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[ "11. At the beginning of the events relevant to the application, K. had a daughter, P., and a son, M., born in 1986 and 1988 respectively. P.’s father is X and M.’s father is V. From March to May 1989 K. was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. From August to November 1989 and from December 1989 to March 1990, she was again hospitalised for periods of about three months on account of this illness. In 1991 she was hospitalised for less than a week, diagnosed as suffering from an atypical and undefinable psychosis. It appears that social welfare and health authorities have been in contact with the family since 1989.", "12. The applicants initially cohabited from the summer of 1991 to July 1993. In 1991 both P. and M. were living with them. From 1991 to 1993 K. and X were involved in a custody and access dispute concerning P. In May 1992 a residence order was made transferring custody of P. to X.", "13. K. was again hospitalised from 22 April to 7 May 1992, from 13 May to 10 June 1992, and from 11 to 17 January 1993, on account of psychoses. She was in compulsory care between 15 May and 10 June 1992. According to a medical report dated 15 May 1992, K. was paranoid and psychotic.", "14. On 19 March 1993, according to the social welfare authorities’ records, a discussion took place between a social worker and K.’s mother. K.’s mother said that her daughter’s health condition was really bad and that K. had destroyed a childhood picture of hers, a wedding photo of the mother, broken a glass and “pierced the eyes” of all appearing in the photos. K.’s mother had said that she was tired of the situation, as she did not get any support from the mental health authorities. She added that she was worried and afraid that “again something must happen before K. is admitted to care”.\nOn 24 March 1993 K. was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care, having initially been diagnosed as suffering from psychosis. The conditions for compulsory care were not considered to be met but she remained in voluntary care until 5 May 1993.", "15. Allegedly, X did not allow K., P. and M. to meet. On 11 May 1993, when K. was again pregnant, her access to P. was further limited by an order of the District Court of R. Basing itself on a doctor’s opinion, the court held that the child’s mental development would be endangered if the meetings between P. and K. continued without supervision as had been ordered in 1992.", "16. According to the records of the social welfare authorities, M. showed signs of behavioural problems. On 30 March 1992 a psychologist reported how M. had played with two dolls saying – in very vulgar terms – that they were performing sexual acts. On 17 February 1993 K. was said to have broken a mirror in the presence of M. who had kept repeating: “mummy broke the mirror ...”\nNotes of the social authorities of 24 and 30 March 1993 among others state that games which M. played and pictures he drew were of a destructive nature. According to the notes taken on 30 March, he had lately, while the children were singing together at the day-care nursery, shown immense hatred, threatening “to kill everybody”. The occasions when K. fetched him were described as “unpleasant scenes”, M. shouting and hitting his mother who did not react. It was noted, however, that he no longer played doll games with sexual connotations.", "17. According to the records of the social welfare authorities, a discussion between K., her mother, T. and a number of social and mental-health care officials took place on 31 March 1993, during which it was mentioned that the authorities might have to intervene in M.’s upbringing, from the child-protection point of view, in a more drastic way than had been the case so far. It appeared that in connection with K.’s recent hospitalisation T. had “forcibly” taken her from a restaurant, which had made K. furious, with the consequence that she had thrown things around; for example, the microwave oven had ended up on the floor. T. had said that K. was unable to control herself.", "18. On the following day the child welfare support group, consisting of various social and health authorities, agreed that the aim should be to place M. in a children’s home for three months as an assistance measure of open care under section 14 of the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 – “the 1983 Act”), during which period psychological examinations of the child would be carried out.", "19. On 3 May 1993 a social welfare official decided on behalf of the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of S. to place M. in a children’s home for a period of three months. This was to be regarded as a short-term support measure pursuant to the 1983 Act. The applicants had been consulted, together with K.’s mother and sister, on 8 April 1993, in order to find an open-care measure which would be practicable. According to the records of that meeting, no such practical measure had been proposed by any of the participants. The applicants had then been heard again on 21 April 1993 and had not objected to the placing of M. in a children’s home.", "20. In an opinion of 12 May 1993, requested by the Social Welfare Board, doctors M.L. and K.R. considered that K. was not at that time able to care for M., but that her mental state would not necessarily permanently prevent her from caring for him. Doctors M.L. and K.R. worked at the hospital of H., where K. had been cared for since 1991 during the periods indicated above.", "21. On 7 June 1993 it was reported by the social welfare authorities that, when K. and T. had come to the children’s home where M. was staying, the boy had undergone a total change in his behaviour, characterised by anger, hatred, swearing, etc. T. had said that he was really tired of the situation and that in his view K. was in need of hospitalisation. When a visit to the health centre had been suggested to her, she had become very angry.\nAccording to a statement of 22 June 1993 by the children’s home, K. and T. had come to the home on 17 June 1993. While T. had been playing with M., other children had come to tell the staff that K. had asked a 3-year-old girl what her name was. As the girl did not reply, K. had raised her voice and shaken the girl, not letting her go until an older girl had given the child’s name. The other children had been frightened by K.’s behaviour.", "22. On 11 June 1993 the social welfare official who had decided on 3 May 1993 to place M. in a children’s home informed the University Hospital of T. and the local hospital of S. in writing that she was very worried about the health of K. and the baby she was carrying. She requested the hospitals to contact her as soon as K. arrived at the hospital and, more particularly, at the time of the baby’s delivery. She also expressed the wish that health-care professionals should pay special attention to the relationship between the mother and the new-born baby from the very beginning.", "23. On 18 June 1993 K. was taken to a district hospital, where she gave birth to J. on the same day. According to the hospital records, the mother stayed calm during the delivery. After the delivery a written decision concerning an emergency care order was served on the hospital. The child was taken to the children’s ward. The mother’s behaviour in the ward was later found to be somewhat restless but not completely disorderly. The hospital records indicate that she understood the situation and wanted to leave hospital the following day. Medication to prevent the secretion of milk was prescribed. It seems that K. left the hospital on 19 June 1993, that is, the following morning, without any post-natal examination. She went to her mother’s home, where she started pushing an empty pram around the place.", "24. J. was immediately placed in emergency care, pursuant to section 18 of the 1983 Act. After the birth of their child, K. and T. were informed of this decision by two social workers at the hospital of H. The Social Director, who had made the decision on behalf of the Social Welfare Board, noted that K.’s mental state had been unstable during the last stages of her pregnancy. He considered that the baby’s health would be endangered since K. had found out about the plans to place the baby in public care. Lastly, he considered that the baby’s father, T., could not guarantee its development and safety. In addition the Social Director referred to the family’s long-standing difficulties, namely, K.’s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children, T.’s inability to care for both J. and K., K.’s reluctance to accept guidance, the impossibility of putting the whole responsibility for J.’s development on T., and the impossibility of providing open-care support measures to the necessary extent. The applicants were not heard prior to the decision. On 24 June 1993 the applicants were notified in writing of the decision to take the new-born baby into public care. The notification was also faxed to K.", "25. On 21 June 1993 the Social Director also placed M. in emergency care, citing principally the same reasons as in his decision of 18 June 1993 concerning J.", "26. The applicants did not appeal against the emergency care orders.", "27. On 21 June 1993 the Social Welfare Board took note of the emergency care orders and prohibited all unsupervised access between K. on the one hand, and J. and M. on the other. The number of supervised visits, however, was not restricted. The Board decided to continue preparations for taking M. and J. into care.", "28. A meeting was held by social workers at the family centre on 21 June 1993, before the arrival of the baby from the hospital and in the absence of the applicants. It is mentioned in the report that there was a plan to prohibit the mother’s visits for a month on the ground that her reactions could not be predicted as she had, for example, broken things at home. After this initial period she would be allowed to visit the baby without restriction, but accompanied by her personal nurse. However, this plan was not implemented. The following entry appears in the register for 24 June: “The mother may come with her personal nurse if she wants. Other visitors not allowed for the time being.”", "29. K. was asked to come with T. to the social welfare office on 22 June 1993 at 11.30 a.m. in order to be informed of the decision of 21 June 1993 by the Social Director concerning M. On 24 June 1993 K. and V. (M.’s biological father) were notified in writing of the decision of 21 June 1993. The notification was also faxed to K.", "30. On 22 June 1993 K. was hospitalised voluntarily at the hospital of H. on account of psychosis, having obtained a referral from a doctor at a health care centre. She was treated there until 30 June 1993.", "31. On 23 June 1993 J. was placed in the family centre. T. visited her the same day.", "32. At the beginning of July 1993 T. left the applicants’ home, having been told by the social welfare officials that he had to break off his relationship with K. “if he wanted to keep” J. The applicants nevertheless continued their relationship.", "33. On 15 July 1993 the Social Welfare Board gave its decisions taking J. and M. into “normal” public care, giving reasons similar to those mentioned in the emergency care orders (see paragraph 24 above), and prolonged the access restriction until 15 September 1993. K. was allowed to see the children only in the company of her personal nurse. The Board essentially considered that K.’s state of health remained unstable; that she was subject to aggressive and uncontrolled emotional moods; and that public care proceedings were a severe mental ordeal for a patient. As regards J., the Board therefore believed that her personal security could be jeopardised if access were to take place without supervision. As regards M., the Board feared that K.’s visits to the children’s home “could no longer be supervised by its staff, which would not be in his interest”. Before the decisions of 15 July 1993 the applicants had been heard and had expressed their objection to the care decisions envisaged.", "34. On 15 July 1993 K. visited both her children, accompanied by her personal nurse. The register indicates that it was “a difficult situation”.", "35. On 19 July 1993 T. moved to the family unit of the family centre with J.", "36. On 20 July 1993 K. was again hospitalised in voluntary care at the open ward of the hospital of H., suffering from psychosis. She left hospital the following day, however. On 26 July 1993 she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care. On 30 July 1993 she was committed to compulsory psychiatric care. According to the file, her relatives had earlier been worried about her and had contacted the hospital in order to get her into hospital care. They reported that K. had disappeared from her home, where she had behaved in an unsettled and aggressive manner. Her hospitalisation lasted until 27 October 1993, that is, three months.", "37. During the period between 18 June and 31 August 1993 K. visited her children at their respective children’s homes. During the visits she was accompanied by her personal nurse from the hospital, who was in contact with the social welfare authorities and arranged the visits having regard to K.’s state of mental health. According to the centre’s register, she visited J. twice during this period.", "38. According to a statement made by a social worker on 4 August 1993, T. had taken good care of J., first at the hospital until 23 June 1993 and later on at the family centre. It was agreed that J. would stay at the family centre and that T. would visit her every other day. J. would visit her father for the first time from 13 to 15 August 1993, during which time T. would organise her christening. The intention was that the baby could move in with her father later on.", "39. After T.’s paternity had been established on 13 July 1993, T. and K. were granted joint custody of J. on 4 August 1993.", "40. T.’s travel expenses to the centre were paid for by the social welfare authorities. From the centre’s records it can be deduced that T. succeeded in creating a relationship with the baby and learned to take good care of her. The home leaves were spent with T. first at his mother’s house and later in his new home.", "41. On 12 August 1993 the Social Welfare Board referred both public care orders to the County Administrative Court (lääninoikeus, länsrätten) for confirmation, as the applicants had opposed them. In support of its referrals, the Board submitted a statement by a social welfare official dated 25 August 1993, according to which T. would not be able to care both for M. and the new-born J. alone, since K. was living in the same home and had been psychotic for the last four years. T. had been in contact with J. at the children’s home three to four times a week. While staying in a flat attached to a municipal children’s home, he had cared for J. for two whole weeks and had subsequently cared for her three days a week in his new home. The Board had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by the Board.", "42. On 9 September 1993 the County Administrative Court confirmed the care order concerning J., considering that K. had been mentally ill; that the applicants had had conflicts “as a result of which T. had moved away from their home at the beginning of July 1993”; that because of K.’s illness and the family’s other problems the applicants had been unable to provide J. with adequate care; that the care support provided to the family had not sufficiently improved the family’s situation and that the measures could not be expected to satisfy J.’s care needs. No hearing was held.", "43. On 11 November 1993 the County Administrative Court confirmed the care order concerning M., repeating the reasons put forward in its decision of 9 September concerning J. No hearing was held.", "44. In an appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the confirmation of the public care order concerning M., the applicants were represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of S. The Supreme Administrative Court dismissed the appeal on 23 September 1994.", "45. On the same date the Supreme Administrative Court extended the time allowed for an appeal by K. against the confirmation of the care order made in respect of J.", "46. On 18 October 1994 K. appealed against the care order in respect of J. as confirmed by the County Administrative Court on 9 September 1993. On 21 August 1995 the Supreme Administrative Court granted K. cost-free proceedings as from 1 March 1994, appointed Ms Suomela as her representative and upheld the County Administrative Court’s decision of 9 September 1993.", "47. By a decision of 21 January 1994 the Social Welfare Board placed J. in a foster home in K., a town some 120 km away from the applicants’ home. M. joined her on 7 February 1994. The foster parents had no children of their own. Social welfare officials told the applicants and the foster parents that J.’s and M.’s placement would last “for years”. The applicants had proposed that the children’s public care be implemented in the homes of relatives.", "48. In the meantime, on 15 August 1993, J. was christened in the presence of K., T. and M.", "49. A consultation was held at the children’s home, on 18 August 1993, in the presence of T. According to the records, K.’s mental health was very unstable and her psychiatric treatment was expected to have to be continued for four to five years. T., however, had expressed his hopes that K. and he could, together, take care of J. in the future. It was agreed that J. would stay at the children’s home and would visit T. every week from Thursday until Saturday, beginning on 28 August 1993. T. would visit J. on other days, according to an arrangement to be agreed with the children’s home.", "50. On 14 September 1993 the Social Welfare Board prolonged the access restriction until 15 December 1993.", "51. The following notes of a social welfare official appear among those in the case records of the Social Welfare Board:\n“14 September 1993:\n… 2. ... In addition, the importance of future access between J. and T. has now been questioned, since J.’s placement in [public foster care] is under preparation. It will be difficult for T. to give up J. ...”\n“13 October 1993:", "52. On 27 October 1993 K. was discharged from the hospital of H.", "53. On 2 February 1994 the Social Welfare Board drew up a plan concerning the implementation of the public care. The applicants’ alternative plan was allegedly ignored. For instance, the children could not meet their maternal grandmother at her home.", "54. After the adoption of the care plan on 2 February 1994, the applicants requested a relaxation of the access restriction. For example, T. had been permitted to see J. only once a month.", "55. On 21 March 1994 the applicants requested, inter alia, that the Social Welfare Board should draw up a public care plan aiming at the reunification of the family.", "56. On 3 May 1994 the social welfare authorities organised a meeting in order to revise the care plan of 2 February 1994. The applicants and their representative did not attend the meeting.", "57. On 17 May 1994 the Social Director restricted both applicants’ access to the children to one monthly visit at the foster home, to take place under supervision and last three hours. The Social Director considered that the grounds for public care still existed. In his view, although the applicants were dissatisfied with the visits set out in the care plan, affording the children an unlimited right to see their parents would create an obstacle to their successful placement. The applicants appealed.", "58. On 28 September 1994 the County Administrative Court held an oral hearing concerning the access restriction imposed on 17 May 1994. It took evidence from two psychiatrists, who had interviewed K. One of them, Dr T.I.-E., did not know K. personally but commented on a diagnosis concerning her mental state by indicating that K. had a tendency to react in a psychotic manner to conflict situations. Dr K.P. stated that K.’s state of health did not prevent her from caring for her children. Consequently, if her illness had been the reason for the access restriction, that reason no longer existed.", "59. In a written expert opinion, requested by the Social Welfare Board and submitted to the County Administrative Court, Dr E.V., a child psychiatrist, expressed the opinion that the children should be permanently cared for by the foster parents and that the applicants’ visits should, for the time being, be discontinued so as to protect the children and the foster parents. According to the applicants, Dr E.V. had not met them or the children, nor had he consulted the other psychiatrists before making his proposal.", "60. On 11 October 1994 the County Administrative Court upheld the access restriction issued on 17 May 1994. It noted that neither of the witnesses who had been heard orally had been willing to state any opinion as regards the children’s development. It reasoned, inter alia, as follows:\n“... [By allowing] access to take place once a month and [by allowing contact through correspondence] it will be ensured that the children will retain knowledge about their biological parents. If the grounds for public care later cease to exist, a reunification of the family will thus be possible. ...”", "61. The County Administrative Court dismissed the applicants’ request for exemption from costs, since the relevant legislation did not cover disputes concerning access restrictions. At the court’s hearing, the applicants were nevertheless assisted by Ms Suomela.", "62. On 26 May 1994 the applicants requested that the Social Welfare Board discontinue the public care of M. and J.", "63. On 18 September 1994 the Social Director allegedly told the applicants that any further children born to them would also be placed in public care. According to the Government, the Social Director only told them, when expressly asked, that it was possible that any further children born would be taken into public care.", "64. In an opinion of 22 September 1994 submitted at the Social Welfare Board’s request, Dr K.P., a psychiatrist, commented on the possibility of revoking the public care orders. She concluded that K.’s mental state would not prevent her from having custody of the children. According to Dr K.P., K.’s efforts to have public care discontinued and access restrictions relaxed showed that she possessed psychological resources. She noted, inter alia, that T. was K.’s closest support in the care and upbringing of the children. In addition, K.’s mother, at the time her guardian ad litem, was ready to help in caring for them. Dr K.P., however, added that she could not, as a psychiatrist for adults, take any stand as regards the interests of the children. Dr K.P.’s opinion was also based on a report submitted by Dr K.Po., a psychologist, who had come to the same conclusion as regards K.’s ability to have custody of her children.", "65. The Public Legal Adviser advised against requesting revocation of the care orders.", "66. K. was hospitalised from 15 to 24 February and from 11 April to 29 May 1995, apparently on account of psychosis.", "67. On 14 March 1995 the Social Welfare Board rejected the applicants’ request of 26 May 1994 that the care order be revoked, stating as follows:\n“At the moment the health of the children’s mother, K., is better and the family situation has changed in other respects in comparison with the situation in 1993 when the decisions to take the children into care were made.\n...\nAccording to Dr K.P., a psychiatrist, K. still has ‘a lot of instability’ in her emotional life as well as fragility, brought about by the last five years’ experiences and the diagnosis of mental illness for which she needs – and will need for a long time to come – therapeutic support and treatment. A regular medication is also needed in order to guarantee her continued well-being and to make it possible for her to manage in open care and to have custody of her children. Dr K.P., however, did not give her more precise opinion as to K.’s ability to take care of and bring up her children even though Dr K.P. was explicitly asked to give such an opinion.", "68. The applicants appealed on 5 April 1995, requesting that they be granted exemption from costs and afforded free legal representation. They also requested an oral hearing.", "69. On 7 April 1995 a further child, R., was born to the applicants. Having given birth, K. left the hospital for a while on the same evening with the new-born baby wrapped in a blanket, walking barefoot in the cold weather until the hospital staff realised what had happened and intervened.", "70. On 13 April 1995 K. was committed to compulsory psychiatric care and treated at the hospital of H. until 29 May 1995, while R. was being cared for by T. According to a psychiatrist’s observation of 10 April 1995, K. “must have been suffering from paranoid schizophrenia for some time”.", "71. On 15 June 1995 the County Administrative Court granted the applicants exemption from costs and appointed Ms Suomela as their representative in the case concerning their appeal against the Social Welfare Board’s decision of 14 March 1995. It decided not to hold a hearing in respect of the applicants’ request for a revocation of the care orders and provided the parties with an opportunity to supplement their written observations.", "72. On 28 September 1995 the County Administrative Court rejected the applicants’ appeals of 5 April 1995 without holding an oral hearing. The court noted, inter alia, that according to the medical certificates, K.’s state of health had improved but her emotional life was still unstable. She therefore continued to be in need of psychotherapy and medication. In addition, a further child had been born to the applicants and K. had again been treated at the hospital of H. These two factors had caused an additional strain militating against a revocation of the care orders.", "73. On 17 November 1994 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K., where the foster parents were living. The applicants objected to this proposal, considering that it would have entailed a further restriction of their access to the children. Instead, they requested two meetings a month, one of which was to be at their place of residence. On 22 December 1994 they asked for a separate written decision concerning their access request, so that they could appeal against it.", "74. In a letter of 22 December 1994 the Social Director informed the applicants that there were no longer any grounds for the access restriction. Meetings between the applicants and the children were nevertheless only authorised for three hours once a month on premises chosen by the Social Welfare Board. They were also informed that the meetings would be supervised.", "75. In his decision of 11 January 1995 the Social Director confirmed that there were no longer any grounds for the access restriction. On 31 January and 28 February 1995 the Social Welfare Board confirmed the decision of 11 January 1995. The applicants appealed.", "76. As regards the applicants’ appeal against the Social Welfare Board’s decisions of 31 January and 28 February 1995, the County Administrative Court considered, on 15 June 1995, that the revised care plan drawn up on 17 November 1994 had already entailed an access restriction which had later been renewed by further decisions, without the applicants having been properly heard, in respect of their access request. The matter was referred back to the Social Welfare Board for further consideration.", "77. In the light of the County Administrative Court’s decision the Acting Social Director, on 28 June 1995, formally restricted the applicants’ access to the children to one meeting a month up to 31 May 1996. The meetings were to take place in the foster home. In addition, the foster parents were to visit the applicants with the children every six months. The Director considered, inter alia, that it was important that the children settle themselves in the foster family environment in which they would grow up. Closer contacts with their parents would mean change and insecurity as well as the creation of a new crisis in their development. The process of settling which had started well would be jeopardised. For the children’s progress it was therefore necessary that their situation remain stable and secure. The Director’s decision was confirmed by the Social Welfare Board on 22 August 1995. The applicants appealed.", "78. On 3 November 1995 the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed on 22 August 1995.", "79. On 25 May 1996 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on the premises of a school at the children’s place of residence. As the applicants were not present when the proposal was made, the care plan was again revised on 9 October 1996 in so far as the access restriction was concerned. The applicants then proposed that the children meet them without supervision once a month. The public care plan was, however, revised as proposed by the social welfare officials.", "80. On 17 June 1996 the Social Director restricted both applicants’ access to the children, until 30 November 1997, to one monthly visit on the premises of a school at the children’s place of residence, where access was to take place under supervision for three hours. One of the foster parents was also ordered to be present at the time of the access. The Social Director’s decision was confirmed by the Social Welfare Board on 20 August 1996. The applicants’ appealed against the decision to the County Administrative Court, requesting an oral hearing. The court obtained a statement from a child psychiatrist, Dr J.P., who was also recommended by the applicants’ representative to the Social Welfare Board. Dr J.P.’s statement included the following observations:\n“The right of access of M. and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and their health. This requires an examination of the quality, permanence and durability of their human relationships, because psychological growth and development take place in interaction with human relationships. In my opinion, the human relationships are to be examined from the children’s point of view. ...\n... In conclusion, I note that before M. was placed in the children’s home ... the mother had been in psychiatric hospital for treatment eight times, making a total of thirteen months. Thus, M. had lived with his mother for forty-five months, namely, three years and nine months. The longest that they spent together was two years and one month. ... T. has, as ‘stepfather’, helped to look after M. for at most ten months. ... the foster parents have so far looked after M. for three years and three months without interruption. ... In practice, M. has not had any kind of relationship with his biological father ... \nIn the light of the above, I note that the human relationships in M.’s early childhood have, owing to the circumstances, been non-continuous, short-term and changing. The most stable and continuous relationships have been with his foster parents ... Therefore, these relationships are the most relevant and important ones for M.’s psychological growth and development.\n... J. was born in June 1993. She was taken into public care immediately after she was born. At first, she stayed in the district hospital for a short time, and later at a reception home for small children. T., as the biological father of J., looked after her for two weeks in June and August 1993. J. was placed in the foster family ... in January 1994, when she was some seven months old. So far, J. has stayed with her foster family for some three years and three months without interruption. J. is now a little over 3 years and 10 months old.\nIn the light of the above, I note that, due to the circumstances, J. has not had any significant and important relationships other than those with her foster parents. J.’s relationship with her foster parents is of primary importance for her psychological growth and development. ...\n... From the children’s point of view, especially, but naturally also from that of the foster parents, the foster family is a family to which the principles concerning family life enshrined in the United Nations Convention on the Rights of the Child and in the European Convention on Human Rights can be applied in the same way as to biological families. This point of view is especially important when, due to the circumstances, the biological family has not lived together.\nIn the light of the above, I note that the arrangements for helping and supporting the foster parents of M. and J. are in the best interests of the children. The arrangement will, in the first place, ensure the important, continuous and safe human relationships of M. and J. with their foster parents ...\nIt is also important for M. and J.’s psychological growth and development that, in the safe and stable conditions provided by the foster family, they are able to form and maintain a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances.\nIn my opinion, this can be done by complying with the decision of the Social Welfare Board of S. of 20 August 1996 concerning the right of access. At present, an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interests of the children, because K. and T. are not capable of meeting the emotional needs of M. and J. ... Such arrangements concerning the right of access would clearly endanger the health and development of M. and J. In my opinion, the question of an unrestricted right of access should be evaluated when the children have attained the age of 12.”", "81. In a statement of 10 September 1996 Dr K.P. stated that in her opinion K.’s psychiatric state did not preclude K.’s having custody of her daughter R.", "82. On 2 April 1997 the care plan was again revised by the social welfare authorities. The applicants had been informed of the time of the meeting concerning the revision of this care plan on home visits on 15 January and 10 March 1997. Their representative had also been informed of the meeting by a letter sent on 10 February 1997. The applicants did not attend the meeting, and neither did their representative. The applicants were thus not explicitly heard in this connection but, as they had expressed their opinion on other occasions, the authorities recorded their point of view in the plan.", "83. On 12 June 1997 the County Administrative Court rejected the applicants’ appeal against the Social Welfare Board’s decision of 20 August 1996 to restrict the applicants’ access right (see paragraph 80 above). It refused the applicants’ request for an oral hearing.", "84. Although the applicants had stated only in their reply that the appeal was also made on R.’s behalf, the County Administrative Court found in its decision that it was in part made in her name. The court stated that a person to whom a decision was directed, or upon whose right, duty or interest it had a direct effect, had the right of appeal. The court considered that the Board’s decision, which concerned R.’s siblings’ and parents’ right of access, was not such a decision.", "85. On 28 November 1997 the Social Director restricted the applicants’, and consequently their youngest child R.’s, access to J. and M. to one monthly visit of three hours on the premises of a school at the children’s place of residence until the end of 1998. The applicants did not appeal.", "86. The care plan was again revised on 1 December 1998.", "87. According to a statement made on 3 July 1998 by Dr K.M. (formerly Dr K.P.), K. had not been hospitalised since May 1995 and her health had been stable since the beginning of 1995. There had been no problems concerning the care of R. (who had lived with her parents all the time and had not been taken into care). It was recommended by Dr K.M. that the social welfare authorities should reduce or discontinue control visits to the applicants’ home in order to give K. the possibility of settling down to normal life without constant supervision by the authorities.", "88. The restriction orders were extended by the Social Director on 11 December 1998, until the end of 2000. The visits were to take place under supervision on the premises of a school at the children’s place of residence. However, one of the visits was to take place at the applicants’ home in the presence of the foster parents. The Social Director considered, inter alia, that the reunification of the family was not in sight as the foster family was now the children’s de facto home; that the applicants’ access to the children once a month and through correspondence was enough to maintain the children’s awareness of their biological parents; and that closer contacts with the applicants would endanger the children’s development, bring change and insecurity and create a new crisis in their development. The applicants appealed against this decision to the Social Welfare Board which, on 2 February 1999, rejected the appeal and upheld the Social Director’s decisions. In its reasoning, the Board quoted both the County Administrative Court and Dr J.P.", "89. According to the reports drawn up by the supervisor who attended the meetings of the children and the applicants during the period from 25 May 1996 to 10 January 1999, the adults got on quite well together during the meetings. J. often played games with M. When R. was smaller, J. played by herself, but later it seemed that the girls, J. and R., spent more time together. On the other hand, it seemed that the first applicant made very little contact with J. and M. According to the supervisor’s description, especially in the earlier reports, the first applicant seemed to have concentrated on R.", "90. M. visited K. and T. at their home for the weekend of 21 to 23 July 2000 without supervision.", "91. The applicants appealed against the Social Welfare Board’s decision of 2 February 1999, concerning the right of access, to the Administrative Court (formerly the County Administrative Court). An oral hearing, at which M. was also heard, was held on 3 October 2000. In its decision of 13 October 2000 the administrative court upheld the Social Welfare Board’s decision.", "92. The social authorities reviewed the care plan on 23 November 2000, having consulted the applicants, among others. It was decided that the children would remain in the foster home. According to the care plan, M. and J. are allowed to meet K. and T and others close to them, as from 1 January 2001 until 31 December 2001, without supervision once a month alternately at the applicants’ home and the foster parents’ home. The meetings at the applicants’ home will take place from Saturday 11 a.m. until Sunday 4 p.m., and the meetings at the foster parents’ home on Sundays, from 11 a.m. until 5 p.m. The children are also allowed to meet their other relatives freely during those meetings. In addition to the above, the children will also spend a day and a night with the applicants each Christmas, and two weeks each summer during their school holidays.", "93. J. and M.’s foster mother died in May 2001." ]
[ 4 ]
[ "9. The applicant is the monarch of Liechtenstein, born in 1945 and living in Vaduz (Liechtenstein).", "10. The applicant’s late father, the former monarch of Liechtenstein, had been the owner of the painting Szene an einem römischen Kalkofen (alias Der große Kalkofen) of Pieter van Laer, which had formed part of his family’s art collection since at least 1767. Until the end of the Second World War the painting had been in one of the family’s castles on the territory of the now Czech Republic.", "11. In 1946 the former Czechoslovakia confiscated the property of the applicant’s father which was situated in its territory, including the painting in question, under Decree no. 12 on the “confiscation and accelerated allocation of agricultural property of German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people” (dekretu prezidenta republiky č. 12/1945 Sb. o konfiskaci a urychleném rozdělení majetku Němců, Mad’arů, zrádců a nepřátel), issued by the President of the former Czechoslovakia on 21 June 1945 (“the Beneš Decrees” – “Benešovy dekrety”).", "12. On 21 November 1951 the Bratislava Administrative Court (správní soud) dismissed the appeal lodged by the applicant’s father. \nIn its reasoning on the merits of the case, the Administrative Court stated that the defendant office had come to the conclusion that the appellant was a person of German nationality within the meaning of the provision in Article 1 § 1 (a) of the decree, on the basis of a finding that this was and had been generally known. It noted that the defence of the complaint directed against this finding was restricted to the representation that this finding was not supported in the files and that, due to this shortcoming, it had not been necessary to deal with the finding in greater detail. The Administrative Court considered that this approach was mistaken as, under the relevant provision of the administrative regulations, no evidence was required for facts which were generally known and, therefore, it was not necessary for evidence to be contained in the administrative files; however, counter-evidence against an official finding that a certain fact was generally known would have been admitted. \nThe Administrative Court concluded that, as the appellant had failed to raise the objection that the issue was not a fact of general knowledge and to contend that he was in a position to bring counter-evidence, the finding of the defendant office had remained uncontested.", "13. In 1991 the municipality of Cologne obtained the painting as a temporary loan from the Brno Historical Monuments Office in the Czech Republic.", "14. On 11 November 1991 the Cologne Regional Court (Landgericht) granted the applicant’s request for an interim injunction ordering the municipality of Cologne to hand over the painting to a bailiff at the end of the exhibition. The painting was sequestrated on 17 December 1991.", "15. At the beginning of 1992 the applicant instituted proceedings before the Cologne Regional Court against the municipality of Cologne, requesting that the defendant consent to the delivery of the painting to him by the bailiff. He argued that, as his late father’s heir, he was the owner of the painting. He submitted that the painting had not been subject to expropriation measures in the former Czechoslovakia and that in any event such measures were invalid or irrelevant on account of violation of the ordre public of the Federal Republic of Germany.", "16. The Brno Historical Monuments Office intervened in these proceedings in support of the defendant. It submitted that the applicant’s father had lost his ownership of the painting as a result of the confiscation in 1946 and that the lawfulness of this confiscation had been confirmed by the Bratislava Administrative Court in its decision of 21 November 1951.", "17. On 10 October 1995 the Cologne Regional Court, following a hearing, declared the applicant’s action inadmissible. In the court’s view, Chapter 6, Article 3, of the Convention on the Settlement of Matters Arising out of the War and the Occupation (Vertrag zur Regelung aus Krieg und Besatzung entstandener Fragen – “the Settlement Convention”) of 23 October 1954 between the United States of America, the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Federal Republic of Germany excluded German jurisdiction over the applicant’s case. \nIn its reasoning, the Regional Court noted that, under the terms of that Article’s paragraph 3 taken in conjunction with paragraph 1, claims or actions against persons having acquired or transferred title to property on the basis of measures carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution, or as a result of the state of war, or on the basis of specific agreements, were not admissible. These particular provisions had been confirmed upon German unification.\nAccording to the Regional Court, Chapter 6, Article 3 § 3, of the Settlement Convention applied, mutatis mutandis, to the applicant’s claims against the defendant, which had obtained the painting on loan and had not acquired property, because any review of the aforementioned measures should be excluded.\nThe Regional Court found that the confiscation of the applicant’s father’s property under Decree no. 12 on the “confiscation and accelerated allocation of agricultural property of German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people”, issued by the President of the former Czechoslovakia on 21 June 1945, constituted a measure within the meaning of Chapter 6, Article 3 § 3. \nThe Regional Court rejected, in particular, the applicant’s argument that this provision did not apply as it only concerned measures carried out with regard to German external assets or other property and his father had never been a German citizen. In this respect, the court, referring to case-law of the Federal Court of Justice (Bundesgerichtshof), stated that the view of the confiscating State was decisive. The aim and purpose of this provision, namely to sanction, without any further examination, confiscation measures implemented abroad could only be achieved by excluding such measures from judicial review in Germany.\nMoreover, the Regional Court found that the confiscation measure in question pursued one of the purposes mentioned in Chapter 6, Article 3 § 3. Having regard to German case-law regarding other “Beneš Decrees”, especially Decree no. 108 on the “confiscation of enemy property and the national reform fund”, it considered that Decree no. 12, while also pursuing economic aims, was intended to expropriate the property of German and Hungarian nationals, that is, “enemy property”.\nThe Regional Court further noted that the applicant’s father’s painting had been expropriated under Decree no. 12. The competent Czechoslovakian authorities had interpreted its provisions as applying to the applicant’s father, regarding him as a “person of German nationality”. The applicant’s father had unsuccessfully appealed against this decision which had been confirmed by the Bratislava Administrative Court in 1951. The German courts were not in a position to review the lawfulness of the confiscation at issue.\nFinally, the Regional Court considered that the painting at issue, as part of the inventory of the agricultural property, had been included in the confiscation measure. \nThe Regional Court dismissed the applicant’s request to suspend the proceedings in order to await the outcome of proceedings to be instituted under the German Equalisation of Burdens Act (Lastenausgleichsgesetz) concerning compensation for damage and losses due to, inter alia, expulsion and destruction during the Second World War and the post-war period in the then Soviet-occupied zone of Germany and of Berlin. The Regional Court considered that the question underlying the litigation before it would not be clarified in such proceedings. Irrespective of the question of whether the plaintiff was of German origin, he had no equalisation claims under the said legislation, which only applied to persons who resided in the Federal Republic of Germany or West Berlin on 31 December 1952. In any event, there was no right to compensation for the loss of works of art (Kunstgegenstände).", "18. On 9 July 1996 the Cologne Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. The Court of Appeal confirmed that the applicant’s action was inadmissible as German jurisdiction in respect of his claim was excluded under Chapter 6, Article 3 § 1, in conjunction with paragraph 3, of the Settlement Convention.\nThe Court of Appeal considered that the notion of German jurisdiction included the competence, derived from State sovereignty and generally vested by the State in the courts, to administer justice. German jurisdiction was delimited by international agreements, customary international law and the generally recognised rules of international law. Chapter 6, Article 3 § 3, taken in conjunction with paragraph 1, of the Settlements Convention excluded German jurisdiction in respect of claims and actions against persons, who, as a consequence of reparation measures, had directly or indirectly acquired title to German property confiscated abroad.\nThe Court of Appeal confirmed that the provisions in question continued to be in force under the Treaty of 12 September 1990 on the Final Settlement with respect to Germany. Article 7 of this Treaty, which provided for the termination of the operation of quadripartite rights and responsibilities with respect to Berlin and Germany as a whole, was amended by the Agreement of 27 and 28 September 1990 according to which the Settlement Convention was suspended and later terminated with the exception of the provisions specified in paragraph 3 of that Agreement, inter alia, Chapter 6, Article 3 §§ 1 and 3. That Agreement was valid under public international law and under German constitutional law.\nThe Court of Appeal further considered that Chapter 6, Article 3 § 3, of the Settlement Convention applied in the applicant’s case. In the court’s view, this provision was the procedural consequence of the notion that the legal relations resulting from the liquidation of German property abroad by foreign powers for the purpose of reparation were “final and unchallengeable” (Endgültigkeit und Unanfechtbarkeit) for the Federal Republic of Germany and the private persons concerned. \nAccording to the Court of Appeal, the applicant’s constitutional rights, in particular his right to property, his right of access to a court and his right to a decision by the legally competent court (gesetzlicher Richter), had not been infringed. Basic rights protected individuals against acts of domestic public authorities and not against the exercise of public authority by a foreign State abroad. The domestic legislator was therefore not prevented from limiting domestic legal protection against violations of basic rights by a foreign State if this was necessary to attain more important goals.\nWhen applying Chapter 6, Article 3 § 3, of the Settlement Convention, the domestic law of the expropriating State concerning the concrete confiscation measure had to be taken into account, as this provision was aimed at excluding litigation in Germany regarding confiscation measures based on legislation concerning enemy property. \nAs regards the applicant’s objections against the lawfulness, in particular under public international law, of the confiscation and expropriation of his father’s property, the Court of Appeal found that by virtue of Chapter 6, Article 3 § 3 of the Settlement Convention, German courts had no jurisdiction. Likewise, this provision did not allow recourse to be had to general rules of public international law or to German ordre public when examining the admissibility of the action. The applicant’s argument that the provisions of the Settlement Convention and their application to him as a national and head of a neutral State violated the law of peace was accordingly rejected.\nAccording to the Court of Appeal, the painting at issue constituted external assets within the meaning of Chapter 6, Article 3 § 1, of the Settlement Convention, referred to in paragraph 3 of Article 3. The Court of Appeal noted that the applicant’s father had indisputably never had German nationality. However, following the case-law of the Federal Court of Justice, it considered that the notion of “German external assets” had to be interpreted in the light of the law of the expropriating State. The confiscation in dispute had been found to be in compliance with the legislation of the expropriating State: the competent Czechoslovakian administrative authorities as well as the Bratislava Administrative Court had found that Presidential Decree no. 12 of 21 June 1945 applied to the applicant’s father’s confiscated property. Article 1 § 1 (a) of this decree provided for the confiscation of agricultural properties of “all persons of German or Hungarian nationality” irrespective of their citizenship. The notions of “German nationality”, or of “German origin” (“deutsche Volkszugehörigkeit”), likewise used at that time, comprised as relevant elements a person’s citizenship and nationality, the latter depending on the mother tongue. At the relevant time, the Czechoslovakian authorities indisputably regarded the applicant’s father as of German origin in that broader sense.\nThe Court of Appeal also found that the painting at issue, as part of the confiscated agricultural property, had been subject to the expropriation measure. There were no doubts as to the effectiveness of the expropriation, as it was sufficient under the relevant case-law that such expropriations had been implemented and that the previous owners had been deprived of their factual power of disposition. Furthermore, the painting had been confiscated for the purpose of reparation within the meaning of Chapter 6, Article 3 §§ 1 and 3, of the Settlement Agreement. The limitation of the confiscation measures to persons belonging to enemy States in itself justified such a conclusion. The assets of the persons concerned were confiscated as enemy assets. \nFinally, the Court of Appeal considered that both the defendant and the intervener belonged to the group of persons protected by Chapter 6, Article 3 § 3, of the Settlement Agreement. German jurisdiction was excluded whenever the plaintiff intended to challenge measures within the meaning of Chapter 6, Article 3 § 1.", "19. On 25 September 1997 the Federal Court of Justice refused to entertain the applicant’s appeal on points of law, as the case was of no fundamental importance and, in any event, had no prospect of success.", "20. On 28 January 1998 the Third Section of the Second Division (3. Kammer des zweiten Senats) of the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s constitutional complaint (Verfassungsbeschwerde), as it offered no prospect of success. \nThe Federal Constitutional Court considered in particular that, for the purposes of the civil court decisions, questions as to the existence or non-existence of certain rules of customary international law on the confiscation of neutral assets or on the determination of citizenship were irrelevant as they concerned the issue of the lawfulness of the expropriation by the former Czechoslovakia. The German civil courts had not decided this issue and, under public international law, they had not been obliged to do so. Moreover, to the extent that the civil courts had regarded the expropriation as a measure within the meaning of Chapter 6, Article 3 § 1, of the Settlement Convention, they had expressly refrained from qualifying the applicant’s father’s nationality. Their interpretation of the terms “measures with regard to German external assets” as comprising any measures which, in the intention of the expropriating State, were directed against German assets, could not be objected to under constitutional law. The bar on litigation did not constitute an agreement to the detriment of Liechtenstein, as only the Federal Republic of Germany and its courts were under this treaty obligation.\nThe Federal Constitutional Court further recalled that the exclusion of jurisdiction did not amount to a violation of the right of property as these clauses and the Settlement Convention as a whole served to settle matters dating back to a time before the entry into force of the German Basic Law (Grundgesetz) on 23 May 1949.\nFinally, there was no indication of arbitrariness or of a violation of other constitutional rights. The Federal Constitutional Court confirmed that Chapter 6, Article 3 §§ 1 and 3, of the Settlement Convention had not been set aside by the Treaty on the Final Settlement with respect to Germany: while Germany obtained full sovereignty, its obligations under treaties with the Three Powers were not affected. This had also been the legal opinion of the Federal Republic of Germany and the Three Powers, which otherwise would not have settled the suspension and termination of parts of the Settlement Convention in a separate agreement.\nThe decision was served on 2 February 1998.", "21. On 9 June 1998 the Cologne Regional Court discharged its interim injunction of 11 November 1991. The bailiff thereupon handed the painting over to the Cologne municipality, which had it returned to the Czech Republic." ]
[]
[ "9. In June 1949 plots of agricultural land owned by the applicant’s father were expropriated by the former Doksy District National Council (okresní národní výbor) under the Czechoslovak New Land Reform Act No. 46/1948 (“the 1948 Act”). The applicant’s father had never obtained any compensation. In 1957 some of these plots were transferred to the ownership of natural persons in an assignment procedure under the 1948 Act. In 1977 the applicant’s father died and the applicant’s rights over his estate were confirmed.", "10. After the fall of the communist regime in Czechoslovakia, the Act No. 229/1991 on Adjustment of Ownership Rights in respect of Land and Other Agricultural Property (“zákon o půdě”, the “Land Ownership Act”) entered into force on 24 June 1991. The Act provided that the 1948 Act was no longer applicable and that under certain conditions property confiscated pursuant to that Act without compensation could be returned to its former owners or their heirs if it was still in the possession of the State or of a legal person. However, if such property had been transferred into the possession of natural persons, the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation.", "11. On the basis of the Land Ownership Act, the applicant entered into restitution agreements with two legal persons (the Hradec Králové State Forest Enterprise and the Líny – Krásná Ves Agricultural Cooperative) on 10 December 1993 and 4 May 1994 respectively. By two decisions of 12 October 1994 the Mladá Boleslav Land Office (pozemkový úřad, “the Land Office”) refused to approve the restitution agreements. Referring to section 32(3) of the Land Ownership Act, it found that some of the plots had been assigned to different owners pursuant to the 1948 Act, and that these owners, being natural persons, had proved their property rights by showing their deeds of assignment. The Land Office based its decisions on the following documents: the decision of the former Mladá Boleslav State Notary (státní notářství) of 26 May 1977 on the applicant’s father’s inheritance, the decision of the former Doksy District National Council of 7 June 1949 on the expropriation of the applicant’s father’s property, the record of the former Líny Local National Council (místní národní výbor) of 7 November 1949 on the proceedings on the applicant’s father’s appeal against the expropriation, the decision of the former Liberec Regional National Council (krajský národní výbor) of 29 November 1949 by which the decision of expropriation had been modified, and an extract (výpis) from the land register (pozemková kniha) relating to the Líny and Krásná Ves Districts. The Land Office had also at its disposal copies of the deeds of assignment made out by the Mladá Boleslav Land Register Office (katastrální úřad) on 23 September 1994.", "12. It appears from the text of the invitation issued by the Land Office on 28 September 1994 that the latter scheduled a hearing for 12 October 1994 to which the applicant and his lawyer were invited, together with the representatives of the State Forest Enterprise, the agricultural cooperative and representatives of the Mladá Boleslav Land Fund (Pozemkový fond). According to the record of the hearing, only the applicant and the representatives of the State Forest Enterprise and of the agricultural cooperative attended the hearing. The applicant refused to make any comments on the issue of the administrative proceedings and did not sign the record. The representatives of both legal persons left the hearing before the end.", "13. On 11 November 1994 the applicant lodged appeals with the Prague Municipal Court (městský soud, “the Municipal Court”) against the two administrative decisions. He claimed the restitution of the entire property, contesting that the acquisition of part thereof had been proven by the natural persons concerned and requesting access to the respective deeds of assignment.", "14. On 31 May 1995 the Municipal Court joined both appeals and upheld the administrative decisions of 12 October 1994. It held that the Land Office had correctly refused to approve the restitution agreements as a whole as they also covered property whose ownership had been transferred to natural persons and thus could not be returned to the original owner. This had been established on the basis of all relevant documents including the deeds of assignment, which were included in the administrative files. The applicant could have consulted them at any time during the administrative proceedings if he had wished to do so as provided for in section 23(1) of the Code of Administrative Procedure. The Municipal Court considered that no hearing was necessary in the applicant’s case, as the facts had been correctly established by the administrative authority and only points of law were in issue before it. In this respect, it referred to section 250(f) of the Code of Civil Procedure.", "15. The case was referred back to the Land Office pursuant to section 9(3) of the Land Ownership Act (see paragraph 25 below) which gave a new decision on 25 July 1995. In accordance with the opinion of the Municipal Court, by which it was bound by virtue of section 250(r) of the Code of Civil Procedure, the Land Office confirmed the applicant’s property rights in respect of those plots which had not been transferred to natural persons under the 1948 Act. At the same time, it informed the applicant that he could seek compensation under section 11 or 16 of the Land Ownership Act for the plots which could not be returned to him.", "16. On 14 September and 15 October 1995 the applicant lodged a constitutional appeal (ústavní stížnost) claiming inter alia that his property rights had been violated, that he had not been able to put forward further evidence and that the Municipal Court had not informed him about its decision to join both cases. He invoked inter alia Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).", "17. On 29 November 1995 the Constitutional Court (Ústavní soud) rejected the applicant’s appeal as manifestly ill-founded. It considered that the applicant’s constitutional rights to a proper court procedure had not been violated by the manner in which the Municipal Court had dealt with his appeal. Having regard to the special nature of the judicial review of administrative decisions, the court’s function was limited to a legal reassessment of the case on the basis of the facts established by the administrative authority. The applicant had not invoked evidence disregarded by the Land Office and, by merely articulating his discontent with the latter’s decision, had not raised any valid objection to the facts as established by it. Furthermore, according to the Constitutional Court, the Municipal Court had not infringed constitutional law by deciding the case without a hearing as this was lawful under section 250(f) of the Code of Civil Procedure when the case involved only the assessment of points of law.", "18. On 1 May 1998 the applicant died. Nevertheless, his lawyer introduced before the Land Office a request for compensation by the assignment of other plots pursuant to section 11(2) of the Land Ownership Act. According to the Government, this request is still pending before the Land Office.", "19. On 29 October 1998 the judicial proceedings regarding the applicant’s inheritance were terminated by a finding of the Prague 2 District Court that the applicant had not left any estate. Apparently, the court was not aware of the Land Office’s decision of 25 July 1995.", "20. On 22 February 2000 the applicant’s nephew, Mr Bouček, requested the district court to re-open the inheritance proceedings. He produced his uncle’s last will of 22 March 1998 in which he was designated as a universal heir of the applicant’s estate, while the applicant’s two adult children were disinherited. The re-opening of the judicial proceedings concerning the inheritance was eventually granted on 21 August 2000. On 28 March 2001 the Prague 2 District Court approved an agreement concluded between Mr Bouček and the applicant’s two children concerning the division of the applicant’s estate on an equal basis." ]
[ 3 ]
[ "8. In 1991 Mr Dušan Slobodník, a research worker in the field of literature, published an autobiography entitled Paragraph: Polar Circle. He described in it, inter alia, his conviction by a Soviet military tribunal in 1945 on the ground that he had been ordered to spy on the Soviet army after having been enrolled, in 1944 when he was 17 years old, in a military training course organised by Germans. In the book, Mr Slobodník also wrote about his detention in Soviet gulags and his rehabilitation by the Supreme Court of the Union of the Soviet Socialist Republics in 1960. In June 1992 Mr Slobodník became Minister for Culture and Education of the Slovak Republic.", "9. On 20 July 1992 the newspaper Telegraf published a poem by the applicant. It was dated 17 July 1992 (the day when the sovereignty of the Slovak Republic was solemnly proclaimed) and entitled “Good night, my beloved” (“Dobrú noc, má milá”). One of its verses read as follows:\n“In Prague prisoner Havel is giving up his presidential office. In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB [The ŠTB (Štátna bezpečnosť) was the secret police during the communist regime in Czechoslovakia] embraced each other.”", "10. The poem was later published in another newspaper. In separate articles, two journalists alleged that the expression “member of the SS” stood for Mr Dušan Slobodník.", "11. On 30 July 1992 several newspapers published a statement which the applicant had distributed to the Public Information Service (Verejná informačná služba) the day before. It was entitled “For a better picture of Slovakia – without a minister with a fascist past” (“Za lepší obraz Slovenska – bez ministra s fašistickou minulosťou”). It read as follows:\n“There has been a problem about how to keep a democratic character in [the Slovakian] national emancipation process, which we have tried to resolve many times. Until now, Slovakia has lost most when matters related to the Slovakian nation were in the hands of the wrong people who led us away from democratic evolution. The cost was high: for example, the combatants’ lives lost in the Slovakian National Uprising [in 1944 and 1945] . \nNow, we are scared that this mistake could be made again. To say that our way to Europe is by working together and cooperating in its democratic evolution is not enough. This is a direct condition arising from international law without the fulfilment of which no one in Europe will take notice of us.\nI expressed this concern in my polemics with Mr Dušan Slobodník last year; life has finished the writing of our polemics, and my views were proved correct.\nThis year Mr Slobodník became the Slovak Republic’s Minister for Culture and Education and the next thing was that his fascist past came out in public. Mr Slobodník managed this situation in a way that allowed the writer Ladislav Mňačko to prove he was a liar. But he still has not given up his ministerial post, although in any other democratic country he would have had to do so a long time ago.\nDoes Mr Slobodník think that Slovakia is some special exception and that it is the only country having the right to revise the philosophy of the Nuremberg trials, which is binding on the post-war development of all other European countries? Or is the message of the Slovakian National Uprising not correct? ... Does Mr Mečiar think that having this minister in the government will help him to persuade people in Europe that his talk about the democratic intentions of his government is serious? Is it good to have Mr Slobodník in the government when this fact will lead to the political, economic and cultural isolation of Slovakia? \nMr Slobodník likes to use every chance to talk about improving the image of Slovakia around the world. I fully agree with him on this. He has a personal opportunity to do something in order to improve the image of Slovakia: to resign.”", "12. On 5 August 1992 Mr Slobodník publicly declared that he would sue the applicant for the above statement.", "13. In an interview published in the Czech daily Lidové noviny on 12 August 1992 the applicant stated, inter alia:\n“... when I speak of the fascist past [of Mr Slobodník], I do not characterise him, I only think that the fact that he attended a terrorist training course organised by the SS falls within the term ‘fascist past’. I consider that such a person has nothing to do in the government of a democratic State ...”", "14. In the context of the nomination of Mr Slobodník to a post in the government, issues relating to his past were taken up by several Slovakian and Czech newspapers both before and after the publication of the applicant’s statement. Articles concerning this subject were also published in The New York Times, on 22 July 1992, the Tribune de Genève, on 18 September 1992, Izvestia on 31 August 1992, as well as by the Austrian Press Agency. The New York Times, the Tribune de Genève and Izvestia later published the reaction of Mr Slobodník to their respective articles.", "15. On 9 September 1992 Mr Slobodník sued the applicant for defamation under Article 11 et seq. of the Civil Code before the Bratislava City Court (Mestský súd). He later extended the action and alleged that the verses “In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB embraced each other” from the applicant’s poem referred to him. He also alleged that the above-mentioned statement published in the newspapers wrongly referred to his fascist past. The plaintiff claimed that the applicant should bear the costs of publication of an apology in five newspapers and also pay him 250,000 Slovakian korunas (SKK) as compensation.", "16. On 18 October 1993 the Bratislava City Court dismissed the action. It established that the plaintiff had been a member of the Hlinka Youth (Hlinkova mládež) and that in February and March 1945 he had participated in a terrorist training course in Sekule. It observed that the Hlinka Youth had been a military corps of the Hlinka Slovakian People’s Party (Hlinkova slovenská ľudová strana) and that under the law then in force the Slovak nation had participated in the exercise of State power through the intermediary of that party. The court pointed out that, under Article 5 of Presidential Decree no. 5/1945 of 19 May 1945, legal persons which had deliberately promoted the war waged by Germany and Hungary or had served fascist and Nazi aims were to be considered unworthy of the State’s trust.", "17. The City Court further established that in May 1945 a military tribunal of the Soviet army had sentenced Mr Slobodník to fifteen years’ imprisonment on the ground that he had attended the training course in Sekule and had been ordered, on 22 March 1945, to cross the front line and to spy on Soviet troops. The military tribunal’s judgment further stated that Mr Slobodník had not crossed the front line but had gone home in April 1945, when he had been arrested. The City Court also noted that the plaintiff had served the sentence in Soviet camps until his release in 1953. In 1960 the Supreme Court of the USSR had quashed the sentence and discontinued the proceedings for the lack of factual elements of an offence.", "18. Before the City Court, Mr Slobodník claimed that he had been a member of the Hlinka Youth only for a short time and that he had joined the organisation only because it had been a prerequisite for his participation in a table-tennis tournament. He further explained that he had been summoned to the training course in Sekule and that he had complied with the summons out of fear for himself and his family. Mr Slobodník alleged that he had been excluded from the course as being unreliable after he had expressed his negative opinion about it. He had then been taken to the Hlinka Youth headquarters in Bratislava, from where he had been allowed to return home to Banská Bystrica under the condition that he would report on the Soviet army. However, the City Court did not find these facts established. In particular, it did not consider as relevant evidence the description of the events contained in the plaintiff’s book Paragraph: Polar Circle, which had been published earlier. In its view, the fact that the 1945 sentence had been quashed did not prove that the plaintiff had not been a member of the Hlinka Youth and that he had not attended the training course in Sekule.", "19. The City Court also noted that the relevant period of Mr Slobodník’s life had been covered by the press both in Slovakia and abroad prior to the applicant’s statement, and that on several occasions Mr Slobodník himself had commented and given interviews on those issues, both in Slovakia and abroad. The court concluded that, in the statement, the applicant had expressed his opinion on the basis of information which had already been published in the press. The statement concerned a public figure who was inevitably exposed to close scrutiny and sometimes also to criticism by other members of society. By making the statement, the applicant had exercised his right to freedom of expression and he had not unjustifiably interfered with the plaintiff’s personality rights.", "20. Mr Slobodník appealed to the Supreme Court (Najvyšší súd), alleging that the applicant had not proved that he had a “fascist past”, and that the City Court had not established the meaning of that term. Mr Slobodník argued that he had been summoned to the training course in Sekule by an order and that he had left it at the first opportunity after he had learned about its real purpose. He also explained that martial law had been in force at the material time and that people had been unlawfully executed or detained. Members of the Hlinka Youth had been incorporated in the armed forces by a presidential order and had fallen under military judicial and disciplinary rules. The plaintiff maintained that he had done nothing against his homeland or the anti-fascist allies and concluded that the applicant’s statement and poem were defamatory.", "21. The applicant contended, in particular, that the courts should abandon their established practice according to which the defendant has to prove the truthfulness of his statements in defamation proceedings. He maintained that the burden of proof should be shifted onto the plaintiff or shared between the parties. The applicant further argued that his statement was a value judgment based on the undisputed facts that the plaintiff had been a member of the Hlinka Youth and that he had attended a terrorist training course in Sekule. It was irrelevant to what extent the plaintiff had been involved in the activities of the Hlinka Youth or for how long he had been a member of it. What mattered was that the plaintiff had voluntarily joined the organisation and that, after his alleged exclusion from the training course in Sekule, he had undertaken, as shown by the Soviet military tribunal’s judgment of 19 May 1945, to provide information on the movements of Soviet troops to the headquarters of the Hlinka Youth. The applicant therefore proposed that the appeal be dismissed.", "22. On 23 March 1994 the Supreme Court reversed the first-instance judgment, ruling as follows:\n“... [the applicant] has to accept that ... Dušan Slobodník will distribute, if he thinks fit, to the Press Agency of the Slovak Republic as well as to five newspapers of his choice, both in Slovakia and abroad, the following declaration to be published at [the applicant’s] expense:\n ‘(1) [The applicant’s] statement addressed to [the Public Information Service] and published in daily newspapers on 30 July 1992 which reads: “...This year Mr Slobodník became the Slovak Republic’s Minister for Culture and Education and the next thing was that his fascist past came out in public ... Does Mr Slobodník think that Slovakia is some special exception and that it is the only country having the right to revise the philosophy of the Nuremberg trials, which is binding on the post-war development of all other European countries? ...”\n (2) The occasional poem ... entitled “Good night, my beloved” in its part “... In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB embraced each other ...” \n ... represent a gross slander and disparagement of the civil honour and life, and an unjustified interference with the personality of the plaintiff Dušan Slobodník.’\n...\n (4) [The applicant] is liable to pay SKK 200,000 to the plaintiff in respect of non-pecuniary damage. ...’ ”", "23. The applicant was also ordered to pay costs and the other party’s expenses.", "24. The Supreme Court noted that the plaintiff had described the relevant events in his book Paragraph: Polar Circle before the dispute concerning his past had arisen, and that no other relevant facts had been established in the course of the proceedings.", "25. In the appellate court’s view, the term “fascist past” was equivalent to the statement that a person was a fascist in the past. The court considered that the applicant himself had given a restrictive interpretation of that term in connection with the plaintiff, namely the interpretation according to the philosophy of the Nuremberg trials. This philosophy was derived from the multilateral agreement of 8 August 1945, which included also the statute of the International Military Tribunal, and which had become part of the Czechoslovakian legal order on 2 October 1947. The Supreme Court held that it was bound by the principle of individual responsibility set out in that agreement.", "26. The Supreme Court further studied all available documents and evidence used during the Nuremberg trials relating to Slovakia. It found no reference in those documents to the Hlinka Youth in connection with fascist organisations. It established that the propagation or implementation of fascist theories had not been inherent in the statutory rules and regulations governing the Hlinka Youth. If some persons had abused the Christian principles on which the organisation had been built, this had contravened the rules then in force. Such persons and, as the case might be, those who had let themselves be abused for criminal purposes, were individually responsible. However, such was not the case of the plaintiff. The Supreme Court accepted the latter’s argument that he had learned about the character of the training course in Sekule only after he had started attending it.", "27. The appellate court found irrelevant the reference, in the first-instance court’s judgment, to Presidential Decree no. 5/1945 of 19 May 1945 as that decree had only concerned property, in that it had placed under national administration the property of persons whom the State had considered unreliable.", "28. The Supreme Court recalled that, at the relevant time, criminal and moral liability had been governed by Order no. 33 on the punishment of fascist criminals, occupants, traitors and collaborators and on the establishment of the people’s judiciary adopted by the Slovakian National Council on 15 May 1945 and also by Presidential Decree no. 16/1945 of 19 June 1945 on the punishment of Nazi criminals, traitors and their assistants and on extra-ordinary people’s courts. These rules were partly based on the principle of collective liability, but they did not mention the Hlinka Youth.", "29. As regards the poem by the applicant, the Supreme Court noted that it was dated 17 July 1992, that is, the day on which the sovereignty of the Slovak Republic had been proclaimed from the balcony of the Slovakian National Council, where Mr Slobodník had also been present. Shortly afterwards, the applicant had written his statement concerning Mr Slobodník’s past and two journalists had interpreted the poem as a description of the scene during the proclamation. They had alleged that by “member of the SS” the applicant had meant to designate Mr Slobodník. The court therefore concluded that the applicant had infringed the plaintiff’s personality rights by his poem as well as by his statement of 29 July 1992.", "30. The applicant’s request that the burden of proof in the case should be shifted onto the plaintiff or at least shared between the parties was not accepted as it had no basis in domestic law and practice. The Supreme Court concluded that the applicant had not proved that Mr Slobodník had been a fascist in the past, holding that the latter had joined the Hlinka Youth because he had wanted to participate in sports activities and had not been motivated by fascist sympathies. As to the training course in Sekule, it found that Mr Slobodník had not completed it, and it was irrelevant whether he had been excluded or had left it on his own initiative. The only relevant fact was that the plaintiff’s past could not be considered fascist from that point of view.", "31. The applicant filed an appeal on points of law alleging, inter alia, a violation of his rights under Article 10 of the Convention. He claimed that the Supreme Court should have concluded from the relevant provisions of Presidential Decree no. 5/1945 that the Hlinka Youth was a fascist organisation and that, in accordance with the relevant provisions of the Slovakian National Council’s Orders nos. 1/1944 and 4/1944, participation in any activity within the Hlinka Youth was to be considered as participation in an unlawful fascist organisation. He further complained that the Supreme Court had not established with sufficient certainty whether the plaintiff had actually been excluded from the training course in Sekule, and whether he had undertaken to carry out terrorist activities or not.", "32. On 25 May 1995 a different Chamber of the Supreme Court sitting as a court of cassation upheld the part of the appeal judgment of 23 March 1994 according to which the plaintiff was entitled to arrange for publication of the text set out in it and concerning the applicant’s statement of 29 July 1992. As for the remainder, the court of cassation quashed both the first and second-instance judgments and sent the case back to the Bratislava City Court.", "33. The court of cassation did not share the applicant’s view that the plaintiff should be required to prove that the applicant’s allegations were untrue. It further held that a person could be considered as having a fascist past only if he or she had propagated or practised fascism in an active manner. Mere membership of an organisation and participation in a terrorist training course which had not been followed by any practical actions could not be characterised as a fascist past.", "34. As the applicant had failed to prove that the plaintiff had a fascist past within the above meaning, the court found that his statement had infringed without justification the plaintiff’s personality rights. In the judgment, the court admitted that Slovakian law characterised the Hlinka Youth as a fascist organisation. It recalled, however, that the relevant legal rules, including those relied on by the applicant, applied to natural persons only where justified by their specific actions. Applying those rules to all members of such organisations without considering their actual deeds would entail the recognition of their collective guilt. It recalled that children over the age of 6 had been admitted to the Hlinka Youth.", "35. The court considered that the applicant’s argument according to which his statement was a value judgment could only have been accepted if the applicant had expressly referred, in that statement, to the particular facts on which such a value judgment was based. The court stated, inter alia:\n“Indicating that the plaintiff has had a fascist past is not a value judgment based on an analysis of facts, but an allegation (statement) made without any concurrent justification of factual circumstances from which a conclusion can be inferred by the person making the judgment. It could have been a value judgment if the statement [of the applicant] had been accompanied by reference to the [plaintiff’s] membership of the Hlinka Youth and his participation in the training course, namely, to the activities which the person making the judgment considers to constitute a fascist past. Only such a statement, based on circumstantial facts used by the person making the judgment, would be a value judgment the truthfulness of which would not require any proof. Only such an interpretation will guarantee a balance between the freedom of expression and the right to the protection of [a person’s] reputation within the meaning of Article 10 of the Convention.”", "36. The court then found the restriction on the applicant’s freedom of expression compatible with the requirements of Article 10 § 2 of the Convention as it was necessary for the protection of the plaintiff’s reputation in accordance with Articles 11 et seq. of the Civil Code.", "37. As to the poem, the court of cassation quashed both the first and second-instance judgments for lack of evidence and held that in further proceedings the plaintiff would have to prove that the applicant had referred to him in the poem. It also quashed the part of the appeal concerning compensation for non-pecuniary damage and costs since their award depended on an assessment of both the interferences complained of by the plaintiff.", "38. On 15 April 1996 the Bratislava City Court reached a new decision on the remainder of the case. It stayed the proceedings as far as the poem was concerned on the ground that the plaintiff had withdrawn that part of the action.", "39. The City Court further dismissed the claim in respect of non-pecuniary damage as it did not find it established that the applicant’s statement had considerably diminished the plaintiff’s dignity and position in society within the meaning of Article 13 § 2 of the Civil Code. In its view, the plaintiff had failed to show that the considerable publicity concerning his person had arisen as a result of the applicant’s statement and not, as the case might be, as a consequence of newspaper articles and the plaintiff’s book published prior to the applicant’s statement.", "40. Having considered to what extent the parties had been successful in the proceedings, the City Court ordered the plaintiff to pay SKK 56,780 to the applicant in reimbursement of the relevant part of the latter’s costs. The applicant and the plaintiff were further ordered to pay respectively SKK 875 and 2,625 in reimbursement of the costs paid in advance by the court.", "41. On 25 November 1998 the Supreme Court upheld the decision of the Bratislava City Court to discontinue the proceedings in respect of the poem and to dismiss the plaintiff’s claim for non-pecuniary damage. The Supreme Court held that neither party was entitled to have the costs reimbursed. It further ordered each party to pay half of the costs paid in advance by the State, namely SKK 1,750. Mr Slobodník filed an appeal on points of law. The proceedings are pending." ]
[ 6 ]
[ "9. The applicant is an Italian citizen, born in 1947 and living in Oristano (Italy).", "10. The applicant and another person transferred land, property and a sum of money to a limited liability company, A., which the applicant had just formed and of which he owned – directly and indirectly – almost the entire share capital and was the representative. The company, whose object was organising farm holidays for tourists (agriturismo), applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above-mentioned transfer of property, in accordance with a statute which it deemed applicable, and paid the sum it considered due.", "11. The present case concerns three sets of proceedings. The first concerned in particular the payment of capital-gains tax (INVIM, imposta sull’incremento di valore immobiliare) and the two others the applicable rate of stamp duty, mortgage-registry tax and capital-transfer tax (imposta di registro, ipotecaria e voltura), and the application of a reduction in the rate.", "12. In the first set of proceedings, the tax authorities served a supplementary tax assessment on the applicant on 31 August 1987 on the ground that the property transferred to the company had been incorrectly valued. They requested payment of an aggregate sum of 43,624,700 Italian lire comprising the tax due and penalties. On 14 January 1988 the applicant applied to the Oristano District Tax Commission for the supplementary tax assessment to be set aside.\nIn a letter of 7 February 1998 the District Tax Commission informed the applicant that a hearing had been listed for 21 March 1998. In the meantime, on 23 February 1998, the tax authorities informed the commission that they accepted the applicant’s comments and requested the case to be struck out of the list.\nIn a decision of 21 March 1998, the text of which was deposited on 4 April 1998, the District Tax Commission struck the case out of the list.", "13. In the other two sets of proceedings, the tax authorities served two supplementary tax assessments on A. on 16 November 1987 on the ground that the company was ineligible for the reduced rate of tax to which it had referred. The tax authorities’ note stated that the company would be liable to an administrative penalty of 20% of the amounts requested if payment was not made within sixty days.\nOn 15 January 1988 the applicant, acting in his own right, although the matter concerned the company A., lodged two applications with the Oristano District Tax Commission for the above-mentioned supplementary tax assessments to be set aside.\nIn two letters of 20 March 1998 the District Tax Commission informed the applicant, in his capacity as representative of A., that a hearing had been listed for 9 May 1998 in the two other cases. In two orders of that date the District Tax Commission adjourned the cases sine die and gave the applicant thirty days in which to appoint a lawyer. Subsequently, a hearing was listed for 24 April 1999.\nIn two decisions of 22 May 1999, the text of which was deposited at the registry on 16 July 1999, the District Tax Commission dismissed A.’s applications on the ground that the transferred property, which included, among other things, a swimming pool and a tennis court, could not be regarded as the normal assets of an agricultural company.\nOn 27 October 2000 A. lodged an appeal with the Regional Tax Commission." ]
[]
[ "12. In 1987 the applicant association published a book entitled Euskadi at war. There were four versions – Basque, English, Spanish and French – and the book was distributed in numerous countries, including France and Spain. According to the applicant association, this was a collective work containing contributions from a number of academics with specialist knowledge of the Basque Country and giving an account of the historical, cultural, linguistic and socio-political aspects of the Basque cause. It ended with a political article entitled “Euskadi at war, a promise of peace” by the Basque national liberation movement.", "13. The book was published in the second quarter of 1987. On 29 April 1988 a ministerial order was issued by the French Ministry of the Interior under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, banning the circulation, distribution and sale of the book in France in any of its four versions on the ground that “the circulation in France of this book, which promotes separatism and vindicates recourse to violence, is likely to constitute a threat to public order”. On 6 May 1988, pursuant to the aforementioned order, the département director of the airport and border police refused to allow over two thousand copies of the book to be brought into France.", "14. On 1 June 1988 the applicant association lodged an administrative appeal against the ban. When this was implicitly rejected, it appealed to the Pau Administrative Court on 29 November 1988.", "15. The Administrative Court held that it did not have jurisdiction and so referred the case to the Conseil d’Etat. By a decision of 9 January 1991 the President of the Judicial Division of the Conseil d’Etat remitted the case to the Pau Administrative Court.", "16. In a judgment delivered on 1 June 1993 after a public hearing in the presence of both parties, the Pau Administrative Court rejected the applicant association’s appeal on the following grounds:\n“It has been established that the book at issue entitled Euskadi at war was printed in Spain, that four of its five chapters were written by authors of Spanish nationality and that the documentation used for the preparation of the publication was mainly of Spanish origin. Therefore, and notwithstanding the fact that the book was published by the applicant association, which is based in Bayonne, the offending book must be regarded as of foreign origin within the meaning of the aforementioned provisions. Accordingly, the Minister of the Interior was legally entitled to prohibit the book’s circulation, distribution and sale.\nIn taking the view that the book at issue could pose a threat to public order since it argued, particularly in Chapter 4, that the violence of the Spanish State justified the ETA terrorist organisation’s ‘proportionate counter-offensive’, the Minister of the Interior did not make any obvious error in assessing the evidence.\nUnder Article 10 of the European Convention on Human Rights, ‘[e]veryone has the right to freedom ...’; it is the task of the administrative courts to assess whether any restriction of the freedom of expression guaranteed by the above-mentioned Article 10 is proportionate to the legitimate aim being pursued and to assess whether the ban on a publication of foreign origin is in keeping with that aim. In the instant case the evidence does not show that the general prohibition of the book at issue was disproportionate to the public-order objectives being pursued ...”", "17. The applicant association lodged an appeal against this judgment with the Conseil d’Etat on 20 August 1993. In its further observations, it asked the Conseil d’Etat to find that section 14 of the Law of 29 July 1881, as amended, was incompatible with Articles 10 and 14 of the Convention taken together.", "18. On 9 July 1997 the Conseil d’Etat ruled that section 14 of the Law of 1881, as amended, was not incompatible with Articles 10 and 14 of the Convention on the following grounds:\n“Under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, ‘the circulation, distribution or sale in France of newspapers or texts written in a foreign language, whether periodicals or not, may be prohibited by a decision of the Minister of the Interior. Newspapers and texts of foreign origin written in French and printed abroad or in France may also be prohibited’. In the absence of any statutory provision establishing the conditions circumscribing the legality of decisions taken on the basis of this provision, any restrictions of the Minister’s power derive from the need to reconcile the general interests for which he is responsible with the respect due to public freedoms, particularly freedom of the press. When an appeal against such a prohibition order is lodged with an administrative court, it is duty-bound to assess whether the banned publication poses such a threat to these general interests that it warrants an infringement of public freedoms. Contrary to the applicant association’s assertions, the power thus exercised by the Minister of the Interior, under the supervision of the courts, is not incompatible with the combined provisions of Articles 10 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms …”", "19. On the other hand, the Conseil d’Etat quashed the judgment and the ministerial order of 29 April 1988 on the following grounds:\n“By the impugned order, the Minister of the Interior prohibited the circulation, distribution and sale of the collective work Euskadi at war, which must be viewed as a written text of foreign origin within the meaning of the aforementioned section 14 of the Law of 29 July 1881. Having regard to the interests that the Minister is responsible for protecting, in particular public safety and public order, the Court finds that the content of this publication does not provide sufficient legal justification for the serious infringement of press freedom embodied in the impugned decision.\nIt follows from the above considerations that the Association Ekin has good grounds for maintaining that the Pau Administrative Court was wrong to reject, by means of the impugned judgment, the association’s application to set aside the decision of 29 April 1988, taken on the basis of the aforementioned section 14 of the Law of 29 July 1881, by which the Minister of the Interior prohibited the circulation, distribution, and sale in France of the book entitled Euskadi at war, published by the association ...”", "20. In a registered letter with recorded delivery received by the Ministry of the Interior on 2 December 1997, the applicant association presented the Minister with a claim for compensation for the pecuniary and non-pecuniary damage caused by the application of the unlawful order of 29 April 1988 for more than nine years. According to the applicant association, the implementation of this order amounted to tortious conduct on the part of the authority. It estimated the overall losses it had sustained at 831,000 French francs (FRF), including FRF 481,000 resulting from the financial loss deriving directly from the prohibition of sales of the book throughout France. To date it has not had any reply from the Minister of the Interior. Under the rules of French administrative proceedings, this silence counts as a refusal of the applicant association’s claim." ]
[ 6, 3 ]
[ "7. The applicants are former members of the Turkish National Assembly and of the Democracy Party (DEP), which was dissolved by the Constitutional Court on 16 June 1994.", "8. The public prosecutor at the Ankara National Security Court accused them of having infringed Article 125 of the Turkish Criminal Code and made repeated applications – on 27 November 1991, 16 December 1992, 25 May 1993 and 2 July 1993 – for their parliamentary immunity to be lifted.\nOn 2 March 1994 the National Assembly, having deliberated on the basis of the application of 16 December 1992, decided to lift the applicants’ parliamentary immunity under Article 83 of the Turkish Constitution.", "9. On 2 March 1994 Mr Dicle and Mr Doğan were taken into police custody on the orders of the public prosecutor at the Ankara National Security Court. On 4 March 1994 Mrs Zana suffered the same fate.\nA few days later the public prosecutor at the Ankara National Security Court ordered the detention of those three applicants in police custody to be extended until 16 March 1994.", "10. While in custody, the applicants made no statements to the police.", "11. On 16 March 1994 they were brought before a judge of the Ankara National Security Court and placed in detention pending trial.", "12. On 16 June 1994 the Constitutional Court dissolved the DEP and ordered the party’s MPs to vacate their parliamentary seats.", "13. Mr Sadak was taken into police custody on 1 July 1994 and placed in detention pending trial on 12 July 1994.", "14. In the meantime, on 21 June 1994 the public prosecutor at the Ankara National Security Court had filed a bill of indictment in which he accused the applicants of treason against the integrity of the State – a capital offence under Article 125 of the Criminal Code. The accusation was based firstly on the activities that the applicants were alleged to have engaged in on behalf of the Workers’ Party of Kurdistan (PKK) (harbouring militants and providing one of them with medical care, negotiating with local leaders or proffering threats against them to make them help the PKK establish itself in their regions) and secondly on the content of oral and written statements by the applicants expressing support for PKK activities. On the evening of 21 June 1994 the offences of which the applicants were accused were announced in the news bulletin of the publicly owned TRT 1 television channel.", "15. On 8 December 1994, the date of the final hearing before the Ankara National Security Court, the applicants learned that the prosecution was proposing to alter the charge to belonging to an armed gang within the meaning of Article 168 of the Criminal Code. The National Security Court invited the applicants to submit their observations on this new characterisation of the offences. The applicants’ lawyers were not present at the hearing because they had decided to protest against the National Security Court’s refusal to adopt a procedural measure they had requested of it.", "16. In a judgment of 8 December 1994 the Ankara National Security Court sentenced the four applicants to fifteen years’ imprisonment for belonging to an armed gang within the meaning of Article 168, paragraph 2, of the Turkish Criminal Code. It rejected the charge under Article 125 of the Criminal Code, which provided for the death penalty in the event of treason against the integrity of the State.", "17. It found it established that the applicants had engaged in intensive “separatist” activity under instructions from leaders of the PKK, a separatist armed gang seeking to found a Kurdish State in south-eastern and eastern Turkey. In that context it noted the following points: in the run-up to the 1991 parliamentary election the applicants had given speeches under the PKK banner at meetings where slogans had been shouted such as “Long Live the PKK” and “Strike guerrillas strike, found Kurdistan”; the applicants had provoked unrest among the population and created an atmosphere that had undermined the authority of the State; they had worn PKK colours when they were sworn in as members of the National Assembly in November 1991; at the congresses of their political parties, the HADEP and the DEP, the PKK flag had been hoisted instead of the Turkish flag and the Turkish Republic had been described as an occupier and enemy; conversations recorded between three of the four applicants and heads of clans (aşiret reisi) in south-eastern and eastern Anatolia had revealed that the former had used threats to try to persuade the latter to join or support the PKK; one of the applicants had harboured a PKK militant in his official residence, had helped him to obtain medical treatment and had fraudulently induced the State to pay his hospital bills; another had harboured in his home PKK militants preparing to join those who were already involved in field operations in the region; and all the applicants had made statements on behalf of the PKK in foreign countries and spread lies about the Turkish State intended to uphold the PKK’s views. The National Security Court also rejected an application by a co-defendant for a public hearing of a witness for the prosecution owing to the danger that the witness might suffer reprisals at the hands of the PKK.", "18. When classifying the facts found in the instant case as offences under Article 168 rather than Article 125 of the Criminal Code, the National Security Court referred to the case-law according to which Article 125 defined a crime in terms of the ends pursued and Article 168 in terms of the means deployed. Treason against the integrity of the State within the meaning of Article 125 was a crime which could only be made out if it was established that acts had been committed which were likely to pose a real threat to the State’s survival. Acts of violence and terrorism could fall within the scope of Article 125 if they were serious enough to pose such a threat. Article 168, paragraph 2, on the other hand, made it an offence merely to belong to an armed organisation which was already considered to be acting for a purpose contrary to Article 125. The material element of the offence lay in the fact that the persons in question belonged to an armed organisation of the aforementioned type complete with a system of disciplinary rules and a hierarchical structure. In that context, it was not necessary for the defendants themselves to have committed acts posing a threat to the State’s survival. However, Article 168 did require a specific mental element, namely that the offenders were aware that they belonged to the illegal organisation.", "19. The applicants and the public prosecutor at the Ankara National Security Court appealed on points of law against the judgment of 8 December 1994.", "20. The public prosecutor argued that the offences were indeed punishable under Article 125 of the Turkish Criminal Code.", "21. The applicants submitted for their part that the criminal proceedings had been brought for a political purpose, namely to suppress the opinions of members of Parliament defending the Kurdish cause. They contended that the National Security Court by which they had been convicted was a special political court which could not be considered an independent and impartial tribunal.\nThey also asserted that they had been denied a fair trial because, among other things, their equality of arms with the prosecution had not been respected. They complained in particular that they had been denied the assistance of a lawyer during their fifteen days in police custody; that their representatives had not had access to the documents on the case file during the preliminary investigation; that pressure had been brought to bear on their representatives by the government as their defence had been the subject of reports by the Turkish secret services and their access to the courtroom had sometimes been impeded; that the applications filed by their representatives had never been allowed by the National Security Court; that they had not been permitted to examine before that court the witnesses interviewed by the prosecution during the preliminary investigation or the experts appointed by the prosecution; that their applications for the examination of the sound and video recordings made by the prosecution had been rejected by the National Security Court for no valid reason; that the evidence on which their conviction had been based had not been read out at the hearing; and that their applications for further witnesses to be heard and second opinions to be sought had been dismissed by the National Security Court. The applicants also argued that the difficulties encountered by certain lawyers and foreign delegations when attempting to enter the courtroom had infringed the requirement of a public hearing. Lastly, they criticised the National Security Court for laying the activities of all pro-Kurdish organisations, whether legal or illegal, at their door and taking account of findings of a political nature having no probative value with regard to the accusations levelled against them.", "22. In a judgment of 26 October 1995 the Court of Cassation upheld the decision at first instance as to the applicants’ guilt and the sentences imposed on them.", "23. On the other hand it held that some of the reasons given by the Ankara National Security Court in its judgment of 8 December 1994 could not be permitted to stand. When the telephone conversations between the applicants and the head of the PKK had been recorded the statutory provisions intended to safeguard the freedom of communication had been infringed; the fact that the applicants’ diaries contained the names and addresses of PKK leaders did not prove the accusations; and the fact that some of the defendants (including two of the four applicants) had taken part in a press conference held by the head of the PKK could not in itself be regarded as an offence.", "24. In assessing each of the applicants’ guilt, the Court of Cassation took account of various public communiqués that they had issued. In those documents they had described the parliamentary oath as racist on the ground that it omitted any reference to the Kurdish identity, and asserted that the Turkish government was waging war on the Kurdish population, that Kurdish uprisings had been suppressed using methods of genocide and that the national rights of the Kurdish people were denied by the Turkish State.", "25. Regarding Leyla Zana, the Court of Cassation noted the following: she had undergone political training in a PKK camp in Bekaa (Syria); she had had four conversations with the head of a clan in south-eastern Turkey, advising him not to prevent the PKK from attacking State targets and encouraging him to telephone the head of the PKK, addressing him as “Mr Secretary General”; she had twice visited the head of another clan to encourage him to join the PKK to help found Kurdistan; she had handed over to the PKK one of its opponents who had been abducted by PKK militants; she had described slogans such as “Long Live Apo [Apo is a diminutive used to refer to Abdullah Öcalan, the head of the PKK]” or “Long Live Kurdistan”, shouted at a demonstration in Cizre, as “slogans of the Kurdish people”; she had declared on German television that she felt like a foreigner in Turkey and that the Turkish parliament, of which she was a member, was constantly taking decisions whose aim was to wipe out the Kurdish people; and she had taken part in a demonstration and a press conference held by the PKK in Brussels and had addressed the participants from a rostrum draped with the PKK flag.", "26. Regarding Orhan Doğan, the Court of Cassation noted the following: he had knowingly harboured a PKK militant in his home owing to his organic links with the PKK; he had helped the militant in question to obtain medical treatment and had fraudulently had the costs reimbursed by the National Assembly; he had harboured four other PKK militants who were about to return to the organisation’s camps; he had made statements to foreign embassies to the effect that the villagers leaving Şirnak in August 1992 were actually fleeing the State forces; and he had stated at demonstrations that the Turkish State was repressing the Kurdish people in various ways, while describing the PKK as an army.", "27. Regarding Hatip Dicle, the Court of Cassation noted the following: he had put pressure on the head of a clan in south-eastern Turkey to join the PKK, whose aims he had said were to found Kurdistan and destroy the enemy; he had asked the persons attending a public meeting in Diyarbakır to observe a minute’s silence in honour of the PKK’s dead, asserting that the Turkish army had come to the region to repress the Kurdish people; he had stated in an interview given to a Belgian daily newspaper that the Kurds’ ideal would be to found a Kurdish State and that they had been fighting for their freedom since the Treaty of Lausanne (1923); he had described the PKK as a movement with popular roots; he had stated that all those who were against the Kurds should be expelled from their territory even if that would cost them their lives; he had said that the Kurds were engaged in an armed resistance to ensure their survival and that the alleged fight against terrorism amounted to an attempt to crush the Kurds’ claims to nationhood; he had attempted to justify the terrorist attack on the cadets of the military college for infantry conscripts, in which four people were killed and twenty injured, by saying that everyone in uniform was a potential target by virtue of the international conventions on the laws of war; and he had stated at a meeting of his party that the State could not solve the Kurdish problem by banning the PKK.", "28. Lastly, regarding Selim Sadak, the Court of Cassation found the following facts established: he had put pressure on the head of a clan in south-eastern Turkey to accept the authority of the PKK; he had asked the inhabitants of the village of Şenoba (in south-east Turkey) to relinquish their positions as village guards, explaining that they were in Kurdistan and that the Kurdish war of national liberation was soon to be launched against the fascist Turkish State; he had described police officers escorting persons in police custody on suspicion of having been active within the PKK as torturers, while stating that he would prevent the repression of the Kurds by the Turks and that the Kurds would demand some form of retribution; at a meeting held by the PKK in Neuchâtel (Switzerland), he had described the PKK as a guerrilla army fighting for the independence of Kurdistan and the Kurdish people; and in a communiqué sent to foreign embassies in Turkey he had declared that the villagers leaving Şirnak in August 1992 had in fact been fleeing the State forces." ]
[ 3 ]
[ "7. The circumstances in which the applicant’s brother disappeared are disputed. In accordance with former Article 28 § 1 (a) of the Convention, the Commission conducted an investigation with the assistance of the parties and obtained documentary evidence and oral depositions.\nDelegates from the Commission heard witnesses on 17 September 1999 in Strasbourg and from 20 to 22 September 1999 in Ankara. They also visited the offices of the anti-terrorist branch at Ankara Security Directorate on 20 September 1999. Evidence was taken from the following witnesses: the applicant, eleven people who had been in custody at the material time at Ankara Security Directorate and who alleged that they had met Kenan Bilgin there and had witnessed the ill-treatment to which he had been subjected, two public prosecutors who had investigated the case, a deputy director at Ankara Security Directorate and a police officer from the anti-terrorist branch at Ankara Security Directorate.", "8. At 10 a.m. on 12 September 1994 the applicant’s brother, Kenan Bilgin, was arrested at a taxi rank in Dikmen (Ankara) by plainclothes police officers. His family was not informed.", "9. The applicant received three anonymous telephone calls from someone who confirmed that his brother was being held at Gölbaşı (Ankara) with three other prisoners. He was told that his brother’s condition was serious and that he was being administered serum. During the last conversation, which took place on 15 November 1994, the caller said that the applicant’s brother had been moved elsewhere.", "10. On 3 October 1994 Kenan Bilgin’s lawyer, Ms Hatipoğlu, contacted the Human Rights Commission of the Turkish National Assembly. She and two other lawyers also made a written statement to the press.", "11. By an undated letter the applicant requested information from the Principal Public Prosecutor at the Ankara National Security Court about his brother’s health, indicating that his brother had been arrested on 11 September 1994. On 4 October 1994 a similar request was made to the Principal Public Prosecutor by Ms Hatipoğlu, who put the date of the arrest at 13 September 1994.", "12. In his letters in reply dated 10 October 1994 the Principal Public Prosecutor said that no one by the name of Kenan Bilgin had been interviewed and that no warrant had been issued for his arrest.", "13. On 10 October 1994 the applicant made a written statement to the press. The same day, his representatives contacted the Ankara branch of the Human Rights Association about his brother’s case. On 11 October 1994 the association issued an appeal to the provincial governor of Ankara for Kenan Bilgin to be brought before the public prosecutor, while the applicant managed to obtain written statements signed by ten prisoners who had also been held at Ankara Security Directorate between 12 and 27 September 1994, in which they confirmed that Kenan Bilgin had been held there between those dates and subjected to ill-treatment.", "14. On 12 October 1994 Ms Hatipoğlu wrote to the Principal Public Prosecutor at the Ankara National Security Court to enquire what had become of Kenan Bilgin. She explained that although several witnesses affirmed that they had seen him in police custody, the police denied that he had been detained.", "15. On 9 November 1994 the applicant lodged a complaint with the Ankara public prosecutor against the officers who had been on duty while his brother was in custody, namely police officers from the anti-terrorist branch at the Ankara Security Directorate. Inter alia, he gave the names of witnesses who had testified that Kenan Bilgin had been held in the same building as them.", "16. Furthermore, at a hearing on 21 November 1994 in criminal proceedings before the Ankara National Security Court, one of the defendants, whose name was Mr Yılmaz, testified to having met Kenan Bilgin at the Ankara Security Directorate. Another defendant, Mr Çoban, said in evidence before the court that police officers had threatened him, telling him that unless he made a confession he would meet the same fate as Kenan Bilgin.", "17. When making a bail application to the Ankara National Security Court on 1 February 1995, a lawyer, Mr Demir, said that while he and Kenan Bilgin were in custody together they had spoken and Kenan Bilgin had told him that he had been held for twenty-two days and that the police intended to arrange for his disappearance. Kenan Bilgin had also asked Mr Demir to inform his family.", "18. The Government’s position was that while it was true that Kenan Bilgin was a member of the Revolutionary Communist Party of Turkey (TDKP), he was not wanted by the police and had not been arrested by the security forces. As the Ankara public prosecutor had stated in a letter of 23 December 1994 to the Ministry of Justice, the custody records showed that Kenan Bilgin had not been arrested or detained.", "19. In a statement made on 3 or 4 October 1994, a lawyer, Murat Demir, said that he had spoken with Kenan Bilgin, who had informed him that he had been in custody for twenty-two days and that his name had not been entered on the custody record.\nErcan Aktaş stated that prisoners in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate from 13 to 27 August 1994 had been systematically subjected to ill-treatment and that he had seen Kenan Bilgin during that period through an aperture in the cell-door window.\nTalat Abay stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994, during which period he and his fellow inmates had been constantly subjected to ill-treatment. On 18 or 19 September he had met Kenan Bilgin, whom he already knew, in the toilets.\nBülent Kat stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994. On 18 or 19 September he had managed to make out through an aperture in the cell-door window a group of police officers dragging a prisoner along the ground to the bathroom. Approximately two hours later he had seen a person carrying a doctor’s bag leave the bathroom. He had subsequently learnt that the prisoner’s name was Kenan Bilgin.\nCavit Nacitarhan stated that he had been held at the Ankara Security Directorate from 12 September to 6 October 1994 and had seen Kenan Bilgin on several occasions being led away, unclothed, by police officers.\nMüjdat Yılmaz stated that he had been held at the Ankara Security Directorate from 12 to 26 September 1994. He had heard the cries of prisoners being subjected to ill-treatment. Through the cell-door window he had seen a prisoner being dragged along the ground by police officers and had later heard his cries of distress and the police officers’ questions such as: “What is your name? If you do not tell us your name, we will kill you.” Later, he had seen the same prisoner being taken to the toilet and had heard him call out: “My name is Kenan Bilgin! I am registered at the Tunceli Records Office. The police want to kill me. Make sure that public opinion is informed about this!”\nSalman Mazı stated that he had been held from 12 to 26 September 1994, during which period police officers had subjected prisoners to ill-treatment. One day, he had seen a prisoner in the toilets. The man was in poor health. He introduced himself as Kenan Bilgin and told him that he had been held since 12 September 1994, that his name had not been entered on the custody record and that he feared he would be executed.\nEmine Yılmaz stated that she had been held from 12 to 25 September 1994. She recalled hearing someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September, but my name is not on the custody record.”\nAyşe Nur İkiz Akdemir stated that while being held in custody between 13 and 25 September 1994 she had heard someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September and they want to arrange for me to disappear.” According to her, the prisoner she had seen through the cell-door window was Kenan Bilgin. He had difficulty walking and his body bore marks of torture.\nÖzer Akdemir stated that he had been held from 12 to 25 September 1994 in the offices of the anti-terrorist branch at the Ankara Security Directorate. During that period all the prisoners had been systematically subjected to torture. He had been in cell no. 6. The prisoner in cell no. 8 was subjected to severe ill-treatment every day. He was taken away naked for torture sessions and dragged back to his cell afterwards. He saw him through an aperture in the cell-door window. The four people who took the prisoner away for interrogation were the same four people who had interrogated him, so he would have no difficulty in recognising them. One day, the prisoner from cell no. 8 cried out from the toilets where he had been taken: “My name is Kenan Bilgin. They want to arrange for me to disappear! My name is not on the custody record.” He had been brought back to cell no. 8 later.\n(b) Complaints lodged by the applicant with the public prosecutor at the Ankara National Security Court on 4 and 12 October 1994 and petition by the Ankara Human Rights Association to the provincial governor’s office and the anti-terrorist branch of the Ankara Security Directorate on 11 October 1994", "20. The applicant alleged that his brother had been arrested on 11 September 1994 and that eyewitnesses had seen him in custody. He requested information about his brother’s fate. His brother’s lawyer made a similar request alleging that Kenan Bilgin had been taken into custody by police officers from the anti-terrorist branch of the Ankara Security Directorate on 13 September 1994.\nIn its petition the Ankara Human Rights Association gave the names of the eyewitnesses who had seen Kenan Bilgin at the Ankara Security Directorate.\n(c) Documents relating to the investigation by the Ankara public prosecutor", "21. In a letter of 21 November 1994 referring to the complaints lodged by the applicant’s representatives, the Ankara public prosecutor, Selahattin Kemaloğlu, instructed the public prosecutor’s office at Pendik (Istanbul) to question the applicant about the matters raised. He also instructed the Ankara Security Directorate to start an investigation into the applicant’s allegations.", "22. On 24 November 1994 the Ministry of the Interior informed the Ministry of Foreign Affairs that the Security Directorate had advised that Kenan Bilgin had not been taken into custody, his name had not been entered on the custody record and he was not wanted by the police.", "23. On 9 December 1994 the deputy director at the Security Directorate, Ülkü Met, sent a letter to the Ankara public prosecutor’s office, the relevant parts of which read: \n“... Between 12 September and 21 November 1994 the anti-terrorist branch carried out 249 arrests. Of those arrested, 115 were brought before the principal public prosecutor at the National Security Court and the remaining 134 released. In addition on 16 and 17 October 1994 the Committee for the Prevention of Torture carried out two ad hoc visits to the Security Directorate. They did not report any case of unlawful detention there ... In the interests of an effective investigation, persons remanded in custody, whether members of the same or of different organisations, never see each other unless a confrontation becomes necessary. Even for the purposes of answering a call of nature, remand prisoners are taken to the toilets individually and are accompanied by a warder. Furthermore, members of the same organisation are put in cells that are far apart from each other ... The sole aim of the persons whose names appear in the complaint and who claim to have seen the person known as Kenan Bilgin is to mislead the judicial authorities, to discredit the police and to obstruct the operations being carried out against illegal organisations ... The Turkish police are proud of their 149-year history. Certain people seek to destroy the democratic secular Republic; they commit crimes, arguing that such unlawful acts are legitimate, and make allegations such as the present one to discredit the police and the State.”", "24. On 23 December 1994 the Ankara public prosecutor, Nazmi Şarvan, informed the Ministry of Justice that, while it was true that an investigation had been started into the affairs of members of the TDKP, Kenan Bilgin’s name did not appear on the list of its members.", "25. On 13 January 1995 the Ankara Principal Public Prosecutor, Özden Tönük, sent a letter to the Ankara public prosecutor’s office, which was in charge of the investigation. The relevant parts of the letter read:\n“The Committee for the Prevention of Torture (CPT) interviewed prisoners in Ankara Prison who had been transferred from the anti-terrorist branch at the Security Directorate and who said that they had seen Kenan Bilgin in September 1994 in the building where remand prisoners are detained. When we spoke to them, they said that they had seen Kenan Bilgin between 13 and 25 September 1994 through an aperture in their cell-door windows when he was being taken to the toilets, to the torture room or to be photographed. The investigation reveals that the section of the premises where remand prisoners are held contains individual cells with windows in the cell door that enable police officers to communicate with the prisoners or to pass them their food and which can only be opened from the outside by the warders. The cells are aired by a ventilator attached to the ceiling and it is impossible for prisoners to see what is happening outside. Prisoners are interrogated on the floor above in an interview room that complies with European standards. The cells are not numbered but a small sheet of paper bearing the prisoner’s name is attached to the cell door. Persons arrested are photographed and fingerprinted by the technical services at the Security Directorate. Between 1 January and 31 December 1994, 771 people were taken into custody at the anti-terrorist branch of the Security Directorate; of these, 160 were released by the police, 574 brought before a judge and 37 transferred to other branches at the Security Directorate. Thus, with the exception of Kenan Bilgin, there had been no complaints of any disappearances of prisoners being held in custody. According to the inquiry conducted by the CPT on 16 and 17 October 1994, in an unannounced visit to the Security Directorate, there are no reports of unlawful detention on the premises. Considering that the purported witnesses did not know either Kenan Bilgin or his family and that the Security Directorate state that his name was not on the custody record, it can safely be deduced that the allegations of the prisoners regarding the disappearance of the person known as Kenan Bilgin while in custody at the Security Directorate were aimed at misleading public opinion and harming the police as they attempted to mount operations against the illegal organisations.”", "26. On 17 March 1995 the public prosecutor Selahattin Kemaloğlu took witness statements from Cavit Nacitarhan, Özer Akdemir, Salman Mazı, Murat Demir and Müjdat Yılmaz, who were all accused of being members of an illegal extreme left-wing organisation, the TDKP. The following depositions were taken.\n(a) Cavit Nacitarhan: “I was arrested on 12 September 1994 and remained in custody for twenty-four days. I did not know Kenan Bilgin. However, after my second day in custody I saw him every day. He would cry out: ‘My name is Kenan Bilgin, I have been in custody since 12 September and my name has not been entered on the records; if anyone is released, please inform the press, lawyers and human rights [associations] about my case.’ I do not know why he was arrested but I saw him over a period of twenty-one days. He was dressed only in his underpants. He did not have the strength to stand unaided and had to be supported by two people. After my release, I saw his photograph in newspaper articles about his disappearance and that is how I recognised him.”\n(b) Özer Akdemir: “I was taken into custody on 26 September 1994. I did not know Kenan Bilgin, but I saw him three times at the Security Directorate. He was dressed only in his underpants. I was in cell no. 6 and he was in cell no. 8. When he was taken to the toilets, he would cry out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear. My name has not been entered on the custody records.’ Later, he was taken from his cell. That is all I witnessed. [I] certify that the signature on the written statement made on 16 or 17 September 1994 is mine.”\n(c) Salman Mazı: “I certify that I signed the written statement dated 11 October 1994. When I was in custody at the offices of the anti-terrorist branch at the Security Directorate between 12 and 25 September 1994, I saw Kenan Bilgin on several occasions. At one stage, I noticed that he was being dragged by his arm to the toilets in his underpants. He was often taken for interrogation and was severely tortured. He was in cell no. 8. On the eighth day I saw him in the toilets. He said to me in a weak voice: ‘My name is Kenan Bilgin, I was arrested on 12 September at Dikmen. My name has still not been entered on the records. They are probably going to arrange for me to disappear. If you get out of here, contact the public prosecutor’s office and inform the press.’ The warder then appeared and reprimanded him for having spoken to me, before taking him away. Later I recognised his photograph in the newspapers.”\n(d) Murat Demir: “I was taken into custody on 10 September 1994 and was put in cell no. 11. Kenan Bilgin was in no. 13 or 14. I did not know him. We were severely tortured. The remand prisoner in no. 13 stopped me and, as I was known as ‘the lawyer’, asked me if I really was a lawyer. He gave me his name and continued: ‘I have been here for twenty-two days. My name has not been entered on the records. They probably want to arrange for me to disappear. I worked at a printer’s. If you are brought before a judge, tell the lawyers that I am here.’ He too was tortured. I heard the sounds of torture and groans. I certify that the signature on the written statement is mine and confirm the content. I saw his photograph in the newspapers later. However, he seemed far more exhausted and tired [in custody].”\n(e) Müjdat Yılmaz: “I confirm the content of the written statement of 11 October 1994. I do not know Kenan Bilgin, but I saw him on two or three occasions. I was in cell no. 2. I saw him being taken to the toilets by his torturers and heard him call out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear.’ I saw him like that three times. I am able to recognise these men [the police officers] because they also undressed my wife before my eyes. One of them was smaller than me, approximately 1.80 m tall with a receding hairline and was called ‘boss’ by the others. He was one of the men who took Kenan Bilgin away. I would recognise him without any hesitation. I made a statement to the public prosecutor who came to the prison.”", "27. Referring to the statements of these witnesses, the public prosecutor Selahattin Kemaloğlu enquired of the Ankara Principal Public Prosecutor whether an investigation had been started following the allegations that Kenan Bilgin had been tortured and had disappeared after being taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate.", "28. On the instructions of the public prosecutor Selahattin Kemaloğlu, two police officers from the Security Directorate at Üsküdar (Istanbul) took a statement from the applicant on 5 April 1994. The applicant stated that a cousin had informed him that his brother had been arrested in Ankara on 12 September 1994. He and his brothers had gone to the offices of the Ankara Human Rights Association, had consulted lawyers and had learnt that certain prisoners had claimed that Kenan Bilgin had been in custody in the same building as them but had not been brought before a judge for an order to be made for his detention pending trial.", "29. On 16 September 1995 the applicant had given a statement at Kısıklı (Istanbul) police station. He said that he had lodged a complaint with the Ankara public prosecutor’s office and had given the names of witnesses who said that they had seen Kenan Bilgin in the offices of the anti-terrorist branch at the Security Directorate. He had repeated his allegations and asked for news of his brother.", "30. By a letter of 27 December 1995 in which he referred to the applicant’s complaint and statement, the public prosecutor Selahattin Kemaloğlu requested the Pertek (Tunceli) public prosecutor’s office for the locality where the register of births of the Bilgin family was held to conduct an investigation into the alleged disappearance of Kenan Bilgin, and in so doing to have regard to the possibility that he may have taken part in PKK (Workers’ Party of Kurdistan) activities. He added that the Security Directorate considered the allegations of the applicant and his lawyers regarding the alleged disappearance at the hands of the police to be an attempt to damage the police’s reputation.", "31. By letters of 9 October and 27 November 1996 the Pertek public prosecutor instructed the district gendarmerie to make enquiries of the people with whom Kenan Bilgin was in close contact in order to establish whether he had joined the ranks of the PKK.", "32. On 3 December 1996 the gendarmes took a statement from someone who lived in the village in which Kenan Bilgin was born. He said that the Bilgin family had left the village forty years earlier and that he did not know whether Kenan Bilgin was a member of the PKK.", "33. On 9 July 1997 the public prosecutor Selahattin Kemaloğlu instructed the Ankara Security Directorate to carry out a search for Kenan Bilgin. The relevant part of his letter reads as follows.\n“An investigation has been carried out into allegations by İrfan Bilgin that his brother, who was arrested on 12 September 1994 at Dikimevi (Ankara), was taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate, that he was seen by other prisoners but has given no signs of life since. Other enquiries have been made into the possibility that Kenan Bilgin belongs to the PKK organisation or that attempts have been made to damage the police’s reputation, and enquiries have been made of the authorities of the village where he was born and in the locality where he resides. However, it is not been possible to reach any conclusion in this case.\n“I wish to request your department to start an investigation into every eventuality, namely whether Kenan Bilgin disappeared while in police custody, or whether he has joined the ranks of the PKK or has been hiding in secret in Turkey and has in fact been used by people close to him with a view to damaging the reputation of the police. I should be grateful if you would then inform me of the result of your findings.”\n(d) The findings of the delegates of the Commission on their visit to the Ankara Security Directorate on 20 September 1999", "34. The delegation visited the premises in which prisoners were held at the offices of the anti-terrorist branch of the Ankara Security Directorate. It was informed that alterations had been made to the layout of the cells on the ground floor at the end of 1994. There were now thirteen cells (three cells having been converted into a single cell) running along one side of a long, narrow corridor. The delegation found an empty room at the end of that corridor, with a small corridor leading off to the adjoining toilets. The prisoners’ names and numbers were written on cards inserted into slots above the doors with the reverse side facing outwards. The police officer in charge of the premises said: “Prisoners have no possibility of seeing or speaking to each other and their movements in the premises are made in accordance with official regulations. Dishes are passed directly through the door with the prisoners being required to stand back. The police officer in charge of the premises where prisoners are held has a list of the people in custody and of the cell numbers, and prisoners do not change cells while in custody.” The delegation carried out two experiments on the premises.\n(i) Two delegates were shut in two adjoining cells. One said his name out loud. He was heard by the other and by the group in the corridor.\n(ii) A delegate was shut in a cell and a lawyer from the delegation in a cell two doors away. In order to establish what they could hear, they were asked to speak in their cells. The lawyer heard the delegate’s voice but said that the noise from the ventilation system prevented him from making out what he said.\nThe delegation then visited the interrogation room on the first floor.\n(e) The custody records", "35. The name Kenan Bilgin does not appear on the custody records at the Ankara Security Directorate. The records show that several people were arrested and taken into custody at the Directorate between 8 and 29 September 1994, including Bülent Kat and Talat Abay on 8 September, Salman Mazı, Müjdat Yılmaz and Emine Öğün on 12 September, Sahir Çoban, Ayse Nur İkiz Akdemir, Özer Akdemir and Ercan Aktaş on 13 September, Murat Demir on 27 September, and Cavit Nacitarhan on 25 September.", "36. On 17 September in Strasbourg and between 20 and 22 September 1999 in Ankara, three Commission delegates took the following depositions.\n(a) İrfan Bilgin", "37. İrfan Bilgin is the applicant and Kenan Bilgin’s brother. He said that his brother had been arrested on 12 September 1994 at Dikmen (Ankara) and that he had been informed of the arrest approximately twenty days later.\nHis brother had been arrested as part of an operation that had been carried out by the security forces in different localities on the same day against members of the revolutionary movement.", "38. Kenan Bilgin had previously been in custody in 1977 and had spent three years in prison. He had been a member of the revolutionary movement since 1976 and had been on the police’s wanted list. In 1993 he had been arrested at Gaziantep (a town in south-east Turkey) in possession of false identity papers. He had been held for twenty-five days and severely tortured. He had told his family that the police had made threats on releasing him, warning him: “This time, you are safe, you have escaped with your life, but the next time we catch you, you will not leave here alive.”", "39. The applicant said that following his brother’s disappearance he had received two or three telephone calls from one Coşkun, who had informed him that his brother was being held at Gölbaşı (Ankara) and subjected to torture. He was in very poor shape and on a drip.", "40. The applicant said that he had contacted people who claimed to have been held on the same premises as Kenan Bilgin. After speaking to them, he had lodged applications with the Ministry of the Interior, the National Security Court, the Secretary of State for Human Rights and the Security Directorate. However, despite the evidence of several prisoners, those authorities had denied that his brother had ever been in custody.", "41. The applicant said that he had lodged a complaint with the public prosecutor’s office. However, he was unaware whether an investigation had been started. He had been required to attend the offices of the anti-terrorist branch at the Istanbul Security Directorate either once or twice and had repeated his allegations.\n(b) Murat Demir", "42. The witness is a lawyer who currently lives in Germany, where he has been granted political asylum. He said that he was arrested by police officers from the Ankara Security Directorate in his office on 27 September 1994 and held by the anti-terrorist branch for thirteen days. He was detained in a small cell and had changed cells on three or four occasions.", "43. He gave the following description of the premises where prisoners were held. The cells were not numbered and ran the length of one side of a corridor. On the other side of the corridor was a room used for torture, toilets, a bathroom that was also used for torture, the warders’ office and two other cells that were larger and better furnished than the others. The doors were equipped with small windows, approximately 20 to 30 cm across, through which the prisoners could be observed. Both the windows and the cell doors were opened from time to time by the warders. By pressing his head firmly against the aperture in the cell-door window, he was able to see what was going on outside and had thus seen the other prisoners when they were taken away to be tortured.", "44. When first taken into custody he had been put in a cell between the toilets and the bathroom that doubled up as a torture chamber. The prisoner in the cell next door was a university lecturer. The witness said that he had heard groans coming from the cell next to the lecturer’s. He explained that he was systematically tortured and that one evening, at the end of the torture session and after he had been taken back to his cell, the prisoner, who was groaning and was in very poor shape had said to him: “I have been detained for twenty-two days. My name is Kenan Bilgin. You are the lawyer of a close relative of mine, Hüseyin Özaslan, who is currently being held in Ankara Prison. My name has not been entered on the custody records. They are going to arrange for me to disappear. Could you inform my family and the lawyers that I have been detained?” On hearing this, the witness had tried to reassure the man, saying that he now had an eyewitness to his detention and that he could no longer be regarded as having disappeared. A few days later, on returning to his cell after another torture session that had lasted all night, he noticed that all the prisoners had changed cells. He had not see Kenan Bilgin again.", "45. The witness said that detention in police cells was not always entered on the custody record and that the police officers used that practice as a form of torture. He had heard them tell certain prisoners in custody: “We have not entered your name on the custody record. We can do as we please with you.”", "46. He said that he did not know Kenan Bilgin personally. Kenan Bilgin’s lawyer, Ms Hatipoğlu, had asked him while visiting the prison whether he had met Kenan Bilgin at the police station and he had informed her of their conversation.\n(c) Cavit Nacitarhan", "47. Cavit Nacitarhan said that he had been arrested on 12 September 1994 by the police for being a member of an illegal organisation, the TDKP. He had been held in custody for twenty-four days. For eighteen or nineteen days he had been taken for interrogation twice daily at 10 a.m. and 10 p.m. During the interrogation sessions he had been systematically tortured. For the remainder of his time in custody he had been given medical attention to remove the marks left by the injuries on his body.", "48. He described the events following his arrest as follows: he had firstly been taken to a place called Gölbaşı, where the police officers had threatened to kill him unless he cooperated with them; he had been interrogated there before being taken to the Ankara Security Directorate.", "49. The witness gave the names of other people who had been in custody during the same period. He said that he had learnt their names following a confrontation that had been organised with them or after meeting some of them in the prison. He had heard Kenan Bilgin’s name while in police custody.", "50. He related how, in general, prisoners were taken to the toilets in groups of four or five. However, that did not apply to certain prisoners, including himself and another prisoner. They were only allowed to leave their cells to go to the toilet when the doors of the other cells had been shut. Prisoners’ names, apart from his own and that of another prisoner who he later discovered was Kenan Bilgin, were written on small cards that were fastened to the cell doors. On seeing Kenan Bilgin’s photographs in the press, he had immediately realised that it was the same person. One day, when all the cells were closed, he had attempted to see what was going on in the corridor by looking through a small aperture next to the cell-door window. Although his angle of view had been very restricted, he had been able to make out two police officers leading a nearly naked prisoner whose eyes were blindfolded. The prisoner had been taken back to his cell many hours later. He had seen him several times being dragged across the floor to or from his cell.", "51. A few days later he had heard a prisoner saying: “My name is Kenan Bilgin. My name has not been entered on the custody record. Please inform my family and public opinion about my case.” He had heard the same person cry out several times from the bathroom that had been converted into a torture chamber. The man had been asked repeatedly: “What is your name? Tell us your name. Do not shout.”", "52. On 26 September a confrontation had been organised with other prisoners who had been arrested as part of the same operation. Kenan Bilgin was not among them. On 3 October 1994 the witness had again seen Kenan Bilgin being led away by police officers. He was in very poor shape. That same evening there seemed to be a panic and the doors had remained closed throughout the evening. Police officers were running in all directions. Since that day, he had not seen Kenan Bilgin again. In his opinion, Kenan Bilgin was executed on 3 October.", "53. The witness said that the applicant had visited him in prison in 1996 and that was how he had informed him of the date he was taken into custody. They had had a very short discussion about Kenan Bilgin. He said that he had sent a written statement through his representatives certifying that Kenan Bilgin had been present at the Ankara Security Directorate.", "54. According to the witness, although he had been taken into custody on 12 September 1994, his detention had not been recorded until 26 September 1994, after his admission to hospital. He had informed the public prosecutor of that fact but the public prosecutor had merely accepted the police officers’ account.\n(d) Bülent Kat", "55. Bülent Kat said that he had been arrested on 8 September 1994 with two other people and had remained in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate for fifteen days. When first detained, three or four prisoners were being held; a week later, their number had risen to approximately fifty.", "56. The first prisoner he noticed was Cavit Nacitarhan, who was the nephew of a member of Parliament and occupied the cell next to his. The police officers had began the torture sessions with Cavit, whose body was swollen and covered in bruises and who had difficulty walking. The witness had a clear view of prisoners being taken to the torture chamber, which was diagonally opposite his cell.", "57. He related how, after Cavit Nacitarhan was interrogated, it was the turn of another prisoner to suffer the same treatment. The question he heard most often was: “What is your name?” The prisoner’s cries had turned into grunts and groans. The last time he had seen him brought by a group of police officers for a torture session, either on 18 or 19 September, was identical to the others: the same groans, the same question, the same insults, the same cries. The witness went on: “Suddenly, there was total silence. The police officers came out of the torture chamber and a man carrying a black bag went inside. He looked like a doctor, but was probably from the police. They brought the prisoner out, dragging him behind them.”", "58. The witness said that the warders opened the windows in their cell doors from time to time to give them bread or water. However, the aperture in the windows to the cells of Cavit Nacitarhan and the prisoner referred to above were kept shut.", "59. He said that he did not know Kenan Bilgin before his arrest and had identified him from photographs in the press.", "60. In practice, detention at the anti-terrorist branch was not entered on the records on the day the prisoner was taken into custody. The practice depended on how the interrogation proceeded.", "61. The witness repeated that Kenan Bilgin had been on the same premises as him for at least fifteen days and had been tortured throughout that period.", "62. He stated that he had signed a statement on 11 October 1994 as testimony for the benefit of public opinion and had made a statement to the public prosecutor.\n(e) Talat Abay", "63. Talat Abay said that he had been arrested on 8 September 1994 as a member of an illegal organisation, Rizgari, and had been held in custody for fifteen days at the Ankara Security Directorate. On 12 September a number of people had been taken into custody and all the cells were occupied. While in custody, prisoners were systematically subjected to torture.", "64. He had known Kenan Bilgin before September 1994, as he had stayed at the witness’s home for almost two years in 1985 and 1986.", "65. He had seen Kenan Bilgin on the night of 18 or 19 September 1994, when he was taken to the toilet. They had made eye contact but had not spoken.", "66. The witness said that he had made a written statement confirming that Kenan Bilgin had been held in custody. In addition, he added that at his trial before the National Security Court he had testified to meeting Kenan Bilgin at the Ankara Security Directorate.\n(f) Ercan Aktaş", "67. The witness, who was a student at the material time, had been held in custody from 13 to 27 September 1994, for being a member of the PKK.", "68. As he had said in his written statement, he and the other prisoners had been systematically taken for torture sessions. The torture chamber was near his cell. For several nights another prisoner had been taken to the torture chamber after him. He was always asked the same question, “What is your name?”, and he had heard cries and groans. He had seen him once, through an aperture in the cell-door window, for five or six seconds, from the front and distinctly, being supported by two police officers. The prisoner could not walk without assistance and dragged his feet. The witness had subsequently learnt, after being transferred to prison, that the prisoner’s name was Kenan Bilgin.", "69. The witness said that he had no difficulty in being certain that the prisoner who had groaned and cried out in agony was Kenan Bilgin, since he had seen almost all of the other prisoners in prison.", "70. The police officers would accompany them to the toilet and when they washed their hands and faces in the wash basins, they had an opportunity of meeting other prisoners.\n(g) Sahir Çoban", "71. Sahir Çoban accompanied the delegates when they visited the offices of the anti-terrorist branch of the Ankara Security Directorate.", "72. At the material time he was a teacher. He had been arrested by the police on 12 September 1994 in the village where he taught for aiding and abetting an illegal organisation. He had been detained at the Ankara Security Directorate on 13 September 1994.", "73. The witness reported his findings concerning the premises visited by the delegates of the Commission. The premises had been altered. The cells had been ventilated through the open cell-door windows, there being no ventilation through the ceiling. The room where the custody records were made up had been at what was now the entrance. The cells had been smaller and closer together and there had been additional cells along another corridor. The witness had been held in one of those cells and had remained there for approximately seven days. On the second or third day of his detention, he had been able to make out, through the open window in his cell door, two other prisoners in cells diagonally opposite his own, approximately three metres away. He did not know Kenan Bilgin before his arrest. He had seen his photograph in the offices of the Human Rights Association. He had made a statement that he had seen him in custody at the Security Directorate and had agreed to give evidence to that effect.", "74. After making his statement he had been intimidated, in the presence of his wife, by a police officer who had visited him at the school where he taught. The police officer had made threats such as: “You eat from the State’s plate. I will not allow you to dirty that plate. You will suffer the same fate as Kenan Bilgin.” He added that, despite the threats, he had deposed before the National Security Court in November 1994.\n(h) Müjdat Yılmaz", "75. Müjdat Yılmaz said that he had been accused of being a member of the TDKP. He had been arrested on 12 September 1994 and had remained in custody until 26 September 1994.", "76. As his two closest relatives had also been detained on the same premises, he had endeavoured to keep watch through an aperture in the cell-door window to see what was happening in the corridor. On 16 or 17 September he had seen a prisoner in the toilets, with his back to the wall. The prisoner was exhausted and did not have the strength to remain upright. He was being insulted and pulled backwards by his hair. The witness had seen the same prisoner on another occasion, in similar circumstances, being dragged along by police officers. On the third occasion he saw him, the prisoner was in very poor shape and incapable of standing up. He had cried out: “My name is Kenan Bilgin. I am registered at Tunceli. The police want to kill me. When you get out of here, inform public opinion about my case.” The officers in charge had prevented him from saying any more by taking hold of him by his hair and hitting him. After being transferred to prison, the witness had learnt that the prisoner concerned was called Kenan Bilgin.", "77. The witness said that it was possible to communicate from one cell to another by raising one’s voice and that he had thus been able to converse from time to time with his niece.", "78. In addition to his written statement he had made a deposition in prison in which he had stated that he could identify the police officers who had dragged Kenan Bilgin back to his cell. The same officers had undressed his wife before his eyes and he was certain he would recognise them.\n(i) Salman Mazı", "79. Salman Mazı said that he had been arrested for aiding and abetting the TDKP and held in custody from 12 to 26 September 1994.", "80. He had seen Kenan Bilgin in person three times and for almost fifteen days had heard his groans when he was taken away for interrogation.", "81. Two prisoners were treated differently from the others. One was Cavit Nacitarhan. They were taken separately to the toilet, being dragged there by their arms by two police officers. On his eighth day in custody, while the witness was washing his hands in the washroom, one of the two prisoners had been brought there. He looked exhausted and had whispered: “My name is Kenan Bilgin. I was taken into custody on 12 September and my name has still not been entered on the record. I think they want to kill me or to arrange for me to disappear. Inform public opinion about my case.” The warder had intervened and dragged him back to his cell. He had seen him a second time, lying on his bed in his cell opposite the toilets in his underpants. A day or two later, he had seen him through the window in his cell door. He was being dragged away.", "82. The witness affirmed that he had heard Kenan Bilgin cry out from his cell, giving his surname, first name and the name of the province from which he came.\n(j) Emine Öğün", "83. Emine Öğün said that she had been arrested with her husband on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September 1994.", "84. Two days before her release, when asking for water through the window in her cell door, she had seen a prisoner in a bad condition who had said to her: “My name is Kenan Bilgin. I was taken into custody on 12 September.”\n(k) Ayşe Nur İkiz Akdemir", "85. Ayşe Nur İkiz Akdemir said that she had been arrested on 12 September 1994 at Çanakkale. She had been detained at the Ankara Security Directorate from 13 to 25 September.", "86. She affirmed that she had heard someone cry out “My name is Kenan Bilgin”, and had caught a glimpse, through her cell window, of a dark man, bald and with a moustache, whom she had later identified as Kenan Bilgin.", "87. The witness said that the public prosecutor had taken a statement from her in prison and had asked her to describe the circumstances in which she had seen Kenan Bilgin. \n(l) Özer Akdemir", "88. Özer Akdemir said that he had been arrested on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September.", "89. He had been systematically subjected to torture while in detention. He had been able to see through an aperture in the cell-door window that the prisoner in cell no. 8 was subjected to more intensive torture then he. He had seen him being dragged along by four police officers, two of them supporting him by the arms. On the same date he had seen a person with a bag go into cell no. 8 and had heard someone say: “He is not taking any milk. He is not drinking any milk.” On another occasion the witness had seen, again through the window in his cell door, the same prisoner being taken to the toilet. The prisoner had cried out: “My name is Kenan Bilgin. They want to arrange for me to disappear.”", "90. The witness explained that in principle prisoners were not allowed to communicate with each other. However, they would either speak in whispers while at the wash basins or attempt to make themselves heard between cells.", "91. The witness affirmed that he had drafted his written statement in the prison where he was detained. He had been questioned about it by the public prosecutor .\n(m) Özden Tönük", "92. Özden Tönük said that at the material time he had been the Ankara Principal Public Prosecutor, a position he still held. He had not been directly responsible for the investigation into the allegations concerning Kenan Bilgin’s disappearance. His letter of 13 January 1995 to the Ankara public prosecutor’s office contained a description of the actual conditions of detention and of the quarters used for holding prisoners at the Ankara Security Directorate.", "93. He had been to the Security Directorate and had inspected the premises. He had heard evidence from people who said that they had seen Kenan Bilgin in custody. Without giving details, the witness affirmed that their statements were inconsistent. He declined to comment on the conclusion, which read: “Accordingly, it has been concluded that the statements of the persons held in custody were not true.”", "94. The witness explained that he had drafted his report at the request of the Ministry of Justice and had not organised any confrontation between the prisoners who claimed to have seen Kenan Bilgin and the police officers present on the premises at the material time.\n(n) Selahattin Kemaloğlu", "95. Selahattin Kemaloğlu said that at the material time he had been the Ankara public prosecutor. He was now the public prosecutor for the district of Elmadağ (Ankara).", "96. The witness said that it had been another prosecutor, Özden Tönük, who had started the investigation into Kenan Bilgin’s disappearance. The witness had been assigned to the case after a complaint was lodged by Kenan Bilgin’s brother.", "97. He summarised his investigation as follows. He had sent a letter to the Ankara Security Directorate enquiring whether Kenan Bilgin had been detained there. The police had replied that he had at no stage been in custody. He had taken evidence from the witnesses whose names had been supplied by İrfan Bilgin and they had repeated their written statements, saying that they had seen Kenan Bilgin, in very poor shape, in custody at the Ankara Security Directorate. After hearing that evidence he had become convinced that Kenan Bilgin had disappeared like many others.", "98. The witness went on to say: “At the material time there had been a number of cases of disappearances and, as a prosecutor, I was very disturbed by this. On hearing the evidence of the witnesses, I realised that the information given by the police did not reflect the truth. I received no replies to the letters I sent to other police departments. I sent the documents from the investigation to the Principal Public Prosecutor, Özden Tönük, with a request for the cases to be joined. However, the case file was returned to me. I asked the Principal Public Prosecutor to institute criminal proceedings against the head of the Security Directorate under the laws that made it an offence to refuse to cooperate with the relevant prosecuting authorities, as he had failed to produce a list of the police officers on duty when the alleged offences were committed. As the authorities did not respond, I was unable to interview the police officers or to arrange a confrontation with the eyewitnesses. The police enjoyed a sort of immunity at the time. I was not able to visit the premises where the prisoners were detained.”", "99. The witness explained that 12 September was a relatively sensitive date in Turkey and that, at that time of the year, several thousand people were being held in police custody; some of them later disappeared. He said: “At the material time we, the prosecutors, were unable to inspect prisons or police stations. During a visit to the Security Directorate, I heard certain noises and asked the police officers where they were coming from. They replied that they had recorded the sound of people crying out in pain with a view to subduing prisoners. With regard to the present case, I tried to investigate it to the best of my ability. I had strong suspicions but did not manage to get very far. I am of Kurdish origin and my telephone line was being monitored. I was transferred to Elmadağ (Ankara), the district where I worked thirty years ago.”\n(o) Mehmet Karataş", "100. Mehmet Karataş said that at the material time he was a police officer with the anti-terrorist branch of the Ankara Security Directorate. He was responsible for compiling the custody records.", "101. He described how the custody records were held. The following information was noted on them: the surname and first name of the accused; the surname and first names of the accused’s mother and father; the accused’s date of birth; and the date and time the accused was taken into custody. He said that it was impossible for the name of a person taken into custody to be omitted from the record and that he was under fairly strict instructions in that regard. He said that a custody report was sent every day to the departmental head and to the public prosecutor at the National Security Court.", "102. He indicated that the labels attached to the door handles were numbered and that the prisoners’ names were written on other labels that were affixed to the cell doors.", "103. With regard to the complaint concerning Kenan Bilgin’s disappearance, he had not been interviewed by the authorities and had not been the subject of any investigation. The witness was unable to say whether a prosecutor had inspected the premises in connection with the investigation. According to him, all the allegations of torture had been invented by certain movements hostile to the government and were totally unfounded.", "104. He said that before the events that had given rise to the present case Kenan Bilgin had been arrested for being a member of the TDKP. He had been charged and had served his sentence. He had also been taken into custody for other activities as a member of that illegal organisation. His name was on file and the anti-terrorist branch had his case file containing details of his criminal record and of his membership of an illegal organisation.\n(p) Ülkü Met", "105. Ülkü Met said that at the material time he was deputy director at the Ankara Security Directorate.", "106. He stated that after Kenan Bilgin’s brother had lodged the complaint, the public prosecutor had begun an investigation and had made four or five written requests to the Security Directorate for information, but he had not inspected the premises.", "107. The witness stated that the operation carried out by the police against the TDKP between 12 September and 21 November 1994 was routine and had been undertaken on the basis of information and statements received. The police had relatively large numbers of files on persons who were in custody or had been convicted for belonging to illegal organisations. He said that Kenan Bilgin had not been arrested during the operation; his name was not on the custody record and, in his opinion, the other prisoners’ claims that Kenan Bilgin had been detained at the Security Directorate had been concocted by militants.", "108. He explained that at all times at least two police officers were on duty with the responsibility of carrying out body searches on anyone who had been arrested, collecting their personal effects and getting them to sign a list setting these out. They were also required to enter the names of persons arrested on the custody record.", "109. The witness dismissed all allegations of ill-treatment or torture during custody and stated that, while he had been deputy director, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had carried out two ad hoc visits to the Security Directorate. He was, however, unable to comment on the two public statements made by the CPT, in which they had found: “Torture and other forms of ill-treatment were still important characteristics of police custody.”", "110. The witness rejected the assertion of the public prosecutor Selahattin Kemaloğlu that the Security Directorate had failed to cooperate with him and said that prosecutors in charge of investigations could inspect the premises at any time." ]
[ 0, 2 ]
[ "11. On 29 April 1962 the applicant married Mr A. Gigliozzi in a religious ceremony which was also valid in the eyes of the law (matrimonio concordatario).", "12. On 23 February 1987 the applicant petitioned the Rome District Court for judicial separation.", "13. In a judgment dated 2 October 1990 the District Court granted her petition and also ordered Mr Gigliozzi to pay the applicant maintenance (mantenimento) of 300,000 Italian lira per month.", "14. In the meantime, on 20 November 1987, the applicant was summoned to appear before the Lazio Regional Ecclesiastical Court of the Rome Vicariate on 1 December 1987 “to answer questions in the Gigliozzi-Pellegrini matrimonial case”.", "15. On 1 December 1987 the applicant went alone to the Ecclesiastical Court without knowing why she had been summoned to appear. She was informed that on 6 November 1987 her husband had sought to have the marriage annulled on the ground of consanguinity (the applicant’s mother and Mr Gigliozzi’s father being cousins). She was questioned by the judge and stated that she had known of her consanguineous relationship with Mr Gigliozzi but did not know whether, at the time of her marriage, the priest had requested a special dispensation (dispensatio).", "16. In a judgment delivered on 10 December 1987 and deposited with the registry on the same day, the Ecclesiastical Court annulled the marriage on the ground of consanguinity. The court had followed a summary procedure (praetermissis solemnitatibus processus ordinarii) under Article 1688 of the Code of Canon Law. That procedure is followed where, once the parties have been summoned to appear and the defensor vinculis (defender of the institution of marriage) has intervened, it is clear from an agreed document that there is a ground for annulling the marriage.", "17. On 12 December 1987 the applicant was notified by the registry of the Ecclesiastical Court that on 6 November 1987 the court had annulled the marriage on the ground of consanguinity.", "18. On 21 December 1987 the applicant lodged an appeal with the Roman Rota (Romana Rota) against the Ecclesiastical Court’s judgment. She submitted first that she had never received a copy of the judgment in question and complained that the court had not heard her submissions until 1 December 1987, which was after it had delivered its judgment of 6 November 1987. The applicant also alleged a breach of her defence rights and of the adversarial principle on account of the fact that she had been summoned to appear before the Ecclesiastical Court without being informed in advance either of the application to have the marriage annulled or the reasons for that application. She had therefore not prepared any defence and, furthermore, had not been assisted by a lawyer.", "19. On 26 January 1988 the registry of the Ecclesiastical Court informed the applicant that there had been a clerical error in the notification sent to her on 12 December 1987 and that the judgment was dated 10 December 1987.", "20. On 3 February 1988 the defensor vinculis submitted observations to the effect that the applicant “had acted correctly in appealing against the judgment” (la convenuta aveva agito giustamente facendo appello contro la sentenza) of the Lazio Court. Accordingly, in a summons of 9 March 1988 the reporting judge of the Rota summoned the parties and the defensor vinculis to appear.", "21. On 10 March 1988 the applicant was informed that the Rota would examine her appeal on 13 April 1988 and that she had twenty days in which to submit observations. On 29 March 1988 the applicant, who was still unassisted by a lawyer, submitted her observations, in which she complained, inter alia, that she had not had adequate time and facilities for the preparation of her defence. She gave details of the financial arrangements between herself and her ex-husband and stressed that the annulment of the marriage would have substantial repercussions on her ex-husband’s obligation to pay her maintenance, which was her only source of income.", "22. In a judgment of 13 April 1988, which was deposited with the registry on 10 May 1988, the Rota upheld the decision annulling the marriage on the ground of consanguinity. The applicant received only the operative provisions of the judgment, her request for a full copy of it having been refused.", "23. On 23 November 1988 the Rota informed the applicant and her ex-husband that its judgment, which had become enforceable by a decision of the superior ecclesiastical review body, had been referred to the Florence Court of Appeal for a declaration that it could be enforced under Italian law (delibazione).", "24. On 25 September 1989 the applicant’s ex-husband summoned her to appear before the Florence Court of Appeal.", "25. The applicant appeared before that court and requested it to set aside the Rota’s judgment for infringing her defence rights. She stated that she had not received a copy of the application to have the marriage annulled and had been unable to examine the documents filed in the proceedings, including the observations of the defensor vinculis. She requested the court to refuse to declare the Rota’s judgment enforceable, submitting that, in any event, the proceedings would have to be reopened in order to allow her to examine and reply to the documents filed in the proceedings under canon law. She requested, in the alternative, in the event that the court should declare the judgment enforceable, that her ex-husband be ordered to pay her monthly maintenance for the rest of her life.", "26. In a judgment of 8 November 1991, deposited with the registry on 10 March 1992, the Florence Court of Appeal declared the judgment of 13 April 1988 enforceable. The court found that the opportunity given to the applicant on 1 December 1987 to answer questions had been sufficient to ensure that the adversarial principle had been complied with and that, moreover, she had freely chosen to bring the proceedings before the Rota and had been able to exercise her defence rights in those proceedings “irrespective of the special features of proceedings under canon law”. The court went on to hold that it did not have jurisdiction to award her maintenance “for the rest of her life”; as far as a possible award of interim maintenance (assegno provvisorio) was concerned, which was a provisional arrangement, the court pointed out that the applicant had not in any event proved that she needed the money.", "27. The applicant appealed on points of law, repeating her submission that her defence rights had been infringed in the proceedings before the ecclesiastical courts. She submitted, among other things, that the Court of Appeal had omitted to take account of the following features of the proceedings before the ecclesiastical courts: the parties cannot be represented by a lawyer; the respondent is not informed of the reasons relied on by the petitioner for having the marriage annulled until he or she is questioned; the defensor vinculis, who acts as the respondent’s guardian, is not obliged to lodge an appeal; an appeal must be lodged personally by the party in question and not by their lawyer; the ecclesiastical court is not particularly autonomous. She repeated that she had not been informed in detail of the application to have the marriage annulled or of the possibility of being assisted by a lawyer. Furthermore, the proceedings at first instance had been too quick. The applicant also criticised the fact that the Court of Appeal appeared to have omitted to examine the case file relating to the proceedings before the ecclesiastical courts, which might have yielded evidence in the applicant’s favour. Besides that, the applicant submitted that she had shown herself to be in financial need and was therefore entitled to maintenance.", "28. During the proceedings the applicant had requested the registry of the Ecclesiastical Court to give her a copy of the documents filed in the annulment proceedings in order to produce them before the Court of Cassation, but the court clerk had refused to grant her request on the ground that the parties could receive only the operative provisions of the judgment, “which should be sufficient to allow them to exercise their defence rights”.", "29. In a judgment of 10 March 1995, deposited with the registry on 21 June 1995, the Court of Cassation dismissed the appeal. It held, first of all, that the adversarial principle had been complied with in the proceedings before the ecclesiastical courts; moreover, there was case-law authority to support the view that while the assistance of a lawyer was not a requirement under canon law, it was not forbidden: the applicant could therefore have taken advantage of that possibility. The court also held that the fact that the applicant had had a very short time in which to prepare her defence in November 1987 did not amount to an infringement of her defence rights because she had not indicated why she had needed more time. With regard to the request for maintenance, the Court of Cassation held that the Court of Appeal could not have decided otherwise, given that the applicant had mistakenly referred to maintenance “for the rest of her life” and, furthermore, had failed to show that she was entitled to maintenance and needed it. The Court of Cassation did not rule on the fact that the case file relating to the proceedings under canon law had not been examined by the Court of Appeal.", "30. From June 1992 the applicant’s ex-husband ceased paying her maintenance. The applicant therefore began enforcement proceedings for payment of the maintenance by serving notice (precetto) on him to pay it. On 6 November 1994 her ex-husband lodged an objection with the Viterbo Court, which, in a judgment of 14 July 1999, upheld his objection and ruled that he no longer had to pay maintenance because the Florence Court of Appeal had declared that the decision annulling the marriage was enforceable. The applicant did not appeal against that judgment because on 19 June 2000 she reached an agreement with her ex-husband (under the terms of that agreement she also withdrew another set of proceedings that she had instituted in the Viterbo Court claiming joint title to property)." ]
[ 3 ]
[ "7. The applicant is a Lithuanian national, born in 1974.", "8. From 5 October 1993 the applicant served a sentence of nine years’ imprisonment for the theft, possession and sale of firearms. On an unspecified date in early April 1998 he was transferred from Lukiškės Prison to Pravieniškės Prison (Pravieniškių 2-oji sustiprintojo režimo pataisos darbų kolonija).", "9. From the moment when the applicant arrived in Pravieniškės Prison he was placed in the separate segregation unit of the prison (Sunkiai auklėjamųjų būrys – “the SAB”), located in Wing 5 of the prison (V lokalinis sektorius). On 30 June 1998 the applicant was released from the SAB and detained under normal conditions in Section 13 and later in Section 21 (13 ir 21 brigados), located in Wing 1 of the prison (I lokalinis sektorius). From 5 to 20 January 1999 the applicant was detained in solitary confinement (Baudos izoliatorius). He was again placed in the SAB on 20 January 1999. The applicant stayed in Pravieniškės Prison until his release on 14 April 2000 following a presidential pardon.", "10. The present case concerns the conditions of the applicant’s detention in Pravieniškės Prison and his treatment there from April 1998 until April 2000.", "11. The evidence of the applicant was taken by the Court delegates in Vilnius on 25 May 2000 and then in Pravieniškės on 26 May 2000. The applicant’s statements may be summarised as follows.\n (a) General conditions of detention\n(i) The SAB", "12. The unit consisted of a dormitory where twenty-two inmates were held, a small kitchen, a relaxation room and a shower cubicle. In the applicant’s view, only six to eight persons could be held in the SAB, and it was accordingly seriously overcrowded. Only the dormitory had windows. There were no windows or ventilation in the kitchen and the relaxation room. A window was installed in the kitchen during renovations in 1999.", "13. The SAB had a corridor leading to the small courtyard outside. The yard was closed off above with wire netting, which was covered with snow in the wintertime. As a result there was a lack of light in the courtyard during the winter.", "14. The toilets consisted of eight Asian-type “squat” holes, which lacked partitions. Inmates in the SAB used the toilets one by one in order to respect each other’s privacy. There were no windows, and a ventilation system was installed in the toilets only after renovations in late 1999. As a result the toilets smelled terribly.", "15. There was no access to the prison laundry for washing private clothes; it therefore had to be done by hand in bowls in the shower. Drying such items in the small courtyard was complicated. In addition, no private bedding was allowed. Every inmate received from the prison administration bed linen and towels, which were regularly washed in the prison laundry.", "16. The administrative officers visited the SAB only during the distribution of meals and check-ups. The prison governor used to visit the unit from time to time. Doctors went to the SAB very rarely. The only way of communicating with the outside world was by telephone. On 11 June 1998 the applicant felt that he had a fever. His condition was so serious that he missed the regular check-ups at the SAB and lay in bed. He asked the guards to send for a doctor. He also used the special telephone line connecting the SAB to the prison medical service. However, no one answered, as it was lunchtime. The applicant did not telephone the medical service again. Instead, he orally asked the SAB guards for a doctor several times a day. The medical staff only arrived on 16 June 1998 and confirmed that he had caught a cold. He was told to stay in bed.", "17. No work, recreation or other meaningful activities were organised in the unit. The only reasonable activity permitted in the SAB was playing chess. The applicant conceded that there were no restrictions on watching television, reading or listening to the radio.\n(ii) The normal regime (Wing 1)", "18. The applicant was detained in Sections 13 and 21 located in Wing 1 of the prison. Each of the five wings of the prison was intended to hold 300 prisoners. The prison was seriously overcrowded. There were approximately 400 detainees in Wing 1, which consisted of 12 sections – namely dormitories with adjacent toilet areas – where 20 to 30 prisoners were held. A total of 32 inmates were sleeping in Section 13 at the time of the applicant’s placement there. Section 21 accommodated 24 inmates. In the applicant’s view, a maximum of eight people could be held in Section 13 and six people in Section 21. The sections lacked air, especially at night, due to overcrowding. Two-tier bunk beds were installed in the dormitories and the windows were almost completely hidden by these beds, thus obstructing the flow of fresh air from the outside. During the day, prisoners were allowed to circulate freely within the wing and its outside stroll yard.", "19. Sanitary conditions were deplorable. Toilets, sinks and shower facilities were infested with germs. There were various leaks and the water pipes were very old, rusty and covered with mould. The toilets in the sections consisted of several Asian-type “squat” holes with no partitions between them. Toilet paper was only provided sporadically. The applicant stated that it was very difficult to keep himself clean as he was only allowed to shower once a week on designated days. Showering on an unspecified day was penalised. Shower facilities only worked five days a week, and were always overcrowded. During the summer, hot water was only available at weekends. The applicant’s bedding was washed in the prison laundry. Private items such as clothes had to be washed by hand in a sink.", "20. Food was served three times a day. Only 2.17 litai (LTL) per prisoner per day were allocated by the authorities for the catering in Pravieniškės Prison. The food was always cold, and there were no facilities to heat it. Vegetables were only added to a course once a week. Lunch was impossible to eat due to its awful taste at least three times a week. Overall, food was not prepared in a sanitary manner. At times the applicant had found wood shavings, little stones and pieces of metal in his food. Supplementary food could be provided by the prison canteen only when a special diet had been recommended by a doctor. As the prison canteen was not big enough for all prisoners, catering was organised in shifts. However, the number of inmates at each shift was always greater than the number of places in the canteen. A prisoner who arrived late would be left without food. There was a prison shop where detainees could obtain additional food. The applicant acknowledged that he regularly had a couple of hundred litai on his account in the prison shop. There was also a limited list of items that could be given by prisoners’ relatives during personal visits. The applicant was permitted to receive additional food from his relatives.", "21. Qualified doctors only visited the prison occasionally. It was therefore impossible to have permanent, professional medical assistance at the prison infirmary. The infirmary lacked medication, especially painkillers. All illnesses were treated with aspirin and paracetamol. The applicant stated that he had a heart disease. He admitted, however, that he had not undergone an appropriate cardiology test at the infirmary. The applicant also alleged that he had a knee problem due to his huge overweight. The prison administration had not performed a knee operation due to a lack of facilities. The applicant acknowledged, however, that the knee operation was not a matter of primary urgency. Once out of prison, he had not sought a knee operation due to its high cost. The applicant further stated that he had had gastritis, but the prison doctors had refused to prescribe a better diet for him in the prison canteen.", "22. Following an order of the Minister of the Interior, from August to November 1998, all prisoners were subjected to a “standing regime”. No prisoner was permitted to lie in bed from the wake-up call at 6.30 a.m. to lock-in at 10.30 p.m., that is sixteen hours a day. Exceptions to the order were permitted only upon recommendation by a doctor. The applicant complained that many detainees, himself in particular given his weight and heart problems, were unable to endure this regime. The prison doctors found, however, that the applicant was fit to comply with the order. Upon various complaints by the applicant and other prisoners, the Ombudsman recommended that the order be revoked. The applicant alleges that it was nevertheless maintained.", "23. There was no work provided within the prison, and the number of meaningful activities was very limited. Weather permitting, it was possible to engage in open-air sports in the exercise yard; however, no such possibilities existed in winter. There were also few concerts or cinema shows. No retraining or educational programmes were organised in the prison.", "24. The applicant had initially complained about an interference with his right to receive visits from his relatives. During the interview with the Court delegates he admitted, however, that he had been afforded sufficient opportunities to receive visits, particularly following an intervention by the Ombudsman further to a complaint on his part.\n(iii) The solitary confinement cell", "25. From 5 to 20 January 1999 the applicant was placed in a solitary confinement cell of approximately 6 sq. m where he was held with another person. There was an Asian-type toilet, a sink for washing, and a table in the middle of the room.\n(b) Specific acts by the prison administration\n(i) The body search of 7 May 1998", "26. On 7 May 1998 the applicant had a personal visit when he was given some additional food. Afterwards he was stopped in the access zone for the usual security check to establish whether he had been given any illegal items. The chief guard, P., conducted the search, while two other officers looked on. P. told the applicant to take off his clothes. When the applicant was only in his underwear, a female prison officer, J., came into the room. P. then told the applicant to strip naked. The officer threatened him with a reprimand in case of non-compliance. The applicant submitted to the order, taking off his underwear, in the presence of Ms J. She was watching the check with the rest of the officers and was smoking. The applicant’s body, including his testicles, was examined by the male officers. The officers wore no gloves, touching the applicant’s sexual organs and then the food given to him by his relatives, without washing their hands. The applicant was also ordered to do sit-ups to establish whether he had concealed anything in his anus. No unauthorised item was found on him. He alleged that the purpose of the check had been to ridicule him in front of the woman.\n(ii) Alleged victimisation of the applicant and the absence of review", "27. According to the applicant, the lower-ranking prison staff were very poorly qualified, had an inferiority complex, and showed their authority in a degrading manner. The administration tolerated the constant consumption of alcohol by the prison staff during working hours. Many prisoners were allegedly employed as secret informers by the administration, in return for promises of parole or conditional release. The actions of the prison staff concerning the applicant were provocative. The applicant received daily abuse because of his firm opposition to and the criticism of the general policies of the penitentiary system in Lithuania, as well as his specific criticism of the conditions of detention at the prison. He gave the following examples of his alleged victimisation.", "28. The applicant’s placement in the SAB in April 1998 had been arbitrary, as he had had no disciplinary record before that date. Following his release from the SAB on 30 June 1998, he was detained under the normal regime and even afforded better conditions of detention. On 20 August 1998 some prisoners established an association for their mutual assistance and support called Aim. The applicant was elected President of that association. On 24 August 1998 the administration imposed on the applicant a disciplinary penalty, depriving him of the better detention conditions. The official ground for that penalty, imposed on the basis of information given to the administration by a secret informer, was the fact that the applicant had beaten another prisoner. The applicant denied the beating, stating that he had been present at the incident without intervening. The applicant’s complaints to the Prison Department and the Ombudsman about the unlawfulness of the penalty were rejected as unsubstantiated.", "29. On 10 October 1998 the applicant’s right to buy food at the prison shop was suspended for one month, and on 13 October 1998 he received a disciplinary warning for threatening other prisoners with force. The administration rejected his complaints against these penalties. His application against a staff member, Officer Kmieliauskas, who had allegedly initiated these penalties, was not examined.", "30. On 15 October 1998 the applicant was penalised for leaving the territory of Wing 1. He was ordered to wash the windows of Section 21. The execution of this penalty was to be controlled by Officer Kmieliauskas. The applicant initially refused to wash the windows in the presence of the said member of staff and other prisoners, as this allegedly meant the manifest abuse of his right to complain about that member of staff. The applicant later washed the windows while not being observed. Officer Kmieliauskas refused to accept that the work had been done.", "31. On 16 October 1998, as the prison governor was absent, Officer Kmieliauskas ordered the applicant’s solitary confinement. He was instantly conveyed to the solitary confinement cell in handcuffs. Within an hour, the prison governor returned to the prison. After hearing the applicant and certain prison officers, the prison governor decided that the applicant had not been in breach of duty on 15 October 1998 and the applicant was immediately released from solitary confinement.", "32. In his written submissions to the Court, the applicant stated that on 23 October 1998 he had been warned for still being asleep at 6.40 a.m., this being ten minutes after the regulation wake-up call. During the meeting with the Court delegates he insisted that the officers had arrived and found him in his bed at 6.30 a.m. On 28 October 1998 he received a further disciplinary warning for queuing beyond the privacy line while waiting to call his relatives on the telephone.", "33. In December 1998 “confidential sources” informed the applicant that one member of staff, B., was involved in criminal activities relating to the falsification of documents. On 28 December 1998 the applicant lodged a specific complaint against B. on behalf of Aim. The complaint was given to the administration in order to be transmitted to the Ombudsman. On 29 December 1998 a high-ranking member of the prison administration allegedly requested the applicant not to send the complaint, promising that B. would be dismissed, and that the applicant would be afforded better detention conditions. The applicant refused to do so and insisted on the onward transmission of the complaint. According to the applicant, B. was forced to leave the prison service as a result of the Ombudsman’s investigation. In December 1998 the applicant also filed with the Ombudsman a complaint against another staff member, P., for allegedly abusing his authority. The applicant claimed, in particular, that P. had deliberately provoked conflicts with the applicant and other prisoners. This complaint was dismissed as unsubstantiated.", "34. On 21 December 1998 the applicant met the prison governor, who granted him permission to visit detainees in other wings to greet them for Christmas on behalf of Aim. According to the applicant’s written submissions to the Court the permission was oral, but he also stated during the meeting with the Court delegates that the permission had been posted in writing on the special information board. The permission was valid from 24 to 27 December 1998. On 24 December 1998 the applicant tried to go from Wing 1 to Wing 3. At a special check-point between these wings, the applicant was stopped by the guards and told that he did not have permission to enter Wing 3.", "35. On 29 December 1998, as a disciplinary sanction for “trespassing” on 24 December, the applicant was ordered to clean up the area around his bed in Section 21. As the Interim Prison Rules did not require that cleaning be done in the presence of a member of staff, he performed the work unseen. The staff member, Officer Kmieliauskas, who was to supervise the work, did not accept that the job had been done.", "36. As a result, on 5 January 1999 the applicant was punished with fifteen days’ solitary confinement. He immediately announced a hunger strike as he considered the sanction arbitrary. On 6 January 1999 the applicant wrote complaints to various State authorities and the media. On 8 January 1999 the applicant’s sister called the prison governor, who allegedly lied to her that the applicant was not on a hunger strike. On 9 January 1999 the biggest Lithuanian daily, Lietuvos Rytas, wrote an article on page 2, stating that the applicant was on a hunger strike. On the sixth day of the hunger strike, on 11 January 1999, a prosecutor arrived and advised the applicant to seek a compromise with the administration. On 13 January 1999 the applicant discontinued the hunger strike. On 15 January 1999 the prison governor gave an interview to a newspaper, Akistata, which was printed with the title “Stirring up trouble without reason”. In the interview the prison governor said that the applicant was “doing nothing [to conform to the prison regime] but lodging various complaints”. According to the applicant, the prison governor thereby expressed his biased attitude towards him.", "37. On 21 January 1999 two disciplinary sanctions were imposed on the applicant for the unlawful hunger strike. His access to the prison shop and the right to be given additional food during personal visits were suspended. He was also transferred to the SAB.", "38. The applicant considered that these penalties, taken as a whole, revealed the ineffectiveness of any internal efforts to review allegations of ill-treatment. His complaints about the disciplinary penalties against him were rejected by the Ombudsman with sole reference to the statements of the prison administration, without due regard to the actual circumstances. According to the applicant, his treatment in the prison was degrading because he had no access to an independent and impartial authority to complain about his conditions of detention.", "39. There was no information about any effective review of the general treatment of prisoners or the specific treatment of the applicant because the Interim Prison Rules (Pataisos darbų įstaigų laikinosios taisyklės) had not been published. The Rules defined the legal basis for the prison regime and the administration’s actions. The absence of publicity of such an important legal document gave the administration the right to act arbitrarily. This document was lacking both at the Prison Department and in prisons. In the applicant’s view, every section of the prison should have had a copy of the Rules. However, only one copy of the Rules was in his prison.\n(iii)The control of correspondence with the Convention organs", "40. The applicant stated that the first letter addressed to him from the European Commission of Human Rights, dated 18 June 1998, was shown to him when it had already been opened. He was only allowed to write down its contents, and had to give it back to the administration. Subsequent letters from the Convention organs were opened by the administration and given to the applicant some three days after their arrival at the prison.", "41. On 7 December 1998 the prison governor wrote a letter to the Court, stating, inter alia:\n“On 2 December 1998 the prison administration received a letter by [the applicant] addressed to [the Court]. Having acquainted myself with the contents of the letter ... I would like to set out certain considerations as to the facts alleged [therein] ...\nIt is true that pursuant to the order of 14 August 1998 of the Minister of the Interior ... it is prohibited for convicted persons to lie in bed save during the sleeping hours as specified in the schedule, if there is no special permission to do so from the administration ..., [but] it is not true that all convicted persons have been prevented from lying in bed during the day, as J. Valašinas says in the letter ... because elderly, handicapped [prisoners] have been afforded [that] opportunity ...\n[The applicant] alleges that some wings in the prison accommodate more than 400 convicted persons in breach of Rule 2 § 11 of the Prison Rules requiring that ‘no more than 300 persons should be held in a wing’. [However,] there is no practical possibility to implement the above Rule in view of the rapid increase in the number of convicted persons (the limit is 1,830 [detainees], [but] on 3 December 1998 there were 2,109).\nAs regards the education of convicted persons ..., from 1 January 1999 the administration of the Kaunas County is prepared to set up an education point for adults in the prison ...\nOn 20 August 1998 [the applicant] founded an association of mutual assistance and support, ‘Aim’ ... We think that the establishment of this association is to be welcomed ... However, in practice, from the moment when it was set up, this association and its President, J. Valašinas, only defended the interests ... of the ‘authorities’ of the underworld ...”", "42. In a letter to the Court dated 16 December 1998, the applicant’s sister complained that the applicant had told her by telephone on 15 December 1998 that he had been prohibited from pursuing correspondence with the Court, and that his letters to the Court dated 30 November and 3 December 1998 had not been sent by the prison administration.", "43. On 18 December 1998 the administration sent to the Registry the applicant’s letters of 30 November, 3 December and 15 December 1998. They also included a transcript of the administration’s meeting of 15 December 1998 in which the question of the applicant’s correspondence with the Court was discussed. The acting governor of the prison said in the transcript that he\n“explained to [the applicant] that he has to apply first to certain authorities of the Republic of Lithuania, that is: the Prisons Department, the Ministry of the Interior, the Ministry of Justice, the Ombudsman, the Office of the Prosecutor General and other institutions. [The applicant] is familiar with this procedure ... but he categorically required that his letter to [the Court] be sent ... [The applicant] asked me the question whether I had a right to have access to the contents of [his] letter ... I explained that I had such a right under Rule 7 § 1 (7) of the Interim Prison Rules [stating that] ‘the letters of convicted persons (except those to a prosecutor) that are sent or received are subject to censorship’. Given the categorical request by [the applicant], [his] complaint shall be sent to the addressee”.", "44. On 1 March 1999 the Registry received one more letter from the applicant, sent on 15 February 1999. According to him, this letter was not sent through the prison administration. He enclosed therewith an original of the Registry’s letter of 14 January 1999 as evidence that the correspondence with the Court had been censored: on the Registry’s letter was a prison stamp with the date of receipt, 1 February 1999, a handwritten remark of the same date by the prison governor ordering that the applicant be acquainted with the letter, and the applicant’s written confirmation that he had had such access on 3 February 1999.", "45. During the meeting with the Court delegates, the applicant also stated that in December 1998 he had handed to the prison administration a further letter to the Court dated 16 December 1998. No such letter reached the Court.", "46. The witness was the prison governor at the time of the applicant’s detention there.\n(a) General conditions of detention\n(i) The SAB", "47. The witness admitted that there had been no partitions between the squat holes in the toilets until 1999. In that year renovations were carried out, during which each toilet hole was separated by cement partitions covered with ceramic tiles.\n \n(ii) The normal regime (Wing 1)", "48. At the time of the applicant’s detention under the normal conditions in Wing 1, each prisoner was allocated 2.7 sq. m in the dormitory in Section 13, and 3.2 sq. m in the dormitory in Section 21. The Prison Code (Pataisos darbų kodeksas) required a minimum space of 2 sq. m in sleeping areas, while a special Ministry of Health sanitary norm of 1999 required at least 3 sq. m. The witness considered that the prison had not been seriously overcrowded at the time of the applicant’s detention, at least within the meaning of the domestic requirements valid until 1999. The situation improved following an Amnesty Act in 2000; while the total occupancy of the prison was 2,303 detainees in 1999, only 1,782 prisoners were detained in May 2000, the lowest level in five years.", "49. Prisoners were provided with bed linen, which was washed and dried in the prison laundry free of charge once every two weeks. Once a week inmates had access to the shower. Sinks in the shower facilities could also be used to wash personal items. Each prisoner was provided free of charge with 200 g of soap every month, and was able to buy more in the shop.", "50. Inmates could buy various products, including food and items of personal hygiene, in the prison shop three times a month. Prices in the shop were not excessive, and were regularly reviewed by the administration in the light of regional price levels. While no cash was used in the prison shop, every inmate had an account to which resources from his family, his salary at the prison, or a financial benefit in the case of an orphan, were transferred. These accounts were debited upon a purchase at the shop.", "51. The witness admitted that the canteen, which could normally accommodate about 500 prisoners at once, had been overcrowded at times. He denied, however, that any prisoner had missed a meal due to overcrowding. Five shifts were organised in the canteen to enable every prisoner to have three meals a day. The witness had never received a complaint from any prisoner that he had been deprived of a meal because of an overcrowded canteen. The witness had not heard of any complaint about the quality of the food. He said that the prison medical service checked the quality of the food every day and that the sanitary norms in the canteen were being met.", "52. The witness had not received any complaint from the applicant about a lack of medical assistance in the prison. The witness also said that the prison doctor and the health authorities had confirmed that a knee operation had not been necessary during the applicant’s detention. The witness had never received a complaint from the applicant that he had been supplied with a food item incompatible with the sanitary norms. Nor had the applicant complained that he had lacked a special diet in the prison or needed supplementary food to be provided free of charge.", "53. Previously, there were no partitions between the squat holes in the toilets; they were installed during the 1999 renovations. Currently all toilets were equipped with partitions. The witness said that a special government decree of 1995 required that all inmates be given toilet paper. However, the prison administration had budgetary difficulties in complying with this decree. Toilet paper had not been distributed during recent months. The prison lacked money even for the postal service. The witness considered that the lack of free toilet paper was not an essential problem in the prison, as he had heard no complaint in this connection from any prisoner. according to the witness, it had to be noted that toilet paper was always available in the prison shop at about LTL 0.50 to 0.60 per roll. In addition, toilet paper could be given by relatives. At worst, other kinds of paper could be used, such as newspapers, which were supplied to prisoners free of charge. The witness drew a parallel between toilet paper and other items of personal hygiene, such as toothpaste and toothbrushes. While such items were not distributed free of charge, prisoners could obtain them from their relatives or the prison shop.", "54. The prison had a wood-processing factory, but only a small proportion of prisoners worked there due to the lack of commercial orders. However, a recent government contract would permit an increase in production and create more employment for detainees. A total of 115 prisoners also worked at the service department of the prison, including the laundry and the canteen. The applicant did not work during the time of his detention.\n(b) Specific acts of the administration\n(i) The body search of 7 May 1998", "55. After a personal visit, a prisoner and any items he has received from his visitor must be checked in accordance with the Interim Prison Rules. Such a check could include stripping the prisoner naked. The Interim Prison Rules provide that only a person of the same sex may conduct a strip-search.", "56. The witness said that he was not present at the time of the alleged event. He was informed about it by the applicant. The witness acknowledged that the female officer J. worked at the prison and supervised personal visits. Her functions included accompanying prisoners to and from the visitors’ area and handing the prisoner over to the male officers conducting the search. The Court was unable to interview Ms J. as she was not in the prison on the day of the delegation’s visit.", "57. The three male officers who conducted the body search were interviewed by the witness immediately following the applicant’s complaint in May 1998. They denied that a woman had been present. No record of the applicant’s complaint or of any investigation of the incident was made.", "58. The witness said that he did not know whether Ms J. took part in the search. If the applicant was stripped naked in the presence of a woman, it was a violation of the Interim Prison Rules. However, given Ms J.’s functions, the witness conceded that both theoretically and practically she could have attended the search.\n(ii) Alleged victimisation of the applicant and the absence of review", "59. The witness described the procedure for disciplinary offences established under the Interim Prison Rules. According to this system, Pravieniškės Prison had a Disciplinary Commission consisting of the prison governor, his deputies and the heads of sections. The commission was in charge of examining all alleged violations of prison discipline. When a particular incident occurred or specific information about such an incident reached the administration, a senior staff member such as a head of section wrote a report on the facts and stated his opinion as to whether those facts disclosed a breach by a detainee of the provisions of the Interim Prison Rules. The report was normally shown to the detainee, who had the right to submit observations. The detainee was informed about the contents of the report if it could not be presented to him, for example, where there were statements by anonymous witnesses concerning the incident. However, even in such exceptional cases, the prisoner had the right to know about such accusations without having access to the witnesses’ names.\nThe report and the detainee’s observations were sent to the Disciplinary Commission, which decided whether or not to impose a disciplinary penalty. It was an absolute requirement that the prisoner appeared in person before the commission prior to its reaching its decision. Witnesses who were detainees were not normally heard in person at the hearing, their evidence being included in the report in written form. However, any officer involved in the incident had to be heard in person by the commission, together with the alleged perpetrator.", "60. It was possible to appeal against the commission’s decision. Where a report on the incident had been filed by a staff member no higher in rank than a deputy governor, the prison governor could quash the penalty. Where the report had been filed by the governor himself, the detainee could appeal to the director of the Prison Department. From there an appeal lay to the Minister of the Interior or the Ombudsman. Although the Ombudsman could not revoke the penalty, he could recommend that the prison authorities do so. In most cases the Ombudsman’s recommendations were followed. In general, prisoners were not prohibited from complaining to any authority concerning any aspect of their detention. However, the internal hierarchical procedure was the principal remedy for prisoners.", "61. The procedure for complaints against staff members was similar to that for disciplinary offences. The witness was not aware of any specific complaint by the applicant against a staff member. He said however that, if the applicant had lodged any such complaint, it had been sent to the competent authority.", "62. All detainees were familiar with the Interim Prison Rules, which established this procedure and set out other provisions pertaining to the regime in all Lithuanian prisons. A copy of the Rules and of the Prison Code was in the prison library. Every detainee had unlimited access to those documents. In addition, upon the arrival of a new prisoner, a head of section must inform him of the rules, which had to be confirmed by the detainee’s signature.", "63. The witness hardly knew the applicant personally until August 1998. The applicant had had no disciplinary record during the period of his placement in the prison before that. The witness had participated in the foundation meeting of the Aim association in August 1998. He considered that the purposes of the association as stated in its statute, namely mutual assistance and support to defend prisoners’ rights and better conditions of detention, were to be welcomed. There had been no interference by the administration with the functioning of the association. However, according to the witness, after becoming the leader of Aim, the applicant forgot that he himself was a prisoner and that he had not only rights but also obligations. He ignored lawful orders from staff and on various occasions seriously breached prison discipline.", "64. The witness confirmed that the applicant had received nine disciplinary punishments during his time at the prison, namely on 24 August, 10, 13, 15, 23 and 28 October, 29 December 1998, and 5 and 21 January 1999. As to the nature of these punishments, the witness stated that eight of them had been minor. The deprivation of better detention conditions on 24 August 1998 involved the temporary removal of the applicant’s entitlement to certain socio-economic benefits, such as the right to receive additional personal visits, to make purchases in the prison shop, or to receive parcels from relatives. The disciplinary warnings of 13, 23 and 28 October 1998 meant essentially remarks in the applicant’s prison file. The chores (budėjimas be eilės) imposed on 15 October and 29 December 1998 were insignificant cleaning jobs. These penalties were minor, as the applicant’s breaches of discipline had not been serious.\nOnly the penalty of 5 January 1999, namely the applicant’s solitary confinement, was to be considered serious, in the opinion of the witness. It was imposed for non-compliance with the legitimate order of a prison officer, namely the failure of the applicant on 29 December 1998 to wash the area around his bed. In any event, none of those penalties humiliated the applicant, in the view of the witness, but amounted to the normal enforcement of prison discipline.", "65. The witness asserted that good reasons had been given for each of the punishments. In every case the prison management carefully assessed the facts about alleged disciplinary breaches by the applicant and properly weighed the evidence before them. The validity of the conclusions of the prison management was confirmed by the Ombudsman. The witness mentioned as an example the events of 16 October 1998, when it was not clear whether or not the applicant had personally performed the chore imposed on 15 October 1998. Regardless of the statements of Officer Kmieliauskas alleging that the applicant had not performed the task himself, the witness decided that the applicant should have the benefit of the doubt, and that there had been no breach of discipline. However, in another case, concerning the chore imposed on 29 December 1998, the overwhelming evidence suggested that the applicant had indeed breached discipline by ordering another detainee to perform his task. As a result the applicant was punished with solitary confinement.", "66. The witness admitted that he had said that the applicant “was doing nothing but lodging complaints” in an interview published on 19 January 1999 in Akistata, a special newspaper on matters of crime, law and order. The witness did not consider that he had in any way humiliated the applicant by that statement. He said that he had no personal prejudice towards the applicant because of his activism amongst prisoners, his presidency of Aim, his complaint to the Convention organs, or any other reason. The sole basis for the measures restricting the applicant’s rights was his failure to comply with prison discipline, which was applied equally to all.", "67. The witness said that the reasonable nature of the applicant’s treatment in the prison was reflected by the fact that he had expunged the applicant’s disciplinary record in 1999. Thereafter they had found a common ground and cooperated in organising various cultural events in the prison. Furthermore, in view of the applicant’s improved behaviour, the witness intervened on the applicant’s behalf to obtain a presidential pardon, which was eventually granted. Their cooperation continued after the applicant’s release, particularly regarding the organisation of cultural activities in the prison.\n(iii) The control of correspondence with the Convention organs", "68. The witness acknowledged that until June 1999 the prison administration had checked the applicant’s letters to the Convention organs in accordance with the Prison Code and the Interim Prison Rules. The witness stated that he had never prevented the applicant from complaining to the Court. His remarks about the exhaustion of domestic remedies were made to explain to the applicant the relevant procedural requirements, but not to hinder his right to pursue his Convention application. All letters to the Court handed in by the applicant to the prison administration were sent, and all letters from the Convention organs were received by the applicant.", "69. The witness was a staff member and a head of section.", "70. The witness stated that the applicant belonged to the so-called élite of prisoners, and other inmates would normally perform jobs for him. This is why he did not think that the applicant had personally performed the chore imposed on 29 December 1998. The officer did not consider that the obligation to clean the area around his bed whilst supervised by the witness was degrading for the applicant. While the applicant had asked the witness in advance for permission to perform the task unsupervised, the applicant had not explained why he did not want to be observed or whether he considered the order degrading. The applicant’s request had clearly been an attempt to get others to do the job for him. Therefore the witness did not give his permission. The applicant’s subsequent refusal to perform the job in the presence of the witness amounted to a breach of duty.", "71. On 26 May 2000 the delegates visited the prison. The prison held 1,782 people, a substantial reduction from the 2,303 prisoners held in 1999.", "72. The delegates visited the SAB where twenty people were detained, whereas twenty-two had been detained when the applicant was there. The beds had metal frames and springs, standing on four legs about 30 cm high. The beds were side by side in a dormitory of 92.2 sq. m. There were televisions, a video-player, radios, personal effects and adequate bedding. Each prisoner was allocated approximately 5 sq. m of space in the dormitory. There did not seem to be a lack of space, light or air.", "73. The delegates visited a separate sanitation area in a corridor between the dormitory and the leisure room. The sanitation area consisted of toilets and a shower. Prisoners could use the shower at any time between wake-up at 6.30 a.m. and lock-in at 10.30 p.m. The area had been tiled and partial partitions installed between the Asian-type toilets since the applicant’s detention there. The partitions were waist high, half walls, with no doors in front of them. In the applicant’s time there had just been the squat holes. There was no toilet paper in sight. The sanitation area was somewhat muddy but not unduly smelly. The delegates learnt that people were paid to do the cleaning, and that prisoners were asked to clean only as a disciplinary punishment.", "74. Food was brought from the main prison into a small kitchen three times a day. There was a courtyard, approximately the same size as the dormitory, with grass, plants, outdoor tables and benches and some weight-lifting equipment. There was no limitation on prisoners’ access to the courtyard between 6.30 a.m. and 10.30 p.m. Prisoners did not wear a uniform. Most of them were in light tracksuits and T-shirts. Detainees were able to wash their own personal laundry in the sanitation area, and the delegates saw laundry being dried on clotheslines outside in the courtyard. Inmates could come and go as they liked within the whole SAB area, where there were also separate leisure and billiard rooms. Only the leisure room had no windows, but there was no lack of air. There were soft armchairs, a chessboard and an audio-system in the leisure room. Big heating radiators were seen in all the accommodation areas.", "75. People could call the prison medical service directly from the SAB on a special telephone line. A doctor visited the SAB almost on a daily basis, and a sick person would be brought to the infirmary.", "76. The applicant confirmed that the conditions of his detention in the SAB had been essentially the same, except that the accommodation area had since been freshly painted and better furnished, partitions had been installed in the toilets, and a kitchen window had been created.", "77. The delegates then moved to the area of the normal regime in Wing 1, namely an apartment block with 775.2 sq. m of living space and an adjacent large strolling yard. There were twelve sections in the wing. Sections consisted of dormitories with adjacent toilet areas. At the time of the visit, 372 detainees were held in Wing 1, whereas there had been 400 inmates when the applicant was there.", "78. Section 13 had a dormitory of 86.5 sq. m holding 32 beds; some were double bunk beds. The beds had metal frames and springs, standing on four legs about 30 cm high. Each prisoner had approximately 2.7 sq. m in the dormitory. The room had windows and did not lack light or air. Several prisoners were in the dormitory during the daytime as inmates were entitled to circulate freely throughout the whole building and yard from 6.30 a.m. until 10.30 p.m. There were four stools in the room. The delegates were told by a staff member that detainees were allowed to sit or lie on the beds during the day.", "79. Section 21 had a dormitory of 55.3 sq. m holding 24 beds placed side by side. Each prisoner was allocated approximately 3.2 sq. m of space in the dormitory. There were two large windows but the applicant nevertheless complained about the lack of ventilation. The windows were open during the delegates’ visit, but the applicant said they remained shut in winter or if someone was ill.", "80. The toilets in both sections were located in separate areas closed off from the dormitories. There were partitioned Asian-type holes, which did not seem to be in a bad or dirty condition. There was no particular smell or lack of air in the toilets. The applicant said that the walls had been painted since his time and partitions had been installed.", "81. The general shower room allowed thirty prisoners to shower at the same time; this was not a renovated area. The installations were rusty and there was mould on the walls, but hot water was available and the area was generally functioning adequately. The room next to the showers had deep basins for prisoners to wash their own clothes. Prisoners were allowed access to the showers once a week.", "82. The canteen consisted of two big rooms with seating arrangements for about 500 people. The food was prepared in large ovens and saucepans where huge quantities of soup (sometimes with meat), vegetables and porridge were cooked. The quantity per prisoner was controlled by the medical service, as was the level of hygiene. The general area seemed spotless apart from some dampness on the floor. Food was dished out in metal bowls for ten people and served through two hatches in the canteen.", "83. The infirmary had several consultation rooms, a dentist’s chair and other equipment being in one of them. All the equipment seemed old-fashioned but functional. Since February 1999 there had been a doctor on duty twenty-four hours a day. The doctor on duty said that if someone had a fever he would get help from the infirmary.", "84. The delegates next visited the solitary confinement cell in a separate building, where the applicant was detained from 5 to 20 January 1999. This consisted of a narrow room in which two people could be detained. During the day the beds are locked up against the wall like a couchette on a train. The cell had low benches and a cupboard. It also had a separate closed toilet and washbasin. The applicant said that during his placement there the walls had not been painted, there had been no cupboard, and the bedding was taken out of the cell in the daytime.", "85. On 10 September 1998 the Ombudsman rejected as unsubstantiated the applicant’s complaint against the disciplinary penalty of 24 August 1998 depriving him of better conditions of detention. The Ombudsman noted that the applicant solely contested the facts of the incident leading to the penalty, arguing that he had not beaten up another prisoner. On the basis of written observations by the prison management, the statement of an anonymous witness and the applicant’s explanations, the Ombudsman established that the applicant had participated in the beating and that the administration had duly imposed the penalty.", "86. On 19 January 1999, on the basis of written observations by the prison administration and the applicant, the Ombudsman rejected as unsubstantiated the applicant’s complaints against the penalties of 10 and 13 October 1998. The Ombudsman noted that the applicant solely contested the facts as established by the prison administration and had provided no plausible evidence to cast doubt on the validity of the conclusion that he had threatened other prisoners with force.", "87. On 19 January 1999 the Ombudsman also dismissed as unfounded the applicant’s complaint about the penalty of 15 October 1998. On the basis of written observations by the prison administration and the applicant, the Ombudsman found that the applicant had trespassed into the territory of Wing 3 without permission. According to the Interim Prison Rules, a detainee must obtain the permission of the prison governor to visit other wings. Such a decision was valid only if it was published on the special information board. The applicant had not contested that he had had no permission to leave Wing 1 on that day or that he had not known of the relevant internal requirements prohibiting trespass. He was therefore justifiably ordered to perform a chore on that day.", "88. On the same date the Ombudsman rejected as unsubstantiated the applicant’s complaints against the disciplinary warnings of 23 and 28 October 1998. The Ombudsman noted that the applicant solely contested the facts as established by the prison administration and had provided no plausible evidence to cast doubt on the validity of the conclusions that he had been sleeping after the regulatory wake-up call, or that he had been queuing beyond the privacy line.", "89. On 19 January 1999 the Ombudsman also dismissed complaints by the applicant and another two prisoners, B. and P., against the penalties of 29 December 1998, imposing chores. By reference to written observations by the prison administration and the detainees’ comments, the Ombudsman established that the applicant, together with B. and P., all of whom were Wing 1 inmates, were stopped by guards when trespassing into the territory of Wing 3. The detainees claimed that they had oral permission from both the prison governor and other guards to go to Wing 3, and that the penalties had thus been arbitrary. The Ombudsman found that no valid permission had been given to these men, and that the penalties of 29 December 1998 had therefore been justified.", "90. On 21 January 1999 the Ombudsman rejected complaints by the applicant and B. against the disciplinary penalties of 5 January 1999 ordering their solitary confinement for non-compliance with the duties imposed on 29 December 1998. By reference to written observations by the prison administration and the detainees’ comments, as well as the material collected on the spot by a representative of the Ombudsman’s office in January 1999, the Ombudsman established that the applicant and B. had been ordered to clean the areas around their own beds by Officer Kmieliauskas, in execution of the duties imposed on 29 December 1998. The Ombudsman held that the applicant and B., owing to their authority over other prisoners, could indeed have ordered other prisoners to clean up for them, thereby avoiding executing personally the penalties of 29 December 1998. According to the Ombudsman, it was therefore reasonable for Officer Kmieliauskas to want to supervise the task himself. Such supervision could not amount to an unjustified interference with their honour. The Ombudsman established that the detainees had refused to perform the job under the supervision of Officer Kmieliauskas and another staff member at around 10.50 a.m. on 29 December 1998. Some time later they informed Officer Kmieliauskas that they had nonetheless performed the task whilst alone. The Ombudsman held that both the refusal of the detainees to perform their duties, and their subsequent statements that they had performed the jobs in the absence of staff, testified to their non-compliance with the penalty of 29 December 1998. The Ombudsman concluded that the penalties of 5 January 1999 had therefore been justified.", "91. On 21 January 1999 the Ombudsman examined the applicant’s complaints against two members of staff, on the basis of an on-the-spot investigation conducted by a representative of the Ombudsman’s office in January 1999. In his complaints the applicant alleged that one member of staff, B., did not know the Lithuanian language, did not have Lithuanian citizenship, and could not work at the prison. He also alleged that a staff member, P., had provoked conflicts between the applicant and other prisoners. The Ombudsman held that there were no grounds to examine the complaint in so far as it concerned B., who had meanwhile left the prison. The Ombudsman established no wrongdoing or intent to provoke conflicts on the part of P.; in this regard the Ombudsman held that the applicant’s complaints had been of a general nature, and that, during the meeting with the representative of the Ombudsman’s Office, the applicant had been unable to specify a single incident when P. had breached his rights." ]
[ 1, 4 ]
[ "7. On 11 February 1980, the applicant pleaded guilty to manslaughter on the ground of diminished responsibility in respect of the death of his 62‑year-old landlady whom he had battered with an axe. He was sentenced to life imprisonment. The court acted on medical evidence that the applicant had a gross personality disorder to such a degree that he was amoral. The consultant psychiatrist said in his report at the trial that:\n“... although [the applicant’s] instability might get less over the years as he matured, should he be sent to prison, his eventual release should be approached with great caution.”", "8. The applicant was initially sent to a Category A prison due to concerns about his dangerousness and risk of escape. He was involved in work to address his offending and other problems. He successfully completed an Anger Management and Skills Courts in the Hull Special Unit in or about 1989 and his conduct was noted as significantly improving from that point. In 1993, he was transferred to a Category B prison.", "9. The applicant’s tariff period of 15 years expired on 25 June 1994 (this was the minimum period fixed by the Secretary of State concerning the requirements of retribution and deterrence). The Parole Board in that month agreed to the transfer of the applicant from a Category B to Category C prison. The Secretary of State deferred a decision until after the Discretionary Lifer Panel (DLP) of the Parole Board had conducted a hearing on the matter under the new provisions of the Criminal Justice Act 1991 (“the 1991 Act”).", "10. On 13 December 1994, after a hearing held pursuant to section 34 of the 1991 Act, the DLP decided it would not be safe to release the applicant but recommended transfer to Category D (open prison), or Category C with a review after 12 months instead of the usual two year period. On 15 March 1995, the Secretary of State decided to transfer the applicant to Category C with a review after 12 months.", "11. In November 1995, the applicant failed to obtain leave to apply for judicial review of the decision of the DLP and the decision of the Secretary of State. In April 1996, the Court of Appeal refused leave to apply for judicial review.", "12. Following a positive drugs test, the applicant agreed to follow and successfully completed in July 1996 a drugs awareness course.", "13. On 9 October 1996, the applicant’s case came before another DLP. Reports noted that he had made considerable progress over the preceding six years but would need phased re-introduction into society. A psychiatric report dated 24 June 1996 stated that the applicant had much greater control over his behaviour, that personal and maturational developments had taken place and that he was not the same person that he was when he entered prison. It was concluded that the applicant, who had shown a reclusiveness and narrowness of interests, needed however to test and increase his social interaction in order to be able to cope with living outside prison. A psychiatric report issued about the same time stated that the applicant’s personality, described as psychopathic, had shown some capacity for change and that, although he was not considered a serious risk to the public, any release on licence would have to be carefully planned, as problems were likely to arise following a long period of institutionalisation and a lack of family support. The DLP did not recommend release but transfer to a Category D prison. In paragraph 5 of the decision letter the DLP said:\n“The panel were satisfied that what was advanced at the hearing as ‘exceptional circumstances’, namely a good release plan, the fact that [the applicant is] four years beyond tariff, the fact that [the applicant has] completed a pre-release course in Category C, the fact that [the applicant had] previously been recommended for Category D status and the prospect of employment, did not amount to exceptional circumstances and that [the applicant’s] release without progress through open conditions posed an unacceptable risk.”", "14. On 20 November 1996, the Secretary of State rejected the recommendation of transfer to an open prison, but directed an early review of the applicant’s case, namely after 18 months had expired from 9 October 1996. The Secretary of State was not persuaded that the applicant’s behavioural problems had been satisfactorily addressed while in closed conditions, nor that the benefits of open conditions were sufficiently worthwhile at that stage when balanced against the scale of the outstanding offence, related work needed in the applicant’s case and his potential risk to the public.", "15. The applicant applied for leave to apply for judicial review of both decisions, alleging inter alia that the DLP had wrongly applied an “exceptional circumstances” test. Leave was refused on 11 April 1997.", "16. On 21 October 1997, the applicant re-applied for leave for judicial review. Mr Justice Potts refused leave against the DLP’s recommendation. He found that the DLP had correctly applied the statutory test concerning a risk to the public. He granted leave to apply in respect of the decision of the Secretary of State. Mr Justice Potts stated:\n“... a prisoner who has spent a long period in custody should be tested in open conditions before being released into the community: satisfactory completion of such testing is an indication that a prisoner is able to cope with the stresses of life outside prison and is therefore a cogent factor to take into account against all the other available material in deciding whether or not a prisoner can safely be released. Such an approach is undoubtedly sensible …\nI think it is arguable that the Secretary of State’s decision not to recategorise this applicant as a Category D prisoner was irrational and one that no reasonable Home Secretary could reasonably have reached.”", "17. In the light of this grant of leave, at the end of the hearing, the Secretary of State indicated that he would reconsider his decision of 20 November 1997.", "18. On 13 March 1998, the Secretary of State informed the applicant that he had reconsidered the case but decided not to change his conclusion that the applicant should not be transferred to open conditions.", "19. On 15 July 1998, the DLP again considered the applicant’s case. Reports continued to note his progress, including the expression of genuine remorse for his offending. It was considered in a case officer report dated 31 October 1997 that he had taken advantage of treatment programmes and that all offending work had been completed. He had a “settled and fulfilling release plan” which involved him continuing the legal studies that he had commenced in prison and receiving support from a circle of friends that he had built up through contacts outside prison. Conversely, a psychiatric report dated 18 December 1997 considered inter alia that the applicant might benefit from further work on developing methods of dealing with interpersonal difficulties and increasing relationship skills.", "20. By letter dated 16 July 1998, the DLP declined to recommend release but did recommend transfer to a Category D (open) prison.\n“3. In reaching the decision that you are not yet suitable for release, the panel took into account the nature of the index offence, your violent disruptive early prison career (while recognising also the absence of any violence since 1989), the fact that you are still seen as having a psychopathic personality … and the remaining areas of concern identified by [Mrs B, a higher psychologist]… These areas of concern are egocentricity, a disregard for the points of view of other people and a limited ability to solve interpersonal frustrations and problems. The panel also considered that the sexual ambivalence referred to by [Dr G] merited further investigation, particularly in light of evidence that emerged at the panel hearing that you had been sexually abused in your youth. The panel also accepted [Mrs B’s] evidence that a personality assessment was necessary to identify the manner in which the outstanding offence-related work should be carried out; and that the reasons underlying the index offence still require further investigation. In all these circumstances, the panel considered that you still presented too great a risk to the public to justify your release. 4. Moreover, you have been in custody for 19 years and although your release plan is being developed, it is not complete. At present you would have no fixed accommodation. Based on these factors and the impression the panel formed of you at the hearing, the panel considered that you would be unable to cope in the community, were you to be released directly or via a pre-release employment scheme. 5. The panel did recommend that you be transferred to open conditions. In coming to this conclusion, the panel took into account the length of time you have spent in custody, the opinion of the majority of the report writers and witnesses that the risk you present to the public could be safely managed in open conditions and the fact that the assessment and further work referred to above can be done in open conditions. The panel also took into account that [Mrs B] could not say within what period the assessment could be carried out, and the danger of counter-productive stagnation and frustration on your part should you have to spend a further protracted period in category ‘C’ conditions. 6. To allow time for assessment and the necessary offence-related work and for your gradual reintegration into the community, the panel considered that your next review should begin in 2 years time.”", "21. By letter dated 7 October 1998, the Secretary of State rejected the DLP’s recommendation. He stated that he accepted the psychologist’s view that further work needed to be done in respect of the applicant’s attitude to his original offence, his egocentricity, his intolerance of others, his inability to deal adequately with problems and his lack of responsibility for his actions. He agreed that a full personality assessment was required of the applicant who was still seen as having a psychopathic personality. The Secretary of State did not agree that these matters could be safely addressed in open prison conditions. He noted that the applicant had failed to attend further courses in anger management, social skills and communications, as arranged after the Secretary of State’s decision of 20 November 1996. He also had regard to an intervening incident which had occurred on 31 July 1998 when the applicant was being escorted to court by a female officer. After she had refused to allow him to smoke in the vehicle, he had slammed the van door against her, causing her to fall and hurt her arm. He had sworn at her, threatening to kill her, adding that he had already killed one woman. The applicant was found guilty under the Prison Rules of assault and using threatening, abusive or insulting words. The Secretary of State considered that this disclosed impulsive violent behaviour towards a woman over a trivial incident, which had clear similarities with his original offence. He remained an unacceptable risk and was advised that until he co-operated with staff in addressing the areas of concern, the Secretary of State saw no justification in allowing him to progress further towards release. It was however agreed that his next review should take place in July 2000.", "22. On 2 February 2000, the applicant’s renewed application for leave to judicially review the DLP’s decision of October 1996, which had been dormant since 21 October 1997, was listed for hearing before the Court of Appeal. The applicant’s request to amend his grounds of application to add complaints about a lack of independence was refused. The Court of Appeal rejected his application for leave to apply for judicial review." ]
[ 2 ]
[ "9. On 13 August 1992, following proceedings on appeal, the Arnhem Court of Appeal (Gerechtshof) convicted the applicant of attempted homicide and sentenced him to eight months’ imprisonment with deduction of the time spent in pre-trial detention. In addition, the Court of Appeal imposed a TBS order (terbeschikkingstelling) with confinement to a secure institution (met bevel tot verpleging van overheidswege). The TBS order took effect on 4 September 1992 and expired two years later, on 4 September 1994.", "10. By decision of 9 September 1994, the Arnhem Regional Court (Arrondissementsrechtbank) of Arnhem prolonged the TBS order by one year. It was consequently due to expire on 4 September 1995.", "11. On 18 July 1995 the public prosecutor filed a request for a further prolongation with the Arnhem Regional Court, where it was registered on 19 July 1995. This prolongation request was based on an advice of 6 July 1995 by the secure institution where the applicant was being treated. In this advice, a prolongation of the TBS order was recommended because the applicant was still considered capable of being seriously aggressive towards other people.", "12. The Regional Court examined the request in the course of a hearing held on 22 September 1995. The applicant submitted that the public prosecutor’s request for a prolongation should be declared inadmissible since the Regional Court was no longer competent to prolong his TBS order as it had expired on 4 September 1995. The applicant further submitted that the Regional Court had failed to comply with Article 509t of the Code of Criminal Procedure (Wetboek van Strafvordering; hereinafter referred to as “CCP”) which provides that a decision on a request for prolongation has to be taken within two months after the submission of the request for prolongation.", "13. In its decision of 6 October 1995, the Regional Court rejected the applicant’s arguments and prolonged his TBS order with confinement to a secure institution by one more year, taking into account the advice issued by the secure institution where the applicant was being treated and the testimony of an expert witness, recommending that the TBS order should be extended because the applicant was still considered capable of being seriously aggressive towards others. The Regional Court admitted that the examination of the request had not taken place within the time-limit contained in Article 509t CCP and that the reason therefor was the fact that during the holiday months it had not been able to hold sufficient hearings with judges having the specialised knowledge needed. However, it held that a failure to observe the time-limit in Article 509t CCP did not imply that the public prosecutor’s request should be declared inadmissible. It noted that the date of the hearing in the instant case had been fixed on 20 July 1995, i.e. within a period of two months after the submission of the prolongation request. It further noted that, by summons of 28 July 1995, the applicant had been invited to appear at the hearing of 22 September 1995 and that a copy of the summons had been sent to his representative. The Regional Court considered that, if the latter had objected to the fixing of that date, the hearing could have been rescheduled for an earlier date during the recess. The Regional Court concluded that in all these circumstances the general security of persons required a prolongation of the TBS order.", "14. The applicant filed an appeal with the Arnhem Court of Appeal on 11 October 1995. In the course of a hearing held on 15 January 1996, the Court of Appeal heard the applicant and a psychologist working in the secure institution where the applicant was under treatment.", "15. In its decision of 29 January 1996, the Court of Appeal noted that the decision of 6 October 1995 had been taken seventeen days after the expiry of the time-limit provided for in Article 509t CCP. It held that the Regional Court could and should have scheduled a hearing date before the expiry of the time-limit. Moreover, Article 509t CCP made the Regional Court responsible and not the applicant or his lawyer to see to it that the time-limit was observed. It further held that failure to observe the time-limit entailed neither the inadmissibility of the prosecution’s request, nor the incompetence of the Regional Court to examine this request, nor yet the expiry of the TBS order. On the basis of the failure to respect the time-limit referred to in Article 509t CCP and the unsatisfactory reasons therefor stated by the Regional Court, the Court of Appeal decided to quash the decision of 6 October 1995 and, on appeal, to determine itself the prolongation request.", "16. After having noted the advice of the secure institution where the applicant was receiving treatment and an expert opinion concerning the applicant’s medical condition, the Court of Appeal decided to extend the TBS order with confinement to a secure institution by one year.", "17. The applicant’s post-sentence confinement, the order was finally terminated on 9 December 2000." ]
[ 2 ]
[ "8. On 13 January 1993 the applicant was detained on charges of armed robbery, burglary and assault occasioning bodily injuries.", "9. On 13 April 1993 a bill of indictment was lodged with the Warsaw Regional Court (Sąd Wojewódzki). The applicant was indicted on the charges of armed robbery, burglary and assault committed together with six other persons.", "10. The court listed hearings for 4, 5 and 6 May 1994 but subsequently cancelled all of them because one of the applicant’s co-defendants had failed to appear. On the last of those dates, the hearing was postponed because Z.K. (one of the co-defendants) was ill and the court considered it necessary to obtain a medical report determining whether or not he would be able to take part in the trial. The relevant report was received at the court’s registry on 13 June.", "11. Two days later the Regional Court set the trial for 6 and 7 September but, on 6 September, it adjourned the hearings since a court interpreter had failed to appear (D.B., one of the co-defendants, was of Lithuanian nationality and therefore not able to follow the trial without the assistance of an interpreter).", "12. The first hearing on the merits was held on 8 November 1994. The court heard evidence from four defendants. The trial continued on 9 and 14 November 1994. In the course of those two hearings, the court heard evidence from other defendants.", "13. The next hearing took place on 16 January 1995. During that hearing the applicant unsuccessfully asked the court to remit the case to the Warsaw Regional Prosecutor and order a further investigation with a view of indicting his wife. On 17 January 1995, in the course of the next hearing, he made a similar application and stated that if it was not granted, he would not attend hearings. Later, he apologised for his behaviour. A hearing listed for 18 January started with a delay because it emerged from a medical certificate made by a prison doctor that the applicant was ill. On that day the court however decided to proceed with the trial in the applicant’s absence because, on the basis of another, subsequently obtained medical certificate, it came to the conclusion that he had misinformed the prison authorities as to the state of his health. The trial continued on 19 and 20 January and on 17, 20 and 23 March 1995. Further hearings were listed for 17, 18 and 19 May 1995. The hearing set for 18 May did not take place because one of the co-defendants had not appeared before the court. In the meantime, on 8 May 1995, the applicant, relying on his previous record of psychiatric treatment, asked the court to order that he be examined by a psychiatrist.", "14. On 19 May 1995 the court ordered that evidence be obtained from psychiatrists to establish whether tempore criminis the applicant and two of his co-defendants had acted in a state of diminished responsibility. It adjourned the trial to 26 and 27 July 1995.", "15. On 22 May 1995 the court requested the Department of Forensic Psychiatry of Warsaw-Mokotów Prison to place the applicant and his co-defendants under psychiatric observation. The applicant underwent that observation from 3 October 1995 to 15 January 1996.", "16. On 29 December 1995, 13 January, 13 and 29 February, 4 March and 16 April 1996, the applicant asked the Warsaw Regional Court to release him. He submitted that his detention on remand had meanwhile exceeded two years and that it was putting a severe strain on his family, especially as his child was ill and his wife and mother needed his help.", "17. The Warsaw Regional Court examined all those applications on 29 April 1996. It dismissed them, holding that the applicant’s detention should continue in view of the reasonable suspicion that he had committed the offences with which he had been charged and the need to secure the proper conduct of the proceedings. The court also considered that the length of the applicant’s detention could not in itself be a decisive factor militating in favour of his release. Finally, it added that there were no grounds for releasing him in view of his family situation, in particular under Article 218 of the Code of Criminal Procedure. In that respect, the court relied on a declaration made by the applicant’s wife (who stated that she did not wish to obtain any help from him).", "18. The applicant appealed, stressing that his detention on remand had meanwhile exceeded three years but his trial had only just commenced. On 23 May 1996 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal in view of the serious nature of the offences with which the applicant had been charged and the need to secure the proper conduct of the proceedings.", "19. Meanwhile, on 29 February 1996 and on an unknown date in April 1996, the psychiatric observations ordered with respect to the applicant’s co-defendants had been completed. The psychiatrists’ reports were received at the court’s registry on 21 March and 12 April 1996, respectively.", "20. On 8 May 1996, the Regional Court scheduled hearings for 5 and 6 August 1996. It emerged from a subsequent decision of the Supreme Court (Sąd Najwyższy) of 13 February 1997 (see paragraph 26 below) that those hearings had been cancelled because the applicant’s co-defendants had “disorganised the trial”. In particular, one of them had inflicted injuries on himself.", "21. On 28 May 1996 the applicant challenged the impartiality of the trial court. The challenge was dismissed on 3 June 1996.", "22. On 18 June and 11 September 1996 the applicant made further applications for release. They were dismissed on 4 July and 19 September 1996 respectively. The applicant appealed and, on 28 September 1996, submitted a medical certificate stating that he suffered from gastric ulcers. Following inquiries into the applicant’s personal circumstances and his family’s situation made by the relevant courts, the contested decisions were eventually upheld on appeal. The courts reiterated the grounds previously given for the applicant’s continued detention.", "23. On 8 November 1996 the Warsaw Regional Court held a hearing. However, the composition of the panel of the court had to be changed because one of the judges had meanwhile withdrawn from the case. In consequence, the newly-composed trial court had to rehear evidence that had to date been obtained. The trial continued on 12-13, 16 and 18‑19 December 1996. On 18 December 1996 the court, considering that the applicant behaved in a disorderly manner (he apparently interrupted the process of obtaining evidence from experts) ordered that he be temporarily removed from the court room. A hearing listed for 21 January 1997 was postponed to 4 February because one of the applicant’s co-defendants had failed to appear. In the course of the hearing held on 4 February 1997 the applicant for the second time challenged the impartiality of the trial court.", "24. On 21 January 1997 the applicant asked the court to release him. On 6 February 1997 he lodged another application for release. The court dealt with his applications on 3 March 1997 and dismissed them, holding that there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure", "25. In the meantime, on 31 December 1996, the Warsaw Regional Court had made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant’s and his co-defendants’ detention on remand until 30 May 1997, i.e. beyond the statutory time-limit set in such cases. The Regional Court considered that the prolonged psychiatric observation of three of the co-defendants, the need to obtain evidence and the fact that one co-defendant had gone on a hunger strike and had inflicted injuries on himself fully justified the opinion that the defendants had deliberately obstructed the termination of the proceedings within the statutory time-limit and, consequently, gave sufficient grounds for extending their detention. Referring to the applicant, the court held that he had, by his conduct, obstructed the termination of the proceedings. It did not specify how the applicant prevented completion of the trial.", "26. The Supreme Court examined that application on 13 February 1997. It prolonged the applicant’s and his co-defendants’ detention on remand until 30 April 1997.", "27. The trial was to continue on 7 March 1997 but – for unknown reasons – it was postponed to a later date.", "28. On 21 March 1997 the applicant – again unsuccessfully – challenged the impartiality of the trial court.", "29. The trial continued on 1, 4 and 16 April 1997. On 18 April 1997 the court gave judgment. The applicant was convicted as charged and sentenced to eleven years’ imprisonment and a fine of 3,000 Polish zlotys.", "30. The applicant appealed against his first-instance conviction in July 1997. The Warsaw Court of Appeal dismissed the appeal on 2 December 1997." ]
[ 2, 3 ]
[ "7. On 19 October 1992 the applicant lent to MJB, a company in Zagreb, 10,000 German marks (DEM) for a period of three months at a rate of interest of 27%. On 23 November 1992 she lent to ZIP, a company in Zagreb, DEM 20,390 for a period of one month at a rate of interest of 20%.", "8. As the said companies failed to repay the loans, the applicant instituted proceedings against ZIP and MJB in the Zagreb Municipal Court (Općinski sud u Zagrebu).", "9. The proceedings against ZIP and its alleged owner Ž.M. commenced on 29 March 1995 when the applicant, together with thirty-nine other plaintiffs, filed an action for repayment of their loans.", "10. On 17 May 1995 the court asked the applicant’s counsel to provide the address of the second defendant. On 23 May 1995 the applicant’s counsel submitted the address concerned.", "11. A hearing was scheduled for 4 October 1995 but it was adjourned since the defendants failed to appear. It turned out that the defendants had not received notice of the date of the hearing as the address indicated was incorrect. The court asked the applicant’s counsel to submit the defendants’ correct address within thirty days.", "12. The next hearing was scheduled for 24 January 1996. However, it appears that in the meantime ZIP had ceased to exist and, as Ž.M.’s address remained unknown, the court ordered the applicant’s counsel to request the Social Welfare Centre (Centar za socijalnu skrb) to appoint a legal representative for Ž.M.", "13. On 20 June 1996 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 11 March 1996, appointed a legal representative for Ž.M.", "14. On 13 September 1996 the court asked the applicant’s counsel to submit within thirty days a certificate from the registry of the Zagreb Commercial Court (Trgovački sud u Zagrebu) concerning the legal status of ZIP.", "15. The next hearing, scheduled for 2 December 1999, was also adjourned due to the absence of the defendants. It turned out again that ZIP and Ž.M. had not received notice of the hearing date as the address indicated was incorrect. The court invited the applicant’s counsel to inform it within thirty days whether ZIP had in fact ceased to exist.", "16. According to the Government, during the next hearing on 7 June 2000, the court decided upon the parties’ application to return the proceedings to the status quo ante (zahtjev za povrat u prijašnje stanje). Due to the absence of ZIP the hearing was adjourned to 17 October 2000. It appears that the proceedings are still pending before the Zagreb Municipal Court.", "17. The proceedings against MJB and its alleged owner B.J. commenced on 30 March 1995 when the applicant, together with thirty other plaintiffs, filed an action for repayment of their loans with the Zagreb Municipal Court.", "18. The court asked the applicant’s counsel to provide the address of B.J. On 25 August 1995 the applicant’s counsel informed the court of B.J.’s address.", "19. The hearing scheduled for 2 October 1995 was adjourned due to the absence of the defendants. It turned out that MJB was no longer at its previous address and that B.J. was in detention on remand. The applicant’s counsel informed the court that B.J. had been released from detention and requested that the notices for the next hearing be sent to the defendants at the same addresses as before.", "20. The hearing on 27 November 1995 was again adjourned due to the defendants’ absence. It appears that MJB had in the meantime ceased to exist and that B.J. had changed her address. The court invited the applicant’s counsel to inform it within thirty days whether MJB had in fact ceased to exist and of the correct address of B.J.", "21. On 7 December 1995 the applicant’s counsel informed the court of the defendants’ addresses.", "22. The next hearing, on 14 February 1996, was also adjourned due to the defendants’ absence for the same reasons as before, that is that MJB had ceased to exist and that B.J. had changed address. The court decided to look into the criminal case file no. KO-1574/93 in the same court, where criminal proceedings had been instituted against B.J., in order to obtain her proper address. Through that the court found her address.", "23. By order of 11 September 1996 the applicant’s counsel was requested to furnish the court with a certificate from the registry of the Zagreb Commercial Court regarding the legal status of MJB.", "24. On 20 September 1996 the applicant’s counsel submitted the requested document.", "25. The next hearing, scheduled for 7 November 1997, was adjourned due to the defendants’ absence. The documents indicate that they had not received the notice of the hearing date.", "26. The next hearing, scheduled for 26 January 1998, was adjourned for the same reason. The court invited the applicant’s counsel to submit B.J.’s correct address within sixty days.", "27. On 6 February 1998 the applicant’s counsel informed the court that in the police registry B.J.’s address was the same as before. He proposed that a legal representative be appointed for B.J.", "28. On 13 February 1998 the court ordered the applicant’s counsel to request the Social Welfare Centre to appoint a legal representative for B.J.", "29. On 2 April 1998 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 26 March 1998, appointed a legal representative for B.J.", "30. According to the Government, during the next hearing, on 2 July 1998, the court issued a default judgment (presuda zbog izostanka) against B.J. The available documents show that MJB had ceased to exist.", "31. On 22 July 1998 the court sent a letter to the Zagreb Commercial Court asking for a certificate regarding the legal status of MJB. On 24 September 1998 the court received a letter from the Zagreb Commercial Court with a certificate that wrongly contained information about another firm, instead of MJB.", "32. On 13 April 2000 the court again sent a letter to the Zagreb Commercial Court asking whether MJB still existed. On the same day the court also requested the applicant’s counsel to submit the same information. It appears that the case is still pending before the Zagreb Municipal Court." ]
[ 3 ]
[ "9. On 4 October 1993 the applicant was arrested on charges of forgery of documents and fraud in connection with a criminal investigation that had been opened on 10 September 1993. \nIt was alleged that the applicant, with the assistance of a customs officer and two other accomplices, had made false customs declarations certifying fictitious exports of consignments of cigarettes which in reality had been sold on the domestic market. On the basis of the false declarations the applicant had obtained the reimbursement of some excise tax and had attempted to obtain further reimbursements. The total amount involved, for which the applicant was eventually found guilty (see paragraph 33 below), was 15,230,400 old Bulgarian levs (“BGL”) (about 3,000,000 French francs (“FRF”) at the time).\nThe charges preferred against the applicant were based on section 212 § 4 of the Penal Code, which provided for a sentence of ten to twenty years’ imprisonment.", "10. During the preliminary investigation the case file was transmitted twice from the Plovdiv investigator’s office to the Plovdiv Regional Court so that the appeals against detention could be examined. The case file was thus unavailable to the investigator and the supervising prosecutor for twelve days (between 28 October and 9 November 1993) and for a further four days (between 28 February and 2 March 1994).", "11. The preliminary investigation was concluded on 5 April 1994 when the indictment drawn up by the prosecutor was submitted to the Plovdiv Regional Court.", "12. The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges.\nIt held its first hearing on 12 and 13 May 1994 when the four accused and several witnesses were heard. The prosecutor and the defence lawyers requested permission to submit further evidence. The court adjourned the hearing.", "13. Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court’s refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor’s opinion.", "14. The case file was sent to the Supreme Court on 28 May 1994 for one of the co-accused’s appeal against detention to be examined and was returned on 30 June 1994.\nThe Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence.", "15. The next hearing was held on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared. Some of them were ordered to pay fines for their failure to appear. The court further decided to seek the assistance of the police to establish the addresses of other witnesses who could not be found.", "16. The hearing resumed on 29 and 30 November 1994. Several witnesses and experts were heard. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned.", "17. Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention.", "18. The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill. The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill.", "19. On 12 July 1995 the court sitting in private ordered an expert report.\nThe hearing listed for 21 September 1995 was adjourned owing to the illness of the lawyer of one of the co-accused.", "20. Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention.", "21. The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill.", "22. After learning that the lay judges were prevented by ill health from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges.", "23. The new chamber of the court held a hearing on 26 and 27 March 1996 which was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court’s clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996.", "24. On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained.", "25. Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention.", "26. The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend.", "27. On 29 October 1996 the parties to the criminal case, including the applicant who at that time was on hunger strike, appeared before the Plovdiv Regional Court. The lawyers requested an adjournment in view of the applicant’s health and the absence of the witnesses and of a defence lawyer. The court heard the medical experts who had been appointed the previous day and had examined the applicant briefly. The experts stated that the applicant needed to undergo a full examination in hospital. On 30 October 1996 the court ordered the applicant’s temporary admission to hospital and adjourned the hearing. The parties disagreed over the reasons for this adjournment. The applicant submits that the absence of several witnesses was decisive, whereas the Government maintain that the only reason was the applicant’s state of health, as the medical experts considered that he was not well enough to participate in the hearing.", "28. Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date.", "29. The hearing resumed on 19 December 1996. One witness was examined. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment.", "30. With two exceptions, the Plovdiv Regional Court did not, when adjourning hearings, announce in open court a date for the resumed hearing. As a result, certain witnesses and experts who were present but had to be heard again were informed about the date of the resumed hearing by a summons to attend. If the summons did not reach the person concerned the examination of the case could not be completed at the resumed hearing.\nIn particular, the witnesses Mrs M. H. and Mr S. Z. were present at the hearing on 13 May 1994, but were not duly summoned for the hearing on 29 November 1994. The witness Mr G.P. was present at the hearing on 26 March 1996 but was not duly summoned for the hearing on 7 May 1996. That latter hearing was adjourned to allow the examination of witnesses who had not appeared.", "31. The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses.", "32. The last hearing before the Plovdiv Regional Court took place on 28‑31 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence. The applicant apparently unsuccessfully requested the adjournment of the hearing in order to question four absent witnesses whose attendance had previously been requested by both parties.", "33. On 31 January 1997 the Regional Court convicted the applicant and sentenced him to thirteen years’ imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between eleven and twelve years. The court reserved the reasoning of its judgment. It was prepared on an unspecified date at least three months following the delivery of the judgment.", "34. On 10 February 1997 the applicant appealed against conviction and sentence to the Supreme Court of Cassation, which under the relevant law was acting as an appellate court in cases such as the applicant’s.\nThe Supreme Court of Cassation listed the case for hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he used to know one of the convicted persons and wished to withdraw. The court adjourned the hearing.", "35. The hearing was held on 23 January 1998. On 18 March 1998 the Supreme Court of Cassation upheld the applicant’s conviction and sentence.", "36. Up to that point the applicant had been represented by a lawyer and, at times, by two or three lawyers simultaneously.", "37. On 24 March 1998 one of the persons convicted at the same trial instituted review (cassation) proceedings.\nThe five-member Chamber of the Supreme Court of Cassation held a hearing on 10 June 1998 at which the applicant appeared without legal representation. He expressed the wish to join the review (cassation) proceedings, which was still possible as the statutory time-limit had not expired. The court adjourned the hearing to enable the applicant to file a petition for review (cassation) and arrange for his legal representation. The applicant lodged a petition for review on 22 June 1998.", "38. The hearing resumed on 9 December 1998.\nBy judgment of 22 March 1999 the Supreme Court of Cassation dismissed the applicant’s petition for review (cassation).", "39. On 4 October 1993, the day of his arrest, the applicant was brought before an investigator, who decided to detain him on remand. This decision was approved by a prosecutor on the same date.\nOn 14 October 1993, when the case was at the preliminary investigation stage, the applicant appealed to the Plovdiv Regional Court against his detention on remand. The court examined the case in private, on the basis of the investigator’s file, the applicant’s petition and the prosecutor’s comments, which were not communicated to the applicant. By a decision of 3 November 1993 the court dismissed the applicant’s appeal.", "40. One of the applicant’s accomplices, a Mr H., was released on bail on 6 November 1993, but was re-arrested on 15 February 1994. While on bail Mr H. attempted to induce Mr G., a witness, to give false evidence, and was later charged with and convicted of that offence.", "41. Following the conclusion of the preliminary investigation in the applicant’s case, and after his committal in April 1994 for trial, the applicant made before the Plovdiv Regional Court seven applications for release on bail. Appeals were made to the Supreme Court against some of the decisions of the Regional Court.", "42. The first of those seven bail applications was made on 3 October 1994 and dismissed by the Regional Court on 6 October 1994.\nAnother request, made on an unspecified date, was dismissed by the Regional Court on 30 November 1994. The Regional Court’s refusal to release the applicant was confirmed by the Supreme Court on 21 February 1995.", "43. In its decision of 21 February 1995 the Supreme Court stated that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure detention on remand was mandatory for everyone accused of a crime punishable by ten or more years’ imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused’s absconding or re-offending. In the Supreme Court’s view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. The Supreme Court referred to its practice on the matter.\nThe Supreme Court further refused to consider the applicant’s contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with a bail application. Its only task was to examine whether the conditions for detention on remand under Article 152 of the Code of Criminal Procedure had been met.", "44. The applicant again applied for his release on bail on 11 July 1995. That application was dismissed by the Regional Court on 21 September 1995. On appeal, the Regional Court’s refusal to release the applicant was upheld by the Supreme Court sitting in private on 6 November 1995, upon receipt of the prosecutor’s observations which had not been communicated to the applicant. The Supreme Court stated that the applicant could only be released if there existed unequivocal evidence establishing beyond all doubt that there was no danger of his absconding, re-offending or obstructing the investigation. However, no such evidence was available in the applicant’s case.\nBy a decision of 4 December 1995 the Regional Court refused the applicant’s request, submitted on an unspecified date, to annul or revise its previous decision concerning his detention on remand. Addressing the applicant’s argument that the material in the case indicated that he had not committed a crime, the court stated that it was not open to it to analyse the evidence in the criminal proceedings. The lawfulness of the detention was to be gauged on the basis of the accusation against the applicant. The only other element to be examined was whether or not there existed exceptional circumstances demonstrating beyond all doubt that there was not even a hypothetical danger of his absconding, re-offending or obstructing the investigation. However the court had already found that no such circumstances existed.", "45. A further request for release on bail, submitted on 15 January 1996, was refused by the Regional Court on 20 February 1996 as there had been no change in the circumstances.\nAt the hearing on 27 March 1996 before the Regional Court the applicant made an oral request for release. This was refused that same day. The court stated that there had been no change of circumstances and that the law did not lay down a time-limit for detention on remand.", "46. On 1 April 1996 the applicant’s lawyer lodged an appeal to the Supreme Court against the decision of 27 March 1996. Three days later, on 4 April 1996, the applicant also appealed in person. The appeals were submitted through the Regional Court, in accordance with the established practice. The grounds for appeal were, inter alia, that all evidence in the criminal case had already been examined and that therefore there was no danger of the applicant’s perverting the course of justice. Furthermore, there was no danger of his absconding, as he had been abroad when the investigation had started and had returned voluntarily. He had never been convicted of a criminal offence, had a family and a permanent residence. The applicant also stated that the length of his detention violated the Convention.", "47. By a decision of 9 April 1996 delivered in private the Regional Court, before transmitting the appeals of 1 and 4 April 1996 to the Supreme Court, confirmed its refusal of 27 March 1996 to release the applicant. The Regional Court stated inter alia that the applicant’s arguments could not, under the settled practice of the Supreme Court, serve as a basis for a decision to release him.", "48. The applicant’s appeals of 1 and 4 April 1996 were transmitted to the Supreme Court on 9 May 1996. On 10 May 1996 the applicant lodged a further appeal against the Regional Court’s refusal to release him. It was joined to the two earlier appeals.", "49. On 22 May 1996 a prosecutor of the Chief Public Prosecutor’s Office lodged written submissions on the appeals with the Supreme Court, inviting it to dismiss them. The submissions were not communicated to the applicant.\nOn 28 May 1996 the Supreme Court dismissed the appeals. It found that under Article 152 § 1 of the Code of Criminal Procedure the applicant’s detention on remand was justified and that the case before it did not come within the exception provided by Article 152 § 2 of the Code.\nThe court also stated that the length of the proceedings and the question whether the accusations were well-founded were irrelevant.", "50. On 15 October 1996 the applicant lodged a further application for release on bail. At that time he was on hunger strike which he had commenced on 23 September 1996 to protest against his continuing detention on remand.\nThe presiding judge noted on 23 October 1996 that the court could not hear the appeal as one of the lay judges had been taken ill.\nAt the hearing of 29 and 30 October 1996 the applicant renewed his application.\nThe Regional Court heard medical experts who had examined the applicant and it dismissed his application of 30 October 1996.", "51. On 6 November 1996 the applicant’s lawyers lodged an appeal against the decision of 30 October 1996.\nOn 11 November 1996, before transmitting the appeal to the Supreme Court, the Regional Court sitting in private confirmed its decision of 30 October 1996. It found inter alia that there had been no change of circumstances except for the applicant’s worsening health. However, the medical experts had not stated that his release was necessary and his condition was being constantly monitored in hospital.", "52. On 19 November 1996 the appeal was transmitted to the Supreme Court.\nOn 25 November 1996 a prosecutor of the Chief Public Prosecutor’s Office submitted written observations to the Supreme Court, inviting it to dismiss the appeal. The comments were not communicated to the applicant.", "53. On 4 December 1996 the Supreme Court sitting in private dismissed the appeal. It stated, inter alia, that the danger of absconding, re-offending and perverting the course of justice was presumed in view of the gravity of the crime with which the applicant was charged. The applicant’s health problems, which could be dealt with at the place of detention, and the length of his detention ‑ despite its inevitable negative consequences ‑ did not affect that finding. The court further considered that the applicant’s complaints under the Convention were unfounded. In particular, the applicant was wrong to consider that certain provisions of the Code of Criminal Procedure were contrary to the Convention.", "54. On 31 January 1997 the applicant was convicted and sentenced to a term of imprisonment (see paragraph 33 above)." ]
[ 2, 3 ]
[ "8. The applicant, who was born in 1942, is a judge. After the summer of 1990 he applied for membership of the Grande Oriente d’Italia di Palazzo Giustiniani. On 5 March 1991 he became a member of the Adriano Lemmi Lodge in Milan.\nDuring the summer of 1992 the applicant read in the national press that certain State prosecutors, in particular the state prosecutor of Palmi (Reggio di Calabria), had begun inquiries, which, according to certain rumours, also concerned lodges associated with the Grande Oriente d’Italia di Palazzo Giustiniani.\nIn October 1992 the applicant asked to distance himself from the organisation and on 5 November 1992 he was made a “dormant member”.", "9. The Palmi public prosecutor’s office sent the National Council of the Judiciary (Consiglio Superiore della Magistratura) a list of judges who were Freemasons. The National Council of the Judiciary then sent it to the Minister of Justice and Principal State Counsel at the Court of Cassation, who instituted disciplinary proceedings against the judges. The list was then made public – at least in part – by the press.", "10. In July 1993, after an inquiry had been commenced, the applicant was questioned by an inspector from the General Inspectorate for the Ministry of Justice. Subsequently, in February 1994, he was questioned by Principal State Counsel at the Court of Cassation.", "11. In June 1994 he was summoned to appear before the disciplinary section of the National Council of the Judiciary. He was accused of having undermined the prestige of the judiciary by committing a serious breach of his duties, and thus being unworthy of the trust that must be had in a judge.\nIn his address, counsel for the applicant referred to a decision of the same section, given some ten years earlier, which drew a distinction between secret associations – of which judges were forbidden from being members – and discreet associations. Counsel for the applicant also noted that the guidelines of the National Council of the Judiciary, which stated that judicial office was incompatible with membership of the Freemasons, had been adopted during the summer of 1993, which was one year after the applicant had left the organisation of his own accord.\nAt the end of the proceedings the disciplinary section found that the applicant had breached Article 18 of Royal Legislative Decree no. 511 of 31 May 1946 (“the 1946 decree”) and gave him a warning.", "12. The applicant appealed on points of law to the Court of Cassation, which examined the case in plenary session on 13 June 1996. It dismissed the appeal in a judgment of 10 December 1996.", "13. On 17 May 2000 the Fourth Committee of the National Council of the Judiciary indicated again (having already made a similar recommendation on an unknown date) that it was not in favour of the applicant’s promotion – for which the requisite conditions had been fulfilled since 17 October 1997 – in view of the disciplinary sanction that had been imposed on him." ]
[ 7 ]
[ "7. The applicants are Italian nationals who were born in 1959 and 1951 respectively and live in Rome.", "8. On 10 and 19 July 1997 two armed robberies were committed in the Rome area. It emerges from a report prepared by the Rome police on 23 July 1997 that there was evidence that the stolen goods had been hidden in a warehouse belonging to the company owned by the applicants. The latter were also said to have been in telephone contact with persons suspected of the offences.", "9. On 18 December 1997 the Rome public prosecutor applied for the applicants to be placed in pre-trial detention. In an order of 22 December 1997, the Rome investigating judge allowed that application.", "10. On 23 December 1997 the applicants were arrested and taken to Rome Prison. On 24 December 1997 they appealed against the order of 22 December 1997 to the division of the Rome District Court responsible for reconsidering security measures (tribunale del riesame).", "11. The hearing before the Rome District Court was held on 7 January 1998. In an order delivered the same day, filed with the registry on 10 January 1998, the court replaced the applicants’ pre-trial detention with the security measure of house arrest (arresti domiciliari). It considered, in particular, that it was reasonable to suspect that the applicants had committed the offences in issue and that it was to be feared that they might commit others of the same type. Taking the view, however, that there was no “tangible risk for the gathering of evidence” and having regard to the defendants’ clean police record, it concluded that a less restrictive measure, such as house arrest, was preferable. That measure required the applicants to stay in their home and leave only with the authorities’ prior authorisation.", "12. The order of 7 January was served on the applicants on 10 January 1998. They should therefore have been immediately escorted from Rome Prison, where they were being held, to their home. However, no police officers were available to escort them and so their transfer was delayed until 13 January 1998." ]
[ 2 ]
[ "8. Since 1967 the applicant company has owned approximately 65,000 square metres of land in the municipality of Pomezia, entered in the Land Register as folio 11, parcel 66. In 1963 the Pomezia District Council had given its approval for a building project to be carried out on the land.", "9. On 29 December 1967 the Pomezia District Council resolved to adopt a general development plan (piano regolatore generale – “GDP”).", "10. On 20 November 1974 the Lazio Regional Council approved the GDP for Pomezia, which set aside the applicant company’s land for the creation of a public park (parco pubblico) and, consequently, imposed an absolute prohibition on building on the land with a view to its expropriation.", "11. Pursuant to section 2 of Law no. 1187/1968, the prohibition on building imposed by the GDP lapsed in 1979, no detailed development plan having been adopted in the intervening five years.", "12. Despite the fact that the prohibition on building had lapsed, the applicant company’s land did not revert to its original use.", "13. Pending a decision by the Pomezia District Council on its future use, the land was subject to the regulations in section 4 of Law no. 10/1977, a provision which the courts had held to apply in situations of that kind (see paragraphs 38-40 below), and, from 1990, to the regulations in Law no. 86 of the Lazio Region.", "14. The applicant company’s land was consequently affected by the building restrictions deriving from the application of these laws.", "15. On 12 March 1987 the applicant company asked the Pomezia District Council to determine the use to which the land was to be put. No action was taken on this request.", "16. In view of the District Council’s failure to reply, which amounted to a refusal, the applicant company appealed to the Regional Administrative Court (“the RAC”). It argued, firstly, that the District Council was under an obligation to determine the intended use of the land and that its inaction was unlawful. It also sought to have the land designated as building land by the authorities.", "17. In a decision of 16 October 1989 the Lazio RAC allowed the applicant company’s appeal in so far as it acknowledged that the Pomezia District Council’s inaction was unlawful.", "18. The court held that the prohibition on building imposed in 1974 had ceased to be effective after five years, pursuant to Law no. 1187/1968, because the Pomezia District Council had not adopted a detailed development plan. Since then, the applicant company’s land had been subject to the regulations in Law no. 10/1977. The court considered, however, that the building restrictions deriving from the application of that Law could not take the place of an actual decision by the administrative authorities as to the intended use of the land; the authorities were consequently under an obligation to revise the land-use plan (ricostituzione della disciplina urbanistica), and their inaction was unlawful. However, the District Council remained entirely at liberty to determine the use to which the land in issue should be put; the RAC was not empowered to direct that the land should be given a particular designation.", "19. In conclusion, the RAC ordered the administrative authorities to give a fresh decision as to the intended use of the applicant company’s land.", "20. The Pomezia District Council appealed against that decision.", "21. In a decision of 28 February 1992 the Consiglio di Stato dismissed the Pomezia District Council’s appeal and upheld the impugned decision.", "22. On 10 September 1992, in view of the failure of the Pomezia District Council to comply with the Consiglio di Stato’s judgment, the applicant company requested the District Council to adopt a decision on the land. It also proposed a solution whereby if the District Council designated 15,000 square metres as building land, the applicant company would assign the rest of the land to the municipality free of charge. No action was taken on this proposal.", "23. In a decision of 25 October 1995 the Pomezia District Council resolved to adopt a detailed development plan and again imposed an absolute prohibition on building on the applicant company’s land with a view to its expropriation. The District Council set the land aside for public use.", "24. The applicant company appealed against that decision to the regional committee for supervision of measures taken by municipal authorities (CORECO), seeking to have the District Council’s decision overturned. It argued that the indications given as to the intended use of the land were too vague and that the conditions for renewing the prohibition on building, such as that of public interest, were not satisfied. The outcome of the appeal is not known.", "25. It appears from the expert opinion produced by the applicant company that the detailed development plan imposing a prohibition on building on the land was adopted on 22 March 1999." ]
[ 9 ]
[ "6. The applicant is an Algerian citizen born in 1967.", "7. The applicant entered Switzerland with a tourist visa in December 1992. On 19 March 1993 he married M.B., a Swiss citizen.", "8. On 27 April 1994 the applicant was convicted by the Zürich District Office (Statthalteramt) of the unlawful possession of weapons.", "9. According to the charges subsequently raised against the applicant, he committed, on 28 April 1994 in Zürich, the offences of robbery and damage to property by attacking a man, together with another person, at 1 a.m., by throwing him to the ground, kicking him in the face and taking 1,201 Swiss francs from him.", "10. The Zürich District Court (Bezirksgericht) convicted the applicant of these offences on 17 May 1995, though the judgment was quashed upon appeal as the applicant had not been represented by a lawyer. Proceedings were resumed before the District Court, which on 1 July 1996 sentenced the applicant to eighteen months’ imprisonment, suspended on probation.", "11. Both the public prosecutor’s office and the applicant filed an appeal, whereupon on 31 January 1997 the Court of Appeal (Obergericht) of the Canton of Zürich sentenced the applicant to two years’ unconditional imprisonment for robbery and damage to property. In its judgment the court considered that the applicant had been particularly ruthless and brutal, and that his culpability (Verschulden) was severe.", "12. The applicant’s further plea of nullity was dismissed on 17 November 1997 by the Court of Cassation (Kassationsgericht) of the Canton of Zürich.", "13. On 11 May 1998 the applicant began his two-year prison sentence.", "14. On 19 May 1998 the Directorate for Social Matters and Security (Direktion für Soziales und Sicherheit) of the Canton of Zürich refused to renew the applicant’s residence permit (Aufenthaltsbewilligung).", "15. The applicant’s appeal against this decision was dismissed by the government (Regierungsrat) of the Canton of Zürich on 21 October 1998.", "16. In a written statement of 18 November 1998, the applicant’s wife complained of being expected to follow her husband to Algeria. While admitting that she spoke French, she claimed that she would have no work in Algeria and no money. She found it most shocking that a married couple was being separated.", "17. The applicant’s appeal against the decision of 21 October 1998 was dismissed by the Administrative Court (Verwaltungsgericht) of the Canton of Zürich on 16 June 1999. In its decision, the court relied for the non-renewal of the applicant’s residence permit in particular on sections 7 and 11 of the Federal Aliens’ Domicile and Residence Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) and on Article 16 § 3 of the ordinance implementing the Act (Vollziehungsverordnung). The court considered that the non-renewal was called for in the interests of public order and security. It might well separate the applicant from his wife, though they could live together in another country, or visit each other.", "18. On 2 August 1999 the applicant was given early release from prison.", "19. The applicant’s administrative-law appeal (Verwaltungsgerichts- beschwerde) against the decision of 21 October 1998 was dismissed by the Federal Court (Bundesgericht) on 3 November 1999. The court recalled that according to section 10(1) of the Federal Aliens’ Domicile and Residence Act the criminal conviction of a foreigner served as a ground for expulsion. There was no breach of Article 8 of the Convention as the authorities refused to renew the applicant’s residence permit in view of the serious offence which he had committed. The measure was imposed in the interests of public order and security. The fact that he had behaved well in prison was irrelevant as this did not concern his conduct outside.", "20. The Federal Court’s noted that a large number of the applicant’s relations lived in Algeria, and that he had not demonstrated particularly close links with Switzerland. While it would not be easy for his wife to follow him to Algeria, this was not completely impossible. Indeed, she spoke French and had been able to have some contact by telephone with her mother-in-law. The couple could also live in Italy, where the applicant had spent some time before coming to Switzerland.", "21. By a decision of 1 December 1999 the Federal Aliens’ Office (Bundesamt für Ausländerfragen) issued an order prohibiting the applicant from entering Switzerland as of 15 January 2000 for an unspecified period of time (auf unbestimmte Dauer). By a decision of 3 December 1999 the Office ordered the applicant to leave Switzerland by 15 January 2000.", "22. On an unspecified date in 2000 the applicant left Switzerland and is currently living in Italy.", "23. In December 1997 the applicant passed a training course to become a waiter. From 20 August 1997 until 21 January 1998 he worked as a painter for an organisation for refugees in Zürich.", "24. While the applicant was serving his prison sentence at the Ringwil prison colony in Hinwil, the prison services issued an interim report on 12 November 1998 on his conduct, according to which his work as a gardener and stable-hand had been satisfactory. The report also stated that he had good manners and a very agreeable personality; that his room was always tidy; that as a rule he returned punctually from his leave; and that various urine tests for detecting drugs had all shown negative results.", "25. According to a work report from the C. company, dated 28 February 2000, the applicant had been working satisfactorily with that company since 3 May 1999 as an assistant gardener and electrician. A work report from the V. company, dated December 1999, stated that the applicant had worked well as an assistant gardener for that company for eighteen weeks between May and November 1999.", "26. According to a letter from the Italian Ministry of the Interior to the Swiss embassy in Rome, dated 20 February 2001, the applicant had lawfully resided in Italy from 16 August 1989 until 21 February 1992 and since that date he had not renewed his residence permit (permesso di soggiorno)." ]
[ 4 ]
[ "8. On 29 November 1980 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way).", "9. On 26 January 1981 the Ankara Martial-Law Court (sıkıyönetim mahkemesi) remanded the applicant in custody.", "10. On 26 February 1982 the military public prosecutor filed a bill of indictment with the Martial-Law Court against the applicant and 722 other defendants. The public prosecutor accused the applicant of membership of an illegal armed organisation, namely the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as acting as an armed look-out for the killers of several individuals, a bomb attack on a coffee house and opening fire on a house.\nThe prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.", "11. In a judgment of 19 July 1989 the Martial-Law Court, composed of two civilian judges, two military judges and an army officer, found the applicant guilty as charged, sentenced him to life imprisonment (in effect eighteen years assuming good conduct) for offences under Article 146 § 1 of the Criminal Code and permanently debarred him from employment in the civil service. It took from 19 July 1989 until 1993 for the reasons for the judgment to be set down in writing.", "12. The applicant lodged an appeal with the Military Court of Cassation (askeri yargıtay).", "13. On 23 July 1991 the Martial-Law Court ordered the applicant’s release pending trial.", "14. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial-law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and the file was transmitted to it.", "15. On 27 December 1995 the Court of Cassation upheld the applicant’s conviction." ]
[ 3 ]
[ "8. On 28 February 1995 Detective Inspector Mann (D.I. Mann), received information that an armed robbery of a Securicor Ltd cash-collection van was going to be committed on or around 2 March 1995 by the first applicant and B. at one of several possible locations. The police knew where B. lived and began visual surveillance of those same premises the same day. D.I. Mann learnt that B. was suspected of being a drug dealer and that surveillance operations mounted against B. in the past had proved unsuccessful because they had been compromised. It was therefore concluded that B. was “surveillance-conscious”. B. was suspected of being responsible for the shooting of a police officer with a shotgun in the course of a robbery. This was something that all the officers, and particularly the Chief Constable, were aware of when the police operation was being planned.", "9. No robbery took place on 2 March 1995. By 3 March 1995, however, the police had received further information that the robbery was to take place “somewhere” on 9 March 1995. Further information as to the location or target of the proposed robbery could not be obtained on 3 March 1995. In order to obtain further details about the proposed robbery, D.I. Mann prepared a report for the Chief Constable in support of an application for authorisation to install a covert listening device in B.’s flat. Some of the contents of this report were the subject of a successful application for non-disclosure by the Crown on the ground that serious damage would be caused to the public interest were they to be made public.", "10. The use of covert listening devices was governed by the “Guidelines on the Use of Equipment in Police Surveillance Operations” issued by the Home Office in 1984 (“the Guidelines”). On 3 March 1995 the Chief Constable decided that the use of such a device was justified under the Guidelines but would not authorise its use until he was satisfied that its installation was feasible. Reconnaissance during the night of 3/4 March established that it was feasible.", "11. On 4 March 1995 the Chief Constable gave oral authorisation to proceed with its use. However, he did not provide written confirmation as required by the Guidelines because he was on annual leave, so he gave the authority by telephone from home. The Chief Constable stated that the use of the device was to be reviewed on a daily basis. He said that he had asked the Deputy Chief Constable to look after the written formalities and to ensure, inter alia, that there was written confirmation of the message that the installation of the device was feasible. He did not receive this confirmation until 8 March. On 8 March 1995 the Deputy Chief Constable gave “retrospective” written authorisation for use of the listening device.", "12. On 4 March a covert listening device was therefore installed in a sofa in B.’s flat before the Deputy Chief Constable had confirmed the authorisation in writing. Conversations between B. and others in B.’s living room were monitored and recorded until 15 March 1995.", "13. On 14 March 1995 the police made a request to BT (British Telecommunications PLC) for itemised billing in relation to the telephone number of B. at his flat for the period from 1 January 1995 to the date of the request. The data-protection form was countersigned by a police superintendent in line with BT’s requirements, stating that the information was necessary to assist in the identification of members of a team of suspected armed robbers. While the request was originally made in an effort to identify the unknown third person in the conspiracy (now known to have been the second applicant), the data was also used later in court to corroborate the times and dates recorded by the officers in respect of the covert listening device in the flat.", "14. On 15 March 1995 B. and others who were with him in his home discovered the listening device and abandoned the premises. The robbery did not take place. The police had been continuing their visual surveillance of the premises, taking photographs and video footage whilst the audio surveillance was in progress. The applicants were identified by various officers going in and out of the flat and observed on some occasions to be carrying various hold-alls. The police had also been keeping watch on a cache in a rural location and observed the first applicant collecting an item from this location on the evening of 15 March 1995. An officer had earlier inspected the hidden item, which he stated he could tell through the plastic bag was a revolver. It appeared that the vehicle which the first applicant used for transport that evening was a stolen vehicle in which he was subsequently arrested.", "15. On 16 March 1995 the applicants were arrested in the stolen Vauxhall car. In the boot of the vehicle were found two hold-alls containing, inter alia, two black balaclavas, five black plastic cable ties, two pairs of leather gloves and two army kitbags. Following legal advice, the applicants declined to comment during interview and refused to provide speech samples to the police. The police obtained a search warrant for the flat and searched it. Fingerprints of the applicants were found, as well as items such as a pair of overalls and a third balaclava. Three vehicles were recovered and examined. The items retained included balaclavas, hold-alls, overalls and a broken petrol cap.", "16. As they wished to obtain speech samples to compare with the tapes, the police applied for authorisation to install covert listening devices in the cells being used by the applicants and to attach covert listening devices to the police officers who were to be present when the applicants were charged and when their antecedents were examined. Written authorisation was given by the Chief Constable in accordance with the Home Office Guidelines. Samples of the applicants’ speech were recorded without their knowledge or permission. In the case of the second applicant, the conversations that were recorded included, on one occasion, the second applicant taking advice from his solicitor. The Government state that, when the police officer realised what the conversation was about, it was not listened to. That recording was not adduced in evidence at trial.", "17. The voice samples of the applicants were sent to an expert who compared them with the voices on the taped recordings of conversations held in B.’s home between 4 and 15 March. The expert concluded that it was “likely” that the first applicant’s voice featured on the taped recordings and that it was “very likely” that the second applicant’s voice featured on them.", "18. B. and the applicants were charged with conspiracy to rob Securicor Ltd of monies. B. pleaded guilty in view of the House of Lords decision in R. v. Khan ([1996] 3 All England Law Reports 289). The House of Lords held in that case that relevant evidence was admissible notwithstanding that it had been obtained by unlawful means (for example, trespass). The applicants, however, challenged the admissibility of the evidence derived from the use of the covert listening devices at B.’s home on two grounds.\n(a) The Chief Constable should not have authorised the use of a covert listening device at B.’s premises because other forms of investigation had not been tried and failed as required by paragraph 4 (b) of the Guidelines, with the result that it would be unfair to admit evidence which ought never to have been obtained.\n(b) The covert listening device had been installed and used before written confirmation of the Chief Constable’s authorisation had been received and there was no specific permission for the recordings obtained from the device to be used in evidence.\nBefore the jury was sworn in at the trial, Judge Brodrick heard evidence by means of a voir dire (submissions on a point of law in the absence of the jury) on matters relating to the admissibility of the challenged evidence. The prosecution conceded that the relevant evidence had been obtained by unlawful means, namely trespass. During this procedure the prosecution claimed that the public interest was likely to be damaged if certain disclosures were made and certain evidence given, in other words claiming public interest immunity. The prosecution argued that the test of admissibility was relevance. The defence argued that the judge had the discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE), and that he should do so because the Chief Constable had failed to abide by the Guidelines.", "19. Judge Brodrick decided that some documents, including D.I. Mann’s report, which led to the Chief Constable’s decision to authorise the use and installation of a covert listening device in B.’s flat, were to be withheld from the applicants and their lawyers. The judge kept under review the non-disclosure during the proceedings and at one point some disclosure was made, although not D.I. Mann’s report in its entirety. D.I. Mann also declined to answer questions put to him in cross-examination by defence counsel on the ground that it might reveal sensitive material. Judge Brodrick asked defence counsel whether they wanted him to put the unanswered questions to D.I. Mann under oath, in chambers, and they agreed. The judge proceeded to put the questions to D.I. Mann in private in the absence of the applicants and their lawyers. He heard evidence from D.I. Mann concerning the ability of the police to “control” B. in order to install the device in the flat, which the defence asserted indicated that normal methods of surveillance would have been possible. He also heard D.I. Mann concerning the arrangements made and put into effect for this period. The answers to those questions were not divulged, the judge indicating in open court that the benefit to the defence from the answers given was slight, if any at all, while the damage to the public interest if the answers were made public would be great. Accordingly, he held that D.I. Mann was entitled on public immunity grounds to refuse to answer those questions.", "20. Judge Brodrick rejected the applicants’ challenge to the admissibility of the evidence derived from the covert listening devices in B’s flat. In reaching his decision, Judge Brodrick stated:\n“61. It follows that I must apply the test set out in section 78 on the basis that this was a properly authorised decision to install the device and that the police were justified in continuing to use it up to the moment when it was discovered. At most there were one or possibly two breaches of procedure, but neither, in my judgment, could be described as either significant or substantial. It is conceded by the Crown that the installation of the device amounted to a civil trespass. In addition it was a serious invasion of privacy in circumstances in which those concerned would have expected their conversations to be private. 62. I was invited to take into account, and I do, that the installation of the device may well amount to an invasion of the general right to privacy under Article 8 [of the Convention]. It is not for me to determine whether there has, in fact, been a breach of Article 8, but in weighing this point I must bear in mind that it is at least arguable that the interference in the present case could be justified on one or more of the grounds set out in Article 8 § 2. In those circumstances I cannot see any reason for concluding that the possible breach of Article 8 was either substantial or significant. 63. I was also invited to consider whether the admission of this evidence and the difficulties faced by the Defence in seeking to test the validity of the Chief Constable’s decision breached Article 6 of the Convention ... I am satisfied beyond reasonable doubt that to the extent that there has been a breach of Article 6 it has not in fact deprived these Defendants of the right to a fair trial.”", "21. The applicants also challenged the admissibility of evidence derived from the use of covert listening devices attached to the officers charging them and dealing with their antecedents. Judge Brodrick stated:\n“75. ... it does not seem to me to be right to attach great weight to the unfair way in which the control tapes were obtained. The fact that they provide relevant evidence, in the sense that they are a reliable sample of speech, which can be clearly attributed to each of these Defendants, weighs more heavily in my judgment. On balance therefore I am satisfied that the admission of the control tapes would not have such an adverse effect on the fairness of the proceedings that I ought to exclude them.”", "22. The police submitted statements from those officers who had conducted the audio and visual surveillance of the flat, and the searches of the flat and the recovered vehicles. There was also evidence from officers who had been keeping watch on a cache. One officer stated that the item hidden under a tree was in fact a revolver. The first applicant was seen collecting this item on the evening of 15 March 1995.", "23. On 9 August 1996 the applicants were convicted of conspiracy to commit armed robbery and were sentenced to fifteen years’ imprisonment. They applied to the Court of Appeal for leave to appeal on grounds relating to the judge’s rulings to admit taped evidence. They did not challenge the judge’s decisions with respect to non-disclosure of certain evidence on public interest immunity grounds. Their applications were refused on 12 November 1996, a single judge finding that the judge’s exercise of his discretion to admit evidence did not give rise to an arguable ground of appeal. Notification of the refusal was sent to them on 10 and 20 December 1996 respectively. It does not appear that the applicants made any complaints to the Police Complaints Authority in respect of the covert listening devices." ]
[ 4 ]
[ "8. On 11 June 1981 police officers from the Bursa Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way).", "9. On 27 July 1981 the applicant was brought to the Sivas Public Prosecutor’s office where he conceded the accusations against him and explained his role in the Dev-Yol.", "10. On 3 September 1981, following his transfer to Ankara, the applicant was questioned by police officers at the Ankara Security Directorate. He confirmed his statements concerning his involvement in the activities of the Dev-Yol.", "11. On 16 September 1981 the applicant was taken to the Ankara Military Public Prosecutor’s office where the statements he had made at the Ankara Security Directorate were read to him. He made some amendments to his statements and confirmed that they were true. He explained in detail his involvement in the Dev-Yol.", "12. On 18 September 1981 the Ankara Martial Law Court (sıkıyönetim mahkemesi) remanded the applicant in custody.", "13. On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant and 722 other defendants. The Public Prosecutor accused the applicant of membership of an illegal armed organisation, namely the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The Public Prosecutor alleged that the applicant had been involved in numerous illegal activities of the Dev-Yol, such as collection of money for expenditures of the organisation, supplying weapons to the organisation and giving orders to the militants under his command for robberies, murder and bombings. He maintained that the applicant had also been involved in the armed clashes with the police and opponent groups and had organised illegal meetings in Bursa.\nThe prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.", "14. In the meantime, the Ankara Martial Law Court decided that the criminal proceedings brought against the applicant by the Gölcük Martial Law Public Prosecutor’s office on 30 October 1981 and the Erzincan Military Public Prosecutor’s office on 23 December 1981 should be joined to the criminal proceedings instituted by the Ankara Military Public Prosecutor’s office.", "15. On 18 March 1987 the Martial Law Court ordered the applicant’s release pending trial.", "16. In a judgment of 19 July 1989 the Martial Law Court, composed of two civilian judges, two military judges and an army officer, convicted the applicant of membership of an illegal organisation, the Dev-Yol, and of having a leading role in that organisation. It sentenced him to 13 years and 4 months’ imprisonment, debarred him from employment in the civil service and placed him under judicial guardianship for offences under Articles 59 and 168 § 1 of the Turkish Criminal Code and Article 17 of Law no. 1402. The court acquitted the applicant of the other charges.", "17. The applicant lodged an appeal with the Military Court of Cassation (askeri yargıtay).", "18. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and the file was transmitted to it.", "19. On 27 December 1995 the Court of Cassation quashed the applicant’s sentence. It held that the Martial Law Court had wrongly applied Article 17 of Law no. 1402 to the applicant’s case. It considered however that this error did not require the re-trial of the applicant. The court revised the judgment of the Martial Law Court and sentenced the applicant to 10 years’ imprisonment." ]
[ 3 ]
[ "8. On 14 February 1992 the pension fund of the applicant’s employer granted the applicant a full temporary disability pension as from 1 March 1992 until 30 June 1992. Thereafter the period of full pension was prolonged several times.", "9. On 13 June 1997 the pension fund reviewed its previous decision and changed the applicant’s pension into a partial one for an indefinite period beginning on 1 June 1997. The pension fund reasoned its decision by observing that, according to the documents submitted to the pension fund, the applicant’s capability to work could no longer be considered reduced to such an extent as entitling him to a full disability pension. It was also noted that the applicant could be expected to work at least part-time.", "10. The applicant appealed to the Pension Board, which on 4 March 1998 rejected the appeal. The decision was reasoned as follows:\n“An employee is entitled to a full disability pension provided that his or her ability to work has continuously been reduced by at least three fifths for a minimum of one year and that this reduction has been caused by an illness, a defect or an injury. The employee’s remaining ability to earn income by carrying out work that would be available to him or her and that he or she could reasonably be expected to perform must be taken into account when assessing the reduction in the employee’s ability to work. Furthermore, the employee’s education, previous activities, age, living conditions and other comparable factors must be taken into consideration.\nAccording to the statements on [the applicant’s] state of health, [the applicant] suffers from depression that has become more difficult during the autumn of 1997. However, [the applicant’s] symptoms must be considered as mild. Therefore, the Pension Board finds [the applicant] still partly capable of working as from 1 June 1997.”", "11. The applicant appealed to the Insurance Court. He referred, inter alia, to several medical statements according to which he was for the time being incapable of working because of his mental illness. On 27 October 1998, the Insurance Court rejected the appeal reasoning the decision as follows:\n“[The Insurance Court refers to] the reasons given in the Pension Board’s decision. The new material filed while the case was pending [before the Insurance Court] does not change the evaluation of [the applicant’s] disability.”", "12. The pension fund decided later, on 27 January 1999, to reject the applicant’s renewed application for a full disability pension instead of partial one. The Pension Board rejected the applicant’s appeal on 25 May 1999. The applicant further appealed to the Insurance Court which, on 22 June 2000, found that the applicant’s capability of working had been reduced at least by 60 percent on account of his illness as from the beginning of December 1999, and ordered the pension fund to grant the applicant a full disability pension as from 1 January 1999." ]
[ 3 ]
[ "10. In the course of a judicial investigation concerning the applicant, his wife, his former brother-in-law and one of his nephews, the applicant was remanded in custody on 16 June 1993 and charged with rape of a child under 15 (his niece), sexual assaults on children under 15 (his nephews) and a number of further counts of sexual assault.\nOn 16 September 1993 the investigating judge at the Lorient tribunal de grande instance ordered medico-psychological examinations of the applicant’s niece and all the persons under investigation. He appointed two doctors, named Gautier and Daumer, for that purpose.", "11. The two doctors were informed of the applicant’s criminal record. In addition to a number of prison sentences, this included an investigation opened in 1989 into charges against the applicant of sexual interference with the daughter of his brother-in-law’s sister.", "12. On 29 October 1993 the experts filed their report on the applicant. They stated, among other things, that although the applicant, by his own admission, did have fantasist and even mythomaniac tendencies, these were not obviously pathological in nature, as had been shown two years previously by his statements regarding the relations between P.H. and K.S, two of the victims.", "13. The doctors concluded as follows:\n“1. Our examination of G.B. has revealed psychopathic traits and signs of sexual perversion for which objective evidence is provided by his statements regarding P.H. and C.H. 2. The offence of which he stands accused with respect to C.H. and P.H. is linked to a state of sexual perversion. It is difficult to assess the extent or the nature of this state in so far as the accused presents the facts as isolated incidents. He denies raping K.S. and so it is not possible to address that issue from a clinical viewpoint. 5. Rehabilitation will not pose a problem, but a cure will depend on clearer identification of the subject’s underlying sexual problem. 6. The subject was not insane within the meaning of (former) Article 64 of the Criminal Code when committing the offences of which he stands accused.", "14. In November 1993 the experts’ conclusions were served on the applicant. The applicant’s detention pending trial was extended several times during the investigation of the case.", "15. On 19 October 1995 the applicant and his co-defendants (J.C.H., C.H. and S.C., the applicant’s wife) were committed for trial at the Morbihan Assize Court by a judgment delivered by the Indictment Division of the Rennes Court of Appeal. The Indictment Division pointed out, in particular, that the applicant had initially denied any sexual abuse of his niece and nephews and then admitted to the conduct of which he was accused only to retract that admission. It related what had been said during the examination of the applicant’s niece on the one hand and his nephews on the other, the latter having also been accused of rape and sexual abuse by the niece. The Indictment Division also mentioned the previous convictions on the applicant’s criminal record, namely driving under the influence of alcohol, insulting a member of the police force in the performance of his duties, a hit-and-run offence and a further conviction for driving under the influence of alcohol.", "16. The applicant appealed on points of law against the decision to commit him for trial, drawing attention to the vagueness of the terms used in the operative provisions of that decision. In a judgment of 26 February 1996 the Court of Cassation rejected that appeal.", "17. The trial at the Assize Court began on 13 March 1997. The registrar read out the decision of the Indictment Division committing the applicant for trial. At that point the advocate-general stated that he wished to file certain documents regarding the personality of the defendants, including the applicant, and relating primarily to offences reported in 1979 and 1980.", "18. The documents in question were records of evidence taken from witnesses, a procedural report by a police superintendent, a psychiatric report on the applicant at the age of 17 and a judgment relating to educational assistance. They comprised mainly a description of the applicant’s sexual conduct when he was a minor and information about his family background. They related firstly to a charge of indecent assault on a girl under 15 brought against him in 1979 in proceedings during which the applicant had said that he had done the same thing “at least a dozen times both with little girls and with little boys aged between 7 and 9” and, secondly, to several counts of indecent assault without violence on three children under the age of 15. The proceedings concerning these offences, brought in 1979, and those mentioned above were discontinued.", "19. The applicant’s lawyer objected to the filing of those documents and requested an adjournment to prepare a pleading to that effect. The hearing was adjourned for thirty-five minutes. The applicant’s lawyer lodged an application for all the documents to be rejected on the ground that they related to offences that were subject to limitation and had occurred prior to various amnesty laws which could apply to them. According to the defence, the documents were so old that they contravened the principle that a defendant’s antecedents were inadmissible in evidence against him.", "20. In an interlocutory judgment delivered on the same day the Assize Court rejected that application on the following grounds:\n“... The prosecution, like every other party to a criminal trial, is entitled to produce at the hearing any documents that appear to be helpful in establishing the truth provided that they relate to the offences of which the defendants stand accused and shed light on their personality.\nProvided that they are communicated to all the parties and can thus be examined adversarially, the production of such documents cannot have any adverse effect on the rights of the defence. ...”", "21. Copies of the documents filed by the prosecution were distributed to each of the civil parties’ lawyers and the defence lawyers but the case was not adjourned.", "22. When the examination of the defendants began as to their backgrounds, the applicant’s hearing was deliberately put back until the end of the afternoon. Exercising his discretionary powers, the President of the Assize Court called a teacher of children with special needs as a witness to be heard for information purposes only. Following that hearing, the respective lawyers of C.H., who stood accused along with the applicant, and of P.H. declared that they were bringing civil-party proceedings on their clients’ behalf and made a written application.\nThe trial was adjourned.", "23. At the beginning of the afternoon the lawyer representing the applicant’s wife in turn applied for the investigation to be reopened to take account of the documents relating to her that had been filed by the prosecution. Those documents included a judgment delivered by the Lorient tribunal de grande instance in 1996, records of the hearing by that court’s registrar and written statements by S.C. The applicant’s wife’s lawyer requested that in the course of the reopened investigation the statements on the proceedings made by Mr and Mrs B. in the documents filed by the prosecution be added to the file. Failing that, the trial would have to be adjourned to a subsequent session. In support of his requests, the lawyer relied on the requirement of a fair trial.", "24. In an interlocutory judgment the Assize Court deferred its decision on the above application pending completion of the hearing of evidence. The President continued his examination of the defendants until 6 p.m. with one short adjournment of fifteen minutes. At 6.20 p.m. the examination of the defendants resumed and thereafter a witness was heard.", "25. Lastly, on the evening of the first day of the trial, that is on 13 March 1997, the Court heard one of the experts who had been appointed to prepare an opinion during the pre-trial investigation. He made an oral presentation of the report he had submitted on 29 October 1993 during the investigation proceedings (see paragraph 13 above).", "26. The President then adjourned the proceedings for fifteen minutes during which the expert studied the new documents produced by the prosecution.", "27. As soon as the hearing of the expert resumed, the latter allegedly changed his opinion, stating, among other things, that the applicant was a “paedophile” and that “psychotherapy [was] necessary, but would be ineffective for the time being”.", "28. The examination of the expert lasted about two hours, at the end of which the President authorised him to withdraw permanently, a decision on which he had consulted the parties and to which none of them had raised any objection.", "29. On the following day, 14 March 1997, the applicant’s lawyer disputed the expert’s oral submissions and applied for a second opinion, on the following grounds:\n“After ... one of the two experts appointed by the investigating judge had made his statement before the Assize Court, he was informed of the two discontinued sets of proceedings that had been brought against G.B., who is now 34, when he was 16 years old. The depositions made by G.B. at that time were read out to the expert. Immediately after being informed of those facts, of which he had been unaware when preparing his expert opinion, the expert radically altered his submissions, stating that:\n– in his view G.B. is unquestionably a paedophile;\n– psychotherapeutic treatment is necessary, but, given G.B.’s current state of mind, would be totally ineffective because he has no feelings of guilt;\n– the length of a prison sentence has no effect on an individual of that type as the potential to be cured depends solely on a feeling of guilt, which G.B. lacks;\n– in the absence of a feeling of guilt, there is a major risk that G.B. will reoffend even after a long sentence, meaning that imprisonment can only serve as a means of protecting society. ... G.B. formally disputes the expert’s oral submissions. A second opinion is indispensable. If it had considered it necessary, it was during the investigation that the prosecution should have filed the documents it produced at the beginning of the trial relating to proceedings brought over fifteen years ago. In that case the expert would have drawn up his report in the light of the evidence contained therein and G.B. would undoubtedly have requested a second opinion, prepared by two experts.\nThe Assize Court therefore heard an oral report that differed radically from the written report by the two experts.\nRespect for the rights of the defence requires that a new expert opinion be ordered in the context of an application for the investigation to be reopened. Everyone has the right to a fair trial.”", "30. The lawyer also applied for the applicant’s release on the ground that his client should not have to suffer the consequences of the prosecution’s having taken three years and nine months to file documents that it considered indispensable.", "31. In an interlocutory judgment of 14 March the Assize Court deferred its decision on the application for further investigative measures pending completion of the hearing of evidence and rejected the application for release on the ground that detention was “necessary to ensure that the defendant remain[ed] at the disposal of the judicial authorities”.", "32. The President continued to examine the defendants and obtained their statements. After that he took evidence from the applicant’s mother, from a person sentenced for a serious crime and from eight witnesses.", "33. The applicant’s lawyer then reiterated his previous submissions while his wife’s lawyer withdrew the interlocutory application he had lodged with the Assize Court.", "34. On 15 March 1997 the Assize Court took formal note of the withdrawal by S.C.’s lawyer. On 15 March 1997, after a procedural defect vitiating the interlocutory application made by the applicant’s lawyer had in the meantime been cured, the Assize Court nevertheless refused it. It made the following points regarding the complaint of an infringement of the rights of the defence:\n“Firstly, the new documents produced by the prosecution and duly communicated to each of the parties to the proceedings could have been contested, particularly by G.B., whether directly or through the intermediary of his counsel.\nSecondly, once the above documents had been brought to the notice of the expert ... and he had completed the presentation of his report, G.B. and his counsel were in a position to request any further information or explanations from him that they required.\nThus it cannot legitimately be argued that the production of new documents and their consideration by the psychiatric expert were capable of infringing the rights of the defence.\nAt all events, in view of the outcome of the oral examination at the hearing, it does not seem essential for the establishment of the truth to seek a second psychiatric opinion.\nConsequently, there is no cause for the proceedings to be adjourned ...”", "35. The Assize Court also rejected the applicant’s application for release.", "36. On 15 March 1997 the Assize Court sentenced the applicant to eighteen years’ imprisonment for a number of counts of raping his niece, a child under 15, sexually assaulting a girl under 15 and sexually assaulting his nephews. The sentences imposed on the three other co-defendants were less severe (ten years’ imprisonment, a fully suspended five-year prison sentence with probation, and a five-year prison sentence, one year of which was suspended with probation).", "37. The applicant appealed on points of law. In his first ground of appeal he argued that the Assize Court’s consenting to file the documents produced by the prosecution amounted to a violation of his right to a fair trial, particularly the principle of equality of arms, since his lawyer had only had half a day to study the documents in issue whereas the prosecution had had them for some time. Relying also on Article 6 of the Convention, the applicant submitted another plea regarding the Assize Court’s refusal to order a second opinion. He argued that the examination by the expert of the new documents that had been produced at the hearing, which had made him radically change his initial submissions, required an effective second opinion for the sentence imposed to satisfy the legal requirement that it must be suited to the personality of the defendant.", "38. In a judgment of 11 February 1998 the Criminal Division of the Court of Cassation rejected the appeal in its entirety. Regarding the grounds of appeal based on an infringement of the right to a fair trial, the Court of Cassation stated as follows:\n“When, after the decision committing the defendant for trial had been read out, the advocate-general produced various documents including the records of a number of discontinued proceedings relating to the defendant, the defence objected and requested that those documents should not be filed.\nAs justification for its rejection of that request, the Assize Court stated that the prosecution, like every other party to criminal proceedings, is entitled to produce at the trial any documents that appear to afford assistance in establishing the truth in so far as they relate to the offences of which the defendants stand accused and shed light on their personality. If they have been communicated to all the parties so that there has been an opportunity for adversarial argument about them, the production of such documents cannot legitimately be said to have any adverse effect on the rights of the defence.\nIn ruling to that effect, the Assize Court provided a legal basis for its decision without laying itself open to the objection raised in the ground of appeal because, the adversarial principle having been respected, no statutory or treaty provision prevented documents relating to offences subject to limitation but not covered by an amnesty being filed in that way. ...\nAs justification for its refusal to order the second expert opinion sought by the defence, the Court, having deferred its decision on the examination of that application, held, after taking evidence, that the requested measure was not indispensable for the establishment of the truth.\nIn ruling to that effect, the Assize Court, which was not obliged to respond to mere arguments in submissions, determined a matter over which it alone had jurisdiction, deciding that there was no reason to allow the application.”" ]
[ 3 ]
[ "9. The United Macedonian Organisation Ilinden (“the applicant association” or “Ilinden”) is an association based in south-western Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia).\nMr Boris Stankov is a Bulgarian citizen, born in 1926 and living in Petrich. At the relevant time he was the chairman of a branch of the applicant association.", "10. The United Macedonian Organisation Ilinden was founded on 14 April 1990. Its aims, according to its statute and programme, were to “unite all Macedonians in Bulgaria on a regional and cultural basis” and to achieve “the recognition of the Macedonian minority in Bulgaria”. Sections 8 and 9 of the statute stated that the organisation would not infringe the territorial integrity of Bulgaria and that it “would not use violent, brutal, inhuman or unlawful means”.\nAccording to the applicants’ submissions before the Court, the main activity of the applicant association was the organisation of celebrations to commemorate historical events of importance for Macedonians in Bulgaria. Over an unspecified period it published a newspaper.", "11. In 1990 Ilinden applied for, but was refused, registration. In the proceedings for registration the Blagoevgrad Regional Court and the Supreme Court examined the statute of the association, its programme and other written evidence.", "12. In their decisions of July and November 1990 and March 1991 the courts found that the applicant association’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred, and that it was dangerous for the territorial integrity of Bulgaria. Therefore, its registration would be contrary to Articles 3, 8 and 52 § 3 of the Constitution of 1971, as in force at the time. In particular, the aims of the association included, inter alia, the “political development of Macedonia” and the establishment of a “united, independent Macedonian State”. Moreover, in its appeal to the Supreme Court the association had stated that “the Macedonian people would not accept Bulgarian, Greek or Serbian rule”. The formal declaration in the applicant association’s statute that it would not infringe the territorial integrity of Bulgaria, appeared inconsistent with the remaining material.", "13. The judgment of the Supreme Court of 11 March 1991 stated, inter alia:\n“[T]he lower courts correctly established that the aims of the [applicant association] under its statute and programme were directed against the unity of the nation ... [The material in the case] demonstrates that the [applicant association] seeks to disseminate the ideas of Macedonianism among the Bulgarian population, especially in a particular geographical area. [Those ideas] presuppose the ‘denationalisation’ of the Bulgarian population and its conversion into a Macedonian population ... It follows that the [applicant association] is directed against the unity of the nation and is therefore prohibited under Article 35 § 3 of the [1971] Constitution ...”", "14. The parties do not dispute, it seems, that during the relevant period the applicant association underwent changes of leadership and that there was internal conflict. Its local branches or separate factions differed in their views and activities.", "15. The applicant association held a meeting for the first time on 22 April 1990 at the Rozhen Monastery, at the grave of Yane Sandanski.", "16. On 20 April 1991 the applicant association organised a commemoration meeting at the Rozhen Monastery. The participants adopted a declaration addressed to the President and Parliament, which stated, inter alia:\n“1. Our rights as a minority, of which we have been deprived, should be guaranteed to us in accordance with the international agreements on minorities.\n[We demand:] 2. The introduction of the [study of] the Macedonian language, history and culture in all educational institutions in Pirin Macedonia. 8. That all Bulgarian political parties on the territory of Pirin Macedonia should be dissolved or renamed Macedonian; they should defend the national rights of the Macedonian people.\n... 14. The complete cultural, economic and political autonomy of Pirin Macedonia and the withdrawal of the Bulgarian occupation armies from Pirin Macedonia ...\n... 16. Should the Bulgarian government not respond positively to our demands, Ilinden shall appeal to the United Nations Organisation, the [Conference on] Security and Cooperation in Europe, the European Parliament, the Great Powers, in the interest of peace in the Balkans and in Europe and with a view to avoiding military conflicts due to the emerging nationalism in Bulgaria, Serbia, Greece and Albania, with the following demands: annulment of the separatist military union of 20 February 1912 between Bulgaria, Serbia and Greece, withdrawal of the invaders from the occupied territories, ... unification of Macedonia under the auspices of the United Nations and with the protection of the Great Powers ...”", "17. According to a police report, drawn up in 1998 by the director of the police in the region and submitted to the Court by the Government, “fierce anti-Bulgarian declarations” had been made at the meetings of 22 April 1990 and 20 April 1991. In particular, on 22 April 1990 a declaration requesting the recognition of a Macedonian minority and cultural autonomy had been read out. The report did not mention any incident at that meeting.\nAs explained in the report, on 20 April 1991 about 300 to 350 Ilinden supporters had gathered during the official commemoration of the death of Yane Sandanski, which had been attended by 4,000 participants. Members of Ilinden, standing on a separate platform, had allegedly hissed and booed the police, labelled the Bulgarians “barbarians”, “conquerors” and “enslavers” and called on them to leave and “free” the region from their presence. The report further stated that a “shocking” incident had occurred: Mr B., a prominent politician, had been splashed with beer on his face. The police had allegedly prevented any further clashes.\nThe report concluded:\n“... the events organised by Ilinden are provocative. There is a real risk of incidents. For that reason, since 1992 the municipalities in the region normally refuse to allow such events to proceed. With a view to protecting the law, the assistance of the prosecuting authorities and of the police is normally sought.”", "18. The applicants submitted copies of photographs, written testimonies and statements of persons who claimed that on several occasions between 1990 and 1994 there had been police actions and acts of private individuals obstructing the activities of the applicant association.\nThey also submitted copies of newspaper articles accusing Ilinden of misappropriating Bulgarian national symbols, describing its leaders as uneducated, mentally ill or traitors, and denying the existence of a Macedonian minority in Bulgaria. The applicants alleged that those articles reflected public opinion in Bulgaria, as manipulated by the authorities.", "19. In July 1994 Mr Stankov, as chairman of the Petrich branch of the applicant association, requested the mayor of Petrich to authorise a meeting in the area of Samuilova krepost, to be held on 31 July 1994 in commemoration of a historical event. On 13 July 1994 permission was refused by the mayor, but no reasons were given. The applicant association appealed to the Petrich District Court which dismissed the appeal on 16 July 1994. The District Court found that since the applicant association had been banned, there were well-founded fears that the demonstration would endanger public order and the rights and freedoms of others.\nOn 28 July 1994 Mr Ivanov, the representative of the applicant association, and another person were issued with written warnings by the police to stay away from the official traditional fair at Samuilova krepost. The warnings stated that they were based on the applicable law.", "20. Despite the refusal of the authorities, on 31 July 1994 some members of the applicant association (120-150 according to the applicants’ assessment) attempted to approach the historical site of Samuilova krepost but the police, who according to the applicants were heavily armed, blocked their way.\nIn the Government’s submission, the allegation that the area had been sealed off was “manifestly ill-founded”.", "21. On 10 April 1995 the applicant association requested the mayor of Sandanski to authorise a meeting to be held on 22 April 1995 at the grave of Yane Sandanski at the Rozhen Monastery, on the occasion of the eightieth anniversary of his death.\nThis was refused on 14 April 1995 as the applicant association was not duly registered by the courts. On 15 April 1995 the applicant association appealed to the Sandanski District Court stating, inter alia, that the Macedonian people had been deprived of their right to their own cultural life in violation of international law. The District Court never examined the appeal.", "22. On 22 April 1995 the municipality of Sandanski held an official ceremony to mark the anniversary of Yane Sandanski’s death. The event took place at his grave at the Rozhen Monastery. The ceremony commenced at about 10 a.m.\nThe applicants submitted that a group of their supporters who had travelled to the Rozhen Monastery on 22 April 1995 had been ordered by the police to leave their cars in the nearby town of Melnik and had been transported to the monastery by local buses. There they had been allowed to visit the grave, to lay a wreath and to light candles. However, they had not been allowed to bring to the site the placards, banners and musical instruments which they were carrying, or to make speeches at the grave. The police had allegedly taken away the ribbon attached to the wreath. The participants had then celebrated the event, without music, near the monastery but away from the grave.", "23. In July 1995, as in previous years, the applicant association again requested authorisation to hold a commemorative meeting on 30 July 1995 at Samuilova krepost, the historical site in the vicinity of Petrich. On 14 July 1995 the mayor of Petrich refused the request without giving any reason. Upon the applicant association’s appeal the refusal was upheld by judgment of the Petrich District Court of 18 July 1995. The District Court found that the “holding of a commemorative meeting of Ilinden on 30 July 1995 at Samuilova krepost would endanger public order”.", "24. On 8 April 1997 the applicant association informed the mayor of Sandanski and the local police that they were organising a meeting to be held on 20 April 1997 at the Rozhen Monastery to commemorate the death of Yane Sandanski. It stated in a letter to the mayor that Yane Sandanski, who is considered in Bulgaria as a Bulgarian national hero, was in fact a “Macedonian fighter for the national independence of Macedonia from Turkish rule and against the Bulgarian oppressors”.\nOn 11 April 1997 the mayor refused to grant permission. He stated that permission for the commemoration of the same historical event had been requested on 4 April 1997 by the director of the local high school. The mayor further explained that the commemoration would be organised jointly by the school and the municipality and that “every [person], individually, could come”.", "25. On 15 April 1997 Ilinden appealed to the Sandanski District Court against the mayor’s refusal stating, inter alia, that the mayor had not allowed them, “as a separate ethnic community”, to organise a meeting at the tomb of their national hero.\nOn 17 April 1997 the President of the District Court issued an order refusing to examine the appeal on the merits as it had been submitted on behalf of an unregistered organisation.", "26. The date on which that order was notified to the applicant association is unclear. The applicants initially denied having received a response to their appeal, but in later submissions to the Commission stated that on 5 May 1997 they had become aware of the order of 17 April 1997.", "27. As the defects in the appeal were not remedied within the statutory seven-day time-limit, on 5 May 1997 the President of the District Court ordered the discontinuance of the proceedings. That order was notified to the applicant association on 13 August 1997.", "28. The applicants claimed that on 20 April 1997 the police had prevented a group of their supporters from approaching the Rozhen Monastery and that two persons had been ill-treated. They submitted that on 20 April 1997 only thirteen students and two teachers from the local high school had arrived at the Rozhen Monastery. The students had laid a wreath in the presence of the police and had left two minutes later.", "29. On 14 July 1997 Mr Stankov, as chairman of the association’s branch in Petrich, requested authorisation for a commemorative meeting to be held on 2 August 1997 at Samuilova krepost, in the outskirts of Petrich. On 17 July 1997 the mayor refused the request, stating that the applicant association was not “a legitimate organisation”.", "30. On 20 July 1997 the applicant association appealed to the District Court against the refusal of the mayor stating, inter alia, that there was no legal provision prohibiting meetings of organisations which were not “legitimate” and that the planned public event would be peaceful and would not endanger public order.\nBy decision of 1 August 1997 the District Court dismissed the appeal on the merits. It found that the applicant association was not duly registered “in accordance with the laws of the country” and that it had not been shown that the persons who had acted on its behalf actually represented it. As a result, it had been unclear who had organised the event and who would be responsible for order during the meeting under the terms of sections 9 and 10 of the Meetings and Marches Act. The District Court concluded that the lack of clarity as regards the organisers of a public event endangered public order and the rights and freedoms of others.", "31. The applicants submitted that on 2 August 1997 the police had not allowed a group of supporters of the applicant association to reach the historical site in the vicinity of Petrich.", "32. The parties made submissions and presented copies of documents concerning the activities of the applicant association.\nIt appears that some of the documents relied upon by the Government concern statements of persons adhering to a faction or a branch of the applicant association. Those groups apparently differed in their views and activities.", "33. The Government relied on the declaration of 20 April 1991 (see paragraph 16 above), on the police report concerning the meetings of 1990 and 1991 (see paragraph 17 above) and on other material.\nThe Government submitted that during meetings, in letters to institutions or in statements to the media, persons associated with the applicant association and its supporters had made declarations to the effect that they wanted the Bulgarians to leave the region of Pirin Macedonia and stated that there could be “no peace in the Balkans unless the Bulgarians, the Greeks and all others recognise the national rights of the Macedonian people and no democracy in any Balkan country without such recognition”.", "34. The Government submitted copies of several issues of Vestnik za Makedonzite v Balgaria i Po Sveta and Makedonska poshta, pamphlets published by one of the factions linked to the applicant association, and copies of press material. These contain information, inter alia, about a “secret” private meeting of a faction of the applicant association held on 28 September 1997. The meeting allegedly declared that on 10 August 1998 the region of Pirin Macedonia would become “politically, economically and culturally autonomous” or independent. That was so because on that day, eighty-five years after the Bucharest Treaty of 1913, the States Parties to it were allegedly under obligation to withdraw from the “enslaved” Macedonian territories.\nMakedonska poshta further invited all Macedonians to a march in Sofia on 3 August 1998. The invitation stressed that the participants should not carry arms.", "35. A handwritten poster, allegedly issued by followers of the applicant association in Petrich, called for a boycott of the 1994 parliamentary election “to prevent the establishment of legitimate Bulgarian authorities in the region” of Pirin Macedonia. The document further called for a united Macedonian State and for “an international invasion” by the Security Council of the United Nations “according to the model of Grenada, Kuwait and Haiti”.", "36. An appeal for a boycott of the 1997 election stated that the Macedonians should abstain from voting in protest against the lack of recognition of their rights as a minority.", "37. In a declaration published in the press in the Former Yugoslav Republic of Macedonia, the leaders of a faction linked to the applicant association criticised the Bulgarian authorities for their refusal to recognise the Macedonian language and the Macedonian minority in Bulgaria and appealed to various international organisations to exert pressure on the Bulgarian authorities in this respect.", "38. The Government submitted a copy of a “memorandum” addressed to the United Nations, signed by activists of the applicant association or a faction of it, dated 1 July 1997. It contains a short overview of historical events, complaints about the attitude of the Bulgarian authorities and the following main demands: collective minority rights, access to Bulgarian State archives, the return of confiscated material, the revision of the way Bulgarian history is seen, the revision of international treaties of 1912 and 1913, the dissolution of the “political police”, the dissolution of nationalistic and violent parties and organisations, the registration of Ilinden as the legitimate organisation of the Macedonians in Bulgaria, radio broadcasts in Macedonian, an investigation into violations committed against Macedonians and economic assistance.\nThe document also stated:\n“... being conscious of the contemporary economic and political realities in the Balkans, Europe and the world, we are not acting through confrontation, tension or violence. Our way to achieve enjoyment of our rights as a Macedonian ethnic minority in Bulgaria and in Pirin Macedonia, where our ethnic and historical roots lie, is through peaceful means and negotiations ...\nOur peaceful and lawful means ... are to the advantage of the authorities who ... deny the existence of a Macedonian minority. Our democratic ways are to our detriment: the authorities can afford political, economic and psychological pressure, and arms.”", "39. Before the Court the Government relied on a judgment of the Bulgarian Constitutional Court of 29 February 2000 in a case concerning the constitutionality of a political party, the United Macedonian Organisation Ilinden-PIRIN: Party for Economic Development and Integration of the Population (“UMOIPIRIN”), which had been registered by the competent courts in 1999. The Constitutional Court found that that party’s aims were directed against the territorial integrity of the country and that therefore it was unconstitutional.", "40. The Constitutional Court noted that UMOIPIRIN could be regarded as a successor to or a continuation of the applicant association. On that basis the Constitutional Court relied extensively on submissions about the history and the activities of the applicant association in the assessment of the question whether UMOIPIRIN was constitutional.\nIn particular, the Constitutional Court took note of the demands made in the declaration of the applicant association of 20 April 1991 (see paragraph 16 above). It also observed that maps of the region, depicting parts of Bulgarian and Greek territory as Macedonian, had been published by the association and that there had been repeated calls for autonomy and even secession. The Constitutional Court further noted that representatives of the applicant association had made offensive remarks about the Bulgarian nation.", "41. The Constitutional Court thus found that the applicant association and UMOIPIRIN considered the region of Pirin as a territory which was only temporarily under Bulgarian control and would soon become independent. Their activities were therefore directed against the territorial integrity of the country and were as such prohibited under Article 44 § 2 of the 1991 Constitution. The prohibition was in conformity with Article 11 § 2 of the Convention, there being no doubt that an activity against the territorial integrity of the country endangered its national security.\nThe judgment was adopted by nine votes to three. The dissenting judges gave separate opinions which have not been published.", "42. In support of this allegation the Government have submitted copies of two documents.", "43. The first is a copy of an article from the Kontinent daily newspaper, dated 1/2 March 1997. The newspaper stated that a Mr D.P.K. had been arrested in Petrich for having threatened police officers with blowing up their homes, as they had impeded his business. During the arrest the police had allegedly discovered explosives in Mr D.P.K.’s home. The short article went on to recall that Mr D.P.K. was allegedly a leader of Ilinden and a “Macedonian activist”.", "44. The second document appears to be a photocopy of a flyer announcing the founding of an organisation and inviting those interested to join. The document bears no signature. It dates allegedly from 1995 and appears to have been typed on a typewriter.\nThe flyer explained that the newly created United Macedonian Organisation Nova did not wish to replace Ilinden. It criticised certain leaders of the applicant association.\nThe flyer further stated that the new organisation would form armed groups with the aim of “helping the Republic of Macedonia to survive”.", "45. The Government have not provided any comment or additional information on the contents of the two documents submitted by them.", "46. During the hearing before the Court, in response to a question put to her, the Government’s Agent declared that no criminal proceedings relevant to the present case had ever been brought against members of the applicant association.", "47. The Government stressed that knowledge of the historical context and of the current situation in Bulgaria and in the Balkans was essential for the understanding of the issues in the present case. Their explanation may be summarised as follows.\n“Historically, the Bulgarian nation consolidated within several geographical regions, one of them being the geographical region of Macedonia. In 1878, when Bulgaria was partially liberated from Turkish dominance, the Berlin Peace Treaty left the region of Macedonia within the borders of Turkey. Between 1878 and 1913 the Bulgarian population of Macedonia organised five unsuccessful uprisings seeking liberation from Turkish rule and union with Bulgaria. There followed massive refugee migrations from the region to the Bulgarian motherland. Hundreds of thousands of Macedonian Bulgarians settled in Bulgaria.\nIn 1934 the so-called ‘Macedonian nation’ was proclaimed for the first time by a resolution of the Communist International. Before that no reliable historical source had ever mentioned any Slavic population in the region other than the Bulgarian population. After the Second World War the Communist power in Yugoslavia proclaimed the concept of a separate Macedonian nation. A separate language and alphabet were created and imposed by decree of 2 August 1944. A massive assimilation campaign accompanied by brutalities was launched in Yugoslavia. For a short period of time the Bulgarian Communist Party – inspired by the idea of creating a Bulgarian-Yugoslav federation – also initiated a campaign of forcible imposition of a ‘Macedonian’ identity on the population in the region of Pirin Macedonia. In the 1946 and 1956 censuses individuals living in that region were forced to declare themselves ‘Macedonians’. The campaign was abandoned in 1963, partly due to the refusal of the population to change their identity.\nIn those parts of the geographical region of Macedonia which were in Yugoslavia the realities of the bi-polar cold-war world – where the relations between Yugoslavia and the socialist block dominated by the USSR were tense – exacerbated the population’s feeling of doom and exasperation and their fear that unification with Bulgaria proper would never be possible. The forcible imposition of a Macedonian identity by the Tito regime also played a decisive role.\nTherefore, even if a process of formation of a new nation has taken place, it was limited to the territory of the Former Yugoslav Republic of Macedonia.\nIn the 1992 census, only 3,019 Bulgarian citizens identified themselves as Macedonians and indicated Macedonian as their mother tongue. Another 7,784 declared themselves Macedonians in the geographical sense, while allegedly indicating their Bulgarian national conscience and mother tongue.\nIndividuals considering themselves Macedonians are far from being discriminated against in Bulgaria. They have their own cultural and educational organisation, Svetlina. There are books and newspapers in the ‘Macedonian language’.”" ]
[ 7 ]
[ "7. On 1 October 1993 the Poznań-Nowe Miasto District Prosecutor (Prokurator Rejonowy), on the basis of evidence obtained by the Warsaw Police Headquarters (Komenda Stołeczna Policji) from the Interpol Office in London, opened an investigation against persons unknown into the circumstances of an attempt to obtain a loan of 25,000,000 US dollars (USD) by false pretences. On 5 November 1993 the prosecutor laid charges against two persons of having attempted to forge bank guarantees and fraudulently to seize public property.", "8. A day later, on 6 November 1993, the Poznań-Nowe Miasto District Prosecutor charged the applicant with forgery and attempting to obtain a loan of USD 25,000,000 by false pretences, committed together with four other persons, and detained him on remand on the reasonable suspicion that he had committed the offences with which he had been charged.", "9. Subsequently, on 8 November 1993, the Poznań Regional Prosecutor (Prokurator Wojewódzki) took over the investigation from the Poznań-Nowe Miasto District Prosecutor.", "10. On 10 and 15 November 1993 respectively, both the applicant and his defence counsel appealed against the detention order of 6 November 1993. The other suspects lodged similar appeals at about the same time. On 13 December 1993 the Poznań Regional Court (Sąd Wojewódzki) upheld all the detention orders.", "11. On 10 and 14 January 1994 the investigating prosecutor ordered that evidence be obtained from an expert in graphology, an expert in financial and banking matters, as well as from a psychiatrist and a psychologist. On 12 January 1994 the prosecutor issued a letter of request to the German authorities, asking them to hear evidence from certain witnesses residing in Germany.", "12. On 12 January 1994, at the applicant’s request, the Regional Prosecutor presented, in writing, detailed reasons for the charges laid against him. The prosecutor maintained, in particular, that those charges were based on abundant evidence, in particular in the form of bank documents and testimonies of the applicant’s co-suspects. In consequence and in the light of the material collected at this stage, the prosecution considered that there was a reasonable suspicion that the applicant and his co-suspects had forged thirty provisional bank guarantees and fifty final bank guarantees in order to obtain a loan of USD 25,000,000.", "13. On 20 January 1994 the Poznań Regional Prosecutor ordered that the charges laid against the applicant in other criminal proceedings instituted against him by the Inowrocław District Prosecutor be joined in the same criminal proceedings and, accordingly, referred the latter case to the investigating prosecutor.", "14. On 31 January 1994, on an application by the Poznań Regional Prosecutor, the Poznań Regional Court prolonged the applicant’s and his co-suspects’ detention until 4 May 1994. On 15 March 1994, ruling on the applicant’s appeal, the Poznań Court of Appeal (Sąd Apelacyjny) upheld the first-instance decision.", "15. In the meantime, on 14 March 1994, the applicant had asked the Poznań Regional Prosecutor to release him or to vary the measure imposed on him by replacing detention by bail or police supervision. That application was rejected on 30 March 1994.", "16. On 4 April 1994 the applicant asked the Poznań Regional Prosecutor to release him on bail. He asserted that his detention was putting a severe strain on his family. In particular, his minor daughter had recently been examined by psychiatrists and it had been found that the separation from her father had seriously affected her mental state. He also submitted that his daughter was suffering from dyslexia and that her mental state had been rapidly worsening during last months. The relevant facts were confirmed by a report made by a psychologist on 5 April 1994. Furthermore, the applicant stressed that there was no risk of his absconding and that the proper conduct of the proceedings could be secured by bail. On 22 April 1994 the application was dismissed.", "17. On 25 April 1994, ruling on an application made by the Poznań Regional Prosecutor, the Poznań Regional Court prolonged the applicant’s detention until 4 July 1994. The applicant and his defence counsel appealed against this decision on 3 and 4 May 1994 respectively. The Poznań Court of Appeal dismissed their appeals on an unknown date.", "18. On 15 May 1994 the applicant lodged a further application for release with the Poznań Regional Prosecutor. It was dismissed on 24 May 1994. The relevant decision was upheld on appeal on 15 June 1994.", "19. On 10 June 1994 the applicant’s defence counsel applied to the Regional Prosecutor to have the applicant released in view of the fact that his wife was ill and was to be admitted to hospital. He submitted a medical certificate. On 16 June the prosecutor ordered that evidence be obtained from a medical expert in order to define the nature of the wife’s illness and to confirm whether her state of health required treatment in hospital.", "20. Later, on 21 June and 19 July 1994, the applicant again asked the prosecutor to release him on bail. He maintained that on account of his long-lasting separation from his family both his daughter and wife were suffering from serious neurosis and depression.", "21. Meanwhile, on 27 June 1994, ruling on an application made by the Poznań Regional Prosecutor on an unknown date in June, the Poznań Regional Court had prolonged the applicant’s detention until 31 October 1994. On 11 August 1994 the Poznań Court of Appeal, on the applicant’s appeal, upheld that decision in view of the reasonable suspicion that the applicant had committed the offences in question and of their serious nature.", "22. On 7 July 1994 the Poznań Regional Prosecutor had completed the investigation. On 8 July 1994 he lodged a bill of indictment with the Poznań Regional Court. The applicant’s applications for release of 10 and 21 June and of 19 July 1994 were referred to that court together with the case-file.", "23. On 7 September 1994 a medical expert submitted a report stating that the applicant’s wife was suffering from neurasthenia resulting from her family situation. On 19 September 1994 the Poznań Regional Court, after considering that report, dismissed all the three above-mentioned applications, holding that the applicant’s detention should continue. The court based its decision on the fact that there was a reasonable suspicion that he had committed the offences with which he had been charged and the serious nature of those offences. It also found that the applicant’s family situation did not militate against his continuing detention and that there were no grounds on which to release the applicant, as defined in Article 218 of the Code of Criminal Procedure.", "24. The applicant appealed on 27 September 1994, submitting, among other things, that the mere suspicion that he had committed the offences with which he had been charged could no longer suffice to justify his excessively long detention and that such reasoning showed that the court had breached the principle of the presumption of innocence. He stressed that three of his co-defendants had already been released.", "25. On 13 October 1994 the Poznań Court of Appeal dismissed his appeal, holding that the lower court’s findings had not concerned the question of the applicant’s guilt but the likelihood that he had committed the offences in question. It rejected the applicant’s argument that the three of his co-defendants had been released and stressed that that could not be a factor militating in favour of releasing him. Furthermore, the Court of Appeal considered that the applicant’s detention should continue because of the serious nature of the charges laid against him and the fact that he had acted in an organised group.", "26. On 25 October 1994 the applicant made yet another application for release on bail, submitting that his family situation was critical, especially as the mental state of his wife and daughter had markedly worsened. On 7 November 1994 the court dismissed his application, finding that even though the applicant’s detention was indeed putting a severe strain on his family, the serious nature of the charges laid against him justified his detention.", "27. In the meantime, on 6 November 1994, the applicant attempted to commit suicide by swallowing fifty tablets of the sedative “Relanium”[diazepam]. On 6 December 1994 a psychiatrist examined him in prison and found that he was suffering from depression that resulted from his being held in detention and from his prolonged separation from his family.", "28. Subsequently, on an unspecified date, the Poznań Regional Court scheduled the trial for 7 and 8 December 1994. However, on 5 December 1994 both hearings were cancelled because the presiding judge was ill.", "29. On 12 and 13 December 1994 the applicant and his defence counsel lodged further applications for release, still relying on the difficult situation of the applicant’s family and, in particular, on the fact that the applicant’s minor daughter was in need of treatment in hospital. On 19 December 1994 the Poznań Regional Court ordered that evidence from medical experts from the Łódź Medical Centre be obtained to determine the child’s condition. The experts submitted their report on 2 February 1995. The court dismissed the application on 6 February 1995. The applicant appealed. The Poznań Court of Appeal upheld the first-instance decision on 11 July 1995.", "30. On 21 February 1995 the Poznań Regional Court held a hearing but decided not to examine the case on the merits and remitted it to the Poznań Regional Prosecutor. It ordered that a further investigation be carried out. On 10 March 1995, on the parties’ appeals, the Poznań Court of Appeal quashed that decision and ordered the lower court to deal with the merits of the case.", "31. During the hearing of 21 February 1995 the applicant unsuccessfully asked the court to release him on bail. The relevant decision was upheld on appeal on 10 March 1995. Subsequently, on 13 and 20 April 1995 and on a further unknown date, the applicant made similar applications. They all were dismissed on 15 May 1995 at first instance and, on appeal, on 22 June 1995.", "32. On 6 June 1995 the applicant again asked the Poznań Regional Court to release him on bail in view of his family situation. He also submitted that the criminal proceedings against him were not progressing with the requisite expedience. On 1 June 1995 the court dismissed the application on the ground that there was a reasonable suspicion that he had committed the offences in question acting in an organised group. It attached considerable importance to the fact that the applicant had attempted to obtain a very substantial loan by false pretences. The court acknowledged, however, that his detention, which at the material time had exceeded eighteen months, had lasted for a long time. Yet in the court’s opinion, that fact did not in itself change the reasons given to justify his being held in custody. The applicant appealed against that decision. The appeal was dismissed on 11 July 1995.", "33. On 24 July 1995 the Poznań Regional Court dismissed another application for release made by the applicant on 11 July 1995. That decision was upheld on appeal on 10 August 1995.", "34. On 25 August 1995 the court held a hearing. The court did not deal with the merits of the case and adjourned the trial to 15 December 1995.\nDuring that hearing the applicant and one of his co-defendants asked for release. The court released the applicant and his co-defendant with a condition that they submit to police supervision and ordered the applicant to surrender his passport. The court further observed that at the material time the length of their detention was nearly two years and that it was not desirable to hold them in custody, especially as the proceedings had to be adjourned for several months. The court found that there was no risk of collusion and that police supervision would be sufficient to secure the proper conduct of the trial. On 8 September 1995, on the Poznań Regional Prosecutor’s appeal, the Poznań Court of Appeal upheld the first-instance decision and the reasons given for it.", "35. Later, the court listed two hearings for 4 January and 11 March 1996. Those hearings were cancelled; the first as one of the defence lawyers had failed to appear, the second because another defence lawyer asked the court to give him extra time to study documentary evidence adduced by the prosecution.", "36. On 9 April 1996 the trial court held the first hearing on the merits. On 13 and 14 June 1996 the trial continued. The court heard evidence from several witnesses called by the prosecution.", "37. The next hearing was listed for 19 August 1996 but subsequently cancelled since certain lay and expert witnesses had failed to appear. During the hearing of 23 October 1996 the court heard evidence from one witness. On 9 December 1996 the court heard evidence from three witnesses called by the defence and adjourned the trial because several other witnesses had failed to appear. The court fined those witnesses, considering that they had not supplied any satisfactory explanation to justify their absence. The next hearing was listed for 23 January 1997; during that hearing the court heard evidence from one witness and ordered that evidence from experts be heard at the next hearing, scheduled for March.", "38. On 27 March 1997 the court did not hear evidence from experts because one of them had in the meantime died. For that reason, the trial was adjourned sine die. At that hearing, the court lifted the order to surrender the applicant’s passport. It considered that it could not be said that in the course of the trial the applicant had obstructed its conduct and held that at the current stage of the proceedings there was no danger of his absconding or attempting to tamper with the process of obtaining evidence.", "39. On 9 September 1997 the applicant, maintaining that no hearing on the merits had been held in his case since 23 January 1997, complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the length of the proceedings and asked him to intervene on his behalf.", "40. The applicant’s trial was to restart on 4 December 1997 but was postponed to 29 December 1997 because the presiding judge was ill. On the latter date the court adjourned the trial since one of the co-defendants had failed to appear. During the hearing of 9 February 1998 the court heard evidence from an expert and one witness but adjourned the trial to 9 March 1998. On that day the court once again adjourned the trial because a witness had been absent.", "41. On 6 April 1998 the court held a hearing and heard evidence from one witness. It then postponed the trial to 20 May 1998. On the latter date it adjourned the trial sine die, considering that evidence from an expert in international banking transactions needed to be obtained. The trial court did, however, encounter certain difficulties in finding a suitable expert. Eventually, in October 1998, the presiding judge appointed A.J., who assured the court that he would prepare the relevant report by the end of November 1998. Yet as that report was in effect submitted to the court’s registry on 1 December 1998 and the expert could not appear before the court at a hearing listed for 26 November 1998, the court postponed the trial to 7 December 1998.", "42. On the above-mentioned date the trial was adjourned to 11 January 1999 because R.B., one of the applicant’s co-defendants, had not appeared before the court. The police informed the court that R.B. had apparently left Poland together with his family.", "43. On 11 January 1999 the Regional Prosecutor asked the court to severe the charges against R.B. and to proceed with the trial. The court made an order to that effect and, at the same hearing, heard evidence from an expert.", "44. The next hearing was listed for 1 February 1999. At that hearing, the applicant produced certain documents from the year 1995 and asked the court to obtain evidence from an expert in graphology. The court granted his application and appointed the expert on 9 April 1999, instructing him to prepare the report by the end of that month.\nThe report was submitted to the court’s registry on 10 May 1999.", "45. After obtaining the report and serving its copies on the parties, the Regional Court (Sąd Okręgowy) set the date for the parties’ final submissions for 21 June 1999. On 28 June 1999 it gave judgment. The applicant was sentenced to four years’ imprisonment. All parties to the proceedings except for one of the applicant’s co-defendants appealed.", "46. The Poznań Court of Appeal heard appeals on 17 February 2000. It quashed the first-instance judgment and remitted the case. The Regional Court listed the retrial for 7 July 2000 but the hearing was subsequently cancelled. The proceedings are still pending in the Poznań Regional Court.\nIn a letter of 4 September 2001, the applicant informed the Court that since 7 July 2000 the trial court had held hearings at six-month intervals and had so far heard evidence from four witnesses." ]
[ 2, 3 ]
[ "7. In 1947 Roman Potocki, acting on behalf of his brother Józef, lodged an application under Article 7 of the Decree of 26 October 1945 on real property in Warsaw for temporary ownership of two plots of land located in Krakowskie Przedmieście Street, Warsaw, to be awarded to Józef Potocki, the former owner. This application remained unanswered.", "8. On 3 December 1990 the Warsaw District Court declared that the estate of Józef Potocki had been inherited, pursuant to the relevant provisions of the Polish Civil Code, by his wife Pelagia-Maria Potocka for four sixteenths, and by each of his children, Piotr Potocki-Radziwiłł, Anna Potocka, Dorota Potocka-Radziwiłł and Izabela d’Ornano, for three sixteenths.", "9. On 20 December 1990 the second applicant lodged a request with the Governor of Warsaw for restitution of the two plots, indicating that they were listed in the Warsaw Land Register under nos. 415 and 9048.", "10. By a decision of 5 August 1991 the Director of the Warsaw District Office discontinued the administrative proceedings relating to the applicants’ request of 20 December 1990.", "11. On 8 September 1991 the Warsaw Regional Office quashed the decision to discontinue the proceedings. It stated that it had been established during the proceedings that the plots concerned were situated in Warsaw. By virtue of the Decree on real property in Warsaw of 26 October 1945, all real property situated in Warsaw had been expropriated. However, under Article 7 of that decree, former owners had a right to lodge an application for temporary ownership of their plots. The authorities competent to deal with these applications could award temporary ownership if it was established that the plots concerned had not been designated for public use and that the award would not be incompatible with such use. In the applicants’ case, such an application had been lodged in 1947, but it had remained unanswered. The first-instance administrative authority, when dealing with the applicants’ request of 20 December 1990, had overlooked that fact. When reconsidering the case, that authority was required, in particular, to examine whether granting the applicants the right to perpetual use of the plot under the Land Administration and Expropriation Act of 1985, the provisions of which had replaced the procedural rights afforded to former real-property owners by Article 7 of the 1945 decree, would conflict with the public use of the plots concerned, as determined in relevant local land-development plans.", "12. On 27 December 1991 the Director of the Warsaw District Office refused to return the plots to the applicants and to grant them the right to their perpetual use. He stated that it had been established during the proceedings that in 1947 the applicants’ predecessor in title had submitted an application for temporary ownership of the plots, which had then been listed in the Warsaw Land Register under entries nos. 415 and 9048. This application had remained unanswered, but the administrative authority had duly examined it in the course of the current proceedings. It was established that the palace built on the plots had been destroyed at 70 to 75% during the Second World War, as was pointed out in a letter of the Regional Conservator of Historical Monuments of 28 November 1991. The palace had subsequently been rebuilt by the Ministry of Culture. Thus it had been the State Treasury which had borne the costs of rebuilding the palace. Accordingly, restitution of the property concerned would have been unjustified, and the administrative authority found no grounds on which the 1947 application and the request lodged by the applicants in 1990 should be granted.", "13. The applicants lodged an appeal against that decision. They argued that the decision was not in conformity with the applicable laws, in particular as the first-instance authority had failed to establish beyond reasonable doubt that the palace had indeed been destroyed during the Second World War. They also complained that no sound arguments had been advanced in the decision to show that restitution of the property to the applicants would be incompatible with its public use.", "14. On 27 February 1992 the Governor’s Office rejected the applicants’ appeal, finding that it had been lodged one day after the expiration of the fourteen-day time-limit provided for in the Code of Administrative Procedure.", "15. The applicants filed an appeal with the Supreme Administrative Court. They argued that the appeal had been posted on 20 January 1992, that is on the last day of the time-limit, as was shown by a post-office receipt. The fact that the postmark on the envelope was dated 21 January 1992 was due exclusively to the incomprehensible negligence of the postal services and could not be held against the applicants.", "16. On 24 July 1992 the Supreme Administrative Court quashed the decision appealed against, considering that it was not established that the applicants had lodged their appeal against the decision of 27 December 1991 outside the time-limit provided for by the Code of Administrative Procedure, in particular because the applicants had submitted the post-office receipt to the court, showing clearly that their appeal had been posted on 20 January 1992.", "17. On 9 September 1993 the Office of the Governor of Warsaw, having examined the applicants’ appeal of 20 January 1992, upheld the decision of 27 December 1991. It pointed out that the administrative authority had established that the property of the applicants’ predecessor-in-title had been designated by relevant land-development plans adopted in 1947, 1983 and 1992 for use by the Ministry of Culture and Arts. That designation had not been changed by any subsequent decision, as was certified by a letter of 19 August 1993 from the Director of the Land Administration Department of the Warsaw District Office. The Governor further held that the palace built on the plots had been destroyed at 70 to 75% during the Second World War, as was certified by a letter of the Regional Conservator of Historical Monuments of 28 November 1991. The palace had been rebuilt in the late 1940s by the Ministry of Culture and Arts. As it had been the State Treasury that had borne the rebuilding costs, it had acquired ownership of the property concerned. Moreover, at the time when Roman Potocki had lodged the application for temporary ownership, the buildings on the plot had not existed, as they had been destroyed. The administrative authority concluded that, in the light of the above considerations, granting the applicants the right to perpetual use would be unjustified.", "18. On 12 October 1993 the applicants lodged an appeal with the Supreme Administrative Court against that judgment, complaining that the impugned decision was not in conformity with applicable substantive law. They first submitted that the decision was in breach of Article 7 of the 1945 decree in that the administrative authorities had failed to establish with sufficient clarity that the applicants’ intentions as to the future use of the palace had not been compatible with the local land-development plan. The applicants emphasised that the authorities had disregarded their argument that they did not plan to alter the public nature of the palace. They had only wanted to reserve a small part of it for their exclusive use, whereas the remainder would be used for cultural and leisure purposes and would be accessible to the general public. Therefore, no issue arose, in fact, regarding the designation of the property for public use as its use was to remain unchanged. Moreover, the authorities had failed to indicate why the restitution of the property to the applicants would be incompatible with its continued public use.", "19. The applicants further stressed that the authorities had failed to establish beyond reasonable doubt that the buildings on the plots had been destroyed during the Second World War and subsequently rebuilt by the State, and that they should therefore be considered the State’s property. The findings made in this respect were superficial and based on insufficient evidence. The applicants emphasised in particular that the letter from the Regional Conservator of Historical Monuments of 28 November 1991 could not reasonably be regarded as credible, as the conservator operated under the supervision of the Ministry of Culture and thus could not be expected to act against the ministry’s interests. In view of that flaw, the authorities should have requested a report by an expert on construction technology in order to verify the information in the conservator’s letter. In conclusion, the applicants requested that the decision under appeal should be set aside and that the case should be re-examined.", "20. The applicants submitted that Articles 7, 8, 10, 12, 35 §§ 1 and 3, 75 § 1, 77 § 1, 78 § 1 and 107 § 3 of the Code of Administrative Procedure had been breached in the course of the proceedings and that those procedural shortcomings had had a bearing on the outcome of the case.", "21. On an unspecified date a hearing was held before the Supreme Administrative Court in the appeal proceedings. The applicants’ lawyer submitted that their application of 20 December 1990 was to be seen both as a reiterated application for temporary ownership, lodged in 1947, and as a new application for restitution of the property concerned and for having a right to perpetual use of the land awarded.", "22. By a judgment of 22 June 1995 the Supreme Administrative Court rejected the applicants’ appeal in so far as it concerned the application for temporary ownership, which had been submitted by Roman Potocki in 1947. In doing so, the court recalled that, pursuant to Article 14 of the Supreme Administrative Court Act of 31 January 1980, as amended, it was not competent to deal with appeals against administrative decisions given in cases in which proceedings had been instituted before 1 September 1980. Accordingly, the court could not review the lawfulness of that part of the contested second-instance administrative decision, given that the relevant proceedings had been instituted in 1947.", "23. In so far as the decision under appeal concerned the applicants’ application of 20 December 1990 for restitution of their former property and for the right to perpetual use of the land under the provisions of the Land Administration and Expropriation Act of 1985, the Supreme Administrative Court first considered that the authorities had failed to show why restitution of the property to the applicants would be incompatible with public use of the plot and the palace, and had therefore breached Article 107 § 3 of the Code of Administrative Procedure, under which an administrative authority, when issuing a decision, was required to point out the facts on which it had relied, to refer to evidence which had served as a basis for its factual findings, and to indicate the grounds on which other evidence had not been considered credible.\nThe court further considered that despite those procedural shortcomings the decision under appeal had, in any event, been lawful. The court noted that the crux of that part of the case was to assess whether the applicants could, under the Land Administration and Expropriation Act of 1985, claim to have a right to perpetual use of the plots concerned conferred on them by way of compensation for the expropriation carried out under the 1945 decree. \nThe court observed that under section 82(2) of the Land Administration and Expropriation Act, a right to perpetual use of land could only be conferred in cases where real property was given back to its former owners. However, that entitlement had been limited to certain categories of real property, namely one-family houses or small apartment blocks. The property concerned in the present case did not belong to any of those categories. Moreover, the 1985 Act had laid down a time-limit for the submission of such claims, and that limit had expired on 31 December 1988. The applicants’ application of 20 December 1990 to have their former property restored to them and for the right to perpetual use of the property had been lodged outside that time-limit. Accordingly, the restitution could not have been ordered. The Supreme Administrative Court therefore dismissed the remainder of the applicants’ appeal." ]
[]
[ "9. The applicant is an Iranian national and was born in 1971. His present address is unknown.", "10. He entered Germany in October 1997 after fleeing Iran and applied for political-refugee status.", "11. At a hearing on 16 October 1997 at the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the applicant gave evidence that one of his sisters had been executed in Iran in 1982 or 1983, while another had been imprisoned from 10 January 1983 to 13 September 1984 and had been missing since 1987 or 1988. He had raised funds in Iran and taken notes during radio programmes which he had subsequently added to and circulated. He had decided to leave Iran on learning from third parties that the family home had been searched on 6 September 1997.\nThe verbatim record taken by the Federal Office for Refugees indicates that the applicant had produced a list of the martyrs of the People’s Mujahidin Organisation of Iran (an opposition movement in Iran), which included his first sister, and a certificate from the Sari Islamic Revolutionary Court of 31 December 1984 indicating that his second sister had been arrested and imprisoned from 10 January 1983 to 11 September 1984 on account of her activities for the Monafeghin.", "12. In a decision of 31 August 1998 the Federal Office for Refugees dismissed his application on the ground that there was no bar to his expulsion under section 51 or 53 of the Aliens Act (Ausländergesetz – see “Relevant Domestic Law” below), since he had not succeeded in establishing that he risked persecution if he returned to Iran. The Federal Office found his account vague and parts of it self-contradictory; it also considered it strange that it had not been until several years after the persecution of his sisters that he had become involved in activities against the regime.", "13. On 5 November 1998 a group of Iranian political refugees sent a letter to the Federal Office for Refugees stating that the applicant was a supporter of the People’s Mujahidin of Iran and a member of a family of “martyrs” in Iran that was under threat from the incumbent regime, one of his sisters having been arrested, tortured and executed in the 1980s.", "14. At a hearing on 10 November 1998 in the Regensburg Administrative Court (Verwaltungsgericht) the applicant asked for Mr Yaghoubinia, his brother-in-law, who has political-refugee status in Switzerland, to be called as a witness. The court, however, turned his request down.", "15. On 11 November 1998 the Regensburg Administrative Court upheld the decision of the Federal Office for Refugees. On 15 December 1998 the Bavarian Administrative Court of Appeal (Bayerischer Verwaltungs-gerichshof) dismissed a further appeal by the applicant.", "16. On 2 March 1999 the applicant made a fresh application for asylum (Asylfolgeantrag), inter alia, on the ground that he had been interviewed by the Offener Kanal Dortmund television channel at a demonstration outside the Iranian embassy in Bonn on 9 January 1999 and had signed a resolution against the Iranian regime that had been published in an opposition newspaper in Iran on 2 February 1999.", "17. On 28 April 1999 the Federal Office for Refugees dismissed that application, finding that the new evidence was insufficient to establish that the applicant would face political persecution if he returned to Iran.", "18. On 25 May and 23 June 1999 the applicant appealed against that decision and applied for a stay of execution of the expulsion order, inter alia, on the ground that he had taken part in a demonstration against Iran on 20 June 1999 at the G8 summit in Cologne and had been filmed by Simaye Moghavemat, the Mujahidin people’s television station based in London.", "19. On 25 June 1999 Mrs Hajar Yaghoubinia-Kalantari, the applicant’s sister, who has political-refugee status in Switzerland and represented the applicant in the proceedings in the Court, sent a letter to the German consulate in Geneva stating that she and her husband had been political prisoners in Iran, that her sister had been executed by the Iranian regime and that a law had been passed by the Iranian parliament making it an offence to engage in any political activity against the regime abroad. She sent a copy of that letter to various international organisations such as the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations High Commission for Human Rights, Amnesty International’s Berne office and the European Court of Human Rights.", "20. On the same day the Regensburg Administrative Court requested information from the German Ministry of Foreign Affairs about the risk the applicant would face as a signatory of the resolution against the Iranian regime in the event of his expulsion to Iran.", "21. On 8 July 1999 the OMCT (World Organisation Against Torture) contacted the Permanent Mission of Germany to the United Nations in order to apprise Germany of the risks the applicant would face if expelled to Iran.", "22. In a first judgment of 21 July 1999 the Regensburg Administrative Court ordered a stay of the expulsion order, holding that the Federal Office for Refugees should have taken the applicant’s open criticism of the Iranian regime into account and that it would not be possible to decide the case until the information requested from the Ministry of Foreign Affairs had been received.", "23. In a second judgment delivered on 23 July 1999 the Administrative Court reversed that decision when a sworn statement adduced by the applicant of the person who had interviewed him at the demonstration and had identified himself as the editor of the Offener Kanal Dortmund television channel turned out to be false, as the director of that television channel had said in evidence that the person concerned had never worked for the channel. As a result, the Administrative Court concluded that the grounds relied on by the applicant following his flight (Nachfluchtgründe) were a total fabrication.", "24. However, on 27 July 1999 the director of Offener Kanal Dortmund sent a letter to the Administrative Court admitting that he had made a mistake and that, while the person who had interviewed the applicant was not the editor of the channel, he had reported for it on a regular basis.", "25. Notwithstanding these developments and the fact that it had yet to receive information from the Ministry of Foreign Affairs, the Regensburg Administrative Court dismissed the applicant’s application for a stay of execution of the expulsion order in judgments delivered on 27 July, and 5 and 10 August 1999, holding that he had not succeeded in establishing that he would face political persecution if he returned to his country. In particular, the resolution against the Iranian regime that had been signed by the applicant and published in an opposition newspaper in Iran on 2 February 1999 and in which he had declared himself to be a supporter of the People’s Mujahidin of Iran, did not suffice to establish a risk of persecution, as it had been signed by 1,500 Iranians living in exile. Nor did the mere fact that the applicant’s name had been mentioned in a television programme broadcast on a private channel on 12 January 1999, or that he had been filmed at a demonstration against the Iranian regime in Bonn suffice. The same was also true of the applicant’s participation in a demonstration outside the Iranian embassy during the G8 summit in Cologne on 20 June 1999, as it had been attended by the majority of Iranian asylum-seekers living in Germany.", "26. On 6 August 1999, on being informed by the applicant’s family that the applicant’s expulsion was imminent, the Special Rapporteur on Torture of the United Nations High Commission for Human Rights launched an urgent appeal to prevent the applicant’s deportation to Iran.", "27. On 9 August 1999 the applicant made a further application to the Regensburg Administrative Court for a stay of execution of the expulsion order. He enclosed the Swiss authorities’ decision of 16 January 1989 granting Mrs Hajar Yaghoubinia-Kalantari, his sister, political asylum and an article from the 29 June 1999 edition of the Modjahed newspaper reporting the execution of his other sister, Ms Masoumeh Kalantari.", "28. In a decision of 10 August 1999 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three members, declined to accept a constitutional appeal by the applicant for adjudication.", "29. The substantive proceedings are still pending in the Regensburg Administrative Court, but have no suspensive effect.", "30. Initially, the applicant attempted to flee to France and then on to Switzerland, where he was stopped at the border and sent back to France, where he is probably in hiding.", "31. The applicant also made an application to the Swiss consulate in Lyons for political asylum in Switzerland, but the Federal Office for Refugees dismissed his application on 29 October 1999 and refused him permission to enter Swiss territory. The Swiss Asylum Appeals Board, before which the case is pending, issued a provisional opinion on 10 November 1999 opposing a grant of asylum.", "32. On 24 September 1999 the applicant asked the European Court of Human Rights to intervene as a matter of urgency in order to prevent his expulsion to Iran, saying that he faced imprisonment and torture there.", "33. On 27 September 1999 the President of the Fourth Section decided not to apply Rule 39 of the Rules of Court.", "34. On 13 December 1999 the applicant made a further application to the Court under Rule 39 in which he relied on new evidence.", "35. This consisted of two letters: a letter of 8 July 1999 from the OMCT to the German authorities and a letter of 22 October 1999 from the UNHCR Liaison Office for Switzerland and Liechtenstein to the Swiss authorities. Both letters said that the applicant was at risk of persecution if expelled to Iran. They added that one of the applicant’s sisters had been executed, while another sister and her husband had been arrested and tortured in Iran before managing to escape and obtain political-refugee status in Switzerland.", "36. In its letter of 8 July 1999 the OMCT said that, according to the information in its possession, the applicant “had been forced to flee his country of origin, as his life was in danger there. His sister and her husband had already left the Islamic Republic of Iran some years earlier, after being arrested and tortured; his other sister had been executed by the incumbent regime”.", "37. In its letter of 22 October 1999 the UNHCR Liaison Office for Switzerland and Liechtenstein expressed the opinion that “the applicant may be in danger if he is sent back to his country of origin, since it appears that his participation in a demonstration against the government was filmed and broadcast in a television programme that can also be received in Iran. Further, the petition signed by the applicant and the names of the signatories to it have been published in an opposition newspaper. These details could thus lead the Iranian government to identify the applicant as an opponent, especially in view of the active political role his two sisters have played in the past”.", "38. In a letter of 20 December 1999 the Government was informed pursuant to Rule 40 of the Rules of Court that the applicant had made a request to the Court for the application of Rule 39.", "39. On 6 January 2000 a Chamber composed of judges from the Fourth Section decided to apply Rule 39 and to request the Government not to expel the applicant before 6 April 2000. It invited the parties to provide further details on the persecution of the other members of the applicant’s family in Iran and the reasons for such persecution, together with copies of the Swiss authorities’ decisions relating to the grant of political asylum to the applicant’s sister and her husband in Switzerland.", "40. On 25 January 2000 the Government informed the Court that they were not in a position to furnish the information requested.", "41. On 29 January and 28 February 2000 the applicant’s sister provided, inter alia, the following information to the Court:\n“My sister Mina (Massoumeh) Kalantari was arrested for her political activities and, after being subjected to torture over several months, executed (she died under torture) ... Both my husband and I were political prisoners and tortured in common with all other opponents of the Iranian regime who have been to prison ... I spent a long time in an isolated cell and from time to time heard the cries of other prisoners being tortured, even at night ... This is but the briefest of summaries of our prison ordeal ... It is for this reason that we fled Iran ...”", "42. She also described the persecution of the other members of her family in Iran, her other sister Zara (Khadijeh) Kalantari, her brother Mohammad Raza Kalantari and her mother Effat Kalantari.", "43. She enclosed copies of the following documents:\n(i) a decision, in Persian and French, of the Sari Islamic Revolutionary Court dated 31 December 1984 accusing her of being a member of the “organisation of hypocrites” (the organisation of the Mujahidin) and of engaging in activities as part of that organisation, as a result of which she had been sentenced to a term of imprisonment from 10 January 1983 to 11 September 1984; \n(ii) a decision dated 25 June 1987 of the person responsible for supervising the execution of that court’s judgments certifying that her husband was also a member of that organisation and had served a 22-month prison sentence on that account;\n(iii) an extract from the 29 June 1999 edition of the opposition newspaper Modjahed reporting the martyrdom of her sister Massoumeh Kalantari;\n(iv) documents attesting to her and her husband’s political activities in Switzerland (such as attending demonstrations against the Iranian regime);\n(v) a letter of 16 January 1989 from the Swiss Commissioner for Refugees informing her and her husband of the Swiss decision to grant her asylum (without giving reasons);\n(vi) a letter from the Head of the UNHCR Liaison Office for Switzerland and Liechtenstein dated 24 February 2000, attesting to the fact that by reason of their political activities as members of the PMOI (People’s Mujahidin Organisation of Iran), Mr and Mrs Yaghoubinia (the applicant’s brother-in-law and sister) had been “severely beaten and tortured and sentenced to respectively five years’ and one year’s imprisonment. Mr Yaghoubinia was released on 6 November 1984 on health grounds (heart problems), shortly after his wife’s release on 13 September 1984”. It added that Mr and Mrs Yaghoubinia had fled Iran and travelled to Turkey after the Iranian government had launched a vast operation for the interrogation of former political prisoners and they had been questioned by security forces. The letter said, in its conclusion:\n“After examining their application for refugee status, the eligibility officer accorded them refugee status on 10 November 1987 under the HCR mandate under Article 6 paragraph A(ii) of the Statute of the Office of the United Nations High Commissioner for Refugees of 14 December 1950.\nIn view of the geographical reservation issued by Turkey when it ratified the Geneva Convention relating to the Status of Refugees of 28 July 1951, the HCR has attempted to find a country where Mr and Mrs Yaghoubinia will be able to resettle. By a letter of 17 June 1988, the Commissioner for Refugees of the Swiss Confederation informed the HCR that it would accept these refugees in Switzerland as part of its quota policy.”", "44. On 1 March 2000 the assistant to the Special Rapporteur on Torture at the United Nation’s High Commission on Human Rights sent the Court the following extract from a report of the Special Rapporteur on Torture, which was made public at the beginning of April 2000:\n“On 6 August 1999 the Special Rapporteur sent an urgent appeal on behalf of Ali Reza Kalantari, an Iranian national who was reportedly facing imminent and forcible repatriation to Iran on 10 August 1999 from Flughafen Frankfurt on Lufthansa, Iran where he may be at risk of torture. His applications for refugee status were reportedly rejected by the German authorities and he was forced to sign a document from the Iranian Consulate in Munich agreeing to return to Iran. He was reportedly arrested by the police in Köln on 20 June 1999 while he was protesting against the Iranian Government.”", "45. In a letter of 18 June 2001 the Government informed the Court that, by a decision of 15 June 2001, the Federal Office for Refugees had set aside its decision of 31 August 1998 (see paragraph 12 above) on the ground that a bar existed, within the meaning of section 53(4) of the Aliens Act (see “Relevant Domestic Law” – paragraph 48 below) to the applicant’s expulsion. Consequently, the applicant was not to be expelled to Iran (“Herr Kalantari darf nicht in den Iran abgeschoben werden”)." ]
[ 4 ]
[ "8. The applicant is a German national, born in 1938 and living in Mettmann.", "9. In a letter of 30 December 1985 addressed to the Rheinprovinz Pension Office (Landesversicherungsanstalt), the applicant and her husband, born in 1927, declared that for the purposes of entitlement to a widow’s or a widower’s pension the statutory rules still in force should continue to apply in future (see below, “Relevant domestic law”).", "10. On 4 March 1986, following her husband’s death, the applicant applied with the Rheinprovinz Insurance Office for the payment of a survivor’s pension.", "11. On 10 June 1986 the Insurance Office issued a decision granting the applicant a survivor’s pension as from 1 March 1986. The Office, referring to the relevant provision of the Workers’ Pension (Reform) Act, further stated that in case that the person concerned had other earned income or income in lieu of earned income, the payment of the survivor’s pension was not suspended during the first year after the spouse’s death. During the second year, the survivor’s pension was reduced by a specific percentage in relation to a dynamic exonerated amount.", "12. On 20 June 1986 the applicant lodged an administrative complaint (Widerspruch) with the Pensions Office, which was dismissed on 24 March 1987.", "13. By submissions dated 27 April 1987, the applicant, represented by counsel, instituted proceedings with the Düsseldorf Social Court, challenging the above decisions issued by the Rheinprovinz Pension Office. She maintained in particular that the underlying legislation, especially the age-limit for opting out of the new system, was unconstitutional, i.e. in breach of the right to property. In this respect, the applicant noted that, according to information provided by the Federal Ministry for Labour and Social Matters, a constitutional complaint concerning the above issue was pending before the Federal Constitutional Court. She suggested that the proceedings before the Social Court be suspended to await the outcome of the said constitutional complaint proceedings. With her action, the applicant also objected to the calculation of the pension in question.", "14. On 24 June 1987 the Düsseldorf Social Court suspended the proceedings pursuant to Section 251 of the Code of Civil Procedure (Zivilprozessordnung - see below, Relevant domestic law).", "15. On 14 August 1987 the Rheinprovinz Pensions Office reassessed the applicant’s survivor’s pension. Taking her other income into account, the Office suspended the monthly payment of DEM 967.10.", "16. By submissions of 10 September 1987, the applicant filed an action with the Düsseldorf Social Court against the decision of 14 August 1987. She again suggested that the proceedings be suspended pending constitutional complaint proceedings in a similar case. The second set of proceedings was, thereupon, also suspended.", "17. On 26 February 1993 the applicant requested the Social Court to resume the suspended proceedings. She noted that in the meantime the Federal Constitutional Court had not taken any decisions concerning the legal provision at issue in her case. On 17 March 1993 the Social Court informed the applicant that the proceedings had been resumed.", "18. On 22 July 1993 the Social Court inquired with the Federal Constitutional Court about the state of the constitutional complaint proceedings concerning certain aspects of the reform of the rules governing a survivor’s pension. On 5 August 1993 the Federal Constitutional Court informed the Social Court that two proceedings had terminated in 1987 and that it envisaged rendering a decision in three further cases in 1994.", "19. On 17 September 1993 the Social Court held an oral hearing. Following discussion, the parties agreed to a further suspension of the proceedings.", "20. On 5 June 1996 the applicant requested the Social Court to resume the proceedings. She submitted that, having regard to the length of the proceedings before the Federal Constitutional Court and considering her age, she could no longer be expected to wait. On 18 June 1996 the Social Court informed the applicant that the proceedings had been resumed. On 5 February 1998 the Social Court inquired again with the Federal Constitutional Court about the state of proceedings before it.", "21. On 18 February 1998 the Federal Constitutional Court dismissed two constitutional complaints. It found that the rules introduced by the Survivor’s Pension and Educational Periods Act, in so far as they provided for a suspension of the payment of the survivor’s pension in case of other earned income or income in lieu of earned income, were compatible with the Basic Law (Grundgesetz).", "22. On 7 May 1998 the Social Court forwarded the Federal Constitutional Court’s decision to the applicant’s counsel and requested him for comments. After a reminder, the applicant’s counsel asked for an extension of the time limit. After a further reminder, the applicant’s counsel informed the Social Court on 13 October 1998 that he was no longer representing the applicant.", "23. On 17 March 1999 the Social Court dismissed the applicants’ actions. It found in particular that in 1987 the Federal Constitutional Court had declared the age-limit of 50 years compatible with the Basic Law. It held that the Federal Constitutional Court’s decisions of 1998 had no impact on its decision, as they did not concern the issues raised in the applicant’s action." ]
[ 3 ]
[ "8. The applicant was arrested in the early morning of 21 October 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 in Strabane by police officers of the Royal Ulster Constabulary (“the RUC”) investigating the murder of a former member of the Ulster Defence Regiment. The applicant was transported to the special holding centre for terrorist investigations at Castlereagh, Belfast.", "9. The applicant was interviewed for thirty-five hours on consecutive days by RUC police officers, beginning at 11.01 a.m. on 21 October until 25 October.", "10. At the time when the applicant was arrested (1.50 a.m. on 21 October), there was an initial decision made to defer the applicant’s access to a solicitor by Superintendent M., the police officer in charge of the investigation. He communicated this decision to Castlereagh police station by telephone and confirmed this in writing when he arrived in Castlereagh. The applicant had by this time arrived in Castlereagh and had requested a solicitor. At a review at 9.15 p.m. on 21 October 1990, the applicant was informed that his right to see a solicitor had been delayed for twenty-four hours. The deferral was therefore effective until the morning of 22 October. His solicitor, Mr Fahy, was informed of the deferral but did not attend until 12.10 p.m. on 23 October. There was a period of time from early morning on 22 October when the applicant was not being denied access to his solicitor. He made relevant admissions that afternoon.", "11. The applicant did not see his solicitor until the next day, namely 23 October. The applicant’s first interview with his solicitor lasted forty minutes until 12.50 p.m. and the applicant made no complaint of ill-treatment during that visit. The applicant saw his solicitor again at 3.15 p.m. on 25 October and again no complaint of ill-treatment was made in that interview, which lasted until 4.00 p.m. During the first interview with his solicitor, a policeman was present. The consultation took place within sight and hearing of the police officer who was in close proximity to the applicant and his solicitor. At the beginning of the interview, the police inspector told the solicitor in the presence of the applicant that no names were to be discussed or information conveyed which could assist other suspects and that the interview should be purely on legal advice.", "12. The applicant was seen by doctors on a total of eight occasions during his stay in Castlereagh, beginning with an examination following his arrival in Castlereagh in the early morning of 21 October 1990. He made no complaint of ill-treatment to any of the doctors who examined him. The doctors found no evidence to indicate any ill-treatment or mental handicap.", "13. The police alleged that the applicant admitted his involvement in the murder during an interview in the afternoon of 22 October. They further stated that in a later interview the applicant signed a statement to this effect and that thereafter he freely and voluntarily admitted additional terrorist activity and signed further statements.", "14. The applicant alleged that he had not volunteered the statements freely but, instead, that all the verbal and written statements had been extracted by ill-treatment, threats of ill-treatment, threats to his family and other oppressive conduct. The allegations of ill-treatment were denied by the RUC.", "15. All of the verbal and written statements made by the applicant had been obtained by the police officers after the administration by them of cautions pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, in the following terms:\n“You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.”", "16. The applicant’s solicitor was never permitted to be present at any of the applicant’s interviews, nor was any independent person; nor were the interviews recorded on video or audiotape.", "17. On 25 October 1990, at 7.30 p.m., the applicant was transferred from Castlereagh to Strandtown RUC station, where he was charged.", "18. On 14 October 1993 the applicant was tried by a single judge, McCollum J, sitting without a jury, for a total of eighteen serious offences including, inter alia, murder, attempted murder, possession of firearms and ammunition with intent, possession of explosives with intent, false imprisonment, hijacking a motor vehicle, and membership of a proscribed organisation, namely the Provisional Irish Republican Army (the “IRA”). He was found guilty on all counts.", "19. The disputed verbal and written statements by the applicant constituted the only evidence connecting the applicant to the charges brought. The admissibility of the statements was challenged by the applicant on the basis that they had been obtained by torture and inhuman or degrading treatment or, alternatively, should be excluded in exercise of the judge’s discretion. A voir dire (submission on a point of law in the absence of the jury) commenced and the applicant gave evidence over ten days which consisted of a highly detailed account of ill-treatment which he alleged he had experienced from the police. The officers denied ill-treating the applicant.", "20. The events in the interviews had been filmed by television camera and the pictures relayed to a monitor screen in a special room at Castlereagh police station. At all times, an officer of the rank of inspector was on duty for the purpose of viewing the monitor screens. A number of officers gave evidence and all of them told the court that they had seen no evidence of impropriety of any kind occurring during the interviews with the applicant. Indeed, none of them had ever witnessed an example of bad behaviour by an interviewing officer.", "21. The doctors, who examined the applicant a number of times in Castlereagh, gave evidence that the applicant had been cooperative and composed, that there were no signs of recent injuries and that the applicant did not complain of ill-treatment. Treatment had been given to the applicant in respect of his history of duodenal ulceration.", "22. The applicant’s account of the interrogation was rejected by the trial judge, who said:\n“Having heard the officers concerned who impressed me as being honest and conscientious officers, I am absolutely convinced that all of [the applicant’s] allegations of ill-treatment at this stage are completely unfounded ...\nIn my view if there had been any truth in the account of ill-treatment given by [the applicant] his distress would have been obvious to the doctors ... None of the medical evidence therefore gave any credence to the account given by [the applicant] in the witness box and all of that evidence is consistent with his being treated with absolute propriety ... \n... I am satisfied ... that in no respect was [the applicant] subjected to any treatment which could be described as torture or inhuman or degrading treatment, violence or oppression in order to induce a confession from him. I am satisfied that he was not threatened in any way.”", "23. At the trial, there was unchallenged independent medical evidence to the effect that:", "24. Evidence was given later in the trial by a psychologist that\n“[the applicant] is a psychologically vulnerable man and in my view would have required appropriate support in the context of police interviews. [The applicant’s] psychological vulnerabilities taken together with the lack of support from either the Solicitor or an appropriate adult during the police interviews and the prolonged and intensive nature of the interviews would in my opinion be of relevance to the reliability of his admissions”.", "25. In convicting the applicant, the judge rejected this evidence, finding that the applicant had not needed any form of independent support during the interviews and the police had been entitled to treat him as an ordinary member of society. He noted that the applicant’s earliest admissions did not follow particularly prolonged or intensive questioning and that during those interviews he persisted with a consistent story told with an air of conviction. He also noted that no one thought to have the applicant’s mental capacity investigated prior to the commencement of the trial. The trial judge stated:\n“... I am satisfied that [the applicant] was not suffering from such a degree of mental handicap that would have required the police to exercise any special consideration for him and that his memory, understanding and intellect were quite adequate to enable him to resist making any false confession under questioning in Castlereagh and that the questioning was, therefore, not in any respect unfair to him.\nIf he was an easier subject than others or more manageable I do not consider that that would be a matter which throws any doubt on the admissibility of any statements of confessions made by him”.", "26. The police questioning which led to his confessions was therefore not unfair and the judge had no doubt about the reliability of the admissions made by the applicant.", "27. In relation to the question of access to a solicitor, the judge observed that the deferral of twenty-four hours was effective until the morning of 22 October 1990. However, the applicant’s solicitor did not arrive until 12.10 p.m. on 23 October. The trial judge noted that there had been a suggestion that the solicitor may have been unintentionally misled as to the length of time of the deferral but found, having heard the solicitor and police officers concerned, that he was satisfied that the solicitor was accurately informed that the deferral was for twenty-four hours. He further noted that it might well have been convenient for the solicitor to delay his visit to Castlereagh until the next day because a number of other prisoners had had access deferred until then. In any event, it was not the deferral which prevented the applicant from seeing his solicitor after sometime early in the morning of 22 October but the fact that his solicitor did not arrive until 23 October. Incriminating admissions were made by the applicant at a time when he was no longer being denied access to a solicitor. The judge concluded that there was nothing improper in the decision to deny access for twenty-four hours, having regard to the police fears that messages might be passed through the solicitor with a view to alerting others implicated in offences.", "28. The trial judge stated, inter alia:\n“Having considered the extent of the strength of character of the accused, his intellectual shortcomings and his nature I am quite satisfied that he was not a person for whom the regime of questioning in Castlereagh would of itself be oppressive ...\nI am further satisfied that nothing was said or done during his questioning the effect of which upon him would justify the exercise of a discretion to exclude the statement ...\nI am satisfied that ... his admissions were made freely, and accept the police evidence that what triggered the making of admissions by this accused was the fact that the police were able to demonstrate to him that they had information available to them which discredited the alibi that he had given them ...\nIn my view the particular circumstances of this case provided ample grounds for the belief that other persons could be alerted if a solicitor had seen this accused within 24 hours. In any case [the applicant] made no admission during the 24 hours for which the solicitor had been deferred.\nI am satisfied that the deferral was right and proper in this case and that in any case it was not the deferral that resulted in the accused not seeing his solicitor during the early part of 22 October.”", "29. The judge further considered the applicant’s complaints that a police officer had been present during the first legal consultation with his solicitor and whether this had prevented him getting the full benefit of his solicitor’s advice. Evidence had been heard from the police inspector concerned who had stated that the purpose of sitting in to observe the interview was primarily to prevent information from being passed from the prisoner to the solicitor which might assist others suspected of involvement in the offence who had not yet been arrested. Under cross-examination, he stated that he had not been told of any codes that might be used and that it would be hard to identify such a code if it was used. The judge found, on the evidence of the applicant, his solicitor and the police officer, that the solicitor had not been in the least inhibited by the presence of the police officers and, according to the applicant, had been quite prepared to raise the crucial evidential issues with him. He was satisfied that an objective state of affairs existed justifying both the initial deferral of access and the supervision of the interview, namely, two other suspects were still at large whom the police wished to interview.", "30. The judge concluded that he was satisfied beyond reasonable doubt that the confessions were made freely and voluntarily. There was no ground for exercising his discretion to exclude any of the oral or written statements made by the applicant. The judge was accordingly satisfied that the applicant knew that he was playing a part in a murder plot and was therefore, inter alia, guilty of murder.", "31. The applicant appealed against conviction and sentence to the Court of Appeal of Northern Ireland. The Court of Appeal noted that the inspector had authorised the postponement of access to a solicitor before the applicant had made a request for a solicitor, which was in technical breach of the statutory provision. The Court of Appeal noted that there was no express sanction for breach of that provision. However, there was nothing unfair to the applicant as the deferral ran from the time of the arrest whenever the authorisation was given. The Court of Appeal was satisfied that substantial reasons existed for the police to postpone access to a solicitor in this particular case pursuant to section 45(8)(b) and (e) of the Northern Ireland (Emergency Provisions) Act 1991. In a judgment of 24 September 1996, the court dismissed the applicant’s appeal stating, inter alia:\n“We have no doubt that the learned trial judge was at all times aware of the need to bear the psychological evidence very much in mind when forming his conclusions both at the direction stage and when finally deciding if the Crown had established [the applicant’s] guilt beyond reasonable doubt ... \nWe are entirely satisfied that the learned trial judge was entitled to refuse the application for a direction [regarding inadmissibility] and to rule the various statements to be admissible ... Equally our perusal of the evidence does not suggest that the learned judge should, in the exercise of his discretion have excluded the statements, or any of them, from evidence ...\nThis is an appeal in which the evidence was lengthy and detailed. We have carefully considered all the evidence and [the applicant’s counsel’s] closely reasoned submission. We have finally stood back from all the detail and looked at the case ‘in the round’ as [the applicant’s counsel] invited us to do. We are satisfied that [the applicant’s] guilt was fully established by his admission and that his convictions are neither unsafe nor unsatisfactory.”", "32. On 28 July 1997 the applicant’s petition seeking leave to appeal to the House of Lords was dismissed." ]
[ 3 ]
[ "8. The applicant was, and still is, a prominent member of Sinn Fein. He has been arrested by the police on a number of occasions and has issued proceedings relating to his allegations, inter alia, of arbitrary arrest, assault and ill-treatment arising out of six incidents. In proceedings lodged for incidents in 1988 and on 19 March 1993, he received an award of damages (amount unspecified). In or about January 1994 he was awarded damages of 2,500 pounds sterling (GBP) for an incident in Guildhall Square on 16 March 1993 when the judge found that he had been wrongfully arrested by police officers who had purported to arrest the applicant for obstruction in failing to give his name when in fact they were fully aware of his identity. This case concerns his arrest in 1985 in relation to the murder of Mr Kurt Konig.", "9. Kurt Konig was a German citizen working for the caterers of canteens in police stations in Londonderry. He was murdered on 21 November 1985. The Provisional IRA claimed responsibility for his death.", "10. The Government submitted that Special Branch received intelligence that the applicant and three other persons were involved in the murder. The intelligence derived from four informants who had proved reliable in the past and had provided information leading to seizures of explosives or firearms and to prosecutions. None of the informants had a criminal record. The information given by these four informants was consistent, in that all gave the same names as being involved, and independent, in that none was aware of the existence of the others and each gave the information at separate meetings with police officers.", "11. Detective Superintendent R. of the Royal Ulster Constabulary (“the RUC”) was briefed by Special Branch concerning this intelligence that the applicant was a member of the Provisional IRA and had been implicated in the murder.", "12. Detective Superintendent R. briefed Inspector B. who in turn briefed Detective Constable S.", "13. On 28 December 1985, at about 6 or 6.15 a.m., Detective Constable S. visited the applicant’s house and conducted a search. At the conclusion of the search, at 8.05 a.m., S. arrested the applicant. He told the applicant that he was arresting him under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (“the 1984 Act”) which empowered a police constable to arrest, without a warrant, a person whom he had reasonable grounds for suspecting of being concerned in the commission, preparation or instigation of acts of terrorism.", "14. The applicant was taken to Castlereagh Detention Centre where he was questioned about his possible membership of the IRA, his suspected involvement in Kurt Konig’s murder and also his possible involvement in the murder of two soldiers on 1 April 1982. He was interviewed on thirty-four occasions. He did not respond to any questions. According to the Government, the first interview occurred on 28 December 1985 at 11.50 a.m., at the start of which he was told that the police were enquiring into his involvement with the Provisional IRA and related matters. Police notes provided by the Government record that during the next interview, from 2.05 to 4 p.m., the interrogating officers told the applicant that they were making enquiries in relation to his membership of the IRA and the murder of Kurt Konig.", "15. On 29 December 1985 the Secretary of State for Northern Ireland extended the applicant’s period of detention beyond the initial 48-hour period, by five days. The applicant was released without charge on 3 January 1986 at 9 p.m., after six days and thirteen hours in custody.", "16. By a writ issued on 20 August 1986 against the Chief Constable of the RUC, the applicant instituted a civil action for damages before the High Court in Northern Ireland in respect of, inter alia, assault, seizure of documents, false imprisonment and unlawful arrest.", "17. Before the High Court, the submissions of the applicant’s counsel concentrated, as the trial judge found, on the issues of assault and confiscation of documents. He did however raise the argument, in the context of the lawfulness of the arrest, that Detective Constable S. did not have sufficient grounds for suspicion that the applicant had committed an offence to justify the arrest. The evidence before the court from Detective Constable S. was to the effect that he attended a briefing at 5.30 a.m. on 28 December 1985 in which he was told that he was to carry out a search to find evidence and arrest persons, including the applicant, suspected of involvement in the murder of Kurt Konig. He had been told by his superior officer, Inspector B., at that briefing that the applicant was involved in the murder and stated that these were the reasonable grounds for suspecting the applicant. He did not state that Inspector B. had told him the grounds for his own suspicion, nor was he asked about that matter by counsel for either party. It was common ground that the murder was a terrorist offence. The superior officer was not called as a witness in the proceedings.", "18. On 14 November 1990 Judge McCollum found that there had been an unlawful taking of the applicant’s notes by a police officer and awarded Mr O’Hara GBP 100 in damages. He rejected the applicant’s claims of assault and ill-treatment, finding that he had not satisfied him on the balance of probabilities that his version of events was right and that of the police officers wrong.\nAs regards the allegations of wrongful arrest, the judge noted:\n“... while [the applicant’s counsel] submitted that the officer who arrested the [applicant] was required, in order to render the arrest lawful, in addition to holding the suspicion grounding the arrest of the [applicant], [to] have reasonable grounds for that suspicion, based on his own knowledge of facts giving rise to that suspicion. He accepted that both Mr Justice Carswell and the Lord Chief Justice had previously rejected the same submission in similar cases.\nWhile he reserved his position on this issue he made no new submissions and produced no new arguments to me which would cause me to depart from the reasoning in their decisions, and in the circumstances I am satisfied in this case on the evidence of Detective Constable [S.] that as a result of the information he had been given he had reasonable grounds for suspecting that the [applicant] had been concerned in the commission, preparation or instigation of acts of terrorism.\nCross-examination of the detective constable did not probe the details which had been disclosed to Detective Constable [S.] in the course of the briefing during which he was supplied with this information.\nI find on the evidence that the detective constable had a suspicion that the [applicant] was involved in the murder of Kurt Konig and that this suspicion was reasonably based on information given to him by a superior officers at the briefing that morning.\nEither party could have elicited details of the briefing, not as truth of the matters disclosed, but as relevant on the issue of the reasonableness of the suspicion held by the arresting officer. Proof of the lawfulness of the arrest lies on the defendant.\nI would not wish to lay down the proposition that reasonable suspicion could in all circumstances be based on the opinion of another officer expressed without any supporting allegations of fact. But it does seem to me that a briefing officially given by a superior officer would give reasonable grounds for suspicion of the matters stated therein. The fact that I have such scanty evidence of the matters disclosed to Detective Constable [S.] means that I am only just satisfied of the legality of the arrest, but I am fortified in my view by the lack of detailed challenge in cross-examination as to the nature of the information given to him.\nThe main issue between the parties is as to whether the [applicant] was assaulted and mistreated during the period of his detention ...”", "19. On 24 October 1990, the applicant gave notice of appeal to the Court of Appeal in Northern Ireland concerning the claim of unlawful arrest and false imprisonment.", "20. On 6 May 1994 the Court of Appeal dismissed the appeal, upholding the decision of the High Court that reasonable suspicion could be derived from information provided by a superior officer and that the arrest was lawful.\n“Notwithstanding his concern that more detail of the briefing had not been given, the learned trial judge was able to conclude:\n‘(1) that the arresting officer ... did have a suspicion that the [applicant] was involved in a terrorist murder and it was implicit that that suspicion was genuinely held by him;\nand (2) that the official briefing which he had attended given by [his superior officer] gave him reasonable grounds for that suspicion.’\nThese were factual findings and clearly contained in our view all the essential proofs that the respondent was required to adduce to constitute lawful arrest under section 12(1)(b) of the Act.\n[Applicant’s counsel] submitted that this was not the case. The source of the suspicion and the reasonable grounds for it must be before the court, namely evidence from the briefing officer, Inspector [B.], as to the grounds on which he suspected the [applicant] of being involved in the commission, preparation and instigation of acts of terrorism. It would be unjust, he contended, if section 12 could give Inspector [B.] protection from liability for false imprisonment if the Inspector himself had not reasonable grounds for the suspicion. The first part of this submission flies in the face of the authorities as we have said. The second part, so far as this case is concerned, seems to be hypothetical in that the regularity or the bona fides of the ‘official briefing’ were not questioned. No factual foundation for such a case was made out ...\nWe consider that the decision of the learned trial judge was correct. The information given at the briefing to the arresting officer was admissible and although, in his words, ‘scanty’ it was sufficient to constitute the required state of mind of an arresting officer under section 12(1)(b) of the Act.”", "21. An appeal to the House of Lords against the decision of the Court of Appeal was dismissed on 12 December 1996. In his judgment, with which the other judges agreed, Lord Hope of Craighead held that it was not necessary for an arresting officer to possess all the information which had led to the decision to arrest, but that the arresting officer must have equipped himself with sufficient information so that he had reasonable cause to suspect before exercising the power of arrest. The information acted upon by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told; his reasonable suspicion may be based on information which has been given to him anonymously, or it may be based on information which turns out later to be wrong. While the evidence about the matters disclosed at the briefing was indeed scanty, he found that the trial judge was entitled to weigh up the evidence in the light of the surrounding circumstances and, having regard to the source of that information, and to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it.", "22. Lord Steyn stated, inter alia, concerning the general principles:\n“Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesis one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers ... (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive ‘discretion’ to arrest or not ... vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.\nGiven the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of superior officers and the fact that he gave an order make a difference? ... In practice it follows that a constable must be given some basis for a request to arrest someone under a provision such as section 12(1), e.g. a report from an informer.”" ]
[ 2 ]
[ "8. By summons of 5 June 1995 the applicant was ordered to appear on 14 June 1995 before the First-Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles on charges of possession of about one kilogram of cocaine.", "9. By judgment of 28 June 1995, following adversarial proceedings in the course of which the applicant was assisted by a lawyer, the First-Instance Court acquitted the applicant. The prosecution filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba.", "10. As the applicant had failed to appear before the Joint Court of Justice at its first hearing on the appeal on 2 January 1996, he was declared in default of appearance (verstek). The Joint Court of Justice adjourned the proceedings until 9 January 1996. The applicant also failed to appear on 9 January 1996. On that date, the Joint Court of Justice resumed the proceedings and examined the appeal. The applicant’s lawyer attended this hearing and conducted the applicant’s defence.", "11. By judgment of 23 January 1996, following proceedings in absentia, the Joint Court of Justice quashed the judgment of 28 June 1995, convicted the applicant of having violated section 3(1) of the 1960 Opium Act of the Netherlands Antilles (Opiumlandsverordening 1960) and sentenced him to two years’ imprisonment.", "12. Relying on the Cassation Regulations for the Netherlands Antilles and Aruba (Cassatieregeling voor de Nederlandse Antillen en Aruba), the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), which appeal is limited to points of law and procedural conformity.", "13. In its judgment of 27 May 1997, the Supreme Court noted that, pursuant to Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba, no appeal in cassation lay against judgments pronounced following proceedings in absentia.", "14. It rejected the argument advanced by the defence, that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of the Cassation Regulations was contrary to Article 14 of the Convention and Article 26 of the International Covenant on Civil and Political Rights in that it constituted an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia.", "15. The Supreme Court noted that, according to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles (Wetboek van Strafvordering van de Nederlandse Antillen), a person convicted on appeal following proceedings in absentia could file an objection (verzet) against this conviction. If the accused then appeared before the trial court, the case would, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation would lie against the resulting judgment.", "16. The Supreme Court concluded that, in the circumstances, no appeal in cassation lay against the judgment of 23 January 1996. However, on the basis of the contents of a statement made on 29 January 1996 on behalf of the applicant, the Supreme Court interpreted the applicant’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant’s case file to the Joint Court of Justice for a determination of the applicant’s objection." ]
[]
[ "9. On 25 October 1980 police officers from the Fatsa Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way).", "10. On 3 January 1981 the Perşembe Criminal ordered the applicant’s detention on remand.", "11. On 10 May 1982 the Military Public Prosecutor filed a bill of indictment with the Erzincan Martial Law Court against the applicant and 722 other defendants. The Public Prosecutor accused the applicant, inter alia, of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.", "12. On 5 February 1985 the applicant was released pending trial.", "13. In a judgment of 24 August 1988 the Martial Law Court convicted the applicant on account of his involvement in the Dev-Yol. It sentenced the applicant to fifteen years’ imprisonment under Article 146 § 3 of the Turkish Criminal Code, permanently debarred him from employment in the civil service.", "14. The applicant appealed to the Military Court of Cassation.", "15. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it.", "16. On 4 July 1995 the Court of Cassation quashed the applicant’s conviction on the ground that he should have been convicted of the offence under Article 146 § 1 of the Turkish Criminal Code. It referred the case to the Ankara Assize Court (ağır ceza mahkemesi).", "17. On 24 June 1997 the Ankara Assize Court decided, under Article 102 of the Turkish Criminal Code, that the criminal proceedings against the applicant should be discontinued since the prosecution was time‑barred." ]
[ 3 ]
[ "9. On 17 November 1980 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way).", "10. On 20 February 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 Martial Law Court against the applicant and 722 other defendants. The Public Prosecutor accused the applicant, inter alia, of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.", "12. On 14 December 1988 the Ankara Martial Law Court ordered the applicant’s release pending trial.", "13. In a judgment of 19 July 1989 the Martial Law Court convicted the applicant of membership of the Dev-Yol. It sentenced the applicant to 16 years’ imprisonment under Article 168 § 1 of the Turkish Criminal Code, permanently debarred him from employment in the civil service and placed him under judicial guardianship.", "14. As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically referred to the Military Court of Cassation (askeri yargıtay).", "15. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it.", "16. On 27 December 1995 the Court of Cassation quashed the applicant’s conviction on the ground that he should have been convicted of the offence under Article 146 § 1 of the Turkish Criminal Code. It referred the case to the Ankara Assize Court (ağır ceza mahkemesi). The criminal proceedings are still pending before the latter court." ]
[ 3 ]
[ "8. On 2 February 1994 the applicants’ two-year-old daughter, Erika, underwent heart surgery at Marie-Lannelongue Hospital in Le Plessis-Robinson (France).", "9. On 17 June 1996 Erika was admitted to the same hospital for a postoperative check-up.", "10. On 18 June 1996 she became feverish and vomited blood. The doctors diagnosed rhinopharyngitis and prescribed antibiotics. On 20 June 1996 the doctors decided to allow the child to leave the hospital.", "11. In the evening of the same day the applicants telephoned the hospital because Erika was feverish again.", "12. On 22 June 1996 the applicants took the child to a doctor, who diagnosed pneumonia, telephoned the hospital and requested that Erika be admitted to hospital immediately. On arriving at the hospital Erika was initially taken to the cardiology unit. When she fell into a coma she was transferred to the intensive care unit. The doctors said that she had a serious infection in the left lung, which had weakened her heart.", "13. On 24 June 1996 Erika died.", "14. On 28 June 1996 the applicants lodged a complaint with the Nanterre public prosecutor. On 1 July 1996 an inquiry into the causes of death was opened.", "15. On 3 July 1996 the investigating judge, Miss M., instructed the Sceaux Gendarmerie Investigation Squad to seize Erika’s medical file and question the members of the medical staff who had looked after Erika. On 14 August 1996 the Sceaux Investigation Squad reported back to the judge with its incomplete findings.", "16. On 5 July 1996 the investigating judge ordered an autopsy, which was carried out on 9 July. Several tissue samples were taken in case a further examination was needed. The autopsy report, dated 25 July 1996, concluded that at the time of Erika’s death she had been suffering from an acute respiratory infection.", "17. On 16 September 1996 the investigating judge commissioned a further anatomopathological report from Professor L., an expert in forensic medicine, and Dr D., a heart specialist, giving them until 15 December 1996 to submit their report.", "18. On 13 January 1997 the investigating judge asked them to send her their report by the “absolute deadline of 20 January 1997”.", "19. From the date of the autopsy onwards the applicants sent numerous letters to the Italian consulate-general in Paris, the Ministry of Foreign Affairs in Rome and Italian members of Parliament with the aim of securing the return of Erika’s body.", "20. In Italy a number of MPs put parliamentary questions to the government and held press conferences on the case. Several newspaper articles were published on the subject.", "21. The Italian consul-general made repeated representations to the investigating judge, including letters sent on 26 September, 26 November and 12 December 1996, and forwarded the information he had obtained to the applicants.", "22. In January 1997 the consul-general made a formal complaint to the public prosecutor, who demanded an explanation from Professor L. In a letter of 12 February 1997, Professor L. replied as follows:\n“The autopsy was carried out on 9 July 1996 and the investigating judge was immediately notified of the results by telephone. She was told that all the necessary samples of tissue from the internal organs had been taken and that the body could be returned to the family as from 9 July 1996.\nThe internal organs were to be studied subsequently from an anatomopathological viewpoint and this was done on 20 January and 4 February 1997, but I had also been instructed to examine the medical file and seek the opinion of another expert, which was done on 3 February 1997. When the seals were removed it was discovered that the intensive-care file was missing, and so we contacted our colleagues, who sent us a copy of it which we are currently examining.\nThe medical file is complex and it is essential that we have a certain amount of time to study it, but there is no reason to keep the body at the Institute of Forensic Medicine.\nThe administrative authorities of the Institute of Forensic Medicine have repeatedly expressed concern at the length of time the body has been kept in storage. On 2 June, 12 August and 18 August 1996 and on 15 January 1997 they contacted Miss M., the investigating judge at the Nanterre Court, who is in charge of the case. She said that she was awaiting the outcome of the anatomopathological examination, but the latter is part of a longer task of investigation and analysis which has not yet been completed.\nMiss M. is therefore completely free to release the body from the Institute of Forensic Medicine and hence to sign the burial certificate, leaving the doctors the necessary time to carry out their work.”", "23. On 14 February 1997, on receiving the above letter, the public prosecutor asked the investigating judge to order that Erika’s body be returned to her family.", "24. On the same day investigating judge B., standing in for Miss M., issued a burial certificate.", "25. On 19 February 1997 Erika was buried at Terracina Cemetery.", "26. On 12 March 1997 Miss M. wrote to Professor L., expressing surprise that after more than six months the report had not yet been filed and asking him to inform her of any difficulties or obstacles that might explain the failure to do so.", "27. On 18 March 1997 Professor L. replied that there had been “a problem with a discrepancy between the anatomical observations and the information in the medical file”, which meant that the experts had had to organise interviews with the doctors who had looked after the child, scheduled for 8 April 1997.", "28. The experts’ report was filed on 29 April 1997. They concluded that “there was no possibility of life-saving surgery” and there were no signs of “any mistaken treatment”.", "29. In a letter of 8 September 1997 a deputy public prosecutor informed the applicants that their case had been dropped because none of the expert reports ordered by the investigating judge had revealed any medical negligence, error of diagnosis or mistaken treatment that could possibly amount to a criminal offence." ]
[ 4 ]
[ "8. The applicant, who had lived for a while in the United States of America, was suspected of drug trafficking and a warrant for his arrest was issued by the United States police in January 1996.", "9. Following the request of the United States authorities, on 15 August 1997 the public prosecutor asked the Skopje Municipal Court to institute a preliminary investigation against the applicant on charges that between January 1992 and May 1995 he had smuggled around 10.5 kg of drugs from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and that for that purpose had set up a drug-trafficking network involving also his son, who lives in the United States. The prosecution’s request set out the names of the persons involved and against whom criminal proceedings were pending or completed in the United States and asked for their questioning.", "10. On 30 September 1997 the investigating judge opened a criminal investigation against the applicant, decided to hear the witnesses proposed by the prosecution and detained the applicant on remand.", "11. On 1 October 1997 the investigating judge asked the Ministry of Justice to contact the United States government and to request their assistance in the hearing of some witnesses in their country. On 10 October 1997 the Ministry of Justice addressed the request to the United States embassy.", "12. On 7 November 1997 the United States embassy was informed by the investigating judge of the investigation pending against the applicant. The notice contained the names of the witnesses to be examined in the United States and a list of fifteen questions to be put to them.", "13. On 28 November 1997 the applicant’s lawyer was informed that the investigating judge would go to the United States one week later and was summoned to the hearing.", "14. On 1 December 1997 the lawyer was denied a visa for the United States on the ground that he had not produced all the relevant documents required. The United States embassy informed him that it would review his application for a visa provided that he submitted a certificate of his working position, income, and seniority and evidence that he owned real estate and had family ties in the Former Yugoslav Republic of Macedonia. The lawyer never reapplied for a visa. On 2 December 1997 the applicant withdrew his power of attorney.", "15. On 3 December 1997 the applicant appointed another lawyer, who, on the same day, was summoned to attend the hearing of witnesses in the United States, scheduled for 8 December 1997. On the summons, the lawyer placed his signature in the space provided for the bailiff’s signature and the bailiff placed his signature in the space provided for the lawyer’s signature.", "16. On 4 December 1997 the applicant was questioned. He stated that he had been informed by the investigating judge that witnesses would be heard in the United States. He had contacted his second lawyer and left to him the decision whether or not to attend the hearing. He further stated that the expenses for the trip would not be a problem as he had sufficient funds to cover them.", "17. On the same day the investigating judge informed the United States embassy in the Former Yugoslav Republic of Macedonia that on 28 November 1997 the applicant’s first lawyer had been summoned to attend the questioning of the witnesses in the United States and that the applicant’s second lawyer had declared that there was no need to attend the questioning and that he had insufficient funds to meet the travel expenses.", "18. On 8 and 9 December 1997, five witnesses were heard by the investigating judge in the presence of the public prosecutor and the court interpreter. Their testimonies were recorded. The witnesses were involved in the drug-trafficking network organised by the applicant, and they were all serving prison sentences in the United States for drug trafficking.", "19. According to the witnesses, who were under oath and were heard separately, it was the applicant who had set up the entire network and who had organised the smuggling into the United States and the re-sale there of approximately 10.5 kg of drugs. The applicant had contacts in Bulgaria, from where he would smuggle the drugs into the Former Yugoslav Republic of Macedonia. He would then arrange for them to be smuggled into the United States. Some of the witnesses stated that they had smuggled the drugs in a plaster-cast which the applicant would wrap around one of their legs, as though it were broken. On their arrival in the United States they would hand over the drugs to the applicant’s son in return for payment. Some of the witnesses stated that they had had an agreement with the applicant and his son for drug dealing and had been supplied with the drugs in the applicant’s and his son’s house.", "20. Two of the witnesses who had travelled to Bulgaria on separate occasions gave evidence that they had been taken into Mr Robert M.’s flat in Bulgaria, where Mr Robert M. and the applicant had wrapped plasters with drugs around one of the witnesses’ legs. None of the witnesses made any statement regarding Mr Angel B.", "21. On 22 December 1997 the public prosecutor indicted the applicant with drug trafficking from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and with setting up an international network for that purpose. The witnesses’ statements were included in the indictment.\nOn 29 December 1997 the applicant was released.", "22. On 1 January 1998 the applicant made a submission to the Municipal Court that there was no case to answer as there was no convincing evidence against him. In particular, the indictment was predominantly based on the testimonies of the witnesses who were serving prison sentences in the United States and who had not been cross-examined by the defence. The applicant argued that the witnesses had a deal with the United States authorities to have their sentences reduced in exchange for their cooperation. On the one hand, since they had already been convicted in the United States, the witnesses were aware that they would not risk anything if they gave false evidence, as they could not be prosecuted for drug trafficking under the law of the Former Yugoslav Republic of Macedonia. On the other hand, if they modified their testimonies, they ran the risk of losing all the benefits which had been agreed upon by the authorities.", "23. On 12 January 1998 the court held that on the basis of all the evidence in the case there was a reasonable suspicion that the applicant might have committed the offence with which he had been charged and refused to terminate the criminal proceedings against him.", "24. On 13 January 1998 a hearing was held before the Skopje Municipal Court. On 22 January 1998 a second hearing was held. The applicant claimed to be innocent and stated that he had not travelled to the United States because he knew that it might be dangerous for him.\nPhotographs showing the plaster-cast, belonging to a person involved in the drug dealing with the applicant, in which drugs had been found, photographs of the witnesses, reports on the search of the applicant’s son’s and another witness’s flat where some drugs had been found and the reports on the investigation in connection with the applicant’s son and his pre-trial detention were, inter alia, examined.", "25. The applicant complained that he had been unable to cross-examine the witnesses. He also objected to their statements being read out in open court.\nThe court decided to read out in open court the statements of the witnesses examined in the United States, because “to secure the attendance of the witnesses is extremely difficult and there are also other important reasons”.\nThe applicant challenged the witnesses’ statements without pointing out concretely why they should not be considered trustworthy, or specifying the questions that he would have liked to be put to the witnesses.", "26. At the hearing of 22 January 1998 the applicant requested that two additional witnesses for the defence be examined. The record of the hearing states as follows:\n“... the applicant’s lawyer asked the court to gather information about Mr Robert M., in particular regarding his place of residence, whether Mr Robert M. was charged with being one of the co-organisers [of the drug trafficking] with the accused, [and if so] to obtain his case file, and to call him as a witness.\nHe also called the witness, Mr Angel B., from the village of Kompliven, Bulgaria, to give evidence on whether he knew the accused and Mr Robert M., whether he had ever been in Mr Robert M.’s flat with the accused, whether he knew if the accused had been supplied with drugs (amphetamines), whether he knew some of the prosecution witnesses, etc. ...”\nThe Skopje Municipal Court refused the motion on the ground that “the court [had] sufficient evidence before it to reach its verdict”.", "27. On 26 January 1998 the municipal court found the applicant guilty of drug trafficking within the meaning of Article 255 § 2 of the Criminal Code and sentenced him to ten years’ imprisonment. The court dismissed the applicant’s objection that there had been a breach of his right of defence in that he had been unable to cross-examine the witnesses, on the ground that it had been impossible to summon them. It considered the witnesses’ statements reliable, since they had had no opportunity to make a deal with the public prosecutor of the Former Yugoslav Republic of Macedonia to have their sentences in the United States reduced in exchange for giving evidence against the applicant. The court further observed that all the witnesses had recognised the applicant on a photo and that, although each of them had been heard separately by the investigating judge in the presence of the public prosecutor, their statements were consistent and precise. The court also had regard to the applicant’s testimony.", "28. On 26 February 1998 the public prosecutor submitted an appeal to the Skopje Court of Appeal (Апелационен суд) requesting an increase of the sentence in view of the nature of the offence committed, the degree of danger to the public, the fact that it concerned organised crime at international level and the fact that the applicant was a habitual offender.", "29. On 6 March 1998 the applicant also filed an appeal with the Skopje Court of Appeal, complaining, inter alia, that the lower court had infringed the Code of Criminal Procedure and Article 6 of the Convention, as it had reached its verdict only on the basis of the statements of witnesses whom he had not cross-examined. The applicant further complained about the court’s refusal to hear two additional witnesses on his behalf.", "30. On 20 May 1998 the Court of Appeal dismissed the applicant’s appeal on the ground that the Municipal Court had acted in accordance with Article 325 of the Code of Criminal Procedure, which stated that witnesses might be heard in the absence of the accused or his lawyer if there was a valid reason making it impossible or extremely difficult to do otherwise (see “Relevant domestic law and practice” below).\nThe court found that the lower court had given a reasoned explanation why it was extremely difficult to cross-examine those witnesses at the public hearing. They had been heard only by the investigating judge and the public prosecutor, but the legal representatives of the applicant had been duly summoned for the examination of the witnesses and, therefore, had had a sufficient opportunity to attend the witnesses’ questioning.\nIt held that the statements were consistent and logical and were corroborated by each other and by other evidence such as the reports from the searches carried out in the flat of the applicant’s son and of another witness. It also held that the two witnesses called by the defence were not relevant as they would not have contributed much to the establishment of the truth.\nThe court granted the public prosecutor’s appeal and increased the applicant’s sentence to thirteen years’ imprisonment.", "31. On 11 June 1998 the applicant filed an appeal on points of law (Барање за вонредно преиспитување на правосилна одлука) with the Supreme Court (Врховен суд).", "32. On 2 July 1998 the Supreme Court dismissed the appeal on points of law on the grounds that the investigating judge had acted within his competence when he decided to interrogate the witnesses in the United States and that the applicant and his lawyers had been given an opportunity to attend the hearing. Furthermore, the Supreme Court held that it would have been impossible to have the witnesses heard at the public hearing, as they were serving a prison sentence abroad. Consequently, in accordance with the rules of the Code of Criminal Procedure there were sufficient reasons to justify the statements being read out at the public hearing.", "33. On 6 September 1999 the applicant’s son declared before a notary that his father had had nothing to do with drug trafficking. Another person also declared before a public notary that the applicant had been engaged in trade with spare parts for motor vehicles.\nOn 5 October 1999 the applicant applied to the Skopje Municipal Court to have his case reopened on the basis of those declarations. His application was dismissed on 27 October 1999. On 27 December 1999 that decision was upheld by the Skopje Court of Appeal." ]
[]
[ "8. On 12 November 1994 four armed robbers wearing masks entered the premises of a transport company which employed a number of inmates from Poissy Prison who were in semi-detention or on external work assignments. After locking the entire staff in the lavatories, they forced the company manager, whom they had taken hostage, to open the safe, from which they stole 120,000 French francs (FRF) in cash before making off.\nThe investigators concentrated their inquiries on some of the prison inmates. One of them, G.D., had witnessed the offences and been threatened by the robbers.", "9. On 13 January 1995 the managing director of the company had a cheque stolen. The home of one of the company’s employees, E.M., was searched and a forged identity card bearing the applicant’s photo was discovered, together with a sawn-off shotgun. The employee admitted that he had provided the applicant with information to help him commit the armed robbery in return for the sum of FRF 10,000. He also stated that he had recognised the applicant while the offence was being committed despite the mask he had been wearing and that the applicant was the robber who had been carrying the sawn-off shotgun.", "10. On 19 January 1995 the investigating judge at the Versailles tribunal de grande instance decided to have the applicant detained pending trial and issued a warrant of commitment for armed robbery, false imprisonment, and wounding with intent and wilful violence resulting in total unfitness for work for less than eight days.", "11. On 18 January 1996 the investigating judge made an order extending detention for four months from 19 January 1996.", "12. The applicant’s detention was twice extended for a further four months, on 14 May 1996 from 19 May onwards and on 13 September 1996 from 19 September onwards.", "13. On 30 September 1996 the investigating judge substituted for the charge of false imprisonment with voluntary release (an intermediate offence (délit)) the more serious one of false imprisonment (crime) and made a partial discharge order. In accordance with Article 181 of the Code of Criminal Procedure, he ordered that the file be transferred to the public prosecutor’s office at the Versailles Court of Appeal with a view to the Indictment Division indicting the applicant and committing him for trial at the Assize Court. That order was served on the applicant on 3 October 1996.", "14. In a judgment of 27 November 1996 the Indictment Division of the Versailles Court of Appeal ordered further investigations to be made and appointed for that purpose the investigating judge at the Versailles tribunal de grande instance who had previously been in charge of the investigation.", "15. On 20 January 1997 the applicant requested that a bailiff be called on to record officially that his detention had become unlawful as the last order extending it, dated 13 September 1996 and effective from midnight on 19 September 1996 for a period of four months, had expired at midnight on 19 January 1997.", "16. In a formal demand for information (sommation interpellative) addressed to the governor of Fresnes Prison the bailiff asked to be sent the detention order by virtue of which the applicant was still being held in his prison. In reply he was told that the applicant was being detained under the transfer order of 30 September 1996 and the Versailles Court of Appeal’s judgment of 27 November 1996.", "17. The applicant stated that he had lodged a complaint with the Créteil public prosecutor alleging arbitrary detention but had received no reply.", "18. On 9 April 1997 the applicant made an application to the Indictment Division for his immediate release on the ground that he was being detained arbitrarily as the judge’s initial warrant of commitment had ceased to have any effect on 19 January 1997.", "19. In a judgment of 25 April 1997 the Indictment Division dismissed that application for the following reason:\n“It is not disputed that the judgment of 27 November 1996 was delivered within the time laid down by the last paragraph of Article 214 of the Code of Criminal Procedure. Consequently, since the Indictment Division did not rule on the facts being investigated, the warrant of commitment issued by the investigating judge continued to have effect.\n…”", "20. In the same judgment the Indictment Division ordered that the applicant should be kept in custody to avoid all risk of pressure being brought to bear on witnesses or collusion and because he could not provide sufficient sureties that he would appear for trial.", "21. The applicant appealed on points of law, relying on grounds of appeal based, firstly, on an infringement of Article 725 of the Code of Criminal Procedure and, secondly, on a breach of Articles 201 and 214 of the Code of Criminal Procedure and Article 5 of the Convention.", "22. In a judgment of 19 August 1997 the Court of Cassation dismissed the appeal on the following grounds:\n“It appears from the impugned judgment and the documents on the file that on 19 January 1995 a warrant of commitment was issued in respect of [the applicant], who was under investigation for offences including armed robbery. On expiry of its validity a year later, the investigating judge extended the detention three times for four months, the final extension taking effect on 19 September 1996.\nOn 27 November 1996, following the investigating judge’s transfer order of 30 September 1996, the Indictment Division ordered further investigations.\n[The applicant] made an application to the Indictment Division for his release, alleging that the detention order had ceased to be valid on 19 January 1997 and that he had been unlawfully detained since that date; that application was refused in the judgment now appealed against.\nIn so ruling, the investigating court did not lay itself open to the objections raised. Since the judges ordered further investigations within the time allowed by Article 214, third paragraph, of the Code of Criminal Procedure, the initial warrant of commitment remained effective, in accordance with Article 181, second paragraph, of the Code, after the transfer order was issued and so remains until a decision on indictment is taken …”", "23. On 10 September 1997, after completion of the further investigations, the Indictment Division directed that the applicant be committed for trial at the Yvelines Assize Court charged with armed robbery, false imprisonment and other connected lesser offences. The judgment committing the applicant for trial at the Assize Court also contained an order for him to be remanded in custody. An appeal on points of law by the applicant against that judgment was dismissed by the Court of Cassation on 18 December 1997.", "24. On 9 and 10 June 1998 the applicant was tried at the Versailles Assize Court, which sentenced him to ten years’ imprisonment. In a judgment delivered on the same day on the civil claims the applicant was ordered to pay the civil party FRF 50,000 in damages.", "25. In a judgment of 3 March 1999 the Court of Cassation dismissed appeals on points of law by the applicant against the Assize Court’s judgments." ]
[]
[ "7. The applicant is a Lithuanian national, born in 1948 and living in Vilnius. From 1993 to 1996 he was the Prime Minister of Lithuania.", "8. In January 1996 two members of the Seimas (Parliament) wrote letters to the Prosecutor General, requesting him to institute criminal proceedings against the applicant in connection with allegations of financial impropriety amounting to abuse of office. On 24 January 1996 proceedings were instituted.", "9. On an unspecified date in January 1996, the applicant’s bank accounts were seized in the context of the proceedings. On 8 February 1996 he resigned as Prime Minister in order to pursue business activities.", "10. On 10 October 1996 a prosecutor of the Office of the Prosecutor General charged the applicant with two counts of abuse of office. On 17 October 1996 the preliminary investigation was concluded, and the applicant was given access to the case-file until 28 November 1996. On 16 December 1996 the prosecutor re-formulated the charges against the applicant. From 18 to 19 December 1996 the applicant again had access to the case-file. On 21 December 1996 the bill of indictment was confirmed, and the case was transmitted to the Vilnius Regional Court.", "11. On 13 March 1997 the Vilnius Regional Court, after a directions hearing on 24 January 1997, found that the pre-trial investigation had been conducted improperly as the charges against the applicant had been vague and speculative, and his defence rights had been breached. The Regional Court returned the case to the prosecution for further investigation.", "12. On 26 March 1997 the prosecutor appealed. The appeal was dismissed on 14 May 1997. On 29 October 1997 the prosecutor again charged the applicant, this time with four counts of abuse of office, forgery and cheating. On 1 December 1997 the prosecutor re-formulated the charges. From 3 December 1997 to 23 February 1998 the applicant had access to the case-file. On 23 February 1998 the applicant requested the prosecution to discontinue the case in the absence of any offence. This was rejected on 6 March 1998. On 23 March 1998 a new bill of indictment was confirmed and the case transmitted to the Vilnius Regional Court.", "13. On 19 June, 10 July and 9 to 30 September 1998, the Vilnius Regional Court heard the case. On 30 September 1998 the court found that the charges against the applicant had been vague and speculative, and that the collection of further material evidence was required. The court adjourned the case and applied to the Constitutional Court, requesting it to rule on the compatibility with the Constitution of a number of provisions of the Code of Criminal Procedure pertaining to the investigative nature of judicial functions. On 5 February 1999 the Constitutional Court adopted a decision on the request, returning the case-file to the Regional Court on 8 March 1999.", "14. On 10 May 1999 a prosecutor of the Office of the Prosecutor General charged the applicant for the fifth time, this time with five counts of abuse of office, forgery and cheating. One co-defendant was charged together with the applicant.", "15. On 10 and 19 May 1999 the Vilnius Regional Court adjourned the case because of the absence of the co-defendant. The court heard the case on 28 June and 13 July 1999. On that latter date the Vilnius Regional Court found that the investigation had been conducted improperly as the charges against the applicant had been unclear. The court returned the case to the prosecution for further investigations to be carried out.", "16. On 21 July 1999 the prosecutor appealed. The hearing scheduled for 16 September 1999 did not take place given the absence of the co‑defendant. On 8 October 1999 the Court of Appeal dismissed the appeal.", "17. On 24 November 1999 the Deputy Prosecutor General lodged a cassation appeal against the above decisions, complaining inter alia that the courts had returned the case for further investigation several times by reference to allegedly unclear charges, instead of evaluating the merits of those charges, leading to the applicant’s conviction or acquittal. The prosecutor pleaded that the courts thereby unjustifiably protracted the proceedings and delayed the adoption of a final decision in the case.", "18. On 11 January 2000 the Supreme Court dismissed the appeal. It held that the main reason for returning the case for further investigation was the ambiguity of the charges against the applicant, which interfered with his defence rights and “prevented the adoption of a lawful judgment” on the merits.", "19. On 18 February 2000 the Prosecutor General transmitted the case to a Vilnius regional prosecutor for further investigation. On 18 April 2000 the regional prosecutor informed the applicant that the proceedings against him had been discontinued and the pre-trial investigation had been adjourned because of the absence of an offence with regard to two of the charges against him (Article 5 § 2 of the Code of Criminal Procedure), and a lack of evidence of the applicant’s guilt in respect of the remaining three charges (Article 233 § 2 of the Code of Criminal Procedure). The seizure of his property was lifted on the same date.", "20. The applicant’s appeal against this decision was rejected by another Vilnius regional prosecutor on 26 May 2000. The applicant appealed to the Office of the Prosecutor General, claiming that the proceedings had not been definitively discontinued. On 31 August 2000 a prosecutor of the Office of the Prosecutor General dismissed the appeal, holding that the case had been discontinued in accordance with the relevant domestic requirements. The applicant was also informed that he could apply to a court to challenge the decision of 18 April 2000." ]
[ 3 ]
[ "9. On 15 December 1993 the Koszalin District Court appointed the applicant to the function of a judicial liquidator of a limited liability company H. located in Koszalin.", "10. On 19 March 1994 the insolvency judge M. requested the commercial division of the Koszalin District Court to dismiss the applicant from his function. She submitted that the applicant had been involved in civil proceedings relating to his failure to pay salaries to employees of a company that he owned and that the court had found against him. Therefore he did not comply with the legal requirements that a judicial liquidator had to satisfy since he could not be considered trustworthy. Furthermore, until the end of January 1994 he had failed to give notice to all the employees of the H. company. Consequently, he had not been performing his obligations in a satisfactory manner as required by law.", "11. On 21 March 1994 the Koszalin District Court, at a session held in camera, dismissed the applicant and appointed a new liquidator. The insolvency judge sat on the bench composed of three professional judges that gave this decision. No party to the insolvency proceedings attended the session and the applicant was, likewise, not present, not having been informed of the session or summoned to attend it, as the law did not provide for it.", "12. On 28 March 1994 the applicant appealed against this decision. He submitted that, while it was true that no appeal could be filed against the decision to appoint a new liquidator, the law was not clear as to whether an appeal was available against his dismissal from his function. Furthermore, his good reputation as a lawyer and as an employer had been damaged both by the contents of judge M.’s motion of 19 March 1994 and by his subsequent dismissal. He argued that certain statements in the motion were incorrect as to the facts. Therefore he had to lodge an appeal in order to challenge them. He contested both the allegations that he was untrustworthy and that he had not been carrying out his duties properly. He further submitted that the insolvency judge, considering her own motion for his dismissal, had acted both as a claimant and as a member of the court, which called into question the court’s impartiality.", "13. By a decision of 30 March 1994 the Koszalin District Court rejected the applicant’s appeal. The court considered that the Insolvency Act did not provide for an appeal against a dismissal of the judicial liquidator. Judge M. was entitled to sit on the bench of the commercial court, deciding about the applicant’s dismissal, because the Insolvency Act excluded participation of the insolvency judge in that court only in cases in which an appeal was available against a decision of that judge given in the insolvency proceedings.", "14. The applicant appealed to the Koszalin Regional Court, submitting that the District Court was wrong to hold that there was no appeal against his dismissal. He reiterated that he had been denied a possibility to have the allegations against him reviewed by an impartial court.", "15. On 8 July 1994 the Koszalin Regional Court dismissed the applicant’s appeal, considering that under the Insolvency Act, no appeal was possible against a decision by which a liquidator was dismissed and a new one appointed.", "16. On 29 April 1996 the Słupsk Regional Court convicted the applicant of misappropriation of the H. company’s assets, sentenced him to one year’s imprisonment and stayed the enforcement of the sentence for two years.", "17. On 26 September 1996 the Koszalin Court of Appeal quashed this judgment and ordered that the case be reconsidered.", "18. On 10 March 1997 the Słupsk Regional Court convicted the applicant of misappropriation of the assets of H. company, sentenced him to one year imprisonment and stayed the enforcement of the sentence for a probationary period of one year.", "19. On 16 October 1997 the Gdańsk Court of Appeal upheld this judgment." ]
[ 3 ]
[ "8. The applicant, Krzysztof Iwańczuk, is a Polish national, who was born in 1962. He lives in Brzeg, Poland.", "9. On 12 September 1991 the Wrocław-Krzyki District Prosecutor charged the applicant with forgery of various documents and use of counterfeit documents. On 14 May 1992 the Wrocław-Krzyki District Prosecutor issued a warrant of arrest against the applicant on suspicion of theft. On 22 May 1992 the Wrocław Regional Court dismissed the applicant’s appeal against the warrant of arrest.", "10. On 24 July 1992 the Wrocław Regional Court decided to prolong the applicant’s detention until 15 November 1992. On 21 August 1992 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision.", "11. On 12 September 1992 the Prosecutor charged the applicant with fraud. On 6 November 1992 the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1992. On 18 December 1992 the Wrocław Regional Prosecutor changed the charges laid against the applicant into misappropriation. On 23 December 1992 the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1993.", "12. On 23 February 1993 the Wrocław Regional Court prolonged the applicant’s detention until 15 April 1993. On 18 March 1993 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision.", "13. On 8 April 1993 the bill of indictment against the applicant was submitted to the Wrocław Regional Court. On 30 April 1993 that court prolonged the applicant’s detention for another three months. On 12 May 1993 the applicant appealed against that decision, and on 25 May 1993 completed his appeal by a request to be present at the court’s hearing concerning a further prolongation of his detention.", "14. On 1 July 1993 the applicant requested the court to fix the date for a first hearing. On the same day the Wrocław Court of Appeal dismissed the applicant’s appeal against the prolongation of detention of 30 April 1993.", "15. On 19 September 1993 at 9.30 p.m the applicant requested the prison authorities to allow him to vote in the parliamentary elections, as there were voting facilities for detainees in the Wrocław prison. The prison guard took him to the guards’ room. The applicant was then told by a group of four guards that in order to be allowed to vote he must get undressed and undergo a body search. The applicant took off his clothes except his underwear, whereupon the prison guards allegedly ridiculed him, exchanged humiliating remarks about his body and abused him verbally. The applicant was ordered to strip naked. He refused to do so and repeatedly requested permission to vote without a body search. As this was refused, the applicant was taken back to his cell without being allowed to vote.", "16. A group of other prisoners who requested permission to go to the voting room at approximately 9 p.m. on that day, were also ordered to undergo the body search.", "17. On 20 and 22 September 1993 the first hearing on the merits was held before the Wrocław Regional Court.", "18. On 23 September 1993 the applicant brought an action before the Supreme Court, complaining that his right to vote had been breached in that he had been prevented from voting. He submitted that the requirement to undergo a body search was unjustified as there had not been any indications in his behaviour during the entire period of his detention that he might threaten the safety of other voting prisoners or guards. He complained of humiliation by the prison guards by vulgar comments and verbal abuse in the course of the events complained of. He submitted that there were about ten further guards present in the voting room. It was untenable to claim that he could present any danger to anyone when taken thereto, in particular as it had been ascertained that he could not have had any arms on him.", "19. On 27 October 1993 the Supreme Court dismissed the applicant’s action. The court referred to a note concerning a conversation between the principal prison guard on duty on the material date and the president of the election committee in the prison, relating to the events. This note had been prepared upon a request of the Wrocław Regional Court, following the relevant enquiry of the Supreme Court for assistance in establishing the facts of the case. The Supreme Court noted that, according to the note, the prison guards had stated that the applicant could have a razor hidden on him and threaten the members of the election committee therewith. The court considered that the prison guards had been acting in conformity with the Rules of Detention on Remand of 1989, which provided that \"if such a need arose, a detainee should undergo a search\" and with the 1974 unpublished Ordinance on Prison Security, concerning, inter alia, body search of detainees. It was not certain, noted the court, whether at the material time this regulation had still remained in force, but it could not be held against the guards that they had acted according thereto. Thus it could not be established that on the part of the guards there had been intent to commit an offence, or to abuse their position. The Supreme Court concluded that the events complained of did not violate the applicant’s voting rights.", "20. On 21 December 1993 the Wrocław Regional Court decided to release the applicant on bail of 2,000,000,000 (old) zlotys. Upon the applicant’s appeal, the Wrocław Court of Appeal upheld that decision on 5 January 1994, considering that there was no impediment to the bail being deposited in bonds or as a mortgage.", "21. On 18 January 1994 the Wrocław Regional Court reduced the bail to 1,500,000,000 (old) zlotys. On 28 January 1994 the applicant requested that bail be accepted in the form of a mortgage on his property, and enclosed an estimate of his property made by an expert and an extract from the land register to the effect that he was the owner of the property concerned.", "22. On 17 February 1994 the applicant complained that the Regional Court had failed to take any steps toward implementing its decision of 18 January 1994. He submitted that his detention after this date was unlawful, given that it should have been replaced by bail. He pointed out that he had submitted relevant documents relating to his property.", "23. On 23 February 1994 the Wrocław Regional Court ordered that the bail must be deposited in cash or in State obligations. On 7 March 1994 the Wrocław Regional Court upheld this decision. On 31 April 1994 the Wrocław Court of Appeal quashed the decision relating to the sum of bail. On 19 April 1994 the Wrocław Regional Court lowered the sum of bail to 100,000,000 (old) zlotys in cash and mortgage of 750,000,000 (old) zlotys. On 5 May 1994 the applicant was released.", "24. Hearings fixed for 30 May 1994, 28 July, 15 September, 1 December 1994 and 22 February 1995 were adjourned for unknown reasons. On 15 and 16 March 1995 the accused were heard by the court.", "25. Subsequently, hearings fixed for 6 April, 16 May, 29 June, 7 September and 25 October 1995 were adjourned, also for unknown reasons. Next hearing was held on 14 November 1995 when the court completed the questioning of the accused. Next hearing, fixed for 5 December 1995, was also adjourned. On 16 and 17 January 1996 a hearing was held and certain witnesses were questioned. Hearing fixed for 2 February 1995 was adjourned. At the hearings on 22 February and 13 March 1996 the court questioned further witnesses. Subsequently, further hearings scheduled for 26 March, 11 and 25 April 1996 were adjourned. At the hearing on 20 May 1996 further witnesses were heard. The hearing fixed for 16 July 1996 was adjourned.", "26. At the hearings held on 20 September, 24 October and 7 November 1996 further witnesses gave evidence. Hearings scheduled for 28 November, 19 December 1996, 30 January and 20 February 1997 were adjourned. On 13 March 1997 the court took evidence from further witnesses. Hearing fixed for 3 April 1997 was adjourned.", "27. In 1997 hearings were held on the following dates: 24 April, 15 May, 4 and 19 June, 15 July, 2 September.", "28. In 1998 hearings were held on 17 March, 7 April, 6 May, 10 June, 3 September, 27 October, 24 November and 22 December.", "29. The next hearing was held on 12 January 1999.", "30. During the hearings held in 1997 and 1998 the court heard eleven witnesses.", "31. On 17 November 1999, at the 71st hearing held during the proceedings, the composition of the court changed, and, consequently, hearings in the case had to be recommenced. On 22 December 1999 and 16 February 2000 the court read out the bill of indictment. The date of the next hearing was fixed for 20 March 2000. The proceedings are still pending." ]
[ 1, 2, 3 ]
[ "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. On 14 December 1993 the applicant was arrested by the police. On 16 December 1993 the Starogard Gdański District Prosecutor (Prokurator Rejonowy) charged the applicant with the commission of robbery together with three accomplices and remanded him in custody. The charges related to a brutal assault of a businessman who had been attacked with a baseball bat and tear gas and robbed of 122,864 zlotys.", "10. On 22 February 1994 the Gdańsk Regional Court (Sąd Wojewódzki) decided to extend the applicant’s detention. On 1 March 1994 the applicant appealed against that decision to the Gdańsk Court of Appeal (Sąd Apelacyjny). On 16 March 1994 the appellate court dismissed the appeal. It rejected the applicant’s contention that the Regional Court’s decision referred only in general terms to the reasons justifying his detention. In addition, the appellate court considered that the evidence taken from one of the witnesses gave rise to reasonable suspicion that the applicant had committed the robbery.", "11. On 24 May 1994 the Gdańsk Regional Court decided to extend the applicant’s detention until 1 September 1994. It considered that the evidence showed that the applicant had probably committed the criminal offence with which he was charged. The court pointed out that several pieces of evidence remained to be taken, including the psychiatric examination of the applicant. It also considered that the fact that the investigation in the case was not concluded at that stage could not be attributed to the inactivity of the prosecuting authorities. On 27 May 1994 the applicant appealed to the Gdańsk Court of Appeal against that decision. On 15 June 1994 his appeal was dismissed.", "12. On 29 August 1994 the Gdańsk District Prosecutor filed with the Gdańsk Regional Court a bill of indictment. However, the Regional Court returned it to the District Prosecutor instructing him to elaborate its reasoning.", "13. On 10 November 1994 the Gdańsk Regional Court dismissed an application for release made by the applicant. The court noted, inter alia, that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which constituted a significant danger to society (znaczny stopień społecznego niebezpieczeństwa). It also observed that the applicant’s son was cared for by his cohabitee, who was assisted by her parents and the applicant’s mother. The applicant appealed that decision.", "14. On 15 and 21 November 1994 the applicant applied to the Gdańsk Regional Court for release from detention.", "15. On 28 November 1994 the Gdańsk District Prosecutor re-submitted a bill of indictment to the Gdańsk Regional Court.", "16. On 5 December 1994 the applicant again applied to the Gdańsk Regional Court for release from detention but his application was dismissed on 6 December 1994.", "17. On 14 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 10 November 1994.", "18. The applicant made a fresh application for release but it was on 17 January 1995 dismissed by the Gdańsk Regional Court. The court noted that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which caused the significant danger to society. It also rejected the applicant’s contention that he should be released because he had already spent a long period of time in detention waiting for a hearing and pointed out that a hearing in his case was fixed for 23 February 1995.", "19. On 25 January 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 17 January 1995. The appellate court referred to several pieces of evidence collected in the case, which in its opinion pointed to the applicant’s guilt. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged and observed that, in view of the length of a sentence, which could be imposed on him for the commission of that offence, his detention was not excessively long.", "20. On 23 February 1995 the Gdańsk Regional Court dismissed an application for release made by the applicant. On the same date the first hearing in the case was held. It was adjourned until 24 April 1995.", "21. On 1 March 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 23 February 1995 rejecting his application for release from detention. The appellate court referred, inter alia, to the significant danger to society caused by the criminal offence with which the applicant was charged and the fact that it carried a penalty exceeding five years’ imprisonment. \nThe court further noted that the applicant had not submitted any evidence showing that the situation of his family called for his release. It also pointed out that the length of the proceedings before the Regional Court was excessive. In that connection, the appellate court recalled that a period of three months had elapsed between the date on which the bill of indictment had been submitted to the trial court and the date of the first hearing. In addition, the first hearing had been adjourned for two months and only one day was reserved in the Regional Court’s calendar for the second hearing which, in the appellate court’s opinion, would result in a further adjournment as it would be impossible to take evidence from all four suspects in the case on a single day. The Gdańsk Court of Appeal finally recommended that the proceedings in the case be expedited.", "22. On 24 April 1995 a hearing was held before the trial court.", "23. On 19 May 1995 the Vice-President of the Gdańsk Court of Appeal replied to the applicant’s letter of 8 April 1995 in which he had complained, inter alia, about a delay in the proceedings. The Vice-President advised the applicant that he was not in position to interfere with the proceedings and that only an independent court was competent to decide whether his detention on remand was justified. \nFurthermore, the Vice-President observed that a hearing held on 23 February 1995 had been adjourned because of the absence of counsel. In addition, during a hearing held on 24 April 1995 evidence was taken from the defendants and eight witnesses. The inability to hold hearings at shorter intervals resulted from the heavy workload of judges and the lack of courtrooms. The Vice-President considered that, although the applicant’s case disclosed a certain delay, it was not significant. He also advised the applicant that the President of the Gdańsk Regional Court had been informed about the necessity to expedite proceedings in criminal cases.", "24. The next hearings in the case took place on 25 May and 5 July 1995. The Government submitted that on the latter date the applicant’s cohabitee recanted her testimony and explained that she had been persuaded by the applicant to testify that he had been with her when the robbery had been committed.", "25. On 25 July 1995 the Gdańsk Regional Court rejected as unsubstantiated the applicant’s challenge to one of the judges considering his case.", "26. On 28 September and 16 November 1995 the Regional Court held hearings in the case.", "27. On 16 November 1995 the Gdańsk Regional Court rejected an application for release made by the applicant. On 29 November 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court observed that the proceedings in the applicant’s case had been expedited and that they should end before 21 December 1995. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged.", "28. On 7 and 21 December 1995 hearings in the case took place.", "29. The applicant made a further application for release but it was dismissed on 4 January 1996 by the Gdańsk Regional Court. On 17 January 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court referred, inter alia, to the fact that the evidence collected in the course of the proceedings showed that charges laid against the applicant were sufficiently justified. In addition, the alleged criminal act was drastic and involved the theft of a significant sum of money. The court noted that the proceedings had been recently expedited and pointed out that a hearing scheduled for 24 January 1995 had been adjourned “for objective reasons”. Moreover, the next hearing was fixed for 24 January 1996.", "30. The next hearings were held on 24 January and 2 February 1996.", "31. On 2 February 1996 the Gdańsk Regional Court rejected an application for release lodged by the applicant. On 14 February 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. It considered that the evidence in the case pointed at the applicant and his co-defendants. Furthermore, the court agreed with the applicant’s submission that the proceedings in his case had already taken a significant period of time. However, it considered that, in view of the nature of the charges laid against the applicant, that period was not excessive. The appellate court further noted that only two witnesses remained to be heard in the case.", "32. On 21 March, 9 and 26 April 1996 hearings were held before the Regional Court.", "33. On 28 April 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. On 15 May 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court recalled the significant danger to society caused by the criminal offence with which the applicant was charged. It also pointed out that although the detention had lasted already thirty months, the trial court had not failed to try to expedite the proceedings. In that connection, it observed that five hearings had been held since the beginning of 1996 and that the trial court was not responsible for the failure to conclude the proceedings. Furthermore, the Court of Appeal was of the opinion that the worsening financial situation of the applicant’s family did not constitute a ground for his release and observed that the applicant’s wife was helped by social services.", "34. Between 30 April and 12 July 1996 six hearings took place before the trial court.", "35. On 25 July 1996 the Gdańsk Regional Court rejected an application for release made by the applicant together with his counsel. On unspecified dates the applicant and his counsel lodged separately appeals against that decision.", "36. On 7 August 1996 the Gdańsk Court of Appeal dismissed the appeal lodged by the applicant’s counsel against the Regional Court’s decision of 25 July 1996. The court pointed out that the applicant was charged with a criminal offence, which carried “a heavy load of social harmfulness” (wysoki ładunek społecznej szkodliwości), especially in view of the manner in which it had been committed. Moreover, a severe penalty, which could be imposed for the commission of such an offence, justified the detention. The court also stated that although the judicial proceedings in the case were substantially delayed, they would be probably concluded shortly.", "37. On 28 August 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 25 July 1996. The appellate court referred to the grounds for its decision of 7 August 1996. In addition, it pointed out that the proceedings in the case had reached the final stage, as there had been a hearing fixed for 2 September 1996 and only two witnesses had been called to testify on that date.", "38. On 7 November 1996 a hearing took place.", "39. On 23 November 1996 the Gdańsk Regional Court rejected an application for release made by the applicant.", "40. The next hearings were held on 26 November, 6 and 11 December 1996.", "41. On 30 December 1996 the Gdańsk Regional Court transmitted the case-file to the Supreme Court (Sąd Najwyższy), together with a request that the applicant’s detention on remand be extended.", "42. On 16 January 1997 the Supreme Court decided to extend the applicant’s detention until 30 April 1997. The court firstly observed that there existed in the applicant’s case general legal grounds for detaining him on remand. It considered that, although the question of guilt would be decided by the trial court, the evidence collected in the course of the proceedings pointed towards the applicant’s guilt. \nMoreover, the Supreme Court pointed out that although the proceedings in the case had lasted so far more than three years, they had reached the final stage already in 1995. However, thirteen out of twenty hearings scheduled in 1996 had been adjourned for reasons over which the trial court had no influence. In addition, the counsel acting in the case were responsible for eleven adjournments. The Supreme Court based its decision to extend the applicant’s detention on Article 222 § 4 of the Code of Criminal Procedure which provided for the prolongation of detention because of “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. It also pointed out that the proceedings could end in the near future after just a few additional hearings. Finally, the court recommended that additional defence lawyers be appointed in the case in order to avoid adjournments of hearings caused by the ill-health of counsel.", "43. On 27 and 28 February 1997 hearings were held before the Regional Court.", "44. On 3 March 1997 the Gdańsk Regional Court convicted the applicant of robbery and sentenced him to eight years’ imprisonment, a fine and disenfranchisement for a period of six years. The applicant appealed against that judgment to the Gdańsk Court of Appeal.", "45. On 12 November 1997 a hearing took place before the appellate court.", "46. The next hearing was held on 27 November 1997. The Government asserted that on that occasion one of the most important witnesses testified that the applicant’s mother had put on her pressure to submit false evidence.", "47. On 28 November 1997 the applicant made a new application for release but it was on 3 December 1997 dismissed by the Gdańsk Court of Appeal.", "48. On 5 January 1998 the court received an expert opinion. On 13 January 1998 the applicant’s legal aid counsel asked the court to exempt him from defending the applicant.", "49. On 17 June 1998 the Gdańsk Court of Appeal quashed the judgment of the trial court and remitted the case to the prosecution service instructing it to carry out further investigation. On the same date the applicant was released from detention.", "50. The Government submitted that on 3 December 1998 the victim of the robbery informed the Gdańsk Regional Court that he would not take part in the crime scene reconstruction because he had received threats to his life and family and was therefore afraid of the perpetrators of the crime.", "51. On 17 March 1999 the Starogard Gdański District Prosecutor filed with the Gdańsk Regional Court a new bill of indictment against the applicant.", "52. The hearing held on 30 July 1999 before the Gdańsk Regional Court was adjourned. The Government submitted that the adjournment resulted from the applicant’s failure to attend the hearing.", "53. On 16 August 1999 the applicant withdrew a power of attorney from his counsel.", "54. On 3 September, 8 October and 26 November 1999 hearings took place. On two latter occasions they were adjourned because of the absence of some of the accused.", "55. The next hearings were held on 11 January, 25 February and 24 March 2000. The Government submitted that the first and the third of those hearings were adjourned because the applicant failed to appear before the court. The applicant averred that he attended all hearings except for two occasions, when he was prevented from appearing before the court by ill-health.", "56. The proceedings are still pending." ]
[ 2, 3 ]
[ "10. On 8 November 1993 the applicant commenced employment as an administrative assistant at the United States Embassy in London, in the Foreign Broadcasting Information Service, which is a subsidiary of the Central Intelligence Agency. She was dismissed from her employment in February 1995. Following her dismissal the applicant issued proceedings against the United States Government in the North London Industrial Tribunal, claiming that her dismissal had been the result of sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) of the Sex Discrimination Act 1975 (see paragraph 15 below). In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence. The United States Government defended the claim and did not, at any stage in these proceedings, claim State immunity. On 13 May 1996 the Tribunal upheld the applicant’s complaint. A compensation figure of GBP 12,000 was agreed between the parties.", "11. In June 1995, whilst her first claim in the Industrial Tribunal was still pending, the applicant applied for and obtained a fixed term 12 month contract as an administrative assistant within the Foreign Building Operations section of the Embassy. The contract was due to expire in June 1996. In June 1996 and August 1996 (after the finding in her favour by the Industrial Tribunal), the applicant applied for at least two of the following posts at the Embassy of the United States: secretary with the Office of Foreign Litigation of the United States Department of Justice, temporary secretary with the above office and temporary secretary with the International Marketing Centre, which is operated by the United States Foreign Commercial Service. On each occasion her application was unsuccessful.", "12. On 15 September 1996 the applicant issued a second application before the Industrial Tribunal. She claimed that the refusal of the Embassy to re-employ her in two of the above posts was a consequence of her previous successful sex discrimination claim, and accordingly constituted victimisation and discrimination within the meaning of sections 4 and 6 of the Sex Discrimination Act 1975.", "13. By a letter of 10 January 1997, solicitors acting for the United States notified the Regional Secretary to the Industrial Tribunal that the United States Government intended to claim immunity from the jurisdiction of the Tribunal under sections 1 and 16(1)(a) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 16 below). The letter enclosed an affidavit sworn by the First Secretary at the Embassy, deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the Embassy, and accordingly fell within the ambit of the immunity imposed by section 16(1)(a) of the 1978 Act.", "14. On 6 February 1997 the applicant received the advice of counsel, to the effect that the United States Government were entitled to claim immunity under the 1978 Act, and that once immunity was properly asserted there was no means by which a court or tribunal in the United Kingdom could accept jurisdiction to entertain the application. Accordingly, the applicant was advised that she had no remedy in domestic law. ", "15. The Sex Discrimination Act 1975 (“the 1975 Act”) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex (“sex discrimination”), or by reason of the fact that she has taken or intends to take proceedings against any person under the 1975 Act (“victimisation”).\nSection 1(1) of the Act defines “sex discrimination” as follows:\n“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if: (a)on the ground of her sex he treats her less favourably than he treats or would treat a man ...”\nSection 4(1) of the Act defines “victimisation” as follows:\n“A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has: (a)brought proceedings against the discriminator or any other person under this Act, or ... (d)alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 ...”\nSection 6 of this Act defines the circumstances in which it is unlawful to discriminate against employees and applicants, on the grounds of sex discrimination or victimisation, as follows:\n“(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman: (a)in the arrangements he makes for the purpose of determining who should be offered that employment, or ... (c)by refusing or deliberately omitting to offer her that employment.” \n(2)It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her ... (b)by dismissing her, or subjecting her to any other detriment.”", "16. The United Kingdom’s State Immunity Act 1978 provides, inter alia, as follows:\n“1(1)A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. …4(1)A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. 4(2)Subject to sub-sections (3) and (4) below, this section does not apply if- (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b)at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c)the parties to the contract have otherwise agreed in writing.4(3)Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, sub-section (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State. …16(1)This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and:- (a)Section 4 above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the member of a consular post within the meaning of the Convention scheduled to said Act of 1968. ...”", "17. Article 1 of the Vienna Convention on Diplomatic Relations which is scheduled to the Diplomatic Privileges Act 1964 provides the following definitions:\n“(b)the ‘members of the mission’ are the head of the mission and the members of staff of the mission; (c)the ‘members of staff of the mission’ are the members of diplomatic staff or the administrative and technical staff, and of the service staff of the mission. ...(f)the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission.”", "18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). It entered into force in respect of the United Kingdom on 4 October 1979, and provides, inter alia:\nArticle 5\n“1.A Contracting State cannot claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed in the territory of the State of the forum. 2.Paragraph 1 shall not apply where:(a)the individual is a national of the employing State at the time when the proceedings were brought; (b)at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that State; or (c)the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the Courts of that State have exclusive jurisdiction by reason of the subject-matter. 3.Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2(a) and (b) of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.” \nArticle 32\n“Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”", "19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 11, paragraph 1, that:\n“a State cannot invoke immunity ... in a proceeding which relates to a contract of employment between the State and an individual for work performed in the territory of [the host] State.”\nHowever, this provision is specifically disapplied where “the subject of the proceedings is the recruitment, renewal of employment or reinstatement of the individual” and where “the employee has been recruited to perform functions closely related to the exercise of governmental authority”.\nAlthough there is no explicit reference to employment at diplomatic or consular missions in these provisions, the commentary indicates that the latter exception was intended to apply in such a context and that all employees at such missions would be precluded from bringing suit on the basis of State immunity.", "20. The Committee on State Immunity of the International Law Association adopted in 1982 its Draft Convention on State Immunity, Article IIIC of which dealt with contracts of employment and was similar in its terms to Article 5 of the Basle Convention. An amendment was added to Article IIIC at the ILA’s 1994 conference, providing for immunity to be granted where “the employee was appointed under the public (administrative) law of the foreign state such as, inter alia, members of the mission, diplomatic, consular or military staff”. In the explanatory commentary on the amendment the Committee stated that it wished “to make clear that the employment relationship of any and all diplomatic and consular staff and other members of the mission should be immune from the jurisdiction of the courts of the forum state”." ]
[]
[ "7. The applicant is a police officer (garda). At 11 p.m. on 4 March 1991, when off-duty, the applicant and two passengers, in a private car (described in subsequent police reports as a “jeep”) towing a van on a trailer, crossed from Northern Ireland into Ireland at a United Kingdom permanent vehicle checkpoint in County Derry. Precisely what occurred that night is disputed between the parties. It is not, however disputed that the applicant accidentally drove his car into the checkpoint barrier. The check-point was manned by armed British soldiers, one of whom, a corporal in the British Royal Military Police, approached the applicant after the accident. The Government contend that he asked the applicant to stop and was ignored. The applicant alleges that he did stop and that the soldier then waved him on. In any event, it would appear that the soldier moved towards the car and was hit by the vehicle being towed. He was thrown forward on to the tow-bar and dragged for a short distance until he managed to pull himself up into a standing position on the tow-bar. The applicant maintains that he was unaware of the soldier’s position and continued driving into Ireland. According to the report completed by the Irish Police in April 1991 following their investigation into the incident (see paragraph 9 below), the soldier fired six shots, one of which entered the car’s exhaust pipe, another of which went through the back windscreen and exited through the roof. The Government claim that some, at least, of these shots were fired in Northern Ireland. According to the applicant he heard the shots and, fearing a terrorist attack, continued driving until he reached a police station, where he considered he would be safe. He stopped the car about two miles from the border, in the village of Muff, in County Donegal, Ireland. According to the police report, at this stage the soldier, described by witnesses as in a state of “blind panic”, ordered the applicant and the two passengers to get out of the car and stand against the wall with their hands in the air. The applicant alleges that he turned to face the soldier, intending to explain that he was a police officer and that there was no cause for alarm. Again, according to the applicant, the soldier then aimed his gun at him and pulled the trigger twice, although the shots did not fire because the gun jammed.", "8. The Irish police had been notified of the incident at the border and soon arrived at Muff. The applicant was arrested on suspicion of driving having consumed excess alcohol. He refused to comply with police requests to provide blood and urine samples.", "9. As mentioned above, the Irish Police carried out an inquiry into the incident in the course of which 71 witnesses were interviewed. In his report the investigating officer concluded that the applicant had shown “a regrettable degree of recklessness” in leaving the scene of the accident at the check-point. The report continued:\n“This was a most serious incident and one which could have resulted in the serious injury or death of one or more persons. First of all the soldier was at great risk, had he fallen off the draw-bar. The three occupants of the jeep may well have been shot by [the soldier] or his colleagues at the check-point. The safety of the bystanders at Muff was also put in jeopardy resulting from the presence of the armed and terrified soldier. This matter has been vigorously and thoroughly investigated and the only conceivable reason that I can find that would prompt Garda McElhinney to deliberately leave the scene of the accident would be because he was intoxicated ...”.\nThe applicant was subsequently prosecuted and convicted in Ireland for his refusal to provide blood and urine samples. No disciplinary proceedings were taken against him, but he was transferred to another area.", "10. The applicant alleges that he feared for his life and suffered severe post-traumatic shock as a result of the above incident. On 29 June 1993 he lodged an action in the Irish High Court against the individual soldier and the British Secretary of State for Northern Ireland. He claimed damages, including exemplary and punitive damages, in respect of his allegation that the soldier had wrongfully assaulted him by pointing a loaded gun at him and pulling the trigger.", "11. On 5 November 1993 the United Kingdom Government’s solicitors wrote to the applicant’s solicitors as follows:\n“... The Secretary of State for Northern Ireland bears no responsibility for the actions of the first defendant who is a soldier in the British Armed Forces under the authority of the Secretary of State for Defence in the United Kingdom and accordingly the Secretary of State for Northern Ireland is not a proper defendant to these proceedings. Even if the Secretary of State was the proper defendant, both it and [the soldier] contend that they are exempt from the jurisdiction of the Irish courts on the basis of the doctrine of sovereign immunity. If your client considers that he does have a valid claim there is nothing to prevent him from pursuing it in Northern Ireland against the proper body. ...”\nThe applicant’s solicitors replied in a letter dated 3 December 1993:\n“... We have also sought advice on the issue of foreign sovereign immunity raised by you and have been advised that, in these circumstances, no such immunity would apply. That being so, our client prefers to seek his redress in the courts of this jurisdiction where the incident in question occurred. ...”", "12. On 13 January 1994 the applicant applied for permission to substitute for the second defendant the United Kingdom Secretary of State for Defence. On 21 January 1994 the Secretary of State for Northern Ireland, claiming sovereign immunity, applied for the summons to be set aside.", "13. On 15 April 1994 a High Court judge granted the Secretary of State’s request, on the ground that the applicant was not entitled to bring an action in the Irish courts against a member of a foreign sovereign government.", "14. The applicant appealed, arguing, first, that the doctrine of sovereign immunity did not apply to claims for damages for personal injury caused by torts taking place within the forum State’s jurisdiction. Secondly, he submitted that the principle of reciprocity should apply to prevent the Irish court granting immunity to the United Kingdom in circumstances in which British courts, applying the State Immunity Act 1978, would not grant immunity to Ireland. Thirdly, he put forward the argument that, even if the doctrine of state immunity applied, it should yield in his case since he alleged an infringement of the constitutionally protected right to bodily integrity.", "15. The Supreme Court gave judgment on 15 December 1995, rejecting the applicant’s appeal. The applicant had relied on the Supreme Court’s judgment in Government of Canada v. the Employment Appeals Tribunal (1992) 2 IR 484, but the court held that that judgment was authority only for the proposition that the doctrine of immunity did not apply in respect of commercial or trading activities carried out by a foreign government. The facts alleged by the applicant did not relate to any commercial activity, and it was not established that, as a principle of public international law, immunity no longer applied in respect of personal injuries caused by the tortious act of a foreign State’s servant or agent acting within the sphere of sovereign activity (“de jure imperii”). In his judgment, Chief Justice Hamilton, with whom Justices O’Flaherty and Blayney agreed, observed:\n“There can be no doubt but that the first defendant [the soldier] in carrying out his duties at the said checkpoint was acting within the sphere of governmental or sovereign activity and the acts complained of must be regarded as ‘jure imperii’ even though alleged to have been committed within this jurisdiction. \nIt is submitted on behalf of the plaintiff that, as the acts complained of were tortious and caused personal injuries to him, the principle of foreign sovereign immunity should not apply to such acts and that it was a near-universally recognised principle of international law that claims for personal injuries allegedly inflicted in the forum state by or on behalf of a foreign government constitute an exception to the sovereign immunity principle. In support of such submission, counsel for the plaintiff referred in particular to the United Kingdom State Immunity Act 1978; the Canadian State Immunity Act 1982; the Australian Foreign Sovereign Immunities Act 1985 and the European Convention on State Immunity 1972. ... The plaintiff relies on these statutes as indicative of a recognised principle of public international law. ... Distinction must be drawn between the provisions of legislation in a number of states and the provisions of public international law, and the principles set forth in individual state legislation cannot be regarded as establishing principles of public international law. The provisions of statutes cannot be used as evidence of what international law is: statutes are evidence of the domestic law in the individual states and not evidence of international law generally. Article 11 of the European Convention on State Immunity provides that:- ‘A Contracting Party cannot claim immunity from the jurisdiction of a court of another contracting party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’ I do not have to decide, in the circumstances of this case, whether the terms of the Convention are part of the domestic law of this State because even if it were, the plaintiff’s claim herein would fail by virtue of the terms of Article 31 of the said Convention, which provides that:- ‘Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by, or in relation to its armed forces when on the territory of another Contracting State.’ The terms of Article 31 recognise that, as a matter of international law, immunities and privileges in respect of anything done or omitted to be done by or in relation to armed forces, when on the territory of another Contracting State, exist. ...Despite the Herculean efforts of the plaintiff’s legal advisers in making available to the court copies of all relevant decisions, articles and draft Conventions, and the cogent arguments of counsel, I am not satisfied that it is a principle of public international law that the immunity granted to sovereign states should be restricted by making them liable in respect of tortious acts, committed on their behalf by their servant or agent, causing personal injuries to the person affected by such act or omission, when such act or omission is committed jure imperii and I would dismiss the appeal on this point ...”", "16. The applicant did not pursue his action against the individual soldier who had allegedly assaulted him.\nII.RELEVANT legal materials", "17. In his judgment in the Government of Canada case (cited in paragraph 15 above), Justice Hederman described the position of sovereign immunity in Irish law as follows:\n“The doctrine of sovereign immunity is one of the generally recognised principles of international law, which, by Article 29, s.3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states .... [T]he Oireachtas [the National Parliament] has never sought to qualify or modify this position ...”.", "18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal), but has not been signed or ratified by Ireland. It provides in Article 11:\n“A Contracting Party cannot claim immunity from the jurisdiction of a court of another Contracting Party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred. ”\nArticle 31 of the same Convention provides:\n“Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by or in relation to its armed forces on the territory of another Contracting State.”", "19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 12 that:\n“... a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”\nIn its commentary on that passage, the ILC noted that the “physical injury ... appears to be confined to insurable risks. The areas of damage envisaged in Article 12 are mainly concerned with accidental death or physical injuries to persons ... involved in traffic accidents ... Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals.”" ]
[]
[ "9. The applicant made the following allegations concerning the events underlying the dispute he submitted to the English courts. The Government stated that they were not in a position to comment on the accuracy of these claims.", "10. The applicant, who is a trained pilot, went to Kuwait in 1991 to assist in its defence against Iraq. During the Gulf War he served as a member of the Kuwaiti Air Force and, after the Iraqi invasion, he remained behind as a member of the resistance movement. During that period he came into possession of sex videotapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to the Emir of Kuwait and is said to have an influential position in Kuwait. By some means these tapes entered general circulation, for which the applicant was held responsible by the Sheikh.", "11. After the Iraqi armed forces were expelled from Kuwait, on or about 2 May 1991, the Sheikh and two others gained entry to the applicant’s house, beat him and took him at gunpoint in a government jeep to the Kuwaiti State Security Prison. The applicant was falsely imprisoned there for several days during which he was repeatedly beaten by security guards. He was released on 5 May 1991, having been forced to sign a false confession.", "12. On or about 7 May 1991 the Sheikh took the applicant at gunpoint in a government car to the palace of the Emir of Kuwait’s brother. At first the applicant’s head was repeatedly held underwater in a swimming-pool containing corpses, and he was then dragged into a small room where the Sheikh set fire to mattresses soaked in petrol, as a result of which the applicant was seriously burnt.", "13. Initially the applicant was treated in a Kuwaiti hospital, and on 17 May 1991 he returned to England where he spent six weeks in hospital being treated for burns covering 25% of his total body surface area. He also suffered psychological damage and has been diagnosed as suffering from a severe form of post-traumatic stress disorder, aggravated by the fact that, once in England, he received threats warning him not to take action or give publicity to his plight.", "14. On 29 August 1992 the applicant instituted civil proceedings in England for compensation against the Sheikh and the State of Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991. On 15 December 1992 he obtained a default judgment against the Sheikh.", "15. The proceedings were re-issued after an amendment to include two named individuals as defendants. On 8 July 1993 a deputy High Court judge ex parte gave the applicant leave to serve the proceedings on the individual defendants. This decision was confirmed in chambers on 2 August 1993. He was not, however, granted leave to serve the writ on the State of Kuwait.", "16. The applicant submitted a renewed application to the Court of Appeal, which was heard ex parte on 21 January 1994. Judgment was delivered the same day. \nThe court held, on the basis of the applicant’s allegations, that there were three elements pointing towards State responsibility for the events in Kuwait: firstly, the applicant had been taken to a State prison; secondly, government transport had been used on 2 and 7 May 1991; and, thirdly, in the prison he had been mistreated by public officials. It found that the applicant had established a good arguable case, based on principles of international law, that Kuwait should not be afforded immunity under section 1(1) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 21 below) in respect of acts of torture. In addition, there was medical evidence indicating that the applicant had suffered damage (post-traumatic stress) while in the United Kingdom. It followed that the conditions in Order 11 rule 1(f) of the Rules of the Supreme Court had been satisfied (see paragraph 20 below) and that leave should be granted to serve the writ on the State of Kuwait.", "17. The Kuwaiti government, after receiving the writ, sought an order striking out the proceedings. The application was examined inter partes by the High Court on 15 March 1995. In a judgment delivered the same day the court held that it was for the applicant to show on the balance of probabilities that the State of Kuwait was not entitled to immunity under the 1978 Act. It was prepared provisionally to accept that the Government were vicariously responsible for conduct that would qualify as torture under international law. However, international law could be used only to assist in interpreting lacunae or ambiguities in a statute, and when the terms of a statute were clear, the statute had to prevail over international law. The clear language of the 1978 Act bestowed immunity upon sovereign States for acts committed outside the jurisdiction and, by making express provision for exceptions, it excluded as a matter of construction implied exceptions. As a result, there was no room for an implied exception for acts of torture in section 1(1) of the 1978 Act. Moreover, the court was not satisfied on the balance of probabilities that the State of Kuwait was responsible for the threats made to the applicant after 17 May 1991. As a result, the exception provided for by section 5 of the 1978 Act could not apply. It followed that the action against the State should be struck out.", "18. The applicant appealed and the Court of Appeal examined the case on 12 March 1996. The court held that the applicant had not established on the balance of probabilities that the State of Kuwait was responsible for the threats made in the United Kingdom. The important question was, therefore, whether State immunity applied in respect of the alleged events in Kuwait. Lord Justice Stuart-Smith finding against the applicant, observed:\n“Jurisdiction of the English court in respect of foreign States is governed by the State Immunity Act 1978. Section 1(1) provides:\n‘A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. ...’\n... The only relevant exception is section 5, which provides:\n‘A State is not immune as respects proceedings in respect of\n(a) death or personal injury ... caused by an act or omission in the United Kingdom.’\nIt is plain that the events in Kuwait do not fall within the exception in section 5, and the express words of section 1 provide immunity to the First Defendant. Despite this, in what [counsel] for the Plaintiff acknowledges is a bold submission, he contends that that section must be read subject to the implication that the State is only granted immunity if it is acting within the Law of Nations. So that the section reads: ‘A State acting within the Law of Nations is immune from jurisdiction except as provided ...’\n... The argument is ... that international law against torture is so fundamental that it is a jus cogens, or compelling law, which overrides all other principles of international law, including the well-established principles of sovereign immunity. No authority is cited for this proposition. ... At common law, a sovereign State could not be sued at all against its will in the courts of this country. The 1978 Act, by the exceptions therein set out, marks substantial inroads into this principle. It is inconceivable, it seems to me, that the draughtsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification.\nMoreover, authority in the United States at the highest level is completely contrary to [counsel for the applicant’s] submission. [Lord Justice Stuart-Smith referred to the judgments of the United States courts, Argentine Republic v. Amerada Hess Shipping Corporation and Siderman de Blake v. Republic of Argentina, cited in paragraph 23 below, in both of which the court rejected the argument that there was an implied exception to the rule of State immunity where the State acted contrary to the Law of Nations.] ... [Counsel] submits that we should not follow the highly persuasive judgments of the American courts. I cannot agree. \n... A moment’s reflection is enough to show that the practical consequences of the Plaintiff’s submission would be dire. The courts in the United Kingdom are open to all who seek their help, whether they are British citizens or not. A vast number of people come to this country each year seeking refuge and asylum, and many of these allege that they have been tortured in the country whence they came. Some of these claims are no doubt justified, others are more doubtful. Those who are presently charged with the responsibility for deciding whether applicants are genuine refugees have a difficult enough task, but at least they know much of the background and surrounding circumstances against which the claim is made. The court would be in no such position. The foreign States would be unlikely to submit to the jurisdiction of the United Kingdom court, and in its absence the court would have no means of testing the claim or making a just determination. ...”\nThe other two members of the Court of Appeal, Lord Justice Ward and Mr Justice Buckley, also rejected the applicant’s claim. Lord Justice Ward commented that “there may be no international forum (other than the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn) where this terrible, if established, wrong can receive civil redress”.", "19. On 27 November 1996 the applicant was refused leave to appeal by the House of Lords. His attempts to obtain compensation from the Kuwaiti authorities via diplomatic channels have proved unsuccessful.", "20. There is no rule under English law requiring a plaintiff to be resident in the United Kingdom or to be a British national before the English courts can assert jurisdiction over civil wrongs committed abroad. Under the rules in force at the time the applicant issued proceedings, the writ could be served outside the territorial jurisdiction with the leave of the court when the claim fell within one or more of the categories set out in order 11, Rule 1 of the Rules of the Supreme Court. For present purposes only Rule 1(f) is relevant:\n“... service of a writ out of the jurisdiction is permissible with the leave of the court if, in the action begun by the writ,\n...\n(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction ...”", "21. The relevant parts of the State Immunity Act 1978 provide:\n \n“1. (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. \n... 5. A State is not immune as regards proceedings in respect of- \n(a) death or personal injury; \n...\ncaused by an act or omission in the United Kingdom ...”", "22. The above provision (section 5 of the 1978 Act) was enacted to implement the 1972 European Convention on State Immunity (“the Basle Convention”), a Council of Europe instrument, which entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). Article 11 of the Convention provides:\n“A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.”\nArticle 15 of the Basle Convention provides that a Contracting State shall be entitled to immunity if the proceedings do not fall within the stated exceptions.", "23. In its Report on Jurisdictional Immunities of States and their Property (1999), the working group of the International Law Commission (ILC) found that over the preceding decade a number of civil claims had been brought in municipal courts, particularly in the United States and United Kingdom, against foreign governments, arising out of acts of torture committed not in the territory of the forum State but in the territory of the defendant and other States. The working group of the ILC found that national courts had in some cases shown sympathy for the argument that States are not entitled to plead immunity where there has been a violation of human rights norms with the character of jus cogens, although in most cases the plea of sovereign immunity had succeeded. The working group cited the following cases in this connection: (United Kingdom) Al-Adsani v. State of Kuwait 100 International Law Reports 465 at 471; (New Zealand) Controller and Auditor General v. Sir Ronald Davidson [1996] 2 New Zealand Law Reports 278, particularly at 290 (per Cooke P.); Dissenting Opinion of Justice Wald in (United States) Princz v. Federal Republic of Germany 26 F 3d 1166 (DC Cir. 1994) at 1176-1185; Siderman de Blake v. Republic of Argentina 965 F 2d 699 (9th Cir. 1992); Argentine Republic v. Amerada Hess Shipping Corporation 488 US 428 (1989); Saudi Arabia v. Nelson 100 International Law Reports 544.", "24. The working group of the ILC did, however, note two recent developments which it considered gave support to the argument that a State could not plead immunity in respect of gross human rights violations. One of these was the House of Lords’ judgment in ex parte Pinochet (No. 3) (see paragraph 34 below). The other was the amendment by the United States of its Foreign Sovereign Immunities Act (FSIA) to include a new exception to immunity. This exception, introduced by section 221 of the Anti-Terrorism and Effective Death Penalty Act of 1996, applies in respect of a claim for damages for personal injury or death caused by an act of torture, extra-judicial killing, aircraft sabotage or hostage-taking, against a State designated by the Secretary of State as a sponsor of terrorism, where the claimant or victim was a national of the United States at the time the act occurred. \nIn its judgment in Flatow v. the Islamic Republic of Iran and Others (76 F. Supp. 2d 16, 18 (D.D.C. 1999)), the District Court for the District of Columbia confirmed that the property of a foreign State was immune from attachment or execution, unless the case fell within one of the statutory exceptions, for example that the property was used for commercial activity.", "25. The Kuwaiti Constitution provides in Article 31 that “No person shall be put to torture”.", "26. Article 5 of the Universal Declaration of Human Rights 1948 states:\n“No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”", "27. Article 7 of the International Covenant on Civil and Political Rights 1966 states as relevant:\n“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”", "28. The United Nations 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment provides in Article 3 that:\n“No State may permit or tolerate torture and other cruel inhuman or degrading treatment or punishment.”", "29. In the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted on 10 December 1984 (“the UN Convention”), torture is defined as:\n“For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”\nThe UN Convention requires by Article 2 that each State Party is to take effective legislative, administrative, judicial or other measures to prevent torture in any territory under its jurisdiction, and by Article 4 that all acts of torture be made offences under each State’s criminal law.", "30. In its judgment in Prosecutor v. Furundzija (10 December 1998, case no. IT-95-17/I-T, (1999) 38 International Legal Materials 317), the International Criminal Tribunal for the Former Yugoslavia observed as follows:\n“144. It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency ... This is linked to the fact, discussed below, that the prohibition on torture is a peremptory norm or jus cogens. ... This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. 145. These treaty provisions impose upon States the obligation to prohibit and punish torture, as well as to refrain from engaging in torture through their officials. In international human rights law, which deals with State responsibility rather than individual criminal responsibility, torture is prohibited as a criminal offence to be punished under national law; in addition, all States parties to the relevant treaties have been granted, and are obliged to exercise, jurisdiction to investigate, prosecute and punish offenders. ... 146. The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left. 147. There exists today universal revulsion against torture ... . This revulsion, as well as the importance States attach to the eradication of torture, has led to a cluster of treaty and customary rules on torture acquiring a particularly high status in the international, normative system. \n... 151. ... the prohibition of torture imposes on States obligations erga omnes, that is, obligations owed towards all the other members of the international community. \n... 153. ... the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special or even general customary rules not endowed with the same normative force. 154. Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. ...”", "31. Similar statements were made in Prosecutor v. Delacic and Others (16 November 1998, case no. IT-96-21-T, § 454) and in Prosecutor v. Kunarac (22 February 2001, case nos. IT-96-23-T and IT-96-23/1, § 466).", "32. The United Kingdom ratified the UN Convention with effect from 8 December 1988.", "33. Section 134 of the Criminal Justice Act 1988, which entered into force on 29 September 1988, made torture, wherever committed, a criminal offence under United Kingdom law triable in the United Kingdom.", "34. In its Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), judgment of 24 March 1999 [2000] Appeal Cases 147, the House of Lords held that the former President of Chile, Senator Pinochet, could be extradited to Spain in respect of charges which concerned conduct that was criminal in the United Kingdom at the time when it was allegedly committed. The majority of the Law Lords considered that extraterritorial torture did not become a crime in the United Kingdom until section 134 of the Criminal Justice Act 1988 came into effect. The majority considered that although under Part II of the State Immunity Act 1978 a former head of State enjoyed immunity from the criminal jurisdiction of the United Kingdom for acts done in his official capacity, torture was an international crime and prohibited by jus cogens (peremptory norms of international law). The coming into force of the UN Convention (see paragraph 29 above) had created a universal criminal jurisdiction in all the Contracting States in respect of acts of torture by public officials, and the States Parties could not have intended that an immunity for ex-heads of State for official acts of torture would survive their ratification of the UN Convention. The House of Lords (and, in particular, Lord Millett, at p. 278) made clear that their findings as to immunity ratione materiae from criminal jurisdiction did not affect the immunity ratione personae of foreign sovereign States from civil jurisdiction in respect of acts of torture." ]
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[ "7. In 1925 the Greek State occupied an olive grove of a total area of 3,877,000 sq. m in Chalkidiki (northern Greece) and assigned it to the Refugees’ Relief Committee (Επιτροπή Περιθάλψεως Προσφύγων) with a view to settling refugees from Asia Minor there following the mandatory exchange of populations with Turkey under the 1923 Treaty of Lausanne. The land was occupied without any compensation being paid to the owners of the olive grove, of whom the applicants are the heirs. The basis for the occupation was a government ordinance of 14 February 1923 authorising the expropriation and occupation of land before any compensation was paid to its owners. The ordinance was subsequently ratified by a constitutional resolution of 15 September 1924; its content was also incorporated into Article 119 of the 1927 Constitution.", "8. On 21 August 1933, by decision no. 81/1933 of the Expropriations Committee of Chalkidiki (Επιτροπή Απαλλοτριώσεων Χαλκιδικής), the Greek State expropriated the land in question.", "9. On 8 December 1933 the applicants lodged an application with the appropriate courts for compensation owed them by the State, which had in the meantime taken over from the Refugees’ Relief Committee. Following that application the following judgments, among others, were delivered:\n(i) interlocutory decision (προδικαστική) no. 28/1934 of the Chalkidiki Court of First Instance ordering a number of expert assessments;\n(ii) final decision no. 28/1936 of the Chalkidiki Court of First Instance assessing the final unit amount of compensation at 2,008 drachmas (GRD) per square metre; the parties appealed against that decision;\n(iii) interlocutory judgment no. 54/1938 of the Salonika Court of Appeal setting aside the decision and ordering the parties to produce supplementary evidence;\n(iv) decision no. 4/1939 of the President of the Chalkidiki Court of First Instance recognising that the applicants were entitled to the compensation assessed;\n(v) judgment no. 155/1939 of the Salonika Court of Appeal quashing judgment no. 54/1938 and ordering the case to be remitted to the Chalkidiki Court of First Instance;\n(vi) decision no. 89/1940 of the Chalkidiki Court of First Instance assessing the final unit amount of compensation at GRD 2,720 per square metre; the parties appealed against that decision, but the hearing was not held until 23 January 1961; in the meantime, on 29 April 1959, the applicants had lodged a further application with the Court of Appeal for an assessment of the compensation amount; \n(vii) judgment no. 96/1961 of the Salonika Court of Appeal ordering a fresh expert assessment, which was begun in 1971 and completed in 1977; at a hearing on 13 February 1979 the applicants claimed GRD 110,000 per square metre and the State raised an objection on the ground that their right to compensation had lapsed;\n(viii) interlocutory judgment no. 654/1979 of the Salonika Court of Appeal dismissing the objection raised by the State and ordering the applicants to justify their assessment of the value of their land;\n(ix) judgment no. 1718/1981 of the Salonika Court of Appeal dismissing a further objection raised by the State that the right to compensation had lapsed and assessing the final unit amount of compensation at GRD 50,000 to GRD 180,000 per square metre; the State lodged an appeal on points of law against that judgment, raising the same objection again;\n(x) judgment no. 1305/1983 of the Third Division of the Court of Cassation, setting aside the Court of Appeal’s judgment on procedural grounds and remitting the case to the Fourth Division; subsequently, on 12 December 1983, the applicants lodged a fresh application with that court for a compensation amount to be assessed;\n(xi) judgment no. 1684/1984 of the Fourth Division of the Court of Cassation ordering the case to be remitted to the Chalkidiki Court of First Instance to determine the merits of the applications lodged by the applicants on 29 April 1959 and 12 December 1983.", "10. On 29 June 1988 the applicants resumed the proceedings before the Chalkidiki Court of First Instance. They also lodged a further application for a final unit amount of compensation to be assessed. They sought GRD 400 per square metre. In its observations in reply of 20 March 1989, the State pleaded again that the applicants’ right to compensation had lapsed.", "11. A hearing was held on 22 March 1989. On 22 May 1989 the court ordered the applicants to justify their assessment of the value of their land. On 21 November 1991 the applicants requested the judge rapporteur to set a date for the hearing of witnesses. An expert assessment was also carried out.", "12. On 28 February 1992 the applicants asked the court to set a hearing date. The hearing was held on 7 October 1992.", "13. On 4 December 1992 the court decided to adjourn its examination of the case on the ground that an investigative measure (αυτοψία) had not been carried out (decision no. 239/1992).", "14. On 16 June 1994 the applicants asked the court to fix a hearing date. The hearing was held on 1 September 1994.", "15. On 24 October 1994 the Chalkidiki Court of First Instance dismissed as unfounded the objection raised by the State that the applicants’ right to compensation had lapsed and determined the final unit amount of compensation at GRD 395 per square metre (decision no. 233/1994).", "16. On 4 January 1995 the State lodged an appeal against that decision. It again raised the same objection.", "17. On 17 July 1995 the Salonika Court of Appeal set aside decision no. 233/1994 on the ground that the lower court had incorrectly dismissed the objection raised by the State that the applicants’ claim was statute-barred. Indeed, the Court of Appeal considered that the applicants’ right to compensation had lapsed since at least 1971. Giving judgment on the merits, it dismissed the applicants’ application of 29 June 1988 on the ground that as their claim was statute-barred, they no longer had locus standi (judgment no. 3156/1995).", "18. On 6 December 1995 the applicants lodged an appeal on points of law. In their statement of grounds of appeal they submitted that the Court of Appeal had misinterpreted the facts and the constitutional and legislative provisions relating to the limitation of actions, and had wrongly assessed the evidence. They added that, in any event, the objection had already been dismissed by judgments nos. 654/1979 and 1718/1981 of the Salonika Court of Appeal. The applicants stressed, lastly, that they had never received any compensation for the expropriation of their land and that the objection now raised against them contravened the principle of good faith and infringed in particular their right to peaceful enjoyment of their possessions.", "19. On 15 July 1997 the Court of Cassation, after examining all the grounds of appeal on points of law submitted by the applicants, dismissed their appeal on the ground that it was ill-founded (judgment no. 1302/1997)." ]
[ 3, 9 ]
[ "8. The applicant was an accountant by profession. He retired in 1998. On 2 April 1986 the Chamber of Accountants instituted disciplinary proceedings against the applicant. Subsequently, the proceedings were adjourned having regard to criminal proceedings pending against the applicant.", "9. On 14 April 1986 the applicant was convicted of aggravated fraud by the Vienna Regional Criminal Court (Landesgericht für Strafsachen), which conviction was confirmed by the Supreme Court (Oberster Gerichtshof) on 3 October 1988. By the end of 1990 the file relating to the criminal proceedings reached the Disciplinary Court and on 8 November 1991 the hearing date was set down for 8 May 1992.", "10. On 8 May 1992 the Disciplinary Court of the Chamber of Accountants, having regard to the applicant’s conviction, found that he had infringed the profession’s reputation and ordered the suspension of the applicant’s right to practise for one year.", "11. On 19 October 1992 the applicant appealed this decision. On 7 May 1993 the Appeals Board dismissed the appeal stating that the suspension should last for one year. This decision was served on 30 January 1995.", "12. On 15 March 1995 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant’s complaint and transferred the case to the Administrative Court (Verwaltungsgerichtshof).", "13. On 30 March 1995 the Chamber of Accountants declared the suspension to be effective from 31 January 1995 to 30 January 1996.", "14. On 17 May 1995 the Administrative Court granted the applicant’s complaint suspensive effect. On 28 February 1997 it dismissed the complaint. The decision was served on 22 March 1997." ]
[ 3 ]
[ "9. The first applicant, the Metropolitan Church of Bessarabia, is an autonomous Orthodox Church having canonical jurisdiction in the territory of the Republic of Moldova. The other applicants are Moldovan nationals who are members of the eparchic council of the first applicant. They are: Mr Petru Păduraru, Archbishop of Chişinău, Metropolitan of Bessarabia and living in Chişinău; Mr Petru Buburuz, prosyncellus, living in Chişinău; Mr Ioan Eşanu, protosyncellus, living in Călăraşi; Mr Victor Rusu, protopresbyter, living in Lipnic, Ocniţa; Mr Anatol Goncear, a priest living in Zubreşti, Străşeni; Mr Valeriu Cernei, a priest living in Sloveanca, Sângerei; Mr Gheorghe Ioniţă, a priest living in Crasnoarmeisc, Hânceşti; Mr Valeriu Matciac, a priest living in Chişinău; Mr Vlad Cubreacov, member of the Moldovan parliament and of the Parliamentary Assembly of the Council of Europe, and living in Chişinău, Mr Anatol Telembici, living in Chişinău; and Mr Alexandru Magola, Chancellor of the Metropolitan Church of Bessarabia, living in Chişinău.", "10. On 14 September 1992 the applicant natural persons joined together to form the applicant Church – the Metropolitan Church of Bessarabia – a local, autonomous Orthodox Church. According to its articles of association, it took the place, from the canon-law point of view, of the Metropolitan Church of Bessarabia which had existed until 1944.\nIn December 1992 it was attached to the patriarchate of Bucharest.", "11. The Metropolitan Church of Bessarabia adopted articles of association which determined, among other matters, the composition and administration of its organs, the training, recruitment and disciplinary supervision of its clergy, the ecclesiastical hierarchy and rules concerning its assets. In the preamble to the articles of association the principles governing the organisation and operation of the applicant Church are defined as follows:\n“The Metropolitan Church of Bessarabia is a local, autonomous Orthodox Church attached to the patriarchate of Bucharest. The traditional ecclesiastical denomination ‘Metropolitan Church of Bessarabia’ is of a historically conventional nature and has no link with current or previous political situations. The Metropolitan Church of Bessarabia has no political activities and will have none in future. It shall carry on its work in the territory of the Republic of Moldova. The Metropolitan Church of Bessarabia shall have the status of an exarchate of the country. According to canon law, communities of the Moldovan diaspora may also become members. No charge shall be made for the accession of individual members and communities living abroad.\nIn the context of its activity in the Republic of Moldova, it shall respect the laws of the State and international human rights law. Communities abroad which have adhered for the purposes of canon law to the Metropolitan Church of Bessarabia shall establish relations with the authorities of the States concerned, complying with their legislation and the relevant provisions of international law. The Metropolitan Church of Bessarabia shall cooperate with the authorities of the State in the sphere of culture, education and social assistance. The Metropolitan Church of Bessarabia does not make any claim of an economic or any other kind against other Churches or religious organisations. The Metropolitan Church of Bessarabia maintains ecumenical relations with other Churches and religious movements and considers that fraternal dialogue is the only proper form of relationship between Churches.\nPriests of the Metropolitan Church of Bessarabia working in Moldovan territory shall be Moldovan citizens. When nationals of foreign States are invited to come to Moldova to carry on a religious activity or citizens of the Republic of Moldova are sent abroad for the same purpose, the legislation in force must be complied with.\nMembers of the Metropolitan Church of Bessarabia shall be citizens of the Republic of Moldova who have joined together on a voluntary basis to practise their religion in common, in accordance with their own convictions, and on the basis of the precepts of the Gospel, the Apostolic Canons, Orthodox canon law and Holy Tradition.\nReligious services held in all the communities of the Metropolitan Church of Bessarabia shall include special prayers for the authorities and institutions of the State, couched in the following terms: ‘We pray, as always, for our country, the Republic of Moldova, for its leaders and for its army. May God protect them and grant them peaceful and honest lives, spent in obedience to the canons of the Church.’ ”", "12. To date, the Metropolitan Church of Bessarabia has established 117 communities in Moldovan territory, three communities in Ukraine, one in Lithuania, one in Latvia, two in the Russian Federation and one in Estonia. The communities in Latvia and Lithuania have been recognised by the State authorities and have legal personality.\nNearly one million Moldovan nationals are affiliated to the applicant Church, which has more than 160 clergy.\nThe Metropolitan Church of Bessarabia is recognised by all the Orthodox patriarchates with the exception of the patriarchate of Moscow.", "13. Pursuant to the Religious Denominations Act (Law no. 979-XII of 24 March 1992), which requires religious denominations active in Moldovan territory to be recognised by means of a government decision, the applicant Church applied for recognition on 8 October 1992. It received no reply.", "14. It made further applications on 25 January and 8 February 1995. On a date which has not been specified the Religious Affairs Department refused these applications.", "15. On 8 August 1995 the applicant Petru Păduraru, relying on Article 235 of the Code of Civil Procedure (which governs judicial review of administrative acts contrary to recognised rights), brought civil proceedings against the government in the Court of First Instance of the Buiucani district of Chişinău. He asked for the decisions refusing to recognise the applicant Church to be set aside. The court ruled in his favour and, on 12 September 1995, ordered recognition of the Metropolitan Church of Bessarabia.", "16. On 15 September 1995 the Buiucani public prosecutor appealed against the Buiucani Court of First Instance’s decision of 12 September 1995.", "17. On 18 October 1995 the Supreme Court of Justice set aside the decision of 12 September 1995 on the ground that the courts did not have jurisdiction to consider the applicant Church’s application for recognition.", "18. On 13 March 1996 the applicant Church filed a fresh application for recognition with the government. On 24 May 1996, having received no reply, the applicants brought civil proceedings against the government in the Chişinău Court of First Instance, seeking recognition of the Metropolitan Church of Bessarabia. On 19 July 1996 that court gave judgment against the applicants.", "19. On 20 August 1996 the applicants again filed an application for recognition, which went unanswered.", "20. The applicants appealed to the Chişinău Municipal Court (Tribunal municipiului) against the judgment of 19 July 1996. In a judgment of 21 May 1997, against which no appeal lay, the Municipal Court quashed the impugned judgment and allowed the applicants’ claim.", "21. However, following a reform of the Moldovan judicial system, the file was sent to the Moldovan Court of Appeal for trial de novo.", "22. On 4 March 1997 the applicants again applied to the government for recognition. On 4 June 1997, not having received any reply, they referred the matter to the Court of Appeal, seeking recognition of the Metropolitan Church of Bessarabia, relying on their freedom of conscience and freedom of association for the purpose of practising their religion. The resulting action was joined to the case already pending before the Court of Appeal.", "23. In the Court of Appeal the government alleged that the case concerned an ecclesiastical conflict within the Orthodox Church in Moldova (the Metropolitan Church of Moldova), which could be resolved only by the Romanian and Russian Orthodox Churches, and that any recognition of the Metropolitan Church of Bessarabia would provoke conflicts in the Orthodox community.", "24. The Court of Appeal allowed the applicants’ claim in a decision of 19 August 1997. It pointed out, firstly, that Article 31 §§ 1 and 2 of the Moldovan Constitution guaranteed freedom of conscience and that that freedom should be exercised in a spirit of tolerance and respect for others. In addition, the various denominations were free to organise themselves according to their articles of association, subject to compliance with the laws of the Republic. Secondly, it noted that from 8 October 1992 the applicant Church, acting pursuant to sections 14 and 15 of the Religious Denominations Act, had filed with the government a number of applications for recognition, but that no reply had been forthcoming. By a letter of 19 July 1995 the Prime Minister had informed the applicants that the government could not consider the application of the Metropolitan Church of Bessarabia without interfering with the activity of the Metropolitan Church of Moldova. The Court of Appeal further noted that while the applicant Church’s application for recognition had been ignored, the Metropolitan Church of Moldova had been recognised by the government on 7 February 1993, as an eparchy dependent on the patriarchate of Moscow.\nThe Court of Appeal dismissed the government’s argument that recognition of the Metropolitan Church of Moldova made it possible to satisfy the wishes of all Orthodox believers. It pointed out that the term denomination was not to be reserved for catholicism or orthodoxy, but should embrace all faiths and various manifestations of religious feelings by their adherents, in the form of prayers, ritual, religious services or divine worship. It noted that from the point of view of canon law the Metropolitan Church of Moldova was part of the Russian Orthodox Church and therefore dependent on the patriarchate of Moscow, whereas the Metropolitan Church of Bessarabia was attached to the Romanian Orthodox Church and therefore dependent on the patriarchate of Bucharest.\nThe Court of Appeal held that the government’s refusal to recognise the applicant Church was contrary to the freedom of religion, as guaranteed not only by the Religious Denominations Act but also by Article 18 of the Universal Declaration of Human Rights, Article 5 of the International Covenant on Economic, Social and Cultural Rights and Article 18 of the International Covenant on Civil and Political Rights, to all of which Moldova was party. Noting that the representative of the government had taken the view that the applicant Church’s articles of association complied with domestic legislation, the Court of Appeal ordered the government to recognise the Metropolitan Church of Bessarabia and to ratify its articles of association.", "25. The government appealed against the above decision on the ground that the courts did not have jurisdiction to try such a case.", "26. In a judgment of 9 December 1997 the Supreme Court of Justice set aside the decision of 19 August 1997 and dismissed the applicants’ action on the grounds that it was out of time and manifestly ill-founded.\nIt noted that, according to Article 238 of the Code of Civil Procedure, one month was allowed for an appeal against a government decision alleged to infringe a recognised right. The time allowed began to run either on the date of the decision announcing the government’s refusal or, if the they did not reply, one month after the lodging of the application. The Supreme Court of Justice noted that the applicants had submitted their application to the government on 4 March 1997 and lodged their appeal on 4 June 1997; it accordingly ruled their action out of time.\nIt went on to say that, in any event, the government’s refusal of the applicants’ application had not infringed their freedom of religion as guaranteed by international treaties, and in particular by Article 9 of the European Convention on Human Rights, because they were Orthodox Christians and could manifest their beliefs within the Metropolitan Church of Moldova, which the government had recognised by a decision of 7 February 1993.\nThe Supreme Court of Justice considered that the case was simply an administrative dispute within a single Church, which could be settled only by the Metropolitan Church of Moldova, since any interference by the State in the matter might aggravate the situation. It held that the State’s refusal to intervene in this conflict was compatible with Article 9 § 2 of the European Convention on Human Rights.\nLastly, it noted that the applicants could manifest their beliefs freely, that they had access to Churches and that they had not adduced evidence of any obstacle whatsoever to the practice of their religion.", "27. On 15 March 1999 the applicants again applied to the government for recognition.", "28. By a letter dated 20 July 1999 the Prime Minister refused on the ground that the Metropolitan Church of Bessarabia was not a religious denomination in the legal sense but a schismatic group within the Metropolitan Church of Moldova.\nHe informed the applicants that the government would not allow their application until a religious solution to the conflict had been found, following the negotiations in progress between the patriarchates of Russia and Romania.", "29. On 10 January 2000 the applicants lodged a further application for recognition with the government. The Court has not been informed of the outcome of that application.", "30. Since the adoption of the Religious Denominations Act, the government has recognised a number of denominations, some of which are listed below.\nOn 7 February 1993 the government ratified the articles of association of the Metropolitan Church of Moldova, attached to the patriarchate of Moscow. On 28 August 1995 it recognised the Orthodox Eparchy of the Old Christian Liturgy of Chişinău, attached to the Russian Orthodox Church of the Old Liturgy, whose head office was in Moscow.\nOn 22 July 1993 the government recognised the “Seventh-Day Adventist Church”. On 19 July 1994 it decided to recognise the “Seventh-Day Adventist Church – Reform Movement”.\nOn 9 June 1994 the government ratified the articles of association of the “Federation of Jewish (Religious) Communities” and on 1 September 1997 those of the “Union of Communities of Messianic Jews”.", "31. Since it was first set up, the Metropolitan Church of Bessarabia has regularly applied to the Moldovan authorities to explain the reasons for its creation and to seek their support in obtaining official recognition.", "32. The government asked several ministries for their opinion about whether to recognise the applicant Church.\nOn 16 October 1992 the Ministry of Culture and Religious Affairs informed the government that it was favourable to the recognition of the Metropolitan Church of Bessarabia.\nOn 14 November 1992 the Ministry of Financial Affairs informed the government that it could see no objection to the recognition of the Metropolitan Church of Bessarabia.\nOn 8 February 1993 the Ministry of Labour and Social Protection declared that it was favourable to the recognition of the applicant Church.\nIn a letter of 8 February 1993 the Ministry of Education emphasised the need for the rapid recognition of the Metropolitan Church of Bessarabia in order to avoid any discrimination against its adherents, while pointing out that its articles of association could be improved upon.\nOn 15 February 1993 the Secretariat of State for Privatisation stated that it was favourable to the recognition of the Metropolitan Church of Bessarabia, while proposing certain amendments to its articles of association.", "33. On 11 March 1993, in reply to a letter from the Bishop of Bălţi, writing on behalf of the Metropolitan of Bessarabia, the Moldovan parliament’s Cultural and Religious Affairs Committee noted that the delay in registering the Metropolitan Church of Bessarabia was aggravating the social and political situation in Moldova, even though its actions and articles of association complied with Moldovan legislation. The committee therefore asked the government to recognise the applicant Church.", "34. A memorandum from the Religious Affairs Department, dated 21 November 1994, summarised the situation as follows:\n“For nearly two years an ecclesiastical group known under the name of the Metropolitan Church of Bessarabia has been operating illegally in Moldovan territory. No positive result has been obtained in spite of our sustained efforts to put a stop to its activity (discussions between members of the so-called Church, priests, Mr G.E., Mr I.E. ..., representatives of the State and believers from the localities in which its adherents are active, Mr G.G., Minister of State, and Mr N.A., Deputy Speaker; all the organs of local and national administrative bodies have been informed of the illegal nature of the group, etc.).\nIn addition, although priests and adherents of the Church have been forbidden to take part in divine service, for failure to comply with canon law, they have nevertheless continued their illegal activities in the churches and have also been invited to officiate on the occasion of various public activities organised, for example, by the Ministries of Defence and Health. The management of the Bank of Moldova and the National Customs Service have not acted on our request for liquidation of the group’s bank accounts and strict supervision of its priests during their numerous crossings of the border.\nThe activity of the so-called Church is not limited to attracting new adherents and propagating the ideas of the Romanian Church. It also has all the means necessary for the work of a Church, it appoints priests, including nationals of other States ..., trains clergy, builds churches and many, many other things.\nIt should also be mentioned that the group’s activity (more political than religious) is sustained by forces both from within the country (by certain mayors and their villages, by opposition representatives, and even by some MPs) and from outside (by decision no. 612 of 12 November 1993 the Romanian government granted it 399,400,000 lei to finance its activity ...\nThe activity of this group is causing religious and socio-political tension in Moldova and will have unforeseeable repercussions ...\nThe Religious Affairs Department notes:\n(a) Within Moldovan territory there is no territorial administrative unit with the name of Bessarabia which might justify setting up a religious group named ‘Metropolitan Church of Bessarabia’. The creation of such a group and recognition of its articles of association would constitute a wrongful anti-State act – a negation of the sovereign and independent State which the Republic of Moldova constitutes.\n(b) The Metropolitan Church of Bessarabia was set up to take the place of the former Eparchy of Bessarabia, founded in 1925 and recognised by Decree no. 1942 promulgated on 4 May 1925 by the King of Romania. Legal recognition of the validity of those acts would imply recognition of their present-day effects within Moldovan territory.\n(c) All Orthodox parishes in Moldovan territory have been registered as constituent parts of the of the Orthodox Church of Moldova (the Metropolitan Church of Moldova), whose articles of association were ratified by the government in its decision no. 719 of 17 November 1993. \nIn conclusion: 1. If nothing is done to put a stop to the activity of the so-called Metropolitan Church of Bessarabia, the result will be destabilisation not just of the Orthodox Church but of the whole of Moldovan society. 2. Recognition of the Metropolitan Church of Bessarabia (Old Style) and ratification of its articles of association by the government would automatically entail the disappearance of the Metropolitan Church of Moldova.”", "35. On 20 February 1996, following a question in Parliament asked by the applicant Vlad Cubreacov, a Moldovan MP, the Deputy Prime Minister wrote a letter to the Speaker explaining the reasons for the government’s refusal to recognise the Metropolitan Church of Bessarabia. He said that the applicant Church was not a denomination distinct from the Orthodox Church but a schismatic group within the Metropolitan Church of Moldova and that any interference by the State to resolve the conflict would be contrary to the Moldovan Constitution. He pointed out that the political party to which Mr Cubreacov belonged had publicly expressed disapproval of the Supreme Court of Justice’s decision of 9 December 1997, that Mr Cubreacov himself had criticised the government for their refusal to recognise “this phantom metropolitan Church” and that he continued to support it by exerting pressure in any way he could, through statements to the media and approaches to the national authorities and international organisations. The letter ended with the assertion that the “feverish debates” about the Metropolitan Church of Bessarabia were purely political.", "36. On 29 June 1998 the Religious Affairs Department sent the Deputy Prime Minister its opinion on the question of recognition of the Metropolitan Church of Bessarabia. \nIt pointed out in particular that not since 1940 had there been an administrative unit in Moldova with the name “Bessarabia” and that the Orthodox Church had been recognised on 17 November 1993 under the name of the Metropolitan Church of Moldova, of which the Metropolitan Church of Bessarabia was a “schismatic element”. It accordingly considered that recognition of the applicant Church would represent interference by the State in the affairs of the Metropolitan Church of Moldova, and that this would aggravate the “unhealthy” situation in which the latter Church was placed. It considered that the articles of association of the applicant Church could not be ratified since they merely “reproduce[d] those of the Orthodox Church of another country”.", "37. On 22 June 1998 the Ministry of Justice informed the government that it did not consider the articles of association of the Metropolitan Church of Bessarabia to be contrary to Moldovan legislation.", "38. By letters of 25 June and 6 July 1998 the Ministry of Labour and Social Protection and the Ministry of Financial Affairs again informed the government that they could see no objection to recognition of the Metropolitan Church of Bessarabia.", "39. On 7 July 1998 the Ministry of Education informed the government that it supported recognition of the Metropolitan Church of Bessarabia.", "40. On 15 September 1998 the Cultural and Religious Affairs Committee of the Moldovan parliament sent the government, for information, a copy of a report by the Ministry of Justice of the Russian Federation, which showed that on 1 January 1998 there were at least four different Orthodox Churches in Russia, some of which had their head offices abroad. The Committee expressed the hope that the above-mentioned report would assist the government to resolve certain similar problems, particularly the problem concerning the Metropolitan Church of Bessarabia’s application for recognition.", "41. In a letter sent on 10 January 2000 to the applicant Vlad Cubreacov, the Deputy Attorney-General expressed the view that the government’s refusal to reply to the Metropolitan Church of Bessarabia’s application for recognition was contrary to the freedom of religion and to Articles 6, 11 and 13 of the Convention.", "42. In a decision of 26 September 2001 the government approved the amended version of Article 1 of the Metropolitan Church of Moldova’s articles of association, worded as follows:\n“The Orthodox Church of Moldova is an independent Church and is the successor in law to ... the Metropolitan Church of Bessarabia. While complying with the canons and precepts of the Holy Apostles, Fathers of the Church and the Ecumenical Synods, and the decisions of the Universal Apostolic Church, the Orthodox Church of Moldova operates within the territory of the State of the Republic of Moldova in accordance with the provisions of the legislation in force.”", "43. In a letter received by the Court on 21 September 2001 the President of the Republic of Moldova expressed his concern about the possibility that the applicant Church might be recognised. He said that the issue could be resolved only by negotiation between the Russian and Romanian patriarchates, since it would be in breach of Moldovan legislation if the State authorities were to intervene in the conflict. Moreover, if the authorities were to recognise the Metropolitan Church of Bessarabia, this would have unforeseeable consequences for Moldovan society.", "44. In its Opinion no. 188 (1995) to the Committee of Ministers on Moldova’s application for membership of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted the Republic of Moldova’s willingness to fulfil the commitments it had entered into when it lodged its application for membership on 20 April 1993.\nThese commitments, which had been reaffirmed before the adoption of the above-mentioned opinion, included an undertaking to “confirm complete freedom of worship for all citizens without discrimination” and to “ensure a peaceful solution to the dispute between the Moldovan Orthodox Church and the Bessarabian Orthodox Church”.", "45. In its annual report for 1997 the International Helsinki Federation for Human Rights criticised the Moldovan government’s refusal to recognise the Metropoltitan Church of Bessarabia. The report stated that as a result of this refusal many churches had been transferred to the ownership of the Metropolitan Church of Moldova. It drew attention to allegations that members of the applicant Church’s clergy had been subjected to physical violence without receiving the slightest protection from the authorities.", "46. In its 1998 report the Federation criticised the Religious Denominations Act, and in particular section 4 thereof, which denied any protection of the freedom of religion to the adherents of religions not recognised by a government decision. It pointed out that this section was a discriminatory instrument which enabled the government to make it difficult for the adherents of the Metropolitan Church of Bessarabia to bring legal proceedings with a view to reclaiming church buildings which belonged to them. In addition, the report mentioned acts of violence and vandalism to which the applicant Church and its members were subjected.", "47. The applicants reported a number of incidents during which members of the clergy or adherents of the applicant Church had allegedly been intimidated or prevented from manifesting their beliefs.", "48. The Government did not dispute that these incidents had taken place.", "49. In 1994 the assembly of Christians of the village of Gârbova (Ocniţa) decided to join the Metropolitan Church of Bessarabia. The Metropolitan of Bessarabia therefore appointed T.B. as the parish priest.", "50. On 7 January 1994, when T.B. went to the church to celebrate the Christmas mass, the mayor of Gârbova, T.G., forbade him to enter. When the villagers came out of the church to protest, the mayor locked the door and, without further explanation, ordered T.B. to leave the village within twenty-four hours.", "51. The mayor summoned a new assembly of the Christians of the village on 9 January 1994. On that date he informed the villagers that T.B. had been stripped of his post as the village priest because he belonged to the Metropolitan Church of Bessarabia. He introduced a new parish priest who belonged to the Metropolitan Church of Moldova. The assembly rejected the mayor’s proposal.", "52. The mayor called a new assembly of the Christians of the village on 11 January 1994. On that date he introduced to the villagers a third priest, also from the Metropolitan Church of Moldova. He was likewise rejected by the assembly, which expressed its preference for T.B.", "53. In those circumstances, S.M., the chairman of the parish council, was summoned by the mayor and the manager of the local collective farm, who urged him to persuade the villagers to accept T.B.’s removal from office. The chairman of the parish council refused.", "54. On 13 January 1994 S.M. was arrested on his way to church. He was pinned down by five policemen, then thrown into a police van and taken first to the town hall, where he was savagely beaten. He was then taken into police custody at Ocniţa police station, where he was upbraided for showing favour to the Metropolitan Church of Bessarabia. He was not informed of the reasons for his arrest. He was released after being detained for three days.", "55. Following these incidents T.B. left the parish.", "56. In a letter of 20 May 1994 the vice-president of the provincial council for the province (raion) of Făleşti rebuked G.E., priest of the parish of Saint Nicholas and a member of the Metropolitan Church of Bessarabia, for having celebrated the Easter service on 9 May 1994 in the town cemetery, that being an act contrary to the Religious Denominations Act because the Metropolitan Church of Bessarabia was illegal. For the same reason he was forbidden to conduct divine service in future whether inside a church or in the open air. The vice-chairman of the provincial council warned G.E. not to implement a plan he had to invite priests from Romania to attend divine service on 22 May 1994, given that he had not first obtained official authorisation, as required by section 22 of the Religious Denominations Act.", "57. In November 1994 G.E. was fined 90 lei (MDL) for officiating as a priest of an unrecognised Church, the Metropolitan Church of Bessarabia. The Court of First Instance upheld the penalty, but reduced the amount of the fine to MDL 54 on the ground that G.E. did not hold any office within the Church concerned.", "58. On 27 October 1996, before the beginning of divine service in the parish church, several persons, led by a priest of the Metropolitan Church of Moldova, violently assaulted G.E., drawing blood, and asked him to join the Metropolitan Church of Moldova. They also attacked the priest’s wife, tearing her clothes.", "59. G.E. managed to escape into the church, where the service was taking place, but he was pursued by his assailants, who began to fight with the congregation. A policeman sent to the scene managed to persuade the aggressors to leave the church.", "60. On 15 November 1996 the parish meeting published a declaration expressing the parishioners’ indignation about the acts of violence and intimidation to which members of the Metropolitan Church of Bessarabia were subjected, requested the authorities to cease to condone such acts and demanded official recognition for their Church.", "61. On 6 June 1998 the applicant Petru Păduraru, Metropolitan of Bessarabia, received two anonymous telegrams warning him not to go to Făleşti. He did not lodge any complaint about this.", "62. On 11 July 1994 the applicant Ioan Eşanu, priest of the parish of Saint Alexander, was summoned by the president of the Călăraşi provincial council to a discussion about the Metropolitan Church of Bessarabia.\nThat discussion was also attended by the mayor of Călăraşi, the secretary of the provincial council and the parish clerk. The president of the provincial council criticised the applicant for his membership of the applicant Church, which made him a fellow-traveller of those who supported union with Romania. He then gave him one week to produce a certificate attesting to recognition of the Metropolitan Church of Bessarabia, failing which he would have to leave the parish.", "63. In a letter of 24 November 1994 to the Metropolitan of Bessarabia, V.B., a Romanian national, priest of the parish of Cania, reported that he was under intense pressure from the authorities of the province of Cantemir, who had upbraided him for belonging to the applicant Church.", "64. On 19 January 1995 V.B. was summoned to the police station in Cantemir, where he was served with a government decision cancelling his residence and work permits and ordering him to leave Moldovan territory within seventy-two hours and to hand over the permits concerned to the relevant authorities.", "65. On 5 April 1995 Vasile Petrache, priest of the parish of Saint Nicholas, informed the Metropolitan of Bessarabia that the windows of the church, which was affiliated to the Metropolitan Church of Bessarabia, had been broken during incidents that had taken place on the nights of 27 to 28 March and 3 to 4 April 1995.", "66. A similar attack occurred in the night of 13 to 14 May 1995. Vasile Petrache lodged a complaint on each occasion, asking the police to intervene in order to prevent further attacks taking place.", "67. In the night of 3 to 4 September 1996 a grenade was thrown by unknown persons into the house of the Metropolitan of Bessarabia, causing damage. The applicant lodged a complaint about this at the police station in Chişinău.", "68. In autumn 1999, after the death of Vasile Petrache, the Metropolitan of Bessarabia appointed the applicant Petru Buburuz as the parish priest of Saint Nicholas.\nFollowing that appointment the church of Saint Nicholas was occupied by representatives of the Metropolitan Church of Moldova, who locked it and prevented the adherents of the applicant Church from entering. They also took possession of the parish documents and seal.", "69. On 8 December 1999 the police issued a summons against Petru Buburuz for organising a public meeting in front of Saint Nicholas’s church on 28 November 1999 without first obtaining the authorisation required for public meetings.", "70. On 28 January 2000 Judge S. of the Buiucani Court of First Instance discontinued the proceedings on the ground that the applicant had not organised a meeting but had merely celebrated a mass in his capacity as priest at the request of about a hundred believers who were present. Judge S. also noted that the mass had been celebrated on the square, as the church door had been locked.", "71. In the night of 3 to 4 September 1996 a grenade was thrown into the house of P.G., a member of the clergy of the applicant Church. On 28 September 1996 P.G. was threatened by six persons unknown to him. He immediately lodged a criminal complaint.", "72. In a letter of 22 November 1996 to the President of Moldova, the Minister of the Interior expressed his regret about the slow progress of the investigations into P.G.’s complaints and informed him that on that account disciplinary penalties had been imposed on the police officers responsible for the inquiry.", "73. In a report of 22 June 1998 to the Metropolitan of Bessarabia the parish clerk complained of the actions of one M., a priest of the Metropolitan Church of Moldova, who was trying, with the help of the mayor of Bălţi, to oust P.B., a priest of the applicant Church, and have the village church closed. \nNo complaint was lodged with the authorities on this subject.", "74. On 23 August 1999, according to the applicants, Police Captain R., claiming to be acting on the orders of his superior officer, Lieutenant-Colonel B.D., placed seals on the door of the church of Cucioaia (Ghiliceni) and forbade V.R., a priest of the applicant Church, who regularly officiated there, to enter and continue to conduct divine service. After a complaint by the people of the village, the applicant Vlad Cubreacov wrote to the Prime Minister on 26 August 1998 to ask him for an explanation.\nThe incident was also reported in the 26 August 1998 issue of the newspaper Flux. \nThe Government asserted that following the above complaint the Ministry of the Interior ordered an inquiry. The inquiry showed that it was not a policeman but a member of the Metropolitan Church of Moldova, Archdeacon D.S., who had placed the seals on the church door.", "75. On 11 April 1998, at about midnight, the parish priest was woken by persons unknown to him who were trying to force open the presbytery door. He was threatened with death if he did not give up the idea of creating a new parish in Cahul.", "76. On 13 April 1998 he was threatened with death by one I.G., a priest of the Metropolitan Church of Moldova. On the same day he complained to the police.", "77. After leaving the Metropolitan Church of Moldova in July 1997 to join the applicant Church, the priest of the parish of Mărinici and his family received threats on a number of occasions from various priests of the Metropolitan Church of Moldova. The windows of his house were broken and, on 2 February 1998, he was attacked in the street and beaten by strangers, who told him not to meddle with “those things” anymore.", "78. The parish priest consulted a forensic physician, who issued a certificate detailing the injuries that had been inflicted on him. He subsequently lodged a criminal complaint with the Cecani police.", "79. The Moldovan newspapers regularly reported incidents described as acts of intimidation against the clergy and worshippers of the Metropolitan Church of Bessarabia.", "80. On 6 December 1998 one V.J., a priest of the Metropolitan Church of Moldova, and other persons accompanying him broke open the door of the village church and occupied it. When the parish priest, V.S., a member of the applicant Church, arrived to take the Sunday service he was prevented from entering. The stand-off continued until the villagers belonging to the applicant Church arrived on the scene.", "81. In a report sent to the Metropolitan of Bessarabia on 2 February 2001, N.A., priest of the parish of Leova, stated that the church in Leova had suffered acts of vandalism and that he himself and other parishioners had been the target of public acts of intimidation and death threats from one G.C., a priest of the Metropolitan Church of Moldova. Such acts were repeated on a number of further occasions without any protection being offered by the municipal council to parishioners who were members of the applicant Church.", "82. The Christians of the village of Floreni joined the applicant Church on 12 March 1996 and formed a local community of that Church on 24 March 1996. They also had a chapel built where mass could be celebrated.", "83. On 29 December 1997 the government adopted decision no. 1203, granting the Metropolitan Church of Moldova a right of use in respect of the land on which the chapel built by the Metropolitan Church of Bessarabia was situated. That decision was confirmed by a decree of 9 March 1998 issued by the Floreni municipal council.", "84. Following a request by the Metropolitan Church of Bessarabia for the right to use the land concerned, in view of the fact that its chapel was built on it, the National Land Registry replied to the Church’s adherents in the parish of Floreni that “the local public authorities [were] not able to adopt such a decision since the Metropolitan Church of Bessarabia [had] no recognised legal personality in Moldova”.", "85. On 17 February 2000 the Metropolitan of Bessarabia asked the government Committee for Humanitarian Aid to authorise entry into Moldovan territory of goods to the value of 9,000 United States dollars (USD) sent from the United States, and to classify the goods concerned as humanitarian aid. That request was refused on 25 February 2000.", "86. On 25 February 2000 the applicant Vlad Cubreacov asked the committee to inform him of the reasons for its refusal. He pointed out that the gift (of second-hand clothes), sent by the Church of Jesus Christ of Latter-Day Saints, had been given a transit visa by the Ukrainian authorities, who accepted that it was a humanitarian gift. However, the goods had been held up by the Moldovan customs since 18 February 2000, so that the addressee was obliged to pay USD 150 per day of storage. The applicant repeated his request for the goods to be allowed to enter Moldovan territory as a humanitarian gift.", "87. On 28 February 2000 the Deputy Prime Minister of Moldova authorised the entry of this humanitarian gift into Moldovan territory.", "88. Vasile Petrache, a priest of the applicant Church, was refused a retirement pension on the ground that he was not a minister of a recognised denomination." ]
[ 5 ]
[ "8. The applicant was a shareholder in a limited liability company, but assigned his shares to another shareholder in 1985. Subsequently, the company went bankrupt.", "9. On 8 April 1986 a bank which had extended credit to the company filed an action against the applicant with the Innsbruck Regional Court (Landesgericht) requesting repayment because of his joint and several liability for the credit.", "10. On 29 April 1986 the first hearing was held and on 14 July 1986 the second. On 1 August 1986 the file was transmitted to the Lienz District Court (Bezirksgericht) to hear two witnesses and the applicant. On 18 November 1986 the Lienz District Court returned the file to the Innsbruck District Court. On 25 November 1986 the file was transmitted to the Salzburg District Court to hear witnesses. The file was returned on 12 May 1987 and 10 September 1987 was set down as date for the next hearing. It was postponed upon the applicant’s request and was eventually held on 6 October 1987. On 18 November 1987 the court appointed a banking expert. On 11 February 1988 the file was again transmitted to the Lienz District Court for the hearing of a further witness. It was returned on 3 March and sent to the expert on 22 April 1988. The expert delivered his opinion on 23 September 1988. The applicant’s request for an extension of the time‑limit to comment on the expert opinion was granted and the time‑limit set at 14 November 1988. On 19 January 1989 another hearing was held.", "11. On 20 February 1989 the Regional Court granted the bank’s claim having regard to the submissions of the parties, witnesses and the expert, to documentary evidence and to the case files of the bankruptcy proceedings.", "12. On 29 March 1989 the applicant appealed against this decision. On 25 August 1989 the Innsbruck Court of Appeal (Oberlandesgericht) quashed the decision and referred the case back to the Regional Court.", "13. A hearing which was scheduled by the Innsbruck Regional Court for 22 March 1990 had to be postponed as the claimant had failed to submit necessary documents and a witness could not be summoned. It was held on 29 August 1990. Subsequently, the applicant requested legal aid and on 24 September 1990 requested an extension by four weeks of the time-limit for submitting his declaration of means. On 3 December 1990, after the applicant had been granted legal aid, the expert was ordered to supplement his opinion. The expert complied with this order on 11 October 1991. After a hearing was held on 7 May 1992, the expert was again ordered to supplement his opinion. On 14 September 1993 the expert informed the court that both parties had failed to submit documents required. On 29 September 1993 a further hearing was held at which the court dismissed the applicant’s motion for bias concerning the expert. The next hearing was held on 25 April 1994 and on 9 May 1994 the file was again transmitted to the expert. On 30 January 1995 the expert submitted his supplemented opinion. On 15 March 1995 a further hearing was held.", "14. On 12 February 1996 the Innsbruck Regional Court again granted the bank’s claim. On 3 April 1996 the applicant appealed against the decision.", "15. On 12 July 1996 the Innsbruck Court of Appeal dismissed the applicant’s appeal.", "16. On 30 January 1997 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s appeal. The decision was served on 18 February 1997." ]
[ 3 ]
[ "8. The applicant was born in 1951 and lives in Ryn, Poland.", "9. On 27 November 1990 the applicant lodged with the Giżycko District Court (Sąd Rejonowy) an action in which he sought from a certain company T compensation in the amount of 5,000,000 old zlotys (PLZ). The amount claimed represented the value of a TV set which the applicant had bought from the defendant and which broke down.", "10. On 5 December 1990 the case was transmitted to the Pruszków District Court. On 3 January 1991 the applicant increased the amount of the claimed compensation to PLZ 10,000,000.", "11. On 13 February, 12 July and 7 November 1991 hearings were held before the Pruszków District Court.", "12. On 12 November 1991 the District Court allowed the applicant’s request for interim measures and issued a seizure warrant in respect of a part of property belonging to the T company.", "13. On 17 January 1992 the applicant replied to the court’s request of 15 January 1992 and confirmed that he sought compensation from the T company. In a letter of 17 January 1992 the Pruszków District Court advised the applicant that the T company had no legal capacity to be sued. The court further pointed out that the company’s sole owner lived in Stuttgart, Germany and that it did not have a plenipotentiary authorised to act on its behalf. The court also informed the applicant that the application for an appointment of a receiver for the company was being considered by the Economic Section of the Pruszków District Court.", "14. On 29 January 1992 the District Court asked the applicant to confirm whether he still wished to pursue his action against the T company and whether he insisted that Mr Z.S., who was a director of that company, should be considered as a second defendant in the case. On 5 February 1992 the applicant replied that in view of the fact that the branch of the T company situated in Nadarzyn had been liquidated, his action was directed against the company’s branch located in Płońsk. He also insisted that Mr Z.S. was a second defendant in the case and increased his claim to PLZ 15,000,000.", "15. On 21 February 1992 the applicant asked the District Court why no hearing had been fixed in his case since 7 November 1991. On 2 March 1992 the President of the Pruszków District Court informed the applicant that the delivery of a judgment in the case had been scheduled for 13 November 1991 but had been adjourned in view of the fact that he had requested interim measures and increased his claim. The President also observed that after the applicant had stated that his action had been directed against the branch of the T company situated in Płońsk, the court had advised him that the T company had no legal capacity to be sued and that he should have directed his action against the owner of the company. The President informed the applicant that he should therefore submit to the court a statement explaining against whom his action was directed and that if he had persisted in claiming compensation from the T company instead of its owner, his action would be rejected on procedural grounds.", "16. On 11 March 1992 the applicant identified Mr Z.C., the owner of the T company, as a defendant in his case.", "17. On 23 March 1992 the District Court instructed the applicant to inform it whether Mr Z.C. spoke Polish, to submit copies of his statement of claim and of a pleading confirming that Mr Z.S. was the second defendant in the case.", "18. On 7 May 1992 the Pruszków District Court requested the Stuttgart District Court (Amtsgericht) to serve a summons on Mr Z.C.", "19. On 1 June and 9 July 1992 the Pruszków District Court issued decisions concerning the applicant’s request that the fees charged by the bailiff who had enforced the court’s warrant of 12 November 1991 be reduced.", "20. On 3 September 1992 the Stuttgart District Court informed the Pruszków District Court that it had been unable to serve a summons on Mr Z.C.", "21. The next hearing took place on 7 October 1992. On that occasion the applicant withdrew his claim against Mr Z.S. The hearing was adjourned as the statement of claim had not been served on Mr Z.C.", "22. On 13 February 1993 the applicant submitted to the District Court a statement concerning his financial standing requested by the court on 10 February 1993. On 11 October 1993 a hearing was held.", "23. The Government submit that on 9 May 1994 the receiver of the T company informed the Pruszków District Court that the proceedings concerning the compensation claim should be stayed because “the dispute concerns an object which is a part of the estate in bankruptcy”.", "24. In a letter of 10 November 1994 the applicant informed the District Court that he would be unable to attend the hearing scheduled for 24 November 1994 and asked the court to proceed with the examination of the case in his absence.", "25. The next hearing took place on 24 November 1994. The Government submit that on that occasion the applicant failed to appear before the court despite the fact that he had received a summons.", "26. During the hearing held on 19 June 1995, the Pruszków District Court stayed the proceedings. The Government aver that the decision to stay the proceedings resulted from the applicant’s absence at the hearing and was based on Article 177 § 1 (5) of the Code of Civil Procedure, which allowed to stay the proceedings when the plaintiff failed to attend a hearing and did not ask the court to proceed with the examination of the case in his absence.", "27. On 22 June 1995 the applicant asked the District Court to resume the proceedings in his case and to decide it in spite of his absence at hearings. In a letter of 27 February 1996 the President of the Pruszków District Court informed the applicant that his request to resume the proceedings had been received by the court on 10 July 1995. The President also advised him that on 1 February 1996 his case had been taken over by a new judge rapporteur.", "28. In a letter of 15 May 1997 addressed to the Pruszków District Court the applicant’s wife confirmed the receipt of a summons directing her husband to attend the hearing to be held on 4 June 1997. She advised the court that the applicant would not be able to appear before it since he was in the United States.", "29. On 4 June 1997 a hearing took place. The Government submit that on that occasion the court decided not to resume the proceedings because of the applicant’s absence.", "30. On 26 January 1998 the Pruszków District Court sent to the applicant a telegram informing him that the hearing scheduled for 28 January 1998 had been cancelled due to the illness of the judge rapporteur.", "31. On 7 August 1998 a hearing took place. The Government submit that on that occasion the court decided not to resume the proceedings because of the applicant’s absence.", "32. On 24 August 1998 the District Court was informed by the receiver for the T company that the bankruptcy proceedings concerning that company were still pending.", "33. On 26 March 1999 the Pruszków District Court decided to discontinue the proceedings. The court based its decision on the fact that no request to resume the proceedings had been submitted to it during the period of three years following its decision to stay the proceedings in the case.", "34. On 26 April 1999 the applicant lodged a complaint against the decision of 26 March 1999. He pointed out that in the letter of 27 February 1996 the President of the Pruszków District Court had confirmed the receipt on 10 July 1995 of the applicant’s request to resume the proceedings. Moreover, the applicant recalled that the District Court had sent to him a summons and a telegram concerning hearings to be held on 4 June 1997 and 28 January 1998.", "35. On 12 August 1999 the Pruszków District Court allowed the complaint and quashed the decision of 26 March 1999.", "36. On 5 January 2000 the T company was struck off the company register.", "37. On 19 January 2000 the Pruszków District Court issued a decision in a case of “Roman Parciński v. Z (...) C (...) running a foreign company T (...)”. The court decided “(1) to resume the proceedings, and (2) to stay the proceedings on the basis of Article 174 § 1 (4) of the Code of Civil Procedure”. This provision allowed to stay the proceedings if bankruptcy proceedings were initiated in respect of one of the parties and the subject of the proceedings was a part of the estate in bankruptcy.", "38. On 10 March 2000 the Pruszków District Court issued a decision in a case of “Roman Parciński v. the foreign company T (...) in Płońsk”. The court decided to resume the proceedings.", "39. The next hearing was set for 27 April 2001. The applicant advised the court that he would not be able to attend it. He also asked the court to decide the case in his absence.", "40. On 11 May 2001 the District Court dismissed the applicant’s action. On 25 June 2001 the applicant asked the District Court to serve him with a reasoned decision.", "41. The proceedings are still pending." ]
[ 3 ]
[ "9. On 16 September 1994 the Wałbrzych District Prosecutor (Prokurator Rejonowy) charged the applicant with receiving a bribe and detained him on remand in view of the reasonable suspicion that he had committed the offence in question. On the same day the prosecutor confronted the applicant with his co-suspect who had offered him a bribe, and ordered a search of the applicant’s home. On 28 September 1994, on an appeal filed by the applicant, the Wałbrzych Regional Court (Sąd Wojewódzki) quashed the detention order and released him under police supervision.", "10. On 10 February 1995 the Wałbrzych District Prosecutor lodged a bill of indictment with the Wałbrzych Regional Court. The indictment comprised twelve counts charging seven co-defendants. Two of the applicant’s co-defendants were indicted on charges of an attempt to traffic in women.", "11. Subsequently, on an unknown date, the Wałbrzych Regional Court appointed a defence counsel for the applicant.", "12. The trial ended on 15 April 1996. The applicant was convicted as charged and sentenced to one year’s imprisonment suspended for two years and a fine. The Regional Court exempted the applicant from paying the costs of the proceedings and court fees at first instance. It ordered the State Treasury (Skarb Państwa) to cover the legal fees involved in his defence by the officially-appointed lawyer.", "13. On 24 June 1996 the applicant’s lawyer filed an appeal with the Wrocław Court of Appeal (Sąd Apelacyjny). The Regional Prosecutor lodged his appeal at about the same time. The applicant filed a memorandum and produced documents in support of his arguments on 27 September 1996.", "14. Later, the Wrocław Court of Appeal appointed a new defence counsel to assist the applicant in the appellate proceedings.", "15. On 10 October 1996 the Wrocław Court of Appeal heard the appeals. Both the applicant and his officially-appointed lawyer were present. The applicant asked the court to read out all the records of evidence heard from him during the first instance proceedings. The court declined to do so, pointing out that the appellate hearing was limited to the questions of fact and law which had been put forward by the parties in their appeals and oral pleadings. It found it unnecessary to read the voluminous records of the oral evidence taken from the applicant.", "16. On the same day the Court of Appeal upheld the first-instance judgment. It levied on the applicant a court fee of 65.00 Polish zlotys [approx. 130 FRF] for examining his appeal and ordered him to pay 50.96 Polish zlotys [approx. 100 FRF] as the costs of the appellate proceedings. The court ordered that the costs involved in the applicant’s defence in the appeal proceedings be borne by the State Treasury.", "17. On 12 October 1996 the applicant lodged a notice of cassation appeal with the Wrocław Court of Appeal and asked it to serve on him the written reasons for its judgment. He also asked the Court of Appeal to appoint a new lawyer to assist him in the preparation of his cassation appeal. The relevant part of the application read:\n“The appeal proceedings were of a fictitious nature ... [which was shown] by the time foreseen by the Court of Appeal for dealing with [my] appeal. [That] court foresaw only 15 minutes ... The appellate hearing was to start at 9.00 a.m. and the next case was to be heard at 9.15 a.m. ... In addition, as I learnt on 11 October this year, the Court of Appeal had replaced my previous defence counsel by someone else ... who – probably – did not know the case. ...\nArticle 464 § 2 of the Code of Criminal Procedure stipulates that a cassation appeal must be filed and signed by an advocate. Since the Court of Appeal deprived me of my [previous] officially-appointed lawyer, it should appoint another counsel for me. I therefore ask the court to appoint me such a lawyer and order him to file a cassation appeal on my behalf, in particular on the grounds mentioned in my pleading of 14 June 1996 and on other grounds – such as breaches of the law committed by the Court of Appeal – which I will later specify in my own separate cassation appeal. ...”", "18. On 9 December 1996 the written reasons for the judgment of the Wrocław Court of Appeal were served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run (see also paragraph 32 below).", "19. On 23 December 1996 the Court of Appeal dismissed the applicant’s request for free legal assistance in cassation proceedings. The court considered that the applicant had failed to prove that he could not afford such assistance. The relevant decision read:\n“In his application, received at the Court of Appeal’s registry on 15 October 1996, the applicant asked this Court to appoint a lawyer to assist him in filing a cassation appeal against the judgment of the Wrocław Court of Appeal of 10 October 1996.\nThe circumstances on which the applicant relies cannot be considered as a basis for a finding that his family and financial situation, and his income, make it impossible for him to pay costs involved in appointing a lawyer of his own choice in order to have a cassation appeal filed. That [view] is based on the post previously held by the applicant and the income that he received from his employment.\nInstruction: this decision – refusing an application for appointing a lawyer to assist in filing a cassation appeal – cannot be appealed against.”\nThat decision was served on the applicant on 31 December 1996.\nThe time-limit for lodging a cassation appeal expired on 9 January 1997.", "20. In the meantime, on 3 January 1997, despite the court’s instruction to the contrary, the applicant had appealed to the Supreme Court (Sąd Najwyższy) against the refusal to grant him legal assistance. He lodged the appeal through the Wrocław Court of Appeal.", "21. By an order made on 15 January 1997, the President of the Court of Appeal refused to proceed with the appeal because it was inadmissible in law. The applicant appealed to the Supreme Court, which, on 28 February 1997, upheld the contested order." ]
[ 3 ]
[ "9. On 12 September 1984 policemen from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way).", "10. On 26 October 1984 the Ankara Martial Law Court ordered the applicant’s detention on remand.", "11. On 26 December 1984 and 10 May 1985 the Military Public Prosecutor filed two bills of indictment with the Ankara Martial Law Court against the applicant. He accused the applicant of membership of the Dev-Yol, whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime, contrary to Article 146 § 3 of the Criminal Code. The Public Prosecutor further alleged, inter alia, that the applicant had been involved in a number of crimes such as a bomb attack on a coffee house, opening fire on a house and several robberies.", "12. On 26 May 1986 the applicant was released pending trial.", "13. On 19 July 1989 the Ankara Martial Law Court convicted the applicant and sentenced him to 5 years’ imprisonment on account of his membership of an illegal armed organisation (Article 168 § 2). The applicant lodged an appeal with the Military Court of Cassation against this judgment.", "14. On 26 December 1994 the jurisdiction of the martial law courts was abolished and the Court of Cassation acquired jurisdiction over the case.", "15. On 27 December 1995 the Court of Cassation held that the criminal proceedings against the applicant should be discontinued on the ground that the prosecution was time‑barred." ]
[ 2 ]
[ "9. The applicant is the mother of two children: T., born on 8 April 1993, and A., born on 17 December 1994.", "10. On 31 March 1995 the Youth Welfare Office (Jugendwohlfahrtsträger) at the Linz-Land District Administrative Authority (Bezirkshauptmannschaft), pursuant to section 215 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch), took T. and A. provisionally into their care. It noted that on the morning of that day, the applicant, who delivers newspapers, had come back late from work and her children had been at home without supervision for approximately 45 minutes. The applicant’s neighbour, who had seen T. alone in the garden at around 8.30 a.m., had contacted the District Administrative Authority. The Youth Welfare Office placed the children with a socio-pedagogical facility in Salzburg for an evaluation of their development.", "11. On 4 April 1995 the Youth Welfare Office requested the formal transfer of the custody of the children to it before the Enns District Court (Bezirksgericht). The Youth Welfare Office, relying on section 215 of the Civil Code, claimed that the living conditions of the children were chaotic. It did not submit a formal statement of reasons, but promised to do so later.", "12. On 24 April 1995 the applicant, assisted by counsel, requested the District Court to order the Youth Welfare Office to return T. and A. to her.", "13. On 10 May 1995 the District Court rejected the Youth Welfare Office’s request and ordered that T. and A. be promptly returned to their mother’s custody. The District Court found that the removal of the children from their mother was unlawful, as the Youth Welfare Office had failed to submit a formal statement of reasons giving arguments in support of the children’s removal and the transfer of their custody. The court observed that, without such a statement, it could not take the evidence necessary to verify whether the Youth Welfare Office’s request was well-founded. Consequently, the court was not in a position to decide on the merits.", "14. On 11 May 1995 the Youth Welfare Office appealed and refused to give T. and A. back to their mother. On 16 May 1995 it supplemented its appeal arguing that the applicant was incapable of bringing up T. and A. It submitted that on the early morning of 31 March 1995 the children had been at home alone. T. was wandering about in the garden alone at 0°C, wearing only pyjamas. In support of its arguments, the Youth Welfare Office filed, inter alia, a fax of the Enns rural police (Gendarmerieposten) of 31 March 1995, certificates of 5 April 1995 concerning the children’s condition of health issued by a medical officer (Amtsarzt), and the transcripts of the statements of the applicant’s neighbour before the District Administrative Authority.", "15. On 6 June 1995 the Steyr Regional Court (Landesgericht) quashed the District Court’s decision and remitted the case back to the District Court, instructing the latter to take a new decision after having supplemented its proceedings (Verfahrensergänzung). The Regional Court found that, taking the ex officio character of the custody proceedings (Pflegschaftsverfahren) into account, it had been for the District Court to investigate the facts sufficiently in order to reach a decision. In particular the Youth Welfare Office should have been given the opportunity to correct its procedural mistake by submitting a formal statement of reasons.", "16. On 27 June 1995 the Salzburg socio-pedagogical centre (Sozialpädagogisches Zentrum) submitted a report to the Enns District Court.", "17. On 28 June 1995 the applicant was heard with regard to the events of 31 March 1995. She submitted that on the morning of that day, she had suffered from a migraine attack and therefore had been unable to return home in time. Normally she returned before her seventeen-year old son, H., who also lived with her, left for work. That day she had unsuccessfully tried to contact a friend of hers to look after her children.", "18. On 30 June 1995 the District Court heard the father of T. and A., who did not live with them. He was opposed to the transfer of custody to the Youth Welfare Office as he considered that the applicant took care of the children satisfactorily. He himself was not in a position to take care of them.", "19. On 31 July 1995 the District Court again dismissed the Youth Welfare Office’s request for the transfer of custody but ordered the applicant to undergo family therapy together with her children and their father. It instructed the Youth Welfare Office to ensure that the applicant complied with this condition. In refusing the transfer of custody, the District Court relied, inter alia, on the public health officer’s certificates according to which A. had been in a good physical and psychological state, as well as T., although the medical officer had also found a retardation in the latter’s linguistic skills and striking deficiencies in his social behaviour. The applicant’s approach to her children was positive in general. According to the District Court, there existed no danger that the incident of 31 March 1995 could recur, because two persons, Mr K. and Ms L., had accepted to look after A. and T. in case the applicant should come home late from work.", "20. The District Court found that, under sections 176 a and 178 a of the Civil Code, the right of custody may only be withdrawn if the child’s well-being was endangered and if this was substantiated by compelling arguments. The court noted that the living conditions at the applicant’s place were below average. Nevertheless the children’s well-being was not in danger. The incident which led to the taking away of T. and A. was a unique one and the applicant cared sufficiently for her children, having regard both to their psychological and physical well-being. Moreover the applicant still breast-fed A. The court concluded that the requested transfer of custody was not justified.", "21. On 31 July 1995 the Youth Welfare Office appealed. The Office argued, inter alia, that Mr K., a former life-companion of the applicant, was unsuitable to look after the children and that Ms L. had informed the District Administrative Authority that she had never promised the applicant to look after the children nor was she prepared to do so.", "22. In the course of the appeal proceedings, the Youth Welfare Office submitted further evidence, namely a report dated 16 August 1995 with several annexes. Furthermore, the Regional Court obtained several court files all concerning the applicant: one file concerning custody proceedings relating to her son R., one concerning criminal proceedings against P.F. and the applicant for ill treatment of her son R., and one concerning eviction proceedings against the applicant. This evidence was not communicated to the applicant.", "23. On 16 August 1995 the Steyr Regional Court granted the appeal and transferred custody of the applicant’s children to the Youth Welfare Office, pursuant to section 176 a of the Civil Code. The Regional Court found that the taking of evidence by the court of first instance had been incomplete. Since the courts had the obligation to safeguard the well-being of the children, it was necessary to decide not merely on the basis of the evidence which existed at first instance but to take into account all subsequent developments and, if necessary, to re-assess the evidence or to supplement the investigations.", "24. On the basis of the evidence meanwhile obtained, the Regional Court found that the well-being of T. and A. would not be safeguarded if they were to stay with their mother. The children’s living conditions were desolate and chaotic; the applicant was apparently not willing to co-operate with the Youth Welfare Office and she did not make any efforts to undergo therapy, together with the children, as had been ordered by the District Court in its decision of 31 July 1995. Moreover, T. and A. no longer stayed with the applicant but with her “ex-companion”, as the applicant was due to be evicted from her apartment on 31 August 1995. As from 1 August 1995 the applicant had rented a house in Lambach. According to information obtained from the owner, the house was extremely desolate and hardly fit for habitation. On a visit to Lambach by a staff member of the Youth Welfare Office on 16 August 1995, the applicant had not permitted the official to enter her home on the grounds of desolate living conditions and the decrepit state of the building. She did not disclose the identity of the friend with whom she had placed the two children T. and A. in Linz.", "25. The Regional Court also noted that the applicant’s elder sons, R. and H., had been placed in a children’s home from September 1989 to July 1991 as the applicant had not taken adequate care of them. After returning to the applicant, R. had been subject to systematic and repeated abuse by P.F., the applicant’s then companion, who had almost daily beaten R. and had treated him in a degrading manner. In 1993 R. had been committed to hospital because of injuries inflicted on him by P.F. Thereupon criminal proceedings against the applicant and P.F. for abuse of minors had been instituted. In November 1994 P.F. had been convicted of this offence and sentenced to six months’ imprisonment. The applicant had been acquitted. At the same time, custody of R. had been transferred to the Youth Welfare Office. He was no longer living with the applicant. In the Regional Court’s view these events, even though the applicant had been acquitted of the criminal charges, showed that she was incapable of effectively caring for her children. Having regard to the abuse and suffering of R., it was implausible that she had not noticed anything.", "26. The Regional Court also considered that, having regard to the retardation in T.’s development and the deficiencies in his social behaviour, there was no guarantee that either he or his brother A. would develop normally if they were to remain with their mother.", "27. On 9 November 1995, the Supreme Court (Oberster Gerichtshof) rejected the applicant’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs) on the ground that the case did not involve questions of law of fundamental importance." ]
[ 3, 4 ]
[ "9. On 4 February 1989 the Austrian police were informed via Interpol that on 30 January 1989 in Poquoson (Virginia, USA) E.P., a German citizen, and H.S., an Austrian citizen, had been killed and that the applicant, who at that time lived in Virginia, was suspected of having killed and robbed them. A warrant of arrest was issued against the applicant in the United States.", "10. On 5 February 1989 the applicant, who in the meantime had returned to Austria, was arrested and on 7 February 1989 was remanded in custody. The applicant remained on remand until 17 June 1992. This period was interrupted from 17 May to 6 June 1989 and from 6 February 1998 to 17 May 1989 whilst the applicant served prison sentences imposed in respect of previous convictions.", "11. Meanwhile the trial against the applicant took place before the Assizes of the Innsbruck Regional Court sitting with a jury. On 16 October 1991 the jury acquitted the applicant, but the bench of the Assize Court set aside the jury’s verdict as erroneous. A new trial against the applicant and one co-accused was held before another Assize Court of the Innsbruck Regional Court.", "12. On 17 June 1992 the Court of Assizes again acquitted the applicant. The jury answered the question as to murder and the question as to aggravated robbery with six votes of “no” and two votes of “yes”. According to the record of the jury’s deliberations, the majority of its members found the applicant not guilty as there had been discrepancies between the statements of the witnesses (“Widersprüche in den Zeugenaussagen”).", "13. On 1 October 1993 the Innsbruck Regional Court sitting with a single judge heard the applicant in private on his claim for compensation in respect of his detention on remand. The applicant, assisted by counsel, argued that the proceedings under the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz) infringed the presumption of innocence guaranteed by Article 6 § 2 of the Convention. He referred to the Sekanina v. Austria judgment of the European Court of Human Rights (25 August 1993, Series A no.266-A). The applicant also presented fresh evidence which, in his opinion, could entirely dissipate the suspicion still subsisting against him.", "14. On 24 January 1996 a chamber of the Innsbruck Regional Court, composed of three judges, dismissed the applicant’s compensation claim. The Regional Court found that a right to compensation in the applicant’s case would require that the suspicion against him had been entirely dissipated. According to the records of the jury’s deliberations, a majority of the members had found the applicant not guilty on the grounds that there had been discrepancies between the statements of witnesses. The applicant was not acquitted because his innocence had been proven, but because he had been given the benefit of the doubt. Thus, the suspicion against the applicant had not been dissipated. As regards the applicant’s request for the taking of evidence, the Regional Court found that it was prevented from examining further evidence. It referred in this respect to the Constitutional Court’s case-law following the Sekanina judgement, according to which a fresh examination of the question of guilt in compensation proceedings following a final acquittal would be in breach of Article 6 § 2 of the Convention.", "15. On 12 February 1996 the applicant appealed against this decision. He submitted, inter alia, that the Regional Court had re-examined the Assize Court’s acquittal. However, it was no longer acceptable to rely on suspicions once an acquittal had become final.", "16. On 27 February 1996 the Innsbruck Court of Appeal, sitting in camera, dismissed the applicant’s appeal. It found that a suspicion of having committed a criminal offence is only dissipated if either the claimant’s innocence has been proven, or if all arguments supporting the suspicion against him have been refuted. The right to compensation demands that innocence be established. However, this requirement was not met in the applicant’s case. Referring to the Regional Court’s decision, the Court of Appeal found that the records of the jury’s deliberations clearly expressed the opinion of the members of the jury. In their mind various circumstances spoke against the applicant, but it had not been possible to convict him because of discrepancies between the statements of witnesses.", "17. The Court of Appeal concluded that, according to the Sekanina judgment of the European Court of Human Rights, a fresh examination of the question of guilt in the compensation proceedings following a final acquittal would have been in breach of Article 6 § 2 of the Convention, but not the refusal of compensation itself. The Regional Court had not re-examined the question of the applicant’s guilt, rather it had referred to the reasons for which the majority of the jury had voted “not guilty”, and had concluded that the suspicion against the applicant had not been dissipated." ]
[ 3 ]
[ "9. On 9 November 1994 the Braunau District Administrative Authority (Bezirks­hauptmannschaft) convicted the applicant twice under the Motor Vehicles Act (Kraftfahrgesetz) for failure to comply with the instructions of the Authority to inform them who had used his car on specific days (Lenkerauskunft), and sentenced him, on each offence, to a fine of 4,000 ATS or six days’ imprisonment in default. The Authority noted that the applicant had given information but found it to be incorrect.", "10. On 29 November 1994 the applicant filed an appeal against this decision with the Upper Austrian Independent Administrative Panel (Unabhängiger Verwaltungssenat). He complained that the District Administrative Authority had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue. The applicant did not request a hearing, nor did he expressly waive this right. No oral hearing was held.", "11. On 2 January 1995 the Independent Administrative Panel dismissed the appeal on the merits but reduced the sentence.", "12. On 28 February 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained under Article 6 § 1 of the Convention that the Independent Administrative Panel had failed to hold a hearing. Such a hearing would have been necessary because his appeal was not limited to points of law. He had also criticised the District Administrative Authority’s assessment of evidence. Therefore an oral hearing would have been necessary. In such a hearing the Independent Administrative Panel could have properly assessed this evidence, which had already been obtained at first instance, as well as fresh evidence.", "13. On 13 July 1995 the Constitutional Court declined to deal with the applicant’s complaint on the ground that it did not have sufficient prospects of success. Upon a request filed by the applicant on 10 August 1995, the Constitutional Court transferred the case to the Administrative Court (Verwaltungsgerichtshof).", "14. On 23 February 1996 the Administrative Court, relying on Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), declined to deal with the applicant’s case, finding that it did not raise important legal issues. On 10 May 1996 this decision was served on the applicant’s lawyer." ]
[ 3 ]
[ "8. In the late evening of 29 April 1993, the father of S., born in 1985, laid a criminal information against the applicant, alleging that the applicant, her private music teacher, had sexually abused S. during an individual music lesson that afternoon. S. and her mother were questioned at the local police office on the afternoon of 30 April 1993. S. was heard by a police officer and confirmed her father’s statements. S.’s mother stated that S. had been very disturbed after her music lesson and that she had later confided in her mother.", "9. On 10 January 1994 the Künzelsau District Court, sitting with a single judge, convicted the applicant of having committed the offence of sexual abuse of a child in concurrence with the offence of sexual abuse of a charge. He was sentenced to seven months’ imprisonment on probation. \nIn establishing the relevant facts, the court relied on the statements made by the mother concerning her daughter’s account of the relevant events, her behaviour after the music lesson on 29 April 1993 and her character in general, and also on the evidence given by the police officer who had questioned S. shortly after the offence in April 1993. \nThe court dismissed the applicant’s request for a psychological expert opinion regarding the credibility of S.’s statements on the ground of the court’s own professional experience, acquired as a judge in family matters, in evaluating statements made by children. \nMoreover, the court observed that it had not been reasonable to hear S. herself, as, according to her mother, she had meanwhile repressed her recollection of the event in question and would seriously suffer if reminded thereof. If S. were to be examined, this would not contribute to a further clarification of the facts, but seriously impair her personal development.", "10. The applicant appealed to the Heilbronn Regional Court, requesting his acquittal. In the appeal proceedings, he was assisted by counsel.", "11. On 17 March 1995 the Heilbronn Regional Court dismissed the applicant’s appeal against his conviction of sexual abuse of a child, but set aside the conviction of sexual abuse of a charge. The sentence to seven months’ imprisonment on probation was upheld.\nThe Regional Court noted that the applicant had denied having sexually abused S. It found that his guilt could be established on the basis of the evidence before it, i.e. the statements made by S.’s mother and the police officer as well as a psychological expert opinion on the question of S.’s credibility, ordered in the context of the appeal proceedings. In her report of November 1994, the expert, who had questioned S. in October 1994, confirmed that S.’s statements were credible. \nThe Regional Court considered that the absence of S.’s testimony in court constituted a serious shortcoming in the taking of evidence. In this respect, it noted that the parents had refused to bring their daughter to court on account of the risk that her state of health would deteriorate as she suffered from neurodermatitis. According to the Regional Court, the parents’ refusal was understandable. In this respect, the Regional Court had regard to a medical certificate confirming the parents’ statements and the findings of the psychological expert that S.’s state of health would most likely deteriorate again if she were to be heard anew on the event in question. Taking into account that S.’s statements had been reported by her mother and by the police officer and that an expert opinion on her credibility had been prepared, the Regional Court, considering the rather trivial nature of the charge and the sentence at stake, reached the conclusion that S. was to be regarded as a witness out of reach.", "12. On 2 August 1995 the Stuttgart Court of Appeal dismissed the applicant’s appeal on points of law.", "13. On 18 January 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint, leaving open the question whether the complaint had been lodged in time." ]
[ 3 ]
[ "10. The applicants are German citizens. They live respectively in Oberhausen and Mülheim/Ruhr. The application concerns proceedings initiated by Mrs Gretel Janssen, who died on 27 July 1986. After her death, her son Heinz–Jürgen Janssen and her daughter Margit Jakobs, born Janssen, continued the proceedings. Heinz–Jürgen Janssen died on 19 November 1992. His widow Roswitha Janssen and his daughter Melanie Janssen act in his stead in pursuing the case.", "11. The husband of the original plaintiff Mrs Gretel Janssen worked between October 1950 and December 1959 as an asbestos fabric cutter in an area where asbestos mattresses were manufactured. During this period, the workers who were exposed to asbestos dust while working had to clean their clothes themselves. This was done by the original plaintiff Mrs Gretel Janssen for her husband. The husband contracted an asbestos dust–related lung disease (asbestosis), which was recognised as an occupational disease by the Düsseldorf Health Insurance Association (Maschinenbau- und Metall-Berufsgenossenschaft). The Health Insurance Association paid the husband a pension until his death on 21 February 1973 and subsequently a widow’s and orphan’s pension to the surviving family members.", "12. Having contracted a mesothelioma, an asbestosis related disease, Mrs Gretel Janssen applied on 23 December 1985 to the Düsseldorf Health Insurance Association for compensation payments, claiming that her illness was the consequence of the daily cleaning of her husband’s work clothes. On 28 February 1986 the Health Insurance Association dismissed her request holding that her activity was not covered by the industrial health insurance, since she had acted on a strictly private basis and not as an employee.", "13. On 20 March 1986 Mrs Gretel Janssen filed an objection (Widerspruch) against this decision which was rejected on 23 April 1986 by the Appeals Board of the Health Insurance Association.", "14. On 26 May 1986 Mrs Gretel Janssen commenced proceedings before the Duisburg Social Court (Sozialgericht).", "15. On 27 May 1986 the Social Court invited the defendant Health Insurance Association to comment on the claim and to submit the file. On 9 July 1986 Mrs Janssen’s lawyer telephoned the court and requested that a date be fixed for a hearing as soon as possible. He expressed the fear that the plaintiff would not live to attend a hearing in July or August 1986. On 18 July 1986 the Health Insurance Association sent written observations and the administrative file to the Social Court. Mrs Gretel Janssen died on 27 July 1986. Written observations on her behalf were submitted on 18 August 1986. On 13 October 1987 the court received a power of attorney on behalf of the applicants as heirs of Mrs Gretel Janssen without any further explanation. On 9 November 1987 the parties were summoned to appear at a hearing on 26 November 1987. This hearing was cancelled on 23 November 1987.", "16. On 24 November 1987 the plaintiff’s counsel informed the court about Mrs Gretel Janssen’s death. On 17 March 1988 the Social Court requested the plaintiff’s counsel to indicate the successors in title. It sent a reminder on 8 July 1988. The court received the requested information on 25 July 1988.", "17. The proceedings were resumed on 28 July 1988. On 22 November 1988 the parties were summoned to appear at a hearing on 8 December 1988. On 28 November 1988 the plaintiff’s counsel requested to anticipate the hour of the hearing. On 5 December 1988 the Social Court cancelled the hearing. On 14 February 1989 the court set the case down for hearing on 2 March 1989.", "18. On 2 March 1989 the Duisburg Social Court dismissed the action on the ground that, pursuant to Section 539 §§ 1 and 2 of the Social Security Act (Reichsversicherungsordnung), the plaintiff was not insured against accidents at work. The court found that Mrs Gretel Janssen had not been an employee herself, nor had she acted like an employee. She had cleaned her deceased husband’s clothes on ground of their living together, but not with a view to acting for her husband’s employer.", "19. On 10 May 1989 the legal successors of the deceased appealed against the judgment to the Social Court of Appeal (Landessozialgericht) of North Rhine-Westphalia. The appeal was received by the court on 12 May 1989.", "20. At a hearing held on 30 October 1989 the Social Court of Appeal summoned the employer to take part in the proceedings and requested him to submit information as to the kind of work carried out by his former employee between 1950 and 1959 and as to the protection requirements to be complied with. The employer supplied information on 7 December 1989. The defendant filed written pleadings on 22 December 1989. On 24 August 1990 the Social Court of Appeal instructed doctors who had treated Mrs Gretel Janssen to submit reports. The court obtained medical reports from a general practitioner, Dr P., on 2 September 1990 and from a hospital doctor, Dr H., on 10 September 1990. On 21 September 1990 the court requested additional information which was submitted on 4 October 1990.", "21. On 30 October 1990 the Social Court of Appeal had also instructed a medical expert, Prof. W., to submit a report on the awareness at that time of health risks related to the exposure to asbestos and the existence of any protective measures. On 24 August 1990 the Social Court of Appeal had invited Prof. W. to reply to further detailed questions. Prof. W.’s report dated 29 November 1990 was received by the court on 6 December 1990.", "22. On 12 February 1991 the court summoned the Rhineland Communal Accident Insurance Association (Rheinischer Gemeindeunfallversicherungs- verband) as a third party. It further requested Prof. W. to submit an expert opinion on the causes of Mrs Gretel Janssen’s mesothelioma disease. On 17 July 1991 Prof. W. asked the court for certain information.", "23. On 4 November 1991 the court applied to the German Meteorological Service and a witness for further information.", "24. On 23 December 1991 the court sought supplementary advice from Prof. W. and supplied the information he had requested on 17 July 1991. On 30 January 1992 the court reminded the expert to submit his report. The expert opinion dated 26 June 1992 was received by the court on 13 July 1992.", "25. By a judgment of 14 October 1992 the Social Court of Appeal modified the judgment pronounced on 2 March 1989 by the Duisburg Social Court. The Social Court of Appeal considered that Mrs Gretel Janssen’s death was the consequence of an occupational disease. The court granted leave of appeal on points of law holding that the case raised issues of general interest (grundsätzliche Bedeutung).", "26. The Düsseldorf Health Insurance Association lodged an appeal on points of law (Revision).", "27. On 19 November 1992, Mrs Gretel Janssen’s son died. His widow and his daughter continued the proceedings as his legal successors.", "28. By a judgment of 13 October 1993 the Federal Social Court (Bundessozialgericht) set the appellate court’s judgment aside and dismissed the plaintiffs’ appeal. The Federal Social Court considered in particular that Mrs Gretel Janssen’s death was not the consequence of an occupational disease as the cleaning of her husband’s work clothes mainly served the interests of the couple’s household and not the employer’s interests.", "29. On 2 December 1993 the applicants lodged a constitutional complaint alleging that the interpretation of Section 539 of the Social Security Act by the social security courts of first and last instance violated the principle of equality before the law and the right to a fair hearing. Invoking Article 6 of the Convention, the applicants further submitted that proceedings relating to professional diseases allegedly caused by asbestos lasted in general too long.", "30. On 12 January 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the case for adjudication on the ground that the constitutional appeal was inadmissible for lack of substantiation. The court further pointed out that a constitutional complaint could not be based on an alleged violation of the European Convention on Human Rights. This decision was notified to the applicants’ lawyer on 25 January 1994." ]
[ 3 ]
[ "8. On 5 July 1990 the applicant's mother filed an action with the Zagreb Municipal Court (Općinski sud u Zagrebu) against the Municipality of Črnomerec, Zagreb (Općina Črnomerec) concerning her property rights to a part of an apartment building situated within the area of the above municipality.", "9. At the preliminary hearing on 17 January 1991 the defendant disputed the plaintiff’s allegations. On 15 February 1991 the defendant submitted its reply to the plaintiff’s claim. The next hearing took place on 2 February 1993.", "10. By decision of 9 November 1994 the Zagreb Municipal Court decided that it had no jurisdiction in the case. On 6 December 1994 the plaintiff appealed against that decision. On 25 September 1996 the case file was transmitted to the Zagreb County Court (Županijski sud u Gradu Zagrebu) as the appellate court.", "11. On 15 September 1997 the applicant's mother died and the applicant was proclaimed her only heir. He continued the proceedings instituted by his mother.", "12. On 12 May 1998 the Zagreb County Court quashed the first instance decision and remitted the case to the Zagreb Municipal Court. The case was received at that court on 10 June 1998 and was assigned to a judge on 1 January 1999.", "13. The next hearing before the Zagreb Municipal Court took place on 21 September 1999. The parties repeated their claims. According to the applicant on 27 October 1999 and 20 January 2000 he requested the court to speed up the proceedings.", "14. As the law regulating ownership had been changed, on 2 May 2000 the court invited the applicant to adjust his claim to the changes in law.", "15. At the hearing on 19 May 2000 the applicant's counsel submitted the adjusted claim. The court invited the Zagreb Housing Council (Gradsko stambeno komunalno gospodarstvo Zagreb) to submit a list of the flats in the building, the names of the owners and occupiers as well as the legal position of the occupiers and the flats.", "16. The next hearing scheduled for 27 June 2000 was adjourned. The court repeated its request to the Zagreb Housing Council.", "17. At the next hearing on 12 September 2000 the court invited the parties to file their observations concerning the Zagreb Housing Council’s submissions. The next hearing was scheduled for 6 November 2001. The proceedings are pending before the first instance court." ]
[ 3 ]
[ "7. The applicant was born in 1921 and lives in Michałowice, Poland.", "8. In 1976 the applicant’s former wife lodged with the Pruszków District Court (Sąd Rejonowy) an action against the applicant in which she sought the distribution of the common property of their marriage.", "9. Up to 30 April 1993, the Pruszków District Court held eighty-four hearings in the case.", "10. Between 9 July 1993 and 7 April 1995 six hearings took place. During that period the parties filed pleadings with the trial court on eighteen occasions.", "11. During the hearing held on 17 May 1995 the applicant made threats against the plaintiff’s counsel.", "12. Between 11 June and 7 September 1995 the District Court held four hearings and received seven memorials from the parties. One of the memorials submitted by the applicant included a list of forty-one questions to the plaintiff.", "13. On 14 September 1995 the applicant made a request to the Ombudsman that the case be transferred to another court. He also threatened that he would blow himself up with a grenade in the courtroom if his case were not decided in 1996.", "14. On 12 March 1996 the President of the Pruszków District Court decided that, in view of the threats made by the applicant against the court and the plaintiff’s counsel, police officers should be present in the courtroom during the hearing scheduled for the next day. However, on 13 March 1996 the hearing was postponed because counsel for the plaintiff failed to attend.", "15. According to the Government, the hearing fixed for 24 April 1996 was cancelled because on 27 March 1996 the applicant had challenged the presiding judge. The challenge was subsequently dismissed. The applicant submitted that the hearing had been adjourned because the plaintiff’s counsel had been absent.", "16. On 2 July 1996 the applicant challenged all the judges of the Pruszków District Court, but subsequently he withdrew the challenge.", "17. On 8 January 1997 the applicant asked the Vice-President of the Warsaw Regional Court (Sąd Wojewódzki) to transfer the case-file to the Pruszków District Court immediately. He pointed out that the Regional Court had decided his procedural request on 25 November 1996 and the case-file had been lying since then in the archives of the Regional Court. As a result, no judicial activity had taken place during that period. On 22 January 1997 the applicant visited the registry of the Warsaw Regional Court and repeated his complaint of 8 January 1997.", "18. On 6 February 1997 the Vice-President of the Warsaw Regional Court informed the applicant that his complaint was well-founded and apologised to him for the delay in returning the case-file to the Pruszków District Court. He also advised the applicant that on 5 February 1997 the case-file had been transmitted to the District Court and a copy of the Regional Court’s decision of 25 November 1996 had been sent to him.", "19. On 28 May 1997 the applicant filed with the trial court three requests concerning an expert witness and the disputed property.", "20. Hearings took place on 28 May, 30 June and 6 August 1997. During the first of these hearings, the plaintiff replied to forty-one questions submitted by the applicant in 1995.", "21. On 12 August 1997 the applicant filed with the trial court written pleadings concerning the distribution of the property.", "22. On 22 August 1997 the Pruszków District Court ordered the applicant to allow the plaintiff access to a water supply on the contested property. The applicant appealed.", "23. On 31 October 1997 the applicant requested the Pruszków District Court to transmit the case-file to the Warsaw Regional Court so that it could decide his appeal against a procedural decision taken by the District Court. On 12 November 1997 the applicant renewed his request in a letter addressed to the Vice-President of the Warsaw Regional Court. He also threatened that he would commit suicide in the courtroom and set fire to the court building if the proceedings in his case were not concluded speedily.", "24. Between 16 July 1998 and 26 May 1999 the District Court held four hearings and issued one decision. During that time, the court received written pleadings on six occasions.", "25. On 3 April 2000 the applicant filed with the District Court written pleadings setting out his terms for a settlement of the case.", "26. On 27 November 2000 the applicant challenged all the judges of the Pruszków District Court.", "27. The proceedings are apparently still pending." ]
[ 3 ]
[ "7. On 3 June 1994 an action in defamation (üble Nachrede) was brought against the applicant. He was suspected of having abused another person in the course of an altercation. Trial hearings were held on 8 November 1994, 8 May 1995 and 3 October 1995 before the Herzogenburg District Court (Bezirksgericht). On the latter date the applicant was convicted of defamation and sentenced to a fine.", "8. On 4 March 1996, following the applicant’s appeal, the St. Pölten Regional Court quashed the sentence because of errors of procedure and law, and referred the case back to the District Court. It found, inter alia, that the District Court had relied on evidence that had been precluded.", "9. On 17 February 1997, after hearings on that date and 10 January 1997, the District Court convicted the applicant again, qualifying the incriminated behaviour this time as an insult (Beleidigung).", "10. On 8 January 1998, following the applicant’s appeal, the St. Pölten Regional Court quashed the sentence again and referred the case back to the District Court. The Court of Appeal found that the District Court had failed to take evidence concerning the applicant’s intentions.", "11. On 18 May 1998 the District Court again convicted the applicant of insult. On 25 January 1999 the St. Pölten Court of Appeal dismissed the applicant’s appeal. The decision was served on 27 April 1999." ]
[ 3 ]
[ "9. Immediately following its birth in a private clinic, “La Madonnina”, in Cosenza the applicant's new-born baby was admitted to the intensive care unit of Cosenza Hospital suffering from serious respiratory and neurological post-asphyxia syndrome induced by the position in which it had become lodged during delivery. The baby died on 9 February 1987, two days after birth.", "10. On 10 February 1987 the applicants lodged a complaint. The Cosenza public prosecutor's office started an investigation that same day.", "11. On 12 February 1987 Ms Ciglio was questioned as a witness. A team of three expert witnesses was named.", "12. As nothing further happened in the proceedings, the applicants made several requests, notably on 16 October 1987, and 12 April and 30 June 1988, for the investigation to be expedited. On 16 November 1988 the public prosecutor's office itself requested the expert witnesses to lodge their report.", "13. On 19 June 1989 the applicants were informed that at the request of the public prosecutor's office, the investigating judge had notified E.C. – the doctor responsible for delivering the baby and the joint owner of the clinic – that charges would be brought against him.", "14. Subsequently, the scheduled questioning of certain witnesses on 18 July 1989 did not take place, as the judge dealing with the case was on holiday.", "15. Meanwhile, on 7 July 1989, the applicants were joined to the proceedings as civil parties.", "16. On 19 January 1990 the prosecution applied for the complaint to be filed away without further action. That application was dismissed on 24 May 1990.", "17. On 3 October 1990 the investigating judge instructed the public prosecutor's office to make further inquiries. Consequently, on 29 November 1990 the deputy public prosecutor ordered forensic tests. The results were made available on 5 January 1991.", "18. On 12 June 1991 E.C. was committed for trial before the Cosenza Criminal Court on a charge of involuntary manslaughter and the applicants renewed their application to be joined to the proceedings as civil parties.", "19. The first hearing was set down for 2 July 1992 but had to be adjourned because of a lawyers' strike. The next hearing on 15 October 1992 was also adjourned due to a delay in service of a summons on the accused to appear.", "20. A new hearing date was fixed for 15 January 1993. On that date an order was made for the accused's trial in absentia. The trial did not begin, however, until 19 March 1993, as meanwhile the accused had changed lawyers. The hearing scheduled for 29 April 1993 was adjourned until 3 June 1993 as the composition of the bench was not the same as that to which the case had been allocated. The trial thereafter continued with hearings on 27 May, and 10 and 17 June (the latter hearing being adjourned as one of the expert witnesses appointed by the court had to be replaced). A hearing on 15 July 1993 was adjourned to 16 September 1993, again owing to the fact that the composition of the bench was not the same as that to which the case had been allocated. There were further hearings on 14 and 26 October 1993. On the latter date the order for the accused's trial in absentia was revoked, but the hearing had to be adjourned as the expert witnesses failed to attend without due cause (they were ordered to pay a fine and to attend the next hearing on 14 December). A final hearing took place on 17 December 1993. The accused, who had attended the hearings on 26 October and 14 December 1993, was not present at that hearing.", "21. At the hearing on 17 December the Cosenza Criminal Court found the accused guilty in absentia of involuntary manslaughter. Its judgment was lodged with the registry on 19 February 1994. The Criminal Court sentenced the accused to one year's imprisonment and ordered him to pay the civil parties' costs together with compensation to be assessed at a later date.", "22. It found firstly that the accused knew that the birth had to be regarded as high risk since the mother was a level-A diabetic and had a past history of confinements that had been equally difficult because of the size of the foetus. The risks inherent in deliveries in such circumstances, which the expert witnesses appointed by the Criminal Court described as readily foreseeable, meant that precautionary measures should have been taken and that the doctor in charge should have been present. The Criminal Court found, however, that E.C., whom the applicant had consulted during the pregnancy, had made no arrangements for precautionary measures, such as an external examination of the mother, to assess whether the foetus was too large for a natural birth. Above all, he had absented himself during the birth. When the complications had occurred, it had taken the nursing staff six or seven minutes to locate E.C., who was busy seeing patients in another part of the clinic. The intervening delay before E.C. was able to perform the manipulation necessary to extract the foetus had significantly reduced the new-born's chances of survival.", "23. The Criminal Court nevertheless suspended the sentence and ordered that the conviction should not appear on E.C.'s criminal record. In addition, it dismissed the civil parties' application for a provisional award of compensation.", "24. On 17 March 1994 E.C. appealed to the Catanzaro Court of Appeal.", "25. In a judgment of 3 August 1994, which was delivered in absentia and lodged with the registry on 17 August 1994, the Court of Appeal declared the appeal inadmissible. Noting that he had been tried in absentia at first instance, the Court of Appeal held that E.C. had failed to give his lawyer the authority to act required under the rules applicable in such cases. It ordered him to reimburse the costs incurred by the civil parties in the proceedings.", "26. On 7 October 1994 E.C. appealed to the Court of Cassation. In a judgment of 22 December 1994, which was lodged with the registry on 23 January 1995, the Court of Cassation overturned the decision of the Catanzaro Court of Appeal, to which it remitted the case for a retrial. It held that the Court of Appeal had erred in treating E.C. as being absent, as he had been present at the start of the trial and had accordingly to be regarded as having left the court during the trial and not as liable to trial in absentia.", "27. In a judgment of 3 July 1995, which was lodged with the registry on 10 July 1995, the Catanzaro Court of Appeal ruled that the prosecution of the offence was time-barred.", "28. In so doing, it noted that the limitation period for the offence of which E.C. was accused had expired on 9 August 1994, in other words, even before the Court of Cassation had delivered its judgment.", "29. Following E.C.'s conviction at first instance by the Cosenza Criminal Court on 19 February 1994 (see paragraphs 21-22 above), the applicants served a summons requiring E.C. to appear before the civil court of that town.", "30. However, on 27 April 1995 the applicants entered into an agreement with the insurers of the doctor and the clinic under which the insurers were to pay 95,000,000 Italian lire (ITL) for any damage sustained by the applicants. Of that sum, ITL 15,000,000 were designated as reparation for the special loss sustained by Ms Ciglio. At that time, the criminal proceedings were pending in the Catanzaro Court of Appeal following the Court of Cassation's judgment of 22 December 1994 (see paragraph 26 above).", "31. Subsequently, as the parties failed to attend a hearing on 16 November 1995, the case was struck out of the civil court's list. At that stage, the criminal proceedings had only just ended, the Court of Appeal's ruling that the prosecution of the offence was time-barred having become final on 17 October 1995." ]
[]
[ "9. On 8 May 1996 the applicant was arrested in New York (USA) and placed in detention on the basis of a extradition request from the authorities of the Netherlands Antilles where he had been charged with embezzlement and forgery. He was extradited to the Netherlands Antilles on 30 May 1996 and detained in the Pointe Blanche Penitentiary on the island of St. Maarten.", "10. In a document dated 18 June 1996 bearing the applicant’s signature, it is stated that the applicant appointed Mr D. Gebhardt as the:\n“true and lawful Attorney in my name, place and stead and for my use and benefit: To exercise any or all of the following powers as to my criminal case in the Netherlands Antilles, any interest therein and thereon. To appoint or terminate lawyers, receive and take possession of documents, to ask demand, sue for, recover, collect and receive all necessary documents in my criminal case, and appeal any decision, file complaints and whatsoever. Giving and granting to my said Attorney full powers and authority ... until this power is revoked.”", "11. On 11 December 1996, following adversarial proceedings during which the applicant was assisted by Mr R. – a local legal aid lawyer to whom the case had been assigned –, the First Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles convicted the applicant of embezzlement and fraud and sentenced him to three years and nine months’ imprisonment. Both the applicant and the public prosecutor filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba.", "12. On 7 October 1997, following adversarial proceedings during which the applicant was represented by Mr J. – a local lawyer –, the Joint Court of Justice quashed the judgment of 11 December 1996, convicted the applicant of embezzlement and forgery and sentenced him to three years’ imprisonment. Although on 13 October 1997 the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), he subsequently withdrew this appeal. Consequently, the Joint Court of Justice’s judgment of 7 October 1997 became final. On 27 February 1998, after having served his sentence, the applicant was released from prison.", "13. On 21 September 1996 the applicant sent a letter of complaint about the conditions of detention in the Point Blanche Penitentiary, where he was held, to one of the judges of the First Instance Court of St. Maarten, in the latter’s capacity as a member of the Prisons and Remand Centres Supervisory Board (Commissie van Toezicht Gevangeniswezen en Huizen van Bewaring).", "14. In this letter, in which the applicant referred to a conversation he had had with this judge on 20 September 1996, the applicant explained, among other things, that inmates were locked in their cells for 21 hours a day with nothing to do, that after ten days’ detention in Point Blanche an inmate was permitted on the following Saturday a maximum of four sheets of paper and four envelopes, that there were no telephone facilities apart from previously announced incoming telephone calls not exceeding fifteen minutes, that inmates had to provide for their own clothing and bed linen, which they had to wash in the showers or primitive sinks during recreation, that toilets did not flush and that shower taps and pipes were leaking. In his letter the applicant suggested practical solutions for these matters and explained why such solutions would be beneficial for all concerned.", "15. On 13 January 1998, the applicant informed the European Commission of Human Rights (“the Commission”) that he had been transferred to the Koraal Specht Prison on the island of Curaçao for medical reasons and had been admitted to the infirmary there. The applicant stated that, apart from the bathroom, the infirmary had no lights after sunset and inmates remained locked in for 23 hours a day.", "16. In his letter of 5 February 1998, the applicant informed the Commission that, on 31 January 1998, he had been transferred from the infirmary to the adjacent old infirmary building, where he was detained in a cell of about 5 metres long and 3 metres wide. He shared this cell with three other persons. Two slept on temporary beds, two others on the floor. He was provided with a foam mattress. No sheets or blankets were provided and he was not allowed to retrieve his own sheets from his personal belongings. He stated that he used a towel as a cover.", "17. By letter of 7 April 1997, Mr D. Gebhardt, who initially represented the applicant in the proceedings before the Commission and subsequently the Court, complained to the Director of the Point Blanche Penitentiary that his letters to the prisoners there, including the applicant, had been opened and withheld by the prison authorities although these letters were marked “from lawyer to client”. Mr Gebhardt drew the Director’s attention to the Court’s judgment of 25 February 1992 in the case of Campbell v. the United Kingdom (Series A no. 233). He requested the Director to ensure that his earlier letters, which had been withheld in the past, be delivered to the addressees and that his clients be provided with official letter paper for their correspondence with him.", "18. By letter of 9 April 1997, enclosing a copy of his letter of 7 April 1997 to the Director of the Point Blanche Penitentiary, Mr Gebhardt filed a complaint against the Director of the Point Blanche Penitentiary with the Governor (Gouverneur) of the Netherlands Antilles. Apart from other general problems concerning this Director’s activities, Mr Gebhardt complained that the Point Blanche prison authorities had restricted the applicant’s possibilities to acquaint himself with the contents of his case-file, a copy of which his defence lawyer had given him. On the basis of these restrictions, the lawyer retrieved the documents, as the lawyer-client privilege was not guaranteed. Mr Gebhardt requested the Governor to ensure that the principle of confidentiality between lawyers and their clients be respected by issuing the necessary instructions to the Director of the Point Blanche Penitentiary.", "19. On 22 July 1997, the Cabinet of the Governor informed Mr Gebhardt that the Governor had received a report on these matters from the Minister of Justice and that the latter had been requested on 13 June 1997 to answer Mr Gebhardt’s letter. On 25 September 1997, the Cabinet of the Governor informed Mr Gebhardt that the Minister of Justice had been reminded to answer Mr Gebhardt’s letter.", "20. On 1 September 1997, Mr Gebhardt informed the Governor of the Netherlands Antilles that he had not yet received any response from the Minister of Justice of the Netherlands Antilles. Mr Gebhardt further stated the applicant had appointed him to represent him in proceedings before the Commission, in which context the applicant needed to sign a power of attorney sent to Mr Gebhardt by the Commission’s Secretariat. With reference to his letter of 9 April 1997, Mr Gebhardt stated that, contrary to Article 8 of the Convention, the prison authorities were blocking his access to the applicant. Mr Gebhardt therefore requested the Governor to ensure that the applicant would receive and return the Commission’s standard letter of authority.", "21. On 27 September 1997, the public prosecutor of St. Maarten, to whom Mr Gebhardt’s letter of 1 September 1997 had been forwarded, sent the power of attorney signed by the applicant to Mr Gebhardt.", "22. As in the meantime Mr Gebhardt had also informed the Commission’s Secretariat that he had had difficulties obtaining access to the applicant, the Secretariat of the Commission sent a letter on 1 October 1997 to the applicant directly, requesting him to complete, sign and return a power of attorney for his representation by Mr Gebhardt in the proceedings before the Commission.", "23. On 28 October 1997, the Commission’s Secretariat received the completed and signed letter of authority from the applicant directly. The letter was stamped by the St. Maarten prison authorities and bore an illegible mark written by hand with a red ink ballpoint pen, which appeared to be a prison officer’s visa. In the accompanying letter, the applicant informed the Commission that the prison authorities had opened the Commission’s letter of 1 October 1997.", "24. By letter of 14 November 1997, the Commission’s Secretariat requested the applicant to provide further details as to the opening of the Commission’s letter of 1 October 1997 and the control exercised by the prison authorities of correspondence between the applicant and the Commission.", "25. On 12 December 1997, the Commission received the applicant’s reply, stating that he had also received the Commission’s letter of 14 November 1997 after it had been opened by the prison authorities. When the letter was given to him, he was told that it had been opened by mistake and that, after it had been read, it had not been stamped. The applicant submitted the original of the Commission’s letter of 1 October 1997 – which carried the same stamp and red ballpoint mark as the authority form – and the original letter of 14 November 1997 which carried no stamp or other mark.", "26. In his letter, the applicant explained that the prison stamp on his letters to the Commission had been placed on blank paper prior to his writing on it. He had addressed this letter to the President of the European Commission and had sealed the envelope himself, as only letters addressed to the President of the European Commission were exempted from control by the prison authorities and, consequently, could be sealed by inmates themselves. He further stated he was not allowed to personally seal his mail to his lawyer.", "27. On 20 December 1997, Mr Gebhardt addressed a complaint to the Office of the Public Prosecutor of St. Maarten about problems at the Point Blanche Penitentiary in respect of his correspondence with various detainees there. The applicant was not included in the list of detainees cited. Referring to Article 8 of the Convention, Mr Gebhardt requested the public prosecutor to ensure that any correspondence between detainees and the Commission and between detainees and himself be treated as confidential by the Point Blanche Prison authorities.", "28. In his letter of 5 February 1998, the applicant informed the Commission that on 20 January 1998 he had received a letter from his lawyer which had been opened.", "29. On 10 June 1997, Mr Gebhardt addressed a letter concerning the applicant’s case to the Queen of the Netherlands. On 24 July 1997, Mr Gebhardt was informed by the Minister for Netherlands-Antillean and Aruban Affairs that the letter of 10 June 1997 had been forwarded to this Ministry. Since the applicant’s case was still sub iudice, the Minister stated that:\n“the Antillean judicial authorities still have to judge your defence statement, in which your refer to the treatment of your client. I have full confidence in the judgment of these authorities.”\nMr Gebhardt was further informed that a copy of his letter had been sent to the Governor of the Netherlands Antilles, requesting the latter to bring the matter to the attention of the Minister of Justice.", "30. On 26 August 1997, Mr Gebhardt addressed a petition to the Queen of the Netherlands requesting the applicant’s release, arguing that the applicant was being unlawfully detained in inhuman conditions.", "31. On 5 December 1997, Mr Gebhardt addressed a further letter to the Queen of the Netherlands in which he gave an account of the applicant’s state of health while in detention and, among other things, complained of the lack of response to these problems from the authorities. He requested the Queen to intervene in order to obtain medical parole for the applicant.", "32. On 23 December 1997, with reference to the letter of 24 July 1997, Mr Gebhardt informed the Minister for Netherlands-Antillean and Aruban Affairs that neither the Governor of the Netherlands Antilles nor the Minister of Justice of the Netherlands Antilles had replied." ]
[ 4 ]
[ "10. On 25 October 1991 the Investigating Judge at the Graz Regional Court (Landesgericht) issued a warrant of arrest against the applicant on suspicion of having committed fraud and falsification of documents. The suspicion related to the applicant’s business activities, and in particular two real estate investment projects. The Investigating Judge issued a search warrant ordering a house search at the premises of the SDBV company, a private company (Gesellschaft mit beschränkter Haftung) for which the applicant acted as general manager. The seizure of documents relating to the real estate investment projects was also ordered. That same day the warrant, search and seizure were executed, the latter in the presence of the Investigating Judge. Later in the day the Investigating Judge questioned the applicant and ordered his detention on remand as he found that there existed a danger of the applicant absconding and collusion. As regards the risk of collusion, the Investigating Judge found that there was the danger that the applicant would attempt to influence the employees of the SDBV company and to remove documents which had not been found at the house search.", "11. On 27 October 1991 the applicant requested his release from detention on remand.", "12. On 6 November 1991 the Review Chamber (Ratskammer) of the Graz Regional Court, after an oral hearing in the presence of the applicant, his defence counsel and the Public Prosecutor, dismissed his request. The Review Chamber found that no danger of absconding existed. However, the danger of collusion continued to exist as the applicant might try to influence witnesses not yet heard and to remove any traces of the offence. There was also a danger of his committing further offences. On 20 November 1991 the applicant appealed. At an unspecified date also the Public Prosecutor appealed, arguing that detention on remand should also be based on the risk of the applicant absconding.", "13. Meanwhile, on 11 November 1991, the Investigating Judge ordered that the applicant’s contacts with his defence counsel should take place under the surveillance of the court because of the existence of a danger of collusion. The Investigating Judge found that this measure was necessary because co-suspects were still at large, several witnesses had not yet been heard and there was a risk that the applicant could influence them. The Investigating Judge stated that the validity of this order would expire at the latest when the two-month statutory time-limit for detention on remand based on the risk of collusion would end. The applicant appealed against this decision. He submitted that he did not oppose this measure in principle, however, the measure constituted an unnecessary limitation on his defence rights and the Investigating Judge had failed to order this measure within 14 days as prescribed by law.", "14. On 21 November 1991 the Review Chamber dismissed the applicant’s appeal against the Investigating Judge’s search warrant and the order for surveillance of the applicant’s contacts with his defence counsel. As regards the complaint about the surveillance of the applicant’s contacts with counsel, the Review Chamber found the Investigating Judge’s decision to be correct. This order did not involve any criticism of counsel or any reproach of conduct contrary to law or the disciplinary rules of the members of the bar, but merely had the purpose of preventing any contact whatsoever with third persons in order not to endanger the success of the criminal investigation. The present case concerned the complicated business relations of the SDBV and several other companies managed by the applicant, and the flow of money between them. Further witnesses could only be identified after all the documents seized had been examined and the applicant was to be prevented from influencing them. Furthermore, the decision had been taken within the time limit prescribed by S. 193 § 3 of the Code of Criminal Procedure. The Review Chamber also found the applicant’s complaint that he did not have sufficient access to his case-file unfounded. The Investigating Judge had granted access to the file to the official receiver of the SDBV company and the applicant’s defence counsel, the latter also being given the possibility to make copies of the documents in the file. The applicant’s counsel visited him repeatedly and could have given him copies if he so wished. Moreover, when questioned by the Investigating Judge, the applicant was informed of the contents of the file and about the statements of witnesses already heard.", "15. On 28 November 1991 the Graz Senior Public Prosecutor commented on the applicant’s appeal of 20 November 1991. These comments were not served on the applicant.", "16. On 12 December 1991 the Graz Court of Appeal (Oberlandesgericht) dismissed the appeal lodged by the applicant but granted the Public Prosecutor’s appeal. It found that a serious suspicion existed against the applicant and referred to the details of the criminal investigation. There also existed a danger that the applicant would abscond.", "17. On 15 January 1992 the Review Chamber, after having held an oral hearing, dismissed a further request of the applicant for release. On 13 February 1992 the Court of Appeal dismissed the applicant’s appeal. On 11 March 1992 the Review Chamber dismissed a further request for release by the applicant.", "18. After his conviction on 21 June 1992, the applicant filed further requests for release from detention on remand. Such requests were refused by the Review Chamber on 3 February 1993 and 6 April 1993. Appeals were dismissed by the Court of Appeal on 18 February 1993 and 29 April 1993 respectively.", "19. On 14 February 1992 the Graz Public Prosecutor filed a bill of indictment against the applicant charging him with aggravated fraud.", "20. On 21 April 1992 the trial against the applicant started before the Graz Regional Court. It lasted until 21 June 1992. In the course of the trial the Regional Court heard 52 witnesses, some of them repeatedly on the applicant’s request. Furthermore 5 experts on book-keeping, building and construction matters, real estate assessment, medicine and psychiatry were heard. The applicant frequently requested that the trial be adjourned for lengthy periods and, towards the end of the trial, requested that the trial be repeated or that the case be remitted to the Investigating Judge. On 21 June 1992 the court convicted the applicant of aggravated fraud and sentenced him to four and a half years’ imprisonment. It also acquitted the applicant of an additional charge of fraud raised by the Public Prosecutor at the trial.", "21. On 9 September 1992 the judgment of some 150 pages and the transcript of the trial of some 1400 pages were served on the parties.", "22. On 1 October 1992 the Public Prosecutor filed a plea of nullity and appeal against that part of the sentence concerning the applicant’s acquittal. On 5 October 1992 the applicant filed a plea of nullity and appeal.", "23. On 22 October 1992 the applicant commented on the plea of nullity lodged by the Public Prosecutor. Since he claimed that until the expiration of the time-limit for filing his plea of nullity the defence had had insufficient possibilities to inspect the file, the Supreme Court, on 24 December 1992, decided that the applicant should be granted a new time- limit for filing his plea of nullity and appeal.", "24. On 19 February 1993 the applicant again filed a plea of nullity and an appeal against sentence. The writ repeated in substance the arguments raised earlier.", "25. On 30 March 1993 the Graz Public Prosecutor withdrew the plea of nullity.", "26. On 27 April 1993 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity:\n\"In the view of the Procurator General the plea of nullity of the accused Bernhard Lanz can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested. The plea of nullity lodged by the Public Prosecutor’s Office has been withdrawn by the attached declaration of 30 March 1993.\"", "27. On 9 June 1993 the Supreme Court, sitting in camera, rejected as inadmissible the applicant’s plea of nullity.", "28. On an unspecified date, the Senior Public Prosecutor submitted written comments on the applicant’s appeal.", "29. On 30 August 1993 the Graz Court of Appeal, after an oral hearing in which the applicant and his defence counsel participated, granted the Public Prosecutor’s appeal against the applicant’s sentence and increased it to five and a half years’ imprisonment. In weighing the mitigating and aggravating circumstances, the court found that a higher sentence was called for." ]
[ 2, 3 ]
[ "6. On 24 July 1996 police officers from the Istanbul Security Directorate arrested the applicant in his house and placed him in custody in the course of an investigation conducted against the members of the PKK.", "7. In a letter dated 25 July 1996 the Istanbul Security Directorate informed the office of the public prosecutor at the Istanbul State Security Court that on account of the applicant’s confessions the police officers had conducted a search in the applicant’s house and found several explosives. In the same letter the Istanbul Security Directorate requested the Istanbul State Security public prosecutor to authorise the extension of the applicant’s detention period. On the same date the Istanbul State Security Court public prosecutor authorised the Istanbul Security Directorate to extend the detention period until 5 August 1996.", "8. On 5 August 1996 the applicant was questioned by the public prosecutor at the Istanbul State Security Court. During his questioning the applicant partly confirmed the veracity of his statement he gave in police custody on account of his involvement in the PKK.", "9. On 5 August 1996 the applicant was questioned by the investigating judge at the Istanbul State Security Court. The applicant rejected his involvement in the PKK and the accusations mentioned in the statement he gave in police custody. On the same date the investigating judge ordered the applicant’s detention on remand.", "10. At a hearing on 18 October 1996 before the Istanbul State Security Court the applicant rejected the allegations against him and stated that he had been forced to sign a statement without having read it. The applicant confirmed the veracity of the statements he gave before the public prosecutor and the investigating judge.", "11. At two hearings on 18 October 1996 and 9 December 1996 the Istanbul State Security Court rejected the applicant’s requests for release pending trial.", "12. On 23 May 1997 the Istanbul State Security Court convicted the applicant of aiding and abetting the PKK pursuant to Article 169 of the Turkish Criminal Code and Article 5 of Law No. 3713. It sentenced the applicant to five years’ imprisonment and debarred him from employment in public service.", "13. On 20 June 1997 the applicant lodged an appeal with the Court of Cassation against the decision of the Istanbul State Security Court.", "14. On 12 March 1998 the Court of Cassation upheld the decision of the Istanbul State Security Court." ]
[ 1 ]
[ "7. Mr Ján Čonka, Mrs Mária Čonková, Miss Nad'a Čonková and Miss Nikola Čonková are Slovakian nationals of Roma origin who were born in 1960, 1961, 1985 and 1991 respectively. The first two applicants are the parents of the third and fourth applicants.", "8. The applicants say that on several occasions between March and November 1998 they were violently assaulted by skinheads in the Slovak Republic. Indeed, in November 1998 Mr Čonka had been so seriously injured in an assault that he had had to be hospitalised. The police had been called but had refused to intervene. Several days later Mr and Mrs Čonka had been subjected to renewed insults and threats by skinheads, but the police had again refused to intervene.\nAs a result of those constant threats, the applicants had decided to flee Slovakia and travel to Belgium, where they had arrived at the beginning of November 1998: Mr Čonka and the two minor children on 6 November and Mrs Čonka two days later.", "9. On 12 November 1998 the applicants requested political asylum in Belgium.", "10. On 3 March 1999 their applications for asylum were declared inadmissible by the Minister of the Interior through the Directorate-General of the Aliens Office on the ground that they had not produced sufficient evidence to show that their lives were at risk in Slovakia for the purposes of the Geneva Convention relating to the Status of Refugees. The decisions refusing permission to remain in Belgium were accompanied by a decision refusing permission to enter the territory itself, endorsed with an order to leave the territory within five days.", "11. On 5 March 1999 the applicants lodged an appeal under the urgent-applications procedure with the Commissioner-General for Refugees and Stateless Persons (“the Commissioner-General”) against the decisions refusing them permission to remain in Belgium.", "12. On 14 April 1999 Mr Čonka was invited to attend the Commissioner-General's Office to set out his grounds for seeking asylum. He failed to keep the appointment.", "13. On 23 April 1999 Mrs Čonková, assisted by an interpreter, was heard by representatives of the Commissioner-General's Office at Ghent Prison, where she was in custody pending trial. On 17 May 1999 she was sentenced to eight months' imprisonment for theft by the Ghent Criminal Court.", "14. On 18 June 1999 the Commissioner-General's Office upheld the decision of the Aliens Office refusing the applicants permission to remain. Its decision in Mr Čonka's case was based on his failure to attend his appointment without showing due cause. As regards Mrs Čonková, in some two pages of reasons the Commissioner-General pointed out major discrepancies in her deposition and expressed serious doubts about her credibility.\nFor example, Mrs Čonková had declared among other things that on 4 November 1998 her husband, Mr Čonka, had been assaulted by skinheads so violently that he had had to be taken to hospital. The police had been called but had not come out. That incident had been the direct cause of their decision to flee Slovakia. However, the Commissioner-General considered that statement to be refuted by the fact that the travel tickets had been issued before the above incident of 4 November: Mrs Čonková's plane ticket on 2 October and her husband's and their children's bus tickets for the journey to Belgium on 2 November 1998. Furthermore, Mrs Čonková's account of the incident did not match her stepdaughter's, in particular on the important issue of whether the police had attended the scene.\nThe Commissioner-General stipulated in his decisions that the applicants could be deported to the country from which they had fled (Slovakia), and that for the purposes of calculating the five-day period for leaving the territory, which had been suspended by the application under the urgent procedure, time began to run again from the date of service of the decisions on the applicants.", "15. On 24 June 1999 Mrs Čonková was released and a new order was served on her to leave the territory within five days, that is to say by midnight on 29 June.", "16. On 3 August 1999 the applicants lodged applications with the Conseil d'Etat for judicial review of the decision of 18 June 1999 and for a stay of execution under the ordinary procedure. They also applied for legal aid.", "17. On 23 September 1999 the Conseil d'Etat dismissed the applications for legal aid on the grounds that they had not been accompanied by the means certificate required by Article 676-3 of the Judicial Code, a photocopy, rather than the original, of the certificate having been enclosed with Mrs Čonková's application. Consequently, the applicants were invited by the orders refusing legal aid to pay the court fees within fifteen days after service. As they failed to respond to that invitation, their applications for judicial review and for a stay of execution were struck out of the list on 28 October 1999.", "18. At the end of September 1999 the Ghent police sent a notice to a number of Slovakian Roma families, including the applicants, requiring them to attend the police station on 1 October 1999. The notice was drafted in Dutch and Slovak and stated that their attendance was required to enable the files concerning their applications for asylum to be completed.", "19. At the police station, where a Slovak-speaking interpreter was also present, the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and their detention for that purpose. The documents served, which were all in identical terms, informed the recipients that they could apply to the Conseil d'Etat for judicial review of the deportation order and for a stay of execution – provided that they did so within sixty days of service of the decision – and to the committals division (chambre du conseil) of the criminal court against the order for their detention. According to the Government, some of the aliens concerned were nevertheless allowed to leave the police station of their own free will on humanitarian grounds or for administrative reasons.", "20. A few hours later the applicants and other Roma families, accompanied by an interpreter, were taken to a closed transit centre, known as “Transit Centre 127 bis”, at Steenokkerzeel near Brussels Airport. It appears that the interpreter only remained at the centre briefly. According to the Government, he could have been recalled to the centre at the applicants' request. The applicants say that they were told that they had no further remedy against the deportation order.", "21. While at the centre, the Slovakian families received visits from a delegation of Belgian members of Parliament, the Slovakian Consul, delegates of various non-governmental organisations and doctors. At 10.30 p.m. on Friday 1 October 1999 the applicants' counsel, Mr van Overloop, was informed by the President of the Roma Rights League that his clients were in custody. Taking the view that he was still instructed by them, Mr van Overloop sent a fax on 4 October 1999 to the Aliens Office informing it that the applicants were in Transit Centre 127 bis awaiting repatriation to Slovakia. He requested that no action be taken to deport them, as they had to take care of a member of their family who was in hospital. However, Mr van Overloop did not appeal against the deportation or detention orders made on 29 September 1999.", "22. On 5 October 1999 the families concerned were taken to Melsbroek Military Airport, where the seat numbers allocated to them in the aircraft were marked on their hands with a ballpoint pen. The aircraft left Belgium for Slovakia at 5.45 p.m.", "23. Shortly afterwards the Minister of the Interior declared in reply to a parliamentary question put on 23 December 1999:\n“Owing to the large concentration of asylum-seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia. ... Reports I have received from the mayor of Ghent and the Director-General of the Aliens Office indicate that the operation was properly prepared, even if the unfortunate wording of the letter sent by the Ghent police to some of the Slovaks may have been misleading. Both the Aliens Office and the Ghent Police Department were surprised by the large number of Slovaks who responded to the notice sent to them. That factual circumstance resulted in their being detained in Transit Centre 127 bis for deportation a few days later. ...”" ]
[ 2 ]
[ "8. The applicant is a child born out of wedlock on 25 November 1996. On 30 January 1997 the applicant and her mother filed a civil suit against H.P. before the Zagreb Municipal Court (Općinski sud u Zagrebu) in order to establish paternity.", "9. At the hearing on 17 June 1997 the Municipal Court pronounced judgment by default against the defendant. The adoption of such a judgment, however, is expressly prohibited by the Marriage and Family Act (Zakon o braku i porodičnim odnosima – 1977, 1980, 1982, 1984, 1987, 1989, 1990, 1992 and 1999) in “civil-status matters” (statusni sporovi). On 1 July 1997 the defendant appealed against that judgment.", "10. At the hearing on 6 October 1997 the Zagreb Municipal Court annulled its own judgment. The next hearing was scheduled for 9 December 1997.", "11. Meanwhile, H.P. filed a motion accusing the presiding judge of bias, which was allowed on 27 January 1998 by the President of the Zagreb Municipal Court. Consequently, on 23 February 1998 the case was transferred to another judge.", "12. The hearing scheduled for 18 June 1998 was adjourned owing to the absence of H.P.'s counsel.", "13. The hearing scheduled for 14 July 1998 was adjourned as H.P.'s counsel had died.", "14. At the hearing on 14 October 1998 H.P.'s new counsel argued that the applicant's mother had had relations with persons other than H.P. at the relevant time (exceptio plurium concubentium) and invited the court to summon several witnesses.", "15. At the hearing on 21 January 1999 only two witnesses were heard, as the other witnesses failed to appear.", "16. At the next hearing on 18 March 1999 the court ordered a DNA blood test. The appointment at the relevant clinic was scheduled for 21 May 1999, but H.P. failed to appear.", "17. The next appointment was scheduled for 18 June 1999, but H.P. informed the court that he would be absent from 1 June 1999 until 15 September 1999.", "18. On 19 July 1999 the court ordered another appointment for the blood test, which was scheduled for 27 September 1999, but H.P. again failed to appear.", "19. On 13 October 1999 the court ordered a fourth appointment, scheduled for 22 October 1999, but H.P. informed the court that he would be absent that day.", "20. On 28 November 1999 the court ordered a fifth appointment, scheduled for 6 December 1999, and once again H.P. failed to appear.", "21. The next hearing scheduled for 17 February 2000 was adjourned as H.P. did not appear.", "22. At the hearing on 29 February 2000 the court heard testimonies from the parties and scheduled the sixth appointment for the DNA tests for 25 April 2000, at which H.P. failed to appear.", "23. The next hearing, scheduled for 5 June 2000, was adjourned, as H.P. did not appear.", "24. On 12 July 2000 the court concluded the trial.", "25. On 3 October 2000 the applicant's counsel received the Municipal Court's judgment of 12 July 2000 establishing the defendant's paternity and granting the applicant maintenance. The first-instance court found that the fact that the defendant had been avoiding DNA tests supported the applicant's claim. On 27 November 2000 H.P. appealed against the judgment.", "26. On 3 April 2001 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case for retrial. The appellate court found that the first-instance court had failed to establish all the relevant evidence and that H.P.'s paternity could not have been established primarily on his avoidance of DNA tests. It ordered the first-instance court to hear several witnesses who, as alleged by H.P., had had intimate relationships with the applicant's mother during the critical period.", "27. On 15 May and 13 July 2001 the applicant requested the President of the Supreme Court to speed up the proceedings.", "28. The hearings scheduled for 26 July and 30 August 2001 in the Zagreb Municipal Court were adjourned because H.P. and his counsel did not appear.", "29. At the hearing on 27 September 2001 H.P.'s counsel accused the presiding judge of bias.", "30. On 19 November 2001 the court of first instance concluded the trial and gave judgment, establishing the defendant's paternity and granting the applicant maintenance. It found that H.P.'s avoidance of DNA tests corroborated the applicant's mother's testimony that H.P. was the applicant's father.", "31. On 7 December 2001 the applicant filed an appeal against the first-instance judgment, objecting to the amount of maintenance H.P. would have to pay her. H.P. also appealed against the judgment.", "32. It appears that the proceedings are currently pending before the appellate court." ]
[ 3, 4 ]
[ "10. In a statement taken and recorded by police on 30 September 1987, one Mr A. said that he had been kidnapped and beaten up by two unknown men. He suspected that they had acted on the orders of another man, Mr G., and that his kidnap had constituted an act of revenge for a burglary that he, Mr A., was rumoured to have carried out. On 11 April 1988 preliminary judicial investigations were initiated into allegations that the applicant and an accomplice, Mr D., had intentionally deprived Mr A. of his liberty on 30 September 1987.", "11. On 28 April 1988 two police officers drew up an official record (proces-verbaal) containing the findings of the investigation into the kidnapping and assault of Mr A. It stated, inter alia, that a number of witnesses had seen Mr G. and two other persons in bars in the town of Weesp in the night of 29 to 30 September 1987 and that these witnesses had overheard the three men making inquiries into the whereabouts of the victim, Mr A. Mr A. was said to know Mr G. well and to be very afraid of him. Police investigations conducted in various bars in Weesp had shown that Mr G. had such a reputation that this fear was shared by many people. According to the reporting officers, the witnesses who had seen the suspects prior to and during the commission of the offences in question were so scared that they were afraid to make written statements.", "12. The official police record then describes how four witnesses were confronted with the applicant and his co-accused Mr D. through a two-way mirror. The police officers observed that the witnesses became very fearful upon seeing the suspects and that they wanted to leave the room as soon as possible. None of the four witnesses identified the applicant, although one of them said that the applicant looked similar to one of the perpetrators. The witnesses were interviewed separately after the identification procedure; one of them indicated to the police officers that s/he did not wish to remain on his/her own for fear of coming face to face with Mr D. whom s/he had recognised as one of the perpetrators. The police officers further reported that a fifth witness recognised from twelve photographs shown to him/her the applicant, Mr D. and Mr G. as the men who had made enquiries into the whereabouts of the victim.", "13. One of the police officers also noted that the witnesses had repeatedly telephoned him after they had made their statements, saying that they wished to withdraw these statements because they feared reprisals by the applicant and his co-accused. The police officer considered that this fear was not unfounded given that, since the event, unknown persons had put pressure on the victim.", "14. Criminal proceedings were brought against the applicant in the Regional Court (Arrondissementsrechtbank) of Utrecht. The charges against him included having been an accomplice to the offence of intentionally and unlawfully depriving Mr A. of his liberty and keeping him deprived thereof.", "15. On 1 June 1989 the Regional Court acquitted the applicant of that charge, convicted him on another charge and sentenced him to a partly suspended term of ten weeks’ imprisonment, less the time spent in pre-trial detention. By a judgment of the same date, the Regional Court also acquitted the applicant’s co-accused, Mr D.", "16. Both the applicant and the Prosecutions Department (Openbaar Ministerie) lodged an appeal against the Regional Court’s decision with the Court of Appeal (Gerechtshof) of Amsterdam. No appeal was lodged against the judgment concerning Mr D.", "17. On 18 April 1991 the Court of Appeal quashed the Regional Court’s judgment, convicted the applicant, inter alia, of having deprived Mr A. of his liberty and sentenced him to one year’s imprisonment, less the time spent in pre-trial detention. The Court of Appeal used in evidence, inter alia, the following section from the official police record of 28 April 1988 (see §§ 11-13 above):\n“It has emerged from the investigation that several witnesses saw Mr G., who was known to them, with two other persons in bars in Weesp in the night of 29 to 30 September. These witnesses also overheard these three persons making enquiries into the whereabouts of the victim, Mr A.\nOne witness was shown twelve photographs, including pictures of the suspects Mr D., <the applicant> and Mr G. The witness stated that s/he was 100% sure of recognising from the photographs the three named persons as being the persons who had made enquiries into the whereabouts of the victim on 29 and 30 September 1987 in Weesp. The witness had subsequently seen Mr D. and <the applicant> leaving with the victim’s brother, while Mr G. had stayed behind in the bar in Weesp, where shortly afterwards this Mr G. had been approached by <the applicant>, who had returned in the meantime, and who had taken Mr G. outside.”", "18. The applicant lodged an appeal on points of law against that judgment with the Supreme Court (Hoge Raad).", "19. On 14 September 1992 the Supreme Court quashed the judgment of the Court of Appeal. It held that the way in which the facts had been established by the Court of Appeal did not comply with legal requirements. It recalled that the statement of an anonymous witness could only be used in evidence if it had been taken down by a judge who knew the identity of the witness, who had expressed his opinion as regards the reasons for the witness’s desire to remain anonymous and that witness’s reliability, and who had provided the defence with ample opportunity to question the witness. The Supreme Court added that it could not be said that the finding of guilt was based to a significant extent on other evidence from identified sources. The Supreme Court decided that the applicant’s original appeal against the judgment of the Regional Court of Utrecht of 1 June 1989 should be considered again and, to that end, referred the case to the Court of Appeal of The Hague.", "20. At the subsequent public hearing on 18 June 1993 the Court of Appeal of The Hague instructed the investigating judge (rechter-commissaris) of the Regional Court of Utrecht to hear the witness who had previously recognised the applicant from photographs, as described in the official police record of 28 April 1988. If need be, that witness was to be heard with the application of appropriate measures to safeguard the witness’s anonymity, should the witness wish to remain anonymous.", "21. On 13 September 1993 the witness was heard under oath by the investigating judge, who was aware of the identity of the witness. The opinion of the investigating judge that the identity of the witness should remain concealed was phrased as follows in the official record of the interview:\n“In a short conversation prior to the actual interview, the investigating judge discussed with the witness the latter’s wish to remain anonymous. The witness stated that s/he was fearful because one of [the applicant’s] fellow suspects can be very aggressive, which, according to the witness, is common knowledge. The witness also said that s/he feared reprisals given that, as the witness has heard it said, the case in which the witness is about to make a statement in itself also concerns an act of revenge.\nIn view of the witness’s statements above, as well as the contents of the record drawn up by the police officers on 28 April 1988 and the statements of the witness which cannot be reproduced here, the investigating judge is of the opinion that the necessity to hear the witness anonymously has been sufficiently substantiated.”", "22. Counsel for the applicant attended the interview in a different room. In addition to his own questions, the investigating judge also put a number of questions to the witness at the request of counsel, who had submitted these questions to the investigating judge in writing beforehand. The investigating judge twice gave counsel the opportunity to read through the statement of the witness and to put further questions, again to be asked by the investigating judge, to the witness, and counsel did in fact avail himself of this opportunity.", "23. In reply to one of the questions put by counsel the witness said that when interviewed by police, on about 18 April 1988, s/he had been handed a bundle of about fifteen photographs. The witness had taken out three photographs of persons whom s/he had recognised. Counsel also asked the witness why the latter was so afraid and why the witness wished to remain anonymous. In reply, the witness stated that s/he had explained the reasons to the investigating judge at the beginning of the interview. The witness added that some of these reasons had not, however, been noted down by the investigating judge as the latter had considered that by doing so the witness’s anonymity could not be sufficiently guaranteed.", "24. In the official record of the interview, the investigating judge noted that the statement of the witness appeared to be consistent and that it corresponded to the statement given previously to the police. In the opinion of the investigating judge, it could be concluded that the witness was a reliable witness.", "25. At the subsequent hearing before the Court of Appeal on 15 September 1993, counsel submitted that although his questions had been put to the anonymous witness, taking evidence from a witness who could neither be seen nor heard by the defence and who did not appear before the trial court remained problematic. Counsel also queried whether the anonymous witness’s fear of reprisals was real or contrived. He further argued that the scent-association test carried out by a sniffer dog could not be relied upon since a similar test carried out by a different sniffer dog had not resulted in the applicant’s scent being associated with the scent on a revolver.", "26. On 29 September 1993 the Court of Appeal quashed the Regional Court’s judgment of 1 June 1989, convicted the applicant, inter alia, of having deprived Mr A. of his liberty, and sentenced him to one year’s imprisonment, less the time spent in pre-trial detention. It based its finding of guilt on the following evidence:\n(a) an official record of 30 September 1987, drawn up by a police officer, containing the statement of the victim, Mr A., to the effect that he had been forcibly taken from his house and beaten up, inter alia, with the butt of a chrome-coloured revolver, by two men unknown to him;\n(b) an official record of 30 September 1987 containing a statement from the police officers who had found Mr A. to the effect that, when they were driving Mr A. home, the latter had recognised the car in which he had been held and assaulted;\n(c) an official record of 30 September 1987 containing a statement from the same police officers to the effect that they had found traces of blood on the car indicated by Mr A. and that they had arrested Mr G. near the car;\n(d) a report of 30 September 1987 (contained in an official police record of 20 October 1987) drawn up by a member of the scientific police investigation department stating that the traces of blood found on the inside and outside of the car, as well as a chrome-coloured revolver and a jacket found inside the car, were sent to the forensic laboratory (Gerechtelijk Laboratorium) together with a blood sample taken from the victim;\n(e) an official record drawn up by the forensic laboratory dated 14 December 1987 indicating that the traces of blood could have come from Mr A.;\n(f) an official record of 14 March 1988 drawn up by a police officer stating that the revolver and a car telephone found in the car had been seized;\n(g) an official record of 25 April 1988 drawn up by a police officer who had been in charge of a scent-association test which had been carried out with a sniffer dog, to the effect that this dog had three times associated the scent on the butt of the revolver which had been found in the car with an object which had been held by the applicant;\n(h) the official record of 13 September 1993 drawn up by the investigating judge containing the statement of the anonymous witness to the investigating judge, to the effect that, inter alia, the witness confirmed his/her previous statement to the police officers in which s/he said that s/he had seen the applicant and his co-defendants, whom the witness identified from photographs shown to him/her, on the night of 29 to 30 September 1987 in a bar, that they had made enquiries into the whereabouts of the victim, and that the witness had heard from several people that the applicant and his co-defendants were involved in the assault and battery of the victim; and \n(i) the statement which the applicant had made at the hearing before the Court of Appeal to the effect that he knew the defendants Mr G. and Mr D. well, that the car in question had been used by Mr G. in the period around 30 September 1987, that Mr D. and he would regularly drive the car and that the telephone which had been present in the car had been registered in his name.", "27. Unlike the Court of Appeal of Amsterdam, the Court of Appeal of The Hague did thus not make use of the statement made by the anonymous witness to the police on 28 April 1988, but only to this witness’s statement before the investigating judge. The other items of evidence were essentially the same as those used by the Court of Appeal of Amsterdam in its judgment of 18 April 1991.", "28. The Court of Appeal’s judgment contained no assessment as to the reliability of the statement of the anonymous witness or as to the validity of the witness’s desire to remain anonymous.", "29. The applicant lodged an appeal on points of law with the Supreme Court. He complained, inter alia, that insufficient facts and/or circumstances had been adduced justifying the need for the witness to remain anonymous and that the statement of the anonymous witness could not be relied upon as it had been taken almost six years after the alleged offence. The applicant further submitted that the series of photographs from which the anonymous witness was said to have selected the photograph of the applicant had not been put before the investigating judge. Neither the investigating judge nor the defence had therefore been in a position to assess the nature of the photographs, the way in which they were presented or the certainty of the recognition.", "30. The Supreme Court dismissed the appeal on 7 June 1994. After having noted that the investigating judge had found that the anonymous witness was afraid because one of the applicant’s co-accused could be very violent and because the witness feared reprisals as the offence of which the applicant stood accused itself concerned an act of revenge, the Supreme Court considered that the conclusion of the investigating judge that there were circumstances justifying the anonymity of the witness did not constitute an incorrect interpretation of the law and was not incomprehensible. In respect of the applicant’s complaints relating to the photographs which had originally been shown to the anonymous witness, the Supreme Court noted that the official record containing the statement taken on 28 April 1988 had not been used in evidence against the applicant by the Court of Appeal." ]
[ 3 ]
[ "7. The facts of the case, particularly concerning events on 23 July 1993, were disputed by the parties. Having regard however to the length of time which had elapsed since those events and the nature of the documentary material submitted by the parties, the Court decided that a fact finding investigation, involving the hearing of witnesses, would not effectively assist in resolving the issues. It has proceeded to examine the applicant’s complaints on the basis of the written submissions and documents provided by the parties.", "8. The applicant’s and Government’s submissions concerning the facts are set out below (Sections A and B). The documents relating to the events and complaints are also summarised (Section C).", "9. In July 1993, the applicant was 60 years’ old and the father of 10 children, living in the Basoğ hamlet about two kilometres from the village of Ormanici (also known as Ormandışı or Cicika), in the Silvan district, Şirnak province in South-East Turkey. This village had been subject to previous attacks by security forces in conjunction with village guards during 1993-1994 (see application no. 21689/93, Ahmet Ozcan and Others v. Turkey).", "10. On 24 July 1993, the applicant’s village was subject to an armed attack by village guards supported by a helicopter gunship under the direction of the Silvan Gendarme Headquarters and gendarmes from Bayrambası. The attack started at about 17.00 hours. The applicant was at his home in Başog with his wife Nezihe, his sons Burhan and Hamit and his daughter Neşihat. They heard sounds of gunshots coming from the village and saw flames and smoke starting to rise from different parts of the village. Women and children fleeing the village ran towards the applicant’s hamlet. The applicant called to his son Burhan to take the tractor and flee, which he did. The applicant saw a number of village guards whom he knew – Esref Simpil, Ihsan Simpil, Nuri Simpil and Guri Simpil (this family name appears in some documents as Sumbul).", "11. Hamit and Neşiat pleaded with the village guards holding the Koran. The guards nonetheless burned the applicant’s house and burned his crops. The applicant saw that a helicopter gunship was firing at his son Burhan. Burhan got off the tractor and put his hands over his head. The helicopter descended to within a few metres, took a look at him and his friends and then flew away. Burhan carried on by tractor to Batikan village, 5–6 kilometres away. Looking back from Batikan, he could see his house and fields burning. When it was dark, the applicant went by tractor to Altinkum. He returned later when the village guards had left.", "12. His house was damaged as follows. The walls were riddled with bullets and all the windows were broken. The 3-ton diesel tank attached to the back of the tractor had been pierced by bullets and all the diesel had poured out. The tank had caught fire because of the bullets. Two barrels full of diesel, a tractor trailer and the wheels of the trailer were riddled with bullets. His tractor, irrigation pump and 110 irrigation pipes had been destroyed by bullets. Two hundred sacks in front of the house had also been burned. Four tons of harvested wheat, two tons of barley and two lorryloads of straw had been burned, a whole year’s labour.", "13. During the attack on Ormanici itself, a 70-year-old villager Seve Nibak and a 7-year-old boy Cihan Matyar were shot and killed. The village guards shot at and set on fire other houses, including that of Mehmet Safi Aranacak, and destroyed crops in the fields and burned crop stores.", "14. The Silvan district gendarme captain, Captain Hakan Temel Aksel, told the villagers that they were to say that the terrorists raided the village or it would cost them dear. The captain drew up a report stating that there had been a clash between terrorists and village guards and had villagers sign it.", "15. The applicant continued to live in his house for about a year. He was summoned a year after the incident to the Bayrambası gendarme station and detained there by the commander who was angry with him for staying in Gom. The commander summoned his son Burhan and told him that the applicant would not be released unless he burned down the house. Burhan burned the house and the applicant was released. The applicant was later told by a gendarme at Bayrambası that the gendarmes had taken photographs of the burned house. The Silvan district gendarme commander had been angry as he wanted photographs of a house in good condition. The gendarmes had then come and taken photographs of the applicant in front of his son’s house.", "16. On 29 September 1994, the applicant was summoned to the Silvan Gendarmerie where he allegedly counter-signed a report by sergeant Ömer Temel and gendarme private Ibrahim Bilgin. This was sent to the Silvan chief public prosecutor by Captain Aksel. On 30 September 1994, the applicant was forced to sign a statement by the Silvan public prosecutor.", "17. The Silvan public prosecutor opened an investigation into the complaints of the applicant. On 3 October 1994, a decision was taken that due to lack of evidence the investigation could not be pursued.", "18. An investigation also took place into the deaths which took place on 24 July 1993. This substantiated the applicant’s claim that an attack took place on Ormanici village by armed village guards from Boyunlu, that the village guards fired at the houses, damaged or destroyed the villagers’ property and crops, that they were supported by local gendarme units including a helicopter and that there were no members of the PKK in the village. The applicant refers inter alia to the petition of Bişar Nibak dated 27 July 1993, the statements of Bisar and Husna Nibak dated 2 August 1993, of Mehmet Sabri Matyar and Mehdi Matyar dated 31 August 1993, of Sevket Aslan dated 1 September 1993 and of Hasan Manar dated 2 September 1993.", "19. On 27 October 1993, the public prosecutor issued a decision of non-jurisdiction in respect of the two deaths and referred the case to the Diyarbakır State Security Court. On 24 November 1993, that court referred the case back to Silvan concerning the prosecution of four village guards, Ihsan Simpil, Esref Simpil, Mehmet Zaman and Gurkan Simpil. In 1997, the four village guards were acquitted of murder on the basis of insufficient evidence.", "20. On 23 July 1993, Sadık Simpil and two of his relatives were going to pick up wood cut down by the Rişta stream (elsewhere referred to as Hişta or Pişta). On coming across PKK terrorists resting by the stream, an armed clash broke out. Sadık and Medeni Simpil were wounded. Other Boyunlu village guards watching from a hill noticed the clash and went to help. The terrorists fled towards Ormandışı. The gendarmerie were informed by wireless. As the terrorists passed through the village, they fired their guns at random, killing Cihan Matyar and Seve Nıbak. The terrorists were chased out of the village by the village guards and gendarmes. As it became dark, they gave up the pursuit. Next morning, the area was searched but nothing was found save that the terrorists had run away towards Altınkum.", "21. On 24 July 1993, the gendarmes drew up an incident report and a location sketch map. The statements of the villagers were taken by the gendarmerie. Zeki Matyar, father of the murdered child, stated that he had been hit on the head by Bişar Nibak, the husband of the murdered woman and that he blamed the PKK for the murder of his son. On 24 July, six village guards gave their statements which corroborated their stories and were not contradictory on any important point. These described how the terrorists had fired on the village guards by the stream and then fled through Ormandışı firing at random. On 26 July 1993, statements were taken from the two wounded village guards who had been taken to hospital. These supported the other village guards.", "22. On 27 June 1993, Bişar Nibak lodged a complaint with the Silvan public prosecutor alleging that the Boyunlu village guards had attacked Ormandısı, killed his wife and burned the crops and some of the houses. The public prosecutor took statements from his sister-in-law, several other villagers and the village guards accused of the attack. On 13 September 1993, Zeki Matyar and Azize Matyar made statements to the public prosecutor alleging that their son had been murdered by village guards. These statements were seriously contradictory, e.g. Zeki, contrary to his earlier statement, said that he was in the village and saw his son shot, while Azize said that he was outside the village.", "23. On 27 October 1993, the public prosecutor gave a decision of non-jurisdiction and sent the case to the Diyarbakır State Security Court. On 24 November 1993, the file was sent back as the accused were village guards.", "24. The four village guards were tried by the Diyarbakır Aggravated Felony Court, which on 1 June 1996 released them due to lack of evidence. The court did not rely on the statements of the complainants as they were contradictory.", "25. The applicant did not make any complaint to the public prosecutor about events. On being informed that he had made an application to Strasbourg, the public prosecutor questioned him with a view to initiating an investigation. In his statement the applicant mentioned that none of his possessions had been burned and stated that he did not make any complaint about this. The public prosecutor therefore decided not to pursue the investigation further. 1. Statements submitted by the applicant\nStatement by the applicant dated 28 July 1993 and taken by the Human Rights Association (HRA)", "26. On 24 July 1993, the applicant was at his home in Basoğ hamlet, about 2 km from Ormandışı village. At about 17.00 hours, shots were heard coming from the village. Smoke and flames appeared. Village women and children were fleeing in his direction. At first he thought it was the soldiers raiding the village. He later discovered that it was the protectors. He called to his son Burhan in the fields and told him to escape. His son got on his tractor and fled. He knew some of the village guards and recognised Esref Simpil, Ihsan Simpil, Nuri Simpil and Guri Simpil coming towards their hamlet. His daughter Neşiat and son Hamit brought out the Koran and pleaded with the guards not to burn their house and crops. Despite that, the village guards burned the house and crops. He saw that a helicopter was firing at his son in the tractor. He ran away to hide with the women from the village; his wife and children did not leave the house. When it got dark, he and other villagers went on a tractor to Altinkum. In the evening, thinking the village guards had gone, he went to his house. No-one was there. He saw nothing had happened to the objects in the house but the walls of the house were full of bullet holes and the windows broken. The diesel tank of the tractor had been hit by bullets and the petrol leaking out had caught fire. The barrel full of diesel, the tractor trailer and its wheels were also shot up. The irrigation pump had been rendered unusable due to gunfire. Two hundred empty sacks in front of the house had been burned. In the fields, he saw that 4 tons of harvested wheat, 2 tons of barley and two lorry loads of straw had been completely burned.", "27. On the television it was said that there had been a clash between the terrorists and the village guards in the village. The Captain came to the village and shamelessly told the villagers that the terrorists had burned the village and hamlet. No guerrillas had come to the village and they would not have done such a thing.\nStatement dated 28 July 1993 by Mehmet Safi Aranacak taken by the HRA", "28. On the evening of 24 July 1993, the village guards of Boyunlu, about 80 to 90, carried out a raid on his village of Ormandışı. He was working in his field at the time. He heard gunshots coming from Boyunlu village, about 4-5 km from Ormandışı. About half an hour later, the village guards came towards Ormandışı, shouting that they were going to burn and shoot up the village and claiming that the children of the Ormandışı villagers were guerrillas. The men in the fields were able to run away more easily, getting into tractors and fleeing. Some women and children hid in the clumps of trees near the village. He saw the village guards rake the village with gunfire. In the evening, he learned that Seve Nivak and Cihan Matyar were shot inside the village. He got into his tractor and fled towards Badik. As they fled, guards shot at them from the ground while military helicopters fired on them from the air. When he returned later, he found that his house had been shot up and the goods inside destroyed and set on fire. His crops had also been burned and destroyed.", "29. The Captain from the Silvan gendarme command came to the village and said: “You’ll say that your crops and homes were burned and shot up by terrorists, that terrorists raided your village. If you accuse the village guards, it will cost you much dearer”. He heard that the Captain drew up a report saying that a clash had broken out between the terrorists and village guards, that two people had died in the cross fire and that the village had been burned and destroyed by terrorists. The report was signed by the son of Seve Nibak, against his will. The PKK had not come to the village. The State was forcing them either to go tot he mountains or to leave the village. They were in fear of the village guards and their lives were in danger from them.\nStatement by the applicant dated 28 October 1998 and taken by the lawyer Ayla Akat", "30. The applicant had been shown the photograph submitted by the Government. He stated that the house was not his.\nHe explained as follows.", "31. The house in those photographs was not his. On 24 July 1993, after burning houses in Ormanici, the village guards had come to his house in Basoğ, two kilometres away, and burned his crops and fired on the agricultural equipment and their homes. He watched from 500 metres away. The house was damaged but still habitable. He lived there for another year. A year later, he was summoned to Bayrambası gendarme station. The commander was angry with him and took him into detention. Then the commander summoned the applicant’s son, Burhan, and threatened him that unless he destroyed his father’s house, his father would not be released. So his son went to his house in Gom and destroyed it. The applicant on release went to live with Burhan in Ormanici village. A few months later, he heard that the captain of the Silvan district gendarmerie was asking for photographs of his house. The Bayrambaşı gendarmes took photographs of his destroyed house and sent them to Silvan. The applicant heard from a soldier at the police station that the Silvan gendarme captain was angry as he had wanted pictures of a house in good condition. The soldiers then came to the applicant’s son’s house and took photographs of the applicant outside his son’s house. At the time, the applicant had no idea why they were doing so.", "32. As regarded the statement which he made to the Silvan public prosecutor on 30 September 1994, he stated that he had been detained on various occasions in connection with this incident and subject to threats over his complaints against the State. He was forced to make such a statement at the public prosecutor’s as he was afraid of being taken into detention again and threatened.\nStatement by the applicant dated 12 April 2000", "33. In this statement taken by a lawyer, Cihan Aydın, the applicant said that he was under pressure due to his application. He had been called to the gendarmes’ station and threatened. After he submitted documents to the Court, the documents were sent to Silvan and the gendarmes there, who were perpetrators of the incident, threatened him to force him to withdraw his complaints. He was frightened that they would do bad things. \nStatement by the applicant dated 27 June 2001", "34. In 1993, a clash broke out between village guards and the PKK in the area between Boyunlu and Ormandışı villages. Two village guards were wounded. Towards evening, a large number of village guards entered Ormandışı and began to burn the harvested crops. After burning Ormandışı, the guards came to the applicant’s hamlet. His house was the only one in the hamlet. They set his house alight and raked it with gunfire. His son fled on the tractor. The village guards shot at the trailer. The applicant’s irrigation pump, a three-ton diesel tank, two barrels of diesel, a tractor and 110 irrigation pipes were rendered unusable by gunfire. The guards also burned four tons of wheat, two tons of barley and two lorryloads of straw. He, his wife Neziha, his daughter Neşiat and his sons Burhan and Hamit (now in Germany) were in the hamlet at this time. Afterwards, they moved to live as a family in Ormandışı. Five to six months later, the Boyunlu village guards came and told them they had to leave their house and they moved into Ormandışı. The village guards burned Ormandişi village and his house and their statements were not true.", "35. A few years later, he was summoned to Bayrambası gendarme station by the Silvan public prosecutor. The station commander threatened him and the village muhtar Ebedin Sezgir, saying that he had made a complaint about the State and that if he did not change his testimony it would not be good for him. They then went to the public prosecutor’s office and as he was frightened he could not say that his house had been burned down. He was illiterate and his statement was not read to him. He was also arrested about a year after the attack and detained for 14 days. He was tortured and ill-treated. He did not say his house was burned down as he was afraid that he would be tortured. Ebedin Sezgir, the muhtar, was not keen on testifying as he was scared, as was the imam. The photographs taken by the Government of his house were in fact of the house of his son Sait Matyar in Ormandışı.\nStatement by Burhan Matyar dated 27 June 2001", "36. At the time of the incident, he was staying with his father, the applicant, in Basoğ hamlet. A clash broke out between the PKK and village guards. Two village guards were wounded. After that the guards set Ormandışı alight and came to their hamlet. When he saw them coming, he was scared and drove off on the tractor. He told three others in the fields and they got on their tractors too. As they crossed a stream, a helicopter opened fire on them. They got off their tractors and put their hands on their heads. The helicopter descended to a few metres above their heads, looked at them and then flew away. He got on his tractor and went on to Batikan village. Looking back from there, he could see that the house and fields had been burned. After a day and a night he returned. The house was a ruin, part of it burned and shot up. The tractor and trailer were burned, shot up and unusable. Harvested crops had been burned and a diesel tank, two barrels of diesel, a motor pump, and water pipes had been shot up and were unusable.\nStatement by Nezihe Matyar (the applicant’s wife) dated 26 July 2001", "37. At about 16.00-17.00 hours on the day of the incident, there were gunshots near Ormandışı. She was in front of the house. Bullets began to hit the house. Soldiers and village guards from Boyunlu arrived and began to set the village alight, firing haphazardly in all directions. Everything they fired at burst into flames. They set alight the wheat and then again raided her house. They entered her house and took them all outside. They broke and burned the fridge, TV, radio-cassette player, butter maker, curtains, quilts, mattresses, rugs and kitchen implements. They set the house alight and meanwhile insulted and threatened them. They told them to leave the village or they would kill them all. They also burned crops and shot up the farm equipment. After the incident, the family moved to Silvan.\nStatement by Neşihat Matyar dated 26 July 2001", "38. At about 16.00-17.00 hours on the day of the incident there were gunshots near Ormandışı. She was in front of the house. Bullets began to hit the house. Soldiers and village guards came into the village and set it alight, firing haphazardly in all directions. Her statement reproduced in almost identical terms the statement of her mother above.\nStatement by Halime Eruncak (Aranacak) dated 2 July 2001", "39. At the time of the incident, she was living in Ormandışı village with her husband Mehmet Şafi. A clash broke out near the village. After this, village guards came to the village firing at random. A 70-year-old woman and a child were killed. They set alight harvested crops and shot up all houses. Her house was a colander and everything inside ruined. The guards then went to Basoğ hamlet and shot up the applicant’s house and property and burned his crops. Her husband went with the applicant to the Human Rights Association in Diyarbakır and applied to the European Court of Human Rights. Some five to six months later, her husband was captured wounded with a PKK militant after a clash with the security forces. He was later killed for refusing to assist the security forces in capturing other members of the PKK. Some four to five months later, her house was burned by village guards and soldiers. She went to live in Mersin. She had now returned to stay in Ormandışı and had spoken to the applicant and contacted her lawyers. She had not followed up the application about the burning of her house and the murder of her husband out of fear and as she was not able to contact her lawyers. She now wanted to take responsibility for the application made by her husband.", "40. The petitioners complained that Ihsan Simpil, Esref Simpil and Mehmet Zaman Simpil had fired at villagers from Ormandışı. It was stated that the aggressors were from Boyunlu village who hated and had a grudge against the Ormandışı village due to the latter’s lodging of legal proceedings against the Boyunlu villagers’ illegal entry onto Ormandışı village lands.\nStatement by Mehmet Zeki Matyar dated 24 July 1993 and taken by gendarmes", "41. On 23 July 1993, he was attending his herd. In the evening, he heard shots towards the upper end of Ormandışı village. When he returned to the village, his son Cihan was not there. He was told that he was at a neighbour’s. The next morning, a villager, Haci Bisar, ran up, saying that Cihan had been killed in a clash between the PKK and village guards. His dead body was outside the village. Bisar told him to say that he must say that the guards shot his son or the terrorists would shoot him. When the witness asked Bisar who shot his son, the man hit him with a stick. The witness went to find the body. There were soldiers around. He took his son to the Silvan hospital for an autopsy. His guess was that the PKK terrorists murdered his son and filed a complaint. He also filed a complaint against the man who hit him with the stick. \nStatement by Mehdi Guzec dated 24 July 1993 and taken by gendarmes", "42. The witness was a village guard in Boyunlu village. On 23 July 1993, while he was in the village, he and others received a request for help from others who had been cutting poplar trees near Ormandışı and had clashed with terrorists. The guards went to the place and found that two persons had been injured. The terrorists were firing randomly while dispersing. The guards followed them. On entering the village, the terrorists continued firing. The guards entered the village; apparently two villagers were killed and the terrorists ran from the village. Security forces then arrived. The next morning, an operation was carried out but no result was achieved. The guards were asked to return to their village.\nStatement by Hüseyin Cesur dated 24 July 1993 and taken by gendarmes", "43. The witness was a village guard in Boyunlu village. On 23 July 1993, he and other guards were told to come as there was a clash. On their arrival at the Hista stream area they found two injured persons. The terrorists were firing randomly and continued doing so when they entered the Ormandışı village. The guards entered the village and the terrorists fled from the northern part. They were told that two villagers had died. At this stage, the security forces caught up with them. It was dark then. The next morning, they followed the trail of the terrorists, who had run away towards Altinkum. There had been 7-8 of them but they were not found. The guards were told to return to their village. \nStatement by Reşat Değerli dated 24 July 1993 and taken by gendarmes", "44. On 23 July, in the afternoon, the witness and others went to cut down poplars in the Hista area which belonged to Sadık Simpil. Three village guards were keeping watch on the hills. They heard gunshots downstream and returned fire. Sadık Simpil was injured. They reported to the village. The clash continued for some time. When help arrived, the terrorists, about 7 to 8, ran back towards Ormandışı. Medeni Sumbul, who came to help from the village, was also injured. They ran after the terrorists who kept turning back to fire. The terrorists who entered the village fired randomly. When the village guards entered the village, they saw that an old woman and a child had died due to the wild firing of the terrorists. The security teams arrived. A search was carried out. The terrorists had run towards Altinkum and the gendarme commander gave instructions. The area was besieged. However the operation was abandoned due to the nightfall. It continued next morning without result. The guards were asked to return to their village. \nStatement by Ramazan Moğuç dated 24 July 1993 and taken by gendarmes", "45. The witness, a village guard, recalled that a call for help came from friends out cutting poplars. They went to the place of the incident and found two injured persons. They left men to tend the injured and went after the terrorists, who were randomly firing as they tried to escape. Entering Ormandışı the terrorists kept firing heavily. As the terrorists ran from Ormandışı, the guards entered. They heard that two villagers had died due to the terrorists’ firing. The operation teams arrived as it was getting dark. The commander waited until morning to send out a search party. The terrorists who had fled towards Altinkum village could not be found. The village guards were told to return to their village. \nStatement by Hamdusena Güleç dated 24 July 1993 and taken by gendarmes", "46. The witness, a village guard, had been providing security to the men cutting poplars at the Hista stream. Gunshots were heard and two of the men were injured. The guards returned fire. When help arrived, the terrorists started fleeing towards Ormandışı, about 6 or 7 of them. The guards went in hot pursuit. The terrorists fired randomly and intensively inside the village. As the guards neared the village, the terrorists left. They lost them in the stream below the village. They learned that two villagers had died during the terrorist shooting. The military arrived. Due to darkness, the commander covered the terrorists’ possible escape routes and sent out a search party early in the morning. On following their trail, it was found that the terrorists had gone to Altinkum. The guards were sent home.\nStatement by Hamdusena Simpil dated 24 July 1993 and taken by gendarmes", "47. The witness had gone to cut poplar trees, while three men watched from the hills. Terrorists fired on them and his brother yelled that he was injured. They returned fire. Other village guards came to help after they reported on the radio. The terrorists fled north, about 7 to 8. With the help, the guards followed towards Ormandışı. Medeni Sumbul, who had come to help, was injured by terrorist fire. The injured were carried back to the village while the others continued after the terrorists, who fired back as they went. The terrorists entered Ormandışı. The exchange of fire there went on for some time. Military teams arrived. The terrorists used the stream bed and escaped to the north. On entering the village, the village gards learned that two villagers had died under indiscriminate terrorist fire. The commander positioned his teams and due to nightfall left the search till morning. It was found that the terrorists had fled on a tractor to Altinkum. The village guards returned to their homes.\nIncident report dated 24 July 1993", "48. The report was signed by Lt Hakan Temel Aksel, NCO senior sergeant Haci Ali Buber as well as Mehmet Zaman Simpil, village guard, Zeki Matyar, father of a deceased victim, and Ahmet Nibak, son of the other deceased victim. It stated the following:", "49. On 23 July 1993, at around 16.00 hours, the Boyunlu village guards heard a report on the radio that 6 village guards, who had gone to cut poplar trees, had clashed with terrorists. Sadık Simpil and Medeni Simpil had been injured. A second team of village guards went to the location of the incident. The terrorists broke off contact and ran towards Ormandışı. Information was received that the village guards had re-established contact with the terrorists. Two teams from Silvan gendarmes commando division were deployed at Altinkum. One village guard team and one internal security team from Bayrambası gendarme station deployed in Babakaya village. During deployment, it was learned that the terrorists had entered into Ormandışı, and firing between them and the village guards on the hills continued. The terrorists escaped on a tractor towards Altinkum village, still firing. Bayrambası gendarmes and village guards arrived at the village from Babakaya. They discovered that a woman, Seve Nibak (born in 1926) and Cihan Matyar (born in 1985) died as a result of indiscriminate fire from the terrorists. The security forces were positioned for the night. In the morning, a search uncovered 5 rounds of 7.62mm G3 bullets, 18 rounds of 7.62 calibre Kalashnikov rifle bullets and 25 rounds of Biksi automatic rifle bullets belonging to PKK terrorists. The injured village guard and citizen were transferred to Silvan and in turn referred to Diyarbakır Military Hospital in a helicopter for treatment.", "50. Upon the instructions of the Silvan public prosecutor, the bodies of the villagers murdered by the terrorists were sent to the district centre for an autopsy. During the incident, the Boyunlu village guards used up 3 projectiles, 10 hand grenades and 40 rounds of 7.62 mm calibre kalashnikov bullets, while the commandos from Silvan used 25 rounds of 60mm mortar projectiles and 1950 rounds of G3 infantry rifle bullets. Despite searches, empty cartridges could not be found due to the rocky and tree-covered terrain. Following searches of the village and the location of the clash, it was established that no other life or property was lost.\nSketch map of the location of the incident drawn up on 24 July 1993 by NCO Haci Ali Buber", "51. This map showed, inter alia, the path taken by the terrorists from the poplar trees to the south of Ormandışı village into the village from where they escaped north towards Kulp, the position of the commando teams to the south of the village and the location of the bodies of the two villagers.\nBody examination and autopsy report dated 24 July 1993", "52. This report was signed by the public prosecutor and two doctors. It stated that the body identified as Seve Nibak had one entry bullet hole on the left back scapula and an exit hole on the level of the front armpit. Death was due to widespread internal thoracic haemorrhage occurring as a result of injury to vital internal organs. On the body of the eight-year-old child, identified as Cihan Matyar, there was a bullet entry hole 2-3 cm to the left of the xiphoid bone and an exit hole 2-3 cm to the left of the 10th vertebra. Death was due to widespread internal haemorrhage and loss of blood. As the cause of death was certain, no classical autopsy was required.\nMedical report on Zeki Matyar, dated 24 July 1993, from Silvan State Hospital emergency clinic", "53. This report recorded 1-2 day old bruising on the head and large ecchymotic areas on the left side of his back and costar vertebral region. There were signs of suspected broken ribs. The patient was referred to Diyarbakır State Hospital for diagnosis and treatment.\nMedical report on Sadık Simpil, dated 23 July 1993, from Silvan State Hospital emergency clinic", "54. This report noted one probable bullet entry hole on the foot, one on the right arm and a possible third entry hole (location illegible). There was no danger to life. The patient was referred to the Diyarbakır State Hospital’s Orthopaedics unit.\nMedical report on Medeni Simpil, dated 23 July 1993, from Silvan State Hospital emergency clinic", "55. A bullet entry hole was noted 5-10 cm above the rear left kneecap and an exit hole 10 cm above the knee cap. There was the possibility of a fracture. There was no danger to life. The patient was referred to the Diyarbakır State Hospital’s Orthopaedics unit.\nStatement by Sadik Simpil dated 26 July 1993 and taken by gendarmes", "56. The witness, a Boyunlu village guard, was chopping down trees with Muhyettin Simpil and Medeni Simpil, with three other men guarding them 300 metres away on high ground (so that their radio worked). He saw two men firing at them. He was injured in the arm and leg. He fired back. The terrorists ran away. The guards had called Boyunlu on the radio summoning the other guards. They arrived and pursued the terrorists. He heard gunshots coming from Ormandışı. He and Medeni Simpil were taken to hospital.\nStatement by Medeni Simpil dated 26 July 1993 and taken by gendarmes", "57. The witness, a village guard, was chopping trees near Ormandışı village at Pista fountain. Two or three terrorists opened fire as they arrived. He and Sadik Simpil were injured immediately. Sadik fired back and the terrorists ran away. The guards protecting them reported the incident. The area was besieged. He heard gunshots coming from Ormandışı village. He was taken to hospital for treatment of his injured leg.\nPetition of Bişar Nibak dated 27 July 1993", "58. On 23 July 1993, at about 17.30 hours, the petitioner’s village Ormandışı had been raided by Boyunlu village guards. He escaped from the house while his wife and daughter-in-law escaped. Village guards Ihsan Sumbul, Esref Sumbul, Zaman Sumbul and Gurgin Sumbul indiscriminately fired at his house, killing his wife. They also set fire to their crops and burned some houses. They had had a land dispute with the above-mentioned individuals, the documents on which for the years 1981-1982 were at the judiciary. He lodged a complaint against the four village guards.\nStatement by Bişar Nibak dated 2 August 1993 and taken by the Silvan public prosecutor", "59. On 23 July 1993, gunshots were heard in the village. The witness’s wife Seve had told him that village guards had arrived. The witness and his son ran out of the village. He came back at about 20.00 hours when the gendarmes were there. He found his wife lying dead in their house. His daughter-in-law told him that village guards from Boyunlu village (Ihsan Sumbul, Esref Sumbul, Zaman Sumbul and Gurgin Sumbul) had entered the house and shot her. The guards fired at and burned houses and also burned the crops. There were no terrorists in the village. The village had had a land dispute in 1984-85 with the Boyunlu guards named above; he guessed that was the reason for the attack. While the guards were there, a helicopter flew over the village, manoeuvring. He requested that the perpetrators be punished and his crops be reimbursed.\nStatement by Husna Nibak dated 2 August 1993 and taken by the Silvan public prosecutor", "60. On 23 July, at about 17.30 hours, a raid was carried out on the village by the Boyunlu village guards. The witness’s father-in-law Bisar ran away with other villagers on hearing the shots. Four guards (Ihsan Sumbul, Esref Sumbul, Zaman Sumbul and Gurgin Sumbul) entered the house and killed her mother-in-law. The guards fired at the houses and burned the crops. She named other witnesses of events.\nStatement by Mehmet Zaman Simpil dated 2 August and taken by the Silvan public prosecutor", "61. The witness, a Boyunlu village guard, was told on the radio that terrorists had opened fire on his brother and others who were chopping wood. They informed the Bayrambası gendarme station immediately. The gendarmes told them to go to the location of the incident where they themselves would arrive shortly. The guards arrived at the place of the clash. The terrorists were running away. The guards followed them. The terrorists entered Ormandışı village. The guards took position to the south and on the hill. There was an exchange of fire. The terrorists started to run away and got into a tractor shortly before nightfall. A helicopter arrived. The officer brigade commander was in it. The helicopter fired on the terrorists in the tractor. During the clash, a fire broke out in the crops surrounding the village. Darkness fell. First Lieutenant Hakan told the guards to return to Boyunlu. He later heard that there were two dead villagers but the guards had not killed anyone. Bisar Nibak, who had filed a complaint, had a grandson who was a terrorist and was killed and many of his relatives were terrorists. They were slandering the guards due to pressure from the terrorists.\nStatement by Gurkan Simpil dated 2 August 1993 and taken by the Silvan public prosecutor", "62. The witness, a shepherd from Boyunlu, was grazing his sheep on 23 July 1993. He was not a guard. He heard about the clash in the evening. He had not been involved in any way. He named witnesses to support him. \nStatement by Ihsan Simpil dated 2 August 1993 and taken by the Silvan public prosecutor", "63. The witness, the head village guard from Boyunlu, heard over the radio that his brother and others who were chopping wood had been fired at by terrorists. They immediately informed the local gendarme station by radio. The clash was at the Pişta stream area. They arrived at the location and participated in the clash. The terrorists started to run away and entered Ormandışı. The guards positioned themselves to the south. They exchanged fire with the terrorists. The helicopter arrived and opened fire on the terrorists. When the terrorists got into a tractor to escape towards Kulp, the helicopter and the guards started to follow them. Some guards passed through the village. During the clash tracer bullets started a fire in the crops and threshing piles. The guards followed the terrorists to Altinkum village outskirts. Due to the darkness and as the terrorists had reached the Kulp side, they returned to Ormandışı where the soldiers had arrived. He learned that a woman and child had been killed. The guards and soldiers stayed in Ormandışı during the night. Nobody claimed that the guards had killed anyone. Seve Nibak was a close relative of his, like an aunt to him. The complaints had been made against the guards due to pressure from the terrorists. The terrorists wanted to undermine the village guard system. \nStatement by Eşref Simpil dated 2 August 1993 and taken by the Silvan public prosecutor", "64. The witness, a village guard, recalled that the guards heard on the radio that people cutting poplars were under fire by terrorists in the Pista stream area. After informing the Bayrambası gendarme station, they went to help them and participated in the clash. Sadık, the head guard’s brother, and Medeni were injured. As the clash continued, the terrorists made their way to Ormandışı, which they entered. The guards could not, taking position on the hill outside. Gendarmes arrived nearby at the Babakaya. A helicopter flew over, firing on the terrorists in the village. The terrorists started to escape towards Kulp. The helicopter went in pursuit. Some guards followed. The witness stayed in the village with some other guards. The terrorists had left at about 17.00 hours. Before the guards left at about 20.30 hours, they heard that a woman and child had died. At about 20.30 hours, the soldiers arrived in the village. At 22.00 hours, the Bayrambası gendarme commander contacted the village guards on the radio and the village guards returned to Ormandışı and stayed the night. The withness had not killed anyone. The complaints must have been made due to pressure from the terrorists. \nReport dated 18 August 1993 signed by gendarmes", "65. This reported that, following a joint operation between 8 and 12 August 1993 by the Ergani Commando Battalion, the Silvan commando unit and the signatories’ gendarme station, the perpetrators of the murders of Seve Nibak and Cihan Matyar, who had injured Sadik Simpil, Medeni Simpil and Muhyettin Simpil, had not been apprehended nor their identities established.\nStatement by M. Sabri Matyar dated 31 August 1993 and taken by the Silvan public prosecutor", "66. At about 16.00 hours, about 30 Boyunlu village guards entered Ormandışı village and started firing at all the houses. Bullets hit his house. There were no terrorists in the village or any clash. He heard that the guards murdered Seve Nibak and Cihan Matyar. The guards set fire to the grain piles but not the houses. After two hours, they returned to their village. Before they left, a helicopter flew low over the village, firing at some places. After nightfall, at about 19.00 hours the soldiers arrived. The witness told Haci Ali, the NCO commander of the local Bayrambası station, what had happened. They did not open any proceedings though. \nStatement by Mehdi Matyar dated 31 August 1993 and taken by the Silvan public prosecutor", "67. About 30 Boyunlu village guards came into Ormandışı village firing their guns. They fired at the houses and entered, using bad language. The witness heard that two persons, Seve Nibak and Cihan Matyar, were killed. The guards burned the harvest and crops but not the houses. At about 19.30 hours, the guards left towards their own village. A short time before, a helicopter appeared, firing at various targets. After the guards left, the soldiers entered the village. The villagers told them everything but the soldiers did not believe them and did not apprehend the village guards.\nStatement by Sevket Aslan dated 1 September 1993 and taken by the Silvan public prosecutor", "68. At about 16 to 17.00 hours, the witness heard gunshots in the village. Guards from Boyunlu entered firing their guns. There were no terrorists in the village, nor was there any clash. The guards set fire to the crops and threshing piles but not the houses. They came to the witness’s house, searching for weapons, and tied up his son, claiming that he was a terrorist. They took his son away. His son later managed to run away. While their crops were burning, a helicopter flew over the village at a low height. The head guard Ihsan was talking into a radio to the commanding officer, saying: “They are running away on a tractor towards Kulp”. The helicopter then flew in that direction. At nightfall, most of the guards left, the head guard and a few others staying on. The others went towards Altinkum Bezvan, probably to burn the crops there. The soldiers arrived. Due to fear of the guards, the villagers did not feel able to complain. The soldiers did not do anything to them.\nStatement by Hasan Manar dated 2 September 1993 and taken by the Silvan public prosecutor", "69. At 16.00 to 17.00 hours, village guards arrived in the village. He and other villagers shut themselves in their houses out of fear. He heard gunshots. Apparently the guards shot at the houses. There were no terrorists in the village, and no clash occurred. Apparently the guards burned the crops and threshing piles. After dark the soldiers arrived. Husna Nibak told him that when Seve Nibak came to the door to tell the guards not to enter they killed her. While these incidents were taking place, there was a helicopter flying low over the village.\nStatement by Mehmet Zeki Matyar dated 13 September 1993 and taken by the Silvan public prosecutor", "70. Village guards from Boyunlu had come into the village of Ormandışı firing their weapons. He saw his son Cihan shot by the chief village guard as he came to the house. Later the guards burnt the crops. At nightfall, the guards left. There had been no terrorists in the village and there had been no armed clash. Soldiers apparently arrived after the guards had left – he did not see them as he stayed inside out of fear.\nStatement by Azize Matyar dated 13 September 1993 and taken by the Silvan public prosecutor", "71. On hearing gunshots, the witness had run towards Veysi’s house. Her son Cihan was with her. They entered the house and bolted it. There was gunfire and Cihan was shot. Her husband was outside the village grazing livestock. The village guards apparently burned the crops, starting a fire in the threshing area. No terrorists were in the village nor was there any clash with terrorists.\nStatement by Faysal Aslan dated 21 September 1993 and taken by the Silvan public prosecutor", "72. The witness was out in the fields. At about 13.00 hours, he heard gunshots. Returning to his house, his father met him 100 metres from the house and said that he should hide as the Boyunlu village guards were killing the men of the village. He hid near the stream not far from the house. He saw that about 100 people from Boyunlu were raiding the village. He named the ones he recognised. He saw Eşref, Gorgu and Ihsan Simpil enter his house and randomly fire with their rifles. They took his father, mother, sister, brother and wife hostage and announced that they would be killed if he did not come out. His mother appealed to him and he came out. Eşref tied him up and demanded to know where the terrorists were. He told Eşref that the terrorists had taken him and his father away 10 days before. They were released on payment of TRL 50 million. Eşref said that he was lying and that he had made a deal with the terrorists. He was hit with rifle butts. He did not see Seve Nibak or Cihan Matyar being killed. The guards threatened to kill him too. They released his hands to allow him to drink and he took advantage of the opportunity to run away.", "73. The village guards burned the threshing piles. A helicopter flew over the village at a low altitude. Ihsan was talking to the helicopter on the radio. It was the provincial gendarme regional commander. Ihsan claimed that there were 70-80 dead and told the helicopter to fire at certain places. He said the terrorists were running away in a tractor. When the helicopter queried whether they were villagers, he said that they were terrorists and to kill them all. The helicopter refused to do so as they were civilians.", "74. At about 19.00 hours, when the security forces arrived, the witness told the NCO commander what had happened. The NCO said that they had been told that they had been raided by terrorists. The NCO talked to Ihsan, who was there. Ihsan laughed, claiming that he could have destroyed the whole village but the first lieutenant had said that it was enough. The guards stayed in the village for three days. The witness filed a complaint against them.\nExpert ballistics report dated 23 October 1993", "75. This report listed the cartridges recovered from the incident on 23 July 1993. It established that they had been fired from 7 different weapons. They were currently under examination to see if they had been fired in other incidents. A further report would issue if that was the case.\nDecision on lack of jurisdiction dated 27 October 1993 and issued by the Silvan public prosecutor", "76. This decision listed the deceased victims, Seve Nibak and Cihan Matyar, and the injured persons, Zeki Matyar, Sadik Simpil and Medeni Simpil, and identified the suspects as PKK terrorists. It was understood that an armed assault was carried out on village guards by terrorists in the Pişta area. The terrorists withdrew, entering Ormandışı village and firing indiscriminately. Two villagers died. The security forces arrived and the terrorists escaped. As the offences were within the jurisdiction of the State Security Court, the Silvan prosecutor referred the file to the Diyarbakır State Security Court’s chief public prosecutor.\nDecision on lack of jurisdiction dated 24 November 1993 and issued by the Diyarbakır State Security Court public prosecutor", "77. This decision listed Ihsan, Esref, Mehmet Zaman and Gurkan Simpil as suspected perpetrators of the murder of Seve Nibak and Cihan Matyar. It was understood that the suspected village guards had raided Ormandışı village and murdered the above persons by indiscriminate firing on duty. The case was referred to the Silvan public prosecutor for the institution of proceedings.\nIncident report dated 23 July 1994 and signed by the Silvan district gendarme commander", "78. The incident was described as an armed clash with members of the PKK, which took place on 13 January 1994. It was stated that three Boyunlu village guards set out for Kaforme hill where they came across a group of seven to eight terrorists. A clash occurred during which Mehmet Safi Aranacak and an unidentified PKK terrorist were killed. As soon as contact was made, three teams of village guards from Boyunlu, a team of village guards from Onbaşılar, a BTR-80 unit and three gendarme commando units set out in pursuit. Though bloodstains were found and it was thought that two terrorists were wounded, no further terrorists were discovered.\nProtocol dated 29 September 1994 and signed by gendarmes and the applicant", "79. This protocol stated that an investigation had been carried out into the complaints of the applicant and Mehmet Safi Aranacak that their houses and gardens had been burned in Ormandışı. No complaint had been made to the local gendarme station about this. Mehmet Safi Aranacak had however been killed during a skirmish with the security forces on 13 January 1994 near Boyunlu village in which he had taken part as a terrorist. The applicant had houses in Silvan and in Ormandışı village. He came to Ormandışı village during the harvest season. His house, garden and fields in Ormandışı had not been burned down by village guards.\nStatement by the applicant dated 30 September 1994 and taken by the Silvan public prosecutor", "80. The applicant stated that he lived in Ormandışı village. Mehmet Safi Aranacak was killed in armed clashes with the security forces on 13 January 1994. He did not know whether he was a terrorist or not. His own house, garden and fields in Ormandışı were not burned as was alleged. He had not applied to any authority about the matter.\nLetter of 30 September 1994 from the Silvan district gendarme commander to the Silvan public prosecutor", "81. It had been reported that the applicant and Mehmet Safi Arancak had applied to the European Commission of Human Rights, alleging that their houses, garden and fields had been burned down by village guards on 24 July 1993.", "82. According to their investigations, it appeared that no complaint had been made to the gendarmerie about this matter. Mehmet Safi Aranacak had been killed on 13 January 1994 fighting as a terrorist against the security forces at Kaforme hill, Boyunlu village. The applicant had houses in Silvan and Ormandışı, and his house, garden and fields had not been burned down by village guards. The allegations were false. \nDecision not to prosecute dated 3 October 1994 and made by the Silvan public prosecutor", "83. Although it had been alleged that the applicant and Mehmet Safi Arancak’s houses, gardens and fields had been burned by village guards and that they had been forced to leave their village, it appeared from the applicant’s statement, the letter from the Silvan district gendarmerie, the autopsy report and all other documents that the investigation failed to produce any evidence that the allegations were true and that the offences charged had been committed. It followed that no public prosecution should be opened.\nJudgment of the Diyarbakır Aggravated Felony Court dated 1 July 1996", "84. This judgment acquitted Ihsan Simpil, Eşref Simpil, Mehmet Zaman Simpil and Gokhan Simpil of the murder of Seve Nibak and Cihan Matyar.", "85. The court found that on 23 July 1993 a clash took place between the PKK and the defendant village guards. The terrorists escaped towards Ormandışı, where the victims lived. The village guard defendants went into the village in pursuit. The Court summarised the evidence as follows.\nGurkan Simpil claimed that he was not at the incident but was grazing his sheep. His defence was confirmed by the testimony of Yasar, Makbule, Kamil Simpil and Salih (name illegible). Eşref, Ihsan and Mehmet Zaman Simpil stated that they were in the incident and that when they entered the village, a two-way conflict took place. The victims might have died in the conflict but the village guards did not kill them. \nBişar Nibak, the husband of Seve Nibak, had run away and did not witness what happened to his wife. Husnu Nibak stated that four men had fired. Azize Matyar, mother of Cihan, had stated that they had shut themselves in their house. There had been firing outside and a bullet had hit and killed her son. She had opened the door and seen the three defendants Esref, Ihsan and Gurkan. Mehmet Zeki Matyar stated that he did not see the incident himself. Faysal Arslan said that he did not know who killed the victims and did not see the incident with his own eyes. Metin Matyar stated that he did not see the perpetrators of the murder incident with his own eyes. \nEmpty cartridges or other material evidence at the location proving the defendant’s participation in the murder were absent.\nStatements had been taken from Captain Hakan Temel Aksel and First Lieutenant Haci Ali Biber, commanding officers during the incident. They stated that there had been a conflict between the PKK and the village guards and that the victims died as a result of firing by the terrorists. They had seen the terrorists running from the village through their binoculars. They had carried out an investigation and concluded that the victims were killed by terrorists. However, some witnesses indicated that as a result of pressure from the terrorists, some villagers held the defendants responsible. Consequently, on the basis of the evidence gathered, no convincing evidence had been obtained to prove that the defendants killed the victims. The fact that the victims were killed by the terrorists or the defendants could not be established with certainty.\nThe claims made by the complainants were not based on eye witness accounts. The statements made during the investigation contradicted those given in court and could not be taken into account. The witnesses’ statements and the content of the file did not furnish sufficient, definitive and convincing evidence of the offence. Therefore the defendants had to be acquitted.\nStatement by the applicant dated 2 July 1996 and taken by a public prosecutor", "86. The applicant stated that he had already made a statement to the Silvan public prosecutor. At his request, that statement of 30 September 1994 was read out to him. He stated that he maintained it. He was under no pressure and denied the allegations that had been made to that effect. His house and property had not been burned. In July 1993, there were clashes between Ormandışı and Boyunlu village, after which the terrorists fled. After the incident, the village was searched by village guards. In the course of the incident, two people were killed. His house was not burned at that time. He had not applied to any authority.\nStatement by Ebedin Sezgir dated 2 July 1996 and taken by a public prosecutor", "87. The witness was not in the village at the time of the incident but was told that clashes broke out between people not from the village, presumably terrorists, and village guards from Boyunlu and Ormandışı. Those people fled through the village. Two people were killed during the clashes. He had not heard or seen that the applicant’s house or garden were burned. He had known Mehmet Safi Arancak, who had been killed in an armed clash with the security forces in the winter months of 1994. There were 25 households in the village, and the applicant was still living there working in his orchard and garden.\nStatement by Ahmet Baykuşak dated 14 April 2000 and taken by gendarmes", "88. The witness lived in Bayrambası village, located in an area subject to frequent terrorist incidents. Many villagers abandoned their homes because of the harassment from the terrorists, and moved to safer areas protected by village guards and the security forces. About that time, the applicant moved to Ormandışı, taking out the windows and doors of his house in the Basoğ district to sell. As the house was abandoned, it fell into ruin, though the concrete parts were still sound. His house was not burned down or destroyed by village protectors. He guessed that the applicant was influenced by his son who lived in Germany and was a member of the PKK.\nStatement by Kamil Simpil dated 14 April 2000 and taken by gendarmes", "89. The witness lived in Boyunlu village, as he had been forced to leave his former house and gardens in the Pista valley due to intensive terrorist activity. Many others, including the applicant, who was a relative of his, did the same. The applicant’s house in the Basoğ district was also harassed by terrorists. On one occasion there was a PKK raid on the valley, during which Sadık Simpil and Medeni Simpil were injured and terrorists escaping from the battle entered the applicant’s house. The applicant abandoned his house there and came to live in Ormandışı. He returned to remove the wooden parts. The concrete parts of the house still stood though some stone had collapsed as he had removed beams. There was no question of village guards tearing down his house. All the villagers knew that the applicant’s sons lived in Germany and supported the PKK.", "90. On 15 July 1998, the Government provided two photographs, accompanied by a procès-verbal dated 11 September 1996.", "91. The two photographs showed a man, purported to be the applicant, standing outside his house at Orrmandisi. The one-storey house was roofed and intact.\nPhotographs submitted by the applicant", "92. On 22 June 2000, the applicant’s lawyer submitted two colour photographs of the applicant standing outside his house. They showed a derelict building, without roof, with bricks and stones remaining up to the height of the applicant." ]
[]
[ "8. The applicant is a Lithuanian national, born in 1950 and living in Kaunas.", "9. The applicant, a police commissioner, was suspected of involvement in a conspiracy to smuggle non-ferrous metals in view of his alleged failure to investigate properly the activities of certain smugglers in 1994. He was arrested on 18 August 1995 in the context of criminal proceedings instituted in 1992. There were eight co-accused in the case, including the applicant.", "10. On 22 August 1995 he was charged with obtaining property by deception (sukčiavimas) under Article 274 of the Criminal Code, abuse of office (piktnaudžiavimas tarnyba) under Article 285 of the Code, and official forgery (tarnybinis suklastojimas) under Article 289 of the Code. On 29 November 1995 the prosecution dropped the last charge.", "11. From 1 December 1995 to 18 January 1996 the co-accused had access to the case-file. On 14 February 1996 a prosecutor confirmed the bill of indictment whereby the applicant was indicted for offences under Articles 274 and 285 of the Criminal Code. On 20 February 1996 the case was transferred to the Vilnius Regional Court.", "12. On 17 May 1996 a judge of the Vilnius Regional Court ordered additional investigations and requested that the prosecution supplement the charges under Articles 274 and 285 of the Criminal Code. On 26 June 1996 the Court of Appeal quashed the decision, finding that the Regional Court was able to consider the question of committal for trial without further investigation measures. The Court of Appeal also ordered the applicant’s release on bail. He was released in open court. On 9 July 1996 the Court of Appeal remitted the case to the Vilnius Regional Court.", "13. On 20 September 1996 the judge of the Vilnius Regional Court committed the applicant for trial on the charges under Articles 274 and 285 of the Criminal Code.", "14. During the trial hearing on 24 April 1998 the judge stated: \n“... the charge of cheating may be supplemented ... [and] the charge under Article 285 [of the Criminal Code] may be amended by adding the ‘selfish interest’ ... .”\nDuring the trial hearing on 11 May 1998 the judge said:\n“... the charge under Article 285 may be supplemented ... with alleged breaches of [the specific provisions] of the Police Act ... .” \nDuring that hearing the trial judge informed the parties that she would pronounce the judgment on 22 May 1998.", "15. On 22 May 1998 the Vilnius Regional Court acquitted the applicant on the count of obtaining property by deception under Article 274 of the Criminal Code. In connection with the charge under Article 285 the court held: “the charge of abuse of office cannot be sustained... . However, [the applicant], being a State official, improperly performed his functions because of negligence” in that he had failed to ensure proper investigation and control of the smuggling case. Since this failure amounted to a breach of certain provisions of the Police Act, the judge found the applicant guilty of official negligence (tarnybos pareigų neatlikimas dėl nerūpestingumo) under Article 288 of the Criminal Code. He was sentenced to one year’s imprisonment and deprived of the right to occupy an official position in the system of law enforcement. The judge reduced the custodial sentence by one third pursuant to an amnesty law, and found that the applicant had completed the sentence on account of the time spent in detention on remand.", "16. The applicant appealed against the judgment of 22 May 1998, stating that the Vilnius Regional Court had convicted him of an offence not covered by the initial charges and in respect of which he had not been in a position to defend himself. He noted in particular that during the trial the judge had in no way indicated that the charge of abuse of office could be replaced by one of official negligence.", "17. On 9 September 1998 the Court of Appeal held an appeal hearing on questions of fact and law in the presence of the applicant and his defence lawyer. The appeal court heard addresses by the applicant and a prosecutor. The Court of Appeal dismissed the applicant’s appeal on the ground inter alia that: \n“the allegation that the reclassification was not permitted is unfounded. Both Articles [285 and 288 of the Criminal Code] punish offences against State office. The [first instance court] court only established that [the applicant] improperly performed his functions as an officer because of negligence, but that he did not deliberately take advantage of his official position contrary to the interests of his office. The [original] charge did not refer to breaches [by the applicant] of specific provisions of the Police Act. In accordance with Articles 279 § 2 and 280 of the Code of Criminal Procedure, the court warned [the applicant] that the charge could be supplemented with breaches of [the specific provisions] of the Police Act. An adjournment was offered for the preparation of the defence, but the parties did not request such an adjournment ... . The allegation that [the applicant] could not defend himself against the charges is therefore dismissed.”", "18. The applicant filed a cassation appeal with the Supreme Court, complaining inter alia that the reclassification of the charge had breached his right to defend himself. On 2 March 1999 the Supreme Court dismissed the appeal, upholding the decisions of the lower courts. The cassation court held inter alia that the first instance court had reclassified the offence of abuse of office with that of official negligence in accordance with Articles 279 § 2 and 280 of the Code of Criminal Procedure as the appeal court had replaced the initial charge with a lesser one, merely drawing the legal conclusions consistent with the facts laid before it." ]
[]
[ "9. The applicants are Swiss citizens born in 1950 and 1957, respectively. The first applicant lives in Siebnen, the second in Lachen in Switzerland.", "10. In 1994 the applicants announced their intention to construct a subterranean garage in Lachen. The neighbours complained, arguing that certain prescribed boundary distances between the real properties had not been observed. Their objection was dismissed by the March District Court (Bezirksgericht) on 19 July 1994. The court awarded the applicants, as defendants, 8,000 Swiss francs (CHF) for procedural expenses (Prozessentschädigung), as the plaintiffs, their neighbours, could themselves have verified that the distances in question had been respected. The court costs of CHF 1,149.20 were imposed on the plaintiffs.", "11. The neighbours filed an appeal (Berufung) which the Cantonal Court (Kantonsgericht) of the Canton of Schwyz dismissed on 4 July 1995. In the operative part of its decision, the court took formal note of the applicants' commitment that no changes would be made within fifty centimetres from the border separating the real properties. The court also ordered the applicants to pay the plaintiffs CHF 4,000 as procedural expenses for the first-instance proceedings and CHF 4,000 for the appeal court proceedings, and imposed on the applicants the first-instance court costs as well as appeal court costs amounting to CHF 3,450.50. The court found that the applicants' plans had been incomplete and even incorrect and the terms employed had been vague, thus prompting the plaintiffs to uphold their objection. The uncertainty brought about by the applicants' conduct contrary to good faith had actually provoked the procedures before the two instances.", "12. On 9 October 1995 the applicants filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), complaining, first, about the imposition of costs, which in their view was disproportionate as the Cantonal Court had dismissed the plaintiffs' claims. There had been no obligation to submit plans, and neither the first nor the second instance had considered it necessary to ask for further plans. It was unclear to what extent the terms used had been imprecise, and indeed, the objections raised by the plaintiffs had a priori been completely unfounded. On the whole it appeared disproportionate that, for a matter of a value of CHF 10,000, the applicants were now asked to pay CHF 12,000 for completely unnecessary proceedings. Second, the applicants complained that the Cantonal Court had in its judgment incorrectly taken note of their commitment which in fact had not been requested by the parties in the proceedings.", "13. The Federal Court transmitted the applicants' public law appeal for observations to both the Cantonal Court and the plaintiffs.", "14. The Cantonal Court sent its reply, running to seven pages, together with the case-file, to the Federal Court on 16 November 1995, requesting the latter to dismiss the applicants' public law appeal. In its submissions it explained why the applicants' plans had been vague and that precise early information would have been necessary. The court continued that it was “quite typical for the (applicants') mentality” (geradezu typisch für die Mentalität) that they had submitted sketches of plans only after objections had been filed, since they knew that there were tensions with their neighbours and that the latter would object. Other remarks of the applicants were misplaced (deplaziert). The Cantonal Court furthermore submitted that it had been competent to formulate conditions in its judgment, in particular as to changes in the border area between the properties.", "15. The plaintiffs filed their observations of five pages on 4 December 1995. Therein, they commented on the judgment of the Cantonal Court, and they requested the Federal Court to dismiss the applicants' public law appeal.", "16. The Federal Court transmitted the various observations to the applicants' lawyer who, on 11 December 1995, replied:\n“In the above-mentioned case I thank you for serving the observations. I should like to ask you to let me have the case-file for consultation (which in the cantonal proceedings could not be fully undertaken, as the case-file presented by the Cantonal Court was incomplete).\nIn its written 'reply' (of 7 pages), the lower court adds to its decision numerous new grounds as well as amendments to its reasoning. They are hardly objective and aim at twisting the facts in a manner not to be expected from a court. Pursuant to S. 4 § 1 of the Swiss Federal Constitution and Article 6 § 1 of the Convention, the applicants request the opportunity to comment on the 'reply'.”", "17. By letter of 13 December 1995 the Federal Court replied:\n“You are objecting against inadmissible statements in the observations of the Cantonal Court and you request transmittal of the case-file.\nAt the present stage of the proceedings, the parties can no longer exercise any rights. Therefore, and as we need the case-file for our decision, we cannot comply with your request for consultation. Inadmissible statements of the Cantonal Court will be disregarded ex officio.”", "18. On 7 February 1996 the Federal Court dismissed the applicants' public law appeal, the decision being served on 9 April 1996. The judgment noted at the outset that both the Cantonal Court and the opposing party had requested dismissal of the applicants' public law appeal. In its judgment the Federal Court then declared inadmissible as being insufficiently substantiated the complaint that the Cantonal Court had incorrectly taken formal note of the applicants' commitment that they would not make changes within 50 centimetres from the border line separating the two properties. In respect of the complaints about the imposition of costs, the Federal Court noted that the applicants, by expressing the wish to construct the garage, had in fact unintentionally obliged their neighbours to institute proceedings and to defend their property rights, compliance with which had at the outset not sufficiently transpired from the plans. The Cantonal Court was entitled to combine the dismissal of the neighbours' objection with a clause that no changes could be made in the border area between the properties. On the whole, a person wishing to construct became responsible for provoking litigation if he did not from the beginning establish clearly that other persons' rights would not be affected." ]
[ 3 ]
[ "9. The applicant, a Swiss citizen born in 1912, is a pensioner living in Worben (Switzerland).", "10. Until 1994 the applicant, who draws an old-age pension, lived with her husband in a house belonging to He.M., one of her two sons, in Lyss in the Canton of Berne. As she was suffering from leg sores, she received help from the Lyss Association for Home Visits to the Sick and Housebound from 1987. In 1989 He.M. moved in.", "11. In 1994, at their request, the applicant and her husband were placed under the guardianship (Beistandschaft) of their other son, A.M. However, He.M. objected to this. At the end of 1994 the applicant's husband moved into the S. Nursing Home at Worben in the Canton of Berne. It was agreed that the applicant would also move in within a week, but she did not do so.", "12. On 29 March 1995 a new guardian, Mrs B.F., was appointed. At the applicant's request and in view of He.M.'s resistance to the new guardian, the guardianship order was discontinued in respect of the applicant on 28 June 1995, but the order in respect of her husband remained effective.", "13. Early in 1996 the applicant's husband died.", "14. On 9 February 1996 the Association for Home Visits to the Sick and Housebound wrote to the Lyss Guardianship Office (Vormundschafts-behörde), stating, inter alia:\n“For the following reasons [the applicant's] treatment and care is causing increasing difficulty; for days now it has become impossible. Our programme is being disrupted: virtually every day we must stand outside a closed door and wait until He.M, her son, perhaps deigns to open it, scantily dressed. Frequently, we must try again at another time ... A collection of newspapers, cardboard boxes and full plastic bags makes it difficult for us to gain access to the equipment we need for our work ... If [the applicant] is bedridden, which she was from 28 January to 5 February 1996 because of the lack of heating in the rooms, we are unable to undertake even the minimum care of [her] on account of the chaos in the room [im räumlichen Debakel] ... We will be able to continue to provide care for [the applicant] until 29 February 1996. If [she] or her family wishes us to continue our services, this will be possible after 1 March 1996, but only on the following conditions: 3. We require space to be made available in [the applicant's] bedroom, and the spare bed, as well as the boxes and bags that are lying around, to be taken out, as they hinder our work; access to [the applicant's] bed must be free; 5. If [the applicant] is bedridden, she should have a warm midday meal (to be provided by the home services of the old people's home).”", "15. It appears that the applicant and He.M. did not respond to that proposal. On 29 February 1996 the Association for Home Visits to the Sick and Housebound stopped visiting them. Subsequently, following an eye operation, the applicant's eyesight deteriorated. From March 1996 the association's doctor ceased to visit the applicant, who continued to live with He.M.", "16. On 13 December 1996 the Lyss Guardianship Commission (Vormundschaftskommission) requested the Aarberg District Government Office (Regierungsstatthalteramt) to place the applicant in an old people's nursing home.", "17. On 16 December 1996 the Aarberg District Governor visited the applicant. The applicant explained that, as a rule, her son did the cooking and that she was given enough to eat. She could go to the toilet unassisted, and washed herself in the kitchen. Her leg sores were washed and treated by a woman who helped her. The applicant also stated that she did not wish to go to the S. Nursing Home.", "18. On 17 December 1996 the Aarberg District Government Office ordered the applicant's placement for an unlimited period in the S. Nursing Home on account of serious neglect (schwere Verwahrlosung). The Office relied on Articles 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) and section 9 of the Deprivation of Liberty on Grounds of Welfare Assistance Act (Gesetz über die fürsorgerische Freiheitsentziehung) of the Canton of Berne. The order requested the municipal police, together with the health inspectors, to implement the order on 20 December. The order noted that the applicant required permanent treatment in view of her leg sores and cataract, that she no longer received care from a doctor or an association, and that it was not certain that she had enough to eat. The order, referring to intolerable conditions of hygiene in the unheated flat, stated that this situation, which had already lasted for many years, would not change in the foreseeable future.", "19. On 20 December 1996 the applicant was placed in the S. Nursing Home in Worben.", "20. The applicant and He.M., her son, each filed an appeal (Rekurs) with the Deprivation of Liberty on Grounds of Welfare Assistance Cantonal Appeals Commission (Rekurskommission) of the Canton of Berne. The Appeals Commission consisted of three judges, its president being a lawyer. The other two persons were specialised judges, one of whom, the rapporteur, was a doctor.", "21. On 16 January 1997 the Appeals Commission conducted a hearing at which the applicant, He.M., their lawyer, a member of the Guardianship Commission and a representative of the S. Nursing Home were present. According to the record of the hearing, the applicant explained that she had no reason to be unhappy with the nursing home, that, as she could no longer walk, it would be better for her to stay there, and that she did not see how matters could get better for her. However, she also said that she “wanted to get out of S.”.", "22. The Appeals Commission dismissed the appeals the same day. As to the facts it found:\n“The situation at [the applicant's home] was apparently catastrophic, as even third parties found it necessary to file reports or make statements. It is noted in the file that lately [the applicant] had taken to staying in bed, her eyesight was very poor, and she could not walk or stand properly. According to her own submissions, she has to hold on to support wherever she goes. She needs a wheelchair, but does not have one at home. The flat was not heated, there was refuse everywhere, and no one was catering for meals. The nurse responsible for [the applicant's] care had already stated on a previous occasion that her leg sores had not healed because of her living conditions. The nurse now states that in the last weeks of care she had noticed a serious loss of body weight, which she attributed to the fact that [the applicant's son] was not taking sufficient care to ensure that his mother was eating properly. A certain Mr Hi., who had brought [the applicant] home after her stay in hospital, had been horrified by the state of the flat and said that it was not heated. The fruit vendor also reported that the situation was horrific. When Mrs B.F., the head of the social services, had been asked how [the applicant] responded to the nursing home, she had answered that she had been present when [the applicant] had arrived. At that time [the applicant] had not been able to walk, she was not properly dressed (she was wearing nylon tights and a torn woollen jacket) and smelled badly. Mrs B.F. was shocked and declared that she had never seen a person in such a state, although she had a long experience in guardianship matters.”", "23. In its decision the Appeals Commission considered that two grounds had been made out under Article 397a of the Swiss Civil Code that justified withdrawing the applicant's liberty on grounds of welfare assistance. Firstly, the applicant had been neglected, as she was no longer able to tend to her most basic dietary and hygiene needs. She could not even dress herself. Without outside help she was confined to bed. Since the Association for Home Visits to the Sick and Housebound had stopped visiting, the problem was unresolved, particularly as the applicant refused to go into the S. Nursing Home voluntarily. In respect of the second ground, the Appeals Commission considered that “during the hearing it had come to the conclusion that the applicant had a mental disability (senile dementia)” (Geistesschwäche (altersbedingte Demenz)). In view of that disability, the Appeals Commission considered that the applicant's placement in a nursing home “would be justified even if it was considered that the degree of neglect was not sufficiently serious”. The decision continued:\n“In this context, the appellants' argument is not helped by the fact that [the applicant] has accepted that she needs to go into a nursing home, as she explained during the appeal hearing. It is true that there would be no need for deprivation of liberty on grounds of welfare assistance if [the applicant] went to reside at the S. Nursing Home of her own free will. However, it transpires from the case file that although she has already frequently stated that she was now willing to enter S. voluntarily, finally this has not happened.”", "24. In the Appeals Commission's view, if the applicant were released, she would return to her son, who was unable to provide sufficient care for her, as he was himself an invalid with poor eyesight. Yet, the S. Nursing Home, which could provide the necessary care, was ideal for the applicant as it was in an area she knew. Indeed, the applicant was hardly aware of the deprivation of liberty, which was minimal, and in fact it mainly affected her son, who did not want to leave his mother. The Appeals Commission further found that the deprivation of liberty on grounds of welfare assistance complied with Article 5 § 1 (e) of the Convention, since that provision also permitted a deprivation of liberty in cases of vagrancy, a term that was to be understood in a wide sense.", "25. The applicant and her son He.M. lodged a public-law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 15 May 1997. The decision was served on 17 June 1997.", "26. In so far as the applicant and her son complained that the Appeals Commission had not examined whether less stringent measures were possible, the court found:\n“The Commission concludes on the facts that the first appellant [the applicant] is no longer capable of looking after and caring for herself, feeding herself or even dressing herself; without outside help she would be confined to bed; the second appellant [the applicant's son] who is an invalid, and is in fact no longer able to see, is unable to look after her, and there is nobody else who is in a position to care for her; other attempts which have been made to resolve this problem have failed; in the end, placement in the S. Nursing Home at Worben has been considered to be the only means of preventing neglect. The Appeals Commission has therefore duly considered the proportionality of the deprivation of liberty ...\nWhether in the case of the first appellant there exists, apart from serious neglect, some mental disability which would also justify a deprivation of liberty in itself – a point which is challenged by the appellants – and whether procedural rules have allegedly been breached in connection with this ground of detention, are matters which do not need to be examined, particularly as the appellants have been unsuccessful in their appeal against the [applicant's] detention for serious neglect.”", "27. On 14 January 1998 the Aarberg District Government Office lifted the applicant's placement order as she had agreed to reside in the nursing home of her own free will." ]
[]
[ "10. The applicants are German nationals who were born in 1966 and 1968 respectively and live at Badbergen (Germany). They are married and have two daughters: Corinna, who was born on 11 September 1991, and Nicola, who was born on 27 February 1993.", "11. The applicants and their two daughters had lived since the girls' birth with Mr Kutzner's parents and his unmarried brother on an old farm. Mr Kutzner works on a poultry farm. Mrs Kutzner used to work in a factory, but since losing her job has stayed at home to look after the children and do the housework.\nThe applicants had attended a special school for people with learning difficulties (Sonderschule fûr Lernbehinderte).", "12. Owing to their late physical and, above all, mental development, the girls underwent a series of medical examinations. On the advice of one of the doctors and at the applicants' request, they received educational assistance and support from a very early age. Thus, from 1994 Corinna, the elder daughter, received educational assistance (Frühförderung), while from 1995 and 1996 respectively, both girls attended a day-nursery school for children with special needs (Heilpädagogischer Kindergarten).", "13. Between October 1995 and May 1996, Ms Klose, a social worker (sozialpädagogische Familienhilfe) visited the applicants' family at home, officially for ten hours a week. The applicants say that she actually spent only three hours there, as the time she spent travelling had to be taken into account. Relations between her and the applicants rapidly deteriorated, which the applicants say resulted in her preparing a very negative report on them.", "14. Ms Klose's report to the Osnabrück District Youth Office (Kreisjugendamt) did indeed emphasise negative points: the applicants' intellectual shortcomings, conflictual relations between the family members and the contempt that, initially at least, she had been shown by the family.", "15. Following that report the District Youth Office made an application on 13 September 1996 to the Bersenbrück Guardianship Court (Vormundschaftsgericht) for an order withdrawing the applicants' parental responsibility for their two children.", "16. On 18 September 1996 the Bersenbrück Guardianship Court appointed Mr Waschke-Peter, a psychologist, to give expert evidence. He delivered his report on 20 November 1996.", "17. On 12 February 1997, after hearing evidence from the applicants and the grandparents, the Guardianship Court made an interlocutory order (einstweilige Anordnung) withdrawing the applicants' rights to decide where their children should live (Aufenthaltsbestimmungsrecht) or to take decisions regarding the children's health (Recht zur Bestimmung über ärztliche Maßnahmen), notably on the ground that “[the applicants did] not have the intellectual capacity required to bring up their children properly” (“die Kindeseltern sind intellektuell nicht in der Lage, ihre Kinder ordnungsgemäss zu erziehen”).", "18. From February to July 1997 the girls were placed in the care of the assessment team (Clearingstelle) of a private association at Meppen (Verein für familienorientierte Sozialpädagogik), which was part of the Society for Family Education (Gesellschaft für familienorientierte Sozialpädagogik).", "19. In a report dated 18 and 24 April 1997, the chairwoman of the executive board of the society, Ms Backhaus, also requested that the applicants' parental responsibility be withdrawn on the ground that, while the children's IQ was expected to decrease, a new home would afford them a chance to enjoy a relationship that would stimulate the development of their social skills and intelligence (eine Verflachung des IQ's ist vorprogrammiert, eine Chance haben die Kinder durch eine neue Beelterung, in der über die Beziehung neue Impulse für die Sozial- und Intelligenzentwicklung gesetzt werden).", "20. On 27 May 1997, after hearing further evidence from the applicants and the grandparents, the Guardianship Court withdrew the applicants' parental rights (Sorgerecht) over their two children. It relied notably on the finding in the psychologist's report that the applicants were not fit to bring up their children, not through any fault of their own (unverschuldet erziehungsunfähig), but because they did not possess the requisite intellectual capacity. \nThe Guardianship Court found that the applicants lacked the necessary awareness to answer their children's needs. Moreover, they were opposed to receiving any support from social services and, far from being genuine, the consent they had now given to the measures that had been taken was merely a reaction to the pressure they had felt as a result of the proceedings.\nThe Guardianship Court added that the children's development was so retarded that it could not be corrected by the grandparents or support from social services. Only a foster home – and in Corinna's case this would have to be a professional foster home (professionelle Pflegefamilie) – could help the two children, as any less radical measures would be inadequate.", "21. On 15 July 1997 the two girls were placed with separate, unidentified (IncognitoPflege) foster parents (Pflegefamilien) on the register held by the Society for Family Education, which had produced a report on 18 and 24 April 1997 requesting that the applicants' parental responsibility for their children be withdrawn.", "22. In letters of 24 January, 23 June and 2 July 1997 the applicants' family doctors said that they considered that the children should be returned to the applicants' care.", "23. In June 1997 the applicants appealed to the Osnabrück Regional Court (Landgericht) against the Guardianship Court's decision of 27 May 1997.", "24. From 2 September to 25 November 1997 Mrs Kutzner attended a course to qualify as a childminder (Qualifizierungskurs für Tagesmütter); she completed the course and received a certificate.", "25. On 29 August 1997 an expert in psychology from the German Association for the Protection of Children (Deutscher Kinderschutzbund), a private organisation from which the applicants had sought help, also expressed the view that the children should be returned to their family and receive extra educational support from social services.", "26. After these views had been expressed, the Regional Court appointed Mr Trennheuser as a second expert witness in psychology on 9 October 1997. He delivered his report on 18 December 1997. The Regional Court also heard evidence from the applicants, the grandparents, the relevant authority and the expert witness.", "27. By a decision of 29 January 1998 the Regional Court dismissed the applicants' appeal on the ground that the relevant provisions of the Civil Code (Articles 1666 and 1666a – see “Relevant domestic law” below) governing the protection of children's interests were satisfied.\nThe Regional Court referred to the two reports by the experts in psychology. \nAccording to the first report, which had been lodged with the Bersenbrück Guardianship Court on 20 November 1996, the applicants were incapable of bringing up their children because of their own deficiencies and because they felt out of their depth. Bringing in persons from outside the family circle to assist would merely exacerbate existing tensions between the parents and their daughters and the applicants' sense of insecurity. The family was dominated by the grandparents and the applicants were unable to project an image of authority for their children. Moreover, the grandparents, who were incapable of offering support to their own children (the applicants), were no more capable of remedying the intellectual deficiencies presented by their grandchildren.\nAccording to the second expert report – the one delivered on 18 December 1997 – the girls were approximately one year behind in their general development, a factor that was discernible in particular from their speech, which consisted of stammering. Had they not benefited from years of support from the educational and social services, they would probably have ended up in a special school for the mentally disabled and would have been unable to develop normally or lead a normal adult life. The applicants were incapable of helping their daughters to develop their personalities, as they were ill-equipped to understand them or to treat them in an appropriate manner. Scientific studies had shown that parents with deficiencies of that type prevented the development of emotional ties between them and their children. In particular, the knowledge and skills acquired at school were in danger of being stifled in the family environment. The applicants had done no more than to tend to the children's basic needs. There was a risk that in the future the parents would become increasingly aggressive towards their children. Regard being had to all those considerations, separating the children from the family was the only way of eliminating all danger to the children's welfare (Gefährdung des Kindeswohls).\nThe Regional Court noted that the expert witnesses had reached the same conclusion following a thorough analysis. The second expert witness had had due regard to the fact that the applicants had contacted the German Association for the Protection of Children and that Mrs Kutzner had attended a childminding course. However, those factors were not sufficient to enable the Regional Court to rule out all risk of the children's development being harmed.", "28. On 20 March 1998 the Oldenburg Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal, holding that there had been no breach of the law. The courts concerned had heard representations from the parties, relied on reports by two expert witnesses and had taken into account the educational assistance measures that had already been implemented, the expert psychological report lodged by the German Association for the Protection of Children on behalf of the applicants and the opinion of the family doctors.", "29. On 26 May 1998 a three-member committee of the Federal Constitutional Court (Bundesverfassungsgericht) dismissed an appeal by the applicants. 5. Expert evidence furnished on behalf of the applicants at the request of the Association for the Protection of the Rights of the Child", "30. On 29 May 1998 Mr Riedl, a professor of educational sciences and Director of the Educational Sciences Institute at the University of Schwäbisch-Gmünd, lodged a report as an expert witness appointed on behalf of the applicants in which he concluded that the children's welfare was not in danger and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. He said in particular that the family provided a successful example of cohabitation between three generations that was desired, planned and well-organised in satisfactory material conditions and in circumstances that permitted both individual and social fulfilment (“die Familie Kutzner bietet somit ein geglücktes Beispiel für das gewollte, geplante und wohlorganisierte Zusammenleben dreier Generationen in geordneten wirtschaftlichen Verhältnissen und unter positiven individuellen Bedingungen”). He added that additional measures of educational support could largely compensate for the ground the children would have to make up at school.", "31. On 17 November 1999, also at the request of that association, Mr Giese, a professor of law at the Tübingen Institute for the Assessment of Physical and Mental Damage (Institut für Medizinschaden), produced a further expert report on behalf of the applicants, in which he concluded that the procedure followed by the German courts in the instant case had contravened Articles 6 and 8 of the Convention.", "32. As the children had been placed in unidentified foster homes, the applicants were unable to see them for the first six months.", "33. They then made an application to the Osnabrück Regional Court, which on 4 December 1997 granted them visiting rights of one hour a month despite opposition from the Youth Office.", "34. Contrary to what had been ordered by the Guardianship Court, visits were conducted in the presence of eight representatives from various social services departments and associations. Subsequently, their number decreased, but the Youth Office insisted on visits being accompanied (begleitetes Besuchsrecht).", "35. Between July and November 1999 the applicants made various attempts to obtain permission to see their children at Christmas or at the start of their eldest daughter's school year, but the Youth Office refused. The applicants applied to the Bersenbrück Guardianship Court and were granted permission to see their eldest daughter at the beginning of the school year.", "36. On 8 December 1999 the applicants made a fresh application to the Guardianship Court seeking the right to visit their children for two hours at Christmas.", "37. On 21 December 1999 the Guardianship Court dismissed their application. It sought a further report from another psychologist, Ms Sperschneider, in order to establish to what extent and to whom further visiting rights should be granted.", "38. Additional information supplied by the parties after the Court had delivered its admissibility decision (see paragraph 8 above) indicates that in her report of 12 May 2000 Ms Sperschneider recommended that the applicants' visiting rights should be increased to two hours a month and that the grandparents should also be permitted to take part in visits once every two months.", "39. By an order of 9 October 2000 the Guardianship Court requested the parties to indicate whether they accepted the psychologist's proposal.", "40. In a letter of 2 November 2000 the Youth Office said that the applicants would be granted visiting rights in accordance with the arrangements proposed by the psychologist.", "41. In a letter of 14 March 2001 the applicants asked the Guardianship Court to issue a decision on the merits.", "42. In a decision of 16 March 2001 the Guardianship Court took formal note that an agreement had been reached between the parties concerning the applicants' rights to visit their children and held that it was unnecessary to determine the merits of the case.", "43. In a letter of 29 January 2001 the applicants asked Mr Seifert, who as the Osnabrück Youth Office representative acted as the children's guardian, to meet them in order to discuss various issues such as the children's physical and psychological development, arrangements for visiting rights, and a christening ceremony that had been arranged in their home village.", "44. Mr Seifert declined such a meeting in a letter of 22 February 2001, saying that the applicants could observe their children's progress for themselves during visits.", "45. On 4 March 2001 the applicants wrote to the Bersenbrück Guardianship Court requesting it to terminate the Osnabrück Youth Office's appointment as guardian and to name an independent expert in its place.", "46. In a letter of 26 April 2001 Mr Seifert rejected the criticism directed at him by the applicants.", "47. In a reply of 17 May 2001 the applicants said that the Youth Office had systematically sought to separate them from their children for good, whereas the opinion of the majority of the experts had been that separation could only be temporary and that the children needed their family of origin. They added that if the experts considered that contact of one or two hours a month under strict supervision was sufficient, then the expert evidence was of little value. Lastly, Ms Sperschneider had spent in all only two hours with the applicants and had shown no interest in what they really thought.", "48. In a letter of 12 July 2001 a court clerk (Rechtspfleger) replied to the applicants, informing them that the Guardianship Court had rejected their application." ]
[ 4 ]
[ "9. The applicant is a Portuguese national, born in 1940. He was a lawyer and is currently detained in the Santa Cruz do Bispo secure psychiatric unit in Matosinhos (Portugal).", "10. The applicant, who was suspected of fraud, was arrested on 1 March 1996 and placed in pre-trial detention.", "11. During the proceedings against him the applicant was examined by a psychiatrist. In his report of 22 July 1996 the psychiatrist concluded that the applicant was suffering from residual schizophrenia and should be given long-term psychiatric treatment.", "12. In a judgment of 11 November 1996 the Oporto Criminal Court held that, on account of his mentally disturbed state, the applicant was not criminally responsible (inimputável) and was dangerous. It accordingly ordered that he be detained for a maximum period of eight years.", "13. On 4 December 1996 the applicant was transferred to the Santa Cruz do Bispo secure psychiatric unit.", "14. In an order of 24 January 1997 a judge of the Oporto Criminal Court decided that, in accordance with the relevant legislation, the mandatory periodic review of the applicant's detention should take place on 1 March 1998.", "15. The applicant's file was transmitted to the Oporto Sentence-Supervision Court (Tribunal de Execução das Penas). On 19 February 1997 the judge of that court assigned a lawyer to represent the applicant, who had not chosen one himself. He also asked the staff of the Santo Cruz do Bispo secure unit to prepare an initial report on the applicant's condition.", "16. In a letter of 19 March 1997 Dr M.S.C. informed the judge that the applicant was “clinically balanced”. He added that his behavoiur “[was] adequate and he [could] be released on probation [liberdade para prova] if he agree[d] to accept psychiatric support outside and [took] his medication”.", "17. In an order of 7 April 1997 the judge decided to await the expiry of the time-limits provided for in Article 504 of the Code of Criminal Procedure.", "18. On 2 July 1997 the applicant personally lodged an application for release, relying on Dr M.S.C.'s favourable opinion. On 4 July 1997 the judge marked the file as “seen” (visto).", "19. On 7 January 1998 the judge asked the Institute for Social Rehabilitation, in accordance with the relevant legislation, to submit its opinion on the applicant's social situation and asked the Oporto Institute of Forensic Medicine (“the IFM”) to carry out a medical examination.", "20. The Institute for Social Rehabilitation submitted its report on 18 May 1998, concluding that the applicant's circumstances were such that he could be released on probation. A medical examination was carried out on 28 April 1998. The IFM filed a report also on 18 May 1998 concluding that the applicant remained a danger to society.", "21. On 2 June 1998 the applicant personally lodged a further application for release, relying on, inter alia, Article 5 § 4 of the Convention.", "22. On 1 July 1998 the applicant was examined by the judge. As the applicant's officially assigned lawyer was not present, the judge appointed an officer from the Santa Cruz do Bispo secure psychiatric unit as his defence counsel. The applicant stated, among other things, that he considered himself to have recovered and that the medicines which he was still taking were unnecessary.", "23. On 9 July 1998 the applicant personally lodged a further application for release. On 14 and 24 July 1998 he filed pleadings criticising the IFM's medical report.", "24. On 9 November 1998 the Prison Service asked the Sentence-Supervision Court for a copy of the latest decision relating to the periodic review of the applicant's detention. On 10 November 1998 the judge indicated that no decision had yet been taken.", "25. The applicant absconded during prison leave between 1 and 3 April 1999. He was captured on 11 November 1999 when the police authorities found him at his family home.", "26. In a decision of 20 January 2000 the Sentence-Supervision Court decided to keep the applicant in detention. The judge based his decision on the IFM's report of 18 May 1998 first, before stressing that it was clear that the applicant, who had absconded during prison leave, was not in a position to prove himself worthy of the trust that the prison system had placed in him. Lastly, the judge considered that, on account of the applicant's mentally disturbed state, the applications for release he had lodged personally did not have to be examined.", "27. The applicant personally appealed against that decision to the Oporto Court of Appeal (Tribunal da Relação). However, in an order of 4 February 2000 the judge of the Sentence-Supervision Court decided not to examine his appeal, noting that the applicant had been admitted to a secure psychiatric unit and was represented by officially assigned counsel, and that the President of the Criminal Division of the Supreme Court had delivered a decision on 5 January 2000 in habeas corpus proceedings to the effect that no other request for habeas corpus submitted by the applicant himself would be examined on account of his mentally disturbed state.", "28. On an unknown date the applicant personally appealed against that order to the Court of Appeal. However, the judge of the Sentence-Supervision Court made an order on 1 March 2000 stating that he would not examine the appeal and referring to the reasons stated in his order of 4 February 2000.", "29. On 8 November 2000 the applicant lodged, through Mr Pires de Lima, an application with the Oporto Court of Appeal challenging the judge of the Sentence-Supervision Court dealing with his case. In a judgment of 7 January 2001, the Oporto Court of Appeal granted his application, a new judge being appointed.", "30. On 29 January 2001 the public prosecutor requested the applicant's release since he presented no further danger. In a decision of 30 January 2001 the judge dismissed that request and decided to review the situation at the next periodic review (scheduled for 20 January 2002). The public prosecutor appealed against that decision to the Oporto Court of Appeal.", "31. In a judgment of 20 June 2001 the Court of Appeal dismissed the appeal." ]
[ 2 ]
[ "8. By a judgment of 6 October 1995, the Paris tribunal de grande instance made a divorce order terminating the marriage of Mr and Mrs Del Sol, ordered the liquidation and partition of the matrimonial property, set the level of maintenance to be paid to the applicant at 1,300 French francs (FRF) monthly and dismissed a claim for damages by the applicant.", "9. On 8 December 1995 the applicant appealed against that judgment, stating, inter alia, that her husband, the petitioner in the proceedings, had failed to satisfy the conditions set out in the Civil Code, as he had no rights in the assets he had offered to leave her. She argued in the alternative that a divorce would cause her exceptional hardship and that her husband's petition should be dismissed in accordance with Article 240 of the Civil Code, which empowered the court to dismiss a divorce petition if the respondent showed that “the divorce would cause the respondent ... or the children exceptional material or psychological hardship ...”. The applicant also sought maintenance in the form of monthly payments of FRF 3,000.", "10. On 25 February 1997 the Paris Court of Appeal upheld all the provisions of the impugned judgment, with the exception of the decision relating to maintenance, which was reduced to FRF 1,000 monthly. It held, inter alia, that the applicant's husband satisfied all the conditions on which the admissibility of the divorce petition depended, as he had offered to assign to the applicant his rights in property which the couple jointly owned in Italy. It further held that the applicant had failed to show that the divorce would cause her exceptional hardship, either psychologically or materially.", "11. On 20 May 1997 the applicant applied to the Legal Aid Office at the Court of Cassation for legal aid to enable her to appeal to that court against the Court of Appeal's decision. Her application was refused on 2 April 1998 on the ground that no arguable ground of appeal could be made out against the impugned judgment. The Legal Aid Office noted, however, that the applicant satisfied the means test for legal aid.", "12. On 22 May 1998 the applicant appealed against that decision. By an order of 11 June 1998 the President of the Court of Cassation upheld it, holding that the Legal Aid Office had “found no arguable ground of appeal after assessing the facts of the case in its unfettered discretion”." ]
[]
[ "9. In September 1991, at the age of 16, the applicant became a member of the British Army, joining the Life Guards regiment of the Household Cavalry. In November 1992 the applicant was posted to the Household Cavalry Mounted Regiment (“the HCMR”) where he was taught to ride a horse. The applicant alleges that during riding lessons he became the target of bullying by other soldiers, including a lance-corporal. According to the applicant, towards the end of November 1992 the lance-corporal hit him on the side of the head with his fist, causing him to fall and strike his head on the ground. On 30 November 1992, several days after the attack, the applicant reported sick and told the medical officer that the injury to his face had been caused by falling off a horse. On 26 February 1993 the applicant, who alleges to have feared a further physical attack, went absent without leave. On 17 March 1993 he wrote to the commanding officer (“CO”) of the regiment (a lieutenant-colonel), stating, inter alia, that “[his] inability to express sufficient enthusiasm during training sometimes resulted in physical abuse by certain NCOs [non-commissioned officers]”, and asking to terminate his service. He received no reply to this letter.", "10. The applicant was arrested by the civilian police on 16 October 1996 and taken to the HCMR's barracks at Hyde Park, London. The following day he was charged with being absent without leave contrary to section 38(a) of the Army Act 1955. On 18 October 1996 he was remanded in close arrest by Major Kelly, acting as subordinate CO. On the “Eight Day Delay Report” dated 24 October 1996, the reason for the detention is stated: “Likely to absent himself ... – has already offered bribe to JNCO on guard to release him.” On 31 October 1996 he appeared before the CO and was remanded by him in close arrest for an abstract of evidence. He was subsequently released by the CO into open arrest on 11 November 1996. The CO remanded him for trial by district court martial on 13 March 1997.", "11. In a statement dated 4 November 1996 to the Ministry of Defence Police, the applicant stated that the attack by the lance-corporal had occurred in the week prior to his going absent without leave, while in a statement dated 29 January 1997 he stated that the attack occurred sometime in February 1993. The police found that the lance-corporal had left the army and took statements from other soldiers who had been on the same riding course as the applicant. They found that there was no evidence to support his complaint. The applicant subsequently signed a statement saying, inter alia: “I have come to the conclusion that I just want to get out of the army and get on with my life ... Even though this assault happened, I do not want the Ministry of Defence Police ... to take any further action concerning the incident.”", "12. Following the applicant's remand for trial, the CO appointed Captain A. as “defending officer”. Captain A. was an army officer with no legal training, serving as a troop commander with the HCMR. The applicant applied to the Army Criminal Legal Aid Authority (“the Legal Aid Authority”) for legal aid to enable him to be represented by a solicitor. On the application form he stated that his weekly income after deduction of tax, rent and national insurance was 158.13 pounds sterling (GBP), and that he had no savings or other property of value. The form was countersigned by his CO. By a letter dated 26 March 1997, the Legal Aid Authority replied that a charge of absence without leave did not normally warrant legal representation but that either the CO or the applicant should write setting out his reasons if he considered that, exceptionally, legal aid should be granted. The applicant's solicitor wrote to the Legal Aid Authority on 18 April 1997 pointing out that the applicant faced a custodial sentence and needed to be represented. The Legal Aid Authority offered the applicant legal aid subject to a down-payment of GBP 240 in a letter dated 21 April 1997. The Government maintain that he could have paid in ten weekly instalments of GBP 24 each, but this is disputed by the applicant. On 30 April 1997 the applicant's solicitor wrote asking the Legal Aid Authority to reconsider the down-payment condition, but on 2 May 1997, before the Legal Aid Authority had replied, the applicant refused the offer of legal aid and was not, therefore, represented by a solicitor at the court martial.", "13. Also on 2 May 1997, the applicant signed a document, addressed “to whom it may concern”, in which he made the following statement:\n“This is to certify that I, 25009734 Tpr Morris D of The Life Guards no longer wish to be represented at my pending District Court Martial other than by my Defending Officer, Captain [A.].\nI have made this decision of my own free will. I understand that all previous correspondence with regard to my application for legal representation will now be ignored.”", "14. The applicant's court martial took place at Chelsea Barracks on 28 May 1997. The court was composed as follows: a president, Lieutenant-Colonel A.D. Hall of the Corps of Royal Electrical and Mechanical Engineers, who was a permanent president of courts martial (appointed to his post in January 1997 and due to remain until his retirement in September 2001); Captain R. Reid of the Royal Army Medical Corps, Aldershot; Captain W.D. Perks of the Second Battalion, Royal Gloucestershire, Berkshire and Wiltshire Regiment (Volunteers), Reading; and a legally qualified civilian judge advocate (see paragraph 26 below). All three military officers were outside the command area in which the applicant was serving. The president worked from home when not attending court-martial hearings.", "15. Captain A. represented the applicant, who pleaded guilty to the charge of being absent without leave between 25 February 1993 and 16 October 1996. The applicant's letter of 17 March 1993 to his CO was handed to the court, but no other mention was made of the bullying allegedly suffered by him. The applicant was sentenced to dismissal from the army and nine months' detention.", "16. After the hearing, Captain A. erroneously advised the applicant that if he appealed against the sentence he risked the commencement date for his sentence being put back to the date of dismissal of the appeal. On 31 May 1997 the applicant instructed a solicitor to represent him. On 19 June 1997 the solicitor lodged a petition with the Defence Council in its role as the “reviewing authority” (see paragraph 29 below), relying on the facts that the applicant had had no legal representation before the court martial and that his allegations of assault were not presented to the court, either by way of a defence of duress (which applies when a person charged with a criminal offence can show that, at the relevant time, he reasonably believed that he would be killed or seriously injured if he did not commit the offence) or in mitigation of sentence. The petition asserted that it was unlikely that the defending officer understood that the applicant might have had a defence on the basis of duress and that the defending officer had indicated that he had been “ordered” not to allude to the allegations at the court martial without indicating who had so ordered him. It also mentioned instructions which the defending officer had given about what the applicant ought to do in the event that the court martial should, of its own volition, ask the applicant about the allegations which had been made. It also indicated that the defending officer had advised the applicant that, “if he appealed, his sentence might well be increased”. On the same day the petition was introduced, the solicitor wrote to Captain A. asking for his comments on it and reminding him that he was subject to the rules of client privilege and should not disclose details of his dealings with the applicant to any third party. Despite this, Captain A. provided a statement to the Defence Council, in which he said, inter alia:\n“As [the applicant's] Troop Leader I was asked to represent him at Court Martial, this was the first Court Martial I have attended in any capacity. Although I have had experience in civil cases at both Magistrates' and Crown Courts. ...\n[The applicant] had indicated to me that he had gone absent from the Army for more than one reason. As expressed in his letter of 17 March 1993. He was showing reservations about his enthusiasm, commitment and devotion to duty. ...\n[T]he petition states that I assumed the petitioner had no choice but to plead guilty, as he had been Absent Without Leave. I was unaware that he could have entered a plea of not guilty to the charge on the basis of duress. [The applicant] and I did not discuss the allegations of bullying in any great detail. This was because these allegations had been withdrawn by him under interview by MOD Police.\n[The applicant] indicated to me that he wanted to drop all the references to the violence by the NCO during his training. This was in order that the trial date would be set significantly earlier and that the trial would be substantially shorter. This led me to advise [the applicant] to plead guilty as charged, as I had felt that this gave him his best opportunity to be discharged from the Army at the earliest date which was, after all, his overall aim. ...\nI discussed with the Adjutant my role as the Defending Officer. We talked about the procedural steps of the court martial and my conduct leading up to the trial. It was confirmed to me that a guilty plea would produce an earlier trial date than that of not guilty.\nI advised [the applicant] that references to his allegations of bullying could prolong and complicate his court martial. The mention of bullying would be introduced as part of his letter to his commanding officer dated 17 March 1993, which he agreed could be put forward for the court as mitigation. [The applicant] agreed that he did not wish to answer questions about his previous allegations, which he had dropped.\nI therefore advised him to refer such questions to me and I would state to the court that this was an avenue down which he did not wish to proceed. ...”", "17. The petition was refused by the reviewing authority on 14 July 1997, in the following terms:\n“The Reviewing Authority has considered the petition submitted by your above-named client, and has denied it for the following reasons.\nThe down payment for Legal Aid was carefully calculated, and was well in line with the amount the petitioner would have had to pay under the civil system. The certificate signed by him shows clearly that he had decided not to proceed with his application for legal representation. We cannot accept that [the applicant] was in any way forced to accept this decision. He also appears to have been content to accept Captain [A.] as his defending officer.\nThe complaints about the petitioner being bullied were investigated by the SIB and the allegations could not be substantiated. Indeed it came to light during this investigation that the petitioner had told [another soldier] that he planned to go absent because he was merely tired of the training and the long hours being worked. In view of the SIB report, the Reviewing Authority must accept that the allegation that the petitioner was subjected to violence by a Non-Commissioned Officer cannot be substantiated, and cannot be regarded as a mitigating factor.\nIn considering your complaint that, had the petitioner been advised by a qualified solicitor, he would have been able to plead not guilty on the basis of duress, we had to rely on the advice given by the Judge Advocate General. He stated that a person is subject to duress when words or conduct from another person cause him to fear that he will be killed or seriously injured, if he does not commit the offence. Clearly, the petitioner could never have reasonably believed that he had cause to fear that he would be killed or seriously injured.\nThe Reviewing Authority notes that the petitioner had dropped his allegations of being subjected to violence by the time he appeared in Court. All Captain [A.] intended to do was to inform the Court that the petitioner did not wish to proceed with these allegations. In fact the Court was made aware of them because the letter from (sic) the Commanding Officer was read out to them.\nWe accept that Captain [A.] was mistaken in referring the petitioner to the booklet 'Appeals and Petitions after conviction by Army Court Martial', which was out of date after 1 April 1997. In addition the wrong paragraph was used in his advice to the petitioner. However as we have now received a petition, in spite of this mistaken advice, we believe that no harm has been done. ...”", "18. On 26 July 1997 the applicant lodged an application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court. Leave to appeal was refused by the single judge on 22 October 1997, on the grounds that the defence of duress had not been open to the applicant, that he had been properly advised to plead guilty, and that the sentence was not manifestly excessive." ]
[ 3 ]
[ "9. The applicant company is the publisher of a newspaper (Kronenzeitung) with its registered office in Vienna.", "10. On 3, 4, 7, 8 and 15 March, as well as on 3 and 16 May and 29 June 1995, the applicant company published, in its Carinthian regional edition (Lokalausgabe), articles on the financial situation of a certain Mr Posch who, at that time, was employed as a teacher and, at the same time, was a member of the Austrian National Assembly (Nationalrat) and the European Parliament. The articles commented on these professional tasks and, in harsh terms, alleged that he received three salaries unlawfully as, according to Austrian law, he was not entitled to a teacher’s salary during his membership of the European Parliament. He was, inter alia, referred to as someone unjustly enriching himself. These articles were accompanied by photographs of Mr Posch.", "11. On 18 August 1995 Mr Posch applied for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) to the Klagenfurt Regional Court against the applicant company. He requested that the applicant company be ordered to refrain from publishing his picture in connection with statements describing him as somebody who received his salaries unlawfully and who benefited from unlawful privileges. Furthermore, he requested an order for the publication of the judgment in the applicant company’s newspaper, indicating the grant of damages and the injunction (einstweilige Verfügung).", "12. On 21 September 1995 the applicant company filed a statement of defence (Klage­be­antwortung) in which it argued, inter alia, that the publication of the impugned articles had been justified under Article 10 of the Convention.", "13. On 10 October 1995 the Klagenfurt Regional Court granted an interim injunction. It found the measure justified because the plaintiff’s interest in prohibiting the publication of his photograph outweighed the applicant company’s interest in the publication of the illustrated articles, in particular as the publication of the pictures per se had no special information value (Nachrichtenwert).", "14. On 4 January 1996 the Klagenfurt Regional Court granted the permanent injunction prohibiting the applicant company from publishing the plaintiff’s picture in connection with the above mentioned or similar articles. It dismissed the remainder of the action. The court found that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests. When considering such interests, account had to be taken of whether the person concerned was known to the public, because the publication of the photographs of unknown persons made it possible to identify them later. The court found that Mr Posch’s face was not generally known, despite his membership of the National Assembly. Therefore, his legitimate interests had been infringed by creating the possibility of identifying him. The applicant company was of course entitled to report on the plaintiff’s activities and financial situation, but there was no legitimate interest in publishing his picture as it had, per se, no information value. Furthermore, it was irrelevant for this specific question whether the content of the articles was true or false.", "15. On 8 February 1996 the applicant company appealed. It argued that the court had erred when it found that the plaintiff’s interests outweighed the applicant company’s interests, as the public in Carinthia, who had elected Mr Posch, were interested in his sources of revenue. Therefore the court should have also taken evidence – as had been offered by the applicant company – in order to prove the truth of the articles. Furthermore, the plaintiff was known to the public as he was Carinthian and had participated in several events during the election campaign there. Thus it was incorrect that Mr Posch’s face was unknown.", "16. On 9 July 1996 the Graz Court of Appeal dismissed the appeal. It found that the publication of the pictures together with the articles had been unnecessary. In any case, the information value of the pictures could not outweigh Mr Posch’s interests. It also confirmed the legal opinion of the Regional Court that, for the purposes of Section 78 of the Copyright Act, it was irrelevant whether or not the publication contained true information.", "17. On 15 October 1996 the Supreme Court declared inadmissible the applicant company’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs). It confirmed the findings of the Court of Appeal, observed that the publication of the plaintiff’s pictures had no additional information value, and therefore concluded that it had been unnecessary. On 4 November 1996 this decision was served upon counsel for the applicant company." ]
[ 6 ]
[ "9. The first applicant, an Austrian citizen born in 1921 and residing in Vienna, is the chief editor and publisher of the newspaper “Neue Kronen‑Zeitung”. The second applicant, a limited partnership (Kommanditgesellschaft) is the owner of this newspaper. The third applicant is a limited company, the general partner (Komplementär) of the second applicant. The second and third applicants have their places of business in Vienna.", "10. The applicants belong to a large media group which at the relevant time was in strong competition with another media group represented by Mr Michael Graff, a lawyer practising in Vienna. Besides his profession as a lawyer, Mr Graff was from 1982 to 1987 secretary general of the Austrian People’s Party (Österreichische Volkspartei) and, from 1983 to 1995, a Member of Parliament for that party. Between 1987 and 1995 he was the Chairman of the Parliament’s Legislative Committee (Justizausschuß). From 1989 to July 1995 he represented the applicants’ competitor in several proceedings concerning unfair competition against companies belonging to the applicants’ media group.", "11. In 1989 several Austrian laws were amended by the Extended Pecuniary Limits Amendment Act (Erweiterte Wertgrenzen-Novelle). The Government Bill (Regierungsvorlage) had also provided for an amendment to Section 359 § 1 of the Enforcement Act (Exekutionsordnung), a section which is of particular relevance for the enforcement of injunctions. The Government Bill had envisaged raising the fines that could be imposed for non-compliance with injunctions from ATS 50,000 per enforcement order to ATS 80,000 per enforcement order.", "12. Under the chairmanship of Mr Graff, the Legislative Committee dealing with the Government Bill proposed a different version, namely that a maximum fine of AS 80,000 could be imposed for each request for enforcement (Exekutionsantrag) instead of for each enforcement order issued by the Enforcement Court. In its report of June 1989, the Legislative Committee pointed out that the fine had to be multiplied by the number of requests for enforcement, if only one decision combining several requests was taken. This proposal was adopted by Parliament on 29 June 1989 and published as Article XI of the Extended Pecuniary Limits Amendment Act, Federal Law Gazette 1989/343 (Erweiterte Wertgrenzen-Novelle 1989, BGBl. 1989/343).", "13. Four years later, in June 1993, the following article written by the first applicant under the pseudonym “Cato” was published in the “Neue Kronen-Zeitung”:\n“Moral 93\nBefore Roland Dumas became the French Minister for Foreign Affairs, he was one of Europe’s most famous and most successful lawyers. He administered the gigantic estate of Picasso; he represented Kreisky and an Austrian Minister for Foreign Affairs when the latter found himself in a bad situation. Dumas took it for granted that he had to give up his law firm when he became a member of the government. In every democracy of the world this course of action is followed. Only Mr Graff, who is obviously thick-skinned, does not intend to comply with these moral concepts.\nIt so happened that at the time when Mr Graff was presiding Parliament’s Legislative Committee, a law was amended which brought about big advantages for the newspaper publishers whom Mr Graff represented as a lawyer. In order to ensure that in such cases no suspicion, not even one that has no objective justification, can arise, there exists the wise rule of incompatibility; a lawyer is not allowed to take part in the adoption of laws which lead to advantages for his clients.\nAlso the Austrian People’s Party thought that way and they decided to appeal to Mr Graff’s conscience. In vain! It is very telling for the present situation of the Austrian People’s Party that it cannot convince Mr Graff. The other parties will be only too pleased, when it becomes so flagrantly evident how powerless the Austrian People’s Party is vis-a-vis one of their officials who has his own moral concepts. Mr Graff was even allowed to present his disreputable attitude on our monopoly-television. Mr Graff thought that it would be a sign of fear to the ‘Kronen Zeitung’ if he had to resign from the Legislative Committee.\nThe People’s Party does not have to fear the ‘Krone’ but its voters, who will continue turning away from it if the party shows itself incapable of establishing order within its own ranks; how could one then possibly trust that it would succeed in doing this in the State ... Cato.”\n<German>\n“Moral 93\nRoland Dumas war, bevor er Frankreich’s Außenminister wurde, einer der bekanntesten und erfolgreichsten Rechtsanwälte Europas. Er verwaltete zum Beispiel das gigantische Erbe Picassos, vertrat Kreisky und einen österreichischen Außenminister, als dieser in eine arge Affäre geraten war. Für Dumas war es ganz selbstverständlich, daß er sein Rechtsanwaltsbüro aufgeben mußte, als er in die Regierung eintrat. Überall in der Welt wird dies in Demokratien so gehalten. Nur der offenbar mit einer Büffelhaut ausgestattete Rechtsanwalt Dr. Graff denkt nicht daran, sich nach solchen Moralbegriffen zu richten.\nSo kam es, während er im Justizausschuß des Parlaments den Vorsitz hatte, zur Veränderung eines Gesetzes, wodurch der Zeitungsverlag, den Graff rechtsanwaltlich vertritt, große Vorteile hatte. Damit in solchen Fällen nicht ein bestimmter Verdacht entstehen kann, der keineswegs begründet sein muß, gibt es eben die weise Regel der Unvereinbarkeit; ein Anwalt darf nicht an der Entstehung von Gesetzen beteiligt sein, die seinen Mandanten Vorteile bringen.\nDas dachte man auch in der ÖVP, und man entschloß sich, Graff ins Gewissen zu reden. Vergeblich! Es sagt einiges über den Zustand der ÖVP aus, daß sie sich gegen Graff nicht durchsetzen konnte. Den anderen Parteien kann es nur recht sein, wenn sich in so brutaler Offenheit zeigt, wie ohnmächtig die Volkspartei gegenüber einem Funktionär ist, der seine eigene Moral hat. Sogar in unserem Monopol-Fernsehen durfte er seine anrüchige Haltung vertreten. Graff meinte, es würde nur Angst vor der ‘Kronen Zeitung’ signalisieren, berufe man ihn im Justizausschuß ab.\nNicht vor der ‘Krone’ braucht die ÖVP Angst zu haben, sondern vor ihren Wählern, die sich weiter von ihr abwenden werden, wenn sie sich als unfähig erweist, in der eigenen Partei Ordnung zu machen; wie sollte man da das Vertrauen haben, es könne ihr im Staat gelingen ... Cato.”", "14. On 7 June 1993 Mr Graff brought injunction proceedings under Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the three applicants before the Vienna Commercial Court (Handelsgericht). He requested that the applicants be prohibited from stating or repeating that he “does not intend to comply with moral concepts existing in democracies all over the world, namely that one has to give up one’s law firm if one becomes a member of the government, (M.G. had never been a member of the government), and/or that he has taken part in the adoption of laws which have brought about advantages for his clients, and/or that he has been allowed to present his disreputable opinion on television”. He also requested that the statement be retracted and that this retraction be published in the “Neue Kronen-Zeitung”.", "15. On 9 July 1993 the Vienna Commercial Court issued a preliminary injunction (einstweilige Verfügung) against the applicants prohibiting them from reiterating the impugned statements. The applicants’ appeal against this decision was to no avail.", "16. On 9 September 1994 the Vienna Commercial Court granted a permanent injunction. It ordered the applicants not to repeat the impugned statements and to retract the statements in one edition of the “Neue Kronen‑Zeitung”. It found that the applicants’ statements amounted to an insult and therefore fell to be considered not only under Section 1330 § 2 of the Austrian Civil Code, but also under the first paragraph of Section 1330. In that case the onus of proof shifted to the applicants who had to prove the truth of the impugned statements. The court pointed out that all the statements contained in the article were statements of fact which the applicants had failed to prove.", "17. The court found that the statement contained in the first paragraph of the newspaper article was an insult, within the meaning of Section 1330 § 1 of the Civil Code, because Mr Graff was accused of ignoring or neglecting moral, democratic standards and had therefore acted immorally. This statement contained the implicit allegation that Mr Graff had become a member of the government. However, the allegation was untrue because Mr Graff had never been a member of the government.", "18. The court further considered that the statement in the second paragraph of the newspaper article expressed the suspicion that Mr Graff had abused his position as a Member of Parliament. The proposed evidence that should prove the truth of this allegation, namely the amendment of Section 359 § 1 of the Enforcement Act, was insufficient because the applicants had not even contended before the court that the amendment served the exclusive interest of Mr Graff’s client. In fact this amendment had an objective basis, concerned both competing media groups and had no distorting effect on competition.", "19. In respect of the third statement according to which Mr Graff’s attitude was disreputable, the court found that this statement again contained the allegation that Mr Graff had acted immorally because he had exercised two incompatible activities. The court therefore concluded that the applicants could not successfully rely on Article 10 of the Convention, because the interference with the applicants’ rights under this provision was justified in order to protect Mr Graff’s good reputation, which could be prejudiced by such untruthful statements.", "20. On 20 October 1994 the applicants appealed. They submitted that the Commercial Court had not sufficiently taken into account a written statement by E.S., an employee of the second applicant, which the applicants had submitted. According to this written statement, Mr Graff had requested the amendment to the Enforcement Act in order to impose a fine for each request for execution, thus exploiting one of the applicants’ weak points. The applicants were the owners of several monthly magazines. Unlike daily newspapers, these magazines were therefore usually on the market longer. If one of the applicants’ magazines, for instance, had violated the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb), Mr Graff, as the legal representative of the competitors, had immediately obtained a preliminary injunction and had filed almost daily requests for enforcement. He had counted on the fact that the applicants could, in the long run, not afford to pay the fines, or that they could not afford the cost of withdrawing the relevant issue of the monthly magazine from distribution. Under the previous legal situation, several requests for enforcement would be combined in one decision, and the applicants had only had to pay one fine of AS 50,000 for them. Under Section 359 § 1 of the Enforcement Act in its amended form, however, the fines were multiplied by the number of requests and, consequently, increased dramatically.", "21. Furthermore, the applicants complained that the Commercial Court had failed to take sufficient account of a written statement by their lawyer, S.R., and had refused to hear this person as a witness. He would have given evidence of a telephone conversation on 12 June 1989 between himself and Mr Graff in which the latter had complained that his requests for enforcement had not been successful and had not reaped the expected fines. He continued that this would require changes in the pecuniary limits and the system of fines. The applicants also submitted that the impugned article constituted a criticism of Mr Graff’s behaviour as a politician and was therefore protected by the freedom of expression guaranteed by Article 10 of the Convention.", "22. On 15 December 1994 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicants’ appeal. It found that the Commercial Court had correctly taken the necessary evidence and assessed the relevant facts. The applicants had not even argued before the Commercial Court that Mr Graff had been a member of the government or that the amendment of the Enforcement Act had served the exclusive interests of Mr Graff’s client. Instead they had merely argued that Mr Graff, in his function as Chairman of the Legislative Committee, had been involved in the making of laws which created advantages for his client. The applicants therefore should have proved that Mr Graff had been a member of the government and that he had manipulated the enactment of laws to the exclusive advantage of his client. The evidence proposed by the applicants, however, had been insufficient to prove such allegations. Moreover, the contested statements were not value judgments, but (political) criticism based on alleged facts. Such criticism was only acceptable if the underlying facts were true. Since the applicants had failed to prove the truth of these facts, they could not rely on Article 10 of the Convention.", "23. On 9 March 1995 the Supreme Court rejected as inadmissible the applicants’ extraordinary appeal on points of law (außerordentliche Revision). Referring to its previous case-law, the court pointed out that disparagement by means of untrue statements, even if made in the course of political debate, went beyond acceptable (political) criticism and could not be justified by a weighing of interests or by invoking the right to freedom of expression. This decision was served on the applicants on 10 April 1995." ]
[ 6 ]
[ "9. The applicant is a registered association (Verein) in Vienna and the publisher of a periodical called TATblatt. In the 9 December 1992 issue of TATblatt, the following leaflet was published:\n“Querformat, a (new) wall-newspaper against the trend towards the right wing ...”\n“Racism has a name and address\nThe FPÖ [Austrian Freedom Party] and its party officials are certainly interested in your opinion! So, let's call them and tell them what we think of them and their policy. Or let's send them small gifts in response to their racist agitation.\nWe have gathered a small selection of Vienna FPÖ officials, FPÖ offices and of course Jörg Haider in order to facilitate a little the unbureaucratic exchange of opinions.\nThey will surely enjoy your phone calls, letters and parcels: ...”\nThe above text was followed by a list of addresses and telephone numbers of members and offices of the Austrian Freedom Party (FPÖ).", "10. Between 25 January and 1 February 1993 an opinion poll (Volksbegehren) under the heading “Austria first” (“Österreich zuerst”) took place which had been initiated by the FPÖ several months before. The opinion poll, on the issue of immigration, consisted of twelve proposals, partly to amend legislation and partly to change administrative practices. It proposed, inter alia, the following:\n– to amend the Federal Constitution by a provision stating that Austria was not a country of immigration;\n– to stop immigration until a satisfactory solution to illegal immigration was found;\n– to oblige all foreign workers to carry an identity card at their place of work, showing that they had a valid work permit;\n– to increase the police force and create a separate border police;\n– to limit the percentage of pupils whose mother tongue was not German to 30 % and, if the percentage were higher, to create separate classes for foreigners;\n– to deny foreigners the right to vote; and\n– to require the immediate expulsion of and residence prohibition on foreign offenders.", "11. On 11 February 1993 Mr Jörg Haider, leader of the FPÖ and at that time a member of Parliament, brought civil proceedings for an injunction under Article 1330 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) against the applicant before the Vienna Commercial Court (Handelsgericht). He requested that the applicant be prohibited from repeating the statement according to which he had incited people to “racist agitation” (“rassistische Hetze”) and any similar statements. He further requested that the applicant be prohibited from inviting people to “send small gifts in response to their racist agitation”, together with the publication of the names, telephone numbers and addresses of members of the plaintiff's political party.", "12. The applicant submitted that it had never identified itself with the leaflet at issue and had merely published it out of journalistic interest and in order to inform the public. Moreover, the words “racist agitation” were not a statement of fact but a value judgment, and were meant as a critical comment of the opinion poll “Austria first” which the plaintiff had initiated and which was directed against “immigration without control”.", "13. On 14 April 1994 the Vienna Commercial Court granted the injunction. It found that the impugned statement about “racist agitation” was not a value judgment, but a statement of fact. Such a statement contained a reproach of a criminal offence, namely “incitement to hatred” (Verhetzung) under Article 283 of the Austrian Criminal Code (Strafgesetzbuch), and not only damaged the plaintiff's reputation (Rufschädigung) but also amounted to an insult (Ehrenbeleidigung). In order to avoid the injunction, the applicant therefore needed to prove the truth of its statement. However, it had failed to do so. Even accepting that the plaintiff was, more or less, a right-wing politician, there was no evidence that he had attempted to incite hatred (verhetzen) against aliens or had attacked their human dignity.", "14. As regards the invitation to “send small gifts”, the court observed that a part of the applicant's readership was, for political reasons, prepared to use violence and anarchistic methods. In this respect the court noted that in the 9 December 1992 issue of TATblatt a letter to the editor had been published which read as follows:\n“... we organised in the night of 29 to 30 November our first action against Haider's referendum and have smashed several windows of the FPÖ headquarters in Salzburg. This was only the beginning. ...”", "15. According to another letter to the editor published in the 20 January 1993 issue of TATblatt, an FPÖ party office in Vienna had been “visited”, the words “racism stinks” had been sprayed on the walls, windows smashed and butter acid thrown into the office. The Commercial Court then quoted further letters of this kind which had appeared in various issues of TATblatt. The court found that against this background the invitation to “send small gifts” constituted an attack on the plaintiff's personality rights (Persönlichkeitsrechte) which had to be respected. Accordingly, the court granted the injunction in this respect also.", "16. On 29 August 1994 the applicant appealed against the injunction.", "17. On 26 January 1995 the Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal. It confirmed the Commercial Court's view that the statement according to which the plaintiff had incited people to “racist agitation” was a statement of fact which the applicant had failed to prove. In this respect the court found as follows:\n“But since – as we have already outlined in dealing with the complaint concerning the facts – the meaning of the term 'racist agitation' could be established on the basis of general experience, and since the defendant has failed to submit any concrete allegations to the effect that the plaintiff had shown conduct corresponding to what is generally known as 'racism' and 'agitation', the court of first instance – without there being a mistake of law – rightly concluded that the defendant was unable to prove the truth of its allegations. ...”", "18. As regards the applicant's argument that this statement was covered by its right to freedom of expression, the Court of Appeal found that the interests of the applicant and the plaintiff had to be balanced against each other. However, the applicant's statement could not be justified by referring to freedom of expression, because the statement went beyond the limits of acceptable criticism by reproaching the plaintiff with a criminal offence. Moreover, the impugned statement was untrue and therefore not protected by Article 10 of the Convention. The Court of Appeal confirmed the decision of the Commercial Court in respect of both statements.", "19. On 13 March 1995 the applicant introduced an extraordinary appeal on points of law (außerordentliche Revision) against the Court of Appeal's decision in so far as it concerned the prohibition to repeat the statement that the plaintiff had incited people to “racist agitation”.", "20. On 6 April 1995 the Supreme Court (Oberster Gerichtshof) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case-law." ]
[ 6 ]
[ "9. In October 1991 the applicant made an application for prior authorisation to adopt a child. A social inquiry was opened by the Paris Social Services, Child Welfare and Health Department. On 18 December 1991 the applicant had a first interview with a psychologist from the Department, during which he revealed that he was a homosexual. He submits that during the interview he was strongly urged not to continue with the adoption process.", "10. In a decision of 3 May 1993 the Paris Social Services Department rejected the applicant's application for authorisation to adopt. The reasons given for the decision were that the applicant had “no stable maternal role model” to offer and had “difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child”. The decision was taken on the basis of various inquiries leading, among other things, to a social services report of 2 March 1993, which included the following statements:\n“... Mr Fretté seems to us to be a sensitive, thoughtful man who shows consideration for others. He discusses his emotional life and his homosexuality with a great deal of honesty and simplicity. He spoke to us of a number of relationships which have had a major impact on his life, particularly one with a male friend who has now died. It should be added that he is now the auxiliary guardian of this friend's child. ...\nHis humanistic, altruistic cast of mind prompts him to take an interest in the problems of the Third World. He sponsors two Tibetan children, one of whom is a baby.\nHe is able to talk sensibly and intelligently about the boy over whom he has guardianship. He is not personally responsible for the boy, who is in the care of his grandmother, but he plays a highly active part in his upbringing. His ideas about bringing up children are well thought out and imbued with a spirit of tolerance.\nMr Fretté has been thinking about adopting since 1985. He is aware that his homosexuality may be an obstacle to being granted authorisation to adopt because of the prevailing views of society.\nIn his opinion, his choice of emotional and sexual lifestyle has no bearing on his desire to bring up a child. His application is a personal undertaking not a militant gesture.\nSince 1985 he has met many homosexual men with children.\nHe even once considered having a child with a female friend but the plan came to nothing because of a lack of maturity on both sides. This friend is nonetheless still very interested in Mr Fretté's plan to adopt and has even promised to act as a female role model for the child.\nMr Fretté's application to adopt a child is motivated by a desire to provide a child with affection and a proper upbringing. In his view the essential thing is to love and care for a child, adoption, for him, being no more than a social and legal procedure.\nMr Fretté has the support of the friends around him. It seems, however, that his family either do not know of his plans or have misgivings about them.\nHis desire for a child is genuine but he has difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child. For example, it was only when we visited his home that he realised how unsuitable his flat is for a child to live in. As a result he began considering the possibility of moving.\nWhen questioned as to how he regarded his role in society as a single father he said he did not have an answer. He considers himself capable of managing the day-to-day life of a child and thinks that he will in due course find the answers to the questions about his homosexuality and the absence of an adoptive mother that will occur to the child as he or she grows up.\nMr Fretté is perfectly aware of the importance of telling the child about his parentage. He shows understanding towards women who are impelled to abandon their children. He refuses to have any fixed ideas about the characteristics of the child he would like to adopt.\nNonetheless, he has been thinking that he would prefer as young a baby as possible and that he may begin searching in Korea or Vietnam.\nMr Fretté has undoubted personal qualities and an aptitude for bringing up children. A child would probably be happy with him. The question is whether his particular circumstances as a single homosexual man allow him to be entrusted with a child.”", "11. On 21 May 1993 the applicant asked the authorities to reconsider their decision but his application was dismissed by a decision of 15 October 1993 indicating, among other things, that the applicant's “choice of lifestyle” did not appear to be such as to provide sufficient guarantees that he would offer a child a suitable home from a family, child-rearing and psychological perspective.", "12. On the same day the applicant lodged an application for judicial review of that decision with the administrative court, seeking to have the decisions dismissing his application for authorisation quashed.", "13. In a judgment of 25 January 1995 the Paris Administrative Court set aside the decisions refusing the applicant authorisation, citing the following grounds, inter alia:\n“In dismissing Mr Fretté's application for authorisation to adopt a child, the main reasons given by the authorities were that Mr Fretté had 'no stable maternal role model' to offer and found it difficult 'to envisage the practical consequences of the upheaval occasioned by the arrival of a child'. The first reason is a circumlocution, by which the authorities could only have meant to refer to Mr Fretté's unmarried status, which could be lawfully relied on in support of the impugned decision but, under the provisions of Article 9, paragraph 2, of the decree of 23 August 1985, could not lawfully constitute the sole reason for the decision. Neither is there any evidence in the case file to substantiate the second reason given, which seems in fact to be erroneous in view of the information provided in the reports drawn up by the social services.\nThe reason given for the decision of 15 October 1993, by which the Director of Social Services, Child Welfare and Health dismissed Mr Fretté's appeal and confirmed the initial decision examined above, was Mr Fretté's 'choice of lifestyle'. Through this euphemistically worded reason the authorities were alluding to Mr Fretté's homosexuality. As the authorities themselves acknowledge in their defence pleadings, this aspect of Mr Fretté's personality could only have constituted a reason to refuse authorisation if it had been combined with conduct that was prejudicial to the child's upbringing.\nThe social services report prepared by Mrs S. and Mrs D. credits Mr Fretté with 'undoubted personal qualities and an aptitude for bringing up children', finds that 'a child would probably be happy with him' and only raises a question as to the compatibility of Mr Fretté's adoption plans with the 'particular circumstances' of his being 'a single homosexual man'. The social inquiry conducted by the French Vice-Consul's deputy in London noted Mr Fretté's educational skills, which he shows as much in his private life as in his professional activities. The psychiatrist, Dr D., detected 'no psychological impediment' to Mr Fretté's plan and although the psychologist, Mrs O., recommended that authorisation be refused, she gave no reason for her opinion and drew attention elsewhere in her report to 'Mr Fretté's affective qualities and aptitude for bringing up children and his deep understanding of adoption-related issues'.\nWhereas the social services reports produced included information, particularly with regard to Mr Fretté's family, which, since they could have no valid bearing on the authorities' decision, infringed his right to respect for his private life, none of the documents included in the case file made it possible to establish or even suggest that Mr Fretté's lifestyle reflected a lack of moral rigour or emotional stability, or a risk that he would abuse the adoption process, or any other conduct indicating that his plan to adopt presented a risk to any child he might adopt.\nThus, those who took the contested decisions in the instant case wrongly interpreted the provisions cited above. Mr Fretté's application to have the aforementioned decisions of 3 May and 15 October 1993 set aside is well-founded.”", "14. The Paris Social Services appealed against that judgment to the Conseil d'Etat.", "15. The Government Commissioner, Mrs C. Maugüe, made her submissions at the hearing of 16 September 1996. She submitted that the Paris Social Services' application to have the contested judgment set aside was well-founded, addressing the court as follows:\n“The case raises the following question: In spite of Mr F.'s undoubted personal and intellectual qualities, did the authorities have good reason to consider that he did not provide sufficient guarantees to offer a child a home because of his choice of lifestyle?\nIn the light of the information in the case file, this question is elevated to a matter of principle. This case does not turn on its own facts because the documents in the case file leave me in no doubt that in many respects Mr F. has a genuine aptitude for bringing up children. The only thing that prompted the authorities to refuse authorisation was the fact that Mr F. was a homosexual and therefore that he did not provide sufficient guarantees that he would offer a child a suitable home from a psychological, child-rearing and family point of view. However, nothing in the case file suggests in any way that Mr F. leads a dissolute life and neither is there any reference in it to any specific circumstance that might pose a threat to the child's interests. Accepting the lawfulness of the refusal of authorisation in the instant case would implicitly but necessarily doom to failure all applications for authorisation to adopt by homosexuals ...\nIt is certain that a number of factors would tend to indicate that the Paris Social Services made an error in assessing the evidence.\nThe first and undoubtedly the strongest argument is that since the major reform of the laws on adoption introduced by the Act of 11 July 1966, single persons, whether men or women, have been entitled to adopt. ...\nDeciding ... by judicial interpretation that an unmarried homosexual man does not provide sufficient guarantees from a psychological and family perspective to adopt a child introduces discrimination between adoption candidates on grounds of their choice of private life which was not expressly intended by Parliament.\nThe second argument in favour of the Administrative Court's ruling is that a person's right to lead the sex life of his or her choice should not, of course, be contested. This is one of the key components of the right to respect for private life guaranteed, inter alia, by Article 8 of the European Convention on Human Rights and Article 9 of the Civil Code. There is no longer any discrimination against homosexuality at domestic level ...\nThirdly, an examination of the case-law of the ordinary courts with regard to granting custody of the children of divorced couples and the exercise of parental authority shows that the ordinary courts take a broadly pragmatic approach in this area and attempt to avoid the pitfalls of an overly categorical approach. Thus, they do not hesitate, where the specific circumstances of the case so require, to accord visiting rights to homosexual parents or even to grant them custody or the right to exercise parental authority. For example, in a case in which it was established that there were upheavals in the mother's household, that there was no evidence of any physical danger to the child in the father's household, that the father lived in a stable relationship with another man and that the child was thriving in his father's home, custody was granted to the father (Pau Court of Appeal, 25 April 1991, no. 91-40734). Conversely, another court found that a father who had 'immoral homosexual relations incompatible with the exercise of parental authority' could not exercise that authority (Rennes Court of Appeal, 27 September 1989, no. 89-48660). Similarly, in a judgment in which it was found that, because of the father's homosexual practices, it would be particularly dangerous for the moral and physical well-being of his children to spend their holidays with him, it was held that there were serious grounds to justify refusing the father that right (First Civil Division of the Court of Cassation (Cass. civ. I), 13 January 1988, no. 86-17784). More recently the Court of Cassation granted a homosexual donor parental authority over a child born by artificial insemination to a mother who was herself involved in a homosexual relationship (Cass. civ. I, 9 March 1994, Mme L. c. M. L.; D 1995.197 note E. Monteiro; D 1995 summary 131, observations by D. Bourgault-Coudeyville). The courts do not therefore presume that because someone is a homosexual, he or she is disqualified from exercising parental rights. The discussion focuses mainly on the child's interests and the dangers that such circumstances may pose to the child's mental health.\nLastly, authorisation is merely an administrative decision taken prior to the adoption process. ... 2.2. Nonetheless, I consider, for a number of reasons, that the Paris Social Services did not commit any error in assessing the evidence when it held that Mr F. did not provide the necessary guarantees. A number of factors led me to this conclusion.\nFirstly, the right of everyone to the sex life of their choice should not be confused with a hypothetical right to have children. ...\nSecondly, the pertinence of the comparison with the case-law on custody of children and parental authority is clearly limited. The examples cited above relate only to a previously established family tie or one which corresponds to an actual line of descent. It is one thing to preserve a filial tie between a child and parents who are separating or who wish to confirm their links with him or her but another to allow the establishment of a family tie between a child and an adult out of nothing ...\nThirdly, the question whether a child is in danger of being psychologically disturbed by his relationship with an adult who cannot offer him or her the reference point of a distinct father and mother, in other words a model of sexual difference, is a very difficult one which divides psychiatrists and psycho-analysts. Adopted children are all the more in need of a stable and fulfilling family environment because they have been deprived of their original family and have already suffered in the past. This makes it all the more important that they do not encounter any further problems within their adopted family. ...\nThere is no agreement on the answer to that question. If there is any consensus it lies instead in the growing awareness that the rights of the child set the limits of the right to have children and that the child's interests cannot always be reconciled with current developments. This being so, I believe that when dealing with such a sensitive question, whose implications are more ethical and sociological than legal, it is up to Parliament to take a stance on what amounts to a choice for society. The courts, for their part, should not be anticipating shifts in public opinion, but responding to them.\nThis brings me to my fourth argument, which is that the question whether one or more homosexuals should be entitled to adopt is not one which Parliament can be said to have determined. ...\nFifthly, there should be no underestimating the part that authorisation plays in the adoption procedure. Admittedly, this is only one stage in the adoption process but it is a crucial one because the adoption cannot go ahead without it. ...\nIt should be added, as a concluding remark regarding authorisation, that I am aware that what I propose has the drawback that it appears to encourage candidates for adoption to conceal the truth if they feel that their choice of lifestyle amounts to an absolute impediment to their being granted authorisation. However, there are two reasons why I think that this problem can be overcome. Firstly, the question will not arise very often because, as was mentioned above, the scarcity of children eligible for adoption compared to the demand usually prompts the social services to reject requests from single candidates. Secondly, the aim of the inquiries conducted prior to the granting of authorisation is precisely to ensure that the candidate can offer a child a suitable home and this inevitably means that the experts investigate his or her private life. Although the inquisitorial nature of these inquiries has sometimes been condemned (see for example J. Rubellin-Devichi, Revue française de droit administratif, 1992, pp. 904 et seq.), they do have the merit of ensuring that authorisation is then granted in full knowledge of the facts.\nMy final argument is that if you have any remaining scruples about the fact that in considering the legality of a refusal of authorisation you are ruling on a matter which it is usually for the ordinary courts to decide in their capacity as the judges of matters of personal status, your scruples may be partly allayed by the fact that the position you will be taking will not entirely prevent the ordinary courts from authorising the adoption of a child by a homosexual in certain cases if they consider it compatible with the child's interests. When the new law on adoption was introduced recently, a new Article 353-1 was added to the Civil Code, the second paragraph of which provides that if authorisation is refused or not granted within the statutory time, the courts may approve the adoption if they consider that the applicants are capable of providing the child with a suitable home and that this is compatible with the child's interests. ...\nIt follows from the foregoing that the Paris Social Services are justified in maintaining that the Paris Administrative Court was wrong to rule in the judgment appealed against that the two impugned decisions should be set aside.”", "16. In a judgment of 9 October 1996 the Conseil d'Etat set aside the Administrative Court's judgment and, ruling on the merits, rejected the applicant's application for authorisation to adopt. It decided, inter alia, as follows:\n“In a decision of 3 May 1993, upheld by a further decision of 15 October 1993 in response to an application for reconsideration, the chairman of the Paris Council ... rejected Mr Fretté's application for authorisation to adopt a child on the ground that although the applicant's choice of lifestyle was to be respected, the type of home that he was likely to offer a child could pose substantial risks to the child's development. From the information in the case file, particularly the evidence gathered when Mr Fretté's application was being considered, it emerges that Mr Fretté, regard being had to his lifestyle and despite his undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a child-rearing, psychological and family perspective – for adopting a child. The Paris Administrative Court was thus wrong, when setting aside the contested decisions, to rely on the argument that, in refusing the authorisation sought by Mr Fretté on the aforementioned ground, the chairman of the Paris Council had applied these provisions incorrectly.\nHowever, since the appeal procedure has had the effect of transferring all the issues of fact and law to the Conseil d'Etat, it is for the latter to examine the other submissions made by Mr Fretté before the Paris Administrative Court. ... The grounds given for the contested decisions satisfy the requirements of the law. ...”" ]
[ 3 ]
[ "8. On 26 December 1991 the applicants' house in the village of Martinec (Croatia) was destroyed by an explosion.", "9. On 29 November 1994 the applicants brought an action for damages against the Republic of Croatia in the Zagreb Municipal Court (Općinski sud u Zagrebu).\nA hearing was held on 2 May 1995.", "10. On 12 May 1995 the applicants asked the court to request the Bjelovar Police Department (Policijska uprava Bjelovarska) to submit their report concerning the events that had led to the destruction of the applicants' property. On 19 May 1995 the court requested the report.", "11. On 17 January 1996 the Croatian parliament introduced an amendment to the Civil Obligations Act which provided that all proceedings concerning actions in respect of damage resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation damages for terrorist acts could not be sought. So far, the Croatian authorities have not enacted any new legislation regulating the matter.", "12. It appears that several constitutional claims were lodged, though not by the applicants in the present case, challenging the above legislation. The Constitutional Court has not yet reached any decision.", "13. On 24 April 1998 the Zagreb Municipal Court stayed the proceedings in accordance with the above legislation. No appeal was lodged against that decision.", "14. On 13 November 1994 the applicants' garage and the adjacent storage room and a meat-curing shed in Bjelovar were destroyed, also as a result of an explosion.", "15. On 14 December 1994 the applicants brought an action for damages against the Republic of Croatia in the Zagreb Municipal Court.", "16. A hearing was held on 8 May 1995. The court requested the Bjelovar Police Department to submit their report concerning the events that had led to the destruction of the applicants' property.", "17. On 19 July 2000 the court stayed the proceedings. No appeal was lodged against that decision." ]
[ 3 ]
[ "6. On 9 September 1993 the Bielsko-Biała Regional Court dismissed the applicant's request for registration of the title of a periodical, The Social and Political Monthly – A European Moral Tribunal (Miesięcznik społeczno-polityczny, europejski sąd moralny) to be published in Kęty. The court considered that in accordance with the Press Act and the Ordinance of the Minister of Justice on the registration of periodicals, the name of a periodical should be relevant to its contents. The name as proposed by the applicant would suggest that a European institution had been established in Kęty, which was untrue and would be misleading to prospective buyers. Moreover, the proposed title would be disproportionate to the periodical's actual importance and readership as it was hardly conceivable that a periodical of a European dimension could be published in Kęty. The court went on to state:\n“... the applicant stubbornly applies for registration of periodicals the titles of which would suggest the existence in Kęty of an institution of international character (such as the European Moral Tribunal or the World Tribunal of Morality), and when requested by the court to change the titles he declares that he will not do so.”", "7. On 17 December 1993 the Katowice Court of Appeal dismissed an appeal by the applicant against this decision. The court stated, inter alia, that in the proceedings before the first-instance court the applicant had been requested to change the proposed title by deleting the term “European Moral Tribunal”, but he had refused to do so.", "8. Subsequently, the applicant made a number of further applications for the registration of periodicals. He succeeded in obtaining four registrations.", "9. On 6 May 1994 the Minister of Justice refused to grant leave for an extraordinary appeal against the decision of 17 December 1993, finding that it was in accordance with the law.", "10. On 17 February 1994 the Bielsko-Biała Regional Court dismissed a new request by the applicant for registration of a periodical, Germany – A thousand-year-old enemy of Poland. The court noted that at a hearing on 17 February 1994 the applicant, when requested to change the proposed title so as to remove its negative character, had refused to do so. The court considered that registration of the periodical with the proposed title would be harmful to Polish-German reconciliation and detrimental to good cross-border relations.", "11. The applicant appealed against this decision, submitting that it was incomprehensible and amounted to censorship.", "12. On 12 April 1994 the Katowice Court of Appeal upheld the contested decision. The court observed that the title, as proposed by the applicant, suggested that the proposed periodical would concentrate unduly on negative aspects of Polish-German relations. The court considered that such a title would be in conflict with reality in that it would give an unbalanced picture of the relevant facts. The court further considered that the lower court had been justified in refusing registration on the ground that the title would be detrimental to Polish-German reconciliation and to good relations between Poland and Germany." ]
[ 6 ]
[ "8. The facts of this case were subject to investigation before a private, non-statutory inquiry, which issued a report on 15 June 1998, setting out extensive findings of fact. As these were not contested by the parties, the Court has relied on the report in its own assessment of the facts below.", "9. Prior to his death, Christopher Edwards had shown signs of developing a serious mental illness. In 1991 a psychiatric assessment expressed the tentative diagnosis of schizophrenia. In July 1994 he stopped living at home with the applicants, his parents. At this time he stopped taking his medication.", "10. On 27 November 1994 Christopher Edwards, then 30 years old, was arrested in Colchester by the police and taken to Colchester police station. He had been approaching young women in the street and making inappropriate suggestions. His behaviour before arrest, and at the police station where he attempted to assault a policewoman, led police officers to suspect that he might be mentally ill. He was assessed at the police station by an approved social worker, who discussed the matter on the telephone with a consultant psychiatrist. They agreed that, while there was some evidence of possible developing schizophrenia, he did not need urgent medical attention and that he was fit to be detained at the police station. Any psychiatric assessment could take place as part of a pre-sentencing exercise. Christopher Edwards was held in a cell on his own. The police officer responsible did not fill in a CID2 form identifying Christopher Edwards as an exceptional risk on ground of mental illness due to the opinion expressed by the social worker. The police officer did, however, note in the confidential information form (MG6A) her belief that if Christopher Edwards was not treated or seen by the mental health team he might seriously harm a female. She was not aware that her own suspicion of his mental state was sufficient to warrant categorising Christopher Edwards as an exceptional risk.", "11. On 28 November 1994 Christopher Edwards was brought to Colchester Magistrates' Court. Immediately his handcuffs were removed, he pushed through the other prisoners and confronted a female prison officer. He was restrained, but struggled and tried to approach her again. He was placed in a cell on his own. During the morning, he continually banged on the cell door and shouted: “I want a woman.” He shouted obscenities about women. The applicants met the duty solicitor at about 9.45 a.m. and explained that their son was mentally unwell and that they wanted him to receive medical care and not to be remanded in custody. When the duty solicitor attempted to talk to Christopher Edwards in his cell, he received no assistance from his client who continued to make obscene suggestions about women. The duty solicitor discussed the problem with the Clerk to the Justices.", "12. On his way to court and in the courtroom, Christopher Edwards repeated his earlier comments about women. The prosecutor had in her possession the MG6A form and had been requested by the police to obtain his remand in custody as there was a risk that he would reoffend and there was a real question mark about his mental state. The prosecutor informed the court that he was perceived as a risk to women, although it is unclear how much detail was given. She relied on the fact that an assessment by a psychiatrist had not yet been carried out in support of her application. Consideration was given by the Bench, together with the prosecutor, duty solicitor and Justice's Clerk as to whether he could be remanded to hospital. It was concluded that there was no power to do so under section 30 of the Magistrates' Courts Act 1980. No consideration was given, inter alia, to the application of civil provisions (sections 2, 3 or 4 of the Mental Health Act 1983) or to section 35 of the 1983 Act, which provided for remand to a hospital for assessment.", "13. The magistrates decided to remand Christopher Edwards in custody for three days, which was a shorter period than usual, bringing forward the date to 1 December so that instructions could be taken and legal aid forms completed. Further consideration would then be given, inter alia, to the obtaining of a psychiatric report. After the hearing, the first applicant telephoned the probation service in Colchester and expressed concern about his son's mental health. He was advised to contact Chelmsford Prison. He rang the probation officer at the prison and informed her of his son's medical history. Her telephone note indicated that she had been told that he had been prescribed stelazine, though he had been refusing to take it or accept that he was mentally ill. The probation officer visited the health care centre and spoke to the senior medical officer, Dr F. Although there was later dispute as to how much detail she passed on to the doctor, he recalled being informed that Christopher Edwards was considered to be a risk to women. However, having regard to the psychiatric social worker's comments that Christopher Edwards was fit for detention in a police station and the fact that the court had not ordered any psychiatric reports, he stated that he would not interfere with the usual admissions procedure which meant that Christopher Edwards would be screened on arrival in the usual way and his location in the prison would depend on the result of that process. Neither he nor the probation officer passed on any of this information to the reception staff.", "14. A prison officer returning to Chelmsford Prison from the Magistrates' Court informed the officer in charge of reception staff that a female prison officer had been assaulted by a prisoner who was due to arrive later that day. The police officers at the Magistrates' Court custody area suspected from his behaviour that Christopher Edwards was mentally abnormal and might be a threat to women and decided to warn the prison staff. A police officer rang and spoke to the senior officer at the prison reception and told him, inter alia, that the magistrates had wanted to remand Christopher Edwards to a mental hospital and that he had assaulted a female prison officer. The senior officer was concerned at this information and contacted the Magistrates' Court to verify whether he was being remanded under a normal warrant. He also spoke to the duty governor about the allocation of Christopher Edwards and it was decided, subject to the health care screening, that he should be located on wing D-1 where no female officers worked.", "15. In the late afternoon, Christopher Edwards was taken to Chelmsford Prison. The reception staff were aware of the information passed on from the police at the Magistrates' Court and that he was a potential danger to women. He was placed in a holding area while the other prison arrivals were processed. His behaviour was noted as “strange” and “odd” and when being placed in the holding cell he was aggressive and tried to punch a prison officer. After two hours he was screened by Mr N., a member of the prison health care staff, who saw no reason to admit him to the health care centre. Mr N. knew nothing about previous discussions in the court or the concerns passed on to the prison about Christopher Edwards's mental health. He was only aware that Christopher Edwards was alleged to have assaulted a female police constable. Mr N. followed the standard questionnaire. To question 5 (Have you ever been seen by a psychiatrist?), the answer was “three years ago”. Christopher Edwards did not disclose that he had been taking stelazine. There was no evidence of active mental disturbance or bizarre behaviour during the interview, which was unlikely to have lasted more than ten minutes. No medical officer was on duty at the centre at this time, or was present in the prison. Christopher Edwards was admitted to the main prison and placed in cell D1-6.", "16. He was detained in a cell on his own during this period.", "17. Meanwhile, Richard Linford was arrested in Maldon on 26 November 1994 for assaulting his friend and her neighbour. At Maldon police station, he was seen by a police surgeon as it was suspected that he was mentally ill. The police surgeon certified that Richard Linford was not fit to be detained. Richard Linford was assessed by a psychiatric registrar who consulted on the telephone with a consultant psychiatrist, who decided that he did not need to be admitted to hospital and that he was fit to be detained. Richard Linford was transferred to Chelmsford police station, where the police surgeon also found him fit to be detained. While his conduct before and after arrest was bizarre, it was attributed by the doctors to the effects of alcohol abuse, amphetamine withdrawal and to a deliberate attempt to manipulate the criminal justice system. The registrar, who had previously treated Richard Linford, knew that he had been diagnosed at various times as suffering from schizophrenia or as having a personality disorder, but also knew him as someone who became ill when abusing alcohol and drugs. Over the weekend, Richard Linford showed further bizarre behaviour and was violent towards police officers. He was not reassessed by a doctor. No CID2 form was filled in, although police officers remained of the opinion that he was mentally ill. On 28 November 1994 Richard Linford was remanded in custody by Chelmsford Magistrates' Court. The magistrates were presented with a “sane but dangerous” description of him. Richard Linford arrived at Chelmsford Prison shortly after Christopher Edwards, where he was screened by the same member of the prison health care service who had seen Christopher Edwards and who saw no reason to admit him to the health care centre. Richard Linford did not behave in a bizarre fashion during the screening. Mr N. did not have knowledge of Richard Linford's previous convictions, which would have alerted him to his admittance to hospital in 1988.", "18. Initially, Richard Linford was placed in cell D1-11 on his own. He was then moved into cell D1-6 with Christopher Edwards. This was due to shortage of space, as all the other cells on the landing were doubly occupied.", "19. Each cell had a green emergency light situated on the wall outside the cell next to the door which came on when the call button was depressed inside the cell. Additionally, once the button was pressed, a buzzer sounded on the landing and a red light lit up on a control panel in the office on the landing concerned, indicating the cell. The red light remained on and the buzzer continued to sound even if the prisoner ceased to press the button. At 9 p.m., either Christopher Edwards or Richard Linford pressed the call button. A prison officer saw the green light outside the cell and was told that they wished one of the cell lights, operated from the exterior, to be switched off. He agreed to do so. He saw that the two men appeared to be “getting on all right”. He noticed that while the green light had gone on the buzzer which should have been sounding continuously had not done so. He did not report the apparent defect.", "20. Shortly before 1 a.m. on 29 November 1994, a prison officer heard a buzzer sound. He saw no red light on the D-landing control panel and saw a prison officer go to check the other landings. Some time later, he heard continuous banging on a cell door on his landing. On going to investigate he saw the green light on outside cell D1-6. Looking through the spy hole, he saw Richard Linford holding a bloodstained plastic fork and noticed blood on the floor and on Linford's feet. There was a delay of five minutes while officers donned protective clothing. They entered the cell to find that Christopher Edwards had been stamped and kicked to death. Richard Linford was making continual reference to being possessed by evil spirits and devils. D-landing had previously been patrolled at 12.43 a.m., which indicated that up to seventeen minutes could have elapsed since the pressing of the cell's call button.", "21. At the time of the attack, Richard Linford was acutely mentally ill. He was transferred later on 29 November 1994 to Rampton Special Hospital.", "22. On 21 April 1995 Richard Linford pleaded guilty at Chelmsford Crown Court to the manslaughter of Christopher Edwards by reason of diminished responsibility. The trial was therefore brief. The judge imposed a hospital order under section 37 of the Mental Health Act 1983 (“the 1983 Act”), together with a restriction order under section 41. Richard Linford is currently still at Rampton Special Hospital, diagnosed as suffering from paranoid schizophrenia.", "23. A coroner's inquest had been opened but adjourned pending the criminal proceedings against Richard Linford. After Richard Linford's conviction, the coroner closed the inquest, as there was no obligation to continue in those circumstances.", "24. On 16 October 1995 the applicants were advised by the Assistant Chief Constable that it was considered that there was insufficient evidence to establish the offence of manslaughter by gross negligence on the part of anyone involved in the case but that the matter would be probably reviewed at the conclusion of the inquiry which had been commenced by the statutory agencies concerned in the case.", "25. In July 1995 a private, non-statutory inquiry was commissioned by three State agencies with statutory responsibilities towards Christopher Edwards – the Prison Service, Essex County Council and North Essex Health Authority. Its terms of reference were:\n“To investigate the death of Mr Edwards in Chelmsford Prison, including factors in his and Mr Linford's detention which are relevant to that, and in particular: the extent to which their reception, detention, management and care corresponded to statutory obligations, Prison Service Standing Orders and Health Care Standards and local operational policies. 1. To examine the adequacy, both in fact and of relevant procedures, of collaboration and communication between the agencies (HM Prison Service, the Essex Police, the courts, MidEssex Community and Mental Health NHS Trust and its predecessor, and Essex County Council Social Services Department) involved in the care, custody and control of Mr Edwards and Mr Linford, or in the provision of services to them. 2. To examine the circumstances surrounding the arrest, detention and custody of Mr Linford and Mr Edwards by Essex Police, including whether all relevant information was effectively and efficiently passed between Essex Police, the prison service, the courts, and any other relevant agencies ...; 3. To examine all the relevant circumstances surrounding the treatment and care of Mr Edwards and Mr Linford, by the health service and social services, and in particular: the extent to which Mr Edwards and Mr Linford's care corresponded to relevant statutory obligations, relevant guidance from the Department of Health ... and local operational policies. 4. To prepare a report and make recommendations to North Essex Health Authority, Essex County Council Social Services Department and HM Prison Service, and other such agencies as are identified as appropriate ...”", "26. In February 1996 the applicants were advised by their solicitors that they had a claim for funeral costs and a potential claim for compensation and any pain and suffering between Christopher Edwards's injury and death, but that taking into account legal costs it would not be economic to bring such a claim.", "27. In April 1996, the Criminal Injuries Compensation Board awarded the applicants 4,550 pounds sterling (GBP) for funeral expenses but decided that there should be no dependency or bereavement award.", "28. The inquiry opened in May 1996. It was chaired by Mr Kieran Coonan QC, Recorder of the Crown Court, the other members of the panel consisting of Professor Bluglass (Emeritus Professor of Forensic Psychiatry at the University of Birmingham), Mr Gordon Halliday (former Director of Social Services, Devon County Council and member of the Mental Health Commission), Mr Michael Jenkins (former Governor of Oxford Prison and Long Lartin Prison and HM Deputy Chief Inspector of Prisons 1987-92) and Mr Owen Kelly (Commissioner of the City of London Police 1985-93). They were assisted by a firm of solicitors appointed by the commissioning agencies to provide secretarial and administrative support and to arrange for the attendance of witnesses. Two solicitors from this firm were appointed as advocates to the inquiry.", "29. The inquiry received evidence on fifty-six days over a period of ten months. It sat in private. It had no powers of compulsion of witnesses or production of documents. Two prison officers refused to give evidence. The inquiry report later noted that one of these had potentially significant evidence and his refusal was said to be “all the more regrettable since he had passed by Christopher Edwards's cell shortly before he met his death”. The inquiry panel conducted visits to the police stations, Magistrates' Court building and prison concerned. Professor Bluglass, a member of the panel, interviewed Richard Linford in hospital. About 150 witnesses attended the inquiry to give evidence, while a considerable number of others submitted written evidence.", "30. In November 1997 the applicants issued a summons in the County Court for negligence against the Chief Constable of Essex and Essex County Council. They did not, however, serve it due to legal advice from their solicitors.", "31. Draft extracts of the inquiry's preliminary findings were circulated to those subjected to criticism to allow them the opportunity to comment. A number of witnesses were recalled to give evidence on 27 April 1998.", "32. The inquiry report was published on 15 June 1998. It concluded that ideally Christopher Edwards and Richard Linford should not have been in prison and in practice they should not have been sharing the same cell. It found “a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner”. It identified a series of shortcomings, including poor record-keeping, inadequate communication and limited inter-agency cooperation, and a number of missed opportunities to prevent the death of Christopher Edwards.", "33. The findings included the following:\n(a) Ideally, if suitable beds had been available, Christopher Edwards should have been admitted to hospital for assessment under section 2 of the Mental Health Act 1983.\n(b) It was a serious omission, and breach of Code C of the Code of Practice under the Police and Criminal Evidence Act 1984 (“PACE”), that no doctor had been asked by the custody officer to see Christopher Edwards.\n(c) It was a serious failure by Essex Police that a CID2 form was not completed describing Christopher Edwards as a prisoner reasonably suspected of being an exceptional risk on the grounds of mental disturbance, though it was noted that even if he had been so described by the police this would not have been enough, by itself, to ensure that he was admitted to the health care centre at Chelmsford Prison.\n(d) At the Magistrates' Court hearing on 28 November 1994 no consideration was given to section 35 of the 1983 Act which provided for a remand to hospital for assessment. \n(e) No attempt was made by the court to notify the prison authorities, in particular the senior medical officer, that Christopher Edwards was suspected of suffering from a mental illness. \n(f) Information provided to the prison by the applicants about Christopher Edwards's psychiatric background was not recorded or passed on to the person carrying out the screening.\n(g) When Christopher Edwards arrived at Chelmsford Prison there was no medical officer on duty, in breach of the Prison Service Health Care Standards.\n(h) The prison health care worker, Mr N., who assessed Christopher Edwards was inadequately trained in the recognition of mental disorder and had been given insufficient guidance. The screening was rushed and superficial and did not take place in adequate conditions of privacy.\n(i) Mr N. had not been provided with any information about the concerns as to Christopher Edwards's mental condition by the police or the court. If he had received a CID2 form identifying mental disturbance or the court had expressed some concern, this might have prompted sufficient residual doubts to cause him to err on the side of caution and have him admitted to the health centre for the first night.\n(j) The cell's call system was defective; it had been pressed up to seventeen minutes before the alarm was raised by Richard Linford banging on the door and the warning buzzer had not sounded, or if it did it only sounded briefly. If it had functioned, a prompt response might have saved Christopher Edwards's life. The system could be disabled simply by wedging a matchstick behind the re-set button on the control panel and it could not be ruled out that it might have been tampered with by a prison officer or prisoner who wanted a “quiet night”. The fact that it could so easily be disabled rendered the system inadequate and unsafe. It was also noted that according to good practice, where the cell's call system was defective, either the occupants should be moved to another cell or effective visual monitoring should be provided, as a cell could not be certified fit for occupation without a method of communication in working condition.\n(k) Richard Linford had a history of violent outbursts and assaults, including a previous assault on a cell-mate in prison. He had been admitted to mental hospital in 1988, and subsequently had been diagnosed as suffering from schizophrenia. Despite psychotic episodes and further assessments, he was not admitted to hospital after September 1994, as he was not considered to be suffering from acute mental illness. A case conference was held on 24 October 1994, where one of Richard Linford's general practitioners and a police officer expressed the view that he was capable of ser