ITEMID: 001-61090
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SOC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection partially accepted (non-exhaustion of domestic remedies);Preliminary objection partially dismissed (non-exhaustion of domestic remedies);No violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. On 27 January 1994 the applicant filed with the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) an action against R.R. He claimed that in 1986 he and his then wife made a contract with R.R. with the effect that the applicant and his wife would provide R.R. with all care until her death and R.R. gave the applicant and his wife a flat in Dubrovnik for their use. Subsequently, another contract was made to the effect that the applicant and his wife would pay some of R.R.’s debts and that R.R. would make a testament leaving to the applicant’s wife the ground floor of a house in Dubrovnik with a garden. In 1993 the applicant and R.R. made two additional contracts whereby R.R. sold to the applicant a house in Dubrovnik. The contracts were not entered into the land registry. R.R. stayed in the house and denied the applicant’s property rights. By his action the applicant sought a declaration concerning his property rights. He also asked the court to issue an interim measure so as to prevent R.R. from selling the property in question.
10. It transpires from the case file that sometime in 1996 R.R. died but had beforehand sold the property in question to third persons.
11. Before 5 November 1997 when the Convention entered into force in respect of Croatia, several hearings were adjourned because the applicant’s counsel did not appear.
12. The hearing scheduled for 24 February 1998 was also adjourned because the applicant’s counsel did not appear. The postal receipt indicated that he had changed his address but had failed to inform the court.
13. The next hearing scheduled for 8 April 1998 was again adjourned at the request of the applicant’s counsel who informed the court that he had had no contact with the applicant.
14. At the hearing of 19 May 1998 the applicant appeared in person and asked the court to adjourn the next hearing because he had instituted several proceedings with the Dubrovnik Municipal Court and would prefer not to have to travel from Zagreb to Dubrovnik too often.
15. On 22 January 2001 the applicant informed the court that he had obtained Croatian citizenship.
16. On 17 August 2001 the applicant filed a criminal complaint with the Public Prosecutor’s Office against the presiding judge alleging that she committed the offence of negligent performance of duty in dealing with his case. He alleged that the judge had been ignoring his numerous requests to speed up the proceedings and his request for an interim measure.
17. On 18 August 2001 the applicant filed a request with the Supreme Court (Vrhovni sud Republike Hrvatske) seeking that the presiding judge be dismissed from her office and repeating his allegations from the criminal complaint filed against her.
18. On 27 August 2001 the applicant filed a motion with the president of the Dubrovnik Municipal Court challenging the presiding judge for bias and once again repeating his allegations from the criminal complaint against her.
19. On 19 September 2001 the president of the Dubrovnik Municipal Court rejected the applicant’s motion of 27 August 2001 as unfounded.
20. The next hearing was scheduled for 23 October 2001. According to the Government the Dubrovnik Municipal Court attempted to serve the notice of the hearing date on the applicant at the address indicated in his claim. The receipt slip showed that the applicant was unknown at that address. The Zagreb Police Department informed the court that the applicant did not live at the other address where he was registered. The court then posted the notice on its public notice-board.
21. Since the applicant did not appear at the hearing scheduled for 23 October 2001 the court stayed the proceedings (mirovanje postupka).
22. By a letter of 13 February 2002 the Supreme Court informed the applicant that his allegations against the presiding judge had been unfounded.
23. On 4 March 2002 the Dubrovnik Municipal Court terminated the proceedings because the applicant had not sought that the proceedings be resumed.
24. On 11 March 1994 the applicant filed an action against Lj.Š. for payment of 9,718 Croatian Kunas (HRK), with the Zagreb Municipal Court (Općinski sud u Zagrebu).
25. By default judgment of 17 May 1994 the first instance court granted the applicant’s claim. On 28 October 1997 the appellate court quashed that judgment and remitted the case to the first instance court.
26. On 9 and 29 April 1998 the applicant asked the first instance court to schedule a hearing, but did not submit Lj.Š.’s address. Therefore, the court requested her address from the Zagreb Police Department which was, however, unable to provide the requested address.
27. On 12 May 1998 the court invited the applicant to submit Lj.Š.’s address. The applicant did so on 19 June 1998.
28. As neither party appeared at the hearing scheduled for 12 November 1998 the court stayed the proceedings (mirovanje postupka).
29. On 25 November 1998 the applicant filed a motion to resume the proceedings (prijedlog za povrat u prijašnje stanje).
30. At the next hearing on 25 September 2000 the court heard the applicant and after that resumed the proceedings.
31. The next hearing scheduled for 23 November 2000 was adjourned because Lj.Š. did not appear. The postal receipt indicated that she had changed her address. The applicant submitted her new address. Lj.Š.’s counsel submitted a receipt of payment relevant for the applicant’s claim. The applicant asked the court to adjourn the hearing because he wished to submit his reply.
32. Since the applicant failed to appear at the hearing scheduled for 22 January 2001 the court stayed the proceedings. Lj.Š.’s counsel appealed against that decision.
33. On 9 October 2001 the Zagreb County Court (Županijski sud u Zagrebu) upheld the decision to stay the proceedings.
34. The proceedings were resumed before the Zagreb Municipal Court which scheduled the next hearing for 20 March 2002. At that hearing the court allowed the applicant at his request to submit documentation in support of his claim within fifteen days.
35. The next hearing scheduled for 17 May 2002 was adjourned.
36. At the hearing on 18 September 2002 the court invited the applicant to specify his claim within fifteen days.
37. At the hearing on 24 October 2002 the court heard the applicant and again invited him to specify his claim.
38. The Court notes that neither party has referred to any further steps in the proceedings since the hearing on 24 October 2002 and therefore must assume that the proceedings are still pending before the court of first instance.
39. On 1 March 1997 the applicant filed with the Dubrovnik Municipal Court an action against P.D. and D.D. seeking a declaration concerning his property rights.
40. Before 5 November 1997 the court of first instance exempted the applicant from the payment of the court fees and rejected his request to be entirely exempted from the payment of costs and expenses in the proceedings. Several hearings were adjourned.
41. At the hearing on 20 March 1998 the defendants’ counsel asked the court to order the applicant to deposit a security for the defendants’ costs and expenses because the applicant was not a Croatian citizen.
42. At the next hearing on 19 May 1998 the court invited the applicant to submit a certificate on his residence in Croatia.
43. On 6 June 1998 the applicant informed the court that he was unable to submit the requested certificate.
44. On 22 January 2001 the applicant informed the court that he had obtained Croatian citizenship.
45. On 9 November 2001 the Dubrovnik Municipal Court pronounced judgment rejecting the applicant’s claim.
46. The applicant appealed against the judgment. On 13 December 2001 the Dubrovnik Municipal Court rejected the appeal as being out of time. The applicant appealed against that decision. On 4 April 2002 the Dubrovnik County Court quashed the first instance decision rejecting the applicant’s appeal.
47. The Court notes that neither party has referred to any further steps in the proceedings and therefore must assume that the proceedings are now pending before the Dubrovnik County Court upon the applicant’s appeal against the first instance judgment of 9 November 2001.
48. On 20 March 1997 the applicant filed with the Samobor Municipal Court (Općinski sud u Samoboru) an action against K.M. for payment of HRK 1,126.100.
49. On 17 November 1997 the applicant was invited to submit a declaration of means in connection with his application for the exemption from the payment of the court fees.
50. The applicant filed a motion challenging the presiding judge for bias. His motion was dismissed by the President of the court on 2 December 1997. However, the case-file was assigned to another judge.
51. At the next hearing on 17 February 1998 K.M replied to the applicant’s claim.
52. As the judge retired, the case was assigned to another judge.
53. At the hearing on 2 June 1998 the court invited the applicant to specify his claim.
54. The next hearing scheduled for 23 February 1999 was adjourned due to the applicant’s illness.
55. At the hearing of 4 May 1999 the court again invited the applicant to specify his claim. On 7 May 1999 the applicant complied with the court’s request.
56. In July 1999 the judge went on maternity leave. In February 2000 the case was assigned to another judge.
57. The next hearing scheduled for 20 September 2000 was adjourned because K.M. did not appear.
58. At the hearing on 5 October 2000 the court concluded the proceedings.
59. On 13 October 2000 the court pronounced judgment partly granting and partly rejecting the applicant’s claim.
60. On 30 October and 11 December 2000, respectively, K.M. and the applicant filed their appeals against the judgment.
61. On 24 July 2001 the appellate court quashed the first instance judgment and remitted the case to the Samobor Municipal court for re-trial.
62. At the next hearing on 19 March 2002 the court decided to hear the parties at the hearing scheduled for 23 April 2002.
63. At the hearing on 17 June 2002 the court stayed the proceedings because the applicant did not appear. The applicant then asked the court to resume the proceedings.
64. The Court notes that neither party has referred to any further steps in the proceedings and therefore must assume that the proceedings are still pending before the court of first instance.
65. On 20 March 1997 the applicant filed with the Zagreb Municipal Court an action against A.J.J. concerning certain compensation claims.
66. The court exempted the applicant from the payment of the court fees.
67. On 24 November 1997 A.J.J.’s counsel filed a request that the applicant be ordered to deposit a security for A.J.J.’s costs and expenses because the applicant was not a Croatian citizen.
68. At the hearing on 3 December 1997 A.J.J.’s counsel repeated the previous request. The applicant opposed that request.
69. It seems that A.J.J. had filed written submissions concerning the applicant’s claim before the hearing on 29 September 1998 when the court invited the applicant to reply to A.J.J.’s submissions within fifteen days. The applicant did not submit any reply.
70. On 1 January 1999 the case was transferred to another judge because the previous judge had resigned.
71. On 7 June 2000 the court rejected A.J.J.’s request that the applicant deposit the security for her costs and expenses.
72. On 14 July 2000 A.J.J. appealed against the above decision.
73. In the meantime, on 12 July 2000, the applicant informed the court that he had obtained Croatian citizenship.
74. On 25 July 2000 A.J.J.’s appeal was sent to the applicant for reply.
75. At the hearing on 22 November 2000 the parties agreed that, since the applicant had obtained Croatian citizenship, there was no need for further examination of A.J.J.’s appeal.
76. At the next hearing on 13 March 2001 the court stayed the proceedings as the applicant did not appear.
77. On 23 March 2001 the applicant filed an application to resume the proceedings.
78. The next hearing scheduled for 11 September 2001 was adjourned because the applicant did not appear.
79. At the hearing on 5 March 2002 the court heard the applicant in connection with his application that the proceedings be resumed.
80. On 15 March 2002 the court rejected the applicant’s request to resume the proceedings and terminated the proceedings. This decision became final on 9 April 2002.
81. The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 – hereinafter “the 2002 Constitutional Court Act” – Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.
82. Decision of the Constitutional Court of 20 November 2002, no. UIIIA-1535/2002 reads as follows in its relevant parts:
D E C I S I O N
The Court rejects the constitutional complaint.
R e a s o n i n g
1. The constitutional complaint was filed pursuant to Section 63 § 1 of the Constitutional Act on the Constitutional Court (Official Gazette no. 49/02-consolidated legislation, hereinafter the Constitutional Act).
It appears from the constitutional complaint and the enclosed documents that on 17 June 1992 the applicant, as a plaintiff, filed a claim before the Zagreb Municipal Court seeking damages from the Croatia Insurance Company from Zagreb. The applicant’s claim was rejected by the Zagreb Municipal Court’s final judgment no. Pn-2507/95 of 15 January 1998 (the Zagreb County Court rejected the applicant’s appeal as unfounded by its judgment No. Gž-6927/00 of 8 August 2000). The applicant’s request for revision was rejected as inadmissible by virtue of the Supreme Court’s decision No. Rev-2827/00 of 9 January 2002.
2. The applicant complains under Section 29 of the Constitution that the excessive length of civil proceedings (10 years) infringed his right to fair trial within a reasonable time ...
...
5. The Constitutional Court has established that the applicant has exhausted all available legal remedies within the meaning of Section 62 §§ 1 and 2 of the Constitutional Act because the proceedings have been concluded ...
6. Section 32 of the Constitutional Act provides that the Constitutional Court must reject a complaint when the conditions set out for considering the merits of the complaint have ceased to exist.
7. Since, for the above mentioned reasons, the conditions for considering the applicant’s complaint set out in Section 63 § 1 of the Constitutional Act have ceased to exist, the Court has decided to reject the complaint pursuant to Section 32 of the Constitutional Act ...
“R J E Š E NJ E
Ustavna tužba se odbacuje.
O b r a z l o ž e nj e
1. Ustavna tužba podnijeta je temljem odredbe članka 63. stavka 1. Ustavnog zakona o Ustavnom sudu Republike Hrvatske (“Narodne novine”, broj 49/02-pročišćeni tekst, u daljnjem tekstu: Ustavni zakon)
Iz obrazloženja ustavne tužbe i priložene dokumentacije proizlazti da je podnositelj, kao tužitelj, dana 17. lipnja 1992. godine, podnio Općinskom sudu u Zagrebu tužbu protiv Croatia osiguranja d.d. iz Zagreba, kao tuženika, radi naknade štete. Tužbeni zahtjev podnositelja odbijen je pravomoćnom presudom Općinskog suda u Zagrebu, broj: Pn 2507-95 od 15. siječnja 1998. godine (Županijski sud u Zagrebu presudom broj: Gž 6927-00 od 8. kolovoza 2000. godine odbio je žalbu podnositelja kao neosnovanu.). Protiv pravomoćne presude podnositelj je izjavio reviziju, koja je odbačena kao nedopuštena rješenjem Vrhovnog suda Republike Hrvatske, broj: Rev 827-00 od 9. siječnja 2002. godine.
2. Podnositelj u ustavnoj tužbi ističe povredu odredbe članka 29. Ustava jer smatra da mu je zbog nerazumno dugog trajanja parnice (10 godina) povrijeđeno pravo na pošteno suđenje...
...
5. Ustavni sud je utvrdio da je u slučaju podnositelja ustavne tužbe iscrpljen pravni put u smislu odredbi člnaka 62. stavaka 1. i 2. Ustavnog zakona jer je sudski postupak pravomoćno okončan...
6. Odredba članka 32. Ustavnog zakona propisuje da će Ustavni sud rješenjem odbaciti ustavnu tužbu u slučajevima kad ne postoje pretpostavke za odlučivanje o biti stvari.
7. S obzirom da iz navedenih razloga ne postoje pretpostavke navedene u člnaku 63. stavku 1. Ustavnog zakona za odlučivanje o podnesenoj ustavnoj tužbi, na temelju odredbe članka 32. Ustavnog zakona, riješeno je kao u izreci.”
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-118340
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF PIOTR KOZŁOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1961 and lives in Spała.
6. By a judgment of 14 April 2010 the Warsaw Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision by which the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego) had refused to declare the Łódź Governor’s decision of 13 November 2009 null and void.
7. On 12 May 2010 the judgment of 14 April 2010, together with its written grounds, was served on the applicant.
8. On 24 May 2010 the applicant filed a motion to be exempted from the payment of court fees and for the assistance of a legal-aid lawyer for the purpose of lodging a cassation appeal with the Supreme Administrative Court.
9. On 12 June 2010 the time-limit for lodging a cassation appeal expired.
10. On 13 July 2010 the Warsaw Regional Administrative Court dismissed the motion for exemption from court fees but granted the applicant the assistance of a legal-aid lawyer.
11. On 9 November 2010 the registry of the court requested the Warsaw Bar Association to assign a lawyer to the applicant’s case.
12. On 16 November 2010 the Bar Association assigned E.K.S to represent the applicant.
13. On 1 December the applicant received a letter from E.K.S. informing him that she had been appointed as his legal representative.
14. On 15 December the legal-aid lawyer, E.K.S., asked the applicant to pay the court fees for the cassation appeal and to return to her confirmation of the bank to transfer in order to attach it to the cassation appeal.
15. By a letter of 17 December 2010, served on the applicant on 20 December 2010, the lawyer informed the applicant that she had found no legal grounds on which she could draft a cassation appeal.
16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010.
17. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination.
18. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007).
19. In a number of decisions delivered before 2010 the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed the relevant caselaw of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of his or her assignment to the case. The court was of the view that the latter approach was far too rigid and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95907
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ÖZCAN KORKMAZ  AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 3. The applicants were all former members of the Turkish Armed Forces, who had been discharged for disciplinary reasons.
4. The applicants brought separate proceedings before the Supreme Military Administrative Court, requesting the annulment of their discharge.
5. The Supreme Military Administrative Court held, after hearing the parties (except in application no. 44058/04 where no hearing was held) and examining the confidential documents submitted by the Ministry of Defence by virtue of Article 52 (4) of Law no. 1602, that the applicants' discharges had been in conformity with the applicable laws. Consequently, it rejected their annulment requests. Neither the written opinion of the principal public prosecutor submitted to the Supreme Military Administrative Court prior to the hearings, nor the comments of the reporting judge which were entertained during the deliberations, were communicated to the applicants.
6. The applicants subsequently requested the rectification of the Supreme Military Administrative Court's decisions. Their requests were rejected on the following days:
- application no. 44058/04: 20 April 2004 (decision served on the applicant on 3 May 2004)
- application no. 19807/05: 26 April 2005
- application no. 26384/05: 2 February 2005
7. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008). In particular, Article 79 of Law no. 1602 on the Supreme Military Administrative Court provides as follows:
“Prosecutors shall examine the files assigned to them on behalf of the Principal Prosecutor and shall give their written reasoned opinions on [his or her] behalf within thirty days at the latest in proceedings [on the merits] ... [They] shall perform other tasks assigned by the President and the Principal Prosecutor...
Prosecutors may demand, through the President, all types of information and files from the relevant authorities.
Where deemed necessary by the Chambers and Assembly of Chambers, prosecutors may [be asked to] express their opinions orally...”
8. Provisional Article 2 of Law no. 1602 provides as follows in respect of the functions of the reporting judge:
“...Rapporteurs shall duly examine the cases assigned to them by the Presidents of the Chamber[s] and shall provide the Chamber or the Assembly of Chambers with the necessary explanations.
[The rapporteurs] shall give their opinion[s] and conclusions orally and in writing, shall write draft judgments, [and] draw up the necessary minutes. [They] shall perform other tasks assigned by the President or the President of the Chamber[s].”
VIOLATED_ARTICLES: 6


ITEMID: 001-127403
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1945 and lives in Bitola.
6. On 2 December 2002 an article was published in the daily newspaper Utrinski Vesnik entitled “The uncle was stealing, Jovan was standing guard” (Вујкото крадел, Јован чувал стража). A reference to the article appeared on the front page of the newspaper. The text of the article read, in so far as relevant, as follows:
“Risto Popovski, uncle of dismissed bishop J. and owner of the company Voskresenie from Bitola, together with seven boys, entered the courtyard of St. Spas church in Gevgelija and continued towards the church garage. The uncle started the engine of the tractor [inside] and drove it out of the courtyard, while his helpers warned the church housekeeper, who was upset, to step aside. During the violent disturbance, the dismissed bishop Jovan drove around waiting for the outcome...
... On the basis of an anonymous tip-off concerning the break-in, police stopped the tractor from leaving Gevgelija. The owner of Voskresenie, [the applicant], produced documents [showing] that Voskresenie owned the tractor! Only dismissed bishop Jovan knew how the tractor, which was a donation by Japan to Gevgelija’s church co-operative, happened to belong to a private company from Bitola ... (R.P.)”
7. The applicant submitted a letter to the newspaper the next day, in which he requested that it publish a retraction given the false allegations that he had stolen the tractor. In this connection he submitted a copy of a certificate issued by the Ministry of the Interior confirming that the tractor had been returned to him. He alleged that in the absence of a retraction, he would be perceived as a criminal in Bitola, a small town where people knew each other. The newspaper did not publish anything in this regard.
8. On 31 December 2002 and after several verbal requests, the applicant submitted a letter to the newspaper seeking information about the identity of the journalist (R.P.), whose initials appeared at the end of the article.
9. On 31 January (as alleged by the applicant) or 4 February 2003 (according to the Government) the applicant brought private criminal charges for defamation under sections 16(1) and (2) and 417(1) of the Criminal Proceedings Act, which was an offence punishable under section 172(2) of the Criminal Code (see paragraphs 27, 31 and 38 below). The complaint was made against B.T., editor-in-chief of the newspaper and R.P., the journalist responsible. The applicant claimed that the article had disgraced him and his family and said that he was seeking compensation for non-pecuniary loss, the amount of which was to be specified, as stated in the complaint, at the hearing.
10. On 31 March and 16 April 2003 respectively the Skopje Court of First Instance (“the trial court”) requested that the applicant complete the complaint by providing information about the identity of R.P., describing the actions imputable to the accused and submitting an original of the article. In reply, the applicant specified his complaint and informed the trial court that all his attempts to get the newspaper to reveal the identity of the journalist responsible had been to no avail.
11. During the proceedings the applicant was represented by a lawyer practicing in Bitola. The applicant alleged (without providing any evidence in support) that the first hearing had been scheduled for 23 September 2003; however, the parties agreed that between 10 October 2003 and 16 January 2007, the trial court had fixed twenty-three hearings, of which twenty were adjourned owing to the absence of either B.T., his representative or the journalist responsible. The trial court made several unsuccessful attempts to secure B.T.’s attendance with the assistance of the police. The applicant or his representative attended all the hearings scheduled.
12. At a hearing on 6 September 2005, the trial court requested that the newspaper reveal the identity of R.P., the presumed author of the article. In the absence of any reply from the newspaper, the trial court made the same request on 18 October and 24 November 2005, as well as on 24 January 2006, but they were never answered.
13. At a hearing on 7 March 2006, B.T. admitted that he had allowed the article to be published and requested additional time to identify the journalist who had written it. In a statement given on 25 April 2006, the applicant avowed that the article in question had contained defamatory allegations portraying him as a thief, which had had a significant negative impact on his personal and family life. In this connection he argued that his wife had closed her private medical practice since her office had been covered with writings describing them as “thieves” (арамии). He also alleged that his children had encountered difficulties in school due to the defamatory article.
14. At a hearing on 29 June 2006, B.T. stated that according to the newspaper’s records, the author of the text had been a certain K.J, who had confirmed as much in a telephone conversation with him. The court ordered that K.J. be summoned to the next hearing. His home address was to be obtained with the assistance of the police.
15. K.J. did not attend any of the four hearings scheduled between 19 September 2006 and 16 January 2007, despite the fact that the court had summoned him to do so. At the January hearing, the trial court stayed (запира) the proceedings because the prosecution had become time-barred. It also ordered each party to bear its own costs and expenses incurred in the proceedings. On 1 March 2007 the Skopje Court of Appeal upheld the judgment, which was served on the applicant on 24 March 2007.
16. During the proceedings, the applicant addressed the trial judge and the president of the trial court on two occasions, complaining about the way in which the trial had been conducted and alerting them to the possibility that the prosecution might become time-barred.
17. The relevant parts of the above Resolution read as follows:
“6. Anti-defamation laws pursue the legitimate aim of protecting the reputation and rights of others. The Assembly nonetheless urges member states to apply these laws with the utmost restraint since they can seriously infringe freedom of expression ...
8. The Assembly deplores the fact that in a number of member states prosecution for defamation is misused in what could be seen as attempts by the authorities to silence media criticism ...
13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms ...
17. The Assembly accordingly calls on the member states to:
17.1. abolish prison sentences for defamation without delay;
17.2. guarantee that there is no misuse of criminal prosecutions for defamation and safeguard the independence of prosecutors in these cases;
17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation ...”
18. Section 141 of the Obligations Act provides for the right to claim civil compensation.
19. Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently.
20. Section 187 provides for the right to claim compensation in cases regarding damage to reputation or the dissemination of false allegations.
21. Under sections 188 and 189, the court can order the publication of a judgment in which a human rights violation has been found, a retraction or any other form of redress. The court can also award just satisfaction irrespective of whether an award for pecuniary damage has been made.
22. Under section 365, a compensation claim becomes time-barred three years after the victim becomes aware of the damage and the person responsible. The absolute limitation period for compensation is five years after the occurrence of the damage.
23. The running of the limitation period is suspended if a claimant brings an action before a court or competent authority with a view to determining or securing his or her claim (section 377).
24. Under section 379, if a court rejects an action for lack of competence or on another ground unrelated to the merits of the claim, and if the claimant resubmits that claim within three months of the decision becoming final, the limitation period is considered to have been suspended by the first action. This applies if a court or competent authority advised the person concerned to pursue his or her claim by means of a separate civil action.
25. After the limitation period has been suspended, it starts running again and the time elapsed before the suspension is deemed to fall within the statutory limitation period. If the limitation period was suspended by a claim brought in the course of other proceedings, it starts running after settlement of the dispute (section 381(1) and (3)).
26. Under section 26(1)(1) of the Criminal Code, an editor-in-chief of a newspaper or other periodical publication could be held criminally liable for offences committed through that or other types of media if the identity of the author remained unknown until the end of the trial.
27. Under section 172(1) and (2) of the Criminal Code, any person who disseminated false defamatory allegations about another person could be subjected to a fine or six months’ imprisonment. Acts of defamation committed in public or through the use of media were punishable by a fine and by up to one year’s imprisonment.
28. Under section 184(1), defamation as stipulated in section 172 was subject to private prosecution.
29. Since November 2012, sections 172 and 184 of the Criminal Code (see paragraphs 27 and 28 above) have no longer been in force (Official Gazette no. 142/2012).
30. Under section 13 of the Criminal Proceedings Act 1997, in force at the material time, proceedings were supervised by a judge, who was responsible for conducting them without delay.
31. Under section 16(1) and (2) of the Act, criminal proceedings were instituted at the request of an authorised prosecutor. In respect of criminal offences subject to public prosecution, the authorised prosecutor was the public prosecutor whereas in respect of criminal offences to be prosecuted privately, the qualified prosecutor was a private prosecutor.
32. Section 96 provided that a civil-party claim (имотноправно барање) relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed them. The civil-party claim could concern monetary compensation, the restitution of property or the annulment of a legal act.
33. Under section 98(2) and (3), a civil-party claim could be brought in the course of the criminal proceedings before they were concluded at first instance. Such a claim had to be specified and supported with evidence.
34. Section 99(1) provided that the victim could withdraw (откажe) the civil-party claim until the end of the trial and pursue it by means of a separate civil action. Such a claim could not be repeated in the course of the criminal proceedings, unless otherwise provided by law.
35. Under section 100, the court could question the accused and examine the circumstances relevant for the civil-party claim, and had to collect evidence and consider everything that was relevant to decide it. If a decision on the civil-party claim would significantly delay the proceedings, the court would restrict itself to gathering evidence which would be impossible or significantly difficult to gather at a later stage.
36. Section 101 provided that the court was responsible for deciding a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation. In the latter case, the court could advise him or her to seek the remainder by way of civil proceedings. The same applied if evidence taken in the criminal proceedings was insufficient for the court to award any damages (section 101(2)).
37. In case of an acquittal or dismissal of the prosecution, if the proceedings were discontinued or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)).
38. Under section 417(1), criminal proceedings had to be instituted on the basis of either a charge brought by the public prosecutor or a private criminal complaint.
39. Sections 110 to 114 of the Criminal Proceedings Act 2010, which enter into force on 1 December 2013, provide for the same rules on civil-party claims as those specified in the 1997 Criminal Proceedings Act (see paragraphs 32-37 above).
40. Under section 11(3) of the Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal liability.
41. Section 200 lists grounds under which civil proceedings are stayed by operation of the law. Under section 201(2), the civil court may stay proceedings if the decision depended on whether n offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty.
42. The Law concerns civil liability for violation of the honour and reputation of physical and legal persons through insult or defamation. The law provides for freedom of expression and states that any restrictions thereon shall be in conformity with the European Convention on Human Rights and the Court’s case-law. Under the Law, the potential victim can seek publication of a retraction, a public apology or rectification. It further regulates the procedure regarding claims for compensation for pecuniary and non-pecuniary loss sustained as a result of the insult or defamation, as well injunctions the court can order if parties so request.
43. The Government submitted a copy of a final judgment of 21 December 2010, in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10).
44. They further provided a copy of a judgment in which the Supreme Court dismissed a legality review request (барање за заштита на законитоста) lodged against final judgments rendered in civil proceedings. It concerned a dismissal by the lower courts of an action for damages brought eight years after an alleged crime had been committed and after the criminal courts had acquitted the alleged offender. The Supreme Court found that the statutory limitation period for compensation claims relating to an alleged crime started to run from the moment the victim had lodged a civil-party claim in the criminal proceedings. Since the victim had not made such a claim, the fact that he had instituted the criminal proceedings had not suspended the running of the statutory limitation period concerning the compensation claim (Гзз.бр.35/2007 of 9 and 18 October 2007).
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
8-1


ITEMID: 001-4884
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: HOCHREINER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants are a couple. They are farmers residing in Linz, Upper Austria. In the proceedings before the Court they are represented by Mr. Josef Lindlbauer, a lawyer practising in Enns.
On 14 June 1968 the Federal Ministry for Defence (Bundesministerium fűr Landesverteidigung) issued a decree (Verordnung) under the Ammunition Depot Act (Munitionslagergesetz) declaring that parts of the applicants’ land fell within the danger zone (Gefährdungsbereich) of the Ebelsberg ammunition depot. It appears that certain restrictions on the use of the property at issue follow from such a declaration.
On 9 July 1969 the applicants lodged a request for compensation with the Linz District Court (Bezirksgericht).
On 21 April 1981 the Federal Ministry for Defence issued a second decree including two further plots of land belonging to the applicants in the danger zone of the Ebelsberg ammunition depot. The decree entered into force on 1 May 1981.
On 22 February 1989 the applicants, represented by counsel, specified their compensation claim as regards the plots of land affected by the 1968 decree and extended their claim as regards the plots of land affected by the 1981 decree.
On 28 November 1990 the Linz District Court dismissed the applicants’ compensation claim as regards damages resulting from the 1968 decree as well as regards damages resulting from the 1981 decree. Referring to the relevant provisions of the Ammunition Depot Act, the court noted that anyone claiming damages resulting from a decree under the said Act had to file a request for compensation within one year of the entry into force of the respective decree. As to the 1968 decree, the applicants had filed their compensation claim within the time-limit. However, they had implicitly waived their right to compensation as they had not pursued their claim for twenty years. As to the 1981 decree, the applicants had only filed their request on 22 February 1989. The court noted that the applicants had claimed to have made a supplementary request when lodging their first claim, in which they requested the court to take any changes of the danger zone into account and to take any necessary steps to compensate them for future damages. The court explicitly noted that it was irrelevant whether or not the applicants had filed the said supplementary request. Even if it had been made as claimed by the applicants, it did not fulfil the requirements of a compensation claim as is did not specify the plots of land concerned and the amount of compensation requested. The applicants had only made these submissions on 22 February 1989, i.e. outside the one year time-limit.
On 19 March 1991 the Linz Regional Court (Landesgericht) upheld the District Court’s decision as regards the refusal of compensation for damages resulting from the 1981 decree. However, it quashed the said decision as regards the refusal of damages resulting from the 1968 decree and referred the case back to the District Court. Subsequently, the applicants were granted compensation in this respect.
On 10 September1991 the Supreme Court (Oberster Gerichtshof) dismissed the applicants’ appeal on points of law. Referring to the relevant provisions of the Ammunition Depot Act, it noted that the claim to compensation only arises once the respective decree is issued. Thus, even assuming that the applicants had in 1969 filed a supplementary request relating to possible future damages, such a request was inadmissible. As the applicants failed to specify their compensation claim within one year of the entry into force of the 1981 decree, their request was out of time and had to be rejected.


ITEMID: 001-88266
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: COUTANT v. FRANCE
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Isabelle Coutant, is a French national who was born in 1953 and lives in Paris. She is a member of the Paris Bar. She was represented before the Court by Mr J.-L. Chalanset, a lawyer practising in Paris. The French Government (“the Government”) were represented by their agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The “Chalabi” trial, so named after one of the main defendants, Mohamed Chalabi, who was represented by the applicant, took place from 1 to 27 September 1998. In that case approximately 600 people, mainly of Algerian origin, had been arrested in so-called “Islamist” circles. Eventually, 138 people, including Mr Chalabi, were committed for trial in the Paris Criminal Court on charges of conspiring to commit acts of terrorism. The trial was held in a gymnasium at Fleury-Mérogis Prison, which was transformed into a courtroom for the occasion.
The organisation of the trial triggered strong protests, from the Paris Bar, inter alia, against “the organisation of a mass trial apparently incompatible with respect for the rights of the defence”. Many lawyers decided to withdraw from the trial altogether.
On 8 September 1998, on her client’s behalf, the applicant issued a press release, part of which was reproduced by the Agence France-Presse news agency in a report.
The press release read as follows:
“For Mohamed Chalabi
Through what is happening in the new law court at Fleury-Mérogis Prison, the public are finally beginning to realise the infamy of the procedures used by the special sections of the French justice system under the pretext of fighting terrorism.
Purely for the media and for political and demagogic reasons, many people have been branded terrorists whose political opinions differ from those of the powers that be.
But above and beyond what some people are learning in the final, public phase of the court hearings, the public must be told what goes on in secret behind the scenes of the political police and the special judges of the 14th section, whose motto – “Terrorise the terrorists” – was coined by Charles Pasqua. At the same time, he declared “I will cover up any blunders”.
The hunt was on and the so-called war on terror had a free hand to use terrorist measures against targets designated by those in power, for their own political interests or those of their foreign allies.
Police raids, for example, using methods worthy of the Gestapo and the Militia, at all hours of the day and night, against whole families, including children, even planting incriminating evidence on them (like the documents the DST slipped into Kraouche’s briefcase).
Not to mention brutality and torture during four days of police custody, under the supervision of judges from the special section.
Or holding people in complete solitary confinement, for months or years at a time, without any concrete charges against them other than being “capable of ...”, practically without any court hearing, much less any confrontation with their accusers, who in France remain anonymous, and the courts consider that normal!
And the trials themselves, a pure formality: the outcome is a foregone conclusion as the so-called terrorists are obviously a threat to public order; the volume of the case files shows how serious the accusations are, even if they contain nothing but charges fabricated by the investigating judges of the special section, in the form of questions designed to prompt replies that suit their theories.
In the face of such Islamophobic feeling, people with Arab blood naturally take pride of place among the obvious targets, with the aggravating circumstance that they belong to the Muslim faith and are therefore presumed guilty of the offence of holding terrorist religious opinions.
Mohamed Chalabi, a mujahid, believes only in the Tawhid, but he is entitled to demand justice, like the other victims of police and judicial terrorism.
Mr Alain Marsaud, a founding member and former chief of the 14th special section, considers the groundswell of revolt against the terrorist methods used by his teams as “an insult to justice in our country”.
More than an insult, the practices and the manipulation of the media by the special anti-terrorist sections of the police are a crime against public and individual freedoms.
It is high time France put a stop to this infamy.
Paris, 8 September 1998 Isabelle Coutant Peyre
Barrister
for Mohamed Chalabi”
On 8 October 1998 the Minister of the Interior, considering some of these remarks defamatory vis-à-vis the national police, lodged a complaint with the Paris public prosecutor for public defamation of a public authority, relying on section 48 (1) of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”).
The applicant alleged that as she, the accused, was a lawyer, and having regard to the exceptional circumstances of the trial in question, the courts should be broad in their interpretation of the immunity provided for in section 41 of the 1881 Act and allow her the benefit of it. She also argued that because of her profession it was her duty to denounce practices incompatible with the Convention and, that being so, that her press release had been issued in the context of the type of political debate and discussion of ideas accepted in the Court’s case-law.
In a judgment of 2 May 2000, the Paris Criminal Court decided that the offending statements were not covered by the immunity provided for in section 41 of the 1881 Act and, stressing the defamatory nature of the applicant’s remarks vis-à-vis the national police, found her guilty of public defamation of a public authority, an offence provided for in and punishable under sections 29 (1), 30, 42, 43, 47 and 48 of that Act. The applicant was fined 30,000 French francs (FRF) (approximately 4,575 euros (EUR)) and ordered to pay the token sum of one franc to the Ministry of the Interior. The court also ordered the publication, in three newspapers of the civil party’s choice, of a statement announcing the applicant’s conviction. The court’s findings read as follows:
“It is precisely because it is the lawyer’s duty, in exercising the rights of the defence, to denounce facts or a system in conflict with human rights publicly and forcefully, and because his function makes him particularly credible in the eyes of his fellow citizens, that a lawyer cannot afford, without proof or reservations, to voice extremely serious specific accusations against an administrative body – the National Police – essential to the democratic edifice, one of whose tasks is to protect people against terrorist activities;
In the instant case, however, [the applicant] did not confine herself to a general criticism of the judicial and police institutions or even the functioning of the fight against terrorism, but in a specific set of proceedings, made extreme accusations against the police of allegedly odious and inhuman practices, without being able to produce a shred of evidence; that being so, her plea of good faith cannot be accepted and the offence with which she stands charged is established ...”
The applicant appealed. In support of her appeal she relied, inter alia, on the legitimacy of the debate on the means used in the “fight against terrorism”, her duty as a lawyer “to speak out” and the principle of freedom of expression enshrined in Article 10 of the Convention.
In a judgment of 21 June 2001, the Paris Court of Appeal upheld the judgment concerning the applicant’s guilt but reduced the fine to FRF 10,000 (about EUR 1,525). The court declared, inter alia:
“Considering that denouncing the conditions of organisation of the trial of her client, Mohamed Chalabi, and others, and criticising the proceedings as a whole constituted a manifestly legitimate aim for [the applicant], a lawyer; she could perfectly well have fully attained that aim by developing arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels;
Considering that in making extremely serious and ignominious accusations, in a particularly offensive manner, against the police responsible for fighting terrorism, in making the worst kind of comparisons to stir up indignation, in deliberately casting aspersions on a whole body of public servants, [the applicant] deliberately expressed herself in partial and vindictive terms, without the slightest caution or moderation; she cannot be accorded the benefit of good faith.”
The applicant lodged an appeal on points of law. In her pleadings she relied on Article 10 of the Convention, alleging, inter alia, that the impugned conviction had violated her freedom of expression.
In a judgment delivered on 3 December 2002 the Court of Cassation dismissed the appeal. With regard to the applicant’s first submission, invoking the immunity provided for in section 41 (3) of the 1881 Act, it held that “as the impugned press release cannot be considered as a written document adduced before a court, the Court of Appeal applied the Law correctly”. Concerning her second submission, it declared:
“Given that, in rejecting the defence submission based on the provisions of the Convention and denying the lawyer the benefit of good faith, the judges stated that while denouncing the conditions of organisation of the trial concerning her client and criticising the proceedings as a whole constituted a legitimate aim for [the applicant], she could also have developed arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels; that the same judges considered that in making extremely serious and ignominious accusations against the police responsible for fighting terrorism, and making comparisons with the Gestapo and the Militia of the Vichy regime the lawyer deliberately expressed herself “in partial and vindictive terms”, without the slightest caution or moderation, casting aspersions on the whole police force;
Given that in the light of those considerations the Court of Appeal justified its decision;
First of all, when a lawyer does not have the benefit of the immunity provided for in section 41 of the Act of 29 July 1881, he is not absolved, when expressing himself on his client’s behalf, of the caution and circumspection necessary to the acceptance of the defence of good faith;
And secondly, while freedom of expression is protected by Article 10.1 of the European Convention for the Protection of Human Rights, it may, by virtue of the second paragraph of Article 10, be subject to restrictions and penalties in the cases determined by the Act of 29 July 1881; that is the purpose of section 30 of that Act, which provides for a penalty necessary in a democratic society for the prevention of disorder and the protection of the reputation of the public authorities, in this case the national police;”.
The relevant provisions of the Freedom of the Press Act of 29 July 1881, as amended, in force at the material time, read as follows:
“It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be a punishable offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters.”
“Defamation of the courts, the army, navy or air force, State institutions and public authorities by any of the means listed in section 23 shall be punishable by a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only.”
“Neither the accurate reporting in good faith of court proceedings nor statements made or documents produced before the courts shall give rise to proceedings for defamation, insult or contempt.
However, the courts examining the merits of the case may order the withdrawal of the insulting, offensive or defamatory statements and order those responsible to pay damages.
Acts of defamation alien to the case may, however, give rise to prosecution or to civil action by the parties when the court has left that course open and, in any event, to civil action by third parties.”


ITEMID: 001-5796
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BRADY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1946 and living in Prudhoe. He is represented before the Court by Mr D. Johnson, a solicitor practising in Newcastle upon Tyne.
The facts of the case, as submitted by the applicant, may be summarised as follows.
James Frederick Brady, the son of the applicant, died on 24 April 1995 having been shot by an armed police officer at Westerhope Excelsior Working Men’s Club (‘WEWM’) in Newcastle. The background to the shooting is described as follows, the details largely taken from the evidence given at the inquest.
At approximately 7.45 p.m. on 23 April 1995, an Inspector Fullerton contacted Police Superintendent Jean Austin, with information which he considered to be ‘reliable’ and which had been received from a registered informant. The applicant claims that DC Reay of the Crime Team South of Northumbria police was aware of this information on 19 April, but only passed on the information to a more senior police officer on 23 April 1995. The information was that Alan Barker and the deceased, James Brady, were planning a ‘tie-up’ robbery that evening at the WEWM after midnight. The plan was forcibly to enter the residential steward’s house adjacent to the club and, with the aid of an imitation firearm, to tie-up the steward’s father and cause the steward to open the safe and hand over the cash contents. On the strength of this information, Superintendent Austin decided to target a Firearms Operation on the Westerhope club that evening with the purpose of protecting the occupants of the steward’s house, protecting the officers involved in the operation and effecting the arrests of those involved in the planned offence.
Superintendent Austin thereafter held several briefings with the firearms unit and was assisted by two senior trained firearms officers, PS Palmer and PS Davidson. The first briefing was at 9 a.m. The police officers on the operation were instructed to treat all imitation firearms as if they were real firearms unless and until proven otherwise. In particular, Superintendent Austin pointed out that Brady had received training in the army, and read out the record of Alan Barker which detailed that a sawn-off shotgun had been found in the bathroom of his house.
By the time of the first briefing, the police were in receipt of further information about the robbery which was planned. They were now aware that James Brady, Alan Barker and one other man planned to enter the steward’s house via a downstairs kitchen window, before proceeding upstairs to commit the robbery. The imitation firearm which they would be carrying would possibly be a starting pistol. The amount of money involved was estimated to be between eight and ten thousand pounds.
The police discussed the following options at the briefing which was tape recorded:
A – an armed ambush inside the club. This would involve placing 5 armed police officers at various vantage points inside the club. When the last intruder had entered the kitchen window and stepped onto the floor, the ambush team leader (PC Davidson) would call a ‘strike’. Accordingly, the lights of the premises would be switched on together with a shout of the warning ‘stand still armed police’. The armed officers in the premises would come from behind closed doors of the kitchen with weapons drawn and would stop and apprehend the intruders. A second team of firearm officers (the backup team) would arrive outside the premises to prevent any intruders escaping from the premises. The backup team would move on the strike being called from within the house. It was estimated that they were less than a minute away from the scene.
B – a ‘blow-out’ consisting of swamping the club and the surrounding area with a high police presence. This high profile policing would be intended to have the effect of discouraging the intruders from making entry at all, thereby preventing the robbery and protecting the safety of the steward and his father.
C – arresting the intruders at their home addresses prior to the commission of the robbery.
Options B and C were rejected. Option B was rejected because the Superintendent considered that even though it would prevent the robbery that night, the suspects may return at a later date or decide to rob another club. Further, it was decided that it was better to pick up the men at night and get them off the streets as they were dangerous and carrying firearms. Option C was rejected because of the possibility that there would not be sufficient evidence to mount a successful criminal prosecution against the potential intruders.
At 10.45 p.m., a briefing was held with the firearms officers, at the conclusion of which the guidelines for the use of minimum force were read out.
Covert surveillance officers were deployed along the route to the club. The backup team of police officers was on standby in the near vicinity of the club, and armed officers took their place inside the club before midnight on 23 April 1995. All the police officers were in their places by midnight.
At 2.30 a.m., four people, including James Brady and Alan Barker, were seen to make their way along the route to the club. They were wearing dark clothing, gloves and ski-masks. They waited outside the club for 50 minutes before making an entrance, during which time they were observed.
The applicant claims that the officers inside the club were made aware via radio communications of exactly what was going on. They were informed that there were more potential intruders than originally expected (four instead of the original two or three).
At approximately 3.20 a.m. the intruders broke in via the ground floor window as expected. The team leader PC Davidson called the strike when the third person had entered the kitchen window, and not when all the intruders had entered the kitchen, as planned. He explained in his statement that he did not consider it safe to allow all the intruders to enter into the hallway. He called the strike as the door from the kitchen to the hallway was pushed three quarters open. He switched on the lights and shouted “Armed police. Stand still.” He heard other officers shouting “Armed police.”
One of the police officers, PC Bell, who was meant to have been standing by a door just off the kitchen where the intruders would be entering was not in position. He later gave a statement to the police to the effect that the team leader had called the strike before he and his colleague Officer A were in position.
Officer A and PC Bell said that when they entered the kitchen, the fourth intruder was still entering the window. Officer A said that he saw a threatening movement from James Brady that he interpreted as a threat to his life. At the subsequent inquest, Officer A said that he thought Mr Brady had a gun in his hand which he pointed at the officer. The officer said he discharged his firearm in self-defence, thereby killing James Brady. PC Bell also testified that he considered the deceased to be a threat. The autopsy revealed that the bullet entry wound was on the right side of the chest and that the bullet travelled in a downwards direction to exit from the chest wall on the left side. The pathologist who conducted the post mortem stated that this was consistent with Officer A’s description of the deceased as turning towards him at the moment at which he fired.
A small black torch was found under or near the deceased’s body. Alan Barker in his statement later to the police said that James Brady had been carrying a small black torch when he entered through the kitchen window and had switched it off before the police entered the kitchen.
The deceased’s accomplices, upon hearing the shot, all fled from the club premises. None were caught at the scene. The backup team failed to arrive at the club to prevent any of the intruders escaping from the scene.
The deceased’s accomplices were arrested the next day. The police found an imitation firearm near the scene (a starting pistol), which was incapable of firing live rounds.
The inquest into Mr Brady’s death took place at the Newcastle Coroners Court between 7 September to 24 September 1998. Several police officers gave evidence, including Officer A and PC Bell who were the only persons present when the shooting occurred. Both testified that they considered the deceased to be a threat because of a dark object in his right hand. Although they considered it to be a firearm, it later transpired that it was a small black torch.
Officer A considered that he had only seen one intruder in the kitchen, even though there had in fact been 3 intruders. Further, he over-estimated the distance between himself and the intruder, could not recall how many times a colleague had shouted and could not recall when certain lights were put on.
PC Bell thought that the shot that was fired had been discharged by one of the intruders; he described the sound as a ‘phut’ rather than as a loud bang.
Evidence was adduced during the inquest to the effect that the police had received some total darkness training and ‘torchlight training’ to aid them to assess danger in restricted lighting conditions. However, Professor David Alexander, Professor of Mental Health at the Medical school of Aberdeen University, took part in a reconstruction of the circumstances surrounding the shooting and testified that he had no difficulty in understanding why Officer A fired his weapon. In his view, the combination of high level stress and low illumination led to a number of genuine misperceptions by the subject officer under the syndrome known as ‘visual perception distortion’. The officer’s genuine concerns about his safety (from his knowledge of the potential use of firearms by the intruders) also contributed to this misperception.
The jury returned an open verdict and therefore failed to find definitively that the deceased had been unlawfully killed by Officer A.
In a letter dated 20 December 1999, the Crown Prosecution Service informed the applicant that it had been decided not to prosecute Officer A on the basis that there was insufficient evidence of any crime having been committed. It also found no basis for pursuing any other officer for gross negligent manslaughter or misfeasance in public office.
Section 3 of the Criminal Law Act 1967 provides inter alia:
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.”
Self-defence or the defence of others is contained within the concept of prevention of crime (see e.g. Smith and Hogan on Criminal Law).


ITEMID: 001-81944
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SHANKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1934 and lives in Poltava. He is a former manager of the State Company “Znamya” (the “Company”; Державне підприємство «Виробниче об'єднання «Знамя»).
5. In 1996 the applicant was convicted and sentenced for embezzlement of the Company funds and his conviction became final. Since then the applicant has unsuccessfully attempted to have the proceedings re-opened and the conviction repealed.
6. In August 1996 the Poltava Regional Prosecutors' Office, acting on behalf of the Company, brought a civil claim against the applicant for compensation of damage caused by his offence.
7. The hearings began in March 1998. Until February 2000 the court scheduled some thirteen hearings with intervals ranging from one week to six months. Seven hearings were adjourned on account of the applicant's absences or requests and four hearings on account of the absence of both parties. According to the applicant, most of his absences were attributable to defective notifications about the date of a hearing. The Government did not comment on this issue.
8. On 17 February 2000 the District Court allowed the claim and awarded the Company 96,682 hryvnyas against the applicant. The applicant appealed.
9. On 20 May 2000 the District Court returned the applicant's appeal as “not lodged” on account of his failure to pay the court fee. The applicant appealed, seeking to be exempted from the payment.
10. On 12 October 2000 the local municipal council exempted the applicant from paying the court fee and on 16 November 2000 the Regional Court declared his appeal admissible.
11. On 7 December 2000 the Regional Court quashed the judgment of 17 February 2000.
12. Between January 2001 and May 2002 the District Court scheduled three hearings (in April and November 2001 and March 2002). One hearing was adjourned on account of the judge's sickness and two other hearings on account of the parties' failure to appear.
13. On 22 May 2002 the District Court left the claim without consideration due to the parties' second failure to appear for the hearings. This decision was not appealed against within the statutory time-limit and became final.
14. On 11 December 2002 the Prosecutor's Office applied to the District Court for leave to appeal out of time against the decision of 22 May 2002 maintaining, that it had not been informed of this decision within the time-limit for lodging an appeal. The application was granted on 17 January 2003.
15. On 15 May 2003 the Regional Court allowed the appeal and re-opened the proceedings, having found that the parties had not appeared as the District Court had not duly notified them about the dates of the hearings. The applicant lodged a cassation appeal against the decision to re-open the proceedings.
16. On 20 September 2004 the Supreme Court rejected the applicant's cassation appeal.
17. Between October 2004 and July 2005 the District Court scheduled three hearings (one in May and two in July 2005).
18. In July 2005 the plaintiff dropped the claims and on 14 July 2005 the proceedings were terminated.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57771
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF CAMPBELL v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: John Freeland;R. Pekkanen
TEXT: 8. On 10 October 1984 the applicant was convicted of assault and murder at the High Court, Glasgow, and was sentenced to life imprisonment. One of the offences involved setting fire to the front door of a flat thereby killing six of the nine members of one family asleep there at the time. A recommendation was made by the trial judge that he should serve not less that twenty years’ imprisonment in view, inter alia, of the appalling nature of the crimes and his previous criminal record which indicated that he was "a ruthless man of violence".
Mr Campbell was initially classified as a Category B prisoner, the minimum classification for any prisoner either sentenced to three or more years’ imprisonment or convicted of a crime involving serious violence. Following an incident at Peterhead Prison he was charged with a number of offences and was re-classified as a Category A prisoner, the classification pertaining to the group of inmates requiring the highest degree of security. These charges were later abandoned by the Crown but he remained a Category A prisoner from 4 November 1985 until 9 March 1988. Since then he has been a Category B prisoner again.
He has been detained in, inter alia, Perth and Peterhead Prisons which are situated at a considerable distance from the offices of his solicitor in Glasgow. He is now serving his sentence in the Special Unit in Barlinnie Prison, Glasgow.
9. Since his imprisonment the applicant had been advised by his solicitor in respect of:
1. an action for damages against the Secretary of State for Scotland for injuries sustained following an assault by a prison officer in Peterhead Prison on 3 November 1985;
2. an action for damages against the Secretary of State for Scotland in respect of an infestation of lice while in the hospital wing of Peterhead Prison in November 1985;
3. a potential claim against the Secretary of State for Scotland for damages in respect of an alleged assault by a prison officer during an incident in Barlinnie Prison on 25 April 1987;
4. a possible prosecution for an alleged assault on a prison officer arising out of the same incident;
5. a denial of communication with his solicitor following the said incident;
6. the denial of the applicant’s right to full and unrestricted correspondence between himself and his legal advisers on all of the above matters;
7. an application (application no. 12323/86) to the European Commission of Human Rights ("the Commission") concerning inter alia his solitary confinement and access to his solicitor while in custody in hospital; and
8. the application with which the present case is concerned.
10. On 16 September 1985, the applicant’s solicitor wrote to the Governor of Peterhead Prison, asking that all correspondence between him and his client should pass without interference. After having discussed the matter with the applicant, the Deputy Governor wrote on 23 September 1985 to the applicant’s solicitor indicating that outgoing mail from the applicant to his solicitor concerning his petition to the Commission, if properly marked so as to indicate that it concerned the Convention, would not be opened.
11. In a further letter dated 4 October 1985 to the Governor of Peterhead Prison his solicitor claimed that the letter of 16 September had not been answered in its entirety as he had been given no assurance by the Deputy Governor that letters to Mr Campbell would not be subject to interference. On 15 October 1985 the Deputy Governor replied that incoming mail from solicitors concerning an application to the Commission, suitably identified by placing (a) the name of the solicitor’s firm and (b) the initials ECHR in a prominent position on the envelope, would be opened in the presence of the prisoner and handed to him unread (see paragraph 25 below). The Deputy Governor explained that this arrangement would not apply to solicitors’ correspondence about matters other than the application to the Commission.
12. On 24 October 1985 the applicant’s solicitor wrote to the Scottish Home and Health Department ("SHHD"), the Government department concerned with the administration of prisons in Scotland, again requesting that all of his correspondence to the applicant should be allowed to pass to him without interference.
13. On 29 October 1985 the applicant petitioned the Secretary of State for Scotland complaining about censorship of his correspondence with his solicitor. In their reply of 19 June 1986 to this and other petitions the SHHD advised the applicant that his solicitors had been informed by the Deputy Governor, Peterhead, on 15 October 1985 that correspondence "in respect of ECHR procedures" should be clearly marked to ensure privacy but that any other correspondence between an inmate and his legal advisers was subject to scrutiny under standing instructions to prison establishments.
14. On 16 June 1986 the SHHD wrote to the applicant’s solicitor confirming the arrangements for solicitors’ correspondence concerning matters before the Commission but reaffirming that other correspondence was still subject to the normal rules which provided for the opening and reading of all letters to and from a prisoner (see paragraphs 19-22 below).
15. On 19 June 1986 the applicant again complained that incoming mail from his solicitor was scrutinised. He repeated these complaints on 27 June 1986. In these petitions, the applicant also drew the attention of the authorities to the fact that correspondence to and from the European Commission of Human Rights was being opened. The reply from the SHHD, received by the applicant on 15 July 1986, referred to the existing arrangements as discussed in correspondence between his solicitor and management at Peterhead Prison in September and October 1985.
In a petition dated 4 November 1986, the applicant again complained that all legal correspondence apart from letters relating to the Convention was being opened. The reply to this petition and others received by him on 24 July 1987 stated, inter alia, that his correspondence was being dealt with in accordance with Prison Standing Orders. However, he was advised that the terms of the existing Standing Orders were under review in this respect.
In a further petition dated 30 December 1986 he complained that a letter from a firm of solicitors was opened and photocopied before he received it.
16. In a letter dated 16 June 1987 to the applicant’s solicitor, the SHHD confirmed that the rules relating to prisoners’ correspondence were under review in the light of the friendly settlement reached in the case of McComb (application no. 10621/83, report of the Commission dated 15 May 1986 - see paragraph 23 below). The applicant’s solicitor was advised that, pending the outcome of discussions between the SHHD and the Law Society of Scotland, the current rules would continue to apply to correspondence between a prisoner and his legal adviser; in particular, only correspondence concerning matters before the Commission would be allowed to pass unopened.
However, it is established that at least some of the correspondence from the Commission had been opened. The applicant referred to letters dated 20 June 1985, 17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986, 22 May 1986, 7 January 1987, 4 June 1987, 18 August 1987, 2 October 1987, 7 October 1987 and 3 November 1987 from the Commission which allegedly show the prison censor’s mark on the top right hand corner. The Government accepted that five of these letters (17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986 and 18 August 1987) were opened. They considered that three other letters (20 June 1985, 22 May 1986 and 7 January 1987) may have been opened but that it was not possible to identify the markings. Of the remaining letters the Government stated that there were no identifiable marks and thus no opinion could be expressed as to whether they had been opened or not.
17. The applicant’s solicitor applied for legal aid to bring civil proceedings in respect of the interference with the applicant’s correspondence. Legal aid was refused on 7 October 1986 by the Supreme Court Legal Aid Committee on the ground that the applicant had no probable cause of action. The Committee also noted that the applicant was not being denied visits from his legal advisers and that he had not indicated that he was unable to give instructions verbally to his advisers. The applicant’s appeal against this decision was refused on 5 December 1986 by the Legal Aid Central Committee of the Law Society of Scotland.
18. At the relevant time the prison system in Scotland was governed by the Prisons (Scotland) Act 1952 ("the 1952 Act"), which has since been repealed. Similar provisions were re-enacted in the Prisons (Scotland) Act 1989.
Sections 1 and 3 of the 1952 Act vested general control and superintendence over prisons in Scotland in the Secretary of State for Scotland. He was empowered, by section 35 (1), to "make [by statutory instrument] rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein".
In exercise of his powers under section 35 (1), the Secretary of State made the Prison (Scotland) Rules 1952 ("the Prison Rules"), which have been amended from time to time and which are published. He also, in supplement of the Prison Rules and by virtue of his general jurisdiction over prisons and of various powers conferred by the Prison Rules themselves, issues instructions to the Governors of prisons in the form of Standing Orders and administrative circulars. The Standing Orders relevant to correspondence are also published. Every prisoner, on his admission to prison, is given or given access to a booklet summarising the Rules and Standing Orders.
19. Communications between prisoners and their legal advisers and others are governed principally by Rule 74 of the rules. Rule 74 (4) provides that - subject to one exception which is not relevant in the present case - "every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose".
The validity of Rule 74 (4) was judicially considered and upheld in the case of Leech v. Secretary of State for Scotland (judgment of the Outer House of the Court of Session of 26 October 1990) which concerned the reading of a prisoner’s correspondence with a legal adviser relating to potential legal proceedings. The Court considered inter alia that Rule 74 (4) could not be described as irrational since "it cannot be supposed that there are no sound grounds for requiring control over correspondence involving a prisoner even when it takes place between him and his legal adviser".
20. In the case of remand prisoners, Rule 124 (2) provides that they shall be allowed to write to their legal advisers. Under Rule 124 (3) any confidential written communications prepared by such a prisoner as instructions for his legal adviser may be delivered to the legal adviser without being examined by any officer of the prison unless the Governor has reason to suppose that it contains matters not relating to such instructions. Under Rule 127 this facility is also available to convicted prisoners who are the subject of further charges. Similar provisions apply under Rule 132 (2) to an appellant in connection with his appeal.
21. These rules are supplemented by Standing Order M, which deals in detail with communications between prisoners and others. Copies of this Standing Order are available to prisoners and the public. Standing Order Ma1 (a) sets out the purpose of examination of the correspondence, namely to prevent its use to plan escapes or disturbances or otherwise jeopardise the security of the establishment and to satisfy other reasonable requirements of prison administration. Under Standing Order Ma1 (d), when correspondence is examined or read this is to be done as quickly as possible.
22. Most correspondence with legal advisers is governed by Standing Order Ma6 (e) which concerns general correspondence. Under Standing Order Ma7 such correspondence:
"may not contain the following:
(a) Escape plans, or material which if allowed would jeopardise the security of a prison establishment.
(b) Plans or material which would tend to assist or encourage the commission of any disciplinary offence or criminal offence (including attempts to defeat the ends of justice by suggesting the concoction or suppression of evidence).
(c) Material which could jeopardise national security.
(d) Descriptions of the making of any weapon, explosive, poison or other destructive device.
(e) Obscure or coded messages which are not readily intelligible or decipherable.
(f) Threats of violence or of damage to property likely to induce fear in the recipient.
(g) Blackmail or extortion.
(h) Indecent or obscene material.
(i) Information which would create a clear threat or present danger of violence or physical harm to any person.
(j) Complaints about prison treatment which the inmate has not yet raised through the prescribed procedures ...
(k) Material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) ...
(l) Material constituting the conduct of business activity ...
(m) In the case of an inmate against whom a deportation order is in force, material constituting or arranging any financial transaction ...
(n) In the case of an inmate in respect of whom a receiving order has been made or who is an undischarged bankrupt, material constituting or arranging any financial transaction ..."
23. Following the friendly settlement of 15 May 1986 in the case of McComb v. the United Kingdom (application no. 10621/83, report of the Commission, Decisions and Reports (DR) no. 50, pp. 81-89), new procedures dealing with correspondence between a prisoner and his legal adviser in respect of legal proceedings which have been instituted came into force on 21 March 1988, as set out in Standing Order Ma8:
"Correspondence with a legal adviser about legal proceedings to which an inmate is already a party or, about a forthcoming adjudication, may not be read or stopped unless the Governor has reason to suppose it contains other material. Such a letter may be examined for illicit enclosures, but should only be opened for that purpose in the presence of the inmate by whom it is sent or to whom it is addressed.
Other correspondence with a legal adviser may be read and may not contain anything specified in Standing Order Ma7 (a) to (i) and (k) to (n). Such correspondence may not be stopped on the grounds that it contains material prohibited by Standing Order Ma7 (j) unless it is clear that the inmate is not seeking legal advice but is writing for some other purpose."
The procedure to be followed in respect of such correspondence was described in a Circular issued to Prison Governors on 26 February 1988. The solicitor is required to send such mail within a sealed envelope bearing the words "Legal Proceedings" and his signature. This envelope is placed within another envelope addressed to the Prison Governor. The inner envelope is passed unopened to the prisoner.
When a prisoner is not yet a party to legal proceedings, but is contemplating bringing them, all mail is liable to be opened and read. In practice, mail is not opened at low-security "open prisons" or at the very high-security "Special Units". In other prisons the letters of prisoners in high-risk categories are those most frequently opened.
24. Standing Order M also contains specific provisions relating to correspondence with the European Commission or Court of Human Rights or with a legal adviser in connection with a petition to the Commission or pending proceedings before the Commission or the Court. Under Standing Order Ma10 such correspondence may not contain material prohibited under Standing Order Ma7 (a) to (c) or (e) (see paragraph 22 above).
25. Further general provisions relating to the Convention are to be found in Standing Orders Ma1 (b) and Mf. In particular, Standing Order Mf7 expressly provides that correspondence between an inmate and his legal adviser about a petition to the Commission or proceedings resulting therefrom should not be read unless the Governor has reason to suppose that the correspondence contains other matters.
26. The Government state that, in practice, as regards correspondence between prisoners and the Commission, outgoing letters if sealed will normally go unopened. Incoming letters from the Commission are opened; the contents are examined to confirm that they are what they purport to be but they are not read; they are thereafter issued promptly to the prisoner.
VIOLATED_ARTICLES: 8


ITEMID: 001-82391
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: YILDIRIM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Nesrin Yıldırım, is a Turkish national who was born in 1964 and lives in İzmir. She was represented before the Court by Mr A. Gültekin, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not appoint an agent to represent them.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 December 1999, during the night, the applicant went into labour and was taken to the İzmir Atatürk Training and Research Hospital. Just after her arrival at the hospital at 5:30 a.m., the doctor at the hospital examined her and informed her that the baby was suffering from a high degree of asphyxia. Thus, she had to undergo a caesarean operation. Meanwhile, her relatives carried out the necessary formalities for her stay at the hospital.
The operation started at 5.45 a.m. and the baby was born at 6.07 a.m. According to the birth card, the baby’s weight was 4 kg and his height was 53 cm. When the baby was born, he was not breathing. The team of anaesthetists carried out the necessary reanimation process on the body by way of intubation but, despite many attempts, he could not be revived. The relevant hospital document showed that the baby had been suffering from respiratory distress and had consumed his faeces whilst in the mother’s womb. The reason for death was foetal distress.
Approximately five hours after the birth, a nurse had appeared outside the operating theatre holding the corpse of a baby wrapped in a cloth and had told the applicant’s husband that his baby had died. The corpse was taken to the hospital morgue.
On 30 December 1999, according to a document prepared that day, the applicant was discharged from the hospital of her own free will. The authorities submitted that, upon leaving the hospital, neither the applicant nor her husband expressed their intention to take the corpse from the morgue for burial. Neither did the applicant pay the hospital expenses which were assessed at 81,950,000 Turkish liras ([TRL]; approximately 150 euros [EUR] at the material time).
On 7 January 2000 the hospital authorities wrote to the Directorate of Graveyards, requesting that they carry out the burial procedure.
On an unspecified date, the applicant and her husband allegedly requested the hospital authorities to hand over the corpse of the baby. In response, the authorities told them that they had waited until they had had four or five corpses of babies before burying them all.
On an unspecified date, the applicant and her husband applied to the General Secretariat of the President’s Office (Cumhurbaşkanlığı Genel Sekreterliği), asking for information. On 5 June 2001 the applicant’s representative filed a complaint with the Izmir Public Prosecutor’s Office, requesting a preliminary investigation into the incident.
On 8 June 2001 the Izmir public prosecutor wrote a letter to the Konak District Governorship’s Office, seeking permission for the prosecution of the responsible medical staff of the hospital according to Law no. 3483 (the Law on the Prosecution of Civil Servants and Public Officials). On 12 June 2001 the Konak District Governorship instituted an investigation.
On 29 June 2001 a medical expert was appointed to prepare a preliminary report. After collecting all the necessary evidence, such as the patient’s files and the statements of all relevant persons, the expert concluded as follows: There had been six doctors, one anaesthetist and a midwife from the obstetrics department who had taken part in the medical procedure. A doctor named Selçuk, who was mentioned by the applicant, had never worked at that particular obstetrics department. There had been no other stillbirth case on the same date and none of the babies born that day had been exceptionally big, as alleged by the applicant.
The applicant’s neighbours had also been heard as witnesses. Ö.B. stated that he had driven the couple to the hospital at the request of the applicant’s husband. Later that day, he had returned to the hospital where the applicant’s husband had told him that the baby had died and that he had seen its purple foot, but that his wife was well. Then the applicant’s husband and Ö.B went to see the doctor, who told them that they could take the corpse whenever they wished. However, the applicant’s husband had asked if the hospital authorities could carry out the burial as, financially, he was unable to do so at that stage. The doctor had said to the applicant’s husband that the hospital could bury the corpse when there were a few more unclaimed babies who had died. The husband had accepted this. Ö.B. added that three days later the applicant had “escaped” from the hospital to avoid paying the medical expenses and that she and her husband had stayed at home with the curtains closed for a while. The witness statement of Ms I.O., who was Ö.B.’s partner, was the same.
Consequently, the preliminary report of the medical expert established that the applicant and her husband had not taken delivery of the corpse, knowingly and willingly, in order to avoid the hospital and burial expenses. The corpse had been kept in the hospital morgue for longer than the statutory period; however no claim had been made. It was then buried in the Karşıyaka Doğancay Cemetery by the authorities. Therefore, the medical staff had not committed any offence, as alleged by the applicant; nor had they been at fault during the entire incident.
On 3 July 2001 the Secretariat of the President’s Office forwarded the applicant’s petition to the Ministry of Health. On 23 July 2001 the applicant and her husband filed an additional petition with the Izmir Public Prosecutor’s Office. They claimed that they had doubts about the death of their baby, as the corpse had not been handed over to them. They requested that the grave be opened and that a DNA examination be conducted. On 27 July 2001 the Ministry of Health sent a letter to the Izmir Governorship, accompanied by the applicant’s petition to the President’s Office, requesting an investigation into the applicant’s allegation.
On 3 August 2001 the Konak District Governorship, after having examined the abovementioned expert report and the file, decided that no prosecution should be brought against the medical staff of the Obstetrics Department of Atatürk Hospital. The decision concluded that, on 28 December 1999, the applicant had been given a general anaesthetic in the course of a caesarean operation. After the delivery, the medical team had carried out the necessary reanimation process on the baby, which had been unsuccessful. It further stated that there was no other stillbirth case on that day; nor had a live baby been swapped with a stillborn. The family had refused to take the corpse in order to avoid the hospital expenses.
The applicant challenged this decision before the İzmir Regional Administrative Court. On 28 November 2001 the Regional Administrative Court rejected the applicant’s appeal and upheld the decision of the District Governorship. On 2 January 2002 the applicant’s representative was notified of this decision.