ITEMID: 001-60510
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ÖNERYILDIZ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Procedural aspect);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicant, who is a Turkish national, was born in 1955 and is now living in Çobançeşme (Alibeyköy, Istanbul). At the material time he and the twelve members of his family were living in the slum quarter (gecekondu mahallesi) of Kazım Karabekir in Ümraniye (Istanbul).
9. Since the beginning of the 1970s a household-refuse tip had been in operation in Hekimbaşı, a slum area adjoining Kazım Karabekir. On 22 January 1960 an easement had been created de facto over the site in question, which belonged to the Forestry Commission (and therefore to the Treasury), in favour of Istanbul City Council (“the city council”) for a term of ninety-nine years. Situated on a slope overlooking a valley, the site spread out over a surface area of approximately 350,000 square metres and was used as a rubbish tip by the districts of Beykoz, Üsküdar, Kadıköy and Ümraniye under the authority and responsibility of the city council and, ultimately, the ministerial authorities.
When the rubbish tip started being used, the area was uninhabited and the closest built-up area was approximately 3.5 km away. However, as the years passed, rudimentary dwellings were illegally built in the zone surrounding the rubbish tip, which ultimately developed into the slums of Ümraniye.
10. Following the local elections of 26 March 1989 and from 4 December of that year Ümraniye District Council began dumping heaps of earth and rubbish onto the land surrounding the Ümraniye slums in order to redevelop the site of the rubbish tip.
However, on 15 December 1989 M.C. and A.C. – two inhabitants of the Hekimbaşı area – brought proceedings against the district council in the Fourth Division of the Üsküdar District Court to establish title to land. They complained of damage to their plantations and requested the works to be halted. In support of their request, they produced documents showing that M.C. and A.C. had been liable for council tax and property tax since 1977 under tax no. 168900. In 1983 the authorities had asked them to fill in a standard form for the declaration of illegal buildings so that their title to the property and land could be validated (see paragraph 50 below). Following their request, on 21 August 1989, the city council water and mains authority had ordered a water meter to be installed in their house. Furthermore, copies of electricity bills show that M.C. and A.C., as consumers, regularly paid for the water they had used on the basis of the readings taken from a meter installed for that purpose.
11. In the District Court the defendant district council based its defence on the fact that the land claimed by M.C. and A.C. was situated on the waste-collection site; that residence there was contrary to the health regulations; and that their application for validation of their title to the property conferred no rights on them.
In a judgment delivered on 2 May 1991 under case no. 1989/1088, the District Court found for M.C. and A.C., holding that there had been interference with the exercise of their right over the land in question.
However, the Court of Cassation set the judgment aside on 2 March 1992. On 22 October 1992 the District Court followed the Court of Cassation's judgment and dismissed M.C. and A.C.'s claims.
12. On 9 April 1991 Ümraniye District Council applied to the Third Division of the Üsküdar District Court for experts to be instructed to determine whether the rubbish tip complied with the relevant regulations, in particular Regulation no. 20814 of 14 March 1991 on solid-waste control. A committee was set up for that purpose, composed of a professor of environmental engineering, a land-registry official and a forensic doctor.
According to their report, drawn up on 7 May 1991, the rubbish tip in question did not conform to the technical requirements set forth in Articles 24 to 27, 30 and 38 of Regulation no. 20814 and, accordingly, presented a certain number of dangers liable to give rise to a major health risk for the inhabitants of the valley, particularly those living in the slum areas: no wall or fencing separated the tip from the dwellings situated fifty metres from the mountain of refuse, and the tip was not equipped with collection, composting, recycling or combustion systems; nor had drainage or drainage-water purification systems been installed. The experts concluded from this that the Ümraniye tip “exposed humans and animals and the environment to every form of danger”. In that connection the report, drawing attention first to the fact that some twenty contagious diseases might spread, underlined the following:
“... In any waste-collection site methane, carbon-dioxide and hydrogen-sulphide gases, among others, form. These substances must be collected under supervision and ... burnt. The tip in question is not equipped with such a system, however. If methane is mixed with air in a particular proportion, it can explode. This installation contains no means of preventing an explosion of methane occurring as a result of the decomposition [of the waste]. May God preserve us, as the damage could be very substantial given the neighbouring dwellings. ...”
On 27 May 1991 the city council was made aware of that report and on 7 June 1991 the governor was informed of it and asked to brief the Ministry of Health and the Prime Minister's Environmental Office (“the Environmental Office”).
13. On 9 June 1991 Nurettin Sözen, the mayor of Istanbul, requested the report to be ruled inadmissible on the ground that it had been ordered and prepared without his knowing about it.
14. However, the Environment Council, which had been advised of the same report on 18 June 1991, made a recommendation (no. 09513) urging the Istanbul Governor's Office, the city council and Ümraniye District Council to remedy the problems identified in the present case:
“... The report prepared by the committee of experts indicates that the waste-collection site in question breaches the Environment Act and the Regulation on Solid-Waste Control and consequently poses a health hazard to men and animals. The measures provided for in Articles 24, 25, 26, 27, 30 and 38 of the Regulation on Solid-Waste Control must be implemented at the site of the tip ... I therefore ask for the necessary measures to be implemented ... and for our council to be informed of the outcome.”
15. On 27 August 1992 Şinasi Öktem, the mayor of Ümraniye, applied to the First Division of the Üsküdar District Court for the implementation of temporary measures to prevent the city council and the neighbouring district councils from using the waste-collection site. He requested, inter alia, that no further waste be dumped, that the tip be closed and the damage repaired.
On 3 November 1992 the mayors of Istanbul and Beykoz opposed that request. To that end Mr Sözen submitted, in particular, that a plan to redevelop the site of the tip had been put out to tender and would be implemented during the year 1993.
16. While those proceedings were still pending before the Fourth Civil Division of the Court of Cassation, Ümraniye District Council informed the mayor of Istanbul that from 15 May 1993 no dumping of waste would be authorised.
17. Prior to that date, however, at about 11 a.m. on 28 April 1993 a methane explosion occurred at the site. Following a landslide caused by mounting pressure, the refuse erupted from the mountain of waste and buried some ten slum dwellings situated below it, including the one belonging to the applicant. Thirty-nine people died, including nine members of the Öneryıldız family.
18. Immediately after the accident two members of the municipal police force attempted to establish the facts. After taking evidence from the victims, including the applicant, who explained that he had built his house in 1988, they reported that thirteen huts had been engulfed.
On the same day a crisis committee, set up by the Istanbul Governor's Office, also went to the site and found that the landslide had indeed been caused by a methane-gas explosion.
19. The next day, on 29 April 1993, the Ministry of the Interior (“the Ministry”) ordered the circumstances in which the catastrophe had occurred to be examined by the administrative investigation department (“the investigation department”) in order to determine whether proceedings should be instituted against the two mayors, Mr Sözen and Mr Öktem.
20. While those administrative proceedings were under way, on 30 April 1993 the Üsküdar public prosecutor (“the public prosecutor”) went to the scene of the accident, accompanied by a committee of experts composed of three civil-engineering professors from three different universities. In the light of his preliminary observations, he instructed the committee to determine the share of responsibility for the accident attributable to the public authorities and that attributable to the victims.
21. On 6 May 1993 the applicant lodged a complaint with the local police station. He stated that “if it was the authorities that, through their negligence, caused my house to be engulfed and caused my wives' and children's death, I hereby lodge a criminal complaint against the authority or authorities concerned”. The applicant's complaint was added to the investigation file (no. 1993/6102) which had already been opened by the public prosecutor of his own motion.
22. On 14 May 1993 the public prosecutor heard evidence from a number of witnesses and victims of the accident in question. On 18 May 1993 the committee of experts submitted the report ordered by the public prosecutor. The experts confirmed that the landslide – affecting land which had been unstable as it was – could be explained both by the mounting pressure of the gas inside the tip and by the explosion of the tip. Reiterating the obligations and duties on the public authorities under the relevant regulations, the experts concluded that liability for the accident should be attributed as follows:
(i) 2/8 to the Istanbul City Council, which failed to act sufficiently early to prevent the technical problems which already existed when the tip was first created in 1970 and had continued to deteriorate since then, or to indicate to the district councils concerned an alternative waste-collection site, as it was obliged to do under Law no. 3030;
(ii) 2/8 to Ümraniye District Council for implementing a development plan for the area while omitting, contrary to Regulation no. 20814, to provide for a 1,000 metre-wide buffer zone to remain uninhabited, and for attracting illegal dwellings to the region and taking no steps to prevent them from being built, despite the experts' report of 7 May 1991;
(iii) 2/8 to the inhabitants of the slum for endangering the members of their families by settling near a mountain of waste;
(iv) 1/8 to the Ministry of the Environment for failing to monitor the tip effectively in accordance with Regulation no. 20814 on solid-waste control;
(v) 1/8 to the Government for encouraging the spread of this type of illegal dwelling by granting an amnesty on a number of occasions and property titles to the occupants.
23. On 21 May 1993 the public prosecutor declined jurisdiction ratione personae and referred the case to the Governor of Istanbul, considering that it fell within the Prosecution of Civil Servants Act, the application of which was a matter for the administrative council of the province of Istanbul (“the administrative council”). The public prosecutor stated, in his order, that in respect of Istanbul City Council and Ümraniye District Council, the applicable provisions were Articles 230 and 455 § 2 of the Criminal Code.
On 27 May 1993, when the investigative department had completed the preliminary inquiry, the public prosecutor's file was transmitted to the Ministry.
24. On 27 May 1993, having regard to the conclusions of its own inquiry, the investigative department sought authorisation from the Ministry to commence a criminal investigation in respect of the two mayors implicated in the case.
25. The day after that request was made Ümraniye District Council made the following announcement to the press:
“The sole waste-collection site on the Anatolian side stood in the middle of our district of Ümraniye like an object of silent horror. It has broken its silence and caused death. We knew it and were expecting it. As a district council, we had been hammering at all possible doors for four years to have this waste-collection site removed. We were met with indifference by Istanbul City Council. It abandoned the decontamination works ... after laying two spades of concrete at the inauguration. The ministries and the Government were aware of the facts, but failed to take much notice. We had submitted the matter to the courts and they had found in our favour, but the judicial machinery could not be put into action. ... We are now faced with a responsibility and will all account for this to the inhabitants of Ümraniye...”
26. The authorisation sought by the investigative department was granted on 17 June 1993 and a chief inspector from the Ministry (“the chief inspector”) was accordingly put in charge of the case.
In the light of the investigation file compiled in the present case, the chief inspector took down Mr Sözen and Mr Öktem's defence. The latter stated, among other things, that in December 1989 his district council had begun decontamination works in the Hekimbaşı slum area, but that these had been suspended at the request of two inhabitants of the area (see paragraph 10 above).
27. The chief inspector finalised his report on 9 July 1993. It confirmed the conclusions reached by all the experts instructed hitherto and took account of all the evidence gathered by the public prosecutor. It also mentioned two other scientific opinions sent to the Istanbul Governor's Office in May 1993, one by the Ministry of the Environment and the other by a professor of civil engineering at Boğaziçi University. These two opinions confirmed that the fatal landslide had been caused by the methane explosion. The report also indicated that on 4 May 1993 the inspection department had requested the city council to inform it of the measures actually taken in the light of the expert report of 7 May 1991, and it reproduced Mr Sözen's reply:
“Our city council has both taken the measures necessary to ensure that the old sites can be used in the least harmful way possible until the end of 1993 and completed all the preparatory steps for the construction of one of the biggest and most modern installations ... ever undertaken in our country. We are also installing a temporary waste-collection site satisfying the requisite conditions. Alongside that, rehabilitation works are continuing at former sites [which have run their course]. In short, over the past three years our city council has been studying the problem of waste very seriously... [and], currently, the works are continuing...”
28. The chief inspector concluded, lastly, that the death of twenty-six people and the injuries to eleven others (figures available at the material time) on 28 April 1993 had been caused by the two mayors' failure to take appropriate steps in the exercise of their duties and that they should account for their negligence under Article 230 of the Criminal Code. In spite of, inter alia, the expert report and the recommendation of the Environment Office, they had knowingly breached their respective duties: Mr Öktem because he had failed to comply with his obligation to order the destruction of the illegal huts situated around the rubbish tip, as he was empowered to do under section 18 of Law no. 775, and Mr Sözen because he had refused to comply with the above-mentioned recommendation, had failed to rehabilitate the rubbish tip or order its closure, and had not complied with any of the provisions of section 10 of Law no. 3030, which required him to order the destruction of the slum dwellings in question, if necessary by his own means.
29. In the meantime, the Department of Housing and Rudimentary Dwellings asked the applicant to attend its offices, informing him that, by an order (no. 1739) of 25 May 1993, the city council had allocated him a flat in the subsidised housing complex of Çobançeşme (Eyüp, Alibeyköy). On 18 June 1993 the applicant signed for possession of flat no. 7 in building C-1 of that complex. That transaction was officialised by an order (no. 3927) of 17 September 1993 of the city council. On 13 November 1993 the applicant signed a notarised declaration in lieu of a contract stipulating that the flat in question had been “sold” to him for 125,000,000 Turkish liras (TRL), a quarter of which was payable immediately and the remainder in monthly instalments of TRL 732,844. The applicant paid the first monthly instalment on 9 November 1993. Since then he has been living in the flat in question.
30. In an order of 15 July 1993, the administrative council decided, by a majority, on the basis of the chief inspector's report, to institute proceedings against Mr Sözen and Mr Öktem for breach of Article 230 of the Criminal Code.
Mr Sözen and Mr Öktem appealed against that decision to the Supreme Administrative Court, which dismissed their appeal on 18 January 1995. The case file was consequently sent back to the public prosecutor, who, on 30 March 1995, committed both mayors for trial in the Fifth Division of the Istanbul Criminal Court (“the Division”).
31. The proceedings began before the Division on 29 May 1995. At the hearing Mr Sözen stated, among other things, that he could not be expected to have complied with duties which were not incumbent on him or be held solely responsible for a situation which had endured since 1970. Nor could he be blamed for not having rehabilitated the Ümraniye tip when none of the 2,000 sites in Turkey had been rehabilitated; in that connection, relying on a number of measures which had nonetheless been taken by the city council, he argued that the tip could not have been fully redeveloped as long as waste continued to be dumped on it. Lastly, he submitted: “the elements of the offence of negligence in the exercise of duties have not been made out because I did not act with the intention of showing myself to be negligent (sic) and because no causal link can be established” between the incident and any negligence on his part.
Mr Öktem submitted that the groups of dwellings which had been buried dated back to before his election on 26 March 1989 and that since then he had never allowed slum areas to develop. Accusing the Istanbul City Council and Governor's Office of indifference to the problems, Mr Öktem alleged that responsibility for preventing the construction of illegal dwellings lay with the forestry officials and that, in any event, his district council lacked the staff necessary to undertake the destruction of these huts.
32. In a judgment of 4 April 1996, the Division found the two mayors guilty as charged, considering their defence to be unfounded.
In reaching that conclusion, the judges held as follows:
“... although they were aware of the [experts'] report, the two defendants took no proper preventive measures. Just as a person who shoots into a crowd should know that people will die and, accordingly, cannot then claim to have acted without intending to kill, the defendants cannot allege in the present case that they did not intend to neglect their duties. They do not bear the entire responsibility, however. ... They were negligent, as were others. In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible. They should have had regard to the risk that the mountain of rubbish would one day collapse on their heads and that they would suffer damage. They should not have built dwellings fifty metres from the tip. They have paid for that lack of foresight with their lives...”
33. The Division sentenced Mr Sözen and Mr Öktem to the minimum prison sentence provided for in Article 230 of the Criminal Code, namely three months, and to fines of TRL 160,000. Under section 4(1) of Law no. 647, the Division commuted the prison sentences to fines, so the penalties ultimately imposed were fines of TRL 610,000. Satisfied that the defendants would not reoffend, the Division also decided to suspend enforcement of the penalties in accordance with section 6 of the same Law.
34. Both mayors appealed on points of law. They submitted, inter alia, that the Division had exceeded the scope of Article 230 of the Criminal Code in assessing the facts, and had treated the case as one of unintentional homicide within the meaning of Article 455 of that Code.
In a judgment of 10 November 1997 the Court of Cassation upheld the Division's judgment.
35. The applicant has apparently never been informed of those proceedings or given evidence to any of the administrative bodies of investigation or the criminal courts; nor does any court decision appear to have been served on him.
36. On 3 September 1993 the applicant sued the mayors of Ümraniye and Istanbul and the Ministries of the Interior and the Environment for both pecuniary and non-pecuniary damages. The amount claimed by the applicant was broken down as follows: TRL 150,000,000 in damages for the loss of his dwelling and household goods; TRL 2,550,000,000, 10,000,000, 15,000,000 and 20,000,000 in compensation for the loss of financial support incurred by himself and his three surviving sons, Hüsameddin, Aydın and Halef respectively; and TRL 900,000,000 in non-pecuniary damages for himself and TRL 300,000,000 for each of his three sons.
37. In letters of 16 September and 2 November 1993 respectively, the mayor of Ümraniye and the Minister for the Environment rejected the applicant's claims. The other authorities did not reply.
38. The applicant then sued the four authorities for damages in his own name and on behalf of his three children in the Istanbul Administrative Court (“the court”). He complained that their negligent omissions had resulted in the death of his relatives and the destruction of his house and household goods, and claimed the aforementioned amounts again.
On 4 January 1994 the applicant was granted legal aid.
39. The court gave judgment on 30 November 1995. Basing its decision on the experts' report of 18 May 1993 (see paragraph 22 above), it found a direct causal link between the accident of 28 April 1993 and the contributory negligence of the four authorities in question. Accordingly, it ordered them to pay the applicant and his children TRL 100,000,000 in non-pecuniary damages and TRL 10,000,000 in pecuniary damages (at the material time those sums amounted to approximately 2,077 and 208 euros respectively).
The latter amount, determined on an equitable basis, was limited to the destruction of household goods, save the domestic electrical appliances, which the applicant was not supposed to own. On that point the court appears to have confined its assessment to the authorities' submissions that “these dwellings had neither water nor electricity”. The court dismissed the remainder of the claim; in its view, the applicant could not claim to have been deprived of financial support because he had been partly responsible for the damage incurred and the victims had been young children or housewives who had not been in paid employment such as to contribute to the family's living expenses. The court held that it also ill befitted the applicant to claim compensation for the destruction of his slum dwelling given that, following the accident, he had been allocated a subsidised flat and that, even if the Ümraniye District Council had not exercised its power to destroy the dwelling, nothing could have prevented it from doing so at any time.
The court decided, lastly, not to apply default interest to the damages awarded for non-pecuniary damage.
40. The parties appealed against that judgment to the Supreme Administrative Court, which dismissed their appeal in a judgment of 21 April 1998.
An application for rectification of the judgment, lodged by the City Council, was not successful either, whereupon the judgment became final and was served on the applicant on 10 August 1998.
The damages in question have still not been paid to date.
41. The Ümraniye tip no longer exists today. The local council had it covered with earth and installed air ducts on it. Furthermore, land-use plans are currently being prepared for the areas of Hekimbaşı and Kazım Karabekir. The city council has planted trees on a large area of the former site of the tip and has had sports grounds laid. Two monuments have also been erected there in memory of the victims of the accident of 28 April 1993.
42. The relevant provisions of the Criminal Code read as follows:
“Any agent of the State who, in the exercise of his public duties ... acts negligently and delays or who, for no valid reason, refuses to comply with the lawful orders ... of his superiors shall be sentenced to a term of imprisonment of between three months and one year and to a fine of between 6,000 and 30,000 Turkish liras. ...
In every ... case, if third parties have suffered any damage on account of the negligence or delay by the civil servant in question, the latter shall also be required to compensate for such damage.”
“Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be sentenced to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.
If the act has caused the death of more than one person or has been the cause of the death of one person and the injuries of one or more others ... the perpetrator shall be sentenced to a term of imprisonment of between four and ten years and to a heavy fine of a minimum of 60,000 Turkish liras.”
“The judge has full discretion to determine the principal sentence, which can vary between a minimum and maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ... the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even where the minimum penalty is imposed, the reasons for the choice of sentence must be mentioned in the judgment.”
“If the court considers that, other than the statutory mitigating circumstances, there are other circumstances favourable to reducing the penalty [imposed] on the perpetrator, capital punishment shall be commuted to life imprisonment and life imprisonment to a term of imprisonment of thirty years.
Other penalties shall be reduced by a maximum of one-sixth.”
43. Sections 4(1) and (6) of Law no. 647 on the Execution of Sentences read as follows:
“Apart from imprisonment, short custodial sentences may, having regard to the personality and state of the defendant and to the circumstances in which the offence was committed, be commuted by the court:
(1) to a heavy fine ... of 5,000 to 10,000 Turkish liras per day; ...”
“Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and/or a [maximum] term of one year's imprisonment may have his sentence suspended if the court is satisfied that [the offender], having regard to his criminal record and criminal tendencies, will not reoffend if his sentence is thus suspended ...”
44. Under the Turkish Code of Criminal Procedure a public prosecutor who – in any way whatsoever – is informed of a situation which gives rise to a suspicion that an offence has been committed must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, if the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Prosecution of Civil Servants Act of 1914, which restricts the public prosecutor's jurisdiction ratione personae with regard to that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, decide whether to prosecute.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
45. With regard to civil and administrative liability arising out of criminal offences, section 13 of Law no. 2577 on administrative procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. If this claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
46. With regard to the status and organisation of the administrative courts, the status of the court judges and the organisation of the courts are governed by Law no. 2576 of 6 January 1982 on the powers and constitution of the administrative courts and by Law no. 2575 on the Supreme Administrative Court. Under these Laws, it is in theory the law faculties which recruit judges to the administrative-court benches. Civil servants who are not trained lawyers but have graduated from a law faculty can be recruited on the basis of relevant experience.
Under the Turkish Constitution all administrative judges enjoy, while in service, constitutional safeguards identical to those of civilian judges (Article 140); they may not be removed from office or made to retire early without their consent (Article 139); they sit as individuals (Article 140); and their independence is enshrined in the Constitution, which prohibits any public authority from giving them instructions concerning their judicial activities or influencing them in the performance of their duties (Article 138 § 2).
47. Under the Code of Obligations, anyone who suffers damage as a result of an illegal act, be it a crime or a tort, may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts as to a defendant's guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in theory, only bring an action against the public authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where an act is found to be tortious or criminal and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).
48. Article 138 (4) of the Constitution of 1982 provides:
“The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.”
Article 28 § 2 of the Code of Administrative Procedure provides:
“2. Decisions determining appeals on matters of both law and fact and concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.”
Under section 82(1) of Law no. 2004 on enforcement and bankruptcies, State property and property which, according to the appropriate law, is not subject to seizure cannot be seized. Section 19(7) of Law no. 1580 of 3 April 1930 on municipalities provides that municipal property can be seized only if it is not being used for a public service.
According to Turkish legal theory in this field, the effect of the above provisions is that if the authorities do not themselves comply with a final and enforceable court decision ordering compensation, the interested party can bring enforcement proceedings under the ordinary law. In that event the appropriate authority has power to impose on the administration the measures provided for by Law no. 2004, although seizure remains exceptional.
49. The information and documents in the Court's possession show that, since 1960, when inhabitants of underprivileged areas started migrating in their masses to the larger rich provinces, Turkey has been confronted with the problem of slums, consisting in most cases of permanent structures to which further floors were soon added. It would appear that currently more than one-third of the population live in such dwellings. Researchers who have looked into the problem maintain that these built-up areas have not sprung up merely as a result of deficiencies in urban planning or shortcomings on the part of the municipal police. They point to the existence of more than eighteen amnesty laws which have been passed over the years in order to regularise the slum areas and, they believe, satisfy potential voters living in these dwellings.
50. Regarding the fight against slum development, the following are the main provisions of Turkish law:
Section 18 of Law no. 775 of 20 July 1966 provides that, after the Law enters into force, any illegal building, whether it is in the process of being built or is inhabited, must be immediately destroyed without any prior decision being necessary. Implementation of these measures is the responsibility of the administrative authorities, which may have recourse to the security forces and other means available to the State. With regard to dwellings built before the Law entered into force, section 21 provides that, under certain conditions, slum inhabitants can purchase the land they occupy and take out low-interest loans in order to finance the construction of buildings which conform to the regulations and urban-development plans. The built-up areas to which the provisions of section 21 apply are declared to be “slum rehabilitation and clearance zones” and are treated in accordance with a plan of action.
Under Law no. 1990 of 6 May 1976, amending Law no. 775, illegal constructions built before 1 November 1976 were also considered to be covered by the above-mentioned section 21. Law no. 2981 of 24 February 1984 concerning buildings which do not conform to the slum and town-planning legislation also provided for measures to be taken for the conservation, regularisation, rehabilitation and destruction of illegal buildings erected prior to that date.
Lastly, Law no. 4706 was passed on 29 June 2001. This Law, which is designed to strengthen the Turkish economy, lays down the terms and conditions of sale to third parties of real estate belonging to the Treasury.
51. Pursuant to section 6-E, paragraph (j) of Law no. 3030 and Regulation 22 of the Public Administration Regulations implementing that Law, the city councils have a duty to designate waste sites for the deposit of household and industrial waste and to install or have installed systems for recycling and destroying the waste from such sites. Pursuant to Articles 5 and 22 of Regulation no. 20814 of 14 March 1991 on solid-waste control, district councils are responsible for organising the use of waste-collection sites and implementing all measures necessary to prevent rubbish tips from damaging the environment and the health of man and animals. Accordingly, no dwelling can be built at a distance of less than 1,000 metres from a rubbish tip. Regulation 31 empowers city councils to issue permits for the operation of district waste-collection sites.
52. The general information which the Court has been able to procure as to the risk of a methane explosion at such sites can be summarised as follows: methane (CH4) and carbon dioxide (CO2) are the two main products of methanogenesis, which is the final and longest stage of the anaerobic process. These substances are generated, inter alia, by the biological and chemical decomposition of waste. The risks of explosion and fire are mainly due to the large proportion of methane in the bio-gas. The risk of an explosion occurs when there is between 5% and 15% of CH4 in the air. Above 15% methane will catch fire, but not explode.
53. Concerning the various texts adopted by the Council of Europe in the field of the environment and the industrial activities of the public authorities, mention should be made, among the work of the Parliamentary Assembly, of Resolution 587 (1975) on problems connected with the disposal of urban and industrial waste, Resolution 1087 (1996) on the consequences of the Chernobyl disaster, and Recommendation 1225 (1993) on the management, treatment, recycling and marketing of waste and, among the work of the Committee of Ministers, Recommendation R (96) 12 on the distribution of powers and responsibilities between central authorities and local and regional authorities with regard to the environment.
Mention should also be made of the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (ETS no. 150 – Lugano, 21 June 1993) and the Convention on the Protection of the Environment through Criminal Law (ETS no. 172 – Strasbourg, 4 November 1998), which have to date been signed by nine and thirteen States respectively.
54. It can be seen from these documents that primary responsibility for the treatment of urban waste falls on local authorities, which the Governments are obliged to provide with financial and technical assistance. The operation by the public authorities of a site for the storage of waste is described as a “dangerous activity” and a “death” resulting from the deposit of waste on a site for the permanent deposit of waste is considered to be “damage” incurring the liability of the public authorities (see, inter alia, the Lugano Convention, Articles 2 §§ 1 (c)-(d) and 7 (a)-(b)).
55. In that connection the Strasbourg Convention calls on the Parties to adopt such appropriate measures as may be necessary to establish as criminal offences the unlawful storage of hazardous waste which causes or is likely to cause death or serious injury to any person, specifying that this offence can also be committed with “negligence” (Articles 2 to 4). Article 6 of that Convention requires further that such appropriate measures as may be necessary also be taken to make those offences punishable by criminal sanctions which take into account the serious nature of those offences and include imprisonment of the perpetrators.
56. With regard to such hazardous activities, public access to clear and full information is deemed to be a basic human right, it being the case that under, inter alia, Resolution 1087 (1996) cited above, that right must not be deemed to be limited to the risks associated with the use of nuclear energy in the civil sector.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-82283
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SCHAEFER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Brunhilde Schaefer, is a German national who was born in 1934 and lives in Mannheim. She was represented before the Court by Mr H. Hohmann and Mr T. Makatsch, lawyers practising in Büdingen.
The applicant and M.S. are a married couple. Their property is subject to the statutory matrimonial property regime of the community of increased assets (Zugewinngemeinschaft; see Relevant domestic law below).
M.S. was the manager of two limited liability companies in which he had invested 61,000 marks (DEM). The companies had taken out several loans for which M.S., as well as his son and wife, had provided security.
On 26 September 1988 and on 1 August 1989 M.S. pledged four bonds (of a total value of DEM 232,000) to the Schwetzingen Regional Savings Bank as security for all present and future claims of the bank against him. Thereupon, the bank furnished a guarantee of DEM 300,000 for a loan which M.S. had received from a different bank and granted him two loans.
On 20 January 1990 the Schwetzingen Regional Savings Bank gave M.S. notice of termination of the loans and claimed their repayment. However, M.S. was unable to settle his debts.
In 1991 the claims arising from the four bonds pledged by M.S. became due. The Schwetzingen Regional Savings Bank arranged for the sum of money which had fallen due to be paid into M.S.’s account with the bank, where it was charged with M.S.’s debts.
The applicant and M.S. have made their living since then from a small pension, financial aid granted by others and two low-paid part-time jobs.
On 4 March 1991 the applicant, who was from then on represented by counsel throughout the proceedings, brought an action against the Schwetzingen Regional Savings Bank for restitution of the four bonds or alternatively for payment of DEM 232,000. She claimed that the pledging of the bonds by her husband was void pursuant to section 1365 of the Civil Code (see Relevant domestic law below). She argued that the companies managed by her husband had already been heavily indebted since 1986. Her husband’s interests in his two companies therefore no longer had any value. The defendant bank had been aware that the bonds constituted her husband’s last property and she had not consented to his pledging the bonds as prescribed by section 1365 of the Civil Code in such circumstances. As her husband did not want to claim restitution of the bonds himself, she had a right to restitution under section 1368 of the Civil Code (see Relevant domestic law below).
The Schwetzingen Regional Savings Bank pleaded that, already in 1991, it had set off (see Relevant domestic law below) its claim for repayment of M.S.’s loan against the claim for restitution of the bonds.
On 5 January 1994 the Schwetzingen District Court (Family Division) dismissed the applicant’s action.
On 30 December 1997 the Karlsruhe Court of Appeal dismissed the applicant’s appeal.
Contrary to a previous undertaking allegedly given orally by the judge rapporteur in the hearing, the Court of Appeal subsequently dismissed the applicant’s request for legal aid for the proceedings.
On 1 February 2000 the applicant received a copy of the defendant’s observations.
On 2 February 2000 the Federal Court of Justice, having held a hearing on that day, rejected the applicant’s request under section 283 of the Code of Civil Procedure (see Relevant domestic law below) to grant her an additional opportunity to reply in writing to the defendant’s observations (running to twelve pages) of 27 January 2000, which the applicant had received the day before the hearing, and dismissed the applicant’s appeal on points of law.
The Federal Court of Justice noted that section 1365 of the Civil Code protected a spouse’s interest in preserving the family’s assets. However, this interest did not outweigh the interests of the other spouse’s creditors under all circumstances. In particular, the Debtors (Voidable Dispositions) Act (see Relevant domestic law below) offered protection for the creditors of a spouse who had transferred his/her assets to the other spouse in order to exempt these assets from his/her creditors’ attachment. This did not mean, however, that section 1365 of the Civil Code did not fully apply to heavily indebted spouses.
The Federal Court of Justice found that the applicant could not claim under section 1368 of the Civil Code the amount of money the defendant had received when the claims arising from the four bonds had become due. It left open whether the bonds had constituted M.S.’s entire or almost entire property and whether the defendant had known this as required by section 1365. This being assumed, the pledge of the bonds had been void and M.S. had initially had a claim against the defendant for payment of the amount of money the bank had obtained when the bonds were redeemed. However, the defendant bank had validly set off its own claim against M.S. for repayment of the loans against M.S.’s said claim by having the money obtained from the bonds paid into M.S.’s account with the bank and by charging it with M.S.’s debts.
The Federal Court of Justice, agreeing with the defendant, which had argued in its observations that it had set off its claim for repayment of the loans against the claim under section 1365 of the Civil Code, considered the set-off to be valid. Section 1368 of the Civil Code only allowed the applicant to enforce M.S.’s claim in her own name. Likewise, the protective purpose of sections 1365 and 1368 of the Civil Code had not been impaired by the set-off. The said provisions did not shield a spouse from all reductions of the family’s assets caused by the other spouse, in particular, by incurring liabilities which endangered the preservation of those assets. Creditors who had a claim for payment as a result of these liabilities could enforce their claim against the indebted spouse by execution against the debtor’s property. Just as section 1365 of the Civil Code did not give the other spouse a right to prevent compulsory execution, it did not protect that spouse from a set-off if the creditor had a claim against the spouse who had disposed of his/her property contrary to section 1365. Instead of attaching the disposing spouse’s claim for payment against the bank, the latter could set off its own claim for repayment of the loan against M.S.’s claim.
The decision was served on the applicant on 6 April 2000.
On 4 May 2000 the applicant lodged a complaint with the Federal Constitutional Court. She argued that the German courts had interpreted sections 1365 and 1368 of the Civil Code in a manner which disregarded her right to respect for her family life as protected by the Basic Law. The Federal Court of Justice had also refused to allow her an opportunity to reply in writing to the defendant’s observations, which she had received only one day before the hearing. Furthermore, her trial had been unfair, in particular, in that the undertaking of the judge rapporteur of the Court of Appeal that she would be granted legal aid had not been fulfilled.
On 23 October 2002 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 801/00).
The decision was served on the applicant on 29 October 2002.
Sections 1363 to 1390 of the Civil Code lay down rules concerning the matrimonial property of married couples.
The property of spouses is subject to the statutory matrimonial property regime of the community of increased assets (Zugewinngemeinschaft) if they have not stipulated in a marriage contract that different rules shall apply (section 1363 § 1 of the Civil Code). The property of the husband and wife does not become joint property. However, any increase in the assets of either spouse during the marriage is equalized on termination of the community of increased assets (for example, by death or divorce, see section 1363 § 2 of the Civil Code).
There are certain limitations on a spouse’s right to dispose of his or her assets. In particular, according to section 1365 § 1 of the Civil Code, a spouse may only (agree to) dispose of the entirety of his or her assets with the other spouse’s prior or subsequent consent. The approval of guardianship courts may be substituted for the other spouse’s consent to the transaction under certain conditions: if the transaction is in line with a proper administration of the assets and if the other spouse has refused his or her consent without good cause (section 1365 § 2 of the Civil Code).
Section 1368 of the Civil Code provides that if a spouse has disposed of his or her assets without the other spouse’s necessary consent, the other spouse is also entitled to enforce in court the claims emanating from the invalidity of the transaction.
The Debtors (Voidable Dispositions) Act (Anfechtungsgesetz) of 5 October 1994 lays down rules for the contestation by creditors of a debtor’s transactions which have put the creditors at a disadvantage.
Section 3 § 1 of that Act provides that a creditor may contest a transaction which has been entered into by the debtor, with the intention of putting his creditors at a disadvantage, within the preceding ten years if the other party to the transaction was aware of the debtor’s intent at the time of the transaction. According to section 3 § 2, the creditors may, under certain circumstances, also contest a contract involving remuneration between the debtor and a person having a close relationship with him or her, if the creditors are directly put at a disadvantage by the contract.
If two persons have obligations of a similar nature against each other (in particular, the obligation to pay off a debt), each party may declare the set-off of his/her own claim against the claim of the other party under certain circumstances, in particular under the condition that the claim of the party effecting the set-off is already due (section 387 of the Civil Code).
The set-off is effected by way of a declaration to the other party (section 388 of the Civil Code) and results in both claims becoming extinct (with retroactive effect) as from the time when both claims had first become subject to setting-off (section 389 of the Civil Code).
Section 283 of the Code of Civil Procedure (which is applicable to proceedings before the Federal Court of Justice pursuant to section 555 of the Code of Civil Procedure) lays down rules on additional written pleadings after the hearing. If one party to the proceedings is unable to reply to the submissions of the other in the course of the hearing because that party had not been informed in due time of those submissions before the hearing , the court may, on the party’s request, grant that party leave to give explanations in writing after the hearing within a period fixed by the court.


ITEMID: 001-101589
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BANNIKOVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1973 and lives in Kursk.
6. In the period between 23 and 27 January 2005 the applicant, in a series of telephone conversations with S., agreed that he would supply her with cannabis which she would then sell. These telephone conversations were recorded by the Federal Security Service (“FSB”).
7. On 28 January 2005 S. brought the cannabis to the applicant. She mixed it with cannabis she already had at home and packed it into three separate plastic bags, then wrapped them together in one parcel.
8. On the same day the acting chief of the Kursk Regional Department of the FSB authorised an undercover operation in the form of a test purchase under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). On the following day an undercover FSB agent, B., acting as a buyer, met the applicant and purchased 4,408 g of cannabis from her. Banknotes marked with a special substance were used for the purchase. The FSB also made a video and audio recording of the test purchase. After the transaction the applicant was arrested and the marked money was found on her. Her home was searched afterwards, and there she handed in another bag of cannabis weighing 28.6 g.
9. On 24 November 2005 the Leninskiy District Court of Kursk examined the case. The applicant pleaded guilty of having assisted B. in the acquisition of cannabis, but claimed that she had been induced by B. to commit the offence and that she would not have committed it without his intervention.
10. The applicant submitted at the trial that she had a close relationship with S. On one occasion in September 2004 he had left a bag containing dry herb at her home. She had then shown the substance to a neighbour who she knew was a drug addict and he had recognised it as cannabis. A few days later she had been approached by a certain Vladimir, previously unknown to her, who had said that he knew that she had “stuff” and that he could arrange a large-scale deal (“200 cups”) with a customer he knew. She had mentioned this offer to S., who had told her that he could pick up the requisite amount and asked her to find out the price. According to the applicant, at some stage Vladimir had started calling her, harassing her into selling cannabis and making threats should she refuse to do so. She had called S. several times before 28 January 2005, when he had finally brought the cannabis to her. On 29 January 2005 she had received a phone call from the “customer” (the undercover agent B.) and they had arranged for the sale.
11. S. testified at the trial that the applicant had called him in October or November 2004 and suggested a deal whereby he would supply her with a “large consignment” of cannabis which she would then sell. In November 2004 he had picked up some wild marijuana plants and dried them in his attic. On 23 or 24 January 2005 the applicant had called him, asking whether he had prepared the consignment, and said that she had customers waiting. They had decided to sell the cannabis at 300 roubles per cup; according to S., the price was suggested by the applicant. S. also testified that the applicant had told him that she had received threats pressuring her into selling the cannabis.
12. Other evidence examined by the court included:
– witness testimonies by B., the undercover agent, and K., the FSB agent who took part in the test purchase, on the events of 29 January 2005: the details of the test purchase, the applicant’s arrest and the ensuing investigative measures;
– witness testimonies by Kr. and Kh., the attesting witnesses, concerning the applicant’s arrest on 29 January 2005 and the inspection of the marking agent found on her hands and banknotes;
– the FSB reports relating to the test purchase, the search and the objects seized;
– forensic evidence and reports on the inspection of the seized substance; these confirmed that the bag contained 4,408 g of cannabis, an amount corresponding to 2,204 average doses of cannabis; the substance seized at the applicant’s home was 28.8 g of cannabis;
– the transcripts and the related reports on the telephone conversations between the applicant and S. in which they had discussed the details of the planned sale;
– witness testimonies by the applicant’s mother that the applicant had received threats pressuring her into selling drugs and that she had continued to receive calls and threats after her arrest; and
– witness testimonies by the police officers who had received a complaint from the applicant’s mother concerning the harassment by telephone.
13. On the basis of the above evidence, the court found the applicant guilty of having sold cannabis to B. on 29 January 2005. As regards the alleged incitement, the court considered that S.’s testimonies concerning the threats received by the applicant were an attempt to help her and decided that there was insufficient evidence of any threats or pressure on the applicant to sell drugs. The court convicted the applicant on a conspiracy charge involving plans to sell a particularly large consignment of narcotic drugs under Article 228.1 § 3 (статья 228.1 ч 3 «г») of the Criminal Code and sentenced her to four years’ imprisonment. The court relied on the applicant’s partial confession, oral testimonies by the FSB officers who had conducted the test purchase and by attesting witnesses, forensic evidence and reports on the inspection of the seized substance. Her accomplice S. was also convicted of the same offence.
14. The applicant appealed, relying, inter alia, on the decisive role of the incitement in her committing the crime and on her inability to access the evidence from the investigation. She alleged, in particular, that there existed recordings of her telephone conversations with the FSB agents prior to the test purchase and asked for T., the FSB agent supposedly involved in the telephone tapping, to be called as a witness. She also complained that the court had not examined the video and audio recording of the test purchase.
15. On 24 January 2006 the Kursk Regional Court dismissed the applicant’s appeal. The court rejected the applicant’s argument concerning the incitement by State agents on the grounds that her participation in the drug sale on 29 January 2005 had been established on the basis of multiple items of evidence and was not denied by her. The appeal court upheld the firstinstance judgment, holding, in particular:
“As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the audio recordings of the telephone conversations between [her] and the FSB agents, and to cross-examine the FSB agent [T.] on that point, the case file contains no proof that any such recordings have been made under a procedure established by law.
As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the video and audio recordings of the test purchase of the drugs by the FSB agents, it is not necessary to examine them since [the applicant] accepted in her pleadings that she had sold the drugs during such a test purchase, and her account of the circumstances is corroborated by other evidence and facts established by the court.
In particular, it follows from the transcripts of the [applicant’s] telephone conversations with [S.] that during these conversations they discussed occasions of previous sales of narcotic drugs, the remaining unsold stock of narcotic drugs, the emergence of new customers and the prospects of carrying out another sale together ... S. was conveying information on prices for narcotic drugs”.
16. Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic, strong or toxic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)).
17. On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. The Plenary ruled, in particular, that any sale of such substances, if carried out in connection with a test purchase under the Operational-Search Activities Act, should carry charges of attempted sale (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agents’ acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence.
18. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provided at the material time as follows:
“An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting life, health, the rights and freedoms of individuals and citizens or property, and ensuring public and State security against criminal offences.”
“The aims of operational-search activities are:
– to detect, prevent, intercept and investigate criminal offences as well as searching for and establishing the persons who are planning or committing or have committed them;
...”
“...
A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a superior agency conducting operational-search activities, a prosecutor’s office or a court.
...”
“In carrying out investigations the following measures may be taken:
...
4. test purchase;
...
9. supervision of postal, telegraphic and other communications;
10. telephone interception;
11. collection of data from technical channels of communication;
12. operational infiltration;
13. controlled supply;
14. operational experiments.
...
Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunications companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved.
...”
“[Operational-search activities may be performed on the following grounds;] ...
1. pending criminal proceedings;
2. information obtained by the agencies conducting operational-search activities which:
(1) indicates that an offence is being planned or that it has been already committed, or points to persons who are planning or committing or have committed it, if there are insufficient data for a decision to institute criminal proceedings;
...”
“Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning:
1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory;
2. persons who are conspiring to commit, or are committing, or have committed an offence whose investigation is mandatory;
...
Test purchases ..., operational experiments, or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operationalsearch activities.
Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime.
...”
“The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused.
...
The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons.
...”
“To pursue their aims as defined by this Act, the agencies conducting operationalsearch activities may create and use databases and open operational registration files.
Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...”
“Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...”
On 24 July 2007 section 5 of the Act was amended by prohibiting the agency conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences.
19. The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008-...).
20. Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of an interrogator, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged.
21. On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia, that decisions by the officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or interrogating authority.
22. The Code of Criminal Procedure provides, in so far as relevant:
“1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings].
...”
“...
5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial.
...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78989
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BRUDNICKA AND OTHERS v. POLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 8. The applicants are relatives of sailors who lost their lives in a shipwreck.
9. On 14 January 1993 the vessel Jan Heweliusz sank in the Baltic Sea. It belonged to the company Polskie Linie Oceaniczne, whose registered office is in Gdynia, and was operated by the company Euroafrica, with its registered office in Szczecin. Of the 35 passengers and 29 crew members on board, 55 died in the shipwreck and 9 survived.
10. Several commissions of inquiry were set up to establish the cause of the shipwreck.
The commission set up by the Prime Minister suspended its inquiry in March 1993 without producing a report.
The commission set up by the Ministry of Transport and Maritime Affairs submitted a report in April 1993 in which it found that the shipwreck had been due to force majeure.
The special commission set up within the National Labour Inspectorate concluded in May 1993 that the owner of the vessel and the crew were jointly responsible.
11. The Maritime Chamber attached to the Szczecin Regional Court (Izba Morska przy Sądzie Wojewódzkim) instituted proceedings seeking to establish the cause of the shipwreck. The relatives of the crew members who had died took part in the proceedings.
12. On 11 January 1994 the Maritime Chamber delivered its decision, attributing liability to the ship's captain, its technical team, the Polish Shipping Registry, which had inspected the vessel before the disaster, and the Polish rescue services.
13. On 18 November 1994 the Maritime Appeals Chamber of the Gdańsk Regional Court (Odwoławcza Izba Morska przy Sądzie Wojewódzkim), sitting in Gdynia, set aside the decision of 11 January 1994 and referred the case to the Maritime Chamber for a fresh examination.
14. The Gdańsk Maritime Chamber, sitting in Gdynia, examined the case between 20 March 1995 and 9 February 1996. On 23 February 1996 it gave a decision in which it held that the crew had been partly liable, that the vessel's operator had been at fault for failing to undertake the necessary repair work, and that the natural elements had also played a part.
15. The operator, the ship's owner, the representative of the Ministry of Transport and Maritime Affairs and the other parties to the proceedings appealed. In a decision delivered on 26 January 1999 and served on the parties on 19 November 1999, the Gdańsk Maritime Appeals Chamber partly upheld the finding of liability with regard to the operator. It also upheld the finding that certain acts of negligence on the part of the crew, in particular the captain and the chief officer, had contributed to the disaster, as had the fact that the rescue operation had not been properly coordinated.
The relevant passages of the decision read as follows:
page 2
“The most likely cause of the capsize of the car and train ferry the Jan Heweliusz and of the death by drowning and hypothermia of 27 passengers and 18 crew members and the disappearance of 8 passengers and 2 crew members was:
...
the fact that the ferry turned into the wind while unevenly ballasted (towards the port side), resulting in the shifting of the ballast towards the port side; violent gusts of wind on that side; the shifting of the vehicles' loads and the vehicles themselves to the port side; the discharge of bilge water to the outside on the port side of the ferry.”
page 4
“The Jan Heweliusz left the port of Świnoujście at 11.35 p.m. on 13 January 1993, bound for the port of Ystad, in an unseaworthy condition, as the safety requirements were not met in the following respects:
1. measures to stabilise the vessel in the event of an accident;
2. measures to ensure that the rear door was watertight;
3. the securing of the vehicles to the deck in accordance with maritime best practice.”
page 6
“Irregularities have been found in the conduct of:
1. the operator of the Jan Heweiusz, Euroafrica Shipping Lines, a limited liability company based in Szczecin, which allowed the ferry to be operated while in an unseaworthy condition owing to the damage sustained to the door on 10 January 1993 in Ystad, following which its class had been suspended and the safety certificate had ceased to be valid, in that it
(a) omitted to declare the ferry to the Szczecin Maritime Bureau for an interim inspection and to the Polish Shipping Registry for immediate inspection;
(b) failed to take the agreed action to repair the rear door in the proper manner;
2. the captain of the above-mentioned ferry, a Master Mariner ... who, on 13 January 1993, left the port of Świnoujście, bound for the port of Ystad, while the ferry was in an unseaworthy condition, in that he
(a) omitted to declare the ferry to the Consulate in Malmö and later to the Szczecin Maritime Bureau for an interim inspection following the damage sustained to the rear door on 10 January 1993 in Ystad, the suspension of class after the accident and the cessation of validity of the ship's safety certificate;
(b) allowed the vessel to depart without the vehicles being secured to the deck, in spite of the gale warning that had been issued;
3. the chief officer, a Master Mariner ... who, on 13 January 1993, before the ferry left the port of Świnoujście bound for Ystad, and despite the issuing of a gale warning, did not supervise the securing of the vehicles to the deck before the ferry left port.”
page 8
“The lack of effectiveness of the rescue operation was the result of
...
3. the clothing of the passengers and some crew members, which did not protect them against hypothermia;
4. the inadequate training of the crew in the use of the life-saving equipment.”
page 109
“ ... In the Chamber's view, the evidence cited demonstrates that
...
(ii) the cargo was not secured before the vessel left dock despite the gale warning issued by the meteorological office...”
pages 129-30
“... The causes of the vessel's having turned into the wind can only be established with a high degree of probability; the possibility that the persons steering the ferry failed to observe the rules cannot be discounted ...”
page 162
“... The rescue operation revealed that, in a situation of the utmost danger, some members of the crew did not know how to use the lifejackets ...”
16. The maritime chambers were introduced into the Polish legal system by an Act of 18 March 1925 which provided for the establishment of chambers at two levels of jurisdiction, attached to the courts and with jurisdiction “in cases relating to maritime incidents and accidents at sea”. The maritime chambers were considered as maritime administrative bodies.
17. The Maritime Chambers Act of 1 December 1961 incorporated most of the rules laid down in the 1925 Act and transferred powers to them which had previously been vested in the courts. Its relevant provisions read:
“The maritime chambers shall be composed of a president, one or more vicepresidents and lay members.”
“(1) The president and vicepresident shall be appointed and removed from office by the Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, from among the judges of the ordinary courts who have knowledge of the maritime issues dealt with in the cases before the maritime chambers.
(2) The other members [pracownicy] of the maritime chambers shall be recruited and dismissed by the president of the chamber concerned.”
“(1) The presidents and vicepresidents of the maritime chambers shall retain their judicial posts and, unless the law stipulates otherwise, the rights and duties set out in the legislation applicable to judges.
(2) The status of the other members of the maritime chambers shall be governed by the legislation governing officials of State administrative bodies.”
“The Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, shall determine, by decree, the extent of the participation of the presidents and vicepresidents of the maritime chambers in the activities of the courts, taking account of the extent of their involvement in the maritime chambers and the need to have working professional judges involved in the administration of justice.”
“Subject to contrary provisions of the present Act, the provisions of the Code of Criminal Procedure shall apply to proceedings in cases before the maritime chambers concerning accidents at sea.”
“Once a case has been brought before the maritime chamber, it shall be investigated by the president or the vicepresident either directly or through the intermediary of the harbourmaster's office.”
“The investigation shall be aimed at establishing the sequence of events and the causes and circumstances of the accident by gathering the necessary information and preserving the evidence.”
“After the decision has been signed by the members of the bench who decided the case, the president shall deliver the decision, citing the main grounds. The grounds of the decision shall then be set down in writing ...”
“The decision and the reasons shall be communicated to the Minister of Transport and Maritime Affairs, his or her deputy, the maritime department concerned and the individuals concerned. In the cases referred to in section 15(4), they shall also be communicated to the Labour Inspectorate.”
18. The regulations adopted by the Minister of Transport and Maritime Affairs on 12 November 1996 incorporated the rules set down in the 1961 Act. However, no express provisions were laid down concerning appeals to the maritime appeals chambers against decisions given by the maritime chambers at first instance. The chief task of the maritime chambers remains the determination of cases concerning maritime incidents and accidents at sea. Under the terms of the 1996 regulations, in cases relating to accidents at sea not governed by the 1961 Act, the rules of ordinary law and the Code of Criminal Procedure apply.
19. On 12 July 2001 a preliminary question was referred to the Supreme Court in a different case from the one before the Court, concerning the possibility of an appeal on points of law against a decision given by a maritime appeals chamber. The Supreme Court replied that no such possibility existed (IIICZP 22/01 OSNC 2001, no. 158). It observed that there had been a longrunning debate among Polish commentators on the legal status of the maritime chambers, which were sometimes regarded as administrative bodies and sometimes as judicial bodies.
20. On 18 December 2002 the Government communicated to the Court a bill on maritime chambers, indicating that it would be put before the Council of Ministers for approval in early 2003, before being tabled in the Sejm.
The Act of 5 March 2004 was published in the Official Gazette on 14 April 2004. It provides a detailed definition of maritime disasters, listing in detail the conduct and facts falling within the remit of the maritime chambers. The only possibility of appeal is with the Gdańsk Court of Appeal against decisions of the maritime appeals chamber withdrawing navigation rights. Finally, it includes a new chapter on the procedure for enforcing decisions of the maritime chambers concerning the withdrawal of navigation rights.
However, the new legislation has not made provision for an appeal on points of law against decisions of the maritime appeals chambers and has not amended the procedure for appointing and removing from office the presidents and vicepresidents of the maritime chambers.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76094
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRAJNC v. SLOVENIE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (one set of proceedings);No violation of Art. 6-1 (other sets of proceedings);Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1952 and lives in Celje.
6. On 5 September 1991 the applicant was injured in an accident at work. PUV, the applicant’s employer, had taken out insurance with the insurance company ZT.
7. On 30 April 1992 the applicant instituted civil proceedings against PUV in the Celje Court of Associated Labour (Sodišče združenega dela v Celju) seeking damages in the amount of 980,000 tolars (approximately 4,000 euros) for the injuries sustained.
On 9 March 1993 the court upheld, in part, the applicant’s claim.
8. The applicant appealed to the Court of Associated Labour (Sodišče združenega dela Republike Slovenije).
The judgment, upholding the applicant’s appeal and remitting the case to the first-instance court for re-examination, was served on the applicant on 8 December 1993.
9. On 12 and 30 September 1994 the applicant lodged with the Celje Labour Court (Delovno sodišče v Celju), the renamed first-instance court, preliminary written submissions and/or adduced evidence.
Neither of the two hearings held on 15 September and 19 October 1994 was adjourned at the request of the applicant.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 16 December 1994.
10. On 27 December 1994 the applicant appealed to the Higher Labour and Social Court (Višje delovno in socialno sodišče).
On 16 May 1997 the court allowed the applicant’s appeal in part.
The judgment was served on the applicant on 1 September 1997.
11. On 29 September 1997 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). PUV cross-appealed.
On 29 September 1997 the applicant also sought exemption from paying the court fees.
On 22 October 1997 the first-instance court rejected the applicant’s request for exemption.
On 28 October 1997 the applicant appealed.
On 17 September 1999 the Higher Labour and Social Court dismissed the applicant’s appeal and requested that he paid the court fees.
On 28 September 1999 the case was transferred to the Supreme Court to decide on the applicant’s appeal on points of law.
On 7 December 1999 the Supreme Court dismissed the applicant’s appeal and allowed PUV’s appeal in part.
The judgment was served on the applicant on 4 January 2000.
12. On 13 August 1992 the applicant was injured in an accident at work. PUV, the applicant’s employer, had taken out insurance with the insurance company ZT.
13. On 12 December 1994 the applicant instituted civil proceedings against ZT and PUV in the Celje Basic Court, Celje Unit (Temeljno sodišče v Celju, Enota v Celju) seeking damages in the amount of 10,016,472 tolars (approximately 41,800 euros) for the injuries sustained.
On 1 January 1995 the Celje Distric Court (Okrožno sodišče v Celju) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
Between 9 March 1995 and 12 July 2001 the applicant made fifteen requests that a date be set for a hearing.
Between 16 October 1995 and 18 September 2001 he lodged fifteen preliminary written submissions and/or adduced evidence.
Of the seven hearings held between 25 October 1995 and 3 October 2001 none was adjourned at the request of the applicant.
On 25 September 1997 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was transferred to a new judge.
During the proceedings the court appointed three medical experts.
The judgment, upholding the applicant’s claim in part, was served on the applicant on 26 November 2001.
14. On 28 November 2001 the applicant appealed to the Celje Higher Court. ZT and PUV cross-appealed.
On 29 May 2003 the court allowed the applicant’s appeal in part and dismissed ZT’s and PUV’s appeals.
The judgment was served on the applicant on 1 September 2003.
15. On 12 September 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and requested the second-instance court to correct its judgment. ZT and PUV cross-appealed.
On 29 October 2003 the second-instance court corrected its judgment.
On 14 July 2005 the court dismissed the applicant’s appeal, upheld ZT’s and PUV’s appeals in part and amended the first-instance court judgment.
The judgment was served on the applicant on 21 October 2005.
16. On 7 June 2000 ZT instituted civil proceedings against the applicant in the Celje Local Court (Okrajno sodišče v Celju) seeking reimbursement of overpaid damages in the amount of 281,234 tolars (approximately 1,170 euros). ZP paid the damages to the applicant following the judgment the Higher Labour and Social Court’s judgment of 16 May 1997 rendered in the first set of proceedings. The damages were lowered by the Supreme Court’s judgment of 7 December 1999.
Between 4 July 2000 and 19 November 2002 the applicant lodged three preliminary written submissions and/or adduced evidence.
Neither of the two hearings held on 2 and 18 December 2002 was adjourned at the request of the applicant.
The judgment, upholding the ZT’s claim, was served on the applicant on 24 January 2003.
17. On 29 January 2003 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 5 May 2004 the court allowed the applicant’s appeal and remitted the case to the first-instance court for re-examination.
The judgment was served on the applicant on 18 June 2004.
18. On 21 June 2004 the applicant submitted written submissions.
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75712
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HROBOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Struck out as regards Art. 13;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1955 and lives in Kráľovský Chlmec.
5. On 26 August 1992 the applicant sued a medical institution for damages before the Poprad District Court.
6. On 1 September 1992 the District Court sent the action to the defendant for comments.
7. Between 11 September 1992 and 5 May 1993 the District Court held several hearings. On the latter date the applicant challenged the judge and requested that the case be transferred to a different court.
8. On 26 August 1993 the Košice Regional Court found that the District Court judges were not disqualified.
9. On 24 November 1993 the District Court heard the parties and decided to obtain an expert opinion.
10. An expert was appointed on 24 March 1994. On 9 September 1994 a different expert was asked to submit the opinion as the first expert was abroad. As the second expert did not proceed with the expert’s report, the District Court appointed a third one on 12 October 1995. The latter informed the court that he was not specialised in the relevant field. A different expert was therefore appointed on 7 November 1995. He submitted an opinion on 2 January 1996.
11. On 27 May 1996 the applicant sought to extend her claim. The District Court did not grant her request. It further decided to hear several witnesses.
12. On 29 September 1997 the applicant challenged the District Court judges. The District Court judges made a statement concerning this request in November 1997. The applicant’s request for their exclusion was submitted to the Prešov Regional Court on 21 February 1999. The Regional Court dismissed the request on 12 March 1999.
13. Subsequently the District Court sought to obtain evidence as suggested by the applicant. In this context two witnesses living in the Czech Republic were to be heard.
14. On 21 January 2002 the District Court granted the applicant’s claim in part. The applicant appealed.
15. On 7 October 2002 the vice-president of the Prešov Regional Court informed the applicant that her appeal had not yet been decided upon due to the heavy workload of the court.
16. On 18 February 2003 the Prešov Regional Court quashed the first instance judgment.
17. On 10 July 2003 the District Court allowed the applicant to extend her claim. It adjourned the case with a view to taking further evidence.
18. On 12 September 2003 the District Court asked a court in Brno (Czech Republic) to hear a witness.
19. On 13 October 2004 the applicant challenged the judge of the Poprad District Court. On 16 December 2003 the Regional Court in Prešov refused to exclude the District Court judge.
20. On 2 February 2004 the City Court in Brno submitted the requested evidence to the District Court in Poprad.
21. At a hearing held on 3 September 2004 the applicant was acquainted with the evidence which the District Court had obtained. The applicant requested that a new expert opinion should be obtained. The case was adjourned.
22. On 13 April 2005 the applicant informed the Court that the proceedings were still pending before the District Court in Poprad.
23. On 18 December 2000 the applicant complained to the Constitutional Court about the length of the proceedings.
24. On 28 June 2001 the Constitutional Court found that the applicant’s right to a hearing without unjustified delay had been violated. The decision stated that the case was not particularly complex and that the applicant had not contributed to the length of the proceedings in a significant manner. Undue delays in the proceedings before the District Court had occurred between 23 November 1993 and 24 March 1994, between 9 September 1994 and 12 October 1995 as well as between 29 September 1997 and 21 February 1999. Furthermore, the District Court had not acted in an appropriate manner when the defendant had failed to submit required information in time and when the expert appointed on 9 September 1994 had remained inactive for more than one year.
25. At that time the Constitutional Court lacked power to provide redress to the applicant (see, for example, Jakub v. Slovakia, no. 2015/02, §§ 25-28, 28 February 2006).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1