ITEMID: 001-113819
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HARROUDJ v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1962 and lives in Villeurbanne.
6. Zina Hind was born on 3 November 2003 in Algeria and was abandoned immediately by her biological mother, who gave birth anonymously. As her father was also unknown, Zina Hind became a ward of the Algerian State on 3 December 2003. The director of social services in Boumerdès (Algeria) was appointed as her guardian.
7. On 13 January 2004 the President of the court of Boumerdès granted the applicant, then aged 42 and unmarried, the right to take the child Zina Hind into her legal care (kafala). He also authorised Zina Hind to leave Algeria and settle in France.
8. In a decision of 19 January 2004, the President of the court of Bordj Menaïel (Algeria) admitted a request for the child to take the same name and authorised the change from Zina Hind to Hind Harroudj.
9. Hind Harroudj arrived in France on 1 February 2004. Since then she has been living with the applicant and the applicant’s mother.
10. On 8 November 2006 the applicant applied for the full adoption of Hind. In support of her request she argued that to enable Hind to be adopted was the solution most consistent with “the best interests of the child”, within the meaning of Article 3 § 1 of the Convention on the Rights of the Child of 20 November 1989 and Article 1 of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
11. In a judgment of 21 March 2007 the Lyons tribunal de grande instance dismissed her application for adoption, after noting that kafala gave her parental authority, enabling her to take any decisions in the child’s interest. The court found that kafala gave the child the protection to which all children were entitled under the international conventions. It further pointed out that, under Article 370-3 of the French Civil Code (see paragraph 23 below), a child could not be adopted if the law of his or her country prohibited adoption, which it did in the case of Hind, as the Algerian Family Code stipulated: “adoption is prohibited by the Sharia and by legislation” (see paragraph 17 below). The applicant appealed against that judgment.
12. In a judgment of 23 October 2007 the Lyons Court of Appeal upheld the judgment of the court below:
“Article 370-3, second paragraph, of the Civil Code, inserted by the Law of 6 February 2001 on Intercountry Adoption, stipulates: ‘Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France’.
The choice-of-law rule, in so far as it refers to the personal law, is not discriminatory and is compliant with Articles 8 and 14 of the European Convention on Human Rights and with international law; Article 4 (a) of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption provides that adoption may take place only if the competent authorities of the State of origin have established that the child is adoptable, this not being the case where adoption is prohibited.
Hind Harroudj was born in Algeria.
Article 46 of the Algerian Family Code authorises kafala, but prohibits adoption. Under French law, simple or full adoption creates a legal parent-child relationship for the benefit of the adopters and cannot be equated with kafala. The Algerian Family Code does not provide for any exception to the prohibition of adoption where the child has no established parentage. The executive decree of 13 January 1992 on changes of name does not establish parent-child relationships, as the holder of the right of kafala retains the status of guardian.
The kafala system preserves the child’s interests by conferring legal status on the care provided by guardians. It is expressly recognised by Article 20 § 3 of the Convention on the Rights of the Child of 20 November 1989. Islamic law makes other provision for the inheritance of property. Accordingly, the above-mentioned provisions do not run counter to the child’s best interests.”
13. The applicant lodged an appeal on points of law. Under Articles 8 and 14 of the Convention, she relied on Hind’s right to respect for her family life, submitting that it was in the child’s interest for a legal parent-child relationship to be established between them, and that her inability to adopt Hind entailed a disproportionate interference with her own family life. She argued that the fact of denying her the right to adopt had the effect of establishing a difference in treatment in respect of the child’s family life on account of the child’s nationality and country of origin, as children born in countries which did not prohibit adoption could be adopted in France.
14. In a judgment of 25 February 2009 the Court of Cassation dismissed her appeal on points of law:
“After noting that the choice-of-law rule in Article 370-3, second paragraph, of the Civil Code, referring to the personal law of the adopted child, was consistent with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption – the application of which is intended only for adoptable children, excluding those whose country of origin prohibits adoption – the Court of Appeal did not establish any difference in treatment in respect of the child’s family life or disregard the right to respect for the latter, in finding that Article 46 of the Algerian Family Code prohibited adoption but authorised kafala and in rejecting the application for adoption, in so far as kafala was expressly recognised by Article 20, paragraph 3, of the New York Convention of 26 January 1990 [adopted on 20 November 1989] on the Rights of the Child, as preserving, on a par with adoption, the child’s best interests. ...”
15. Adoption, emanating from classical Roman law, which based it on the “imitation of nature” (the principle of adoptio naturam imitatur in the Institutes of Justinian) creates, between the adopter and the adoptee, a legal relationship that is identical to that existing between parent and child. Although certain States make a distinction between several levels of adoption (most often between full adoption and simple adoption), this characteristic is always present.
16. Under Islamic law adoption is prohibited (haraam). However, the right is accorded a special institution: kafala or “legal care”. In Muslim States, with the exception of Turkey, Indonesia and Tunisia, kafala is defined as a voluntary undertaking to provide for a child and take care of his or her welfare, education and protection.
17. The procedural arrangements for establishing kafala depend on the domestic law of each Muslim State. The relevant provisions of the Algerian Family Code thus read as follows:
“Adoption (tabanni) is prohibited by the Sharia and by legislation.”
“Kafala is an undertaking to assume responsibility for supporting, educating and protecting a minor child in the same manner as a father would care for his son. It is established by a legal act.”
“Kafala is granted upon appearance before the judge or notary, with the child’s consent when he or she has a father and mother.”
“The holder of the right of kafala (the kafil) must be a Muslim, a sensible and upright person, and be in a position to support the fostered child (the makfoul), with the capacity to protect him or her.”
“The fostered child may be of known or unknown parentage.”
“The fostered child shall retain his or her original legal parent-child relationship if of known parentage. Otherwise, Article 64 of the Civil Status Code shall be applied in respect of the child.”
“Should the father and mother, or one of them, request the reinstatement under their guardianship of the fostered child, it will be for the child, provided he or she is of an age of discernment, to choose whether or not to return to his parents.
If the child is not of such an age, he may be returned only with the judge’s authorisation, taking into account the interests of the fostered child.”
18. Articles 20 and 21 of the United Nations Convention on the Rights of the Child, of 20 November 1989, read as follows:
“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration ...”
19. The relevant provisions of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, adopted in the context of the Hague Conference on Private International Law, read as follows:
“The States signatory to the present Convention,
Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...
Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,
Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children, ...
Have agreed upon the following provisions”
“The objects of the present Convention are -
(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; ...
(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.”
“...
2. The Convention covers only adoptions which create a permanent parent-child relationship.”
“An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin -
(a) have established that the child is adoptable;
(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; ...”
20. The relevant provisions of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, also adopted in the context of the Hague Conference on Private International Law, read as follows:
“(1) The objects of the present Convention are -
(a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
(b) to determine which law is to be applied by such authorities in exercising their jurisdiction;
(c) to determine the law applicable to parental responsibility;
(d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;
(e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
(2) For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.”
“The measures referred to in Article 1 may deal in particular with –
...
(c) guardianship, curatorship and analogous institutions;
(d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
(e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
...”
“The Convention does not apply to -
...
(b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;
...”
21. Out of the twenty-two Contracting States of which a comparative law study has been made (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Georgia, Germany, Greece, Ireland, Italy, the Netherlands, Russia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom), where, as a result of historical factors, either the majority of the population is traditionally Muslim or there are sufficiently large Muslim communities, none of them regard kafala established abroad as adoption. In cases where the domestic courts have recognised the effects of kafala granted in a foreign country, they have always treated it as a form of guardianship or curatorship, or as placement with a view to adoption.
23. Law no. 2001-111 of 6 February 2001 inserted new provisions in the Civil Code concerning intercountry adoption, including the new Article 3703 in Chapter III (Choice-of-law rule concerning the legal parent-child relationship established by adoption and the effect in France of adoptions granted abroad) in Title VIII on legal parent-child relationships by adoption. The Article reads as follows:
“The requirements for adoption are governed by the national law of the adopter or, in case of adoption by two spouses, by the law which governs the effects of their marital relationship. Adoption, however, may not be granted where it is prohibited by the national laws of both spouses.
Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France ...”
24. Law no. 2003-1119 of 26 November 2003 on immigration control, foreign residents in France and nationality amended Article 21-12 of the Civil Code, concerning acquisition of French nationality by declaration. It now reads as follows:
“A child who was the subject of a simple adoption by a person of French nationality may, until the age of majority, declare, in the manner provided for in Articles 26 et seq. hereof, that he opts for the status of French national, provided he resides in France at the time of his declaration.
However, the obligation of residence is dispensed with where the child was adopted by a French national who does not have his habitual residence in France.
The following may also opt for French nationality under the same conditions:
1o A child who, for at least five years, has been in foster care in France and brought up by a French national or who, for at least three years, has been entrusted to the child welfare service.
2o A child in foster care in France and brought up in conditions that have allowed him to receive, for at least five years, a French education, from either a public body, or a private body satisfying the characteristics determined by a decree issued after consultation of the Conseil d’Etat.”
25. Decree no 93-1362 of 30 December 1993 pertaining to declarations of nationality, and to decisions of naturalisation, redintegration, and of loss, forfeiture and withdrawal of French nationality (amended by decree no. 2010-527 of 20 May 2010) reads as follows:
“In order to make the declaration provided for in Article 21-12 of the Civil Code, the applicant shall provide the following documents:
...
(4) Where the applicant is a child who has been fostered in France and raised by a French national, the certificate of French nationality, civil registration certificates, any documents emanating from the French authorities that show the said foster parent has French nationality and any document proving that the child was placed in foster care in France and has been raised by that person for at least five years; ...”
26. Before the Law of 6 February 2001, the ordinary courts and the Court of Cassation had adopted a flexible position, allowing the conversion of kafala into adoption subject to the consent of the minor’s representative “having regard to the effects attached by French law to adoption and, in particular, in the case of full adoption, to the complete and irrevocable nature of the severance of the relationship between the minor and his blood relatives or the guardianship authorities of his country of origin” (Court of Cassation, First Civil Division, 10 May 1995, no. 93-17634). Following the enactment of the law, the Court of Cassation changed its position, quashing the judgments of courts of appeal which had granted simple adoption in respect of Moroccan and Algerian children in the kafala care of French couples (Court of Cassation, First Civil Division, 10 October 2006, no. 06-15264 and no. 06-15265). That solution has remained constant since then (see, for example, Court of Cassation, First Civil Division, 9 July 2008, no. 07-20279; Court of Cassation, First Civil Division, 28 January 2009, no. 0810034; and more recently, Court of Cassation, First Civil Division, 15 December 2010, no. 0910439).
27. In reports of 2004 and 2005, and in an opinion of 2007, the Children’s Advocate and the High Council for Adoption drew attention to the administrative difficulties encountered for the fostered child (access to visas, welfare rights) as a result of the lack of a legal parent-child relationship with the foster parent and to the difficulties of acquiring nationality. The report on adoption by J.-M. Colombani, deposited on 19 March 2008, noted that any evolution of the legal aspects of the situation appeared difficult and proposed cooperation with the two main countries concerned (Algeria and Morocco) especially with a view to adapting the conditions for the granting of a visa on a family reunification basis. The report explained that the Franco-Algerian Agreement of 27 December 1968 enabled children in kafala care to benefit from a family reunification measure in France provided that the other conditions for such a measure were met (income, housing). In 2010 the French Ombudsman called on the legislature to reconsider the question of kafala, advocated that children placed by judicial decision in kafala care should, at a minimum, be eligible for simple adoption and requested the abolition “of the five-year period of residence required by Article 21-12 of the Civil Code for French nationality to be sought by children placed by judicial decision in kafala care and raised by a French national, the possession of nationality being the only means for such children to become adoptable”. Lastly, two private member’s Bills, one on the adoption of children lawfully placed in kafala care, tabled by Senator A. Milon on 10 March 2011, the other on abandoned children and adoption tabled by Member of Parliament M. Tabarot on 8 February 2012, have been registered with the Presidency of the National Assembly and with that of the Senate. The aim of the Bills is for placement in kafala care by judicial decision or non-judicial decision (the Milon Bill) to be equated with simple adoption.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-58138
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF KAYA v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 2-1 - Life;Article 2 - Right to life);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial);No violation of Article 14+13 - Prohibition of discrimination (Article 13 - Right to an effective remedy);Non-pecuniary damage - award
JUDGES: C. Russo
TEXT: 6. The applicant, Mr Mehmet Kaya, is a Turkish citizen born in 1949. At the time of the events in question (see paragraph 8 below) he was a farmer living in Dolunay village in the district of Lice which is situated in the province of Diyarbakır in south-eastern Turkey. He is currently detained in Diyarbakır E-type Prison (see paragraph 2 above). His brother, Mr Abdülmenaf Kaya, who also lived and farmed in Dolunay before his death, was killed on 25 March 1993 in the vicinity of the village in circumstances which are disputed and which have given rise to the proceedings before the Convention institutions.
7. The original application to the Commission was lodged by the applicant on his own behalf and on behalf of his deceased brother and the widow and seven children of the deceased.
8. The applicant has alleged that his brother was deliberately killed by the security forces on 25 March 1993. The Government on the contrary have contended that Mr Abdülmenaf Kaya was killed in a gun battle between members of the security forces and a group of terrorists who had engaged the security forces on the day in question. They claim that the applicant’s brother was among the assailants. The facts as presented by the parties are set out in Section A below.
The applicant and the Government have defended their opposing accounts of the circumstances surrounding the death of Abdülmenaf Kaya on the basis of documentary material, which appears in Section B. The measures taken by the domestic authorities after 25 March 1993 to investigate the killing of Abdülmenaf Kaya are described in Section C.
The Commission appointed delegates to take oral evidence from key witnesses at a hearing held in Diyarbakır on 9 November 1995. Having regard to the testimony of those witnesses who appeared before the two delegates and to its examination of relevant material, the Commission assessed the evidence and established its conclusions in respect of both the killing of Abdülmenaf Kaya and the adequacy of the domestic investigation into his death. These conclusions and the reasons supporting them are summarised at Section D.
9. The applicant has based his account of the events surrounding the killing of his brother on 25 March 1993 on the evidence of villagers from Çiftlibahçe village whom he alleges witnessed the incident and on the testimony of Mr Hikmet Aksoy, a villager from Dolunay whom he maintains was in the company of his brother on the day the latter was killed. The applicant was not himself an eyewitness to the events.
10. The applicant alleges that on the morning of 25 March 1993 his brother was going to the fields situated 300–400 metres from the village of Çiftlibahçe and four kilometres from his own village of Dolunay together with Hikmet Aksoy. A military operation was being conducted at the time. Hikmet Aksoy turned off the road at one point to tend to his beehives but was detained by soldiers. Seeing this, Abdülmenaf Kaya began to run away as he was frightened that he would also be taken into custody. The soldiers saw him running and opened fire. Abdülmenaf Kaya ran towards Çiftlibahçe village and hid in some bushes. The soldiers gave chase and found him. According to villagers from Çiftlibahçe who witnessed the incident the soldiers killed him, riddling his body with bullets. The soldiers then planted a weapon near his body and took photographs of the scene. The villagers requested that the body be handed over to them. At first the security forces refused but when the villagers insisted that the deceased was not a terrorist but the uncle of one of the inhabitants of a neighbouring village they relented. The villagers were verbally abused and threatened by the security forces.
Hikmet Aksoy was taken into custody and held at Lice gendarmerie headquarters for six days.
11. The Government’s account of the circumstances which led to the death of the applicant’s brother is based on the statements made to the Commission’s delegates at the hearing in Diyarbakır on 9 November 1995 (see paragraph 8 above) by members of the security forces involved in the alleged clash with terrorists on 25 March 1993, namely: Alper Sır, a first lieutenant who had been in charge of the four teams of soldiers involved in the anti-terrorist operation on the day in question; Mr Ahmet Gümüs and Mr Paşa Bülbül, both senior sergeants commanding units involved in the operation; and Sergeant Altan Berk who had been in one of the units.
12. The Government maintain that the security forces arrived in the vicinity of Dolunay on 25 March 1993 having received information that terrorists had been seen in the area. While they were conducting a field search in line formation they came under fire somewhere between Dolunay village and Çiftlibahçe village. The gunfire was directed at them from a rocky area, a creek and from the hills around. The security forces, numbering about sixty, took cover and returned fire using mainly G3 and A4 guns with an effective range of between 300 and 1,000 metres as well as longer range MG3 and K23 machine guns. The firing distance between the security forces and their assailants varied between 300 and 500 metres. The terrorists retreated after about thirty minutes and in the lull a search of the scene of the attack was carried out during which the security forces recovered a dead body alongside of which lay an automatic assault gun (later confirmed as Chinese-made in the ballistics report – see paragraph 32 below) bearing the serial number 59339 together with ammunition including three cartridge clips, three rounds of which were spent and three unused. During the field search considerable traces of blood were found along the route used by the terrorists to make their escape.
13. The team commander, First Lieutenant Alper Sır, secured the area and contacted the office of the public prosecutor of Lice about the incident. Two and a half hours later the public prosecutor, Mr Ekrem Yıldız, and the District Government doctor, Dr Arzu Doğru, arrived at the scene by helicopter accompanied by assistants. An on-the-spot autopsy was performed on the body by Dr Doğru and an autopsy report (see paragraphs 26–30 below) was prepared there and then. The public prosecutor drew up a burial certificate.
14. The body, which was not identified at that stage (see paragraph 15 below), was handed over to First Lieutenant Alper Sır who signed the necessary forms. First Lieutenant Alper Sır’s team subsequently advanced to the nearest village, Çiftlibahçe, where the body of the deceased was handed over to the mayor and two other villagers for burial. They signed for the body.
An incident report was drawn up in a handwritten form on 25 March. It was signed by six members of the security forces, amongst whom Alper Sır, Paşa Bülbül, Ahmet Gümüs and Altan Berk (see paragraph 11 above). The report confirms the above-mentioned account of the events (see paragraphs 12 and 13 above).
15. The identity of the deceased was in fact only discovered some months after the incident. According to a handwritten report signed by three gendarmes and dated 5 May 1993, the investigation which was carried out after the incident revealed that the body was that of Abdülmenaf Kaya, a resident of Dolunay village, who was killed in a clash with security forces conducting an operation in the outskirts of Dolunay.
16. The applicant maintains that he personally confirmed the account of the events as set out above (see paragraph 10) in a statement which he made to Mr Abdullah Koç of the Diyarbakır branch of the Human Rights Association on 31 March 1993, just six days after the fatal shooting and in a supplementary statement which he made to Mr Sedat Aslantaş also of the Diyarbakır branch of the Human Rights Association on 20 September 1993.
17. In his statement the applicant declared that at around 08.00 hours on the morning of 25 March 1993 Abdülmenaf Kaya and Hikmet Aksoy were going to the fields 300–400 metres from Çiftlibahçe village and four kilometres from Dolunay village. At that time a military operation was starting in Boyunlu, Dolunay, Çiftlibahçe and Ormankaya villages. Soldiers participating in the operation took Hikmet Aksoy into custody. Seeing this, Abdülmenaf Kaya started to run whereupon the soldiers opened fire. Abdülmenaf Kaya ran the remaining 300–400 metres to Çiftlibahçe and hid there in the bushes. The soldiers found him and, according to eyewitnesses, fired over 100 bullets into his body, planted a firearm on him and took photographs. They did not want to give the body to the villagers, but the villagers insisted that the deceased was from a neighbouring village and that he was not a terrorist. The soldiers finally gave the body to the villagers.
Later, the commander of the military unit threatened the inhabitants of Çiftlibahçe and Dolunay with the destruction of their villages. Most of the people who came to offer their condolences on the death of Abdülmenaf Kaya suffered abuse of various kinds.
The applicant concluded in his statement that Hikmet Aksoy had been taken into custody and his whereabouts were unknown.
18. In this statement, the applicant declared that Abdülmenaf Kaya was injured while running away and that the security forces followed him to the bushes and killed him there.
The applicant stated that the security forces alone took photographs of the body and when the applicant's family received the body they had to bury it immediately. An autopsy was conducted but the applicant was not given a copy of the autopsy report although he had requested one. The applicant also declared in the statement that the witnesses who saw the body of Abdülmenaf Kaya had left the village, being frightened of the security forces and the intimidation to which they would be subjected if they spoke out publicly. He could not remember any of the names of the villagers who witnessed the killing. The applicant concluded his statement by mentioning that Hikmet Aksoy had been detained at Lice gendarmerie headquarters for six days for questioning and then released.
19. The applicant maintains that his account of the events is confirmed by statements made by Hikmet Aksoy to the authorities in circumstances which would have made it impossible for the latter to know of the content of his own statements (see paragraphs 17 and 18 above) to the Diyarbakır Human Rights Association.
20. This statement was taken following a letter dated 17 May 1994 from the public prosecutor at the Diyarbakır National Security Court (see paragraph 33 below). When Aksoy made the statement, he was detained in Lice Prison for possession of hashish.
21. Like Hikmet Aksoy, Abdülmenaf Kaya was from the village of Dolunay. On 25 March 1993 Hikmet Aksoy left his house to go and tend his beehives which were situated on a piece of land along a road between Dolunay and Çiftlibahçe. When he was leaving Dolunay village, he met Abdülmenaf Kaya who asked if he could accompany him.
When he reached his beehives, he heard some people running and saw about ten soldiers approaching him. The soldiers tied up his hands and asked who he was and why he was wandering about. Two or three minutes later the soldiers noticed Abdülmenaf Kaya running away. The soldiers shouted after him to stop, but he either did not hear them or chose to ignore them as he increased his pace. The lieutenant ordered the soldiers to shoot at Abdülmenaf Kaya's feet. At that time Abdülmenaf Kaya was approximately fifty to sixty metres away.
When the soldiers started shooting at his feet, Abdülmenaf Kaya began to run towards Çiftlibahçe. The soldiers chased him, taking Aksoy along with them. Abdülmenaf Kaya disappeared beyond a slope and when the soldiers reached the slope he was nowhere to be seen. They then came to the ten or so houses which are situated at a short distance from Çiftlibahçe where they encountered some other soldiers who said that they had seen Abdülmenaf Kaya. Aksoy and the soldiers waited in the street for about half an hour. He then heard shots being fired; he estimates that three cartridges were fired. About ten minutes later a helicopter landed but it was too far away from Aksoy for him to be able to see what was happening. The helicopter left again after ten minutes. Later a lieutenant approached Aksoy and told him “we have killed Menaf”.
Aksoy was taken to Lice and kept in custody for fifteen days.
22. Aksoy is said to have made this statement whilst in detention following his arrest on 14 November 1995. According to the applicant the statement cannot be taken to be reliable and must be considered to have been obtained under pressure, as confirmed by Aksoy’s subsequent retraction (see paragraphs 24 and 25 below).
23. Aksoy states how from 1990 he provided food to groups of Workers’ Party of Kurdistan (“PKK”) members who came to his village of Dolunay. From 1991 he was also involved with ensuring the attendance of villagers at funerals of terrorists.
In March 1992 six PKK members came to the village and told him to go and get Abdülmenaf Kaya. After Abdülmenaf Kaya had appeared, he and one of the PKK members talked to each other in a separate place. Two months later three PKK members arrived with a group of ten people. Abdülmenaf Kaya was told to organise the attendance of villagers at a funeral. Two months later the military staged an operation during which Abdülmenaf Kaya died. According to the Government, this last part of his statement is an inaccurate translation of Aksoy’s words. They maintain that Aksoy in fact related that Abdülmenaf Kaya died during an armed clash.
24. In this statement Aksoy retracted the statement of 22 November 1995 (see paragraphs 22 and 23 above), saying that he was forced to sign a statement which the police had written.
25. In the statement he denies the accusations that have been made against him, namely that he acted as a courier for the PKK. No mention is made of Abdülmenaf Kaya in the statement.
26. This report was drawn up by Dr Arzu Doğru who had been flown to the scene of the fatal shooting to perform the field autopsy. It was prepared on-the-spot (see paragraph 13 above).
27. The report states that following a telephone call from the district gendarmerie headquarters on 25 March 1993 to the effect that the body of a person belonging to the PKK terrorist organisation had been captured during a clash, the public prosecutor Ekrem Yıldız and the District Government doctor Arzu Doğru set out by military helicopter, accompanied by a gendarme staff sergeant who was to act as clerk. On arrival at the scene the body was found to be lying on its back in the bushes on the bank of a creek. It was moved to a flat piece of ground. Beside the body there was a Kalashnikov rifle with serial number 8125298 and one round of ammunition containing three full and six empty cartridges. The body is described as being that of a 35–40 year-old man with grey hair and dressed in blue and grey trousers with a cummerbund round the waist, a sleeveless black vest and a striped winter shirt, wearing rubber shoes but no socks. Since there was no one at the scene of the incident who could identify the body, the security forces took photographs from several angles.
28. A large number of bullet entry and exit holes were found in the neck of the body, in the throat, above the heart, in the upper left area of the abdomen, around the navel and around the groin, in the left hip and in the femur of both legs. The bones of the legs were broken as a result of the blows received.
29. The report subsequently mentions that the medical examiner was brought over, that the body was handed over to him and that he made the following statement:
“I established the above findings together with the public prosecutor, and I agree that the findings are as described above. As the result of these findings, the cause of death is clear. There is no need to carry out a classical autopsy. The conditions in the field combined with the fact that we do not have sufficient security or instruments are in any case an impediment to performing a full classical autopsy. From the above findings I have come to the conclusion that the deceased died from cardiovascular insufficiency as a result of the wounds caused by firearms. That is my definite opinion.”
30. The report further states that the rifle and the ammunition were seized for safekeeping as corpus delicti. It concludes by stating that the forensic examination of the body and the autopsy procedure had been completed. The report is signed by, inter alia, First Lieutenant Alper Sır as the person receiving the body.
31. Following the events of 25 March 1993 and the identification of the body as that of Abdülmenaf Kaya (see paragraph 15 above), a decision of non-jurisdiction was issued on 20 July 1993 by Ekrem Yıldız, public prosecutor at Lice, and the file was transferred to the public prosecutor at the Diyarbakır National Security Court.
In his decision, the public prosecutor stated that “the preliminary documents have been examined” in respect of a crime committed by Abdülmenaf Kaya who, together with other PKK terrorists, took part on 25 March 1993 in an armed clash with the security forces The decision describes how the body of the deceased was recovered by the security forces after the clash together with an assault rifle and spent ammunition. The decision notes that the ballistics report on the weapon was not yet available. The public prosecutor concluded that, having regard to the aims of the terrorists and to the fact that the attack took place in an area subject to emergency rule, the investigation should be carried out by the prosecuting authorities of the National Security Court on account of the fact that he lacked jurisdiction in the matter.
The National Security Court in turn transmitted the file to the Lice District Administrative Council for investigation.
32. An expert report on the weapon and ammunition found beside Abdülmenaf Kaya’s body was drawn up by the Diyarbakır police forensic laboratory on 23 June 1993. The report, which was not available at the time the public prosecutor issued his decision of non-jurisdiction (see paragraph 31 above), stated that the weapon was a Chinese-made Kalashnikov automatic rifle serial no. 8125298/59339 and that the three spent bullets examined had been fired from the rifle “which was found with the dead terrorist”.
33. On 17 June 1994 a public prosecutor, apparently at the request of the Principal Public Prosecutor at the Diyarbakır National Security Court, took a statement in relation to the death of Abdülmenaf Kaya from Hikmet Aksoy while the latter was detained at Lice (see paragraphs 20 and 21 above).
34. During the proceedings before the Commission, the Government were requested to supply the photographs which were allegedly appended to the autopsy report (see paragraph 27 above). The authorities have so far been unable to retrieve the photographs.
35. At the hearing held before two Commission delegates in Diyarbakır on 9 November 1995 oral evidence was taken from five witnesses: (i) Dr Arzu Doğru, who conducted the field autopsy on the deceased; (ii) First Lieutenant Alper Sır; (iii) Senior Sergeant Ahmet Gümüs; (iv) Senior Sergeant Paşa Bülbül; and (v) Sergeant Altan Berk.
36. The applicant did not attend the hearing. He notified the Commission on 1 November 1995 that he feared reprisals if he were to give evidence at the hearing. The nature of his fears was not specified. Nor did Mr Hikmet Aksoy appear. In a letter dated 8 November 1995 Mr Aksoy, through the intermediary of the Diyarbakır Human Rights Association, informed the Commission that he and his family had been subjected to pressure by the police in order to prevent him from giving evidence at the hearing and he would not therefore be attending.
37. Moreover, although summoned to give evidence, neither the Lice public prosecutor, Mr Ekrem Yıldız, nor the public prosecutor attached to the Diyarbakır National Security Court attended the hearing. The former was unavailable on account of other commitments and the latter had taken the view that he would be unable to give any relevant information to the delegates on the pursuit of the investigation into Abdülmenaf Kaya’s death since he had only become involved in the investigation after jurisdiction had been transferred to the Diyarbakır National Security Court.
38. The Commission assessed the documentary and oral evidence before it on the basis of the evidentiary standard of proof beyond reasonable doubt, taking into account the fact that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this respect it noted that the failure of the applicant and of Mr Hikmet Aksoy as well as of the two public prosecutors to give evidence at the hearing in Diyarbakır had a considerable impact on the determination of whether the evidentiary standard had been attained. The Commission noted however that the applicant was not a direct witness to the events and his testimony would therefore have been of limited evidentiary value. On the other hand, the presence of Hikmet Aksoy would have been valuable since he claimed to be an eyewitness and his failure to attend meant that he could not be cross-examined with a view to assessing his credibility and the probative value of his evidence. Further, the absence of any detailed investigation at the domestic level into the circumstances surrounding the death of the applicant’s brother (see paragraphs 31–34 above) meant that the Commission had to reach its conclusions on the basis of the oral and documentary evidence which it itself had collected in accordance with its powers under Article 28 § 1 (a) of the Convention.
39. The Commission’s assessment of the evidence concerning the death of Abdülmenaf Kaya can be summarised as follows:
(i) The only clear and undisputed facts were that on 25 March 1993 the body of Abdülmenaf Kaya was found lying in the bushes on the bank of a creek near the village of Dolunay. The body was dressed in blue and grey trousers with a cummerbund round the waist, a sleeveless black vest and a striped winter shirt, wearing rubber shoes but not socks. A large number of bullet entry and exit holes were found in the neck of the body, in the throat, above the heart, in the upper left area of the abdomen, around the navel and the groin, in the left hip and in the femur of both legs. The bones of the legs were broken as a result of the impact of the bullets. The total number of bullet wounds is not recorded in the autopsy report but was estimated by Dr Arzu Doğru in his oral evidence to the delegates as seven or eight. It was also not in dispute that an autopsy, consisting only of an external examination, was carried out on the body by Dr Doğru at or near the site of the killing and that subsequently the body was handed over on the instructions of First Lieutenant Alper Sır to three villagers from the nearby Çiftlibahçe village.
(ii) The accounts of the clash given by the soldiers whose evidence was heard (see paragraph 35 above), while deficient in detail, were broadly consistent and in line with the Government’s version of the events (see paragraphs 11–15 above).
(iii) There were however a number of factors which gave reason to doubt the Government’s account of the events: there was only one casualty despite the number of soldiers (50–60) and PKK terrorists (20–35) engaged in the gun battle which reportedly lasted between thirty and sixty minutes; the extent and severity of the bullet wounds to the deceased’s body having regard to the range of the soldiers’ weapons (400–600 metres) and the firing distance between the soldiers and their attackers (300–1,000 metres); the fact that there were bullet wounds to all parts of the body suggested that the deceased must have been fully exposed to gunfire whereas neither he nor any of the other terrorists had actually been seen during the clash; the deceased’s clothing was not typical of PKK mountain apparel; the body was handed over to three unknown villagers even though he was considered to have been an active terrorist; and the absence of any forensic evidence linking the deceased to the weapon found beside his body.
40. While the Commission took the view that the matters referred to above (see paragraph 39 (iii)) gave rise to concern and were difficult to reconcile with the undisputed facts, it could not be concluded on the basis of a general assessment of the written and oral evidence that it was proved beyond reasonable doubt that Abdülmenaf Kaya was deliberately killed by soldiers in the circumstances alleged by the applicant.
41. The Commission’s assessment of the inquiries and investigation into the death of Abdülmenaf Kaya was made in the absence of any detailed investigation by the authorities into the events of 25 March 1993 and without the delegates having had the benefit of the oral evidence of the key public prosecutors responsible at various stages for the investigation (see paragraph 37 above). The Commission considered the reasons given for their non-attendance at the delegates’ hearing unconvincing.
The Commission found that the autopsy performed on the body was defective and incomplete. In the first place, no attempt had been made to record the number of bullets which struck the deceased or the distance from which the bullets had been fired and the autopsy report was imprecise as regards the location of the entry and exit wounds. Secondly, no tests for fingerprints or gunpowder traces on the deceased’s clothes or body were made at the scene. While acknowledging that the autopsy and the forensic examination may have been carried out under difficult field conditions in view of the security situation, the Commission found it remarkable that the body was not flown to a place where further analyses could have been made of, for example, the bullets lodged in the body. The handing over of the body to the villagers precluded any further examination. Thirdly, it appeared to the Commission that the authorities took it for granted that the deceased was a PKK terrorist and they did not consider it necessary to examine seriously the possibility that he had been killed in circumstances engaging the responsibility of the security forces. In this respect, the Commission had regard to the mention made in the autopsy report that the deceased was a PKK terrorist, to the wording of the non-jurisdiction decision issued by the public prosecutor, Mr Ekrem Yıldız, (see paragraph 31 above) and to the apparent failure of the public prosecutor attached to the Diyarbakır National Security Court to put any questions to Hikmet Aksoy about the deceased’s possible involvement with the PKK (see paragraphs 20 and 21 above).
42. The Government submitted before the Commission and the Court that the following domestic law is relevant to the case.
43. Pursuant to Article 23 of Decree no. 285 (instituting the state of emergency), security forces, special forces on duty and members of the armed forces are, in the circumstances stipulated in the relevant Act, empowered to use their weapons when carrying out their duties. The security forces thus empowered may open fire and shoot at a person if a command to surrender is not accepted, is disobeyed or met with counter-fire or if they have to act in self-defence.
44. The plea of self-defence is enacted in Article 49 of the Turkish Criminal Code which, in so far as relevant, provides:
“No punishment shall be imposed if the perpetrator acted ...
2. in immediate necessity to repel an unjust assault against his own or another's person or chastity.”
45. The Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). In respect of these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153), the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165).
46. The applicant has drawn attention to the provisions of Article 4 § 1 of Decree no. 285 which requires a public prosecutor to transfer authority for the investigation of allegations against the security forces to local administrative boards or councils. According to the applicant this provision is immune from judicial challenge, being contained in a decree having the force of law. An identical provision in section 15(3) of Law no. 3713 (the Prevention of Terrorism Act 1981) was in fact declared unconstitutional by the Supreme Court in a decision of 31 March 1992. The applicant contends that the administrative boards, which are composed of appointed civil servants with no legal training, lack independence and entrust investigations into alleged wrongdoing by members of the security forces to a senior member of the security forces. The investigator makes a recommendation as to whether or not a prosecution should be initiated and this recommendation is endorsed by the administrative board whose decisions are subject to review by the Supreme Administrative Court.
47. The Government have provided the Court with a description of the relationship between criminal and civil liability under Turkish law.
When a civil court decides on whether a person was at fault in respect of the commission of a particular act it is not bound by criminal-law considerations. The judge in a civil case is not bound by the rules of the criminal law on liability nor by the decision of a criminal court to acquit a person of the wrongdoing which forms the object of civil-law proceedings. It follows from Article 53 of the Turkish Code on Obligations that the judge in civil matters does not need to adopt the findings of a criminal court as regards either the absence of fault or the existence and degree of fault.
Article 53 provides:
“The court is not bound by the provisions of the penal laws concerning criminal responsibility nor by an acquittal by a criminal court in deciding questions of fault or capacity to act.”
48. Under Turkish law, considerations of crime and fault are not the same as in civil law. Criminal liability comprises the imposition of sanctions whereas civil law is only concerned with the payment of compensation to a plaintiff who can establish fault on the part of the defendant. Liabilities in criminal and civil-law proceedings are determined at different levels and in accordance with different criteria. Under the criminal law, intent on the part of the accused has to be established; in principle it does not consider negligence as a fault in terms of criminal liability. The position is different under civil law.
49. The criminal court may decide the criminal aspects of a case as well as its civil aspects if requested by the aggrieved party under the Law on Criminal Procedure. Thus, the criminal court may make an award of damages. In such a case the criminal court’s decision on the payment of compensation is binding.
50. A civil court dealing with a claim for compensation against a defendant does not need to await a preliminary ruling from a criminal court hearing the criminal-law aspects of the case. It is only where a criminal court has ruled that an accused has committed an act amounting to an offence that a civil court would be bound by that finding. However if the criminal court has acquitted an accused person on the ground that the evidence against him was not sufficient to sustain a conviction, the civil court would not be bound by that decision if the act of which he was accused formed the object of civil litigation. The issue of civil-law liability would be determined in accordance with civil rules and procedures. On this latter point a court of appeal ruled in 1971 that:
“The fact that the criminal proceedings resulted in the acquittal of the suspect or the fact that the wrongful act had been committed by many people [and] it is not possible to determine who committed it shall not bind the civil court judge in a compensation case opened afterwards.”
51. In his application to the Commission (no. 22729/93) introduced on 23 September 1993, the applicant complained that his brother, Abdülmenaf Kaya, was unlawfully killed by the security forces on 25 March 1993 and that the circumstances surrounding his killing had not been adequately investigated by the authorities. The applicant alleged violations of Articles 2, 3, 6, 13 and 14 of the Convention.
52. The Commission declared the application admissible on 20 February 1995. In its report of 24 October 1996 (Article 31), it expressed the opinion by twenty-seven votes to three that there had been a violation of Article 2 of the Convention on account of the inadequacy of the investigation conducted by the authorities into the death of the applicant’s brother; unanimously, that there had been no violation of Article 3 of the Convention; by twenty-seven votes to three that there had been a violation of Article 6 of the Convention; by twenty-eight votes to two that no separate issue arose under Article 13 of the Convention; and, unanimously, that there had been no violation of Article 14 of the Convention. The full text of the Commission's opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment.
VIOLATED_ARTICLES: 13
2
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 13
14
2
6
NON_VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-23925
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ATIK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant, Huseyin Atik, is a Turkish national, who was born in 1957 and lives in Hamburg. He was represented before the Court by Mr Gerhard Strate and Mr Klaus Ulrich Ventzke, lawyers practising in Hamburg.
On 6 October 1995 the Hamburg Regional Court (Landgericht) convicted the applicant of drug trafficking and sentenced him to nine years' imprisonment.
Following his conviction he was erving his sentence. As from 1996, he was continuously contacted by one Y., an undercover agent acting with the authorisation of the Hamburg police, who passed himself off as a potential purchaser of a larger amount of cocaine.
At the applicant's request, the undercover agent contacted the applicant's counsel with a view to applying for the reopening of the criminal proceedings. The undercover agent met the counsel several times accompanied by other persons, however at one occasion – contrary to the instructions given by the Hamburg police – on his own initiative in the absence of other persons. The last visit took place on 3 November 1998.
Thereafter the applicant informed the undercover agent that his former cell-mate T. could arrange for the delivery of a large quantity of cocaine for a price of 55,000 German Marks (DEM) per kilogram. After consulting the applicant, T. met the undercover agent in his flat on 4 November 1998 in order to hand over almost 12 kg of cocaine. While carrying out the transaction, he was arrested by the police.
By a judgment of 17 June 1999, the Hamburg Regional Court convicted the applicant of drug trafficking and sentenced him to four years' and six months' imprisonment. The applicant lodged an appeal on points of law against this judgment. He complained in particular that the Regional Court had not discontinued the proceedings having regard to the circumstances in which the undercover agent had contacted his lawyer.
On 12 January 2000, the Federal Court of Justice (Bundesgerichtshof) rejected the applicant's appeal on points of law. It expressed serious concern about the involvement of the undercover agent in the relationship between the defence counsel and the applicant, but found that in the present case there was nothing to show that during these meetings evidence had been obtained to the applicant's detriment. Moreover, the Hamburg Regional Court had sufficiently taken into account the intervention of the undercover agent when fixing the sentence.
By a decision of 7 June 2000, notified to the applicant's counsel on 16 June 2000, the Federal Constitutional Court (Bundesverfassungsgericht), sitting in a panel of three judges, declined to entertain the applicant's constitutional complaint. It found that it did not raise any fundamental constitutional issues. Furthermore it was not relevant for the protection of the applicant's basic rights since it had no prospects of success. The constitutional complaint was inadmissible as the applicant failed to substantiate the alleged violation of his constitutional rights and, consequently, did not meet the formal requirements under Articles 23 § 1 and 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). Moreover, the Federal Constitutional Court found that there was nothing to suggest that the applicant's basic or similar rights had been breached. The undercover agent had met the applicant's lawyer for the last time on 3 November 1998 in connection with the request for a retrial. On 4 November 1998 the drug deal had been carried out. There was no indication and it had not been alleged that after that date the undercover agent had performed further activities, in particular contacted the applicant's lawyer. Therefore at no time the applicant's right to an effective exercise of his defence rights had been infringed.


ITEMID: 001-89827
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BIRIUK v. LITHUANIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1970 and lives in the village of Kraštų, Pasvalys district.
6. On 31 January 2001 the biggest Lithuanian daily newspaper, Lietuvos Rytas, published a front page article entitled “Pasvalys villages paralysed by the fear of death: residents of a remote Lithuanian area shackled by the AIDS threat” (Pasvalio kaimus paralyžavo mirties baimė: nuošalios Lietuvos vietovės gyventojai atsidūrė AIDS grėsmės gniaužtuose). The following statements of particular concern to the applicant were made in the article:
“Notoriously promiscuous thirty-year old Gitana Biriuk is already sick with this fatal disease ...
An HIV-positive person lives in a village in Pajiešmenys area. This [is] G. Biriuk, an unmarried mother of two children ...
G. Biriuk was infected with HIV by drug users who come to visit her from Biržai ...
A man who had wandered in from somewhere lived in Gitana’s house for a few years. After some time he went away and left “a present” [reference to HIV] for the woman...
Why is there a great demand for condoms – in the Kraštų village there lives an HIV-positive person. It is an unmarried mother of two children, G. Biriuk... the women in nearby villages are afraid that their husbands will bring the deadly virus home...
Gitana was very promiscuous. She was always looking for men and used to find them easily...
Medics at the Pasvalys hospital confirmed that G. Biriuk is HIV-positive. The woman was taken to hospital with tuberculosis. Blood tests revealed that she was HIV-positive ...
P. Januškevičius, former partner of G. Biriuk... did not hide the fact that he had lived with Gitana for a whole year and they had had intercourse without condoms...
When [G. Biriuk] was placed in hospital, people said that she looked scary, that she was wizened and therefore was going to die. But the woman recovered...
The woman [G. Biriuk] has already been diagnosed with AIDS - this is the last stage of the infection. The disease can last from a year up to ten years but finally ends with death.”
7. The applicant instituted proceedings in the Vilnius City Third District Court, suing the newspaper for non-pecuniary damages in the amount of 50,000 Lithuanian litai (LTL, or about 14,460 euro (EUR)) for a breach of her right to privacy. She referred, inter alia, to Article 8 of the Convention.
8. On 15 April 2002 the court ruled in favour of the applicant. The court found that the information about the applicant’s private life had been collected and published without her consent. The data about her private life did not correspond to any legitimate public interest. The article had been published on the front page of the newspaper as the sensation of the day, with the aim of increasing sales. The Vilnius City Third District Court noted that publication had humiliated her and caused her significant non-pecuniary damage. The court concluded that, by printing the article and doing so in a humiliating manner, the newspaper had deliberately sought the negative consequences or had intentionally allowed for such consequences. Taking into account the above considerations, the court applied Article 54 § 1 of the Law on the Provision of Information to the Public, multiplied the statutory sum of LTL 10,000 (about EUR 2,896) by three, and awarded the applicant LTL 30,000 (about EUR 8,676) in compensation for non-pecuniary damage.
9. The applicant appealed to the Vilnius Regional Court, requesting the maximum award under Article 54 § 1 of the said Law, namely LTL 50,000. On 17 June 2002 the appellate court reduced the award to LTL 10,000 (about EUR 2,892). It reasoned that the applicant had not proved that the newspaper had published the information about her intentionally and that the first-instance court had had no grounds to triple the statutory sum.
10. On 15 January 2003 the Supreme Court upheld the appellate court’s decision. It stated that an award in excess of LTL 10,000 under Article 54 § 1 of the Law on the Provision of Information to the Public could only be granted if it had been established that the information had been published intentionally. The court agreed with the reasoning of the appellate court that, for a breach of privacy, intent was to be regarded as proven if the facts about someone’s private life were disseminated with the purpose of degrading that person (siekant jį sumenkinti). The Supreme Court held, inter alia, as follows:
“It is to be stressed that the problem of the interaction between persons who are sick with AIDS and the others is relevant and should be discussed. The relations of the sick with the persons who live nearby are based on the knowledge about the disease we have today and on the understanding of the related dangers. The nature of the disease and the known data about it reasonably raise concern on the part of the people who live in close proximity, to many of whom this question becomes pertinent not from curiosity, but from concern for their personal safety. These are significant arguments, which demonstrate great concern in society, and which attest to the relevance of the question. It should be taken into account that persons who live in proximity [to the applicant] have expressed concern for their safety, which is endangered by the [applicant’s] behaviour, which does not always meet moral standards. In such circumstances the publication of data which breaches a [person’s] privacy, even though such publication violates the [legal] norms which protect privacy, cannot be regarded as an end in itself or intentional, which would be a basis for the application of much stricter liability. [Therefore] the amount of LTL 10,000 as compensation for non-pecuniary damage is considered sufficient”.
11. Relying on the foregoing considerations, the Supreme Court dismissed the applicant’s cassation appeal.
12. Article 22 of the Constitution of the Republic of Lithuania provides as relevant:
“The private life of a human being shall be inviolable... The law and the courts shall protect everyone from arbitrary or unlawful interference in his private and family life, or from encroachment upon his honour and dignity.“
13. Article 30 of the Constitution provides that compensation for material and non-pecuniary damage suffered by a person shall be established by law.
14. According to Article 71 of the Civil Code applicable at the material time, concerning compensation for non-pecuniary damage:
“Mass media, organisations or persons who publish false information degrading the honour and dignity of a person, and also information about a person’s private life without the consent of that person, shall pay compensation for non-pecuniary damage. The courts will assess the amount of the compensation, between five hundred and ten thousand litai.
In assessing monetary compensation for the non-pecuniary damage caused, the courts shall take into consideration the financial status of the person who has caused the damage, the gravity and consequences of the violation and other circumstances important to the case.”
15. Article 6.250 of the Civil Code, concerning non-pecuniary damage and in force since 1 July 2001, reads as follows:
“1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional experiences, inconvenience, mental shock, emotional depression, humiliation, deterioration of reputation, diminution of opportunities to associate with others, and so on, evaluated by a court in terms of money.
2. Non-pecuniary damage shall be compensated only in cases provided for by laws. Non-pecuniary damage shall be compensated in all cases where it has been incurred due to crime, health impairment or deprivation of life, as well as in other cases provided for by laws. The courts, in assessing the amount of non-pecuniary damage, shall take into consideration the consequences of the damage sustained, the gravity of the fault of the person by whom the damage is caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, and any other circumstances of importance for the case, as well as the criteria of good faith, justice and reasonableness.”
16. The relevant provisions of the Law on the Provision of Information to the Public at the material time read as follows:
“1. In producing and disseminating public information, it is mandatory to ensure a person’s right to have his personal and family life respected.
2. Information about a person’s private life may be published, with the exception of the instances stipulated in paragraph three of this Article, only with the consent of that person and if publication of the information does not cause undue harm to that individual.
3. Information concerning private life may be published without the person’s consent in those cases when publication of the information does not cause harm to the person or when the information assists in uncovering violations of the law or crimes, as well as when the information is presented in the examination of the case in an open court process. ...”
“1. A producer and (or) disseminator of public information who publishes information about an individual’s private life ... without the natural person’s consent, also a producer who publishes false information degrading to the honour and dignity of the person, shall pay compensation for non-pecuniary damage to that person in a manner set forth by law. The amount of the compensation for non-pecuniary damage may not be in excess of LTL 10,000, except for cases when the court establishes that false information degrading the honour and dignity of a person has been published intentionally. In such cases the amount may, by a decision of a court, be increased, but not more than fivefold. In each case the amount awarded to the plaintiff may not be in excess of five percent of the annual income of the publisher and (or) disseminator of public information. ...
4. In determining the amount of monetary compensation for non-pecuniary damage, the courts shall take into account the financial circumstances of the person who caused the damage, the gravity of the offence, its consequences and other significant circumstances. ...”
17. Article 52 of the Law on the Health System, restricting the disclosure of information about a person’s health, at the material time provided as follows:
“1. Restriction on the disclosure of information about the state of health of a person is intended to guarantee the inviolability of his private life and state of health.
2. It shall be forbidden to make public in the mass media information about the state of health of a person without his written authorisation...
3. Individual or public health care specialists shall be restricted ... from violating the confidentiality of the information about an individual’s private life or personal health ... which they have acquired while performing professional duties.”
18. The Ruling of the Senate of Judges of the Supreme Court of Lithuania of 15 May 1998 no. 1 “On the application of Articles 7 and 71 of the Civil Code and the Law on the Provision of Information to the Public in the case-law of the courts examining civil cases on the protection of honour and dignity”, in so far as relevant, provided as follows:
“18. ... Privacy of the person should be protected when it is established that information about a person’s private life has been disseminated without his or her consent and in the absence of lawful public interest. Lawful public interest is to be understood as the right of society to receive information about the private life of a person ... where it is necessary to protect the rights and freedoms of others from negative impact. The rights of the person are protected irrespective of whether the disseminated information degrades his or her honour and dignity.”
19. The Ruling further stipulated that the producer or disseminator of public information who publishes information about an individual’s private life without his or her consent must compensate for the non-pecuniary damage caused. When assessing the monetary compensation for such damage, the courts should take into consideration the guilt of the defendant, his or her behaviour after the dissemination of the information, the negative impact on the plaintiff’s professional or social life and the form and manner in which the information was disseminated, as well as its content and other relevant circumstances. The monetary compensation could not exceed the limits provided by Article 71 of the Civil Code and Article 54 of the Law on the Provision of Information to the Public.
20. On 23 January 1970 the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a Declaration on Mass Communication Media and Human Rights, the relevant part of which reads as follows:
“1. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter.
2. The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts ... protection from disclosure of information given or received by the individual confidentially...
7. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.”
21. Recommendation no. R (89) 14 on “The ethical issues of HIV infection in the health care and social settings”, adopted by the Committee of Ministers of the Council of Europe on 24 October 1989 reads, in so far as relevant to the present case, as follows:
“Public health authorities are recommended to:
in relation to reporting of cases:
ensure that the reporting of AIDS cases ... is used for epidemiological purposes only and therefore carried out in strict compliance with appropriate confidentiality regulations and in particular that data is transmitted on a non-identifiable basis to avoid any possible discriminatory use of sensitive health related data, to avoid discouraging individuals from seeking voluntary testing,
in relation to the patient-health care worker relationship:
strongly support respect for confidentiality, if necessary by introducing specific policies and by promoting educational programs for health care workers to clarify confidentiality issues in relation to HIV infection.”
VIOLATED_ARTICLES: 8


ITEMID: 001-82338
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SULTANI v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Art. 3;No violation of P4-4
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa
TEXT: 7. The applicant was born in 1985 and lives in Paris.
8. The applicant comes from the Afghan province of Baghlan and is a member of the Tajik ethnic group. His family were land-owning farmers. His father was a member of the communist party and was a party representative in Ghuri. After the fall of the communist regime of Mohamad Najibullah, this political involvement by a Tajik was regarded as high treason. In particular, the applicant’s family faced hostility from a former warlord who had gone on to become a prominent local figure, Arab Nourak. The latter, a Pashtun and a former member of Jamiat-e Islami (an Islamic political party), appropriated the family’s possessions in 1992. At the end of 1992 a grenade was thrown into the applicant’s family home, and he sustained injuries to the head and thigh. The applicant claimed to have scars on his body as a result of that event. His father allegedly received a knee injury. The case file included a medical certificate drawn up on 7 April 2006 by a doctor at the Medical Committee for Exiles at the Bicêtre Hospital, Paris, who concluded:
“... Mr Sultani informs me that he is from the Baghlan region. Following a conflict between his father and a local chief, a grenade was thrown at the family home. Mr Sultani states that he sustained injuries to the head and left thigh.
In the course of the examination, several scars on the left parietal area of the scalp and a scar covering about a third of the outer left thigh were found.
...
The findings of the clinical examination are compatible with the patient’s statements.”
9. The applicant and his family left Afghanistan for Pakistan, staying first in Sorkhab, then in Quetta.
10. The applicant claimed that he arrived in France in December 2002. On 25 March 2003 he applied for asylum. By a decision of 6 August 2003, the French Office for the Protection of Refugees and Stateless Persons (“the OFPRA”) refused his application on the following grounds:
“The applicant, who was questioned at the Office, referred to land disputes between his father and a local commander and stated that he had been obliged to leave his country of origin in 1991 or 1992. He initially lived in a camp on the Afghan-Pakistani border for several years before settling with his family in Quetta.
Even supposing they were substantiated, and given the grounds having occasioned them, the time that has elapsed and the political changes that have since occurred in Afghanistan, the circumstances described cannot, however, justify the applicant’s refusal to return and to claim protection from the current authorities in his country of origin.”
11. That decision was upheld on 13 May 2004 by the Refugee Appeals Board. On 5 July 2004 the applicant was directed to leave French territory.
12. In December 2004 the applicant’s family was repatriated from Pakistan to their village of origin. They again encountered hostility from Arab Nourak who, supported by the new governor of Baghlan Province (also a member of a radical Islamic party and, like Mr Nourak, an ethnic Pashtun), refused to return their land. According to the applicant, his family were again obliged to seek refuge in the Pakistani town of Quetta. The applicant alleged that he had heard nothing from his relatives since that time.
13. In the light of those events, the applicant alleged that he had intended to lodge a fresh application for asylum in France, but that he had been waiting to obtain further news from his family.
14. On 21 September 2005 the applicant was arrested at the Square de Verdun in Paris, a place where Afghan nationals newly arrived in France frequently gathered. He was released on that occasion.
15. On 14 December 2005 he was again arrested at the same location with other Afghan nationals. He alleged that the French police had carried out targeted arrests based on the nationality of those concerned, with a view to organising a “grouped flight” to deport them.
16. On the same day he was made the subject of a prefectoral removal order, of a decision stipulating the country of destination and of an administrative detention order.
17. The applicant applied to the Paris Administrative Court to have set aside the prefectoral order of 14 December 2005 and the separate decision naming Afghanistan as the country of destination. By a judgment of 17 December 2005, the judge appointed by the President of the Administrative Court dismissed the applicant’s request. The applicant appealed to the Paris Administrative Court of Appeal.
18. On 16 December 2005, during a hearing with the liberties and detention judge at the Paris tribunal de grande instance, the applicant stated: “I do not wish to return to my country of origin because I am afraid for my life. I have new information to include in my request for political asylum. I would like to see a doctor.”
19. In an order issued on the same date, the liberties and detention judge ordered that the administrative detention be extended by fifteen days, until 5 p.m. on 31 December 2005. The judge also noted:
“the detainee raised complaints of a medical nature... and requested political asylum; ...
We order that the detainee be examined by a doctor from the forensic medicine unit at the Hôtel Dieu Hospital in order to determine whether his state of health is compatible with the detention and expulsion order.”
20. On 19 December 2005 the applicant and three other Afghan nationals (G., S. and D.) lodged an application with the Court, together with a request for application of Rule 39 of the Rules of Court.
21. On 20 December 2005 the Paris Police Commissioner’s Office informed the applicant that he had been refused leave to remain, in a document dated 16 December 2005 and worded as follows:
“You were arrested on 14 December 2005 and found to be in contravention of the legislation on aliens; you have now requested that your application for asylum be re-examined.
This request, submitted out of time and in support of your [continued] detention, is clearly intended to circumvent an order for removal from French territory.
In consequence, and in accordance with Articles L. 742-3, L. 742-6 of the Code on the conditions of entry and residence of aliens and the right of asylum, I refuse to grant you leave to remain. ...
The re-examination of your request for refugee status will therefore be given priority treatment by the French Office for the Protection of Refugees and Stateless Persons under Articles L. 313-3, L. 313-5, L. 313-6, L. 313-7, L. 313-8, L. 313-9, L. 313-10 of the above-mentioned Code.
Finally, an administrative measure of expulsion by prefectoral order may be taken in application of Articles L. 511-1 and L. 512-1 of the above-mentioned Code; however, this may not be enforced prior to the Office’s decision (Article L. 741-5 of the above-mentioned Code).”
22. On the same date the acting President of the Second Section decided to indicate to the French Government, under Rule 39 of the Rules of Court, that it was desirable to refrain from deporting the applicant to Afghanistan. He also invited the Government to keep the Court informed of the applicant’s situation with regard to the proceedings on his asylum application and the medical examination ordered by the liberties and detention judge. In reply, the Government indicated that the applicant had been released from the Vincennes Administrative Detention Centre on 21 December 2005 and was free to circulate on French territory.
23. On 20 December 2005 a grouped flight left France for Afghanistan.
24. On 5 January 2006 the Court decided to extend the interim measure indicated under Rule 39 until further notice.
25. On 6 January 2006 the prefecture summoned the applicant to an interview, scheduled for 13 January, to examine his administrative situation with a view to enforcement of the removal measure.
26. On 9 January 2006 the OFPRA registered a second asylum application from the applicant. On 10 January 2006 the Director General of the OFPRA refused it on the following grounds:
“In support of his application,
Mr Noor Mohammad SULTANI
Refers to the general situation in Afghanistan.
In itself, however, this evidence is not sufficient to substantiate the fears of persecution or the existence of serious threats within the meaning of Articles L. 711-1 and L. 721-1 of the Code on the conditions of entry and residence of aliens and the right of asylum. Accordingly, it is not admissible.
He submits a statement from an association for refugees.
This, however, is a new item of evidence which refers to events that were previously argued. Accordingly, it is not admissible.
He further claims that his family has again been persecuted by the henchmen of Arab Nourak, an influential local military leader in the Baghlan region, since their return to the Afghan territory. It is claimed that a cousin is currently being detained.
However, the applicant’s statements, which are brief and vague, are not supported by any credible or decisive evidence capable of proving that the alleged facts are true and that his fears are well-founded.”
27. On 10 February 2006 the applicant appealed against that decision to the Refugee Appeals Board.
28. On 22 March and 11 May 2006 the applicant submitted the additional information requested by the Court and confirmed that he wished to pursue the application.
29. On 4 July 2006 the Paris Administrative Court of Appeal dismissed the applicant’s appeal against the Paris Administrative Court’s judgment of 17 December 2005. It found, inter alia:
“On the lawfulness of the removal order:
... Firstly, contrary to what is alleged by Mr Sultani, the expulsion order dated 14 December 2005, which sets out the considerations of law and of fact on which it is based, is supported by sufficient grounds; the prefect, who indicated that the appellant’s situation had been scrutinised, particularly with regard to his right to family life, examined the appellant’s personal situation;
Secondly, the disputed removal order, the sole purpose of which is the removal from the territory of Mr Sultani, is not collective in nature; in any event, it does not therefore contravene the requirements of Article 4 of Protocol No. 4 to the European Convention on Human Rights ... which prohibits collective expulsions; nor can Mr Sultani validly rely either on the provisions of Article 6 of the Convention ..., which are not applicable to appeal judgments against removal orders, or on the provisions of Article 1 of Protocol No. 7 to the said Convention, published by decree of 24 January 1989, which are applicable only to aliens residing lawfully on the territory of a State;
On the lawfulness of the additional decision naming the country of destination:
Mr Sultani’s request for political asylum has been ... refused by decisions of the French Office for the Protection of Refugees and Stateless Persons and the Refugee Appeals Board; his second request for asylum, submitted on 9 January 2006, was rejected by a new decision by the Office on 10 January 2006; although Mr Sultani refers to the risk that he would run in the event of a return to Afghanistan, given the situation of civil war that exists in that country, that circumstance is not in itself capable of substantiating the risks alleged by the appellant in the event of return to his country of origin; he has not submitted any evidence concerning his personal situation which would make it possible to consider as substantiated [his argument] that there are circumstances which would constitute a legal impediment to expulsion to his country of origin; ...”
...
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-122702
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: GAJŠEK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: The applicant, Mr Jožef Gajšek, is a Slovenian national, who was born in 1962 and lives in Slovenska Bistrica. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper.
The Slovenian Government (“the Government”) are represented by their Agent, Mrs N. Aleš Verdir.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was serving a sentence in the closed section of Dob Prison from 7 June 2007 until 17 December 2010.
As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011.
From 7 June 2007 to 7 September 2007 and from 10 June 2008 to 22 September 2008 the applicant was held in a cell no 5, Block 2 which measured 59.25 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). He was later transferred several times. From 8 September 2007 to 10 June 2008 he was held in a cell no 59, Block 1 which measured 14.91 square metres and held three inmates (4.97 square metres of personal space available to each inmate). From 22 September 2008 to 25 October 2010 he was held in a cell no 8/4, Block 2 which measured 16.47 square metres and held three inmates (5.49 square metres of personal space available to each inmate). From 25 October 2010 to 17 December 2010 he was in a single cell which measured 7.14 to 7.39 square metres.
According to the Government’s submissions dated 23 December 2010 the applicant sustained injuries in two physical conflicts with another prisoner on 7 September 2007 and 31 December 2007. Due to injuries suffered on 7 September 2007 he was hospitalised for two days. In connection to this incident the applicant was found guilty of a serious disciplinary offence. After his appeal, where he stated that the tension with the other prisoner was calmed down with assistance of prison staff, the Ministry of Justice found that the conflict could have been prevented or avoided if the applicant behaved appropriately. Further, according to a doctor’s report dated 13 August 2010 the applicant was treated on one hundred and twelve occasions for different medical problems and was regularly treated by a psychiatrist. According to the Government’s submissions dated 17 June 2011 the applicant visited a doctor on five occasions for treatment of his leg injury. As regards his allegations about an injury sustained on 25 October 2010, there is no note on it in his medical file. As regards his physical conflicts on 7 September 2007 and 25 October 2010, the Government submitted that the applicant had played an active part in those fights. The applicant also never complained to the prison authorities about any conflict situation, neither did he ask to be transferred to another cell or prison.
For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011) and Ferenc v. Slovenia (no. 6682/10, 13 March 2012).


ITEMID: 001-85107
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SIDOROVA (ADUKEVICH) v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1967 and lives in Arkhangelsk.
6. On 23 November 2002 the applicant, a taxi driver, had driven Mr P. and Ms I. to their destination. According to Mr P., an argument broke out between him and the applicant upon arrival at the destination and the applicant injured him with her car. According to the applicant, Mr P. assaulted her and attempted to break the car door and windscreen. She denied that she had injured him and claimed that he had been in good health when she had left.
7. On 8 August 2003 the Severodvinsk Town Court of Arkhangelsk Region convicted the applicant of reckless driving resulting in an injury and sentenced her to one year's imprisonment conditional on one year's probation. The court based its findings on the version of events presented by Mr P. and rejected statements by witnesses K., Ko. and S., who had supported the applicant's version of events.
8. On 17 August 2003 the applicant lodged a statement of appeal. She contended, in particular, that the court had not been impartial as it had based its findings only on the contradictory statements of Mr P. and Ms I., and had disregarded her version which was supported by many witnesses' statements.
9. According to the Government, both the applicant and her lawyer were informed of the appeal hearing. The Government submitted the following documents:
(a) a copy of the summons of 20 August 2003 which was addressed to the applicant, the victim, counsel for the applicant and for the victim and to the prosecutor;
(b) an extract from the registry correspondence log, indicating the dispatch of the summons to the applicant's home address;
(c) an extract from the court delivery log, indicating that the summons had been delivered to the advocates' office of which counsel for the applicant was a member.
10. The applicant submitted that she had never received the summons. As regards her counsel, the summons had indeed been received by one of his colleagues but not by him personally.
11. On 9 September 2003 the Arkhangelsk Regional Court examined the case on appeal. The court heard submissions by the judge rapporteur and prosecutor, who asked the court to reject the appeal. Neither the applicant nor her counsel was present at the hearing. The Regional Court upheld the judgment of 8 August 2003.
12. On an unspecified date the applicant asked the District Court to grant her access to the case file. She submitted that on 11 November 2003 a judge of the District Court had refused the request on the ground that the conviction had become final, but she did not provide any documentary evidence in support of this.
13. Article 373 of the Code of Criminal Procedure (“the Code”) provides an appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments.
14. Under Article 376 § 2 of the Code, parties to the proceedings shall be notified of the date, time and place of an appeal hearing no later than fourteen days beforehand. Article 376 § 4 provides that the parties' failure to appear before the court, if they were duly informed of the date and time of the appeal hearing, is not an obstacle to the examination of the case.
15. Under Article 377 §§ 4 and 5 of the Code, an appeal court can directly examine evidence, including additional material submitted by parties.
16. Article 379 of the Code sets out the grounds for setting aside judgments. In particular, a judgment will be quashed if there is an inconsistency between the conclusions reached by the court in the judgment and the facts established. Article 380 provides that such an inconsistency will occur if, inter alia, the court's conclusions are not supported by the evidence examined in the hearing; if the court fails to take into consideration circumstances which could substantially affect its findings; or if, in case of contradictory evidence, the judgment does not specify why some of it is accepted and the remainder is rejected.
17. Article 2.13 provides that, summonses and copies of procedural documents shall be sent by registered mail with an acknowledgement of receipt form.
VIOLATED_ARTICLES: 6


ITEMID: 001-76085
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BRUNNTHALER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1949 and lives in Linz. He is a chimney sweeper by profession.
9. On 4 August 1988 the applicant filed a request for an industrial licence (Konzession) for chimney sweeping in Linz. On 31 March 1989 he filed an alternative request to start chimney sweeping in a specified administrative area (Kehrgebiet). Following a new regulation concerning the division of those administrative areas which entered into force in December 1991, the applicant, on 14 January 1992, modified his request into one for an industrial licence as a chimney sweeper in a different specified administrative area.
10. As the Upper Austria Regional Governor (Landeshauptmann) did not deal with his request, the applicant, on 20 July 1992, filed a request for the transfer of jurisdiction (Devolutionsantrag) with the Federal Minister of Economic Affairs (Bundesminister für wirtschaftliche Angelegenheiten).
11. On 3 June 1993 the Federal Minister allowed his request for transfer but dismissed his application for the industrial licence under the Trade Act (Gewerbeordnung). Referring to the submissions of the competent municipalities, he noted that there was no need for further chimney sweepers in the concerned area.
12. On 20 July 1993 the applicant filed a complaint with the Administrative Court. He complained in particular that the Federal Minister had not made sufficient investigations for his findings.
13. On 20 December 1994 the Administrative Court (Verwaltungs-gerichtshof) quashed the decision on procedural grounds.
14. On 3 February 1995 the Federal Minister rejected the applicant’s request for a transfer of jurisdiction, finding that, according to the amended Trade Act (Gewerbeordnung), the authority now competent for applications of the applicant’s kind was the Administrative District Authority, namely the Linz Municipal Office (Magistrat). Therefore, the Regional Governor (Landeshauptmann) was competent to rule on any request for transfer of jurisdiction.
15. On 19 December 1995 the Administrative Court confirmed this decision.
16. As the Municipal Office did not decide on his request, the applicant, on 2 April 1996, filed a request for the transfer of jurisdiction with the Regional Governor.
17. On 10 May 1996 the Regional Governor dismissed the applicant’s request.
18. Following the information in this decision as to further remedies (Rechtsmittelbelehrung), the applicant on 26 June 1996 filed against this decision a complaint with the Constitutional Court.
19. On 30 September 1997 the Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant’s complaint and, upon the applicant’s request, transferred the case to the Administrative Court.
20. On 17 April 1998 the Administrative Court rejected the applicant’s complaint for non-exhaustion of administrative remedies as he had failed to file an appeal with the Federal Minister for Economic Affairs.
21. Referring to the erroneous information as to further remedies in the decision of the Regional Governor of 10 May 1996, the applicant requested reinstitution into the proceedings (Wiedereinsetzungsantrag) and at the same time filed an appeal against that decision with the Federal Minister for Economic Affairs
22. On 1 July 1998 the Regional Governor allowed the reinstitution into proceedings. On 3 September 1999 the Federal Minister for Economic Affairs dismissed the applicant’s appeal.
23. Meanwhile, however, the Linz Municipal Office, on 23 January 1997, again dismissed the applicant’s request for an industrial licence.
24. On 21 July 1997 the Regional Governor confirmed this decision.
25. On 30 September 1997 the Constitutional Court declined to deal with the applicant’s complaint and, upon the applicant’s request of 29 December 1997, transferred the case to the Administrative Court.
26. On 13 March, 7 April, 28 April and on 15 May 1998 the applicant, in compliance with the Administrative Court’s order to remedy certain procedural effects, filed further submissions.
27. On 9 September 1998 the Administrative Court dismissed the applicant’s complaint as being unfounded. This decision was served on the applicant’s counsel on 21 September 1998.
28. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows:
“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay, and at the latest six months after the application or appeal has been lodged.
(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request (Devolutionsantrag). ...This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority.
(3) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1