ITEMID: 001-58238
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF YAŞA v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2 (effective investigation);Violation of Art. 13;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 6. Mr Eşref Yaşa, a Turkish citizen, was born in 1962 and currently lives in Diyarbakır. His uncle, Mr Haşim Yaşa, was born in 1956 and also lived in Diyarbakır. He was killed on 14 June 1993.
7. The applicant lodged an application with the Commission “on his own behalf and on behalf of his deceased uncle” (see paragraph 56 below), in which he complained that they had been victims of armed attacks because they sold the newspaper Özgür Gündem. The attacks were part of a campaign orchestrated against that and other pro-Kurdish newspapers with the connivance or even the direct participation of State agents.
Some of the events that led to the application being made are disputed.
8. At the material time the applicant rented a newspaper kiosk, known as the Bulvar Buffet, in the town of Diyarbakır. In October 1992 he began to receive death threats from the police because he sold certain newspapers, in particular the pro-Kurdish paper Özgür Gündem.
9. In the early hours of 15 November 1992 the applicant’s kiosk was set on fire and destroyed. The applicant estimated the damage at 70,000,000 Turkish liras.
10. About a week before that incident, the applicant had been visited by two police officers, one of whom was Superintendent Kemal Fidan of the Diyarbakır Security Branch. The applicant did not know the other officer’s name. They had threatened to burn down his kiosk because of the newspapers he sold.
11. After the applicant’s kiosk had been burnt down, other newsagents had decided to stage a one-day protest strike and refused to sell anything.
12. At 7.15 a.m. on 15 January 1993 shots had been fired at the applicant while he was in Turistik Street in the Mardinkapı district of Diyarbakır. He had been riding his bicycle from home to the kiosk with his son Diren on the back, when he noticed two suspicious-looking men, one tall and the other of average height, aged about 20–25. Fearing their intentions were hostile, the applicant had attempted to steer his bicycle away but had been struck by a taxi. He and his son had fallen to the ground. At that moment one of the two men had started to shoot at him. In self-defence, the applicant had drawn a pistol from his waist and fired six shots back, none of which had hit the two men. The applicant, however, had been hit by eight bullets fired by the assailant. Three had grazed his back and one his right leg. One had entered his right arm and one his left wrist. One bullet had lodged between the forefinger and middle finger of his left hand and one had gone through his right buttock into his abdomen.
13. The applicant was taken by taxi to Diyarbakır Hospital. He had asked the driver to deliver his pistol to one of his relatives. The driver had given it instead to another taxi driver who knew the applicant’s kiosk. He had put the pistol in a scrap-box tin under the counter of the kiosk.
14. The operation to remove the bullets from the applicant’s body, which was performed in the intensive care unit of Diyarbakır Hospital, was held up for two hours by the police. His relatives were later subjected to insults and received death threats at the hospital.
15. The applicant spent eleven days in hospital. He still had health problems as a result of the attack. He suffered pain in his left arm and several fingers of his left hand and there was continuing discomfort from the scars. In addition, he had stomach pains caused by an infection contracted following the operation.
16. While in hospital the applicant had made a statement to the police in which he claimed that his assailants were police officers. At no stage had the public prosecutor’s office asked him to make a statement about the attack.
17. After coming out of hospital he was prosecuted for carrying an unlicensed firearm. On 24 May 1993 he was convicted and sentenced to one year’s imprisonment, later converted by the court to a fine of 1,633,333 Turkish liras, to be paid in instalments over four months. His appeal against the conviction and sentence was dismissed.
18. At about 7.30 a.m. on 14 June 1993 the applicant’s uncle, Haşim Yaşa, who had been running the applicant’s kiosk since March 1993, was shot in the head and killed by an unknown assailant while walking along Sunay Avenue in Diyarbakır. Haşim Yaşa’s seven-year old son, Aziz, was the only witness to the shooting. On the same day, the applicant was arrested, assaulted and threatened with death by the police, who told him that they had carried out the shooting and that he had been the intended target.
19. On 10 October 1993 the applicant’s younger brother, Yalçın Yaşa, aged 13, who had been looking after the kiosk following the attacks on the applicant and his uncle, was killed by an unknown assailant near his home. Another of the applicant’s brothers, Yahya Yaşa, aged 16, was seriously injured during the attack.
20. Following that attack the applicant was forced to sell his business because there was no one left in his family to manage the kiosk.
21. The applicant alleged that he and his uncle had been shot because of their involvement in the distribution of the newspaper Özgür Gündem. The incidents had been part of a campaign of persecution and attacks against people engaged in the publication and distribution of that and other pro-Kurdish newspapers. To support that claim, the applicant referred to the following incidents.
22. Publication of the Özgür Gündem had ceased in April 1994 as a result of a wave of prosecutions brought against it by the State. Since first appearing in May 1992, the newspaper had been the subject of several prosecutions, confiscation orders and temporary closure orders. While the newspaper had never been officially banned from sale, there had been periods when confiscation and closure orders had affected its publication and distribution. The Özgür Ülke, the successor to the Özgür Gündem, was forced to close in February 1995 and the Yeni Politika, which replaced it, ceased publication in August 1995.
23. The applicant has supplied lists detailing cases of attacks on, illtreatment or detention of and threats against staff and distributors of the Özgür Gündem and similar newspapers in 1992, 1993 and early 1994. He maintained that those incidents clearly established that there was a pattern of targeting persons working for the Özgür Gündem.
24. The applicant stated that at least seven journalists, including Musa Anter, working for the Özgür Gündem had been killed, while others had been injured in attacks. Numerous other journalists had been detained and, in some instances, subjected to ill-treatment.
25. There had been numerous prosecutions of the owners, editors and journalists of the Özgür Gündem on the basis, inter alia, of the provision under the Prevention of Terrorism Act prohibiting propaganda against the indivisible unity of the State. In addition, Behçet Cantürk, one of the principal financiers of the Özgür Gündem, was murdered (see paragraph 46 below).
26. The applicant stated that several newspaper kiosks were attacked for selling the Özgür Gündem. In addition, on 3 December 1994 the headquarters of the Özgür Gündem in Istanbul and its office in Ankara were bombed. One person was killed and eighteen injured.
27. There had also been numerous incidents in which persons and vehicles involved in the distribution of the Özgür Gündem had been attacked. The applicant stated that at least eleven vendors or distributors have been killed, including Yalçın Yaşa (see paragraph 19 above) and Haşim Yaşa (see paragraph 18 above). Several others had been beaten or severely injured, while many more had been threatened with violence if they did not stop selling or distributing the newspaper.
28. To support his assertions the applicant referred to various publications containing information and expressing concerns about infringements of freedom of expression in Turkey, including, “What happened to the press in 1993”, published by the Özgür Gündem, extracts from 1993 Info-Türk (E.208-7, E.209-6, E.212-8/9), the United States’ State Department Report for Turkey 1994 and “L’intimidation – rapport sur les meurtres de journalistes et les pressions sur la presse turque” by Reporters sans frontières (January 1993).
29. The Government confirmed that the applicant had been shot and his uncle killed on 15 January 1993 and 14 June 1993 respectively. In their memorial they referred to the investigations of the public prosecutors, which commenced on the same day as the attacks (see paragraphs 35 and 41 below). Those investigations, which were being conducted in accordance with the applicable provisions of the Turkish Code of Criminal Procedure (see paragraph 48 below), were still pending.
30. The Government maintained that there was no evidence to support the applicant’s contention that members of the security forces were responsible for the attacks on the applicant and his uncle. In addition, they denied all allegations of ill-treatment by the State authorities. They said that the applicant had never officially complained to the relevant authorities that his attackers were agents of the State. Moreover, there was no evidence to support the applicant’s allegation that a police officer had told him that it was in fact he who had been the target of his uncle’s killers.
31. The Government refuted any allegation that there had been official intimidation of persons in any way connected with the sale of newspapers. They said that such newspapers were sold in hundreds of kiosks and were freely available throughout Turkey. The Government acknowledged that on certain occasions particular editions of those newspapers had been confiscated (see paragraph 22 above). However, the measures, which were neither arbitrary nor repressive, were always made on the basis of judicial decisions.
32. Noting that the allegations were of a width and character that would not be easily amenable to clarification from oral testimony, the Commission decided, after consulting the parties, to examine the allegations on the basis of the written materials submitted by the parties. The findings of the Commission can be summarised as follows.
33. The Commission observed that the facts at the heart of the application were not disputed. The applicant was shot at and seriously injured in an attack by two men on 15 January 1993. His uncle, Haşim Yaşa, was shot and killed by a gunman on 14 June 1993.
34. The Commission found that there was no evidence before it that proved beyond reasonable doubt that agents of the security forces or police were involved in the shooting of either the applicant or his uncle. It also found that the applicant’s complaints concerning police obstruction at the hospital and ill-treatment in custody following his uncle’s funeral had not been substantiated. However, having regard to “appeals made for protection and protests made by Mr Yaşar Kaya, [a] journalist and [the] owner of the Özgür Gündem, at ministerial level and to the considerable number of attacks on persons connected with that newspaper”, the Commission found that the Government had or ought to have been aware that those involved in its publication and distribution feared that they were falling victim to a concerted campaign tolerated, if not approved, by State agents (see paragraph 104 of the Commission’s report) .
35. According to a police report dated 15 January 1993 the shooting took place at about 7.15 a.m. in Turistik Street. Fifteen empty cartridges and two bullet shells were taken for forensic examination, and a plan of the scene was drawn up. On the day of the shooting the police recovered the applicant’s pistol from his kiosk. They arrested Ş. Altunhan at the kiosk and two taxi drivers, one being the driver to whom the applicant had entrusted the pistol and the other being the driver who had taken it to the kiosk (see paragraph 13 above). The police had then taken detailed statements from them.
36. In response to an enquiry of 15 January 1993 from the security police, the hospital doctor recorded the following injuries to the applicant: one bullet entry to the left gluteal region, one bullet entry and exit to the middle left forearm, one bullet scratch to the left index finger, one bullet entry and exit on the middle front upper right arm between the elbow and axillary region and a bullet track slightly below the skin tissue, surfacing under the arm.
37. On 17 January 1993, in the presence of his lawyer, the applicant had given a statement to the police in which he had described the attack. He stated that the assailants had intended to murder him because he ran a newspaper kiosk that mainly sold left-wing newspapers. He explained that, as there had been previous attacks on newsagents selling such papers, he had bought the pistol and had been carrying it with him for three or four days before the attack (see paragraph 16 above).
38. A summary incident report dated 17 January 1993 on the shooting, entitled “crime record no. 1993/C-14”, referred to the applicant as an injured suspect and stated that the other (unidentified) suspects were at large.
39. On 20 January and 14 April 1993 the Diyarbakır public prosecutor had requested the relevant security branch to investigate the attack on the applicant and to apprehend the suspects. On the latter date the public prosecutor had also requested that the Principal Public Prosecutor’s Office be kept informed of the progress of the inquiries every three months until the end of the statutory prescription period, namely 15 January 1998.
40. An expert ballistics report from the Diyarbakır regional criminal police laboratory dated 11 February 1993 indicated that the cartridges found by the police at the scene of the shooting showed traces and marks identical to those in the shooting of two other people in Diyarbakır on 3 November 1992 and 11 February 1993 respectively.
41. A preliminary investigation file no. 1993/2248 had been opened into the killing of Haşim Yaşa. According to an autopsy report dated 14 June 1993, four bullet entry wounds had been found on Haşim Yaşa’s body, two of which were fatal.
42. Following the shooting, the police had prepared a sketch of the scene of the incident and had taken statements on 14 June 1993 from two witnesses. According to V. Şimşek, after hearing the shots, he had seen someone, whom he was unable to identify, running behind the people gathering in the street. R. Orhan, who ran a stall in the street, had heard but not seen the shooting. On reaching the scene, he had helped Haşim Yaşa, who was lying on the ground, get into a taxi so that he could be taken to hospital.
43. The record made by the police on questioning Haşim Yaşa’s son had indicated that although the boy had seen the assailant he had not recognised him. He said that the assailant – aged 20 to 25 and approximately 1.70 m tall – had continued to fire at his father even though the latter had fallen to the ground after the first shot. The attacker had then made his escape.
44. An expert ballistics report dated 21 June 1993 indicated that the bullet shells retrieved from the scene were too deformed for useful examination.
45. No other information concerning any investigative measures taken in relation to those incidents was included with the documents from the investigation file provided to the Commission. However, appended to the Government’s written observations before the Commission was a letter which the public prosecutor attached to the Diyarbakır National Security Court had sent on 2 November 1995 to the Minister of Justice in which he said:
“[The] allegation ... is wholly untrue. There are no gunmen working for the State in south-east Anatolia. In [that] region there are armed conflicts between armed organisations and conflicts arising out of the settling of scores within such organisations. The allegation that these incidents are attributable to the State and gunmen acting on its behalf is outrageous...”
46. Before the Court, the applicant has produced a copy of a recent report by the Board of Inspectors within the Prime Minister’s office. That confidential report (“the Susurluk report”) was initially intended to be only for the Prime Minister, who had commissioned it on 13 August 1997. After receiving the report in January 1998, it would appear that the Prime Minister then made it available to the public, although eleven pages from the body of the report and its appendices were withheld. The report continued to be the centre of attention in Turkey while the Court was considering the case.
The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south-east Turkey which tended to confirm the existence of a tripartite relation involving unlawful dealings between political figures, government institutions and clandestine groups.
The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result, particularly in the drug-trafficking sphere. The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below.
“... In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir (page 35) would say from time to time that he had planned and procured the murder of Behçet Cantürk and other partisans from the mafia and the PKK who had been killed in the same way... The murder of ... Musa Anter had also been planned and carried out by A. Demir (page 37).
...
Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below (page 72).
...
As of 1992 he was one of the financiers of the newspaper Özgür Gündem. ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate the Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking, when he was expected to submit to the State, the Turkish Security Organisation decided that he should be killed and that decision was carried out (page 73).
...
All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9). Other journalists have also been murdered (page 74).”
47. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
48. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or members of the security forces as well as to the public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duty shall be liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
49. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local Administrative Council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court.
50. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of the state of emergency region, the 1914 Law (see paragraph 49 above) also applies to members of the security forces who come under the governor’s authority.
51. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9–14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 48 above) or with the offender’s superior.
52. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
53. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities shall be subject to judicial review…
...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
54. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 53 above), provides:
“No criminal, financial or legal liability may be asserted against … the governor of the state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this Legislative-Decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
55. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41–46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-106448
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BAH v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 14+8
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5.
6. The applicant arrived in the United Kingdom in 2000 as an asylum seeker from Sierra Leone. Although her asylum claim was refused, she was granted exceptional leave to remain and then, in 2005, indefinite leave to remain. After she obtained indefinite leave to remain, she applied to have her son Mohamed Saliou Jalloh, a Sierra Leonean national born in 1994, join her in the United Kingdom. Her son arrived in January 2007, with conditional leave to remain in the United Kingdom, the condition being that he must not have recourse to public funds. He is considered as being “subject to immigration control” within the meaning of the Asylum and Immigration Act 1996, as is the applicant (see paragraph 12 below).
7. At the time of her son’s arrival in the United Kingdom, the applicant was renting a room in a private home. However, her landlord was unwilling to accommodate her son as well, and informed the applicant shortly after her son’s arrival that they would have to move out by 31 March 2007. The applicant applied to the London Borough of Southwark Council for assistance on 9 February 2007, on the basis that she had become unintentionally homeless. An unintentionally homeless person with a minor child would ordinarily qualify as being in priority need pursuant to section 189 of the Housing Act 1996 (see paragraph 13 below), and would thus be provided with suitable housing, usually within the locality. Those in priority need are considered to be a class of persons to whom reasonable preference must be given in the allocation of social housing. As there is a significant shortage of social housing in London, those in priority need would generally be placed in temporary accommodation until appropriate social housing became available. In the case of the applicant, however, as her son was subject to immigration control, he was disregarded by the Council in the determination of whether the applicant was in priority need, in accordance with section 185(4) of the Housing Act 1996. On 14 March 2007 the Council decided that the applicant was not therefore in priority need and not entitled to social housing.
8. The applicant requested a review of this decision, which was carried out by a senior officer, who reiterated that persons subject to immigration control are not eligible for housing assistance and that persons who are not eligible for housing assistance shall be disregarded when determining whether another person has a priority need for accommodation. As the applicant’s son was not eligible, the applicant did not have a priority need. Consideration was also given to the question of whether the applicant was vulnerable for any other reason; however, it was found that the applicant was not hindered in the performance of everyday tasks by any medical problems and that she was no less able to fend for herself than the average person. There was therefore no special reason to find that she was entitled to homelessness assistance due to vulnerability. On 24 May 2007 the original decision was upheld.
9. The Council assisted the applicant to find a private-sector tenancy in September 2007, which she accepted. The applicant and her son were not therefore at any point actually homeless. However, the private tenancy was more expensive than a social tenancy would have been, and was outside the Borough of Southwark and therefore far from the applicant’s previous employment and her son’s school. The applicant claimed that she had to give up her job after three months of commuting as she was unable to cope with the travel required, and that her son spent four hours per day travelling to and from school.
10. The applicant, who had remained on the waiting list for social housing in the Borough of Southwark, obtained an offer of a social tenancy of a one-bedroom flat in March 2009. She and her son therefore moved back to Southwark.
11. Section 9, subsections 1 and 2, of the Asylum and Immigration Act 1996 provide:
“(1) Each housing authority shall secure that, so far as practicable, no tenancy of, or licence to occupy, housing accommodation provided under the accommodation Part is granted to a person subject to immigration control unless he is of a class specified in an order made by the Secretary of State.
(2) A person subject to immigration control—
(a) shall not be eligible for accommodation or assistance under the homelessness Part; and
(b) shall be disregarded in determining, for the purposes of that Part, whether another person—
(i) is homeless or is threatened with homelessness; or
(ii) has a priority need for accommodation,
unless he is of a class specified in an order made by the Secretary of State ...”
12. Section 13(2) of the same Act defines “a person subject to immigration control” as being a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom (whether or not such permission has been given).
13. The Housing Act 1996, as amended by Schedule 15 to the Housing and Regeneration Act 2008, provides, in its relevant parts, as follows:
“(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a) whether he is eligible for assistance; and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
...
(3A) If the authority decide that a duty is owed to the applicant under section 193(2) or 195(2) but would not have done so without having had regard to a restricted person, the notice under subsection (3) must also—
inform the applicant that their decision was reached on that basis,
include the name of the restricted person,
explain why the person is a restricted person, and
explain the effect of section 193(7AD) or (as the case may be) section 195(4A)
...
(7) In this Part ‘a restricted person’ means a person—
(a) who is not eligible for assistance under this Part;
(b) who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996; and
(c) either—
(i) who does not have leave to enter or remain in the United Kingdom; or
(ii) whose leave to enter or remain in the United Kingdom is subject to a condition to maintain and accommodate himself, and any dependents, without recourse to public funds.
(1) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.
(2) A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.
...
(4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether a person falling within subsection (5) —
(a) is homeless or threatened with homelessness; or
(b) has a priority need for accommodation.
(5) A person falls within this subsection if the person –
(a) falls within a class prescribed by regulations made under subsection (2); but
(b) is not a national of an EEA State or Switzerland.
...
(1) The following have priority need for accommodation –
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
...
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.
...
(3B) In this case ‘a restricted case’ means a case where the local housing authority would not be satisfied as mentioned in subsection (1) without having had regard to a restricted person.
...
(7AA) In a restricted case the authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the matters mentioned in subsection (7AB)—
(a) accepts a private accommodation offer; or
(b) refuses such an offer.
(7AB) The matters are—
(a) the possible consequence of refusal of the offer; and
(b) that the applicant has the right to request a review of the suitability of the accommodation.”
14. The Regulations, made by the Secretary of State in the exercise of powers conveyed by certain sections of the Housing Act 1996, referred to above, provide in their relevant parts as follows:
“The following classes of persons subject to immigration control are persons who are eligible for an allocation of housing accommodation under Part 6 of the 1996 Act—
(a) Class A – a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom;
(b) Class B – a person—
(i) who has exceptional leave to enter or remain in the United Kingdom granted outside the provision of the Immigration Rules; and
(ii) who is not subject to a condition requiring him to maintain and accommodate himself, and any person who is dependent on him, without recourse to public funds;
(c) Class C – a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and whose leave to enter or remain in the United Kingdom is not subject to any limitation or condition, other than a person—
(i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor;
(ii) who has been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for less than five years beginning on the date of entry or the date on which his sponsor gave the undertaking in respect of him, whichever date is the later; and
(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive;
...
(1) The following classes of persons subject to immigration control are persons who are eligible for housing assistance under Part 7 of the 1996 Act—
(a) Class A – a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom;
(b) Class B – a person—
(i) who has exceptional leave to enter or remain in the United Kingdom granted outside the provision of the Immigration Rules; and
(ii) who is not subject to a condition requiring him to maintain and accommodate himself, and any person who is dependent on him, without recourse to public funds;
(c) Class C – a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and whose leave to enter or remain in the United Kingdom is not subject to any limitation or condition, other than a person—
(i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor;
(ii) who has been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for less than five years beginning on the date of entry or the date on which his sponsor gave the undertaking in respect of him, whichever date is the later; and
(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive.”
15. On 14 October 2005 the Court of Appeal handed down its judgment in this case, which involved a woman who was a British citizen and her daughter who was subject to immigration control. The local authority had refused to treat mother and daughter as being in priority need of homelessness assistance when they became unintentionally homeless, due to the daughter’s immigration status. The Court of Appeal held that Part VII of the Housing Act 1996 and specifically sections 188, 189 and 193 were designed to protect the family lives of the homeless by ensuring that families who became unintentionally homeless were accommodated together. It therefore fell within the ambit of Article 8 of the Convention. A majority of the Court of Appeal found that the basis of distinction between Mrs Morris, on the one hand, and the parent of a child who was not subject to immigration control, on the other, was either the national origin of the child, or a combination of statuses including nationality, immigration status, settled residence and social welfare. It was not considered necessary to decide finally whether there was one sole factor on which the distinction was based; the important point was that nationality was among the factors. As such, very weighty or solid justification was required if the distinction was to be found to be compatible with the Convention. The Court of Appeal found that, regardless of the precise basis of the differential treatment, the justification offered by the Government – the need to preserve immigration control and to prevent “benefits tourism” – was not sufficiently weighty, nor was it a proportionate and reasonable response to the perceived problem. The discouraging of “benefits tourism” or the “over-staying” of dependent relatives was an intelligible policy goal, but was not served by legislative measures which discouraged British citizens or those with a right of abode from coming to or remaining in the United Kingdom, because they could not accommodate their dependent relatives who were also lawfully permitted to be in the United Kingdom. Section 185(4) was found not to be a proportionate or even logical response to the perceived problem. The Court of Appeal observed that it was not apparent that the Government or Parliament had considered the potentially discriminatory impact of the legislation; however, even if such impact had been considered, it could not be considered to fall within even the very wide margin of appreciation that the Government enjoyed with regard to such matters.
16. The Court of Appeal therefore made a declaration of incompatibility in the following terms:
“That [section] 185(4) of the Housing Act 1996 is incompatible with [Article] 14 of the Convention to the extent that it requires a dependent child of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining when a British citizen has a priority need for accommodation when that child is subject to immigration control.”
17. The case of Mrs Morris was considered by the Court of Appeal alongside that of Mr Badu, who had indefinite leave to remain in the United Kingdom but was considered by the court to have “equivalent status” to British citizenship (see paragraph 60 of the Court of Appeal judgment). He too was excluded by section 185(4) from establishing a priority need for housing assistance because his child was subject to immigration control. Unlike Mrs Morris, however, at the time of the Court of Appeal’s judgment, he had an ongoing need for assistance, being still prospectively homeless. This situation would not be alleviated by the declaration of incompatibility, since the impugned provision would remain in force until changed by Parliament. Mr Badu’s case was therefore remitted by the Court of Appeal to the relevant local authority for reconsideration, with specific regard to whether he could be provided with accommodation under powers conferred upon the authority by other legislation.
18. As a result of the declaration of incompatibility in Westminster City Council v. Morris, the Government amended the Housing Act 1996 by means of Schedule 15 to the Housing and Regeneration Act 2008, as noted above. The changes addressed the incompatibility in so far as British citizens are concerned but meant that a person such as Mr Badu or indeed the applicant in this case, with indefinite leave to remain, would still not be considered to be in priority need of housing assistance if his or her eligibility was dependent on another person who was from abroad and subject to immigration control, such as the applicant’s son. Moreover, in the case of a British citizen like Mrs Morris or a European Economic Area (EEA) or Swiss national, where the priority need resulted from a dependent child who was subject to immigration control, the local authority’s duty to provide accommodation would be satisfied by the local authority procuring an offer of a tenancy from a private landlord, whether or not the applicant chose to accept such an offer. In cases where there was a dependent child who was not subject to immigration control, by contrast, the local authority’s duty would not be discharged by procuring such an offer if the applicant chose not to accept it.
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-80510
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ATICI v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3;Violation of Art. 3;Violation of Art. 5-3
TEXT: 4. The applicant was born in 1970 and lives in Istanbul.
5. On 16 October 1992 the applicant was arrested by police officers on suspicion of being a member of an illegal organisation, namely Dev-Sol (Revolutionary Left) and was taken into custody.
6. On 26 October 1992 an investigating judge remanded the applicant in custody in Gebze Prison.
7. On 8 January 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and 16 other co-accused, charging them with membership of an illegal, armed organisation and participation in activities that undermined the constitutional order of the State. The public prosecutor sought the death penalty for the applicant, pursuant to Article 146 § 1 of the Criminal Code.
8. On 11 December 2002 the applicant was released pending trial.
9. Following a constitutional amendment in 2004, the State Security Courts were abolished and the applicant's case was transferred to the Istanbul Assize Court. On 2 May 2005 the Istanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment. The Court of Cassation quashed this judgment. The case was remitted to the Istanbul Assize Court, where it is apparently still pending.
10. The applicant was detained in Gebze Prison. He had various health problems and underwent several operations. He has submitted medical reports to this effect.
11. On 27 July 2001 the applicant was transferred to the Kandıra/Kocaeli F-Type Prison. On his arrival at the prison, the security forces and the prison guards allegedly subjected the applicant to a strip- search, which included an anal inspection. The applicant complained about this incident to the Kandıra public prosecutor.
12. On 2 August 2001 the applicant was to be taken to hospital for a routine medical check when he was again allegedly subjected, by force, to an anal and oral inspection. The applicant tried to resist the search, which he thought was degrading. Following this, the security forces drew up a report, stating that the applicant had objected to the search and had therefore not been taken to hospital. The applicant filed a complaint with the Kandıra public prosecutor about this treatment.
13. On 16 August 2001 the applicant's lawyer complained to the Directorate General of Sentences and Prisons regarding the incident of 2 August 2001. She submitted that her client had been subjected to a degrading search and had not been taken to hospital for a medical examination. She requested that the applicant be transferred to Bayrampasa Prison in Istanbul in order to facilitate his treatment and to avoid the problems related to transfers and searches.
14. In a letter dated 4 October 2001, the Directorate disputed the content of that complaint. They maintained that the applicant had received medical treatment in the infirmary of the Kandıra/Kocaeli F Type Prison, as well as having been taken to the Kocaeli State Hospital on 6 August 2001. They added that the prison authorities were corresponding with a hospital in Istanbul in order to arrange for the applicant's subsequent medical treatment. Lastly, they maintained that a prison change was unnecessary as the applicant could be conveyed to and from the hospital in Istanbul if necessary.
15. On 13 February 2002 the applicant's lawyer filed a complaint with the Kocaeli Criminal Court. She stated that her client had been subjected to degrading treatment during a search on 7 February 2002, and had been detained in solitary confinement because of his resistance to that measure. She asked the court to take the necessary action against the prison officers concerned. She also requested that her client be transferred back to the cell which he had shared with two other inmates, or to another one which would allow him to mix with others in the courtyard.
16. On 27 February 2002 the Kocaeli Criminal Court rejected this request. It concluded that the Cell Allocation Committee (Oda Secici Kurulu) had placed the applicant in a room where he could share part of the prison courtyard with two other inmates. The complaint concerning the acts of the prison officers was left for the public prosecutor to consider.
17. On 26 April 2002 the public prosecutor decided that no prosecution should be brought against the prison guards of the Kandıra/Kocaeli F-Type Prison in respect of the events of 27 July 2001. In his decision not to prosecute, the prosecutor noted that the security forces had been obliged to use force to restrain the prisoners (including the applicant) since they had resisted transfer from Gebze Prison to the F-Type Prison. After their arrival at the F-Type Prison, the prisoners had been examined by a doctor who had drawn up medical reports. He concluded that there was thus no concrete evidence to prosecute the soldiers or the prison guards.
18. On 20 May 2002 the applicant's lawyer challenged the public prosecutor's decision of 26 April 2002 before the Kocaeli Assize Court. She maintained that the public prosecutor had decided not to prosecute without having conducted a sufficient preliminary investigation. She argued that, under domestic law, it was compulsory for a public prosecutor to commence criminal proceedings where there was enough testimony to show that the security forces and the prison officers could have been responsible for the alleged ill-treatment.
19. On 4 December 2002 the applicant was transferred to the Gebze Special Type Prison. He was released from that prison on 11 December 2002.
20. In a letter dated 2 September 2005, the governor of the Kandıra/Kocaeli F-Type Prison informed the Kocaeli public prosecutor that the applicant had been held in a single room between 7 February and 15 May 2002, though not by way of disciplinary punishment. He maintained that the applicant could share the courtyard with other inmates. He relied on the report prepared by the psychological and social services, which had recommended that the applicant be sent to another prison as he had fallen out with his friends from the organisation and therefore had no one to share the room with. The applicant maintained that the “single room” mentioned in the letter was a cell from where he could not share the courtyard with other inmates.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-78724
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GUL AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date in 1953, the authorities conducted a land registry survey in Bismil, during which the land allegedly belonging to the applicants' ancestors was registered in the land registry in the name of other individuals and the Treasury.
Following this, Aziz Gül, the father and uncle to several of the applicants, brought actions to intervene in the proceedings before the Bismil Cadastral Court, claiming that the land in fact belonged to his mother. The information in the relevant files can be summarised as follows.
On 10 April 1953, Aziz Gül brought an action against E.Ö. and the Treasury, contesting the result of the cadastral survey and claiming that the plot of land no. 16 belonged to him.
On 13 April 1957 the Bismil Cadastral Court dismissed the claims of Aziz Gül and ordered that the contested land be registered in the name of E.Ö.
Aziz Gül did not appeal against this judgment. However, the Treasury appealed. The Court of Cassation quashed the judgment and remitted the case to the Bismil Cadastral Court. The latter delivered its second judgment on 6 August 1963, confirming the first.
The applicants were not party to these proceedings.
On 14 April 1958 the Bismil Cadastral Court rendered a judgment, which became final 26 June 1959. Aziz Gül was not a party to these proceedings.
On 25 March 1953, Aziz Gül brought another action before the Bismil Cadastral Court, contesting the cadastral record of a plot of land, no. 67, along with other plaintiffs.
He failed to attend the hearings held after 14 May 1957, or to submit his witness list, despite the court's request.
None of the applicants pursued the case as the heirs of Aziz Gül.
On 15 April 2004 the court delivered its judgment and dismissed Aziz Gül's claims. On 5 September 2005, Aziz Gül's grandson, Miktad Gül (not an applicant in the present case), was notified of this judgment.


ITEMID: 001-4691
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: STUART v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1960 and living in Banffshire, Scotland. She is represented before the Court by Mr C.S. Fyfe
Between the ages of seven and thirteen (1967-1973), the applicant was subjected to repeated and systematic rape and sexual abuse by her step-father, who lived with the applicant, her mother and brother. The applicant was too frightened to report the matter, but eventually her brother, who was also abused by their step-father, informed the police on 5 December 1996. The step-father was convicted in Aberdeen High Court in March 1997 of rape and lewd and libidinous practices. He was sentenced to seven years’ imprisonment in respect of his offences against the applicant, and a further three years’ in respect of those against the applicant’s brother.
The abuse has had a highly detrimental effect on the applicant. She has attempted suicide on three occasions and suffered depression and relationship problems which have led to two divorces.
On 26 February 1997 the applicant lodged an application for criminal injuries compensation with the Criminal Injuries Compensation Authority (“CICA”). On 11 April 1997 the CICA wrote to the applicant explaining that her application had been refused under paragraph 7(b) of the Criminal Injuries Compensation Scheme 1996, which expressly excludes the payment of compensation where the criminal injury was received before 1 October 1979 and the victim and assailant were living together at the time as members of the same family.
The applicant lodged a review against this decision which was refused by the CICA on 16 September 1997. She then lodged an appeal to the Criminal Injuries Compensation Appeals Panel. The appeal was refused on 12 January 1998.


ITEMID: 001-89361
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: VAVRENYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Stanislav Oleksandrovych Vavrenyuk, is a Ukrainian national who was born in 1939 and lives in Kirovograd. The Ukrainian Government (“the Government”) were represented by Mr. Y. Zaytsev, their Agent.
On 4 March 2002 the applicant instituted proceedings in the Leninskyy District Court of Kirovograd against the local welfare department challenging the refusal of the latter to increase his pension in accordance with the Constitution and the Pensions Act.
On 5 July 2002 the Leninskyy District Court of Kirovograd rejected the applicant's claim as unsubstantiated, stating, inter alia, that the applicant's pension had been determined correctly.
The applicant appealed against this decision, claiming that the first-instance court had failed to apply the relevant pension law and had disregarded Article 46 of the Constitution.
On 12 November 2002 the Kirovograd Regional Court of Appeal upheld the judgment of the first-instance court. In reply to the applicant's argument about the applicability of Article 46 of the Constitution instead of relevant pension law the court of appeal noted that the local welfare department had acted in accordance with the applicable provisions of the pension legislation, while the question of compliance of such legal provisions with the Constitution fell within the competence of the Constitutional Court rather than the ordinary courts.
On 13 November 2004 the Supreme Court rejected the applicant's request for leave to appeal in cassation. The applicant did not ask any of the courts dealing with his case to suspend the proceedings in the case and take measures to bring the above issue of constitutionality before the Constitutional Court.
The relevant domestic law and practice are set out in the Court's judgment in the case of Pronina v. Ukraine (no. 63566/00, 18 July 2006) and the decision in the case of Tatenko v. Ukraine (no. 14198/02, decision of 2 October 2007).