ITEMID: 001-85442
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF AZIYEVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life;Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1947 and 1949 respectively. They are married and had two sons: Lom-Ali Aziyev, born in 1973, and Umar-Ali Aziyev, born in 1974. They all lived in an apartment situated on the second floor of a block of flats at 49 Tukhachevskogo Street, Grozny.
7. During the night of 24 September 2000 the applicants and their sons were asleep at home. At around 1.20 a.m. a group of eight armed men wearing camouflage uniforms and masks and carrying torches entered the applicants’ flat, having broken down the door. The men did not identify themselves. The applicants claimed that the men were members of the Russian military, since they spoke Russian and could move around freely in Grozny during the curfew.
8. The men kicked the first applicant and beat him with machine guns. They aimed their guns at both applicants and ordered them to be silent.
9. Thereafter the men proceeded to the applicants’ sons’ room. Without producing any documents to authorise their actions, the men searched the room and arrested Lom-Ali and Umar-Ali Aziyev. As the applicants’ younger son resisted, he was knocked off his feet, handcuffed and blindfolded. Then the men took away the Aziyev brothers, who only had their underwear on and were barefoot. One of the men also took a pair of shoes and a tape recorder. The second applicant’s attempts to obstruct the detention of her sons failed as the men threatened her with firearms. According to the applicants, the men assured them that they would check their sons’ identities and release them immediately afterwards.
10. In the morning the applicants found their sons’ identity documents on a bedside table in the room. The room was in a mess and a sofa was broken.
11. The applicants submitted that the neighbours had told them later that on that night armed men wearing masks, with torches, had been standing on all the landings of their building, between the first and the ninth floors. One of the women neighbours told them that she had been asked about the Aziyev brothers and that she had replied that they were “good boys”.
12. In support of their statements, the applicants submitted two written accounts signed by five of their neighbours from the building, including Mr R., and one account from a man who lived in the building opposite theirs, about 30 metres away. They confirmed the applicants’ submissions and stated that in the early hours of 24 September 2000 the doors of two flats in that building had been broken down by a group of men wearing training shoes and armed with automatic rifles. They asked the neighbours about the Aziyev family, with whom the neighbours were on good terms. One of the neighbours saw the group of armed men walking afterwards towards the military roadblock at the intersection of Tukhachevskogo and Kaspara Streets.
13. The applicants have had no news of their sons since.
14. The Government did not dispute the circumstances of the Aziyev brothers’ detention as presented by the applicants. They submitted that during the night of 24 September 2000 unidentified persons wearing camouflage uniforms and masks and armed with automatic weapons had arrested the brothers L.-A. and U.-A. Aziyev at 49 Tukhachevskogo Street, apartment no. 79, and taken them away to an unknown destination. The same persons had caused physical injuries to the first applicant.
15. On 24 September 2000, in the morning, the first applicant was taken by his neighbours to Hospital no. 9 and underwent a medical examination.
16. The examination established that he had a craniocerebral injury, an avulsed wound (with detached tissue) in the temple area, a haematoma of the head as well as concussion, temporary blindness, a haematoma of the thorax and the subcutaneous stomach tissue, a haematoma of the scrotum, uraemia, fractured ribs and a contusion of the liver, of the kidneys and of the bladder.
17. The first applicant submitted that he had had to stay in bed for about a month to recover.
18. According to the Government, the first applicant had first notified the authorities of the beatings in February 2001. The first applicant argued that he had talked about his injuries to the investigators who had questioned him on 24 September 2000, and that he had mentioned the beatings in a letter to the prosecutor of the Chechen Republic dated 9 December 2000, a copy of which had been submitted to the Court.
19. On an unspecified date the Grozny Town Prosecutor’s Office (“the Grozny prosecutor’s office”) ordered a forensic medical examination of the first applicant so as to ascertain whether there was a causal link between his injuries and the actions of unknown servicemen who had raided his flat on 24 September 2000 and beaten him.
20. This examination was carried out on 8 February 2001. The report relied on a medical record indicating the results of the medical examination carried out on 24 September 2000 and confirmed that the injuries in question could have been sustained during the period and in the circumstances described by the first applicant.
21. It appears that the first applicant’s allegations were investigated in the context of criminal proceedings brought in respect of the abduction of his two sons and that on 17 December 2003 he was granted victim status in that connection.
22. In 2005 the investigating authorities ordered another forensic medical examination on the ground that the results of the examination of 8 February 2001 were unreliable. On 10 March 2005 experts reported that they had not found any signs of injury to the first applicant’s head, face or body, and that X-ray examinations had not disclosed any damage to the first applicant’s heart, lungs or ribs. With reference to the medical record made in Hospital no. 9 on 24 September 2000 the experts concluded that the injuries complained of by the applicant had been acquired on that date, and that the first applicant had been likely to have sustained those injuries during the period and in the circumstances described by him. The report also stated that there were no objective data to confirm the conclusion of the examination of 24 September 2000 that the applicant had had fractured ribs, concussion and contusions of the liver, of the kidneys and of the bladder.
23. Since 24 September 2000 the applicants have repeatedly applied in person and in writing to various public bodies, including the district office of the Ministry of the Interior (“the ROVD”), prosecutors at various levels, a military commander’s office, the administrative authorities of Chechnya and the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms. They have been supported in their efforts by two NGOs: Memorial and the SRJI. In their letters to the authorities the applicants referred to their sons’ detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices.
24. The first applicant has also visited a number of detention centres and prisons in Chechnya as well as further afield in the Northern Caucasus, but has received no information as to the whereabouts of his sons.
25. On 29 September 2000 the Grozny prosecutor’s office instituted a criminal investigation into the disappearance of the applicants’ sons under Article 126 § 2 of the Criminal Code (kidnapping of two or more persons by a group using firearms). The case file was assigned no. 12200.
26. On 11 October 2000 the Grozny prosecutor’s office granted the second applicant victim status. According to the Government, she was notified of that decision the same day. From the applicants’ submissions it appears that they were not informed of that decision until May 2003, when they received a copy of it.
27. On 29 November 2000 the Grozny prosecutor’s office suspended the criminal proceedings for failure to establish the identity of those responsible.
28. On 9 December 2000 the first applicant wrote to the public prosecutor’s office of the Chechen Republic (“the Chechnya prosecutor’s office”) and stated the circumstances of his sons’ detention and of his injuries. He stated that his children had never taken part in the activities of illegal armed groups and asked for the persons who had committed the crime to be identified.
29. In a letter of 19 January 2001 the Chechnya prosecutor’s office informed the applicants that the decision of 29 November 2000 had been set aside.
30. On 1 February 2001 the investigation of the disappearance of Lom-Ali and Umar-Ali Aziyev was resumed.
31. On 1 March 2001 the criminal proceedings in case no. 12200 were adjourned, since no culprits had been identified.
32. On 11 September 2001 the second applicant submitted a complaint to the Chechnya prosecutor’s office. In it she outlined the circumstances of her sons’ detention and mentioned that in June 2001 she had seen a list of persons who had allegedly been detained at the Khankala military base and that the name of Lom-Ali Aziyev, detained on 23 September 2000, had been on that list.
33. In a letter of 19 June 2002, in response to a request from Memorial on the applicants’ behalf, the Chechnya prosecutor’s office stated that the decision of 1 March 2001 had been quashed, and the investigation of the abduction of the Aziyev brothers reopened.
34. In a letter of 30 July 2002 the Chechnya prosecutor’s office informed the applicants of the decision to reopen the criminal proceedings in case no. 12200.
35. According to a letter from the Grozny prosecutor’s office dated 29 October 2002, the criminal proceedings were again suspended on 6 September 2002.
36. In a letter of 17 September 2003 the Chechnya prosecutor’s office informed the applicants that the investigation of the disappearance of their sons had been suspended on 27 July 2003, as the perpetrators had not been found.
37. It appears that some time later the investigation was resumed, as in a decision of 17 December 2003 the prosecutor’s office of the Leninskiy District of Grozny (“the Leninskiy district prosecutor’s office) declared the first applicant to be a victim of crime in case no. 12200.
38. On 22 June 2005 the SRJI, on behalf of the applicants, requested the Leninskiy district prosecutor’s office to give them an update of the investigation of the kidnapping of the Aziyev brothers and to allow the applicants, as victims, access to the investigation file. In July 2005 the district prosecutor’s office replied that the investigation had been adjourned on 28 April 2005 and that all the necessary investigative measures had been taken. The second applicant was invited to access the file at the prosecutor’s office during working hours.
39. On 1 November 2005 the Leninskiy district prosecutor’s office informed the first applicant that the investigation had been resumed. On 1 December 2005 the first applicant was informed that the investigation had been adjourned and of his right to appeal.
40. The applicants submitted that their health had deteriorated significantly since the events of 24 September 2000 and the disappearance of their sons. They presented a number of medical documents, according to which the first applicant was suffering from the consequences of a stroke and the second applicant had chronic hypertension and rheumatological problems.
41. In their observations the Government did not dispute the information concerning the investigation of the abduction of the Aziyev brothers as presented by the applicants. Relying on information obtained from the General Prosecutor’s Office, they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court and two reminders, the Government did not submit copies of most of the documents to which they referred (see below).
42. With reference to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation of the abduction of Lom-Ali and Umar-Ali Aziyev and the inflicting of injuries to the first applicant by “unidentified masked men in camouflage uniforms with machine guns” had commenced on 29 September 2000. They further submitted that an investigator from the Grozny prosecutor’s office had examined the scene of the incident on 24 September 2000, but “had not found any evidence of crime”. The investigator also questioned the applicants.
43. The first applicant was questioned further on 22 June 2002, 17 December 2003, 21 February and 5 April 2005, and the second applicant was questioned as a witness on 11 October 2000 and 22 June 2002. The applicants were granted victim status on 17 December 2003 and 11 October 2000 respectively.
44. In April 2005 new charges were brought against the same unidentified persons who had stolen the applicants’ property. The Government submitted that in September 2006 the investigation had sent requests to all the district departments of the interior in Chechnya with the aim of establishing the whereabouts of the pair of shoes and video player stolen from the applicants.
45. As the Government stated, the investigation questioned a number of witnesses. On unspecified dates two of the applicants’ neighbours, including Mr. R., testified that during the night of 24 September 2000 “unidentified armed men in camouflage uniforms had burst into their flat, checked their documents and then left”. Mr R. had been additionally questioned in October and November 2006, when the investigation decided that no further criminal investigation would be opened, as the witness had not sustained any damage.
46. In November 2005 and October 2006 the investigation questioned twelve persons, some of them the applicants’ relatives and neighbours. According to the Government, they confirmed the arrest of the Aziyev brothers in September 2000 by unidentified armed men. Apparently, the witnesses were mostly aware of this event by hearsay. According to the Government, it was impossible to find other witnesses in the case.
47. The Government submitted that the investigating authorities had sent a number of queries to various State bodies on 11 October 2000, 3, 10, 11 and 16 February and 23 October 2001, 21 June 2002, 1 December 2003, 14 February and 2 November 2005 and had taken other investigative measures, but did not specify what those measures had been. They also submitted that in April 2005 the investigation had sent requests to all district departments of the interior in Chechnya with the aim of establishing the whereabouts of the Aziyev brothers; however, no relevant information had been obtained. The Government referred to a reply from the criminal police Department of the Ministry of the Interior of Chechnya, which had stated that the two men had not been detained by that body and had not been delivered to the law-enforcement authorities.
48. According to the documents submitted by the Government, between September 2000 and November 2006 the investigation was suspended and resumed on eight occasions, and has so far failed to identify those guilty. In the latest decision to resume the investigation, dated 10 November 2006, the deputy prosecutor of the Leninskiy district prosecutor’s office criticised the progress of the investigation and stated that a number of important investigative steps should be taken without delay. These included the following actions:
“ – to collect his sons’ identity documents from [the first applicant];
- to obtain full descriptions of the brothers U.-A. and L.-A. Aziyev;
- to question the applicants further in order to find out which language the abductors spoke;
- to make a legal assessment of the actions of the persons who unlawfully broke into the apartments of [the applicants] and [their neighbour Mr. R.];
- to question the sister of the two kidnapped men;
- to question the inhabitants of the nearby houses in order to find out whether they saw servicemen walking to the checkpoint that night.”
The Government further submitted that the progress of the investigation was being supervised by the Prosecutor General’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation.
49. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 12200, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives of the adjournment and reopening of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
50. On 30 December 2002 the SRJI applied on the applicants’ behalf to the Leninskiy District Court of Grozny (“the District Court”), complaining that the Grozny prosecutor’s office had failed to investigate the disappearance of Lom-Ali and Umar-Ali Aziyev effectively.
51. On 19 May 2003 the District Court dismissed that complaint, having found that the investigating authorities had taken all necessary measures to find the Aziyev brothers and those involved in their abduction. The applicants did not appeal against that decision. In their submissions to the Court they alleged that they had been unable to do so, as they had not been notified of the court session and that the decision in question had been taken in their absence. From the copy of the court decision submitted by the Government it transpires that the first applicant attended the court session.
52. Until 1 July 2002 criminal law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
53. Article 161 of the new CCP establishes the rule that data from a preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from an investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-122247
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 6. Mr Mustafa Tunç and Mrs Fecire Tunç were born in 1946 and 1952 respectively and live in Istanbul. They are the father and mother of Cihan Tunç, who was born in 1983 and died on 13 February 2004. Mr Yüksel Tunç, the applicants’ son and brother of Cihan Tunç, was born in 1978 and lives in Istanbul.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. On 13 February 2004, at about 5.50 a.m. and in the course of carrying out his military service in Kocaköy, on a site belonging the private oil company NV Turkse Perenco (“Perenco”) for which the national gendarmerie was providing security services, sergeant Cihan Tunç was injured by gunfire. He was one of the gendarmes on duty and assigned to the guard post known as “tower no. 3”. The incident took place at the guard post known as “tower no. 2”.
9. Cihan Tunç was transported to hospital immediately after the incident by several servicemen, including sergeant A.A. and private M.S., who was the last person to have seen Cihan Tunç before the incident.
10. Cihan Tunç was pronounced dead shortly after his arrival at Diyarbakır Military Hospital.
11. The Diyarbakır military prosecutor’s office was informed immediately after the incident and a judicial investigation was opened as a matter of course.
12. A military prosecutor went to the hospital to which Cihan had been admitted and was joined there, on his instructions, by a team of criminal investigation experts from the national gendarmerie. He also sent another team to the scene of the incident and asked the Kocaköy (civilian) prosecutor to attend, in order to supervise the initial investigations and take any measures necessary to secure evidence.
13. A few hours after the incident an external examination of the corpse and an autopsy were conducted at the hospital, under the military prosecutor’s supervision.
14. Several photos were taken of the corpse. The deceased’s clothing was removed and sent for laboratory analysis with a view to determining the distance from which the shot had been fired. Fingerprints were taken from the deceased and from M.S., the last person to have seen Cihan Tunç alive. Swabs were also taken from their hands, to be checked for gunshot residue. Finally, the deceased man’s pockets were emptied and their contents recorded.
15. The prosecutor then instructed forensic doctor L.E. to examine the body with a view to ascertaining the cause of death, and, if appropriate, making observations on the circumstances of the death.
16. The forensic doctor found as follows: body height, 1.75 metres; entry wound with abrasion ring on the right side of the neck; exit wound measuring 4 x 2 centimetres on the left side of the back, under the lower edge of the shoulder blade.
17. He noted no trace on the body of blows or violence.
18. He stated that death had occurred following a haemorrhage caused by a bullet wound, and that the bullet had struck the trachea and left lung.
19. He also mentioned that the shot had probably been fired at point-blank range (yakın atış).
20. He based that conclusion on the presence of certain residue material. The relevant part of his report on this point reads as follows:
“No skin coloration due to a burn or smoke was observed on the right side of the face or on the neck area. Traces of gunpowder were noted only on the right side of the face, on the lower curve of the chin.”
21. All of those observations were recorded in a document entitled “Record of the post-mortem examination and autopsy”.
22. The military prosecutor also questioned private M.S. and sergeant A.A. (see paragraphs 32-34 and 42-45 below), who had arrived at the hospital in the vehicle transporting Cihan Tunç.
23. Simultaneously, a team of experts from the gendarmerie’s criminal investigation laboratory and the Kocaköy prosecutor went to the site a few hours after the events.
24. According to the Kocaköy prosecutor’s report, the site had a total of six guard posts: a watchtower, known as the “high tower” and five guard posts. The incident took place in a building measuring 2 x 2 metres, with a ceiling height of 2.33m and openings placed 1.5m from the ground.
25. Again according to the report, two cartridges and a bullet shell were found lying on the ground inside the guard post. The ceiling had an impact mark which resembled that of a shot. Small pieces of cement debris from the ceiling were found on the floor, on which there were also large bloodstains.
26. The report also mentioned that a summary examination of the deceased man’s weapon, a G-3-type rifle that had been placed under lock and key pending the prosecutor’s arrival, made it possible to confirm that it had been used a short time previously. This weapon, as well as the weapon assigned to private M.S., an MG-3-type rifle which seemed not to have been used, had been sent to a laboratory for scientific analysis.
27. Finally, the report specified that a detailed description had been drawn up, two sketches had been drawn, photographs taken and a video recording made.
28. On 16 February 2004 the gendarmerie’s criminal research laboratory issued an expert report (report no. 2004/90/chemical). It indicated that analysis of the samples taken from the hands of the deceased man and M.S. using the so-called “atomic absorption spectrometry” technique had revealed the presence of lead, barium and antimony on the deceased’s hands, and of barium and antimony on those of M.S. After noting that those elements were residues from the discharging of a weapon, the report noted that gunpowder residues contained micrometric particles which passed very easily from one surface to another and that those residues frequently migrated to the hands when administering first aid.
29. The report also noted that the tests on Cihan Tunç’s clothes indicated that he had been the victim of a shot fired at point-blank range.
30. On 17 February 2004 the national police criminal laboratory in Diyarbakır also issued an expert report (report no. BLS-2004/464) following ballistic tests carried out on the bullet shell and two weapons found at the site of the incident. The reports indicated that the two rifles were operating normally and confirmed that the bullet shell that had been found came from Cihan Tunç’s weapon.
31. As part of the investigations carried out by the military prosecutor’s office and the gendarmerie’s internal investigation, numerous servicemen were questioned on the day of the incident.
32. In his evidence to the military prosecutor, M.S. stated:
“Cihan arrived at the tower where I was on duty fifteen to twenty minutes before the start of his guard, since that was where the handover was to take place... He told me that he was feeling down. When I asked him why, he answered “Forget it, mind your own business, you wouldn’t understand in any case”. His reply annoyed me, I had the impression he thought I was an idiot. I lit a cigarette and [Cihan] went into the tower ... he began playing with the cocking lever on his rifle. I came in and told him to stop ... He told me to mind my own business and go and have a cigarette ... At that point I went out ... I was five or six metres from the tower when I heard a shot. I ran inside. [Cihan] was lying on the ground ... his rifle was on his right hand and the barrel was on his shoulder. I removed the rifle and tried to revive [Cihan] by shaking him, blood had begun to flow... Sergeant A.A. arrived [with other soldiers]”.
33. In response to the prosecutor’s questions, M.S. replied that he had not had a dispute or a problem with Cihan Tunç, either during the duty shift or before it. He confirmed that he had not tried to remove the weapon from his hands at any point. He testified that he had not shot his comrade.
34. In response to another question, he stated that, when Cihan Tunç had loaded and then unloaded the weapon several times, he had seen full cartridges being ejected from the side of the rifle.
35. During questioning by the gendarmerie’s internal investigator, he stated:
“Sergeant A.A. came past about 5 a.m., during his patrol, to check up. Cihan Tunç arrived shortly afterwards, at about 5.50 a.m. ... he came into the tower room and began to play with his weapon, he loaded and then unloaded it three or four times, and removed the magazine and put it back on. I asked him to stop, and said that we would both be punished if a senior officer were to come in unannounced... He stopped for a moment. I was standing seven or eight metres away from him. Then, [when] outside the post, I heard the noise of the cocking lever two or three times, followed by the sound of the weapon going off ... [Cihan] was lying on the ground, the weapon was on his chest. I tried to revive him. At that point, sergeant A.A. and the soldiers who were due to replace us arrived. We carried Cihan close to the container, then we took him to Diyarbakir Hospital in a Renault car belonging to the Perenco company...”
36. To the question “how do you explain the fact that two cartridges were found on the site of the incident?” M.S. replied that he had no explanation. He added that perhaps these were cartridges which had fallen when Cihan Tunç was loading and unloading the weapon.
37. In response to another question, he said that he was unable to state if the magazine had been on the weapon at the time of the incident, since he had paid no attention to that point.
38. The investigator also asked M.S. about the positions of the weapon and Cihan Tunç. More particularly, he asked if the latter had been sitting or standing when manipulating his rifle.
39. M.S. indicated that, while he was inside the post with Cihan Tunç, the latter had pointed the weapon towards the ceiling and charged it, and had then removed the magazine and operated the lever to eject the loaded cartridge. As he left the post, he saw Cihan Tunç sit down on an ammunition chest. While still outside, he heard the sound of the cocking lever a further two times, then a bang.
40. Finally, the investigator questioned M.S. about the location of the weapons. According to M.S., his rifle was on a rack inside the post, and the tripod was folded. Cihan’s weapon was on his chest.
41. In those two statements, the premises where the incident took place is described indiscriminately by the terms “duty station no. 4” (4 nolu nöbet mevzisi) or “tower no. 2” (2 nolu kule).
42. In his statement to the military prosecutor, sergeant A.A. indicated that he had heard a gunshot and, together with several privates, had rushed to the spot from where the sound had come. They found Cihan Tunç lying on the ground. After attempting to find the injured man’s pulse, A.A. ordered that he be transported to the canteen and then to hospital.
43. With regard to the guard posts, sergeant A.A. indicated that only three were in use. The first was situated at the entrance to the site (nizamiye); the second post, known as the “low tower”, although in reality located in fourth position from the entrance, was also known as “tower no. 2”, since the two preceding posts were not used. The third post was known as “tower no. 3” or “the high tower”.
44. A.A. also specified that he did not know of any problems experienced by Cihan Tunç or M.S.
45. In reply to a question from the prosecutor, he repeated the account of the events given to him by M.S. This account corresponded to the statement made by M.S.
46. A.A. gave similar evidence to the gendarmerie’s internal investigator.
47. Captain S.D. and Staff Sergeant C.Y. indicated that they had become aware of the incident while they were in the Kocaköy barracks. On arrival at the scene, they very quickly inspected the premises without disturbing the scene of the event. They had seen an empty bullet shell and two cartridges for the G-3 rifle, one on the ground and the other on the rack. They had also noted blood on the ground.
48. Sergeant A.K. gave the following evidence to the investigator:
“Cihan was on duty at post no. 2 ... During my patrol, at about 5.15 a.m.... everything was normal. I exchanged a few words with Cihan, who was on duty in the high tower... When I arrived at the scene of the incident, M.S. was trying to lift Cihan.”
49. As to the position of the magazine, sergeant A.K. stated that he had not paid attention to it at the time. However, he remembered that, after carrying Cihan to the canteen, private S.K. went and brought the weapon to him, and he observed that the magazine was not in place on the rifle.
50. To the question “why did the incident take place at post no. 4, where M.S. was on duty, although Cihan Tunç had been assigned to the high tower?” he replied:
“I do not know. It is possible that Cihan left his post to go there because he was almost at the end of his duty period. When I did my round, at about 5.15 a.m., Cihan was at his post in the high tower.”
51. Private S.K. confirmed A.K.’s statement, indicating that the weapon and the magazine were inside the guard post, but that the magazine was not on the weapon.
52. Private E.C. stated that when he arrived on the scene M.S. was attempting to lift Cihan Tunç. He also confirmed that the magazine was not on the weapon.
53. The following additional elements emerged from other statements.
54. Cihan Tunç had arrived one week previously in the Perenco site protection team, which was composed of sixteen persons. He had no known problems and had not had a dispute with the other soldiers.
55. At the time of the incident, private S.S. was on sentry duty at the first guard post, located at the entrance to the site.
56. After sergeant A.A. and the other servicemen arrived on the scene of the incident, M.S. was sent to the canteen to get help.
57. On 30 June 2004, holding that there were no grounds for finding that another person had been responsible for Cihan Tunç’s death, the prosecution service issued a decision not to bring a prosecution. The prosecutor set out the evidence gathered during the investigation. He considered that the shot had been fired when the young man, with his chest bent, had been leaning towards his right side and the barrel of the rifle was pointed towards his neck. He stated that this explained, in particular, the bullet impact on the ceiling. However, the prosecutor’s decision gave no reason for the shot having suddenly been fired.
58. On 16 July 2004 the prosecutor, in response to a request from the applicants’ lawyer, sent her correspondence containing a copy of the decision and a letter in which he indicated that, in application of the Practice of the Legal Profession Act, the entire case file was at her disposal, and that she could examine it and have a copy made of any item of evidence she considered relevant.
59. The applicants appealed against the decision, alleging that several grey areas remained as to the circumstances of Cihan’s death. In particular, they claimed that the trajectory followed by the bullet had not been clearly defined.
60. On 14 October 2004 the Diyarbakır air-force military court upheld the applicants’ appeal and ordered the prosecution service to carry out an additional investigation. In particular, it considered that the bullet’s trajectory and the firing position needed to be clearly established, on the basis of the entry and exit wounds on the body and the impact mark of the bullet on the ceiling. It also indicated that no plausible grounds for suicide had been identified. It added that, in any event, the position of the body at the time of the shot had been unusual for a suicide. Finally, it stated that no explanation had been provided for the gunshot residue on the hands of M.S., the last person to have seen Cihan Tunç before the incident.
61. On 24 November 2004 the military prosecutor went to the Perenco site, accompanied by three criminal investigation experts.
62. The group went to the guard post where the incident had taken place. Once all of the materials in the case file had been examined, a reconstruction of the events was carried out, assisted by an individual who was similar in build to the deceased man.
63. Steps to determine the bullet’s trajectory were taken, particularly through the use of a string stretched between the impact mark on the ceiling and the barrel of a G-3 rifle. Photographs were taken.
64. The experts observed that the floor was made of concrete, although the previous records described a dirt floor. According to material provided by the site managers, various premises, including several dirt tracks, had been cemented over since the incident, with a view to keeping the soldiers’ uniforms clean. During this work, the floors had not been raised. This was confirmed by measurements which established that the ceiling height was still 2.33 metres.
65. In the light of all the evidence gathered, the experts reached the following conclusion: Cihan Tunç had been sitting or crouching and was holding his rifle in his right hand; when he tried to stand up by leaning on his weapon, and with his knees still bent, his hand had pulled the trigger and the shot had been fired.
66. During his visit to the site, the prosecutor questioned private E.C. He stated that, when he arrived, M.S. was crouching down behind Cihan Tunç and was trying to lift him by pulling him under the arms.
67. All of this evidence was set out in a report dated 24 November 2004.
68. On 8 December 2004 the prosecutor completed the investigations and sent the file to the military court, together with a report on the additional investigation requested (report no. 2004/632E.O), setting out the measures taken and responding to the shortcomings noted by the court. With regard to the traces of gunshot on the hands, he pointed out that the file contained an expert report indicating that gunshot residue was very volatile and that it could have moved from the dead man’s clothes or hands to M.S.’s hands immediately after the incident. He added that several statements had supported such a hypothesis, in that they confirmed that M.S. had been in physical contact with the deceased when attempting to lift him.
69. With regard to the court’s claim that the firing position hardly corresponded to that of an individual who intended to commit suicide, and its argument about the lack of a motive, the prosecutor stated that the decision not to prosecute contained no indication that the incident had been a suicide and, furthermore, that the conclusion of suicide had not been entertained.
70. As to ascertaining the bullet’s trajectory in the light of the impact mark on the ceiling and the entry and exit wounds on the body, he stated that the following theory had been accepted: Cihan Tunç had been sitting on an ammunition box and playing with the rifle’s cocking lever and magazine; when he was holding the weapon, with the magazine removed and at an angle on his right side, he had leaned forward and towards his right side with the intention of using the rifle as support in standing up, his hand on the part of the weapon near the trigger, and the shot went off; the bullet had entered through the right side of his neck and emerged under the lower edge of the left shoulder-blade, before hitting the ceiling; thus, Cihan Tunç had not committed suicide, he had been the victim of an accident. The prosecutor added that he had organised a reconstruction of the scene of the incident on 24 November 2004, in order to ascertain the credibility of this hypothesis, having regard to the entry and exit points of the bullet, the point of impact on the ceiling and the deceased man’s build, and that the conclusions of the reconstruction confirmed the scenario put forward.
71. He attached the record of the reconstruction of the incident to his report.
72. On 17 December 2004 the military court dismissed the applicants’ appeal.
73. A letter dated 21 December 2004 was sent to the applicants’ lawyer, informing her of that decision.
74. Neither the date of posting nor the date of receipt of the letter is specified in the case file.
75. The applicants submitted that they received the letter in question at the end of December 2004.
76. The Government made no submissions on this point.
77. The applicants submitted a non-official expert report, prepared at their request by a British expert, Dr Anscombe, and dated 11 October 2005.
78. Dr Anscombe drew up his report in English, on the basis of his examination of a number of documents from the case file, which had been translated into English.
79. The relevant parts of this report read as follows:
“I am a Consultant Forensic Pathologist, accredited by the Home Office Policy Advisory Board for Forensic Pathology (...).
In preparing this report I have been provided with English translations of the following documents relating to Cihan Tunç:
The Inquest and Autopsy Report dated 13th February 2004.
Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”.
Two expert reports dated 16th and 17th February 2004, reference numbers ELS-2004/464 and 2004/90 Chemical.
Three Colour images of the deceased, one taken in life and two taken post mortem, when the deceased is apparently within a coffin.
An image of G3 rifle.
The deceased was taken to a nearby Military Hospital and the autopsy examination carried out later on the day of his death. Such promptness should be regarded as a good practice.
...
Initial examination then appears to involve removing the clothing from the deceased and the photographing it, collection of samples for forensic laboratory investigation, and recording detail content of pockets, etc.
In itself, this process appears to have been carried out appropriately, with collection of appropriate samples given the nature of the incident.
Having completed this stage, the [autopsy] report appears to indicate that the pathologist Dr. E was “called in”, by which I understand had his first opportunity to examine the deceased.
If my understanding is correct, this would cause me some considerable concern because, particularly in the case of shooting fatality, the pathologist should be given as much information as possible as regards the scene and state of the deceased, the latter including the opportunity to inspect and examine the undisturbed clothing.
...
The remainder of the details of the autopsy examination are somewhat brief and sketchy.
Otherwise, the essential autopsy examination findings are included in the report. The conclusion as to the cause of death is reasonable in the light of the stated autopsy findings (i.e. there are no internally inconsistent findings and conclusions).
...
Cihan Tunç sustained a gunshot entry wound to the front side of his neck, and an exit wound on the back of the left shoulder. The photographs demonstrate a small entry wound, and a larger exit wound, and there is in my opinion no possibility that entry and exit have been got “the wrong way round”.
If the bullet has passed through the deceased and embedded itself in the ceiling, then the only way that I can conceive this trajectory of being achievable, is if the deceased was bent over the moment the gun discharged.
The autopsy report indicated that traces of unburned gunpowder were found on the right side of the face and on the curve of the lower jaw, but there was no smoke staining or burning of the skin. This indicates that the muzzle end of the barrel was close to but not in contact with the skin of the deceased. Whilst such discharge deposits depend to some extent on the nature of the weapon and ammunition used, the likely range of fire (i.e. muzzle to skin distance) would be in the region of 15-30 cm.
I am informed that the length of a G3 rifle, believed to be the sort used by the deceased, is 102.3cm. From the image provided, the trigger is approximately two thirds of the length of the rifle away from the muzzle. Depending on the length of the deceased’s arm, the trigger might just be reachable (say with an outstretched finger), if he was bent over the rifle at the time.
The only two other possibilities I can think of are that either the rifle malfunctioned and discharged unexpectedly for some reason (e. g. it was dropped on the floor, or that the rifle was fired by another person – however, this would require that person to be lying on the floor pointing the rifle upwards with the deceased bent over the muzzle (his neck at a distance of 15 – 30 cm) at the time.
There were no autopsy signs that the deceased had been involved in a struggle or a fight.”
80. On 21 April 2004 the Mehmetçik Foundation, which is a subdivision of the armed forces and whose purpose is to support the families of soldiers who die in service, awarded 4,916,700,000 former Turkish lira (a little over 3,000 euros) to the deceased man’s family in financial support.
81. The relevant provisions of the Constitution read as follows:
“Judicial power shall be exercised by independent courts on behalf of the Turkish nation.”
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.”
“Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.”
“Military justice shall be dispensed by military courts and military disciplinary organs. These courts shall have jurisdiction to try military personnel for military offences, for offences committed by them against other military personnel or in military places, or for offences connected with military service and duties.
...
The organisation of military judicial organs, their functions, matters relating to the status of military judges, relations between military judges acting as military prosecutors and the office of the commander under whom they serve, shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and with the requirements of military service.”
82. Section 2 of the Military Courts Act (Law no. 353) provided, at the relevant time:
“Save as otherwise provided in this Act, the military courts shall be composed of two military judges and an officer (subay üye).”
83. The words “and an officer” were set aside by the Constitutional Court, ruling on an application for judicial review, in a decision of 7 May 2009 which was published in the Official Gazette on 7 October 2009. The Constitutional Court held that, in contrast to the military judges, the officer judge did not offer all the necessary guarantees, in that he was not released from his military obligations during his term of office and was subject to the authority of his superiors. Furthermore, it considered the fact that no provision prevented the military authorities from appointing a different officer for each case to be incompatible with Article 9 of the Constitution.
84. Following that judgment the legislation was amended. Section 2 of Law no. 353 now provides:
“Save as otherwise provided in this Act, the military courts shall be composed of three military judges.”
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-57767
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF BELDJOUDI v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 9. Mr Mohand Beldjoudi, who is a mechanic by profession, is an Algerian citizen. He was born in France on 23 May 1950, in Courbevoie (Hauts-de-Seine department). He lived with his parents in the Paris region until October 1969. His parents were born in Algeria in 1909 and 1926 respectively. That country was a French department at the time, and became independent on 3 July 1962, following the Evian "Agreements" of 19 March 1962. In common with their children, they were deemed to have lost French nationality on 1 January 1963 (Law of 20 December 1966 - see paragraph 58 below), because they had not made a declaration recognising French nationality before 27 March 1967 (section 2 of the Order of 21 July 1962 - see paragraph 57 below). Mr Beldjoudi’s father arrived in metropolitan France in 1926 and served in the French army from 1931 to 1955. He subsequently worked until his retirement in 1970 as an assistant, later a civil servant, in the Ministry of Public Health and Population Affairs, this being a post reserved for French nationals. He died in Colombes (Hauts-de-Seine) in 1986.
Mohand Beldjoudi’s mother, who left Algeria in 1948, and four of his brothers and sisters - all born in metropolitan France prior to 1 January 1963 - each have an Algerian national identity card. They reside in France, where they hold residence permits which are valid for ten years and are renewable. The youngest sister resumed French nationality on 20 July 1988.
10. Mrs Martine Teychene was born in France on 8 November 1951, both her parents being French. She has French nationality and works as a secretary.
11. The applicants were married at Colombes on 11 April 1970, after living together for some time. They live at La Garenne-Colombes (Hauts-de-Seine); they have no children.
12. Over the years Mr Beldjoudi was convicted and received custodial sentences as follows:
(a) 27 March 1969, eight months’ imprisonment for assault and battery (Paris Criminal Court);
(b) 29 July 1974, six months’ imprisonment for driving a vehicle without a licence and possession of category one or category four weapons or ammunition (same court);
(c) 10 January 1976, eighteen months’ imprisonment, of which fourteen months suspended, and four years’ probation for theft (Paris Court of Appeal);
(d) 25 November 1977, eight years’ imprisonment for aggravated theft (Hauts-de-Seine Assize Court);
(e) 28 March 1978, three months’ imprisonment for acquisition and possession of category one or category four weapons or ammunition (Nanterre Criminal Court);
(f) 4 February 1986, eighteen months’ imprisonment, of which ten months suspended, and five years’ probation for assault and battery and criminal damage (same court).
13. His periods of imprisonment before 1991, pending trial or after conviction, were as follows:
(a) 20 July - 17 September 1968, one month and twenty-eight days;
(b) 25 August - 8 October 1973, one month and fourteen days;
(c) 3 April - 21 August 1974, four months and eighteen days;
(d) 26 March 1975 - 4 December 1981, six years, eight months and eight days;
(e) 20 October 1985 - 25 April 1986, six months and five days.
Their total length was almost seven years, ten months and two weeks.
14. On 17 January 1991 the applicant was detained on remand at Fleury-Mérogis (Essonne) and his wife was placed under judicial supervision in Ecos (Eure), both having been charged with aggravated receiving of stolen property by an investigating judge at the Melun tribunal de grande instance (Seine-et-Marne).
In a judgment of 23 January 1992 the Indictments Division of the Paris Court of Appeal ordered Mr Beldjoudi’s release subject to judicial supervision.
15. The Minister of the Interior had on 2 November 1979 issued a deportation order against Mr Beldjoudi, on the ground that his presence on French territory was a threat to public order (ordre public).
The order, which was in accordance with the opinion of the Commission on Deportation of Aliens (Commission d’expulsion des étrangers), was served on the applicant on 14 November 1979 at Melun Prison.
16. Mr Beldjoudi requested the Minister of the Interior on five occasions to withdraw the order. The last request, of 8 August 1984, was the only one to receive a reply. This was sent to his lawyer on 4 December 1989 by the Director of the Department of Civil Liberties and Legal Affairs at the Ministry of the Interior, and read as follows:
"Following the decision of the European Commission of Human Rights of 11 July 1989 declaring Mr Beldjoudi’s application admissible [(see paragraph 62 below)], you again drew my attention to your client’s case. You wished in particular to know whether the Minister might be prepared to consider a friendly settlement of this matter.
In the light of a careful re-examination of Mr Beldjoudi’s case, the Minister issued a compulsory residence order (arrêté d’assignation à résidence) on 31 August 1989 for the Hauts-de- Seine department, where the applicant has his habitual residence.
The residence document issued to him has attached to it permission to undertake paid work.
This goodwill decision in favour of Mr Beldjoudi, which has been taken in view of his family ties, may be continued if his conduct is not in conflict therewith.
I confirm, however, that in view of the seriousness and the number of the offences committed by Mr Beldjoudi, it has not appeared possible to revoke the deportation order issued against him.
..."
17. The compulsory residence order was served in November 1989.
18. On 27 December 1979 Mr Beldjoudi appealed to the Paris Administrative Court for the deportation order to be set aside. Having been born in France of parents who were themselves French at the time, he was to be regarded as French and hence not liable to deportation; further, he had no ties with Algeria and had been married to a Frenchwoman for nearly ten years.
19. The Conseil d’État assigned the case to the Versailles Administrative Court, within whose local jurisdiction it fell.
20. On 27 November 1980 that court ordered additional investigative measures: it asked the Minister of the Interior to submit his observations on the applicant’s latest memorial and to produce a copy of the decree of 16 September 1970 refusing him French nationality (see paragraph 32 below).
21. In an interlocutory judgment of 14 October 1983 it decided to adjourn the case until the ordinary courts had decided the question of Mr Beldjoudi’s nationality (see paragraphs 34 and 35 below).
22. On 8 February 1984 Mr Beldjoudi turned down the provisional residence permit which had been offered to him by the prefecture of the Hauts-de-Seine department, on the grounds that by accepting it he would be acknowledging that he was of Algerian nationality.
23. Mr Beldjoudi resumed the proceedings on 20 January 1988, submitting a supplementary memorial, without waiting for a decision on his appeal to the Court of Cassation (see paragraph 41 below). He argued from a law of 9 September 1986, which had amended the second paragraph of section 25 of the 1945 Order on which the deportation order was based: having been habitually resident in France from birth, he could not be the subject of such an order, as he had not been convicted and sentenced to a term of imprisonment of at least six months not suspended or one year suspended in respect of offences committed after the coming into force of that law.
24. On 18 February 1988 Mr Beldjoudi added to his supplementary memorial. With reference to Article 8 (art. 8) of the Convention, he maintained that implementation of the said order would be a serious interference with the respect due to his private and family life; he pointed out in this connection that he had been married to a Frenchwoman since 1970, he had been born in France, had lived there uninterruptedly and had received a French education and upbringing there.
25. On 21 April 1988 the court dismissed the appeal for the following reasons:
"Considering that by the order dated 2 November 1979 the Minister of the Interior, following the opinion of the special commission set up under section 25 of the Order of 2 November 1945, ordered the deportation of Mr Beldjoudi, an Algerian citizen, who had been convicted by a criminal court on 25 November 1977 and sentenced to eight years’ imprisonment for aggravated theft;
Considering that it does not appear from the case-file that the Minister, in deciding that the presence of Mr Beldjoudi was a threat to public order and consequently ordering his deportation, failed to examine all the evidence relating to the applicant’s conduct or assessed that conduct in a manifestly erroneous manner; and that it is not alleged that this assessment was based on material errors of fact;
Considering that Mr Beldjoudi is not justified in relying on provisions emanating from the Declaration of the Rights of Man and of the Citizen, claiming to this end the benefit of provisions in section 25 of the Order of 2 November 1945 as amended in a version subsequent to the decision appealed against; that having regard to the fact that the measure taken against the applicant was necessary for public safety, he is not entitled to take advantage of the provisions of Article 8 (art. 8) of the European Convention on Human Rights and Fundamental Freedoms;".
26. Mr Beldjoudi appealed to the Conseil d’État on 17 June 1988, asking it to quash the judgment of 21 April 1988 and set aside the order of 2 November 1979 as being ultra vires.
27. The Government Commissioner (commissaire du Gouvernement), Mr Ronny Abraham, made the following submissions:
"The majority of the grounds of appeal should not keep you long. One of them, however, should induce you to re-examine, and in our opinion to amend, your case-law on a point which is of considerable importance.
...
According to the appellant, the deportation order against him is in breach of Article 8 (art. 8) [of the Convention], as it constitutes an excessive interference with his family life. Mr Beldjoudi has been married to a Frenchwoman since 11 April 1970. He had thus been so married for over nine years at the time of the decision appealed against.
In the current state of your case-law this ground of appeal would have to be dismissed as ineffective.
Thus in a decision of 25 July 1980, Touami ben Abdeslem, [Recueil Lebon, tables], p. 820, and JCP [Juris-Classeur périodique] 1981.II.19.613, note Pacteau, your court held that an alien `cannot to any effect rely on ... the provisions of Article 8 (art. 8) of the Convention for the Protection of Human Rights and Fundamental Freedoms ... in support of his submissions asking for the deportation order against him to be set aside’. Making the same point, but expressed slightly differently, the Chrouki judgment of 6 December 1985 found that Article 8 (art. 8) of the European Convention on Human Rights did not prevent exercise of the power conferred on the Minister of the Interior by section 23 of the Order of 2 November 1945, and dismissed the ground of appeal without further consideration (appeal no. 55912).
Whatever the position may be on these uncertainties, we will suggest to you today that you definitely abandon the solution laid down in the Touami ben Abdeslem judgment and adopt an entirely new approach to the question before us.
There are three principal reasons why we suggest this new approach to you.
The first reason is a negative one. It is that we do not really see what can justify the radically unfavourable answer given in 1980.
You surely did not intend to deny Article 8 (art. 8) of the Convention its character as a provision which is directly applicable in the domestic legal order. All your case-law is consistent as to the direct effect of the European Convention on Human Rights, nor does the actual wording of the Touami judgment in any way suggest such an interprÉtation, as Article 8 (art. 8) was not rejected as such, but only with reference to the removal of aliens.
Was it your intention rather to apply the technique of the ‘screen law’, considering that as the law gives a complete and exclusive definition of the legal conditions for deportation, the addition of supplementary conditions derived from international agreements would amount to disregarding the legislature’s intention? If that was the reason for your decision at the time, it would clearly no longer be applicable today, following your plenary court decision of 20 October 1989 in the Nicolo case, according to which treaties take precedence over laws, even if the laws postdate them. But we doubt whether this was the explanation of your decision in Touami: the decision related to a 1978 deportation order; but at that time the relevant internal legislation was not subsequent but prior to France’s ratification of the Convention, and the ‘screen law’ theory explanation is thus not tenable.
More simply, it seems probable to us that you considered that a deportation order was not in itself an interference with the alien’s family life: if the alien has family ties on French territory, nothing prevents the other members of the family group leaving France with him. But this is a very theoretical way of looking at things. It is no doubt correct that in certain cases there is nothing to prevent the family leaving French territory; but in other cases, especially if the alien has a spouse or children of French nationality, it may be difficult on practical or even legal grounds for the other members of the family to follow him, with the effect that the expulsion measure jeopardises the pursuit of an ordinary family life. In any event, it is in our opinion not possible to state that a deportation measure can never of itself be capable of interfering with the family life of the person concerned, and there is no reason to dismiss a priori as ineffective a ground of appeal based on Article 8 (art. 8).
There is a second reason which supports us in this view: your case-law is not at all in harmony with that developed by the European Court of Human Rights in recent years.
In the Berrehab v. the Netherlands judgment of 21 June 1988 the Strasbourg Court defined for the first time the possible impact of Article 8 (art. 8) on expulsion measures against aliens. The substance of its decision was that where the alien has real family ties in the territory of the State in which he is resident and the expulsion measure is such as to jeopardise the maintenance of those ties, the measure is justified with regard to Article 8 (art. 8) only if it is proportionate to the legitimate aim pursued, in other words, if the interference with family life which follows from it is not excessive with respect to the public interest to be protected. This balance between the public and private interests induced the Court to find in the Berrehab case that there had been a violation of the Convention by the Netherlands, with respect to an alien who was the father of a child born of a (dissolved) marriage with a Netherlands woman and who had been refused renewal of his residence permit for purely economic reasons, reasons which were indeed legitimate, but which led in the particular case to consequences whose seriousness was not proportionate to the public interest pursued.
Such an intellectual approach ought not to disconcert you, and we see nothing to prevent you henceforth adopting it as yours with reference to the deportation of aliens, provided of course that Article 8 (art. 8) of the Convention is in fact pleaded.
Reviewing proportionality is among your tried and tested techniques, and the concept of a balance to be struck between divergent public and private interests is certainly not unfamiliar to you, since you constantly make use of it in certain contexts. Admittedly, the field of deportation has until now been dominated rather by the concept of discretionary power and its corollary of a limited power of review restricted to manifest abuse of discretion. But even in this field you carry out a complete review where the statutory provisions require this - as in the case of the concepts of ‘absolute urgency’ and ‘compelling necessity for national security’ which exceptionally permit the expulsion of aliens belonging to categories who in principle are protected against such a measure, under the legislation in force after 1981 - and in our opinion the same should apply in the case of the application of Article 8 (art. 8) of the Convention.
Furthermore - and here we come to our final argument - maintaining your case-law as in Touami ben Abdeslem would have the awkward consequence of making appeals to the Strasbourg institutions directly available to aliens who were the subject of a deportation order and complained of an interference with their family life, without their being obliged first to have recourse to the domestic courts.
For it is a known fact that, according to the consistent case-law of the European Commission of Human Rights, the rule that domestic remedies must first be exhausted, which under Article 26 (art. 26) of the Convention is a condition of admissibility of individual applications submitted to the Commission, must be understood as imposing on an applicant the obligation only to have prior recourse to domestic remedies which have a reasonable chance of success, having regard in particular to the case-law of the highest courts, with the effect that a definite line of case- law excluding a priori the taking into account of Article 8 (art. 8) of the Convention would entitle an alien to take his claims directly to the European institutions.
The present case is a perfect illustration of this. Without waiting for you to give a decision and hence before having exhausted all possible domestic remedies, Mr Beldjoudi lodged with the European Commission of Human Rights an application complaining of a violation of Article 8 (art. 8) of the Convention which he claimed to be the victim of. Despite the proceedings still pending before you, the European Commission of Human Rights declared the application admissible in a decision of 11 July 1989, referring in particular to your Touami ben Abdeslem decision.
Further, after adopting its report, the European Commission of Human Rights referred the application to the European Court of Human Rights, and the same case is thus simultaneously pending before you and before the Strasbourg Court, which will no doubt give a decision this year. This is an exceptional situation, which cannot be regarded as satisfactory or normal with respect to the control machinery set up by the European Convention on Human Rights, which is based on the concept of the subsidiarity of control by the European institutions to control by the domestic courts.
The only way to avoid such a situation occurring again, and indeed to avoid the domestic courts losing jurisdiction altogether in favour of the European Court, consists in you yourselves reviewing compliance with Article 8 (art. 8) rather than leaving this task to the Strasbourg institutions, whom incidentally you would not be doing a favour by allowing applicants immediate access to them.
If you agree with us on this question of principle, you will then have to make a decision on two points in the present case: firstly, does the deportation of Mr Beldjoudi constitute an ‘interference’ with his ‘right to respect for his family life’, to use the language of Article 8 (art. 8)? Secondly, is this ‘interference’
We suggest that you answer both questions in the affirmative.
In our opinion, it cannot be doubted that the deportation of the applicant jeopardises his family life to a certain extent.
No doubt the possibility cannot be excluded of his French spouse being able to follow him abroad, which in practice means to Algeria. But it must be admitted that that would not be easy, and that legal and practical obstacles could make it difficult for the couple to restart life abroad.
However, the serious nature of the offences committed by the applicant appears to us to justify the deportation order issued against him, and the interference with the applicant’s family life is in the instant case not disproportionate to the threat to public order which the applicant’s presence on French territory represented on 2 November 1979, the date for you to have reference to.
We are indeed far removed from the circumstances which gave rise to the above-mentioned Berrehab judgment.
From 1969, when he was only nineteen years of age, Mr Beldjoudi committed various offences for which he received various convictions: assault and battery, driving a vehicle without a licence, carrying a prohibited weapon.
Above all, on 5 February 1975 he gained entry at night, together with accomplices, to the residence of two people who were subjected to violence by the criminals in order to steal their savings. For these acts the applicant was convicted on 25 November 1977 and sentenced to eight years’ imprisonment for aggravated theft.
In these circumstances, the decision taken with respect to him in 1979 does not appear to us to have been disproportionate to the aim pursued, or to be excessive even having regard to the family consequences it has for the applicant.
In one pan of the scales one must place the public interest in the removal of an individual who is a serious threat to the safety of persons and property. In the other pan one must bear in mind the difficulties Mr Beldjoudi and his wife (the couple have no children) would have in resettling abroad without damaging their family life. It seems to us that the balance is tilted towards the public interest.
We would not have any doubt in reaching this conclusion, had not the European Commission of Human Rights - as it is now necessary to mention - adopted an opposite position, in the report it drew up on this case under Article 31 para. 1 (art. 31-1) of the Convention and which it referred to the Court together with the application.
The Commission was of the opinion, by twelve votes to five, that the deportation of Mr Beldjoudi constituted a violation of Article 8 (art. 8).
The greatest regard must of course be had to such an opinion, but it must, however, not be forgotten that it is only an opinion, albeit a highly authoritative one and deserving of respect, as the Commission in a sense fulfils for the Court the same function as the Government Commissioner before your court; this is a sufficient indication of its importance, but the Court is not obliged to follow it; and in the past the Court has on several occasions differed from the Commission’s opinion.
We for our part are unable to agree with the Commission’s reasoning. It is clear from reading its report that it based itself not so much on Mr Beldjoudi’s matrimonial ties, as on the fact that the applicant was born in France, has always lived there, appears not to have personal ties with Algeria, and does not know the Arabic language and that, in the words of the Commission, ‘the nationality link, though a legal reality, in no way reflects the real situation in human terms’ (see paragraph 64 of the report).
We appreciate the significance in human terms of these facts. Under the post-1981 legislation they might perhaps have protected Mr Beldjoudi against deportation, despite the seriousness of the offences committed by him. But they appear to us to have nothing to do with the concept of ‘family life’ protected by Article 8 (art. 8), or with that of ‘private life’, which two members of the Commission, in a concurring but separate opinion annexed to the report, suggested as a better basis for a finding of a violation of Article 8 (art. 8).
In fact, what the Commission intended to protect was not the applicant’s ‘family life’ or ‘private life’ but rather his personal life and social life. But that seems to us to be outside the scope of the Article relied on.
We add for the sake of completeness of information that the deportation of Mr Beldjoudi has not actually been enforced and that the authorities have, in a spirit of conciliation, assigned him to compulsory residence in the Hauts-de-Seine department, where he still is.
For all these reasons, we submit that the appeal should be dismissed."
28. On 18 January 1991 the Conseil d’État ruled in accordance with the above submissions, and gave the following reasons for its decision:
"The technical correctness of the judgment appealed against
Considering, firstly, that contrary to what the appellant maintains, the judgment appealed against did not omit to rule on the ground of appeal based on the application of section 25 of the Order of 2 November 1945;
Considering, secondly, that it follows from a judgment of the Versailles Court of Appeal of 14 October 1987, given prior to the judgment appealed against, that the appellant is of Algerian nationality; that the Administrative Court was thus rightly able to regard the question of nationality, on which it had by an earlier judgment adjourned a decision, as having been settled and to give no decision on the ground of appeal based on Mr Beldjoudi’s French nationality, abandoned by him;
The lawfulness of the Minister of the Interior’s order of 2 November 1979
Considering that Mr Beldjoudi, who did not raise any ground of appeal before the Administrative Court relating to the outward legality of the order for his deportation, is in any event not entitled to raise for the first time on appeal arguments based on the lack of reasons in the opinion of the Commission on Deportation, the order pronouncing deportation and the letter notifying it, which are based on legal grounds different from those on which his application at first instance was based;
Considering that according to section [23] of the Order of 2 November 1945, in the wording in force at the time of the decision appealed against, prior to the Law of 29 October 1981, ‘deportation may be ordered by an order of the Minister of the Interior if the alien’s presence on French territory constitutes a threat to public order or public finance’; that it can be seen from the documents in the case-file that the aforesaid measure was taken by the Minister of the Interior after he had taken into consideration not only the criminal convictions pronounced against Mr Beldjoudi but also the totality of Mr Beldjoudi’s conduct; that it is thus not tainted by error of law;
Considering that under Article 8 (art. 8) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence - 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’; that the measure appealed against, based on the defence of public order, was necessary for the defence of that order in view of the applicant’s conduct and the seriousness of the offences committed by him; that in these circumstances it was not in violation of Article 8 (art. 8) of the said Convention;
Considering that it follows from the foregoing that Mr Beldjoudi is not justified in requesting the quashing of the judgment appealed against, by which the Versailles Administrative Court dismissed his claim that the order of the Minister of the Interior of 2 November 1979, requiring him to leave French territory, be set aside;" (Recueil Lebon 1991, p. 18)
29. On 27 December 1979 Mr Beldjoudi had lodged with the registry of the Conseil d’État an application for a stay of execution. It was dismissed by the court on 16 May 1980, on the grounds that "none of the arguments relied on appear[ed] such as to justify withdrawal of the deportation order".
30. While his appeal for the order to be set aside was pending before the Versailles Administrative Court (see paragraphs 18-25 above), the applicant twice requested a stay of execution. The requests, which were registered on 26 March 1986 and 22 February 1988, were joined to the merits of the case and dismissed on 21 April 1988 (see paragraph 25 above).
31. On 1 April 1970, eleven days before his marriage, Mr Beldjoudi made a declaration before the Colombes tribunal d’instance with a view to resumption of French nationality. He relied on section 3 of the Law of 20 December 1966, which allowed such a right to minor children born before 1 January 1963 whose parents had not made such a declaration.
32. A prime ministerial Decree, adopted on 16 September 1970 in accordance with the opinion of the Conseil d’État and served on 3 February 1972, refused him recognition of French nationality (section 4 of the Decree of 27 November 1962).
33. The applicant was at his request registered with the 1973 intake, and on 7 July 1971 at Blois he was given a certificate of fitness for national service, issued by the commanding officer of the French Army selection centre no. 10. He did not do the said military service, however, as the commanding officer of the Versailles recruitment office had deleted his name from the register on 25 June 1971.
34. On 17 June 1983 Mr Beldjoudi submitted a declaration of nationality to the Colombes tribunal d’instance, accompanying it by supporting documents. He claimed that he had enjoyed uninterrupted ostensible possession (possession d’état) of French status.
35. On 15 July the judge sent the file back to the applicant’s lawyer, informing him that the applicant should apply to the prefecture of the Hauts-de-Seine department with a request for naturalisation.
36. On 21 December Mr Beldjoudi asked the judge in question to issue him with a certificate of French nationality. In an opinion of 28 December the judge declined, as the evidence produced was not sufficient to prove that the applicant enjoyed French nationality.
37. On 17 January 1984 the applicant started proceedings against the procureur de la République in the Nanterre tribunal de grande instance, in order to have his French nationality recognised.
38. The court dismissed the claim on 15 December 1985, on the grounds that the applicant had lost French nationality on 1 January 1963, pursuant to the second paragraph of section 1 of the Law of 20 December 1966 (see paragraph 58 below).
39. Mr Beldjoudi appealed against the judgment to the Versailles Court of Appeal on 7 March 1986. He maintained that his father had not passed on to him anything which would allow him to claim an Algerian identity as to culture and language, that the Islamic religion was foreign to him, that he had ostensible possession of French status, and that the challenge to his French nationality on the basis of his Islamic status represented a discriminatory interference with his freedom of conscience and his right to lead a normal family life, in manifest breach of Articles 3, 8, 9, 12 and 14 (art. 3, art. 8, art. 9, art. 12, art. 14) of the Convention.
40. The Court of Appeal dismissed his appeal on 14 October 1987. It gave the following reasons for its decision:
"Considering that civil status is transmitted by descent; that a child born of two parents with special civil status (statut civil de droit local) possesses that status; that prior to Algerian independence Mr Beldjoudi senior did not, as he could have done, declare that he renounced his personal special civil status in order to acquire normal civil status (statut civil de droit commun); that the fact that Mr Mohand Beldjoudi had Islamic special civil status concerned only the rules applicable to the exercise of his civil rights and respected his freedom of religious conviction and did not require him to adhere to the Islamic religion; that, contrary to his claims, Mr Beldjoudi cannot claim for himself and his father ostensible possession of French status when, according to a letter from the Prefect and Commissioner of the Republic for the Department of Hauts-de-Seine dated 4 June 1984, his father, brothers and sisters have all for many years been holders of Algerian national identity cards and aliens’ residence permits, and he himself has never since Algerian independence held documents such as a French national identity card or a French passport providing evidence of his ostensible possession of French status, but was the subject of a deportation order on 2 November 1979 which has apparently not prevented him up to now leading a normal family life in France; that accordingly the final ground of appeal he relies on, based on ostensible possession of French status and a violation of the European Convention on Human Rights, which was moreover not in force when he lost French nationality, must be dismissed;"
The decision was served on the applicant on 20 July 1989.
41. Mr Beldjoudi had appealed on 15 February 1989. The appeal was dismissed by the Court of Cassation (First Civil Division) on 12 March 1991 for the following reasons:
"Whereas according to the recitals of the judgment appealed against (Versailles, 14 October 1987), Mr Mohand Beldjoudi, born at Courbevoie on 23 May 1950, the son of Seghir Beldjoudi, born on 9 April 1909 at Sidi-Moufouk (Algeria), and Hanifa Khalis, born in 1926 at Elflaya (Algeria), brought proceedings in order to have his French nationality recognised; and whereas his application was dismissed on the grounds that, being aged under eighteen on the coming into force of Order no. 62-825 of 21 July 1962, he had, as regards the effect of the independence of Algeria on his nationality, followed the status of his parents, who were natives of that territory and had special civil status, and, not having benefited from the collective effect of a declaration recognising French nationality made by his father at the appropriate time, he was deemed to have lost French nationality on 1 January 1963, in accordance with paragraph 2 of section 1 of Law no. 66-945 of 20 December 1966;
Whereas Mr Beldjoudi complains that the judgment appealed against reached its decision on an invalid ground, namely that review of the constitutionality of the Law of 20 December 1966 was not a matter for the ordinary courts, in dismissing his ground of appeal based on the fact that the said Law was contrary to the provisions of Article 5 (d) (iii) of the International Convention of 7 March 1966 on the Elimination of All Forms of Racial Discrimination, ratified by France and published in the Official Journal of 10 November 1971, which prohibited all discrimination based on origin, especially ethnic origin, in the granting or withdrawing of nationality of the citizens of member States;
But whereas the judgment appealed against held that Law no. 66- 945 of 20 December 1966 based itself, in order to regulate the consequences for nationality of Algerian independence, on the civil status of persons originating from that territory and not on criteria prohibited by the aforesaid convention;
It follows that the judgment does not warrant the criticism made of it by the ground of appeal, which cannot be upheld;"
42. Deportation of aliens is governed by the provisions of the Order of 2 November 1945 relating to the conditions of entry and residence of aliens in France. The wording of the Order has been amended on several occasions, including amendments subsequent to 2 November 1979, the date when the ministerial order relating to the applicant was issued (see paragraph 15 above). The legislation in question did not include any transitional provisions.
43. In 1979, section 23 of the 1945 Order read as follows:
"... deportation may be ordered by an order of the Minister of the Interior if the alien’s presence on French territory constitutes a threat to public order or public finance."
44. Section 23 was amended by a Law of 29 October 1981, under which deportation was now subject to the existence of a "serious threat to public order".
Section 26 of the new Law, however, provided for a derogation, except in the case of aliens under eighteen years of age:
"In the event of absolute urgency ..., deportation may be ordered where it constitutes a compelling necessity for the security of the State or for public safety.
..."
45. These rules were altered by a Law of 9 September 1986.
Section 23 resumed its original wording, that of 1945. It added, however, that "the deportation order [could] be revoked at any time by the Minister of the Interior".
As for section 26, it stated that "a threat [to public order] having a particularly serious character" could in the event of absolute urgency justify deportation.
46. A Law of 2 August 1989 reintroduced the 1981 provisions.
47. The Minister of the Interior issued 383 deportation orders in 1990. Of these, 101 were based on section 26 of the 1945 Order, 54 relating to ordinary criminal offences and 47 to offences against the external or internal security of the State.
48. The 1945 Order did not define any categories of persons who were protected against all deportation measures.
49. By contrast, after being amended by the Law of 29 October 1981, section 25 of the Order stated:
"The following may not be the subject of a deportation order under section 23:
1. An alien under eighteen years of age;
2. An alien who proves by any means that he has habitually resided in France since attaining the age of ten years at the most;
3. An alien who proves by any means that he has habitually resided in France for over fifteen years, and also an alien who has lawfully resided in France for over ten years;
4. An alien who has been married for at least six months and whose spouse is of French nationality;
5. An alien who is the father or mother of a French child residing in France, provided that he exercises parental authority (at least in part) with respect to that child or is actually meeting his needs;
6. An alien who is the beneficiary of a pension in respect of an accident in employment or occupational illness paid by a French organisation, and whose permanent disability percentage is greater than or equal to 20%;
7. An alien lawfully residing in France under one of the residence documents provided for by the present Order or international agreements, and who has not been definitively convicted and sentenced to a penalty equivalent at least to one year’s non-suspended imprisonment.
However, as a derogation from no. 7 above, any alien who has been definitively convicted and sentenced to a penalty of non- suspended imprisonment for any length of time for an offence under sections 4 and 8 of Law no. 73-548 of 27 June 1973 on multiple occupation, Article L.364-2-1 of the Code of Employment or Articles 334, 334-1 and 335 of the Criminal Code, may be deported.
..."
50. The Law of 9 September 1986 restricted the categories of non- deportation, but the Law of 2 August 1989 returned to the 1981 legislation.
51. Deportation is regarded in French law as a police measure, not a criminal sanction. An alien affected does not benefit from the retrospective effect of the more favourable later provisions. He can thus not rely on them in support of an application for a decision concerning him to be set aside.
52. Once a deportation order has been issued by the Minister of the Interior, it remains in force indefinitely. The alien concerned may at any time, as often as he wishes, request that it be revoked.
53. If the alien has been absent from French territory for over five years and wishes to obtain such revocation, his request is considered by a committee which consists of judges only. If the committee finds in his favour, its opinion is binding on the Minister.
54. It frequently happens that the Minister of the Interior waives enforcement of a deportation order while nevertheless declining to revoke it. In such cases a compulsory residence order is issued in respect of the alien, in the hope of his reintegration into society. If he continues to disturb public order, he may be deported. This is then a fresh decision, separable from the order and itself capable of being challenged before the administrative court judge.
If the matter is referred to the judge, he considers the behaviour of the person concerned during the period when his presence on French territory has been tolerated. In order to assess the lawfulness of the measure, he thus considers the facts as they are at the date when he takes his decision.
55. For a period of some ten years the Conseil d’État considered arguments based on Article 8 (art. 8) of the Convention to be of no effect as against a deportation order (see for example the Touami ben Abdeslem judgment of 25 July 1980, Recueil Lebon 1980, p. 820, and Juris-Classeur périodique 1981, jurisprudence, no. 19613, with note by Mr Bernard Pacteau, and the Chrouki judgment of 6 December 1985).
The Beldjoudi judgment of 18 January 1991 (see paragraph 28 above) marks the abandonment of this line of case-law. Instead of reviewing whether there has been a manifest error of discretion with reference only to the threat to public order, the court now carries out a complete review of proportionality, and this has sometimes led to the setting aside of deportation orders (see for example the Belgacem judgment of 19 April 1991 (plenary court), with submissions by Government Commissioner Mr Ronny Abraham, Revue française de droit administratif 1991, pp. 497-510, and the Hadad judgment of 26 July 1991 (the President of the Judicial Division), to be reported in the Recueil Lebon).
56. The Law of 28 July 1960 inserted into the Code of Nationality a Part VII, "Recognition of French Nationality".
It was limited to overseas territories (TOM), and introduced a new method for certain categories of "domiciled persons" and their descendants to have their French nationality recognised, subject to the two conditions of settling on French territory and making a declaration.
57. Algeria did not have the status of a TOM when it gained independence. This induced the French legislature to enact the Order of 21 July 1962 relating to various provisions on nationality.
Under this Order persons of normal civil status, and persons of special civil status who had not been granted Algerian nationality under Algerian law, kept their French nationality as of right.
With respect to other persons of special civil status - the category to which the applicant’s family belonged - section 21 provided that as from 1 January 1963 they and their children would not be able to establish their French nationality except by showing that they had made a declaration of "recognition of French nationality".
58. The Law of 20 December 1966 terminated the application of the 1962 Order as from 21 March 1967. It brought about the loss of French nationality in the absence of a declaration of recognition.
Paragraph 2 (c) of section 1 of the Law stated that:
"Persons of special civil status of Algerian origin who have not by that date made the declaration provided for in Article 152 of the Code of Nationality shall be deemed to have lost French nationality on 1 January 1963. However, persons of special civil status of Algerian origin shall keep French nationality as of right if no other nationality has been conferred on them after 3 July 1962."
Section 3 nevertheless offered minor children born before 1 January 1963 - such as the applicant - the possibility of resuming French nationality where the parent whose nationality they had taken had not made the declaration of recognition.
59. The Law of 9 January 1973 abolished recognition and deleted this word from the Code of Nationality. Part VIII of the Code, completely rewritten, laid down for the future special conditions for resumption of nationality for certain categories of persons who had lost French nationality following the gaining of independence by their country.
60. Naturalisation is granted by decree. It may be granted inter alia to "nationals or former nationals of territories or States over which France has exercised sovereignty or a protectorate or a mandate or trusteeship" (paragraph 5 of Article 64 of the Code of Nationality).
However, "an alien who has been the subject of a deportation order or a compulsory residence order shall not be eligible for naturalisation unless such order has been revoked in the form in which it was issued" (first paragraph of Article 65). In addition, "no one may be naturalised if he is not of good character and morals or if he has been convicted of one of the offences mentioned in Article 79 ..." (Article 68).
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-88270
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NOVIKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Ms Aleksandra Lavrentyevna Novikova, is a Russian national who was born in 1933 and lives in Klin, a town in the Moscow Region. She is represented before the Court by Mr A. Novikov, a lawyer practising in Klin. The Russian Government are represented by Mr P. Laptev and then by Mrs V. Milinchuk, the Representatives of the Russian Federation at the European Court of Human Rights.
As a child, the applicant was imprisoned by the Nazis. In the 1990s she hoped to receive compensation from the “Foundation for Mutual Understanding and Reconciliation”, a charity set up by the Russian and German Governments.
The Foundation refused compensation, and the applicant brought an action against it. On 20 December 2000 the Klinskoy District Court of the Moscow Region ordered the Foundation to:
“[M]ake payments to [the applicant] in accordance with the Government’s Decree No. 899 of 2 August 1994 “On the adoption of the Rules on the conditions and procedure of the payment of compensation to victims of the Nazis”.”
On 3 January 2001 the judgment became binding, but was not immediately enforced because at that time the Foundation lacked funds.
On 24 January 2005 the Foundation informed the applicant that it was going to pay her the equivalent 649.34 euros converted into Russian roubles, and asked the applicant for her bank details. The applicant contested this offer, alleging that the amount was too small, and that currency conversion would make it even smaller.
The applicant applied for a clarification of the judgment, but on 16 November 2005 the District Court rejected this request having found that the judgment was worded clearly. The applicant did not appeal against this decision.
The Foundation for Mutual Understanding and Reconciliation operates on the basis of the Government Order no. 899 of 2 August 1994. According to section 10 of this Order, the amount of compensation is determined by the Foundation’s Experts’ Board. The Board’s decision may be appealed against to the Foundation’s Appeal Commission, whose decision shall be final.