ITEMID: 001-57545
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF NIELSEN v. DENMARK
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (ratione personae)
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 9. The applicant, Jon Nielsen, is a Danish citizen, born in 1971.
10. His parents lived together from 1968 until 1973. They were not married and, in accordance with Danish law, only the mother had parental rights over the child. After the parents separated in 1973, the applicant remained with the mother and the father had access to him on a "gentlemen’s agreement" basis. However, this arrangement did not function well and in 1974 the father obtained a specific right of access through the competent authorities.
11. It appears that a closer relationship developed between the applicant and his father during the following years. The Danish legislation at the time, however, did not provide special procedures for having the custody rights transferred from the mother to the father, and the father introduced an application to the European Commission of Human Rights (no. 7658/76) complaining about his situation on 21 September 1976. During the proceedings before the Commission, the Custody and Guardianship of Children Act 1976 (myndighedsloven, "the 1976 Act", see paragraphs 40-41 below) was amended with effect from 1 October 1978, so that a court might vest parental custody in the father of a child born out of wedlock, when certain conditions were fulfilled. As a result the Commission, on 5 December 1978, rejected the application on the ground that the father could no longer claim to be a victim of an alleged violation of the Convention (Decisions and Reports no. 15, pp. 128-130).
12. The father had regular access to the applicant until the summer of 1979, when the applicant apparently refused to return to the mother after a two-week holiday with the father. The social authorities were contacted and, with the consent of all parties, the applicant was placed in a children’s home. However, he disappeared from the home and returned to the father. On 6 August 1979, the father instituted proceedings before the City Court of Ballerup (Ballerup ret) to have the custody rights transferred to him according to the new law. Father and child also went "underground" until 8 October 1979, when the father was arrested by the police. He was released on 12 October 1979.
13. On 9 October, after the father’s arrest, the social authorities, with the consent of the mother, placed the applicant in the Department of Child Psychiatry in the county hospital, Nordvang. On 23 October, the father’s right of access was suspended. The father’s appeal against this decision was rejected by the Ministry of Justice on 12 November. The applicant disappeared from Nordvang on 11 December 1979 and thereafter started to live in hiding with his father again.
14. In the custody proceedings before the City Court of Ballerup (see paragraph 12 above), the court held on 11 July 1980 that a transfer of custody to the father was not in the interest of the child.
15. The applicant’s father appealed against this judgment to the Court of Appeal for Eastern Denmark (Østre Landsret). On 25 November 1980, the parties agreed that the applicant should undergo a child psychiatric examination by Professor Tolstrup. This examination resulted in a report of 16 February 1981, in which Professor Tolstrup concluded (translation from Danish):
"After considering the case, I find it in the best interest of the child that the custody rights remain with the mother. Since the boy is developing nervously it is recommended that he and the mother, after [the applicant] has returned to her, get child psychiatric support. ..."
On 9 March 1981, the Court of Appeal upheld the City Court’s judgment. The applicant nevertheless remained in hiding with his father, staying with various families in Denmark.
16. In November 1982, after having lived "underground" for more than 3 years, the applicant’s father again instituted proceedings before the City Court of Ballerup in order to have the custody rights transferred to him. Since he was wanted by the police, on suspicion of having kidnapped the applicant, the father did not attend the hearings in person, but only through his lawyer. Before the City Court the applicant’s mother maintained that the applicant had been harmed due to the abnormal circumstances under which he had lived with his father and that she would accept Professor Tolstrup’s recommendation and obtain support from the Child Psychiatric Ward (den børnepsykiatriske afdeling) of the State Hospital (Rigshospitalet), a university and general hospital, for a transitional period (see paragraph 15 above).
In its judgment of 11 April 1983, the City Court found that the custody rights.
17. The applicant’s father appealed to the Court of Appeal, but on 22 September 1983 the Court of Appeal upheld the City Court’s judgment. Leave was subsequently granted by the Ministry of Justice to bring the case before the Supreme Court (Højesteret) (see paragraph 37 below).
18. Directly after the hearing in the Court of Appeal on 22 September 1983, at which both the father and the applicant were present, the father was arrested by the police and charged with depriving the mother of the exercise of her parental rights in violation of section 215, read in conjunction with section 261 paragraphs 1 and 2, of the Danish Penal Code. The applicant was placed in a children’s home.
19. The mother, advised by the Social Welfare Committee of Herlev County and Professor Tolstrup, and with the recommendation of her family doctor, requested that the applicant, who was by then 12 years old, be admitted to the State Hospital’s Child Psychiatric Ward since it was clear that he did not want to stay with her. On 26 September 1983, the applicant was admitted to the Ward by Professor Tolstrup who was Chief Physician at the Ward. On 29 September, the Social Welfare Committee recorded its approval, pursuant to section 33 of the Social Assistance Act (see paragraph 44 below), that the applicant was to be placed away from home in accordance with his mother’s wish.
20. According to Professor Tolstrup, who was responsible for the applicant’s treatment at the State Hospital, the procedure followed in connection with admission was the usual one: the holder of the parental rights made the request, the family doctor recommended admission and the responsible chief physician of the ward accepted to admit the applicant.
21. By letter of 23 December 1983 to the Ministry of Justice, the applicant’s father, on behalf of the applicant, questioned the lawfulness of the applicant’s "detention" at the State Hospital contrary to the applicant’s wish. He maintained, inter alia, that the provisions of the hospitalisation of Mentally Ill Persons Act 1938 (Lov om sindssyge personers hospitalsophold, Act no. 118 of 13 April 1938, as amended by Act no. 225 of 7 June 1972 - "the 1938 Act"; see paragraphs 47-50 below) regarding compulsory admission to hospital had not been observed.
The Ministry of Justice submitted the matter to the Chief Physician at the Child Psychiatric Ward. In accordance with the information he gave, the Ministry replied, on 28 December 1983, that the applicant had not been admitted in accordance with the 1938 Act, but on the basis of a decision by his mother as holder of the custody rights, and that it could not make a determination in the matter.
22. On 1 January 1984, the applicant’s representatives nevertheless petitioned the Copenhagen City Court (Københavns byret) under chapter 43a of the Administration of Justice Act (retsplejeloven) (see paragraph 39 below) for a decision on the lawfulness of the applicant’s placement in the State Hospital. The defendant, the Ministry of Justice, pleaded dismissal, maintaining that the applicant had not been subjected to administrative deprivation of liberty under the 1938 Act.
23. In its judgment of 6 January 1984, the Copenhagen City Court upheld the Ministry of Justice’s plea for dismissal on the following grounds (translation from Danish):
"Considering that [the applicant] ... has been admitted to the Child Psychiatric Ward of the State Hospital, Copenhagen, on the basis of a decision made by [his mother], who is the holder of parental rights, [the applicant’s] detention at the State Hospital is not covered by the [1938] Act and it is therefore not subject to judicial review according to chapter 43a of the Administration of Justice Act. For this very reason the petition must be dismissed."
24. The applicant appealed, through the father, to the Court of Appeal arguing, in particular, that if he had not been a minor he could have challenged the lawfulness of his detention in the State Hospital before the courts. He added that, although the holder of the custody rights had, according to section 19 of the 1976 Act (see paragraph 40 below), an extensive right to make decisions concerning the child, such a right should be subject to certain restrictions; a totally involuntary detention ought to be an interference which could only be carried out administratively and thus under the conditions mentioned in Article 71 of the Danish Constitution (see paragraph 38 below), irrespective of any decision by his mother.
The State Attorney (Kammeradvokaten) again maintained that the case did not concern administrative deprivation of liberty and was thus outside the scope of chapter 43a of the Administration of Justice Act. In the alternative he alleged that, if the case disclosed deprivation of liberty within the meaning of chapter 43a, the father would be unable to act on behalf of the child since at that time he had no, and had never had any, parental rights over the child.
25. Rejecting the State Attorney’s latter argument, the Court of Appeal stated in its judgment of 15 February 1984 (translation from Danish):
"The question whether a minor should be subjected to treatment in a hospital is normally decided by the holder of parental rights and such measures cannot be challenged by means of chapter 43a of the Administration of Justice Act.
Concerning the treatment of mentally deranged persons, inter alia in public hospitals, special rules apply according to the [1938 Act], cf. chapter 43a of the Administration of Justice Act. From what has been established in this case it appears that [the applicant] does not suffer from any mental illness and according to the above there has been no question of admittance for treatment of a mental illness. The decision to admit [the applicant] to the Child Psychiatric Ward of the State Hospital after the disturbances he has been through and the decision on his temporary stay there were taken by his mother, who has the parental rights over him. The appellant’s claim for judicial review under chapter 43a of the Administration of Justice Act cannot therefore be granted and the decision of the Copenhagen City Court to dismiss the case is upheld."
26. The applicant’s representatives asked the Ministry of Justice, according to section 371 of the Administration of Justice Act, for leave to appeal to the Supreme Court. However, on 14 March 1984 the Ministry refused leave since the Ministry was of the opinion that the judgment would not be overruled by the Supreme Court.
27. On 23 December 1983, Mr Jacobsen, as representative of the father, also sent copies of the complaints to the Ministry of Justice to the National Health Authority (Sundhedsstyrelsen, an authority under the Ministry of the Interior). On 10 January 1984, he requested that this authority carry out an investigation of whether the applicant was forced to visit his mother and whether Professor Tolstrup could lawfully prevent him from visiting the applicant. The National Health Authority found the legal issues raised by the father to be beyond its authority, but decided nevertheless, on its own account, to take up the question of how the applicant had been treated from a medical point of view.
28. In the course of the National Health Authority’s investigation Professor Tolstrup submitted, on 6 January 1984, the following report regarding the circumstances of the applicant’s stay at the State Hospital to the Medical Health Officer of Copenhagen (Københavns Stadslæge) (translation from Danish):
"[The applicant] has expressed his dislike of staying here, but at no time has he attempted to run away. We have not been able and have not wanted to prevent him from running away, which he could have done, inter alia, when he left the Ward together with the other children, e.g. to visit museums or to go for a hair cut. Also in this respect he has been in hospital on the same terms as the other patients of the Ward.
...
The treatment involves environmental therapy at the Ward and regular talks with [the applicant].
...
At no time has he been given treatment involving medication.
Since 23 October 1983, his mother has visited the Ward regularly during the usual visiting hours on Sundays and Wednesdays. Since 11 November 1983 [the applicant] has visited his mother at home. The visits were at first short, but since 10 December 1983 he has been able to spend the weekends there. Christmas Eve and Christmas Day were spent with his mother and so was New Year’s Day.
...
I wish to add that the patients at the Ward are not ‘compulsorily detained’ in the usual sense of the expression in [the 1938 Act]. The Child Psychiatric Ward of the State Hospital is an ordinary hospital ward run in principle on the same conditions as the other wards of the State Hospital. As the Ward is situated on the seventh floor in a building with a number of somatic wards, the main entrance of each block has a latch (smæklås) to prevent the children of the ward, some of whom may be inclined to rush around impulsively, from running about in the hospital or running into town, and possibly being a nuisance to the patients in other wards of the hospital or exposing themselves to danger. This measure is to be compared with the locked front door in a family house. As mentioned above, the children often go out with the staff, e.g. to playgrounds or to visit museums. During their stay in hospital the children are not normally confined to bed, and the Ward offers many possibilities for different activities under homelike conditions. Thus it is entirely misleading ... to talk about ‘institutional detention’."
The treatment given to the applicant at the Hospital was explained in more detail by Professor Tolstrup in a report to the Danish Supreme Court on 19 June 1984 (see paragraph 37 below) (translation from Danish):
"The treatment consisted of environmental therapy and individual talks. In the environmental treatment endeavours were made to let him experience relaxed, homelike surroundings together with adults who were neutral in relation to the previous conflicts concerning custody. Endeavours were also made to protect him from pressure by the media, which however could not be completely averted, because when he went outside the Ward he could read the headlines of the newspapers, and through a completely free and very extensive correspondence he could follow the media reports. As a whole, Jon seemed to be happy and secure in the Ward, and the objective of the environment therapy had been largely achieved at the time of discharge. However, at that time Jon had a continued need for ambulatory therapy of individual talks."
In his report, Professor Tolstrup also pointed out that the applicant had been allowed to pay visits to his father in prison every other week since November 1983 (in total seven such visits took place).
29. The applicant’s development in the course of his treatment at the Ward was described by Professor Tolstrup in a report on 7 March 1984 to the Social Welfare Committee of Herlev County (translation from Danish):
"... During the treatment, including the environmental therapy and the personal talks, at the Child Psychiatric Ward since New Year 1984, [the applicant] has continued to grow more relaxed, more extrovert and spontaneous and he is now able to show his feelings better. This applies to his relationships both with the staff and with the other children in the Ward. During the entire stay at the hospital he has as before, apart from the first couple of days, been allowed to move about freely just like the other children. In other words, he has gone to the library on his own, has joined visits to museums in town, been to the swimming pool, skating rink, etc.
His relationship with his mother also underwent a similar favourable development in the same period. He saw his mother every weekend and participated in the family life together with his mother, her friend, and his sister. At first he was a bit shy to leave his home, apparently for fear of being recognised. On 2 February 1984, he started school again in his old class, and the Ward prepared his return together with the school. He has taken up contact with his old school mates when visiting his mother during weekends. In connection with the school’s winter holiday, he had his longest stay with his mother from Friday 10 February until Wednesday 15 February 1984. During this holiday, the whole family went for a couple of days to his mother’s parents in Jutland. It was obvious that [the applicant] enjoyed this family outing ..."
30. As part of the National Health Authority’s investigation the Medical Health Officer of Copenhagen was also requested to visit the ward in which the applicant was placed. In her report of 8 February 1984, she stated (translation from Danish):
"The Child Psychiatric Ward currently keeps 18 children in continuous treatment, the average period of therapy being about five or six months.
...
[The applicant] was not at home while I was there but in school. During the past weeks, he has been attending the same elementary school he used to go to and where he apparently feels at ease. Every day he goes to and from the school by cab, alone.
...
Much is done to make the children feel at home. [The applicant] takes swimming lessons together with other children in the Ward accompanied by one of the staff members. He has also gone sledge riding and may visit school friends. The entrance door to all children’s wards is locked, partly to prevent the young children from running all over the hospital premises where they might hurt themselves in lifts or lose their way. The entrance door is locked also in order to minimise the substantial risk of theft.
[The applicant] is allowed to leave the Ward if he asks for permission to go, for instance, to the library. He moves around unaccompanied on these occasions.
My conclusion is that [the applicant] is staying in an environment as similar as possible to a real home and that he is by no means kept there against his will. On the contrary, he is allowed to move about outside the Ward all by himself or in the company of staff members and/or other children ..."
31. In its final report of 15 February 1984, the National Health Authority concluded (translation from Danish):
"On the present material the National Health Authority does not find any reason for not approving Professor Tolstrup’s medical evaluation the essence of which was that [the applicant] was trapped in a neurotic state requiring treatment, a development which the Authority views as the result of the most unusual circumstances in which [the applicant] had been living with his father during the past few years. If these circumstances had continued, the risk of a further move towards a personality-stunting, chronically neurotic state of mind would, in the opinion of the Authority, have been extremely likely.
Nor does the National Health Authority see any reason for criticising the medical treatment which [the applicant] received while hospitalised and which was designed to integrate him in normal human relationships ..., and included talks at regular intervals with [the applicant] and his mother, since the Authority, things being what they were, would find it irreconcilable with the welfare of [the applicant] to deny him relevant treatment. According to the information available to the Authority, [the applicant] is now so well that he may probably be discharged by the end of February 1984. By then, the period of his hospitalisation will not have exceeded the average period. While hospitalised [the applicant] has been allowed to visit his father regularly at Vestre Fængsel [prison].
To sum up: The National Health Authority sees no reason for criticising Professor Tolstrup or the Child Psychiatric Ward of the State Hospital for their medical treatment of [the applicant]."
32. The applicant has not repudiated the above statements (see paragraphs 28-31). However his representative has added before the Commission that:
"The Child Psychiatric Ward is definitely a closed ward. The door to the Ward was locked and [the applicant] was totally unable to receive visitors except with the agreement and under the surveillance of the staff at the Ward ... [The applicant] was unable to leave the hospital if he so wished. ...
[He] was not permitted to phone [his father’s counsel] or his father, who was in prison charged with the kidnapping of the applicant, who had actually been the active party in the kidnapping. [The applicant] was under almost constant surveillance: he was unable to make social contacts; persons from outside the hospital were unable to get in contact with him without special permission ..."
33. According to information submitted by the Government in response to a request by the Court, no children had ever been admitted under the compulsory procedure in the 1938 Act (see paragraph 47 below) to the ward in which the applicant was placed and this ward had never had any patients suffering from mental illnesses of a psychotic nature.
34. It was planned that the applicant should be discharged to his mother’s home on 22 February 1984. However, on that day he disappeared from the hospital. His mother reported the disappearance to the police. On 8 March, the police found the applicant, who had stayed with various families in Jutland, and brought him back to the State Hospital in Copenhagen where he was readmitted to the Child Psychiatric Ward at his mother’s request.
35. On 27 March 1984, the father, who had been detained on remand since his arrest on 22 September 1983 (see paragraph 18 above), was sentenced to 9 months’ imprisonment by the Court of Appeal. Having regard to the time spent in detention on remand, he was released on the same day.
36. The applicant was discharged from the hospital on 30 March 1984 and placed in the care of a family not officially known to the father.
37. The question whether to transfer the custody rights from the mother to the father was, as mentioned above (see paragraph 17), brought before the Supreme Court following the decision of the Court of Appeal on 22 September 1983. Before the Supreme Court Professor Tolstrup maintained, in a report of 19 June 1984, that it would be in the best interest of the applicant that the parental rights remained with his mother. This opinion was supported by the Medico-Legal Council (Retslægerådet) in a statement of 9 August 1984. However, on 21 August 1984 the Supreme Court, by a majority of five votes to two, overruled the Court of Appeal’s decisions and awarded custody of the applicant to his father. The majority in their judgment said (translation from Danish):
"The respondent [the mother] must be considered well suited to exercise custody and there seems to be no reason to believe that the appellant [the father] should not be suited to handle this task. As the desirability of continued child-psychiatric support is not found to counterbalance the need for a decision now on the question as to which parent Jon is to reside with, these judges find that out of consideration for his welfare it is desirable that custody of him be granted to the appellant in accordance with Jon’s own wish, regardless of whether his attitude to his parents may be due to a one-sided influence during his stay with the appellant. Their decision is therefore to find for the appellant."
The applicant now lives with his father.
38. Section 71 of the Danish Constitution (Danmarks Riges Grundlov) protects the right to personal liberty. Under paragraph 6 deprivations of liberty outside criminal procedure, not executed by order of a judicial authority and not warranted by legislation relating to aliens, are made subject to judicial review.
39. Chapter 43a of the Administration of Justice Act deals with judicial review of administrative deprivations of liberty. Its introductory section 468 states that, unless otherwise provided by statute, its provisions apply only to detentions outside criminal procedure not executed by order of a judicial authority.
40. The Danish rules on parental custody are laid down in the Custody and Guardianship of Children Act 1976 (myndighedsloven, Act No. 554 of 16 November 1976 - "the 1976 Act"). According to this Act, children and young persons under 18 years of age are under parental custody unless they have contracted marriage.
The holder of the parental rights has, according to section 19, a duty to provide for the care and welfare of the child and has power to take decisions on the personal life of the child.
Parental rights over children born out of wedlock are, according to section 28, vested in the mother. Under that section, as amended in 1978 (see paragraph 11 above), they may however be transferred to the father where required out of special regard for the welfare of the child.
41. At the relevant time, the Act contained no provisions on the child’s participation in decision-making concerning the child’s personal life. On 6 June 1985 it was amended (Act No. 230) and, according to a new section 26 and section 33 sub-section 3, any minor who has attained the age of 12 is normally to be heard before a decision on custody, access rights or appointment of a guardian is made. The hearing of the child may however be omitted if it can be assumed to be unnecessary or harmful to the child.
42. According to section 20 of the Social Assistance Act 1974 (Lov om social bistand, Act No. 333 of 19 June 1974) (translation from Danish):
"Any person who becomes aware that a child or a young person under 18 years of age is exposed to neglect or degrading treatment on the part of the parents or other educators or lives under conditions liable to imperil his health or development shall be under a duty to notify the local social welfare committee."
43. According to section 32 it shall be the duty of the local social welfare committee to supervise the conditions under which the children within its area live and to support their parents in their upbringing and care. Sub-section 4 specifies that the committee shall give the holder of the parental rights or the person who in actual fact takes care of the child special guidance and support if the child has difficulties in relation to his environment, his school or the community, or if the child is otherwise living under unsatisfactory conditions.
44. In the context of its advisory and supervisory duties under the Act, the local social welfare committee may, according to section 33, "as far as possible in cooperation with the child and his home", inter alia "provide for the child to be placed away from home" where such a supportive measure is "required in the interests of the child, cf. section 32, sub-section 4".
45. According to the Act, the social welfare authorities may however have to provide supportive measures even in the absence of consent from the holder of parental rights. Section 123 specifies (translation from Danish):
"[1] Where absolutely necessary in the interests of the welfare of the child, the local social welfare committee may, until the child attains the age of 18, without the consent of the person having the parental rights over the child, decide
(i) to remove the child from his home;
(ii) to commit the child to the psychiatric department of a hospital or to a mental hospital with the acceptance of the chief physician of the hospital, even though the general conditions prescribed in the legislation on the hospitalisation of mentally ill persons are not satisfied;
(iii) to refuse to let the child return home or place the child elsewhere, notwithstanding the fact that the initial care was established with the consent of the person having the parental rights over the child.
(2) Where the supportive measures according to sub-section 1 have exceeded one year, the local social welfare committee shall reconsider the case. Where the young person is 18 years of age, the supportive measures can only be maintained with his or her consent."
Before a decision under this section is taken, the holder of the parental rights, the guardian, the child, the attorney and any other adviser shall, according to section 125, have the opportunity to make a statement to the local social welfare committee.
46. A decision to remove the child from his home under section 123 (see paragraph 45 above) can, according to section 128, be appealed against to the Social Appeals Board by the person who has parental rights over the child, the person who in actual fact exercises those rights or, if the matter relates to a person who is not subject to parental authority, the young person himself or his guardian.
These persons may also, under section 129, have the decision of the Social Appeals Board brought before the Court of Appeal.
47. According to section 3 of the hospitalisation of Mentally Ill Persons Act 1938, a patient can only be committed to a mental hospital on a written medical recommendation based on a medical examination made within the last four weeks before the committal. Apart from patients who are admitted at their own request, the medical recommendation shall be made by a medical practitioner who is not an employee of the mental hospital.
48. The responsible chief physician shall decide, pursuant to section 4 of the Act, whether the conditions for committal are fulfilled and whether the patient shall be treated for his illness.
49. According to section 9, a discharge may be requested by the patient himself or the following persons: the holder of the parental rights, the guardian, the trustee, the husband or wife, a son or daughter if of age, the father or mother, or another close relative.
Where discharge is refused by the responsible medical officer, the person making the request can bring the case before the Minister of Justice.
If the Minister of Justice also refuses the discharge, the person who made the request shall be advised that judicial review of the lawfulness of the detention may be sought in accordance with chapter 43a of the Administration of Justice Act (see paragraph 39 above).
50. The situations in which the responsible medical officer may refuse a discharge are set out in section 8. These are either that the patient is dangerous to himself or others, or that the discharge would considerably reduce the prospects for the patient’s recovery. Outside these situations a discharge may be refused only if it must be presumed to cause considerable disadvantages for the patient himself and the Ministry of Justice endorses the refusal.
Where discharge has been refused by the Minister of Justice, the issue of discharge may not be raised again within a period of four months either from the date of the Minister of Justice’s decision or, where the issue of lawfulness has been brought before a court, from the date of the court’s decision.
51. In 1985 the Ministry of Justice appointed a committee to consider possible amendments to the 1938 Act (see paragraphs 47-48 above), in particular with regard to the use of compulsion. The committee was composed of legal and medical experts as well as representatives of patients’ organisations. In April 1986, the committee published the "Report on the Principles on the Use of Compulsion in the Field of Psychiatry" (Principbetænkning om tvang i psykiatrien, no. 1068/1986).
52. The existing legal situation in respect of admission to hospital of minors not suffering from mental illnesses covered by the 1938 Act was described as follows (translation from Danish):
"The holder of the parental rights shall, inter alia, provide the required medical treatment for the child and can in this connection decide where the child shall stay, if need be in a hospital, provided, of course, that the hospital accedes to the request for admission. Admission to a hospital of a child for treatment of physical disorders presents no problems. The holder of the parental rights can with the consent of the medical officer decide on admission to a hospital and detention there, notwithstanding the protests of the child, and the child has no possibility of having tried whether the admission to the hospital and the detention there were justified since this decision rests solely with the holder of the parental rights. To say that the medical doctor, who admits or receives the child into the hospital, by complying with the request of the holder of the parental rights, has made a decision which the child itself may request to be reviewed in court would be meaningless, as indirectly it would constitute an interference with the statutory right of the holder of the parental rights to make decisions, within the limits of the law, on the personal life of the child. The control required is here exercised by the medical officer admitting the child to the hospital or by the hospital doctors, who, as we know, will oppose any unnecessary hospitalisation of minors. Up till now there have been no unpleasant experiences in practice which can justify a possible legal adjustment of the right of parents to have their children hospitalised for treatment of physical disorders.
Where a child is admitted to hospital to be treated for mental disorders, the legal position is described in 4 B above [section dealing with the situation under the 1938 Act, not reproduced here], provided that a child is involved here whose opinion will have to be considered and who is admitted as mentally ill. This implies that the exercise of the powers inherent in parental custody must give way to the [1938 Act] with the effect that the parents cannot per se decide that the minor shall be hospitalised contrary to his wishes, and that the parents cannot, on the other hand, have the minor discharged if the chief physician finds that the conditions for compulsory detention have been fulfilled.
The problem arises, however, where the child is hospitalised to be treated for a mental disorder of a non-psychotic nature. Since only mentally ill persons are covered by the [1938 Act], this Act cannot be expected to restrict the exercise of parental rights in these cases. It is therefore natural to treat on the same legal footing as physical disorders, mental disorders other than psychoses, with the consequence that the decision of the holder of the parental rights prevails, provided that the chief physician can justify the hospitalisation of the child for treatment." (pp. 390-392 of the report)
...
"Here [i.e. in the case of mental disorders outside the scope of the 1938 Act], the protection of the child - as in the case of physical disorders - is to be sought in the fact that the medical officer under professional responsibility must assess whether the request made by the holder of the parental rights for admission to a hospital can be considered justified." (p. 395 of the report)
The report did not suggest any changes to the existing legal situation described above.


ITEMID: 001-61924
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF K. v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award
TEXT: 9. The applicant, a Polish citizen living in Katowice, Poland, and Mr P., an Italian citizen living in Italy, are the parents of a daughter who was born out of wedlock on 19 November 1988. The latter was registered with the registry of births, deaths and marriages as the child of the applicant and Mr P. Since the child’s birth, Mr P. has not assumed any parental duties.
10. The applicant instituted proceedings against Mr P. in the Katowice District Court, claiming maintenance for her minor daughter.
On 23 June 1993 the Katowice District Court ordered the defendant in absentia to pay maintenance in an amount equivalent to 350 zlotys (PLN) (approximately 73 euros (EUR)) per month from 19 November 1988, plus statutory interest should he default. This decision became final on 15 July 1993.
11. Having received no payments, on 30 May 1994 the applicant sought to avail herself of the United Nations Convention on the Recovery Abroad of Maintenance of 20 June 1956. She applied to the Katowice District Court (acting as the Transmitting Agency) for the recovery of maintenance through the Italian Ministry of the Interior (acting as the Receiving Agency), as provided for by that convention.
In her request, the applicant first asked for payment of the sum due of PLN 350 per month plus default interest which, by 1 January 1994, came to a total of PLN 21,350 (approximately EUR 4,495). The applicant also requested an increase in maintenance from PLN 350 per month to PLN 650 (approximately EUR 137) per month, on the grounds that she had learnt that Mr P. was earning 3,000 United States dollars per month and that the costs of bringing up the child were constantly rising. Finally, she asked the Italian authorities to start judicial proceedings against Mr P. to execute the decision of the Katowice District Court, and to recover her court costs if Mr P. refused to comply with the judgment.
12. On 30 May 1994 the Katowice District Court sent the applicant’s request to the Italian Ministry of the Interior.
13. In a letter sent to the Katowice District Court on 18 October 1994, the Ministry of the Interior confirmed that it had received the applicant’s request on 7 October 1994 and had referred it to the Prefecture of Terni. It added that, in so far as the existing decision obliged Mr P. to pay PLN 350 per month, a different amount could not be claimed. On 3 May 1996 the Ministry of the Interior sent another letter to the Katowice District Court informing it that Perugia District State Counsel had been appointed to initiate proceedings for the execution of the decision.
14. On 27 December 1996 Perugia District State Counsel informed the Ministry of the Interior that he had started these proceedings in November 1996.
15. On 27 February 1997 the Perugia Court of Appeal held a hearing at which it decided that the parties had to make their final submissions on 15 May 1997. On that date the court adjourned the case to 30 October 1997 and reserved judgment, which, by law, could not be delivered before the expiry of a period of eighty days. On 21 January 1998 the Perugia Court of Appeal declared the Katowice District Court decision enforceable in Italy. On 30 March 1999 the Ministry of the Interior invited the debtor to comply with his obligations. On 2 April 1999 the decision of the Perugia Court of Appeal became final.
16. On 2 May 2000 the Italian Ministry of the Interior asked the Polish authorities for an updated calculation of the debt, which the Polish authorities furnished on 27 September 2000.
17. On 27 November 2000 the Prefecture of Terni informed the Ministry that on 6 July 1999 and 23 October 2000 it had formally invited the debtor to pay the amounts due. As he did not do so, Perugia District State Counsel was asked on 18 December 2000 to start enforcement proceedings. The first attempt at enforcement was unsuccessful, as Mr P. had no possessions. On 20 December 2002 a new set of enforcement proceedings – started on 10 July 2002 – led to the seizure of property and a priority notice being entered in the land register. According to information submitted by the Government, Mr P.’s lawyer made an informal request to be allowed to pay the arrears in instalments, but did not file a formal request with the courts.
18. The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. This conference had been convened by the Economic and Social Council of the United Nations (see United Nations, Treaty Series, 1957, pp. 4-11 and 32-47). The convention came into force on 25 May 1957. Italy and Poland ratified it on 28 July 1958 and 21 March 1968 respectively. The relevant provisions of the convention read as follows:
“1. The purpose of [the] Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as the respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies, which will hereinafter be referred to as Transmitting and Receiving Agencies.
2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.”
“1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities, which shall act in its territory as Transmitting Agencies.
2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body, which shall act in its territory as Receiving Agency.”
“Where a claimant is on the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.”
“The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.”
“The Transmitting Agency shall, at the request of the claimant, transmit, under the provision of Article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in the competent tribunal of any Contracting Party, and, where necessary and possible, the record of the proceedings in which such order was made.”
“1. The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.
2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reason and return the documents.
3. Notwithstanding anything in this Convention, the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the State of the respondent, including its private international law.”
19. Section 64 of Law no. 218 of 1995 indicates the cases in which a judgment delivered by a foreign court will be recognised in Italy without recourse to a specific procedure. Section 67 contains provisions on the execution of judgments and decisions following the voluntary assumption of jurisdiction and in cases of refusal to comply.
20. This Act, which came into force on 18 April 2001, completes Article 111 of the Italian Constitution, which provides that the right to have proceedings conducted within a reasonable time shall be guaranteed by legislation. The new Act enables a claim for compensation to be made in the Court of Appeal, which will apply the case-law of the European Court of Human Rights, by anyone who has sustained pecuniary or non-pecuniary damage as a result of the inordinate length of proceedings.
“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.
2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.
3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:
(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;
(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”
“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary sitting in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is pending.
2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.
3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.
4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing before the relevant chamber shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [Avvocatura dello Stato] at least fifteen days prior to the date of the hearing before the Chamber.
5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up until five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on application by the parties.
6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.
7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”
“A claim for just satisfaction may be lodged while the proceedings in respect of which a violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”
“If the court decides to grant an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Audit Court to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants concerned by the proceedings.”
“1. Within six months [extended to twelve by Law no. 432 of 2001] after the entry into force of this Act, anyone who has lodged an application with the Court of Human Rights in due time complaining of a violation of the ‘reasonable time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.
2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112129
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KOMISSAROVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Ms Valentina Yuryevna Komissarova, is a Russian national who was born in 1982 and lives in Magadan. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 2 December 2005 the applicant married Mr M.V. Grishin, who at the time was standing trial on charges of several acts of aggravated hooliganism involving violent attacks on citizens under a minor pretext, with the use of arms, threats of killing, use of obscene language, infliction of physical pain and bodily harm on his victims, and characterised by a total disregard for society and flagrant violation of public order, with one of the episodes having taken place at a public hospital in the presence of patients and medical staff. He was also accused of creating and leading an armed gang with the aim of misappropriating others’ property by way of attacks on citizens and organisations, which had allegedly carried out robberies and extortion in 2001-02 with use of arms and violence dangerous to life and health, illegal storage and transportation of misappropriated industrial gold, and arms-related offences. The charges had been brought against Mr Grishin in 2002 and 2003. In a judgment of 29 June 2004 he had been found guilty of battery, indemnified from punishment as the prosecution had by then become time-barred, and acquitted of the other charges. The proceedings against him were pending before a trial court after that judgment had been set aside on appeal on the ground of serious violations of procedural rules on the selection of jurors and during the trial.
4. On 6 December 2005 Mr Grishin, who had been at liberty for more than a year and a half after being remanded in custody during the preliminary investigation and the first hearing, was remanded in custody again in the interests of the proceedings in the case, in view of several victims’ and witnesses’ refusal or reluctance to testify in court out of fear of reprisals from Mr Grishin and his co-accused. He was placed in the Magadan SIZO1.
5. On 12 December 2005 the applicant visited Mr Grishin in SIZO-1.
6. On 27 December 2005 a Magadan Regional Court judge presiding over Mr Grishin’s trial refused the applicant’s next request to visit Mr Grishin. The applicant’s complaint about that refusal, which she made on 27 January 2006 to the President of the High Qualification Board of Judges of the Russian Federation, and that of 27 February 2008, which she made to the President of the Magadan Regional Court, were answered on 4 May 2006 and 1 April 2008 respectively, by statements that those officials had no competence to deal with the matter.
7. From 23 December 2005 to 6 May 2006 the applicant was present at thirteen hearings in Mr Grishin’s case. According to the Government, she could communicate with him before and after the hearings and during the breaks. According to the applicant, no contact with her husband had been possible in the courtroom. No new requests for leave to visit her husband in his detention facility were made by the applicant during this time.
8. On 12 May 2006 the applicant gave birth to a son.
9. In June 2006 she asked for leave to visit her husband in SIZO-1. Her request was granted, as well as her all subsequent requests. According to a document from SIZO-1, no. 49/1/12 of 22 April 2008, such visits took place on 21 June, 20 September and 27 December 2006, 28 March, 16 and 30 May 2007, 6 June, 11 July and 18 July, 26 September, 10 October, 28 November and 29 December 2007, and 13 and 20 February, 5 March and 2 April 2008. According to the applicant, the visits were two hours long. On four occasions she brought her son with her.
10. There were five cubicles in SIZO-1 for short visits, designed in accordance with directives approved by the Russian Federation Ministry of Justice on 3 October 2004. Visitors and detainees were separated by a partition made of wood to a height of 80 centimetres, and then glass to the ceiling. There were metal bars and steel wire on the glass partition. The cubicles were equipped with communicating phones and seats. A place for an officer on duty was equipped with a device for wiretapping, warning and interruption of communication.
11. According to the applicant’s submissions in her original application form, the cubicles were dirty and littered, with rats running on the floor, and they had no normal chairs. According to the Government, the cubicles were cleaned daily by prisoners under the supervision of an officer on duty. Their sanitary condition was routinely checked by authorised officials. They were regularly disinfected and disinfested in compliance with the relevant sanitary regulations by a specialised company under the supervision of the SIZO1 medical unit, which was confirmed by the relevant documentation. In her comments on the Government’s observations the applicant clarified that she had seen rats in a different room, which was used for passing parcels to detainees.
12. According to the applicant, her husband’s remand in custody had put her in a difficult position. She lacked means of subsistence for herself during her pregnancy, which was complicated by the threat of miscarriage, and later also for her child. In order to hand over parcels to her husband she had to wait for hours, especially before holidays, because of the large number of people there. According to a SIZO-1 document dated 15 December 2008, Mr Grishin received 119 parcels.
13. Under section 18 of the Federal Law on the Remand in Custody of Suspects and Persons Accused of Offences no. 103-FZ of 15 July 1995, subject to written consent from the official or authority in charge of the criminal case a suspect or accused may have up to two meetings per month with relatives and others, each visit to last for up to three hours.


ITEMID: 001-85230
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MAREK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Mr Pavel Marek, is a Czech and Swiss national who was born in 1950 and lives in Uznach, Switzerland. He was represented before the Court by Ms K. Veselá-Samková, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The Government of Switzerland did not make use of their right to intervene (Article 36 § 1 of the Convention).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s parents owned a house with land in Prague 6. In 1969 the whole family failed to return from a stay in Switzerland and remained abroad without the consent of the Czechoslovak authorities. In a judgment of 25 January 1972, the Prague 6 District Court (obvodní soud) convicted in absentia the applicant’s father, his mother and himself of deserting the Republic (opuštění republiky), sentenced them to imprisonment and ordered the confiscation of all their property. On 16 May 1973 the house was sold by the Czechoslovak State to Mr and Ms B., with the right to use the land.
On 31 October 1995 the applicant’s father filed an action for the restitution of the confiscated property, pursuant to the Extra-Judicial Rehabilitation Act, against Ms B. and her daughter. On 17 September 1996 he died. The rights of the applicant and his mother over his estate were confirmed in inheritance proceedings.
On 18 July 1997 one of the defendants died. On 20 July 1998 the District Court stayed the restitution proceedings pending the outcome of inheritance proceedings. On 5 December 2001 the inheritance proceedings were closed.
On 26 March 2002 the District Court resumed the restitution proceedings. On 20 May 2003 the court decided that the applicant could continue with the restitution case alone, his mother having died on 29 November 2002. After joining the restitution proceedings, the applicant learnt that he had been adopted seven days after his birth and that his biological parents had been of Jewish origin. He also discovered that his adoptive mother had been tortured in Nazi concentration camps and that, as a consequence, she could not have children. According to the applicant, this news caused him enormous mental suffering and distress.
In a judgment of 26 January 2006 the District Court dismissed the applicant’s restitution action.
On 9 February 2007 the Prague municipal Court (městský soud) upheld this judgment in respect of the merits, but quashed the District Court’s decision concerning the court fees and returned this matter to the District Court for further consideration.
It appears that the restitution proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-90931
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MEHMET ALİ ÇELİK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1972 and is remanded in custody in Diyarbakır prison.
5. On 12 October 1998 the applicant was taken into police custody on suspicion of membership of Hizbullah, an illegal organisation.
6. On 19 October 1998 a single judge at the Batman Magistrates’ Court remanded him in custody.
7. On 11 November 1998 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and three other persons. The applicant was charged with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. According to the information in the case file, the proceedings against the applicant are still pending at first instance, which is now the Diyarbakır Assize Court, and the applicant remains in detention on remand.
8. During the proceedings, the first-instance courts have examined the applicant’s continued detention at the end of every hearing, either on their own motion or at the applicant’s request. The courts ordered the applicant’s continued detention, having regard to the nature of the offence, the state of evidence and the content of the file on each occasion.
VIOLATED_ARTICLES: 13
5
6


ITEMID: 001-71477
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: CSEPINSZKY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr László Csepinszky, and Mrs Lászlóné Csepinszky, are Hungarian nationals, who were born in 1925 and 1934 respectively and live in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 March 1995 the applicants requested that a payment order be issued against the community of the inhabitants of the building in which they lived. On 20 April 1995 the respondent objected to the order.
Consequently, on 21 January 1996 the applicants filed an action for a settlement of accounts.
The Buda Central District Court held hearings on 24 January, 18 June and 12 December 1996, 16 May and 17 September 1997. After another hearing on 23 April 1998, on 15 June 1998 the applicants requested a three-month interruption of the proceedings. Further hearings took place on 7 January and 19 September 1999. On that date, none of the parties appeared so the proceedings were stayed. On 26 October 1999 the applicants requested that the proceedings be resumed. They made final submissions to the court on 8 February 2000.
On 25 February 2000 the District Court dismissed the applicants’ claims.
On 3 November 2000 the Budapest Regional Court dismissed their appeal.


ITEMID: 001-104157
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GÜRKAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto
TEXT: 3. The applicant was born in 1961 and lives in Kars.
4. On 2 March 1998 the applicant, a civil engineer at the Directorate of the Esenboğa Airport, was appointed to the Directorate of the Şanlıurfa Airport.
5. On 20 March 1998 the applicant brought a case before the Ankara Administrative Court against the General Directorate of National Airports (Devlet Hava Meydanları İşletmesi Genel Müdürlüğü) (“the General Directorate”) to challenge his transfer to the Şanlıurfa Airport. He claimed that his transfer had a purely punitive motive, aimed at penalising him for having uncovered certain irregular conduct at the General Directorate. He also requested the suspension of his transfer pending the outcome of the court’s final decision.
6. On 27 March 1998 the applicant lodged a criminal complaint with the Ankara Public Prosecutor against his employers in respect of the aforementioned irregularities. On 30 November 1998 the public prosecutor issued a decision not to prosecute.
7. On 29 April 1998 the Ankara Administrative Court rejected the applicant’s request for suspension of his transfer. On 22 May 1998 the applicant objected to that decision. On 3 June 1998 the Ankara District Administrative Court dismissed the applicant’s objection.
8. On 15 July 1998 the applicant requested the Ankara Administrative Court to hold an oral hearing.
9. On 11 November 1998 the Ankara Administrative Court dismissed the applicant’s case, without holding a hearing. It ruled that the applicant’s appointment to the Şanlıurfa Airport had been effected in view of the needs of the General Directorate and that the administration had thus acted within its legal discretion and in accordance with the relevant laws.
10. On 22 December 1998 the applicant appealed against the judgment of the administrative court and requested the suspension of the transfer. He also requested the Supreme Administrative Court to hold an oral hearing.
11. On 7 April 1999 the Supreme Administrative Court dismissed the request for suspension.
12. On 21 May 1999 the applicant once again requested the suspension of the administrative act. His request was dismissed by the Supreme Administrative Court on 9 July 1999.
13. On 30 October 2002 the Supreme Administrative Court issued an interim decision requesting certain information and documents from the respondent administration, including the applicant’s classified appraisal records (gizli sicil raporları) and a description of his duties at the new place of assignment. It appears that the administration submitted the requested information and documents to the Supreme Administrative Court on 13 December 2002. However, neither the interim decision nor the responses of the administration were communicated to the applicant.
14. On 30 January 2003 the Supreme Administrative Court upheld the Ankara Administrative Court’s judgment of 11 November 1998 by a majority decision, without holding a hearing. The dissenting judge opined that the replies provided by the General Directorate to the questions put to it in the interim decision indicated that the applicant’s transfer had been based on subjective grounds and not on any public need as alleged. Upon service of the Supreme Administrative Court’s decision, the applicant found out about the interim decision of 30 October 2002 and the administration’s submissions in reply, including his appraisal grades which had apparently fallen following the various actions he had brought against the administration.
15. On 30 April 2003 the applicant requested the rectification of the Supreme Administrative Court’s decision, complaining, inter alia, of the noncommunication of the interim decision of 30 October 2002 and the General Directorate’s replies thereto, which had prevented him from responding to its arguments. In the same letter, the applicant also attempted to challenge the accuracy of the information provided by the General Directorate.
16. On 15 September 2004 the Supreme Administrative Court dismissed the applicant’s rectification request, holding that none of the reasons put forth by the applicant for rectification fell within the exhaustive list of permissible grounds for rectification indicated in Section 54 (1) of Administrative Procedure Act (Law no. 2577).
17. According to Section 16 (1) and (2) of the Administrative Procedure Act, after a claimant lodges a case with the administrative court, his or her submissions are transmitted to the defendant party. The initial written pleadings of the defendant in response are communicated to the claimant, who submits his or her replies thereto. The claimant’s replies are then sent to the defendant, who is invited to submit his or her final pleadings, to which the claimant cannot reply.
18. According to Section 17 (1) of the Administrative Procedure Act, an oral hearing will be held in administrative proceedings involving, inter alia, an action for annulment of an administrative act (iptal davası), upon request of either one of the parties.
19. According to Section 17 (3) of the Administrative Procedure Act, a request for an oral hearing can be made by the parties only at certain stages of the administrative proceedings, that is at the time of bringing the case by the claimant, or as part of the subsequent written pleadings and replies submitted to the court by the parties (see paragraph 17 above).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81789
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MESUT YURTSEVER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1974 and lives in Istanbul.
5. On 6 April 1999 the applicant was arrested and taken into custody by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Workers' Party of Kurdistan).
6. On 13 April 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and two others, accusing them, inter alia, of membership of an illegal armed organisation and of participating in separatist activities. The public prosecutor sought the death penalty for the applicant pursuant to Article 125 of the Criminal Code.
7. On 25 September 2001 the Istanbul State Security Court convicted the applicant of as charged and sentenced him to death, which sentence was later commuted to life imprisonment. The judgment was ex officio subject to appeal.
8. On 17 January 2002 the Principal Public Prosecutor submitted his written opinion to the 9th Division of the Court of Cassation, in which he had argued that the Court of Cassation should quash the applicant's conviction on account of the severity of the sentence imposed on the applicant. He opined that the applicant should have been sentenced pursuant to Article 168 § 2 of the Criminal Code, which punishes membership of an illegal organisation, instead of Article 125.
9. On 20 April 2002 the Court of Cassation held a hearing, differed with the opinion of the Principal Public Prosecutor, and upheld the judgment of the Istanbul State Security Court. The applicant's representative did not attend this hearing. The decision was pronounced in the absence of the applicant and his representative on 1 May 2002.
10. The relevant domestic law and practice in force at the material time are outlined in the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002V).
11. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70636
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SIDDIK ASLAN AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
TEXT: 9. The applicants were born in 1960, 1952, 1965 and 1945 respectively, and live in the city of Van.
10. The facts of the case, particularly concerning the events which occurred between 7 and 15 September 2001, are disputed by the parties.
11. The facts as presented by the applicants are set out in Section B below (paragraphs 12-17). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 18-25). The documentary evidence submitted by the parties is summarised in Section D (paragraphs 26-65).
12. Mr Ebuzeyt Aslan is the first applicant’s elder brother and is the husband of the third applicant, Mrs Türkan Aslan. Mr Halit Aslan is the second applicant’s cousin and is the husband of the fourth applicant, Mrs Nihari Aslan.
13. On 7 September 2001 Ebuzeyt Aslan and Halit Aslan left their homes in Van for Beytüşşebap, a town within the administrative jurisdiction of the city of Şırnak. Nothing was heard from them until 15 September 2001 when Zübeyt Aslan, a relative, received an anonymous telephone call. The caller told Zübeyt Aslan that Ebuzeyt and Halit had been killed in an operation conducted by village guards and soldiers in the Dereyatağı area (Dereyatağı Mevkii) near the Geçitli hamlet, within the boundaries of Yeşilöz village. The person then hung up. After the call, the relatives of Ebuzeyt and Halit Aslan went to the local branches of the Human Rights Association in Diyarbakır and Van to ask for assistance.
14. A group of 30 relatives went to the Prosecutor’s office in Beytüşşebap. The Prosecutor confirmed what had been said by the anonymous caller. The Prosecutor further stated that the place where the incident had taken place was in a dangerous area and that he could not therefore hand the bodies over to them. He told the relatives to talk to the commander of the Provincial Gendarmerie Regiment. The identity cards of the members of the group who subsequently went to the Regiment were taken by the soldiers and they were kept waiting at the barracks for the rest of the day. The group was later escorted by soldiers to the outskirts of Beytüşşebap and told not to return or they would suffer the same fate as their relatives.
15. On 21 September 2001 the Diyarbakır Branch of the Human Rights Association by letter informed the Ministry of the Interior, the Human Rights Commission of the Turkish Parliament, the Governor of the Emergency Region, the Secretary of State Responsible for Human Rights, the Şırnak Governor, the Prosecutor’s Office in Şırnak, the offices of the Prosecutor and the Governor in Beytüşşebap, of the deaths of Ebuzeyt and Halit Aslan. They requested the authorities to investigate this incident and to find the perpetrators. They further requested that official identifications of the bodies and autopsies be carried out.
16. Amnesty International was also informed and requested to make an urgent appeal.
17. The applicants claim that neither Halit Aslan, who was born in 1939, nor Ebuzeyt Aslan, who was born in 1954, had any connections with the PKK. Moreover, Halit Aslan had been suffering from health problems.
18. On 10 September 2001 a military operation was initiated by the Beytüşşebap Gendarmerie Regiment’s Commander (Beytüşşebap Jandarma Alay Komutanlığı) in the Yeşilöz-Faraşin area.
19. At around 5.30 p.m. on 12 September 2001, i.e. on the third day of the operation, the gendarme soldiers were confronted by a group of terrorists in the vicinity of Dereyatağı. When the terrorists refused to surrender an armed clash ensued.
20. A search was conducted in the area by the soldiers after the clash had ended. In the course of the search the bodies of two terrorists were found together with a Kalashnikov rifle, four cartridges, 27 rockets and 22 empty bullet shells.
21. The search of the vicinity continued the next morning and during this search the body of a third terrorist was found. The booby trap on this third body was made safe by the soldiers.
22. It was established by the soldiers that the remaining terrorists had escaped towards the city of Van.
23. According to a record of the operation drawn up by the soldiers, it had been impossible to transport the bodies of the terrorists since the area was very mountainous, the distance between the location of the bodies and the city centre too great, and the soldiers had no vehicles at their disposal. A decision had therefore been taken to leave the corpses in the area and they had been covered with stones to protect them from wild animals. It was also impossible for the soldiers to take photographs of the bodies since they had no cameras with them.
24. Following the incident, the weather conditions allowed the authorities to visit the site on 29 September, 17 October, 22 October, 4 November, 21 November, 17 December 2001 and, finally, on 8 January 2002. On those dates the authorities visited the site in order to take photographs of the bodies and to carry out autopsies. However, despite extensive searches, the bodies, allegedly those of Halit Aslan and Ebuzeyt Aslan, could not be found. It was assumed that the bodies had decomposed or been taken by terrorists.
25. It has not yet been established whether the bodies found after the operation on 12 September 2001 were those of the applicants’ relatives. Furthermore, contrary to what was alleged by the applicants, the Beytüşşebap Prosecutor did not make any claim that it was not possible to hand over the bodies to the relatives.
26. The following information appears from the documents submitted by the parties.
27. According to the record of the operation drawn up on 13 September 2001 by the gendarme soldiers who took part in an operation on 12 September 2001, the bodies of three terrorists were found in the operation area. Quantities of food and ammunition were also found. The report further listed the amount of ammunition used by the soldiers. According to this list, the gendarme soldiers from the 5th Gendarme Battalion had used a total number of 1,553 bullets, 15 hand grenades and 3 RPG-7 rockets. The soldiers from the Beytüşşebap District Gendarme had used a total of 1,128 bullets.
28. On 18 September 2001 the ammunition left by the PKK was handed over to the Beytüşşebap Gendarme Commander’s office.
29. On 19 September 2001 this record of the operation was forwarded to the Prosecutor’s office in Beytüşşebap, together with the ammunition that had been found.
30. On 17 September 2001 Hazım Aslan, Zübeyt Aslan and Hacı Aslan submitted two petitions to the Van Prosecutor’s office and informed the Prosecutor about the anonymous telephone call that had been received by Zübeyt Aslan, who had been told about the killing of Ebuzeyt and Halit Aslan. They asked the Prosecutor to assist them in obtaining the bodies of their relatives. On the same day, the Van Prosecutor forwarded these petitions to the Beytüşşebap Prosecutor’s office in whose jurisdiction the incident had taken place.
31. On 17 September 2001 the Beytüşşebap Prosecutor asked the Beytüşşebap Gendarme Commander’s office to clarify the accuracy of the allegations contained in the petitions.
32. On 19 September 2001 the Beytüşşebap Prosecutor questioned Hazım Aslan, Zübeyt Aslan and Hacı Aslan in connection with their petitions. The three men gave a description of their disappeared relatives and stated that neither Ebuzeyt nor Halit had ever been involved in any PKK activity. They also stated that Yeşilöz village, where their relatives had allegedly been killed, had been evacuated and that no one was living there. Zübeyt Aslan further stated that his brother Halit Aslan might have gone to that area to smuggle Iraqi and Iranian persons into Turkey.
33. On 24 September 2001 the Beytüşşebap Prosecutor questioned Kürşat Soysal, the gendarme captain in charge of the military operation, and Tevfik Baştürk, a sergeant-major who also took part in the operation. Captain Soysal stated that, as he and the soldiers under his command had approached the Geçitli hamlet on 12 September 2001, they had been informed by radio that an armed man was walking towards the lower part of the village. Captain Soysal had also seen an armed man near the Dereyatağı area. Captain Soysal stated, inter alia, the following:
“I then ordered my soldiers to be quick and not to lose sight of the armed men. It was around 5.30 p.m. As far as I know, the village where these two men were seen had been uninhabited between 8 to 10 years. The area is not suitable for grazing animals. It is an area used by the terrorist organisation. The firing began approximately one minute after I alerted my soldiers. After the firing had stopped I saw one of the bodies. There was a Kalashnikov rifle next to the body. The body belonged to a man over 40 years of age. There were no documents on the body to help identify the person. When I examined the rifle it became apparent that it had recently been fired. We also found four empty cartridges in the area. I was informed by the soldiers that there was another body at the upper part [of the village] but I did not personally see that body. We aborted the search as it was getting dark and moved to a more secure area. When we resumed the search next morning, I saw the other body. It was that of a man of approximately 35 years of age. There were no weapons near the body. Also, there were no identification documents on the body. We then saw the third body of a man of approximately 25 years of age. His body had been badly damaged, possibly by a rocket missile. I thought it possible that he had killed himself. There was a booby trap on this body and we made it safe. We covered the bodies with stones as we did not have any equipment with which we could dig graves for them. The area where we left the bodies is approximately 45 kilometres from here. We did not have any vehicles at our disposal. There are also landmines on the roads in that area.”
34. Sergeant-major Baştürk gave a similar statement to the Prosecutor.
35. On 24 September 2001 the Beytüşşebap Prosecutor asked the Beytüşşebap Governor to clarify whether anyone was living in the Geçitli area near the Yeşilöz village and whether the area was being used by villagers to graze their animals.
36. On the same day the Prosecutor also asked for copies of registry documents relating to the two disappeared persons to be forwarded to him.
37. Again on the same day, the Prosecutor asked the Beytüşşebap Gendarme Commander’s office about the possibility of the bodies being brought down from the area where they had been killed. In the alternative, the Prosecutor asked for body and hair samples to be obtained from the bodies for identification purposes.
38. On an unspecified date in September 2001 General Yavuz Ertürk instructed the forces under his command to find the bodies in order to obtain body samples.
39. Captain Soysal informed the Beytüşşebap Prosecutor on 29 September 2001 of an attempt made by him and his soldiers the previous day to recover the bodies. Their attempt to reach the area had been hampered by fog and heavy rain.
40. On 1 October 2001 Hakan Torun, a first lieutenant and commander of the Beytüşşebap Gendarmerie Headquarters, informed the Prosecutor that bringing the bodies back could only be achieved if the security forces organised an operation. Given the limited number of soldiers under his command, it was not possible for him to carry out such an operation alone. If it was not possible to organise such an operation, then it might be possible to obtain body and hair samples from the corpses.
41. On 2 October 2001 the Beytüşşebap Governor informed the Prosecutor that the Geçitli hamlet of Yeşilöz had been evacuated in 1989 and that no one had lived there since. Furthermore, the villagers were not allowed to take their animals out to graze in the area.
42. On 5 October 2001 the Beytüşşebap Prosecutor asked the Prosecutor in the town of Özalp, in whose jurisdiction the two disappeared persons used to live, to establish the date on which the latter had left their homes. He also asked whether any official complaints had been lodged in relation to the disappearance. The Prosecutor finally asked his colleague in Özalp to question Hacı Aslan, the son of the disappeared Halit Aslan.
43. On 9 September 2001 a statement was taken from Hacı Aslan by the Özalp Prosecutor. Mr Aslan stated that his mother – that is the fourth applicant Nihari Aslan – had told him that his father and Ebuzeyt Aslan had left for Beytüşşebap where they had relatives. He thought that his father had possibly been shot by the soldiers for having entered a military area. He stated that his father had left the Beytüşşebap area because of his fear of the PKK and it was therefore improbable that his father was a terrorist or that he had carried weapons. His father had never been arrested in the past; in fact, he had never set foot in a police station. Even assuming that his father was a terrorist, this would not justify the refusal of the gendarmerie to hand over his father’s body. At the Beytüşşebap gendarmerie commander’s office he had been told that the bodies could not be handed over because the deceased were terrorists. He had also been told that he would be shot if he attempted to recover the bodies himself.
44. On 10 October 2001 the Beytüşşebap Prosecutor asked the 23rd Gendarme Border Division Commander’s office (23. Jandarma Sınır Tümen Komutanlığı) whether it would be possible to recover the bodies or, in the alternative, to obtain body samples from them.
45. According to a report drawn up on 17 October 2001 by a gendarme sergeant-major, another attempt to recover the bodies had been made on 16 October 2001 by two fully equipped gendarme teams, joined by two commando units. This operation had to be aborted the following day as it was too cold, foggy and wet.
46. On 18 October 2001 the 23rd Gendarme Border Division Commander’s office replied to the Beytüşşebap Prosecutor’s request that the bodies could only be recovered by means of an operation conducted in the area. The Prosecutor was also informed in the same letter that work on the feasibility of such an operation had already begun.
47. On 18 October 2001 Hazım Aslan, a relative of the two disappeared men, said in a statement made to the police that the family had made applications to the Beytüşşebap Prosecutor’s office as well as to the Şırnak Brigade Commander’s office (Şırnak Tugay Komutanlığı).
48. According to a report drawn up on 22 October 2001 by a gendarme major, a third attempt to recover the bodies had been made on 21 October 2001. It too had had to be aborted as the area was covered with snow.
49. Similar attempts were made on 3 November, 20 November and 16 December 2001 and, finally, on 8 January 2002. The snow had by then reached a height of 50-60 centimetres and there was also a risk of avalanches, with the result that these operations had to be aborted.
50. A meeting was held on 20 November 2001 by the Provincial Human Rights Council (İnsan Hakları İl Kurulu). The Council, which was presided over by the provincial Governor, consisted of the local mayor, the provincial gendarmerie commander, the police chief of the province as well as a number of civil servants. According to the minutes of the meeting, the Council, having examined the evidence in the file, reached the conclusion that no innocent civilians had been killed in the operation. The Council further noted that the preliminary investigation was still continuing and that autopsies could not be carried out due to the lack of transportation facilities and geographic difficulties. The Council stated that efforts to recover the bodies would continue.
51. On 21 December 2001 Hacı Aslan, son of the disappeared Halit Aslan, said in a statement made at the Özalp Prosecutor’s office that the family had not made any official complaints in relation to the disappearance of their relatives.
52. On 25 January 2002 the Beytüşşebap Prosecutor asked the Beytüşşebap gendarmerie commander’s office to forward him copies of the documents concerning the evacuation of the Yeşilöz village. The Prosecutor also asked whether it could have been possible for the two disappeared men to have gone to the Dereyatağı area on foot. The Prosecutor finally asked for copies of documents concerning the clashes between the security forces, the village guards and terrorists in the area and also of documents concerning the cultivation of cannabis in the vicinity.
53. The same day the Beytüşşebap gendarmerie replied to the Prosecutor’s request that the Geçitli hamlet had been evacuated due to the actions of the PKK and on the request of the villagers. There was no reason, therefore, for Halit Aslan and Abuzeyt Aslan to go to the area.
54. On 28 January 2002 the Beytüşşebap gendarmerie commander’s office further informed the Beytüşşebap Prosecutor that the villagers had left the village of their own free will because of PKK terrorist activities. The Prosecutor was also informed that the two persons could have taken the bus from Van to the town of Beytüşşebap, but that there were no roads to the village and the area was not safe. The Prosecutor was finally informed that there had been 31 attacks by the PKK in the area between 1989 and 2001.
55. On 5 March 2002 the Beytüşşebap Prosecutor drew up a report (fezleke) in which he set out the developments in his investigation and forwarded it to the Ministry of Justice on 19 March 2002. The Prosecutor asked the Ministry to grant authorisation for the prosecution of Hakan Torun, the commander of the Beytüşşebap Gendarmerie Headquarters, for his alleged professional negligence in the failure to produce the bodies for an autopsy.
56. On 1 May 2002 another attempt was made by the gendarmerie to reach the area in order to find the bodies. This time the soldiers were able to reach the area but, despite carrying out a search on 1 and 2 May, they were unable to find the bodies.
57. On 8 May 2002 the Ministry of Justice granted the authorisation requested by the Beytüşşebap Prosecutor (see paragraph 55 above).
58. On 20 May 2002 the Prosecutor in Şırnak sent a letter to his colleague in Beytüşşebap, requesting him to ask the gendarmerie to make yet another attempt to find the bodies. The Beytüşşebap Prosecutor was also asked to summons Hakan Torun to the Prosecutor’s office in Şırnak.
59. On 24 May 2002 Hakan Torun was served the summons to appear before the Şırnak Prosecutor.
60. On 12 July 2002 the Şırnak Prosecutor drew the attention of his colleague in Beytüşşebap to Hakan Torun’s failure to appear before him and urged his colleague to find him.
61. Hakan Torun, who was found by the Beytüşşebap Prosecutor on 12 July 2002, informed the latter of his intention to go to the Şırnak Prosecutor’s office as soon as possible.
62. On 23 July 2002 the Şırnak Prosecutor sent a letter to the Ministry of Justice, saying that he had carried out an investigation into the actions of Hakan Torun and had concluded that Hakan Torun had not been negligent in the failure to find the bodies. According to the Prosecutor, finding the bodies would have required a major operation and it was impossible for Hakan Torun to carry out such an operation with the limited number of soldiers under his command. It appears from this letter that Hakan Torun had been questioned by the Şırnak Prosecutor.
63. On 12 November 2002 the Beytüşşebap Prosecutor handed over the investigation file to his colleague in Şırnak.
64. On 20 November 2002 the Şırnak Prosecutor decided not to prosecute Hakan Torun on the ground that an investigation had already been carried out and the Ministry of Justice had been informed.
65. On 30 January 2003 the Gendarme Headquarters in Ankara sent a letter to the Ministry of Interior setting out their answers to questions put by the Court as to whether and what serious attempts had been made to recover the bodies during the spring and summer of 2002 and whether the ammunition recovered had been examined for fingerprints. According to the Gendarme Headquarter’s letter, eight attempts had been made between 29 September 2001 and 8 January 2002 but the bodies had not been found. It was possible that the bodies had decomposed naturally or that they had been taken away by the terrorist organisation. The area where the bodies had been left was 2,668 metres in altitude and, because of the weather conditions, it had not been possible to reach the area by helicopter. The distance to the area had rendered it difficult for the soldiers to bring back the ammunition that had been found, and an examination of the ammunition carried out at the military base had not revealed any prints.
66. The relevant part of Article 79 of the Turkish Code on Criminal Procedure provides as follows:
“An official examination of a corpse must be made in the presence of a physician. An autopsy shall be performed in the presence of a judge and, in those cases where it is necessary to avoid prejudicial delay, the autopsy shall be performed by two physicians in the presence of the public prosecutor, at least one of the physicians being a forensic practitioner. ...
When it is deemed necessary [during a preliminary investigation] to carry out an autopsy on a body which has already been buried, the permission of the public prosecutor is required and the necessary action will be taken by the [prosecutor].”
67. Article 80 of the Turkish Code on Criminal Procedure provides as follows:
“Unless there are reasons requiring otherwise, the formal identification of a body is carried out prior to an autopsy by showing the body to the people who knew the deceased and, if a suspect has already been apprehended, the body is also shown to him or her.”
68. Article 152 of the Turkish Code on Criminal Procedure provides as follows:
“If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge. The body can only be buried after a written burial licence has been issued by the public prosecutor or by a criminal court judge.”
69. A description of other relevant domestic law may be found in Ergi v. Turkey (judgment of 28 July 1998, Reports of judgments and Decisions 1998-IV, pp. 1767-68, §§ 46-52).


ITEMID: 001-4649
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GALEOTTI OTTIERI DELLA CIAJA AND SIX OTHERS v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are seven Italian nationals, whose names, dates of birth and places of residence are indicated in the attached list.
They are represented before the Court by Mr Fabio Pisillo, Mr Riccardo Pisillo Mazzeschi and Mr Marco Miccinesi, three lawyers practising in Siena and Florence.

The first four applicants are the heirs of a certain Mrs B.
The amount of main and complementary taxes to be paid on Mrs B.’s estate of inheritance was fixed respectively at 3,499,302,200 ITL (approximately 11,850,000 FRF) and 265,393,050 (approximately 900,000 FRF).
On 17 September 1986 the first applicant requested the Siena revenue to recalculate the taxes. She observed that in accordance with Rule 6 of Presidential Decree no. 637 of 1972, tax rates had been assessed on the estate of inheritance considered as a whole, and not on the heirs’ individual assets, a fact which provoked a difference of treatment between sole heirs and persons being heirs pro quota of substantial estates. The first applicant noted in particular that under the above system, assuming that the estate amounted to 2,000,000,000 ITL, the sole heir should pay 497,850,000 ITL, while five heirs sharing pro quota an estate of 10,000,000,000 ITL should pay 595,570,000 ITL each.
The Revenue rejected the first applicant’s request.
On 1 February 1987 the first four applicants and a certain Mrs O. introduced a claim before the Siena Fiscal Board. They alleged, inter alia, that Rule 6 of Presidential Decree no. 637 of 1972 was contrary to Articles 3 and 53 of the Italian Constitution, guaranteeing the principle of equality of treatment and providing that everybody should contribute to public expenses in relation to his or her taxable capacity.
In a decision of 4 June 1991, the Fiscal Board, observing that on 11 February 1988 the Constitutional Court had declared manifestly ill-founded an exception similar to the one raised by the applicants, rejected the claim.
Invoking, inter alia, Article 14 of the Convention, taken in conjunction with Article 1 of Protocol n° 1, the first four applicants and Mrs O. appealed to the Appeals Fiscal Board.
In an order of 20 May 1992, the Appeals Board confirmed the first-instance decision.
On 6 February 1993 the first four applicants and Mrs O. introduced a claim before the Florence Court of Appeal, seeking the withdrawal of the Appeals Board’s decision. They relied on Articles 3 and 53 of the Italian Constitution as well as on Article 14 of the Convention, taken in conjunction with Article 1 of Protocol n° 1.
In a judgment of 8 July 1994, the Court of Appeal rejected the applicants’ claim. It raised doubts as to the binding character of the Convention and noted that, in any case, its provisions could be modified by subsequent ordinary laws. The Court of Appeal moreover observed that, as the Constitutional Court had held on a number of occasions, taxes had to be assessed on the basis of the estate of inheritance as a whole, without taking into account the heirs’ individual assets. Therefore, higher tax rates on more substantial estates were a mere consequence of the principle of progressiveness of taxation.
The applicants appealed on points of law, the last three applicants acting in their capacity of heirs of Mrs O.
In a judgment of 20 February 1998, filed with the registry on 8 July 1998, the Court of Cassation rejected the applicants’ appeal. It acknowledged that the Convention provisions were incorporated into Italian law and could not be modified by ordinary laws. The Court of Cassation moreover accepted that taxation could interfere with the citizens’ right of property and raise issues under Article 14 of the Convention. However, it found no appearance of violation of this provision, given the fact that Article 6 of Presidential Decree no. 637 was aimed to ensure an higher fiscal pressure on more substantial estates, thus applying the principle of progressiveness of taxation.