ITEMID: 001-98774
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VLADIMIR KOZLOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1962 and lives in Moscow.
6. On 11 September 1996 Mr Z., the applicant's business partner, was killed.
7. In 1997 Mr Zh. and 17 other persons were charged as an organised group with numerous counts of robbery and murder, including the murder of Mr Z. and the planning of the murder of Ms A., Mr Z.'s girlfriend.
8. On 9 April 1997 the applicant was arrested. He was charged with aiding and abetting the murder of Mr Z. and the planning of the murder of Ms A. The applicant remained in custody pending investigation and trial. His case was joined to the case of Mr Zh. and the others. The applicant's numerous requests to disjoin the cases were rejected both by the prosecutor and the court.
9. On 24 March 1999 the preliminary investigation was completed and the case file was transferred to the Moscow City Court for consideration.
10. On 6 April 1999 the Moscow City Court scheduled the trial for 20 April 1999.
11. The trial lasted from 6 April 1999 until 18 July 2001. The court held 82 hearings. On 36 occasions the court adjourned the proceedings on account of the illness of some of the defendants, a quarantine in place in their detention facilities or their lawyers' failure to appear. The proceedings were interrupted twice on account of a security threat in the courthouse. On six occasions the proceedings were adjourned on account of clashes in the judge's schedule, his illness or the authorities' failure to transport the defendants to the court house.
12. On 18 July 2001 the Moscow City Court found the applicant guilty as charged and sentenced him to eleven years' imprisonment.
13. From 20 July 2001 until 15 October 2002 the defendants studied six volumes of the minutes of the court hearings.
14. On 10 September 2003 the Supreme Court of the Russian Federation heard the case on appeal. The court upheld the applicant's conviction in substance and reduced his sentence to ten years' imprisonment.
15. From 26 November 1997 to 17 August 2001 the applicant was detained in Lefortovo remand prison. He was held in a cell measuring 8 sq. m and had to share it with one or two other inmates. There was no hot water or shower facility in the cell. A partition separating the toilet from the living area of the cell was installed only in 1999.
16. On 17 August 2001 the applicant was transferred to remand prison no. IZ-77/3 where he was detained until October 2003.
17. According to the applicant, the cell where he was detained measured 33 square metres and was equipped with twenty-four bunk beds. The minimum number of inmates detained with the applicant at any one time was twenty-three. In August 2001 the cell housed forty inmates; that number had increased to forty-seven by the end of the year. The inmates took turns to sleep due to the lack of beds. By the beginning of 2003 twenty-three inmates were kept in the cell. The cell did not have any ventilation. It was stiflingly hot in the summer and very cold in the winter. Most of the inmates smoked and the applicant, a non-smoker, was exposed the tobacco smoke of others. The cell was infested with cockroaches and lice. Disinfection of the cell was performed once every three months and was to no avail. The television and the light were constantly on. Window panes were installed only in late 2002. The toilet was elevated from the floor by 0.5 metres. It was separated from the living area of the cell by a partition measuring one metre in height. The person using the toilet could be seen by both the inmates and the guards watching the inmates through the peep-hole in the door. The dinner table was some four metres away from the toilet. On several occasions HIV-infected inmates were placed in the cell. The applicant was allowed to take a 20-minute shower once a week. On one occasion between December 2001 and January 2002 the applicant did not have the opportunity to take a shower for three weeks. He was allowed to be outside for approximately one hour per day. The meals were of poor quality.
18. According to the Government, at all times the applicant was afforded at least 4 sq. m of living space. In particular, the Government provided the following data concerning the cell measurements:
19. Each cell had a window measuring 0.89 by 0.94 metres. The windows were equipped with vents which could be kept open to let additional fresh air in. The ventilation system functioned properly. Upon arrival at the remand prison, the applicant was provided with two bed sheets, a mattress, a blanket, a pillow, a pillow case, a towel, and cutlery. Each cell had a water heater and a potable water tank. The remand prison was equipped with a central water supply, sewage system, ventilation and lighting. In the day the lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to maintain lighting for surveillance and safety reasons. The inmates were allowed to watch TV between 6 am and 10 pm. The use of the TV during the night-time was prohibited. The average temperature in the cells did not fall below +180C during the winter and did not exceed +200C during the summer. Window panes were installed for autumn and winter.
20. Each cell had a toilet, a sink, a table and benches. The toilet was separated from the living area of the cell by a one-metre-high partition and a screen to ensure the privacy of the person using the toilet. The applicant could take a shower once a week for at least fifteen minutes.
21. During the time of the trial, that is from 6 April 1999 to 18 July 2001, on the days of the court hearings the applicant was held in custody at the courthouse.
22. The cells at the courthouse measured 2 sq. m. Each time the applicant had to share the cell with two or three other persons. The ventilation system did not function properly and the cells were very hot in the summer. The applicant was not provided with food at all.
23. At the courthouse the applicant was detained in a cell measuring 1.95 by 1 metres. There was a bench in the cell. The cell was equipped with ventilation, lighting, and central heating. The metal door had a peephole. The average temperature in the cell was between 18 and 200C. The applicant was allowed to use the bathroom upon arrival and before departure or before the start of the court hearing, if necessary. He was provided with food and hot water.
24. According to the applicant, numerous newspapers and television channels covered his arrest and the circumstances of Z.'s murder before the trial was over.
25. A documentary made by Mr D. about the case was shown at least six times by one of the nationwide TV channels. The film featured footage of the applicant and Z. aboard a sea cruiser.
26. On 7 March 2002 the prosecutor's office dismissed the applicant's request for criminal proceedings to be instituted against Mr D.
VIOLATED_ARTICLES: 3


ITEMID: 001-127812
LANGUAGEISOCODE: ENG
RESPONDENT: GRC;POL
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF MATRAKAS AND OTHERS v. POLAND AND GREECE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants were born in 1987, 1992 and 1968 respectively. They all live in Kraków.
6. On an unspecified date in 1988 the first applicant, represented by the third applicant, filed with the Kraków Regional Court an application under the New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance (“the New York Convention”) for the recovery of maintenance from his father, P.M., a Greek national. The first applicant requested that the Greek authorities institute court proceedings with the aim of recovering the maintenance and enforce any decision that might be given by the Greek courts.
7. On 23 March 1988 the Kraków Regional Court, acting as the Transmitting Agency under the New York Convention, transmitted the application to the Greek Ministry of Justice (“the Greek Ministry”), which acted as the Receiving Agency.
8. On 13 July 1988 the Greek Ministry informed the Kraków Regional Court that the debtor had been summoned but had failed to appear, and that the case had been referred to the Law Department of the Ministry for Macedonia and Thrace for further action.
9. On 5 August 1989 the Kraków Regional Court wrote to the Greek Ministry requesting information about the progress in the recovery of the maintenance. It appears that in reply the Greek Ministry resent its letter of 13 July 1988.
10. On 22 January 1990, in response to the query from the Kraków Regional Court, the third applicant informed the court that the first applicant had not received any maintenance payments from the debtor.
11. On 29 January 1990 the Kraków Regional Court requested the Polish Ministry of Foreign Affairs to intervene in the case. The Ministry requested the assistance of the Polish Embassy in Athens.
12. On 3 September 1990 the third applicant and P.M. signed an agreement stipulating that P.M. would pay 10,000 Greek drachmas (29.35 EUR) in maintenance to the first applicant monthly for a period of two years.
13. On 1 October 1990 the third applicant again informed the Kraków Regional Court that she had not received any maintenance payments from the debtor.
14. On 2 November 1990, upon a request filed by the first applicant, the Kraków Regional Court once again requested the Polish Ministry of Foreign Affairs to intervene in the proceedings.
15. On 19 December 1990 the Greek Ministry informed the Kraków Regional Court that the third applicant had hired a Greek lawyer to act in the divorce and maintenance proceedings. In the lawyer’s opinion, there were good prospects of reaching a friendly settlement in the case. Consequently, the Greek Ministry considered that its intervention at that point was not required. However, it would continue to monitor the situation and inform the Kraków Regional Court of any further developments. The applicant contested the Greek Government’s assertion that she had hired a Greek lawyer.
16. On 19 November 1992 P.M. acknowledged before a notary his intention to pay 10,000 Greek drachmas in monthly maintenance to the first applicant until he reached the age of 18. He also promised to pay 260,000 drachmas (763.02 EUR) for the period up to 31 December 1992. The monthly maintenance payments were to be deposited on an account at the National Bank of Greece. This notarial deed was declared enforceable.
17. On 17 February 1993 the Greek Ministry informed the Kraków Regional Court that P.M. had acknowledged his obligation to pay maintenance to the first applicant. It requested the Kraków Regional Court to provide it with several additional documents, including the first applicant’s birth certificate and a certificate of his residence, in order for it to proceed with the transfer of the maintenance to Poland.
18. On 15 November 1993 the Kraków Regional Court sent the requested documents to the Greek Ministry.
19. The Greek Ministry transmitted the requested documents to the Law Department of the Ministry for Macedonia and Thrace on 1 December 1993. On 24 November 1994 that authority informed the Greek Ministry that the debtor had deposited 260,000 drachmas on a bank account on 23 November 1992. On the same date the said authority requested the debtor to inform it whether he had made any further payments to the account. The debtor replied that he had been making agreed monthly payments to the account and produced documentary evidence to this effect.
20. In the course of divorce proceedings instituted by the third applicant against P.M., on 7 March 1994 the Kraków-Śródmieście District Court delivered an interim order awarding maintenance payments by P.M. to the first applicant. The court noted that P.M.’s place of residence was unknown. On 5 January 1995 the court increased the amount of maintenance payments.
21. On 19 July and 28 September 1994 the Kraków Regional Court wrote to the Greek Ministry requesting it to provide information about the progress of the proceedings. It appears that no reply was received to these letters. On 13 May 1996 the Kraków Regional Court sent another request for information. It noted that on 2 February 1995 the Thessaloniki Court of First Instance had issued a divorce decree in default, dissolving the third applicant’s marriage to P.M.
22. On 11 July 1996 the Greek Ministry informed the Kraków Regional Court that the first applicant had received a payment of 540,000 drachmas (1,584.74 EUR) in March 1995. According to the agreement between the parties, this amount was supposed to cover the maintenance due for the period from 1 October 1990 to 31 March 1995.
23. On 19 September 1996 the Kraków Regional Court informed the third applicant about the letter of 11 July 1996 and requested her to submit comments. On 31 December 1996 the third applicant informed the court that the amount of 540,000 drachmas covered only the period between 1987 and 1990 and that she intended to lodge a claim for non-received maintenance from 1987 to 1996.
24. On 17 June 1997 the Kraków-Śródmieście District Court gave a judgment in default, increasing the amount of the maintenance payments to be made to the first applicant by P.M.
25. On 5 May 1998 the Kraków Regional Court again requested assistance from the Greek Ministry. The court informed the Greek Ministry of the debtor’s single payment made in March 1995. The court also informed the Greek Ministry that three judgments in default had so far been given in Poland ordering P.M. to pay maintenance, and that on the basis of those judgments the first applicant had been able to receive substitute maintenance from the “Maintenance Fund” (Fundusz Alimentacyjny). In case of the lack of reaction from the debtor, the third applicant would have to request the enforcement of the Polish judgments in Greece on the basis of the bilateral agreement. No reply was received from the Greek authorities to that letter.
26. On 25 June 1999 the Kraków Regional Court informed the third applicant that in order to recover the maintenance due to the first applicant it was necessary for her to file a request with the Kraków District Court for the recognition and the enforcement in Greece of the Polish judgments awarding the maintenance, on the basis of the Agreement of 24 October 1979 between the Polish People’s Republic and the Hellenic Republic on legal cooperation in civil and criminal matters (“the 1979 Agreement”). The first applicant filed such a request on 6 July 1999.
27. On 16 November 1999 the Kraków Regional Court requested the assistance of the Polish Ministry of Foreign Affairs.
28. On 18 April 2000 the Polish Ministry of Justice requested the Greek Ministry to assist the first applicant in obtaining the recognition and enforcement in Greece of the Kraków-Śródmieście District Court’s judgment in default of 17 June 1997.
29. By a letter of 17 July 2000, the Greek Ministry informed the Polish Ministry of Justice that it refused to proceed with the request for the recognition and enforcement of the Polish judgment in question. The Greek Ministry explained that the request could not be allowed due to Article 26 (d) of the 1979 Agreement. This provision stipulated that a request for recognition and enforcement could be refused in Greece if the Greek courts had the sole jurisdiction to examine the matter. Consequently, the Greek Ministry returned the request, along with the entire case file, to the Polish Ministry of Justice.
30. On 22 March 2001 the Kraków Regional Court wrote to the Greek Ministry noting the Greek Ministry’s position expressed in its earlier letter and requesting it to urgently proceed with the recovery of the maintenance due to the first applicant in accordance with the New York Convention.
31. On 9 May 2001 the Greek Ministry responded by reasserting the position expressed in its letter of 17 July 2000 and confirming that the entire case file had been returned to the Polish Ministry of Justice on 17 July 2000.
32. On 15 October 2001 the Kraków-Śródmieście District Court gave another judgment in default increasing the amount of the maintenance payments to the first applicant.
33. On 14 February 2002 the Kraków Regional Court requested the Greek Ministry of Justice to provide it with information as to the progress of the proceedings and as to the prospects of a successful recovery of maintenance. On 2 July 2002 the Greek Ministry replied by re-sending their letter of 9 May 2001.
34. On 2 August 2002 the Kraków Regional Court requested the International Law Department of the Polish Ministry of Justice (“the International Law Department”) to provide it with legal advice as to the further steps necessary to recover the maintenance due to the first applicant.
35. On 25 October 2002 the International Law Department advised the Kraków Regional Court to file a new request with the Greek authorities under the New York Convention. It observed that the prospects of a successful recovery of the maintenance on the basis of the request filed in 1988 were poor, given the lack of a proper response from the Greek authorities. It further informed the Kraków Regional Court that there appeared to be no obstacles to the first applicant requesting the recognition and enforcement of the Kraków District Court’s judgment given on 15 October 2001 directly before Greek courts, on the basis of the Lugano Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“the Lugano Convention”) provided that the conditions specified in that convention had been fulfilled.
36. On 6 January 2004 the Kraków-Podgórze District Court delivered yet another judgment in default, again increasing the amount of the maintenance due to the first applicant.
37. On 11 August 2004 the Kraków Regional Court sent to the Greek authorities a new request filed by the first applicant under the New York Convention, asking the Greek authorities to recover maintenance in respect of the period from April 1994 onwards. In the same letter, the Kraków Regional Court also requested the Greek authorities to recognise and enforce the Polish judgment of 6 January 2004 under the Lugano Convention.
38. On 10 November 2004 the Greek Ministry informed the Kraków Regional Court that its request for the recovery of maintenance under the New York Convention could not be accepted, because under Article 6 (3) of that convention only Greek private international law was applicable. Consequently, the Polish court which had given the judgment awarding maintenance to the first applicant had had no jurisdiction to do so since at the time of filing the action the debtor had had his permanent residence in Greece. The Greek Ministry returned the entire request together with all attachments.
39. On 6 December 2004 the Kraków Regional Court requested the International Law Department to provide it with a legal opinion as to the correctness of the Greek Ministry’s position.
40. On 7 January 2005 the International Law Department stated that the position of the Greek Ministry was incorrect and that the Lugano Convention, which was binding on both Poland and Greece, did not allow Greece to invoke the sole jurisdiction of the Greek courts as an obstacle to the recognition and enforcement of Polish judgments. It noted that the Lugano Convention replaced the 1979 Agreement. The International Law Department further noted that it would perhaps be quicker for the first applicant to send a request for recognition and enforcement under the Lugano Convention directly to the competent court in Thessaloniki. Alternatively, it advised the Kraków Regional Court to resubmit its request to the Greek Ministry of Justice.
41. On 6 May 2005 the Kraków Regional Court sent another request for the recognition and enforcement in Greece of the judgment of the Kraków-Podgórze District Court of 6 January 2004 on the basis of the Lugano Convention. In the same letter, it reminded the Greek Ministry about the request lodged under the New York Convention and requested the recovery of the maintenance due from the date of the first request filed in 1988. No reply to that request was received. Enquiries with the Polish postal service revealed that the letter had been served on the Greek Ministry on 21 June 2005.
42. Meanwhile, on 23 August 2005 the Greek Ministry sent the first applicant’s file to the State Legal Council in order for them to proceed with the enforcement of the Kraków-Podgórze District Court’s judgment of 6 January 2004. On 1 September 2005 the State Legal Council transmitted the case to the Law Department of the Ministry for Macedonia and Thrace.
43. On 22 December 2005 the Kraków Regional Court again sent a letter to the Greek Ministry of Justice. No reply to that letter was received.
44. On 1 March 2006 the President of the Kraków Regional Court requested the Polish Embassy in Athens to intervene in the case.
45. On 5 June 2006 the Greek Ministry asked the Kraków Regional Court for a certificate proving that P.M. had been informed of the request which had commenced the proceedings terminated by the judgment of 6 January 2004. Such a certificate was necessary to start recognition and enforcement proceedings on the basis of the Lugano Convention.
46. On 16 August 2006 the Kraków Regional Court forwarded the requested documents to the Greek Ministry.
47. On various dates in 2007, at the request of the third applicant, the Kraków Regional Court attested that she had not received any maintenance payments due to the first applicant. The third applicant needed the confirmation to receive substitute maintenance.
48. On 26 January 2007 the Greek authorities lodged a request for the recognition and enforcement of the judgment of 6 January 2004 with the Thessaloniki Court of First Instance. The first hearing, scheduled for 24 April 2007, was adjourned until 18 September 2007.
49. On 23 April 2007 the Kraków Regional Court asked the Greek Ministry to provide it with further information as to the progress of the proceedings. On 26 July 2007 the Greek Ministry replied that the Thessaloniki Court of First Instance would examine the case on 18 September 2007.
50. The hearing set for 18 September 2007 was adjourned owing to elections. Upon a request from the Greek authorities a further hearing was scheduled for 14 December 2007. It was then postponed on account of the friendly-settlement negotiations between the parties.
51. On 28 November 2007 the Kraków Regional Court asked the Greek Ministry to inform it of the results of the court hearing.
52. On 9 May 2008 the Greek Ministry informed the Kraków Regional Court that on 21 March 2008 the third applicant had reached an agreement with P.M. Under the terms of that agreement P.M. was to pay 9,700 euros to the first applicant as a final settlement of the sums of maintenance awarded by the Polish court up to 18 August 2005. The third applicant declared that she would withdraw her request to enforce the judgment of 6 January 2004.
53. On 8 June 2008 the third applicant declared that P.M. had paid his debts up to 2005 but had not made any payments for the period between 2005 and 2008, and that he was not paying the current instalments.
54. On 14 September 2008 the third applicant declared that P.M. had paid part of his debt for the period between 2005 and 2008 (EUR 3,000) but he had not paid the interest.
55. On 16 January 2009 the third applicant informed the Kraków Regional Court that the case could be closed. On 12 February 2009 the case was closed by the Kraków Regional Court. The latter court informed the Greek Ministry that the recovery proceedings under the New York Convention were terminated.
56. On 29 August 2007 the first applicant filed a complaint under the Law of 17 June 2004 on complaints concerning a breach of the right to a trial within a reasonable time (“the 2004 Act”). He alleged that the length of the proceedings for the recovery of maintenance instituted in 1988 on his behalf by his mother on the basis of the New York Convention had been excessive. He also claimed compensation in the amount of 10,000 Polish zlotys (PLN). The applicant explained that he had not been able to recover any maintenance from his father, despite the fact that several judgments awarding maintenance had been handed down in Poland and despite the Kraków Regional Court’s repeated attempts to intervene with the Greek authorities.
57. On 9 October 2007 the Kraków Court of Appeal rejected the applicant’s complaint. It recalled that a mere reference to the overall duration of the proceedings did not suffice for a conclusion that their length had been excessive and that the applicant had failed to sufficiently specify the omissions or delays attributable to the lower court. It further observed that, in any event, the Regional Court’s role as the Transmitting Agency in the impugned proceedings under the New York Convention had been limited solely to carrying out technical and organisational tasks, which the Regional Court had duly done.
58. On 6 January 2004 Y.M., a Greek national, was declared the father of the second applicant by the Kraków-Podgórze District Court. He was further ordered to pay monthly maintenance in the amount of PLN 900.
59. On 26 April 2005 the second applicant, represented by his mother, filed with the Kraków Regional Court a request for the recovery of maintenance from Y.M. under the New York Convention. He requested that the Greek authorities secure a friendly settlement of the case or, alternatively, institute court proceedings with the aim of recovering the maintenance and enforce any judgment that might be given in this connection by the Greek courts.
60. By a letter of 12 May 2005 the Kraków Regional Court asked the applicant to rectify her request, in particular by attaching the required documents.
61. On 7 June 2005 the Kraków Regional Court, acting as the Transmitting Agency under the New York Convention, transferred the second applicant’s request to the Greek Ministry, acting as the Receiving Agency.
62. On 10 November 2005 the Kraków Regional Court requested the Greek Ministry to confirm reception of the application filed by the second applicant. It appears that there was no response to that request. Enquiries with the Polish postal service revealed that the request had been served on the Greek Ministry on 28 July 2005.
63. On 10 November 2005 the Kraków Regional Court issued a certificate for the third applicant attesting that she had not received any maintenance payments due to the second applicant. The certificate was necessary to claim substitute maintenance from the Maintenance Fund.
64. On 1 March 2006 the Kraków Regional Court requested the assistance of the Polish Embassy in Athens. In reply, on 17 May 2006 the Polish Embassy informed the Kraków Regional Court that the Greek Ministry had instituted proceedings for the recovery of the maintenance due to the second applicant. The Embassy further informed the court that a hearing before the Thessaloniki Court of First Instance, initially scheduled for 24 March 2006, had been rescheduled for 26 May 2006.
65. On 28 August 2006 and 23 April 2007 the Kraków Regional Court requested the Greek Ministry to inform it of the outcome of the hearing before the Thessaloniki court.
66. On 22 January and 23 April 2007 the Kraków Regional Court requested the Polish Embassy in Athens to enquire with the Greek authorities about the progress of the proceedings.
67. On 18 September 2007 the Kraków Regional Court sent the file concerning the second applicant’s case to the International Law Department, requesting its assistance.
68. On 16 November 2007 the International Law Department sent the case file back to the Kraków Regional Court, informing it that the second applicant should address the Greek authorities directly with a request to be provided with a copy of the decision that had apparently been given in his case by the Greek court. On 29 November 2007 the Kraków Regional Court forwarded the International Law Department’s letter to the third applicant.
69. On 4 April 2008 the Kraków Regional Court requested the Greek Ministry to inform it about any further steps taken with a view to recovering the maintenance. It sent again a copy of the original request for the recovery of maintenance from Y.M. and requested the Greek Ministry’s assistance as Y.M. had not been paying maintenance due to the second applicant since 1995. On the same day, the Kraków Regional Court requested the Polish Embassy in Athens to intervene in the case.
70. On 20 May 2008 the Greek Ministry informed the Kraków Regional Court that they had already sent to it the judgment of the Thessaloniki Court of First Instance of 23 April 2007 (see paragraph 97 below). They also requested the Kraków Regional Court to provide them with additional information as to the defendant’s property, with a view to the enforcement of the judgment in Greece. The Kraków Regional Court replied to the Greek Ministry that the judgment of the Thessaloniki Court of First Instance given on 23 April 2007 in the third applicant’s case did not concern any maintenance payments in respect of the second applicant. Consequently, it requested the Greek Ministry to proceed with the recovery of the maintenance owed by Y.M. to the second applicant.
71. In its response of 26 June 2008, the Greek Ministry informed the Kraków Regional Court that the Polish judgment ordering Y.M. to pay maintenance to the second applicant was a judgment in default given in Y.M.’s absence. Consequently, the Greek Ministry requested the Kraków Regional Court to provide it with documents proving that Y.M.’s rights as a defendant in the proceedings before the Polish courts had been respected, as required by Article 23 (b) of the 1979 Agreement. On 4 July 2008 the Kraków Regional Court forwarded the requested documents to the Greek Ministry.
72. On 1 September 2008 the Greek Ministry transmitted the case to the State Legal Council as a competent authority to institute the proceedings in accordance with the New York Convention. Subsequently, the case was transmitted to the Law Department of the Ministry for Macedonia and Thrace for further action.
73. On 3 April 2009 the Greek Ministry, acting as the Receiving Agency, filed a claim with the Thessaloniki Court of First Instance for the enforcement of the Kraków-Podgórze District Court’s judgment of 6 January 2004.
74. On 11 December 2009 the Thessaloniki Court of First Instance gave judgment, dismissing the claim. The court considered that the Ministry had no standing to file such a claim because the New York Convention did not apply to the case. It held that the Council Regulation 44/2001/EC was applicable to the case and that accordingly it was the second applicant who had standing to file a claim for enforcement. It is not clear whether the Ministry lodged an appeal against that judgment.
75. Meanwhile, on 17 April 2008 the third applicant filed a claim with the Thessaloniki Court of First Instance requesting the recognition and enforcement of the Kraków-Podgórze District Court’s judgment of 6 January 2004. The court gave judgment on 27 May 2009, dismissing the third applicant’s claim. It held that the defendant, Y.M., had not been correctly informed about the proceedings in Poland and therefore could not defend his interests in the proceedings. The court found that Y.M. had been served summons to appear at the hearing scheduled for 14 July 2003 only on 20 September 2003, i.e. after the hearing had taken place. The third applicant appealed.
76. According to a document dated 1 December 2009 prepared by a judge of the Kraków-Podgórze District Court the rights of Y.M. had been fully respected in the proceedings leading to the Kraków-Podgórze District Court’s judgment of 6 January 2004. The judge noted that the second applicant’s claim had been filed on 20 February 2003 and that the first hearing had been scheduled for 14 July 2003. The latter hearing was adjourned since Y.M. had failed to appear and the Kraków-Podgórze District Court had had no proof that the claim had been served on the defendant. After the court was notified that the claim had been served on Y.M. on 20 September 2003 it scheduled a hearing for 6 January 2004. On that date the Kraków-Podgórze District Court heard the case and delivered judgment in default. The judgment was translated and served on Y.M. on 21 September 2004. He was instructed that he could file an objection to the judgment in default within seven days from the date of the service but he did not react.
77. A hearing before the Thessaloniki Court of Appeal was scheduled for 17 May 2010. However, that hearing was rescheduled owing to a bomb attack which had occurred in the court in Thessaloniki several days prior to that date. Another hearing in the case, scheduled for 8 November 2010, was also rescheduled, on account of the local elections due to take place from 3 to 12 November 2010.
78. On 10 June 2011 the Thessaloniki Court of Appeal dismissed the third applicant’s appeal. It upheld the lower court finding that the Y.M.’s rights to participate in the proceedings and to defend his interests had not been respected. Accordingly, the recognition of the judgment in issue would have been contrary to the public order.
79. It appears that the third applicant did not lodge an appeal with the Court of Cassation.
80. On 17 April 2008 the third applicant also lodged an action with the Thessaloniki Court of First Instance against Y.M. for maintenance on behalf of the second applicant. The proceedings were suspended pending the outcome of the proceedings for the recognition and enforcement of the judgment of 6 January 2004.
81. On 18 July 2008 the second applicant, represented by his mother, filed a complaint under the 2004 Act. He claimed that the length of the proceedings for the recovery of maintenance instituted by him on 29 April 2005 on the basis of the New York Convention had been excessive. He also claimed compensation in the amount of PLN 10,000.
82. On 27 August 2008 the Kraków Court of Appeal dismissed the applicant’s complaint. The court observed that the second applicant had filed his application for recovery of maintenance under the New York Convention on 29 April 2005. It noted that the initial application had been incomplete and had had to be rectified by the second applicant before being transmitted to the Greek Ministry of Justice. The Court of Appeal considered that the transmission of documents had been carried out without undue delay. It further considered that, in the proceedings under the New York Convention, the Kraków Regional Court had only acted as the Transmitting Agency and, as such, had had no influence on the expeditiousness of the recovery of the maintenance by the Greek authorities. Moreover, the Court of Appeal found that the Regional Court, although it had not been required to do so by law, had on several occasions attempted to intervene in the proceedings by sending reminder letters to the Greek authorities and by soliciting the assistance of the Polish embassy in Athens. Consequently, the Court of Appeal considered that the Regional Court could not be held responsible for the overall length of the impugned proceedings and it dismissed the second applicant’s complaint, refusing to award him any compensation.
83. On 23 December 2002 the Kraków Regional Court issued a divorce decree in default, dissolving the third applicant’s marriage to a Greek national, Y.M., and ordering Y.M. to pay maintenance to her.
84. On 24 February 2003 the third applicant lodged an application with the Kraków Regional Court for the recovery of maintenance from Y.M. under the New York Convention. In her application, she requested the Greek authorities to secure a friendly settlement of the case or, alternatively, to institute proceedings with the aim of recovering the maintenance and to recognise and enforce the judgment of 23 December 2002.
85. On 24 March 2003 the Kraków Regional Court asked the third applicant to rectify her request by attaching the required documents. On 18 August 2003 the court transmitted the application to the Greek Ministry.
86. On 25 November 2003 the Ministry of Justice sent the applicant’s file to the Thessaloniki Court of First Instance in order for it to proceed with enforcement of the recovery of maintenance from Y.M. The efforts to summon Y.M. proved unsuccessful. On 9 February 2004 the Greek Ministry transmitted the case-file to the State Legal Council with a view to instituting enforcement proceedings in accordance with the New York Convention. Subsequently, the case was referred to the Law Department of the Ministry for Macedonia and Thrace for further action.
87. Meanwhile, on 7 February 2004 the third applicant married S.K. According to the Polish Government, pursuant to Article 60 § 3 of the Polish Family and Custody Code, Y.M.’s obligation to pay maintenance to the third applicant ceased as a consequence of this act. The applicant contested this assertion of the Polish Government.
88. On 23 April 2004 the Greek Ministry requested the Kraków Regional Court to provide it with proof that the summons had been served on Y.M. in the proceedings before the Kraków Regional Court.
89. On 10 August 2004 the Kraków Regional Court sent the requested document to the Greek Ministry, observing that it had already been sent to it on 18 August 2003, together with the initial request for recovery of maintenance.
90. On 20 October 2004 the Greek authorities brought an action against Y.M. before the Thessaloniki Court of First Instance with the aim of obtaining the recognition and enforcement of the judgment of the Kraków Regional Court of 23 December 2002.
91. On 24 January 2005 the Thessaloniki Court of First Instance decided to adjourn the hearing in order to verify whether the matter had not already been the subject of another final judgment concerning the same parties.
92. On 10 March 2005, 30 August 2005 and 12 January 2006 the Kraków Regional Court requested the Greek Ministry to provide it with information as to the progress of the proceedings. It appears that no response was received to these enquiries.
93. On 12 January 2006 the Kraków Regional Court requested the assistance of the Polish Embassy in Athens.
94. A hearing before the Thessaloniki Court of First Instance scheduled for 24 March 2006 was adjourned. A hearing took place on 26 May 2006. On 23 July 2006 the court decided to adjourn the hearing for the same reason as previously (see paragraph 91 above). The next hearing scheduled for 20 February 2007 was adjourned. The hearing took place on 9 March 2007. Twice in the course of the proceedings the Greek authorities lodged a request with the Thessaloniki Court of First Instance for a hearing to be scheduled in the case.
95. On 4 July 2006 the Kraków Regional Court requested the Greek Ministry to provide it with information as to the outcome of the hearing before the Thessaloniki court. Since no reply was received to that request, on 8 January 2007 the Kraków Regional Court requested the Polish Embassy in Athens to enquire with the Greek authorities as to the outcome of the proceedings.
96. On 12 February 2007 the Greek Ministry informed the Kraków Regional Court of the developments in the case.
97. On 23 April 2007 the Thessaloniki Court of First Instance gave a judgment recognising the Kraków Regional Court’s divorce verdict of 23 December 2002 as enforceable in Greece. On 4 July 2007 the Greek Ministry sent a copy of the judgment to the Kraków Regional Court.
98. On 14 September 2007 the Kraków Regional Court requested the Polish Ministry of Justice to provide it with legal advice as to the further steps necessary to recover the maintenance due to the third applicant. On 16 November 2007 the Polish Ministry suggested further cooperation with the Greek Ministry and underlined that the Regional Court acted only as a Transmitting Agency.
99. On 29 November 2007 the Kraków Regional Court informed the third applicant that she should entrust the carrying out of the enforcement proceedings in Greece to a Greek counsel. The court further informed her that the proceedings in her case would be temporarily stayed pending the outcome of the enforcement proceedings in Greece.
100. On 18 April 2008 a copy of the judgment of 23 April 2007 was served on Y.M., together with an order of payment for 36,332.96 EUR.
101. On 20 May 2008 the Greek Ministry asked the Polish Ministry to provide information as regards Y.M.’s assets in Greece. In reply, the third applicant provided the information that Y.M.’s assets included three taverns in Chalastra and Thessaloniki, a house in Chalastra, a flat in Thessaloniki and several cars and motorcycles.
102. On 12 June 2008 the Greek Ministry informed the Kraków Regional Court that enforcement proceedings against Y.M. on the basis of the judgment of the Thessaloniki Court of First Instance of 23 April 2007 had been initiated and that some property belonging to Y.M. would be seized and auctioned off.
103. Subsequently, three auctions were organised in order to sell two of Y.M.’s apartments in Thessaloniki (on 17 September 2008, 14 January 2009 and 25 February 2009). However, this was to no avail, as there were no bidders at the auctions.
104. On 3 April 2009 the Greek authorities requested the Thessaloniki Court of First Instance to fix a lower price for the two apartments in order to facilitate the auction. On 15 July 2009 the court partly granted the request and fixed the price at 48,000 EUR and 44,000 EUR respectively. Two subsequent auctions of 1 and 16 September 2009 were again to no avail for the lack of bidders.
105. On 14 February 2011 the Greek authorities lodged a request with the Thessaloniki Court of First Instance to authorise the sale of Y.M.’s two apartments through an open sale.
106
107. In the meantime, on 18 October 2010 the third applicant filed a new application for recovery of maintenance payments. It was forwarded to the Greek Ministry on 2 December 2010. The first hearing was set for 11 February 2011.
108. On 15 June 2011 the Kraków Regional Court asked the Greek Ministry what the chances were that the maintenance would be recovered from Y.M. The Greek Ministry did not reply.
109. The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. Poland and Greece ratified the New York Convention on 13 October 1960 and 1 November 1965 respectively.
110. The relevant provisions of the New York Convention read as follows:
1. The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the office of agencies which will hereinafter be referred to as Transmitting and Receiving Agencies.
2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.
1. Where a claimant is in the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent. (...)
3. The application shall be accompanied by all relevant documents, including, where necessary, a power of attorney authorising the Receiving Agency to act, or to appoint some other person to act, on behalf of the claimant. It shall also be accompanied by a photograph of the claimant and, where available, a photograph of the respondent.
4. The Transmitting Agency shall take all reasonable steps to ensure that the requirements of the law of the State of the Receiving Agency are complied with; ...
1. The Transmitting Agency shall, at the request of the claimant, transmit, under the provisions of article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in a competent tribunal of any of the Contracting Parties, and, where necessary and possible, the record of the proceedings in which such order was made. ...
2. Proceedings under article 6 may include, in accordance with the law of the State of the respondent, exequatur or registration proceedings or an action based upon the act transmitted under paragraph 1.
1. The Receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.
2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents.
3. Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.”
111. The Agreement between Poland and Greece entered into force on 23 December 1981.
112. The 1979 Agreement provides, in so far as relevant:
...
2. Final court decisions in civil matters concerning rights of a pecuniary nature delivered in the territory of one State Party may be recognised as enforceable in the other State-Party if they were delivered after the entry into force of the present Agreement.
A request for the recognition or the enforcement of a court decision should be filed with the court which examined the matter in the first instance or with the competent court of the other State-Party. In the former case, the court shall transmit the request to the competent court of the other State-Party, in accordance with the procedure set out in article 2 of the present Agreement.
1. A request for the recognition or the enforcement of a court decision should include:
...
b) a document proving that a plaintiff who did not participate in the proceedings, or his lawyer, had been informed in due time and summoned in due time to a hearing on at least one occasion.
Recognition or enforcement may be refused:
...
d) if, according to the law of the State Party in whose territory the decision is to be recognised or enforced, the court of that State Party has sole jurisdiction to examine the matter.
113. Greece and Poland ratified the Lugano Convention on 11 June 1997 and 1 November 1999 respectively. It entered into force in respect of Greece on 1 September 1997 and in respect of Poland on 1 February 2000.
114. The relevant provisions of the Lugano Convention read as follows:
For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.
A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required.
Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Section 2 and 3 of this Title, apply for a decision that the judgment be recognised.
If the outcome of proceedings in a court of a Contracting State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.
A judgment shall not be recognised:
1. if such recognition is contrary to public policy in the State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence;
3. if the judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;
4. if the court of the State of origin, in order to arrive at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State;
5. if the judgment is irreconcilable with an earlier judgment given in a noncontracting State involving the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition in the State addressed.
...
A judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.
...
The court applied to shall give its decision without delay; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.
The application may be refused only for one of the reasons specified in Articles 27 and 28.
Under no circumstances may the foreign judgment be reviewed as to its substance.
The appropriate officer of the court shall without delay bring the decision given on the application to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought.
115. The Council Regulation (EC) No 44/2001 lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in the European Union countries. The relevant provisions of the Regulation (EC) No 44/2001 read as follows:
For the purposes of this Regulation, ‘judgment’ means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.
1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.
3. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.
A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;
4. if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.
...
1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
...
1. The procedure for making the application shall be governed by the law of the Member State in which enforcement is sought.
...
The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.
1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State in which enforcement is sought.
...
1. The decision on the application for a declaration of enforceability may be appealed against by either party.
...
1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.
2. Under no circumstances may the foreign judgment be reviewed as to its substance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100798
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BOGATOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1944 and lives in Dniprodzerzhynsk.
6. In July 2003 the applicant instituted proceedings in the Bagliyskyy District Court of Dniprodzerzhynsk against the State of Ukraine, the President, and the local department of the Pension Fund, seeking recovery of pension arrears and compensation for non-pecuniary damage. In her claim the applicant stated, in particular, that under Article 46 of the Constitution she was entitled to a pension equal to the amount of minimum living standard. However, her pension was lower than that standard effective at the relevant time.
7. On 26 December 2003 the court rejected the applicant's claim as unfounded, stating that the amount of her pension had been determined correctly under the pension legislation. On 5 April 2004 and 8 June 2006 respectively the Dnipropetrovsk Regional Court of Appeal and the Supreme Court upheld the decision of the first-instance court. Neither of the courts considered the applicant's argument under Article 46 of the Constitution in respect of inconsistency of the amount of her pension with the minimum living standard.
8. The relevant domestic law is set out in the judgment case of Pronina v. Ukraine (no. 63566/00, §§ 13-19, 18 July 2006).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23122
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: WINKLEROVA AND 2 OTHERS v. THE SLOVAK REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicants are Slovakian nationals. Their particulars are set out in the list attached hereto. They were represented before the Court by Mr V. Hajduk, a lawyer practising in Michalovce. The respondent Government was represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 July 1994 the applicants (or their legal predecessors) claimed ownership of real property before the Žilina District. On 8 May 1995 the plaintiffs complied with the District Court’s request to submit their action in accordance with the formal requirements.
On 11 July 1995 a hearing was held before the Žilina District Court.
On 20 March 1996 the plaintiffs asked the president of the District Court to assign the case to another judge. The request was submitted to the Žilina Regional Court which decided, on 28 May 1997, not to disqualify the District Court judge dealing with the case.
On 4 November 1998 the case was transferred to a different chamber of the Žilina District Court.
On 24 November 1998 the judge requested the plaintiffs to submit further information. The plaintiffs replied on 22 December 1998.
On 15 August 1999 the case was assigned to a different chamber of the Žilina District Court. On 27 October 1999 and on 19 November 1999 respectively the defendants were requested to submit further information.
On 19 November 1999 the District Court submitted the case file to the Ministry of Justice. The file was returned on 3 July 2000.
On 31 October 2000 the case was transferred to another chamber of the Žilina District Court.
On 30 October 2001 the District Court discontinued the proceedings on the ground that the plaintiffs had failed to substantiate their claim.
On 28 March 2002 the Žilina Regional Court upheld the District Court’s decision to discontinue the proceedings.
On 11 June 2002 the applicants filed an appeal on points of law. The proceedings are pending before the Supreme Court.
Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...
The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.
After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.


ITEMID: 001-103767
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF THE ARGEŞ COLLEGE OF LEGAL ADVISERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 11
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant is an association from Piteşti (Argeş County) whose registration as a professional association was refused in a final decision delivered by the Argeş County Court on 4 October 2004. Its name in Romanian is Colegiul Consilierilor Juridici Argeş (The Argeş College of Legal Advisers). The application on its behalf was lodged by Mr Victor Horia Panduru, the dean of the association.
6. On 8 December 2003 Law no. 514/2003 regarding the organisation and functioning of the profession of legal adviser entered into force. It allowed legal advisers to form professional associations and set a ninety-day time-limit from its coming into force for those professional associations to be established and their statutes to be adopted. It entered into force three days after its publication in the Official Journal on 5 December 2003.
7. On 6 January 2004 the constituent assembly of the applicant association took place. On the same date its statute was adopted.
8. On 14 January 2004 the applicant requested the opinion (“aviz”) of the Ministry of Justice, which was required by Government Ordinance no. 26/2000 on the establishment of associations and foundations, in its version in force at the time.
On 21 January 2004 the Ministry of Justice issued a favourable opinion on the statute of the applicant, referring specifically to the purposes of the association described in Articles 6 and 7. Article 6 stipulated that the goal of the association was the unitary organisation and functioning of the profession of legal adviser in Argeş County and the promotion of the principle that this profession had a complementary place within the national judicial system. Article 7 of the statute provided further that the aim of the association was “the protection and promotion of the rights of its members, (...) concerning a consistent practice of the profession for the protection and promotion of the rights and freedoms of legal entities, authorities and public institutions, as well as of private persons in their relations with judicial institutions (...)”.
9. On 4 February 2004 the applicant lodged an application with Piteşti District Court seeking registration in the Register of Associations and Foundations kept by that court. By an interlocutory judgment delivered in private on 9 February 2004 the court granted the request and ordered the registration of the applicant in that register. The decision also provided that the Public Prosecutor's Office could lodge an appeal on points of law within five days from communication.
10. The Public Prosecutor and the Argeş Bar Association lodged an appeal on points of law against that decision. The National Association of the Romanian Bar joined the proceedings in the Argeş Bar Association's interest.
11. In the appeal, the prosecutor argued that the interlocutory judgment of 9 February 2004, in approving the purposes stipulated in the association's statute, had infringed Articles 4 and 10 of Law no. 514/2003 in so far as it had allowed the applicant to protect and promote the rights of private individuals, whereas only lawyers had the right to represent or assist private individuals in their relations with judicial institutions. The prosecutor also criticised Article 20 § 3 (j) of the statute, which allowed the council of the association to give its opinion (“aviz”) on the creation, within its geographical area, of companies providing freelance consultancy, assistance and legal representation, as well as to resolve complaints against the fees charged by freelance legal advisers. Further, the prosecutor contested Article 20 § 3 (l), which entitled the council of the association to organise competitive examinations for vacant legal adviser positions, draw up job descriptions and inform the disciplinary board of any malpractice on the part of legal advisers.
12. The bar associations supported the prosecutor's arguments.
13. On 24 February 2004 the applicant held an extraordinary general assembly and adopted an additional protocol to the statute, in which it amended Article 7 by removing the reference to representation of private persons. It also removed Article 20 § 3 (j) entirely and amended Article 20 § 3 (l) by limiting the task of the council of the association to providing information on malpractice on the part of legal advisers.
14. On 27 February 2004 the applicant lodged an application with the Piteşti Court of First Instance seeking registration of the modifications. By an interlocutory decision of 1 March 2004, delivered in private, the court ordered the registration of those modifications. From the information submitted by the Government, it appears that an appeal was lodged against this judgment and a final decision was delivered on 2 December 2004. No copy of the appeal decision was submitted to the case file.
15. During the trial regarding the appeal lodged by the prosecutor and by the bar associations against the interlocutory judgment of 9 February 2004, the applicant alleged that it had become groundless after the adoption of the additional protocol to its statute. It argued that the only ground for the appeal could be an amendment to the interlocutory decision of 9 February 2004.
16. On 4 October 2004 Argeş County Court upheld the prosecutor's appeal on points of law in a final decision, modified the interlocutory judgment of 9 February 2004 and dismissed the applicant's request for registration The court considered that, according to Articles 6 and 15 of Law no. 514/2003, the professional activity of a legal adviser could only be carried out within the framework of the legal entity for which he worked, thus excluding the possibility to represent the interests of private individuals. It further considered that Article 10 (a) of that law provided that the profession of legal adviser was incompatible with that of lawyer. It then held that legal advisers could be appointed or hired under the provisions of that law; therefore they could not carry out functions which were specific to those of a lawyer.
17. The court further held that the provisions of Article 20 § 3 (j) of the applicant's statute were at odds with Article 1 of Law no. 51/1995 on the organisation and functioning of the lawyer profession, which provided that only lawyers may offer freelance consulting, assistance and legal representation. The appellate court considered that those aspects of illegality had also been recognised by the applicant, which had allegedly removed them by adopting an additional protocol to its statute. However, the fact that an additional protocol had been adopted could not have validated the interlocutory judgment of 9 February 2004, since that decision had taken account of the existing situation at the time it had been delivered.
18. Article 9 of the Government Ordinance no. 26/2000 on associations and foundations provides that the judge in charge of reviewing the legality of a request for registration and the supporting documents is to scrutinise the request within three days of the date it was lodged. If within this deadline, the judge concludes that the documents submitted do not comply with the legal requirements, the representative of the associations shall be summoned for a hearing held in private and one week will be granted in order to remedy those irregularities. When the deadline is reached and the judge concludes that the irregularities have been remediated, it shall take note of this in an interlocutory judgment and shall order the registering of the association in the Register of Associations and Foundations.
Article 12 provides that an association is registered in the Register of Associations and Foundations only when the interlocutory judgment allowing the request for registration becomes final. Article 33 of the same act provides that any changes to the statute of an association which has acquired legal personality and has been registered legally have to be recorded in the Register of Associations and Foundations according to a procedure that is similar to the one for registering as an association.
19. The same Ordinance provides that an association may be dissolved by a judicial decision if its goals prove to be contrary to law or public order.
20. The other relevant provisions of Government Ordinance no. 26/2000 are cited in the judgment of Bozgan v. Romania (no. 35097/02, § 11, 11 October 2007).
21. The relevant provisions of Law no. 514 of 28 November 2003 on the organisation and functioning of the profession of legal adviser read as follows:
“A legal adviser...provides counsel and representation to the authority or public institution where he works, or for the legal entity with which he has working relations, protects their legitimate rights and interests in their relations with public authorities, any kind of institution, and any Romanian or foreign private person or legal entity; according to the law and to the specific regulations, he approves and countersigns documents of a judicial nature.”
Legal advisers may form professional associations to protect and promote their professional interests, in accordance with the legal provisions regulating the association and the setting up of legal entities.
“The exercise of the profession of legal adviser is incompatible with:
a) being a lawyer;
...”
(1) Under the conditions set up in Article 5, the legal advisers may form associations at county levels, by branches or fields of activity, according to professional interests, and, if the case, at national level, in compliance with the law on associations and foundations.
(2) The forms of association and organisation at county and national level are set by the statute of the association (...).
(3) The setting up of professional associations is based on the constitutional principles of the right to freedom of association and the legislation regulating the association and the setting up of legal entities.
Professional associations shall be constituted and their statutes adopted within ninety days of the date of entry into force of the present law.”
VIOLATED_ARTICLES: 11


ITEMID: 001-67006
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BANEKOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Vjekoslav Baneković, is a Croatian national, who was born in 1975 and lives in Kutina, Croatia. He is represented before the Court by Mr B. Posavčić, a lawyer practising in Kutina.
The applicant has been a police officer in the service of the Ministry of the Interior since 1995.
On 1 January 1996 he was transferred to perform his duties in Dvor, a town situated in an area previously affected by the Homeland War and classified as an “area of special state care”. According to the Act on Areas of Special State Care (Zakon o područjima od posebne državne skrbi; “the Act”), civil servants performing their duties in these areas had a right to a 50% salary increase.
As he did not receive a salary increase, on 29 October 1998 the applicant filed a civil action with the Kutina Municipal Court, seeking payment of the amounts due. On 29 July 1999 the Kutina Municipal Court declared that it lacked competence to deal with the matter.
On 9 March 2000 the Sisak County Court dismissed the applicant's appeal.
On 8 November 2000 the Supreme Court partially quashed the first and the second instance judgments, and remitted the case to the Kutina Municipal Court. It found that a part of the applicant's case fell within the competence of the civil courts.
In the meantime, on 29 July 2000 Parliament enacted Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama zakona o područjima od posebne državne skrbi; “the Amendments”). The Amendments provided that salary increases should only be payable to civil servants who, inter alia, both performed their duties and resided in the areas of special state care.
In the resumed proceedings, on 14 June 2001 the Kutina Municipal Court dismissed the applicant's action, as he did not reside in the area of special state care.
On 26 October 2001 the Sisak County Court upheld the first instance judgment and dismissed the applicant's appeal. On 6 February 2002 the Supreme Court dismissed his request for revision on points of law as inadmissible.
The applicant filed a constitutional complaint. On 8 April 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed his complaint as being lodged outside the statutory time-limit.
The relevant part of the Act on Areas of Special State Care (Zakon o područjima od posebne državne skrbi, Official Gazette no. 44/1996) provides that all civil servants in service with the state administrative bodies in those areas shall receive a 50% salary increase in comparison with the salaries in other parts of the State.
The relevant part of the Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama zakona o područjima od posebne državne skrbi, Official Gazette no. 73/2000) reads as follows:
“Natural persons who are domiciled and reside within the areas of special state care.... shall have the rights arising out of this Act.”
“Proceedings to pursue rights arising out of this Act lodged before the day of the entry into force of this Act shall be concluded pursuant to the provisions of this Act.”


ITEMID: 001-5457
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LONDON ARMOURY LIMITED AND A.B. HARVEY & SON LIMITED AND 156 OTHERS, A.G. WISE AND 5 OTHERS, POWDERKEG LIMITED AND 2 OTHERS, REEPHAM MOORE RIFLE & PISTOL RANGE, WARWICK RIFLE AND PISTOL CLUB AND 42 OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are all businesses connected with firearms industry. They are represented before the Court by Edwin Coe, Solicitors, London.

In the case of application no. 37666/97, the applicant company (London Armoury Limited) was established more than 20 years ago. It was owned and operated by a sole shareholder. The applicant company was in the business of retailing firearms: 90% of its turnover derived from handguns and related products, 5% from rifles and 5% from airguns and sundry items.

The consequences of the 1997 Firearm Amendment legislation - the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”, see below) - are that the applicant company is unable to derive handgun-related income from its business, and that the value of the goodwill and assets of that business has depreciated. Between 31 January 1996 and 31 January 1997, the applicant company's turnover dropped by 45.2%. In June 1997 the company ceased trading.
The remaining applicants rely on application no. 37666/97 (London Armoury Limited), and have made no submissions of fact in relation to their claims.
The applicants have received no compensation for the reduction in value of their goodwill and assets.
By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...
18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.


ITEMID: 001-113767
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ÇOŞELAV v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
JUDGES: Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
TEXT: 5. The applicants were born in 1957 and 1961 respectively and live in Istanbul.
6. On 29 December 2003 the applicants’ then sixteen-year-old son, Bilal Çoşelav, was serving a prison sentence in the juvenile wing of Kars Prison when he made an attempt to take his own life by hanging himself in the courtyard. Prison warders arriving at the scene resuscitated him and he was subsequently returned to his prison wing. In a statement taken by the prison governor, Bilal Çoşelav was reported as having explained that he was finding it difficult to adapt to prison life and that he was suffering from psychological problems.
7. Disciplinary proceedings were brought against Bilal Çoşelav for his attempted suicide but the disciplinary board decided not to impose a punishment. The board told him that “he was setting a bad example to other inmates”, and warned him that if he were to do “such things” again he would be treated more severely.
8. Bilal Çoşelav made another attempt to kill himself on 19 January 2004 by taking an overdose. He was taken to hospital for treatment and then on 28 January 2004 he was transferred to Erzurum Prison.
9. On 9 February 2004 a prisoner told the governor of Erzurum Prison that Bilal Çoşelav had been “behaving oddly”, had talked about hanging himself, and his behaviour had been causing concern in the juvenile wing.
10. On the same day, Bilal Çoşelav was transferred from the juvenile wing of the prison to another wing which housed adult prisoners from his home town. According to a report drawn up by prison officers, this had been at the request of Bilal Çoşelav, who had claimed that “although his identity card showed that he was seventeen years old, he was actually older” and could therefore be detained in an adult wing.
11. On 16 February 2004 Bilal Çoşelav told the prison governor that he wanted to be transferred to another wing because he did not get on with the people in his wing.
12. Between 27 February and 10 December 2004 Bilal Çoşelav sent twenty-two letters to the prison governor and the prosecutor of Erzurum Prison stating that he urgently needed to see the governor to discuss his personal problems. On the few occasions on which his requests were granted he told the governor that he wanted to be transferred to another wing in the prison. He also informed the governor that he had not been visited regularly by his family, that he did not have any money and that he wanted to work in the prison to earn some.
13. According to two reports drawn up by prison officers, on 15 December 2004 Bilal Çoşelav met with the deputy governor and asked to be transferred to another cell. When his request was refused he tried to attack a prison warder with a razor blade, kicked and broke the sink in his cell and set fire to his mattress.
14. According to another report drawn up by prison officers, on 17 December 2004, at approximately 10.00 a.m., Bilal Çoşelav injured his head by repeatedly hitting it against his cell walls and was then taken to the infirmary to have the injury treated. Later on the same day, he was brought back to the wing and placed in a cell on his own.
15. At around 1.30 p.m. that same day, Bilal Çoşelav hanged himself from the iron bars of his cell with his bed sheets. A doctor arrived and for five minutes tried unsuccessfully to resuscitate him, finally pronouncing him dead.
16. Later on the same day, the Erzurum prosecutor and a doctor arrived at the prison and photographed Bilal Çoşelav’s body. They then took the body to the local hospital where, on the same day, a post-mortem examination was carried out. According to the post-mortem report, the cause of death was asphyxia. Samples taken from the body were sent for further forensic examination.
17. Between 17 and 21 December 2004 prosecutors questioned the prison officers. Their statements agreed with the above-mentioned reports. The prisoners questioned by the prosecutors stated that they had not seen the incident. Both the prison officers and the prisoners claimed that they knew Bilal Çoşelav had problems.
18. It appears from a report that, on 30 December 2004, a prosecutor instructed the prison governor to inform the family of Bilal Çoşelav’s death. Later on the same day the prison governor obtained the telephone number of the second applicant (Bekir Çoşelav) from the prison records and informed him of the death of his son.
19. On 3 January 2005 the second applicant formally identified the body of his son. On the same day, the prosecutor released the body for burial.
20. On 7 January 2005 the second applicant met with the Erzurum prosecutor and told him that he had not been informed of the death of his son until 30 December 2004. He alleged that Bilal had not had any problems with his family and that he might have been killed by two prison warders with whom he had argued in the days leading up to his death. He also wanted the prison officers prosecuted for their failure to inform him promptly of his son’s death.
21. Proceedings were brought by the disciplinary board of the prison against two prison warders who had been on duty in Bilal Çoşelav’s wing on the day he committed suicide. On 3 February 2005 the disciplinary board decided to give formal warnings to these warders. It was noted in the disciplinary board’s report that the large number of cells in the wing had made it impossible for the warders to keep a constant watch on Bilal Çoşelav, who had been suffering from psychological problems. However, adequate precautions could have been taken by increasing the number of prison warders there, which would have ensured that he was under sufficient surveillance.
22. On 10 February 2005 both applicants, with the assistance of their legal representative, submitted a detailed complaint to the prosecutor claiming, inter alia, that the iron bars from which their son had allegedly hanged himself were too low - for a person of his height (180 cm) - to have been effective for this purpose.
23. The doctors who had examined the samples taken from Bilal Çoşelav’s body stated in their report of 29 March 2005 that his death had been caused by hanging.
24. On 29 April 2005 the Erzurum prosecutor decided to close the criminal investigation stating that, in his opinion, no one had incited or encouraged Bilal Çoşelav to commit suicide.
25. On 3 May 2005 the Directorate for Prisons informed the second applicant that disciplinary proceedings had been brought against the prison officers who had failed to inform the family of the suicide of their son.
26. The applicants filed an objection against the prosecutor’s decision to close the criminal investigation. They argued that the prosecutor had failed to carry out a thorough investigation into the facts surrounding their son’s death.
27. The objection was dismissed by the Oltu Assize Court on 7 February 2006. That decision was communicated to the applicants on 6 September 2006.
28. In the meantime, on 21 November 2005, the applicants wrote to the Ministry of Justice claiming compensation for the death of their son. In their letter the applicants argued, inter alia, that even assuming that their son had committed suicide, this was on account of the prison authorities’ failure to take adequate steps to protect his right to life. When the Ministry of Justice failed to respond to their letter, the applicants brought an action against the Ministry before the Erzurum Administrative Court on 8 February 2006.
29. On 29 December 2006 the Erzurum Administrative Court, by a majority of two to one, rejected the applicants’ case, with the majority considering that the prison authorities could not be blamed for Bilal Çoşelav’s suicide, which had occurred as a result of his family problems. The dissenting judge, however, noted in his separate opinion that Bilal Çoşelav was being held in an adult wing of the prison in breach of the applicable domestic law, which required that he be kept in a juvenile wing. The judge argued that the possibility that his detention with adults had contributed to his psychological problems could not be excluded. He added that the fact that Bilal had repeatedly asked to be transferred showed that he had been having problems with the adult prisoners in his wing. The dissenting judge concluded by arguing that Bilal Çoşelav should have been kept under constant observation, at least on that particular day when he had injured himself by hitting his head against the wall, some hours before he had succeeded in killing himself.
30. On 12 March 2007 the applicant lodged an appeal against the Erzurum Administrative Court’s decision. On 15 December 2010 the Supreme Administrative Court quashed the decision and held that the file should be returned to the Erzurum Administrative Court for reconsideration. In its decision the Supreme Administrative Court also referred to the prison disciplinary board’s conclusion (see paragraph 21 above), and concluded that the decision adopted by that disciplinary board proved that the prison authorities had acted in breach of their duties by failing to ensure an adequate watch on Bilal Çoşelav, who had been suffering from psychological problems. It also held that the prison authorities’ failure to inform the family in a timely manner of the death of their son must have contributed to the family’s suffering. According to the information provided by the applicants, the Ministry of Justice requested a rectification of the Supreme Administrative Court’s decision and the examination of that request is still continuing before the Supreme Administrative Court.
31. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (which entered into force on 5 July 1967 and was repealed in 2006) stipulated that prisoners under the age of eighteen were to be kept separately from other prisoners. According to Article 106 of the Regulations, prisoners were to be given the opportunity to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”.
32. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules of 11 January 2006 (“the European Prison Rules”) includes in its basic principles:
“...
11.1 Children under the age of 18 years should not be detained in a prison for adults, but in an establishment specially designed for the purpose.
11.2 If children are nevertheless exceptionally held in such a prison there shall be special regulations that take account of their status and needs.
...
35.1 Where exceptionally children under the age of 18 years are detained in a prison for adults the authorities shall ensure that, in addition to the services available to all prisoners, prisoners who are children have access to the social, psychological and educational services, religious care and recreational programmes or equivalents to them that are available to children in the community.
...
35.4 Where children are detained in a prison they shall be kept in a part of the prison that is separate from that used by adults unless it is considered that this is against the best interests of the child.
...”
33. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows:
“Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ...
7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...”
34. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997 (CPT/Inf (99) 2 EN, publication date: 23 February 1999), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons”.
35. In a report on its visit to Turkey between 16 and 29 March 2004 (CPT/Inf (2005) 18), the CPT stated the following:
“[i]n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (‘the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities’) have apparently had little practical impact.”
36. The 1989 United Nations Convention on the Rights of the Child (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.
Article 1 of the UN Convention states:
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”
Article 3(i) states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 37 (c) provides:
“States Parties shall ensure that:
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...”
Article 40 provides in so far as relevant:
“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society.
...”
37. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child in respect of Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows:
“65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period.
66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 39 and 40, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province...”
38. According to UNICEF, the juvenile justice system was in its infancy in Turkey in 2008. Judges were still learning about child-sensitive detention centres, alternative dispute resolution procedures and due process for children in conflict with the law.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1