ITEMID: 001-82243
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF L. v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze
TEXT: 5. The applicant was born in 1978 and lives in Klaipėda.
6. At birth the applicant was registered as a girl with a clearly female name under the rules of the Lithuanian language.
7. The applicant submitted that from an early age he had become aware that his “mental sex” was male, thus acknowledging the conflict between his mental and genital gender.
8. On 18 May 1997 the applicant consulted a microsurgeon about the possibilities of gender reassignment. The doctor proposed that the applicant first consult a psychiatrist.
9. From 4 to 12 November 1997 the applicant attended Vilnius Psychiatric Hospital for tests on his physical and psychological condition.
10. On 16 December 1997 a doctor at the Vilnius University Hospital of Santariškės confirmed the applicant’s chromosomal sex as female, and diagnosed him as a transsexual. The doctor also advised that the applicant consult a psychiatrist.
11. On 23 January 1998 the Vilnius University Hospital of Raudonasis Kryžius opened a medical file on the applicant. The applicant gave his name in a masculine form under the rules of the Lithuanian language, and his medical file referred to him as being of male gender. An entry of 28 January 1998 in the medical file included a recommendation that the applicant pursue hormone treatment with a view to eventual gender reassignment surgery. Thereafter, a two-month course of hormone treatment was officially prescribed for the applicant. Moreover, it was recommended that the applicant consult a neurosurgeon, who subsequently performed breast removal surgery on him (see paragraph 19 below).
12. On 12 November 1998 the applicant, using his original name and surname, wrote a letter to the Ministry of Health seeking clarification of the legal and medical possibilities for gender reassignment. He stated that he was determined to undergo this procedure.
13. On 17 December 1998 an official of the Ministry of Health replied that a working group had been set up by the Minister of Health with a view to analysing the questions pertaining to gender reassignment, and that the applicant would be duly informed about the conclusions of that group.
14. Before the Court, the applicant claimed that he had received no further communication from the Ministry of Health.
15. On 13 May 1999 a doctor at Vilnius Psychiatric Hospital confirmed that the applicant, referred to by his original name, had attended the hospital from 4 to 12 November 1997, and that he had been diagnosed as a transsexual.
16. The applicant submitted that in 1999 his general medical practitioner had refused to prescribe hormone therapy in view of the legal uncertainty as to whether full gender reassignment could be carried out, leading to the new identity of a transsexual being registered in accordance with domestic law. Thereafter the applicant continued the hormone treatment “unofficially”, as it was considered at that time that such treatment should be followed for two years before the full surgical procedure could be performed.
17. On an unspecified date in 1999 the applicant requested that his name on all official documents be changed to reflect his male identity; that request was refused.
18. On an unspecified date in 1999 the applicant enrolled at Vilnius University. Upon the applicant’s request, the university administration agreed to register him as a student under the male name chosen by him (bearing the initials P.L.). The applicant asserted before the Court that the decision of the University was exceptional and purely humanitarian, as the laws applicable at the material time clearly required his registration under his original female name, as indicated on his birth certificate and passport.
19. From 3 to 9 May 2000 the applicant underwent “partial gender reassignment surgery” (breast removal). The applicant agreed with the doctors that a further surgical step would be carried out upon the enactment of subsidiary laws governing the appropriate conditions and procedure.
20. On an unspecified date in 2000, with the assistance of a Lithuanian member of parliament, the applicant’s birth certificate and passport were changed to indicate his identity as P.L. The forename and surname chosen by the applicant for this new identity were of Slavic origin, and thus did not disclose his gender. The applicant could not choose a Lithuanian name or surname as they are all gender-sensitive. However, the applicant’s “personal code” on his new birth certificate and passport – a numerical code comprising the basic information about a person in accordance with the Lithuanian civil-registration rules – remained the same, starting with the number 4, thus disclosing his gender as female (see paragraphs 2829 below).
21. The applicant stressed that he therefore remained female under domestic law. This was confirmed, inter alia, by the fact that, on the Vilnius University degree certificate he had received after successfully graduating in 2003, his “personal code” remained the same and denoted him as a female. As a result, he claimed that he faced considerable daily embarrassment and difficulties, as he was unable, for example, to apply for a job, pay social security contributions, consult medical institutions, communicate with the authorities, obtain a bank loan or cross the State border without disclosing his female identity.
22. The applicant submitted a copy of an article by the Baltic News Agency (BNS) of 17 June 2003, quoting a statement by the Speaker of the Seimas on the Gender Reassignment Bill (put before Parliament on 3 June 2003 – see paragraph 30 below). It was mentioned in the article that certain members of parliament had accused the Minister of Health, who was a plastic surgeon, of having a personal interest in the enactment of the law. The article also mentioned that certain members of the Social Democratic Party had urged the enactment of the law as it was required by the imminent entry into force of the provisions of the new Civil Code on 1 July 2003. The article referred to the opinion of experts that there were about fifty transsexuals living in Lithuania. It was mentioned that certain Vilnius and Kaunas surgeons were properly equipped and qualified to carry out gender reassignment surgery, the cost of which could be between 3,000 and 4,000 Lithuanian litai (approximately 870 to 1,150 euros), excluding the cost of hormone therapy. The article stated that a number of persons had already applied for gender reassignment, but that the surgery could not be fully completed in the absence of adequate legal regulation. It was presumed that some of the Lithuanian transsexuals had thus been obliged to go abroad for treatment.
23. In an article by the BNS on 18 June 2003 about a meeting between the Prime Minister and the heads of the Lithuanian Catholic Church, the Prime Minister was quoted as saying that it was too early for Lithuania to enact a law on gender reassignment, and that there was “no need to rush” or “copy the principles that exist in one country or another”. The article stated that the Catholic Church had been among the most ardent opponents of such legislation. At the same time, the Prime Minister conceded that the government were obliged to prepare a Gender Reassignment Bill in view of the entry into force of Article 2.27 § 1 of the new Civil Code on 1 July 2003.
24. The applicant submitted that since 1998 he had been in a stable relationship with a woman and that they had lived together since 1999.
25. There were no provisions pertaining to the question of transsexuals in Lithuanian law until the adoption of the new Civil Code on 18 July 2000. The Civil Code came into force on 1 July 2001. The first paragraph of Article 2.27 (which only came into force on 1 July 2003) provides that an unmarried adult has the right to gender reassignment surgery (pakeisti lytį), if this is medically possible. A request by the person concerned must be made in writing. The second paragraph of this provision states that the conditions and procedure for gender reassignment surgery are established by law.
26. On 27 December 2000 the government adopted a decree specifying the measures needed for the implementation of the new Civil Code. The preparation of a Gender Reassignment Bill was mentioned in it.
27. Rule 109.2 of the Civil Registration Rules, approved by an order of the Minister of Justice on 29 June 2001 (in force from 12 July 2001), permits a change in civil-status documents if there is a need to change a person’s gender, forename and surname, following gender reassignment.
28. Under the Residents’ Register Act and other relevant domestic laws, every Lithuanian resident has a numerical “personal code” (asmens kodas), which denotes certain basic items of information, including his or her gender. Section 8(2) of the Residents’ Register Act provides that the first number of the personal code denotes the person’s gender. A personal code starting with the number 3 denotes that the person is male, whereas a code starting with number 4 means that the person is female.
29. Section 5 of the Passport Act 2003 provides that a citizen’s passport must be changed if the citizen changes his or her forename, surname, gender or personal code.
30. The Gender Reassignment Bill was prepared by a working group of the Ministry of Health in early 2003. On 3 June 2003 the government approved the Bill, sending it for consideration to the Seimas (Parliament). In an explanatory note to Parliament dated 4 June 2003, the Minister of Health indicated, inter alia, that, at present, no legal instrument regulated the conditions and procedure for gender reassignment. The Bill was initially scheduled for a plenary session of Parliament on 12 June 2003, but it was not examined that day. It was rescheduled for 17 June 2003, but was then omitted from Parliament’s agenda. On the same date the Speaker of Parliament circulated an official memorandum on the Bill stating, inter alia:
“The Speaker of the Seimas ... strongly denounces gender reassignment surgery and the further consideration of a bill on the subject at a parliamentary hearing.
[At a time] when the demographic situation in Lithuania is becoming threatened, the Seimas should not make matters worse by considering such a controversial law, which may be taken by society as an insult to the far more important problems facing the health-care system.”
31. The order of the Minister of Health, issued on 6 September 2001, specifies the conditions under which patients in Lithuania can be referred for treatment abroad, in cases where the necessary treatment for a certain illness is not available in Lithuania. The decision is taken by a special commission of experts appointed by the Minister of Health, and the cost of such treatment is covered by the Compulsory Health Insurance Fund.
32. On 8 August 2006 the Constitutional Court ruled that the courts were empowered to fill the gaps left in the legislation where this was necessary, inter alia, for the protection of the rights and freedoms of a particular individual.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-118338
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF IURCU v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1994 and lives in Chişinău.
6. On 5 April 2009 general elections took place in Moldova. The preliminary results of the election were announced on 6 April 2009. According to those results, the ruling Communist Party of Moldova had narrowly won the elections.
7. On 6 April 2009 there was growing discontent, notably in various online forums, with the results of the elections and with alleged electoral fraud. At 6 p.m. several hundred people, mostly young, gathered in front of the monument to Stephen the Great (Ştefan cel Mare) in the centre of Chişinău. Half an hour later there were already 3-4,000 people assembled, and they began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day.
8. On 7 April 2009 the protest resumed, with the participation of some 56,000 people. Although the demonstration was peaceful at the beginning, several hundred of the participants gradually became violent. It was established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”), that two incidents of poorly planned intervention by a fire truck and riot police had brought the crowd to a point beyond which mass acts of violence could no longer be prevented. Following violent attacks and stone throwing, which met with very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building, some of them after full control over the building was recovered by the authorities at around 11 p.m.
9. At approximately 1 a.m. on 8 April 2009, various police and special forces units began a massive operation aimed at re-establishing public order. However, according to the Commission, excessive force was used and all those still present in the main square were arrested, regardless of whether or not they had acted violently. The arrests continued for several days. The media reported cases, and showed video footage of young people being arrested and/or beaten by both uniformed police and plain-clothes officers in the city centre on 8 April and thereafter, long after the protests had ended on the evening of 7 April 2009.
10. According to the applicant, who was fifteen years old at the time, during the evening of 7 April 2009 he was returning home from a birthday party and was walking along the main boulevard in Chişinău. At approximately 10.20 p.m. he was stopped by a group of persons wearing military uniforms and was ordered to lie on the ground and put his hands on his head. The applicant complied and received numerous kicks and baton blows to his body and head. He screamed with pain and shouted that he was only fifteen years old. He was then released and ordered to go home. He began to run but after several hundred metres was stopped again by a group of persons wearing black clothes and balaclavas and was again ordered to lie down. He was again kicked and beaten with batons and received, inter alia, a kick to the area of his right eye. He was then forced into a pickup truck together with other young persons and taken to a police station.
11. At the police station he and many other persons were placed in the basement and forced to kneel with their hands on their heads for approximately three hours. He was approached once by a police officer, who punched him in the back and ordered him to straighten up.
12. The Government accepted the facts relating to the applicant’s arrest and detention. They did not, however, endorse the applicant’s allegations concerning the ill-treatment, submitting that they only accepted the version of the facts established in the criminal proceedings at the domestic level.
13. On 8 April 2009, at approximately 2.30 a.m., the applicant was taken to an office for questioning. The questioning lasted for approximately ten minutes, during which he was asked about his involvement in the previous day’s demonstrations.
14. At approximately 3 a.m., the applicant was taken by car to a centre for the temporary detention of minors, where he was placed, together with numerous other youths, in a small room with only two beds. He and many of the others slept on the floor. The next day, the applicant felt unwell because of the injury to his face and received medical assistance from a doctor. According to a medical report issued by that doctor at a later date, the applicant had bruises on his back, and bruising to the soft tissues around his right eye. At 3.30 p.m. the applicant was taken to an office, where he explained to a woman the reason why he had had to spend the night at the centre. At approximately 4 p.m. his mother took him home. It appears that she had been informed of his whereabouts at approximately 1 p.m. on that day.
15. On 9 April 2009 national television presented a news item concerning the events of 7 April. The applicant and the group of youths with whom he had been detained at the centre for the temporary detention of minors were presented as being the persons responsible for the disorder and the devastation to the Parliament building and the Presidential Palace.
16. After his release, the applicant often felt pain in the region of his kidneys and had headaches. On 29 April 2009 he sought medical assistance at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have undergone detailed medical tests and examinations by various medical specialists. The Centre issued a report which stated, inter alia, that the applicant had suffered cranial trauma and experienced psychological problems typical of victims of torture.
17. On 19 June 2009 the applicant lodged a criminal complaint with the Prosecutor General’s Office, complaining about his ill-treatment on 7 April 2009.
18. On 15 October 2009 the Prosecutor’s Office dismissed the applicant’s criminal complaint as ill-founded, without formally initiating a criminal investigation. After a preliminary examination of the facts of the case, it found that the applicant had been taken to the police station on the evening of 7 April 2009 for being a vagrant minor and not because of his involvement in the violent demonstrations of that day. He was later taken to the centre for the temporary detention of minors. A police officer present at the police station that night stated that the applicant had not been ill-treated. Therefore, the Prosecutor’s Office found that the applicant’s account of his alleged ill-treatment was not credible. Moreover, according to the prosecutor’s office, he would have had more bruises on his body if he had indeed been ill-treated in the manner in which he claimed.
19. The applicant appealed against the prosecutor’s decision to the Buiucani District Court, which, on 3 December 2009, quashed the prosecutor’s decision. The court found, inter alia, that the Prosecutor’s Office had not explained how the injuries found on the applicant’s body after his arrest and detention had been caused, and that the preliminary investigation had been incomplete.
20. On 18 December 2009 a criminal investigation was formally initiated for the first time and on 5 February 2010 the applicant was recognised as having victim status in the criminal proceedings.
21. On 9 February 2010 a police officer from the police station where the applicant was taken on the night of 7 April 2009 was questioned. It does not appear from the materials submitted by the parties that any other measures have been taken in the criminal proceedings to date.
22. The relevant non-Convention material was summarised in Taraburca v. Moldova (no. 18919/10, §§ 33-37, 6 December 2011).
VIOLATED_ARTICLES: 13
3


ITEMID: 001-5644
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MOYA ALVAREZ v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Miguel Moyá Alvarez, a Spanish national, was born in 1958 and lives at Palma de Mallorca. He was represented before the Court by Mr R. Guix Aguado, of the Pontevedra Bar.
The facts of the case, as presented by the parties, can be summarised as follows.
Following a road-traffic accident the applicant brought an action seeking compensation before the Barcelona Court of First Instance. In a judgment of 20 June 1994, the Court of First Instance dismissed his claims and gave judgment on the defendant’s counterclaims, ordering Mr Moyá Alvarez to pay damages. He appealed to Barcelona Audiencia Provincial, which on 19 December 1995 partly overruled the impugned judgment by dismissing both the applicant’s claims and the defendant’s counterclaims.
Relying on Article 24 § 1 of the Spanish Constitution (which guarantees the right to a fair hearing), the applicant brought an amparo appeal before the Constitutional Court, which in a decision (providencia) of 20 May 1996, served on the applicant on 23 May 1996, declared that appeal inadmissible.
On 9 December 1996 the Constitutional Court, noting that State Counsel’s Office had not within the period prescribed by Article 50 § 2 of the Institutional Act on the Constitutional Court availed itself of its right to lodge a súplica appeal against the decision of 20 May 1996, declared that decision final. The applicant was so informed on 13 December 1996.
Institutional Act on the Constitutional Court
“2. State Counsel’s Office shall intervene in all amparo proceedings to uphold the law, the rights of citizens and the public interest protected by law.”
“2. The decision (providencia) referred to in the preceding paragraph ... shall be served on the appellant and on State Counsel’s Office. Only State Counsel’s Office may lodge a súplica appeal against that decision, the time-limit for so doing being three days. The appeal shall be decided in a judgment (auto).”
Under Spanish law, súplica appeals, in common with similar types of remedy such as reforma or reposición appeals, is a form of appeal enabling a party to the proceedings (such as a private petitioner or State Counsel’s Office) to request the court which has decided the case to reconsider its judgment or decision.
Relying on Article 6 § 1 of the Convention, the applicant alleged that his case had not been tried fairly and within a reasonable time by the Spanish courts.
The applicant maintained that the Spanish courts had not tried his case fairly and within a reasonable time. He relied on Article 6 § 1 of the Convention.
The Court does not have to decide whether the facts presented by the applicant in his application disclose a prima facie violation of the Convention. That is because it considers that in the instant case the final domestic decision, within the meaning of Article 35 § 1 of the Convention, was the Constitutional Court’s decision of 20 May 1996, which was served on the applicant on 23 May 1996, that is to say more than six months before the application was lodged. Admittedly, in a decision of 9 December 1996 served on the applicant on 13 December, the Constitutional Court found that State Counsel’s Office had not lodged a súplica appeal against the decision dismissing the amparo appeal and declared the decision of 20 May 1996 final. However, regard being had to its nature and to the conditions governing its exercise in this particular instance, notably the fact that it could only be lodged by State Counsel’s Office, the súplica appeal concerned here cannot be regarded as a remedy within the meaning of Article 35 § 1 of the Convention. It follows that the application must be dismissed pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.


ITEMID: 001-93452
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VORONA AND VORONOV v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The first applicant, Mr Aleksandr Voronov, was born in 1958. The second applicant, Mr Sergej Vorona, was born in 1966. Both of them live in Klaipėda.
5. On 3 December 1993 the applicants concluded agreements with the Klaipėda city council whereby each applicant would acquire an apartment in a building that the local authority was obliged to build by 1 May 1994. The applicants undertook to cover the costs of construction by paying the sums specified in the agreement. They paid their respective contributions by the date agreed in the contract.
6. On 25 July 1994 the applicants brought a court action, alleging that the local authorities had failed to complete the construction in time. They requested an order obliging the defendant to complete the works and provide them with property certificates. After the completion of the construction works on 20 October 1994, the applicants withdrew the former claim.
7. The Klaipėda city council lodged a counter-claim, requesting annulment of the agreements concluded with the applicants, claiming that its administrative division had lacked competence to enter into a contract with the applicants and that the costs of the construction had been incorrectly estimated. The local authority did not request restitution, but suggested that the applicants should cover the additional building costs.
8. On 11 October 1995 the Klaipėda City District Court dismissed the applicants’ case.
9. On 7 December 1995 the Klaipėda Regional Court quashed the decision, returning the case for a fresh examination. It was noted that the lower court had failed to summon all the parties and that not all the
10. On 1 August 1997 the court ordered an expert examination (documentary audit) regarding the municipality’s actions when accepting the contributions from the applicants for the construction of the apartments.
11. On 6 April 2000 one of the applicants addressed the Klaipėda City District Court requesting it to urge the experts to finish the examination and produce their conclusions.
12. The expert examination was completed on 20 September 2000. The next hearing took place on 13 February 2001.
13. On 11 February 2003 the Klaipėda City District Court allowed the counter-claims of the local authorities in part. The applicants were ordered to cover the additional construction costs. Upon receipt of the payment, the Klaipėda city council was obliged to issue the applicants the documents allowing them to register their titles to the apartments.
14. On 22 May 2003 the Klaipėda Regional Court partly amended the decision.
15. On 10 December 2003 the Supreme Court amended the decisions of the lower courts, fully allowing the applicants’ claims. It was established that the Klaipėda city council was not entitled to require the applicants to cover the additional costs. It was ordered to perform the agreement by issuing the applicants the documents which would allow them to register the apartments in their names.
16. On 31 December 2003 and on 13 January 2004 the Klaipėda city municipality issued the documents attesting that the applicants had paid the full amount for the apartments constructed under the agreement of 3 December 1993.
17. On 19 January and 13 February 2004 the applicants registered their titles to the apartments and, under domestic law, became their owners.
18. Article 149 § 1 of the Civil Code, in force until 1 July 2001, stipulated that, subject to any contrary legal provision, the purchaser acquired the right of ownership to property from the time of transfer. As regards real estate, the transfer agreement had to be registered in the Real Estate Register and the time of registration was regarded as the time from which the acquirer acquired title to the property.
19. Article 6.246 of the Civil Code, in force since 1 July 2001, provides that civil liability arises from non-performance of a statutory duty or from a violation of the general duty of care. The remaining relevant domestic law as concerns domestic remedies for the excessive length of civil proceedings is reproduced in the judgment of Četvertakas and Others v. Lithuania (no. 16013/02, §§ 21-22, 20 January 2009).
VIOLATED_ARTICLES: 6


ITEMID: 001-4956
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OMEROVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Croatian citizen, born in 1945 and living in Slatina, Croatia.
This is the applicant's second application. The previous one (number 41514/98) was declared inadmissible by the Commission in June 1998.
On 17 March 1986, the applicant was charged with aggravated assault before the Našice Municipal Court (Općinski sud u Našicama). On 9 November 1995, the Našice Municipal Court stayed the proceedings against the applicant due to the expiry of the time-limit for prosecution and stated that the Court would issue a separate decision on the costs of the proceedings.
On 20 May 1996, the Court dismissed the applicant's request for reimbursement of the costs of the proceedings, as the applicant did not submit relevant evidence in support of his claim. The Municipal Court instructed the applicant that he could lodge an appeal against that decision with the Požega County Court (Županijski sud u Požegi).
On 15 October 1996, the County Court, upon the applicant's appeal, remitted the case to the Municipal Court stating that the Municipal Court had both the trial and appellate jurisdiction on that issue. The County Court instructed the Municipal Court to deliver a decision upon the applicant's appeal.
On 30 December 1996 the Municipal Court again dismissed the applicant's request for the costs of the proceedings, again stating that the applicant did not submit the relevant evidence. Again, the Municipal Court instructed the applicant that he could lodge an appeal with the Požega County Court.
On 8 July 1997, the County Court dismissed the applicant's appeal as inadmissible. The Court stated that the Municipal Court wrongly instructed the applicant that the appeal was to be lodged with the County Court as the appellate court, while the Municipal Court for the applicant's case was both the first instance and the appellate court. However, the County Court held that, although the Municipal Court had not mentioned the applicant's appeal in its decision, it was evident that the Municipal Court actually ruled on the applicant's appeal, because the first decision by the Municipal Court had been delivered by a single judge, while the second decision of the Municipal Court was delivered by a special panel of three judges. According to the Criminal Procedure Act that panel was to act as an appellate body within the Municipal Courts for certain type of decisions of those courts. Furthermore, the County Court held that there was no right to appeal against the Municipal Court three-member panel decision on the costs of criminal proceedings.
On 25 July 1997, the applicant lodged a constitutional complaint with the Croatian Constitutional Court (Ustavni sud Republike Hrvatske), claiming, in substance, that his rights to fair trial and to an effective remedy have been violated. The complaint is still pending.


ITEMID: 001-57709
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF S. v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 8. S. is a mason and lives in Zürich.
9. In autumn 1980 a protest movement broke out in the town of Winterthur (Canton of Zürich) directed against the sale of nuclear power stations to a Latin American country then under a military regime. It continued in 1981 in the form of demonstrations against the holding of an international arms fair, and writing graffiti and occupying buildings as a protest against the housing shortage. In 1983 and 1984 there was a series of cases of arson and attacks using explosives, causing damage to several public and private buildings including the house of Mr Friedrich, who was then a Cabinet Minister (Bundesrat) and head of the Department of Justice and Police.
On 20 July 1984 the Winterthur police set up a special unit with the task of co-ordinating the hunt for those responsible for these crimes. It shadowed the members, tapped the telephones and regularly emptied the dustbins of a commune which was thought to be sheltering the criminals.
On 20 November, the police arrested twenty-seven persons and seized numerous documents at the same time. Ten of these persons were released again on the same day. The others were detained in solitary confinement, without being able to correspond freely with their lawyers, and each was the subject of a separate procedure.
10. S. was suspected of being involved in the above-mentioned crimes. He was arrested at his home in Geneva on 21 November 1984 but succeeded in escaping. He was arrested again on 30 March 1985 and charged with the use of explosives in connection with the attack on Mr Friedrich’s house.
11. On 2 and 4 April 1985 the Federal Public Prosecutor (Bundesanwalt) sent the Geneva authorities various documents implicating the applicant. On 10 April he was questioned by members of the Federal Public Prosecutor’s Office on the accusations against him, but exercised his right to silence.
12. The investigation became the responsibility of the Winterthur District Attorney’s Office (Bezirksanwaltschaft) on 22 May 1985, and S. was taken to Winterthur prison.
After questioning him on 28 May 1985 the District Attorney (Bezirksanwalt) accused him of having caused an explosion at Mr Friedrich’s house and started a fire at a civil defence centre. He again remanded him in custody on the grounds of the risk of flight and of collusion with his co-accused. On 7 June 1985 he further accused him of arson at two rifle ranges, flooding business premises and criminal damage to property by means of graffiti. According to S.’s lawyer all these charges were based on graphological reports which had been drawn up on the basis of documents seized by the police on 20 November 1984 (see paragraph 9 above).
13. On 19 July 1985 the Geneva authorities sent the Winterthur District Attorney’s Office the results of their investigations.
14. In April 1985 the applicant had asked his mother to ask Mr Rambert, the lawyer representing one of the other accused, W., to take on his defence too. Mr Rambert declined to do this and on 1 May 1985 S. instructed Mr Garbade. On 10 June the President of the Indictments Division (Anklagekammer) of the Zürich Court of Appeal (Obergericht) designated him as court-appointed defence counsel with retrospective effect from 4 May.
15. On 8 May 1985, while still in custody in Bern, the applicant had been able to confer freely with Mr Garbade for about half an hour. From 15 May, on the other hand, visits took place under the supervision of a police official. Three of the applicant’s letters to his lawyer, dated 4, 6 and 21 May, were intercepted and were later used for the purpose of graphological reports.
After being transferred to Winterthur prison S. continued to be subject to surveillance of his correspondence and his lawyer’s visits. He was, however, able on 29 May to have a meeting with no witness present with Mr H., a lawyer who had been approached by his mother to undertake his defence.
16. On 31 May 1985 the applicant spoke with Mr Garbade in the presence of a policeman who took notes and stopped the interview after an hour, on the grounds that they were no longer speaking about the case and he had other business to see to.
17. In a letter of 12 June 1985 the Winterthur District Attorney informed the Zürich Principal Public Prosecutor (Staatsanwalt) that he considered these measures necessary in view of the risk that the applicant’s lawyer might collude with other lawyers or other co-accused. He relied on the second paragraph of Article 18 of the Zürich Criminal Procedure Code (Strafprozessordnung), according to which:
"An accused who is held in custody shall be permitted written and oral contact with defence counsel, in so far as the purpose of the investigation is not jeopardised.
Once his detention has exceeded fourteen days, an accused must not be refused permission to consult defence counsel freely and without supervision, unless there are special reasons, in particular a danger of collusion. After the close of the investigation, an accused shall have this right without restriction.
(...)."
18. The Indictments Division of the Zürich Court of Appeal gave S.’s lawyer permission on 27 June 1985 to examine three police reports and several transcripts of statements by the co-accused at the registry of the Court, but not to take copies of them. From that date until January 1986 (see paragraph 33 below) Mr Garbade did not have access to any other documents in the case-file.
19. There were numerous disputes between the lawyer and those carrying out the surveillance, notably on 23 August 1985 when the lawyer wanted to give his client several decisions and letters from the District Attorney and a copy of the memorial for the public-law appeal of 19 August 1985 (see paragraph 27 below). The latter document was seized by the officer and sent to the District Attorney.
20. On application by the Winterthur District Attorney’s Office the President of the Indictments Division of the Zürich Court of Appeal extended the applicant’s detention on remand until 12 September 1986, in order to prevent him colluding with his co-accused, who had meanwhile been released, and tampering with evidence.
21. In October 1985 Mr Garbade saw some extracts from the final police report of 8 August 1985, but he did not have access to the case-file until January 1986.
22. On 3 June 1985 the applicant appealed to the Indictments Division of the Zürich Court of Appeal, complaining of the surveillance of the interview of 31 May (see paragraph 16 above), and supplemented the appeal on 14 June following other visits on 7 and 14 June.
23. The Indictments Division dismissed S.’s appeal on 27 June. It pointed out that he was suspected of having committed the crimes in question and said that in view of the complexity and extent of the authorities’ investigation there was a serious risk of collusion; because the accused had refused to make a statement, it would have been easy for him to tamper with the evidence, as his co-accused had been released, apart from W. He had also kept in close contact with them, and was accused of serious offences which had constituted attacks on public and social order. There was also a risk of unintentional collusion on the part of Mr Garbade in view of his contacts with the lawyers representing the other accused, especially counsel for W. As for the conduct of the policeman responsible for surveillance of the interview of 31 May 1985 (see paragraph 16 above), this could be justified.
24. The applicant appealed against this decision to the Civil Division of the Zürich Court of Appeal; on 26 July 1985 that court upheld the decision. The court found that a danger that the applicant would collude with his co-accused followed from his refusal to make a statement, and it could be supposed that he would use every effort to make their respective statements agree with each other (abstimmen). Mr H. had indeed been able to confer freely with him, but the Civil Division did not find credible Mr Garbade’s assertions that his contacts with the lawyers representing the other accused were no closer than Mr H.’s; further, counsel for W. had advised the District Attorney’s Office that the lawyers had all agreed to co-ordinate their strategy.
The court added:
"Acting in such a way is not inadmissible, but it must, however, be compatible with the duty to ascertain the material truth (Gebot der materiellen Wahrheitsfindung). As the accused represented by Mr Garbade and Mr Rambert are exercising their right to refuse to make any statements, one cannot ignore the risk that defence counsel will not only co-ordinate their tactical and legal way of proceeding but may also, intentionally or not, adversely affect the ascertainment of the material truth. In these circumstances, precisely in the case of offences of this type which must be regarded as attacks on public and social order, there are sufficient indications pointing to a danger of collusion in the person of defence counsel."
25. On 10 June 1985 the applicant had also challenged a decision by the President of the Indictments Division extending his detention on remand. He complained that he had not been able to examine all the documents in the case-file, and that the proceedings had been entirely written. On 18 July 1985 the Indictments Division dismissed the appeal and confirmed the further remand until 12 September 1985, on the grounds that there was still a danger of collusion and flight.
26. S. then brought two public-law appeals before the Federal Court on 19 and 27 August.
27. In the first appeal, which was directed against the decision of 18 July 1985 (see paragraph 25 above), he relied on Article 6 para. 3 (b) in conjunction with Article 5 para. 4 (art. 6-3-b, art. 5-4) of the Convention. He alleged that the surveillance of the interviews made his right to take proceedings within the meaning of Article 5 para. 4 (art. 5-4) illusory, and that his right to a fair hearing was deprived of substance as regards the review of the lawfulness of his detention on remand; in particular, the aforesaid surveillance prevented any confidential conversation with his lawyer aimed at refuting the evidence collected during the investigation. Further, he did not have access to the case-file and his lawyer was unable to take a copy of it.
The second appeal challenged the decisions of 27 June and 26 July 1985 (see paragraphs 23 and 24 above) and put forward essentially the same complaints.
28. On 15 October 1985 the Federal Court dismissed the appeal of 19 August (see paragraph 27 above). It found inter alia that Mr Garbade, whose task it was to draw up the application for release from detention, had had access to the case file, so that the applicant’s rights in the proceedings on the extention of his pre-trial detention had not been infringed. The court added that counsel would, at the preparation for trial at the latest, have the right to a copy of the case-file for his client if he asked for this.
29. The appeal of 27 August 1985 (see paragraph 27 above) suffered the same fate on 4 December. The Federal Court held that only Article 4 of the Federal Constitution and Article 6 para. 3 (c) (art. 6-3-c) of the Convention (as interpreted by the European Commission of Human Rights) were relevant, and not Article 6 para. 3 (b) (art. 6-3-b), as the surveillance had not prejudiced preparation for the trial.
The authorities had not been arbitrary in describing the offences in question as systematic attacks on public and social order. The accused appeared to be extremely dangerous and it was reasonable to suppose that they would have resorted to illegal methods even during the judicial proceedings. Consequently, regardless of Mr Garbade’s personal qualities, surveillance of his contacts with his client was in accordance with the Constitution and the European Convention.
In the event of irregular actions on the part of a lawyer, it was in the first place up to the disciplinary authorities to impose penalties on him. A lawyer could intentionally or unintentionally become the accomplice of an accused. This was the case in particular with Mr Garbade, who was in close contact with Mr Rambert, whose client W. had been allowed to communicate freely with him. However, the applicant could not claim to be the victim of discrimination, as W. had been in custody for much longer and was accused of additional offences.
30. The surveillance had not been relaxed in the meantime. The police officer in charge of it had drawn up reports on 23 August, 11 October, 21 October and 18 December; these were subsequently added to the case-file. It was apparent from the first report that Mr Garbade had had to show him the documents he was studying with his client.
31. In a letter of 15 October 1985 the Winterthur District Attorney’s Office had informed the Principal Public Prosecutor that the surveillance was aimed at eliminating all risk of collusion; he considered, however, that it was unlikely that a conversation listened to could be used in evidence against S. in any way.
32. On 21 October 1985 the Winterthur District Attorney notified Mr Garbade that he would end the surveillance as soon as he had heard the applicant’s statement on the accusations brought against him. Mr Garbade replied that S. would refuse to make any statement as long as the surveillance continued.
33. The surveillance of visits and correspondence was ended on 10 January 1986 following an interrogation lasting a day and a half. On that occasion the District Attorney asked the applicant to make a statement, but he exercised his right to silence. After this he was able to confer with his counsel in the prison library with no glass screen or any other restriction.
34. On 20 December 1985 the applicant had brought an appeal inter alia against the surveillance of visits and the fact that he was not allowed to consult the case-file.
On 8 January 1986 the Indictments Division of the Zürich Court of Appeal had adjourned a decision on the first point, on the grounds that the District Attorney’s Office was about to discontinue the surveillance. On the second point the court had found that S. was still suspected of the offences in question and the length of the investigation was caused by his insistence on remaining silent.
On 10 July 1986 the court found that the complaint on which it had adjourned a decision on 8 January was no longer a live issue now that the surveillance measures had ended (see paragraph 33 above). In order to decide whether the applicant was liable for costs or was entitled to damages, it assessed what chances of success the appeal would have had if the surveillance had continued. It noted that the circumstances referred to in the Federal Court’s decision of 4 December 1985 (see paragraph 29 above) had not changed by 20 December, the date of the appeal, and the restrictions on free communication between the applicant and his lawyer thus remained justified; it therefore did not award him any pecuniary compensation.
35. S. appealed against this decision to the Civil Division of the Zürich Court of Appeal, which upheld the decision on 19 January 1987, again on the grounds that the appeal of 20 December 1985 would probably have failed.
36. S. finally brought a public-law appeal on 27 February 1987. The Federal Court dismissed it on 30 November 1987. Restricting itself to examining whether the refusal to award compensation was tainted by arbitrariness, it found that there had been a danger of collusion and in essence approved the findings of the Indictments Division (see paragraph 34 above).
37. In a report drawn up for the Winterthur District Attorney’s Office on 26 March 1986, the Zürich police had expressed the opinion that some of the anonymous letters which had been sent shortly after the offences in question undoubtedly came from the applicant.
38. The final interrogation took place on 28 July 1986. According to the record, S. refused to answer the accusations brought against him, and his lawyer attributed those accusations to the fact that his client was thought to have anarchist opinions.
39. The Winterthur District Attorney’s Office’s final report (Schlussbericht) of 21 August 1986, comprising 235 pages, accused the applicant of nineteen offences and attempted offences of arson, participation in three attacks with explosives, various thefts and offences of criminal damage, including damage to a railway line; the damage amounted to approximately 7,670,000 Swiss francs. The report was forwarded to the Zürich Public Prosecutor’s Office.
40. On 12 September, 6 October and 22 December 1986 the applicant made unsuccessful requests to the Public Prosecutor’s Office to reopen the investigation. He applied again on 1 April 1987.
41. In accordance with paragraph 3 (c) of Article 198 a of the Zürich Criminal Procedure Code he left it to the Indictments Division to decide which court would try him. The Division decided to commit him for trial by the Court of Appeal rather than the Court of Assizes (Geschworenengericht), as it considered that his interests would be better protected in that way, especially with regard to his youth.
42. The trial was due to start on 14 January 1988 but the applicant did not appear. The Court of Appeal therefore adjourned the hearing.
A fresh hearing took place on 11 December 1989, in the absence, for which no reason had been given, of S. who had been provisionally released on 15 September 1988. The Court of Appeal found him guilty inter alia of manufacturing explosives, arson, theft and criminal damage and sentenced him to seven years’ imprisonment - the 1,291 days spent in custody on remand being deducted - and to payment of costs and expenses.
The applicant appealed. A new trial took place on 8 February 1990, again in his absence. After hearing his counsel and the representative of the Zürich Principal Public Prosecutor, the Court of Appeal upheld its judgment of 11 December 1989. He appealed to the Court of Cassation of the Canton of Zürich, and enforcement of the judgment was suspended by the appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-21926
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: S.D. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, S.D., is a Turkish national of Kurdish origin, born in 1978 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1994, the applicant left Turkey for Germany, allegedly after having been apprehended and released by the Turkish authorities in connection with his activities for the PKK youth movement. The applicant remained in Germany until, at some unspecified point in time in 1997, he travelled to the Netherlands. After having been apprehended in the Netherlands, he was removed to Germany on 2 January 1998 as he held a valid residence permit for this country. On 6 January 1998, the applicant returned voluntarily to Turkey.
Two weeks after his arrival in his hometown in Turkey, the applicant was apprehended by the police and questioned about his past whereabouts. He was released after 22 days. About five months later, he was apprehended for a second time. He was released after 31 days. The applicant remained in his hometown until his departure for the Netherlands on 9 January 1999, where he arrived after a two week journey.
On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador’s household were prevented from leaving the premises. That day, the applicant, together with numerous others, was arrested. The applicant was subsequently detained in police custody (inverzekeringstelling) on suspicion of (being an accessory to) the offence of unlawfully depriving a person of his liberty.
On 20 February 1999, the applicant was heard on the suspicions against him and was subsequently served with an indictment to stand trial on 13 September 1999 on charges of, inter alia, having deprived one or more internationally protected persons of their liberty, trespassing and vandalism.
Later that day and upon instructions of the public prosecutor, the applicant was released from police custody and handed over to the aliens’ police (vreemdelingenpolitie) for the purposes of his expulsion as it had appeared that he was an illegal alien. The aliens’ police apprehended the applicant in accordance with Article 19 of the Aliens Act (Vreemdelingenwet) in order to verify his identity, nationality and residence title and, subsequently, placed him in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet).
Also on 20 February 1999, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds and, on 25 February 1999, he was interviewed by an official on the reasons for these requests.
On 17 March 1999 the State Secretary of Justice (Staatssecretaris van Justitie) declared the applicant’s request for asylum inadmissible in accordance with Article 15b § 1 (f) of the Aliens Act as the applicant had not filed his request without delay upon his arrival in the Netherlands in January 1999. The State Secretary further held that, even assuming that the request had been admissible, it would have been rejected as manifestly ill-founded. In this respect, the State Secretary held that the fact that the applicant had not applied for asylum without delay upon his arrival in the Netherlands in January 1999 cast doubts on the sincerity of his motives for applying for asylum.
The State Secretary did not find it established that the applicant had attracted the negative attention of the Turkish authorities given that, after his voluntary return to Turkey, he had twice been arrested and released unconditionally and had remained in Turkey for a further five months after his second release. Insofar as the applicant argued that he was wanted by the Turkish authorities for failure to perform his military service, the State Secretary noted that the applicant had been unable to submit a summons to report for military service. The State Secretary further noted that the applicant had voluntarily returned to Turkey in 1998, which militated against the applicant’s having fled that country in order to evade the military service. He had, moreover, not submitted any reasons for not wanting to do his military service. The State Secretary further found no indication that the applicant, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention
The applicant was ordered to leave the Netherlands without delay and, also on 17 March 1999, the State Secretary issued an order for the applicant’s expulsion.
On 18 March 1999, the State Secretary of Justice sent a notification to the Hague Regional Court (Arrondissementsrechtbank) sitting in Haarlem stating that the applicant had been held in aliens’ detention for a period of four weeks without having filed an appeal against the decision of his placement in aliens’ detention. This notification is considered on a par with a first appeal under Article 34a § 2 of the Aliens Act.
On 19 March 1999, the applicant filed an appeal with the Hague Regional Court against the State Secretary’s decision of 17 March 1999. As he had been placed in aliens’ detention he was not required, like asylum seekers not placed in aliens’ detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. The applicant further requested the Hague Regional Court to issue an injunction on his expulsion pending the appeal proceedings.
On 8 April 1999, following a hearing held on 25 March 1999, the Hague Regional Court sitting in Nieuwersluis rejected the appeal against the applicant’s placement in aliens’ detention that had been filed on 18 March 1999 by way of a notification. It rejected the applicant’s arguments that his detention in police custody had been unlawful and that the public prosecutor had not given his consent to the applicant’s expulsion. It considered that this consent appeared from the public prosecutor’s decision to hand the applicant over to the aliens’ police for expulsion purposes. In the light of this decision and the decision of the State Secretary to order the applicant’s expulsion, the Hague Regional Court rejected the applicant’s argument that there were no prospects for his expulsion.
It further held that this was not altered by the fact that the applicant was awaiting the outcome of his appeal against the State Secretary’s decision of 17 March 1999. The applicant’s placement in alien’s detention would, according to the Hague Regional Court’s constant case-law, only be unlawful if the pending appeal stood clear chances of success, which it considered not to be the case. The Hague Regional Court further noted that the State Secretary had requested the Hague Regional Court to consider the applicant’s appeal and request for an injunction on his expulsion with priority. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the Aliens Act and that, after having balanced the interests involved, this placement could reasonably be regarded as justified. Consequently, it found no grounds to award the applicant compensation for the time spent in placement in aliens’ detention.
On 26 May 1999, the applicant filed an appeal with the Hague Regional Court sitting in Nieuwersluis against his placement in aliens’ detention as well as a request for compensation for the time spent in placement in aliens’ detention.
On 15 July 1999, following a hearing held on 8 July 1999, the Hague Regional Court rejected this appeal. Insofar as relevant, it held:
“The alien’s argument that there are no prospects for expulsion because the appeal proceedings on requests for asylum by Turkish Kurds who, like himself, refuse to perform their military service will only be dealt with after some time, is not accepted. In the court’s opinion the (representative of) the alien can – so as to obtain clarity on the request for asylum rapidly – influence the fixing of a hearing date for the examination of the appeal and of the request for an injunction by requesting the Regional Court to give them priority. It has not appeared that the (representative of the) alien has filed such a request or that such a request would not have been determined at short notice, so that it cannot be said that for this reason there are no prospects of expulsion within a reasonable time
Insofar as the alien’s representative argues that the continuation of the placement in aliens’ detention is unlawful, since it is evident that the alien’s asylum request will be granted, the court notes the following. With reference to the documents submitted, it does not appear clearly from the submissions made by the alien’s representative in the procedure on the alien’s residence title that the alien must be granted permission to reside in the Netherlands. In the light of these circumstances a continuation of the imposed measure of placement in aliens’ detention cannot as yet be held unjustified.
Also in respect of the remainder, the Regional Court is of the opinion that, having regard to the written and oral submissions, the ... placement in aliens’ detention is not in violation of the Aliens Act and neither, upon a weighing of all interests involved, can it be considered as unjustified.
The appeal is therefore ill-founded.
As the placement in aliens’ detention is maintained, the request for compensation cannot be granted.”
On 31 August 1999, following a policy decision by the State Secretary to suspend temporarily the expulsion of Turkish nationals of Kurdish origin, the Hague Regional Court ordered the applicant’s release from aliens’ detention. The applicant was released the same day.
On 30 September 1999, the applicant’s lawyer was informed that, pending the investigation that was being carried out by the Ministry of Foreign Affairs (see below), the State Secretary would not avail himself of his powers under Article 22 of the Aliens Act to expel the applicant. On the assumption that, in these circumstances, the applicant would withdraw his request to the Hague Regional Court for an injunction on his expulsion, an offer was made to compensate the applicant for his court fees.
On 22 October 1999, the public prosecutor informed the applicant that the criminal charges that had been brought against him had been dropped for lack of sufficient lawful evidence.
In its decision of 16 November 1999, following a hearing held on 1 November 1999, the Hague Regional Court upheld the State Secretary’s decision to declare the applicant’s request for asylum inadmissible. However, it declared the applicant’s appeal for the remainder well-founded, finding, inter alia, that the State Secretary had failed to examine the applicant’s arguments relating to his refusal to perform his military service in the light of criteria set out in a decision taken on 12 April 1995 by the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court. Consequently, it quashed the decision of 17 March 1999. The Regional Court did, however, add that this did not necessarily imply that the applicant was eligible for entry to the Netherlands as the State Secretary had been correct to express doubts as to the applicant’s account. In this respect it noted that the applicant had voluntarily returned to Turkey on 6 January 1998, i.e. at a time when no final decision on his asylum had yet been taken and whilst he was still holding a valid German residence permit. It considered that it had remained unclear why the applicant had not invoked the protection of the German authorities but had gone to the Netherlands instead. The Hague Regional Court further found it remarkable that, after having been released, the applicant had stayed in his hometown for five months without, according his submissions, having encountered problems worth mentioning.
On 1 May 2000, the Criminal Law Division (Strafsector) of the Hague Regional Court rejected the applicant’s request under Article 89 of the Code of Criminal Procedure for compensation for the time spent in police custody. It noted that the criminal proceedings against the applicant had ended on 22 October 1999, when the public prosecutor had informed the applicant’s lawyer that the criminal charges against the applicant had been dropped. Given the circumstances of the applicant’s arrest, it held that there had been a reasonable suspicion that he had been involved in the commission of offences in or around the residence of the Greek Ambassador. Having regard to the fact that about 200 persons had been arrested, all of whom had had to be provided with legal aid and had to be heard – which in most cases required the assistance of an interpreter –, the Regional Court, while recognising that the applicant had had to wait too long before he had been provided with a legal aid lawyer and accepting the unsatisfactory nature of this situation, held that in the specific circumstances this delay could not be held against the State.
No information has been submitted as to the further proceedings on the applicant’s request for asylum.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:
a. aliens whose expulsion has been ordered;
b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered;
c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.
2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.
3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month.
...”
An alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be terminated.
It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Pursuant to Article 34a of the Aliens Act, the Regional Court must examine an appeal brought against a measure of deprivation of liberty within two weeks and must hand down its written decision on the appeal within two weeks following its hearing on the appeal.
Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)
There is no time-limit for the filing of an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.
On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend until 15 August 1999 its examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, in view of a recent report of one such asylum seeker having encountered serious problems after his expulsion to Turkey. As the veracity of this report was not certain, the Minister of Foreign Affairs had been requested to investigate the matter and to submit his findings as to the origin, background and veracity of the report before 15 August 1999.
On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin.
On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension.