken into custody in Bismil on 20 August 1994 and that he was being tortured. The Bismil public prosecutor was asked in particular to inform the Ministry if an investigation into the matter had been opened and, if so, whether it had been opened automatically or in response to a request in respect of Mehmet Salih Acar.", "117. On 16 October 1995 the Bismil public prosecutor sent a reminder to the Bismil gendarmerie command of his instruction of 18 September 1995. On the same day he instructed the Bismil gendarmerie command to ensure that Halise Acar and all gendarmes who had served at the Bismil gendarmerie command at the material time and who were named “Ahmet” reported to his office in order to make statements. Finally, he instructed the Bismil gendarmerie command to provide him with the current address of Captain İzzettin Cural, who had left Bismil after being posted elsewhere.", "118. On the same day the Bismil public prosecutor informed the Ministry of Justice that an investigation into the disappearance of Mehmet Salih Acar had been opened, in which statements had been taken from the complainants Halise and Hüsna Acar and from the witnesses İhsan Acar and İlhan Ezer, and that steps had been taken to obtain a statement from Captain İzzettin, NCO Ahmet and Harun Aça, and an additional statement from Halise Acar. He further informed the Ministry that, as it was possible that Mehmet Salih Acar had been kidnapped, letters had been written to the central police and gendarmerie authorities requesting that Mehmet Salih Acar be found.", "119. On 20 October 1995 the Bismil public prosecutor requested the public prosecutors in Derik and Mazıdağı to summon and take a statement from Harun Aça in relation to the disappearance of Mehmet Salih Acar.", "120. On 3 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Captain İzzet Cural.", "121. On 6 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor that, in response to his request of 16 October 1995, Sergeant Ahmet Uyar had been sent to his office. In a statement of the same day to the Bismil public prosecutor, Ahmet Uyar declared, in his capacity as a person suspected of an offence, that he had no information about the incident and that he had not witnessed it. He had taken up his duties at the Bismil district gendarmerie eight days before the incident took place. The person who had served before him was Sergeant Ahmet Korkmaz, who had been killed by the PKK. Ahmet Babayiğit had also served before him, but had had a road accident and was currently on sick leave. Ahmet Uyar denied having been involved in the incident and stated that he did not know the person mentioned by the public prosecutor.", "122. On 10 November 1995 the Mazıdağı gendarmerie district command informed the Mazıdağı public prosecutor that Harun Aça did not serve at that command.", "123. On 16 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Harun Aça, who had been found to serve at the Derik gendarmerie district command.", "124. On 23 November 1995 Harun Aca made a statement at the Bismil gendarmerie central command, in which he declared that he had left Ambar in 1988. He had later joined the PKK until he had surrendered himself voluntarily on 4 April 1994 to the Derik gendarmerie district command. Owing to his participation in military anti-terrorist operations as a guide, it was impossible for him to return to Ambar. He had only done so on very rare occasions and for reasons of security had then always stayed on the premises of the Bismil gendarmerie district command. His parents, his spouse and family lived in Ambar. They did not have a hostile relationship with the other families living there, but owing to his personal position his family had become a PKK target. He confirmed that Mehmet Salim Acar and his family also lived in Ambar, but he had not seen them since 1988 and no longer had any contact with them. For security reasons, he would only enter and leave Ambar during the day and in secret, and was particularly careful not to be seen by anyone. He denied having given any information about Mehmet Salih Acar to gendarmerie captain İzzet Cural or to NCO Ahmet, as he had had no mission to Bismil and did not know what was going on there. The PKK had incurred many losses in the provinces of Mardin and Şırnak on the basis of information provided by him and he was convinced that the PKK had organised the abduction as a result of those losses. He further denied having apprehended anyone with the assistance of gendarmes serving in the Bismil district. In any event, he had no such powers. His function was limited to giving information to the security forces, which he could not provide in respect of the Bismil district or even the Diyarbakır province as he did not have any.", "125. Also on 23 November 1995 Harun Aca, in his capacity as a person suspected of an offence, made a similar statement to the Bismil public prosecutor. In addition, Harun Aca declared that he had a document proving that he had participated in an operation conducted in the Kelmehmet mountains near Mardin between 19 July and 6 September 1994, and submitted, inter alia, a letter of commendation from the command of the Mardin gendarmerie commando battalion at Kızıltepe certifying that he had participated in an operation conducted between 19 July and 20 August 1994 in the Şırnak and Mount Cudi area. He again denied that he had provided any information to Captain İzzet or NCO Ahmet and maintained that he knew nothing about the disappearance of Mehmet Salim Acar, whom he had not seen since 1988.", "126. On 30 November 1995 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Captain İzzet Cural in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça.", "127. On 19 December 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to provide him with the current address of Sergeant Ahmet Babayiğit for the purposes of obtaining a statement from him. On 25 December 1995 Captain İrfan Odabaş, the Bismil gendarmerie district commander, provided the Bismil public prosecutor with Ahmet Babayiğit's current address.", "128. On 27 December 1995 Captain İzzet Cural, in his capacity as a person suspected of an offence, made a statement to the Ankara public prosecutor Osman Aşrafoğlu in which he declared that, in response to a report that Mehmet Salih Acar had been abducted, an investigation by the gendarmerie had been carried out which had not resulted in finding the abducted person or in identifying the perpetrators. He further stated that he did not know where Mehmet Salih Acar currently was.", "129. On 8 January 1996 the Bismil public prosecutor took a further statement from Halise Acar, who maintained the account contained in her previous statement and complaint. She added that, three days before his disappearance, her husband had had a quarrel with Mehmet Aça about a water pump. Mehmet Aça was the brother of Harun Aça, a former PKK member who had later joined the security forces, for whom he was still working. That is why she believed that her husband had been taken away by the security forces acting on instructions given by Harun Aça.", "130. On 9 January 1996 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Ahmet Babayiğit in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça.", "131. On 26 January 1996 Captain İrfan Odabaş, the Bismil gendarmerie district commander, informed the Bismil public prosecutor, in reply to his request of 16 October 1995, that no officers or NCOs called Ahmet were currently serving under his command. Captain Odabaş further informed the Bismil public prosecutor that the expert gendarmerie sergeant Ahmet Uyar had been ordered to report to the public prosecutor's office as he was present, that the expert sergeant Ahmet Babayiğit was currently on sick leave and that Ahmet Korkmaz had been killed on 31 October 1994 in an armed clash in Bismil.", "132. On 5 February 1996, at the request of the Bismil public prosecutor, Ahmet Babayiğit made a statement at Dikmen police station to the police constable Mehmet Cabbar. He declared that he knew nothing about the alleged abduction of Mehmet Salih Acar by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie apparently acting on instructions given by Harun Aça. He did not remember any incident of that nature. He further stated that he did not at present remember the persons named Captain İzzettin and NCO Ahmet.", "133. In a certified document, dated 25 February 1996 and signed by the Mardin gendarmerie commando battalion commander Major Hurşit İmren, it is stated that Harun Aça, who had been serving as a village guard under the orders of the Derik gendarmerie district command since 27 May 1994, had participated in operations carried out from 19 July to 6 September 1994 by the Mardin gendarmerie commando battalion command in the Şırnak province and the Kelmehmet mountains.", "134. In the Bismil public prosecutor's decision of non-jurisdiction of 17 June 1996, the stated offence is abuse of authority. Mehmet Salih Acar is mentioned as the victim of this offence, Hüsna and Halise Acar and the applicant as the complainants, and the gendarmes İzzet Cural and Ahmet Babayiğit and the village guard Harun Aça as the accused. Since, at the material time, İzzet Cural and Ahmet Babayiğit were serving at the Bismil gendarmerie and Harun Aça was working with the gendarmerie, the Bismil public prosecutor held that he was not competent to deal with the matter and that, pursuant to section 15(3) of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the case was to be determined by the Diyarbakır Provincial Administrative Council.\n(c) Proceedings before the Diyarbakır Provincial Administrative Council", "135. On 26 June 1996 the Diyarbakır Provincial Administrative Council transmitted the decision of non-jurisdiction of 17 June 1996 and the relevant case file on the preliminary investigation carried out by the Bismil public prosecutor to the Diyarbakır provincial gendarmerie command, requesting it to examine the facts on which this decision was based, to conduct – if necessary – an investigation and to communicate the results thereof.", "136. On 24 September 1996, in connection with the applicant's petition of 27 July 1995 (see paragraphs 90 and 111 above), Captain İrfan Odabaş took a statement from Harun Aça who declared that between 19 July and 6 September 1994 he had participated in the security forces' operations in the provinces of Şırnak and Mardin. He denied the accusation against him, stating that he had nothing to do with the matter and that he had no information about it. He added that, since he had taken up his duties with the gendarmerie, he had only been able to go on leave when given permission to do so and that his leave record could be checked at his duty station.", "137. On 9 December 1996, in connection with the applicant's petition of 27 July 1995, İrfan Odabaş took statements from İlhan Ezer, İhsan Acar, Hüsna Acar and Halise Acar.", "138. İlhan Ezer made the following statement:\n“On the day of the incident I was eating lunch in the field below Ambar with Mehmet Salih Acar, who has been abducted. A grey Renault TX-model car without licence plates with two people in it drove towards us. They asked for our identity cards. After looking at them, they returned my card, but did not return that of my friend Mehmet Salih Acar. They told us to get into the car. I said that I definitely would not get into a car belonging to people I did not know. Mehmet Salih Acar got into the car without making any objection. The men said: 'Mehmet Salih will show us a field. We will bring him back', and they drove off towards Ambar. I then asked Mehmet Salih's son whether he knew the men. He said 'No', so I told him to go to the village and tell the people that strangers had taken his father away. The child went to the village. I know Captain İzzet and NCO Ahmet very well. If I saw them in the village, I would recognise them. The men who came were definitely not them. If they had been, I would have recognised them. I had not seen the men who abducted Mehmet Salih Acar before and did not recognise them. One was about 25 to 26 years old and the other 18 to 20. Both were wearing hats and the older one was wearing glasses and had a moustache.”", "139. İhsan Acar's statement to İrfan Odabaş reads:\n“On the day of the incident I was working with my father in the field we leased. Our neighbour İlhan Gezer was working alongside us on his own land. We had gone under a tree in our field to eat our lunch, but there was a distance of about ten metres between my father and myself. Then a grey Renault without licence plates with two people in it came towards us. It stopped by my father. İlhan Gezer also came over. They began to talk to the two of them. I was watching because I was further away. They asked my father and Uncle İlhan for their identity cards. They then returned İlhan Gezer's card. The conversation between them was in Turkish. Then, they took my father towards Ambar. There was no argument or struggle when they took him away. The men who came had a Kalashnikov rifle. They wore hats and the older one had a moustache. Then İlhan Gezer asked me if I knew them. After answering that I did not know them, I ran to inform the village. Since that day we have not heard anything from my father.”", "140. Hüsna Acar made the following statement:\n“Mehmet Salim Acar is my son. He has been missing since the date of the incident. I have no direct knowledge of the disappearance of my son Mehmet Salim Acar. I only know what my grandson İhsan Acar told me when we came to the village on the day of the incident. I do not know anything more than this. I do not know who abducted my son Mehmet Salim Acar or for what reason. I do not think that the gendarmerie took my son. The only thing that I want from my State is for my son to be found dead or alive and to be handed over to me. Apart from this, I have no complaint against Captain İzzet or Expert Sergeant Ahmet. I do not know these people and I have no feelings of animosity towards them. Because my son is not a terrorist, we had not had any dealings with the gendarmerie until then. I want those who abducted my son to be found and punished. Apart from that, I do not wish to complain about anyone.”", "141. Halise Acar made the following statement to İrfan Odabaş:\n“Mehmet Salim Acar, who has gone missing, is my husband. On the day of the incident he had gone to work in the field with my son İhsan Acar. My son later came running back to the house saying that Mehmet Salim Acar had been made to get into a car by two people whom he did not know and had driven off towards Ambar. I did not see the abduction of my husband Mehmet Salim Acar myself. I do not know who took my husband or why. We have been unable to get any news from him. All I want from the State is that they find my husband dead or alive and hand him over to me. I am making a formal complaint against those who abducted my husband. But I have no complaint against Captain İzzet or Expert Sergeant Ahmet as I do not believe that they abducted my husband. At the moment I am living with my mother-in-law and her daughter at [address]. My mother-in-law's son Tahsin Acar works in Sweden and has filed various petitions in order to find my husband.”", "142. On 10 December 1996 the applicant wrote a letter to the President of the Diyarbakır Provincial Administrative Council, claiming that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca. The applicant further stated that an officer of the anti-terrorism branch of the Diyarbakır police had investigated the case in July 1995 and that the Bismil gendarmerie had admitted that his brother was being held by them. However, Captain İzzet Cural had later told this police officer that the person who was detained was not Mehmet Salim Acar but someone called Mahmut Acar, from Nusaybin. The applicant also described a telephone conversation he had had on 22 September 1995 with Captain İrfan Odabaş, who had replaced Captain İzzet as commander of the Bismil gendarmerie and who had asked the applicant whether a ransom had been demanded. The applicant had told Captain Odabaş that no such demand had been made, but that he would be willing to pay a ransom. On 27 September 1995 the applicant's family had been contacted by someone demanding a ransom in exchange for his brother's release. On 5 October 1996 another person – identified by the applicant as Namık Keser, from Diyarbakır – contacted the family and said that Mehmet Salim Acar was being held by the Diyarbakır gendarmerie and would be released if the applicant agreed to work as an informer for the authorities, which the applicant refused to do.", "143. On 25 December 1996 İrfan Odabaş took a statement from Ahmet Babayiğit, who declared that he had not seen the abduction of Mehmet Salim Acar and that he knew nothing about it.", "144. On 1 January 1997 İrfan Odabaş took a statement from Captain İzzet Cural, who declared:\n“We received a report that Mehmet Salim Acar from Ambar, which lies within our command's jurisdiction, had been abducted by unidentified persons. I was at the unit centre when the report was received. I immediately gave the necessary information to the authorities concerned. We started to conduct the necessary searches at the entrances to and the exits from Bismil and Ambar, but we could not find the men in question. I do not know who abducted Mehmet Salim Acar or for what purpose. In spite of all our searches, we were unable to find the perpetrators or the victim. As a result of our search and investigation in and around the village, we established that he had been abducted by two persons, but we were unable to establish their identities. We definitely did not apprehend or detain this man, as alleged. It has still not been possible to obtain any information about the abduction of Mehmet Salim Acar.”", "145. İrfan Odabaş submitted the report on his investigation to the Diyarbakır Provincial Administrative Council on 15 January 1997. The report names Tahsin Acar as the complainant, İzzet Cural, Ahmet Babayiğit and Harun Aca as the persons accused of the offence of abuse of authority, and İlhan Ezer, Halise Acar, İhsan Acar and Hüsna Acar as witnesses. The report contains, inter alia, a summary of the statements taken from the accused and the witnesses, and Captain Odabaş's advisory opinion that the applicant's claims remained unsubstantiated and found no support in the statements obtained, which indicated that the accused had not been involved. He therefore concluded that there was no need to open a judicial or administrative inquiry and that a decision not to prosecute would be appropriate.", "146. In its unanimous decision of 23 January 1997, in which Hüsna Acar is named as the complainant, and Captain İzzet Cural, NCO Ahmet Babayiğit and Harun Aca as defendants, the Diyarbakır Provincial Administrative Council found that the accusation of abuse of authority allegedly committed by former Bismil gendarmerie district commander Captain İzzet Cural, NCO Ahmet Babayiğit and temporary village guard Harun Aca by having abducted Mehmet Salih Acar in August 1994 was not supported by evidence against the defendants that could be regarded as sufficient for instituting proceedings against them. It therefore decided to reject the request to take proceedings, in accordance with section 5 of the Law on the prosecution of civil servants and Article 164 of the Turkish Code of Criminal Procedure.", "147. In its unanimous decision of 14 January 2000, following ex officio appeal proceedings, the Second Division of the Supreme Administrative Court held that the evidence available was insufficient to send the defendants for trial and thus upheld the decision of 23 January 1997 by the Diyarbakır Provincial Administrative Council.\n(d) Other domestic investigations", "148. On 24 August 1995 Minister Algan Hacaloğlu informed the applicant that his petition of 26 July 1995 (see paragraph 89 above) had been transmitted to the Diyarbakır Provincial Governor.", "149. On 8 September 1995, on the basis of the applicant's allegations set out in his petition of 26 July 1995, statements were taken from İhsan Acar, İlhan Ezer, Halise Acar and Hüsna Acar at the Bismil central gendarmerie command.", "150. İhsan Acar made the following statement:\n“I live in the village of Ambar with my family. Tahsin Acar is my paternal uncle. Mehmet Salim Acar is my father. Last summer we were irrigating the cotton field. I, my father and İlhan Ezer from the village of Üçtepe decided to take a break for lunch in the shade of a tree. A car approached us. It was a dark grey or grey Renault car without licence plates. It stopped near to us. Two men got out of the car. One was short and wearing a hat. The other one was young, tall and wearing a hat and glasses. They asked my father and İlhan from Üçtepe to show their identity cards. They refused, saying: 'We will not show you our identity cards because we do not know who you are.' The two men replied that they were from the police. So my father and İlhan showed them their identity cards. The two men looked at the cards and gave İlhan his card back. They did not give my father his card back. They spoke to us in Turkish. They said to my father: 'Get into the car with us, you will show us a field.' They made my father get into the car by force. They told me: 'We will bring your father back in half an hour.' They left and did not come back. I ran home to warn my mother and I told her what had happened. My mother left in order to tell the muhtar about what had happened. ... I had never seen those men before. I have never seen them in the area. They do not resemble any person living in my village. Moreover, they never got out of the taxi. It was my father and İlhan who approached the car in order to talk to them. They were not military or gendarmes. They both had moustaches. They had weapons under the seats of the car. Afterwards, we went to the Bismil tribunal and made statements. A search for my father was begun, but, to date, it has not led to any news from him.”", "151. İlhan Ezer declared:\n“I live in the village of Üçtepe. I do not share any property with Mehmet Salim Acar, but we have a cotton field in the village of Ambar. We planted cotton in the same place as him. I do not know his brother Tahsin Acar. I only heard his name in connection with the letter in question. This is what I can tell you about the events. In August last year I was irrigating the cotton we had planted. I went in the shade of a tree to have lunch. I noticed a dark grey-coloured taxi coming from the direction of Ambar. The vehicle had no licence plates. It stopped near to us. I was with Mehmet Salim Acar and his son. We were asked to show our identity cards. We refused, as we did not know these two men. A discussion took place between us and the two men, but we still did not show our identity cards. They said they were policemen. So we asked them to show us their police identity papers. They did not do so. They took our identity cards and told us that they would give them back. They looked at them and asked us to get into the car. We did not get into the car. They forced us, but I continued to refuse to get in. I noticed that at that moment Mehmet Salim Acar kept silent, he did not speak. They returned my identity card to me and the card of Mehmet Salim Acar. Subsequently, Mehmet got into the car. They told me: 'Your friend will accompany us to a field and then he will come back.' He left and did not return. I had never seen those two men before. They were dressed in civilian clothes. I did not know them. They were both wearing hats[5]. I had never seen them before in the area. ... The two men were not officers of the Bismil gendarmerie district command. As I have already pointed out, I had never seen them before. Nor had Mehmet Salim Acar; he did not behave as if he knew them.”", "152. Halise Acar stated that on the day in question her husband Mehmet Salim Acar and their son İhsan had left in the morning to work in a field close to the neighbouring village of Sarıtoprak. Around noon, her son had come running home, telling her that his father had been taken away in a car without licence plates. He also told her that there had been two men in the car. Halise Acar further stated that this Renault taxi had already been seen several times in the village. Her daughter had told her that she had seen her father in that car on the Dicle river bank and that she had thought that he was going somewhere. Halise Acar lastly stated that her family had alerted all the administrative authorities and the Bismil gendarmerie that her husband had disappeared, that they had made statements about the matter to the Bismil public prosecutor and that her husband had been searched for but without any results to date.", "153. Hüsna Acar declared that she was the mother of Mehmet Salim Acar, that she was living with his family and that, in August 1994, her son had left in the morning to irrigate the cotton field. Her grandson, who had accompanied Mehmet Salim, had come running home around noon, saying that a car had stopped close to his father, that he had been told that they were going to look at a field and that they would return, that he had waited for an hour and that nobody had come back. Hüsna Acar further stated that nothing had been heard from her son since, that the Bismil gendarmerie had been informed and that the Bismil public prosecutor had summoned and questioned her and her relatives.", "154. On 3 October 1995 the Ministry of Foreign Affairs, acting on the Commission's decision of 4 September 1995 (see paragraph 4 above), requested the Ministry of Justice and the Ministry of the Interior to gather and transmit information about the case of Mehmet Acar who, according to his brother Tahsin Acar, had been forcibly taken away by plain-clothes police officers and placed in detention. The respective ministries were requested to inform the Ministry of Foreign Affairs whether Mehmet Acar had been taken into detention, whether any proceedings had been taken against him and, if not, whether there were indications that he had been abducted by or joined the PKK.", "155. By a letter of 22 November 1995, the Diyarbakır Provincial Governor, Mehmet Doğan Hatıpoğlu, informed the Ministry of the Interior that an investigation into the facts alleged by the applicant had been carried out. The conclusions of this investigation were that Mehmet Selim Acar had not been apprehended by Captain İzzet Cural and NCO Ahmet Korkmaz (deceased in the meantime) or by Hasan Acar. No mention of a taking into custody of Mehmet Selim Acar had been found in the custody records of the Bismil gendarmerie district command. The victim had been abducted by two unknown persons claiming to be policemen in a dark grey-coloured taxi without licence plates. The subsequent investigation of these leads had not led to any results. The matter had been raised before the judicial authorities and the Bismil public prosecutor had conducted the necessary investigations. The two eyewitnesses to the incident, İhsan Acar (Mehmet Selim Acar's son) and İlhan Ezer had made statements in which they had declared that they did not know the identities of the persons who had abducted Mehmet Selim Acar, that they knew gendarmerie captain İzzet Cural as well as the other officers of the gendarmerie, and that the two men who had abducted Mehmet Selim Acar were certainly not gendarmes. The Governor finally stated that Tahsin Acar's other allegations concerning the detention of his brother at the Bismil gendarmerie command thus remained wholly unfounded.", "156. In a letter dated “November 1995”, the Diyarbakır gendarmerie regional commander, referring to a letter of the General Gendarmerie Command of 7 November 1995 and a letter of the provincial gendarmerie command of 24 November 1995, informed the applicant – in reply to a complaint filed by Hüsna Acar and/or the applicant to the General Gendarmerie Command (see paragraph 92 above) – that, according to the results of an investigation that had been carried out, Mehmet Selim Acar had not been apprehended by gendarmes but had been abducted in a car without licence plates by two unknown persons claiming to be plain-clothes policemen.", "157. Appended to this letter were statements taken from İhsan Acar and İlhan Ezer, who had seen the incident, including a certified statement made by İlhan Ezer on 25 October 1995 to the Bismil notary public. This statement reads:\n“While we were working in the cotton field situated within the boundaries of the village of Ambar in the district of Bismil, province of Diyarbakır, we took shelter in the shade of a tree in order to take a rest. A taxi arrived from the direction of Ambar. It was a Renault TX-model car without licence plates. Mehmet Salim Acar, his son İhsan Acar and I were sitting in the shade. We were asked to show our identity cards. We refused. The men then announced that they were policemen and took our identity cards. After looking at them, they gave them back. They asked us to get into the car. İhsan Acar and I were not willing to get into the car. Mehmet Salih Acar got into the car without objecting. They told us: 'Your friend is going to accompany us to a field and he will return later.' We have not had any news from our friend since then. I had never seen the men who arrived in the car before, I do not know them. It is being said that they were gendarmerie captain İzzet Cural and NCO Ahmet, of the central gendarmerie. I know these two men personally; they are not the ones who abducted my friend.”", "158. On 18 December 1995, in reply to the petition filed by Hüsna Acar and/or the applicant (see paragraph 92 above), the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition registered under no. 4467/2872 had been examined. The Governor of Diyarbakır had conducted an investigation into the matter, in the course of which statements had been taken from İlhan Ezer and İhsan Acar, who had both stated that gendarmerie captain İzzet Gürlo and NCO Ahmet Korkmaz had not taken Mehmet Salim Acar away but that he had been abducted by two unknown men claiming to be police officers, who had made him get into a car without licence plates. The applicant was further informed that an investigation had been opened by the Bismil public prosecutor and was still ongoing.", "159. In a letter of 14 May 1996 sent by fax, apparently on the basis of the applicant's reply of 20 March 1996 to the observations submitted by the Government to the Commission (see paragraph 4 above), the Ministry of Justice requested the Bismil public prosecutor to examine the various allegations set out in this reply of 20 March 1996.", "160. On the same day the Bismil public prosecutor informed the Ministry of Justice that the investigation into the incident referred to by the applicant had been registered under no. 1994/445 in the preliminary investigation register at the Bismil public prosecutor's office. He further informed the Ministry that, in the course of this investigation, statements had been taken from the complainants Halise and Hüsna Acar, from the witnesses İhsan Acar and İlhan Ezer, and from the accused, Sergeant Ahmet Uyar, former Bismil gendarmerie commander İzzet Cural and Harun Aça, and that a request for judicial assistance had been sent to the Ankara Chief Public Prosecutor for the purposes of obtaining a statement from Ahmet Babayiğit. The Bismil public prosecutor lastly stated that, upon receipt of Ahmet Babayiğit's statement, he would issue a decision.", "161. On 21 August 1996 the Ministry of the Interior transmitted Hüsna Acar's petition of 5 August 1996 (see paragraph 95 above) to the Diyarbakır police headquarters, requesting the latter to investigate the allegations set out in the petition, to institute the required proceedings and to communicate the results of the investigation to the Ministry of the Interior and to Hüsna Acar.", "162. On 29 August 1996, referring to an order of 21 August 1996, the Diyarbakır police headquarters informed the Bismil District Governor that Hüsna Acar's daughter Meliha Dal was living in Diyarbakır and transmitted a statement that had been taken from her on 29 August 1996 in connection with the petition filed with the Ministry of the Interior on 5 August 1996 by Hüsna Acar.", "163. In her statement Meliha Dal declared that she had lived in Diyarbakır for seven years. She stated that Mehmet Açan, who – like her older brother Mehmet Salim Acar – was living in Ambar, had had a quarrel with her brother in the café about a water pump in the course of which Mehmet Açan had threatened her brother with “disappearance” within three days. Three days later the Bismil gendarmerie station commander, Captain İzzettin, and another person had come to the village in a car without licence plates and asked for Mehmet Salim Acar. He was told that Mehmet Salim was in the cotton field. Captain İzzettin had then gone to the cotton field, where her brother was with his son İhsan Acar and a man called İlhan. Captain İzzettin asked Mehmet Salim Acar to show him the way to a place, made Mehmet Salim get into the car and left. Nothing had been heard from Mehmet Salim since. According to Meliha Dal, Captain İzzettin had handed Mehmet Salim Acar over to the brothers Mehmet and Harun Açan in return for money. Her mother Hüsna and her sister-in-law Halise knew this but, as Captain İzzettin was involved and as he was a State official, they could not tell the truth as they were frightened of being killed as well. Meliha Dal had heard from them what she was now stating.", "164. By a letter of 25 December 1996, sent in reply to Hüsna Acar's petition of 11 December 1996 (see paragraph 99 above), the Office of the President of Turkey informed Hüsna Acar that an instruction had been issued to the Batman Provincial Governor to investigate her claim and to inform the Office of the President of the result of the investigation. Her petition was transmitted to the Batman Provincial Governor on 27 December 1996.\nOn 2 January 1997 the Office of the Prime Minister wrote a letter with a similar content to Hüsna Acar in respect of another petition she had sent on 11 December 1996.", "165. On 17 January 1997 the office of the Governor of Diyarbakır informed Meliha Dal, in reply to her petition of 25 November 1996 (see paragraph 97 above), that an investigation had been conducted. According to the findings of this investigation, Mehmet Selim Acar had been abducted from his field in July 1994 by two unknown armed persons. The gendarmerie district command had been informed about the matter and had carried out an investigation. According to statements obtained from witnesses, the two perpetrators were unknown in the region. The witnesses further specified that they personally knew Captain İzzet Cural, NCO Ahmet Korkmaz and Harun Aca and that these three men were definitely not among the perpetrators. When the Bismil gendarmerie command had been informed of the abduction, it was Captain İzzet Cural himself who had given the necessary instructions, and the investigation conducted by the Bismil public prosecutor was currently ongoing.", "166. On 16 February 2000 Meliha Dal informed the Diyarbakır public prosecutor that she had seen her brother Mehmet Salih Acar on an NTV news broadcast on 3 February 2000. Her brother's name and surname had been mentioned in this broadcast. It was reported that her brother and two others had been apprehended in Diyarbakır and taken into detention in Muş. She requested the Diyarbakır public prosecutor to investigate the matter and to inform her whether her brother was alive or dead. She sent an identical petition to the Governor of Diyarbakır on 18 February 2000.", "167. On 24 March 2000 the applicant submitted a petition to the President of Turkey in relation to the disappearance of his brother Mehmet Salim Acar. In this petition, the applicant stated that, in the NTV news broadcast on 3 February 2000 around 11 p.m., it had been reported that three persons had been apprehended and taken into detention in Muş and that one of them was called Mehmet Salih Acar. His family had then applied to the Bismil police, the Bismil public prosecutor, the Governor of Diyarbakır, the public prosecutor at the Diyarbakır National Security Court, the Diyarbakır anti-terrorism police authorities and the Diyarbakır provincial gendarmerie authorities. They were told by the anti-terrorism branch that Mehmet Salim Acar did not wish to see them and they were not given any information about his whereabouts or his condition. The applicant requested the President to intervene in order to find out what had happened to his brother.", "168. In a written statement dated 27 March 2000, Meliha Dal declared that she had gone to the Bismil public prosecutor to enquire about her brother Mehmet Salim Acar. She was told that three men by the name of Mehmet Salim Acar had been apprehended but that their particulars (parents' names, date and place of birth) did not match those of her brother. When she left the public prosecutor's office, the latter's clerk, Mehdi, told her that her brother was alive, that he was in the hands of the State and that he had been sent into exile. He further told her that they had scared her brother by threatening to destroy his family and that this was why he was concealing himself from them.", "169. By a letter of 18 April 2000, Meliha Dal informed the Diyarbakır public prosecutor that two men had been sent to her house and that she had made statements about having seen her brother on television and having heard his name on television during a news broadcast in which it was reported that three men had been apprehended in Muş. The public prosecutor had, on her behalf, written and sent a petition to Muş. The public prosecutor had said at the end of their meeting that, as far as he understood, her brother was in the hands of the authorities in Muş.", "170. By a letter of 19 April 2000, the applicant's representative informed the European Court of Human Rights that Meliha Dal, Hüsna Acar and Halise Acar had been watching the news on NTV on 3 February 2000 around 11 p.m. when the newsreader announced that four men had been apprehended in Diyarbakır, one of whom was named as Mehmet Selim Acar. Pictures of the apprehended men had been shown and they had recognised Mehmet Selim Acar as one of them. The women had continued to watch television all night and they had seen him again the following day at 8 a.m. The applicant's representative further informed the Court that, on 4 February 2000, the three women had gone to the Bismil public prosecutor to report their sighting on television of Mehmet Selim Acar and that, on 16 February 2000, Meliha Dal had filed a petition about the matter with the Diyarbakır public prosecutor and, on 18 February 2000, with the Governor of Diyabakir. The family had further attempted to obtain a video recording of the NTV news broadcast of 3 February 2000, but without success. Referring to the applicant's petition of 24 March 2000 to the President of Turkey, the applicant's representative finally informed the Court that, so far, no information had been obtained from the authorities contacted by the applicant about the whereabouts of Mehmet Selim Acar.", "171. Appended to this letter were, inter alia, Meliha Dal's petitions of 16 and 18 February 2000 (see paragraph 166 above), a statement dated 23 March 2000 in which Meliha Dal had declared that she had seen her missing brother on television on 3 February 2000, the applicant's petition of 24 March 2000 (see paragraph 167 above), Meliha Dal's statement of 27 March 2000 (see paragraph 168 above), an undated statement by Meliha Dal in which she declared that she had seen her brother Mehmet Salim Acar on a television news broadcast on 1 February 2000 around 11 p.m. and 2 February 2000 around 8 a.m., an undated statement by Halise Acar stating that she had seen her husband Mehmet Salih Acar on television one day, and an undated statement by Hüsna Acar stating that, quite a long while after his disappearance, she had seen her son Mehmet Salih Acar on television.", "172. On 28 April 2000, having taken note of the letter of 19 April 2000 and the appended documents, the Court requested the Government to submit a copy of the NTV news broadcasts referred to by the applicant's representative, to confirm that Mehmet Salim Acar had in fact been shown and named during these broadcasts, to inform the Court of the circumstances of Mehmet Salim Acar's arrest, and to confirm whether he was currently being detained and, if so, to indicate in which detention facility.", "173. By a letter of 22 May 2000, in response to the Court's request of 28 April 2000, the Diyarbakır Chief Public Prosecutor informed the Ministry of Justice that a person named Mehmet Selim Acar (son of Süleyman and Pevruze, born in 1965 in Sivrice) had been detained on 9 December 1996 and was currently serving a prison sentence in Gaziantep, and that a person named Salih Acar (son of Musa and Besnadan, born in 1979 in Batman) had been detained on 19 April 2000 and was currently being held in pre-trial detention in Batman.", "174. On 30 May 2000, in response to the complaint filed by Meliha Dal, the Diyarbakır public prosecutor decided not to open an investigation. This decision reads:\n“The complainant stated in her petition that her brother had disappeared six years ago and that nothing had been heard from him since, that she recognised one of the men shown on a news programme in February about persons apprehended during operations conducted against the terrorist organisation Hizbullah, that this man's name was the same as her brother's, and that she wished to be given the opportunity to watch a video recording [of the news broadcast] so that she could identify her brother.\nIt has been stated in the Muş Chief Public Prosecutor's decision of non-jurisdiction dated 2 May 2000 that the person detained in the province of Muş – a man called Mehmet Salih Acar, born in 1964 and the son of Yahya and Ayşe – is not the complainant's brother, and it appears from the above decision of non-jurisdiction and from the register of births that the person detained in Muş, who was put on trial by the Chief Public Prosecutor of the Van National Security Court, is not the complainant's brother.\nIt is therefore concluded, in accordance with Article 164 of the Code of Criminal Procedure and subject to the right of appeal, that there is no basis for pursuing the matter ...”", "175. On 6 July 2000 the Government informed the Court that the person apprehended and named in the NTV news broadcast was not the applicant's brother and that there were several persons in detention with similar names to the applicant's brother. According to the Government, it was in all probability a case of a confusion of names.", "176. On 13 July 2000 the Court reminded the Government of its still outstanding request of 28 April 2000 to be given the video recording of the NTV news broadcast referred to by the applicant's representative.", "177. In a statement dated 28 September 2000, submitted to the Court on 4 October 2000, Meliha Dal declared that she had seen her brother Mehmet Salim Acar in an NTV news broadcast on 2 February 2000 at 8 p.m. and 3 February 2000 at 8 a.m.", "178. On 18 October 2000 the Court requested the applicant's representative also to submit a video recording of the news broadcast referred to by the applicant's relatives.", "179. By a letter of 24 January 2001, the NTV administration informed the applicant's representative that it could not grant his request. The required footage could only be made available upon a request made by the applicant himself. On the same day the applicant sent by fax a request to the NTV administration to be provided with a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m.", "180. In the meantime, on 17 January 2001, the Government had submitted to the Court a video recording containing the NTV news broadcasts of 3 February 2000 at 11 a.m. and 11 p.m.", "181. On 16 February 2001 the applicant sent a reminder of his request of 24 January 2001 to the NTV administration, explaining that the video recording submitted by the Government to the Court did not contain the relevant news broadcasts.", "182. On 20 February 2001 the applicant informed the Court that the video recording submitted by the Government did not contain the relevant news broadcasts, namely, those of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m.", "183. On 26 February 2001 the Court requested both parties to submit a video recording containing the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m.", "184. On 30 March 2001 the applicant informed the NTV administration that he had received the video recordings of the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m., but that these did not contain the relevant news item. He requested the NTV administration to search for the news item reporting the arrest of four men in Diyarbakır and their subsequent taking into detention in Muş or Van in the television news programmes broadcast between 31 January 2000 and 6 February 2000.", "185. By a letter of 2 May 2001, in reply to a request made by the Government in April 2001, a lawyer employed by NTV informed the Government that their request to be provided with a copy of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. could not be met as it concerned broadcasts of more than one year ago. It was pointed out that, under section 28 of Law no. 3984 and Article 23 of the Regulation on Procedures concerning Radio and Television Programmes, broadcasting organisations were obliged to keep copies of each broadcast programme for one year. The Government informed the Court of this outcome on 13 June 2001." ]

[ 0, 1, 2, 3, 4 ]

[ "10. The applicant, Mr W. Weh, was born in 1952 and lives in Bregenz.", "11. On 21 March 1995 the Bregenz District Authority (Bezirkshaupt-mannschaft) served an anonymous order (Anonymverfügung) upon the applicant in the sum of 800 Austrian schillings (ATS). It stated that on 5 March 1995 the driver of the car, registered in the applicant's name, had exceeded the city area speed limit of 50 km/h by 21 km/h.", "12. The applicant did not comply with the anonymous order. Consequently, the order became invalid (see paragraph 31, below).", "13. Subsequently, the Bregenz District Authority opened criminal proceedings for exceeding the speed limit against unknown offenders and, on 27 April 1995, it ordered the applicant as the registered car owner, under section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), to disclose who had been driving his car. The applicant answered that “C.K.[first and family name in full]”, living in “USA/University of Texas” was the person who had used the car.", "14. On 25 July 1995 the Bregenz District Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 900 (with 54 hours' imprisonment in default). It noted that he had submitted inaccurate information.", "15. The applicant filed an objection (Einspruch) against this decision. On 22 August 1995 the Bregenz District Authority requested the applicant to submit his defence either in writing or to appear at an oral hearing. The applicant did not react to this request.", "16. On 18 September 1995 the Bregenz District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 900 (with 24 hours' imprisonment in default). In addition it ordered him to pay ATS 90 by way of contribution to the costs of the proceedings. The District Authority found that the information supplied by the applicant had been inaccurate.", "17. The applicant appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat).", "18. On 15 April 1996 the Vorarlberg Independent Administrative Panel dismissed the applicant's appeal and ordered him to pay ATS 180 by way of contribution to the costs of the appeal proceedings. Prior to giving its decision, the Panel held a hearing in the presence of the applicant who stated that he considered the information submitted by him to be sufficiently accurate.", "19. The Panel dismissed the applicant's defence, noting that section 103 § 2 of the Motor Vehicles Act required the registered car owner to disclose the name and address of the driver. Further, it referred to the Administrative Court's case-law according to which not only the failure to give any information at all but also the disclosure of inaccurate information amounted to a failure to comply with section 103 § 2. Finally, the Panel observed that the University of Texas had 14 different locations in Texas. Therefore the information provided by the first applicant had indeed been inaccurate.", "20. On 3 June 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He raised various issues regarding the tribunal quality of the Independent Administrative Panel and the fairness of the proceedings. However, given that the relevant sentence of section 103 § 2 of the Motor Vehicles Act has the rank of constitutional law (see paragraph 25, below), he did not raise the issue of his right to remain silent and not to incriminate himself.", "21. On 26 November 1996 the Constitutional Court refused to deal with the applicant's complaint for lack of prospects of success.", "22. On 27 June 1997 the Administrative Court (Verwaltungsgerichtshof) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake.", "23. The applicant was not prosecuted for exceeding the speed limit." ]

[]

[ "9. On 3 June 1994 at about 4.30 a.m. while the applicant's brother, Savaş Buldan, was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul, together with his two friends Adnan Yıldırım and Hacı Karay, they were approached by seven or eight people with walkie-talkies, firearms and bullet-proof vests who introduced themselves as police officers. The three men were then forced into three cars.", "10. The applicant, who at this time was living in Turkey, was informed of what had happened to his brother at 5 a.m. that same day. With friends and family he began a search, especially along the Istanbul-Ankara motorway. Part of the search party came to an area called the Yedigöller (Seven Lakes). This was a national park. According to the applicant, there was a shooting polygon situated therein, open only to members of the security forces and high-level State officials. The Government on the other hand deny the existence of such a shooting polygon. The search party met a watchman at the national park, who told them that 10 or 11 people in three cars had entered the area on the same day at about 7.30 a.m. The watchman then gave a description of the three vehicles that matched the description given by those who had witnessed the abduction at the Çınar Hotel.", "11. When the applicant learnt about the kidnapping of his brother, he immediately contacted members of Parliament, the Governor of Istanbul and the media. The Office of the Prime Minister was also informed about the kidnapping. The applicant and his legal representative made a further written application to the Bakırköy public prosecutor's office. The initial enquiries made by the authorities showed that the three persons had not been taken into custody.", "12. The same day, Mr Nihat Buldan, one of Savaş Buldan's brothers, submitted another petition to the Bakırköy public prosecutor's office in which he claimed that his brother and two of his brother's friends had been abducted by people who had identified themselves as plainclothes police officers. Mr Nihat Buldan requested the prosecutor to investigate the matter. The prosecutor asked the family members to go to the Yeşilköy police headquarters, which was responsible for the area where the incident had taken place. The family members complied with this request but no written statements were taken from them at the police headquarters. The Yeşilköy police headquarters informed the Bakırköy police headquarters and also the anti-terrorist branch of the police about the events on the same day.", "13. On 3 June 1994 at about 9 p.m., Mr İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu, some 270 kilometres from where the three men had been abducted. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. The same day at about 9.15 p.m. the gendarmerie arrived at the scene. During the preliminary search, no empty cartridges or other evidence could be found as it was very dark.", "14. The public prosecutor and two doctors arrived at the scene of the crime at about 11 p.m. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities. It was further noted that valuable items such as gold rings and wrist watches were intact. The preliminary investigation of the bodies revealed that rigor mortis had set in and that the three men had been shot at point-blank range. Subsequently, at about 2.45 a.m. on 4 June 1994 the corpses were taken to the Health Centre in Yığılca for further examination.", "15. On the night of 3 June 1994, the gendarmerie in Bolu contacted the applicant and informed him that three corpses had been found in Yığılca.", "16. On 4 June 1994 the applicant identified the bodies of his brother and his two friends at the Düzce State Hospital.", "17. On 4 June 1994 a statement was taken from Mr Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, Mr Uz explained that when the three persons who had disappeared, all of whom he knew as they were regular customers at the hotel casino, emerged from the hotel door sometime between 4.30 and 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, had approached them and held them against the wall and conducted body searches. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as statements had been taken from them. The Mercedes then left followed by the second car which, according to the doorman, was a sports car. The doorman was unable to describe any of the men as it was dark and they had been standing some distance from him.", "18. Also on 4 June 1994 a statement was taken from Mr Hüseyin Kılıç, a security guard at the Çınar Hotel. Mr Kılıç stated that seven or eight men had approached the three disappeared persons as they walked out the door. The men all wore waistcoats and were carrying weapons. They forced the three disappeared persons into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car.", "19. On 5 June 1994 a statement was taken from Mr Serdar Özdemir, who was a taxi driver waiting at the taxi rank outside the Çınar Hotel. He stated that while waiting for customers, he had noticed three persons coming out of the casino. At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which had been driven away by one of the men wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of the seven or eight men.", "20. Again on 5 June 1994 another statement was taken from another taxi driver, Mr Hüseyin Durmazer. Mr Durmazer stated that as he approached the taxi rank outside the hotel, he was able to see some people putting three other persons into a black car.", "21. The preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years in accordance with the statutory limit stipulated for kidnapping.", "22. On 17 March 1995 the Bakırköy public prosecutor's investigation file, together with a report summarising the investigation, was forwarded to the Yığılca public prosecutor in order to authorise him to investigate the killings since the bodies were found within his area of jurisdiction.", "23. When the bodies were brought to the Yığılca Health Centre in the early hours of 4 June 1994, post mortem examinations of the bodies were carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, it was noted that there was an ecchymosis measuring 1x1 cm and an abrasion on the surface of the knee cap of the second body that was later identified as that of Savaş Buldan. It was further recorded that cyanosis was noted on the front part of the body, left leg upper part, left knee, genitals and the head. It was also perceived that rigor mortis was fading. It was observed that when the body was touched, the skin peeled - which was most probably due to its damp condition. One bullet entrance hall on right occipital area and burnt hair caused by a close-range shot and a bullet exit hole behind the right ear (which damaged the tissue, internal tissue and bones) were noted. A wide haematoma on the left eye due to trauma caused by a blunt object, fracture of the nose, and blood from the nostrils to the moustache area were also noticed. No other signs or abnormalities were observed either on the back of the body or the genital area. There were no documents to prove identification, nor were there any valuables or money. On the surface of the right hand and wrist a further ecchymosis measuring 1 cm. in width was noted, which was probably caused when the hands were tied with a rope. The doctors further concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as 10 hours before the autopsy was carried out.", "24. The bullets recovered from the bodies were sent for a ballistics examination to the Central Police Forensic Laboratory. The Central Police Laboratory prepared two forensic reports dated 6 and 14 June 1994. The ballistics report prepared by the Police Forensic Laboratory on 14 June 1994 showed that five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report also showed that two bullets recovered from the bodies of Savaş Buldan and Hacı Karay had been fired from the same 9 mm. pistol. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities.", "25. The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. This report showed that the two bullets recovered from the bodies of Savaş Buldan and Hacı Karay, both 9 mm and Parabellum type, had been fired from the same pistol. The report further concluded that comparisons of five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities. These ballistics reports, together with the photo fits of suspects, were sent to the Yığılca public prosecutor on 21 June 1994.", "26. On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of Mr İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3 June 1994.", "27. On 4 June 1994 the Yığılca gendarmerie took statements from 13 persons who claimed to have seen three luxury cars travelling in the direction of the spot where the bodies were later found. One of these witnesses, Fevzi Aydın, stated that at around 8 a.m. on 3 June 1994 he had been having his breakfast when he had seen three cars. The first car had stopped and one of the persons inside the car had asked him for directions to Bolu. The witness stated that it was a red car, but he was unable to remember the make of the car. There were two persons in the car, both around 40 years of age with one of them sporting a beard. The witness had also seen three persons in the third car. The witness was able to remember that the car registrations all started with '34', the prefix for cars registered in Istanbul. Most of the other witnesses also gave similar statements.", "28. On 6 June 1994 statements were taken from 11 other witnesses including a number of officials working at the Yedigöller National Park. One of these witnesses, Muzaffer Yıldız, confirmed that the cars' licence plates all had the prefix '34'. The witness also stated that one of the passengers had asked for directions to the Yedigöller National Park. Another witness, Şevket Öztürk, similarly stated that he had seen the three cars and that he had also been asked for directions to the Yedigöller National Park by a passenger in a Mercedes with darkened windows.", "29. On 7 June 1994 five more witnesses were questioned. These witnesses also stated that they had seen the three cars at 9 or 9.30 a.m. One of them stated that he had been asked for directions to Bolu.", "30. On 10 June 1994 all the witness statements and other documents were sent to the Yığılca public prosecutor.", "31. On 21 June 1994 a statement was taken from Nihat Buldan, a brother of Savaş Buldan. He stated that he had been told about the kidnapping which was said to have been carried out by persons claiming to be police officers. This was the reason why he had contacted the police to verify whether his brother had been taken into custody. The witness concluded his statement by stating that his brother had no enemies and that he did not suspect anyone. He requested that the perpetrators responsible for the kidnapping and the subsequent killing be apprehended.", "32. On 31 August 1995 the Yığılca public prosecutor concluded in a continuous search warrant that it had not been possible to establish the identities of the perpetrators. The prosecutor further stated in this report that no evidence had been found during the investigation. It was decided, therefore, to issue a continuous search warrant for the perpetrators of the killings, which remained valid for twenty years, the statutory time limit under Article 102 of the Turkish Criminal Code. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue to carry out meticulous searches for the perpetrators.", "33. On 10 January 1995 the Police Laboratory, which had carried out a forensic examination on a 9-mm Smith and Wesson pistol and 11 bullets found in a car in Istanbul, concluded that this weapon had not been used in any unknown perpetrator murder.", "34. On 4 June 1996 a statement was taken from Mr İrfan Kurşunlu who had first seen the bodies together with his uncle at 8.15 p.m. on 3 June 1994. He stated that he had not heard any gun shots that day.", "35. Also on 4 June 1996 the Yığılca public prosecutor visited the spot where the bodies had been found. He also went to take a statement from one Ayşe Araç who claimed that she had heard gun shots on the day of the killing. The house of Ayşe Araç was just outside Hacılar village and approximately two kilometres from the scene of the incident. In order to test whether this would have been possible, the prosecutor ordered a gendarmerie soldier to the incident scene and to fire a weapon similar to the one used in the killings. The prosecutor was able to hear the gun shot. The prosecutor summoned 12 persons who had seen the three cars on the day of the incident to his office in order to take further statements from them.", "36. On 6 June 1996 a gendarmerie non-commissioned officer visited the spot where the bodies had been found and prepared a report. According to this report, the scene of the incident was exactly 7,000 metres from Yığılca town centre. It was impossible for a person in Hacılar village, which was eight kilometres away, to have heard the gun shots. According to the experiments carried out that day, the maximum distance from which gun shots could have been heard was five kilometres.", "37. On 6 June 1996 a statement was taken by the Yığılca public prosecutor from Ayşe Uzun who had seen the three cars on the day of the incident. She stated that one of the cars had been a red Mazda with four persons in it. She had not seen any of the cars' number plates.", "38. On 6 June 1996 another statement was taken by the prosecutor from one Bengü Çelebi who had also seen the three cars on the day of the incident. She was able to recall that one of the cars had been a red Mazda. She stated that there were three persons in the last car, which had darkened windows.", "39. On 7 June 1996 the Ministry of Justice informed the Düzce public prosecutor about the application made to the former Commission by the applicant. The Ministry's letter stated that there were no documents in the investigation file showing that attempts had been made to trace the cars used in the kidnapping despite the fact that eyewitnesses had given the authorities the full registration number of one of the cars and the prefixes of the other two cars. In addition, some witnesses who lived near the spot where the three persons had been killed had stated that they had heard gun shots and that the timing of the gun shots coincided with the time of the killing. The Ministry's letter finally stated that although it was highly probable that further investigations would not produce any outcome, the investigating authorities should still take further steps in the investigation as this case would be scrutinised by the Commission which, in the past, had put prosecutors in difficulties when questioning them. The Ministry requested that the cars be traced, a check made as to whether witnesses could have heard the gun shots and whether any tyre marks had been subjected to forensic examination. It should also be confirmed with the local gendarmerie whether or not any of the witnesses had informed them on the morning of 3 June 1994 that they had heard gun shots.", "40. In response to the Yeşilköy public prosecutor's office, on 15 November 1996 the Istanbul Security Department stated that the vehicle with registration number 34 CK 420 was a 1984 model, metallic grey Toyota which had belonged to a certain Mr J.H since 16 August 1995.", "41. Between 14 July 1998 and 24 August 1999 the area where the three bodies had been found was visited 20 times by the gendarmerie and the police in an attempt to find the perpetrators there. It had not been possible, however, to find the perpetrators or any other evidence at the place.", "42. After the Susurluk incident of 3 November 1996, the spent cartridges and bullets recovered from the scene were re-examined and compared with the bullets and cartridges of the guns found at the scene of the Susurluk incident by the Gendarmerie Criminal Laboratory. In a report dated 15 January 1997, it was concluded that there was no connection between them.", "43. On 7 February 1997 Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, Mr Avcı referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations. He was, however, of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He was prepared to indicate those issues in respect of which it might be possible to find documents. Among his submissions, which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following:\n“The Gendarmerie and the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia, the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken. This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends formed part of such activities. It was established that these persons were helping the PKK financially. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation known to us. Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”.", "44. On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, Mr Avcı stated that he did not know how and by whom the killings were carried out.", "45. On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention as a result of the investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before.", "46. The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory. In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison.", "47. On 23 February 1998 the lawyer representing the families of the other two deceased persons lodged a petition with the Yığılca public prosecutor's office. He requested that the photograph of the red car, belonging to Tarık Umit, which was found abandoned after his abduction, be shown to the witnesses heard in Yığılca. When the photograph of the red sports car with registration number 34 ZU 478 was shown to Ali Osman Sivri, Halit Sivri and Fevzi Aydın, who had given statements about the incident in 1994, they all stated that it was not like the car they had seen that day, and that a long time had elapsed since the incident.", "48. The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates' Court issued an arrest warrant for Yaşar Öz. At that time, Mr Öz was detained in the Metris prision in Istanbul in connection with another crime. On 5 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he had not been in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. Mr Öz explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping. On 7 May 1998 Yaşar Öz was formally arrested by the Bakırköy Magistrates' Court.", "49. On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicant's brother and the other two persons. On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Mr Sebahattin Uz, the doorman at the Çınar Hotel, and Mr Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14 July 1998 Ali Osman Sivri was questioned by the public prosecutor. Mr Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person got out of the car and filled a container with water from a fountain and left. This witness was unable to recognise the red sports car with registration number 34 ZU 478. He was also shown pictures of Yaşar Öz. The witness stated that the person he had seen did not look like Yaşar Öz.", "50. On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor's opinion, was the competent court to prosecute Mr Öz.", "51. On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor.", "52. On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings.", "53. On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant's brother and his two friends.", "54. During the proceedings before the Düzca Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz's role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Yaşar Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar.", "55. The Düzce Assize Court finally noted that Yaşar Öz's name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara. According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities.", "56. Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24 November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction.", "57. The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16 December 1998 the Ankara State Security Court concluded that it too did not have jurisdiction to deal with the case. The court held that according to the Düzce public prosecutor's indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction.", "58. On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case.", "59. Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz. Nihat Buldan, one of Savaş Buldan's brothers, joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. 19 eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before.", "60. On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence. The case file was sent back to the Yığılca public prosecutor's office to continue the search for the perpetrators.", "61. The parties submitted various documents concerning the investigation into the alleged abduction and killing of Savaş Buldan. 1. Official documents\nThe documents listed below concern the statements taken from various witnesses and the investigation in relation to the kidnapping and subsequent killing of the applicant's brother.\n(a) Witness testimonies\n(i)Statement of Sabahattin Uz, doorman of the Çınar Hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office.\n(ii)Statement of Hüseyin Kılıç, security guard of the Çınar hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office.\n(iii)Statement of Serdar Özdemir, dated 5 June 1994, taken by the Bakırköy public prosecutor's office.\n(iv)Statement of Hüseyin Durmazer, dated 5 June 1994, taken by the Bakırköy public prosecutor's office.\n(v)Statement of İsmail Taşcan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(vi)Statement of Ayşe Araç, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(vii)Statement of Bengül Ünsal, a student, dated 4 June 1994, taken by Yığılca District Gendarmerie.\n(viii)Statement of Nuriye Cesur, a student, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(ix)Statement of Ayşe Uzun, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(x)Statement of Hazım Yıldız, driver of the school bus, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(xi)Statement of Mehmet Baş, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(xii)Statement of Seyfettin Akmak, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(xiii)Statement of Fevzi Aydın Aslan, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xiv)Statement of Bayram Yılmaz, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(xv)Statement of İrfan Kurşunlu, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.\n(xvi)Statements of Hasan Baş; a villager, dated 4 June 1994 and 6 June 1994 taken by theYığılca District Gendarmerie.\n(xvii)Statement of Mehmet Beşir Erdoğan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. \n(xvii)Statement of Mehmet Yıldız, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xviii)Statement of Şevket Öztürk, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xix)Statement of Yunus Öztürk, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xx)Statement of Ruhi Aldal, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xxi)Statement of Fikret Gürez, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xxii)Statement of Hasan Salcı, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xxiii)Statement of Kamil Çolak, dated 6 June 1994, taken by the Yığılca Ditrict Gendarmerie.\n(xxiv)Statement of Muzaffer Yıldız, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xxv)Statement of İsmail Topcan, dated 6 June 1994, taken by the Yığılca District Gendarmerie.\n(xxvi)Statement of İlyas Topuz, dated 7 June 1994, taken by the Yığılca District Gendarmerie.\n(xxvii)Statement of Şükrü Bayram Yılmaz, dated 7 June 1994, taken by the Yığılca District Gendarmerie.\n(xxviii)Statement of Fevzi Aydın, dated 7 June 1994, taken by the Yığılca District Gendarmerie.\n(xxix)Statement of Ali Osman Sivri, dated 7 June 1994, taken by the Yığılca District Gendarmerie.\n(xxx)Statement of Bahar Yıldırım, dated 7 June 1994, taken by the Yığılca District Gendarmerie.\n(xxxi)Statement of Güngör Aydoğan, dated 8 June 1994, taken by the Yığılca District Gendarmerie.\n(xxxii)Statement of Şemsettin Okyay, dated 8 June 1994, taken by the Yığılca District Gendarmerie.\n(xxxiii)Statement of Nihat Buldan, dated 21 June 1994, taken by the Yığılca District Gendarmerie.\n(b) Forensic documents\n(i)Body examination report, dated 4 June 1994.\n(ii)Ballistics examination reports, dated 6 and 14 June 1994, prepared by Central Police Forensic Laboratory.\n(iii)Ballistics report dated 17 June 1994, prepared by Gendarmerie Forensic Laboratory.\n(iv)Photo-fits of three of the perpetrators.\n(v)Ballistics examination report dated 10 January 1995, prepared by the Central Police Forensic Laboratory.\n(vi)Report of the Gendarmerie Forensic Laboratory, dated 15 January 1997.\n(vii)Report of Central Police Laboratory dated 19 March 1997, comparing the photo-fits of the perpetrators to Ercan Ersoy, Oguz Yorulmaz and Ayhan Çarkın.\n(c) Further documents in respect of the investigation\n(i)Scene of incident report, dated 3 June 1994, prepared by the District Gendarme Commander.\n(ii)Second scene of incident report, dated 4 June 1994, prepared by the District Gendarme Commander.\n(iii)Sketch of the scene of incident drawn by District Gendarme Commander, dated 4 June 1994.\n(iv)Decision of the Yığılca public prosecutor for a continuous search warrant, dated 31 August 1995.\n(v)A further scene of incident report, dated 4 June 1996, prepared by the Yığılca public prosecutor.\n(vi)Further statement of Ayşe Araç, dated 4 June 1996, who allegedly heard gun shots on the day of the incident.\n(vii)A further sketch of incident, dated 4 June 1996, prepared by the Yığılca public prosecutor's office.\n(viii)An expert report, dated 6 June 1996, stating that from the point where the witness, Ayşe Araç, had been standing on the day of the incident it was probable that she might have heard gun shots.\n(ix)The letter of the Ministry of Justice International Law and Foreign Affairs Directorate, dated 3 June 1996, to the Düzce public prosecutor's office.\n(x)Periodic follow-up reports (twenty in all) of gendarmes between 1998 and 1999.\n(xi)Bakırköy public prosecutor's decision to transfer the case file to Yığılca public prosecutor's office, dated 17 March 1995.\n(xii)Report of the Istanbul Security Department to the Yeşilköy police, dated 15 November 1996.\n(xiii)Report of identity parade, in which it is indicated that Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın were shown to two eyewitnesses to the kidnapping, Mr Sebahattin Uz and Hüsnü Durmazel, and that no similarities with the perpetrators had been noted.\n(d) Documents concerning the investigation following the Susurluk incident\n(i)Letter of Pervin Buldan, the wife of Savaş Buldan, to the Yığılca public prosecutor, requesting the extension of the investigation so as to cover the new evidence produced after the Susurluk incident.\n(ii)Statements of Hanefi Avcı, dated 7 February 1997 and 24 March 1997, concerning the Susurluk incident.\n(iii)Report of the Central Police Laboratory indicating that the photo- fits of the perpetrators had similarities with the photo of Yaşar Öz.\n(iv)Statement of Yaşar Öz, dated 7 May 1998.\n(v)Report of identity parade, dated 29 May 1995, which indicates that although Yaşar Öz had been shown to two eye witnesses to the kidnapping, Mr Sabahattin Uz and Hüsnü Durmazer, the witnesses concluded that they had not seen Yaşar Öz before.\n(vi)Decision of non-jurisdiction, delivered by the Yığılca public prosecutor concerning the prosecution of Yaşar Öz, dated 7 March 1998. The file was transferred to Ankara State Security court.\n(vii)Non-jurisdiction decision of the Ankara State Security Court, dated 7 October 1998.\n(viii)Non-jurisdiction decision of Düzce Assize Court, dated 24 November 1998, and transfer of case file to the Ankara State Security Court.\n(ix)Non-jurisdiction decision of Ankara State Security Court, dated 16 December 1998. The case was sent to the Court of Cassation to settle the dispute on jurisdiction.\n(x)Decision of the Court of Cassation, dated 25 February 1999, settling the dispute over jurisdiction between the Ankara State Security Court and the Düzce Assize Court. The case file was sent to Düzce Assize Court.\n(xi)Minutes of the criminal proceedings against Yaşar Öz before the Düzce Assize Court.\n(xii)Decision of the Düzce Assize Court, dated 18 November 1999, by which Yaşar Öz was acquitted of the charges against him due to lack of evidence.", "62. The applicant produced several press releases concerning the abduction and killing of his brother.", "63. The applicant further submitted to the Court a copy of the so-called “Susurluk Report”, which was produced at the request of the Prime Minister by Mr Kutlu Savas, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld.", "64. The introduction states that the Report was not based on a judicial investigation and did not constitute a formal investigation report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.", "65. The Report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. In the Report, reference is made to the killing of the applicant's brother:\n“All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. (page 74).”", "66. The Report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police force outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken." ]

[ 0 ]

[ "9. The applicant was born in 1963 and lives in Istanbul.", "10. On 30 May 1992 the applicant was taken into police custody on suspicion of aiding and abetting an illegal organisation, the Devrimci-Sol (Revolutionary-Left).", "11. On 3 June 1992 the public prosecutor at the Istanbul State Security Court filed an indictment with the latter charging the applicant, under Article 169 of the Criminal Code and Articles 4 and 5 of the Prevention of Terrorism Act, with aiding and abetting members of an illegal armed organisation.", "12. On 7 September 1993 the Istanbul State Security Court acquitted the applicant of the charges against her for lack of evidence.", "13. On 23 December 1993 the Court of Cassation quashed the judgment of the Istanbul State Security Court. The court noted that the applicant had been in charge of communications among members of the Devrimci-Sol and that she had allowed them to organise meetings in her house. It further held that the first instance court had failed to take into account the applicant's confessions and the statements given by witnesses against her at the police station.", "14. On 12 April 1994 the Istanbul State Security Court delivered a judgment identical to the first one. The court noted that the applicant had refuted the confession statements she made in police custody and that the two witnesses had rejected their statements as they had allegedly been made under duress at the police station. The court reiterated that there was insufficient evidence to convict the applicant. It ruled that the applicant should be acquitted.", "15. On 3 October 1994 the Plenary Chamber of the Court of Cassation (Yargıtay Ceza Genel Kurulu) quashed the Istanbul State Security Court's judgment on the ground that there was sufficient evidence to convict the applicant. The case was referred once again to the Istanbul State Security Court.", "16. On 18 December 1995 the Istanbul State Security Court found the applicant guilty as charged and sentenced her to three years and nine months' imprisonment and debarred her from holding public office for three years. The applicant appealed. Furthermore, she requested a hearing before the Court of Cassation.", "17. On 9 July 1996 the Court of Cassation dismissed the applicant's request for a hearing holding that the request had been introduced out of time. Moreover, it upheld the judgment of the Istanbul State Security Court." ]

[ 3 ]

[ "8. The applicant is a Moldovan national who was born in 1949 and lives in Chişinău (Moldova). He is a lawyer and Chairman of the Moldovan Bar Council.", "9. In 2000 a group composed of members of parliament and the Moldovan Ombudsman sought a ruling from the Constitutional Court that the Lawyers (Organisation of the Profession) Act (Law no. 395-XIV) was unconstitutional. The Act laid down, inter alia, that all lawyers practising in Moldova should be members of the Bar Council, a national association of all lawyers from the local Bars. They argued that compulsory membership of the Bar Council was contrary to the right of freedom of association guaranteed by the Moldovan Constitution.", "10. After consulting, inter alia, the Bar Council, which expressed the view that the Act was consistent with the Constitution, the Constitutional Court held in a decision of 15 February 2000 that the provisions making membership of the Moldovan Bar Council compulsory were unconstitutional.", "11. The applicant criticised the Constitutional Court’s decision in a telephone interview he gave to A.M., a journalist on the Economiceskoe Obozrenie (“Economic Analysis”) newspaper.", "12. In the February 2000 edition of the newspaper, A.M. published an article on the debate which the Constitutional Court’s decision of 15 February 2000 had sparked off among lawyers. He gave the following account of his telephone interview with the applicant:\n“... After the Constitutional Court’s decision was made public, Economiceskoe Obozrenie put a series of questions to the Chairman of the Bar Council, Mr Gheorghe Amihalachioaie. His comments are tinged with emotion, no doubt because they were made in the heat of the moment:\n‘The Constitutional Court’s decision will produce total anarchy in the legal profession’, said Mr Amihalachioaie. ‘You will see what will happen over the course of the next year. From now on, we no longer have a single system for organising the profession or a unitarian State. We have become accustomed to this – it is easier to live and work in chaos. Taxes are not paid, there is no supervision and, consequently, no ethics, no discipline and no responsibility.\nIn view of this, the question is whether the Constitutional Court is constitutional. In 1990 the United Nations adopted its Basic Principles on the Role of the Bar, which are fully guaranteed by our law. The legal profession is independent the world over. In Moldova it is subordinate to the executive, that is to say the Ministry of Justice. This is a serious breach of fundamental democratic principles.\nThe Constitutional Court did not take into account the judgments of the Strasbourg Court referred to by the Bar Council in its observations. The judges of the Constitutional Court probably do not regard the European Court of Human Rights as an authority. Am I to assume that they have acquired more experience in five years than the Strasbourg judges in fifty? We shall certainly be informing the Council of Europe that Moldova does not comply with the case-law or requirements of the European Court of Human Rights.’\nAccording to Mr Amihalachioaie, lawyers have always been regarded as being at the forefront of the legal profession: ‘Despite everything, even after the Constitutional Court’s decision, the body of lawyers remains a force.’ ...”", "13. In a letter of 18 February 2000, the President of the Constitutional Court informed the applicant that his remarks as reported in the Economiceskoe Obozrenie newspaper could constitute a lack of regard for the court within the meaning of Article 82 § 1 (e) of the Code of Constitutional Procedure and invited him to submit written observations on this point within ten days.", "14. On 28 February 2000 the applicant submitted the requested observations. He said that he had only learned of the publication of his remarks from the letter of 18 February 2000 and confirmed having had a long telephone conversation with the journalist A.M. about the decision of 15 February 2000. He stressed, however, that his remarks had been misquoted and largely taken out of context. He added that, had A.M. submitted the article to him prior to publication, he would have checked the presentation of his remarks carefully and, accordingly, assumed full responsibility for them.", "15. On 6 March 2000 the Constitutional Court issued a final decision pursuant to Articles 81 and 82 of the Code of Constitutional Procedure in which it imposed an administrative fine on the applicant in the sum of 360 Moldovan lei (equivalent to 36 euros).\nIt found that the applicant had made the following comments in the aforementioned interview: “The Constitutional Court’s decision will produce total anarchy in the legal profession. ... the question is whether the Constitutional Court is constitutional. ... The judges of the Constitutional Court ... do not regard the European Court of Human Rights as an authority.” It found that these comments showed a lack of respect on the applicant’s part for the Constitutional Court and its decision.", "16. As the Constitutional Court’s decision was final, the applicant paid the sum of 360 lei into the Ministry of Finance’s account on 7 July 2000." ]

[ 6 ]

[ "9. The applicant was born in Vienna in 1979 and lives at present in Serbia and Montenegro.", "10. The applicant stayed with his parents, who are both citizens of Serbia and Montenegro and lawfully residing in Vienna, for about seven months after his birth in Austria. He then lived with his grandparents in the former Federal Republic of Yugoslavia, now Serbia and Montenegro. There he completed primary school, though he spent the yearly school holidays with his parents in Austria.", "11. In 1989, at the age of 10 years, he came back to live with his parents and his sister in Austria, where he finished secondary school and completed a three-year vocational training as a butcher. During this time, he resided lawfully in Austria and, on 5 May 1993, he received an unlimited residence permit (unbefristeter Sichtvermerk).", "12. On 30 July 1997 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant of aggravated robbery and burglary and sentenced him to thirty months’ imprisonment, out of which twenty-four months were suspended with a probationary period of three years. It found that the applicant, on 29 January 1997, together with his co-accused born in 1980, had knocked down the victim with a perfume bottle and had stolen cash in the amount of 65,000 Austrian schillings (ATS). On 11 and 14 April 1997 they had attempted to steal another victim’s daily cash receipt by using a wheel nut tool. Still on 14 April 1997, they had broken into that victim’s car and had taken away his daily cash receipt and a cheque, totalling almost ATS 125,000. When fixing the sentence, the court considered as mitigating circumstances that the applicant had so far no criminal record, that he had admitted the offences and had partly made amends (Schadensgutmachung), and that in two instances the offences remained attempts. As aggravating circumstances the court considered the concurrence of two different offences, the amount of damage, the injury of the victim and the qualification of the burglary. The judgment became final in the absence of an appeal by the applicant.", "13. On 30 September 1997 the Vienna Federal Police Office (Bundespolizeidirektion Wien) issued a residence prohibition of unlimited duration against the applicant. It referred to Section 18 §§ 1 and 2 (1) of the 1992 Aliens Act (Fremdengesetz) according to which a residence prohibition is to be issued against an alien, if he has been sentenced to more than three months’ imprisonment by final judgment of a domestic court.", "14. The applicant served his prison sentence until 14 October 1997. Subsequently he was transferred to a detention centre with a view to his expulsion.", "15. On 28 October 1997 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. Noting that the applicant had lived for seven months after his birth in Austria and that, after his return from former Yugoslavia in 1989, he had continuously lived with his family in Austria for eight years, it found that the residence prohibition at issue constituted an interference with his right to private and family life. However, it was necessary to achieve the aims set out in Article 8 § 2 of the Convention, namely the prevention of disorder and crime and the protection of the rights of others. In particular, the applicant had committed aggravated robbery by using a weapon. Given the seriousness of the offences and the implied disrespect for physical safety and the property of others, no positive prognosis was possible. Therefore, the interest in issuing a residence prohibition of unlimited duration against the applicant prevailed over the applicant’s interest in staying in Austria.", "16. On 11 November 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that the lower authorities had incorrectly established the facts and had failed to give sufficient reasons for their decisions. He stressed in particular that his family had already been residing lawfully in Austria for decades and that he had completed secondary school and vocational training, upon which he had legally worked as a butcher. Before his conviction by the Juvenile Court, the applicant had had no criminal record and the offences had been committed within a very short period of two and a half months. Since his grandparents had died in the meantime, he had no other relatives in Yugoslavia. The centre of his private and family life was exclusively in Austria. Referring to the Moustaquim and Beldjoudi judgments of the European Court of Human Rights, the applicant argued that the authorities had failed to comply with the Convention standards. In particular they had failed to balance correctly his interests in respect for his private and family life against public interests. There was no pressing need to issue an unlimited residence prohibition against him.", "17. On 28 November 1997 the Constitutional Court declined to deal with the matter and remitted the complaint to the Administrative Court (Verwaltungsgerichtshof).", "18. On 4 December 1997 the Administrative Court dismissed the complaint. It found that the Public Security Authority had duly considered the applicant’s private and family situation and had correctly assessed the interests involved when issuing the residence prohibition. Furthermore the Administrative Court found that in the cases of Moustaquim and Beldjoudi the persons concerned had had stronger family ties in the host country than the applicant. The decision was served on the applicant’s counsel on 16 January 1998.", "19. On 4 February 1998 the applicant was expelled to the former Federal Republic of Yugoslavia, now Serbia and Montenegro.", "20. On 14 October 1997 the applicant requested the Vienna Federal Police Office to revoke the residence prohibition issued against him in view of Section 38 § 1 (4) of the 1997 Aliens Act, which was to enter into force on 1 January 1998. Pursuant to that provision, a residence prohibition may not be issued “where a foreigner has grown up in Austria from an early age on and has been lawfully residing there for many years”. Section 114 § 3 of the 1997 Aliens Act establishes that if a residence prohibition has not expired at the date of the entry into force of the 1997 Aliens Act, the residence prohibition has to be regarded as a residence prohibition issued under the 1997 Aliens Act. However, the residence prohibition has to be revoked if it was not lawful to issue it under the 1997 Aliens Act.", "21. On 25 March 1998 the Federal Police Office dismissed this request. It noted in particular that the applicant did not comply with the requirements of the above provision, since he had not grown up in Austria within the meaning of Section 38 § 1 (4). Therefore, the imposition of the residence prohibition was also lawful under the 1997 Aliens Act.", "22. In his appeal of 14 April 1998 the applicant complained that the Federal Police Office had incorrectly applied the provision at issue.", "23. On 27 April 1998 the Vienna Public Security Authority dismissed his appeal. It noted that the provision at issue required that a foreigner had commenced growing up in Austria at the age of two or three years or even younger, whereas the applicant had only been in Austria during the first seven months of his life and had come back when he was already ten. Therefore, he clearly did not comply with that provision.", "24. The applicant did not appeal to the Constitutional Court and the Administrative Court." ]

[ 4 ]

[ "9. The applicant was born in 1967.", "10. In 1994 the Białystok Regional Prosecutor instituted investigations concerning suspicion of fraud. On 28 March 1995 the applicant was charged with fraud committed jointly with other persons. On 30 March 1995 the Białystok Regional Prosecutor ordered his detention on remand. The applicant was suspected of fraud committed by obtaining under false pretences a loan of USD 380,000 from a State-owned bank. The loan had not been reimbursed. It was further considered that the evidence in the case file rendered the charge against the applicant credible, while his attitude and the circumstances of the case indicated that he would jeopardise criminal proceedings, if left at liberty.", "11. The applicant requested that detailed written grounds of the detention order be prepared by the prosecuting authorities. On 3 April 1995 the applicant's lawyer and on 6 April 1995 the applicant himself appealed against the detention order, arguing, inter alia, that his bad health was incompatible with his detention.", "12. By a decision of 11 April 1995 the Białystok Regional Prosecutor preferred charges against the applicant. It was stated that the suspicion against him was rendered credible by evidence gathered in the investigations. The prosecutor referred in particular to documents concerning the circumstances in which the applicant had taken the loan, to the manner in which the funds had been transferred to the applicant's bank account, and to the links established between the suspects in the case.", "13. On 10 April 1995 the Warsaw Regional Court, at a session held in camera, refused the applicant's lawyer's appeal against the detention order and on 27 April 1995 the applicant's own appeal was, likewise, dismissed.", "14. On 25 April 1995 the applicant requested to be released.", "15. On 28 April 1995 the same court refused to allow the applicant's appeal against the decision of 11 April 1995 by which the prosecution had preferred charges against the applicant. The court considered that the case was complex, that there were many suspects, and that the offences concerned were of a very serious nature.", "16. On 28 April 1995 the Białystok Regional Prosecutor refused the applicant's application for release of 25 April 1995. On 18 May 1995 the Białystok Appellate Prosecutor upheld this decision, considering that a medical certificate confirmed that the applicant was suffering from Marfan syndrome which was a connective tissue disorder, so affected many structures, including the skeleton, lungs, eyes, heart and blood vessels. However, the applicant was under the medical supervision of a prison doctor. The grounds on which the applicant had been arrested still obtained, and the offence concerned was of a serious nature.", "17. On 13 June 1995 the charges against the applicant were supplemented by two further counts of fraud, committed by obtaining another two bank loans by false pretences. The prosecuting authorities referred, inter alia, to various Polish and foreign documents, to the testimony of witnesses, interviewed during the investigations, and to other evidence. When questioned by the prosecutor on that day, the applicant requested that detailed written grounds of these charges, giving factual reasons grounding the suspicions against him, be prepared and served on him and on his lawyer. On 28 June 1995 the applicant was served with this document.", "18. On 26 June 1995 the Warsaw Regional Court prolonged the applicant's detention for three months, until 29 September 1995.", "19. On 13 July 1995 the applicant requested again to be released. On 17 July 1995 his request was refused by the Białystok Regional Prosecutor.", "20. On 17 July 1995 the applicant requested to be released in order to undergo a specialised ophthalmologic examination, submitting that he suffered from an ailment, which seriously affected his eyesight, and that his eyesight had severely deteriorated as a result of his detention.", "21. On 27 July 1995 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of the Warsaw Regional Court of 26 June 1995 prolonging his detention for a further three months.", "22. On 11 August 1995 the Białystok Appellate Prosecutor upheld the decision of 17 July 1995, considering that the evidence against the applicant had rendered the charges against him sufficiently credible.", "23. On 12 September 1995 the applicant's new request for release, submitted on 8 September 1995, was refused by the Białystok Regional Prosecutor. An identical decision was given on 15 September 1995 in respect of his fresh request for release, the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant, and that there were genuine grounds for believing that, if released, he would exert pressure on the witnesses.", "24. On 18 September 1995 the applicant's detention was prolonged until 29 November 1995, the Warsaw Regional Court considering that further measures had to be taken in order to complete the evidence gathered so far during the investigations. On 26 October 1995 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision.", "25. On 16, 17, 20 and 21 November 1995 the applicant had access to the case file and was informed of his right to submit, within three days, motions for further evidence to be admitted.", "26. On 21 November 1995 the Białystok Regional Prosecutor again refused to release the applicant. On the same day the applicant requested the Białystok Appellate Prosecutor to set aside this decision.", "27. On 23 November 1995 the Warsaw Court of Appeal prolonged the applicant's detention until 29 December 1995. On the same day the court's registry was served with the applicant's letter in which he requested the court to allow him to be present at the court session concerning the prolongation of his detention. On 27 November 1995 the court replied that his request had been included in the case file, noting that it had been served on the court after the session had been held in the applicant's and his lawyer's absence.", "28. On 26 November 1995 the Warsaw Court of Appeal upheld the decision of the Warsaw Regional Court of 26 October 1995 prolonging the applicant's detention.", "29. On 8, 12 and 15 December the applicant examined the case file.", "30. On 14 December 1985 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 November 1995 prolonging his detention until 29 December 1995.", "31. On 15 December 1995 the applicant requested that certain pages that had been taken out of the case file and transferred to the file of another case, which had been severed from the applicant's case in June 1995, be re-included into his file so that he could have access to them.", "32. On 21 December 1995 the Białystok Regional Prosecutor closed the investigation, considering that the case-file contained enough evidence for a bill of indictment to be lodged with a court. On the same date the prosecutor ordered that the applicant be given access to documents that he had requested on 15 December.", "33. On the same day the Białystok Appellate Prosecutor refused to allow the applicant's appeal against the decision to prolong his detention, given on 23 November 1995.", "34. On 8 January 1996 the applicant requested to be released and on 10 January 1996 he proposed to pay bail in the amount of PLN 5,000.", "35. On 19 January 1996 the applicant requested to be granted access to the case-file, submitting that he had not been shown items Nos. 85, 86, 87.", "36. On 25 January 1996 the Warsaw Regional Court dismissed the applicant's request to be released on bail.", "37. By a letter of 19 January, submitted to the court on 24 January 1996, the applicant requested to be allowed to read the case file again.", "38. The refusal to release the applicant, given on 25 January 1996, was upheld by the Warsaw Appellate Court on 13 February 1996, which considered that the applicant's appeal had failed to advance any arguments capable of casting doubt on the lawfulness of the decision under appeal.", "39. By a letter of 21 February 1996 the applicant again requested to be given access to the case file. On 28 February 1996 the case-file was forwarded by the prosecution to the Białystok detention centre and the applicant read it again on 1 March 1996.", "40. On 7 March 1996 the Warsaw Regional Court held a session, concerning the applicant's request for release on bail and the amount of bail to be paid. The applicant's lawyer attended that session. The court fixed the bail at PLN 15,000. The applicant was released on the same day after bail had been paid.", "41. On 26 July 1998 the applicant died of Marfan syndrome. On 20 August 1998 the Warsaw Regional Court discontinued the criminal proceedings against him." ]

[ 2 ]

[ "7. The applicant was born in 1953. At the time of the introduction of his application, the applicant was serving a prison sentence in the Netherlands.", "8. On or around 26 January 1995 suspicions arose that the applicant, who at that time was serving a prison sentence in the Marwei penitentiary in Leeuwarden, had been involved in giving a false tip-off by telephone to the Leeuwarden police to the effect that three named detainees were planning to escape from prison by taking hostages. Thereafter, and in order to secure order, peace and safety in the penitentiary, the applicant’s telephone conversations were tapped and recorded on tape. These taped conversations were kept so as to allow the authorities to establish – if such a situation were to arise again – whether the applicant had been involved in giving any further false telephone tip-offs.", "9. On 3 October 1995, as a result of the detonation of an explosive device placed in her car, Ms X – the applicant’s former partner – suffered slight injuries. Her son, Mr Y, suffered serious injuries necessitating the amputation of the lower part of his left leg.", "10. At the time of the explosion, the applicant was still in prison. As it was suspected that he was involved in the bomb attack, the national public prosecutor (landelijk officier van justitie) ordered that the applicant’s recorded telephone conversations be made available to the criminal investigation into the bomb attack.", "11. On 16 May 1998 the applicant was summoned to appear before the Haarlem Regional Court (arrondissementsrechtbank) to stand trial on charges of, inter alia, (attempted) premeditated grievous bodily harm, causing an explosion endangering property and life, making a threat to kill and various counts of fraud.", "12. On 22 August 1996 the Haarlem Regional Court convicted the applicant of making a threat to kill and one count of fraud, acquitted him on the remaining charges and sentenced him to two years’ imprisonment. Both the applicant and the public prosecutor filed an appeal with the Amsterdam Court of Appeal (gerechtshof).", "13. In its judgment of 4 November 1997, following hearings held on 20 May and 21 October 1997, the Amsterdam Court of Appeal quashed the judgment of 22 August 1996, convicted the applicant of complicity in (attempted) premeditated grievous bodily harm, causing an explosion endangering property and life, and making a threat to kill or, in any event, to inflict grievous bodily harm. He was also convicted of several counts of fraud. The applicant was sentenced to nine years’ imprisonment. As regards the determination of the applicant’s sentence, the Court of Appeal held, inter alia, that the applicant, over a period of several months, had continuously threatened Ms X by telephone and had eventually carried out his threats by organising – from his place of detention – the placing of a bomb under her car. The detonation of this bomb had caused injuries to Ms X and Mr Y, necessitating the amputation of the lower part of the latter’s leg. The court noted that it was only as a result of the administration of rapid and adequate first aid that Mr Y had not bled to death. In addition, the explosion had caused collateral damage to another car as well as to windows of nearby houses and there had been a real danger that the explosion could also have (fatally) injured bystanders. The court further noted that the applicant had already been convicted in the past of having deliberately shot Ms X in the leg.", "14. The Court of Appeal based the applicant’s conviction on, inter alia, statements given by the applicant, a co-detainee, Mr Y, Ms X and her neighbours, several telephone conversations between the applicant and Ms X that had been tape-recorded by the latter, and one of the applicant’s telephone conversations that had been tapped and recorded prior to 3 October 1995 by the authorities of the penitentiary where the applicant was detained, namely a conversation between the applicant and his sister in which he warned his sister never to approach or get into Ms X’s car.", "15. The Court of Appeal rejected the defence’s argument that the telephone conversations which had been tapped and recorded by the prison authorities before 3 October 1995 should be disregarded as unlawfully obtained evidence. Noting the reasons for which the prison authorities had decided to tap and record the applicant’s telephone conversations, the court held that the impugned measures served a lawful purpose, namely the preservation of order, peace and security within the penitentiary. Furthermore, the measures also complied with the requirements of proportionality. It further held that, although the internal penitentiary regulations prescribed the immediate erasure of recorded telephone conversations, a reasonable interpretation of the applicable rules in relation to the aims pursued implied that the recorded conversations could be kept, since there were concrete indications of an ongoing escape plan. When fresh suspicion arose that the applicant was involved in another criminal offence, the information lawfully obtained on the basis of internal prison rules could be made available to the police for the purposes of the criminal investigation into that offence. The Court of Appeal referred in this connection to the general obligation contained in Article 160 of the Code of Criminal Procedure (Wetboek van Strafvordering) to report, inter alia, criminal offences involving a danger to life, and to the very serious nature of the offence at issue.", "16. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 2 March 1999.", "17. As regards the applicant’s complaint that his telephone conversations had been unlawfully tapped, recorded and kept by the penitentiary authorities, the Supreme Court held:\n“3.2. The complaint has to be considered in the following framework of legal rules. Article 15 § 4 of the Constitution (Grondwet) ... Article 8 [of the Convention] ... Article 92a of the ... applicable [1953] Prison Rules (Gevangenismaatregel) ... Article 4 § 1 of the [1953] Prison Rules ... [the] circular no. 1183/379 of the Deputy Minister of Justice (Staatssecretaris van Justitie) of 1 April 1980 ... [and] an internal regulation issued by the Governor of the Marwei penitentiary under Article 23 of the [1951] Prison Act (Beginselenwet Gevangeniswezen) ... 3.3. Under the heading ‘The lawfulness of the evidence obtained’ ... the Court of Appeal found that the recording of the applicant’s telephone conversations conducted in the Marwei penitentiary served a lawful purpose, namely maintaining order, peace and security in the penitentiary, and further complied with the requirements of proportionality. This finding does not reveal any incorrect interpretation of the law. In the first place, this finding recognises that the recording can be justified in view of the aims set out in Article 8 § 2 of [the Convention], in particular the prevention of disorder. In the second place, it recognises that the Court of Appeal has also examined whether in a democratic society the interference at issue with the right set out in Article 8 § 1 of [the Convention] was necessary for attaining the stated aim. In so far as that finding further established that the tape recording pursued this aim and that the interference was also necessary, these matters are factual and are readily understandable. 3.4. This recording is further provided for by law as required by Article 8 § 2 of [the Convention]. Indeed, the system of legal rules set out under 3.2 complies with the requirements of accessibility and foreseeability. The system comprises regulations of which the most important features have been published in generally accessible sources or have been deposited in places accessible to detainees. They provide a sufficiently clear indication to detainees about the fact that telephone conversations can be tapped and recorded and the reasons for this. 3.5. The above considerations lead to the conclusion that the finding of the Court of Appeal as to the lawfulness of the tape recording can be upheld. Questions still remain about the finding of the Court of Appeal as regards the keeping of the recordings and the failure to erase them immediately, the ... making available to the criminal investigation authorities of these tape recordings, ... their being listened to by the latter for the purposes of the investigation into ... [the car bomb attack] and the subsequent use in evidence of a document containing a transcript of one of the recorded telephone conversations (evidence item 23). It must first be noted that the cassation complaint apparently only seeks to challenge the finding of the Court of Appeal as to the use in evidence of the formal record (proces-verbaal) containing the transcript of a telephone conversation between the [applicant] and his sister (evidence item 23). 3.6. The internal regulation set out under 3.2 provides that tape recordings are not to be kept and will be immediately erased. Against the background of a reasonable interpretation, it is difficult to explain that provision otherwise than to mean that the tape recordings must no longer be kept and the tapes must be erased as soon as the danger giving rise to the recording has ceased to exist. Under the heading ‘The lawfulness of the evidence obtained’ ... the Court of Appeal found that the telephone conversation used in evidence had been recorded, inter alia, after suspicions had arisen that the [applicant] was involved in giving a false telephone tip-off about an intended hostage-taking and that this tape recording had been kept in order to be able to establish – if such a situation were to arise – whether the [applicant] was again involved in giving false telephone tip-offs affecting the order, peace and security of the penitentiary. It follows from this that, according to the Court of Appeal – and quite apart from the existence of any concrete indication about an escape plan ... – the keeping of and failure to erase the recordings occurred against the background of the danger which gave rise to the decision to tap the conversations. The Court of Appeal thus found that there was no violation of the relevant internal regulation. Without stating further reasons, this finding can be readily understood. 3.7. Taking into account the above considerations, the handing over of the tapes to the national public prosecutor for the purpose of the criminal investigation was not unlawful. Suspicions against the [applicant] had arisen that from his place of detention he was involved in a bomb attack. When this official had become aware of the existence of those tapes, it was not unlawful to hand them over, bearing in mind the provisions of Article 162 § 2 of the Code of Criminal Procedure and the fact that, failing a voluntary surrender [of the tapes], the judicial authorities could have had recourse to seizure (inbeslagname)." ]

[ 4 ]

[ "6. The applicant was born in 1930 and lives in Warszawa.", "7. In 1962 the applicant was injured in a train accident. Her injury caused her permanent disability and she was unable to continue her employment.", "8. As from 1963 the applicant was in receipt of a monthly supplementary disability pension from the Central Direction of the State Railways (CDOKP: hereinafter “the State Railways”). By a decision of 15 March 1993 the State Railways reduced the applicant's supplementary pension, considering that she had reached pensionable age. The applicant objected to this decision.", "9. On 16 February 1994 the State Railways lodged a motion with the Warsaw District Court in order to have the amount of the applicant's pension fixed. The court held three hearings, respectively on 10 May, on 7 July and on 26 September 1994.", "10. By a judgment of 6 October 1994 the Warsaw District Court dismissed the claim and ordered the State Railways to pay the pension in the sum which it had hitherto paid her, considering that the applicant's reduced earning power had to be taken into account.", "11. On 23 November 1994 the State Railways lodged an appeal with the Warsaw Regional Court.", "12. By a decision of 19 January 1995 the Warsaw Regional Court quashed the judgment of 6 October 1994 and ordered that the case be remitted to the Warsaw District Court for reconsideration.", "13. On 19 September 1995 the first hearing was held before the Warsaw District Court. New expert evidence was ordered to be taken in September 1996. The expert report was submitted to the court in May 1998. The next hearing was held on 12 January 1999, but both the plaintiff's representative and the applicant's legal representative appointed by the court under the legal aid scheme failed to attend.", "14. By a judgment of 4 January 2000 the Warsaw District Court dismissed the appeal of the State Railways and ruled that the applicant's pension should not be reduced.", "15. On 7 April 2000 the State Railways lodged an appeal against this judgment. On 4 July 2000 the Warsaw Regional Court dismissed the appeal and upheld the reasoning of the first-instance court." ]

[ 3 ]

[ "8. The applicant was born in 1946 and lives in Szamotuły, Poland.", "9. On 30 July 1987 the applicant lodged a claim for payment against the Wielkopolska Gardening Co‑operative (Wielkopolska Spółdzielnia Ogrodnicza) with the Poznań District Court (Sąd Rejonowy). On 3 November 1987 the Polcomex Ltd joined the proceedings as a second defendant. Prior to 1 May 1993 the trial court held several hearings and ordered an opinion from an expert.", "10. On 30 December 1993 the applicant modified his claim and applied for an exemption from court fees. At the hearing held on 21 February 1994 the court ordered the applicant to pay the court fees due for the submission of the modified claim.", "11. On 28 February 1994 the applicant again asked the court to exempt him from court fees. On 28 March 1994 the Poznań District Court rejected his application. On 1 April 1994 the applicant appealed against that decision. On 30 September 1994 the Poznań Regional Court (Sąd Wojewódzki) dismissed his appeal.", "12. On 8 November 1994 the applicant paid the required court fees.", "13. On 7 January 1995 the applicant modified his claim for the second time. On 8 February 1995 the District Court partly exempted him from the court fees.", "14. On 8 March 1995 the District Court held a hearing. On 28 May 1995 the applicant modified his claim for the third time.", "15. On 12 February 1997 the court ordered that expert evidence be obtained. The expert opinion was completed on 19 May 1997 and submitted to the court. On 2 July 1997 the court ordered that a new expert opinion be obtained.", "16. At the hearing held on 30 December 1997 the applicant finally specified his claim.", "17. On 21 January 1998 the Poznań District Court gave judgment. On 18 March 1998 the applicant lodged an appeal with the Poznań Regional Court. On 10 July 1998 the Poznań Regional Court quashed the first‑instance judgment and remitted the case.", "18. On 5 July 2000 the Poznań District Court gave judgment. On 21 October 2000 the applicant appealed. He also applied for an exemption from court fees. On 4 January 2001 the District Court rejected his application. On 26 January 2001 the applicant paid the required court fees.", "19. On 14 December 2001 the Poznań Regional Court gave judgment. The judgment is final.", "20. On 22 September 1988 the applicant sued the Szczuczyn Agricultural Co‑operative (Rolniczy Kombinat Spółdzielczy) in the Poznań Regional Court, seeking compensation. Prior to 1 May 1993 the court ordered opinions from two experts.", "21. On 7 July 1993 the Poznań Regional Court rejected the applicant's request for an exemption from court fees. On 8 October 1993 the Poznań Court of Appeal (Sąd Apelacyjny) upheld this decision.", "22. On 6 November 1993 the Regional Court ordered the applicant to pay half of the court fees due.", "23. On 21 March 1994 the applicant challenged the impartiality of the judges of the Poznań Regional Court. On 25 May 1994 the Supreme Court (Sąd Najwyższy) referred the challenge to the Poznań Regional Court.", "24. On 8 November 1994 the Regional Court held a hearing. It granted the applicant a general exemption from court fees.", "25. On 4 February 1995 the applicant modified his claim. At the hearing held on 1 December 1995 the court ordered that an expert opinion be obtained.", "26. On 13 and on 18 December 1995 respectively the co-operative and the applicant requested that certain witnesses be summoned.", "27. Subsequently, two experts refused to prepare their opinions. On an unspecified date the court ordered that the Sielinko Centre for Agricultural Assistance (Ośrodek Doradztwa Rolniczego Sielinko) prepare an expert opinion. On 1 August 1997 the opinion was submitted to the court.", "28. On 2 July 1997 the applicant complained to the President of the Poznań Regional Court about the delay in the proceedings. In reply, the President admitted that the applicant's complaint was justified.", "29. On 4 August 1997 the court fixed a hearing for 5 November 1997. It was subsequently cancelled. The court held further hearings on 21 November 1997, 27 March and 13 October 1998.", "30. On 27 October 1998 the Regional Court gave judgment. The applicant appealed. On 11 June 1999 the Court of Appeal dismissed the applicant's appeal. On 27 October 1999 the applicant lodged a cassation appeal against the final judgment. On 14 November 2001 the Supreme Court (Sąd Najwyższy) dismissed the applicant's cassation appeal as manifestly ill-founded.", "31. On 22 August 1988 the applicant sued the Szamotuły Agricultural Co‑operative (Spółdzielnia Kółek Rolniczych) in the Poznań Regional Court, seeking damages. On 22 December 1992 the Regional Court gave judgment.", "32. On 31 August 1993 the Poznań Court of Appeal, upon the parties' appeals, remitted the case to the Szamotuły District Court. It ordered the District Court to determine the amount of compensation to be granted to the applicant.", "33. The applicant modified his claim on 30 November 1993 and 17 May 1994 respectively.", "34. On 28 September 1994 the District Court ordered that an expert opinion be obtained.", "35. On 14 July 1995 the applicant challenged the impartiality of the presiding judge. On 28 July 1995 the District Court rejected his challenge as unfounded. On 30 January 1996 the Poznań Regional Court upheld the first‑instance decision. However, the case was subsequently assigned to another judge.", "36. On 3 February 1997 the court ordered that a new expert opinion be obtained. The relevant expert report was submitted on 20 March 1997.", "37. On 31 October 1997 the District Court gave judgment. On 29 December 1997 the applicant lodged an appeal with the Regional Court. On 12 May 1998 the Regional Court dismissed his appeal.", "38. On 31 August 1998 the applicant lodged a cassation appeal against the final judgment with the Supreme Court. On 16 October 1998 the Poznań Regional Court rejected the cassation appeal as inadmissible in law. The applicant appealed. On 19 April 1999 the Supreme Court dismissed his appeal." ]

[ 3 ]

[ "4. The applicants are spouses and they are Slovakian nationals. The first applicant, Mr Ján Sabol, was born in 1927. The second applicant, Ms Mária Sabolová, was born in 1939. They live in Košice.", "5. On 15 January 1988 the applicants claimed before the Košice City Court that the boundary between their plot of land and the plot of their neighbours had not been traced correctly.", "6. On 15 March 1990 the Košice City Court granted the action with reference to an expert opinion. The two parties appealed and the Košice Regional Court quashed the first instance judgment on 31 August 1990.", "7. Upon the instruction of the City Court the applicants amended their action. They claimed that the defendants should put at their disposal a part of a plot of land and that they should remove a gas connection from that land. The City Court ordered a second expert opinion on 8 July 1991 and on 14 October 1991. The expert submitted an opinion on 29 November 1991.", "8. On 13 February 1992 the applicants modified their claim. The defendants proposed to settle the case. On 2 June 1992 the court visited the site. On 30 July 1992 it requested the expert to submit further information.", "9. On 26 November 1992 the defendants filed a counter-action in which they claimed that they should be granted the right to use the part of the land on which the gas connection was built. A hearing was held on 1 January 1993. On 26 February 1993 the second expert submitted an amended version of his opinion at the court's request.", "10. After having taken further extensive evidence the court scheduled a hearing for 15 April 1994. On 29 April 1994 the Košice 1 District Court, by which the case fell to be examined, delivered a judgment ordering the defendants to vacate the plot. The court considered it appropriate not to order the removal of the gas connection in question as it was fixed to the central gas pipe-line belonging to the Slovak Gas Company. It ordered the defendants to pay compensation to the applicants for the use of the part of their land on which the gas connection was built. The judgment was served on the applicants on 21 December 1994. They appealed on 9 January 1995. On 6 March 1995 the applicants were requested to pay the court fee, and the case file was submitted to the appellate court on 11 April 1995.", "11. On 13 February 1996 the Košice Regional Court sent the case back to the first instance court with the instruction to take further evidence.", "12. The District Court heard the parties on 2 April 1996 and on 8 May 1996, and on 22 May 1996 it decided to obtain an expert opinion. On 8 January 1997 it appointed a different expert as the one appointed in May 1996 had been struck out of the list of experts. The District Court returned the case file to the Regional Court, at the latter's request, on 20 January 1997.", "13. On 27 February 1997 the Košice Regional Court quashed a part of the District Court's judgment of 29 April 1994 on the ground that the first instance court had omitted to decide on a part of both the applicants' and defendants' claims.", "14. On 17 April 1997 the District Court asked the defendants to pay an advance on the expert's fees. The defendants paid the sum on 29 April 1997. On 3 October 1997 the District Court sent the case file to the expert. The latter sent it back to the Court, on 21 October 1997, with the explanation that he no longer was registered as an expert.", "15. On 10 November 1997 the Košice 1 District Court appointed another expert with a view to establishing the relevant facts. It sent the file to the expert on 14 May 1998. On 25 May 1998 the expert returned the file to the court with the explanation that he had received no advance on the costs of an opinion. On 10 December 1998 the District Court again sent the file to the expert after having checked, on 7 December 1998, that the court's registry had transferred the sum due. The expert submitted his opinion on 23 December 1998.", "16. On 9 March 1999 the applicants submitted their comments on the opinion. Hearings were scheduled for 9 April 1999, 5 May 1999 and 2 June 1999. The expert was requested to answer the applicants' objections to his opinion. On 2 August 1999 the expert admitted an error which, in his view, did not affect the opinion as a whole.", "17. On 6 October 1999 the case was adjourned at the applicants' request.", "18. On 3 December 1999 the Košice 1 District Court dismissed the applicants' claim that the gas connection be removed from their land. It further ordered the defendants to pay compensation to the applicants for the use of the relevant part of the land on which the gas connection was built.", "19. On 11 and 19 January 2000 the applicants appealed. On 23 February 2000 the defendants submitted observations on the appeal. The case file was submitted to the Regional Court on 16 March 2000.", "20. On 10 October 2000 the Košice Regional Court upheld the District Court's judgment of 3 December 1999." ]

[ 3 ]

[ "8. The applicant, is a Polish national was born in 1947 and lives in Stalowa Wola, Poland. On 10 June 1991 the applicant and her husband obtained a divorce decree.", "9. On 21 December 1993 the applicant filed an application with the Stalowa Wola District Court for the division of the marital property. She also asked the court to secure her claim.", "10. On 10 January 1994 the applicant asked the court to exempt her from court fees. On 28 February 1994 the Stalowa Wola District Court exempted the applicant from the court fees and issued an interim order preventing her ex-husband from disposing of their marital property. On 29 June 1994, upon the defendant's appeal, the Tarnobrzeg Regional Court amended the interim order.", "11. On 6 September 1994 the Stalowa Wola District Court decided to join the present proceedings with the action concerning the annulment of contracts (see B below). During a hearing held on 14 October 1994 the District Court reversed its previous decision and decided to deal with the proceedings separately.", "12. On 12 April 1995 the court rejected the applicant's appeal against the order of 6 September 1994 as it had been lodged outside the prescribed time‑limit. On 26 July 1995, on the applicant's request, the District Court granted her leave to file an appeal out of time. On 5 October 1995 the Tarnobrzeg Regional Court dismissed that appeal.", "13. On 11 March 1996 the Stalowa Wola District Court stayed the proceedings. It considered that their result depended on the outcome of the proceedings relating to the annulment of contracts (see B below). On 23 April 1996 the Tarnobrzeg Regional Court quashed this decision and remitted the case for further examination.", "14. The District Court held hearings on 1 August and 23 August 1996. On 15 January 1997 the District Court ordered that expert evidence from a company “TC” be obtained.", "15. Subsequently, the applicant on three occasions lodged unsuccessful applications for her claim to be secured.", "16. On 3 April and 8 April 1997 the trial court held hearings.", "17. On 23 June 1997 the applicant challenged the impartiality of the judges of the Stalowa District Court. The Regional Court dismissed her challenge on 22 July 1997.", "18. On 6 May, 18 August and 8 October 1997 the trial court repeatedly invited the expert “TC” company to submit their report. The court held further hearings on 18 June and 23 October 1998.", "19. On 6 November 1998 the District Court delivered a preliminary ruling and gave an itemised breakdown of the marital property. This decision was upheld by the Tarnobrzeg Regional Court on 4 March 1999. The applicant's further cassation appeal was rejected on 16 October 1999 as it had been lodged outside the prescribed time limit.", "20. The trial court held a hearing on 10 December 1998.", "21. On 25 April 2001 the applicant asked the trial court to give a partial judgment in the case. On 10 May 2001 the court dismissed her request.", "22. On 11 May 2001 the trial court again requested the “TC” company to prepare an opinion.", "23. It appears that the proceedings are pending before the Stalowa Wola District Court.", "24. On 15 November 1993 the applicant requested the Stalowa Wola District Court to declare a contract concluded by her ex-husband null and void.", "25. The court held a hearing on 23 February 1993.", "26. At the hearing held on 16 March 1994 the court stayed the proceedings. It considered that the determination of the claim depended on the outcome of the proceedings concerning the division of the marital property. On 19 August 1994, upon the applicant's appeal, the Tarnobrzeg Regional Court quashed this decision.", "27. On 6 September 1994 the Stalowa Wola District Court decided to join these two cases. However, on 14 October 1994 it reversed its previous decision and decided to deal with them separately.", "28. Two years later, on 23 August 1996, the District Court fixed a hearing for 26 September 1996. This hearing was cancelled as the applicant had challenged the impartiality of the presiding judge. On 27 September 1996 the District Court rejected the applicant's challenge. This decision was upheld by the Regional Court on 14 November 1996.", "29. On 28 August 1996 the applicant modified her claim. On 12 December 1996 the District Court dismissed the modified claim as the applicant had not specified its value. On 7 February 1997 the court dismissed her appeal.", "30. On 7 March 1997 the District Court dismissed the applicant's request for an interim court fee and her further request for an interim order. The applicant appealed. On 28 January 1998 the Regional Court quashed the decision of 7 March 1997.", "31. The next hearing was held on 4 November 1997.", "32. On 25 February 1998 the District Court referred the case to the Tarnobrzeg Regional Court on grounds of the increased value of the claim. On 22 September 1998 the Regional Court held a hearing. On 2 October 1998 it ordered that part of the applicant's claims be dealt with by the District Court. On 18 December 1998 the Rzeszów Court of Appeal quashed this decision and remitted the case to the Regional Court.", "33. On 5 March 1999 the Regional Court held a hearing. It ordered the applicant to specify the names of all participants in the proceedings and adjourned the hearing.", "34. On 7 April 1999 the Regional Court gave judgment and dismissed the applicant's claims. On 24 May 1999 the Regional Court rejected her appeal against this decision as she had failed to comply with certain formal requirements. The Rzeszów Court of Appeal upheld this decision on 25 June 1999.", "35. The applicant subsequently lodged several unsuccessful requests for the proceedings to be reopened." ]

[ 3 ]

[ "8. The applicant was born in 1952 and lives in Łódź, Poland.", "9. On 31 July 1992 the applicant sued the “Bolesławów” Agriculture Co-operative (Rolnicza Spółdzielnia Przetwórstwa Owoców i Warzyw “Bolesławów”) in the Łódź Regional Court (Sąd Wojewódzki), seeking repayment of his indexed membership shares (udziały członkowskie).", "10. On 29 April 1993 the applicant asked the court to list a hearing. On 21 September 1993 the court held the first hearing and requested the applicant to submit certain documents. On 25 September 1993 the applicant submitted to the court his pleadings together with the relevant documents.", "11. On 17 May 1994 the court held the second hearing. It ordered an accountant of the co-operative to provide information about the management of the co-operative's assets. The documents were submitted to the court on 1 October 1994.", "12. The third hearing was held on 23 March 1995. On 4 May 1995 the applicant requested that the court issue an interim order (zarządzenie tymczasowe) and restrain the co-operative from selling or encumbering its property in order to safeguard his claim. On 5 July 1995 the court refused to issue the interim order. The applicant appealed against this decision. On 7 September 1995 the Łódź Court of Appeal (Sąd Apelacyjny) upheld the first‑instance decision.", "13. On 16 November 1995 the Regional Court held the fourth hearing. The accountant of the co-operative summoned as a witness failed to appear due to illness.", "14. The next hearing, listed for 16 April 1996, was adjourned on the ground that the presiding judge was ill.", "15. On 20 April 1996 the applicant complained, invoking Article 6 of the Convention, about the length of the proceedings to the President of the Łódź Regional Court. On 30 April 1996 the President of the Regional Court instructed the President of the Civil Division of the Regional Court to list a hearing in the case. On 24 May 1996 the President of the Court of Appeal, informed the applicant that he would supervise the proceedings.", "16. On 18 June 1996 the court held the fifth hearing. The accountant summoned as a witness again failed to appear. The court adjourned the hearing until 22 October 1996. In addition the court ordered the defendant to submit certain documentary evidence.", "17. On 24 June 1996 the applicant complained for the second time to the President of the Regional Court about the delay in the proceedings. He also sent a letter to the President of the Court of Appeal. In reply, the President of the Court of Appeal informed the applicant that it was not possible to schedule a hearing before 22 October 1996.", "18. In the meantime the case was assigned to a new judge. On 24 September 1996 the court held a hearing. The hearing scheduled for 22 October 1996 was adjourned due to the presiding judge's illness.", "19. On 28 February 1997 the court held the last (seventh) hearing. According to the applicant's submissions, the court invited him to settle the case. On the same date the parties reached a friendly settlement and the court discontinued the proceedings. The applicant did not appeal against that decision." ]

[ 3 ]

[ "11. On 8 January 1996 the first applicant filed an action claiming that she should be granted the right to educate her granddaughter of whom the second applicant is the father.", "12. The girl, who had been born to the first applicant's daughter, was then fourteen years old. The marriage of the second applicant and the first applicant's daughter had been terminated by a decision which had become final on 18 July 1985. The decision granted the custody of the child to the mother. In 1993 the mother married abroad and established her and her daughter's permanent residence there. At the time when the first applicant brought her action, the child and the mother were on a temporary stay in Slovakia.", "13. In her action of 8 January 1996 the first applicant relied on Section 45 of the Family Act and explained that her daughter had failed to take proper care of the girl. She further submitted that the second applicant was in agreement with her proposal. She also claimed that the parents be ordered to contribute to the child's maintenance.", "14. In January and February 1996 the Dunajská Streda District Court took several procedural steps. On 14 February 1996 the District Court appointed the Veľký Meder District Office to represent the interests of the child in the context of the proceedings. On 19 February 1996 the child's mother appealed against this decision. She claimed that the child's father was in arrears with payment of maintenance and that the officials of the District Office had failed to take appropriate action in that respect.", "15. The District Court had also before it a request for adoption of the child lodged by the husband of the child's mother. The request was later withdrawn and the proceedings discontinued.", "16. A hearing scheduled for 28 February 1996 had to be adjourned as the child's mother was ill.", "17. The court heard the parties on 15 April 1996. On that date the second applicant joined the proceedings and claimed that the first applicant's action be granted.", "18. In April and May 1996 the child's mother sought to disqualify the judge dealing with the case as well as the entire bench of the District Court. For this reason the hearing scheduled for 13 May 1996 was adjourned. The case file was submitted to the Trnava Regional Court for a decision on the request for disqualification of the judges.", "19. Subsequently the girl was placed in a psychiatric hospital.", "20. On 31 May 1996 the District Office in Veľký Meder issued an interim measure ordering that the child was to be temporarily placed in the first applicant's care. Reference was made to the conclusions of a psychiatrist who treated the child. The decision stated that the child's mother had married abroad in 1993 and that since then the relations between the child and the mother had deteriorated. According to the decision, the girl had expressed the wish to live with her grandparents.", "21. The child's mother refused to comply with the order. Upon the child's release from the psychiatric hospital the mother and the girl went abroad to where their place of permanent residence was.", "22. On 4 July 1996 the Dunajská Streda District Prosecutor joined the proceedings.", "23. On 11 July 1996 the Regional Court sent the file back to the District Court and instructed it to invite the child's mother to specify her objection to the District Court judges. Subsequently the police informed the District Court that the child and her mother had left Slovakia in June 1996.", "24. On 26 August 1996 the first applicant requested the District Court to issue an interim measure granting her the custody of the child pending the outcome of the proceedings.", "25. The case file was again sent to the Regional Court in September 1996. On 18 October 1996 the Regional Court returned the file to the District Court after having decided that the latter's judges were not biased.", "26. A hearing before the District Court was held on 28 November 1996. Following their arrival for another temporary stay in Slovakia, the District Court heard the mother and her husband on 5 December 1996. It also heard the girl on 10 December 1996.", "27. On 18 December 1996 the case was adjourned and on 19 December 1996 the District Court dismissed the first applicant's request for an interim measure to be issued. The decision stated that at that time the mother and the child lived in Slovakia. The court noted that the girl had stated before it, on 10 December 1996, that she wished to stay with her mother.", "28. On 16 January 1997 the court heard witnesses.", "29. On 30 January 1997 the court appointed an expert with a view to obtaining an opinion on the child.", "30. On 13 February 1997 the expert informed the District Court that she was not in a position to submit an opinion because of a heavy workload.", "31. The second applicant requested that his daughter be prevented from travelling abroad without his consent. On 21 February 1997 the District Court dismissed the request.", "32. Hearings were scheduled for 18 February 1997 and 6 March 1997. On the latter date the District Court heard the parties. The case was adjourned as the court considered it necessary to obtain an expert opinion.", "33. On 7 March 1997 the child's mother filed an appeal “against all decisions” delivered by the judge dealing with the case.", "34. On 10 March 1997 the second applicant appealed against the District Court's decision of 21 February 1997. He also claimed that his right to meet his daughter should be determined by the court.", "35. On 20 March 1997 the mother of the child requested that further documentary evidence be taken.", "36. On 1 April 1997 the case was assigned to a different judge.", "37. On the same day the second applicant's daughter informed the court in writing that she did not wish to meet her father and that she lived abroad where she was undergoing treatment.", "38. On 13 May 1997 the District Court submitted the case file to the Trnava Regional Court for a decision on the appeals filed by the parties. On 23 June 1997 the Regional Court returned the file to the District Court and asked the latter to ensure that formal shortcomings in the mother's appeal of 7 March 1997 be eliminated. It further dismissed the child's appeal against the decision on appointment of an expert and quashed the above District Court's decision of 21 February 1997.", "39. On 4 July and on 5 August 1997 the judge asked the mother of the child to eliminate shortcomings in her submissions.", "40. On 15 September 1997 the grandfather of the child informed the court that his daughter and granddaughter were staying abroad.", "41. On 24 October 1997 the second applicant informed the court that his former wife had left Slovakia, together with their daughter, on 6 May 1997.", "42. In November 1997 and in January 1998 the court attempted to establish the address of the child and her mother. The information was submitted to it by the police on 29 January 1998.", "43. On 24 February 1998 the District Court issued an interim measure in which, inter alia, it prohibited the mother and the child from travelling abroad. At that time both the mother and the child were abroad. On 25 March 1998 the husband of the child's mother appealed against this decision. The applicants and the child's mother also appealed.", "44. On 14 April 1998 the case file was submitted to the President of the Trnava Regional Court. He returned the file to the District Court on 7 May 1998.", "45. On 8 July 1998, after having taken several procedural steps, the District Court re-submitted the file to the Regional Court for a decision on the appeals against the decision of 24 February 1998.", "46. On 26 August 1998 the Trnava Regional Court quashed the District Court's decision to the extent that it prohibited the mother and the child from travelling abroad. The case file was returned to the District Court on 4 September 1998. On 11 November 1998 and on 10 March 1999 the judge arranged for the Regional Court's decision to be served on the parties.", "47. On 28 October 1998 the child's mother requested that further evidence be taken. On 10 December 1998 she informed the District Court that she had withdrawn the authority of her husband to represent her in the proceedings.", "48. The District Court judge dealing with the case was ill for considerable periods of time between August 1998 and January 1999 and also between March and May 1999.", "49. On 21 April 1999 the Constitutional Court found that the first applicant's constitutional right to a hearing without undue delays had been violated. In its decision the Constitutional Court admitted that the length of the proceedings was due, to a certain extent, to the behaviour of the child's mother and her husband. However, the case was not particularly complex and what was at stake in the proceedings called for particular diligence. The Constitutional Court further noted that the District Court had caused undue delays in the proceedings in that, by failing to issue in time an interim measure restricting the mother's and the child's right to travel abroad, it had brought about the need to ask foreign authorities for assistance. Furthermore, by the time the Constitutional Court decided on the case, the District Court judge had not yet arranged for such a request to be sent to the authorities concerned.", "50. The Constitutional Court's decision stated that the District Court had not proceeded with the case efficiently in that it had failed to take evidence, including an expert opinion, required for a decision on the case. Delays in the proceedings had also arisen as a result of the ordinary courts' failure to decide on the requests for an interim measure to be issued within the statutory time-limit. Finally, the Constitutional Court noted that the District Court had failed to take any effective action in the case since 4 September 1998.", "51. On 3 September 1999 the District Court judge prepared a request for assistance which was to be submitted to foreign authorities through the Ministry of Justice.", "52. By two decisions delivered on 21 January 2000 the Dunajská Streda District Court discontinued both the proceedings on the first applicant's claim of 8 January 1996 and on the second applicant's claim of 10 March 1997. The decisions stated that the second applicant's daughter had reached her majority at the end of 1999." ]

[ 3 ]

[ "4. The applicant was born in 1942 and lives in Warsaw.", "5. On 21 March 1994 the Municipal Housing Board for Warsaw‑Żoliborz (Zarząd Budynków Komunalnych ”Żoliborz”) lodged with the Warsaw District Court (Sąd Rejonowy) a civil action against the applicant. The plaintiff sought to terminate the payment of an annuity (renta wyrównawcza) to the applicant.", "6. The trial court held hearings on 7 July, 19 October, 12 December 1994 and 9 February 1995.", "7. On 20 February 1995 the District Court exempted the applicant from the court-fees.", "8. On 5 March 1996 the court held a hearing.", "9. On 23 December 1997 the trial court, sitting in camera, ordered an expert opinion. The opinion was submitted to the court in June 1998.", "10. On 9 March 1999 the court held a hearing.", "11. On 7 July 2000 the trial court ordered a supplementary expert opinion.", "12. On 17 July 2001 the trial court decided to exempt the applicant from the costs of the expert opinion.", "13. On 20 August 2002 the expert submitted his opinion to the court.", "14. On 23 October 2002 the court held a hearing.", "15. On 19 November 2002 the Warsaw District Court gave judgment in which it dismissed the plaintiff's claim and increased the applicant's annuity.", "16. The parties did not appeal against it and the judgment became final." ]

[ 3 ]

[ "7. The applicant was born in 1959 and is serving a sentence of life imprisonment in HM Prison Doncaster.", "8. The applicant was convicted in or around 1981 for the murder of an acquaintance. He was sentenced to mandatory life imprisonment, and his tariff (the minimum period of imprisonment required to satisfy the requirements of retribution and deterrence) was set at 12 years.", "9. At the time of the applicant's latest Parole Board review in 2001, he was detained in HM Prison Wymott as a “Category C” prisoner (prisoners being given a security category classification ranging from Category A (highest risk) to Category D (suitable for open conditions)). The Parole Board recommended that the applicant should be transferred to open conditions, and that his detention should be reviewed after two years. By letter dated 6 July 2001 the Secretary of State informed the Prison Service that he did not accept the Parole Board's recommendation for transfer to open conditions, and that the next review should begin after 12 months. In the letter to the applicant which accompanied the decision it was stated that:\n“... [t]he Secretary of State attaches particular weight to the psychologist's report, it has highlighted in some detail, the need for further exploration of your insight into, and responsibility for, the index offence and the apparent lack of empathy towards the victim.”", "10. In June 2001 the applicant was transferred to HM Prison Manchester. He claimed that he did not receive notification of the parole decision until sometime after 13 September 2001. The Government stated that a copy of the decision letter was sent to the applicant on 6 July 2001 and a copy to the solicitors then acting for the applicant on 7 August 2001. When the applicant changed his solicitors in September 2001, the authorities sent a copy of the decision to the new solicitors.", "11. The applicant stated that he wanted to seek judicial review of the decision, but was unable to find a solicitor who was prepared to act on his behalf. His then solicitors gave advice that judicial review stood little prospect of success as the reports recommending a move to open conditions had been slightly ambiguous, there were a number of very unfavourable reports and the Secretary of State had given extensive reasons for rejecting the recommended move.", "12. The applicant's first Parole Board oral hearing under new arrangements was scheduled for November 2003. At the applicant's request, it was deferred until May 2004 to allow the applicant time to complete certain courses identified in the reports for the Parole Board review." ]

[ 2 ]

[ "7. The applicant was born in 1947 and lives in Oldham.", "8. From 1977, the applicant ran a company which operated 20 chemist shops. Following financial problems, the company went into liquidation in February 1987. On 20 May 1987, a bankruptcy petition was presented against the applicant and on 11 March 1988, a bankruptcy order was made.", "9. On 29 July 1988, the applicant was publicly examined by the official receiver. Under section 291 of the Insolvency Act 1986, the applicant was obliged to answer the questions put to him by the official receiver and if he failed to comply without reasonable excuse, he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment.", "10. On 16 March and 23 March 1988, a building society advanced 150,000 pounds sterling (GBP) and GBP 116,250 respectively to the applicant. On 23 March 1988, the applicant's wife collected part of the advance, GBP 104,000, and took it to India in a bin liner.", "11. The applicant was subsequently charged with two offences of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 on the grounds that he had misled the building society into advancing money by false representations regarding his income, his debts and the bankruptcy proceedings against him. He was also charged with two offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt contrary to section 354(2) and (3) of the Insolvency Act 1986.", "12. At the applicant's trial in February 1992, the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings. The applicant submitted that the transcript was inadmissible under section 31 of the Theft Act 1968 which provides that a statement or admission made by a person answering questions in proceedings for the administration of any property or for an account of any property or dealings with property is not admissible in evidence against that person. However, the trial judge ruled the evidence admissible under section 433 of the Insolvency Act 1986 which provided that statements made in pursuance of a requirement imposed by the Act could be used in evidence against the maker of the statement. The full transcript was placed before the jury and in his summing up, the judge stated that the transcript “could be very important”.", "13. On 18 February 1992, the applicant was convicted of the four offences charged and was sentenced to 15 months' imprisonment. The applicant appealed against conviction and on 12 May 1992, the Court of Appeal dismissed his appeal deciding, inter alia, that the transcript of the bankruptcy examination was admissible under section 433 of the Insolvency Act 1986 which abrogated the privilege against self-incrimination. Leave to appeal was refused by the Court of Appeal and by the House of Lords.", "14. On 27 June 1995, the Royal Pharmaceutical Society of Great Britain decided to remove the applicant's licence to practise as a pharmacist on the grounds of unfitness due to his involvement in the deception connected with his bankruptcy proceedings and a previous reprimand relating to the cleanliness of his premises.", "15. On 27 April 1998, the Criminal Cases Review Commission (“CCRC”) referred the applicant's case back to the Court of Appeal due to changes in the domestic law on obtaining mortgage advances by false statements. On 20 June 2000, the Commission added the ground that, following the decision of the European Court of Human Rights in Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and the introduction of the Human Rights Act 1998, the admission of answers given under compulsion during the bankruptcy examination may have been in breach of Article 6 of the Convention and rendered the applicant's conviction unsafe.", "16. On 24 May 2001, the Court of Appeal overturned the applicant's conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial and in breach of Article 6 of the Convention. The court found that the Human Rights Act 1998 could apply retrospectively. It certified a point of law to the House of Lords as to whether the Human Rights Act 1998 could apply retrospectively in appeals arising from a reference by the CCRC.", "17. The Crown appealed to the House of Lords against the decision of the Court of Appeal. On 29 November 2001, the House of Lords allowed the appeal, holding that they were bound to follow the earlier decision of the House in R v. Lambert [2001] 3 WLR 206, which had decided that the Human Rights Act 1998 could not apply retrospectively to allow a defendant whose trial took place before the Act came into force to rely on a breach of the Convention in a later appeal." ]

[ 3 ]

[ "8. The first five applicants are individual Spanish nationals who live in Itoiz (Navarre province). The third applicant is also the chairperson and legal representative of the sixth applicant, the Coordinadora de Itoiz association. The first, second, fourth and fifth applicants are members of this association.", "9. The case originated in an engineering project of February 1989 for the construction of a dam in Itoiz (Navarre province) which would result in the flooding of three nature reserves and a number of small villages, including Itoiz, where the applicants live. According to the Government, the total number of landowners affected by the dam's construction is 159, thirteen of whom live in Itoiz itself.", "10. On 6 May 1988 the Coordinadora de Itoiz association was set up; its articles of association state, inter alia, that its aim is “to coordinate its members' efforts to oppose construction of the Itoiz dam and to campaign for an alternative way of life on the site, to represent and defend the area affected by the dam and this area's interests before all official bodies at all levels, whether local, provincial, State or international, and to promote public awareness of the impact of the dam”.\nBy a ministerial decree of 2 November 1990, the Ministry of Public Works adopted the Itoiz dam project.", "11. In 1991 the villages concerned by the dam and the applicant association brought an administrative appeal before the Audiencia Nacional against the ministerial decree of 2 November 1990. The appeal was based on several allegations of unlawfulness which, in their opinion, had tainted the procedure for informing the public about the proposed dam, the fact that the project had been adopted without the prior approval of the hydrological plans for each river basin or of the national hydrological plan and the lack of any public or social interest served by the project. They also claimed that the project breached the legislation on environmental protection, since no environmental impact study had been commissioned. Finally, the court's attention was drawn to the project's impact on the nature reserves and habitat within the relevant area in the light of the Council of Europe's recommendations on engineering works in the Pyrenees and the European Union's common agricultural policy.", "12. In a judgment of 29 September 1995, the Audiencia Nacional partly upheld the appeal, considering in particular that, according to the law, the planned dam should have been based on the national hydrological plan, which had not been drawn up when the project was approved. The court also accepted the request for precise designation of the protection zones around the nature reserves affected by the dam and for a breakdown of the quarry use that would be necessary for its construction.", "13. The applicant association applied for immediate enforcement of the judgment and, in particular, for suspension of construction work on the dam. By a decision of 24 January 1996, the Audiencia Nacional granted a suspension order but directed that the necessary measures be taken to ensure the completion of work already begun and for the maintenance and safety of the work already completed, subject to the payment of security by the applicant association.", "14. All the parties to the proceedings lodged súplica appeals against the decision of 24 January 1996. In the context of the interim enforcement of its judgment of 29 September 1995 and, in particular, with a view to maintaining the protection zones around the three nature reserves affected by the project, the Audiencia Nacional, by a decision of 6 March 1996, prohibited the filling of the reservoir and displacement of the population concerned.", "15. On 17 June 1996 the parliament of the Autonomous Community of Navarre (parlamento foral de Navarra) passed Autonomous Community Law (foral) no. 9/1996 on natural sites in Navarre (“the Autonomous Community law of 1996). This law amended Autonomous Community Law no. 6/1987 of 10 April 1987, particularly with regard to the possibility of reclassifying the protection zones or carrying out activities within them for the purpose of introducing infrastructure that had been declared in the general or public interest. According to the applicants, this Law enabled construction work on the dam to continue, with the consequent deterioration of the protected natural site.\nIn application of the Autonomous Community law of 1996, the Autonomous Community's government adopted Decree no. 307/1996 of 2 September 1996, which identified the peripheral protection zones for certain nature reserves and strict nature reserves in Navarre.", "16. In the meantime, Counsel for the State and the government of the Autonomous Community of Navarre had appealed on points of law against the Audiencia Nacional's judgment of 29 September 1995. In a judgment of 14 July 1997, the Supreme Court definitively cancelled the dam project in so far as it concerned the 500-metre protection zones around nature reserves RN 9, 10 and 11. As a result of the judgment, the size of the planned dam, and thus of the area to be flooded, was reduced, so that the village of Itoiz, where the applicants' immovable property was located, was saved from flooding.", "17. In application of the Supreme Court's judgment, by a decision of 4 September 1997, the Audiencia Nacional declared final the interim enforcement measures ordered on 6 March 1996 concerning the prohibition on filling the reservoir and other related work. Before ruling on the question of the possible suspension of construction work on a dyke, the Audiencia Nacional invited the parties to appear before it so that they could submit observations on the consequences of the new Autonomous Community law of 1996, particularly with regard to the protection zones around all the nature reserves provided for in that law, and on the impact of the maximum flood levels on the protection zones of the reserves to which the cancelled project had referred.", "18. The central State authorities and the Navarre Autonomous Community's government argued before the Audiencia Nacional that it had become legally impossible to enforce the Supreme Court's judgment of 14 July 1997, in so far as the Autonomous Community law of 1996 had removed protection-zone status from the area within the nature reserves that was due be flooded. Accordingly, taking that legislative amendment into account, it had become possible to carry out the public-works schemes planned within those protection zones.", "19. The applicant association contested the authorities' argument, claiming that the Autonomous Community law of 1996 was inapplicable in the instant case, since it had been enacted following the administrative decisions in the proceedings in issue and subsequent to the Audiencia Nacional's judgment and the two interim enforcement orders. In the alternative, the applicant association requested that certain provisions in the Autonomous Community law be referred to the Constitutional Court for a preliminary ruling on their constitutionality, particularly those authorising the removal of protection-zone status from the three nature reserves in the area to be flooded, which, in the applicant association's submission, would allow the work to be completed and make the reservoir cover the area specified in the original plans.", "20. By a decision of 1 December 1997, the Audiencia Nacional asked the Constitutional Court to rule on the preliminary question submitted by the applicant association.\nBy a decision of 21 May 1998, the Constitutional Court declared the application inadmissible on account of certain errors in its presentation which could nonetheless be corrected.", "21. In order to rectify the above-mentioned errors, the Audiencia Nacional summoned the parties on 28 May 1998 so that it could hear their submissions on certain aspects of the Autonomous Community law whose constitutionality had been challenged before the Constitutional Court, and on the constitutionality of section 18(3) (A.1.) and (B) of that law. The applicant association submitted its observations on 10 June 1998.\n By a decision of 17 June 1998, the Audiencia Nacional again asked the Constitutional Court to rule on the preliminary question as to constitutionality and extended the question to include a new point raised by the applicant association, namely section 18(3) (B) (B.1.) of the Autonomous Community law.", "22. By a decision of 21 July 1998, the Constitutional Court declared the issues raised in the preliminary question admissible. Under section 37(2) of the Judicature Act, it gave notice of the questions to the Chamber of Deputies, the Senate, the government and parliament of Navarre and the Spanish government, and invited them to file their observations within fifteen days. The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General's observations were submitted on 29 September 1998. The Speaker of the Chamber of Deputies indicated that the Chamber would present no observations. The Speaker of the Senate asked that the Senate be considered a party to the proceedings and offered its assistance. On 1 March 2000 the Audiencia Nacional forwarded to the Constitutional Court the written pleadings submitted by the applicant association during the proceedings before it. These pleadings, dated 29 September 1997, 10 June 1998 and 28 February 2000, were formally included in the case file at the Constitutional Court.", "23. In a judgment of 14 March 2000, the Constitutional Court, sitting as a full court, held that the impugned provisions of the Autonomous Community law of 1996 were compatible with the Constitution. It observed at the outset that enforcement of the Supreme Court's judgment of 14 July 1997, delivered in accordance with Navarre Autonomous Community Law no. 6/1987, had become impossible since the entry into force of the Autonomous Community law of 1996, in that the cancelled project complied with the new law.", "24. Examining the purpose of the Autonomous Community law of 1996, the Constitutional Court held as follows:\n“... Its purpose is to establish a general system for environmental protection of the natural sites in the Autonomous Community of Navarre. Accordingly, this protection system [was] applicable ... to the nature reserves already identified in the previous Autonomous Community law, even though the essential difference between the legal rules established by those two laws lies in the arrangements regarding the peripheral protection zones.”", "25. The Constitutional Court held, firstly, that this was not to be seen as a legislative solution for the particular problem of the three peripheral zones around the three nature reserves affected by construction of the Itoiz dam and, secondly, that statements and parliamentary initiatives by certain politicians which, in the opinion of the Audiencia Nacional, demonstrated that the main aim of the Autonomous Community law of 1996 was to prevent execution of the Supreme Court's judgment, were immaterial in assessing whether there had been a violation of the principle of lawfulness. The Constitutional Court also ruled that, given the significance of the question raised by the Itoiz dam's construction, which could not simply be ignored, it was justifiable that the explanatory memorandum accompanying the Autonomous Community law of 1996 specifically mentioned the aim and means of environmental protection in the peripheral protection zones around the three above-mentioned nature reserves.", "26. As to the alleged infringement of the right to a fair hearing, in so far as the Autonomous Community law of 1996 now prevented execution of the Supreme Court's judgment partly cancelling the Itoiz dam project, the Constitutional Court considered that the fact that in the meantime a new law had been passed amending the legal system applicable to the peripheral protection zones and replacing the previous law on the basis of which the project had been declared partly void was not in itself incompatible with the right to execution of judicial decisions as enshrined in Article 24 of the Constitution.", "27. Referring to the case-law of the European Court of Human Rights and, in particular, to the judgments in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301-B) and Papageorgiou v. Greece (22 October 1997, Reports of Judgments and Decisions 1997-VI), the Constitutional Court examined whether the impossibility of executing the Supreme Court's judgment as a consequence of the enactment of the Autonomous Community law of 1996 was justified in view of the values and assets protected by the Constitution. Having held that environmental protection was enshrined in the Constitution, the Constitutional Court examined whether the prejudice arising from the failure to execute the judgment in issue was proportionate to the protected or disputed interests or was on the other hand purposeless, excessive or the cause of a clear imbalance between the interests at stake. It found that both the Supreme Court's judgment of 14 July 1997 and the new Autonomous Community law of 1996 were intended to guarantee the existence of a peripheral protection zone around the three nature reserves affected by the dam's construction. The Constitutional Court further noted that the system of peripheral protection zones introduced by this new law had not in itself been considered arbitrary in the Audiencia Nacional's decision; nor had the zones' new boundaries been held responsible for the serious deterioration of the environment. Accordingly, it held that the balance of general interests had been respected and that there was no clear lack of proportion between the conflicting interests. Consequently, the impugned provisions could not be held to be contrary to Article 24 § 1 of the Constitution.", "28. As to the argument that the new legal rules governing the peripheral protection zones around the nature reserves appeared in a law rather than in regulations, as had previously been the case, and that this deprived the applicants of the possibility of overseeing the administration's actions through an administrative appeal or enforcement proceedings, the Constitutional Court noted that there was no legal provision requiring that certain subjects be dealt with by regulations. It added that the new law did not amount to ad causam legislation, being general in form and in substance, and pointed out that laws could be challenged before the Constitutional Court through the remedy provided for in Article 163 of the Constitution.\nAccordingly, the Constitutional Court dismissed the application for a preliminary ruling. The judgment was published in the Official Gazette on 14 April 2000." ]

[]

[ "8. The applicant was born in 1937 and lives in Michalovce.", "9. On 28 September 1993 and on 15 March 1994 respectively the Regional Social Security Office in Michalovce issued two decisions ordering the applicant to pay a total of 12,512 Slovakian korunas. The sum included social insurance fees which the applicant had failed to pay and an administrative fine. The decisions became final on 18 October 1993 and on 6 April 1994 respectively.", "10. On 14 October 1994 the Regional Social Security Office in Michalovce brought judicial enforcement proceedings against the applicant under the relevant provisions of the Code of Civil Procedure.", "11. On 18 November 1994 the Michalovce District Court ordered the enforcement of the sum due by selling the applicant's movable property. The decision was served on the applicant on 23 September 1996. On 7 October 1996 the applicant appealed.", "12. On 1 August 1996, the Michalovce branch office of the Social Security Administration requested the Michalovce District Court that the sum due be enforced by an enforcement officer, that is pursuant to Act No. 233/1995. In a letter dated 7 August 1996 and delivered on 12 August 1996 a judge informed the Social Security Administration that the District Court approved of the request.", "13. On 6 February 1997 the Michalovce branch office of the Social Security Administration requested an enforcement officer to enforce the applicant's debt pursuant to Act No. 233/1995. On 10 March 1997 the Michalovce District Court authorised the enforcement officer to carry out the enforcement in accordance with Act No. 233/1995.", "14. On 13 and 26 June 1997 the applicant filed objections to the enforcement. On 28 September 1998 the Michalovce District Court dismissed the applicant's objections to the enforcement.", "15. On 25 October 2000 the Michalovce District Court dismissed the applicant's above appeal of 7 October 1996 which it had qualified as a request for the enforcement to be discontinued. On 21 and 30 November 2000 the applicant appealed.", "16. According to the documents submitted by the applicant, the sum due was enforced by partial payments deducted from his old-age pension between February 1999 and August 2001.", "17. On 15 October 2001 the Košice Regional Court upheld the District Court's decision of 25 October 2000." ]

[ 3 ]

[ "10. The applicant was born in 1927 and lives in Nicosia.", "11. From the establishment of the Republic of Cyprus in 1960 and up to his dismissal from the public service, the applicant worked as Governor of the Department of Co-operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him retrospectively by reason of the fact that on 8 April 1981 he had been found guilty by the Nicosia District Court of stealing, breach of trust and abuse of authority. He had been sentenced to eighteen months' imprisonment. His appeal against both conviction and sentence had been dismissed by the Supreme Court on 16 October 1981.", "12. The Public Service Commission held that the applicant had managed the resources of the above-mentioned department as if it were his private property and spent them for purposes other than those of the department. The disciplinary sanction of dismissal also resulted in the forfeiture of the applicant's retirement benefits, including his pension, in accordance with section 79(7) of the Public Service Law (no. 33/67), from the date of his conviction by the District Court. In Cyprus, pensions are part of the overall employment contract offered to public servants. The pension scheme is non-contributory.", "13. On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant's main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12 § 2 of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act.", "14. By a judgment delivered on 12 June 1991, the Supreme Court rejected the applicant's application and confirmed the Public Service Commission's decision. In particular, the Supreme Court held:\n“It has been established by case-law that the Supreme Court does not have the authority to intervene on the subject of the sanction imposed unless it is evident that the disciplinary body has exceeded the limits of its discretionary power.\nThe Supreme Court's powers in such issues bear no resemblance to its powers while exercising its jurisdiction over the appeal of the district courts' judgments, on which it has the authority to intervene when the decision on the sentence is either incorrect from the outset, evidently excessive or insufficient.\nThe assessment of the severity of such a disciplinary sanction is outside the limits of this Court's authority (see, among others, Cristofides v. CY.T.A., (1979) 3 C.L.R. 99, and Papacleovoulou v. the Republic, (1982) 3 C.L.R. 187, 196-197).\nIt has been repeatedly established ... in a series of judgments that an administrative court, during the judgment of an appeal against the imposition of a disciplinary sanction, does not as a rule have the authority to intervene in the essential judgment and assessment of the facts by the competent body. ...\nSection 79(1) of Law no 33/67 enumerates a limited number of disciplinary sanctions that can be imposed under the provisions of the same Law. These sanctions include the sanction of dismissal, which, according to section 79(7) of Law no 33/67, results in the loss of all the entitlements upon discharge.\nHaving carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.\nThe judgment in Makrides v. the Republic, 2 R.S.C.C. 8, which the applicant's lawyer cited in order to support his submission that the provisions concerning the deprivation of an employee's pension rights are unconstitutional with respect to Article 23 §§ 1 and 2 of the Constitution, does not apply to the present case.\nThe submission by the applicant's lawyer that there is a contradiction with Article 28 of the Constitution remains unproved.”", "15. The Supreme Court stated that it could review neither the severity of the sanction imposed by a disciplinary body, save if the latter had exceeded the limits of its margin of appreciation, nor the manner in which the body had assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of retirement benefits being the normal consequence of the particular sanction imposed by the commission.", "16. On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as a court of appeal. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court sitting as a first-instance court that the loss of retirement benefits was not contrary to Article 23 §§ 1 and 2 of the Constitution.", "17. On 6 December 1996 the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997. Amended grounds 3 to 5 read as follows:\n“(3) The finding of the first-instance court that the sanction that was imposed on the applicant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence committed and/or that the Public Service Commission took fully into account the mitigating circumstances during the consideration of the sanction and/or did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous.\nAccording to Article 12 § 3 of the Constitution, the law cannot provide for a penalty that is disproportionate to the gravity of the offence. The above constitutional requirement introduces in Cyprus the principle of proportionality, according to which there must be a connection (reasonable relation) between the measure taken and the intended purpose; the measure is proportionate only if it is necessary in relation to the facts of the case.\nDespite the fact that during the assessment of the penalty the criminal court as well as the administrative body took into account and accepted a series of mitigating circumstances, and in particular that the applicant did not obtain any material gain, the sanction which was finally imposed on him is the heaviest sanction provided by law.\nThis is a sufficiently serious breach of the principle of proportionality, which was introduced by Article 12 § 3 of the Constitution and is applied in Cypriot jurisprudence and the practice of law itself, particularly in the interpretation of Article 23 of the Constitution. It also constitutes an act beyond the extreme limits that define the framework of actions of the administration when exercising its discretionary power.\n(4) The finding of the court that the Public Service Commission imposed the sanction of dismissal on the applicant correctly and lawfully and without exceeding the limits of its discretion is erroneous.\nThe principle of a sanction that is not disproportionate to the gravity of the offence and the principle of proportionality during the assessment of the sanction in administrative proceedings certainly define the framework and/or limits of the administrative authority of the administrative body.\nThe fact that the administrative body adopted and/or took into account the serious mitigating circumstances in favour of the applicant during the assessment of the sanction, but did not avoid imposing the heaviest sanction provided for by law, is an act that lies beyond the extreme limits of the exercise of its discretionary power.\n(5) The finding of the first-instance court that the loss of the applicant's pension rights is not contrary to Article 23 §§ 1 and 2 of the Constitution is erroneous.”", "18. In his opening address on 14 September 1998, the applicant's lawyer, Mr Efstathiou, stated that he would only deal with the third and fourth grounds of the appeal. In particular, according to the verbatim record of the hearing on that date, the following exchange took place between the applicant's lawyer and the Supreme Court:\n“Mr Efstathiou: ...\nI will be very brief. Essentially, I will only deal with grounds 3 and 4 of the appeal.\nJudge Chrysostomis: Do you withdraw the others?\nMr Efstathiou: Indeed, I do.\nThe Court: The remaining grounds of appeal are dismissed and we shall hear your position on grounds 3 and 4.\nMr Efstathiou: I will not deal with these grounds, because ground 1 is badly worded, while ground 2 is covered by grounds 3 and 4.\n...\nThe penalties that can be imposed by the court are listed in section 79(1) of Law no. 33/67. These penalties go from (a) to (j), which means that ten different disciplinary sanctions can be imposed according to the gravity of the offence, each one more severe than the previous one, while the maximum sanction is dismissal. Section 79(7) states that dismissal entails the loss of all entitlements upon discharge.\nI shall deal with the amended grounds 3 and 4, and thus ground 5 emanating from them.\nJudge Chrysostomis: Will you deal with grounds 3 and 4 as a whole?\nMr Efstathiou: As a whole and the consequences thereof.\n...\nWe cannot, therefore, and with all due respect to the court that delivered the judgment, accept that this Court cannot, in fact, intervene in the decisions of the Public Service Commission, when these deal with issues of sanction. It would, indeed, be extraordinary if this Court were competent to address the decisions of criminal courts, but not competent to address and examine whether the commission, which is a disciplinary court, exceeded the limits of its discretionary power. Not only would this be completely alien to the organisation and construction of the jurisprudence, it would also be extraordinary, because a court could intervene – and I am not saying that it would intervene on appeal, no it is not that. Given that the Court intervenes, why shouldn't it – even more so – intervene there?\n...\nJudge Chrysostomis: On the issue of disciplinary sanctions.\nMr Efstathiou:\n...\nWhen you examine the case, I plead with you to take into account the fact that the dismissal of the appellant resulted in forfeiture of his pension rights. This means that the consequence of his dismissal entailed the additional misfortune of the loss of his pension rights, which were a result of twenty years of contributions to the State. This service of twenty years and more, I submit with respect, creates for the appellant parallel rights to receive a pension, autonomous rights which are based on a legal framework that is independent and autonomous in comparison to other legislative regulations. The creation of public servants' pension funds is regulated separately and is created through deducting part of their emoluments. Thus, by imposing this sanction on the appellant, other parallel and autonomous rights were infringed, which should not escape the attention of the Supreme Court of Cyprus. These are acquired rights to which an employee is entitled to for every month of offering his service to the State, in parallel with the right to acquire the payment of a salary. For every month of work, he receives his salary and also has another entitlement, which is preserved in order to be given to him when he is discharged, and which at the same time constitutes an autonomous right. This is the right every employee has to a pension as part of his emoluments. He has another benefit, secret, hidden, but 'activated' from the day he leaves the service.\nConsequently, the imposed sanction of dismissal has the following direct consequences, which are all contrary to constitutional rights and the fundamental principles of law and jurisprudence. [Firstly, it] renders the sanction particularly onerous and reinforces the argument that it was disproportionate to the gravity of the offence, which apart from constituting an abuse of discretionary power, violates Article 12 § 3 of the Constitution, which states that a penalty shall not be disproportionate to the gravity of the offence.\nSecondly, it denies the applicant's right of property by which he is entitled to a pension for which he was has contributed part of his salary. The new Law no. 1/90 contains a revised section 79, which represents a somewhat incomplete regulation of this issue. Namely, when a public servant is dismissed, a pension is paid to his dependants as though he had died. This is unpleasant, but represents a solution that was found and agreed upon at the time.\n...”\nJudgment was reserved.", "19. In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. The appeal was heard for a second time on 9 July 1999. The verbatim record of the hearing reads as follows:\n“Mr Efstathiou: Your Honours, the facts of this case are, in simple terms, as follows:\n...\nI will deal with grounds 3 and 4 of the appeal and grounds 5 and 3 emanating from them. I will deal with all of them ...\nMs Koursoumba: In the previous court session, grounds 1, 2 and 5 were withdrawn.\nMr Efstathiou: Indeed, as I have said.\n...\nJudge Konstantinidis: For the sake of order, I see in the transcript of the previous hearing that you have withdrawn all the grounds of appeal, apart from 3 and 4.\nMr Efstathiou: Indeed.\n...\nIn closing, we conclude that the appellant's twenty and more years of service have brought about pension rights – independent rights that are based on a legal structure which is independent and autonomous compared to other legislative regulations. Everyone contributes to the creation of the capital of the pension; the government also contributes; it is part of the employee's emolument. This sanction ... according to section 79(7) [entails the loss of all retirement benefits].\nTherefore, the imposition of the sanction of dismissal, the direct consequence of which is the forfeiture of pension rights, has legal consequences that violate constitutional principles, essential rights and the case-law. The sanction is therefore particularly onerous.\nJudge Konstantinidis: You also clarified it last time, but we must bring up the subject once more. We must realise that there is no issue of constitutionality of the law itself but that the subject is being discussed within the framework of the position you are advocating, that it was not reasonably permissible to impose such a sanction.\nMr Efstathiou: Because this is also a consequence of that. It is so. The imposition of the sanction exceeded the limits of the exercise of discretionary power and violated the constitutional principle of Article 12 § 3 that the penalty should not be disproportionate to the gravity of the offence. Thus, the principles of law, the principles of proportionality, the principles of not exceeding the extreme limits of discretionary power and of respect for the appellant's vested rights have been violated. I have told you all this before.”", "20. Judgment was delivered on 20 July 1999, dismissing the appeal. The Supreme Court held as follows:\n“...\nThe first-instance court held that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the bounds of its discretion. Also, it stated that the commission had considered the various mitigating circumstances in favour of the applicant before it reached a decision, and that its discretionary power did not concern the issue of the appellant's pension, but only the matter of the sanction. The forfeiture of the appellant's entitlements following discharge was, under the same Law, a consequence of the sanction imposed on him.\nIn the end, the appeal was limited to two grounds, which are stated in the amended notice of appeal and which are the following:\n'(1) The court's finding that the sanction imposed on the appellant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence and/or that the Public Service Commission did take the mitigating circumstances into account in their consideration of the sanction and/or that it did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous.\n(2) The court's finding that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the limits of its discretionary power is erroneous.'\nThe position of the appellant's lawyer is that the principles of law relevant to criminal proceedings are implemented analogously in disciplinary proceedings. Whilst the commission accepted the existence of mitigating circumstances in the case under examination, such as the appellant's long service in the Cypriot struggle for liberation and the Co-operative Movement, and the fact that there was no material gain for him personally, it nevertheless imposed the heaviest sanction on him, rather than a sanction of, for example, compulsory retirement, which would also have resulted in his removal from service. The appellant stated that the sanction of dismissal was excessively onerous and disproportionate to the gravity of the offence and claimed that the principle of proportionality had been infringed, and thus argued that the commission had exceeded the extreme limits of its margin of discretion. In clarifying this position, he stated that he did not request the Court to change the case-law and interfere with the sanction imposed, but to declare the decision null and void on the ground that it exceeded the extreme limits of the commission's margin of discretion.\nThe respondent's lawyer contended that the judgment of the first-instance court was just and challenged the claims of the appellant's lawyer by arguing that the Supreme Court does not have the authority to interfere in matters of sanction, unless the disciplinary body had clearly exceeded the extreme limits of its margin of discretion. She also stated that the assessment of the facts and the severity of the sanction were beyond the jurisdiction of the Supreme Court.\nWe concur with the opening address of the respondent's lawyer. In fact, it has been established, under Article 146 of the Constitution, that the Administrative Court is not competent, amongst other things, to determine the severity of a disciplinary sanction.\n...\nThe first-instance court, on examining the issue of the discretionary power of the commission, stated the following on page 9 of its judgment:\n'Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.'\nThis conclusion of the first-instance court is correct. The commission chose to impose the severest sanction. This decision was within its jurisdiction. It has not been demonstrated that the commission did not act within the extreme limits of its margin of discretion, either due to the fact that it acted irrationally or due to the fact that it acted in breach of the principles of good administration, the latter including the principle of proportionality, on which the appellant's lawyer has essentially based his case.\nThe fact that the Public Service Commission imposed the severest sanction provided for by the relevant law even though it had established the existence of mitigating circumstances does not demonstrate that it did not act within the extreme limits of its margin of discretion. Evidently, as shown by its decision, it deemed that, despite the existence of mitigating circumstances, the seriousness and the effects of the offence were such that it was justified in imposing the severest sanction provided for by law. This follows from the commission's decision, in which, while highlighting the seriousness of the offences, it also referred to parts of the decision of the criminal court. Below is a quote from the Public Service Commission's decision:\n'The Commission has no other choice but to consider the offences, on the grounds of which the public servant in question was sentenced to prison, as being of the gravest nature. As the judge who tried the case aptly said:\n “The one and only aim of his actions was to promote himself as a person who could easily solve all of the problems on the island due to the financial strength of the Co-operative Movement, which he claimed to have founded himself. I should, at this point, underline the fact that he was managing the resources of the Mutual Fund as though they were his private property. However, he had no right to use the Fund's resources for purposes other than those for which the Co-operative Institutions had entrusted him with significant sums of money.\n His bad faith is also evident, amongst other things, in the fact that he took great care to conceal the source of the funds whenever he made payments for purposes other than those for which he had been entrusted with the money. He viewed the Fund an inexhaustible source of resources that allowed him to be popular with those in positions of power as well as his friends.\n The fact that large sums of money were given away to charities does not exonerate the defendant from responsibility for his actions. Philanthropic acts using funds provided by others do not constitute charity at all, but are merely acts of exploitation and self-promotion.” '\nFollowing this and prior to reaching a decision on the sanction to be imposed, the commission also stated the following:\n'A high-ranking official who shows such disregard for his responsibilities and duties as in the present case and who, additionally, so openly violates the law and/or the regulations of service in order to promote himself as a benefactor of society places himself out of the public service.'\nFor all the above reasons, the appeal is dismissed with all expenses to be paid by the appellant.”" ]

[ 3 ]

[ "4. The applicant was born in 1965 and lives in the town of Pyatigorsk.", "5. On 28 October 1996 a fire broke out in the applicant's flat. The possessions of the applicant's family were destroyed and the applicant's daughter was severely injured.", "6. On 15 April 1997 (on 6 July 1998, according to the Government) the applicant and his wife brought a civil action for damages before the Pyatigorsk Town Court of the Stavropol Region against the local housing maintenance authority, the “Stavropol Tobacco Company” that rented the flat where the fire had begun, and Mr S., an employee of that company whose negligence during gas welding had apparently caused the fire.", "7. On 6 August 1998 the applicant and his wife requested the court to summon additional witnesses on their behalf. The hearing was adjourned until 24 August.", "8. On 24 August 1998 the Pyatigorsk Town Court stayed the proceedings in the applicant's action pending the completion of the criminal investigation against Mr S.", "9. On 18 September 2001 the criminal case against Mr S. was terminated because of an amnesty act. Mr S. disagreed with this decision and complained to the regional prosecutor's office.", "10. On unspecified dates in 1999 and 2000 Judge Ivleva of the Pyatigorsk Town Court confirmed to the applicant that the proceedings were still pending.", "11. According to the Government, on 26 February 2001 the proceedings in the applicant's case were resumed. On 28 February 2001 the applicant and his wife increased their claims to take account of their loss of earnings and medical expenses incurred in connection with the treatment of their injured child.", "12. On 15 March 2001 the court took statements by the parties and fixed a new hearing for 29 March after the applicant and his wife had left the courtroom.", "13. On 29 March 2001 the hearing was adjourned until 5 April as both parties failed to appear.", "14. On an unspecified date the applicant's lawyer complained to the Stavropol Regional Court about the excessive length of proceedings in the applicant's case. On 4 April 2001 the Stavropol Regional Court replied that “a regional court cannot interfere with the proceedings pending before [lower] courts of the region”.", "15. On 5 April 2001 the court stayed the proceedings and ordered an expert examination of the commercial value of lost possessions. After both parties refused to pay for the examination, on 19 October 2001 the proceedings were resumed.", "16. On 24 October 2001 the Pyatigorsk Town Court gave its judgment. It ordered the defendants to pay the applicant and his wife compensation for damage to their property and non-pecuniary damage to their daughter. The court dismissed the applicant's request concerning compensation for non-pecuniary damage sustained by the applicant and his wife and for their loss of earnings.", "17. On 16 November 2001 the applicant's lawyer appealed against the judgment. The defendant company also appealed.", "18. On 19 December 2001 the Stavropol Regional Court quashed the judgment of 24 October 2001 on procedural grounds and remitted the case for a new examination. On 3 January 2002 the case was assigned to a new judge.", "19. On 2 February 2002 the applicant's lawyer complained to the President of the Stavropol Regional Court that neither the applicant, nor himself had been given a copy of the judgment of 19 December 2001, which had allegedly impaired their ability to prepare their case before the first instance court.", "20. On 6 February 2002 the Pyatigorsk Town Court stayed the proceedings and ordered a third medical examination of the applicant's injured daughter. The applicant's lawyer submits that a copy of this decision has never been made available to him or to the applicant under various logistical pretexts (“the judge is too busy”; “there is no photocopying machine”; “the case-file is not bound”, etc.)", "21. On 27 May 2002 (on 27 June, according to the Government) the medical examination was completed.", "22. On 5 July 2002 (on 8 July, according to the Government) the Pyatigorsk Town Court resumed the proceedings and in the same hearing made a decision to stay the proceedings again and ordered a new forensic medico-social expert examination. The applicant submits that he objected to the examination; however, in the transcript of the hearing it was recorded that “the plaintiff leaves this matter for the court to decide”.", "23. On 14 October 2002 the examination was completed. On 21 October 2002 the proceedings were resumed.", "24. On 23 October 2002 the Pyatigorsk Town Court stayed the proceedings and on the defendants' motion ordered a new pyrotechnic expert examination.", "25. On 30 October 2003 the Pyatigorsk Town Court delivered a judgment in the applicant's favour. The defendant company lodged an appeal.", "26. On 14 January 2004 the Stavropol Regional Court, at the request of the applicant's representative, extended the time-limit for lodging an appeal.", "27. The appeal proceedings in the applicant's case are now pending.\nSeparate proceedings concerning compensation for damage", "28. On 31 August 2001 the applicant and his wife brought an action before the Pyatigorsk Town Court against the Federal Treasury of the Russian Federation for compensation for non-pecuniary damage resulting from unlawful court actions. The plaintiffs claimed that damage was caused by excessive delays in the examination of their case, the court's failure to properly prepare the case for examination, unjustified adjournments of the hearing and other procedural irregularities.", "29. On 13 September 2001 the Pyatigorsk Town Court disallowed the action citing the court's lack of territorial jurisdiction.", "30. On 17 October 2001 the Stavropol Regional Court upheld the decision of 13 September 2001. The court pointed out that the plaintiffs had failed to comply with the rules on territorial jurisdiction of courts, and they should have brought their action before a court in Moscow where the Federal Treasury was located.", "31. The applicant did not pursue these proceedings at that time because, on 24 October 2001, the Pyatigorsk Town Court gave its aforementioned judgment." ]

[ 3 ]

[ "8. The applicant was born in 1959 and is currently staying in a custodial clinic in the Netherlands.", "9. Between 1975 and 1995, the applicant was convicted nineteen times of theft, criminal damage, assault and aggravated assault. On 21 January 1997 the Arnhem Regional Court (arrondissementsrechtbank) convicted the applicant of assault and assault occasioning grievous bodily harm committed in 1996. Having found that at the time of the commission of the offence the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree, the Regional Court sentenced the applicant to fifteen months' imprisonment in combination with an order for his confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege).", "10. On 16 September 1997 the Arnhem Court of Appeal (gerechtshof) upheld the Regional Court's judgment of 21 January 1997.", "11. Although the applicant had initially filed an appeal in cassation with the Supreme Court (Hoge Raad) against the judgment of 16 September 1997, he withdrew this appeal on 5 February 1998 when, after having served his prison sentence, the TBS order took effect. However, he was not transferred to a custodial clinic but was held in pre‑placement detention in an ordinary remand centre (huis van bewaring).", "12. On 7 August 1998, the applicant filed an appeal with the Appeals Board (beroepscommissie) of the TBS Section of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing) against the apparently automatic prolongation by three months of the six-month period of pre‑placement detention referred to in Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden; hereinafter referred to as “the 1997 Act”). He submitted that this six-month period had expired, that he had not received written notification from the Minister of Justice that his pre‑placement detention would be extended by three months and, apparently, that the procedure for selection and placement in a custodial clinic in his case had not yet started.", "13. Between 11 September and 11 November 1998 the applicant stayed in the Dr. F.S. Meijers Institute for the purpose of selection and subsequent placement in a custodial clinic.", "14. On 5 November 1998 the applicant filed a further appeal with the Appeals Board against the second apparently automatic prolongation of his pre‑placement detention by three months. He requested the Appeals Board to suspend the second prolongation request.", "15. On 10 November 1998 the Minister of Justice filed written submissions with the Appeals Board in response to those filed by the applicant.", "16. On 11 November 1998 the President of the Appeals Board rejected the applicant's request to suspend the further execution of the Minister's decision of 2 November 1998 to prolong the applicant's pre‑placement detention in the remand centre by three months. Taking into account the fact that the applicant, at the time of the decision, had spent eight months awaiting placement in a custodial clinic and that, according to the medical report of 15 October 1998, there was no apparent urgent medical need for his placement in a custodial clinic, the President found no pressing interest which required the suspension of the Minister's decision.", "17. On 28 January 1999 the applicant filed an appeal against the third apparently automatic prolongation by three months of his pre‑placement detention. On 15 February 1999 the Minister informed the applicant that he could not yet be admitted to a custodial clinic and that his pre‑placement detention had been prolonged by a further period of three months, i.e. from 31 January to 30 April 1999.", "18. On 10 March 1999, after a hearing held on 19 January 1999, the Appeals Board gave its decision on the applicant's appeals against the first and second automatic prolongations of his pre‑placement detention. This decision, in so far as relevant, reads:\n“1.The challenged decisions\n'1.1 The Minister had not extended by 4 August 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ... , this failure is to be considered a decision to prolong this period. 1.2 The Minister had not extended by 2 November 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ..., this failure is to be considered a decision to prolong this period. ... 3.The facts\n... The appellant's TBS order took effect on 5 February 1998. Since then, he has spent a transitory period in the G. remand centre awaiting placement in a custodial clinic.\nBy letter of 2 September 1998 the Minister informed the appellant that he could not yet be placed in a custodial clinic and that the transitory period (passantentermijn) pending his placement in a custodial clinic had, for the time being, been ipso jure prolonged by three months from 4 August 1998 to 2 November 1998 ... On 16 October 1998 the appellant was heard by a penitentiary adviser.\nBy letter of 2 November 1998 the Minister informed the appellant that he still could not be placed in a custodial clinic and that his pre‑placement detention pending his admission to a custodial clinic was to be prolonged further from 2 November 1998 to 31 January 1999.\nThe appellant was admitted for selection purposes between 11 September 1998 and 11 November 1998 to the Dr F.S. Meijers Institute in Utrecht. He was selected for the custodial clinic X in Y.\nThe Utrecht District Psychiatric Service has provided a medical statement dated 15 October 1998 on the appellant's mental condition, which has been supplemented by a report of 16 October 1998. 4. The parties' submissions\n... The [applicant's] lawyer further considers, relying on the learned observation by a commentator on the [Bizzotto v. Greece] judgment of the European Court of Human Rights of 15 November 1996, Netherlands Law Reports (Nederlandse Jurisprudentie) 1998, no. 203, that there is already a violation of Article 5 of the Convention when the six-month delay is exceeded. ...\n[The Minister], as to the [applicant's] reliance on Article 5 of the Convention, points out that the TBS order serves in the first place for the protection of society and, in the second place, for the treatment of the person concerned. According to the Supreme Court's case-law, the execution of a TBS order in a remand centre is not an unlawful deprivation of liberty. Where a reproach can be made of the fact that the 'treatment aspect' is lacking, liability for damage arises. If an appeal is declared well-founded by the Appeals Board, the 'treatment aspect' is also lacking and imputable as from the relevant expiry date. 5. The assessment\n... 5.2.1 The following must be first stated in assessing the appeal. On the basis of the history of the enactment of Article 12 of the [1997] Act ..., it must be assumed that it has been the intention of the legislature that a lack of capacity in the custodial clinics may in principle give the Minister reason to prolong by three months, as often as necessary, the period of six months set out in the first paragraph of this provision within which a person subject to a TBS order must be placed in a custodial clinic. A decision by the Minister to prolong this period on grounds of lack of capacity does not, therefore, constitute an automatic ground for declaring the appeal well-founded. ... 5.2.3 ... in examining appeals filed by persons subject to a TBS order against decisions of the Minister to prolong the transitory period, the Appeals Board must at least have at its disposal information to be supplied by or on behalf of the Minister in relation to:\n– the available capacity or the lack of capacity in custodial clinics at the time of taking the decision to prolong the transitory period, as well as a prognosis on this for the three months' period following the decision;\n– an indication of the average duration of transitory stays in remand centres of persons subject to a TBS order at the time when the decision to prolong the transitory period was taken;\n– the pro justitia report in relation to the mental condition of the person concerned who is subject to a TBS order, and a statement by a doctor on the question whether the person concerned, in view of his mental condition, is able to stay any longer, on a transitory basis, in a remand centre. 5.2.4 The Minister is obliged, prior to the expiry of the transitory period referred to in Article 12 of the [1997] Act ..., to take a decision on the prolongation of this period and, in doing so, to comply with the procedural regulations set out in Article 53 § 2 (a) of the [1997] Act ... – the obligation to hear – and Article 54 § 2 of the [1997] Act ... – the obligation to inform. These regulations are of essential importance for the legal position of the person subject to a TBS order and the Minister is therefore obliged to comply with these regulations in the decision-making process concerning the prolongation of the transitory period. ... 5.3 The argument based on Article 5 of the Convention fails. The detention of a person subject to a TBS order in a remand centre is, after all, based on the judicial decision in which the TBS order has been imposed, whereas Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) provides that 'remand centres are intended for the accommodation of all others lawfully deprived of their liberty by a judicial decision ... for as long as their admission to another suitable place is not possible'. 5.4.1 In so far as the appeal is directed against the prolongation of the transitory period for placement from 4 August 1998 until 2 November 1998, the Appeals Board considers as follows: 5.4.2 It has appeared from the examination of the present case that the Minister did not, prior to the expiry of the delay for placement, take a decision to prolong that delay. Nor has the appellant been heard on this subject in a timely manner. The Minister's reliance on the exception contained in Article 53 § 4 (a) of the [1997] Act ..., as regards refraining from hearing requests of an urgent nature, fails. This provision is not applicable as in the present case there was no sudden event requiring an immediate measure and thus no opportunity to hear the person concerned.\nThe Appeals Board is of the opinion that it follows ... that the appeal is well‑founded and that the ... Minister's [implied] decision to prolong the transitory period must be quashed on formal grounds. 5.4.3 The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister's conduct referred to in 5.4.2. The Appeals Board fixes this compensation, having heard the view of the Minister, at 100 Netherlands guilders (NLG). 5.4.4 As the Minister, regarding the prolongation at issue, has not sent separate written notification to the appellant, but did inform the appellant, by written notification of 2 November 1998, of the further prolongation of the transitory period after he had been heard on that matter, the Appeals Board will not order the Minister to take a new decision in respect of the period referred to in 1.1. but will examine whether there are also material grounds for quashing the ... decision. Further reference is made to the considerations set out in 5.6. 5.5.1 In so far as the appeal is directed against the prolongation of the transitory period for placement from 2 November 1998 until 30 January 1999, the Appeals Board considers as follows: 5.5.2 It has appeared from the examination of the present case that the Minister did not, prior to the expiry of the delay for placement, take a decision to prolong that delay. The Appeals Board is of the opinion that it follows ... that the appeal is well‑founded and that the ... Minister's decision to prolong the transitory period must be quashed on this formal ground. 5.5.3 The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister's conduct referred to in 5.5.2. The Appeals Board fixes this compensation, having heard the view of the Minister, at NLG 100. 5.6 It has been sufficiently established from the examination of the present case that, as a result of a lack of capacity, the appellant has still not been placed in a custodial clinic. It has also been sufficiently established that the Minister, in his decision on this matter, has not deviated from his policy to determine the order of placement in a custodial clinic chronologically according to the date on which the TBS orders in respect of the appellant and other [like] persons ... took effect. 5.7 The total duration of the appellant's stay in a remand centre [awaiting placement in a custodial clinic] ... has not yet been so long that these decisions to prolong the transitory stay, balancing all relevant interests, must be regarded as unreasonable or inequitable. 5.8 It appears from the medical statement of the Utrecht District Psychiatric Service of 16 October 1998 that the appellant's mental condition at that moment was such that a further stay in the remand centre should be regarded as irresponsible. Although the Appeals Board considers it highly desirable that the Minister, as regards subsequent prolongation decisions, should submit on each occasion updated medical reports, it finds, in respect of the present appeals, that the medical report drawn up shortly before the second prolongation suffices. From the report on the selection examination in the period between 11 September 1998 and 11 November 1998 (falling partly within both of the prolongation periods challenged), it does not appear that the detention was unsuitable during the period of admission to the Dr F.S. Meijers Institute. 5.9 The Appeals Board is of the opinion, having regard to the above considerations, that the decisions challenged are not in violation of the substance of the [1997] Act ..., and that the period within which the appellant should be placed in a custodial clinic had to be prolonged from 4 August 1998 to 2 November 1998 and from 2 November 1998 to 31 January 1999. 5.10 As the decisions challenged must be quashed on formal grounds, the Appeals Board rules, pursuant to Article 66 § 3 (b) in conjunction with Article 69 § 5 of the [1997] Act ..., that its decision in respect of the prolongations of the transitory period should replace those which were challenged. ...”", "19. No further appeal lay against this decision.", "20. On 22 April 1999 the Minister of Justice decided to prolong the applicant's pre‑placement detention by a further period of three months as from 1 May 1999. The applicant filed an appeal against this decision on 4 May 1999 with the Appeals Board.", "21. The applicant was admitted to a custodial clinic on 17 May 1999.", "22. On 15 June 1999, following a hearing held on 19 April 1999, the Appeals Tribunal quashed the Minister's decision to prolong the applicant's pre‑placement detention from 31 January to 30 April 1999 on formal grounds, namely the Minister's failure to comply with the procedural regulations under Article 53 § 2 (a) and Article 54 § 2 of the 1997 Act. Finding also that the total duration of the applicant's pre‑placement detention could not be regarded as having been so long that, balancing all relevant interests, it should be considered unreasonable or inequitable, and having found no indication that the applicant's mental condition required a priority placement in a custodial clinic, the Appeals Board did not find that the impugned decision should be quashed for being in material breach of the 1997 Act. It decided that the applicant's pre‑placement detention should be prolonged until 30 April 1999. The Appeals Tribunal decided to replace the Minister's decision with its own decision to prolong the applicant's pre‑placement from 31 January to 30 April 1999. It awarded the applicant compensation in an amount of NLG 100 in respect of the procedural shortcomings in the Minister's decision.", "23. In so far as the applicant had claimed that his pre‑placement detention was contrary to Article 5 of the Convention, the Appeals Board held:\n“The argument based on Article 5 of the Convention fails. After all, the pre‑placement detention in a remand centre of a person subject to a TBS order is based on the judicial decision in which the TBS order has been imposed whereas, according to Article 9 § 1 (b) of the 1951 Prisons Act, as in force until 1 January 1999, casu quo Article 9 § 2 (f) of the [new 1999] Prisons Act as in force as from that date, persons subject to a TBS order can be held in a remand centre for as long as their admission to a place suitable for them is not possible. Under Article 12 of the 1997 Act, the duration of such a stay in a remand centre can, after six months, be prolonged by periods of three months.”", "24. On 11 November 1999, after a hearing held on 17 September 1999, the Appeals Board ruled on the applicant's appeal of 4 May 1999. Having found it established that, contrary to Article 53 § 2 of the 1997 Act, the applicant's view had not been heard prior to the taking of the decision, the Appeals Board considered that, on this procedural ground alone, the impugned decision had to be quashed. In addition, it found that, also on material grounds, the decision of 22 April 1999 had to be quashed as at the expiry of that prolongation decision the applicant would have spent more than fifteen months in pre‑placement detention. A delay of more than fifteen months, balancing all relevant interests, should be regarded as unreasonable and inequitable. It awarded the applicant compensation of NLG 100 on account of the procedural shortcomings and NLG 1,250 for the sixteen days he had spent in pre‑placement detention on the basis of the decision of 22 April 1999.", "25. On 18 February 2000 the Arnhem Regional Court (arrondissementsrechtbank) extended the applicant's TBS order by two years. An appeal by the applicant against this decision was rejected by the Arnhem Court of Appeal on 13 November 2000. No further appeal lay against this decision." ]

[ 2 ]

[ "9. The applicant was born in 1956 and lives in Eindhoven.", "10. On 23 June 1994 the ’s-Hertogenbosch Regional Court (arrondissementsrechtbank) convicted the applicant of participation in robbery with violence resulting in grievous bodily harm and sentenced him to fifteen months’ imprisonment, with deduction of the time spent in pre-trial detention. In addition, having found that the applicant was suffering from a mental disorder and was dangerous, the Regional Court further ordered the applicant’s confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege).", "11. On 10 October 1994, when the applicant had served his prison sentence, the TBS order took effect. However, the applicant was not transferred to a custodial clinic as there were no places available. He therefore remained in pre-placement detention in the ’s‑Hertogenbosch ordinary remand centre.", "12. In order to expedite his admission to a custodial clinic, the applicant instituted summary civil proceedings (kort geding) against the Netherlands State. He withdrew these summary proceedings after his transfer to a custodial clinic in Nijmegen on 28 December 1995.", "13. On 8 February 1996 the applicant took civil proceedings against the Netherlands State before the Hague Regional Court, claiming compensation in tort (onrechtmatige daad) in an amount of 29,200 Netherlands guilders (NLG), i.e. NLG 50 for each day during the first ten months of his pre-placement detention after 10 October 1994 pending transfer to a custodial clinic and NLG 100 for each subsequent day until 28 December 1995.", "14. In its judgment of 24 July 1996 the Regional Court held that a delay of six months was acceptable for a transfer to a custodial clinic and that the Netherlands State had only acted unlawfully in so far as this delay had exceeded six months. It awarded the applicant compensation in the amount of NLG 50 for each day spent in pre-placement detention between 6 and 10 months after 10 October 1994 and NLG 100 for each subsequent day until 28 December 1995, i.e. a total amount of NLG 20,100. It rejected the applicant’s claim for the remainder.", "15. The Netherlands State filed an appeal with the Hague Court of Appeal (Gerechtshof). The applicant filed a cross-appeal (incidenteel beroep) in which he reduced his claim for damages to NLG 24,900 in that he no longer sought compensation for the first three months of his pre-placement detention, i.e. the period between 10 October 1994 and 28 December 1995.", "16. In its judgment of 20 March 1997 the Court of Appeal rejected the principal appeal filed by the Netherlands State. It did, however, quash the judgment of 24 July 1996 on the basis of the cross-appeal filed by the applicant in so far as the applicant’s claims in excess of NLG 20,100 had been dismissed in this judgment. It ordered the Netherlands State to pay a further amount of NLG 4,800 to the applicant. The Netherlands State filed an appeal in cassation with the Supreme Court (Hoge Raad).", "17. On 5 June 1998 the Supreme Court quashed the judgment of 20 March 1997 and referred the case back to the Amsterdam Court of Appeal. It held, inter alia:\n“3.3 Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) reads:\n‘Remand centres are intended: (b) for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other suitable place for their accommodation or for as long as admission to another suitable place is not possible.’\nThe point of departure for the examination ... must therefore be that the [applicant’s] continued stay in the remand centre ‘for as long as admission to another suitable place is not possible’ is in principle lawful as being based on the law. Moreover, the parties and the Court of Appeal have taken this approach.\nHowever, where it can no longer reasonably be held that the failure to admit a person to a custodial clinic is justified by the circumstances, the continuation of detention in the remand centre must be regarded as unlawful (Supreme Court, 28 June 1963, Nederlandse Jurisprudentie 1963, 480). Also, the parties and the Court of Appeal have taken this as their point of departure. Part 1 [of the cassation complaint] thus lacks a factual basis. 3.4.1 The Court of Appeal, faced with the question from what moment the situation referred to in the last paragraph of 3.3 arises, has held that ‘apart from exceptional circumstances, the stay of a [person awaiting admission to a custodial clinic] should not exceed three months’ and, further, that, in the absence of exceptional circumstances, the [applicant’s] stay in the ’s-Hertogenbosch remand centre was unlawful after a period of three months had elapsed. Parts 2-9 [of the cassation complaint] are directed against these findings and the reasons given by the Court of Appeal. 3.4.2 In the examination of these parts, it must be stated in the first place that the impugned findings of the Court of Appeal concern a situation prior to the entry into force of Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden). ... this provision entered into force on 11 July 1997. The Supreme Court’s considerations hereafter will thus address the legal situation until 11 July 1997. 3.4.3 In 1963 the Minister of Justice gave an undertaking to the Upper House of Parliament that the admission to a custodial clinic of persons in respect of whom a TBS order had been given and in respect of whom a custodial clinic had been selected would be carried out within eight weeks after the TBS order had taken effect. ...\nIn a letter to the Lower House of Parliament of 3 June 1986, the State Secretary of Justice ... stated that she was unable to maintain this undertaking, given the growth in waiting lists.\nArticle 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order reads:\n‘1. The admission [to a custodial clinic] of a person in respect of whom a TBS order has been issued takes place within a period of six months after the date on which the TBS order has become effective. 2. When Our Minister, taking account of the requirements mentioned in Article 11 § 2 [of this Act], considers that admission is not possible within the period set out in the first paragraph, he may extend this period by three months each time. 3. A decision to extend within the meaning of the second paragraph shall be equated to a refusal to decide within the period mentioned in the first paragraph.’\nIn the Explanatory Memorandum to this Article it is stated, inter alia:\n‘... in the proposed first paragraph of Article 12 a time-limit of six months is set out within which the admission must in general be carried out. This time-limit has been chosen on the basis of the fact that, in addition to the previously accepted guideline for a maximum duration for a TBS admission of twelve weeks, the time needed for the selection examination, the consultation with the envisaged institution of admission and the decision-making at the Ministry must also be taken into consideration.\nIn 1986 my predecessor abandoned the above-mentioned time-limit of twelve weeks since, as a result of the lack of capacity of the custodial clinics including the [forensic psychiatric observation] Dr F.S. Meijers Institute, this time-limit could no longer be observed.\nIt cannot be expected for a foreseeable time that all persons in respect of whom a TBS order has been issued can be admitted to the custodial clinic selected for them within the stated time-limit. The proposed second paragraph of Article 12 therefore opens the possibility of an extension of the six-month period by three months each time.’ 3.4.4 The following must be derived from the statements of the Minister and the State Secretary of Justice. After 1963 the Government apparently assumed that the undertaking made in 1963 concerned the time needed for selection and admission of persons awaiting admission to a custodial clinic and that this period would not exceed a maximum of twelve weeks. The State Secretary ‘abandoned’ this undertaking in 1986 on grounds of ‘the lack of capacity of the custodial clinics, including the Dr F.S. Meijers Institute’. It follows from this that, where the above-mentioned lack of capacity is not taken into consideration, the point of departure is that the procedure of selection and admission of persons subject to a TBS order does not, in principle, need to take more than three months. The consequences of this lack of capacity and other circumstances that might influence the delay in admission will be addressed in considerations nos. 3.4.5 – 3.4.10.\nIn the light of the presupposed standard in 3.3 it cannot be said, however, that the mere exceeding of the three-month time-limit in itself renders a lawful detention in a remand centre unlawful under Article 9 § 1 (b) of the [1951] Prisons Act. This situation only arises where it can no longer reasonably be held that the failure to admit a person to a custodial clinic remains to be justified by the circumstances. Only then can it be said that, although there is a legal basis for the continued detention in a remand centre of a person subject to a TBS order, the further duration of that detention is contrary to what is fitting conduct in society according to unwritten (customary) law (in strijd is met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt). 3.4.5 For cases like the present one, this unwritten law is as follows.\nIt must be stated first that the TBS order in cases like the present one starts to run from the date of early release and that the Minister of Justice, pursuant to Article 4 of the TBS Execution Rules (Reglement tenuitvoerlegging TBS) (as in force until 2 October 1997), had to decide ‘as soon as possible on the admission to a custodial clinic intended to execute the confinement order’. This did not, however, mean that the Minister of Justice was obliged to ensure that the required capacity for persons subject to a TBS order was available at any given point in time. A certain friction between available and required capacity is indeed acceptable from the point of view of efficient expenditure of financial resources. It has already become clear in 3.4.3 that the Minister of Justice, when he allowed a delay of twelve weeks in 1963, took into account beforehand the fact that this delay would not be sufficient in all cases.\nIt further needs to be noted that Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order entered into force on 11 July 1997. In this provision, identical wording to which was already included in the Bill submitted on 12 October 1993, the point of departure is an admission delay, continuously subject to extension, of six months. The views of the Government and Parliament during the history of the adoption of the aforementioned Act are relevant to the examination of the question as to the period of delay in a remand centre awaiting admission to a custodial clinic intended for the person concerned which can be considered, in general, justified by the circumstances and thus acceptable in society.\nNoting the above, and with due regard for the considerations set out in 3.4.4, the Supreme Court is of the opinion that, after the end of the prison sentence, the pre‑placement detention in a remand centre for a period of six months of a person subject to a TBS order awaiting admission to a custodial clinic intended for him cannot be regarded as unlawful. A period longer than six months would be unlawful, unless there were special circumstances, as referred to in 3.4.7 below. 3.4.7 In part 6 [of the grounds of appeal in cassation] the complaint is made that the Court of Appeal has not accepted that it is incompatible with the standard given in the Supreme Court’s judgment of 28 June 1963 (NJ 1963, 480) that a distinction be made between general circumstances, which could be relevant for a waiting period for admission to a custodial clinic of three months, and special circumstances which could be relevant for the period after three months. ...\nThe complaint fails. Only on grounds of special circumstances to be submitted by the State and in the event of a proven dispute relating to the person concerned and/or the State – such as, for instance, incidental and serious friction between available and required capacity for persons subject to a TBS order – can the exceeding of the maximum duration of an admission delay be justified. 3.4.10 Since the State has not adduced any of the special circumstances referred to in 3.4.7, it follows from the foregoing that the detention of [the applicant] in the ’s-Hertogenbosch remand centre must be considered unlawful from the moment when a period of six months had passed following the beginning of his stay there awaiting admission [to a custodial clinic]. 3.4.12 The complaint set out in part 10 [of the grounds of appeal in cassation] about the reasons [given by the Court of Appeal for rejecting the State’s argument in relation to the determination by the Regional Court of the amount of compensation of respectively NLG 50 and NLG 100 per day] is well–founded. The State has disputed ... on grounds that cannot immediately be refuted that the end date of the TBS would change when the starting date had been postponed. By ignoring this, the Court of Appeal has not given sufficient reasons for its impugned finding. 3.4.13 Part 10 further contains a complaint that the Court of Appeal has used an incorrect standard in the determination of compensation by assuming that the stay of [the applicant] in the remand centre can at best be compared to the case of a suspect who has spent more time in pre-trial detention than was justified. This complaint is also well–founded. The unlawfulness of detention in a remand centre after six months does not arise from the continued deprivation of liberty but from the failure to start treatment in a timely manner in a custodial clinic intended for this purpose. The comparison used by the Court of Appeal does not fit the nature of this form of unlawfulness and the non-pecuniary damage resulting therefrom. It is more appropriate to determine the scope of the damage according to equity and with due regard to all the circumstances of the case, including the duration of the continued stay of a person awaiting admission to a custodial clinic in a remand centre and the possible influence this may have on the (possibilities of) treatment.”", "18. On 10 January 1999 the TBS order against the applicant expired. The public prosecutor had not sought a prolongation of the order.", "19. In a judgment of 25 February 1999 the Amsterdam Court of Appeal quashed the judgment of the Hague Regional Court of 24 July 1996 in so far as it had awarded compensation to the applicant in an amount of NLG 20,100. It awarded the applicant compensation in an amount of NLG 11,250, rejected the rest of his claim and upheld the remainder of the judgment of 24 July 1996.", "20. The Amsterdam Court of Appeal found it established that the delay in the admission of the applicant to a custodial clinic constituted an unlawful act in so far as this delay had exceeded a period of six months. It held that the applicant had been unable to demonstrate that there were special circumstances in his case for holding that a delay of more than three months constituted of itself an unlawful act. It agreed with both parties to the proceedings that it could not be determined what had been, in concrete terms, the effect of the applicant’s lengthy stay in the remand centre on his treatment. Relying on a report of 5 December 1996 by the National Ombudsman, the Court of Appeal further held that no general conclusive findings could be made on that issue. It did not find it established that, in the applicant’s case, the delay in admission had had a major and serious impact on treatment possibilities.", "21. As to the determination of the compensation to be awarded to the applicant, the Court held that this was to be determined on an equitable basis and with due regard to all the circumstances of the case. The Court of Appeal held that an amount of NLG 1,000 for each month in excess of six months constituted adequate compensation for the applicant’s feelings of uncertainty and frustration. Having found it established that the applicant’s feelings of unrest had become more intense with the passage of time pending admission to a custodial clinic, it further held that he had sustained increasing non-pecuniary damage with the passage of time. As to this aspect, it considered that a three-monthly increase of the basic amount by NLG 250 per month on each occasion was, in the present case, in accordance with the requirements of equitable compensation. It consequently fixed the total amount of compensation at NLG 11,250.", "22. It rejected the applicant’s argument that the compensation should be calculated on a daily basis. The Court of Appeal agreed with the State that the use of a daily compensation amount in cases like the present one, where the unlawfulness did not arise from the deprivation of liberty as such, suggested a degree of precision for which there was no basis in reality." ]

[ 2 ]

[ "4. The applicant was born in 1933 and lives in Częstochowa, Poland.", "5. The applicant shared a house and a plot of land with three family members (“the neighbours”). On 6 February 1989 he instituted non-contentious proceedings (postępowanie nieprocesowe) before the Częstochowa District Court (Sąd Rejonowy w Częstochowie) in which he requested that the co-ownership of the property be dissolved.", "6. Until November 1991 the court held eight hearings and ordered two expert opinions.", "7. On 30 April 1992 the court stayed the proceedings because the applicant had failed to pay an advance fee towards the costs of an expert opinion.", "8. On 22 September 1994 the proceedings were resumed as the applicant paid the costs ordered by the court.", "9. On 6 and 20 December 1994 the court held hearings. It ordered a supplementary expert opinion.", "10. In February and March 1995 the applicant requested the court to appoint another expert. Subsequently, he challenged an expert opinion and the expert who prepared it. The court dismissed his applications on 22 March and 31 May 1995.", "11. On 23 June 1995 the court ordered another expert opinion. The opinion was submitted to the court on 5 September 1995.", "12. On 17 October 1995, 16 January, 2 April and 15 May 1996 the court held hearings. It ordered three supplementary expert opinions.", "13. Between 12 August and 5 December 1996 the proceedings were stayed because the applicant failed to pay an advance fee towards the costs of a supplementary expert opinion.", "14. In December 1996 an expert opinion was submitted to the court; subsequently, the court ordered another expert opinion.", "15. In February 1997 the applicant challenged the appointment of a new expert.", "16. On 17 September 1997 the expert submitted his opinion to the court.", "17. On 24 November 1997 the court held a hearing.", "18. On 28 November 1997 the Częstochowa District Court gave a decision in which it dissolved the co‑ownership.", "19. The neighbours appealed against it.", "20. On 26 May 1998 the Częstochowa Regional Court (Sąd Wojewódzki) quashed the impugned decision and remitted the case to the first‑instance court.", "21. On 22 October 1998 the court held a hearing at which it decided to hold a view of the property. The applicant requested the court not to schedule any hearing until 16 November 1998.", "22. On 21 May 1999 the judge held a view of the property.", "23. On 10 June 1999 the court held a hearing. Subsequently, the court ordered another expert opinion and ordered the applicant to pay an advance fee towards the costs of it.", "24. On 10 September 1999 the Częstochowa District Court stayed the proceedings because the applicant had failed to pay the advance fee. The applicant’s appeal against this decision was allowed by the Częstochowa Regional Court on 15 November 1999.", "25. On 12 April 2000 the court held a hearing.", "26. Subsequently, the neighbours challenged a court expert. Their challenge was finally dismissed on 2 June 2000.", "27. On 14 July 2000 the applicant challenged another court expert. On 2 August 2000 the Częstochowa District Court dismissed his application.", "28. On 18 November 2000 the expert submitted another opinion to the court.", "29. On 2 April 2001 the District Court held a hearing.", "30. On 11 June 2001 the applicant instituted another set of civil proceedings in which he requested permission to be connected to the public water supply and to carry out construction works on the co-owned property. The proceedings are pending before the Częstochowa District Court.", "31. On 12 June 2001 the court again decided to stay the proceedings because administrative proceedings concerning a porch built by one of the neighbours were pending. The applicant appealed against this decision.", "32. On 20 August 2001 the Częstochowa District Court resumed the proceedings.", "33. At the hearing held on 14 January 2002 the court for the second time decided to stay the proceedings due to the administrative proceedings concerning the porch. The applicant’s appeal was dismissed on 14 March 2002.", "34. On 19 April 2002 the applicant applied to resume the proceedings.", "35. In December 2002 and January 2003 the court requested certain municipal and central authorities to provide some information necessary for the case.", "36. On 4 April 2003 the proceedings were resumed and on 12 June 2002 the court held a hearing.", "37. On 7 April 2003 the Częstochowa District Court gave a decision. It dissolved the co-ownership.", "38. On 28 April 2003 the applicant lodged an appeal against that decision.", "39. On 1 July 2003 the Częstochowa Regional Court dismissed the appeal." ]

[ 3 ]

[ "8. The applicants are a married couple living in Goleniòw.", "9. On 2 October 1988 the second applicant was seriously injured in a car accident during his professional military service in a military unit in G. On 3 November 1988 the investigations concerning the accident were discontinued, as the driver who had caused it had died.", "10. Following the accident, the second applicant became disabled. On 14 December 1989 the military medical panel assessed his health loss at 100 per cent. He lost his ability to speak, is tetraplegic and suffers from depression. On 10 April 1990 the second applicant left military service.", "11. On 23 November 1992 the military unit G. informed the State Insurance Company (Państwowy Zakład Ubezpieczeń), hereinafter referred to as SIC) of the accident and inquired about possible insurance entitlements that the second applicant might have had.", "12. On 2 February 1993 the first applicant, acting also on behalf of her husband, lodged with the Szczecin Regional Court a compensation claim against the G. military unit and against the Stargard Szczeciński branch of the SIC. She also claimed to be granted a monthly allowance as she had to give up work in order to take full-time care of her husband. She submitted a power of attorney given by her husband. On 12 May 1993 the court ordered the applicants to identify the defendant more precisely.", "13. On 11 June 1993 the Szczecin Regional Court exempted the applicants from the court fees.", "14. On 23 February 1994 the applicants requested the court to fix a date for the hearing in the case.", "15. On 8 December 1994 the court ordered that the statement of claim be served on the defendants.", "16. On 29 December 1994 the Stargard Szczeciński branch of the SIC, the second defendant, lodged its written pleadings with the court. On 5 January 1995 the defendant military unit G. filed with the court its reply to the applicant’s statement of claim, and on 10 January 1995 it lodged further pleadings. On 21 January 1995 the court ordered the applicant to respond to the defendants’ pleadings.", "17. On 15 March 1995 the Stargard branch of the SIC requested the court to summon the Goleniów branch of the SIC as another defendant.", "18. On 10 April 1995 the applicants concluded a settlement with the Goleniów branch of the SIC, providing for a payment of PLN 20,000 and a monthly pension.", "19. The court summoned the Goleniów branch of the SIC on 15 November 1995 to participate in the proceedings. On 16 January 1996 the statement of claim was served on the third defendant. On 19 February 1996 the Goleniów branch of the SIC submitted pleadings in which it requested that the proceedings against it be discontinued, referring to the settlement of 10 April 1995.", "20. On 12 April 1996 the court ordered that the applicants be served with this reply and fixed the hearing for 4 July 1996.", "21. On 13 May 1996 the applicants requested the Szczecin Regional Court to have regard to the second applicant’s disability and to transmit the case to the District Court in Goleniów in the vicinity of their domicile. On 17 July 1995 the Szczecin Regional Court informed the applicants that under the applicable legal provisions the case had to be conducted before the Szczecin Regional Court as it was the latter which was competent to entertain it, regard being had to the amount of the claim.", "22. On 25 July 1996 a first hearing was held in the case. The court discontinued the proceedings concerning the Goleniów branch of the SIC and requested the applicants to specify their claim against the Stargard branch of the SIC. The court also allowed the applicant’s request to have a legal aid lawyer appointed to the case. On 20 August 1996 the local Bar Association appointed Z.K. to the case. On 4 October 1996 the court ordered that relevant case documents be served on him. On 3 January 1996 the court urged Z.K. to state the applicant’s position.", "23. On 18 February 1997 the lawyer assigned to represent the second applicant in the case under the legal aid scheme lodged with the court his pleadings on behalf of the plaintiffs. The court summoned him to specify the claims and rectify some other shortcomings in the pleadings. On 2 April 1997 he specified the applicants’ compensation claims at 60,000 PLN (Polish zlotys). On 28 May 1997 the court ordered that pleadings be served on the defendants.", "24. On 2 July 1997 the applicants withdrew their claim against the Stargard branch of the SIC.", "25. The next hearing was held on 30 October 1997. The court ordered that expert evidence be taken concerning the damage to the applicant’s health caused by the accident, the future prospects of improvement, if any, and necessary rehabilitation. It also ordered that a military hospital provide the second applicant’s medical file. The file was submitted on 15 November 1997. On 22 April 1998 the court requested another hospital to submit another medical file.", "26. At the next hearing on 15 July 1998 the applicant’s counsel specified the legal basis of the applicant’s claim, submitting that the failure of the applicant’s military unit to inform the SIC of the accident had resulted in the applicant’s not receiving compensation to which he was entitled under the non-compulsory accident insurance policy. The court quashed its own decision of 30 October 1997 concerning the taking of medical evidence and requested the Stargard branch of the SIC to submit the accident file, having regard to the applicant’s submissions as to the legal basis of their claim. The Stargard branch of the SIC submitted the file to the court on 5 October 1998.", "27. On 2 November 1999 the court discontinued the proceedings in so far as it related to the Stargard branch of the SIC. The applicants appealed, submitting that the proceedings should not have been discontinued as the SIC had failed to express its consent thereto. On 15 December 1998 the court requested the applicants’ lawyer to rectify the formal shortcomings in the appeal. On 19 February 1999 the case-file was forwarded to the Poznań Court of Appeal. On 9 March 1999 the latter court summoned the applicants’ lawyer to rectify some other shortcomings in the appeal. On 13 April 1999 the appellate court quashed the decision of 2 November 1999.", "28. On 14 June 1999 the Stargard branch of the SIC requested that the proceedings against it be discontinued. On 27 July 1999 the court accordingly discontinued the proceedings.", "29. The next hearing scheduled for 21 January 2000 was adjourned as the applicants’ lawyer was ill. On 21 February 2000 the court requested the local bar to appoint another lawyer for the applicants and on 21 March 2000 the Szczecin Bar Association assigned Ms. E. W.G. to the case.", "30. On 26 May 2000 the G-1 military unit informed the court that the G. military unit had been dissolved, the G-1 unit not being the legal successor of the former. At the hearing of 29 May 2000 the court stayed the proceedings in order to establish the legal successor of the G. military unit. On 14 June 2000 the proceedings were resumed. On 20 July 2000 the President of the Civil Division of the Court established that in fact the G-1 unit was the successor of the dissolved G. unit. At the hearing of 21 September 2000 the court allowed evidence from the SIC’s accident file, closed the hearings and adjourned the delivery of the judgment until 29 September 2000.", "31. On 29 September 2000 the court delivered the judgment by which it dismissed the applicants’ claims, finding that the inactivity of the G. military unit had no bearing on the insurer’s liability under the non-compulsory insurance scheme.", "32. On 22 November 2000 the applicants lodged an appeal with the Szczecin Regional Court , to be forwarded to the Poznań Court of Appeal.", "33. On 25 April 2001 the Poznań Court of Appeal dismissed the applicants’ appeal.", "34. On 29 May 2001 the applicants requested the Poznań Court of Appeal to exempt them from the cassation court fee. On 20 August 2001 the applicants requested the local bar to appoint another lawyer for lodging a cassation appeal.", "35. On an unspecified date the court discontinued the proceedings concerning the lodging of the cassation. The applicants appealed against this decision.", "36. The parties have not provided further information about the proceedings. The proceedings appear to be pending." ]

[ 3 ]

[ "6. On 8 November 1995 the applicant company acquired the publishing rights for a book entitled Le Grand Secret (“The Big Secret”) from a Mr Gonod, a journalist, and a Dr Gubler, who had been private physician to President Mitterrand for several years. The book gave an account of the relations between Dr Gubler and the President, describing how the former had organised a medical team to take care of the latter, who had been diagnosed with cancer in 1981, a few months after he had first been elected President of France. It recounted in particular the difficulties Dr Gubler had encountered in concealing the illness, given that President Mitterrand had undertaken to issue a health bulletin every six months.\nThe book was due to be published in mid-January 1996, while President Mitterrand was still alive. However, following the President's death on 8 January 1996, the authors and Editions Plon decided to postpone its publication.", "7. On 10 January 1996 the daily newspaper Le Monde published an article which revealed that President Mitterrand had been suffering from prostate cancer since the beginning of his first seven-year term of office and pointed out that the public had not been officially informed about his illness until 1992. The article also stated that President Mitterrand had dismissed Dr Gubler in 1994, choosing instead to be treated with medicine described by the applicant company as “alternative”.\nThose revelations were the subject of extensive comment in the media. Questions were asked, in particular, about the quality of the treatment received by President Mitterrand.\nA former cultural adviser to President Mitterrand had already claimed in a book entitled L'Année des adieux, published by Flammarion in June 1995, that the President had not received proper treatment. In addition, shortly after the President's death, one of his brothers made similar allegations. The head of the cancer treatment department at the Pitié-Salpêtrière Hospital did likewise, in particular asserting on the radio station Europe 1 that “for years [President Mitterrand had been] given nothing but magical cures, and these techniques were completely ineffective in treating his illness”.\nOn 12 January 1996, however, Le Monde published a statement by the President of the National Council of the ordre des médecins (Medical Association) to the effect that “according to the information in [his] possession, the President [had] received perfectly appropriate treatment”. Furthermore, on 11 January 1996 the President's widow and children had issued a statement emphasising that they maintained their trust in the medical team that had looked after him.", "8. As Dr Gubler considered that his reputation had been called into question, it was decided to publish Le Grand Secret on 17 January 1996. The following text appeared on the back cover:\n“On 10 May 1981 François Mitterrand was elected President of France.\nOn 16 November 1981, six months later, medical examinations revealed that the head of State was suffering from cancer. Statistically, he had between three months and three years to live.\nA handful of doctors resolved to fight the illness, driven by the obsession to save the President and to obey his instruction that the French public should know nothing about the matter. It became a State secret.\nOnly Claude Gubler, private physician to François Mitterrand during his two terms of office, could have provided us with the astonishing account of how the President cheated death for years, taking each day at a time.\nThese revelations will transform our image of a man who led France for fourteen years.”", "9. On an urgent application lodged on 17 January 1996 by President Mitterrand's widow and children, who complained of a breach of medical confidentiality, an invasion of President Mitterrand's privacy and injury to his relatives' feelings, the President of the Paris tribunal de grande instance issued an injunction on 18 January 1996 prohibiting the applicant company and Dr Gubler from continuing to distribute Le Grand Secret, on penalty of 1,000 French francs (FRF) per book distributed, and instructed a bailiff “to procure all documents containing details of the print run and the number of copies in circulation”.\nThe urgent-applications judge based her decision on the following grounds:\n“All people, regardless of their rank, birth or function, have the right to respect for their private life.\nThis protection extends to their relatives where the relatives are justified in asserting their right to respect for their own private [and] family life.\nWhat is in issue in the instant case are disclosures by President François Mitterrand's private physician, who treated and attended to him for more than thirteen years and in whom the patient and his family placed their trust.\n...\nThey were made in breach of provisions that lay down a duty of professional confidentiality, all the more strictly where medical confidentiality is concerned, and the person who made them may be liable to the penalties provided for in Article 226‑13 of the Criminal Code.\nBy their very nature, they constitute a particularly serious intrusion into the intimate sphere of President François Mitterrand's private family life and that of his wife and children.\nThe resulting interference is especially intolerable in that it has occurred within a few days of President Mitterrand's death and burial.\nSince this is a case of blatant abuse of freedom of expression resulting in a manifestly unlawful infringement of the claimants' rights, it is within the power of the urgent-applications judge to order measures capable of putting an end to the infringement or limiting its scope.”", "10. In a judgment of 13 March 1996, the Paris Court of Appeal upheld the injunction and gave the claimants one month to apply to a court with jurisdiction to examine the merits of the case, indicating that if such an application was made, the injunction and penalty for non-compliance would remain in force until a ruling was given on the merits, but that if no such application was made, those measures would cease to have effect on the expiry of the one-month period.\nThe judgment began by noting the definition of medical confidentiality in Article 4 of the Code of Conduct for Medical Practitioners, and emphasised that “the death of the patient does not release a medical practitioner from the duty of confidentiality”. It went on to quote the text on the back cover and identified some twenty disclosures made in the book, together with page references, about facts “of which Mr Gubler had become aware in the performance of his professional duties as physician to François Mitterrand” and which “as such ... [were] manifestly covered by the rules of medical confidentiality”. The judgment stated:\n“...\n... the disclosure, through publication of the book Le Grand Secret, of facts covered by the duty of medical confidentiality by which the co-author of the book is bound is manifestly unlawful.\nThe innermost feelings of Mrs Mitterrand and of François Mitterrand's children have been offended by this public disclosure of information pertaining both to the character and private life of their husband and father and to their own sphere of intimacy by the private physician to the late French President, in whom the latter had placed his trust, under the protection of a lawfully established duty of professional confidence of which all medical practitioners are solemnly reminded when the Hippocratic oath is read out on their admission to the profession.\n...\n... prohibition of the distribution of a book can only be an exceptional measure.\nHowever, in view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the duty of medical confidentiality by which the co-author of the book is bound, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it.\nAccordingly, the decision by the first-instance judge to prohibit the [applicant] company and Mr Gubler from continuing to distribute the book Le Grand Secret was based on a precise assessment of the interim measure likely to put an end to the manifestly unlawful infringement resulting from such disclosures.\n...\nAlthough the first edition of the book in question was marketed before the date of the injunction appealed against, and although information published in the book has been divulged by various media since the injunction was issued, the ensuing circumstances are not capable of putting an end to the manifestly unlawful infringement that would necessarily result from resumed distribution of the book.\nConsequently, the injunction issued by the first-instance judge should remain in force.\nHowever, the necessarily temporary nature of such a measure dictates that its validity should be limited in time by such means as to afford the parties an opportunity to submit argument in the dispute between them, within a reasonable time, before a court with jurisdiction to examine the merits of the case.\nTo that end, the respondents should be given one month, from the date of delivery of this judgment, to bring their dispute before such a court. It should further be specified that if an application for an examination of the merits is made within this period, the injunction will remain in force, unless the court in question rules otherwise, until the delivery of its decision, but that if no such application is made within this period, the injunction will immediately cease to have effect.”", "11. In a judgment of 16 July 1997, the Court of Cassation dismissed appeals on points of law by the applicant company and Dr Gubler against the judgment of 13 March 1996.\nThe Court of Cassation considered that the Court of Appeal had established the existence of a manifestly unlawful infringement by holding that disclosures made in the book about the development of François Mitterrand's condition had been in breach of medical confidentiality, and that it had been exclusively within the Court of Appeal's jurisdiction to rule that the injunction prohibiting the continued distribution of the book, as an interim measure valid for a limited period only, was the only means of putting an end to the infringement pending a decision on the merits.", "12. In the meantime, on 19 April 1996, the Paris public prosecutor had summoned Dr Gubler to appear in the Paris Criminal Court on a charge of breaching professional confidence during May and June 1995, November and December 1995 and January 1996 by having disclosed information to Mr Gonod and Mr Olivier Orban, the managing director of Editions Plon, about President Mitterrand's health and the treatment he had been prescribed. Mr Gonod and Mr Orban had also been summoned to answer a charge of aiding and abetting that offence. President Mitterrand's widow and three children had applied to join the proceedings as civil parties but had not filed claims for damages.\nIn a judgment of 5 July 1996, the Criminal Court found Dr Gubler guilty of breaching professional confidence and Mr Gonod and Mr Orban guilty of aiding and abetting the same offence. It sentenced Dr Gubler to four months' imprisonment, suspended, and fined Mr Gonod and Mr Orban FRF 30,000 and FRF 60,000 respectively. The judgment emphasised, in particular, that by signing a publishing contract on 8 November 1995, and subsequently by delivering his manuscript with a view to its publication, Dr Gubler had publicly disclosed confidential information entrusted to him, and that “publication of an entire book based on a breach of medical confidentiality amounted, on Mr Claude Gubler's part, to a serious breach of his professional duties, calling for a stern reminder of the law”.", "13. As no appeal was lodged, the judgment became final on 5 September 1996.", "14. Alongside those proceedings, on 4 April 1996 President Mitterrand's widow and three children had brought proceedings against Dr Gubler and Mr Orban (both in his personal capacity and as the statutory representative of the applicant company) in the Paris tribunal de grande instance, seeking an order prohibiting resumption of the publication of Le Grand Secret or, in the alternative, deleting certain pages and paragraphs. They also sought an award of damages. They argued, in particular, that the book contained disclosures that breached medical confidentiality and invaded President Mitterrand's privacy in such a way as to interfere with the feelings and personal life of his widow and children. They further submitted that some of these “indiscretions” amounted to direct personal attacks on their own sphere of intimacy.\nIn a judgment of 23 October 1996, the Paris tribunal de grande instance ordered Dr Gubler, Mr Orban and the applicant company jointly and severally to pay damages of FRF 100,000 to Mrs Mitterrand and FRF 80,000 to each of the other claimants, and maintained the ban on distribution of Le Grand Secret. The judgment stated, inter alia:\n“...\nMerits of the applications\nA reading of the book Le Grand Secret reveals that its contents include:\n(a) a description of the President's 'health regime' at the time when arrangements were being made for the 'medical care' with which he was to be provided throughout his time in office (pages ...);\n(b) a reference to the initial symptoms of his illness (page ...) and an account of the medical examinations which he underwent in November 1981 (page ...);\n(c) the results of these examinations and the subsequent discussions between François Mitterrand and his doctors (pages ...);\n(d) a description of the medical examination carried out on François Mitterrand by Professor [S.] on 16 November 1981, and an account of the conversation in which Professor [S.] and Claude Gubler informed François Mitterrand of the nature of his illness and the forms of medical treatment it required (pages ...);\n(e) a description of a treatment protocol prescribed by Professor [S.] and Claude Gubler and the manner in which the treatment was administered to François Mitterrand (pages ...);\n(f) an indication of the pseudonym under which biological tests concerning François Mitterrand were carried out by a private laboratory (page ...) and of the frequency and nature of such tests (pages ...);\n(g) a description of certain physical disorders that affected François Mitterrand and an indication of the medicine he was given in order to treat them and prevent their recurrence (pages ...);\n(h) a description of anxiety attacks suffered by François Mitterrand (pages ...);\n(i) a description of the side-effects of the medical treatment received by François Mitterrand (page ...);\n(j) information on developments in François Mitterrand's health and the impact of such developments on his behaviour (pages ...);\n(k) a description of the circumstances in which certain health bulletins on François Mitterrand were drawn up (pages ...);\n(l) a description of other medical practitioners' dealings with François Mitterrand and the power struggles between various members of his medical team (pages ...);\n(m) an account of the operation performed on François Mitterrand on 16 July 1994 (pages ...);\n(n) a description of the medical treatment which François Mitterrand received and the medical examinations he underwent in late 1994 (pages ...);\n...\nThe events described in the above passages from Le Grand Secret became known to Claude Gubler in the performance of his professional duties as physician to François Mitterrand or members of his entourage. Although they do not relate directly to medical facts, Claude Gubler could only have become aware of them while practising his profession; accordingly, they were manifestly covered by the duty of medical confidentiality by which he was bound. They were disclosed unlawfully, firstly when Claude Gubler, wishing to provide the public with a 'chronological account' of the head of State's illness, contacted the journalist Michel Gonod and wrote the manuscript for the book in conjunction with him; subsequently, when the manuscript was submitted to Olivier Orban in November 1995 with a view to its publication by Editions Plon; and finally, when the book went on sale a few days after François Mitterrand's death, the publisher laying emphasis in the text on the back cover on the fact that only Claude Gubler, through his privileged position in relation to the head of State, could have written this 'astonishing account'.\nNeither Claude Gubler's alleged desire to restore the truth by informing the public about facts that had been kept from them for several years ... nor the fact that while François Mitterrand was alive incomplete bulletins about his health were published, which the physician nonetheless agreed to sign, serve as justification for the disclosures in question. The duty of medical confidentiality is general and absolute and does not allow medical practitioners to transform themselves into guarantors of the proper functioning of State institutions or into historical witnesses.\nFurthermore, nothing can release medical practitioners from their obligation to remain silent, since the duty of professional confidence exists not only to protect the interests of those who confide in them, but also to guarantee the reputation that medical practitioners must enjoy among all those who require medical assistance.\nAlthough a practitioner whose competence or integrity has been called into question may be required to breach the duty of confidence in order to prove the quality of his treatment or his good faith, this is subject to the condition that such disclosure is limited to the strict requirements of his defence in court and does not, as in the instant case, take the form of deliberate public divulgence of information.\n...\nRedress\nThe specific purpose of civil liability is to restore as precisely as possible the balance that has been upset by the damage and to return the victim, at the expense of the party held liable, to the position in which he or she would have been had the prejudicial act not occurred. This principle means that, when affording redress for non-pecuniary damage, the courts are able not only to award damages to the victim in compensation for the harm already sustained, but also to prevent any subsequent damage by ordering the elimination of its cause.\nThe offence caused to the Mitterrands and Ms Pingeot by the disclosure of their own doctor's deliberate breaches of the necessary confidentiality of his relations with both François Mitterrand and themselves over many years, the publisher's desire to draw attention to the book in a spectacular manner by rushing to print and sell it immediately after the announcement of François Mitterrand's death (the possibility of a mere coincidence of events cannot be seriously entertained), the advance communication of extracts from the book to certain sections of the press for obvious promotional purposes, and the book's substantial initial print run (40,000 copies were distributed and sold from 17 January 1996) justify an award of damages to the claimants as set out in the operative provisions of this judgment ... and the continuation of the prohibition on the distribution of the book ordered by the urgent-applications judge.\nIn this connection, ... prohibition of the distribution of a piece of writing entailing an infringement of human rights ... [is], regard being had to the principles governing civil liability, [a] legally acceptable means of redress designed to put an end to the injury suffered by the victim and to prevent the recurrence of the damage that would necessarily result from resumption of the distribution of the piece of writing.\n...\nContrary to what Claude Gubler maintained in his submissions, the time that has elapsed since François Mitterrand's death cannot have had the effect of definitively putting an end to the infringement observed when the book was published and rendering lawful the distribution of a book purporting to be a 'witness account of the historical truth about the President's two terms of office, to which the French people should have access' ..., when the defendant is not authorised to give a historical analysis of facts which became known to him in the performance of duties in which he was bound by absolute confidentiality.\nAlthough, in spite of the injunctions of 18 January and 13 March 1996 prohibiting distribution of the book, information contained in Le Grand Secret has been divulged through various media, the ensuing situation is not capable of preventing the injury and damage that would result for the claimants from resumed distribution of the book, with the particular light which the comments of a doctor shed not only on relations with members of the family circle with whom he was in close contact, but also on the most intimate reactions of François Mitterrand to his illness.\nIn view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the rules of medical confidentiality, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it ...”", "15. On an appeal by the applicant company, Dr Gubler and Mr Orban, the Paris Court of Appeal gave judgment on 27 May 1997. It cleared Mr Orban on the ground that the production and sale of Le Grand Secret did not constitute a separate tort from the one attributable to the applicant company. It also declared inadmissible the action brought by the Mitterrand family in so far as it concerned the protection of President Mitterrand's private life, pointing out in that connection that “the possibility for anyone to prohibit any form of disclosure about [their private life] is only open to the living”. As to the alleged invasion of the privacy of the Mitterrands themselves, the Court of Appeal noted that certain passages from the book in issue “entail[ed] invasions of the Mitterrands' privacy”, but considered that such infringements could not, “regrettable though they may have been, justify – regard being had, in particular, to their sporadic occurrence in the book – prohibiting publication of the book as a whole”.\nHowever, holding that Dr Gubler had breached the duty of medical confidentiality by which he was bound, the Court of Appeal ordered him and the applicant company jointly and severally to pay damages in the amount determined in the first-instance judgment, and upheld the decision to maintain the ban on distribution of the book. The judgment of 27 May 1997 stated, in particular:\n“...\nThe breach of medical confidentiality\nIt was established in the judgment [of the Paris Criminal Court] of 5 July 1996, which has become final and binding on the civil courts, that Mr Gubler breached the duty of medical confidentiality by which he is bound.\nIt was rightly observed in that decision that breach of professional confidence was made a criminal offence not only in the public interest but also in the interests of private individuals, in order to guarantee the security of the confidential information which they are required to entrust to certain persons on account of their status and profession. The duty of medical confidentiality is founded on the relationship of trust essential to the provision of medical treatment, whereby patients are assured that anything they tell their doctor or cause him to see, hear or understand, as a person in whom such information must be confided, will not be disclosed by him.\nArticle 4, second paragraph, of the Code of Conduct for Medical Practitioners provides that medical confidentiality covers 'everything that has come to the attention of medical practitioners in the practice of their profession, that is, not only what has been confided in them but also what they have seen, heard or understood'.\nSince Mr Gubler was in the company of Mr François Mitterrand solely on account of his position as his doctor, all the information he recounts in his book, which he learned or observed while practising his profession, is covered by the duty of medical confidentiality by which he is bound vis-à-vis his patient, although it may also constitute interference with the patient's private life or sphere of intimacy.\nThe Mitterrand family have inherited from Mr François Mitterrand the right to bring proceedings against the appellants. Although Le Grand Secret was published after François Mitterrand's death, it should be noted that the book was in fact the subject of a publishing contract signed on 8 November 199[5], prior to his death.\nAccordingly, the Mitterrands have inherited from the deceased the right both to obtain redress for the breaches of medical confidentiality resulting from the disclosure of confidential information to Mr Gonod in May and June 1995 and to Mr Orban in November 1995, as the criminal court held, and to obtain compensation for the consequences of the decision taken on 8 November 1995 to publish the book; this possibility is not excluded by the judgment of 17 July 1995 and is not contrary to the principle of res judicata in relation to that judgment.\nRedress\nThe exercise of freedom of expression, a principle with constitutional status set forth in Article 10 of the Convention ..., carries with it duties and responsibilities; it may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, for example for the protection of health, for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence.\nIn the instant case the prohibition of the book complained of is necessary since it is the only means of putting an end to the damage sustained and to the criminal offence which it constitutes ...”", "16. In a judgment of 14 December 1999, the Court of Cassation dismissed an appeal on points of law by Mr Orban and the applicant company. In response to their ground of appeal based on Article 10 of the Convention, it held:\n“... the Court of Appeal held that all the information published had been obtained by Mr Gubler in the performance of his professional duties as private physician to François Mitterrand, so that it was covered by the rules of medical confidentiality, although it could also constitute interference with the right to respect for private life. After observing that the breach of medical confidentiality had been established by a criminal court, the Court of Appeal, pointing out that the exercise of freedom of expression could be subject to certain restrictions, in particular for the protection of the rights of others, justified its decision in law in holding, in the exercise of its exclusive jurisdiction, that discontinuing the distribution of the book was the only means of putting an end to the criminal offence and the damage sustained, its assessment of which is not subject to appeal ...”\nHowever, partly allowing an appeal on points of law by the Mitterrands, the Court of Cassation quashed and annulled the judgment of 27 May 1997 in so far as it had cleared Mr Orban, and remitted the case, on that point, to a differently constituted bench of the Paris Court of Appeal. The outcome of that aspect of the proceedings has not been specified by the parties.", "17. The parties have stated that an electronic version of the text of Le Grand Secret is available on the Internet. They have not indicated who decided to disseminate the text in this form or the date when it became available." ]

[ 6 ]

[ "10. The applicant was born in 1924 and lives in Chişinău.", "11. In June 1946 the Soviet authorities nationalised the applicant's parents' house. In 1949 her parents were deported to Siberia.", "12. 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 the Soviet repression to claim their confiscated or nationalised property.", "13. In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which she sought the restitution of her parents' house. At the material time the disputed house consisted of six apartments: nos. 3, 6, 7, 8, 12 and 13. Since apartments nos. 3, 6, 7, 8 and 13 had been purchased by their former tenants, the applicant sought to declare null and void the contracts by which they had been purchased from the State. She also sought the eviction of all the occupants of the house.", "14. On 14 March 1997 the Centru District Court found in favour of the applicant and ordered the restitution of the house. It declared null and void the contracts by which apartments nos. 3, 6, 7, 8 and 13 had been sold to their tenants. The court further ordered the Municipal Council to evict all the occupants, including those of apartment no. 12, and indicated that the Municipal Council was to provide all the tenants with alternative accommodation.", "15. The Municipal Council and the occupants lodged an appeal with the Chişinău Regional Court (Tribunalul Municipiului Chişinău) against the judgment of the Centru District Court. On 17 October 1997 the Chişinău Regional Court allowed the appeal and quashed the judgment of the Centru District Court.", "16. The applicant lodged an appeal in cassation against the judgment of the Chişinău Regional Court. On 31 March 1998 the Court of Appeal (Curtea de Apel) rejected the appeal in cassation and upheld the judgment of the Chişinău Regional Court.", "17. Following a request by the applicant, the Procurator General's Office applied for annulment of the judgments of the Chişinău Regional Court and the Court of Appeal with the Supreme Court of Justice (Curtea Supremă de Justiţie).", "18. On 19 August 1998 the Supreme Court of Justice quashed the judgments of the Chişinău Regional Court and of the Court of Appeal, and upheld the judgment of the Centru District Court of 14 March 1997 on the ground that both the Chişinău Regional Court and the Court of Appeal had failed to observe the provisions of Law no. 1225-XII of 8 December 1992 (see paragraph 30 below).", "19. On an unspecified date in 1998, after having obtained the enforcement warrant, the applicant asked the Municipal Council to execute the judgment of 14 March 1997. In a letter of 14 January 1999, the Municipal Council informed the applicant that due to a lack of funds for the construction of apartments for the evicted tenants, it could not execute the judgment.", "20. In 1999 the applicant lodged a request with the Chişinău Land Register (Organul Cadastral Teritorial Chişinău) to issue her a certificate of ownership for the disputed house. In a letter of 15 September 1999, the Land Register informed the applicant that it would issue the ownership title only on the basis of an “act of delivery and receipt of the house” (act de predare-primire) issued by the Municipal Council.", "21. In October 1999 the applicant lodged an action with the Centru District Court against the Municipal Council seeking damages for the delay in enforcing the judgment of 14 March 1997. On 17 November 1999 the Centru District Court rejected the action as unfounded. The applicant did not lodge an appeal against that judgment and it became final.", "22. In 2000 the applicant lodged an action with the Centru District Court seeking a partial change in the manner in which the enforcement of the judgment of 14 March 1997 was to be carried out. In particular, she claimed money from the Municipal Council in lieu of restitution of apartments nos. 3, 6, 7, 12 and 13. On 7 February 2000 the Centru District Court ordered that a valuation of the apartments be carried out by the experts of the Chişinău Land Register. Following a request from the applicant, on 24 February 2000 the Centru District Court ordered that the valuation be carried out by independent real estate experts.", "23. On 3 October 2000 the Centru District Court decided partially to change the manner of enforcement of the judgment of 14 March 1997 and ordered the Municipal Council to pay the applicant 488,274 Moldovan Lei (MDL), the market value of apartments nos. 3, 6, 7, 12 and 13.", "24. The Municipal Council lodged an appeal with the Chişinău Regional Court against the above judgment. On 10 January 2001 the Chişinău Regional Court rejected the appeal and upheld the judgment of the Centru District Court of 3 October 2000.", "25. In 2001 the applicant asked the Housing Division of the Municipal Council to execute the judgment of 14 March 1997 in so far as it concerned the eviction of the occupants of apartment no. 8. In a letter of 26 March 2001, the Municipal Council informed the applicant that due to a lack of funds for the construction of apartment buildings and available alternative accommodation for the evicted tenants, it could not enforce the judgment of 14 March 1997.", "26. On 10 April 2001 the Centru District Court dismissed the Municipal Council's request seeking to stay the enforcement of the judgment of the District Court of 3 October 2000. On 19 June 2001 the Chişinău Regional Court, in its final judgment, rejected the Deputy Mayor's appeal against the above judgment.", "27. Following a request by the Municipal Council, the Procurator General's Office applied to the Supreme Court of Justice for annulment of the judgments of the Centru District Court of 3 October 2000 and the Chişinău Regional Court of 10 January 2001.", "28. On 12 September 2001 the Supreme Court of Justice dismissed the Procurator General's request for annulment.", "29. On an unspecified date the applicant lodged a fresh request with the Municipal Council for the enforcement of the judgments of 14 March 1997 and 3 October 2000. In a letter of 23 October 2001, the Municipal Council informed the applicant that due to a lack of funds and alternative accommodation for the occupants of apartment no. 8, it could not enforce the judgment of 14 March 1997. As regards the enforcement of the judgment of 3 October 2000, the Municipal Council replied that the money would be paid after other court orders had been paid.", "30. On 20 November 2002 the Municipal Council paid the applicant MDL 488,274 (the equivalent of EUR 29,238 at the time) in accordance with the judgment of 3 October 2000. The judgment of 14 March 1997 in respect of the eviction of the tenants from apartment no. 8 remained un-enforced." ]

[ 3, 9 ]

[ "8. The applicant was born in 1951 and is at present detained in Tolmezzo Prison, Udine.", "9. In the course of criminal proceedings concerning an arms trafficking charge, the Rimini preliminary investigations judge set down the preliminary hearing for 23 April 1998.", "10. On 30 October 1997 he ordered the notice of the date of the hearing, translated into Hungarian and accompanied by an invitation to appoint a legal representative, to be served by post on the accused, a Hungarian national living in Hungary named Thamas Somogyi, who was born in Miskolc on 23 October 1953. The reply slip acknowledging receipt of the notice reached the Rimini District Court's registry bearing a signature which, according to the applicant, was not his. He asserted that there was a difference between that signature and the one in his passport. Moreover, the forename of the signatory was “Thamas” and not “Tamas”.", "11. As the defendant did not appear at the preliminary hearing, he was declared to be wilfully seeking to evade trial (contumace) and the court appointed a lawyer, Mr G., to assist him. From that point on, all notifications of procedural steps were served on Mr G.", "12. Mr G. did not plead the nullity of the notice of the date of the preliminary hearing. An order was then made committing Thamas Somogyi for trial.", "13. In a judgment of 22 June 1999, the Rimini District Court sentenced the accused to eight years' imprisonment and a fine of 2,000,000 Italian lire (approximately 1,032 euros).", "14. That decision was grounded on statements made by certain persons facing charges in related proceedings, particularly a Mrs M. and the S. brothers, corroborated by other evidence. The text of the judgment did not indicate whether the persons in question had recognised the applicant on a photograph or if they had identified him in their statements purely on the basis of his name or personal information they had about him. The Rimini District Court merely said that the applicant had been “recognised and identified”. It further observed that, in view of the gravity of the offences he was charged with and the fact that he had constantly refused to give his version of the facts, he could not be granted the benefit of any extenuating circumstance.", "15. The judgment of 22 June 1999 was served on Mr G.", "16. On 30 October 1999 the Rimini District Court, having noted that the judgment of 22 June 1999 had become final, ordered the arrest of Mr Thamas Somogyi.", "17. On 15 August 2000 the Austrian police arrested the applicant (Tamas Somogyi, born in Budapest on 19 October 1951) and notified the Italian authorities.", "18. The Italian authorities opened an investigation which led to the finding that the person convicted on 22 June 1999 was in fact the applicant.", "19. In a decision of 17 August 2000, the Rimini District Court ordered that the judgment of 22 June 1999 be rectified by insertion of the applicant's forename and his date and place of birth in place of the information originally recorded. That decision was served on Mr G.", "20. The applicant was then extradited from Austria to Italy, where he was deprived of his liberty in execution of the judgment of 22 June 1999.", "21. On a date which has not been specified he applied to the Rimini District Court under Article 175 of the Code of Criminal Procedure (“the CCP”), asking it to reopen the time allowed for an appeal (istanza di rimessione in termini). He contended that the judgment of 22 June 1999 was invalid because the summons was null and void, submitting the following arguments:\n(a) the identity of the person convicted had not been reliably established, so that the procedure for rectification of an error ought not to have been followed;\n(b) he had not been aware of the proceedings against him, and the signature on the envelope containing the notice of the date of the preliminary hearing was not his. In that connection he said that if necessary a handwriting expert should be asked to determine whether the signature was authentic and that if he had to do so he would lodge a complaint alleging forgery (querela di falso);\n(c) the notice concerned had not been properly served since the form of service did not comply with the provisions of the Italo-Hungarian agreement signed on 26 May 1977 (and ratified by the Italian parliament in Law no. 511 of 23 July 1980), which required all judicial communications from one of the two signatory countries addressed to individuals in the other country to take the form of a request for judicial assistance. The applicant further asserted that the form of service of the notice in question had in any case been incompatible with the relevant provisions of the Hungarian legislation concerning judicial communications by post.", "22. In a decision of 24 October 2000, the Rimini District Court refused the applicant's request.", "23. It observed in the first place that the judge responsible for the execution of sentences could not look into grounds for annulment arising out of the proceedings and concerning the merits of the charges. The defects complained of had in any case been cured (sanate) when the judgment of 22 June 1999 became final.", "24. Secondly, the identity of the person convicted had been established through an investigation conducted by the Rimini prefecture with the assistance of the Rome branch of Interpol. Moreover, a mere inaccuracy concerning a defendant's date of birth did not constitute a ground for annulment of a judgment, and could properly be corrected via the rectification procedure.", "25. Lastly, according to the case-law of the Court of Cassation, a request to reopen the time allowed for an appeal was admissible only where a defendant alleged that he had been prevented from finding out about his conviction by circumstances beyond his control. It would be inadmissible, however, if he pleaded that service of a notice was null and void. In such a case a person convicted at first instance could lodge an appeal out of time, arguing in effect that the time allowed for an appeal had not begun to run.", "26. On 27 November 2000 the applicant appealed to the Bologna Court of Appeal against the judgment of 22 June 1999, submitting that as it had been based on invalid procedural steps it could not have become final. He also repeated his request for a report by a handwriting expert and his statement concerning the possibility of lodging a complaint of forgery.", "27. In a judgment of 24 May 2001, deposited with the registry on 3 July 2001, the Bologna Court of Appeal declared the applicant's appeal inadmissible. It observed in particular that the evidence against the applicant had been corroborated by two persons charged in related proceedings, who had stated that the weapons in question, which had been brought in from Hungary and then used to commit an armed robbery, a murder and an attempted murder, had been bought at the applicant's house. He had then taken to Hungary a Fiat Uno car which one of the co-defendants had sold him. The District Court had correctly identified the defendant as Tamas Somogyi, a Hungarian national living at 16 Erdo Street, Szigethalom, previously convicted of rape, armed robbery and acts of vandalism. Moreover, on 27 January 1995, Italian Interpol had reported that the applicant was the son of a woman named Maria Jobbik (as his lawyer had confirmed), that he had been born on 19 October 1951 in Budapest and that he lived at “26 ... Erdo Str., Szigethalom/Hungary”. His address had also been confirmed by a co-defendant. In those circumstances, the Court of Appeal ruled that there was no doubt that the applicant was indeed the person sought by the Italian authorities.", "28. The Court of Appeal went on to note that notification of the charges had been served on the applicant. An acknowledgment-of-receipt slip dated 16 January 1998 and apparently signed by the addressee proved that this information had been received. The address at which the notice had been served was in most respects correct, the only mistakes being that an extra “h” had been added to “Szigethalom” (making “Szigethalhom”) and the accent had been missed off the place name Ërdo (making Erdo). It was therefore not necessary to compare the applicant's signatures on his passport and certain company documents with the one on the return slip acknowledging receipt.", "29. As regards the applicant's argument that the terms of the Italo-Hungarian agreement had not been complied with, the Court of Appeal observed that notification had been properly served on the applicant in accordance with the relevant domestic provisions, since the assistance between States provided for in the agreement was mandatory only if one of the High Contracting Parties requested it. Where, as in the present case, no explicit request to that effect had been made, domestic law had to be applied. In addition, although it was true that under Hungarian legislation registered letters could be delivered only to persons who had first been authorised and designated, it was obvious that those rules applied only where, unlike the position in the applicant's case, the person receiving the letter was not the addressee.", "30. The Court of Appeal therefore ruled that, contrary to the applicant's submissions, the first-instance judgment was valid. It followed that the defendant's appeal was out of time, and therefore inadmissible pursuant to Article 591 § 1 (c) of the CCP.", "31. On 30 July 2001 the applicant appealed on points of law. He repeated his request for a report by a handwriting expert and again stated that he was minded to lodge a complaint of forgery.", "32. In a judgment of 23 April 2002, deposited with the registry on 23 May 2002, the Court of Cassation dismissed the applicant's appeal, holding that the reasons given by the Court of Appeal for all its disputed rulings had been logical and correct. It observed in particular that, in spite of minor clerical errors in the address, the notice sent by the Rimini preliminary investigations judge had obviously reached the person it had been sent to. There was no evidence that it had been received by someone of the same name as the applicant living at a similar or nearly identical address.", "33. On 11 December 2001 the applicant asked for a retrial, alleging that certain new information showed that he should have been acquitted. It was submitted that a Hungarian journalist and writer, Mr P., had informed the applicant's lawyer that during a television programme two co-defendants had made statements establishing his client's innocence. In addition, Mr P. had asserted that in his opinion the Italian and Hungarian secret services had intervened in the applicant's case and that a Colonel K., employed in the Organised Crime Unit, knew that the convicted man was innocent.", "34. In a decision of 18 July 2002, the Ancona Court of Appeal declared the application inadmissible. It pointed out that, according to the case-law of the Court of Cassation, statements by co-defendants did not justify reopening a trial. Moreover, the evidence of the persons concerned had already been taken by the lower courts. Furthermore, the opinions expressed by Mr P. about the applicant's innocence were completely subjective and unsubstantiated by any evidence.", "35. According to the information supplied by the Government, identification of the applicant as an arms trafficker was based on the following evidence:\n– the record of an interview with Mrs M. on 20 January 1995 during which she declared that a Tamas Somogyi wished to participate in the criminal activities of the S. brothers and that he had supplied guns to them;\n– a handwritten note from Mrs M. giving the applicant's name and address;\n– a letter sent by one of the S. brothers to Mrs M. – and received by her – at the applicant's address;\n– a receipt for 20,000 German marks, given by Mr Somogyi to Mrs M.;\n– a television interview obtained by an Italian journalist on 16 February 1995 at the applicant's home, during which the applicant showed photographs of Mrs M. and one of the S. brothers;\n– the fact that Mrs M. had recognised the applicant's face in the video recording of the interview; and\n– the fact that the applicant's identity had been checked by the Italian and Austrian police at the time of his extradition, on the basis of a photograph taken from the interview broadcast on 16 February 1995." ]

[ 3 ]

[ "4. The applicants were born in 1943 and 1939 respectively and live in Istanbul.", "5. On 6 September 1993 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Istanbul. A committee of experts assessed the value of the plots of land belonging to the applicants and compensation was paid to them when the expropriation took place.", "6. On 4 February 1994, following the applicants’ request for increased compensation, the Kartal First Instance Court awarded them additional compensation of 48,410,250,000 Turkish liras (TRL) plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 6 September 1993 was fixed by the domestic court for the running of the statutory rate of interest. The parties appealed.", "7. On 12 May 1994 the Court of Cassation quashed the decision of the first instance court. On 2 November 1994 the first instance court re-examined the case and amended the amount of the additional compensation to TRL 45,692,700,000. The decision became final since none of the parties appealed. On 29 December 1997 the administration paid the applicants TRL 95,426,696,000 as the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the date of the decision of the first instance court in favour of the applicant and 31 December 1997.", "8. Between 1993 and 1999 the rate of inflation averaged 81.7% per annum." ]

[ 9 ]

[ "9. The applicant was born in 1928 and lived in Sevlievo.", "10. On 5 April 1995, at 8 a.m., the applicant, at that time 67 years old, was taken by three police officers, lieutenant R., chief-sergeant D., and a driver, to the District Police Department in the town of Sevlievo. The arrest took place in connection with a complaint filed the previous evening by one of the applicant’s neighbours, Mrs T., in which she had alleged that the applicant had beaten her with a stick.", "11. Once on the premises of the District Police Department, the applicant was placed in a detention room, where she spent some time. Then she was brought into the office of lieutenant R. Present in the room were also Mrs T., Mr T. (her husband) and chief-sergeant D. The applicant was confronted with Mrs T. in order to establish whether the facts alleged in the complaint were true. The applicant denied the allegation and an argument erupted between her and Mrs T. Lieutenant R. left the room to take some documents from another office. As the argument between the applicant and Mrs T. continued, chief-sergeant D. led the applicant out of lieutenant R.’s office, into the corridor.", "12. According to testimony given later by chief-sergeant D. and another police officer, sergeant U., after being led out of the office and into the corridor, the applicant, who was irritated, called chief-sergeant D. a “brat”, a “piss-pants” and a “sniveler”, and slapped him on the face. He then grabbed her hands and pushed her back but she kicked him in the ankle. Then sergeant U. intervened to help chief-sergeant D., and the two forced the applicant into a detention room, from where she continued screaming insults at them. Then both officers left the detention room. Both officers denied having hit the applicant or having pushed her to the floor.", "13. The applicant’s version of the facts significantly differed. She denied having insulted or hit chief-sergeant D. She submitted that after taking her out of lieutenant R.’s office, chief-sergeant D. and sergeant U. had guided her to a detention room, where they had started beating her in order to extract a confession. The applicant stated that sergeant U. had been holding her while chief-sergeant D. had been hitting her face and temple and kicking her torso. Her nose had started bleeding and sergeant U. had taken her to the toilet to wash the blood. He had also made the applicant wash the basin and had brought her back to the detention room, where the two had continued beating her. Chief-sergeant D. had kicked her and, while falling on the floor, the applicant had bumped her head against the edge of a table. She had lost consciousness for some time. After that she had spent an unspecified amount of time lying in the detention room.", "14. In his testimony given at the applicant’s trial lieutenant R. relayed that around 12 noon he had come to the detention room and had found the applicant squatting on the floor. The applicant had told him that she “[had been] killed, [that] her waist [had been] broken ... that she [had been] beaten”. He had not seen any blood or visible traces of injury on the applicant but she had told him that her nose and mouth had been injured. The lieutenant had helped her sit on a chair. He had presented her a procès‑verbal establishing the fact that the previous evening the applicant had beaten Mrs T. and had asked her to sign it. The applicant had written “I am not guilty” and had signed. Lieutenant R. had led the applicant to the hallway of the police station and had left her there. She had told him that she could not walk.", "15. After being left by lieutenant R. at the hallway, the applicant asked several police officers to call an ambulance or a taxi to take her to hospital, but apparently no one responded to her request. Then the applicant crawled out of the police station on her hands and knees. She was seen crawling by a boy, G.A., whom she asked to help her reach the nearest payphone by letting her lean against his bicycle. Shortly thereafter a driver, Mr Y., came across them with his car and took the applicant to the surgical ward of the local hospital. Mr Y. later testified that he had not seen visible traces of injury on the applicant but that she had been crying and had said that she had been beaten at the police.", "16. The on-duty surgeon, Dr S., arrived at the hospital at around 4 p.m. and examined the applicant. For the investigation Dr S. stated that at the time of the examination he had not observed visible traces of injury, but at the applicant’s trial he testified that she had come to him with traumas on her head and back. The one on the head had been a dull trauma in the left temporal zone, without skin rupturing. The one on the back had been also a dull trauma under the right scapula, with a visible sub-cutaneous haematoma. In his view, the injuries in question could have been caused by a blow with or against a blunt object.", "17. Dr S. directed the applicant to a consultation with a neurologist from the local emergency ward. The neurologist examined her at 6.15 p.m. and noted that the applicant had “[c]ontusio capitis. ... [c]ommotio cerebri”. His opinion was that she had to be hospitalised and treated.", "18. In the evening the applicant went back to her house and spent the night there.", "19. The following morning, on 6 April 1995, the applicant was admitted to the surgical ward of the District Hospital in Sevlievo. The doctors found:\n“Head – painfulness upon palpation in the left temporal zone; behind and above the left ear – sub-cutaneous haematoma ... Thorax – sub-cutaneous blue-yellowish haematoma, measuring 5 to 4 centimetres in the right thoracic half, in the lower end of the right scapula.”", "20. The applicant stayed in hospital until 14 April 1995. She was treated with analgesics and neuroleptics. The doctors also prescribed rest and calm.\nOn 8 May 1995 the applicant went to the hospital for an examination. The report drawn by the examining doctor stated that at that time the applicant was complaining of “strong vertigo, headache, nausea and vomiting”. The diagnosis again was “[c]ontusio capitis ... [c]ommotio cerebri.”", "21. On 16 June 1995 the applicant was admitted to the neurological ward of the District Hospital in Sevlievo. It appears that at that time the applicant was treated mainly for high blood pressure. She remained in hospital until 17 July 1995.", "22. On the day of incident, 5 April 1995, chief-sergeant D., the police officer who had allegedly beaten the applicant, submitted a report to the head of the District Police Department in Sevlievo. He alleged that the applicant had hit him and had used abusive language against him and asserted that he had put her in the detention room to prevent her from carrying on.", "23. On the basis of this report the District Police Department initiated an inquiry and charged lieutenant R., one of the officers who had arrested the applicant, to conduct it. The lieutenant finished the inquiry in one day and on 7 April 1995 submitted a report concluding that the facts warranted the opening of a criminal investigation against the applicant.", "24. On 13 April 1995 an investigator from the District Investigation Service in Sevlievo opened a criminal investigation against the applicant for having caused a light bodily injury to an official and for having insulted him during the performance of his duties, offences under Articles 131 § 1 (1) and 148 § 1 (3) of the Criminal Code (“CC”). The injury in question was the result of the applicant having allegedly slapped chief-sergeant D. on the face and kicked him in the ankle. No medical evidence was presented. On the same day the investigator heard chief-sergeant D., lieutenant R., sergeant U., Mr T. and Mrs T. A week later, on 20 April 1995, the investigator sent the material to the Sevlievo District Prosecutor’s Office with a recommendation that the applicant be indicted. The case was assigned to prosecutor G. who filed a bill of indictment with the Sevlievo District Court.", "25. When the applicant’s trial opened her counsel requested a medical expert report in order to determine whether the injuries sustained by the applicant could have been the result of beating by the police officer accusing her of violence against him. The District Court did not appoint an expert but instead remitted the case to the prosecution with instructions to carry out the steps requested by the applicant’s defence. However, no report was made, as the prosecutor in charge of the case held that the mechanism of the injuries had already been ascertained by the doctors who had examined the applicant upon her admitting to hospital.", "26. When the trial resumed on 4 and 17 April 1996, counsel for the applicant renewed her request for an expert report but it was denied by the court, which held that the facts of the case had already been established on the basis of the available evidence.", "27. In the proceedings before the District Court the applicant testified that she had been beaten by chief-sergeant D.", "28. In her closing argument at trial counsel for the applicant pointed out that the applicant had been beaten, had sustained injuries, had been treated for them in hospital and that a complaint had been filed with the District Prosecutor’s Office.", "29. On 17 April 1996 the District Court found the applicant guilty as charged and sentenced her to six months’ imprisonment, suspended for three years.\nOn the basis of the testimony given by chief-sergeant D. and sergeant U. (the court held that Mrs T.’s and Mr T.’s testimony was not credible because their relations with the applicant had been strained) the court found that the officers had led the applicant out of lieutenant R.’s office and into the corridor. There, some verbal exchange had taken place between the applicant and chief-sergeant D., while sergeant U. had stepped aside. The applicant had then slapped chief-sergeant D. on the face, had tried to kick him and had called him a “brat” and a “sniveler”. The court noted that the applicant presented a completely different version of the facts, namely that it was her who had been subjected to violence. However, it went on to hold that Dr S., the surgeon who examined the applicant on the day of the incident, had not found blood on the applicant but only a dull trauma on her right scapula. That could have been occasioned by a blow by or onto a blunt object. Thus, it was possible that the applicant had inflicted the injury on herself. Therefore her allegations of savage beating, kicks, pushing, falling down etc. did not correspond to the testimony of the doctors who had examined her. The fact that there had been no visible traces of beating on the applicant was also established through the testimony of G.A., the boy who had helped her move out of the police station, and of Mr Y., the driver who had taken her to the hospital.\nHowever, the court noted that the inquiry whether the applicant had been subjected to violence was not part of the subject-matter of the case before it.", "30. The applicant appealed to the Gabrovo Regional Court, which upheld the conviction and sentence on 18 July 1996. The court noted, inter alia, that if the applicant’s allegations of police ill-treatment were true, she could request the opening of criminal proceedings against the police officers involved.", "31. The applicant then petitioned the Supreme Court of Cassation for review. At the hearing before that court a prosecutor of the Chief Prosecutor’s Office appeared who pleaded for the dismissal of the applicant’s petition. The Supreme Court of Cassation dismissed the petition in a judgment of 25 July 1997.\nIn its judgment the Supreme Court of Cassation held, inter alia:\n“Counsel for [the applicant] calls into question the testimony of [chief-sergeant D.], who, she asserts, is ‘very interested in the outcome of the case’, this interest being presumed from the allegations of [the applicant] that D. had ‘savagely beaten her’. This argument is groundless ... The [applicant’s] assertions that she had been beaten are completely unsubstantiated. In fact, the traces of the ‘savage beating’ were a subcutaneous haematoma above the left ear and an identical haematoma in the lower part of the right thoracic half ... That could have been caused by a blow or a self-inflicted blow with or onto a blunt object ... These injuries and the statements of [the applicant] that she fell unconscious, had vertigo, nausea and had vomited – for the ascertaining of which no objective medical criteria exist – led to her hospitalisation during which no indications of brain damage were found...\nBeside being unproven, the allegation of [the applicant] that ... she was the victim of an offence on the part of the police officers is also illogical. The police officers did not have any reason to be rude toward [the applicant], or, in any event, not until [she] by words and conduct demonstrated her disparagement toward [them] and their work...”", "32. On 6 April 1995, after the applicant was admitted to hospital, her daughter filed a complaint with the Sevlievo District Prosecutor’s Office, alleging that her mother had been beaten by chief-sergeant D. The complaint was dealt with by prosecutor G., the same prosecutor who drew up the indictment in the criminal case against the applicant. On 26 April 1995 he ordered that the complaint be sent for verification to the District Police Department. In the accompanying letter he requested that the following facts be established within fourteen days:\n“Who brought [the applicant] to the Police Department[?] When and for what reasons[?] Was she hit[?] With what[?] In which part of the body[?] What injuries did she sustain[?]”", "33. On 27 April 1995 the head of the District Police Department assigned the verification to lieutenant R., the officer who had arrested the applicant and who had conducted the inquiry against her.", "34. On 5 May 1995 lieutenant R. concluded the verification. He sent a report to the head of the District Police Department, asserting that the applicant had not been beaten and recommending that no criminal investigation be opened. The applicant submits that the lieutenant did not independently establish the facts but instead relied on testimony given in the criminal investigation against her to corroborate his conclusion.", "35. On 1 June 1995 the results from the verification were sent to the District Prosecutor’s Office and given to prosecutor G. Apparently no further investigative actions were undertaken by the prosecution with regard to the complaint. No decision to open or to refuse the opening of a criminal investigation was issued.", "36. In a separate effort to initiate an investigation, on 11 April 1995 the applicant’s daughter filed a complaint with the Ministry of Internal Affairs in Sofia. The Ministry requested information form the District Directorate of Internal Affairs in Gabrovo, which in turn requested information from the Sevlievo District Police Department.", "37. On 17 April 1995 the applicant’s daughter also filed a complaint with the Directorate of the National Police in Gabrovo, which three days later ordered the District Directorate of Internal Affairs to conduct an inquiry.", "38. On 11 May 1995 the District Directorate of Internal Affairs wrote to the applicant’s daughter and to the Ministry, stating that it had not been established that chief-sergeant D. had engaged in any unlawful actions. The letter added that an investigation had been opened into the matter, citing the case-number of the criminal investigation against the applicant.", "39. On 17 May 1995 the Ministry sent a reply to the applicant’s daughter, stating that the prosecution authorities were handling the case and that the Ministry would announce its position after they prosecution had finished dealing with it.", "40. In June 1996 Amnesty International published a report under the heading: “Bulgaria: Shootings, deaths in custody, torture and ill-treatment” (AI Index: EUR 15/07/96), in which, on page 23, the case of the applicant was described. Upon receiving a query from Amnesty International, the Ministry of Internal Affairs sent a reply, in which it relayed that the applicant had been put in the detention room by sergeants D. and U., but asserted that the applicant had not been beaten or ill-treated during her stay in the police station.", "41. In its issue of 22-28 July 1996 a national weekly newspaper, “168 Hours”, published an article describing the case of the applicant, the criminal prosecution against her and the investigation into her daughter’s complaints under the heading “A granny battered a police officer on his place of work”." ]

[ 1 ]

[ "7. The applicant was born in 1952.", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. The applicant is a former Chairman of the Board of and majority shareholder in ZAO Media Most, a private Russian media holding company, which owned NTV, a popular television channel.", "10. On 2 November 1999 the applicant was interviewed by Mr Nikolayev, senior special cases investigator at the General Prosecutor's Office (“the GPO”). It appeared from the transcript of this interview that it concerned an investigation into a State-owned company known as FGP RGK Russian Video (“Russian Video”) in respect of the transfer of a broadcasting licence to a limited liability company, OOO Russian Video‑11th Channel (“OOO Russian Video”), in violation of various provisions of the Civil Code.", "11. After the interview, a witness statement was completed and signed by both the applicant and Mr Nikolayev. The applicant was allowed to check the notes made of the interview and to add his own comments. The investigating officer noted down on the statement that the applicant had been awarded the Friendship of the Peoples Order.", "12. In 2000 Media Most was involved in a bitter dispute with OAO Gazprom, a natural gas monopoly controlled by the State, over Media Most's debts to Gazprom.", "13. After Gazprom had discontinued the negotiations on the debts, Media Most's offices in Moscow were searched by special units from the GPO and the Federal Security Service. A number of documents and other materials were seized as evidence in the framework of an investigation into alleged infringements of privacy by Media Most's security staff.", "14. On 15 March 2000 Mr Nikolayev opened a criminal investigation in respect of the applicant (criminal case no. 18/191012-98) concerning allegations of fraud. This case was joined to a criminal investigation (case no. 18/221012-98) in respect of R., an executive of Russian Video, which concerned allegations of embezzlement. In both cases the allegations related to the business relations between Russian Video and OOO Russian Video and, in particular, Media Most's inclusion into OOO Russian Video and an increase in the latter's authorised capital, which resulted in a redistribution of each shareholder's' stake.", "15. On 11 June 2000 the applicant was summoned to attend the GPO on 13 June 2000 at 5 p.m. to be questioned as a witness in relation to another criminal case. At the time of the summons by the GPO, the applicant was out of the country, but he nevertheless made arrangements to return to Russia. On arrival at the GPO on 13 June 2000, he was arrested and imprisoned in Butyrka Prison pursuant to an order issued on 13 June 2000 by Mr Nikolayev.", "16. The order stated that, on the basis of Articles 90 to 92 and 96 of the Code of Criminal Procedure (“the CCP”), Mr Nikolayev considered that the crime of fraud, of which the applicant was suspected, constituted a serious public threat punishable by imprisonment alone, and that the applicant might obstruct the establishment of the truth in the case and attempt to elude the investigation and trial.", "17. The applicant remained in custody until 16 June, during which time he was interrogated twice, on 14 and 16 June.", "18. The interrogation on 14 June took place in the presence of the applicant's lawyers. It was explained to the applicant before the interview that he was suspected of committing large-scale fraud within the meaning of Article 159 § 3 (b) of the Criminal Code. More specifically, the charges were based on an allegation that in 1996-97, through the establishment of various commercial entities (including Media Most), broadcasting functions were fraudulently transferred from Russian Video, a State-owned company, to OOO Russian Video, a private company, thereby depriving Russian Video of the 11th Channel, which was valued at 10 million United States dollars (USD). It was alleged that in 1997 the applicant, in concert with R., began using the 11th Channel for his own purposes, without payment to the State.", "19. The applicant declined to comment in detail on the investigation, other than to state that he found that it demonstrated an ignorance of Russian law and that a “political contract” had been taken out against him.", "20. Mr Nikolayev noted down in the record of the interview that the applicant had been awarded the Friendship of the Peoples Order.", "21. On 15 June 2000 the applicant's lawyers lodged a petition with Mr Nikolayev, complaining that the applicant's arrest was unlawful in that it did not comply with Article 90 of the CCP, that he was entitled to benefit from an amnesty exempting him from imprisonment on account of the award of the Friendship of the Peoples Order and the Amnesty Act of 26 May 2000, and that the suspicions against him were inconsistent, absurd and false.", "22. In addition, the applicant's lawyers lodged a complaint with the Tverskoy District Court in Moscow under Article 220 § 1 of the CCP, claiming that the applicant's detention was unlawful and requesting his immediate release. They argued that the arrest order had been issued in violation of Articles 90, 92 and 96 of the CCP, since there were no exceptional circumstances justifying the applicant's detention before the charges had been laid or any grounds for imprisonment on the basis of the charges brought. The arrest order appeared to have been politically motivated and imprisonment was unnecessary and constituted an excessive restraint. Furthermore, there were no grounds to suspect that the applicant intended to elude the investigation or any reason to believe that he would obstruct it. Finally, the applicant was subject to an amnesty exempting him from punishment and preliminary imprisonment due to having been awarded the Friendship of the Peoples Order.", "23. On 16 June 2000 Mr Nikolayev charged the applicant with fraud under Article 159 § 3 (b) of the Criminal Code. On the same day the applicant was interrogated in the presence of his lawyers. The applicant refused to sign the record of the interrogation because he did not understand the charges laid. He noted down on the record that he considered the charges to be legally absurd and that he admitted no guilt in relation to them. He again declared that the investigation was being used by the authorities to discredit him and demanded his immediate release.", "24. On the same day, 16 June, Mr Nikolayev ordered the applicant's release from custody in exchange for an undertaking not to leave the country. The applicant was released at 10 p.m. on 16 June 2000.", "25. After the applicant's release, Mr Nikolayev issued summonses for the applicant to appear for further questioning on 22 June and 3, 11 and 19 July 2000. The applicant attended for questioning but refused to answer the questions that were put to him.", "26. The applicant asked Mr Nikolayev on a number of occasions to allow him to leave the country for personal and business reasons. Mr Nikolayev refused without giving detailed reasons.", "27. During the applicant's detention between 13 and 16 June 2000, the Acting Minister for Press and Mass Communications, Mr Lesin, offered to drop the criminal charges against the applicant in connection with the Russian Video case if the applicant sold Media Most to Gazprom, at a price to be determined by Gazprom.", "28. While the applicant was in prison, Gazprom asked him to sign an agreement in return for which the applicant was told that all criminal charges against him would be dropped. The agreement between Gazprom and the applicant was signed on 20 July 2000 (the “July agreement”). It included a provision in Annex 6 calling, inter alia, for the termination of the applicant's criminal prosecution in relation to Russian Video and for an undertaking regarding his security. This provision read as follows:\n“The Parties realise that successful implementation of the Agreement is possible only if the individuals and legal entities concerned acquire and exercise their civil rights of their own free will and in their own interests, without compulsion by any other party to act in any particular way. In the current situation, this implies that certain interrelated conditions must be met, namely:\n– termination of the criminal prosecution against Mr Vladimir Aleksandrovich Gusinskiy in connection with the criminal case initiated against him on 13 June 2000, his reclassification as a witness in the said case and suspension of the precautionary measure prohibiting him from leaving [the country]. Should this condition not be met, the Parties are relieved of their obligations hereunder;\n– provision to Mr Vladimir Aleksandrovich Gusinskiy and other shareholders (stockholders) and executives of the [Media Most subsidiaries] of guarantees regarding their security and protection of their rights and freedoms, including the right to travel freely, to choose their place of stay and residence, to leave the Russian Federation freely and to return to the Russian Federation without hindrance;\n– renunciation of all steps, including public statements or dissemination of information by the organisations, their shareholders and executives, which would damage the foundations of the constitutional regime and violate the integrity of the Russian Federation, undermine the security of the State, incite to social, racial, national and religious discord or lead to the discrediting of the State institutions of the Russian Federation.”", "29. Annex 6 was signed by the parties and endorsed by Mr Lesin's signature.", "30. Following the signing of the July agreement, the criminal prosecution against the applicant in connection with Russian Video was stopped by a stay of prosecution and an order cancelling the precautionary measure, issued by Mr Nikolayev on 26 July 2000. The order read as follows:\n“Analysis of the evidence confirms the illegal nature of [the applicant's] doings. However, the actions of the head of ZAO Media Most, Mr Gusinskiy, contain elements belonging to substantive law as well as elements relating to criminal-law provisions. In view of the specific nature of the act committed, it is impossible to attribute it to separate legal spheres.\nIn the course of the investigation, Mr Gusinskiy understood the unlawfulness of acquiring the right to another's property and, in this connection, he has provided reimbursement for the damage he caused by assigning his share in the statutory capital of OOO Russian Video-11th Channel to the State. In addition, he has significantly compensated for the harm caused to the interests of the State by voluntarily transferring ZAO Media Most shares to a legal entity controlled by the State.\nThe steps taken by the accused are extenuating circumstances and attest to his sincere repentance which, in conjunction with other positive characterising details and the absence of a previous criminal record, enables a decision to be taken to exempt Mr Gusinskiy from criminal prosecution.”", "31. At the same time the precautionary measure forbidding the applicant to leave the country was lifted. On the same day the applicant left Russia and on 21 August 2000 he went to his villa in Sotogrande, Spain.", "32. Following the applicant's departure from the country, Media Most refused to honour the July agreement, claiming that it had been entered into under duress.", "33. On 20 June 2000 the Tverskoy District Court closed the proceedings initiated following the applicant's complaint about the unlawfulness of his detention. The court found that the complaint could not be examined since the detention order had by that time been cancelled, and only those actually detained could appeal against detention.", "34. On appeal, this decision was upheld by the Moscow City Court on 11 July 2000.", "35. On 27 September 2000 Mr Nikolayev initiated a further criminal investigation in respect of the applicant. The new charge was brought under Article 159 § 3 (b) of the Criminal Code and concerned the fraudulent obtaining of loans by Media Most. The applicant was not provided with a copy of the order initiating the proceedings. However, according to the information gathered by the applicant's lawyers, the criminal investigation was opened on the basis of an application filed by Gazprom with the GPO on 19 September 2000. Gazprom asked the GPO to investigate the spending of funds obtained by Media Most and, in particular, to find out whether the use of the loans were in line with the activities permitted by Media Most's charter, whether the funds were used for their intended purpose, and whether the management of Media Most had violated any law in relation to the loans. Gazprom, a State-controlled company, was involved as a guarantor of the loans.", "36. On 1 November 2000 Mr Nikolayev issued a further summons for the applicant to attend the GPO on 13 November, to be informed of the charges against him and interrogated.", "37. As the applicant did not attend the GPO, Mr Nikolayev amended the order for the applicant's prosecution. He re-instigated the charges for fraud under Article 159 § 3 of the Criminal Code, this time in connection with another incident, and imposed the precautionary measure of detention. The order was transmitted to the Russian National Interpol Bureau. The charges alleged that the applicant had fraudulently obtained loans.", "38. The applicant was arrested in Spain on 11 December 2000 pursuant to an international arrest warrant and imprisoned in that country on 12 December 2000. On 22 December 2000 the applicant was released from prison on bail of USD 5.5 million and placed under house arrest in his villa in Sotogrande.", "39. Following an application by the applicant's lawyers, the Tverskoy District Court in Moscow ruled on 26 December 2000 that the initiation of the Media Most loan investigation had been unlawful because the evidence gathered by the investigating authorities had not disclosed sufficient elements of fraud to institute criminal proceedings.", "40. On 5 January 2001 the Moscow City Court set aside the judgment of 26 December 2000 on the ground that no appeal lay against investigating authorities' decisions to institute criminal proceedings.", "41. Following proceedings in the Spanish courts, on 4 April 2001 a judgment was given in the applicant's favour refusing the request by the Russian authorities for the applicant's extradition from Spain. In refusing the extradition request, the Spanish court (Audiencia Nacional) stated:\n“[I]t is possible to observe in the documents furnished by [the applicant]... certain noteworthy and peculiar circumstances which are unusual in the sphere of judicial claims for fraud and which, although they do not in themselves lead to the conclusion that we are dealing with an irregular claim filed for a political purpose, compel the Court to consider [the applicant's] argument as not completely without foundation as far as the facts and interferences are concerned and as not inconceivable or discountable on the basis of logical criteria and experience.\nThe Court considers the following circumstances of the case to be peculiar: 1. The agreement of 20 July 2000 ... of sale by [the applicant] to Gazprom-Media of a parcel of shares ... [Annex 6] – a supplementary agreement which is not common in relationships between sellers and purchasers of securities – concludes with two signatures, one of which is the habitual signature of the representative of Gazprom-Media ... which appears in the body of the contract and in other annexes and another signature which at first sight does not coincide with [the applicant's] normal signature – in the agreement, annexes and stamps in this extradition procedure. [The applicant] claims that this is the signature of a member of the Russian government. 2. ... Six days after the date of the agreement, [the applicant], who stood accused in the proceedings [concerning Russian Video] and had undertaken not to leave the country, was exempted from liability in the said proceedings and the measure restricting his freedom was lifted ... 3. [The applicant's] statements at the extradition hearing with regard to the pressure and coercion suffered, which he gives as the reasons prompting him to sign the agreement of 20 July 2000 ... 4. The judgment of the Tverskoy District Court of 26 December 2000 ...\nThese peculiarities of the case must inevitably have legal significance for the judicial ruling on this extradition request since the fact that the Court has perceived them ... obliges it, for reasons of legal security and effective judicial protection ... to stretch to the extreme the judgment of double incrimination, analysing the grounds for the accusation in view of the need to provide due legal protection ...”", "42. On 19 June 2002 Judge Merkushov, a Deputy President of the Supreme Court, lodged an application for supervisory review of the decisions of the Tverskoy District Court of 20 June 2000 and the Moscow City Court of 11 July 2000. The judge maintained that it was the lawfulness of detention rather than detention itself which should have been the subject of the judicial review. He requested the Presidium of the Moscow City Court to remit the case for a fresh examination by the Tverskoy District Court.", "43. On 18 July 2002 the Presidium of the Moscow City Court granted the application.", "44. On 26 September 2002 the Tverskoy District Court examined the substance of the complaint in respect of detention. At the hearing, the representative of the GPO (the defendant) argued that at the time of the applicant's arrest he could have obstructed the course of justice because he had been the head of Media Most and, accordingly, had unlimited opportunities to influence witnesses and had access to written evidence. Furthermore, as the applicant had dual citizenship and a travel passport, he could have escaped abroad. With regard to the applicant's allegation that he had been entitled to an amnesty, the prosecutor noted that documentary proof that the applicant had indeed held the award in question had been submitted only on 15 June 2000, that is to say, after the arrest, and the applicant had been released on the following day. The Tverskoy District Court accepted the GPO's arguments. It found that, in the light of the explanations provided by the GPO's representative, the wording of the detention order of 13 June 2000 could not be regarded as strained and hypothetical. As to the award, the court found that the law on criminal procedure contained no restriction on the application of precautionary measures to a person subject to an amnesty." ]

[ 2 ]

[ "8. The applicants, Mr Alfred Lotter and Ms Edith Lotter (Bernhart), are Austrian nationals who were born in 1956 and 1962 respectively. At the relevant time they were married together. The applicants are Jehovah’s Witnesses.", "9. The applicants visited Bulgaria for the first time in December 1992. They entered Bulgaria again on 1 March 1993 and remained in the country for the following several years. In 1993 they obtained temporary residence permits valid until 6 November 1995.", "10. On 22 April 1993 the investigation authorities opened a criminal investigation into the activities of Jehovah’s Witnesses. In April and July 1993 the first applicant and other followers of Jehovah’s Witnesses were questioned.", "11. In June 1994, following a legislative amendment requiring religious associations to re‑register, by decision of the Council of Ministers a number of such associations, including the Jehovah’s Witnesses’ organisation in Bulgaria, were refused re‑registration (see Khristiansko Sdruzhenie “Svideteli na Iehova” (Christian Association Jehovah’s Witnesses) v. Bulgaria, no. 28626/98, Commission’s decision of 3 July 1997, Decisions and Reports (DR) 90, p. 77). Although the applicants were not members of the dissolved association, it was an established administrative practice in Bulgaria to consider that the Council of Ministers’ decision of June 1994 rendered unlawful all religious activity related to the Jehovah’s Witnesses’ cult.", "12. On 1 December 1995, acting on the recommendation of the Plovdiv security service, the police withdrew the applicants’ residence permits and ordered them to leave Bulgaria by 29 December 1995. The police decisions only stated that they were based on section 31(1) of the Aliens (Residence in Bulgaria) Act, which provided that an alien could be refused the right to reside in Bulgaria if he or she has endangered the security or the interests of the State or his or her activities could pose a threat in this respect. No reasons were provided.", "13. The applicants appealed to the Plovdiv Regional Court. In a decision of 15 March 1996 that court held that it had no jurisdiction to examine the appeal as under section 34(1) of the Administrative Procedure Act measures relating to the national security were excluded from judicial review.", "14. The applicants appealed to the Supreme Court. On 6 May 1997 the Supreme Court, which had in the meanwhile become the Supreme Administrative Court, dismissed the appeals.", "15. The first applicant left Bulgaria at the end of 1997. It appears that the applicants divorced. The second applicant married a Bulgarian citizen and stayed in Bulgaria.", "16. Following several months of negotiations, in February 1998 the Bulgarian Government and persons representing the dissolved association of Jehovah’s Witnesses signed a friendly settlement in the proceedings before the former Commission (see Khristiansko Sdruzhenie “Svideteli na Iehova” (Christian Association Jehovah’s Witnesses) v. Bulgaria, no. 28626/95, Commission’s report of 9 March 1998, DR 92, p. 44). Since October 1998 Jehovah’s Witnesses in Bulgaria enjoy the status of a religious denomination." ]

[ 4 ]

[ "6. The applicant was born in 1970 and lives in Biala Podlaska.", "7. On 21 April 1993 the applicant was taken into custody on suspicion of forgery.", "8. On 19 August 1993 he was released on bail.", "9. On 31 December 1993 the bill of indictment was submitted to the Lublin Regional Court (sąd wojewódzki).", "10. The court held hearings on 19 August and 6 September 1994. The applicant did not attend them.", "11. On 6 September 1994 the court ordered the detention on remand of the applicant. It made a reference to his hiding and obstructing the proceedings. The court adjourned the examination of the case. In October and November 1994 the police searched for the applicant.", "12. On 15 November 1995 the court stayed the proceedings due to the absence of the applicant. On 26 October 1995 it resumed the examination of the case in so far as it concerned the other accused persons.", "13. On 16 January 1995 the applicant was apprehended in Belarus. On 1 June 1995 a Belarusian court convicted him of theft and sentenced him to four years’ imprisonment in a labour camp.", "14. On 9 January 1996 the Belarusian authorities handed over the applicant to the Polish authorities and it was agreed that he would serve the remaining part of his sentence in Poland.", "15. On 17 January 1996 the Lublin Regional Court resumed the proceedings against the applicant and scheduled a hearing for 15 February 1996. However, the hearing was adjourned on the grounds of the sickness of one of his co-accused.", "16. On 13 February 1996 the court ordered the applicant’s psychiatric examination, considering that his experiences in Belarus could have affected his mental health.", "17. On 28 October 1996 the Warsaw Regional Court ordered the execution of the remaining part of the sentence ordered by the Belarusian court in a Polish prison.", "18. On 4 April 1997 the Lublin Regional Court held a hearing. On 22 April 1997 it adjourned the examination of charges against another accused person, S.M., to a separate set of proceedings.", "19. On 29 April 1997 the applicant lodged a request for release. On 6 May 1997 the court refused that request, pointing out that since 1994 the proceedings could not be conducted because of the applicant’s failure to attend hearings and his commission of an offence abroad.", "20. On 10 June 1997, in a decision refusing another such request, the court observed that since 9 January 1996 the applicant had not been detained on remand, but had been serving the sentence of the Belarusian court.", "21. The hearing scheduled for 4 June 1997 was adjourned. It was held on 25 August 1997.", "22. On 11 September 1997 the court refused the applicant’s further request for release. It referred to the severity of the punishment faced by him and the necessity to ensure the proper conduct of the proceedings.", "23. On 6 October and 13 November 1997 the court held hearings.", "24. On 17 January 1998 the applicant finished serving the sentence imposed in Belarus.", "25. On 27 January 1998 the court decided to continue his detention until 30 June 1998. It relied on the severity of the punishment faced by the applicant and the necessity to ensure the proper conduct of the proceedings. The court made reference to the instances of obstructing the proceedings by the applicant.", "26. On 18 February 1998 it held a hearing, at which it ordered the examination of a witness by another court.", "27. On 23 June 1998 the court refused the applicant’s request for release and prolonged his detention until 31 October 1998. It invoked the grounds on which it had relied in the decision of 27 January 1998.", "28. On 14 July 1998 the court refused another such request. It made a reference to the previous decisions concerning the detention and the grounds therefore. The court pointed out that there were no guarantees that the applicant would not obstruct the proceedings, if released.", "29. On 30 October 1998 it prolonged the applicant’s detention until 30 January 1999. The court considered that the evidence collected in the course of the proceedings showed that the charges laid against the applicant were sufficiently justified and that the necessity to ensure the proper course of the proceedings called for further detention.", "30. On 11 December 1998, in reply to the applicant’s complaints, the President of the Regional Court pointed out that the prolongation of the proceedings was caused by the amount of evidence contained in the case file and the fact that a certain witness had to be heard by a different court.", "31. The hearing scheduled for 6 January 1999 was adjourned because of the sickness of one of the co-accused.", "32. On 12 January 1999 the court prolonged the applicant’s detention on remand until 31 March 1999. It noted that the hearing scheduled for January 1999 had had to be adjourned and that the proceedings could last beyond the date mentioned in the decision of 30 October 1998. The court ordered, at the applicant’s request, his medical examination. It further requested the preparation of a report on the situation of the applicant’s family. The report was submitted on 2 February 1999.", "33. On 4 February 1999 the court refused another request for release, based on the applicant’s state of health and the alleged necessity to take care of his father. It observed that the applicant was under constant psychiatric care and his father was being looked after by the applicant’s mother.", "34. The hearing scheduled for 3 March 1999 was adjourned due to the sickness of one of the co-accused.", "35. On 31 March 1999 the court held a hearing. It ordered the applicant’s release and his supervision by the police.", "36. The court held further hearings on 5 and 27 May 1999.", "37. On 31 August it refused the applicant’s petition to have his passport returned.", "38. The court held hearings on 5 April and 9 August, as well as on 3, 6 and 9 November 2000. On 15 November 2000 it gave judgment. The court convicted the applicant of several counts of forgery and the purchase of a stolen car. It sentenced him to two years’ imprisonment suspended for three years and imposed a fine. The judgment concerned also 5 other accused persons.", "39. One of the co-accused and the prosecutor lodged appeals against the judgment.", "40. The first hearing scheduled by the appellate court did not take place because of a mistake made during the dispatch of summonses.", "41. The hearing scheduled for 11 September 2001 was adjourned because of the absence of one of the accused’s counsel.", "42. On 27 November 2001 the Lublin Court of Appeal (sąd apelacyjny) gave judgment. It amended certain parts of the first-instance court’s judgment." ]

[ 6 ]

[ "4. The applicant was born in 1931 and lives in Pécs.", "5. On 16 April 1986 the applicant filed for divorce. In the proceedings before the Nagyatád District Court he also claimed the division of the matrimonial property.", "6. The District Court held hearings on 6 January, 3 March and 19 June 1987. It appointed an expert architect to evaluate the investments which the parties’ had made in their house.", "7. On 22 September 1987 the District Court pronounced the parties’ divorce.", "8. On 21 October 1987 the expert submitted his opinion.", "9. On 23 June 1988 the District Court gave a decision on the division of the matrimonial property.\nOn appeal, on 1 December 1988 the Somogy County Regional Court held a hearing, quashed the first-instance decision and remitted the case to the first-instance court.", "10. In the resumed proceedings before the District Court, on 17 January 1989 the applicant extended his action to involve his son and the mother of his ex-wife.", "11. On 31 March, 17 April, 16 May, 26 July, 12 September 1989 and 29 August 1990 the District Court held hearings.", "12. On 11 February 1991 the District Court appointed an agricultural expert to make an evaluation of the parties’ orchard. The expert submitted his opinion on 16 April 1991.", "13. On 7 September 1992 the District Court heard the expert architect as well as four witnesses. A further hearing took place on 29 January 1993.", "14. On 2 November 1993 the District Court divided the matrimonial property.", "15. On 2 December 1993 the applicant requested the rectification of the judgment. On 16 December 1993 the District Court dismissed his request. The Regional Court confirmed this decision on 29 April 1994.", "16. On appeal, the Regional Court held hearings on 28 April and 2 June 1994. On 10 June 1994 it modified the first-instance judgment.", "17. On 17 October 1994 the applicant filed a petition for review with the Supreme Court.", "18. On 25 April 1995 the Supreme Court quashed the second-instance judgment and remitted the case to the Regional Court.", "19. In the resumed proceedings, a hearing took place on 16 November 1995. On 23 December 1995 the Regional Court appointed an agricultural expert who submitted his opinion on 28 May 1996.", "20. On 5 September and 14 November 1996 the Regional Court held further hearings. On the latter occasion the agricultural expert and a witness were heard.", "21. On 29 November 1996 the Regional Court appointed a forestry expert. The expert presented his opinion on 23 April 1997 and finalised it on 2 June 1997.", "22. On 5 June and 3 July 1997 the Regional Court heard a witness and the forestry expert.", "23. On 10 July 1997 the mother of the applicant’s ex-wife died. The Regional Court interrupted the proceedings on 18 July 1997. On 10 February 1998 the applicant requested the court to arrange for the deceased defendant’s successor to enter the proceedings. On 4 May 1998 the local public notary informed the court that the applicant’s son, being already a party to the case, was the successor.", "24. On 28 August 1998 the Regional Court put further questions to the forestry expert. The expert submitted his replies on 9 November 1998.", "25. On 4 February 1999 the parties requested that the proceedings be stayed.", "26. On 7 October 1999, at the applicant’s request, the Regional Court continued the proceedings and held a hearing.", "27. On 14 October 1999 the Regional Court delivered the final judgment in the case. It was served on the applicant on 4 November 1999." ]

[ 3 ]

[ "8. The applicant was born in 1954 and lives in Świecie, Poland.", "9. Between 1977 and 1992 the applicant ran a cake shop on premises leased from the Association of the Landlords and Administrators of Houses in Świecie (Zrzeszenie Właścicieli i Zarządców Domów) (“the Association”). On an unknown date in 1991 the Świecie District Court (Sąd Rejonowy) ordered his eviction.", "10. On 10 December 1992 the applicant sued the Association in the Bydgoszcz Regional Court (Sąd Wojewódzki), seeking the return of expenses incurred in connection with the modernisation of his business premises. On 3 February 1993 the court partly exempted the applicant from court fees. Subsequently, the case was assigned to another judge.", "11. The hearing listed for 30 June 1993 was adjourned. The court held hearings on 6 October and 16 December 1993. At the hearing held on 1 April 1994 the court ordered that expert evidence be obtained. On 6 June 1994 the expert report was submitted to the court.", "12. On 27 September 1994 the applicant modified his claim. On 5 January 1995, upon the applicant’s request, the court joined S.C., B.M. and T.R., the co-owners of the property, to the proceedings as the defendant parties.", "13. The court held hearings on 30 January and 13 May 1995. Later, the case had to be re-opened due to the change of the presiding judge. The hearings listed for 13 July and 30 October 1995 were adjourned.", "14. On 5 February 1996 the applicant requested that the court issue an interim order to safeguard his claim in the proceedings, until a judgment on the merits was given. On 10 June 1996 the trial court granted the applicant’s request.", "15. On 13 March and 12 April 1996 the court held further hearings.", "16. On 1 August 1996 the case was referred to a new presiding judge.", "17. On 6 February 1997, on the defendant’s interim appeal, the Gdańsk Court of Appeal (Sąd Apelacyjny) set aside the first-instance order of 10 June 1996. \n18 On 28 May 1997 the court held a hearing. The hearing listed for 9 September 1997 was adjourned. On 23 October 1997 the court held a viewing of the site. A further hearing was held on 28 January 1998.", "19. On 11 February 1998 the Bydgoszcz Regional Court gave its judgment. The applicant appealed on 21 April 1998. On 9 October 1998 the Gdańsk Court of Appeal held a hearing. On 23 October 1998 the Court of Appeal quashed the first-instance judgment and remitted the case.", "20. On 9 April 1999 the Regional Court ordered that the applicant specify his claims and adduce the relevant evidence. On 19 April 1999 he submitted his pleadings to the court. On 6 May 1999 the court again ordered the applicant to specify and substantiate his claims. On 13 May 1999 the applicant submitted his additional pleadings.", "21. On 13 July 1999 the applicant modified his claim. On 8 September 1999 the court held a hearing. It partly exempted the applicant from court fees relating to the modification of his claim. On 15 November 1999 the court revoked the exemption. On 7 December 1999 the trial court refused to entertain the modified claim as a result of the applicant’s failure to pay the court fees.", "23. On 22 December 2000 the Bydgoszcz Regional Court gave judgment. The applicant appealed against the judgment to the Gdańsk Court of Appeal. On 6 April 2001 the Bydgoszcz Regional Court rejected the appeal because the applicant had failed to pay the required court fee within the statutory time-limit." ]

[ 3 ]

[ "4. The applicant was born in 1929 and lives in Jarosław, Poland.", "5. On 4 November 1994 the applicant lodged with the Jarosław District Court (Sąd Rejonowy) a civil action against the Jarosław City Council (Gmina Miejska) in which she requested the court to amend the land register. She further applied for exemption from the court fees.", "6. On 21 November 1994 the case was transferred to the Przemyśl Regional Court (Sąd Wojewódzki).", "7. On the same day, upon the court’s request, the applicant specified her claim.", "8. On 30 January 1995 the court partly exempted the applicant from the court fees.", "9. In April 1995 the court again ordered the applicant to specify her claim.", "10. On 24 April 1995 the Regional Court held the first hearing.", "11. Subsequently, the hearings were held on 20 June and 3 October 1995. At the latter hearing the court ordered an expert opinion.", "12. On 16 April 1996 an expert submitted his opinion to the court.", "13. On 27 August 1996 the court held a hearing at which it ordered a second expert opinion. The opinion was submitted to the court in January 1997.", "14. The next hearings were held on 31 January, 25 February, 18 March, 18 April and 30 May 1997.", "15. On 6 June 1997 the Przemyśl Regional Court gave judgment in which it dismissed the applicant’s claim.", "16. On 4 August 1997 the applicant lodged an appeal against this judgment.", "17. On 7 October 1997 the applicant was partly exempted from the court fees in the appellate proceedings.", "18. On 8 October 1998 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal.", "19. On 9 November 1998 the applicant lodged a cassation appeal. On 20 November 1998 the Rzeszów Court of Appeal exempted the applicant from the fees for lodging the cassation appeal.", "20. On 25 May 2001 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal as it was manifestly ill-founded and raised no serious legal issues." ]

[ 3 ]

[ "8. The applicant was born in 1955 and lives in or about Lancashire.", "9. The applicant and his family are gypsies. They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at Cottingley Springs. They lived there permanently for about thirteen years, until February 1997 when they moved off. They stated that they moved off the site at that time due to the anti-social behaviour of others living on the site and others who came onto the site, e.g. vehicles being driven round the site at night, violence and disturbances such that they could not sleep at night or the children play safely during the day. They moved into a rented house but were unable to adapt to these conditions. They gave up their tenancy when offered two plots for the family at Cottingley Springs.", "10. The applicant returned to the site with his family in October 1998.", "11. By a licence agreement dated 22 October 1998, Leeds City Council (“the Council”) granted the applicant and his wife a contractual licence to occupy plot no. 35 at Cottingley Springs caravan site in Leeds. The licence in Clause 12 required the applicant as occupier to comply with the Site Regulations, while Clause 18 stated:\n“No nuisance is to be caused by the occupier, his guests, nor any member of his family to any other person, including employees of the Council, the occupiers of any other plots on the Site, or occupiers of any land or buildings in the vicinity of the Site.”", "12. On 29 March 1999, the applicant’s adult daughter Margaret Connors was granted a licence to occupy the adjacent plot, Plot 36, where she lived with Michael Maloney who later became her husband. She also cared for the applicant’s mother-in-law, Margaret Kelby, until she went into a residential nursing home in the area. The applicant’s adult sons, James Junior and Joseph, did not reside with the applicant but were frequent visitors both to his plot and their sister next door.", "13. During 1999, the applicant and his family were in dispute with the Council due to its alleged failure to undertake repairs on Plot 36 (there was no electricity supply or other facilities for some time), their objection to paying electricity charges which they considered to be overcharging and concerning the Council’s refusal to accept payment by instalment for the site deposit. Their complaints were referred to the Local Authority Ombudsman to investigate.", "14. The Government stated that the applicant’s children (including his adult sons James Junior and Joseph) and Michael Maloney misbehaved and caused considerable nuisance at the site. The Council’s Travellers Services Manager, based at the site, was aware of many incidents of nuisance caused by the applicant’s children and visitors. The Manager visited the applicant and Margaret Connors on a number of occasions to report the misbehaviour and nuisance. On 16 December 1998, the Council gave the applicant written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Nevertheless, both the applicant’s children and his visitor Michael Maloney continued to cause nuisance at the caravan site.", "15. In January 2000, when it became known that Margaret Connors was going to marry Michael Maloney, the applicant alleged that the Council manager of the site stated, “The minute you marry Michael Maloney you’ll be out that gate”. Michael Maloney was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “a magnet for trouble”. In February 1997, the Maloney family had moved from the site. They remained in the Leeds area until the summer of 1999 when they went to Nottingham.", "16. On 31 January 2000, notice to quit was served on the family requiring them to vacate both plots. No written or detailed reasons were given by the Council, though the issue of “magnet for troublemakers” had been raised.", "17. On 12 February 2000, Margaret Connors married Michael Maloney and they continued to live on Plot 36.", "18. On 20 March 2000, the Council issued two sets of proceedings for summary possession pursuant to Order 24 of the County Court Rules, one concerning the applicant and his wife and family on Plot 35 and the other against Margaret Connors and “persons unknown” on Plot 36. On 24 March 2000, the applicant was served with various documents. The grounds for possession stated that the defendants were in occupation without licence or consent. In the witness statement dated 17 March 2000, the site manager referred to Clause 18 of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit. No particulars of breach were given. He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines set out in the Department of the Environment Circular 18/94.", "19. The applicant disputed that they were in breach of Clause 18, that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare.", "20. At this stage, the applicant’s family consisted of his children Charles aged 14, Michael aged 13, Daniel aged 10 and Thomas aged 4 months. Thomas had been suffering from serious illness, with kidney problems and rashes of unknown origin, while the applicant’s wife, who was asthmatic, had suffered several attacks requiring visits to hospital. The applicant himself had been having chest pains and was awaiting a hospital appointment. Daniel had settled well into full-time education at the nearby primary school, and the others were receiving assistance, including teaching at home.", "21. The Council served further witness statements containing particulars of the allegations of nuisance. These were disputed by the applicant. They related largely to Margaret and Michael Maloney on Plot 36.", "22. On 14 April 2000, the summary possession proceedings were adjourned pending the determination of the applicant’s application for permission to apply for judicial review of the Council’s decision to determine the licence of his plot which had been lodged on 10 April 2000. During the hearing, Margaret and Michael Maloney indicated an intention to leave the site. As the bulk of the complaints were against them, the applicant stated that the Council were requested to review its decision to terminate the licence of the applicant and his family.", "23. On 12 May 2000, the High Court refused permission to apply for judicial review. The judge noted that the applicant’s counsel accepted that the necessary investigations had been carried out by the Council and rejected as unarguable the contention, as regarded procedural fairness, that the applicant had not been given prior warning of the threat of eviction.", "24. On 16 May 2000, the applicant applied to the Director General of Fair Trading for a ruling that the terms of the licence agreement were unfair, in particular that Clause 18 was unfair in holding him responsible for the actions of visitors whom he could not reasonably be expected to control.", "25. The Council took the decision to proceed with the eviction. It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn. On 19 June 2000, the County Court granted a possession order. The Council undertook not to execute a warrant for possession until 14 July 2000 on condition that the applicant and his family were of good behaviour and kept the peace.", "26. Further representations were made by the applicant to the Council without success.", "27. On 13 July 2000, as the applicant had not given up possession, the Council obtained a warrant for possession of the plot. The Government stated that the applicant and his family barricaded themselves in the plot and refused to leave when the County Court bailiffs attended to execute the warrant. The Council applied to the High Court for enforcement of the order for possession. On 24 July 2000, the High Court ordered the Sheriff to execute the warrant for possession. The Sheriff’s officer, the bailiffs and the West Yorkshire police carried out a planning and risk assessment. The Sheriff’s officer attended the site and requested the applicant to vacate the plot. He refused.", "28. On 1 August 2000, early in the morning, the Council commenced enforcement of the eviction, in an operation involving Council officers, the Sheriff’s officers and numerous police officers. The applicant stated that also police helicopter, police dogs, control centre, numerous police vehicles and detention vans were employed. The operation lasted five hours.", "29. The Government stated that the police arrested the applicant and his son Daniel for obstruction under section 10 of the Criminal Law Act 1977. The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested. He was handcuffed and held in a police van for an hour and subsequently at the police station, though he was complaining of chest pains. At about midday, he was taken to hospital for emergency admission.", "30. According to the applicant, his thirteen-year-old son Michael was also seized and held in a van by the police for five hours during the eviction. The applicant’s wife was left to cope alone, the baby Thomas being ill.", "31. The family’s two caravans were removed (they owned one and the other was rented). The applicant stated that it was not until late afternoon that their own caravan was returned to them. However many of their possessions were still held by the Council, including medicine needed for Thomas. During 3 August 2000, the Council returned their possessions, including a washing machine, drier, microwave, gas bottles, kettle and clothing. This was dumped on the roadside some distance away from the applicant’s caravan. The Government stated that on 1 August 2000 the Council removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them. At the request of the applicant, the Council returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at Cottingley Drive owned by the Council, where the presence of gypsies was sometimes tolerated for short periods. As they claimed it was not possible to get into the field to deliver the goods directly, the Council unloaded the goods at the edge of the field, informed the applicant and kept watch until they were collected.", "32. A group of gypsies was at that time on the land at Cottingley Drive for the purpose of attending a wedding. This group did not however leave by 1 August as previously agreed, staying on to attend the funeral of a baby who had died on 31 July 2000. The Council prepared eviction proceedings and included the applicants as “persons unknown”. The applicant alleges that no assistance or advice was given to them as to where they could go, save for an offer of accommodation at Bridlington (on the east coast) which failed to take into account the local community ties of the family who had lived on Cottingley Springs site for most of 13 years and in the Leeds area for some 20 to 30 years.", "33. An application for adjournment of the possession proceedings was rejected by the County Court on 14 August 2000. The applicant and his family moved from the land and travelled around the Leeds area stopping for a few days at a time.", "34. The Government stated that the applicant and his family had returned to the caravan site three times since as trespassers. The Council applied for an injunction to ban the applicant and his family from entering the site. The outcome of these proceedings is not known.", "35. The applicant stated that following the eviction he and his family were required to move on repeatedly. Partly at least due to the stress and uncertainty, the applicant’s wife chose to move into a house with the younger children and they were separated in May 2001. Daniel lived for a while with the applicant. Following the eviction, he did not return to school. The applicant stated that he continued to travel in his caravan, with his son Michael and occasionally Daniel, but that they were unable generally to remain in any place for more that two weeks. He continued to have chest pains for which he received medication and tests. As he had no permanent address, he used his wife’s address for postal purposes, including medical appointments." ]

[ 4 ]

[ "8. On 28 April 1993 the Vorarlberg Regional Employment Office (Landesarbeitsamt) granted the B. company, whose executive director was the applicant, a preliminary and temporary work permit for A., another Turkish citizen. It further stated that should the B. company receive a negative decision on the request for a definitive work permit, A. would loose his right to work four weeks after the service thereof. On 25 May 1993 the Regional Employment Office refused to grant A. a definitive work permit. This decision was served on 26 May 1993. The B. company appealed against it and, referring to A.’s preliminary work permit, requested that its appeal be exceptionally granted suspensive effect. On 20 July 1993 the Constitutional Court (Verfassungsgerichtshof) refused this request. This decision was served on the applicant’s counsel on 12 August 1993.", "9. On 19 August 1993 the B. company notified the Bregenz District Administrative Authority (Bezirkshauptmannschaft) of its commercial-law manager’s C. representation by counsel in possible administrative criminal proceedings against him for alleged illegal employment of a foreigner. The B. company argued that C. could not be deemed culpable for the period of time while its complaint had been pending before the Constitutional Court, as it was not until the service of that court’s decision that he learned that suspensive effect had not been granted.", "10. On 28 October 1993 the Bregenz District Administrative Authority informed the applicant of its suspicion that he had illegally employed A. between 24 June and 10 August 1993. It invited the applicant either to comment in writing or to make an appointment with the authority for an oral justification within two weeks.", "11. On 29 November 1993 the applicant replied to the District Administrative Authority by referring in essence to the contents of the B. company’s notification of 19 August 1993.", "12. On 2 March 1994 the District Administrative Authority informed the applicant about the evidence taken in his case and attached a statement by the Vorarlberg Regional Employment Office. It invited the applicant to comment, within two weeks, either in writing or personally, at the authority’s office.", "13. On 18 March 1994 the applicant submitted that he had initially employed A. on the basis of his preliminary work permit. He argued that he had not acted culpably as, prior to his case, the Constitutional Court had not ruled on the question whether an appeal against the refusal of a work permit could be granted suspensive effect in view of a prior preliminary work permit. Consequently, in such an unclear legal situation, he could not be blamed for a mistake of law either.", "14. On 31 March 1994 the District Administrative Authority imposed a fine of 5,000 Austrian schilling (ATS) on the applicant for breach of Section 28 of the Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz). It noted that he had illegally employed A. after his preliminary work permit had expired on 23 June 1993, i.e. four weeks after the service of the Regional Employment Office’s negative decision of 25 May 1993. It remarked that the B. company’s appeal against the latter decision had no effect on the applicant’s case.", "15. On 11 May 1994 the applicant appealed against this decision, repeating in essence his submissions of 18 March 1994.", "16. On 2 May 1995 the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereafter referred to as the “IAP”) summoned the applicant and his counsel to an oral hearing scheduled for 26 May 1995. The summons, which indicated that the applicant’s personal presence was required, was addressed to the applicant’s counsel and stated that counsel was obliged to inform the applicant of the date of the hearing. Further, referring to Section 51 f § 2 of the Code of Administrative Offences (Verwaltungsstrafgesetz), it noted that the hearing would be conducted in his absence if he failed to appear.", "17. On 17 May 1995 counsel requested a postponement of the hearing because he planned to attend a conference on that date.", "18. On 18 May 1995 the IAP refused this request on the ground that witnesses had already been summoned and that counsel was free to send a colleague as substitute.", "19. On 26 May 1995 the IAP, in the absence of the applicant and his counsel, held a hearing at which it heard two witnesses, both cousins of the applicant. One of them informed the authority that the applicant was staying in Turkey and had initially asked him to help clarify the case at issue because of his good command of German. The second witness, an employee of the B. company, confirmed that A. had worked and been paid during the period at issue.", "20. On 1 June 1995 the IAP sent the applicant’s counsel the minutes of the hearing and enclosed a letter of the Vorarlberg Regional Employment Office of 4 April 1995, which stated that A. had been covered by compulsory insurance for workers between 6 May and 20 August 1993. The IAP further invited him to comment in writing within one week.", "21. On 7 June 1995 counsel requested a suspension of the proceedings until the applicant’s return to Austria in order to hear him in person. On the same day, the IAP informed counsel that the decision would be pronounced publicly on 22 June 1995.", "22. On 19 June 1995, referring to the applicant’s right under Article 6 of the Convention, counsel requested again that the proceedings and the public pronouncement be adjourned until the applicant’s return to Austria.", "23. On 22 June 1995 the IAP confirmed the District Administrative Authority’s decision. It noted that the facts had been sufficiently established by the witnesses. Thus, there was no need to hear the applicant upon his return to Austria. For the same reason the IAP had also refused the request for adjournment of 19 June 1995. Given the applicant’s representation by counsel throughout the proceedings, counsel had the possibility to attend hearings, where he could have forwarded arguments in favour of the applicant and could have examined the witnesses, thereby preserving the applicant’s defence rights. However, counsel had failed to make use of these opportunities. Moreover, since counsel had only forwarded arguments of law in defence and had never explicitly opposed the imputed fact of employment, there was no reason to hear the applicant. The IAP further held that the applicant could not enjoy impunity for having committed a mistake of law, as this only applied in the event an authority, e.g. the Employment Office, had incorrectly informed him. However, the applicant had never sought legal advice by a competent authority.", "24. On 8 August 1995 the applicant lodged a complaint with the Constitutional Court invoking Article 6 of the Convention.", "25. On 26 February 1996 the Constitutional Court declined to deal with the complaint on the ground that it did not raise a question of constitutional law. It noted that Article 6 would only be violated if the IAP had incorrectly applied Section 51 f § 2 of the Code of Administrative Offences and remitted the complaint to the Administrative Court (Verwaltungsgerichtshof).", "26. On 23 August 1996 the applicant supplemented his complaint and requested legal aid.", "27. On 13 November 1996 the Administrative Court noted that the applicant had failed to submit the forms for legal aid request within the set time-limit.", "28. On 10 January 1997 the IAP submitted observations in reply, repeating in essence its findings of 22 June 1995.", "29. On 1 July 1998 the Administrative Court, referring to its findings in a similar case, dismissed the complaint. It noted that counsel, without just cause, had not attended the hearing. Therefore the IAP had lawfully continued the hearing in the absence of counsel and the applicant, in accordance with Section 51 f § 2 of the Code of Administrative Offences. Consequently, the applicant’s defence rights as guaranteed under Article 6 of the Convention had not been infringed. The decision was served on the applicant’s counsel on 29 July 1998." ]

[ 3 ]

[ "6. The applicant was born in 1922 and lives in Sansepolcro (Arezzo).", "7. He is the owner of a flat in Florence, which he had let to L.B.", "8. In a registered letter of 20 January 1992, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1993 and asked her to vacate the premises by that date.", "9. In a writ served on the tenant on 20 April 1993, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.", "10. By a decision of 12 July 1993, which was made enforceable on 4 August 1993, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1993.", "11. On 10 March 1995, the applicant served notice on the tenant requiring her to vacate the premises.", "12. On 27 March 1995, he informed the tenant that the order for possession would be enforced by a bailiff on 30 May 1995.", "13. Between 30 May 1995 and 7 May 1996, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.", "14. On 2 April 1997, the applicant served a second notice on the tenant requiring her to vacate the premises.", "15. On 23 April 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for his children.", "16. On 8 May 1997, he informed the tenant that the order for possession would be enforced by a bailiff on 23 June 1997.", "17. Between 23 June 1997 and 3 September 1998, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.", "18. Pursuant to section 6 of Law no. 431/98, on 31 August 1999, the tenant asked for a suspension of the eviction proceedings.", "19. On 15 December 2000, the Florence Magistrate decided to postpone the eviction proceedings until 11 July 2002.", "20. On 11 July 2002, the applicant recovered possession of the flat with the assistance of the police." ]

[ 4 ]

[ "8. On 10 February 1992 the Topoľčany Land Office (Pozemkový úrad) delivered two decisions granting the applicants’ claims for restitution of real property under the Land Ownership Act. The defendants appealed.", "9. On 16 December 1993 the Nitra branch office of the Bratislava Regional Court (Krajský súd Bratislava, pobočka v Nitre) quashed these decisions on the ground that at the moment of the expropriation the land in question had been formally owned by a private company established by the members of the applicants’ family. However, the Land Ownership Act provided exclusively for restitution of property taken away from individuals. The Regional Court therefore sent the case back to the administrative authority. Prior to deciding on the case the Regional Court held a hearing with reference to Section 250q of the Code of Civil Procedure.", "10. In the meantime, on 13 November 1992, the applicants and another member of their family concluded an agreement with the Western Slovakia Forest Administration. Under the agreement the Western Slovakia Forest Administration undertook to restore, in accordance with the Land Ownership Act, different real property expropriated from the applicants’ family. On 26 November 1992 the Topoľčany Land Office approved the agreement pursuant to Section 9 of the Land Ownership Act. Its decision became final on 18 December 1992.", "11. On 17 June 1994 the Topoľčany Land Office decided to reopen the proceedings leading to its decision of 26 November 1992 pursuant to Section 62 (1) (a) and (b) of the Administrative Proceedings Act of 1967. The decision referred to the above finding of the Nitra branch office of the Bratislava Regional Court of 16 December 1993 according to which the land taken away from the applicants’ relatives could not be restored under the Land Ownership Act as it had been formally owned by a legal person.", "12. On 4 July 1997 the applicants appealed through the intermediary of their lawyer. They argued that no relevant new facts had been established and that the decision to reopen the proceedings was not justified by the public interest. The applicants concluded that there existed no legal entitlement for having the proceedings reopened.", "13. On 22 May 1995 the Ministry of Agriculture upheld the Land Office’s decision of 17 June 1994. The decision stated that no reasons for quashing or modifying the Land Office’s decision had been found.", "14. The applicants sought a judicial review of the decision of the Ministry of Agriculture. On 29 September 1995 the Supreme Court (Najvyšší súd) discontinued the proceedings for lack of jurisdiction to review administrative decisions of a procedural nature. Reference was made to Article 248 (2) (e) of the Code of Civil Procedure.", "15. By a decision of 8 June 1995 the Topoľčany Land Office disapproved the agreement concluded on 13 November 1992 on the ground that the property in question had been taken away from a legal person and that under the Land Ownership Act only property originally owned by individuals could be restored.", "16. The applicants appealed and argued that there existed no reason for reopening the proceedings and that the land had been taken away from the members of their family.", "17. On 30 January 1998 the Nitra Regional Court upheld the Land Office’s decision of 8 June 1995. The judgment stated that the only point to be determined was a question of law, namely whether the plaintiffs were entitled, within the meaning of Section 4 of the Land Ownership Act, to acquire the property. The court noted that in the judgment of 16 December 1993 it had found that the property had been taken away from a private company of which the applicants’ predecessors had been members and which had been a legal person. The Regional Court concluded that the applicants lacked standing to claim restitution under the Land Ownership Act.", "18. The Regional Court further noted that a decision on reopening of proceedings before an administrative authority could not be reviewed by a court. It decided on the case without a hearing with reference to Article 250f of the Code of Civil Procedure." ]

[ 9 ]

[ "7. The applicant was born in 1957 and lives in Klaukkala.", "8. The applicant was declared bankrupt on 2 September 1993 by the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää. J., a lawyer practising in Helsinki, was appointed by a court order to act as the official receiver to his estate.", "9. By a written notice, dated 16 September 1993, J. requested the postal service to send all the mail addressed to the applicant to the law office of J. The day before, on 15 September 1993, a meeting was held between the debtor, i.e. the applicant, and the official receiver in the law office of J. According to the Government, it was agreed that the applicant’s mail be transferred to the office and handled so that the official mail was opened, whereas the private mail was put aside to be further transmitted to the applicant. According to the applicant, no such agreement was reached.", "10. The applicant contacted a lawyer at the postal service who informed him that the personal mail of a person declared bankrupt should not be transferred to the official receiver. The applicant received his mail from 23 September 1993 onwards.", "11. While the mail was being transferred to the law office (between 16 and 23 September 2003), J. received and opened a letter sent by an insurance company and addressed to the applicant. The letter was sent to the applicant in an official envelope of the company and signed by the representative of the company’s legal department. Apparently the letter concerned a valuation of an apartment owned by the applicant’s ex-wife.", "12. On 4 June 1996, the applicant requested the police to investigate the matter. During the police investigation J. said that the applicant had sent him a message after the meeting of 15 September 1993, withdrawing his consent to the transfer of mail and that on 22 or 23 September 1993 the applicant requested the postal service to transfer the mail back to his own address as he considered that the transfer of mail to the law office had been unlawful.", "13. On 22 July 1996, finding that the requested prosecution of the alleged offence had become time-barred, a prosecutor issued a decision not to prosecute.", "14. The applicant then instituted civil proceedings against J., requesting that J. be ordered to return all missing letters to the applicant and, failing which, he be ordered to pay 21,911 Finnish Marks (FIM) (approximately 3,685 Euros (EUR)) in compensation for non-pecuniary damage as well as the applicant’s legal fees and expenses. The proceedings were based on the fact that J. had opened the letter sent by the insurance company.", "15. A legal counsel of the postal service who was heard before the District Court of Espoo (käräjäoikeus, tingsrätt) stated that the postal service applied the principles that were included in the repealed Postal Service Decree (postiliikenneasetus, posttrafikförordning; 692/1980) concerning the sorting of mail belonging to estates in respect of which an official receiver had been appointed by the court. According to him, it was a duty of the postal service to sort the debtor’s mail and put aside official mail belonging to the estate. In cases where the official nature of the mail was not clear, post offices decided on a case by case basis where to send the mail.", "16. On 7 February 1997 the District Court rejected all the claims submitted by the applicant, finding that both J. and the postal service had acted in accordance with the Bankruptcy Act (konkurssisääntö, konkursstadga; 759/1991 as in force at the relevant time), and the established practice and internal instructions of the postal service concerning the sorting of mail. The applicant was ordered to pay FIM 27,487 (approximately EUR 4,620) in compensation for J.’s legal expenses. The District Court reasoned its decision, inter alia, as follows:\n“The District Court agrees with the view of [J.] in that the official receiver has, in accordance with Section 50, subsection 2, of the Bankruptcy Act, a right to request that the debtor’s mail be received by the official receiver, excluding the debtor’s personal mail.\n...\n[J.] denied that the estate was in the possession of any other mail addressed to [the applicant], excluding a letter from the insurance company [P.]. That letter was related to the clarification of the assets and debts of [the applicant] and, thus, was included in the documents belonging to the estate. The estate was not obliged to return any of the material which belonged to it.\n...\nIn the light of the evidence, [J.] has acted in accordance with the provisions of the Bankruptcy Act.\nThe [applicant’s] claims are rejected as a whole.”", "17. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki which, on 15 January 1998, upheld the District Court’s decision. The applicant was ordered to pay J.’s costs of FIM 2,500 (approximately EUR 420). On 2 July 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal." ]

[ 4 ]

[ "8. The applicant was born in 1943 and lives in Częstochowa.", "9. By a decision of 3 April 1979 the property of the applicant’s predecessors in title was expropriated. The property comprised a plot of land located in Częstochowa, at 30 Wieluńska Street (plot No. 30). A house located on this plot was later demolished.", "10. On 20 October 1987 the Częstochowa Municipal Architect issued a permit, authorising J.M., the owner of a furniture repair workshop leasing premises situated on an adjacent plot (No. 28), to modernise the premises by, inter alia, fitting windows and a door in the boundary wall between the former property of the applicant’s predecessors in title and plot No. 28. On an unspecified later date J.M. opened a furniture shop on plot No. 28.", "11. By a decision of the Częstochowa Municipal Council of 6 March 1990 the property situated at 30 Wieluńska Street in Częstochowa was returned to the applicant as the aim of the expropriation – the construction of an apartment building – had not been realised.", "12. On 10 January 1992 the applicant requested the Częstochowa Governor to declare the decision of 20 October 1987 null and void.", "13. On 28 July 1992 the Częstochowa Governor declared null and void the 1987 decision. The M. Company, owned by J.M., leasing plot No. 28, lodged an appeal with the Minister of Town and Country Planning. On 9 November 1992 the Minister upheld the contested decision. The M. Company lodged an appeal with the Supreme Administrative Court.", "14. On 3 March 1994 the Supreme Administrative Court annulled the decisions of 28 July and 9 November 1992 whereby the M. Company leasing plot No. 28 had been ordered to block doors and windows in a wall facing the applicant’s plot and adjacent to the boundary of the plot.", "15. On 14 June 1994 the Częstochowa Governor refused the applicant’s request to have the 1987 decision declared partly null and void. On 18 August 1994 this decision was upheld by the Minister of Town and Country Planning. Apparently on 5 October 1994 the applicant lodged an appeal against this decision.", "16. On 1 April 1996 the Supreme Administrative Court quashed the decisions by which the administration refused to declare null and void the 1987 decision in so far as it authorised the fitting of a door and windows in the boundary wall between the plots. The court considered that the issue needed to be reconsidered, with special attention being paid to the question whether the building on plot No. 28 had been constructed on the basis of a building permit or, in the alternative, in the absence of any legal basis.", "17. On 10 August 1996 the applicant was informed by the Częstochowa Regional Office that an administrative enquiry had been instituted in order to establish whether the building on plot No. 28 had been constructed lawfully. On 22 August 1996 he was further informed that the proceedings would not be terminated before 26 August 1996.", "18. On 29 October 1996 the Częstochowa Regional Office refused to declare null and void the 1987 decision concerning the adjacent parcel No. 28. The applicant lodged an appeal with the Chief Inspector of Construction Supervision.", "19. On 19 February 1997 the Chief Inspector of Construction Supervision quashed the 1987 decision concerning parcel No. 28 in its entirety, considering that the fitting of windows and a door in the wall adjacent to the applicant’s parcel No. 30 was unlawful in that it rendered it impossible for the applicant to use his plot.", "20. By a letter of 27 March 1997 of the Częstochowa Municipal Office the applicant and other parties to the proceedings were informed that the case concerning the 1987 decision could not be dealt with within the time-limit provided for by Article 35 of the Code of Administrative Procedure. A new time-limit was fixed. According to the new time-limit, the case was to be disposed of by 5 May 1997.", "21. On 18 April 1997 the M. Company appealed to the Supreme Administrative Court against the decision of 19 February 1997.", "22. In a letter of 14 May 1997 the applicant was informed by the Supreme Administrative Court, in reply to his complaint that the appeal against the decision of 19 February 1997 had not yet been decided, that, in view of the Court’s case-load, there was a delay of approximately eighteen months for cases to be heard and judgment given.", "23. On 10 April 1997, J.U., one of the co-owners of parcel No. 30, which was also co-owned by the applicant, sold her share of the property to a third party.", "24. On 19 May 1997 the applicant submitted a complaint about the inactivity of the administration to the Chief Inspector of Construction Supervision. On 9 July 1997 the Częstochowa Regional Office informed the applicant that his complaint about the inactivity of the administration in the proceedings concerning parcel No. 28 could not be dealt with within the one-month time-limit provided for by law. On 28 July 1997 the Częstochowa Regional Office informed the applicant that the complaint was unfounded.", "25. On 2 July 1999 the Supreme Administrative Court quashed the decision of the Chief Inspector of Construction Supervision of 19 February 1997, considering that the lower authorities had failed to establish whether the supervision of the Principal Inspector of Conservation of Cultural Heritage should apply to the area within which parcel No. 28 was situated.", "26. On 14 January 2000 the applicant sold his share in parcel No. 30 to third parties.", "27. On 14 February 2000 the Chief Inspector of Construction Supervision quashed the decision of 29 October 1996 and ordered that the case be re-examined by the organ of the first-instance. The applicant appealed. On 20 June 2000 the applicant lodged his pleadings with the court, complaining, inter alia, that the proceedings had lasted an unreasonably long time. The protracted nature of the proceedings had forced the applicant to sell this property. He had no other choice as the property was losing value as a result of the length of the proceedings. His property rights had been flagrantly breached in the proceedings in which the authorities have shown a manifest disregard of his legitimate interests.", "28. On 25 January 2002 the Supreme Administrative Court quashed the decision of 14 February 2000 rendered by the Chief Inspector of Construction Supervision, considering that there was no need to remit the case to the first-instance body, especially in view of the excessive length of proceedings.", "29. On 13 January 2003 the Chief Inspector of Construction Supervision quashed the decision of 29 October 1996 and declared the 1987 decision entirely null and void, considering that the latter had been rendered in flagrant breach of the substantive provisions of construction law.", "30. On 10 January 1992 the applicant requested the Częstochowa Municipal Department of Architecture and Land Development to grant him planning permission for the construction of an apartment house on his plot (No. 30).", "31. On 12 February 1992 the Department granted the applicant preliminary planning permission (wskazania lokalizacyjne).", "32. In a letter of 11 April 1992 directed to the Częstochowa Municipal Department of Architecture and Land Development the applicant’s neighbour, leasing the plot at 28 Wieluńska Street, protested against the preliminary building permission given to the applicant. In reply dated 23 April 1992 the Department informed him that his objections were unfounded, and that plot No. 28 had to be used in a manner consistent with the applicant’s property rights to plot No. 30. It was further stated that the preliminary permission given to the applicant was consonant with the general vision of land development in the part of the town concerned, which was of a historical character and was to be preserved and enhanced. Similar arguments were set out in a letter of 19 June 1992, apparently in reply to further complaints made by the applicant’s neighbour.", "33. On 23 December 1992 the applicant requested that he should be given a building permit and submitted relevant technical documents in support of his request.", "34. On 18 January 1993 the Director of the Częstochowa District Office stayed the proceedings concerning the applicant’s request for the grant of final building permit, pending the final decision in the proceedings for a declaration of nullity of the 1987 decision. The applicant appealed to the Częstochowa Governor. The contested decision was upheld by the Governor on 1 March 1993. The applicant lodged a further appeal with the Supreme Administrative Court.", "35. On 16 November 1993 the Supreme Administrative Court allowed the applicant’s appeal and quashed the contested decision relating to the stay of the proceedings. The court pointed out, firstly, that the proceedings concerning the status of the 1987 decision had in fact been terminated by a final decision and, secondly, that there was nothing in the character of these proceedings, which essentially concerned the fitting of doors and windows in the boundary wall between plots Nos. 28 and 30, which would make it impossible to proceed in the case concerning the applicant’s request for the grant of final building permit.", "36. On 19 January 1994 the Częstochowa District Office requested the applicant to submit the documentation confirming his legal title to plot No. 30.", "37. By a decision of 21 February 1994 the Częstochowa Municipal Department of Architecture, Town Planning and Construction Supervision refused to grant final building permit to the applicant. That Department considered that the applicant had failed to submit documents in order to show that his proposed development complied with the local land development plans. The Department further stated that no final decision had as yet been given on the issue concerning the fitting of a door and windows in the boundary wall between the applicant’s plot and plot No. 28.", "38. On 15 April 1994 the Częstochowa Regional Office dismissed the applicant’s appeal against the decision of 21 February 1994.", "39. On 6 June 1995 the Supreme Administrative Court quashed the refusals of 21 February 1994 and 15 April 1994 to give the applicant building permission. The Administrative Court observed that if the applicant had indeed failed to submit the required documentation, he should have been invited to supplement his motion in order to comply with formal requirements. The Supreme Administrative Court further noted that the administrative organs had failed themselves to collect all the evidence which was necessary for issuing the relevant decision.", "40. On 31 August 1995 the Częstochowa District Office requested the applicant to submit the documents confirming his legal title to his plot and the notary consent of the co-owners to construct a building on it. The applicant was informed that if he did not submit the requested documentation his application for a building permit would not be examined.", "41. On 18 September 1995 the District Department of Architecture, Town Planning and Construction Supervision requested the applicant to submit a decision concerning the development plan for the plot concerned, which, according to the provisions of the new Construction Act of 7 July 1994, was a prerequisite for a further examination of the applicant’s request for the grant of building permit. He was also requested to submit amendments to the original building project so as to take into account the presence of windows and a door on the boundary between the plots.", "42. The proceedings did not progress until on 10 April 1997 and on 14 January 2000 respectively, J.U. and the applicant sold their shares in parcel No.30 to third parties." ]

[ 3 ]

[ "7. The applicant was born in 1975 and lives in Breda. He had a relationship with Ms B. from mid-1993. On 14 April 1995 a daughter, named A., was born to Ms B. and the applicant.", "8. Pursuant to Article 1:287 § 1 of the Civil Code (Burgerlijk Wetboek), as then in force, Ms B. obtained guardianship (voogdij) of A. The applicant was appointed as A.’s auxiliary guardian (toeziend voogd) on 19 May 1995 by the Enschede District Court judge (kantonrechter). The applicant’s auxiliary guardianship ended on 2 November 1995, when an amendment to the Civil Code came into force abolishing that function.", "9. The applicant and Ms B. did not formally cohabit, but the applicant visited her and A. on a regular basis. He also babysat and took care of A. on several occasions. Ms B. sometimes consulted the applicant about A.’s hearing problems. The applicant did not formally recognise (erkenning) A., as Ms B. refused to give her permission and her family also opposed such recognition. Although the applicant could have sought judicial consent for recognising A. (see paragraph 17 below), he did not avail himself of this possibility, considering that it would stand little chance of success. Moreover, the applicant preferred to respect the position adopted by Ms B. and her relatives, and maintain the de facto family ties he had with his daughter rather than establish formal legal ties with her.", "10. In August 1996 the applicant’s relationship with Ms B. broke down. On 23 January 1997 the applicant requested the Almelo Regional Court (arrondissementsrechtbank) to grant him access (omgangsregeling) to A. one weekend every fortnight and some weeks during the holiday period. In those proceedings Ms B. argued primarily that the applicant’s request should be declared inadmissible in that there had never been any family life within the meaning of Article 8 of the Convention between the applicant and A. and, in so far as family life had existed, it had ceased to exist after the end of her relationship with the applicant. In the alternative, Ms B. argued that to grant the applicant access would not be in A.’s interests. Ms B. further submitted that the applicant had behaved badly towards her (violence and financial abuse) and had shown little interest in A. She indicated, lastly, that A.’s hearing was impaired and that her daughter thus required a special approach of which she deemed the applicant incapable.", "11. By a decision of 26 February 1997, the Almelo Regional Court accepted that there was family life within the meaning of Article 8 of the Convention between the applicant and A., and that this family life had not ceased to exist since the breakdown of the applicant’s relationship with Ms B. It consequently declared the applicant’s request admissible. However, given the difficulties between the applicant and Ms B., the Regional Court decided to order the Child Care and Protection Board (Raad voor de Kinderbescherming) to conduct an investigation and to report to it on the feasibility of an access arrangement.", "12. Ms B. filed an appeal against this decision with the Arnhem Court of Appeal (gerechtshof). By a decision of 16 September 1997, the Court of Appeal quashed the decision of 26 February 1997 and declared the applicant’s request inadmissible. In its decision, the Court of Appeal stated:\n“3.1 Out of the parties’ relationship (lasting from mid-1993 to August 1996), A. was born. Mr L. is the biological father of A. He has not recognised the child. The mother holds parental authority over A. by law.\n... 4.5 In addition to what is stated under 3.1, the following, as contended by one side, and not, or insufficiently, disputed by the other, has been established or become plausible.\nThe father was present at A.’s birth. He has never been formally registered at the mother’s address, but (up to August 1996) regularly visited the mother. He has also changed A.’s nappy a few times [enkele malen] and has babysat her once or twice [een enkele keer], but not since August 1996. Further, the mother has on several occasions [verschillende keren] had contact by telephone with the father about (the hearing problems of) A. 4.6 In the light of the above facts and circumstances, it has been insufficiently established that the father has a close personal relationship with the child – who at the time of the breakdown of the parties’ relationship was one year old – or that there is a link between him and the child that can be regarded as ‘family life’ within the meaning of Article 8 of the Convention. The further circumstances relied on by the father, from which it would appear that he has a close personal relationship with the child, have – in contrast to the substantiated denial thereof by the mother – not been established. The terminology used by the mother in the proceedings (she spoke about ‘a relationship until October 1996’ and ‘my ex-partner’) cannot, either in itself or in connection with the above circumstances, lead to a different conclusion.\n... 5.1 On the basis of the above considerations, the impugned decision is quashed, and the father’s request is declared inadmissible.”", "13. The applicant’s subsequent appeal on points of law was dismissed by the Supreme Court (Hoge Raad) on 5 June 1998. The Supreme Court rejected the argument that the mere biological link between the applicant and A. was sufficient to attract the protection of Article 8 of the Convention. It held that “family life” for the purposes of Article 8 implied the existence of further personal ties in addition to biological paternity. As to the lack of existence of such further personal ties, it accepted the findings of the Court of Appeal." ]

[ 4 ]

[ "9. The applicant was born in 1933 and lives in Diyarbakır. Until the end of 1993, the applicant lived in the village of Akdoruk, attached to the Kulp District in the province of Diyarbakır. The applicant left and has never returned to the village after the alleged incident.", "10. The facts surrounding the destruction of the applicant’s house and property are in dispute between the parties.", "11. Early in the morning of 11 November 1993 the applicant left his house and went to the fields to work. At about 7 a.m. a large number of soldiers arrived in the village of Akdoruk on foot. The soldiers had a list of names in their hands and started burning down some of the houses. From the field, the applicant saw that his house was on fire. The applicant’s wife tried to save some of their belongings and animals however she was prevented by the gendarmes who hit her with the butt of their rifles. In all, the soldiers burned down six houses in the village.", "12. The applicant tried to go back to the village but was prevented by his wife, who told him that if he went back he would be arrested by the soldiers. The soldiers arrested ten villagers and sent them to the gendarmerie station. After spending the night in the village, the soldiers left Akdoruk village early in the morning of 12 November 1993.", "13. The applicant spent the night at his sister’s house and then went to Diyarbakır to live with his daughter.", "14. In February 1994, the applicant went to the Kulp Magistrate’s Court together with Ahmet Altun and Mustafa Aldemir to lodge a petition about the burning of his house. All three of them submitted handwritten petitions to the judge and requested him to conduct a visit to the village to establish the damage they had suffered. The judge however refused their request for security reasons. The same day, the applicant and the two other villagers were called to the public prosecutor’s office in Kulp, where they were interrogated about their complaints. The public prosecutor took their statements and typed down their complaints. The applicant, Ahmet Altun and Mustafa Aldemir, signed these petitions without understanding the content, as they were illiterate.", "15. The applicant later learnt from his friends that these petitions had been transferred to the Kulp District Gendarmerie whose officers the applicant considered responsible for the destruction of his house. He was informed that the gendarmes were looking for him however he was too frightened to go to the gendarmerie headquarters, because the other two villagers, who had also lodged a petition with him, had also been summoned to the gendarmerie and had been severely beaten.", "16. In the beginning of 1994 the gendarmes returned to the Akdoruk village and burned down the remaining houses.", "17. The applicant is currently unemployed and occasionally works as a builder in constructions.", "18. No military operation was conducted in or around the village of Akdoruk on 11 November 1993. Subsequent to the applicant’s complaint with the Kulp public prosecutor, an investigation was commenced into the allegations of the applicant. On 22 August 1994 the Kulp public prosecutor issued a decision of non-jurisdiction and transferred the case to the Kulp Administrative Council pursuant to the Law on the prosecution of civil servants.", "19. On 24 June 1994 the Kulp District Governor appointed the Kulp District Gendarme Commander, Ali Ergülmez, as investigating officer. By a report dated 1 April 1995, the District Gendarme Commander submitted that no military operation had been conducted in Akdoruk village on 11 November 1993 and stated that the clashes between the security forces and the PKK had commenced after January 2004 when the village had already been evacuated. He accordingly proposed that the District Administrative Council should issue a decision of non-prosecution.", "20. On 13 July 1995 the Kulp District Administrative Council delivered a decision of non-prosecution on the basis of the investigating officer’s report.", "21. The parties submitted various documents to the Court. While delivering its judgment, the Court had particular regard to the following documents:\na) Statement of the applicant, dated 15 April 1994, made to the Diyarbakır Human Rights Association;\nb) Petition of the applicant, Ahmet Altun and Mustafa Aldemir, dated 17 December 1993, submitted to the Kulp Chief Public Prosecutor’s office concerning the burning of their houses by security forces;\nc) Statements of the applicant, Ahmet Altun and Mustafa Aldemir, dated 17 December 1993, taken by the Kulp public prosecutor;\nd) Letter of Kulp Chief Public Prosecutor’s office to Kulp District Gendarme Commander, dated 28 January 1994, requesting information as to whether or not a military operation had been conducted on 13 November 1993 in the village of Akdoruk;\ne) Statement of Ahmet Altun, dated 22 February 1994, taken by the gendarme officers;\nf) Statement of Mustafa Aldemir, dated 3 March 1994, taken by the gendarme officers;\ng) Report dated 23 June 1994, signed by the mayor of Akdoruk village, Mehmet Yeşil, and two gendarme officers, indicating that it had not been possible to interrogate Abdullah Altun as his address could not be established;\nh) Letter of Kulp District Gendarme Commander to the Kulp Chief Public Prosecutor’s office, dated 24 June 1994, stating that it had not been possible to interrogate Abdullah Altun as his address could not be established;\ni) Non-jurisdiction decision issued by the Kulp Chief Public Prosecutor’s office, dated 22 August 1994;\nj) Letter of Kulp District Governor to Kulp District Gendarme Commander, Ali Ergülmez, dated 2 September 1994, appointing him as investigating officer;\nk) Investigation and examination report, dated 2 May 1995, signed by Kulp District Gendarme Commander Ali Ergülmez, gendarme officer Kamil Taşçı and village mayor Mehmet Yeşil;\nl) Report of District Gendarme Commander Ali Ergülmez, dated 1 April 1995, proposing that the District Administrative Council should issue a decision of non-prosecution;\nm) Letter of District Gendarme Commander Ali Ergülmez, dated 2 July 1995 to Kulp District Governor, submitting the results of the investigation;\nn) Non-prosecution decision dated 13 July 1995, delivered by the Kulp District Administrative Council;\no) Report dated 28 August 1995, prepared by Kulp District Gendarme Commander Ali Ergülmez, indicating that no military operation had been conducted in the Akdoruk village on 13 November 1994. The report stated that the clashes between the security forces and the PKK had commenced after January 1994 when the village had already been evacuated;\np) Letter of Kulp Magistrate’s Court judge to Kulp public prosecutor’s office, dated 23 January 1995, stating that Abdullah Altun had not brought any proceedings concerning the burning of his house;\nq) Letter of Kulp public prosecutor to Diyarbakır Chief Public Prosecutor’s office, dated 25 September 1995 stating that Abdullah Altun had not applied to the Kulp Magistrate’s Court for an assessment of the damage he had suffered following the burning of his house;\nr) Letter of Kulp Magistrate Court judge to Kulp public prosecutor, dated 2 August 1999, indicating that no hand-written petition had been submitted to the registry of the court by Abdullah Altun, Ahmet Altun and Mustafa Aldemir;\ns) Letter of Kulp Chief Public Prosecutor to International Law and Foreign Relations Directorate of the Ministry of Justice, dated 8 October 1999, indicating that there were no records relating to the killing of 6 terrorists on 13 October 1993 in the vicinity of Akdoruk village.", "22. The facts of the case being in dispute between the parties, three Delegates of the Commission took oral evidence in Ankara between 28 June and 2 July 1999 from thirteen witnesses, including the applicant. A further five witnesses had been summoned, but they failed to appear for various reasons. The evidence of those who attended the hearing may be summarised as follows:", "23. Mr Altun stated that he was living in the village of Akdoruk at the time of the events. He explained that on the day of the incident, early in the morning, he had gone to the fields to work. While he was working in the fields, he saw that smoke was rising above the village. From where he was standing, he was able to see that the village was full of soldiers and that it was burning. On his way back to the village, he was stopped by his wife, who told him not to return to the village. She informed him that the soldiers had burned down six houses including theirs and that their house, animals and possessions had been completely destroyed. Mr Altun’s wife further told him that the soldiers had a list of names in their hands and that his name was also included on it.", "24. Mr Altun affirmed that he had stayed at his sister’s house for a few days after the burning of his home and then had gone to Diyarbakır to stay with his daughter.", "25. Concerning his application to the national authorities, he further confirmed that he had gone to the judge at the Kulp Magistrate’s Court with his brother Ahmet Altun and his fellow villager Mustafa Aldemir. They had submitted hand-written petitions to the judge and requested him to conduct a visit to the village of Akdoruk to assess the damage they had suffered. The judge however had refused their request for security reasons. On the same day, the applicant, Ahmet Altun and Mustafa Aldemir were further called before the Kulp public prosecutor, who took their statements concerning the burning of their houses. Mr Altun further testified that Ahmet Altun and Mustafa Aldemir, who had been called to the Kulp Gendarmerie Station to give further evidence, had been beaten by the gendarmes. He was therefore frightened to go to the gendarmerie station to give a statement.", "26. Mr Altun further stated that the soldiers had gone back to the village of Akdoruk in January 1994 and burned down the remaining houses.", "27. The witness, who is the applicant’s wife, was in the village of Akdoruk at the time of the incident. She explained that after her husband had gone to the fields early in the morning, a large number of soldiers arrived in the village on foot. The soldiers had a list in their hands and they read out the names of certain villagers, including the applicant’s. Thereafter, they threw a sort of flammable material towards their house and the stable which caught alight. She tried to save the animals but was stopped by the soldiers. She believed that the soldiers had burned down the houses because the villagers had refused to become village guards. The witness further stated that Ahmet Altun, Mustafa Aldemir and Hüseyin Aldemir had been arrested by the soldiers.", "28. Mrs Yaman, who is the sister of the applicant, was living in the village of Akdoruk at the time of the events. She explained that on the day of the incident, the soldiers had arrived in the village on foot. She saw them throw some chemical substance and burn down the applicant’s house. Her sister-in-law tried to save some of the animals but was stopped by the gendarmes. Her brother was not in the village at the time of the incident. The witness affirmed that the applicant and his wife had stayed at her house after their house was burned down. The witness believed that the soldiers had burned down the village as a punishment, when the villagers refused to become village guards. She explained that her own house was also burned down in January 1994.", "29. Mr Aldemir was living in the village of Akdoruk at the time of the events. On the day of the incident, a number of soldiers came to the village on foot. They first went to the applicant’s house and burned it down. Then they burned down six more houses including his house and that of the village mayor, Mehmet Yeşil. The soldiers had a list in their hands and told the villagers that they had instructions to burn down the houses of those on the list. The soldiers subsequently apprehended the witness together with some other villagers. They were all taken to Narlıca village on foot. Mr Aldemir stated before the Delegates that the villagers of Akdoruk had been asked to become village guards about a month prior to the incident. The witness moved to Diyarbakır following the burning of his house. Together with the applicant and another villager, Ahmet Altun, he went to the Kulp Magistrate’s Court judge to complain about the burning of their houses. They further gave statements to the public prosecutor on the same day. Mr Aldemir testified that Ahmet Altun and himself had been summoned to the Kulp Gendarme Statation to give further evidence. He affirmed that he had been beaten by the gendarmes and forced to sign a paper. He therefore disowned the content of the statement dated 3 March 1994.", "30. Mr Yeşil was the mayor of Akdoruk village at the time of the incident. On 13 November 1993 early in the morning the witness heard intensive shooting around the village. An armed clash was taking place outside the village. He later learnt that 6 terrorists had died during this clash. Subsequently, a group of soldiers arrived in the village and told him to leave the village for his life was in danger. As a result, leaving his wife and children in the village, the witness left the village on foot with some soldiers and returned to the village three days later. When he returned, he saw that six of the houses, including his house and that of the applicant, had been burned down. The witness further affirmed that he did not see who had burned down the houses but he maintained that the houses were burned because of the clash between the PKK and the security forces. When asked about the investigation and examination report, dated 2 May 1995, the witness admitted that he had signed this report at the Kulp Gendarme Station but stated that no on-site inspection had been conducted in the village.", "31. The witness was living in one of the hamlets of Akdoruk village at the time of the event. Early in the morning of the incident, the witness saw a number of soldiers arrive in the village. The soldiers asked the witness to act as their translator. The soldiers had a list of names in their hands and their captain told the witness that they were going to burn down Abdullah Altun’s house. They therefore ordered the witness to tell the applicant’s wife to evacuate the house. The witness saw that soldiers scattered chemicals around the house with a tube, put a match to it and set it alight. They burned down everything, including the animals. In all, the soldiers burned down six houses in the village, including the house of the village mayor, Mehmet Yeşil, who was also in the village during the incident. The soldiers subsequently arrested some of the villagers, including the village mayor and his three daughters. After spending the night in the village, the soldiers left the village on foot the next morning. The witness affirmed that a month before the burning of the houses, the villagers had been called to a meeting in Narlıca by the security forces and had been asked to become village guards.", "32. Mr Eren was living in the village of Akdoruk at the time of the events. Early in the morning of the incident, he saw soldiers arriving in the village. He did not hear any gunshots. The witness then saw the soldiers burning down some of the houses in the village, including the house of the applicant and that of the village mayor, Mehmet Yeşil. He recalled that Abdullah was not in the village when his house was burned down but he remembered seeing Abdullah’s wife crying. His own house was not burned down that day. The soldiers subsequently arrested some villagers, including the witness. They were taken to Narlıca village on foot and then to the Kulp Gendarme Station by military vehicles. They were kept in the station for three days and three nights and were given only bread and water. The soldiers came back to the village at the beginning of 1994 and burned down the remaining houses.", "33. The witness was the gendarme station commander in Kulp District in 1993. He was under the command of Ali Ergülmez. The witness confirmed that he had been involved in the investigation of the complaint concerning the burning of the applicant’s house by the security forces. He had taken statements from two of the complainants but one of the complainants had not shown up for interrogation. He admitted that it had not been possible to conduct an on-site inspection report in the village due to security reasons. The witness stated that there were no records about a military operation or an armed clash in the village of Akdoruk at the time of the incident. He further affirmed that there had been several large scale operations carried out by different military forces in the area and that not all of these operations had been recorded in the log book of the Kulp Gendarme Station. He explained that Akdoruk village had been evacuated by January 1994 and that armed clashes had been quite frequent in the area. When questioned about the possible involvement of security forces in burning down houses, the witness denied this possibility.", "34. The witness was the deputy commander of the Kulp Gendarme Station in 1993. His commander was Ali Ergülmez. He stated that he had been involved in the investigation and had taken a statement from Mustafa Aldemir on 3 March 1994. He affirmed that, had a military operation been conducted in the Akdoruk village by the Kulp Gendarmerie, they would definitely have the pre- and post-operation reports. However at that time several military units had been engaged in many military operations and the witness did not know for certain whether another military troop had conducted an operation in the area or not. He admitted that they did not keep records of the operations carried out by other units. Arguing that terrorists, dressed up in military uniforms, had been burning some of the villages, the witness denied any involvement of the military forces in burning down the houses in the area.", "35. The witness was the commander of Kulp District Gendarmerie in 1993 and Akdoruk village had fallen under his jurisdiction. He stated that when he was appointed as investigating officer by the District Governor to investigate the allegations into the burning of the applicant’s house, he had assigned Mr Tasçı to investigate the matter. He stated that he had signed the report that had been drafted by Mr Taşçı without verifying its content. He further admitted that another military troop could have conducted a military operation in the Akdoruk village without his knowledge. The witness further denied the allegations which suggested that the Kulp gendarmerie forces had been involved in burning villages in the area.", "36. The witness was the Kulp public prosecutor in 1993 and had taken the first statements from the applicant, Ahmet Altun and Mustafa Aldemir. Mr Aslan stated that he had written down everything that the three complainants had told him and had read out their statements to them before taking their signatures. The witness further admitted that it had not been possible for him to conduct a visit to the Akdoruk village for security reasons. He also recalled that at that time, the prosecutors in the region had lacked investigative powers to investigate the allegations against the security forces.", "37. The witness stated that he was living in the Kulp District at the time of the incident. He was in the Akdoruk village a few days before the incident and saw six dead bodies outside the village. He maintained that the villagers were all afraid to live in the area as a result of terrorist attacks. The witness affirmed that he was not in the village when the applicant’s house was burned down.", "38. The witness stated that he had moved from Akdoruk village to the Kulp District in 1979. Indicating that he had never lost contact with his fellow villagers from Akdoruk, he stated that he was aware that most of the villagers were afraid to live in the area as a result of the frequent terrorist attacks. The witness affirmed that he was not in the village when the applicant’s house was burned down." ]

[ 1, 4, 9 ]

[ "9. Mr Ulaş Batı was born in 1979, Mr Bülent Gedik in 1974, Mr Müştak Erhan İl in 1971, Mr Özgür Öktem in 1976, Mr Sinan Kaya in 1978, Mr İsmail Altun in 1974, Mr İzzet Tokur in 1973, Mr Okan Kablan in 1980, Mr Cemal Bozkurt in 1973, Mrs Devrim Öktem in 1975, Miss Sevgi Kaya in 1980, Miss Arzu Kemanoğlu in 1972, Miss Zülcihan Şahin in 1977, Miss Ebru Karahancı in 1978 and Miss Zühal Sürücü in 1979. All are Turkish nationals and live in Istanbul.", "10. In February and March 1996, as part of a police operation against an illegal Marxist organisation, the TKEP/L (Communist Labour Party of Turkey/Leninist), the Istanbul police arrested the applicants and held them for questioning at the headquarters of the anti-terrorist branch of the Istanbul security police (“Security Headquarters”) for questioning.", "11. The facts in each individual case may be summarised as follows:", "12. Mr Batı was arrested on 8 February 1996.", "13. On 19 February 1996 he informed the public prosecutor during an interview that he had been ill-treated by the police while in custody. He was later brought before a judge of the Istanbul National Security Court (“the judge”), to whom he repeated the statement he had made to the public prosecutor. The judge ordered his detention pending trial.", "14. Mr Batı says that his ill-treatment at Security Headquarters took various forms: he was beaten, forced to remain standing, deprived of sleep, and threatened with death, rape and sexual assault with a truncheon.", "15. He was given only one medical examination. In his report of 19 February 1996, the forensic doctor, a member of the Istanbul Institute of Forensic Medicine, found partly healed bruising measuring 0.5 cm by 0.5 cm in the sternal region. He noted that Mr Batı had complained of pain in his shoulders and certified him unfit for work for one day.", "16. Mr Gedik was arrested on 6 February 1996.", "17. On 19 February 1996 he informed the public prosecutor during an interview that he had been coerced into making a statement which he had signed without reading. He subsequently repeated this account to the judge, who ordered his detention pending trial.", "18. Mr Gedik says his ill-treatment in custody included suspension by the arms, death threats and electric shocks.", "19. He was given three medical examinations:\n(a) In a report of 19 February 1996, a forensic doctor noted scab-covered lesions measuring 3 cm by 3 cm to the rear of the thighs and an old bruise measuring 3 cm by 3 cm in the upper scapular region. He certified Mr Gedik unfit for work for three days.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor found bruising with scabs to the left arm and a leg. He noted that Mr Gedik complained of pain in various parts of the body and referred him to a forensic doctor for a final report.\n(c) Mr Gedik was re-examined by a forensic doctor on 7 March 1996. The doctor recorded his complaints of pain in the left shoulder in the medical certificate. However, he considered that a final report could only be drawn up once Mr Gedik had been examined by a hospital neurology service. It appears from the case file, however, that the additional examination was never carried out.", "20. Mr Erhan İl was arrested on 6 February 1996.", "21. On 19 February 1996 he was interviewed by the public prosecutor, before whom he denied all the offences he was alleged to have committed. Subsequently he was brought before the judge, to whom he complained of ill-treatment by police officers while in custody. The judge ordered his detention pending trial.", "22. Mr Erhan İl says that he was subjected to various forms of ill-treatment while in custody at Security Headquarters: suspension by the arms, blows, threats and insults.", "23. He was given three medical examinations:\n(a After examining Mr Erhan İl, a forensic doctor drew up a medical report in which he noted reduced extension and impaired supination and pronation in both arms. He said that a final report could be drawn up once Mr Erhan İl had been examined by a hospital neurology service.\n(b) In his report of 27 February 1996, the Bayrampaşa Prison doctor noted that Mr Erhan İl had complained of pain in his shoulders, thorax, back and respiratory tract, and numbness in both arms and hands. He referred him to a forensic doctor for a final report.\n(c) On 6 March 1996, in the light of the medical certificate issued on 19 February 1996, the forensic doctor ordered Mr Erhan İl's transfer to hospital for neurological examination. It appears from the case file, however, that no such additional examination was ever carried out.", "24. Mr Öktem was arrested on 8 February 1996.", "25. On 19 February 1996, after being interviewed by the public prosecutor, he was brought before the judge to whom he complained of ill-treatment by police officers while in custody. The judge ordered his detention pending trial.", "26. Mr Öktem says that he was subjected to various forms of ill-treatment while in custody, including suspension by the arms and beating of the soles of the feet (falaka).", "27. He was given three medical examinations:\n(a) According to a medical certificate issued on 19 February 1996, the forensic doctor initially did not find any marks of violence on Mr Öktem's body. He noted that Mr Öktem had complained of pain in his thigh, labial mucosa and internal or lateral walls of his mouth. He certified him unfit for work for three days.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted that Mr Öktem had a tear to the mouth that had been caused by the use of force, pain in various parts of the body and difficulty breathing. He referred him to a forensic doctor for a final report.\n(c) In a report of 6 March 1996, the forensic doctor confirmed the findings in the reports of 19 and 27 February 1996.", "28. Mr Kaya was arrested on 8 February 1996.", "29. On 19 February 1996 he was brought before the judge after being interviewed by the public prosecutor. He complained to the judge of ill-treatment by police officers while in custody. The judge ordered his detention pending trial.", "30. Mr Kaya says that he was subjected to various forms of ill-treatment while in custody: suspension by the arms, blows, threats and insults.", "31. He was given three medical examinations:\n(a) The first was performed by a forensic doctor on 19 February 1996, who found that Mr Kaya presented scab-covered lesions measuring 1 cm by 1.5 cm and 1 cm by 1 cm to the side of the right armpit, bruising measuring 2 cm by 2 cm to the mastoid, and pain in the shoulders and arms. He certified him unfit for work for five days.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor found loss of movement in the arms, cramps in the shoulders, breathing difficulties and cuts and bruising to the right foot. He referred him to a forensic doctor for a final report.\n(c) In a report of 7 March 1996, the forensic doctor noted scab-covered lesions measuring 1 cm by 1.5 cm and 1 cm by 1 cm on the side of the right armpit, bruising and grazing to the mastoid, and pain in the shoulders and arms. He certified him unfit for work for five days.", "32. Miss Kaya (who is Sinan Kaya's sister) was arrested on 8 February 1996.", "33. On 19 February 1996 she was brought before the judge after being interviewed by the public prosecutor and complained of ill-treatment by police officers while in custody. The judge ordered her detention pending trial.", "34. Miss Kaya says that while in custody she was subjected to falaka, sprayed with water, threatened with rape and undressed.", "35. She was given three medical examinations:\n(a) In a report dated 19 February 1996, a forensic doctor found old bruising to the soles of the feet measuring 5 cm by 4 cm that was in the process of healing, bruising to both palms and pain in the shoulders and arms. He certified her unfit for work for seven days.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted bruising, swelling and tenderness to the sole of the left foot, and loss of movement and deformity to the little finger of the right hand. He referred her to a forensic doctor for a final report.\n(c) In a report of 7 March 1996, the forensic doctor noted scab-covered lesions measuring 5 cm by 4 cm to the soles of both feet, bruising to both palms and pain in the shoulders and arms. He certified Miss Kaya unfit for work for seven days.", "36. Mr Altun was arrested on 8 February 1996.", "37. He was interviewed by the public prosecutor on 16 February 1996 and complained of ill-treatment by police officers while in custody. He was subsequently brought before the judge, to whom he repeated the statement he had made to the public prosecutor. The judge ordered his detention pending trial.", "38. Mr Altun says that he was subjected to various forms of ill-treatment: he was suspended by his arms (which were tied together), beaten, sprayed with cold water and deprived of sleep. He further complains that he was blindfolded and his testicles were wrung.", "39. He was given three medical examinations:\n(a) In a report of 16 February 1996, a forensic doctor noted that Mr Altun was suffering from headaches and pain in his arms.\n(b) In a report of 28 February 1996, the Bayrampaşa Prison doctor noted bruising below the eyes, scab-covered lesions measuring 0.5 cm by 0.5 cm on the upper right ear, pain running from the neck to the anus, restricted movement of the thumb of the right hand, scab-covered lesions on the back of the left foot, grazing on the back of the right foot, bruising measuring 5 cm by 2 cm to the anterior left leg (tibia) and pain in the chest and respiratory tract.\n(c) In a report of 6 March 1996, the forensic doctor confirmed the findings set out in the report of 16 February 1996.", "40. Mrs Öktem (who is Bülent Gedik's wife) was arrested on 6 February 1996.", "41. On 19 February 1996, after being interviewed by the public prosecutor, she was brought before the judge, who ordered her detention pending trial.", "42. Mrs Öktem says that she was subjected to various forms of ill-treatment while in custody: she was beaten, suspended by the arms, undressed and sprayed with water. She also alleges that she suffered a miscarriage as a result of the ill-treatment.", "43. She was given seven medical examinations:\n(a) In a report of 19 February 1996, a forensic doctor said that he had found no marks on Mrs Öktem's body that were consistent with assault. Noting that she alleged that she had miscarried as a result of ill-treatment in police custody, he said that a final report could be drawn up once she had been examined by a hospital obstetrics service.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a bruise measuring 1 cm by 1 cm on Mrs Öktem's left leg, and pain in the soles of her feet and kidneys. He referred her to a forensic doctor for a final report.\n(c) In a report of 6 March 1996, in the light of the information contained in the aforementioned medical certificates, the forensic doctor ordered her transfer to a hospital obstetrics service.\n(d) In a report of 6 March 1996, a gynaecologist from the Haseki General Hospital noted bleeding and particles in the region of the uterus and diagnosed post-abortive endometritis.\n(e) In a report of 18 April 1996, the Bayrampaşa Prison doctor noted a 0.5 cm by 1 cm swelling to the occipital region and pain in the back. He referred her to a forensic doctor for a final report.\n(f) On 31 May 1996 a gynaecologist from the Istanbul General Hospital informed the Istanbul Assize Court that the hospital register showed that Mrs Öktem had been examined on 20 February 1996 and that no genital pathology in the region of the uterus had been found. However, in view of her allegation that she had suffered a miscarriage, she had been given appropriate treatment.\n(g) Mrs Öktem's medical file was examined by a team of seven gynaecologists, who, in a report of 19 February 1997, concluded that she had suffered a miscarriage while in police custody. However, since there were no marks on her body consistent with assault and she had not had a full medical examination, they said that it was impossible to confirm a causal link between the miscarriage and the alleged ill-treatment.", "44. Miss Kemanoğlu was arrested on 6 February 1996.", "45. On 19 February 1996 she was interviewed by the public prosecutor. She complained of ill-treatment by police officers while in custody and denied all the offences she was alleged to have committed. She was subsequently brought before the judge, who ordered her detention pending trial.", "46. Miss Kemanoğlu was given three medical examinations:\n(a) On 19 February 1996 a forensic doctor noted that there were no marks on her body consistent with assault.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a 3 cm by 3 cm bruise on her leg, and bruising to the neck, shoulders and rib cage. He referred her to a forensic doctor for a final report.\n(c) On 6 March 1996, in the light of the aforementioned medical reports, the forensic doctor made an order for her to be examined by the Institute of Forensic Medicine Special Office. However, the file shows that that examination did not take place.", "47. Miss Şahin was arrested on 7 February 1996.", "48. On 19 February 1996 she stated before the public prosecutor and the judge that she had been ill-treated by police officers while in custody. The judge ordered her detention pending trial.", "49. Miss Şahin was given three medical examinations:\n(a) In a report of 19 February 1996, a forensic doctor noted two old bruises measuring 0.5 cm by 1 cm and 0.5 cm by 2 cm on the anterior left arm and an old bruise measuring 1 cm by 1.5 cm on the same arm. He did not certify her unfit for work.\n(b) In a report of 22 February 1996, the Bayrampaşa Prison doctor noted a 2 cm by 2 cm bruise on the neck and cuts to the shoulders.\n(c) In a report of 7 March 1996, the forensic doctor confirmed the findings in the report of 22 February 1996 and certified Miss Şahin unfit for work for three days.", "50. Miss Karahancı was arrested on 8 February 1996.", "51. On 19 February 1996 she stated before the public prosecutor and the judge that she had been ill-treated by police officers while in custody. The judge ordered her detention pending trial.", "52. Miss Karahancı says that she was subjected to various forms of ill-treatment while in custody: she was beaten, suspended by the arms, sprayed with water and deprived of sleep for three days.", "53. She was given three medical examinations:\n(a) In a report of 19 February 1996, a forensic doctor noted that she complained of pain in the back and arms. He found a 2 cm by 3 cm bruise in the middle of the outer left leg, and an old bruise measuring 0.5 cm by 0.5 cm on the lower leg. He certified her unfit for work for five days.\n(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a bruise on the left ankle and pain in different parts of the body. He considered an examination by a forensic doctor necessary.\n(c) In a report of 6 March 1996, the forensic doctor confirmed the findings in the report of 19 February 1996.", "54. Mr Tokur was arrested on 8 February 1996.", "55. On 19 February 1996 he stated before the public prosecutor and the judge that he had been ill-treated by police officers while in custody. The judge ordered his detention pending trial.", "56. Mr Tokur says that while in police custody he was beaten approximately twenty to twenty-five times, threatened with death, sprayed with water and deprived of sleep for four days.", "57. On 19 February 1996 a forensic doctor found no visible marks on Mr Tokur's body on examination that were consistent with assault. He noted, however, that Mr Tokur complained of pain in his shoulders and certified him unfit for work for one day.", "58. Mr Kablan was arrested on 6 February 1996.", "59. On 19 February 1996 he stated before the public prosecutor and the judge that he had been ill-treated by police officers while in custody. The judge ordered his detention pending trial.", "60. Mr Kablan says that he was subjected to various forms of ill-treatment while in custody: suspension by the arms, blows and sleep deprivation.", "61. He was examined three times:\n(a) In a report of 19 February 1996, a forensic doctor noted old bruises measuring 2 cm by 3 cm on his right leg. He certified Mr Kablan unfit for work for one day.\n(b) In a report of 28 February 1996, the Bayrampaşa Prison doctor noted a bruise on the right leg, bruising to the axillary region, reduced movement in both arms and pain in various parts of the body. He referred Mr Kablan to a forensic doctor for a final report.\n(c) In a report of 7 May 1996, the forensic doctor noted that Mr Kablan was suffering from a problem with his ears entailing unfitness for work for fifteen days.", "62. Miss Sürücü was arrested on 14 March 1996.", "63. She was interviewed by the public prosecutor on 25 March 1996, following a medical examination which did not disclose any marks consistent with assault. She was then brought before the judge, who ordered her detention pending trial.", "64. Mr Bozkurt was arrested on 14 March 1996.", "65. He was interviewed by the public prosecutor on 25 March 1996, following a medical examination which did not disclose any marks consistent with assault. He was then brought before the judge, who ordered his detention pending trial.", "66. On 10 April 1996 the public prosecutor instituted criminal proceedings against twenty people, including the applicants, under both Article 146 of the Criminal Code, which makes it an offence to attempt to change or modify the Constitution of the Republic of Turkey in whole or in part, to attempt a coup d'état against the National Assembly or to use force to prevent the National Assembly from carrying out its functions, and Article 168 § 2 of the Criminal Code, which makes it an offence to be a member of an armed group. The applicants were accused of various acts of violence, including voluntary homicide, attempted homicide, throwing explosive devices, taking part in an illegal and violent demonstration and armed robbery.\n... 73. On 5 March 1996 ten of the applicants, Bülent Gedik, Zülcihan Şahin, Sinan Kaya, Sevgi Kaya, Devrim Öktem, Okan Kablan, Arzu Kemanoğlu, Müştak Erhan İl, İzzet Tokur and Ulaş Batı, lodged a complaint of ill-treatment against the police officers who had been on duty while they were in custody. 74. They also lodged a complaint against O.T. (the Istanbul police commissioner) and R.A. (the deputy director of the Istanbul anti-terrorist branch). They argued that these two senior police officers were the hierarchical superiors of the police officers who had subjected them to torture. This complaint was dismissed on 24 February 1998 for lack of sufficient evidence. That decision was upheld by the President of the Beyoğlu Assize Court on 23 September 1998. 75. On 12 April 1996 the public prosecutor questioned four police officers (Fatih Berkup, Mehmet A. Çavdar, Ahmet Bereket and Yakup Doğan) in connection with the complaint that had been lodged on 5 March 1996. All four officers had been on duty while the applicants were in custody. They denied having ill-treated the applicants concerned. 76. Meanwhile, on a date that has not been specified by the parties, a complaint was lodged by Ebru Karahancı, Özgür Öktem and ĺsmail Altun. They alleged, inter alia, that six police officers (Mustafa Sara, Mustafa Taner Paylaşan, Fatih Berkup, Mehmet A. Çavdar, Ahmet Bereket and Yakup Doğan) had ill-treated them while they were in custody. On 21 February 1997 the Istanbul public prosecutor's office decided not to take any action on the complaint. However, the applicants say that on 5 December 1997 the President of the Beyoğlu Assize Court set aside that decision following an appeal by the applicants' representative. 77. By an indictment that was lodged on 4 March 1997, the public prosecutor instituted criminal proceedings in the Istanbul Assize Court against five police officers (Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup, Mehmet A. Çavdar and Yakup Doğan) for an offence under Article 243 of the Criminal Code (see paragraph 96 below). 78. The first hearing in the case took place on 26 May 1997 in the Istanbul Assize Court, in the absence of the five police officers. The Assize Court heard the applicants, who complained in particular of the decision not to prosecute Mustafa Sara. In addition, Mrs Öktem testified that she had suffered a miscarriage after being assaulted and subjected to repeated blows to the abdomen while in custody. With the exception of İzzet Tokur, Ebru Karahancı, Özgür Öktem and ĺsmail Altun, the applicants applied to be joined to the criminal proceedings as civil parties under Article 365 of the Code of Criminal Procedure (see paragraph 98 below). That application was granted. 79. On 7 July 1997 a brawl broke out between the applicants and members of the security forces as nine of the applicants (Zülcihan Şahin, Sinan Kaya, İsmail Altun, Müştak Erhan İl, Arzu Kemanoğlu, Okan Kablan, Devrim Öktem, Özgür Öktem and Bülent Gedik) were being taken to the hearing room in the Istanbul court-house. The Istanbul Assize Court proceeded with the hearing, which it began by hearing evidence from the four defendant police officers who were present, namely Mustafa Taner Paylaşan, Fatih Berkup, Mehmet A. Çavdar and Yakup Doğan. 80. At the hearing the applicants formally identified those police officers. The Assize Court decided that it was unnecessary to remand the accused in custody and adjourned the question of whether Mustafa Sara should be prosecuted to a later date. 81. At a hearing on 20 October 1997, Mr Öktem (the father of Mrs Öktem and Mr Öktem) and Miss Karahancı gave evidence. The latter said that she was unable to identify anyone, as she had been kept blindfolded throughout her time in police custody. 82. The testimony of one of the accused, Ahmet Bereket, was obtained on commission and placed in the case file of the Assize Court on 29 July 1997. 83. At a hearing on 25 December 1997, the Assize Court sought to establish the addresses of two of the victims, A. Kılıç and Ay. Kılıç, so that their testimony, which was not on the case file, could be obtained. 85. On 7 January 1998 a supplementary indictment was lodged by the public prosecutor, accusing police officer Mustafa Sara of ill-treatment with a view to extracting confessions. 87. Between 21 May 1998 and 25 December 2002 the Assize Court held approximately thirty hearings, at which it sought, inter alia, to establish the addresses of a witness and of a victim with a view to serving them with witness summonses. Although the applicants' representatives urged the Assize Court on 24 June 1999, 20 November 2001 and 23 December 2001 to dispense with the evidence of the two people concerned, it did not accede to their request until 13 February 2002. 88. At a hearing on 17 July 2002, the representative acting for Mustafa Taner Paylaşan, Fatih Berkup and Yakup Doğan informed the Assize Court that he was withdrawing from the case. The court was also informed that Mehmet A. Çavdar had died. 89. On 1 October 2002 the applicants' representatives asked the Assize Court to expedite the proceedings, as there was a danger that the prosecution of the offences would become statute-barred. 90. At a hearing on 20 November 2002, Yakup Doğan sought an adjournment to enable him to obtain legal representation. Mustafa Sara lodged a medical certificate excusing his absence. The Assize Court granted the defendants an extension of time. From the case file it would seem that Mustafa Sara never in fact appeared before the Assize Court. 91. At a hearing on 25 December 2002, the public prosecutor made his submissions. He sought an order dismissing the criminal proceedings against Mehmet A. Çavdar, who had died, and against Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup and Yakup Doğan under the statute of limitations. As regards Mustafa Sara, he sought a conviction only on the count of torturing Bülent Gedik. He submitted that Mustafa Sara should be acquitted on the other charges. 92. In a judgment of 5 February 2003, the Assize Court decided to discontinue the proceedings against the defendants Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup and Yakup Doğan by virtue of the statute of limitations and against Mehmet A. Çavdar on the ground of intervening death. It found Mustafa Sara guilty of torturing Mr Gedik and Mrs Öktem and sentenced him to two years' imprisonment. It also made an order prohibiting him from holding public office for a period of six months. However, it acquitted him on the other charges.\n..." ]

[ 1, 2 ]

[ "9. In September 1980 the applicants were taken into police custody and were subsequently placed in detention on remand on suspicion of membership of an illegal organisation. The Erzincan Military Public Prosecutor filed a bill of indictment with the Erzincan Martial Law Court (sıkıyönetim askeri mahkemesi) charging the applicants under Article 146 of the Criminal Code with membership of an illegal organisation whose object was to undermine the constitutional order.", "10. On various dates between 1982 and 1984 the applicants were released pending trial.", "11. On 13 September 1988 the Erzincan Martial Law Court acquitted the applicants of the charges against them.", "12. On various dates in March, April and June 1989 the applicants brought individual actions before the Sinop Assize Court against the Treasury, pursuant to Law no. 466. They requested compensation for their unjustified detention on remand.", "13. On 20 October 1989 the court decided to join the applicants’ cases.", "14. On 15 December 1993 the Sinop Assize Court awarded non‑pecuniary compensation to the applicants. The applicants appealed, arguing that the amount of compensation awarded was not sufficient.", "15. On 31 January 1995 the Court of Cassation quashed the judgment of the first instance court.", "16. On 6 June 1995 the Sinop Assize Court increased the amount of non‑pecuniary compensation.", "17. On 15 June 1995 the applicants again appealed.", "18. On 30 May 1996 the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of the assize court." ]

[ 3 ]

[ "9. The applicant was born in 1949 and lives in Reykjavík.", "10. Her complaints under the Convention stem from her arrest and detention in police custody in Reykjavík on six occasions as described below.", "11. The applicant was arrested and held on remand in police custody on six occasions on different dates between 31 January 1988 and 11 January 1992. Each time, she spent the night in a cell and was released in the morning. Further details about these events are given in the police reports compiled by the responsible police officers for the Reykjavík Police Commissioner and are set out below.\n(i) In the night of Sunday 31 January 1988 at 3.40 a.m., the applicant went to a local police station in a Reykjavík suburb accompanied by two taxi drivers. Although she only had ISK 100 in her possession, the taxi fare amounted to ISK 1.825. According to a police report (signed by Police Officer R.B.), the taxi drivers had stated that “they had been driving [the applicant] during the night, but since she had refused to pay they had driven her to the nearest police station.” The police report further stated that she was “obviously drunk and agitated” and that she was “very agitated, foul-mouthed and disruptive.” The applicant was then transferred to Reykjavík Police Headquarters where she was, on the decision of Assistant Police Inspector H.Ó., detained in custody until the next morning.\nA further police report of 31 January 1988 (signed by R.B.) relating to a police interrogation the next morning at 8.55 a.m. stated that the reasons for her “being summoned [had] been explained to her”, namely a “case ... concerning taxi fraud, intoxication, etc.” She had replied inter alia that she had intended to pay her fare to the driver in an amount of ISK 1.325 when returning home, but had refused to pay an invoice of ISK 500, which she would only pay after consultation with her lawyer. She expressed surprise over the fact that not only had she been subjected to a string of accusations by the police but also she had been held in detention without being given any reasons. She was released at 9.25 a.m.\n(ii) On Friday 18 May 1990 at 0.05 a.m., the applicant arrived at the Reykjavík police headquarters at Hverfisgata. A police report (signed by Assistant Police Inspector H.Ó.) entitled “Intoxication and detention”, described the applicant's condition as “Very obviously drunk” and gave “Drunken behaviour” as the reason for her arrest. The report included the following passage:\n“As far as she could make herself understood she had arrived by taxi and there was some dispute between her and the driver. The driver and the taxi were nowhere to be seen.\n[After the police inspector had] talked with Hilda for a while it became clear that the cause of the dispute no longer existed. She suddenly began to stride about in the corridors and the personnel lounge of the police station, confronting the police personnel present and exhibiting drunken behaviour. She would not calm down despite repeated requests and finally it became necessary to restrain her by placing her in police custody.”\nAccording to the Government, the police had repeatedly requested the applicant to desist and to leave the police station but, as these requests were ignored, she was placed in police custody as a last resort. Since the relevant hand-written card file was no longer available, the time of her release could not be confirmed.\n(iii) On Saturday 8 December 1990 at 10.15 p.m., the applicant went again to the Reykjavík police headquarters. A police report (signed by Police Officer M.M. and addressed to the Police Commissioner) entitled “Intoxication, arrest and detention in police custody” was drawn up on her arrival:\n“Hilda arrived at the police guardroom in a state of heavy intoxication. It was not clear what she wanted; to a large extent she was incoherent. She was abusive and threatened to assault the police officers present at the station.\nPolice Officers nos. 41 and 89 brought her to the detention facility... where Inspector R.A. interviewed her.\nHilda was given the opportunity to leave freely, which she flatly refused. When her overcoat was being removed from the cell, she lashed out at her surroundings with a leather belt without, however, hurting anybody...”\nThe report described the applicant's condition as “very obviously drunk” and indicated “intoxication and aggressive behaviour” as the reasons for her arrest, which decision was taken by Inspector R.A.\nAccording to an entry in a more recent computerised police custody record, her detention lasted from 10.37 p.m. until 8.24 a.m. the next day. The reason for her detention was recorded as: “Alcoholic Beverages Act, drunkenness in a public place (section 21 [see paragraph 26 below])”.\n(iv) On Saturday 19 January 1991 at 0.15 a.m., the applicant went to the same police station. The relevant police report (signed by Police Officer M.M.), entitled “Intoxication, improper behaviour, and detention in police custody”, stated that her visit did not seem have any purpose and that she was very obviously drunk. Before she could be stopped, she had burst into the office of the inspector in charge and addressed him in derogatory terms as a “son of a bitch” and a “eunuch”. She was then arrested and held in police custody. The reason for her arrest according to the police report was that she had directed a stream of verbal abuse at the inspector. The decision had been taken by Inspector B.S.\nThe relevant custody record indicated that the applicant had been held in detention from 0.18 a.m. until 10.38 a.m. the following morning. The reason for her detention was registered as: “policemen; violent behaviour towards policemen (106-107)”. The reference in brackets appears to be Articles 106 and 107 of the General Penal Code (see paragraphs 27 below).\nA police note dated 20 January 1991 suggests that the applicant was offered, but refused, a judicial settlement of the matter.\n(v) On Monday 24 June 1991 at 9.10 p.m. the applicant once again went to the police headquarters in Reykjavík. The police report concerning the incident (signed by Police Officer H.D.), stated that she was very obviously intoxicated and agitated and that she made a habit of visiting the police station when under the influence of alcohol. Moreover, she had made a lot of noise, including calling out the names of various police officers. Her noises and screams increased to the point of disturbing the peace required for the work of the station. The applicant grabbed a waste bin standing at the entrance to the police station and prepared herself to throw the bin at Police Inspector R.A. who was helping a man to wash blood off his face. The applicant slammed the bin onto the floor with a loud bang when the policeman raised his hand in order to protect himself. The applicant had been ordered many times to leave the station, but to no avail. Instead, without permission, she had entered a corridor at the station and reached the personnel lounge, while carrying a glass containing a liquor mixture. According to R.A., she had threatened Assistant Inspector K.G. and had become very agitated when kindly requested to stop screaming and to leave the station.\nWhen she refused to leave she was arrested and brought to the detention facility. The decision was taken by Inspector R.A. The police report stated the reason for her arrest as “state of intoxication etc.” According to the relevant custody record she was detained from approximately 9.20 p.m. until 7.34 a.m. the following morning. The reason for her detention was recorded as “Alcoholic Beverages Act, drunkenness in a public place (section 21).”\n(vi) On Saturday 11 January 1992 at 2.39 a.m., the police was called to the Hotel Saga in Reykjavík. According to the relevant police report (signed by Police Officer H.R.), when the police arrived the applicant had been restrained by the hotel staff. She was very obviously intoxicated and agitated. The applicant was arrested and taken into custody for “intoxication”. The decision was taken by Assistant Inspector K.G. According to the relevant custody record (dated 14 February 2001) the applicant was detained from 3.14 a.m. until 9.17 a.m. the following morning. The reason for her detention was registered as “Alcoholic Beverages Act, drunkenness in a public place (section 21).”", "12. The Government further submitted various pieces of evidence described below.\nIt included two police reports of 25 May 1991 and 12 June 1992 respectively, concerning refusals by the applicant to pay taxi fares. Another report, dated 5 November 1991, stated that she had been ordered to leave a police station while in an intoxicated state but had left the station after having damaged a toilet and insulted a police officer with offensive language. Later that night she had for no apparent reason disturbed the police by repeatedly telephoning the police assistance and emergency number.", "13. On 13 October 1991 Chief Inspector J.J.H. complained to the Prosecutor General that the applicant had sent him gifts and harassed him repeatedly with phone calls both at work and at home. Once she had gone to his home and harassed his pregnant daughter. On 5 February 1992 the Prosecutor General replied that following an investigation by the State Criminal Investigation Police, further measures by the prosecution service were not deemed justified.", "14. On 9 September 1993 the State Criminal Investigation Police informed the applicant and the Reykjavík Police Commissioner that no further measures would be taken with respect to the above complaint of 13 October 1991.", "15. On 13 December 1991 counsel for the applicant, Mr Hilmar Ingimundarson, requested the Prosecutor General to order the State Criminal Investigation Police to investigate the applicant's complaints against various police officers, notably in relation to events on 8 December 1990 and 24 June 1991. Such an investigation had previously been refused by the State Criminal Investigation Police on 3 December 1991. On 5 February 1992 the Prosecutor General replied that the authority saw no reason to order an investigation. On 2 July 1992 a similar reply was given in relation to another complaint by the applicant concerning events on 18 May 1990.", "16. On 15 July 1992 the applicant petitioned the Parliamentary Ombudsman asking for a statement of the reasons for the refusal of her requests for an investigation. On 4 August 1992 the Ombudsman concluded:\n\"It is clear from the case file that you and the police differ considerably as to the manner in which the police officers dealt with you on the said dates and the events preceding these incidents. I do not find that a resolution of a dispute of this kind is within the purview of the Parliamentary Ombudsman and, consequently, conclude that there are no grounds for me to consider the matter raised in your petition any further.\"", "17. By a letter to the applicant dated 14 September 1992, the Reykjavík police informed her that no further action would be taken regarding the matter, referring to six reports related to the incidents mentioned in paragraph 11 above.", "18. On 11 March 1993 the applicant instituted civil proceedings against the State of Iceland claiming compensation for the damage which she had suffered as a result of having been unlawfully arrested and detained by the police as well as for harassment.", "19. After a first set of proceedings the Supreme Court ordered the District Court in Reykjavík to re-examine the case with an oral hearing.", "20. By a judgment of 11 April 1995 the District Court found that the applicant's claim was time-barred pursuant to the six-month time limit laid down in Article 157 of the Code of Criminal Procedure.", "21. On an appeal by the applicant the Supreme Court overturned the District Court's finding by judgment of 10 October 1996. After an examination of the merits it nevertheless found for the State, giving the following reasons:\n“...The judgment under appeal refers to six events which occurred during the period from 31 January 1988 to [11 January 1992]. According to the police reports, on each occasion the [applicant] was arrested and detained on remand because she was intoxicated and agitated and could not be calmed down. The police reports relate how she acted disruptively at the police station, being verbally abusive or behaving in a drunken manner, and that she was placed in a detention cell in order to restrain her. From these descriptions, which have not been refuted, it is clear that the police had good cause and sufficient reason to commit the applicant to a detention cell for a short period of time, cf. the main rule in Article 34 of the Code on Criminal Procedure, no. 74/1974 then in force, and Articles 2 and 3 of the Reykjavík Police Ordinance, no. 625/1987; and the respondent's view that no other remedy was available in the circumstances must be upheld. Consequently, the [applicant's] claim for compensation lacks legal basis and, for that reason alone, the respondent must be released from her claim. ...”", "22. The applicant submitted a medical certificate dated 13 December 1996, which included the following:\n“...For two years I, the undersigned, have acted as the [applicant's] general practitioner. During this period, nothing has occurred which would indicate that she has had alcohol related problems. Nor do the reports from her previous doctors give any reason to believe that she has had such problems. ...”" ]

[ 2 ]

[ "6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1920, 1927, 1925 and 1928 respectively.", "7. On 29 July 1994 and on 16 February 1995 the Government and the Parliament passed two decisions according to which the deposits of certain categories of persons at the Savings Bank have to be index-linked. According to the decisions, the Ministry of Finance was supposed to allocate the necessary funds to the Savings Bank. However it failed to do so and the Savings Bank could not carry out the decisions of the Parliament and of the Government.", "8. In 2000 and 2001 the applicants lodged with the Râşcani District Court civil actions against the Ministry of Finance in which they sought compensation.", "9. By judgments of 25 August 2000 and 29 September 2000 the court awarded Ms Sofia Pasteli compensation of MDL 734[1] and MDL 1,466[2] respectively. No appeal was lodged and the judgments became final.", "10. By judgment of 6 December 2000 the court awarded Ms Nadejda Cernicov compensation of MDL 4,398[3]. No appeal was lodged and the judgment became final.", "11. By judgment of 25 August 2001 the court awarded Mr Pavel Careţchi compensation of MDL 2,904[4]. No appeal was lodged and the judgment became final.", "12. By judgment of 25 August 2001 the court awarded Ms Maria Careţchi compensation of MDL 5,876[5]. No appeal was lodged and the judgment became final.", "13. On unspecified dates the applicants lodged complaints about the non-enforcement of the judgments with the Ministry of Justice and the Enforcement Authority. In its replies, the Ministry of Justice and the Enforcement Authority informed them that the judgments could not be enforced, as no funds had been provided for the enforcement of judgments by the relevant legislation within the annual State budget.", "14. On 22 April 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Finance." ]

[ 3, 9 ]

[ "4. The applicant was born in 1920 and lives in Łódź, Poland.", "5. On an unspecified date in 1992 the applicant asked the Veterans and Persecuted Persons’ Office (Urząd do Spraw Kombatantów i Osób Represjonowanych) to grant him “veteran status.”", "6. The President of the Office informed the applicant that his application was not complete and should be submitted first to a local veterans association.", "7. On 2 October 1993, after having contacted the Łódź District Veterans Association, the applicant lodged for the second time an application with the Veterans and Persecuted Persons’ Office concerning his “veteran status.”", "8. The Office failed to issue a decision and informed the applicant that he should first lodge an application with the World Veteran Association.", "9. On 25 February 1994 the applicant lodged a complaint about the inactivity of the Office with the Supreme Administrative Court. On 24 June 1994 the Supreme Administrative Court allowed his complaint and ordered the Office to give a decision within two months. The court established that the applicant’s application of 2 October 1993 had satisfied legal requirements and that the Office should have given a decision on merits instead of asking the applicant to fulfil other conditions.", "10. On 8 February and 3 April 1995 the Veterans and Persecuted Persons’ Office requested the applicant to submit additional documents concerning his case. The applicant complied with the requests.", "11. On 4 July 1995 the President of the Veterans and Persecuted Persons’ Office gave a decision in which he refused to grant the applicant “veteran status”. The Office found that the applicant had failed to provide evidence of his participation in the Polish Defence War in September 1939.", "12. The applicant lodged a complaint against this decision with the Supreme Administrative Court.", "13. On 5 March 1996 the Supreme Administrative Court quashed the impugned decision and remitted the case to the first-instance authority. The court found that the Office had not examined the case properly and, in particular, had not heard the applicant despite his several applications and had not heard other soldiers who had allegedly fought with him.", "14. Since the Office had failed to give a decision, on 11 July 1996 the applicant complained about this inactivity to the Supreme Administrative Court. At the hearing held on 10 January 1997 the Supreme Administrative Court gave judgment in which it dismissed the allegations concerning the inactivity of the authority since it established that the Office had been collecting additional evidence in the applicant’s case.", "15. On 28 May 1997 the applicant lodged another complaint with the Supreme Administrative Court alleging inactivity on the part of the President of the Veterans and Persecuted Persons’ Office. On 6 February 1998, the Supreme Administrative Court discontinued the proceedings because in the meantime, on 3 December 1997, the President had given a decision. In this decision the President of the Veterans and Persecuted Persons’ Office again dismissed the applicant’s application to grant him “veteran status.”", "16. On 16 December 1997 the applicant appealed against this decision by lodging an application for the case to be reconsidered by the President of the Veterans and Persecuted Persons’ Office.", "17. On 24 June 1998 the President of the Veterans and Persecuted Persons’ Office dismissed the applicant’s appeal.", "18. The applicant lodged a complaint against this decision with the Supreme Administrative Court.", "19. On 4 April 2000 the Supreme Administrative Court dismissed the complaint. The applicant was notified about this decision on 23 June 2000." ]

[ 3 ]

[ "7. The applicant, Tinna Romlin, is a Swedish national, who was born in 1965 and lives in Sollentuna. She is represented before the Court by Mr Ulf Jacobson, a juris candidate, practising in Stockholm. The Government is represented by Mrs I. Kalmerborn of the Ministry for Foreign Affairs, as Agent.\nThe facts of the case, as submitted by the parties, may be summarised as follows.", "8. The applicant suffers from rheumatoid arthritis. On 14 December 1989 she applied for a disability allowance (handikappersättning) under Chapter 9, Section 2 of the Social Insurance Act (Lagen om allmän försäkring, 1962:381) on the grounds of incapacity due to rheumatoid arthritis and asthma.", "9. On 20 March 1991 the Social Insurance Office (försäkringskassan) of the County of Stockholm rejected the application, finding that her need for assistance and her additional costs due to her handicap did not attain the level required under the above provision. The applicant unsuccessfully appealed against this decision to the competent administrative courts, in proceedings which ended on 30 December 1994 when the Supreme Social Insurance Court (Försäkringsöverdomstolen) refused her leave to appeal. No oral hearing was held in those proceedings.", "10. In the meantime, in August 1993 the applicant reapplied for a disability allowance. On 20 January 1994 the Social Insurance Office decided: \n“As from January 1993, [the applicant’s] additional expenses because of her reduced functional capacity entitled her to a disability allowance at the level of 69 per cent of the basic amount [basbeloppet].”", "11. The applicant, represented by a lawyer, appealed against the Office’s decision to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that the reduction in her functional capacity caused by her handicap and her need for support had remained unaltered at any rate since August 1991 and that she should have been granted a disability allowance as from then. She invoked the existing medical reports and requested the court to obtain the opinion of experts in rheumatology and to hold an oral hearing.", "12. On 4 May 1995 the County Administrative Court rejected both her requests and gave her two weeks within which to indicate the further circumstances she wished to invoke and to submit final written observations. By a judgment of 22 June 1995 it upheld the Social Insurance Office’s decision.", "13. The applicant, through her lawyer, appealed against the above judgment to the Administrative Court of Appeal (kammarrätten) requesting it to carry out an investigation in order to establish the extent of her disability and additional expenses for the period from August 1991 to December 1992 and to hold an oral hearing.", "14. In December 1997 the Administrative Court of Appeal rejected her request for an oral hearing and gave her two weeks to complete her submissions in writing. On 5 January 1998 it refused her leave to appeal.\nOn 9 February 1998 the Supreme Administrative Court (Regeringsrätten) rejected the applicant’s request for an oral hearing and gave her three weeks within which to submit additional written observations. On 25 February 1999 it refused the applicant leave to appeal." ]

[ 3, 9 ]

[ "8. The applicant was born in 1947 and lives in Helsinki.", "9. In 1987 the applicant founded a company called “Oy Finnish Options and Futures Exchanges Ltd” (hereinafter “FOFE”).", "10. FOFE went into liquidation on 12 August 1993 and was finally dissolved on 16 May 1994.", "11. In the liquidation proceedings the applicant filed his claim against the estate, claiming 1,106,715 Finnish marks (FIM; approximately EUR 186,000), plus interest, in respect of unpaid salaries and other claims related to his employment contract with FOFE. As the estate contested most of the applicant’s claims, the parties instituted civil proceedings against each other before the District Court (käräjäoikeus, tingsrätt) of Helsinki. The estate of FOFE argued that the applicant had not been an employee of the company but had rather held an executive position as he had owned all its shares, and insisted that the applicant be ordered to reimburse to the estate certain assets he had allegedly transferred from the company to himself before the company was dissolved. The claims made by the parties against each other were jointly considered by the District Court.", "12. It appears that at least one of the main issues in the civil proceedings was whether the applicant had been in an executive position in the company or not.", "13. During a preparatory hearing at the District Court, on 15 August 1995, the representatives of FOFE named, among others, Mr J.S., President of the Board of Directors of FOFE, Mr S.L. and Mr A.P., both former members of FOFE’s Board of Directors and Mr A.P. also its former Executive Director, to give evidence on their behalf. The applicant named Mr J.N, former Managing Director of FOFE, the above-mentioned Mr J.S., and Mr E.S., to be heard as his witnesses concerning his position in the company.", "14. In his written observations of 26 September 1995 to the District Court in respect of the estate’s claims the applicant stated, inter alia, as follows:\n“The estate of FOFE has called Mr S.L. and Mr A.P., both of whom were members of its Board of Directors and the latter also its Executive Director, to give evidence. We will also hear them in respect of exactly the same issues on which we will examine Mr J.S.\nWith the support of the above-mentioned witnesses we will prove that [the applicant] has not had any close connections with FOFE since he resigned from its Board of Directors on 3 June 1992, and that he has had no decisive position in the company.”", "15. At another preparatory hearing, on 4 October 1995, FOFE repeated that they would call A.P. as a witness. The applicant named the witnesses he had named on 15 August 1995 and further named Mr M.S. who would give evidence about the applicant’s tasks. The District Court decided on the same day that A.P. would be summoned by the court ex officio.", "16. At yet another preparatory hearing in the case, on the morning of 11 October 1995, FOFE repeated their intention to hear A.P. as their witness. According to the District Court’s minutes from that last preparatory hearing the applicant had named four witnesses, namely Mr J.N., Mr J.S., Mr E.S. and Mr M.S. Witness Mr A.P. was mentioned in the list of the adverse party’s witnesses only.", "17. Thereafter the District Court decided that the preparatory stage of the proceedings had ended and that the main hearing would be held that same day at ten o’clock.", "18. A.P. failed to appear before the District Court on 11 October 1995, having informed the court in advance that he would be in Estonia at the time of the hearing and would not be available until 26 and 27 October 1995. The estate of FOFE withdrew their request to call A.P. as a witness. Thereupon the applicant appointed A.P. as a witness on his behalf and requested that the main hearing be adjourned until 27 October 1995. The District Court rejected the applicant’s request, holding, in the light of the other evidence, that the hearing of A.P. was not likely to be of assistance for discovering the truth. The District Court’s decision was repeated in its judgment delivered on 26 October 1995, in which it was found that the applicant had not been an employee but rather had occupied a leading position in FOFE. Most of the applicant’s claims were rejected, with the exception of FIM 300,000 (approximately EUR 50,000) for unpaid salaries. The applicant was, inter alia, ordered to refund FIM 1,191,425 (approximately EUR 200,000) to FOFE in compensation for the assets he had transferred from the company. He was also ordered to pay FIM 137,242.18 (approximately EUR 23,000) in compensation for FOFE’s legal fees and expenses.", "19. On 27 November 1995 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt), requesting an oral hearing and calling A.P. as his witness. He argued that the hearing of A.P. as a former Executive Director of FOFE would be necessary for ascertaining the truth in respect of the applicant’s status in the company. He noted that A.P. had informed the District Court of his journey to Estonia at the time of the hearing but had simultaneously given the dates when he would be available. A.P. had been summoned by phone to appear before the District Court only a few days before the hearing of 11 October 1995. It had been impossible for him to cancel his business meeting in Estonia at such short notice. The applicant alleged that his request to adjourn the hearing in order to call A.P. as a witness had been inconvenient for the presiding judge of the District Court in respect of the timetable for the drafting of the decision. The hearing of A.P. was even more important at this stage as the District Court had not found the statement of J.S. to be credible in every aspect. If the court had heard A.P., who would have confirmed that the applicant had not been in any decisive position in FOFE, it would have been difficult for the District Court to decide as it did.", "20. The Court of Appeal upheld the District Court’s decision on 20 February 1997, rejecting the applicant’s request to hold an oral hearing. The Court of Appeal stated as follows:\n“...[The applicant] has called nine witnesses before the Court of Appeal. In so far as he has called Mr A.P., the Court of Appeal notes that A.P. had been appointed as a witness in the District Court only during the main hearing. According to Chapter 6, Section 9, of the Code of Judicial Procedure a party must not, in a case amenable to settlement, adduce a circumstance or evidence that he has not adduced in the preparation of the case, unless he establishes a probability that he had a valid reason for not doing so. [The applicant] has not established such a valid reason for appointing A.P. as a witness only at the main hearing. Thus, the appointment of A.P. as a witness must be regarded as if it had only taken place during the Court of Appeal proceedings. In so far as new witnesses have been appointed and new evidence appearing in the annexes to the applicant’s letter of appeal has been invoked, [the applicant] has not established a probability that he was unable to adduce the circumstance or evidence in the District Court or that he had a justifiable reason for not doing so. ... No such reason has been established in respect of the written submissions and their annexes submitted by the parties to the Court of Appeal after the relevant time-limit had elapsed, excluding the parts concerning the proposed stay of execution. In accordance with Chapter 25, Section 14, subsection 2, and Section 20, subsection 2, as well as Chapter 26, Section 5, of the Code of Judicial Procedure, the Court of Appeal leaves the submissions and their annexes unexamined, excluding the request concerning stay of execution, and rejects [the applicant’s] request to hold an oral hearing. Thus also the request to return the case to the District Court is rejected as being unnecessary.”", "21. The applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, noting that the District Court had refused to call A.P. as a witness because it had found that it was unnecessary in the light of the other evidence invoked. The District Court had, thus, found that the applicant had not been prevented from calling him had the hearing of his evidence been necessary. The Court of Appeal had, however, found that the applicant had appointed A.P. as his witness only at a stage of the proceedings when he was already precluded from doing so, i.e. at the main hearing. The applicant had, however, appointed A.P. as his witness already in a preparatory meeting on 15 August 1995 and repeated the request on 26 September 1995 in his written observations to the District Court. He had also had a relevant reason to request that A.P. be heard as the estate of FOFE – which had originally called A.P. as a witness – had withdrawn their request only at the main hearing. A.P. had been the Executive Director of FOFE and, as such, was in the best position to give a statement of the applicant’s position in the company for the period from 28 October 1992 until the insolvency proceedings. Therefore the applicant found it very important that the Supreme Court would hear A.P. as a witness or, alternatively, return the case to a lower court in order to hear the witness.", "22. On 22 October 1997 the Supreme Court refused the applicant leave to appeal." ]

[ 3 ]

[ "7. The applicant was born in 1988 and lives in Merseyside.", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. In June 1999 the applicant, who had just turned 11, and a 14-year-old boy called “L.A.”, approached an 87-year-old woman in the street. The applicant attempted to take the woman's bag, causing her to fall to the ground and fracture her left arm. The applicant ran away and L.A. stayed with the victim. The applicant was charged with attempted robbery. His defence was that he had acted under duress, having been threatened by L.A.", "10. In July 1999, in connection with other offences, he was given a two-year supervision order and was remanded to the care of the local authority and placed with foster parents.", "11. In August 1999 the Youth Court, looking at the applicant's offending history, which included offences of robbery, burglary, theft and arson, considered that it might be appropriate to impose a custodial sentence if he were convicted of the attempted robbery, and committed him for trial in the Crown Court. After committal, the applicant's legal representatives obtained two expert reports. The first report was prepared by Dr Ronan Brennan, an adolescent forensic psychiatrist, who was able to talk to the applicant for twenty minutes in September 1999 before the latter terminated the interview. The applicant was also seen by Diane Baines, a consultant clinical psychologist, on 11 October 1999.", "12. In his report Dr Brennan observed, inter alia:\n“Mental state examination\n[The applicant] sat motionless in the chair throughout my brief interview. He appeared distracted and frequently asked me to repeat my questioning claiming that he could not understand me. He appeared defensive when questioned regarding family circumstances and was vague about his past schooling. He appeared reluctant to discuss his offending behaviour, asking me what point was there discussing it with me.\nUltimately, after repeating the statement that he was bored and wanted to eat he informed me that he would not answer any more questions and wanted to leave. Since it was clear that he was resistant to further questioning or probing I consented to his wish.\nImpression\nIt has been extremely difficult to form a detailed impression of this young man's problems and needs by virtue of his unwillingness to enter into the assessment process and a failure to obtain collateral information regarding his personal development and family background.\nIt is evident from the limited information available that [the applicant] has exhibited a behaviour disturbance from an early age which has resulted in restricted academic progress and alienation from his peers. ... [The applicant's] persistent pattern of disruptive and socially inappropriate behaviour would be consistent with a diagnosis of conduct disorder of the unsocialised type.\nIt would appear from Diane Baines's psychological report ... that [the applicant] has a significant degree of learning difficulties. He has a full scale IQ of 56 (0.2nd centile), a verbal IQ of 63 (1st centile) and a performance IQ of 55 (0.1st centile). These scores would be consistent with his academic underachievement and could be viewed as a consequence of his disrupted schooling. Diane Baines notes that with [the applicant's] cognitive abilities being more consistent with a child of 8 rather than 11, his 'ability to reason is noticeably restricted'. ...\nIt is clear that [the applicant] has complex needs which should ideally be addressed under the provisions of a care order for the foreseeable future. ...\nIt is conceivable that, if a coordinated package of care fails to meet [the applicant's] complex educational and emotional needs, he will potentially pose a high risk of reoffending. At this time however I believe that a long term care order, with a stable foster placement and an appropriate educational package should be considered if an alternative to a custodial sentence were felt viable.\nRecommendations 1. It is difficult to assess issues concerning [the applicant's] fitness to plead since his discussion of the offence with me was limited. However, based on the information available to me and the findings of the psychological testing I would conclude that [the applicant] on balance was aware of his actions and that they were wrong. His understanding of their consequences however may have been adversely affected by his learning difficulties and impaired reasoning skills. Overall I would consider that [the applicant] is sufficiently capable of entering a plea though obviously the court process would have to be explained carefully in a manner commensurate with his learning difficulties. 2. [The applicant] should be placed on a Supervision Order for as long as possible with a plan to address his emotional and educational needs and reduce his offending behaviour. 4. A copy of Diane Baines's report should be forwarded, with her consent, to [the applicant's] school in order to devise an appropriate educational package to meet his complex needs.”", "13. Diane Baines's report, dated 18 October 1999, states as follows:\n“[The applicant] was seen in the company of his Youth Justice Worker in the outpatient department. He was friendly and cooperative with a reasonable attention span in the individual setting. He generally understood what was required of him although some explanations required repetition and he occasionally needed encouragement to persevere. ...\n[The applicant] was given the WISC-III [Wechsler Intelligence Scale for Children - 3rd edition), which looks at the development of reasoning skills as applied to both verbal and non verbal problem solving. ... [O]verall, [the applicant] is presenting with a significant degree of learning delay. His Verbal IQ is slightly higher than his Performance IQ, but both fall at or below the first percentile.\nOn the Verbal Scale, [the applicant] gained a score that was only just outside the average range on Digit Span, indicating reasonably good rote memory skills. Consistent with this was his ability to carry out the mental calculations for Arithmetic. His scores on the remaining subtests were more significantly below average, reflecting poorly developed verbal reasoning skills. He found it particularly difficult to define words for Vocabulary, which he did to the level expected of most children aged about 6 years old.\nIn general, [the applicant] experienced more difficulty with the Performance Scale subtests than with those that were language based. His age equivalents on this Scale ranged from below 6 years 2 months at the lowest to 6 years 6 months at the highest. His approach to tasks that were reliant on the appreciation of visuo-spatial relationships was noticeably immature and he did not always attend to the relevant features.\n[The applicant's] attainments in literacy were looked at using the WORD [Wechsler Objective Reading Dimensions] and it was found that his ability to read and spell individual words out of context were both at levels that would be predicted from his general intelligence. He coped less well than expected with the Reading Comprehension section but this should be interpreted in the context of his disrupted educational career.\nSummary\n[The applicant] is currently presenting with a significant degree of learning difficulty that is most apparent in his ability to carry out visually based tasks. ... If looked at in terms of age equivalents, [the applicant's] cognitive abilities cover a range from below 6 years 2 months up to 8 years 2 months, which will mean that his ability to reason is noticeably restricted. ...”", "14. There was a pre-trial hearing in December 1999. The applicant's counsel relied on Articles 3 and 6 of the Convention and argued that the trial should be stayed as an abuse of process because of the applicant's low attention span and educational age, which meant that he would be unable fully to understand and participate in the trial. This submission was rejected by the judge, who ruled, inter alia:\n“I do not accept that placing [the applicant] on trial in the Crown Court amounts to inhuman or degrading treatment or will be unfair. Following the procedures now habitually adopted in Crown Courts when trying children, the trial before the jury will be conducted in as informal a manner as is consistent with the requirements of a fair trial. Legal wigs and robes will not be worn. The issue before the jury will be a simple one. There is no reason to think that [the applicant] will be any less able to give his evidence to the jury than to the Youth Court. On the material before me he appears to be a 'streetwise' child, whose intellectual impairment is largely the result of spending two of his critical formative years outside the education system.\nI questioned whether there is felt to be a public interest in proceeding with the prosecution, having regard to the fact that [the applicant] is already subject to a two-year supervision order for offences including robberies. I was told that since that order was made on 1 July 1999 (at which time [the applicant] was also taken into local authority care), he has committed (and admitted) a number of other offences. He was placed with foster parents, who in September felt (according to Dr Brennan's report) that he was making some progress. Now, they are unwilling to keep him, finding him uncontrollable. In these circumstances it is entirely understandable that the Crown wish to proceed with the prosecution.\nMr Gow also wished to take the point at trial that [the applicant] is unfit to plead. This argument is not supported by Dr Brennan's written report, but I was told that in a subsequent conference with counsel Dr Brennan was equivocal on this point and his oral evidence might support it, although he has not seen [the applicant] since September (when the boy was uncooperative anyway). No supplementary written report has been served. Mr Gow has overlooked the fact that the evidence of two medical practitioners would be needed before a jury could be invited to find his client unfit to plead; also that Mrs Baines is not a medical practitioner. He asked me to vacate [the] trial date to give the defence time to engage a second doctor.\nI refused this application also, inviting Mr Gow to reflect on whether this point can really be pursued in the light of Dr Brennan's conclusions. If the boy is unfit to plead, then he would presumably have been unfit to plead in the Youth Court, yet the point has apparently never been suggested on his various appearances there. Since this afternoon's hearing I understand from Mr Gow that he has duly reflected and discussed the matter with his instructing solicitors, and does not now intend to pursue the issue of fitness to plead. The trial will therefore proceed on the merits, the issue being duress. ...”", "15. At the hearing in December 1999, which lasted one day, the applicant was accompanied by his social worker. He was not required to sit in the dock and the court took frequent breaks and dispensed with the formality of wearing wigs and gowns. The Crown case consisted of two written statements (by the victim of the alleged crime and the arresting police officer) and the oral testimony of two eyewitnesses. The applicant gave evidence that he had committed the offence under duress, and Diane Baines also gave evidence consistent with her report.", "16. The applicant was convicted and sentenced to two and a half years' detention.", "17. He appealed to the Court of Appeal, inter alia, on the grounds that he had been deprived of a fair trial in view of his age and impaired intellectual capacity. The applicant advanced new evidence before the Court of Appeal, including a statement by the applicant's supervising social worker, who had been with him in the Crown Court, and who said, inter alia:\n“To address [the applicant's] first appearance [in the] Crown Court, the court was attired in full regalia and [the applicant] was totally perplexed at the rigid formality and surroundings of the Crown Court, and it is my opinion that he did not fully understand the situation.\n... [A]t his trial I was pleased to see that the Court was dressed in mufti. Whilst the jury was being sworn in [the applicant] asked me who they all were. I explained in as simple language [sic] a boy of 11 years should understand, that they were members of the public who would have the duty of finding [the applicant] not guilty or guilty.\nHe then said if they were the public why could not his mother sit there to help him. [The applicant] did not have a member of his family in attendance despite efforts made by myself.\nWhilst the trial was taking place [the applicant] kept turning around to talk to myself asking what was happening. [The applicant] has an extremely short attention span and it is my opinion that his lack of understanding of the formalities of the Crown Court led to the jury observing what could have been misinterpreted as bad behaviour and a 'could not care less' attitude.\nI believe this also antagonised some jury members when [sic] I observed watching [the applicant] closely. Even when the sentence was passed [the applicant] again did not understand what had been passed or where he was being placed.\n[The applicant] was under the impression that he would be returning to his foster/remand placement with [his foster father], who was present at Crown Court. Despite my efforts to explain the situation to him [the applicant] did not comprehend the situation he was in. When he was taken to the holding cells awaiting escorts I took time to try again to explain the consequences of his trial and sentence but he was still confused.”", "18. On 19 June 2000 the applicant's appeal was dismissed by the Court of Appeal, which refused leave to argue the abuse of process/unfair trial ground, holding that it was clear that the first-instance judge, in exercising his discretion to allow the trial to proceed, had taken account of the applicant's age, level of maturity and intellectual and emotional capacities, and that steps had been taken to promote the applicant's ability to understand and participate in the proceedings. The Court of Appeal also rejected the application for leave to appeal against the sentence imposed. It noted, from a comprehensive report prepared by the unit where the applicant was detained, that there had been great improvements in both the applicant's behaviour and his work and considered that, given the long period of instability in the applicant's life, a settled period of support and education of the kind he was now receiving must be in his best interests." ]

[ 3 ]

[ "6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova.", "7. The applicants are inspectors of the Chişinău Fire Department attached to the Ministry of Internal Affairs.", "8. On 21 July 1994 the Government passed Decision No. 534-10, classified secret, which concerned the Ministry of Defence, the Ministry of National Security (Intelligence Service) and the Ministry of Internal Affairs. According to that Decision, among other things, the personnel of the above-mentioned institutions were entitled to a monthly allowance of approximately MDL 135 instead of the old allowance of MDL 7.06. This Decision was not published in the Official Gazette (Monitorul Oficial) and accordingly the applicants did not know about it.\nThe applicants started to receive the increased allowance on 1 June 1995. They found out that their colleagues from other Ministries had been receiving the higher rate from 1 July 1994.", "9. In June 1997 the applicants lodged an action with the Centru District Court against the Ministry of Internal Affairs seeking the payment of the increased allowance for the period July 1994 – June 1995.\nBy a judgment of 1 August 1997 the Centru District Court awarded Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc compensation of MDL 1,407[1] each. By another judgment of 18 August 1997 the Centru District Court awarded Mr Pavel Sîrbu and Mr Vitalie Cornovan compensation of MDL 1,407 each and Mr Petru Bragoi compensation of MDL 1,127.02. No appeals were lodged and the judgments became final. Enforcement warrants were issued.", "10. On numerous occasions the applicants lodged complaints about the non-enforcement of the judgments of 1 August 1997 and 18 August 1997 with the Ministry of Justice. In its replies, the Ministry of Justice informed the applicants that the judgments could not be enforced due to the “lack of funds in the bank account of the Ministry of Internal Affairs”.", "11. On 15 May 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Internal Affairs." ]

[ 3, 9 ]

[ "9. The applicant was born in 1957 and lives in Portsmouth. In 1980 he joined the Royal Navy.", "10. In or around early 1996, he was charged, pursuant to section 42 of the Naval Discipline Act 1957 (“the 1957 Act”), with three civilian offences (one under the Theft Act 1968 and two under the Forgery and Counterfeiting Act 1981). He was also charged, inter alia, on four counts of misapplication of public property contrary to section 30 of the 1957 Act. The charge sheet was signed by the convening authority, Rear Admiral N.E. Rankin (Flag Officer Portsmouth).", "11. By convening order dated 1 February 1996, the convening authority acknowledged receipt of the “circumstantial letter” and ordered the convening of a court-martial for 26 February 1996 (see paragraph 21 below). He appointed the Prosecutor by name (of lower rank and in the convening authority’s chain of command). He also appointed the President of the court-martial and the other four members by name: all were subordinate in rank to the convening officer but were not in his chain of command. The Judge Advocate was also appointed by name by the convening authority and was not in the latter’s chain of command.", "12. Advised that he could be represented by a civilian or naval lawyer, the applicant instructed a civilian lawyer, his current representative.", "13. The court-martial took place on board HMS NELSON on 18 March 1996 and the applicant pleaded guilty to all charges. Having presented evidence in mitigation of sentence, he was sentenced, inter alia, to four months’ imprisonment, to be discharged from the navy and to stoppages of pay in the sum of 2,655 pounds sterling.", "14. By letter dated 19 April 1996 the applicant was informed that his petition against sentence, which had been reviewed on behalf of the Admiralty Board by the Naval Secretary/Director General Naval Manning, had been rejected but that he could request that the petition be further considered by the Admiralty Board. \nHe subsequently renewed his petition against sentence. On 17 May 1996 he was released from prison and by letter dated 7 June 1996 he was notified that his petition had been rejected." ]

[ 3 ]

[ "9. The applicant was born in 1957 and lives in Bristol. In 1974 he joined the Royal Navy. At the relevant time he held a senior non-commissioned rank and was an experienced administrator. On 20 October 1995 he was informed that he was under investigation on suspicion of travel fraud. Since he was to be interviewed by the naval police, he was offered the opportunity to speak to a naval barrister. He accepted this offer, was given legal advice and confirmed that he understood the advice given.", "10. He then attended two interviews with the naval police. At the beginning of both interviews he was cautioned (section 76 of the Police and Criminal Evidence Act 1984). He declined the opportunity accorded to him to obtain legal advice and to have a legal adviser present at those interviews. He made certain admissions at his first interview and gave the investigators access to his bank accounts. On 27 November 1995 he was interviewed for a second time and then charged.", "11. The charge sheet, as approved by the convening authority listed six charges (pursuant to section 42 of the Naval Discipline Act 1957) of obtaining property and a service by deception contrary to sections 1 and 15 of the Theft Act 1968. All charges related to the making of false representations about travel allowances.", "12. By notice dated 3 July 1996 the convening authority ordered the convening of a court-martial to try the applicant on the charges. He appointed the members of the court-martial by name. All were subordinate to the convening authority but none served within his chain of command. The Judge Advocate was appointed by the Chief Naval Judge Advocate. While the Judge Advocate was subordinate in rank to the President and both served under the Second Sea Lord, there was no command or other substantive institutional link between them.", "13. The court-martial took place on 8-10 July 1996. Once the applicant’s preliminary objections were rejected (he contested the admission of evidence from his interviews and he alleges that he challenged the composition of the court-martial), he pleaded guilty as charged. On 10 July 1996 he was sentenced to three months’ imprisonment.", "14. By letter dated 14 January 1997, his legal representative was informed of the decision taken by the Admiralty Board to reject his petition against conviction and sentence. It was considered that his admissions in interview were not the result of oppression and that, given the seriousness of the offences, his sentence was neither manifestly excessive nor wrong in principle." ]

[ 3 ]

[ "6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1932, 1920, 1928, 1919, 1925, 1927, 1923, 1969, 1930, 1919, 1923, 1929, 1928, 1923 and 1922 respectively.", "7. On 29 July 1994 and on 16 February 1995 the Government and the Parliament passed two decisions according to which the deposits of certain categories of persons at the Savings Bank have to be index-linked. According to the decisions, the Ministry of Finance was supposed to allocate the necessary funds to the Savings Bank. However it failed to do so and the Savings Bank could not carry out the decisions of the Parliament and of the Government.", "8. In 1999-2001 the applicants lodged with the Râşcani District Court civil actions against the Ministry of Finance in which they sought compensation.", "9. By a final judgment of 17 September 2000 the court awarded Mr Gheorghe Luntre compensation of MDL 2,936[1].", "10. By a final judgment of 10 July 2000 the court awarded Ms Nina Voit compensation of MDL 2,934[2].", "11. By a final judgment of 10 May 2000 the court awarded Mr Pavel Maloman compensation of MDL 733[3].", "12. By a final judgment of 25 August 2000 the court awarded Mr Dumitru Tcacenco compensation of MDL 734.50[4].", "13. By a final judgment of 10 May 2000 the court awarded Mr Mihail Zverev compensation of MDL 733[5].", "14. By a final judgment of 3 May 2001 the court awarded Ms Lidia Abramov compensation of MDL 2,934[6].", "15. By a final judgment of 15 March 2001 the court awarded Ms Eudochia Volcov compensation of MDL 3,667.50[7].", "16. By a final judgment of 30 November 2000 the court awarded Ms Ianina Atnealov compensation of MDL 1,468[8].", "17. By a final judgment of 30 November 2000 the court awarded Ms Nina Ceaica compensation of MDL 734[9].", "18. By a final judgment of 18 October 1999 the court awarded Mr Dumitru Grişin compensation of MDL 1,446.76[10].", "19. By a final judgment of 18 October 1999 the court awarded Ms Tatiana Grişin compensation of MDL 1,301.76[11].", "20. By a final judgment of 14 December 2000 the court awarded Mr Pavel Epifanov compensation of MDL 2,130.69[12].", "21. By a final judgment of 30 November 2000 the court awarded Ms Nadejda Cleauşev compensation of MDL 733.50[13].", "22. By a final judgment of 10 May 2000 the court awarded Ms Ecaterina Bobîlev compensation of MDL 733[14].", "23. By a final judgment of 10 May 2000 the court awarded Mr Ivan Prozor compensation of MDL 733[15].", "24. On unspecified dates the applicants lodged complaints about the non-enforcement of the judgments with the Ministry of Justice and the Enforcement Authority. In its replies, the Ministry of Justice and the Enforcement Authority informed them that the judgments could not be enforced, as no funds had been provided for the enforcement of judgments by the relevant legislation within the annual State budget.", "25. On 22-30 April 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Finance." ]

[ 3, 9 ]

[ "9. The applicant was born in 1965 and lives in Durham. At the relevant time he was a Lance Corporal in the British army stationed in Northern Ireland.", "10. In August 1996 he was reported to his Commanding Officer on a wounding charge, which incident had allegedly occurred in May 1996. On 21 November 1996 he was arrested on two unrelated charges of failing to attend and disobeying a lawful command. On 22 November 1996 he appeared, on the orders of his Commanding Officer, on the latter two charges and he was reduced to the ranks. On the same day he was also remanded for an abstract of evidence (see paragraph 21 below) to be compiled on a charge of wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861.", "11. In early December 1996 he went missing from his unit. On 27 January 1997 he was arrested in England by the civilian police, charged with aggravated burglary and handed over to the military authorities. When it was discovered that he had been absent without leave, he was placed in close arrest in the guardroom of Catterick garrison. On 28 January 1997 he was escorted under close arrest back to Northern Ireland.", "12. The Government maintained that a copy of the information pamphlet entitled “The rights of a soldier charged with an offence under the Army Act 1955” (1994 edition) would have been available to the applicant at Catterick garrison and would have been provided to him against signature of a form acknowledging receipt. Since the relevant disciplinary file was lost, the Government could not provide a copy of the form. The applicant accepted that he received a copy of the pamphlet while in close arrest in Northern Ireland and that it was likely to have been the 1994 version of the pamphlet.", "13. On 30 January 1997 he appeared before his Commanding Officer who remanded him in close arrest and ordered an abstract of evidence to be compiled on the absence without leave charge with a view to that Officer applying for power to award extended detention (paragraphs 21 and 24 below). No such application was in fact made. During that hearing the applicant received a copy of the charge sheet (the absence without leave charge). \nThe applicant maintained, and the Government denied, that at that same meeting he was asked by his Commanding Officer whether he would be pleading guilty or not guilty and that he had indicated the former.", "14. On 13 February 1997 the applicant appeared before his Commanding Officer when the latter read the charge of absence without leave and formally asked the applicant whether he pleaded guilty or not guilty. He pleaded guilty and he was awarded 28 days’ military detention. On that day he was also remanded for trial on the wounding charge. \nThe applicant claimed that he was not afforded the opportunity of electing trial by court-martial whereas the Government submitted that he would have been given this option by the Commanding Officer before the finding of guilty was recorded on 13 February 1997.", "15. On 26 February 1997 the applicant appeared before a Magistrates’ Court in Newcastle (England) on the aggravated burglary charge and was remanded on bail until 28 March 1997. He completed his military sentence of imprisonment on 7 March 1997. He was then informed by his Commanding Officer that he was to be retained in close arrest until his trial by court-martial on the wounding charge. He was then released to open arrest on 12 March 1997 following representations by his civilian solicitor. In March 1997 the civilian prosecuting authorities discontinued the burglary proceedings. In June 1997 a notice of temporary discontinuance issued as regards the court-martial proceedings on the wounding charge. No further action on that charge has been taken against the applicant who was subsequently administratively discharged in August 1997 for reasons not related to the afore-mentioned charges or conviction." ]

[ 2, 3 ]

[ "7. The applicant is a limited partnership company founded in 1986 and based in Helsinki.", "8. The applicant company, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company, Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered the opportunity to rent more premises, which would be renovated to be suitable for restaurant use. When the renovation was finished, the applicant company found that there were excessive toilet facilities and that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar. The applicant company paid 251,000 Finnish marks (approximately 42,200 euros) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract had been signed before the extension work commenced.", "9. In 1997 the applicant company instituted civil proceedings against KHS before a Division of the Helsinki District Court (käräjäoikeus, tingsrätt) known as “the Housing Court” (asunto-oikeus, bostadsdomstolen). The applicant company claimed that there had been a breach of the rent contract, as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant company had signed the amended rent contract. KHS disagreed with the applicant company, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to build such an extension and that the applicant company had been aware of this before signing the contract (see paragraph 19 below).", "10. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant company's action for compensation in accordance with the Act on Commercial Leases.", "11. The applicant company appealed to the Helsinki Court of Appeal (hovioikeus hovrätt), requesting that the District Court's decision be quashed. On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court's decision without an oral hearing. One of the members of the Court of Appeal, M.P., was a member of the Finnish parliament at the time. He had been an expert member of the Court of Appeal since 1974. From 1987 to 1990 and from 1995 to 1998 he was also a member of parliament. For the latter period the date of election was 19 March 1995.", "12. On 9 February 1998 the applicant company applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a member of parliament and judicial functions as a member of the Court of Appeal. On 5 May 1998 the Supreme Court refused the applicant company leave to appeal." ]

[]

[ "9. The applicant was born in 1966 and lives in Silopi.", "10. On 28 April 1992 the applicant was taken into police custody on suspicion of having been involved in the terrorist activities of the PKK (Workers' Party of Kurdistan), proscribed as a terrorist organisation under Turkish law.", "11. On 25 May 1992 the applicant was brought before the Diyarbakır Public Prosecutor. He denied the allegations against him. On the same day, a judge at the Şırnak Magistrates' Court (sulh ceza mahkemesi) ordered the applicant's detention on remand.", "12. On 1 September 1992 the public prosecutor filed an indictment charging the applicant with treason under Article 125 of the Criminal Code.", "13. On 12 October 1994 the public prosecutor filed a new indictment, charging the applicant under the same provision of the Criminal Code with involvement in other terrorist activities.", "14. On 28 May 1995, upon the request of the public prosecutor, the applicant's case was joined to another case which was being considered in a different chamber of the Diyarbakır State Security Court.", "15. On 3 July 1998 the Diyarbakır State Security Court convicted the applicant under Article 125 of the Criminal Code of treason and sentenced him to life imprisonment.", "16. The applicant's sentence was automatically referred to the Court of Cassation for appeal. The applicant's request for a hearing on his appeal was granted. On 27 October 1999 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court." ]

[ 3 ]

[ "9. The applicant was born in 1953 and lives in Ankara.", "10. On 17 February 1981 the applicant was arrested and placed in police custody by police officers from the Ankara Security Directorate. He was accused of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). On 15 April 1981 the Ankara Martial Law Court (sıkıyönetim mahkemesi) ordered the applicant's detention on remand.", "11. On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant and 722 other defendants. The prosecution requested that the applicant be convicted and sentenced pursuant to Article 168 § 2 of the Criminal Code on account of his membership of an illegal armed organisation whose aim was to undermine the constitutional order and replace it with a Marxist‑Leninist regime, contrary to Articles 146 § 1 and 168 § 2 of the Criminal Code.", "12. On 31 December 1983 the applicant was released pending trial.", "13. On 11 November 1987 the court requested the public prosecutor to formulate his opinion on the charges. On 23 March 1988 the public prosecutor filed his opinion with the court.", "14. On 19 July 1989 the Ankara Martial Law Court found the applicant guilty as charged and sentenced him to six years and eight months' imprisonment. The applicant was also permanently debarred from public service. The applicant appealed against the conviction and the case was referred to the Military Court of Cassation (Askeri Yargıtay).", "15. Following the promulgation of Law no. 3953 of 27 December 1993, which abolished the jurisdiction of the martial law courts, the Court of Cassation acquired jurisdiction over the case and the file was transmitted to it.", "16. On 27 December 1995 the Court of Cassation revised the judgment of the first-instance court, sentenced the applicant to five years' imprisonment and debarred him from public service for three years.", "17. On 23 May 1996 the applicant was dismissed from his post at the Ankara Municipality on account of his conviction.", "18. On 11 December 1996 the applicant was permitted to return to his previous post and to work as the head of the research and planning department of the municipality." ]

[ 3 ]

[ "8. The applicant was born in 1962 and lives in Marčana (Croatia).", "9. On 26 January 1995 a police investigator in Banská Bystrica (Slovakia) apprehended the applicant on the ground that he had been accused, together with another person, of trafficking in women. Subsequently the following relevant facts occurred and decisions were taken.", "10. On 27 January 1995 the Banská Bystrica District Court remanded the applicant in custody with effect from 26 January 1995. The decision stated that the applicant had brought two women from Slovakia to Spain and that he had forced one of them to carry out prostitution under the threat of shooting her. The judge considered the detention necessary with a view to preventing the accused from absconding and from committing further offences within the meaning of Article 67(1)(a) and (c) of the Code of Criminal Procedure. On 31 January 1995 the applicant challenged this decision through his lawyer.", "11. On 15 February 1995 the Banská Bystrica Regional Court quashed the District Court’s decision of 27 January 1995 on the ground that the reasons for it were not sufficient. The Regional Court noted that the applicant was a foreign national without a permanent address in Slovakia. It therefore considered his detention necessary, within the meaning of Article 67(1)(a) of the Code of Criminal Procedure, and remanded him in custody as from 26 January 1995.", "12. On 21 July 1995 a judge of the Banská Bystrica District Court extended the applicant’s detention on remand until 26 August 1995 on the ground that the public prosecutor had decided to re-examine a witness who was staying abroad. The court considered that there was a risk of the applicant’s absconding in case of his release.", "13. On 11 August 1995 the Banská Bystrica District Court extended, at the public prosecutor’s request, the applicant’s detention on remand until 26 December 1995. The decision stated that a witness staying abroad could not be re-examined and that it was also necessary to establish whether the accused persons had tried to benefit from the prostitution of other persons. The court considered the applicant’s detention necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. Reference was made to the fact that the applicant was a foreign national and that he did not have permanent residence in Slovakia.", "14. On 15 December 1995 the Banská Bystrica District Court extended the applicant’s detention on remand until 25 January 1996. The decision stated that the lawyer appointed to represent the applicant on 20 November 1995 needed more time to study the case file. Furthermore, the lawyer was ill and because of her absence the applicant had refused, on 6 December 1995, to acquaint himself with the outcome of the investigation.", "15. On 19 April 1996 the applicant lodged a constitutional petition. He alleged, inter alia, that he was discriminated against as the Regional Court had refused to release him, referring to his nationality and to the fact that he had no permanent residence in Slovakia.", "16. On 22 January 1997 the Supreme Court refused to grant a further extension of the applicant’s detention on remand. It found that the requirements laid down in Article 71(2) of the Code of Criminal Procedure were not met. In particular, the Supreme Court noted that the case was not complex and that the period of almost one year during which the case had been pending at the preliminary stage was excessive given the scope of evidence that had to be taken. Furthermore, the first instance court had scheduled the main hearing for 30 September 1996, that is more than eight months after the case had been submitted to it on 22 January 1996. The Supreme Court found no relevant reasons for such delays. The decision stated that the applicant’s two stays in hospital had not been of long duration and that they had not prevented the main hearing from being held. The Supreme Court’s decision was transmitted to the Regional Court on 7 February 1997.", "17. On 23 January 1997 the Supreme Court ordered the prison administration to release the applicant. The applicant was released on 26 January 1997.", "18. On 26 March 1997 the Constitutional Court declared manifestly ill‑founded the applicant’s petition of 19 April 1996. The decision stated, with reference to the criminal file, that the applicant’s detention had been necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure as there had existed a risk that he would abscond in case of his release.", "19. On 16 May 1995 the applicant lodged an application for release. It was dismissed by the Banská Bystrica District Court on 31 May 1995 on the ground that his detention was still necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. The applicant filed a complaint. He argued that the fact that he was a foreign national did not justify the fear that he might abscond.", "20. The Banská Bystrica Regional Court dismissed the complaint on 12 July 1995. The decision stated that the fear that the applicant might abscond in case of his release was justified. The typed minutes, a copy of which the applicant received from the Regional Office of Investigation in Banská Bystrica on 29 November 1995, indicate that the Regional Court examined the applicant’s complaint in camera in the presence of J.M., a public prosecutor. According to those minutes, the public prosecutor “proposed to dismiss the applicant’s complaint”. At a later stage of the proceedings J.M. presided over the Regional Court chamber which delivered the judgment of 13 June 1997 (see below).\nThe applicant submitted to the Court another copy of the same minutes, included in the criminal file, in which the name of another person is handwritten as the public prosecutor who had attended the deliberations.", "21. On 16 August 1995 the applicant lodged another application for release. He alleged that there had been undue delays in the proceedings and that the fear that he would abscond in case of his release was unsubstantiated. The applicant further complained that he was discriminated against on the ground of his nationality.", "22. The Banská Bystrica District Court dismissed the request on 20 September 1995. The applicant filed a complaint which was dismissed by the Banská Bystrica Regional Court on 18 October 1995. The courts considered it probable that the applicant, a foreign national, would leave Slovakia in case of his release.", "23. On 10 January 1996 the applicant requested the public prosecutor to release him. In a letter of 19 January 1996 the Banská Bystrica Regional Prosecutor stated that he had dismissed the application for release and that he would transmit it to the Banská Bystrica Regional Court together with the indictment. The Regional Court did not decide on the applicant’s request.", "24. On 25 April 1995 the police investigator accused the applicant of blackmail in addition to the charge of trafficking in women. On 15 May 1995 the Banská Bystrica District Prosecutor dismissed the applicant’s complaint against the investigator’s decision.", "25. On 12 October 1995 the police investigator dismissed the applicant’s request for further witnesses to be heard with a view to establishing, in particular, the relevant facts relating to the stay of the two Slovakian women in Spain. On 21 November 1995 the Banská Bystrica Regional Prosecutor dismissed the applicant’s complaint against this decision. Both authorities considered that the taking of further evidence was superfluous.", "26. On 18 October 1995 the applicant withdrew the authority of the lawyer who had represented him until then. At the same time he requested the court to appoint a lawyer ex officio. On 20 November 1995 the Banská Bystrica District Court appointed another lawyer to assist the applicant ex officio.", "27. On 19 December 1995 and on 10 January 1996 the applicant learned of the outcome of the investigation. On the latter date he requested that further evidence be included in the case file. The police investigator dismissed the request on 11 January 1996.", "28. On 17 January 1996 the applicant requested that the authority of the lawyer appointed on 20 November 1995 be withdrawn. He further asked for a time-limit to be set during which he could appoint a lawyer of his own choice. The applicant received no reply.", "29. On 22 January 1996 the Banská Bystrica Regional Prosecutor indicted the applicant for trafficking in women and blackmail before the Banská Bystrica Regional Court.", "30. After this date the applicant was twice treated as an in-patient in a hospital for prisoners in Trenčín.", "31. On 2 February 1996 the Banská Bystrica Regional Prosecutor informed the Regional Court that the applicant had challenged the interpreter. The letter further stated that the interpreter considered herself biased as the applicant’s submissions about her were insulting.", "32. The first hearing before the Regional Court was held on 30 September 1996. The applicant challenged the presiding judge I.B. on the ground that he was xenophobic. The case was adjourned. On 4 December 1996 the Supreme Court found that the presiding judge of the Regional Court was not biased.", "33. On 13 June 1997 the Banská Bystrica Regional Court convicted the applicant of trafficking in women and sentenced him to three years’ imprisonment. It further ordered the applicant’s expulsion from Slovakia.", "34. The court established that, on 13 January 1995, the applicant had brought two women who were sisters from Slovakia to Spain on the false pretext of offering them a job as tourist guides. He threatened to shoot them, took away their passports and plane tickets and forced one of them to stay at night in a club where prostitution was carried out. On 17 January 1995 the applicant left Spain. On 25 January 1995 the women escaped and returned to Slovakia.", "35. The court chamber was presided over by judge J.M. who had participated as a public prosecutor, on 12 July 1995, in the examination by the Banská Bystrica Regional Court of the applicant’s complaint against Banská Bystrica District Court’s decision of 31 May 1995 concerning the applicant’s request for release.", "36. Upon the delivery of the Regional Court’s judgment the applicant indicated orally that he wished to appeal. Subsequently he left Slovakia. The Slovakian authorities were informed that the applicant had not stayed at his address in Croatia and that an international arrest warrant had been issued against him in Croatia on the ground that he was subject to a prison sentence which had been imposed in 1995. As the applicant’s whereabouts were unknown the public prosecutor proposed, on 24 November 1997, that the case be proceeded with in his absence.", "37. On 23 April 1998 the Supreme Court dismissed the appeal. It decided following a public hearing in the applicant’s absence as he was in hiding.", "38. The Supreme Court held that the Regional Court had established all relevant facts and had assessed them in accordance with the law while respecting the applicant’s right of defence. The Supreme Court addressed the arguments raised by the applicant in his appeal. The decision stated that the Supreme Court had examined all aspects of the case and had had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by Article 254(1) of the Code of Criminal Procedure.", "39. On 28 May 1998 the Banská Bystrica Regional Court decided to include the period during which the applicant had been detained in the period of imprisonment to which he was sentenced. Reference was made to the relevant provisions of criminal law under which such a decision is to be taken in cases where a person sentenced to a prison term has previously been detained in the context of criminal proceedings against him or her." ]

[ 2, 3 ]

[ "11. The applicants were born in 1957, 1952, 1951 and 1953 respectively. The first applicant couple live in Reggio Emilia and the second in Mantua. At the time when they lodged their applications they were deemed to be the adoptive parents of Florentina and Mariana, Romanian nationals who were born on 31 March and 17 April 1991 respectively and were living at the Poiana Soarelui Educational Centre in Braşov (“the CEPSB”).", "12. In a final decision of 17 June 1994 the Iaşi County Court declared that Florentina, who at the time was 3 years old, had been abandoned. Parental rights over her were assigned to a public welfare institution, L.", "13. On 6 September 1994, by a decision of the Iaşi Child Welfare Board, the child was placed in the care of the CEPSB.", "14. On 15 May 2000, after the entry into force of Government Emergency Ordinance no. 25/1997 on the rules governing adoption (“Ordinance no. 25/1997”), the Romanian government entrusted a private association, C., with the task of finding a family or a person to adopt Florentina. It also instructed the Romanian Committee for Adoption to support the C. association in this process and to draw up a psychosocial report on the child.", "15. The first applicant couple informed the C. association of their wish to adopt a Romanian child, and were sent a photograph of Florentina. They met her for the first time on 3 August 2000 at the CEPSB. They were subsequently informed by the C. association of the child’s desire to join them and of her love of music.", "16. On 30 August 2000 the Braşov Child Welfare Board, on a proposal by the C. association, gave its approval to the adoption of Florentina by the first applicant couple, and on 21 September 2000 it referred the file on their application for adoption to the Braşov County Court, in accordance with section 14(2) of Ordinance no. 25/1997.", "17. On 28 September 2000 the court granted the first applicant couple’s application. It noted that the Braşov Child Welfare Board had given its approval to the adoption and had confirmed that position before the court. Observing that the child was in the care of the CEPSB, it ordered the Population Registry Office to amend Florentina’s birth certificate and to issue her with a new one.", "18. The Romanian Committee for Adoption appealed against that decision. On 13 December 2000 the Braşov Court of Appeal dismissed the appeal as being out of time. The decision became final.", "19. On 5 February 2001 the Romanian Committee for Adoption attested that Florentina’s adoption was in conformity with the domestic legislation in force and with the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, and issued the first applicant couple with a certificate to that effect.", "20. On 14 February 2001 the Commission for Intercountry Adoption granted the child leave to enter Italy and to reside there permanently and ordered the notification of that decision, inter alia, to the Italian embassy in Bucharest.", "21. On an unspecified date the Procurator-General lodged an application to set aside the Braşov County Court’s decision and the Braşov Court of Appeal’s judgment. On 5 June 2001 the Supreme Court of Justice declared the application inadmissible.", "22. On 28 September 2000, following a procedure similar to that outlined in paragraphs 16 to 18 above, the Braşov County Court granted the second applicant couple’s application to adopt Mariana. It observed that the child, who had been declared to have been abandoned in a final decision of 22 October 1998, was in the care of the CEPSB, and ordered the Population Registry Office to amend her birth certificate and to issue her with a new one.", "23. The Romanian Committee for Adoption appealed against that decision. On 13 December 2000 the Braşov Court of Appeal dismissed the appeal as being out of time. The decision became final.", "24. On 28 December 2000 the Romanian Committee for Adoption attested that Mariana’s adoption was in conformity with the domestic legislation in force and with the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, and issued the second applicant couple with a certificate to that effect.", "25. On an unspecified date the first applicant couple made an urgent application to the Braşov Court of First Instance for an order requiring the CEPSB to hand over the child’s birth certificate to them and to give them custody of her. On 24 October 2000 the court allowed their application.", "26. The CEPSB appealed against that judgment and applied for a stay of its execution, arguing that the requirements for submitting an urgent application had not been satisfied and that the adoption order was not final and had been made in breach of the relevant statutory provisions.", "27. On 7 March 2001 the court dismissed the appeal on the ground that the child’s interests and the fact that the adoptive parents lived abroad warranted an urgent examination of the case and that the applicants had therefore complied with the procedural requirements for making an urgent application. The court also found that, according to the documents in the file, the adoption order was final and constituted res judicata. It therefore considered that it was no longer possible for the substantive issues relating to the adoption to be re-examined in the context of the urgent proceedings. The court refused the application for a stay of execution on the ground that it was no longer justified in view of its decision to dismiss the appeal.", "28. A subsequent appeal by the CEPSB was likewise dismissed by the Braşov Court of Appeal in a final judgment of 7 June 2001.\n(b) Proceedings for the enforcement of the decisions in the urgent proceedings", "29. The first applicant couple sought to have the decisions of 28 September 2000 and 7 June 2001 enforced by the bailiffs at the Braşov Court of First Instance. On 22 February 2001 the bailiffs notified the CEPSB that it was required to hand over the child’s birth certificate to the applicants and to give them custody of her by 2 March 2001. The president of the court subsequently ordered a stay of execution pending a ruling on the CEPSB’s objection to enforcement (see paragraphs 30-32 below).\n(c) First objection to enforcement", "30. On 23 February 2001 the CEPSB lodged an objection to the enforcement of the decision of 28 September 2000, arguing that the operative provisions were unclear and that the adoption order had not complied with the relevant statutory provisions. It also applied for a stay of execution.", "31. On 30 March 2001 the court dismissed the objection on the ground that the operative provisions of the decision were clear and did not give rise to any problems regarding execution. As to the second limb of the objection, the court held that the impugned decision constituted res judicata and that, accordingly, it was not possible to re-examine the merits of the case in the context of an objection to enforcement. The court also dismissed the CEPSB’s application for a stay of execution.", "32. The CEPSB appealed to the Braşov County Court, which dismissed the appeal on 2 July 2001 as being ill-founded.\n(d) Resumption of the enforcement procedure", "33. On 12 June 2001 the first applicant couple asked the bailiffs at the Braşov Court of First Instance to resume the enforcement procedure, having regard in addition to the fact that the Supreme Court of Justice had in the meantime dismissed the Procurator-General’s application to set aside.", "34. On 13 June 2001 the bailiffs notified the CEPSB that it was required to hand over the child’s birth certificate to her adoptive parents and to give them custody of her by 15 June 2001.", "35. On 19 July 2001 they again served notice on the CEPSB, requesting it to comply by 8 August 2001.\n(e) Second objection to enforcement", "36. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in the first applicant couple’s favour, arguing that the urgent application procedure was intended to deal with temporary situations and that, in the present case, the execution of the decision in the urgent proceedings would, on the contrary, have permanent consequences. The first applicant couple contested those submissions and sought the imposition of a fine for failure to execute a final judgment, together with a penalty for delay.", "37. On 8 August 2001 the court allowed the application for a provisional stay of execution until the hearing on 22 August 2001. On that date it extended the stay of execution until the date of the following hearing, scheduled for 11 September 2001. When that day arrived, the court again extended the stay of execution until the hearing on 25 September 2001, on which occasion it dismissed the applications by the CEPSB and the applicants as being ill-founded. The court held that the issue raised by the CEPSB went to the merits of the case, which had already been determined in a judgment that constituted res judicata. It also dismissed the first applicant couple’s claim on the ground that they had neither proved that the CEPSB had acted in bad faith nor established the extent of the damage they had sustained.\n(f) Further resumption of the enforcement procedure", "38. On 5 November 2001 the bailiffs notified the CEPSB that it was required to hand over Florentina’s birth certificate to the first applicant couple and to give them custody of her as her adoptive parents, warning it that if it did not do so they would resort to coercion.\n(g) Third objection to enforcement", "39. On an unspecified date the CEPSB lodged an objection to enforcement with the Braşov Court of First Instance, by means of urgent proceedings issued against the first applicant couple, on the ground that an action to set aside the adoption order was pending in the Braşov County Court, as was an application for a review of the order, and that a criminal complaint concerning the adoption process had been lodged. The CEPSB further requested a stay of execution.", "40. On 14 December 2001 the court found against the CEPSB, holding that since an ordinary objection to enforcement had already been dismissed, there were no longer any grounds for bringing a similar action under the urgent procedure. As to the merits, it noted that the adoption order and the decision on the applicants’ urgent application were final and binding, and that it was immaterial that an application to have them set aside or reviewed was pending.\n(h) Application for a stay of execution", "41. On an unspecified date the CEPSB applied to the President of the Braşov Court of First Instance for a stay of execution. On 25 January 2002 that application was refused.\n(i) Resumption of the enforcement procedure", "42. On 30 January 2002 at 2 p.m. the bailiffs at the Braşov Court of First Instance arrived at the CEPSB building, accompanied by police officers. The doorman refused to let them in and locked the door. Half an hour later the director of the CEPSB and his deputy came to the entrance and informed the bailiffs and police officers that the child was not on the centre’s premises but had gone on an excursion outside the city. Following a check, Florentina was not found inside the building.", "43. The bailiffs pointed out to the director of the CEPSB that he was required to let Florentina join the applicants.", "44. On 27 March 2002 the bailiffs ordered the CEPSB to return the child’s birth certificate and to allow her to join the applicants within ten days, and informed it that in the event of it refusing they would resort to coercion.", "45. On 3 September 2002 at 10.45 a.m. a bailiff, accompanied by the first applicant couple and their lawyer, went to the CEPSB building. In the report drawn up on that occasion the bailiff stated that the centre’s doormen had detained them all inside the building. He also indicated that he had telephoned the police station and that, after he had explained the incident to Superintendent D., the latter had replied that he should have called the police before attempting enforcement. The bailiff lastly noted that it was impossible to provide the necessary legal assistance for the procedure and that an objection to the enforcement had been lodged. He stated that the enforcement attempt had ended at 1 p.m.\n(j) Urgent application for a stay of execution", "46. The CEPSB brought an urgent application in the Braşov Court of First Instance for a stay of execution on the ground that it had lodged a fresh objection to enforcement with the court. On 8 April 2002 the court dismissed the application as being ill-founded.\n(k) Fourth objection to enforcement", "47. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in favour of the first applicant couple, on the ground that an application to have the adoption order set aside was pending in the Braşov Court of Appeal. The Court has not been informed of the outcome of those proceedings.\n(l) Urgent application for a stay of execution", "48. The CEPSB brought an urgent application in the Braşov Court of First Instance for a stay of execution on the ground that it had lodged a fresh objection to enforcement with the court. In a judgment of 4 September 2002, the court allowed its application and provisionally ordered a stay of execution.", "49. It appears from the evidence produced that the stay of execution was ordered for a period lasting until 3 April 2003. A further stay of execution was subsequently ordered, from 23 August to 12 September 2003.", "50. On an unspecified date the second applicant couple made an urgent application to the Braşov Court of First Instance for an order requiring the CEPSB to hand over Mariana’s birth certificate to them and to give them custody of her. On 24 October 2000 the court allowed their application.", "51. That judgment was upheld on appeal by the Braşov County Court in a final judgment delivered on 22 August 2001.\n(b) First objection to enforcement", "52. On 1 February 2001 the CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decision of 28 September 2000, arguing that the operative provisions were unclear and that the adoption order had not complied with the relevant statutory provisions. It also applied for a stay of execution.", "53. The court allowed that application and granted a stay of execution until 30 March 2001, on which date it dismissed the objection on the ground that the operative provisions of the decision were clear and did not give rise to any problems regarding execution. As to the second limb of the objection, the court held that the impugned decision constituted res judicata and that, accordingly, it was not possible to re-examine the merits of the case in the context of an objection to enforcement.", "54. That judgment was upheld by the Braşov County Court in a final decision delivered on 2 July 2001 on an appeal by the CEPSB.\n(c) Enforcement proceedings", "55. The second applicant couple sought to have the decisions of 28 September 2000 and 24 October 2000 enforced by the bailiffs at the Braşov Court of First Instance. On 22 February, 13 June and 19 July 2001 the bailiffs notified the CEPSB that it was required to hand over Mariana’s birth certificate to the applicants and to give them custody of her.\n(d) Second objection to enforcement", "56. On 15 June 2001 the CEPSB lodged an objection to the enforcement of the decisions in the second applicant couple’s favour. They applied several times to the Braşov Court of First Instance for a stay of execution, arguing that decisions on urgent applications were generally intended to deal with temporary situations but that, in the present case, the execution of the decision in the urgent proceedings would, on the contrary, have permanent consequences. The second applicant couple contested those submissions and sought the imposition of a fine for failure to execute a final judgment, together with a penalty for delay.", "57. The court ordered a stay of execution from 15 June to 11 July 2001, from 8 August to 11 September 2001 and from 14 to 25 September 2001, and on the last-mentioned date it dismissed the CEPSB’s objection and the second applicant couple’s application as being manifestly ill-founded. The court held that the issue raised by the CEPSB went to the merits of the case, which had already been determined in the decision of 28 September 2000 that constituted res judicata. It also dismissed the adoptive parents’ claim on the ground that they had neither proved that the CEPSB had acted in bad faith nor established the extent of the damage they had sustained.\n(e) Further resumption of the enforcement procedure", "58. On 5 November 2001 the bailiffs enjoined the CEPSB to hand over Mariana’s birth certificate to the second applicant couple and to give them custody of her, warning it that if it did not do so they would resort to coercion.\n(f) Third objection to enforcement", "59. On an unspecified date the CEPSB lodged an objection to enforcement with the Braşov Court of First Instance, by means of urgent proceedings issued against the second applicant couple, on the ground that an action to set aside the adoption order was pending in the Braşov County Court, as was an application for a review of the order, and that a criminal complaint concerning the adoption process had been lodged. The CEPSB applied in addition for a stay of execution.", "60. On 14 December 2001 the court refused its application, holding that since an ordinary objection to enforcement had already been dismissed, there were no longer any grounds for bringing a further, similar action. As to the merits, it noted that the adoption order and the decision on the second applicant couple’s urgent application were final and binding, and that it was immaterial that an application to have them set aside or reviewed was pending.\n(g) Further resumption of the enforcement procedure", "61. On 25 March 2002 the bailiffs again notified the CEPSB that it was required to hand over the child’s birth certificate to the second applicant couple and to give them custody of her.", "62. On 30 January and 9 April 2002 a bailiff went to the CEPSB building, accompanied by the second applicant couple and police officers. He noted that Mariana was not on the centre’s premises.\n(h) Fourth objection to enforcement", "63. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in the second applicant couple’s favour on the ground that an application to have the adoption order set aside was pending in the Braşov Court of Appeal. The Court has not been informed of the outcome of those proceedings.\n(i) Urgent application for a stay of execution", "64. The CEPSB made an urgent application to the Braşov Court of First Instance for a stay of execution of the adoption order on the ground that it had lodged a fresh objection to enforcement with the court. In a judgment of 4 September 2002, the court allowed its application and provisionally ordered a stay of execution.", "65. It appears from the evidence produced that the stay of execution was ordered for a period lasting until 3 April 2003. A further stay of execution was subsequently ordered, from 23 August to 12 September 2003.", "66. On an unspecified date the CEPSB brought two actions in the Braşov County Court against the applicants, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the adoption orders for both of the children set aside on the ground that they were not lawful as it had not given its prior consent.", "67. On 14 February 2002 the court found against it on the ground that the sole requirement for the children’s adoption had been the approval of the Braşov Child Welfare Board, which exercised parental rights over them in accordance with section 8 of Government Emergency Ordinance no. 26/1997 (“Ordinance no. 26/1997”). The court observed that the Board had given its consent to the adoptions and had notified its position to the court dealing with the applicants’ applications for adoption.", "68. The CEPSB appealed against that decision. At a hearing on 2 April 2002 in the Court of Appeal, the Romanian Committee for Adoption submitted that the opposing party’s numerous applications to the domestic courts were an abuse of process in that they were not in the children’s best interests, namely integration into a family, but were intended to delay and hinder the adoption process, thereby prolonging the children’s current placement in institutional care.", "69. The CEPSB requested that the cases be referred to the Constitutional Court for a ruling on the constitutionality of section 7(1)(a) and (2) of Ordinance no. 25/1997, concerning consent to adopt. On 10 December 2002 the Constitutional Court declared the plea of unconstitutionality inadmissible on the ground that it had already given a ruling, on 12 November 2002, on the constitutionality of the statutory provisions cited by the CEPSB.", "70. In a final judgment of 11 February 2004, the Ploieşti Court of Appeal declared the CEPSB’s appeal against the judgment of 14 February 2002 void for failure to satisfy procedural requirements. It observed that the centre had omitted to state reasons for its appeal within the statutory period and held in that connection that the plea of unconstitutionality which it had raised at the hearing on 2 April 2002 in respect of certain provisions of Ordinance no. 25/1997 did not dispense it from having to satisfy the statutory formal requirements. The judgment of 14 February 2002 accordingly became final and no ordinary appeal lay against it.", "71. On an unspecified date the applicants lodged a criminal complaint with the public prosecutor’s office at the Braşov Court of First Instance against the director of the CEPSB, alleging false imprisonment of the children.", "72. On 6 August 2001 the public prosecutor’s office informed the applicants that it had decided on 9 July 2001 not to institute criminal proceedings in the case.", "73. On 18 February 2002 the applicants filed another complaint against the CEPSB management with the public prosecutor’s office at the Braşov County Court, levelling accusations of, among other things, false imprisonment of their adopted daughters, in breach of Article 189 of the Criminal Code. They also expressed their disagreement with the decision of 9 July 2001 not to institute criminal proceedings.", "74. A report drawn up by the Braşov police on 15 July 2002 stated that in connection with the investigation opened following the applicants’ criminal complaint, police officers had visited the CEPSB, where they had interviewed Florentina and the director. It was noted in the report that the child, who was more than 10 years old on the date of the interview, had expressed the wish to remain in the centre and had refused to join the family of her adoptive parents, whom she had never met.", "75. On 28 November 2002 the public prosecutor’s office at the Braşov County Court discontinued the proceedings against the director of the CEPSB.", "76. On 4 November 2002 Florentina, represented by counsel and by S.G., director of the CEPSB, as her guardian, brought an action in the Braşov County Court against the first applicant couple, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the order for her adoption revoked and relying on section 22 of Ordinance no. 25/1997. In the alternative, she sought 3 billion Romanian lei for non-pecuniary damage if the adoption order was not revoked. Submitting that she had never met the first applicant couple – her adoptive parents – either before or after the date on which the adoption order had been made, she stated that she had seen them only once, on 3 September 2002, when they had come to try to take her away from the CEPSB against her will, accompanied by their lawyer and the bailiff.", "77. In a judgment of 9 June 2003, the Prahova County Court, to which the case had been referred by the Supreme Court of Justice, dismissed Florentina’s action as being ill-founded. On the basis of the written evidence submitted by the parties, the court considered that it was in the claimant’s interests for the adoption order not to be revoked. It noted that she had not in any way established, through her guardian, that her adoptive parents had shown a lack of interest in her; on the contrary, it appeared from the evidence that they had taken numerous steps for her to be able to join them in Italy. The court accordingly rejected the statements by C.V. and D.M., who had given evidence in support of the child in their respective capacities as her “substitute” “mother” and “aunt” at the CEPSB.", "78. The court further noted that the adoption order had satisfied the relevant statutory requirements and pointed out that the Braşov Child Welfare Board, which, under section 8 of Ordinance no. 25/1997, had exercised parental rights on the date on which the application for adoption had been lodged with the court, had found the adoption to be in the child’s interests and had given its approval.", "79. That judgment was upheld on an appeal by the claimant in a final judgment delivered by the Ploieşti Court of Appeal on 22 September 2003 after a public hearing which Florentina had attended, represented by counsel and by her guardian.", "80. In an unappealable decision of 16 December 2003, the Ploieşti Court of Appeal dismissed an application by Florentina to set aside its final judgment of 22 September 2003.", "81. On 4 September 2002 Mariana, relying on section 22 of Ordinance no. 25/1997, brought an action in the Braşov County Court against the second applicant couple, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the order for her adoption revoked.", "82. At the hearing on 31 October 2003, Mariana stated in the presence of her guardian that she did not know her adoptive parents and did not wish to move to a different country as she was satisfied with her life at the CEPSB, where the conditions were good.", "83. In a judgment of 31 October 2003, the court allowed her application, relying in particular on the statements by her “mothers” and “aunts” at the CEPSB, who confirmed that she had been residing there since 1994 or 1995 and was being provided with a sound education and good living conditions. Noting that there was no evidence of the emotional ties that should have formed between the adoptive parents and the child after the final decision of 28 September 2000, the court revoked the order for Mariana’s adoption by the second applicant couple and decided that the child should revert to the name she had used before 28 September 2000.", "84. Although an appeal lay against that judgment, the defendants did not avail themselves of that possibility, and the judgment thus became final.", "85. On 27 February 2001 the C. association requested the Braşov Child Welfare Board to revoke its decision to place the children in the care of the CEPSB. On 2 March 2001 the Board informed it that as a result of the final orders of 28 September 2000 for the adoption of the children by the applicants, the decision on their placement had been implicitly revoked and that any such request would be superfluous.", "86. On 16 July 2001 the Department for Child Welfare and Adoption, in reply to a request from the applicants, informed them that it was not empowered to take the necessary steps for the children to be returned to them. It indicated that it had ceased to have any powers in the matter on the date on which the certificate attesting that the adoption order conformed to the relevant national and international rules had been issued.", "87. On 27 August 2001 the applicants lodged a complaint with the Senate committee responsible for examining administrative abuses, on account of the Romanian authorities’ failure to execute final decisions.", "88. The applicants sought assistance on 6 September 2001 from the Italian embassy in Bucharest and on 12 September 2001 from the Commission for Intercountry Adoption.", "89. On 13 September 2001 they lodged a petition with the President of Romania, the Prime Minister and the Minister of Justice.", "90. On 23 February, 5 March, 19 April, 6 August, 12 September and 15 November 2001 they complained to the Ministry of Justice about the situation resulting from the failure to execute the adoption orders.", "91. On 27 October 2000 and on 19 February, 15 April and 5 June 2001 they travelled to Romania in the hope of seeing their adopted daughters, but to no avail.", "92. They regularly sent the girls letters in Romanian and presents, encouraging them to write back in Romanian as they had learnt the language while waiting to see them again, and telling them that their greatest wish was to have them by their side to give them love and affection.", "93. It appears from the observations submitted by the parties that the CEPSB, where the children are resident, is a private institution licensed by the Braşov Child Welfare Board and entrusted with the tasks of providing a home for orphans or abandoned children, taking care of them and giving them an education.", "94. Reports by the national authority responsible for monitoring the activities of welfare institutions attest to the following: the material and sanitary conditions at the CEPSB are good; medical assistance is provided there in the form of regular check-ups by doctors and permanent supervision by the medical staff; the centre runs special programmes including educational, sports and recreational activities for the children in its care; the children attend schools in the area around the centre and are integrated into the State education system; children at the centre demonstrating particular sporting and artistic abilities are encouraged to develop them; numerous practical activities are arranged; the centre is structured into groups of seven or eight children who are closely supervised by employees assigned to act as “substitute parents”; and the centre employs a full-time psychologist.", "95. On 7 September 2000 and 4 February 2002 a CEPSB employee who worked at the centre’s bakery was convicted by the Braşov Court of First Instance and given prison sentences for sexually abusing children in the CEPSB’s care aged 9, 11 and 12. Florentina and Mariana were not involved.", "96. A number of articles in the Braşov local newspaper M. reported that after her visit to the CEPSB on 9 January 2001, Baroness Nicholson of Winterbourne, rapporteur for the European Parliament, had expressed the view that children in the centre’s care should not travel abroad to join their adoptive families because the CEPSB had formed a genuine family in which the children received a good upbringing and education. The articles also reported that Mr Ioan Ţiriac, the CEPSB’s founder, had stated that none of the children would be leaving the centre as they had all become members of his family and that it was time to stop “exporting” Romanian children.", "97. It appears from the evidence produced by the parties that Florentina and Mariana regularly go to school, visit their close acquaintances and travel abroad on trips organised by the CEPSB. In particular, Florentina is currently attending the College of the Arts, where she is taking violin and piano lessons, while Mariana is being encouraged by the CEPSB staff to develop her skills in dance and sport.", "98. Photocopies of Florentina’s passport reveal that she went on a trip to Hungary and Austria in July 2003.", "99. A video recording submitted by the Government and produced with the assistance of a psychologist at the centre where the children are living indicates that they have not received any detailed practical information about the ongoing proceedings for their adoption or about the identity of their adoptive parents. It does not appear from the recording that they have been prepared for the possibility of leaving the CEPSB and joining the applicants’ families. During the recording Florentina, in particular, expressed her desire to be part of a traditional family, but was also hesitant as to her adoption by the applicants, which she said that she had initially wanted.\nIt is uncertain whether, before the applicants’ visit to the centre in September 2002, the children received the letters which they had been writing to them in Romanian for several years.\nIt appears from the recording that the girls do not currently wish to travel to Italy to join the applicants, whom they know only vaguely, but would prefer to remain at the CEPSB, where they seem to have established social and emotional ties with the other children and with the “substitute” “mothers” and “aunts”." ]

[ 3 ]

[ "8. The applicant was born in 1943 and lives in Bratislava.", "9. On 11 August 1993 the applicant consulted a doctor to whom he complained of health problems due to the fact that his neighbour had tried to poison him. The doctor sent the applicant to the hospital in Ružinov in an ambulance. The accompanying document established by the doctor indicated that the applicant suffered from paranoid schizophrenia. In it the doctor requested that the applicant be treated as an in-patient. According to the applicant, he stayed in the central reception unit of the hospital in Ružinov for about ten minutes and during this time two injections were administered to him. Subsequently the applicant was brought against his will to the mental hospital in Pezinok. The chief physician of that hospital ordered that the applicant be released on 26 August 1993.", "10. On 19 August 1993 the Bratislava-vidiek District Court gave a decision in which it found that the applicant was held in a mental hospital lawfully. The reasons for this decision read as follows:\n“The psychiatric hospital in Pezinok admitted Karol Tám, as an ill person, without his consent. The court took evidence with a view to assessing whether the grounds for his admission were lawful and concluded that the person concerned has suffered from a mental illness requiring treatment in a mental hospital.”", "11. The District Court’s decision of 19 August 1993 was served on the applicant on 20 September 1996. On 1 October 1996 the applicant appealed and claimed that he had been taken to the mental hospital unlawfully.", "12. On 30 April 1998 the Bratislava Regional Court quashed the District Court’s decision of 19 August 1993. The Regional Court found that the first instance court had failed to establish the relevant facts and had committed errors of both a legal and procedural nature. In particular, the District Court had not taken formal decisions to bring proceedings concerning the lawfulness of the applicant’s examination in a mental hospital and to appoint a guardian for the applicant as required by Article 191b §§ 1 and 2 of the Code of Civil Procedure. Furthermore, the District Court had not heard the applicant and the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified. The case was sent back to the District Court for a new adjudication.", "13. In a letter dated 21 January 1999 a judge of the Bratislava III District Court (which had taken over the cases pending before the former Bratislava‑vidiek District Court) informed the applicant that the case would not be proceeded with as proceedings concerning the lawfulness of his placement in a mental hospital had never been formally brought.", "14. On 26 February 1999 the Bratislava Regional Court instructed the District Court to deliver a decision on the case.", "15. On 6 July 1999 the Bratislava III District Court discontinued the proceedings. The decision stated that the applicant had been released on 26 August 1993 and, therefore, the reasons for proceeding further with the case had fallen away. The applicant appealed on 9 August 1999. He claimed that his deprivation of liberty had been unlawful and that he had not been informed that a guardian had been appointed to represent him.", "16. On 31 May 2000 the Bratislava Regional Court upheld the District Court’s decision of 6 July 1999." ]

[ 2 ]

[ "9. The applicant was born in 1938 and lives in Nicosia.", "10. On 30 January 2001 the applicant applied to the Ministry of the Interior, requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of 27 May 2001.", "11. On 8 February 2001 the Ministry of the Interior refused to enrol the applicant. The Ministry specified that, by virtue of Article 63 of the Constitution, members of the Turkish-Cypriot community could not be registered on the Greek-Cypriot electoral roll. Furthermore, the Ministry informed the applicant that the matter was under consideration by the Attorney-General of the Republic and that he would be informed of any developments.", "12. On 27 April 2001 the applicant lodged an application with the Supreme Court against the decision of the Ministry of the Interior. He relied on Article 3 of Protocol No. 1 and submitted that, following the dissolution of the Communal Chambers, the Cypriot government had failed to set up two electoral lists in order to protect the electoral rights of members of both communities.", "13. On 23 May 2001 the Supreme Court dismissed the application on the following grounds:\n“... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community. The ideal of democracy – one person, one vote in the person's place of residence – does not provide any grounds for the Court to assume the power to reform the Constitution. Such competence is not vested in us, nor can the judicial authorities claim such power. This would be against the principle of the separation of powers on which the Constitution is based ...\nArticle 63 is contained in Part IV of the Constitution, which governs the matters pertaining to the House of Representatives and provides for the compilation of separate electoral lists in which the members of each community are included. The applicant belongs to the Turkish community and is one of the small number of Turkish Cypriots residing in the part of the territory of Cyprus under the control of the Republic of Cyprus. The denunciation by the applicant of the Turkish invasion and his loyalty to the law do not alter what the Constitution provides with respect to the election of the members of the legislative body.\nArticle 5 of the [Election of Members of the House of Representatives] Law makes the right to vote conditional on the provisions of Article 63 of the Constitution. The applicant admits, as it transpires from his counsel's address, that the proviso to which the right to vote is subject under Article 5, if construed literally, excludes the inclusion in the electoral list of any person other than members of the Greek community in Cyprus. Nevertheless, he suggested that this reservation must be interpreted in the light of the current situation in Cyprus, which renders the compilation of an electoral list of the members of the Turkish community impossible. Given this fact, it had to be surmised that when the House of Representatives enacted Article 5 of the Law it had this situation in mind and the impossibility of compiling an electoral list of the members of the Turkish community. Hence, this justified the interpretation of the reservation contained in Article 5 as referring only to those provisions of Article 63 of the Constitution which were rendered inactive.\nAdopting the interpretation of Article 5 proposed by the applicant would amount to it being reworded. The fact that the legislator was apprised of all the facts relating to the situation in Cyprus and chose to place the right safeguarded by Article 5 under the reservation of Article 63, supports the opposite of what the applicant is suggesting; it indicates an intention by the legislature to subject the compilation of the electoral list to the statutory provisions of Article 63. From the wording of Article 5 we conclude that the legislature's intention was to place the right to vote under the reservation of all provisions of Article 63. This conclusion refutes the allegation of the illegality of the administrative decision under appeal.\nThe second ground on which the applicant's appeal is based is the law of necessity. The necessity of his inclusion in the electoral list ... is derived from the impossibility of compiling an electoral list of the members of the Turkish community. Given this state of affairs, Mr Drakos submitted that the inclusion of the applicant in the electoral list of electors of the Greek community was justified and gave him the right to participate as an elector in the forthcoming parliamentary election. This was justified by the fact that the applicant resided in the areas controlled by the Republic of Cyprus where he operates, having the same rights and obligations as every other citizen. ...\nAssessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature. The competence of the judiciary is limited, provided the matter is submitted to it or arises in a case brought before it, to determining the constitutionality of the law ... It is not for the judiciary to assess the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them, which is basically what the applicant pursues with his application.”" ]

[ 8 ]

[ "9. The applicant is a Polish national who was born in 1944 and lives in Wieliczka, Małopolska Province, in Poland.", "10. The eastern provinces of pre-war Poland were (and in dated usage still are) called “Borderlands” (“Kresy”). They included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania.\nLater, when after the Second World War Poland's eastern border was fixed along the Bug River (whose central course formed part of the Curzon line), the “Borderlands” acquired the name of “territories beyond the Bug River” (“ziemie zabużańskie”).\nThose regions had been invaded by the USSR in September 1939.", "11. Following agreements concluded between the Polish Committee of National Liberation (Polski Komitet Wyzwolenia Narodowego) and the former Soviet Socialist Republics of Ukraine (on 9 September 1944), Belarus (on 9 September 1944) and Lithuania (on 22 September 1944) (“the Republican Agreements” – “umowy republikańskie”), the Polish State took upon itself the obligation to compensate persons who were “repatriated” from the “territories beyond the Bug River” and had to abandon their property there. Such property is commonly referred to as “property beyond the Bug River” (“mienie zabużańskie”).", "12. The Polish government estimated that from 1944 to 1953 some 1,240,000 persons were “repatriated” under the provisions of the Republican Agreements. At the oral hearing, the parties agreed that the vast majority of repatriated persons had been compensated for loss of property caused by their repatriation.\nIn that connection, the Government also stated that, on account of the delimitation of the Polish-Soviet State border – and despite the fact that Poland was “compensated” by the Allies with former German lands east of the Oder-Neisse line – Poland suffered a loss of territory amounting to 19.78%.", "13. The facts of the case, as submitted by the parties, may be summarised as follows.", "14. After the Second World War, the applicant's grandmother was repatriated from Lwów (now Lviv in Ukraine).\nOn 19 August 1947 the State Repatriation Office (Państwowy Urząd Repatriacyjny) in Cracow issued a certificate attesting that she had owned a piece of real property in Lwów and that the property in question consisted of approximately 400 sq. m of land and a house with a surface area of 260 sq. m.", "15. On 11 June 1968 the Cracow District Court (Sąd Rejonowy) gave a decision declaring that the applicant's mother had inherited the whole of her late mother's property.", "16. On an unknown later date the applicant's mother asked the mayor of Wieliczka to enable her to purchase the so-called right of “perpetual use” (prawo użytkowania wieczystego) of land owned by the State Treasury (see also paragraph 66 below).", "17. In September 1980 an expert from the Cracow Mayor's Office made a report assessing the value of the property abandoned by the applicant's grandmother in Lwów. The actual value was estimated at 1,949,560 old Polish zlotys (PLZ) but, for the purposes of compensation due from the State, the value was fixed at PLZ 532,260.", "18. On 25 March 1981 the mayor of Wieliczka issued a decision enabling the applicant's mother to purchase the right of perpetual use of a plot of 467 sq. m situated in Wieliczka. The fee for the right of perpetual use was PLZ 392 per year and the duration was set at a minimum of forty and a maximum of ninety-nine years. The total fee for use, which amounted to PLZ 38,808 (PLZ 392 x 99 years) was offset against the compensation calculated by the expert in September 1980.\nIn June 2002 an expert commissioned by the government established that the value of this transaction corresponded to 2% of the compensation to which the applicant's family was entitled (see also paragraph 35 below).", "19. The applicant's mother died on 3 November 1989. On 29 December 1989 the Cracow District Court gave a decision declaring that the applicant had inherited the whole of his late mother's property.", "20. In 1992, on a date that has not been specified, the applicant sold the property that his mother had received from the State in 1981.", "21. On 15 September 1992 the applicant asked the Cracow District Office (Urząd Rejonowy) to grant him the remainder of the compensation for the property abandoned by his grandmother in Lwów. He stressed that the value of the compensatory property received by his late mother had been significantly lower than the value of the original property.", "22. In a letter of 16 June 1993, the town planning division of the Cracow District Office informed the applicant that his claim had been entered in the relevant register under no. R/74/92. The relevant part of that letter read as follows:\n“We would like to inform you that at present there is no possibility of satisfying your claim. ... Section 81 of the Land Administration and Expropriation Act of 29 April 1985 [Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości[2]] became, for all practical purposes, a dead letter with the enactment of the Local Self-Government Act of 10 May 1990. [The enactment of that Act] resulted in land being transferred from the [Cracow branch of the] State Treasury to the Cracow Municipality. Consequently, the Head of the Cracow District Office who, under the applicable rules, is responsible for granting compensation, has no possibility of satisfying the claims submitted. It is expected that new legislation will envisage another form of compensation. We should accordingly inform you that your claim will be dealt with after a new statute has determined how to proceed with claims submitted by repatriated persons.”", "23. On 14 June 1994 the Cracow Governor's Office (Urząd Wojewódzki) informed the applicant that the State Treasury had no land for the purposes of granting compensation for property abandoned in the territories beyond the Bug River.", "24. On 12 August 1994 the applicant filed a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging inactivity on the part of the government in that it had failed to introduce in Parliament legislation dealing with claims submitted by repatriated persons. He also asked for compensation in the form of State Treasury bonds. 2. Facts after 10 October 1994\n(a) Events that took place up to 19 December 2002, the date on which the Court declared the application admissible", "25. On 12 October 1994 the Supreme Administrative Court rejected the applicant's complaint. It found no indication of inactivity on the part of the State authorities because “the contrary transpired from the fact that the applicant had received replies from the Cracow District Office and the Cracow Governor's Office”.", "26. On 31 August 1999, in connection with the entry into force of the Cabinet's Ordinance of 13 January 1998 (see also paragraphs 51-52 below), the Cracow District Office transmitted the applicant's request of 15 September 1992 for the remainder of the compensation, and the relevant case file, to the mayor (Starosta) of Wieliczka. Meanwhile, following a reform of the local administrative authorities, the former Cracow Province (Województwo Krakowskie) – in which the Wieliczka district is situated – had been enlarged and renamed “Małopolska Province” (Województwo Małopolskie).", "27. On 11 April 2002 the mayor of Wieliczka organised a competitive bid for property situated in Chorągwica being sold by the State Treasury. The bid was entered by seventeen persons, all of whom were repatriated persons or their heirs. The applicant did not participate in the auction.", "28. On 5 July 2002 the Ombudsman (Rzecznik Praw Obywatelskich), acting on behalf of repatriated persons, made an application under Article 191 of the Constitution, read in conjunction with Article 188, to the Constitutional Court (Trybunał Konstytucyjny), asking for legal provisions that restricted the possibility of satisfying their entitlements to be declared unconstitutional (see also paragraphs 50, 55, 60 and 70-71 below).\n(b) Events that took place on and after 19 December 2002", "29. On 19 December 2002 the Constitutional Court heard, and granted, the Ombudsman's application (see also paragraphs 79-87 below). The Constitutional Court's judgment took effect on 8 January 2003.", "30. On 8 January 2003 the Military Property Agency issued a communiqué, which was put on its official website[3] and which read, in so far as relevant, as follows:\n“The Constitutional Court, in its judgment of 19 December 2002, declared that the provisions relating to the realisation of the Bug River claims by, inter alia, the Military Property Agency were unconstitutional.\nHowever, the implementation of the court's judgment requires that the Land Administration Act 1997, the Law of 30 May 1996 on the administration of certain portions of the State Treasury's property and the Military Property Agency, as well as the Law of 25 May 2001 on the reconstruction, technical modernisation and financing of the Polish army in the years 2001-06, be amended.\nIt is also necessary to amend the Law of 15 February 1995 on income tax from legal persons, in respect of the proceeds received by the agency upon satisfying the Bug River claims.\nIn the circumstances, the Military Property Agency will be able to organise auctions for the sale of immovable property after the amendments to the existing legislation have been made.\nAuctions will be advertised in the press ... and on the [agency's] website.”\nAccording to information made available on the agency's website, in 2002 it had in its possession two categories of property. The first was immovable property no longer used for any military purposes, which was normally sold at auctions. It comprised 13,800 hectares of land and 4,500 buildings with a total surface area of 1,770,000 sq. m. This property included military airports, testing grounds, rifle ranges, hospitals, barracks, offices, recreation and sports centres, buildings designated for social and cultural activities and various other buildings (fuelling stations, workshops, warehouses, etc.). The second category was property that was only temporarily not used by the army. It comprised 650 hectares of land and buildings with a total surface area of 100,000 sq. m.", "31. On 8 January 2003 the State Treasury's Agricultural Property Agency (Agencja Własności Rolnej Skarbu Państwa), a body which at that time administered the State Treasury's Agricultural Property Resources (Zasoby Własności Rolnej Skarbu Państwa) (see also paragraph 91 below), issued a similar communiqué, which was put on its official website[4] and which read as follows:\n“On 8 January 2003 the Constitutional Court's judgment of 19 December 2002 concerning the constitutionality of the provisions governing compensation for the Bug River property came into force.\nAs a consequence of the Court's judgment, it is necessary to amend the provisions relating to the land administration. The judgment does not by itself create a new legal regime and cannot constitute a basis for offsetting the value of the property abandoned outside the State's border against the price of the State Treasury's agricultural property. The principles, conditions and procedure in that respect should therefore be determined. Such actions have already been taken by the Office for Dwellings and Town Development and the Ministry for the Treasury.\nIn the circumstances, this agency will desist from organising auctions for the sale of immovable property held among its resources, except for small plots of agricultural property.\nThe agency's decision is inspired by the need to ensure that the Bug River claimants have their claims satisfied on conditions that are equal for all claimants.”", "32. By the end of 2003 neither of the above-mentioned agencies had resumed auctions. On the date of adoption of this judgment, the Military Property Agency website still contained the – unchanged – communiqué of 8 January 2003 on the suspension of auctions.\nOn 2 February 2004, two days after the entry into force of new legislation on the Bug River claims (see paragraphs 114-19 below), the Agricultural Property Agency (Agencja Nieruchomości Rolnych), a body which had in the meantime replaced the State Treasury's Agricultural Property Agency (see also paragraph 91 below) removed the communiqué of 8 January 2003 from its website and added an announcement entitled “Information for the Bug River people” (“Informacja dla zabużan”), providing a detailed explanation of the operation of the new statute.", "33. Meanwhile, in the spring and summer of 2003, during the process of preparing a bill designed to settle the “Bug River claims” (“roszczenia zabużańskie”; hereafter “the Government Bill” – see also paragraphs 111-13 below), the government estimated the number of claimants and the value of the claims. According to the government, there were 4,120 registered claims, of which 3,910 were verified and regarded as meeting the statutory conditions. The registered claims were valued at three billion new Polish zlotys (PLN). There were also 82,740 unverified claims pending registration, of which 74,470 were likely to be registered. The anticipated value of the unverified claims was PLN 10.45 billion. The anticipated total number of entitled persons was 78,380. As the parliamentary debate over the Government Bill – a debate which was widely discussed throughout the Polish media – progressed, the number of Bug River claims started to grow, since many new claims were being registered.", "34. The statistical reports prepared by the government, in particular the Ministry for the Treasury (Ministerstwo Skarbu Państwa) and the Ministry for Infrastructure (Ministerstwo Infrastruktury), have to date not addressed the question of how many of the Bug River claimants have ever obtained any compensation and, if so, whether it was full or partial, and how many of them have not yet received anything at all.\nThe idea of keeping a register of Bug River claims emerged in the course of the preparation of the Government Bill, and such a register is to be kept in the future. Nevertheless, the need to collect the relevant data had already been perceived by the Minister for Infrastructure in July 2002[5], when he replied to a question by J.D., a member of parliament, concerning, in the MP's words, “the final discharge of the Polish State's obligations towards persons who, after the Second World War, had abandoned their immovable property beyond the eastern border”. In his reply, the Minister stated, inter alia:\n“In reply to the question relating to the number of unsatisfied claims, it has to be said that it was estimated by the Cabinet's Office [Urząd Rady Ministrów] at the beginning of the 1990s that there were about 90,000 [such claims]. At present it is very difficult to make such an estimation. ... In practice, every legal successor [of a Bug River claimant] could, and can, obtain a certificate – at present, a decision – [confirming the right to] a share in the abandoned property. What should be the criteria according to which the number of satisfied and unsatisfied claims is to be estimated? Should it be the number of applications made, including [several] applications by legal successors regarding one property abandoned by one owner (testator), or should it be the number of properties abandoned beyond the State's borders?\nIt is also difficult to estimate the number of persons whose entitlement has been satisfied, especially as the entitlement can be enforced throughout the country and it often happens that it is satisfied partially in different provinces until it has been fully settled. This situation creates conditions in which the entitled persons may abuse their rights – a fact of which governors and mayors have notified us. They accordingly suggest that a register ... of the certificates issued confirming the entitlement to ... compensatory property be kept. At present, however, there is no single, comprehensive system for the registration of certificates and decisions entitling claimants to [compensatory property].\nAccordingly, the answer to the deputy's question as to the form in which the [Bug River claims] are to be satisfied and as to the possible legal solutions depends on reliable information on the number of unsatisfied claims. If it emerged that the number was significant and that not all claims could be satisfied under the applicable laws, other legislative solutions would have to be found – which, however, would be particularly difficult in view of the economic and financial problems of the State.”", "35. On 12 June 2003 the Government produced a valuation report prepared by an expert valuer commissioned by them. That report had been drawn up on 14 June 2002. The value of the property that the applicant's grandmother had had to abandon was estimated at PLN 390,000. The expert stated that the applicant's family had so far received 2% of the compensation due.", "36. On 28 October 2003 the mayor of Wieliczka organised a competitive bid for property situated in Chorągwica and Niepołomice, in the Małopolska Province, that was being sold by the State Treasury. The reserve prices were PLN 150,000 and PLN 48,000 respectively. The bid was entered by several Bug River claimants. The first property was sold for PLN 900,000, the second for PLN 425,000. The applicant did not participate in those auctions.", "37. On 30 January 2004, by virtue of the Law of 12 December 2003 on offsetting the value of property abandoned beyond the present borders of the Polish State against the price of State property or the fee for the right of perpetual use (Ustawa o zaliczaniu na poczet ceny sprzedaży albo opłat z tytułu użytkowania wieczystego nieruchomości Skarbu Państwa wartości nieruchomości pozostawionych poza obecnymi granicami Państwa Polskiego – “the December 2003 Act”), the State's obligations towards persons who, like the applicant, have obtained some compensatory property under the previous statutes are considered to have been discharged (see also paragraph 116 below).", "38. On 30 January 2004 fifty-one members of parliament from the opposition party, “Civic Platform” (Platforma Obywatelska), applied to the Constitutional Court, challenging a number of the provisions of the December 2003 Act (see also paragraph 120 below)." ]

[ 9 ]

[ "4. The applicant was born in 1936 and lives in Włocławek, Poland.", "5. The applicant and her neighbours were the co-owners of real estate located in Włocławek. On 28 June 1982 the applicant filed an action with the Włocławek District Court (Sąd Rejonowy) in which she requested that the co-ownership of the estate be dissolved.", "6. Prior to 19 September 1989 the court held a number of hearings and two viewings of the site. It also obtained two expert reports.", "7. On 19 September 1989 the District Court gave a decision. The neighbours (“the respondents”) appealed. On 5 July 1991 the Włocławek Regional Court (Sąd Wojewódzki) set aside the first-instance decision and remitted the case.", "8. On 20 December 1991 the District Court held a hearing. On 17 November 1992 the court obtained another expert’s opinion.", "9. A hearing listed for 16 June 1993 was adjourned due to the absence of the respondents’ lawyer. On 3 August 1993 the court held a hearing and heard evidence from an expert.", "10. The court held a further hearing on 29 April 1994. It ordered yet another expert to prepare an opinion. On 7 October 1994 the court held a viewing of the site. On 17 November 1994 a hearing was held. At a hearing held on 13 April 1995 the court heard evidence from an expert.", "11. On 27 April 1995 the Włocławek District Court gave a decision and dissolved the co-ownership. The respondents appealed.", "12. On 20 July 1995 the District Court refused to exempt the respondents from the court fees due for lodging the appeal. On 22 August 1995 they appealed against this decision and requested the court to grant them leave to appeal out of time. On 19 December 1995 the court granted them that leave. On 15 April 1996 the Włocławek Regional Court amended the decision of 20 July 1995 and partially exempted the respondents from the court fees.", "13. On 12 September 1996 the Włocławek Regional Court dismissed the respondents’ appeal. On 18 December 1996, they lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). On 3 September 1997 the Supreme Court dismissed the cassation appeal.", "14. On 21 September 1996 the applicant filed an action for repossession of part of the property with the Włocławek District Court. She claimed that the court in its decision of 27 April 1995 (given in the first set of proceedings), had not ordered the respondents to surrender part of the property in question to her.", "15. On 14 April 1997 the court stayed the proceedings, considering that the determination of the case depended on the outcome of the proceedings pending before the Supreme Court. On 5 January 1998 the proceedings were resumed.", "16. On 28 January 1998 the trial court held a hearing. On 14 March 1998 an expert opinion was submitted to the court.", "17. On 21 April 1998 the Włocławek District Court gave judgment and granted the applicant’s claim. The defendants appealed. On 8 October 1998 the Włocławek Regional Court dismissed their appeal." ]

[ 3 ]

[ "5. The applicant was born in 1941 and lives in Berlin, Germany.", "6. On 7 August 1992 her house in Slavonski Brod, Croatia, was blown up by unknown perpetrators.", "7. On 4 October 1995 she instituted civil proceedings before the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu) seeking damages from the Republic of Croatia for her damaged property.", "8. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Slavonski Brod Municipal Court stayed the proceedings on 28 September 2000.", "9. Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija), the proceedings resumed on 4 December 2003." ]

[ 3 ]

[ "6. The applicants were born in 1937 and 1939, respectively, and live in Krušedol, Serbia and Montenegro.", "7. On an uncertain date the applicants’ weekend house in Lončarica, Croatia, was damaged by unknown perpetrators.", "8. On 27 October 1997 the applicants instituted civil proceedings before the Grubišno Polje Municipal Court (Općinski sud u Grubišnom Polju) seeking damages from the Republic of Croatia for their damaged property.", "9. Pursuant to the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999), the Grubišno Polje Municipal Court stayed the proceedings on 31 May 2000.", "10. Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003), the proceedings resumed on 4 December 2003." ]

[ 3, 9 ]

[ "6. The applicant was born in 1946.", "7. On 14 August 1997 the investigating judge at the Vaduz Regional Court (Landgericht), having heard the applicant, ordered that he be taken into pre-trial detention on suspicion of, inter alia, embezzlement and continuous aggravated fraud (file no. 10 Vr 203/97). He found that there was a reasonable suspicion that the applicant had enticed a number of persons to entrust him with the investment of their capital, which he had then fraudulently diverted using a network of partly foreign companies. Giving detailed reasons, the investigating judge found that there was a danger of absconding, a danger that the applicant might influence witnesses, and also a danger of repetition of the offences. Finally, having regard to the seriousness of the offence, the applicant’s detention was proportionate to the sentence he risked incurring.", "8. On 19 September 1997 the Court of Appeal (Obergericht) held a hearing on the applicant’s request for release (Haftprüfungsverhandlung). The applicant was not represented by counsel at this hearing. Following the hearing, the court ordered that the applicant’s detention be continued. It confirmed the reasons advanced by the Regional Court.", "9. On the same day the Vaduz Regional Court dismissed the applicant’s request of 18 August to have a legal-aid counsel appointed for him. Regarding the applicant’s submissions concerning his income and assets, and the fact that he was represented by two counsel of his own choosing in a second set of proceedings (file no. 282/92), it found that he had sufficient means to pay for counsel.", "10. On 10 December 1997 the Regional Court ordered the applicant’s representation by legal aid counsel. It noted that the investigations and, in particular, an expert opinion, which had meanwhile been submitted, had shown that the applicant had been living exclusively on money obtained from the investors in his various companies and had therefore no means to pay for defence counsel. In the evening of 16 December 1997 the Lawyers’ Chamber appointed Mr B.", "11. On 17 December 1997 the Court of Appeal held a hearing on the applicant’s renewed request for release.", "12. At the beginning of the hearing, the applicant’s counsel pointed out that he had only been appointed at 6 p.m. on the day before and had therefore been limited to two hours of consultation with the applicant without having had a possibility to study the voluminous file. The Court noted that it had not been informed of the late appointment of counsel for the applicant and drew his attention to the fact that he remained free to request that the hearing be adjourned as the statutory three days’ time-limit for its preparation had not been complied with. However, counsel did not request an adjournment.", "13. At the close of the hearing, the court ordered the continuation of the applicant’s detention. It confirmed the reasons given in the decisions of 14 August and 19 September 1997.", "14. On 17 December 1997 the Lawyer’s Chamber appointed Mr K. as legal-aid counsel for the applicant.", "15. On 14 January 1998 the Court of Appeal, sitting in camera as a panel of five judges, dismissed the applicant’s appeal against the decision of 17 December 1997. As to the applicant’s complaint that he did not have sufficient time to prepare for the hearing of 17 December 1997 concerning his detention, the court noted that his counsel had waived the right to request an adjournment. There were no reasons to doubt the validity of the waiver.", "16. On 29 January 1998 the Public Prosecutor’s Office requested that the applicant’s pre-trial detention be extended to up to one year on account of the complexity of the case. The investigating judge supported this request on 30 January. The applicant was given no opportunity to comment.", "17. On 11 February 1998 the Court of Appeal, sitting in camera as a panel of five judges, ordered that the applicant’s detention would be allowed to last up to one year, i.e. until 13 August 1998 at the latest. With regard to the suspicion against the applicant and the danger of absconding and of a repetition of the offences, the court referred to its decision of 14 January 1998. Invoking Article 131 of the Code of Criminal Procedure (Strafprozessordnung), according to which detention on remand must not exceed six months unless the investigations are particularly complex, it found that the present proceedings concerned an exceedingly complex case of white-collar crimes. The offences to be investigated had been committed by a number of co-accused over a period of four years, numerous companies with links to foreign countries were involved and a great number of witnesses had to be heard, many of them under letters rogatory. A period of detention of up to one year appeared proportionate, all the more so because, given the maximum sentence of 10 years’ imprisonment, even a further prolongation of the detention to up to two years would be admissible under Article 131.", "18. On 5 March 1998 the Supreme Court (Oberster Gerichtshof) declared inadmissible the applicant’s appeal against the decision of 14 January 1998.", "19. On 2 April 1998 the Supreme Court, sitting in camera, dismissed the applicant’s appeal against the decision of 11 February 1998. As to the applicant’s complaint that he had not been heard on the requests for prolongation of his detention prior to the Court of Appeal’s decision, the Supreme Court, referring in detail to the Constitutional Court’s (Staatsgerichthof) case-law, found that the right to be heard could also be complied with where the person concerned had a possibility to appeal against the decision. However, it was advisable in the future to hear detainees on requests for prolongation of the detention.", "20. On 4 September 1998 the Constitutional Court dismissed the applicant’s complaint against the Supreme Court’s decision of 2 April 1998. As to the applicant’s complaint that he had not been heard prior to the decision of 11 February 1998, the Constitutional Court noted that the Code of Criminal Procedure did not require that a detainee be heard prior to a decision to prolong the detention. In these circumstances, the lack of an opportunity to comment was remedied by the possibility to appeal against the decision itself. Nevertheless - as the Supreme Court had rightly pointed out - it would be desirable to hear a detainee before deciding on a request for prolongation of the detention. The Constitutional Court also found that the Supreme Court as well as the Court of Appeal had given sufficient reasons for their decisions.", "21. Also on 4 September 1998, the Constitutional Court dismissed the applicant’s complaint against the Supreme Court’s decision of 5 March 1998. It found that the Court of Appeal had rightly noted that the applicant’s first request for legal aid had, on the basis of his own submissions, been dismissed on the ground that he was not indigent. It added that, even conceding that the applicant lost his income on account of his detention, he had considerable assets and had admitted it. The assumption that he was not indigent was confirmed by the fact that at the time he was represented by two counsel of his own choosing in a second set of criminal proceedings. Moreover, the applicant’s financial situation had become transparent only after the expert opinion had been filed in November 1997. Shortly afterwards a legal-aid counsel was appointed for him. As to the complaint that the legal aid counsel appointed on 16 December 1997 did not have sufficient time to prepare for the hearing of 17 December, the Constitutional Court confirmed the finding that counsel had validly waived his right to request an adjournment of that hearing.", "22. Both the Constitutional Court’s decisions were served on 2 October 1998." ]

[ 2 ]

[ "6. The applicant was born in 1937 and lives in Modrino Selo, Croatia.", "7. On 9 March 1992 the applicant’s weekend house in Sveti Petar, Croatia, was blown up by unknown perpetrators.", "8. On 8 March 1999 the applicant instituted civil proceedings before the Biograd na moru Municipal Court (Općinski sud u Biogradu na moru) seeking damages from the Republic of Croatia for his damaged property.", "9. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996), the Biograd na moru Municipal Court stayed the proceedings on 4 December 2000.", "10. Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003), the proceedings resumed on 16 December 2003." ]

[ 3, 9 ]

[ "8. The applicant, who is the eldest daughter of Prince Rainier III of Monaco, was born in 1957. Her official residence is in Monaco but she lives in the Paris area most of the time.\nAs a member of Prince Rainier’s family, the applicant is the president of certain humanitarian or cultural foundations, such as the Princess Grace Foundation or the Prince Pierre of Monaco Foundation, and also represents the ruling family at events such as the Red Cross Ball or the opening of the International Circus Festival. She does not, however, perform any function within or on behalf of the State of Monaco or any of its institutions.", "9. Since the early 1990s the applicant has been trying – often through the courts – in a number of European countries to prevent the publication of photos about her private life in the tabloid press.", "10. The photos that were the subject of the proceedings described below were published by the Burda publishing company in the German magazines Bunte and Freizeit Revue, and by the Heinrich Bauer publishing company in the German magazine Neue Post. 1. The first series of photos\n(a) The five photos of the applicant published in Freizeit Revue magazine (issue no. 30 of 22 July 1993)", "11. These photos show her with the actor Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence. The first page of the magazine refers to “The most tender photos of her romance with Vincent” (“Die zärtlichsten Fotos Ihrer Romanze mit Vincent”) and the photos themselves bear the caption “These photos are evidence of the most tender romance of our time” (“Diese Fotos sind der Beweis für die zärtlichste Romanze unserer Zeit”).\n(b) The two photos of the applicant published in Bunte magazine (issue no. 32 of 5 August 1993)", "12. The first photo shows her on horseback with the caption “Caroline and the blues. Her life is a novel with innumerable misfortunes, says the author Roig” (“Caroline und die Melancholie. Ihr Leben ist ein Roman mit unzähligen Unglücken, sagt Autor Roig”).\nThe second photo shows her with her children Pierre and Andrea.\nThe photos are part of an article entitled “I don’t think I could be a man’s ideal wife” (“Ich glaube nicht, dass ich die ideale Frau für einen Mann sein kann”).\n(c) The seven photos of the applicant published in Bunte magazine (issue no. 34 of 19 August 1993)", "13. The first photo shows her canoeing with her daughter Charlotte, the second shows her son Andrea with a bunch of flowers in his arms.\nThe third photo shows her doing her shopping with a bag slung over her shoulder, the fourth with Vincent Lindon in a restaurant and the fifth alone on a bicycle.\nThe sixth photo shows her with Vincent Lindon and her son Pierre.\nThe seventh photo shows her doing her shopping at the market, accompanied by her bodyguard.\nThe article is entitled “Pure happiness” (“Vom einfachen Glück”). 2. The second series of photos\n(a) The ten photos of the applicant published in Bunte magazine (issue no. 10 of 27 February 1997)", "14. These photos show the applicant on a skiing holiday in Zürs/Arlberg. The accompanying article is entitled “Caroline... a woman returns to life” (“Caroline... eine Frau kehrt ins Leben zurück”).\n(b) The eleven photos of the applicant published in Bunte magazine (issue no. 12 of 13 March 1997)", "15. Seven photos show her with Prince Ernst August von Hannover at a horse show in Saint-Rémy-de-Provence. The accompanying article is entitled “The kiss. Or: they are not hiding anymore” (“Der Kuss. Oder: jetzt verstecken sie sich nicht mehr”).\nFour other photos show her leaving her house in Paris with the caption “Out and about with Princess Caroline in Paris” (“Mit Prinzessin Caroline unterwegs in Paris”).\n(c) The seven photos of the applicant published in Bunte magazine (issue no. 16 of 10 April 1997)", "16. These photos show the applicant on the front page with Prince Ernst August von Hannover and on the inside pages of the magazine playing tennis with him or both putting their bicycles down.", "17. The sequence of photos published in Neue Post magazine (issue no. 35/97) shows the applicant at the Monte Carlo Beach Club, dressed in a swimsuit and wrapped up in a bathing towel, tripping over an obstacle and falling down. The photos, which are quite blurred, are accompanied by an article entitled “Prince Ernst August played fisticuffs and Princess Caroline fell flat on her face” (“Prinz Ernst August haute auf den Putz und Prinzessin Caroline fiel auf die Nase”).", "18. On 13 August 1993 the applicant sought an injunction in the Hamburg Regional Court (Landgericht) against any further publication by\nthe Burda publishing company of the first series of photos on the ground that they infringed her right to protection of her personality rights (Persönlichkeitsrecht), guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law (Grundgesetz), and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act (Kunsturhebergesetz – “the Copyright Act” – see paragraphs 40-41 below).", "19. In a judgment of 4 February 1993, the Regional Court granted the application only in respect of the distribution of the magazines in France, in accordance with the rules of private international law (section 38 of the Introductory Act to the Civil Code – Einführungsgesetz in das bürgerliche Gesetzbuch) read in conjunction with Article 9 of the French Civil Code.\nWith regard to the distribution of the magazines in Germany, however, the Regional Court reiterated that it was German law which applied. Under section 23(1) no. 1 of the Copyright Act, the applicant, as a figure of contemporary society “par excellence” (eine “absolute” Person der Zeitgeschichte), had to tolerate this kind of publication.\nThe Regional Court held that she had failed to establish a legitimate interest (berechtigtes Interesse) justifying an injunction against further publication because, where figures of contemporary society “par excellence” were concerned, the right to protection of private life stopped at their front door. All the photos of the applicant had been taken exclusively in public places.\n(b) Judgment of the Hamburg Court of Appeal of 8 December 1994", "20. The applicant appealed against that judgment.", "21. In a judgment of 8 December 1994, the Hamburg Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal and set aside the injunction against subsequent publications in France.\nIndeed, like the Regional Court, the Court of Appeal found that the applicant was a contemporary figure “par excellence” and therefore had to tolerate publication without her consent of the photos in question, which had all been taken in public places. Even if the constant hounding by photographers made her daily life difficult, it arose from a legitimate desire to inform the general public.\n(c) Judgment of the Federal Court of Justice of 19 December 1995", "22. The applicant appealed on points of law against that judgment.", "23. In a judgment of 19 December 1995, the Federal Court of Justice (Bundesgerichtshof) allowed the applicant’s appeal in part, granting her an injunction against any further publication of the photos that had appeared in Freizeit Revue magazine (issue no. 30 of 22 July 1993) showing her with Vincent Lindon in a restaurant courtyard on the ground that the photos interfered with her right to respect for her private life.\nThe Federal Court held that even figures of contemporary society “par excellence” were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos. Outside their home, however, they could not rely on the protection of their privacy unless they had retired to a secluded place – away from the public eye (in eine örtliche Abgeschiedenheit) – where it was objectively clear to everyone that they wanted to be alone and where, confident of being away from prying eyes, they behaved in a given situation in a manner in which they would not behave in a public place. Unlawful interference with the protection of that privacy could therefore be made out if photos were published that had been taken secretly and/or by catching unawares a person who had retired to such a place. That was the position here, where the applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the clear aim of being out of the public eye.\nHowever, the Federal Court dismissed the remainder of her appeal on the ground that, as a figure of contemporary society “par excellence”, the applicant had to tolerate the publication of photos in which she appeared in a public place even if they were photos of scenes from her daily life and not photos showing her exercising her official functions. The public had a legitimate interest in knowing where the applicant was staying and how she behaved in public.\n(d) Judgment of the Federal Constitutional Court of 15 December 1999", "24. The applicant then appealed to the Federal Constitutional Court (Bundesverfassungsgericht), submitting that there had been an infringement of her right to the protection of her personality rights (Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law).\nIn the applicant’s submission, the criteria established by the Federal Court of Justice regarding the protection of privacy in respect of photos taken in public places did not effectively protect the free development of the personality, be it in the context of private life or family life. Those criteria were so narrow that in practice the applicant could be photographed at any time outside her home and the photos subsequently published in the media.\nGiven that the photos were not used genuinely to inform people, but merely to entertain them, the right to control the use of one’s image in respect of scenes from private life, which had been recognised by the case-law of the Federal Constitutional Court, prevailed over the right – also guaranteed by the Basic Law – to freedom of the press.", "25. In a landmark judgment of 15 December 1999, delivered after a hearing, the Constitutional Court allowed the applicant’s appeal in part on the ground that the publication of the three photos in issues nos. 32 and 34 of Bunte magazine, dated 5 August 1993 and 19 August 1993, featuring the applicant with her children had infringed her right to the protection of her personality rights guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, reinforced by her right to family protection under Article 6 of the Basic Law. It referred the case to the Federal Court of Justice on that point. However, the Constitutional Court dismissed the applicant’s appeal regarding the other photos.\nThe relevant extract of the judgment reads as follows:\n“The appeal is well-founded in part.\n...\nII.\nThe decisions being appealed do not fully satisfy the requirements of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. 1. The provisions of sections 22 and 23 of the KUG [Kunsturhebergesetz – Copyright Act] on which the civil courts based their decisions in the present case are, however, compatible with the Basic Law.\nUnder Article 2 § 1 of the Basic Law, general personality rights are guaranteed only within the framework of the constitutional order. The provisions concerning the publication of photographical representations of persons listed in sections 22 and 23 of the KUG are part of that constitutional order. They derive from an incident which at the time caused a scandal (photos of Bismarck on his deathbed ...) and from the ensuing politico-legal debate sparked off by this incident ..., and aim to strike a fair balance between respect for personality rights and the community’s interest in being informed ...\nUnder section 22, first sentence, of the KUG, pictures can only be disseminated or exposed to the public eye with the express approval of the person represented. Pictures relating to contemporary society are excluded from that rule under section 23(1) of the KUG ... Under section 23(2) of the KUG, however, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The protection by degrees under these rules ensures that they take account of the need to protect the person being represented as well as the community’s desire to be informed and the interest of the media which satisfy that desire. That much has already been established by the Federal Constitutional Court ...\n...\n(b) In the instant case regard must be had, in interpreting and applying sections 22 and 23 of the KUG, not only to general personality rights, but also to the freedom of the press guaranteed by Article 5 § 1, second sentence, of the Basic Law in so far as the provisions in question also affect those freedoms.\n...\nThe fact that the press fulfils the function of forming public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinions and entertainment are not opposites. Entertainment also plays a role in the formation of opinions. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment (‘infotainment’). Consequently, many readers obtain information they consider to be important or interesting from entertaining coverage ...\nNor can mere entertainment be denied any role in the formation of opinions. That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement, relaxation, escapism or diversion. Entertainment can also convey images of reality and propose subjects for debate that spark off a process of discussion and assimilation relating to philosophies of life, values and behaviour models. In that respect, it fulfils important social functions ... When measured against the aim of protecting press freedom, entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of application of fundamental rights ...\nThe same is true of information about people. Personalisation is an important journalistic means of attracting attention. Very often it is this which first arouses interest in a problem and stimulates a desire for factual information. Similarly, interest in a particular event or situation is usually stimulated by personalised accounts. Additionally, celebrities embody certain moral values and lifestyles. Many people base their choice of lifestyle on their example. They become points of crystallisation for adoption or rejection and act as examples or counter-examples. This is what explains the public interest in the various ups and downs occurring in their lives.\nAs regards politicians, this public interest has always been deemed to be legitimate from the point of view of transparency and democratic control. Nor can it in principle be disputed that it exists in respect of other public figures. To that extent it is the function of the press to show people in situations that are not limited to specific functions or events and this also falls within the sphere of protection of press freedom. It is only when a balancing exercise has to be done between competing personality rights that an issue arises as to whether matters of essential interest for the public are involved and treated seriously and objectively or whether private matters, designed merely to satisfy the public’s curiosity, are being disseminated ...\n(c) The decision of the Federal Court of Justice largely stands up to an examination of its compatibility with the constitutional rules.\n(aa) The Federal Court of Justice cannot be criticised under constitutional law for assessing the conditions of application [Tatbestandsvoraussetzungen] of section 23(1) no. 1 of the KUG according to the criterion of the community’s interest in being informed and deciding on that basis that the photos showing the appellant outside her representative function in the Principality of Monaco were lawful.\nUnder section 23(1) no. 1 of the KUG, the publication of pictures portraying an aspect of contemporary society are exempted from the obligation to obtain the consent of the person concerned within the meaning of section 22 of the KUG. Judging from the drafting history of the Act ... and from the meaning and purpose of the words used, the provision in question takes into consideration the community’s interest in being informed and the freedom of the press. Accordingly, the interpretation of this element [Tatbestandsmerkmal] must take account of the interests of the public. Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public: they require the prior consent of the person concerned. The other element that is affected by fundamental rights, that of a ‘legitimate interest’ for the purposes of section 23(2) of the KUG, concerns only – and this must be stressed at the outset – figures of contemporary society and cannot therefore take sufficient account of the interests of the freedom of the press if these have previously been neglected when the circle of the persons concerned was defined.\nIt is in keeping with the importance and scope of the freedom of the press, and not unreasonably restrictive of the protection of personality rights, that the concept of contemporary society referred to in section 23(1) no. 1 of the KUG should not only cover, in accordance with a definition given by the courts, events of historical or political significance, but be defined on the basis of the public interest in being informed ... The kernel of press freedom and the free formation of opinions requires the press to have, within legal limits, sufficient margin of manoeuvre to allow it to decide, in accordance with its publishing criteria, what the public interest demands, and the process of forming opinion to establish what amounts to a matter of public interest. As has been stated, entertaining coverage is no exception to these principles.\nNor should the Federal Court of Justice be criticised for including in the ‘domain of contemporary society’, within the meaning of section 23(1) no. 1 of the KUG, pictures of people who have not only aroused public interest at a certain point on the occasion of a particular historical event but who, on account of their status and importance, attract the public’s attention in general and not just on the odd occasion. Account should also be taken in this regard of the fact that, compared to the situation at the time the Copyright Act was passed, increased importance is given today to illustrated information. The concept of a ‘figure of contemporary society “par excellence” ’ [‘absolute’ Person der Zeitgeschichte], often employed in this respect in the case-law and legal theory, does not conclusively derive from statute or the Constitution. If, as was done by the Court of Appeal and the Federal Court of Justice, it is interpreted as a shortened expression designating people whose image is deemed by the public to be worthy of respect out of consideration for the people concerned, it is irreproachable from the point of view of constitutional law at least as long as a balancing exercise is carried out, in the light of the circumstances of the case, between the public’s interest in being informed and the legitimate interests of the person concerned.\nGeneral personality rights do not require publications that are not subject to prior consent to be limited to pictures of figures of contemporary society in the exercise of their function in society. Very often the public interest aroused by such figures does not relate exclusively to the exercise of their function in the strict sense. It can, on the contrary, by virtue of the particular function and its impact, extend to information about the way in which these figures behave generally – that is, also outside their function – in public. The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements.\nIf, on the other hand, the right to publish pictures of people considered to be figures of contemporary society were to be limited to their official functions, insufficient account would be taken of the public interest properly aroused by such figures and this would, moreover, favour a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of socio-political life, having regard to the function of role model of such figures and the influence they exert. The press is not, however, allowed to use every picture of figures of contemporary society. On the contrary, section 23(2) of the KUG gives the courts adequate opportunity to apply the protective provisions of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law ...\n(bb) In theory the criteria established by the Federal Court of Justice for interpreting the concept of ‘legitimate interest’ used in section 23(2) of the KUG are irreproachable from the point of view of constitutional law.\nAccording to the decision being appealed, the privacy meriting protection that must also be afforded to ‘figures of contemporary society “par excellence” ’ presupposes that they have retired to a secluded place with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public. The Federal Court of Justice accepted that there had been a breach of sections 22 and 23 of the KUG where this type of picture was taken secretly or by catching the person unawares.\nThe criterion of a secluded place takes account of the aim, pursued by the general right to protection of personality rights, of allowing the individual a sphere, including outside the home, in which he does not feel himself to be the subject of permanent public attention – and relieves him of the obligation of behaving accordingly – and in which he can relax and enjoy some peace and quiet. This criterion does not excessively restrict press freedom because it does not impose a blanket ban on pictures of the daily or private life of figures of contemporary society, but allows them to be shown where they have appeared in public. In the event of an overriding public interest in being informed, the freedom of the press can even, in accordance with that case-law authority, be given priority over the protection of the private sphere ...\nThe Federal Court of Justice properly held that it is legitimate to draw conclusions from the behaviour adopted in a given situation by an individual who is clearly in a secluded spot. However, the protection against dissemination of photos taken in that context does not only apply where the individual behaves in a manner in which he would not behave in public. On the contrary, the development of the personality cannot be properly protected unless, irrespective of his behaviour, the individual has a space in which he can relax without having to tolerate the presence of photographers or cameramen. That is not in issue here, however, since, according to the findings on which the Federal Court of Justice based its decision, the first of the conditions to which protection of private life is subject has not been met.\nLastly, there is nothing unconstitutional, when balancing the public interest in being informed against the protection of private life, in attaching importance to the method used to obtain the information in question ... It is doubtful, however, that the mere fact of photographing the person secretly or catching them unawares can be deemed to infringe their privacy outside the home. Having regard to the function attributed to that privacy under constitutional law and to the fact that it is usually impossible to determine from a photo whether the person has been photographed secretly or caught unawares, the existence of unlawful interference with that privacy cannot in any case be made out merely because the photo was taken in those conditions. As, however, the Federal Court of Justice has already established in respect of the photographs in question that the appellant was not in a secluded place, the doubts expressed above have no bearing on the review of its decision.\n(cc) However, the constitutional requirements have not been satisfied in so far as the decisions of which the appellant complains did not take account of the fact that the right to protection of personality rights of persons in the appellant’s situation is strengthened by Article 6 of the Basic Law regarding those persons’ intimate relations with their children.\n(dd) The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question:\nThe decision of the Federal Court of Justice cannot be criticised under constitutional law regarding the photos of the appellant at a market, doing her shopping at a market accompanied by her bodyguard or dining with a male companion at a well-attended restaurant. The first two cases concerned an open location frequented by the general public. The third case admittedly concerned a well-circumscribed location, spatially speaking, but one in which the appellant was exposed to the other people present. It is for this reason, moreover, that the Federal Court of Justice deemed it legitimate to ban photos showing the appellant in a restaurant garden, which were the subject of the decision being appealed but are not the subject of the constitutional appeal. The presence of the appellant and her companion there presented all the features of seclusion. The fact that the photographs in question were evidently taken from a distance shows that the appellant could legitimately have assumed that she was not exposed to public view.\nNor can the decision being appealed be criticised regarding the photos of the appellant alone on horseback or riding a bicycle. In the Federal Court of Justice’s view, the appellant had not been in a secluded place, but in a public one. That finding cannot attract criticism under constitutional law. The appellant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone. In accordance with the criteria set out above, the mere desire of the person concerned is not relevant in any way.\nThe three photos of the appellant with her children require a fresh examination, however, in the light of the constitutional rules set out above. We cannot rule out the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for one or other or all the photos. The decision must therefore be set aside in that respect and remitted to the Federal Court of Justice for a fresh decision.\n(d) The decisions of the Regional Court and the Court of Appeal resulted in a violation of fundamental rights by limiting to the home the privacy protected by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law in accordance, moreover, with a rationale that was in keeping with the case-law at the time. The decisions in question do not need to be set aside, however, since the violation complained of has been remedied in part by the Federal Court of Justice and the remainder of the case remitted to that court.\n...”\n(e) Sequel to the proceedings", "26. Following the remittal of the case to the Federal Court of Justice in connection with the three photos that had appeared in Bunte magazine (issue no. 32 of 5 August 1993 and no. 34 of 19 August 1993) showing the applicant with her children, the Burda publishing company undertook not to republish the photos (Unterlassungserklärung).", "27. On 14 May 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Burda publishing company from republishing the second series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright Act.", "28. In a judgment of 26 September 1997, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice’s judgment of 19 December 1995.\n(b) Judgment of the Hamburg Court of Appeal of 10 March 1998", "29. The applicant appealed against that judgment.", "30. In a judgment of 10 March 1998, the Hamburg Court of Appeal dismissed the applicant’s appeal for the same reasons.\n(c) Decision of the Federal Constitutional Court of 4 April 2000", "31. As the Court of Appeal did not grant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions.", "32. In a decision of 4 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice’s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999.", "33. On 5 November 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Heinrich Bauer publishing company from republishing the third series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and the right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act.\nThe applicant submitted, among other things, a sworn attestation by the director of the Monte Carlo Beach Club to the effect that the swimming baths in question were a private establishment, access to which was subject to a high fee and strictly controlled and from which journalists and photographers were debarred unless they had the express permission of the owner of the establishment. The fact that the photos were very blurred showed that they had been taken secretly, at a distance of several hundred metres, from the window or roof of a neighbouring house.", "34. In a judgment of 24 April 1998, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice’s judgment of 19 December 1995. The court stated that the Monte Carlo Beach Club had to be considered as an open-air swimming pool that was open to the public, even if an entry fee was charged and access restricted.\n(b) Judgment of the Hamburg Court of Appeal of 13 October 1998", "35. The applicant appealed against that judgment.", "36. In a judgment of 13 October 1998, the Hamburg Court of Appeal dismissed the applicant’s appeal for the same reasons.\nThe Court of Appeal found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling down were not such as to denigrate or demean her in the public’s eyes.\n(c) The decision of the Federal Constitutional Court of 13 April 2000", "37. As the Court of Appeal did not grant the applicant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions.", "38. In a decision of 13 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice’s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999.\nThe Constitutional Court held that the ordinary courts had properly found that the Monte Carlo Beach Club was not a secluded place and that the photos of the applicant wearing a swimsuit and falling down were not capable of constituting an infringement of her right to respect for her private life.\n ", "39. The relevant provisions of the Basic Law are worded as follows:\n \nArticle 1 § 1\n“The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.”\nArticle 2 § 1\n“Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [Sittengesetz].”\nArticle 5 §§ 1 and 2\n“1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship. 2. These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [Recht der persönlichen Ehre].”\n \nArticle 6 §§ 1 and 2\n“1. Marriage and the family enjoy the special protection of the State. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them. The State community shall oversee the performance of that duty.”", "40. Section 22(1) of the Copyright (Arts Domain) Act provides that images can only be disseminated with the express approval of the person concerned.", "41. Section 23(1) no. 1 of that Act provides for exceptions to that rule, particularly where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication does not interfere with a legitimate interest (berechtigtes Interesse) of the person concerned (section 23(2)).", "42. The full text of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, is worded as follows:\n“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life. 2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised. 3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media. 4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’. 5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition. 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. 14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines:\n(i) the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;\n(ii) editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;\n(iii) when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;\n(iv) economic penalties should be envisaged for publishing groups which systematically invade people’s privacy;\n(v) following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;\n(vi) a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘visual or auditory enhancement devices’ to capture recordings that they otherwise could not have captured without trespassing;\n(vii) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;\n(viii) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. 15. It invites those governments which have not yet done so to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 16. The Assembly also calls upon the governments of the member states to:\n(i) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct;\n(ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole;\n(iii) foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users’ awareness of what the right to privacy necessarily entails;\n(iv) facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims’ rights are better protected.”" ]

[ 4 ]

[ "8. The facts as submitted by the parties may be summarised as follows.", "9. Until October 1994 the applicants all lived in Boydaş, a village of Hozat district in Tunceli province, in the then state-of-emergency region of Turkey.", "10. The applicants Abdullah Doğan, Ali Rıza Doğan, Ahmet Doğan, Kazım Balık, Müslüm Yılmaz and Yusuf Doğan (applications nos. 8803/02, 8805/02, 8806/02, 8811/02, 8815/02 and 8817/02 respectively) owned houses and land in Boydaş, whereas the other applicants cultivated land and lived in the houses owned by their fathers.\nIn particular, Cemal Doğan is the son of Ahmet Doğan (applications nos. 8804/02 and 8806/02 respectively).\nAli Murat Doğan, Hüseyin Doğan and Ali Rıza Doğan are the sons of Yusuf Doğan (applications nos. 8807/02, 8816/02, 8819/02 and 8817/02 respectively).\nHasan Yıldız (application no. 8808/02) cultivated the land owned by his father Nurettin Yıldız.\nHıdır and İhsan Balık are brothers (applications nos. 8809/02 and 8810/02 respectively). They used the property owned by their father Haydar Balık.\nMehmet Doğan is the son of Ali Rıza Doğan (applications nos. 8813/02 and 8805/02 respectively).\nHüseyin Doğan (application no. 8818/02) cultivated the land owned by his father Hasan Doğan.", "11. Boydaş village may be described as an area of dispersed hamlets and houses spread over mountainous terrain, where there is insufficient land suitable for agriculture. For administrative purposes the village was regarded as being in the Hozat district. An extended patriarchal family system prevailed in the region, where there were no large landowners but generally small family farms. These usually took the form of livestock farms (sheep, goats and bee‑keeping) revolving around the grandfather or father and run by their married children. The applicants earned their living by farming, in particular stockbreeding, land cultivation, tree felling and the sale of timber, as did their fellow villagers.", "12. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers’ Party of Kurdistan). This resulted in the displacement of many people from in and around Boydaş village either because of the difficulty of life in the remote mountainous area or because of the security situation.", "13. The facts of the case, in particular the circumstances of the applicants’ and the denial of access to their property in Boydaş village, are disputed.", "14. In October 1994 the inhabitants of Boydaş were forcibly evicted from their village by security forces on account of the disturbances in the region. The security forces also destroyed the applicants’ houses with a view to forcing them to leave the village. The applicants and their families thus moved to safer areas, namely to Elazığ and Istanbul where they currently live in poor conditions.", "15. Between 29 November 1994 and 15 August 2001 the applicants petitioned various administrative authorities, namely the offices of the Prime Minister, the Governor of the state-of-emergency region, the Tunceli Governor and the Hozat District Governor, complaining about the forced evacuation of their village by the security forces. They also requested permission to return to their village and to use their property.", "16. Although the applicants’ petitions were received by the authorities, no response was given to the applicants, except the letters in reply sent to Abdullah, Ahmet, Mehmet and Hüseyin Doğan, within the 60-day period prescribed by Law no. 2577.", "17. By a letter of 5 May 2000, the District Governor of Hozat replied to Abdullah Doğan’s petition dated 24 February 2000 and stated the following:\n“The Project ‘Return to the Village and Rehabilitation in Eastern and South-eastern Anatolia’ is developed by the South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma İdaresi Başkanlığı). It aims to facilitate the re‑settlement of any inhabitants who unwillingly left their land due to various reasons, particularly terrorist incidents and who now intend to return to secure collective settlement units, since the number of terrorist incidents has decreased in the region. The Project also aims at creating sustainable living standards in the re-settlement areas.\nIn this context, your petition has been taken into consideration.”", "18. By letters of 10 October and 5 and 25 June 2001, the state‑of‑emergency office attached to the Tunceli Governor’s office stated the following in response to the petitions submitted by Ahmet, Mehmet and Hüseyin Doğan:\n“Return to Boydaş village is forbidden for security reasons. However, you can return and reside in Çaytaşı, Karaca, Karaçavuş, Kavuktepe and Türktaner villages.\nFurthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.”", "19. Since the early 1980s the PKK terrorist organization waged a vicious and deadly campaign against the Turkish State with a view to separating a part of its territory and setting up a Kurdish State. The terrorist campaign carried out by the PKK focused on the south-east provinces of Turkey and aimed at destabilizing the region morally and economically as well as coercing the innocent population in the area to join the terrorist organisation. Those who refused to join the terrorist organisation were intimidated with random killings and village massacres. In this connection, between 1984 and 1995, 852 incidents occurred causing the death of 383 people and the wounding of 460.", "20. This terrorist campaign resulted in a drastic movement of population from the area to more secure cities and areas of the country. Thus, the inhabitants of the villages and hamlets in the region left their homes owing to the terrorist threat by the PKK.", "21. However, a number of settlements might have been evacuated by the local authorities to ensure the safety of the population as a precaution. According to the official figures, the number of people internally displaced on account of the terrorism is around 380,000. This figure corresponds to the evacuation of 48,822 houses located in 853 villages and 2,183 hamlets.", "22. The applicants were residents of Boydaş village. The official records indicate that the inhabitants of Boydaş evacuated the village because of the PKK intimidation. They were not forced to leave the village by the security forces.", "23. Mr Ali Haydar Doğan stated that he had been the mayor of Boydaş village since 1989. He lived in the Hozat district for three years following the forced evacuation of the village in October 1994. He is currently living in Istanbul. Mr Doğan explained that Boydaş was a forest village with oak trees and pastures around it. Since the village did not have sufficient land for agriculture, the inhabitants earned their living mainly from stock breeding and tree‑felling.", "24. As to the property owned by the applicants in Boydaş village, the mayor gave the following information:\n(i) Abdullah Doğan had land, a house, a barn and a sheep pen as well as approximately eighty head of small livestock and cattle in the Kozluca hamlet of Boydaş village;\n(ii) Cemal Doğan was cultivating a number of plots of land registered in the name of his father. He owned a house, a sheep pen, a barn and a number of animals;\n(iii) Ali Rıza Doğan was using three plots of land adding up to about 50 dönüm (about 920 m2) in the north and west of Kozluca hamlet. He had small livestock and a number of animals;\n(iv) Ahmet Doğan had a house, a sheep pen, a barn and a plot of land of around thirty dönüm in Kozluca hamlet. He had around a hundred head of small livestock and three or four cattle;\n(v) Ali Murat Doğan was using, along with his father, three plots of land adding up to about forty to fifty dönüm in the north of Kozluca. He also had a flock of small livestock together with his father;\n(vi) Hasan Yıldız was using some leased plots of land. He further had, together with his father, a flock of two hundred head of small livestock;\n(vii) Hıdır Balık was cultivating a plot of land, approximately two‑hundred dönüm, owned by his father Kazım Balık, in the Dereköy hamlet of Boydaş village. He also had about fifty head of small livestock and two or three cattle;\n(viii) İhsan Balık was cultivating a plot of land, approximately two‑hundred dönüm, along with his father Kazım. He and his father also had a hundred and fifty head of small livestock and five cattle;\n(ix) Kazım Balık and his siblings were cultivating a plot of land, approximately two‑hundred dönüm, which they had inherited from their father in the hamlet of Dereköy. He had about a hundred and fifty head of small livestock and five cattle;\n(x) Mehmet Doğan was cultivating a plot of land owned by his father Ali Rıza. He had a house, a barn, a sheep pen and about forty head of small livestock in Kozluca hamlet;\n(xi) Müslüm Yılmaz had a few plots of land adding up to about fifty dönüm in total in the east of Boydaş village and approximately two hundred head of small livestock as well as fifteen to twenty head of cattle;\n(xii) Hüseyin Doğan and his father Yusuf Doğan were cultivating the land owned by the latter in Kozluca hamlet. Hüseyin also had a separate house, a barn, a sheep pen and about eighty head of small livestock as well as four cattle;\n(xiii) Ali Rıza Doğan is the son of Yusuf Doğan, and they were cultivating the land and feeding the animals mentioned above (xii);\n(xiv) Yusuf Doğan had a house, a barn and a sheep pen in Kozluca hamlet. He also had three plots of land, adding up to fifty dönüm, and about a hundred head of small livestock as well as ten cattle;\n(xv) Hüseyin Doğan is the son of Hasan Doğan. He was cultivating three plots of land, around fifteen to twenty dönüm, which he inherited from his grandfather and father in the Kozluca hamlet of Boydaş village. He had seventy to eighty head of small livestock and three to four cattle.\n(b) Statement of 25 October 2003 by Kazım Balık, Hasan Doğan, Nurettin Yıldız and Ali Balık", "25. Following their visit to Boydaş village on 25 October 2003, the applicants observed the following:\n“We are the villagers who lived in Boydaş village of the Hozat district, but who had to leave since the village was forcibly evacuated. We are currently residing in the Hozat district. Although we were informed that we could return to our village, nobody is living there at the moment because there are no buildings to live in, no roads, no water, no electricity, no education or health service.”\n(c) On-site report of 28 July 2003, drafted and signed by three gendarmes and four villagers from Cevizlidere village in the neighbouring Ovacık district", "26. This document was prepared by three gendarmes from the Ovacık gendarmerie command and undersigned by four villagers from Cevizlidere in the Ovacık district, which is the neighbouring town of Hozat. It contained the observations of the signatories on the current state of Cevizlidere and referred to the fact that everyone registered in the village was allowed to leave and enter the village freely up to that date, provided that the gendarmerie station was informed of those movements.\n(d) Copy of an identity card issued by the Ovacık District gendarmerie command", "27. This identity card was issued by the Ovacık district gendarmerie command for a resident of the Cevizlidere village. It contains a statement that the identity card was issued for villagers temporarily resident in Cevizlidere.\n(e) Decision of lack of jurisdiction dated 29 September 1997, issued by the Military Public Prosecutor attached to the Gendarmerie General Command in Ankara", "28. This document pertains to the military public prosecutor’s decision that he did not have jurisdiction in relation to eight incidents which concerned the disappearance and killing of certain individuals by unknown persons in the Hozat and Ovacık districts of the province of Tunceli.\n(f) Petition filed with the Prime Minister’s office in Ankara by the mayors of some of the villages in the districts of Hozat, Ovacık and Pertek, in the province of Tunceli", "29. This petition contains the complaints of the mayors about the burning of their villages and forced eviction of the inhabitants by the security forces. The mayors further allege that security forces apply an extensive embargo on foodstuffs and essential commodities in the region. They ask the Prime Minister to take necessary measures with a view to allowing the inhabitants of the villages to return to their homes and land. They also request that the damage they suffered as a result of the destruction of property and forced displacement be compensated, that economic aid be provided and that the land mines in the region be cleared.\n(g) Ovacık First-instance Court’s decision of 22 November 1994; Tunceli Deputy Governor’s letter of 22 November 1994; a letter of 18 October 1994 from İ.K. to the Ovacık First-instance Court; Ovacık district gendarmerie command’s letter of 6 November 1994 to the District Governor; Tunceli Land Registry Director’s letter of 25 October 1994 to the Ovacık First-instance Court and a letter dated 18 October 1994 from the judge of the Ovacık First-instance Court to the district governor’s office", "30. The above-listed documents pertain to the inability of the authorities to conduct an on-site investigation into an allegation of destruction of property in Yazıören village in the Ovacık district on account of the lack of security in the area in question.\n(h) The report of 9 January 1996 of the Turkish Grand National Assembly’s Commission of Inquiry on the measures to be taken to address the problems of the persons displaced following the evacuation of settlement units in east and south-east Anatolia", "31. This report was prepared by a Commission of Inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,523 hamlets were evicted and forced to move to other regions of the country (p. 13). The number of people evicted from 183 villages and 823 hamlets in the province of Tunceli, which includes Boydaş village, was estimated to be around 40,933 (p. 12).", "32. The report includes the statements given by Mr Rıza Ertaş, a member of the General Assembly of Van Province (Van İl Genel Meclisi), who claimed that eighty per cent of the villages had been evacuated by the State authorities and twenty per cent by terrorists (p. 19).", "33. The report also refers to the Human Rights Report Turkey, which includes a chapter on evacuated villages and immigrants, prepared and submitted to the Commission of Inquiry in 1995 by Mr Yavuz Önen, the chair of the Human Rights Foundation. It appears from this report that the mayors of the evacuated villages in the Ovacık and Hozat districts of Tunceli met in Ankara on 20 and 21 May 1995. They noted that 350 out of 540 villages and hamlets attached to Tunceli had been evacuated and that fifty per cent of the evacuated villages had been burned. The mayors further pointed out that the inhabitants of the region faced starvation on account of the food embargo and that the restrictions imposed by the authorities on access to the high ground in the region had struck stock-breeding, which was the sole source of income of the inhabitants of the region. It was further noted in the Human Rights Report Turkey that in 1995 the practice of evacuation of villages and hamlets had continued. Many houses in the villages were either destroyed or made uninhabitable. People were forced to emigrate from the region. Pressure was exerted on the inhabitants until they left their villages. In early 1995 there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards.", "34. The report further refers to the speech delivered at the Turkish Grand National Assembly by Mr Salih Yıldırım, a deputy from Şırnak, on 3 June 1997 on the question of the evacuated villages. Mr Yıldırım stated, among other assertions, that the villages were evacuated either by the PKK, in order to intimidate those who opposed it, or by the authorities since they were unable to protect the villages or since the inhabitants of the villages refused to become village guards or were suspected of having aided the PKK (p. 20).", "35. In conclusion, it was recommended in the report that the inhabitants of the settlement units should either be re-housed in the provinces or districts or central villages, that those who wanted to return should not be re‑housed in hamlets but in central villages which were close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region while priority was being given to the immigrants (p. 112).\n(i) Committee of Ministers Interim Resolution ResDH (2002)98 on action of the security forces in Turkey", "36. The Committee of Ministers of the Council of Europe stressed in Resolution Res DH (2002) 98, in so far as relevant, that an effective remedy entailed, under Article 13 of the Convention, a thorough and effective investigation into alleged abuses with a view to the identification of and the punishment of those responsible, as well as effective access by the complainant to the investigative procedure. The Committee of Ministers also expressed its regrets that repeated demands for the reform of Turkish criminal procedure to enable an independent criminal investigation to be conducted without prior approval by the State’s prefects had not yet been met. It therefore urged Turkey to accelerate without delay the reform of its system of criminal prosecution for abuses by members of the security forces, in particular by abolishing all restrictions on the prosecutors’ competence to conduct criminal investigations against State officials, by reforming the prosecutor’s office and by establishing sufficiently deterrent minimum prison sentences for persons found guilty of grave abuses such as torture and ill-treatment. 2. The documents submitted by the Government\n(a) Letter of 22 July 2003 from the Ministry of Interior Gendarmerie General Command to the Ministry for Foreign Affairs", "37. In response to the Ministry for Foreign Affairs’ letter of 19 June 2003 which contained a request for information as to whether it was possible for the applicants to return to Boydaş village in the Hozat district of Tunceli, Mr M. Kemal Gür, a gendarmerie senior colonel, stated, on behalf of the Gendarmerie General Commander, that there was no obstacle to the return of the citizens to their homes in Boydaş village.\n(b) 2 CD-ROMs containing aerial and land views of Boydaş village", "38. The following can be observed from the land and aerial views of Boydaş village on 29 December 2003: The village was located in steep terrain and was completely covered by snow. The houses, which were spread over the mountainous area, seem to have been constructed out of stones, wood, adobe and mud. The houses do not have roofs. They seem to have collapsed due to hard winter conditions and lack of maintenance. However, the public buildings, such as the school, are intact since they seem to have been constructed of cement and stones. Access to the village seemed to be impossible on account of the lack of usable roads and the snow. Electricity and telephone supply posts are still intact, though the wires need to be repaired.\n(c) A copy of the minutes of the deliberations in the Turkish Grand National Assembly concerning the “return to village and rehabilitation project”", "39. In response to a question concerning the content, cost and the budget earmarked for 2000 of the return to village and rehabilitation project, the then State Minister in charge of the General Directorate for Village Services stated, inter alia, the following at the parliamentary session on 25 January 2000:\n“The aim of the project is to resettle the people who have either left or been evicted from villages, hamlets and neighbourhoods in east or south-east Turkey. The project also aims at reviving these settlement units by ensuring the return of their former inhabitants. Seventy‑six billion Turkish liras have been earmarked in the budget for 1999 in respect of Bingöl. This fund can also be used for 2000. The funds to be used in 2000 for the project have been earmarked by the State Planning Organisation (Devlet Planlama Teşkilatı) and included in the budget of the Ministry of the Interior. The project will be implemented by the General Directorate for Village Services.”", "40. At the parliamentary session of 29 June 2001, Mr Rüştü Kazım Yücelen, the then Minister of the Interior, reported on the return to village and rehabilitation project. He noted that the project was being implemented in east-and south-east Anatolia and that sufficient funds had been earmarked in the budget for eleven provinces under the state-of-emergency rule. The Minister pointed out that the governor of the state of emergency region, of his own motion, had been supplying cement, iron and bricks to those who voluntarily sought to return to their former settlement units. The Minister further noted that 16,784 persons had returned to their homes in 118 villages and 95 hamlets. As regards the investments to be made to facilitate the return of the villagers, he explained that priority had been given to central villages which would provide services to sub-settlement units in east and south-east Turkey.", "41. At the parliamentary session of 1 November 2001 Mr Ahmet Nurettin Aydın, a deputy for the province of Siirt, submitted that almost three million people had been forcibly displaced and that their houses had been destroyed. He welcomed however the termination by the authorities of the food embargo imposed on the inhabitants of the region (east and south-east Turkey). He pointed out that the return of the displaced persons to their homes would make an important contribution to the improvement of the Turkish economy. In response to Mr Aydın’s comments, the Minister of the Interior provided information on implementation of the return to village and rehabilitation project.", "42. On 27 November 2000, 12 March and 25 March 2001 and 4 November and 22 December 2003 parliament debated the issue of displaced persons and implementation of the return to village and rehabilitation project. At the parliamentary session on the latter date, Mr Muharrem Doğan, a deputy for Mardin, stated that since the year 2000 permission had been issued by the authorities for the return of sixty thousand people to their homes in the eleven provinces where emergency rule was in force.\n(d) Report on Tunceli, prepared by the Human Rights Survey Commission of the Turkish Grand National Assembly, dated 17-20 January 2003", "43. Following an on-site visit carried out by members of the Commission, a report was issued on developments in Tunceli province. The Commission noted, inter alia, that eighty houses had been built and given to those in need of shelter in the Hozat district within the context of the return to village and rehabilitation project. The Commission recommended that implementation of the latter project be accelerated, that the villagers be allowed to return and that economic aid be supplied to those who wanted to return.\n(e) A copy of the documents concerning meetings held at the Secretariat General for European Union Affairs, attended by representatives of the Government, the European Union and the United Nations", "44. Two meetings were held on 17 December 2003 and 12 January 2004 at the Secretariat General for European Union Affairs, attended by representatives of the Government, the European Union and the United Nations. The participants considered the situation of the internally displaced persons and examined the return to village and rehabilitation project. Following these meetings, a technical working group was set up, which held three meetings to discuss various related issues.\n(f) An information note on the return to village and rehabilitation project", "45. This document, prepared in December 2003 by the Presidency of the Research, Planning and Co-ordination Council attached to the Ministry of the Interior, sets out the content of the project, the work carried out within the context of this project, the principles of the project and the investments made and aid provided in accordance with the project. It appears from this document, in so far as relevant, that according to the figures of October 2003 24,908 left Tunceli, 5,093 people submitted applications for return and 4,273 of them were allowed to return by the authorities. The authorities provided monetary aid and aid in kind with the sums of 16,852,800,000 Turkish liras (TRL) and TRL 2,585,934,163,964 respectively for the province of Tunceli.\n(g) Urgent implementation plan for the return to village and rehabilitation project", "46. This document, submitted by the South-East Anatolia Development Directorate attached to the Prime Minister’s office, contains information on the measures taken by the authorities to resettle displaced persons in Diyarbakır, Şırnak, Batman, Siirt and Mardin.\n(h) Sub-project of regional development plan for the return to village and rehabilitation project", "47. This sub-project was prepared, by the South-East Anatolia Development Directorate attached to the Prime Minister’s office, to ensure the return of displaced persons to their former settlement units within a short time, to better use economic resources and to avoid any possible problems regarding the services to be provided to the inhabitants. It describes the principles to be followed in the implementation of the return to village and rehabilitation project.\n(i) Information document on the funds allocated within the context of the return to village and rehabilitation project", "48. This document indicates that the provinces of Diyarbakır, Şırnak, Batman, Mardin and Siirt received monetary aid totalling TRL 10,687,063,000,000 (approximately 6,646,717.65 euros (EUR)) between 2000 and 2003 within the context of the return to village and rehabilitation project. It was noted that 2,269 billion Turkish liras (EUR 1,410,926.48) were allocated for 2004 for the above‑mentioned provinces.\n(j) A copy of the decisions of the Malatya Administrative Court and the Supreme Administrative Court", "49. In a case brought by Mr Hasan Yavuz, who claimed that he had abandoned his village due to the terror incidents, that he had not been able to return to his village since 1994 on account of the lack of security and that he had suffered damage on account of not being able to use his property, the Malatya Administrative Court awarded compensation (decision no. 2000/239, on file no. 1998/1226, 7 March 2000). Relying on the “social risk principle” the latter reasoned that the damage sustained by the plaintiff must be compensated without the establishment of a “causal link” and that it should be shared by society as a whole since the administration had failed in its task of preventing the terror incidents.", "50. In an appeal case lodged with the Supreme Administrative Court (decision no. 2000/5120, on file no. 1999/2162, 11 October 2000) against the judgment rendered by the Erzurum Administrative Court, the appellant, Mr Ömer Akakuş, alleged that he had left his village in the province of Ağrı on account of the terror incidents and of the lack of security and that he had suffered damage because he had not been able to use his property since 1993.\nThe Supreme Administrative Court acceded to the plaintiff’s request and overruled the first-instance court’s judgment. The former court noted that the plaintiff had left his village owing to the terrorist incidents and not at the request or by the instructions of the administration. On that account, it considered that, even if the damage sustained by the plaintiff could not be ascribed to the administration and though there was no “causal link”, the administration was liable since it had failed to prevent terrorist incidents and maintain security.\n(k) Application form for return to village", "51. The Government submitted a copy of an application form for return to village, filled in by the applicant Mr Kazım Balık. This form contains information on the applicant’s identity and family situation, his education level, the village he left, settlement unit he wants to return to and a query as to whether he has suffered any damage on account of the terrorism and if so, how.\nIn his application form filed with the Hozat District Governor’s office, Mr Kazım Balık noted that he wanted to return to Boydaş village and that he had left his village due to the terrorism. He further noted that his house had been burned, that his fields had been damaged and that he wanted to return on account of economic difficulties. A similar form was also filled in by a certain A.A.\n(l) Documents pertaining to the aid supplied to some of the applicants and their fellow townsmen", "52. It appears from the records of the Social Aid and Solidarity Fund that the applicants Mr Kazım Balık and Mr Müslüm Yılmaz received monetary aid or aid in kind, such as food, medicine and heating supplies, between 1994 and 2003. The aid received by the applicants was TRL 646,913,300 and TRL 3,589,500 respectively.\nMr Ali Rıza Doğan had also requested aid, but the authorities could not supply it since he was out of town.\nIt also transpires from other documents that some of the villagers of the Hozat district were given beehives, sheep or cows to provide a source of income.\n(m) Birth registry records", "53. These documents give detailed information on the personal state of each of the applicants.\n(n) Personal information form for the inhabitants of Tunceli who filed an application with the European Court", "54. The Government submitted documents entitled “Personal information form for the inhabitants of Tunceli who filed an application with the European Court” in respect of each of the applicants. These documents contained detailed information on the personal situation of the applicants, namely their father’s name, date of birth, village, the amount they had declared for tax for the years 1994 and 1998 and the immovable property registered with their title. 1. Humanitarian situation of the displaced Kurdish population in Turkey, Report of the Committee on Migration, Refugees and Demography, adopted by Recommendation 1563 (2002) of the Parliamentary Assembly", "55. Between 8 and 12 October 2001 Mr John Connor, the rapporteur of the Committee on Migration, Refugees and Demography, established by the Parliamentary Assembly of the Council of Europe, carried out a fact-finding visit to Turkey concerning the “humanitarian situation of the displaced Kurdish population in Turkey”. Mr Connor prepared a report based on the information gathered from a number of sources, including his visit, official statements by the Turkish authorities and information received from local and international non-governmental organisations, as well as international governmental organisations.", "56. In this report, Mr Connor drew attention to the controversy concerning the figures for displaced persons. The Turkish authorities’ official figure for “evacuated persons” amounts to 378,000 originating from 3,165 villages at the end of 1999, whereas credible international estimates concerning the population displaced as a result of the conflict in south-east Turkey range between 400,000 and 1 million by December 2000. As to the cause of the movement of the population, the Turkish authorities maintained that the movement was not caused by the violence in the region alone. They contended that economic factors also accounted for the “migration”. The report, recognising the situation of internal displacement due to the conflict in the region, confirmed the Government’s stand point. However, it pointed out that there was no doubt that there had been a major displacement and migration to towns affecting those caught in the crossfire of the conflict: on the one hand Turkish security forces had targeted villages suspected of supporting the PKK. On the other hand the PKK had assassinated inhabitants of the villages “collaborating” with the State authorities (i.e. belonging to the village guards system) or refusing to support the PKK. This vicious circle of violence had forced many people to flee their homes.", "57. Mr Connor pointed to the failure of the Turkish Government to provide emergency assistance to people forcibly displaced in the south-east, including persons displaced directly as a result of the actions of the security forces. He further underlined the failure of the Government to provide a sanitary environment, housing, health care and employment to the internally displaced population.", "58. As to the prospects for the future, Mr Connor observed that the respondent Government had started developing return and rehabilitation projects as early as 1994. However, the first returns had occurred in 1997, as the region had not been secure before the latter date. Despite obvious improvements, security remained the main concern conditioning mass return movements. On the one hand, the authorities felt reluctant to allow for a large influx of returnees fearing the return of PKK militants. For that reason, they scrutinize every application and did not authorize returns to certain areas. On the other hand, the displaced population was in most cases unable to return without state financial or subsistence assistance and sometimes reluctant because of fresh memory of the atrocities committed in the past. Nevertheless, the South Eastern Anatolia Project (GAP), which is a comprehensive development programme aimed at the ending of the disparities between this region and the rest of the country, financed a number of projects concerning the return and resettlement of displaced persons. Among them was the “town-villages project”, which, through the construction of centralised villages, had allowed 4,000 displaced persons to return to their region. According to the official figures, approximately 28,000 persons had returned to 200 villages up to July 2001. Even so, a number of human rights organisations were critical of the Government’s efforts since the application forms for those who wished to return included a question concerning the reason for leaving the village. According to these organisations, displaced persons were not allowed to return unless they gave the actions of the PKK as a reason. Furthermore, there had been allegations that return was authorised only to the villages within the village guard system.", "59. Mr Connor concluded with satisfaction that the humanitarian situation in the region had progressed in relation to the situation presented in the last report of the Committee on Migration, Refugees and Demography; although the aims of provision of full security for mass returns and taking measures for revitalisation of the economy were still to be achieved. He made recommendations to the Turkish Government concerning a number of issues, which constituted the basis for Recommendation 1563 (2002) of the Parliamentary Assembly of the Council of Europe. 2. Recommendation 1563 (2002) of the Parliamentary Assembly on the humanitarian situation of the displaced Kurdish population in Turkey", "60. On 29 May 2002 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1563 (2002) on the “humanitarian situation of the displaced Kurdish population in Turkey”. The Parliamentary Assembly urged Turkey to take the following steps:\n“a. lift the state of emergency in the four remaining provinces as quickly as possible, namely in Hakkari and Tunceli, Diyarbakır and Şırnak;\nb. refrain from any further evacuations of villages;\nc. ensure civilian control over military activity in the region and make security forces more accountable for their actions;\nd. step up investigations into alleged human rights violations in the region;\ne. properly implement the rulings of the European Court of Human Rights;\nf. abolish the village guard system;\ng. continue its efforts to promote both the economic and social development and the reconstruction of the south-eastern provinces;\nh. involve representatives of the displaced population in the preparation of return programmes and projects;\ni. speed up the process of returns;\nj. allow for individual returns without prior permission;\nk. not to precondition assistance to displaced persons with the obligation to enter the village guard system or the declaration on the cause of their flight;\nl. present reconstruction projects to be financed by the Council of Europe’s Development Bank in the framework of return programmes;\nm. adopt measures to integrate those displaced persons who wish to settle in other parts of Turkey and provide them with compensation for damaged property;\nn. grant full access to the region for international humanitarian organisations, and provide them with support from local authorities.” 3. Report of the Representative of the Secretary-General on internally displaced persons, Mr Francis Deng, the United Nations Economic and Social Council, Commission on Human Rights, 59th session, 27 November 2002", "61. Between 27 and 31 May 2002 the Representative of the Secretary-General of the United Nations on internally displaced persons, Mr Francis Deng, undertook a visit to Turkey, at the invitation of the Government of Turkey. He aimed to gain a first-hand understanding of the situation of the displaced and to engage in a dialogue with the Government, international agencies, non-governmental organisations and representatives of the donor countries. Following his visit the Representative prepared a report which was submitted to the Commission on Human Rights of the United Nations.", "62. Mr Deng reported that the figures concerning the displaced population ranged widely between 378,000 and 4,5 million persons, predominantly of ethnic Kurds. Regarding the cause of the displacement in Turkey, the Representative contended that the situation of displacement had mainly resulted from armed clashes, violence and human rights violations in south-east Turkey. Like the rapporteur of the Council of Europe, he recognised the Government’s claim that economic factors also accounted for the population movements.", "63. Mr Deng stated that the majority of the displaced persons had moved into provincial cities, where they had reportedly lived in conditions of extreme poverty, with inadequate heating, sanitation, infrastructure, housing and education. He noted that the displaced persons had to seek employment in overcrowded cities and towns, where unemployment levels were described as “disastrous”. Mr Deng observed that the Government officials were mainly concerned with explaining the initiatives that the authorities were taking regarding the return and resettlement of the displaced population. He further observed that there was a tendency not to refer to the current conditions of the displaced. He noted that the problems of the displaced were not specific to the displaced, but affected the population of south-east Turkey as a whole.", "64. Regarding the return and resettlement initiatives, Mr Deng primarily reported the “Return to Village and Rehabilitation Project”, which was announced by the Turkish Government in 1999. Citing the positive aspects of the project, such as the feasibility study conducted prior to the development of the project and the voluntary nature of any return and resettlement, Mr Deng expressed his concerns on a number of issues. He noted that the extent of the consultation with the displaced and the non‑governmental organisations working on their behalf might be insufficient. He further reported the concerns regarding the plan of a new centralised settlement pattern, as opposed to the traditional pattern of one large settlement (village) surrounded by smaller settlements (hamlets). Mr Deng noted that, although establishing security in the region through promoting centralised settlement units was a legitimate policy, the authorities should consult the displaced themselves. Two other issues that were of concern for Mr Deng were the absence of basic data which would give an accurate picture of the displacement and the failure to implement the project.", "65. As to return and resettlement initiatives other than the “Return to Village and Rehabilitation Project”, Mr Deng noted that there had not been sufficient information as to their target groups and how exactly they related to one another.", "66. Concerning the obstacles to return, Mr Deng referred to the practice of requiring persons to declare that they would not seek damages from the State. Mr Deng noted that Government officials denied the existence of a non-litigation clause in the application forms for those who wished to return. Furthermore, he had received information concerning the application forms, which included a question concerning the reason for leaving the village. According to the reports, only those persons who stated that they had been displaced as a result of “terror” were allowed to return. Mr Deng further noted that there had been allegations that return was authorised only to villages within the village guard system. He finally noted that anti‑personnel mines posed a threat to those who wished to return to their villages in south-east Turkey.", "67. The recommendations of the Representative of the Secretary‑General of the United Nations on internally displaced persons were summarised as follows:\n“a. The Government should clarify its policy on internal displacement, including return, resettlement and reintegration, make its policy widely known, create focal points of responsibility for the displaced at various levels of the government structures, and facilitate co-ordination and co-operation among government institutions and with non-governmental organisations, civil society and the international community.\nb. The Government should enhance their efforts to address the current conditions of the displaced, which are reported to be poor, in co-operation with non-governmental organisations and United Nations agencies.\nc. The Government should provide more comprehensive and reliable data on the number of persons displaced as a result of the actions of both the Kurdistan Workers’ Party (PKK) and the security forces, on their current whereabouts, conditions and specific needs, and on their intentions with respect to return or resettlement.\nd. The Government should facilitate broad consultation with the displaced and the non-governmental organisations and civil society organisations working with them. The Government should further consider producing a document that clearly outlines the objectives, scope and resource implications of the Return to Village and Rehabilitation Project. Finally the results of the feasibility study conducted should be made public and the Government should facilitate an open discussion with the displaced and non-governmental organisations on the findings of this study and the steps which should be taken to implement them.\ne. The Government should examine areas of possible co-operation with the international community. In this connection, the Government might consider convening a meeting with international agencies, including the World Bank, and representatives of the potential partners to explore ways in which the international community could assist the Government in responding to the needs of the displaced.\nf. The Government should ensure a non‑discriminatory approach to return by investigating and preventing situations in which former village guards are allegedly given preference in the return process over those persons perceived as linked to PKK.\ng. The Government should ensure that the role of the security forces, or jandarma, in the return process is primarily one of consultation on security matters. Displaced persons who have been granted permission by the authorities to return to their villages - the decision being based on the advice of the jandarma - should be allowed to do so without unjustified or unlawful interference by the jandarma.\nh. The Government should take steps to abolish the village guard system and find alternative employment opportunities for existing guards. Until such time as the system is abolished, the process of disarming village guards should be expedited.\ni. The Government should undertake mine clearance activities in the relevant areas of the south-east to which displaced persons are returning, so as to facilitate that process.\nj. The Government should enhance their efforts to develop legislation providing compensation to those affected by the violence in the south-east, including those who were evacuated from their homes by the security forces.”" ]

[ 4, 9 ]

[ "4. The applicant was born in 1963 and lives in Budapest.", "5. On 18 August 1995 the applicant, a stoker, brought an action before the Budapest Labour Court against his employer, the Budapest Police Department, claiming payment of outstanding salary for the extra hours he had worked. On 22 September 1995 he provided particulars of his claims.", "6. On 6 October 1995 the Labour Court held a hearing and ordered the defendant to submit its pleadings. The defendant complied with this order on 26 October 1995. The applicant specified further his claims on 20 October 1995 and 11 June 1996.", "7. On 1 July 1996 the Labour Court appointed an expert auditor and ordered her to present an opinion within 90 days.", "8. On 28 August, 16 October and 17 December 1996, 16 January, 7 February and 12 May 1997 the applicant submitted further details of his claims.", "9. On 23 June and 28 October 1997 the applicant complained to the President of the Labour Court that the auditor had not yet submitted her opinion. In January 1998 the Labour Court revoked the auditor’s appointment.", "10. On 15 January 1998 the applicant quit his job.", "11. On 27 April 1998 the applicant complained to the President of the National Judicial Council about the Labour Court’s inactivity. On 6 August 1998 the President of the Budapest Regional Court’s Labour Law Section informed the applicant that the protraction of the proceedings was due to the multiple and often unclear particulars of his own claims, the lack of co-operation on the defendant’s side and the length of time taken by the auditor to finalise an opinion.", "12. On 5 May 1998 the Labour Court ordered the defendant to submit supplementary information within 30 days. The defendant complied on 24 June 1998.", "13. On 22 June and 13 July 1998 the applicant again provided particulars of his claims.", "14. On 2 September 1998 the sum of 353,396 Hungarian forints (HUF) was transferred by the defendant to the applicant’s bank account.", "15. On 4 September and 18 December 1998 the Labour Court held hearings. On the latter occasion the Labour Court ordered the parties to discuss the possibility of settling the case. The parties did so on 16 February 1999.", "16. On 19 February 1999 a new judge was appointed to the bench to deal with the case.", "17. On 26 April 1999 the Labour Court appointed another auditor and ordered him to submit his opinion within four months.", "18. On 9 September 1999 the applicant requested the revocation of the new auditor’s appointment on the ground that he had failed to submit his opinion within the prescribed period. The auditor submitted his opinion on 13 October 1999.", "19. On 1 and 16 November 1999 the applicant again provided particulars of his claims.", "20. On 9 February 2000 the Labour Court heard the expert’s opinion. As both parties rejected the opinion, on 28 February 2000 the Labour Court appointed a third expert, the Budapest Auditors’ Institute. On the same day, the Labour Court reminded the parties of their obligation to conduct their case in a bona fide manner.", "21. On 18 May and 20 June 2000 the applicant again submitted further particulars of his claims. Simultaneously, he challenged the presiding judge for bias and requested that the case be transferred to the Pest County Labour Court. His request was dismissed on 14 July 2000.", "22. On 28 July 2000 the Auditors’ Institute submitted its opinion.", "23. In an order dated 8 August 2000 the Labour Court fixed the fee payable to the Auditors’ Institute. On 1 September 2000 the applicant appealed against this order. The Labour Court, erroneously, transferred the case file to the Budapest Regional Court.", "24. On 6 September 2000 the applicant rejected the expert’s opinion. On 13 September 2000 he submitted further details of his claims.", "25. On 23 January 2001 a new judge was again appointed to the bench to hear the case.", "26. On 30 March 2001 the applicant provided further particulars of his claims. On the same day the Labour Court held a hearing, delivered a partial decision and ordered the defendant to pay HUF 110,309 plus accrued interest to the applicant. On 9 June 2001 this decision became final.", "27. Concerning the remainder of the action, the Labour Court held a hearing on 15 June 2001. On the same day the applicant submitted further details of his claims.", "28. On 18 June 2001 the Labour Court ordered the Auditors’ Institute’s opinion to be completed.", "29. On 25 and 28 June 2001 the applicant again specified his claims.", "30. On 3 October 2001 the applicant requested the revocation of the appointment of the Auditors’ Institute and challenged the Budapest Labour Court for bias. His motions were dismissed on 6 November 2001.", "31. On 25 October 2001 the applicant repeatedly complained to the National Judicial Council of the delay in the proceedings.", "32. On 3 December 2001 the Auditors’ Institute submitted its supplementary opinion.", "33. On 13 February 2002 the National Judicial Council informed the applicant of the findings of its enquiry into the length of the proceedings. In its opinion the protraction of the proceedings was attributable to the fact that the applicant had revised his claims on altogether nineteen occasions.", "34. On 14 February 2002 the Labour Court held another hearing at which the applicant again provided further particulars of his claims.", "35. On 28 February 2002 the Labour Court held a hearing and delivered its judgment. It ordered the defendant to pay, under various heads, the sums of HUF 58,033, 395,541 and 25,707 plus accrued interest to the applicant, and dismissed the remainder of the applicant’s claims. The applicant and the defendant appealed on 11 and 12 April 2002, respectively.", "36. On 11 September 2002 the Budapest Regional Court, sitting as a second-instance court, held a hearing. It upheld the first-instance judgment in so far as the applicant’s claims were accepted. In so far as the Labour Court dismissed part of the applicant’s claims, the Regional Court quashed the judgment of 28 February 2002 and remitted this part of the action to the Labour Court.", "37. In the resumed first-instance proceedings, the Labour Court requested the applicant to provide further and better particulars of the remainder of his claims. He did so on 31 October 2002. These proceedings are still pending at first instance.", "38. Meanwhile, on 17 October 2002 the applicant submitted a petition for review of the judgment of 11 September 2002. On 3 March 2004 the Supreme Court rejected the applicant’s petition for review." ]

[ 3 ]

[ "8. The first applicant, Gérard Chauvy, was born in 1952 and lives in Villeurbanne. The second applicant, Francis Esmenard, was born in 1936 and lives in Paris. Both are French nationals. The third applicant, Editions Albin Michel, is a limited company formed under French law that has its registered office in Paris.", "9. The first applicant, who is a journalist and writer, is the author of a book entitled Aubrac, Lyon 1943 which was published in 1997 by Editions Albin Michel (the third applicant), a company chaired by the second applicant.", "10. In his book, the first applicant reconstructed the chronology of events involving the Resistance movements in Lyons in 1943 and took stock of the various archive materials that were available on that period. One of the principal mysteries surrounding this period is the Caluire meeting, an event of particular significance to the history of the French Resistance and a major episode of the Second World War. On 21 June 1943 Klaus Barbie, the regional head of the Gestapo, arrested the main Resistance leaders at a meeting in Caluire in the Lyons suburbs. Among those arrested were Jean Moulin, General de Gaulle’s representative in France and the leader of the internal Resistance, and Raymond Aubrac, a member of the Resistance movement who managed to escape in the autumn of 1943. The truth about how the Resistance leaders came to be arrested in Caluire has still not been established. A member of the Resistance, René Hardy, who is now dead, was accused of being the “traitor” and put on trial. However, he was not convicted after two separate trials. A majority of the court voted in favour of a conviction in one of the trials, but the rules of criminal procedure in force at the time required a majority of at least two votes for a guilty verdict to be returned.", "11. The first applicant recounted this major event “using the Aubracs as a prism”. He claimed that his book put to the test “the official truth as related at length in the media, notably by the Aubracs, and in a film that sings their praises”.", "12. The book sparked off a fierce public debate in France and the newspaper Libération organised a round-table conference at which historians were invited to discuss the issue in the presence of Mr and Mrs Aubrac.", "13. An unabridged version of the written submissions – known as the “Barbie testament” – which were signed by Klaus Barbie and lodged by Mr Vergès, his lawyer, on 4 July 1990 with the judge investigating Barbie’s treatment of members of the Lyons Resistance was appended to the book. Many of the questions raised by the first applicant were based on a comparison of that document with the “official” version of history. In the conclusion to his book, he said that there was no evidence in the archives to substantiate the accusation of treachery made by Klaus Barbie against Raymond Aubrac, but that their examination had shown that “unreliable accounts [had] been given at times”. He followed this up with two pages of questions that cast doubt on Raymond Aubrac’s innocence.", "14. On 14 May 1997 Mr and Mrs Aubrac brought a private prosecution by direct summons in the Seventeenth Division of the Paris tribunal de grande instance. The summons contained fifty extracts from the book (eighteen from Barbie’s written submissions and thirty-two from the first applicant’s own text). The three applicants were summoned in their capacities as author, accomplice and a party liable for defamation under the civil law. Mr and Mrs Aubrac relied on section 31 of the Freedom of Press Act of 29 July 1881 and the Court of Cassation’s judgment of 4 October 1989 in Pierre de Bénouville. The relevant parts of the summons read as follows:\n“When ... Klaus Barbie was brought to France in 1983 he chose to defend himself by seeking to discredit those of his victims who had survived and were still able to make accusations against him by accusing them of treachery. He suggested that Raymond and Lucie Aubrac might be among their number. However, when Raymond Aubrac attended Barbie’s trial after being called as a witness by him, neither Barbie, nor his counsel Mr Vergès, asked him the slightest question, made the least remark or produced any document capable of supporting this vile accusation which remained extremely vague.\nAt the same time, by a judgment of 30 April 1987 followed by a judgment of 10 February 1988 which has become final, Raymond Aubrac secured Mr Vergès’s conviction for defamation after Mr Vergès had chosen to relay and even to back up his client’s insinuations in a film by Mr Claude Bal. ...\nThe [first applicant’s] book was published in March 1997 with the title ‘Aubrac, Lyon 1943’. A banner wrapped around the cover proclaimed: ‘A legend put to the test of history.’\nThere cannot, therefore, be any doubt that this book is aimed almost exclusively at the Aubracs and purports to use rigorous historical method to destroy their so-called ‘legend’ as members of the Resistance.”", "15. Mr and Mrs Aubrac then set out those of the applicants’ allegations which they considered defamatory and their reasons for so considering them:\n“A. The circumstances of Raymond Aubrac’s arrest in March 1943\nThe first falsehood of which the Aubracs are accused is that Raymond Aubrac was arrested on 13 March 1943 and not on 15 March; this enables Barbie to assert on the basis of this ‘established fact’ that the only way Raymond Aubrac, who had been arrested on 13 March, was able to attend the meeting on 15 March in the rue de l’hôtel de ville in Lyons was under the control of the French police. ... 2. Raymond Aubrac was a member of the Resistance whom Barbie turned into one of his department’s agents on his arrest in March 1943. 4. Raymond Aubrac, who was controlled by the French police, was not in fact arrested on 15 March 1943, when the French police went to one of his homes. 5. Raymond Aubrac was responsible for the ‘mousetraps’ that were set for members of the Resistance movement in Lyons between 13 and 15 March 1943. 6. Raymond Aubrac was not released on 10 May 1943 pursuant to a freely made decision of the investigating judge ..., but because the German authorities had compelled the French judicial authorities to release him. 7. Raymond Aubrac lied about the date of his release following his first arrest in order to hide the fact that for four days, between 10 and 14 May 1943, he had remained at the disposal of Barbie, the head of the Gestapo. 8. After being informed on Saturday 19 June 1943 of the time and venue of the meeting due to take place in Caluire of various Resistance leaders including Jean Moulin, Raymond Aubrac had informed his wife, who was thus able to inform the head of the Gestapo. 9. Raymond Aubrac was released voluntarily by the Germans on 21 October 1943, when English agents took part in an operation to free one of their agents, Jean Biche, and Barbie, who had been informed of the operation, seized the opportunity to allow his agent Raymond Aubrac to escape. 10. In general, Raymond Aubrac’s conduct with regard to the German authorities in Lyons in 1943 was similar to that of René Hardy, whom the Germans were using at that time. 1. Lucie Aubrac had concealed the fact that her husband was released on 10 May 1943, not as a result of action she had taken, but by virtue of an order of the investigating judge ... acting on the instructions of Barbie, the head of the Gestapo. 2. It was not Lucie Aubrac who had arranged the operation that had enabled three members of the Resistance, who had been arrested at the same time as Raymond Aubrac, to escape from L’Antiquaille Hospital on 24 May 1943. 3. After being informed by her husband of the time and place of the meeting at Dr Dugoujon’s home in Caluire on 21 June 1943, Lucie Aubrac had communicated the information to Barbie, the regional head of the Gestapo, on Sunday, 20 June. 4. Lucie Aubrac, whose controlling officer was Floreck, Barbie’s deputy, had agreed to act as liaison officer between her husband and ... Barbie to avoid ‘giving her husband away’. 6. It was with the full agreement of the Gestapo, and more specifically Barbie, that Lucie Aubrac was able to arrange her husband’s ‘escape’ in an operation that was organised not by her, but by the Intelligence Service, on 21 October 1943.\nEach of these defamatory statements ... must give rise to liability under section 31 of the Act of 29 July 1881.\nThese defamatory statements, which accuse [the Aubracs] of treachery and of concealing treachery, constitute a direct attack on their status as founding members and organisers of the Freedom (Libération) Resistance network and, in Raymond Aubrac’s case, as the military commander of the Secret Army.\nThis reference to section 31 of the Act of 29 July 1881 is inescapable since, as the Criminal Division of the Court of Cassation reiterated in a judgment of 4 October 1989 (in Pierre de Bénouville): ‘... By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members.’ ”", "16. In a judgment of 2 April 1998, the tribunal de grande instance began by examining the various alleged defamatory statements in the chronological order of the underlying events and by comparing Klaus Barbie’s signed written submissions with the first applicant’s text, as it considered that the very purpose of the first applicant’s book was to\n“compare the allegations of these ‘written submissions’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... The entire book thereafter focuses on this (major) charge of treachery”.", "17. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac’s initial arrest in March 1943, his release in May 1943, the escape from L’Antiquaille Hospital, the Caluire episode, events post-Caluire and the escape from boulevard des Hirondelles, and concluded:\n“Thus ..., without formally corroborating the direct accusations made in ‘Barbie’s written submissions’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies, and – despite the reservations expressed by the author – surreptitiously renders plausible the accusation of treachery and manipulation made in ‘Barbie’s written submissions’ that constitutes the underlying theme of the entire book. ...\nThe civil parties are therefore right to consider that the entire book, and particularly the passages [reproduced in the judgment], tarnish their honour and reputation.\nThe publication of the written submissions signed by Klaus Barbie and the quotation in various parts of the text of extracts from them constitutes defamation by reproduction of libellous accusations or allegations, an offence expressly provided for by section 29, first paragraph, of the Freedom of the Press Act.\nAs for the author’s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac’s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie’s accusations.”", "18. The tribunal de grande instance then considered which section of the Freedom of the Press Act was applicable in the case and, referring to the Act of 5 January 1951 and the Court of Cassation’s case-law, stated that the likening of recognised Resistance movements to the Army and Navy also applied to members of those movements. It noted that for Convention purposes “law” included both legislation passed by Parliament and judicial interpretation of that legislation, provided it was sufficiently settled and accessible. It accordingly found that section 31 of the Act of 29 July 1881 was applicable.", "19. It went on to explain that the defamatory statements were deemed to have been made in bad faith and that the burden of proof was on the accused to provide sufficient justification to establish that they had acted in good faith. They had to show that there had been a legitimate interest in publication unaccompanied by personal animosity, that a proper investigation had been carried out and that the tone was measured:\n“While the work of historians, who must be permitted to go about their work with total liberty if the historical truth is to be established, may on occasion lead them to make critical assessments containing defamatory accusations against the actors – both living and dead – of the events they are studying, it can only be justified if the historian proves that he has complied with his scientific obligations. ...\nAs soon as they came into the hands of the investigating judge and even though only the specialists knew what they contained, ‘Barbie’s written submissions’ received a degree of publicity that encouraged rumours to spread. There was, therefore, an argument for full publication, provided it was accompanied by an explanation of the historical background and a critical analysis that would enable the reader to form a considered opinion on the weight to be attached to the last statements of the former Nazi officer.”\nWith that requirement in mind, the tribunal de grande instance found that the characteristic features of the applicant’s book were the excessive importance given to ‘Barbie’s written submissions’, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac’s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L’Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events.\nThe tribunal de grande instance set out in detail and gave reasons for each of these assertions and concluded:\n“... judges are required by the nature of their task not to abdicate when confronted with the scholar (or someone claiming to be such) and to decide the case in law, thereby contributing in their own way to the regulation of relations in society.\nThus, judges cannot, in the name of some higher imperative of historical truth, abandon their duty to protect the right to honour and reputation of those who were thrust into the torment of war and were the unwilling but courageous participants therein.\nImmortalised by their contemporaries as illustrious myths, these men and women have not for all that become mere subjects of research, shorn of their personality, deprived of sensibility or divested of their own destinies in the interests of science.\nBecause he has forgotten this and has failed to comply with the essential rules of historical method, the accused’s [the author of the book’s] plea of good faith must fail.”", "20. The tribunal de grande instance therefore found the first two applicants guilty, as principal and accomplice respectively, of the offence under sections 29, first paragraph, and 31, first paragraph, of the Act of 29 July 1881 of public defamation of Mr and Mrs Aubrac in their capacity as members of a recognised Resistance movement.\nIt sentenced the first applicant, as the principal, to a fine of 100,000 French francs (FRF) and the second, as an accomplice, to a fine of FRF 60,000. It also found them jointly and severally liable with the third applicant to pay Mr and Mrs Aubrac damages of FRF 200,000 each. It dismissed an application for an order for the book’s destruction, but made an order for publication of a statement in five daily newspapers and for each copy of the book to carry a warning in like terms. Lastly, it found the third applicant liable under the civil law.", "21. The applicants appealed against that decision.", "22. In a judgment of 10 February 1999, the Paris Court of Appeal dismissed objections of nullity that had been made by the applicants and, on the merits, examined the following questions in turn: whether the prosecution was lawful, legitimate and necessary, whether the remarks were defamatory, whether the defendants had acted in good faith and whether section 31 of the Act of 29 July 1881 was applicable.", "23. As to whether the remarks were defamatory, the Court of Appeal endorsed the reasoning of the court below and added that there were a number of factors which indicated that the author and publisher had decided to make the Aubracs’ alleged betrayal the subject of their publication; these included the editorial presentation, the general structure of the book, the wraparound banner that juxtaposed ‘legend’ and ‘history’, and the conclusion to the book which was on the same theme.", "24. With regard to the question of defamation by innuendo, the Court of Appeal rejected the criticism of the tribunal de grande instance’s reasoning:\n“Having thus decided how the book would be balanced: systematic doubt where the Aubracs are concerned and the use of Barbie’s document as a reference – albeit one to be treated with caution – [the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac’s account.\nTo take the two episodes to which the defence refer: as regards the escape from L’Antiquaille, the author is not merely being irreverent but clearly makes accusations of inaccuracy, contradiction (page 268) and of misrepresenting the truth (page 80): there is no better way of insinuating that someone is lying.”", "25. The Court of Appeal then examined the applicants’ plea that they had acted in good faith and rejected it.\nIt did not deny that there could be an interest in analysing major events in the history of the Resistance and found that although some of the expressions used in the book were unpleasant they did not suffice to establish the existence of personal animosity. However, it concluded that the first applicant had failed to act with the necessary rigour for the following reasons:\n“Anyone who alleges a specific fact must first seek to verify its accuracy. Although this requirement is general, it is especially justified when the accusation is particularly serious – such as of an act of treachery leading to the death of the main Resistance leader – and when, as a historian, its maker is accustomed to questioning sources.”\nThe Court of Appeal then proceeded to identify the factors from which it had concluded that that requirement had not been complied with: the first applicant’s failure to consult the file on the investigation that was conducted after the arrests in March 1943, even though it would have enabled him to establish the date of Raymond Aubrac’s arrest and whether he was already in custody when his home was searched; his lack of interest in the testimony of direct witnesses from that period who were still alive when the book was written; and his failure to investigate certain documents. Noting repeated failures by the first applicant to exercise sufficient caution (he had published the Barbie document without subjecting it to genuine critical analysis, had directly accused the civil party of lying and had dismissed the boulevard des Hirondelles operation by members of the Resistance led by Lucie Aubrac as a sham), the Court of Appeal rejected his plea of good faith.", "26. As regards the decision to apply section 31 of the Act of 29 July 1881, the Court of Appeal referred to section 28 of the Act of 5 January 1951 and to two judgments of the Court of Cassation and found that the civil parties had been defamed exclusively with regard to their activities as members of the Resistance “since [the first applicant’s] entire thesis conveyed to the reader the notion that they were guilty of treachery”. It rejected an argument regarding the quality of the statute that had been applied in the case before it, noting that it was some forty years old and had been the subject matter of “settled and unambiguous case-law of the highest court for some twenty years”.", "27. Finding that the sentences that had been handed down were just and proportionate, the Court of Appeal upheld all the provisions of the judgment of the court below.", "28. The applicants appealed to the Court of Cassation, pleading, inter alia, Articles 7 and 10 of the Convention on the basis that the statutory provision that had been applied was neither clear nor precise and that its interpretation by the courts was inaccessible, unforeseeable and too wide. In their final two grounds of appeal, they alleged that the Court of Appeal had failed to give reasons for its decision to hold the applicants civilly and criminally liable for public defamation.", "29. In a judgment of 27 June 2000, the Court of Cassation dismissed the appeal, holding, inter alia, that the court below had properly justified its decision. It found that the Court of Appeal had applied the law correctly:\n“By virtue of a combination of section 28 of the Act of 5 January 1951 and sections 30 and 31 of the Act of 29 July 1881, firstly, these provisions afford protection against defamation to certain recognised Resistance movements which are likened to the regular Army and, secondly, this protection extends to members of these movements if the defamatory statement concerns their status or actions as members.”\nIt examined the final two grounds of appeal together and dismissed them, holding:\n“The Court of Cassation is satisfied from the wording of the judgment and its examination of the procedural documents that the Court of Appeal has, for reasons which are neither insufficient nor self-contradictory, firstly, correctly analysed the meaning and scope of the impugned statements and thus identified all the constitutive elements of fact and intent of the offence of which it found the accused guilty and, secondly, used its unfettered discretion to analyse the special circumstances and concluded that the accused’s plea of historical criticism in good faith had to be rejected.”" ]

[]

[ "4. The applicant, Mr Anatoliy Pavlovych Voytenko, is a Ukrainian national who was born in 1961 and resides in the village of Nova Vodolaga, in the Kharkiv Region, Ukraine.", "5. In September 1999, the applicant retired from the army. Upon retirement, the applicant was entitled to compensation for his uniform and to reimbursement of his travel expenses. As this compensation remained unpaid for three months, the applicant instituted proceedings in the Donetsk Garrison Military Court against the Donetsk Regional Military Registration Department (Донецкий Областной Военный Комиссариат), seeking recovery of the debt.", "6. On 12 January 2000, the court found for the applicant (Решение Военного суда Донецкого гарнизона) and awarded him UAH 2,576.72[1] for the uniform and UAH 128.77[2] for travel expenses. The court decision was not appealed and therefore came into force on 22 January 2000. The execution writs were sent to the Voroshylovsky District Bailiffs’ Service of Donetsk (Отдел Государственной исполнительной службы Ворошиловского районного управления юстиции Донецкой области) and the enforcement proceedings started on 16 March 2000.", "7. The debtor was given time to execute the judgment voluntarily, until 23 March 2000. After the debtor had failed to execute the judgment, the Bailiffs’ Service sent the execution writs and payment orders to the Donetsk Regional Treasury Department to withdraw the amount of the award from the debtor’s account, which revealed a lack of funds for such payments.", "8. On 10 April 2000, the payment order and execution writ were returned to the Bailiffs’ Service without execution due to the debtor’s lack of funds.", "9. On 17 May 2000, the enforcement proceedings in the applicant’s favour were joined to other enforcement proceedings against the debtor.", "10. On 24 October 2000, the debtor transferred to the Bailiffs’ Service the amount of UAH 128.77 (the reimbursement of the travel expenses) to be paid to the applicant. However, this sum was only transferred to the applicant on 20 July 2001 (4 October 2001 according to the applicant). The delay, according to the Government, was caused by a lack of information about the applicant’s banking details.", "11. On 7 November 2000 and 20 July 2001, the execution writ and the payment order for the remaining amount (the compensation for the uniform) were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds as before – a lack of funds on the designated account.", "12. On 9 September 2001 the Bailiffs’ Service checked and attached the debtor’s accounts. The Bailiffs also checked and found that the debtor had no vehicles or real estate in its possession.", "13. On 22 February and 6 August 2002 the execution writ for the remaining amount and the payment order were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds. The Treasury Department also noted that the payment order had expired on 6 September 2002.", "14. In response to the applicant’s inquiry, he was informed by the Bailiffs’ Service in August 2002 that the debtor’s accounts had been frozen and that the execution of his judgment would take place as soon as State budgetary money could be transferred to it.", "15. On 25 November 2002, joint enforcement proceedings against the debtor, including the applicant’s judgment, were initiated by the Bailiffs’ Service for a total amount of UAH 32,680.80[3].", "16. On 16 December 2002, the Bailiffs’ Service attached the debtor’s account in the “Aval” Bank.", "17. On 5 May 2003, the Bailiffs’ Service also ordered an attachment of the debtor’s funds which had accumulated in 26 accounts.", "18. On 10 January 2004, the judgment given in the applicant’s favour was enforced in full.", "19. On 12 January 2004, the amount awarded was transferred to the applicant’s bank account." ]

[ 3, 9 ]

[ "6. The applicant was born in 1949 and lives in Zagreb.", "7. The applicant alleged that he was infected with Hepatitis B and C following a vaccination while he was in the army.", "8. On 29 July 1997 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia.", "9. Pursuant to the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999), the Zagreb Municipal Court stayed the proceedings on 18 January 2000.", "10. The proceedings resumed on 7 November 2003 pursuant to the Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003 (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003)." ]

[ 1, 2 ]

[ "9. The applicant was born in 1957 and lives in Ostuni (province of Brindisi).", "10. In an order of 24 March 1994, filed with the registry on 30 March 1994, the Brindisi District Court imposed a preventive measure on the applicant, who was placed under special police supervision for one year.", "11. The Brindisi District Court found that numerous criminal complaints had been made against the applicant. In particular, it found that in 1991 and 1992 a series of criminal complaints had been lodged alleging that he had received stolen goods under cover of his vehicle dismantling and spare parts business. On 13 May 1992 a preventive measure in the form of a warning (avviso sociale) was imposed on the applicant for one year. On 13 June 1992 a criminal complaint was lodged against him for aiding and abetting theft and trading in stolen goods; he was acquitted by a judgment of 2 July 1993. On 5 May 1993 the applicant was arrested with two others in connection with another complaint for receiving stolen goods which had been lodged against him. In the light of the foregoing, the District Court considered that there were reasonable grounds for believing that, in spite of his clean record, the applicant was a habitual offender and thus “socially dangerous”, within the meaning of section 1 of Law no. 1423/56 of 27 December 1956. It refused, however, to make a compulsory residence order (obbligo di soggiorno) against him.", "12. The order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 and served on the applicant on 3 May 1994.", "13. The applicant appealed, but his appeal was dismissed by the Lecce Court of Appeal on 29 July 1994. The order became final on 24 September 1994 and was subsequently served on the Ostuni municipality on 27 September 1994.", "14. On 25 July 1995 the Ostuni police drafted, in the applicant’s presence, a document setting out the obligations imposed on him (verbale di sottoposizione agli obblighi).", "15. The applicant was required:\n(a) to look for a suitable job within two months from the date of service of the order;\n(b) not to change his place of residence;\n(c) not to leave his home without informing the authorities responsible for supervising him;\n(d) to live an honest life and not to arouse suspicion;\n(e) not to associate with persons who had a criminal record or who were subject to preventive or security measures;\n(f) not to return home later than 8 p.m. in summer and 6 p.m. in winter or to leave home before 7 a.m., unless due cause could be shown and in all cases only after informing the authorities responsible for supervising him;\n(g) not to keep or carry weapons;\n(h) not to go to bars or attend public meetings;\n(i) to report to the relevant police station on Sundays between 9 a.m. and 12 noon;\n(j) to have on him at all times the card setting out his precise obligations under the preventive measure and a copy of the court order.", "16. On 31 July 1995 the applicant applied to the Brindisi District Court for a declaration that the preventive measure had expired on 2 May 1995, that is, one year after the date on which the order of 24 March 1994 was served on him.", "17. In an order of 7 October 1995, the Brindisi District Court found that, even if pursuant to section 11 of Law no. 1423/56 the special supervision period began on the day on which the person on whom the preventive measure was imposed was served with the relevant order, compliance with that formality was necessary but not sufficient to constitute an initial step in the implementation of the measure. For there to be such an initial step, it was also necessary under section 7 of Law no. 1423/56 for the relevant order to be forwarded for enforcement to the competent police authority. The District Court observed that, under the Court of Cassation’s case-law, special supervision did not lapse at the end of the period for which it had been imposed, independently of when it was implemented. In the case before it, the initial step in the implementation of the measure had been taken on 25 July 1995, the day on which the Ostuni police had drafted the document setting out the obligations imposed on the applicant. Consequently, it held that the preventive measure had not ceased to apply.", "18. The applicant appealed to the Lecce Court of Appeal. He maintained that the preventive measure had automatically ceased to apply on 2 May 1995 or, at the latest, on 28 September 1995, which was one year after the date on which the order had been served on the Brindisi police and the Ostuni municipality. In any event, the applicant sought an order discharging the measure, arguing that there were no grounds for it to remain in force.", "19. In a judgment of 29 April 1996, the Court of Appeal upheld the order of 7 October 1995, observing that the case fell outside those for which statute provided the automatic lapse of special supervision. It considered that the preventive measure could not automatically cease to apply on the date stated in the order of 24 March 1994 independently of when it was implemented. Consequently, it concluded that the starting-point for the application of the preventive measure was the day on which the first steps had been taken to implement it. In this case that had been 25 July 1995, when the police had drafted the document setting out the applicant’s obligations under the order.", "20. The applicant appealed on points of law to the Court of Cassation.", "21. In a judgment of 16 December 1996, which was filed with the registry on 6 February 1997, the Court of Cassation ruled that the order for special supervision of the applicant had ceased to apply on 2 May 1995. It observed that section 11 of Law no. 1423/56 expressly provided that the period of special supervision started to run on the day the person to be supervised was served with the relevant order. Consequently, contrary to the opinion of the Court of Appeal, it found that the date on which the document setting out the obligations imposed on the applicant was drafted was not relevant for the purposes of identifying the date on which the preventive measure first took effect. It concluded that the period of special supervision had started to run on the day on which the relevant order was served on the applicant (3 May 1994).", "22. In the meantime, on 20 September 1996 the Ostuni police had informed the Brindisi District Court that the order for special supervision of the applicant had ceased to apply on 24 July 1996.", "23. As a result of the special supervision measure imposed on the applicant, the Ostuni Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civic rights had been suspended pursuant to Presidential Decree no. 223 of 20 March 1967.", "24. The applicant was subsequently prevented from taking part in the regional council (Consiglio Regionale) election of 23 April 1995.", "25. On 28 July 1995 the applicant’s name was restored to the electoral register.", "26. In a certificate issued on 22 November 1995, however, the mayor of Ostuni stated that the applicant had been subject to a further year’s special supervision by a decision of the Brindisi police of 25 July 1995. On 15 December 1995 the mayor declared that the applicant would be struck off the electoral register for another year.", "27. On 12 April 1996 the Ostuni Municipal Electoral Committee refused the applicant’s request to be allowed to take part in the national parliamentary election on 21 April 1996.", "28. The applicant lodged an appeal with the Lecce Court of Appeal in which he contended that the preventive measure had ceased to apply on 2 May 1995 and that, accordingly, there were no grounds for excluding him from the election.", "29. In a judgment of 18 April 1996, the Lecce Court of Appeal dismissed the appeal on the ground that the disenfranchisement could be challenged only after the preventive measure had actually been implemented." ]

[]

[ "6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1920, 1967, 1920, 1965, 1925, 1927, 1932, 1925 and 1924 respectively.", "7. On 29 July 1994 and on 16 February 1995 the Government and the Parliament passed two decisions according to which the deposits of certain categories of persons at the Savings Bank had to be index-linked. According to the decisions, the Ministry of Finance was supposed to allocate the necessary funds to the Savings Bank. However it failed to do so and the Savings Bank could not carry out the decisions of the Parliament and of the Government.", "8. In 2000 the applicants lodged with the Râşcani District Court civil actions against the Ministry of Finance in which they sought compensation.", "9. By judgment of 18 December 2000 the court awarded Mr Ghenadie Bocancea compensation of 3,877 Moldovan lei (MDL) (the equivalent of EUR 349 at the time). No appeal was lodged and the judgment became final.", "10. By judgment of 21 December 2000 the court awarded Ms Angela Ciugureanu’s father compensation of MDL 2,200.50 (the equivalent of EUR 197 at the time). No appeal was lodged and the judgment became final.", "11. By judgment of 20 December 2000 the court awarded Ms Zoia Juravlev compensation of MDL 2,798.5 (the equivalent of EUR 254 at the time). No appeal was lodged and the judgment became final. Following her father’s death on 13 April 2001 she inherited his estate.", "12. By judgment of 22 December 2000 the court awarded Ms Maria Melicenco compensation of MDL 3,667 (the equivalent of EUR 324 at the time). No appeal was lodged and the judgment became final.", "13. By judgment of 25 September 2000 the court awarded Mr Boris Leviţchi compensation of MDL 2,932 (the equivalent of EUR 277 at the time). No appeal was lodged and the judgment became final.", "14. By judgments of 31 October 2000 and 6 November 2000 the court awarded Ms Maria Pronin compensation of MDL 2,052.18 (the equivalent of EUR 196 at the time) and MDL 733 (the equivalent of EUR 68 at the time) respectively. No appeal was lodged and the judgments became final.", "15. By judgment of 28 November 2000 the court awarded Ms Nadejda Stavilov compensation of MDL 3,466 (the equivalent of EUR 335 at the time). No appeal was lodged and the judgment became final.", "16. By judgment of 25 August 2000 the court awarded Ms Ana Crivcianschi compensation of MDL 1,469 (the equivalent of EUR 132 at the time). No appeal was lodged and the judgment became final.", "17. By judgment of 16 November 2000 the court awarded Ms Olga Cotov compensation of MDL 2,200.50 (the equivalent of EUR 208 at the time). No appeal was lodged and the judgment became final.", "18. On unspecified dates the applicants lodged complaints about the non-enforcement of the judgments with the Ministry of Justice and the Enforcement Authority. In its replies, the Ministry of Justice and the Enforcement Authority informed them that the judgments could not be enforced, as no funds had been provided for the enforcement of judgments by the relevant legislation within the annual State budget.", "19. On 22 April 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Finance." ]

[ 3, 9 ]

[ "6. The applicant was born in 1960 and lives in Köln, Germany.", "7. In December 1992 the applicant’s business premises in Zagreb were blown up by unknown perpetrators.", "8. On 24 October 1997 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for his damaged property. He claimed that the property was damaged by members of the Croatian Army.", "9. Pursuant to the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999), the Zagreb Municipal Court stayed the proceedings on 9 December 1999.", "10. Pursuant to the Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003 (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003), the proceedings resumed on 16 October 2003." ]

[ 1, 2, 3 ]

[ "8. The applicant was born in 1941 and lives in Teteven. He was the executive director of Elprom‑EMT, a State‑owned company, against which bankruptcy proceedings were opened in 1997.", "9. On 14 May 1997 the Teteven District Prosecutor’s Office opened criminal proceedings against the applicant and against the deputy director of Elprom‑EMT and a company employee.", "10. On 3 June 1997 the applicant was charged with abuse of office and making false official documents, contrary to Articles 282 § 2 and 311 § 1 of the Criminal Code (“the CC”). It was alleged that, together with the deputy director, he had abused his managerial position during the period April 1996 – March 1997 and had occasioned losses to the company in order to secure a financial benefit for a private limited liability company in which his wife was a member. The alleged loss to Elprom‑EMT amounted to 23,302,275 old Bulgarian levs (BGL). It was also charged that to facilitate that offence the applicant had made false documents and had incited the deputy director and a company employee to make false documents.", "11. On 6 June 1997 a prosecutor of the Lovech Regional Prosecutor’s Office ordered the suspension of the applicant from his position of executive director, on the grounds that the charges against him were for job‑related offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office.", "12. On 20 June 1997 the investigator in charge of the case ordered an expert financial report, which was assigned to two former employees of Elprom‑EMT.", "13. On 4 August 1997 counsel for the applicant requested to be allowed to consult the case file. The request was granted on 10 August.", "14. A graphological report ordered earlier was ready on 18 September 1997.", "15. On 25 September 1997 the applicant was questioned. Counsel for the applicant requested to be allowed to inspect the case file. The investigator allowed them to consult certain documents but refused access to the whole file.", "16. On 16 October 1997 the expert financial report ordered on 20 June 1997 was ready.", "17. On 20 October and 25 November 1997 the investigator ordered expert reports on the prices of certain items relevant to the investigation.", "18. On 10 December 1997 the applicant was questioned and was allowed, together with his counsel, to consult certain documents in the case file, including the expert reports.", "19. On 29 December 1997 counsel for the applicant requested the disqualification of one of the experts who had prepared the expert financial report. They argued, inter alia, that one of the experts had been chief accountant of Elprom‑EMT and had been dismissed for disciplinary reasons by the applicant, which cast doubt on his objectivity. The request was denied.", "20. It seems that most of the witnesses in the case were questioned on dates between June and December 1997.", "21. On 10 February 1998 the applicant was questioned. His request to be allowed to consult the case file was granted.", "22. On 12 February 1998 counsel for the applicant again requested the disqualification of the experts who had prepared the expert financial report. They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of Elprom‑EMT.", "23. The same day the applicant was presented with the amended charges. These included aggravated embezzlement facilitated by the making of false official documents (Article 202 in conjunction with Article 311 of the CC), embezzlement (Article 201 of the CC), abuse of office (Article 282 of the CC), deliberately entering into contracts disadvantageous to the company he was managing (Article 220 of the CC) and making false official documents (Article 311 of the CC). It was alleged that between March 1996 and February 1997, together with the deputy director of Elprom‑EMT, he had embezzled company assets amounting to BGL 4,833,264.54, for the commission of which offence he had made false official documents, that in June 1995 he had misappropriated a trailer owned by Elprom‑EMT, that between March 1996 and February 1997, together with the deputy director, he had abused his office to secure a financial benefit for a private company, that between August 1996 and January 1997, together with the deputy director, he had deliberately made disadvantageous contracts between Elprom‑EMT and the same private company for which he had secured a financial benefit, and that in December 1994 he had made two false invoices for sums amounting to 365,000 German marks.\nAfter the being charged the applicant was questioned in the presence of counsel. He refused to give explanations.", "24. On 16 February 1998 the applicant and his counsel were allowed to consult the entire case file. The applicant objected to the expert reports and requested the disqualification of the experts. The investigator denied his requests and proposed to the prosecution that the applicant be indicted.", "25. On 16 June 1998 counsel for the applicant requested that the case be remitted for additional investigation, arguing that this was necessary to rectify certain procedural violations.", "26. On 9 July 1998 the Teteven District Prosecutor’s Office granted the request and referred the case back for investigation. It observed that the relevant circumstances about the relations between Elprom‑EMT and the private company which had allegedly benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences. It gave specific instructions as to the facts which had to be established. It further expressed the view that the applicant’s request for the disqualification of one of the experts who had prepared the expert financial report was well‑founded, since he had been dismissed by the applicant for disciplinary reasons and the applicant had good reasons to fear his lack of objectivity. It was therefore necessary to prepare a new expert report. In addition, it asserted that it was necessary to charge the applicant anew, since the original presentation of the charges against him had not been specific enough. Finally, it noted that the applicant’s counsel had also been Elprom‑EMT’s counsel in the bankruptcy proceedings against the company, which raised certain doubts as to a potential conflict of interests. It was therefore necessary to establish whether the applicant had reason to doubt the loyalty of his counsel, because if that issue was not elucidated, the applicant could use it as an argument that his defence rights had been infringed.", "27. On 4 November 1998 the investigator, complying with the instructions of the prosecution, ordered a new financial report.", "28. On 26 April 1999 the Teteven District Prosecutor’s Office, finding that the investigator in charge of the case had not carried out any of its instructions apart from ordering a new financial report, replaced him with a new one.", "29. On 1 June 1999 the new investigator proposed to discontinue the proceedings, on the ground that the charges against the applicant were not supported by sufficient evidence.", "30. On 7 June 1999 the Teteven District Prosecutor’s Office rejected the proposal and referred the case back for additional investigation. It held that the evidence was not sufficient because the investigation had not been performed thoroughly.", "31. On 9 June 1999 the investigator allowed the applicant to consult the case file.", "32. On 13 June 1999 the financial report ordered on 4 November 1998 was ready.", "33. On 7 January 2000 counsel for the applicant informed the investigator that she would be unavailable until 18 January.", "34. On 19 January 2000 the investigator charged the applicant anew. The charges included, apart from the previous ones, a new charge under Article 219 of the CC (mismanagement resulting in loss for the company). After charging the applicant the investigator questioned him and allowed him and his counsel to consult the case file.", "35. On 31 January 2000 the investigator recommended that the applicant be indicted solely under Article 219 of the CC.", "36. On 14 February 2000 the Teteven District Prosecutor’s Office decided to discontinue the investigation in respect of the charges under Articles 202 (aggravated embezzlement), 282 (abuse of office) and 311 (making false official documents) of the CC. On 23 March 2000 the Lovech Regional Prosecutor’s Office overturned that decision and referred the case back to the investigator. On appeal by the investigator on 6 April 2000 the Veliko Tarnovo Appellate Prosecutor’s Office affirmed the overturning.", "37. On 12 May 2000 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC. Its decision was overturned by the Veliko Tarnovo Appellate Prosecutor’s Office on 21 July 2000 and the case was referred back to the Lovech Regional Prosecutor’s Office with instructions to carry out certain investigative steps (inter alia, to order an expert report) and elucidate certain facts relating to transactions carried out by Elprom‑EMT during the period 1996‑97.", "38. On 4 August 2000, when the case was back at the investigation stage, the investigator ordered an additional expert report.", "39. On 8 June 2001 the applicant’s counsel informed the investigator that she would be unavailable until 12 June.", "40. On 12 June 2001 the investigator allowed the applicant and his counsel to consult the case file.", "41. On 19 June 2001 the investigator recommended that the applicant be indicted under Articles 219 (mismanagement resulting in loss), and 311 (making false official documents) of the CC.", "42. On 20 July 2001 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC and to transfer the case to the Teteven District Prosecutor’s Office for continuation of the proceedings under the remaining charges.", "43. On 5 September 2001 the Teteven District Prosecutor’s Office remitted the case for additional investigation, holding that the investigative steps carried out up until then had not established all relevant circumstances.", "44. On 24 September 2001 the investigator ordered a new expert report, assigning it to new experts.", "45. On 26 February 2003 the applicant and the prosecution entered into a plea‑bargain agreement. The criminal proceedings against him were apparently discontinued soon after.", "46. On 3 June 1997 the applicant was put under house arrest by an investigator who saw him in person and questioned him.", "47. On 12 June 1997 the applicant lodged with the Teteven District Prosecutor’s Office a request to be released on bail. On 16 June 1997 the Teteven District Prosecutor’s Office denied the applicant’s request. The applicant appealed to the Lovech Regional Prosecutor’s Office. The appeal was dismissed by an order of 8 July 1997. The applicant appealed to the Chief Prosecutor’s Office. On 3 September 1997 the Chief Prosecutor’s Office dismissed the appeal. The applicant lodged an appeal with the Head of the Investigations Division of the Chief Prosecutor’s Office. On 31 October 1997 the Head of the Investigations Division dismissed the appeal.", "48. In the meantime, on 7 August and 2 September 1997, the Teteven District Prosecutor’s Office had denied two requests by the applicant to be allowed to leave his home for one day. Another request by the applicant to be allowed to leave his home for one day was denied on 29 October 1997. On 12 November 1997 the Teteven District Prosecutor’s Office allowed the applicant to leave his home for one day.", "49. On 19 November 1997 the Teteven District Prosecutor’s Office denied a renewed application for release by the applicant.", "50. On 4 December 1997 the applicant submitted a new request for release on bail. On 16 December 1997 the Teteven District Prosecutor’s Office granted bail, setting the amount at BGL 3,000,000. On an unspecified date in December 1997 the applicant paid the amount of the bail and was released from house arrest." ]

[ 2, 3 ]

[ "7. The applicants are involved in a long-standing dispute with the State concerning the ownership of a plot of land known as “Omorphokklisia” in Galatsi, a suburb of Athens. This land is included in a wider area called the “Veïkou Estate”. The applicants have so far obtained a number of rulings in their favour from the civil courts and the public prosecutors of the Athens first instance and appeal courts. On several occasions, the State authorities have either claimed that the land in question was a forest or that it was not.", "8. In 1934 the Ministry of Agriculture took a reforestation decision (no. 108424/1934) concerning a wider region in Attica, which included Athens, Piraeus and the suburbs. According to that decision, the area “consisted, before the destruction and downgrading of the forest vegetation ..., of pine-tree forest which was progressively downgraded and tended to disappear ...”", "9. In a document of the Forest Inspection of Athens of 14 November 1968, it was stated that half of the area which included the applicants’ land was agricultural and half covered by bush and five pine-trees. The Forest Inspection expressed the opinion that, considering the morphology of the area, it has never been a forest and could not be reforested, since the decision of the Ministry of Agriculture of 1934 excluded from the scope of the reforestation barren lands or plots owned by individuals. The Forest Inspection concluded that the city plan could be extended to the impugned area.", "10. On 6 September 1994 the prefect of Athens declared an area within the Veïkou Estate, including the applicants’ land, “reafforestable” (it should be turned back into a forest). As it was expressly stated in the prefect’s decision, the aim was “... to recreate the forest greenery destroyed or downgraded by illegal quarry activities and other illegal actions such as land clearing, constructions etc. in an area of 284 000 square meters” (decision no. 3015/1994). On 10 October 1994 the prefect took a similar decision for another area of the Veïkou Estate.", "11. On 10 November 1994 the applicants challenged decision no. 3015/1994 before the Supreme Administrative Court. They claimed that they were owners of properties that originated from the parcelling of a broader area included in the major area known as “Veïkou Estate” and which were located inside the reafforestable area. In particular, in their appeal, they contended that the prefect’s decision lacked reasons and aimed at depriving them of any property or possession rights on the contested plot. In their additional observations of 3 March 1999 they claimed that the prefect’s decision was an operative act, in particular because it was issued after a new assessment of the factual situation (pages 55-59 of the applicants’ memorial). They further contended that the cause of the adoption of that decision was the attempt of the State to create a dispute over their property or possession rights, although the legal conditions for the issuance of such a decision were not met since the area never constituted a forest in the past.", "12. On 14 December 1994 the applicants invited the State to purchase the plot in question from them according to the procedure prescribed by Law no. 998/1979. The authorities did not reply.", "13. On 22 October 1999 the Forest Inspection of Athens qualified as “reafforestable” according to the procedure prescribed by Law no. 998/1979 an area of approximately 189 sq. m. located within the area concerned by the prefect’s decision of 10 October 1994 (see paragraph 10 above). The Forest Inspection concluded that only 20 sq. m. of that surface was forest and should be reforested. The Committee for the Settlement of Forest Disputes confirmed that decision and an appeal is now pending before the Appeal Committee.", "14. On 5 June 2000 the Supreme Administrative Court accepted that the applicants, who “were considered owners”, had locus standi. It declared their appeal inadmissible on the ground that the prefect’s decision was not an operative act since it simply confirmed the decision issued by the Minister of Agriculture in 1934. In particular, the court held that the decision of 1934 remained in force because no other act, of an equivalent force, had reversed it. The subsequent acts of the Administration, such as the interpretation of some aerial photos, could not be considered as a new assessment of the situation which could give to the decision of the prefect an operative character (judgment no. 1968/2000).", "15. In various judgments delivered during the past years the Greek courts have had the occasion to decide the property status of part of the Veïkou Estate (judgments nos. 8864/1995 of the Athens First Instance Court, 8314/1996, 9632/2000 of the Athens Court of Appeal and 1359/2002 of the Court of Cassation). The courts have recognised that a number of plots which were situated in the greater area of the Veïkou Estate did not constitute a forest but were private properties which were included in the development plan of the city. Some other judicial decisions (judgments nos. 13789/1977, 1865/1992 and 1783/1997 of the Athens First Instance Court, 7350/1978 of the Athens Court of Appeal and 696/1980 of the Court of Cassation), concluded that the greater area, which comprised the properties claimed by the applicants, had never been a forest in the past." ]

[ 3, 9 ]

[ "9. The applicant was born in 1946 and lives in Plovdiv.", "10. On 9 December 1994 a newspaper in the town of Parvomay, “Parvomay dnes”, published an article on the problems of the liquidation of State cooperative farms and the restitution of the agricultural land in the region. The article contained offensive allegations against the applicant who was a former chairman of the local commission in charge of the liquidation of the cooperative farms. The title of the article, quoting the applicant, read “Do not hassle me, I have a yellow card” („Не ме закачайте, аз съм с жълта карта“). The latter expression means that the person in question is registered as mentally ill. The article’s author commented on the poor results of the commission’s audit, stating that they could be expected since its chairman was a “person of unsound mind” („невменяем човек“). The applicant was also referred to as a “wretch” („нещастник“).", "11. In February 1995 the applicant lodged with the Parvomay District Prosecutor’s Office a request for the opening of proceedings for criminal libel against the newspaper’s editor. On 6 March 1995 the competent prosecutor opened a preliminary inquiry with a view to the opening of criminal proceedings against the editor.", "12. On 2 March 1995 the applicant filed a civil action against the newspaper’s editor and publisher, alleging that the article had defamed him. He claimed non‑pecuniary damages for injury to his reputation.", "13. The Parvomay District Court held its first hearing in the case on 13 April 1995. Counsel for the defendants requested the court to stay the proceedings, presenting a certificate from the Prosecutor’s Office to the effect that a preliminary inquiry had been opened. The court stayed the proceedings in accordance with Article 182 § 1 (d) of the Code of Civil Procedure (“CCP”), pending the outcome of the preliminary inquiry.", "14. The applicant lodged an interlocutory appeal, arguing, inter alia, that the pending preliminary inquiry could not serve as grounds for the staying of the civil proceedings, the only such grounds being pending criminal proceedings.", "15. On 13 July 1995 the Plovdiv Regional Court upheld the lower court’s ruling, holding that the facts alleged in the civil action constituted “criminal elements” within the meaning of Article 182 § 1 (d) of the CCP. The only bodies competent to decide whether a criminal offence had or had not been committed were the prosecutor and the criminal courts. The eventual ruling of the criminal court would be res judicata for the civil court, as provided by Article 222 of the CCP. Therefore, the proceedings had been properly stayed.", "16. On 5 September 1995 the Parvomay District Prosecutor’s Office opened criminal proceedings against the journalist who had written the article against the applicant.", "17. While the civil proceedings were stayed the Parvomay District Court sent numerous letters to the District Prosecutor’s Office and to the District Investigation Service, inquiring about the status of the criminal proceedings. Such letters were sent on 22 April, 9 September and 15 November 1996, 4 February and 5 and 11 December 1997, 12 May, 15 July and 18 December 1998, 12 April 1999, 25 January and 13 September 2000, and 28 February 2001.", "18. Meanwhile, on 23 March 1998 the applicant’s lawyer requested the Parvomay District Prosecutor’s Office to do the necessary for the speedy conclusion of the criminal proceedings. On 4 May 1998 he filed a complaint with the Plovdiv Regional Prosecutor’s Office, alleging that the criminal proceedings had lasted unreasonably long, thus precluding the resumption of the civil proceedings. In a letter of 12 May 1998 the Parvomay District Prosecutor’s Office informed the applicant that the investigation would be completed within thirty days. On 21 May 1998 the Plovdiv Regional Prosecutor’s Office instructed the Parvomay District Prosecutor’s Office to finalise the investigation within fourteen days.", "19. On 1 July 1998 the Parvomay District Prosecutor’s Office replaced the investigator in charge of the case, noting that he had failed to perform the necessary investigative steps in time.", "20. On 7 November 2000 the Parvomay District Prosecutor’s Office discontinued the criminal proceedings because the relevant limitation period had expired. The Parvomay District Court affirmed the discontinuation in a decision of 22 November 2000.", "21. On 1 March 2001 the Parvomay District Prosecutor’s Office sent the case file to the Parvomay District Court, which thereupon resumed the stayed civil proceedings.", "22. A hearing listed for 3 May 2001 was adjourned because the defendants had not been properly summoned.", "23. The next hearing was scheduled for 5 July 2001. The court noted that the defendants had again not been properly summoned and adjourned the case. As the summons sent to one of the defendants, the cooperative which had published the newspaper containing the allegedly defamatory article, was returned with a note that that cooperative had apparently been liquidated two years before that, the court instructed the applicant to produce a certificate of the cooperative’s current status. [Note: Certificates of current status are issued by the register of companies kept at the regional courts.]", "24. On 21 August 2001 the Parvomay District Court discontinued the proceedings, holding that the applicant had failed to comply with its instructions. The applicant appealed and on 8 January 2002 the Plovdiv Regional Court quashed the discontinuation and remitted the case to the Parvomay District Court.", "25. On 21 January 2002 the Parvomay District Court again requested the applicant to provide a certificate of current status of the defendant cooperative.", "26. In a judgment of 29 April 2003 the Parvomay District Court allowed the applicant’s claim against the newspaper editor, but dismissed his claim against the cooperative.", "27. The applicant appealed against the judgment to the Plovdiv Regional Court.", "28. At the time of the latest information from the parties (July 2003) the proceedings were still pending before the Plovdiv Regional Court, which had not yet set the appeal down for hearing." ]

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