ITEMID: 001-57527
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1976
DOCNAME: CASE OF SWEDISH ENGINE DRIVERS' UNION v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 11;No violation of Art. 14+11;No violation of Art. 13
TEXT: 8. The Swedish Engine Drivers' Union (Svenska Lokmannaförbundet) is a trade union founded in 1958 with its head office in Stockholm. It is open to the five to six thousand employees of the Swedish State Railways who are either crewmen or personnel from among whom crewmen are recruited. Its membership rose from some 700 in 1969 to 1,200 in 1974, then dropped to 1,100 in September 1975. Thus the applicant union comprises between 20% to 25% of the eligible railway personnel, by far the majority of whom - 75% to 80% - belong to the Railwaymen's Section of the State Employees' Union (Statsanställdas Förbund - SF), one of the three principal federations of Swedish State employees.
9. The applicant union is an independent trade union. It complains that the Swedish National Collective Bargaining Office (Statens Avtalsverk, hereinafter referred to as "the Office") concluded collective agreements on terms of employment and conditions of work only with the said federations. It maintains that this policy has led to stagnation and a drop in its own membership; the Government challenges these statements.
General background
10. For more than a hundred years, workers and employers in the private sector in Sweden have traditionally enjoyed the right to form and join trade unions and to take action in defence of their occupational interests without interference by the State.
Certain principles of labour law which had evolved in practice were codified in 1928 and 1936 by the following legislation:
11. The 1928 Collective Agreements Act deals with collective labour agreements between employers or employers' associations and trade unions. It specifies in particular the legal effects of such agreements. For example, the parties may not take strike or lock-out action in regard to an issue regulated by a collective agreement in force between them.
12. The 1928 Labour Court Act contained rules governing the composition, jurisdiction and procedure of the Labour Court.
The Labour Court was competent to hear cases of alleged violation of the 1936 Act on the Right to Organise and Negotiate. It also had jurisdiction in disputes relating to the interpretation and application of collective agreements, but proceedings could only be brought by a party to the agreement in issue. Unions or non-union employees to whom such an agreement had been made applicable (paragraph 17 below) were obliged to bring their disputes before the ordinary courts or administrative courts, as the case might be.
13. The above-mentioned 1936 Act guarantees two distinct rights to the parties on the labour market, namely the right to organise and the right to negotiate.
The right to organise is defined in section 3 of the Act as the right of employers and employees to belong to an employers' organisation or a trade union, to exercise their rights as members of that organisation or union, and to work for an organisation or a union or for the formation of an organisation or a union, without interference or pressure by the other party. The Act specifies that the right to organise shall be considered as being violated "if measures are taken either by employers or by employees to constrain any employee or employer, as the case may be, to refrain from becoming a member of, or to resign from, an association, to refrain from exercising his rights as a member of an association, or to refrain from working for an association or for the formation of an association, and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer, as the case may be, on the ground that such employee or employer is a member of an association, exercises his rights as a member of an association or works for an association or for the formation of an association".
The only way in which such associations enjoy the protection of the Act is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as interference in the affairs of the association.
The right to negotiate is defined in section 4 of the 1936 Act as "the right to institute negotiations regarding conditions of employment or relations between employers and employees in general". It imposes on the other party an obligation to enter into negotiations, to attend meetings for negotiations and, where necessary, to make proposals for the settlement of the issues involved. This provision is applicable to all trade unions including the applicant union. As the Labour Court ruled in 1972 (see paragraph 29 below), this does not mean that the negotiation must lead to the conclusion of an agreement even where the substantive terms are not in dispute.
14. Prior to 1966, the State determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the State and the employees.
As from 1 January 1966, the 1965 State Officials Act (statstjänstemanalag) has virtually assimilated State employees to employees in the private sector as regards trade union rights, strikes, lock-outs, etc. The Act made the 1928 Collective Agreement Act, the 1928 Labour Court Act and the 1936 Act on the Right to Organise and Negotiate applicable in the public sector. Furthermore, the Act provided for collective agreements to be concluded, subject to certain exceptions, between the Office, representing the State as employer, and the organisations of State employees. The Ministry of Finance has a nominee on the governing board of the Office.
15. The 1965 legislative reform was facilitated by the centralised structure of the Swedish trade union movement; one factor that contributed much to its adoption was the conclusion in December 1965 of a Basic Agreement on Negotiations' Procedure (slottsbacksavtalet) between the Office and the four main organisations of State employees, namely:
According to the information at the disposal of the Court, these federations, of which numbers (ii) and (iii) recently merged, represent the large majority of Swedish State employees: more than 450,000 out of the 500,000 whose terms of employment are negotiated by the Office. About forty trade unions are affiliated to these organisations. The few independent trade unions, including the applicant, represent only about 2,000 State employees in all.
16. Clause 4 of the above-mentioned Basic Agreement provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees behalf by the "main organisation" concerned, unless the Office and the "main organisation" agree otherwise. A note is appended stating that it is not thereby intended to depart from the earlier practice observed in regard to negotiations with a particular association as to any question which exclusively concerns that association.
One exception was made to this rule in the case of the Association of Physicians (Sveriges Läkarförbund); some other exceptions have been or are made from time to time. For instance, in April 1974, the State concluded a separate collective agreement with an independent union of forestry workers. The Government and the applicant union disagree about the circumstances surrounding the making of such exceptions.
17. The Royal Order of 30 June 1965 relating to Certain Public Collective Agreements (KK om vissa statliga kollektivavtal m.m.) includes the following provisions:
"Collective agreements as to such conditions of employment or service as are determined by the King-in-Council or by Parliament shall be concluded conditionally on the agreement being sanctioned by the King-in-Council."
"An Authority which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers, notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement."
18. Certain forms of employees' representation are confined to parties to a collective agreement. Thus, the applicant union complains, inter alia, of being disqualified from representation on the Central Works Council of the Swedish State Railways established by Royal Order of 1968, on the Working Hours Council established by the King-in-Council, and on the Works Committees. The applicant further complains that it cannot appoint official trade union representatives under the Act of 31 May 1974 on the Status of Trade Union Representatives at the Place of Work (lagen om facklig förtroendemans ställning på arbetsplatsen), or safety inspectors under Article 40 of the 1949 Workers' Protection Act, as amended on 16 November 1973 (lagen om ändring i arbetarskyddslagen).
19. The law described above at paragraphs 10 to 18 has in recent years undergone various changes. Thus, trade union rights in both the public and private sectors have been embodied in the new Swedish Constitution which came into force on 1 January 1975. In addition, the Act of 31 May 1974 on the Procedure for the Settlement of Labour Disputes (lag om rättegången i arbetsvister) has replaced the 1928 Labour Court Act. Since 1 July 1974, the new Act has enabled any trade union, whether a party to a collective agreement or not, to bring before the Labour Court any dispute relating to the interpretation or application of such an agreement.
Facts of the particular case
20. Between 1 July 1966 and 31 December 1968, the terms of employment and conditions of work of State employees were governed by a collective agreement concluded by the Office and the four federations. The applicant was not affiliated to any of these federations, but the collective agreement was made directly applicable to it by an accessory agreement which the Office concluded with the applicant on 22 September 1966.
On 8 July 1968, the applicant indicated that it wished to terminate the accessory agreement as from the end of 1968 and it asked for negotiations regarding a new agreement, indicating certain general guidelines for the negotiations.
On 18 November 1968, the applicant union submitted more detailed demands regarding the terms of employment of its members and again asked for negotiations which were to start at the same time as the negotiations with other comparable unions. This request was repeated in February and March 1969.
In February and March 1969, the Office held exploratory meetings with the four federations and provided them with certain proposals regarding the terms of employment which were to apply to State employees in 1969 and 1970. Following these meetings, the Office also held a meeting with the applicant on 27 March 1969. On this occasion, the Office and the applicant union examined the demands formulated by the union in its letter of 18 November 1968. The Office also handed over the proposals which it had previously presented to the four federations. These proposals concerned all State employees, including engine drivers. Finally, the Office declared that it did not intend to conclude a collective agreement with the applicant for the years 1969 and 1970, nor even an accessory agreement such as that concluded in 1966. It stated, however, that it was prepared to continue discussing engine drivers' terms of employment with the applicant union.
On 28 March 1969, the applicant union asked the Office to reconsider its refusal to conclude a separate agreement with the union, but the Office replied on 24 April that it maintained its previous position.
According to the Government, the new attitude of the Office which, even after the 1965 reform, had concluded accessory agreements with the applicant and other independent trade unions, could be explained by the fact that in Sweden, at the end of 1968 and in 1969, the trade union structures in the public sector were tending to disintegrate.
21. On 27 April 1969, the applicant union proclaimed a strike and a blacklisting of jobs as from 9 May. After certain legal and other questions regarding the strike and the blacklisting of jobs had been discussed in writing and orally between the Office and the applicant, the Office decided on 5 May 1969 to proclaim a lock-out of members of the applicant union as from 13 May 1969.
The strike and the blacklisting became effective on 9 May 1969 but were cancelled as from 11 May. Consequently, the lock-out did not become effective. However, in retaliation against the strike action, the State refused to apply retroactively to the members of the applicant union a new agreement concluded with the federations on 12 July 1969. This caused each member of the applicant union a loss of 400 to 600 Swedish Crowns. Proceedings brought in the name of one of the applicant's members concerning this dispute ended on 2 October 1973 by a judgment of the Supreme Court of Sweden dismissing the applicant's claim.
22. On 16 June 1969, the Office transmitted to the applicant a copy of the final proposal made in the course of its negotiations with the four federations. At a meeting on 7 July 1969, the applicant requested the Office to conclude with it an agreement which – apart from certain clauses - would be identical with the agreement to be concluded with the four federations. The Office rejected this proposal.
23. On 12 July 1969 the Office concluded with the four federations a general collective agreement for the years 1969 and 1970. In principle, the agreement applied to all State employees, including engine drivers. In accordance with Article 4 of the Royal Order relating to Certain Public Collective Agreements, the application of this agreement was extended to the members of the applicant union.
24. At a meeting on 21 October 1970, the latter submitted to the Office its demands for the period beginning 1 January 1971. The applicant union also raised the question of a separate agreement. A further meeting was held on 19 November 1970 at which the demands presented by the applicant on 21 October 1970 were examined in detail.
25. By letters of 14 January and 5 February 1971, the applicant union reverted to the question of a separate agreement, but the Governing Board of the Office decided on 19 February to maintain its refusal to conclude such an agreement with the union.
26. Negotiations between the Office and the applicant union took place at three further meetings on 26 February, 10 March and 26 April 1971. At these meetings the Office and the applicant discussed the terms of employment of engine drivers, and the Office informed the union about proposals which had been presented during the negotiations between the Office and the four federations.
27. On 28 June 1971, the Office concluded a general collective agreement with two of the four federations, namely SF and TCO-S. This agreement regulated the terms of employment of State employees, including engine drivers, for the period 1971-1973. Under Article 4 of the Royal Order of 1965, this general agreement became applicable to the members of the applicant union as well as to the members of the other two federations.
28. On 18 June 1971, the applicant union introduced proceedings against the State before the Labour Court, seeking a declaration that the Office was obliged to enter into negotiations with a view to concluding a collective agreement with the applicant union, and also to conclude such an agreement with the applicant union if the parties were in accord on the substantive issues.
The applicant union referred to Sections 3 and 4 of the 1936 Act on the Right to Organise and Negotiate. The union also invoked Article 16 of the Swedish Constitution then in force, some general principles of Swedish law and a number of international instruments including the European Convention on Human Rights.
The Labour Court dismissed the applicant's claim in a lengthily reasoned judgment delivered on 18 February 1972. The Court held that Section 4 of the 1936 Act neither debarred a party from declaring at the outset of negotiations that it would not conclude an agreement, nor implied an obligation to conclude an agreement following negotiations. The Court added that Section 3 of the same Act did not afford trade union organisations any protection in their own right.
The Labour Court noted that the international instruments relied on could serve to clarify Swedish law: while they had not been incorporated into Swedish law, it must be assumed that Swedish law intended to respect them. Nevertheless, the Court found that the submissions on this point in the instant case did not cause it to alter its judgment on the questions in dispute.
29. On several subsequent occasions, the applicant union attempted unsuccessfully to secure the conclusion of a collective agreement; its latest attempt was in March 1975.
30. In its application lodged with the Commission on 6 July 1972, the applicant union alleged violation of Articles 11, 13 and 14 (art. 11, art. 13, art. 14) of the Convention.
The Commission declared the application admissible on 20 July 1972.
31. In its report on 27 May 1974 the Commission expressed the unanimous opinion:
- that the conduct of the Office might in principle raise an issue under Article 11 (art. 11) of the Convention, even if the Office were fulfilling typical employer functions,
- that the refusal by the respondent Government to enter into collective agreements with the applicant did not violate Article 11 para. 1 (art. 11-1) as such;
- that the different treatment of the applicant and the federations with regard to the enjoyment of the freedom of association was reasonably and objectively justified and did not therefore contravene Article 11 read in conjunction with Article 14 (art. 14+11);
- that Article 13 (art. 13) had not been violated in the present case.
The report contains a separate concurring opinion shared by four other members of the Commission.
NON_VIOLATED_ARTICLES: 11
13
14


ITEMID: 001-71415
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PRESNYAKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Gennadiy Yuryevich Presnyakov, is a Russian national who was born in 1948 and lives in the town of Voronezh. He is represented before the Court by Mr R. A. Shukurov, a lawyer practising in Voronezh. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a doctor in a State medical institution. On an unspecified date the applicant was accused of bribery and corruption. By first instance judgment of 6 December 2000 the Voronezh Regional Court fully acquitted the applicant. On 5 March 2001 the judgment was upheld by the Supreme Court of Russia and came into force.
Thereafter the applicant brought two sets of proceedings against the State, claiming damages for the wrongful prosecution.
On 22 November 2001 the Central District Court of the town of Voronezh (“the District Court”) examined and granted his action for non-pecuniary damages. The applicant was awarded RUR 150,000 to be paid by the Ministry of Finance. This judgment came into force on 3 December 2001.
By judgment of 11 January 2002 the District Court granted the applicant’s claim for pecuniary damages and ordered the Ministry of Finance to pay him RUR 65,118.45. The judgment came into force on 23 January 2002.
On 17 December 2001 the District Court issued the applicant with the writ of execution in the respect of the judgment of 22 November 2001. On 16 January 2002 he forwarded this writ and supporting documents to a local department of the Federal Treasury of the Ministry of Finance (Управление Федерального Казначейства Министерства финансов РФ по Воронежской области, “the Federal Treasury”).
On 31 January 2002 the applicant obtained the writ of execution in respect of the judgment of 11 January 2002 and on the same date he forwarded the writ and supporting documents to the Federal Treasury.
In February 2002 the Federal Treasury returned both writs and the documents to the applicant without enforcement. They stated, in particular, that under the legislation in force execution writs issued against the State should be submitted directly to the Ministry of Finance (see the relevant domestic law section below).
The applicant followed the instruction and on 12 February 2002 he applied to the said Ministry for enforcement. The writs and supporting documents reached the Ministry on 13 March 2002.
It appears that the applicant also unsuccessfully applied for enforcement of the judgments in his favour to the bailiffs.
In February 2003 the money due pursuant to the judgments of 22 November 2001 and 11 January 2002 were transferred to the applicant’s bank account.
Section 128 of the Federal Law on Federal Budget for 2002 and Section 122 of the Federal Law on Federal Budget for 2003 provides that writs of execution in respect of the claims arising out of unlawful actions or inactions of State bodies should be submitted directly to the Ministry of Finance and that the bailiffs are not authorised to carry out the enforcement of such writs.


ITEMID: 001-91641
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ERBEY v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1926 and lived in İzmir.
6. On 23 February 1998 the applicant bought a plot of land (plot no. 536 in the Ulucak village, in the Menemen district of İzmir) from the heirs of V.G.
7. On 13 July 1999 the Ministry of Agriculture (“the Ministry”) brought an action before the Menemen Civil Court, requesting the annulment of the title deed of the applicant to plot no. 536 and its registration in the Treasury's name, claiming that it had had actual possession of this land since 1966. The Ministry primarily relied on Article 38 of the Expropriation Act (Law no. 2942). The Ministry also alleged that an expropriation had been effected in relation to the said land in 1966 and that V.G. had received compensation for it. However, the land register had not been amended due to an administrative error.
8. On 20 December 2000 the Menemen Civil Court accepted the request of the Ministry of Agriculture and ordered that the land be registered in favour of the Treasury in accordance with Article 38 of Law no. 2942. In its judgment, the first-instance court noted that the Ministry had been in actual possession of this land for more than twenty years and that the applicant had been aware of this fact when he had bought the plot.
9. The applicant appealed.
10. On 17 September 2001 the Court of Cassation upheld the judgment of 20 December 2000.
11. The applicant requested rectification of the decision of 17 September 2001.
12. On 24 December 2001 the Court of Cassation dismissed the applicant's request.
13. On 4 January 2002 the Court of Cassation's decision was served on the applicant.
14. On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942.
15. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006).


ITEMID: 001-82597
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STANKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1951 and lives in Kežmarok.
6. The applicant and her husband held a joint tenancy of a three-room flat owned by a cooperative in Poprad.
7. Owing to differences with her husband, the applicant left the flat together with her two children in 1992. They started living in a two-room flat owned by the Poprad Municipality. It was leased by the applicant's father, who suffered from a long-term illness and died on 21 January 1994. The applicant and her two children, born in 1979 and 1982 respectively, continued to live in the flat. The applicant paid the rent.
8. In a decision which became final on 7 November 1994 a court granted a divorce order in respect of the applicant and her husband. Their children were placed in the applicant's custody.
9. On 6 February 1995 the applicant and her former husband reached an agreement whereby the latter would continue using the flat in which they had formerly lived together. On 6 March 1995 the cooperative which owned the flat and of which the applicant was a member approved a request for the flat to be exchanged for a one-room flat in Kežmarok. The applicant's former husband lived in the flat in Kežmarok until his death on 1 August 1995. His and the applicant's son inherited membership rights in respect of the cooperative which owned the flat in Kežmarok, including the right to use it. The applicant later started leasing the flat with a view to improving her financial situation.
10. After her father's death the applicant requested to be registered as permanently residing in the flat where she had lived since 1992. In a letter of 19 July 1995 the mayor of Poprad replied that the position was unclear. It had to be determined, in particular, whether the tenancy had passed to the applicant pursuant to Article 706 § 1 of the Civil Code after her father's death.
11. On 4 August 1995 the Poprad Municipal Office informed the applicant that she had formally ceased to be a tenant of the flat which she had used with her former husband on 6 February 1995 – that is, after the death of her father. The right to use her father's flat had not passed to the applicant after the former's death as the requirements of Article 706 § 1 of the Civil Code had not been met.
12. On 3 September 1996 the Poprad Municipal Office included the applicant on a list of persons seeking the tenancy of a flat. No municipal flat could be put at the applicant's disposal at that time as other persons were above her on the list.
13. As the applicant had refused to move out, on 30 August 1996 the Poprad Municipal Housing Company sought a judicial order for her eviction.
14. On 31 October 1996 the Poprad District Court ordered the applicant to move out of the flat within 30 days after its judgment had become final. On 29 October 1997 the Prešov Regional Court upheld the first-instance judgment. The courts established that the applicant had not become a tenant of the flat originally used by her father since, at the time of the latter's death, she had been registered as a user of a different flat, in which she had lived with her former husband. The requirements of Article 706 § 1 of the Civil Code had not been met. After her father's death the applicant had lived in the flat in issue without any justification. In addition, the District Court held that the applicant could live in the flat in Kežmarok which her son had inherited from her former husband. The plaintiff had rightly sought the protection of its ownership rights in respect of the flat.
15. The applicant lodged an appeal on points of law, arguing that the plaintiff company lacked the capacity to take part in the proceedings. On 28 July 1998 the Supreme Court dismissed the appeal on points of law, holding that the plaintiff was a legal entity established by the Poprad Municipality. As such it had standing to sue the applicant.
16. The Poprad Municipality requested that the order be enforced. The applicant objected that her son had reached the age of majority and that she could not live in his flat in Kežmarok. The Poprad District Court dismissed the objection on 10 May 1999, holding that the issue could not be examined in the context of the enforcement proceedings. On 18 June 1999 an enforcement officer enforced the judgment, in accordance with the relevant provisions of the Executions Order 1995, with the result that the applicant was obliged to move out of the flat in which she had lived since 1992.
17. On 8 July 1999 that flat was allocated to a municipal employee who lived in a one-room flat and who had applied, on 24 June 1999, for a bigger one as she had to take care of an elderly and ill relative. Later the new tenant acquired ownership of the flat for a relatively small sum in accordance with the relevant law.
18. The applicant, with her under-age daughter, started living in the one-room flat in Kežmarok inherited by the applicant's son. The flat has a surface area of 33 square metres. The applicant has continued to work in Poprad. The distance between the two towns is approximately 15 kilometres.
19. The applicant filed a petition under Article 130 § 3 of the Constitution, alleging, inter alia, a violation of her constitutional right to protection of her private and family life as well as a violation of her ownership rights in the proceedings referred to above. She argued that the municipality had been informed that she had moved to her father's flat in 1992 with the intention of living there permanently. She had requested to be allocated municipal housing and had therefore believed that her interests would be protected. The municipality's argument that she could live in her son's one-room flat in Kežmarok was unreasonable. In addition, her daughter, who was under age, was disturbed by having to live in that flat as the girl's father had committed suicide there.
20. On 12 April 2000 the Constitutional Court declared admissible the complaint alleging a violation of the applicant's right to respect for her private and family life.
21. On 10 July 2001 the Constitutional Court found that by its judgment of 29 October 1997 the Prešov Regional Court had violated the applicant's rights under Article 19 § 2 and Article 21 § 3 of the Constitution.
22. The decision stated that the ordinary courts' conclusion that the requirements of Article 706 § 1 of the Civil Code had not been met in the applicant's case was correct as such. It also had to be considered, however, whether there had been a pressing social need for the interference and whether it had been proportionate to the legitimate aim pursued,.
23. The applicant had not acted contrary to the law when she had moved to her father's flat in 1992. She had lived in that flat continuously, together with her children, even after her father's death. At the time of the examination of the request for her eviction the applicant had had no other place to live. The flat was to be regarded, therefore, as the applicant's home.
24. The Constitutional Court noted that Article 3 of the Civil Code permitted the granting of relief from hardship in justified cases by ensuring that alternative accommodation should be provided to persons who had been ordered to move out of a flat. As to the Supreme Court's practice and, in particular, judgment no. 1 Cdo 48/97 (see paragraph 40 below), the circumstances of the applicant's case were different in that the applicant had legally moved into the flat in 1992 and the flat was owned by the municipality and not by individuals. In any event, neither Article 3 § 1 of the Civil Code nor any other legal provision could be interpreted and applied in a manner producing effects incompatible with Slovakia's obligations under international treaties.
25. In view of Article 20 § 3 of the Constitution, the municipality's ownership rights in respect of the flat could not be dissociated from its obligation to assist citizens of Poprad in having their basic needs satisfied. it should have been examined whether ordering the applicant to leave the flat, together with her under-age daughter and without providing them with alternative accommodation, was contra bonos mores within the meaning of Article 3 § 1 of the Civil Code. The protection of family, minors and juveniles under Article 41 of the Constitution should also have been taken into account.
26. Furthermore, the Poprad Municipality had registered the applicant as a person seeking a flat, after having verified whether her request had been justified, at approximately the same time as it had initiated judicial proceedings for her eviction. It should have been verified whether the municipality, as the owner and manager of municipal flats, had a compelling reason for ordering the applicant to move out of the flat immediately without being obliged to provide her with alternative accommodation.
27. The Constitutional Court did not consider the applicant's behaviour improper. In 1992 she had left the cooperative flat where she had lived with a view to avoiding the negative impact of her husband's inappropriate behaviour on her and her children. The applicant had petitioned for divorce and her return to that flat would not have resolved her personal situation as her husband also had the right to use it.
28. Finally, the applicant had used the flat for a long time and the representatives of the municipality had initially not taken a firm standpoint as regards her title to use the flat. Reference was made, in particular, to the mayor's letter of 19 July 1995. The owner of the flat had therefore contributed to the applicant's belief that she would not be obliged to leave the flat without alternative accommodation being provided to her. In 1996, when the judicial proceedings had started, the applicant had been in a difficult situation as the mother of two under-age children who had lost their father.
29. When deciding the case, the Prešov Regional Court had not duly considered the above relevant facts. Its decision to uphold the first-instance judgment ordering the applicant to leave the flat without being provided with any other accommodation therefore amounted to an interference with the applicant's right to respect for her private and family life and for her home which was not based on relevant and sufficient reasons. As a result, and also having regard to the particular protection which Article 41 § 1 of the Constitution afforded to children and juveniles, that interference could not be regarded as being necessary in a democratic society.
30. Article 19 § 2 guarantees to every person the right to protection against unjustified interference with his or her private and family life.
31. In decision II. ÚS 23/00 of 23 March 2000 the Constitutional Court rejected a petition filed by a judge who alleged a violation of Article 19 §§ 2 and 3 of the Constitution in that the Ministry of Justice had asked him to submit a financial statement. The decision stated that the petitioner should have sought redress before the ordinary courts by means of an action under Articles 11 et seq. of the Civil Code for protection of his personal rights.
32. Article 20 § 1 guarantees the right to own property. Paragraph 3 of Article 20 prohibits the abuse of ownership to the detriment of the rights of others or contrary to general interests protected by law.
33. Under Article 21 § 3, interference with the inviolability of the home (other than the search of a home in the context of criminal proceedings, which is governed by paragraph 2 of the same Article) may be permitted by law only where it is necessary in a democratic society for the protection of a person's life, health or property, for the protection of the rights and freedoms of others or in cases of serious threat to public order.
34. Article 41 § 1 provides that marriage, parenthood and family are to be protected by law. Particular protection is to be afforded to children and juveniles.
35. Pursuant to Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (podnet) filed by any individuals or corporations claiming that their rights had been violated.
36. According to its case-law under Article 130 § 3, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner's constitutional rights. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court's view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
37. Pursuant to Article 3 § 1, the exercise of civil rights and obligations must not interfere with the justified rights and interests of others unless there are relevant legal grounds and must not be contra bonos mores.
38. By Article 11, any natural person has the right to protection of his or her personality, and in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
39. Under Article 706 § 1, where a tenant of a flat dies, unless the flat has been jointly leased by spouses, the tenancy passes to the late tenant's children and other close relatives, provided that they lived in the same household as the tenant at the time of his or her death and that they do not have their own flat.
40. In judgment no. 1 Cdo 48/97, delivered on 20 November 1997, the Supreme Court expressed the view that Article 3 § 1 of the Civil Code could not be applied for the purpose of obliging the owner of a flat (three individuals in that particular case) to provide accommodation to a person who used the flat without any legal grounds. Imposing such an obligation would infringe the owner's property rights.
41. On 29 December 1998 the applicant lodged an application with the Court in which she complained under Article 6 § 1 and Article 8 of the Convention of the above-mentioned decisions of the ordinary courts leading to her eviction from the flat in which she lived. The application was registered as no. 48398/99.
42. On 18 May 2001 a committee of three judges rejected the application as being inadmissible. At that time the constitutional proceedings initiated by the applicant were still pending. As the Constitutional Court had declared admissible the complaint alleging a violation of the applicant's right to respect for her private and family life, the Court considered the relevant part of the application to be premature at that time. The decision on admissibility reads as follows:
“The Court has examined the application and notes that the applicant has been informed of the possible obstacles to its admissibility. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the application must be rejected, in accordance with Article 35 § 4 of the Convention.”
VIOLATED_ARTICLES: 8


ITEMID: 001-80050
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BARTA v. HUNGARY
IMPORTANCE: 3
CONCLUSION: No substantive violation of Art. 3;Violation of Art. 3 under its procedural aspect;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 6. The applicant was born in 1965 and lives in London.
7. At the material time, the applicant and her mother, Ms E. Rhodes, lived in Hungary. They ran a shelter for dogs and cats (Csizmás Kandúr Állatotthon és Alapítvány) in the village of Bőny.
8. Apparently in the context of an alleged nuisance caused by the animals, in October 2002 the Győr Police Department initiated an investigation for disorderly conduct (garázdaság) against unknown perpetrators. The Police Department was of the view that there was a well-grounded suspicion against the applicant and her mother.
9. Not knowing their exact names or address and thus unable to summon them, on 15 October 2002 the Police Department commissioned the locally competent police officer (bőnyi körzeti megbízott), P.Z.H., to establish data about the applicant and her mother and to escort them to the Győr Police Department. Because of the office he held in the village, P.Z.H. had previously been introduced to the applicant and her mother.
10. At 7.30 a.m. on 16 October 2002, P.Z.H., who hardly spoke any English, appeared at the gate of the shelter. He rang the bell, and the applicant’s mother received him. Over the closed gate, P.Z.H. told her in Hungarian, without producing a written summons, that the police were conducting a criminal investigation against her and that she was supposed to go with him.
11. The applicant’s mother – who is of a British origin but, unlike the applicant, speaks Hungarian – refused to comply with P.Z.H.’s instruction. Following a brief dispute, she turned around and headed for the house across the yard and called her dogs to the gate of the shelter. Observing her reluctant behaviour, P.Z.H. pushed the gate open and entered the garden.
12. Since P.Z.H. had heard the applicant’s mother order the dogs, he drew his truncheon in order to keep them at bay.
13. The applicant’s mother stepped towards P.Z.H., grabbed his right arm and the truncheon, started to shake him and tried to push him out of the garden through the open gate. Since her attempts failed, the applicant’s mother told P.Z.H. that she would get dressed, collect her documents and go with him. However, having entered the house, she locked the entrance door and refused to open it despite the request of the police officer.
14. The applicant was in the house. She heard the argument and saw part of the struggle from the window of the upper floor. She grabbed a camera and took pictures, using a flash, of P.Z.H. from the window. She then hurried down to the ground floor.
15. From this point onwards, the Government’s and the applicant’s versions of events differ.
16. The Government stated that the applicant stepped out of the house through a side door and continued to take pictures; meanwhile her mother was abusing the police officer verbally. P.Z.H. requested the applicant to show him her passport. The applicant, instead of complying with the order, hit his shoulder and arm three times with the camera. Subsequently, she stepped back towards the house and P.Z.H. followed her. They both entered the house. Once inside, P.Z.H. tried to take the camera out of the applicant’s hand but he failed. Meanwhile, the applicant locked the door from the inside and sat on the key. The police officer attempted to get the key by immobilising the applicant’s arm when her mother appeared, to whom the applicant gave the key.
17. The applicant stated that P.Z.H. was banging on the front door, demanding to be let in. The applicant slightly opened the door and took a picture of P.Z.H. Perceiving the flash, the police officer started yelling at her and, with his truncheon in his hand, shoved the door with his shoulder. The applicant, standing right behind the door, fell against the wall. The door handle hit her stomach and the door-frame hit her shoulder. While she doubled up with pain, P.Z.H. repeatedly hit her with the truncheon on the neck, back and shoulders. The applicant dropped the camera. The police officer only stopped beating her when – hearing the applicant’s scream – her mother ran into the room.
18. P.Z.H. asked for reinforcements from police headquarters. With the help of two other officers, P.Z.H. took the applicant and her mother to the Petz Aladár Hospital in Győr where all the three parties were examined. The Hospital prepared a medical report on their injuries, which stated that the applicant had a contusion on the back of her right hand, a distension of the right shoulder and abrasions on her back.
19. P.Z.H’s left shoulder and collar bone were sensitive, and part of the middle finger nail of his left hand was torn off (0.5-centimetre). He also had a 4-centimetre abrasion on the right hand.
20. The applicant and her mother were then taken to the Police Department where both of them were heard, as was P.Z.H. as a witness against them. On 17 October 2002 they were both charged with violence against an official (hivatalos személy elleni erőszak).
21. On 15 January 2003 the prosecutor in charge of the case made an official note, stating that the applicant’s mother had informed him of a third individual, a Romanian national, who had been inside the applicant’s house at the time of the incident and had seen the events from the roof window. She provided this person’s Romanian telephone number and the name of the company employing him in Hungary. The Prosecutor’s Office made no attempt to find this person, supposing that he was an illegal worker who had by that time left Hungary.
22. In the ensuing proceedings, the Prosecutor’s Office heard the applicant as a defendant and P.Z.H. as a witness. It obtained the opinion of a forensic medical expert. Although the applicant requested the examination of the injuries of all the parties and their possible causes, this opinion, prepared by Dr Zs.T. on 10 June 2003, only concerned the injuries of the police officer. According to its conclusions, P.Z.H.’s injuries had probably been caused as described by him, i.e. the applicant had hit him on the shoulder with the camera and then they had struggled for the door key. The expert stated that the applicant’s version concerning the origin of the officer’s injuries was less plausible though not impossible.
23. On 16 May 2003 the original criminal proceedings conducted against the applicant and her mother on charges of disorderly conduct were terminated in the absence of any evidence of a criminal offence.
24. On 25 July 2003 the Prosecutor’s Office submitted a bill of indictment to the Győr District Court, charging them with violence against an official. After four hearings, the District Court acquitted them on 13 June 2005, giving the following reasoning:
“In view of the consistent testimonies of the defendants, the inconclusive character of the medical expert opinions, and the testimony given by Officer P.Z.H. which contained several contradictions, the court did not find it proven with the requisite certainty that the defendants had caused light bodily injury to Officer P.Z.H.”
25. On the prosecutor’s appeal, the Győr-Moson-Sopron County Regional Court quashed the first-instance judgment and remitted the case to the District Court. Hearings took place on 19 July and 8 September 2006. On the latter date, P.Z.H.’s commander was heard as a witness and was asked why he had not investigated how the applicant had suffered an injury to her back. He gave the following answer:
“What can I examine on the basis of a medical report? That has been written by a doctor. A medical report was prepared; the lady said that she had been injured. I cannot conduct any examination with regard to this.”
The case is still pending at the first-instance.
26. On 14 November 2002 the applicant and her mother expressed their intention to bring charges against P.Z.H. Their criminal complaint was forwarded to the Győr-Moson-Sopron County Public Prosecutor’s Office under the same reference number as the one which concerned the charges against them.
27. On 19 June 2003 the Prosecutor’s Office closed the investigation concerning the applicant’s complaint against P.Z.H., in the absence of any evidence of a criminal offence. The Prosecutor’s Office relied solely on the evidence which had been produced in the parallel criminal proceedings conducted against the applicant and her mother. These documents (the minutes of interrogations, the medical files and the findings of the enquiry conducted by P.Z.H.’s superior) were submitted to the court dealing with the criminal case conducted against the applicant and her mother.
28. The decision of the Prosecutor’s Office contained the following conclusions:
“In the course of the investigation, it has been established that when Officer P.Z.H., acting on orders and wearing uniform, appeared at the house of Eva Rhodes and her daughter, he proceeded in accordance with Act no. 34 of 1994 on the Police, and Decree no. 3 of 1995 of the Ministry of the Interior on the Rules of Service of the Police. It was Eva Rhodes and her daughter [the applicant] who refused to obey the police measure; they did not comply with the officer’s demand, obstructed him in performing his duties and caused him bodily injuries. ... Since, according to the findings of fact of the investigation [against the applicant and her mother] and to the enquiry carried out by the officer’s superior, the actions of the officer as well as the use of coercive measures were lawful, no ‘mistreatment in official proceedings’ can be established within the meaning of section 226 of the Criminal Code; therefore, we closed the investigation in the absence of any crime.”
29. On 13 August 2003 the applicant lodged a complaint with the Chief Prosecutor’s Office against that decision. She complained that there had been no independent investigation in the case, particularly as the investigation authorities had not appointed a forensic medical expert in order to establish how her injuries had been caused. Moreover, the applicant stressed that the police officer’s conduct had been unlawful in the absence of a written summons and that the decision of the Prosecutor’s Office was illogical.
30. On 11 September 2003 the Chief Prosecutor’s Office dismissed the applicant’s complaint. After summarising the factual basis of the case, it gave the following reasoning:
“During the review of the documents of the investigation, ... [it] established that the police action did not give rise to the well-founded suspicion [of a crime]; namely, that the injuries of [the applicant] or those of Eva Rhodes had been caused by intentional ill-treatment exerted by the proceeding officer. Apart from the victims’ allegations, there was no evidence proving that the police officer, in the course of his lawful action, exceeded the indispensable measure of force which was necessary to defy the threat and aggression directed against him and to overcome the resistance to a lawful police measure. In view of the fact that the complaint lodged against the decision closing the investigation does not contain any data to strengthen a well-founded suspicion of a crime committed by a police officer, I saw no reason to quash the impugned decision or to continue the proceedings.”
31. Meanwhile, the applicant, independently of the ongoing criminal proceedings, requested another forensic medical expert to prepare an opinion concerning the possible causes of her injuries and those of the police officer.
32. The opinion of Dr J.H., dated 15 October 2003, concluded that the applicant’s version of the events was a plausible explanation for her injuries. The expert stated in particular that the injuries on the applicant’s shoulder and back might have originated either from punches by a hard object (like a truncheon) or, with equal likelihood, from being repeatedly banged against a wall. Moreover, he was of the view that the police officer’s version did not explain the injuries. Concerning the injuries of P.Z.H, the expert established that they could have been caused as he described. The expert added that the injury to the officer’s shoulder could also be explained by the applicant’s version.
33. On 20 October 2003 the applicant, acting as substitute private prosecutor (pótmagánvádló), lodged a bill of indictment with the Győr-Moson-Sopron County Regional Court against P.Z.H. for mistreatment in official proceedings and other offences. In the bill of indictment, she complained that, despite her repeated request, P.Z.H. had never been heard as a suspect, the investigation authorities had never obtained an opinion of a forensic medical expert concerning the possible causes of her injuries and, therefore, had not produced a plausible explanation for them. The applicant attached the opinion of Dr J.H. to the bill of indictment.
34. On 3 December 2003 the Regional Court dismissed the indictment. Without giving any detailed arguments and relying exclusively on the case file, it held that there was no reason to depart from the decisions of the prosecution authorities.
“(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage. ...
(3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.”
“(1) Any person in respect of whom there is an order to be brought in, must be presented before the authority, if necessary by the use of a coercive measure.”
“(1) The authority – unless the law prescribes otherwise – shall summon any person whose presence at a procedural act is mandatory and shall notify those whose presence is not mandatory but allowed by the law.
(2) A summons or a notification is normally done in writing. ...
(3) If necessary, a summons or a notification may be done in a short way (for example, by telephone).”
“(1) If a defendant, legal counsel, a witness or an expert does not [comply with] a summons issued under section 112 ..., the authority may
a) order the defendant to be brought in, ...”
“(1) Any person who is concerned by a decision of the prosecutor or the investigation authority may lodge a complaint against the decision within eight days from its delivery. ...
(5) ... Subject to the exceptions provided in paragraph 6, no further remedy lies against a decision determining a complaint.”
“ ... (2) After the dismissal of his [or her] complaint, a victim may act as a substitute private prosecutor (pótmagánvádló) if ...
b) the investigation was terminated under section 190 § (1) (a)-(d) or (f) [the absence of a serious suspicion of a crime, etc.].”
“(1) If the superior public prosecutor dismissed a victim’s complaint lodged against the dismissal of a criminal report or against the discontinuation of an investigation and it is possible to lodge a substitute private bill of indictment under section 199, ... the victim may act as a substitute public prosecutor within thirty days from the date of the delivery of the decision.”
“(1) The court shall accept a private bill of indictment, if there is no reason to declare it inadmissible.
(2) The court dismisses the private bill of indictment if ...
(d) its factual or legal background is evidently missing.”
“(1) No appeal lies against a decision dismissing a private bill of indictment.”
“(1) A police measure may not cause such disadvantage as is obviously disproportionate to the legitimate aim pursued by the measure. ...”
“... (2) For the sake of public safety, the police may put before the authority or the competent body any person who ...
(b) may be suspected of having committed a crime. ...
(4) An arrested person must be informed orally or in writing about the reasons for his [or her] arrest ... .
“(1) The police may not enter private houses without permission or a warrant unless it is necessary for...
(b) the capture and arrest of a perpetrator or a suspect of a crime, ...
(f) the implementation of an order to bring someone in, ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-58282
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF ÇAKICI v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 3 (applicant's brother);No violation of Art. 3 (applicant);Violation of Art. 5;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 8. The applicant, Mr İzzet Çakıcı, is a Turkish citizen who was born in 1953 and is at present living in Diyarbakır in south-east Turkey. His application to the Commission was brought on his own behalf and on behalf of his brother Ahmet Çakıcı, who, he alleges, has disappeared in circumstances engaging the responsibility of the State.
9. The facts surrounding the disappearance of the applicant’s brother are disputed.
10. The facts presented by the applicant are contained in Section 1 below. In his memorial to the Court, the applicant relied on the facts as established by the Commission in its report (former Article 31 of the Convention) adopted on 12 March 1998 and his previous submissions to the Commission.
11. The facts as presented by the Government are set out in Section 2.
12. A description of the materials submitted to the Commission is contained in Part C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant’s brother as established by the Commission is set out in Part D.
13. The Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s brother, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take the evidence of witnesses at hearings conducted in Ankara on 3 and 4 July 1996 and in Strasbourg on 4 December 1996. The Commission’s evaluation of the evidence and its findings thereon are summarised in Part E.
14. On 8 November 1993, the applicant’s brother, Ahmet Çakıcı, was detained during an operation in the village of Çitlibahçe carried out by gendarmes and village guards. When the operation commenced early in the morning, Ahmet Çakıcı hid in a house near the fountain while the other men were gathered in an open area. The security forces began setting fire to the houses. Ahmet Çakıcı retrieved money, 4,700,000 Turkish liras (TRL), which he had hidden in the roof of his house and was caught leaving the house. Ahmet Çakıcı was taken from the village by the security forces. This was witnessed by the other villagers. The money was taken from Ahmet Çakıcı by a first lieutenant. Remziye Çakıcı, Ahmet Çakıcı’s wife, was told by a boy from the village that he had seen a gendarme take money from Ahmet Çakıcı.
15. Ahmet Çakıcı was first taken to Hazro, where he was kept overnight before being taken to Diyarbakır. In Diyarbakır, he was detained at the provincial gendarmerie headquarters. After about six to seven days, he was held for sixteen to seventeen days in the same room as Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, who had been taken into custody on 8 November 1993 by the security forces in an operation at Bağlan. Ahmet Çakıcı had been beaten, a rib being broken and his head split open. He was taken out of the room for interrogation on several occasions, when he received electric shocks and was beaten. Mustafa Engin was also told by Ahmet Çakıcı that a first lieutenant had taken money from him. At the end of this period, the other three detainees were brought before the court. Engin and Demirbaş were released and Abdurrahman Al was remanded in custody. Engin did not see Ahmet Çakıcı again.
16. After eighty-five days at the provincial gendarmerie headquarters, in or about late January-early February 1994, Ahmet Çakıcı was taken back to Hazro where he was detained for several months. From there he was moved to the gendarmerie station at Kavaklıboğaz. During a period of thirteen days in or about spring or early summer 1994, Hikmet Aksoy, who was also detained at Kavaklıboğaz, saw Ahmet Çakıcı when they were taken out of the cells for meals. At the end of that period, Hikmet Aksoy was transferred to Lice.
17. In May 1996, following the transmission of Government submissions, the applicant learned for the first time that it was claimed by the authorities that Ahmet Çakıcı had been killed in a clash between 17 and 19 February 1995 on Kıllıboğan Hill, Hani. The identification appeared to be based solely on the claim that Ahmet Çakıcı’s identification card was found on one of the bodies.
18. The Government recall that at this time the PKK (the Workers’ Party of Kurdistan) had destroyed numerous villages, inflicted suffering on thousands of innocent victims and exerted intolerable oppression over the population of the south-east region.
19. They state that Ahmet Çakıcı was not taken into custody by the security forces during the operation carried out at Çitlibahçe on 8 November 1993 and was not held in detention over any subsequent period. The custody records indicated that he was not held at Hazro or at Diyarbakır provincial gendarmerie headquarters. Nor was he was taken to the gendarmerie station at Kavaklıboğaz.
20. Ahmet Çakıcı was a militant member of the PKK organisation. Following an armed clash between the PKK and the security forces on 17 to 19 February 1995, he had been found dead with fifty-five other militants at Kıllıboğan Hill. Ahmet Çakıcı had been implicated in the killing on 23 October 1993 of five teachers from Dadaş whom he had reportedly described as “servile dogs of the State”. He most probably disappeared after this incident with the intention of escaping justice and continuing his activities for the PKK.
21. No complaint was made to the public prosecutor at Hasro by any member of the applicant’s family in respect of the alleged disappearance.
22. In the proceedings before the Commission, the applicant and the Government submitted a number of statements by the applicant, which he had made to the Human Rights Association in Diyarbakır (HRA) and to the public prosecutor at Diyarbakır. Statements had also been taken by the HRA and the public prosecutor from Remziye Çakıcı, the wife of Ahmet Çakıcı, and Mustafa Engin, who had been detained from 9 November to 1 December 1993 at Diyarbakır provincial gendarmerie headquarters. Mustafa Engin had also made a statement to a police officer. Statements had been taken by Osman Baydemir, on behalf of the applicant, from Abdurrahman Al, who had been detained at the same time as Mustafa Engin, and from two villagers, Mehmet Bitgin and Fevzi Okatan.
23. The Government also provided an arrest report dated 8 November 1993 concerning the apprehension of Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, two operation reports dated 7 and 8 November 1993 respectively concerning the operation at Çitlibahçe village, documents concerning the witness Hikmet Aksoy whom the Commission’s delegates had summoned to give evidence but who did not appear and documents relating to inquiries made by the authorities into the allegations.
24. The Commission requested copies of the custody records for the relevant period for Hazro gendarmerie station, Lice gendarmerie station, Diyarbakır provincial gendarmerie headquarters and the gendarmerie station at Kavaklıboğaz. The Commission’s delegates further requested the opportunity to inspect the original records of Hazro, Diyarbakır and Kavaklıboğaz. The Government provided the original custody record of the Hazro central gendarmerie station as well as copies of the custody record of Lice gendarmerie headquarters and Diyarbakır provincial gendarmerie headquarters for the relevant period. The Government did not provide the Commission’s delegates with sight of the original custody record for Diyarbakır provincial gendarmerie headquarters, or with either a copy of, or sight of, the original custody record for the gendarmerie station of Kavaklıboğaz.
25. On 22 December 1993, Tevfik Çakıcı, the father of the applicant and Ahmet Çakıcı, submitted a handwritten petition to the Diyarbakır National Security Court requesting information as to what had happened to Ahmet Çakıcı, who had been taken into custody on 8 November 1993 by the security forces at the same time as Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, who had been released twenty-four days later. An oral reply was given to him that Ahmet Çakıcı was not on the list of persons in custody.
26. By letter dated 4 April 1994, the Hazro public prosecutor, Aydın Tekin, informed the Chief Public Prosecutor at the Diyarbakır National Security Court that, on examination of their records, Ahmet Çakıcı had not been taken into custody or detained on 8 November 1993.
27. By letter dated 19 April 1994 to the Chief Public Prosecutor at the Diyarbakır National Security Court, the Hazro public prosecutor, Aydın Tekin, confirmed his letter of 4 April 1994 and stated that no application had been filed by Ahmet Çakıcı’s family to the effect that he was missing.
28. By letter dated 18 August 1994, the Ministry of Justice (General Directorate for International Law and External Relations), referring to correspondence from the Foreign Ministry of 19 July 1994 outlining the complaints made by the applicant to the European Commission of Human Rights, requested the Diyarbakır Attorney-General to have the applicant’s complaints investigated and evaluated according to law.
29. On 9 September 1994, the applicant’s statement was taken by a public prosecutor at Diyarbakır. In his statement, he stated that his brother Ahmet Çakıcı had been taken into custody by soldiers on 8 November 1993 and that he had been seen by Mustafa Engin and Tahsin Demirbaş, who were also detained. On 25 November 1994, the public prosecutor took a statement from Remziye Çakıcı. She stated that gendarmes had taken away her husband during an operation on 8 November 1993.
30. By letter dated 1 December 1994, Colonel Eşref Hatipoğlu of Diyarbakır provincial gendarmerie command informed the Diyarbakır Attorney-General, in reply to a letter of enquiry of 22 November 1994, that their records indicated that Ahmet Çakıcı had not been detained on 8 November 1994 [error for 1993].
31. By letter dated 8 December 1994, Colonel Eşref Hatipoğlu reported to the Diyarbakır provincial authorities on the subject of the applicant’s application to the European Commission of Human Rights. It was reported, inter alia, that police officers had been unable to find the addresses of the applicant, his father, Ahmet Çakıcı, Mustafa Engin, Abdurrahman Al or Tahsin Demirbaş for the purpose of taking their statements. It had been established that Ahmet Çakıcı, who was alleged to be missing, was involved with the PKK, having participated in killings. He was reported to have been a member of the PKK mountain team which, on 23 October 1993, kidnapped seven persons (five teachers, an imam and the imam’s brother) from Dadaş village and killed five of them. Their headquarters were looking for him.
32. By letter dated 1 March 1995, Colonel Eşref Hatipoğlu forwarded to Hazro district gendarmerie command documents found in the area and upon the bodies of fifty-six terrorists found dead as a result of an operation carried out in the Kıllıboğan region from 17-19 February 1995.
33. By letter dated 14 March 1995, Hazro public prosecutor Mustafa Turhan requested that the Lice public prosecutors investigate whether Mustafa Engin and Tahsin Demirbaş were detained by the gendarmes on 8 November 1993, and that they seek observations from Mustafa Engin concerning Ahmet Çakıcı, who was alleged to have disappeared in custody.
34. By letter dated 14 April 1995, Hazro public prosecutor Mustafa Turhan requested the Hazro district gendarmerie command urgently to inform him concerning the operation carried out in Çitlibahçe on 8 November 1993 and to investigate and establish whether Ahmet Çakıcı had been detained along with Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş.
35. By letter dated 17 May 1995, the Hazro district gendarmerie command informed the Hazro public prosecutor in reply that the operation on 8 November 1993 had been intended to capture members of the PKK and those aiding and abetting them and that their records indicated that Ahmet Çakıcı, Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş had not been detained.
36. By letter dated 22 May 1995, the Hazro public prosecutor requested the Hazro district gendarmerie command as a matter of urgency to establish the whereabouts of Ahmet Çakıcı.
37. By letter dated 23 June 1995 to the Hazro public prosecutor, the district gendarmerie command at Hazro referred to the prosecutor’s enquiry dated 22 May 1995 about the whereabouts of Ahmet Çakıcı and to the letter dated 1 March 1995 from the Diyarbakır provincial gendarmerie command. It stated that Ahmet Çakıcı had been a member of the PKK. Following an operation carried out at Kıllıboğan Hill on 17-19 February which resulted in the deaths of fifty-six terrorists, Ahmet Çakıcı’s identity was established by the identity card located amongst the documents found on the body of a terrorist. It was concluded that he was one of the terrorists.
38. By letter dated 27 June 1995, the Hazro public prosecutor informed the Diyarbakır Attorney-General, in reference to their letter of 1 December 1994 and the letter of the Ministry of Justice of 18 August 1994, that an operation had been carried out on 8 November 1993 in order to apprehend members of the PKK and those assisting them and that Ahmet Çakıcı, Mustafa Engin and Tahsin Demirbaş had not been detained as claimed. Referring to the letter of 23 June 1995 above, it was stated that Ahmet Çakıcı was a member of the PKK and found dead during operations carried out in the Kıllıboğan Hill region, Hani district, on 17-19 February 1995. The Lice public prosecutor had been requested to obtain a statement from Mustafa Engin, a response to which was still awaited.
39. By letter dated 4 July 1995, the Hazro public prosecutor’s office informed the Ministry of Justice (Directorate of International Law and Foreign Affairs) of the information provided by the Hazro gendarmes (see paragraph 37 above). It stated that a preliminary investigation (no. 1994/191) had been started and was still pending.
40. By letter dated 5 March 1996, the Hazro public prosecutor informed the Ministry of Justice that upon its request the Diyarbakır Attorney-General had been instructed to take a statement from Mustafa Engin.
41. On 12 March 1996, a police officer took a brief statement from Mustafa Engin in which it was stated that he had not seen Ahmet Çakıcı for three years. On 13 May 1996, a public prosecutor at Diyarbakır took a statement from Mustafa Engin. In this statement, he stated, inter alia, that he had not seen Ahmet Çakıcı in custody though Ahmet Çakıcı might have seen him and referred to himself having been given electric shocks once while he was detained at Diyarbakır provincial gendarmerie headquarters.
42. By decision of 13 June 1996, Hazro public prosecutor Mustafa Turhan issued a decision of lack of jurisdiction and transferred the file to the District Administrative Council. The decision named the applicant and Remziye Çakıcı as the complainants and identified the victim as Ahmet Çakıcı. The offence was described as ill-treatment, torture and confiscation of money of a detainee and the defendants as unidentified individuals of Hazro gendarmerie station and village guards. It stated that the complainants claimed that soldiers from Hazro gendarmerie command arrived in Çitlibahçe on the morning of 8 November 1993 and detained the victim, that the victim had been taken to Diyarbakır where he was tortured and that a lieutenant had removed TRL 4,280,000 from him. The investigation had established that the victim was a member of the PKK terrorist organisation and that following an operation by the security forces in the Kıllıboğan Hill region on 17 and 19 February the victim’s identity card had been located on one of the dead terrorists, thus confirming the individual’s identity as Ahmet Çakıcı without doubt. Mustafa Engin had made a statement to the effect that he had not seen Ahmet Çakıcı. The suspects fell under the Law on the prosecution of civil servants and following the withdrawal by the Hazro prosecution the documentation was transferred to the Presidency of Hazro District Administrative Council for the necessary action.
43. Since the facts of the case were disputed, particularly concerning the events in or around November 1993, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements and oral evidence taken from eleven witnesses: the applicant; Fevzi Okatan, previous muhtar of Çitlibahçe; Remziye Çakıcı, the wife of Ahmet Çakıcı; Mustafa Engin, who had been detained at Diyarbakır provincial gendarmerie headquarters from 9 November to 1 December 1993; Ertan Altınoluk, who had been gendarmerie commander of Hazro in November 1993 and had commanded the operation at Çitlibahçe on 8 November 1993; Mehmet Bitgin, a villager from Çitlibahçe; Mustafa Turhan, public prosecutor in Hazro from November 1994; Aytekin Türker, the Hazro central station commander at Hazro district gendarmerie headquarters from July 1993 to August 1994; Ahmet Katmerkaya, the gendarme responsible for keeping the custody records at Diyarbakır provincial gendarmerie headquarters since August 1992; Kemal Çavdar, a gendarme who had served at Kavaklıboğaz station from July 1993 to August 1995; and Abdullah Cebeci, the brother of the imam who had been kidnapped with five teachers from Dadaş.
A further six witnesses had been summoned but did not appear: Aydın Tekin, Hazro public prosecutor in 1994; Colonel Eşref Hatipoğlu, Diyarbakır provincial gendarmerie commander; Hikmet Aksoy, who was alleged by the applicant to have seen his brother in detention at Kavaklıboğaz; Tevfik Çakıcı, the father of the applicant and Ahmet Çakıcı; Tahsin Demirbaş and Abdurrahman Al, who had both been detained at Diyarbakır provincial gendarmerie headquarters from 8 November to 1 December 1993. It appeared that Tevfik Çakıcı had died prior to the hearing. The Government claimed that they were unable to locate the witness Hikmet Aksoy for the hearing in July 1996 despite the fact that they had been provided with information from the applicant that he was detained in Konya Prison. The Government stated that Hikmet Aksoy was served with the summons for the hearing to take place before the delegates on 20 November 1996 but that he refused to sign the acknowledgment of service and was released from prison on 18 November 1996. The Government failed to provide the Commission with any explanation as to the timing and reason for his release. Aydın Tekin had informed the Commission by letter that he had no direct or indirect knowledge of the incident and that he did not consider himself obliged to attend. At the hearing in July 1996, the Government Agent explained to the delegates that they were unable to require public prosecutors to attend, nor could they oblige a senior officer such as Eşref Hatipoğlu to attend either.
The Commission made a finding in its report (at paragraph 245) that the Government had fallen short of their obligations under former Article 28 § 1 (a) of the Convention to furnish all the necessary facilities to the Commission in its task of establishing the facts. It referred to
(i) the Government’s failure to provide the Commission’s delegates with the opportunity to view original custody records (see paragraph 24 above);
(ii) the Government’s failure to facilitate the attendance of the witness Hikmet Aksoy;
(iii) the Government’s failure to secure the attendance of the witnesses Aydın Tekin and Eşref Hatipoğlu.
44. In relation to the oral evidence, the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates.
In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problem of language adverted to above, there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while seventeen witnesses had been summoned to appear, only eleven gave evidence. The lack of documentary materials is adverted to above. The Commission was therefore faced with the difficult task of determining events in the absence of potentially significant testimony and evidence.
The Commission’s findings may be summarised as follows.
45. Çitlibhaçe was in a district where terrorist activity was intense in 1993. On or about 23 October 1993, members of the PKK kidnapped five teachers, an imam and the imam’s brother, Abdullah Cebeci, from the village of Dadaş and marched them across country, passing near the village of Bağlan. Mustafa Engin was required to shelter one of the teachers, who was of Kurdish origin, overnight before allowing him to leave. The PKK shot and killed the remaining four teachers and the imam, while Abdullah Cebeci, though wounded, was able to reach safety. He gave the gendarmes at Lice gendarmerie headquarters descriptions of the persons whom he had seen, including the villagers who had brought food and stood guard. Bağlan was a village under the jurisdiction of Lice gendarmes. The kidnap victims had also passed close to the village of Çitlibahçe, less than a kilometre from Bağlan, but which was under the jurisdiction of the Hazro gendarmes.
46. The gendarmes from Hazro and Lice conducted a coordinated operation on 8 November 1993. This operation concerned the collecting of evidence and information relating to the kidnapping and murder and the apprehension of persons suspected of involvement. Ertan Altınoluk was in command of the gendarmes from Hazro. The operation order drawn up by him on 7 November 1993 indicated that the purpose of the operation was the capture of PKK terrorists and their collaborators and the destruction of shelters, and it named Çitlibahçe as the place of the operation. The Commission rejected the testimony of Ertan Altınoluk that they were not looking for Ahmet Çakıcı when they went to Çitlibahçe. The delegates assessed his evidence as evasive and unhelpful, and demonstrating a lack of sincerity. The Commission had regard to the evidence from two other gendarmes that Ahmet Çakıcı was already wanted by the authorities in relation to suspected PKK involvement before this operation and found that in all probability the Hazro gendarmes went to Çitlibahçe with the intention of locating and apprehending Ahmet Çakıcı in relation to the kidnapping incident.
47. The Commission assessed the evidence of the witnesses from the village, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who stated that they saw Ahmet Çakıcı being taken from the village by the gendarmes, as being on the whole consistent, credible and convincing. They found the Government’s objections to their credibility to be unfounded on examination. Accordingly, the Commission found that when the gendarmes arrived in Çitlibahçe on 8 November 1993, Ahmet Çakıcı attempted to hide but was found and taken from the village in custody by the Hazro gendarmes. Meanwhile, in Bağlan village, the Lice gendarmes took into detention three individuals, Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş.
48. Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş were taken to Lice gendarmerie headquarters where they spent the night. They were not entered into the custody records. The next day, on 9 November 1993, they were taken to Diyarbakır provincial gendarmerie headquarters, where entries in the custody record stated that they had been detained on that day.
49. The Hazro gendarmerie station custody record made no entry on 8 November with respect to Ahmet Çakıcı. Nor did the copies of the entries for the period November to December 1993 at the Diyarbakır provincial gendarmerie headquarters. The Commission examined in detail the entries for both. It found disturbing discrepancies. In particular, it found that entries were not in sequential or chronological order; that all the entries in the Diyarbakır custody record were in the same handwriting; and that the number of persons recorded as detained in Diyarbakır exceeded the officially available number of cells. This gave rise, inter alia, to a strong suspicion that entries were not made contemporaneously. The oral explanations of Ahmet Katmerkaya, who was responsible for the Diyarbakır provincial gendarmerie records, were found by the Commission to be highly unsatisfactory, indicating that an entry in the register did not necessarily indicate the physical presence of a suspect and that no entries were made to reflect the movements of suspects in and out of the custody area. It concluded that the record did not constitute an accurate or comprehensive record of the persons who might have been detained over that period and the absence of Ahmet Çakıcı’s name in the Hazro and Diyarbakır records was not sufficient to prove that he had not been taken into custody.
50. The Commission accepted the oral evidence of Mustafa Engin, who stated that while he was detained at Diyarbakır provincial gendarmerie headquarters he saw and spoke to Ahmet Çakıcı, who was detained over a period of sixteen to seventeen days in the same room. It also accepted his evidence that Ahmet Çakıcı looked in a bad condition, with dried blood on his clothes, and that Ahmet Çakıcı had told him that he had been beaten, one of his ribs broken, his head split open and that he had been given electric shocks twice. Supporting evidence for the fact that Ahmet Çakıcı had been detained and ill-treated was to be found in the written statement of Abdurrahman Al, taken by the HRA.
The Commission gave consideration to the written statements made by Mustafa Engin and relied on by the Government as undermining his oral testimony. It found the first statement taken from Mustafa Engin by a police officer on 12 March 1996 to be a brief and imprecise denial. The statement taken by a public prosecutor on 13 May 1996 was also brief and contained contradictory and ambiguous phrasing. It concluded that this statement was not a full and frank reflection of Mustafa Engin’s testimony and did not destroy the credibility of his evidence to the delegates. It accordingly found it established that Ahmet Çakıcı was taken after his apprehension at Çitlibahçe to Hazro where he spent the night of 8 November 1993 and that he was transferred to Diyarbakır provincial gendarmerie headquarters where he was last seen by Mustafa Engin on or about 2 December when the latter was released.
51. The Commission made no findings as to the allegation made by the applicant that Ahmet Çakıcı was taken from Diyarbakır provincial gendarmerie headquarters to Hazro and from Hazro to Kavaklıboğaz gendarmerie station. These allegations were based on oral statements made to the applicant by Hikmet Aksoy, who did not appear before the delegates and who had not produced any written statement. While there were some supporting elements, the Commission found that the evidence failed to reach the requisite standard of proof.
52. The family of Ahmet Çakıcı were not informed of his alleged death in a clash between the PKK and the security forces on 17 to 19 February 1995. Although Colonel Eşref Hatipoğlu had been requested to provide the authorities with information as to the whereabouts of Ahmet Çakıcı, he made no official report as to the alleged finding of Ahmet Çakıcı’s identity card on the body of one of the dead terrorists at Kıllıboğan Hill. The first report as to the finding of the identity card was made by the Hazro gendarmes, who had been passed information that the clash had occurred, accompanied by unspecified documents, by Colonel Hatipoğlu. There were however no documents provided to the Commission relating to the identification of the body or release of the body for burial. The Commission was not prepared to find it established that Ahmet Çakıcı was killed as alleged or that his body was amongst those found at Kıllıboğan Hill.
53. The Commission found that the applicant and his father, Tevfik Çakıcı, made petitions and enquiries to the National Security Court prosecutor at Diyarbakır in relation to the disappearance of Ahmet Çakıcı. The only steps taken by the authorities were to verify whether the National Security Court records contained the name of Ahmet Çakıcı and for an enquiry to be sent to the Hazro public prosecutor, who examined his records.
54. Following communication of the application to the Government, further enquiries were made by the Diyarbakır and Hazro public prosecutors. Statements were taken from Mustafa Engin, Remziye Çakıcı and the applicant. The addresses of Tahsin Demirbaş and Abdurrahman Al were not discovered. The Commission found that the Hazro public prosecutor made enquiries from the Hazro district gendarmerie as to their alleged apprehension of Ahmet Çakıcı but that he did not inspect the original custody record. Nor was any inspection carried out by a public prosecutor of the Diyarbakır provincial gendarmerie custody records. No steps were taken to verify the information submitted by the Hazro district gendarmerie that Ahmet Çakıcı was amongst the dead terrorists at Kıllıboğan Hill.
55. In reaching his decision of lack of jurisdiction of 13 June 1996, the Hazro public prosecutor had available to him the statements taken from Mustafa Engin, Remziye Çakıcı and the applicant and the information from the Hazro gendarmerie with regard to the alleged discovery of Ahmet Çakıcı’s body. He also may have had documents relating to the applicant’s application to the Commission and copies of custody records.
56. The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case. The Court refers to the overview of domestic law derived from previous submissions in other cases, in particular the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1169-70, §§ 56-62, and the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1512-13, §§ 25-29.
57. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.
58. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor.
59. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
60. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review ...
…
The administration shall be liable to make reparation for any damage caused by its own acts and measures.”
61. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
62. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
63. The Turkish Criminal Code makes it a criminal offence:
– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
– to issue threats (Article 191);
– to subject an individual to torture or ill-treatment (Articles 243 and 245);
– to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450).
64. For all 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. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
65. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47.
66. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
67. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 58 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 14
18
3


ITEMID: 001-22077
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BOZHILOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Valentin Vasilev Bozhilov, is a Bulgarian national born in 1941 and living in Sofia.
The applicant was a member of the Communist Party until February 1990. From March until August 1990 he was a member of the Socialist Party. He has not been a member of a political party since 1 September 1990. In 1995, on the proposal of a Socialist member of Parliament, the applicant was appointed Senior Advisor to the Parliamentary Foreign Policy Committee.
On 14 March 1996 the Bulgarian Government nominated the applicant for the post of Director of the Permanent Secretariat of the Black Sea Economic Co-operation (BSEC), an intergovernmental organisation.
On 25 October 1996 by a decision of the Meeting of Ministers of Foreign Affairs of the BSEC countries the applicant was appointed Director of the Secretariat as of 1 May 1997. The applicant has not submitted further details such as whether an employment contract was signed, or not.
In February 1997 there was a change of Government in Bulgaria.
In March 1997 the applicant attended a meeting of a drafting group of the BSEC in Istanbul. In the minutes he was referred to as Director-elect, appointed as of 1 May 1997.
On 21 April 1997 the Bulgarian Council of Ministers accepted the proposal of the Minister of Foreign Affairs to “withdraw” the applicant’s nomination on the ground that “the nomination of Mr Valentin Bozhilov, approved by the previous Government, [was] not in conformity with the tasks of the new Government”.
The Council of Ministers nominated another person for the post of Director of the BSEC Permanent Secretariat. On 30 April 1997 that person was appointed to the post of Director by a decision of the Meeting of Ministers of Foreign Affairs of the BSEC countries.
On an unspecified date the applicant lodged an appeal with the Supreme Administrative Court against the Council of Ministers’ decision of 21 April 1997. The court held a hearing. On 22 December 1997 the applicant’s appeal was declared inadmissible.
The court held that the impugned Government decision did not constitute an administrative act within the meaning of Article 120 of the Constitution and that, therefore, it was not subject to a judicial appeal. The Council of Ministers had exercised their power set out in Article 105 of the Constitution to conduct Bulgaria’s foreign policy. The applicant’s appeal concerned solely the withdrawal of the mandate given to him by the Council of Ministers to represent the country in the BSEC, which did not entail any administrative or civil consequences for him.
Article 120 § 2 of the Constitution provides that a judicial appeal lies against any administrative decision except expressly excluded by law.
The Black Sea Economic Co-operation (BSEC) is an intergovernmental organisation founded by the following participating States: Albania, Armenia, Azerbaijan, Bulgaria, Georgia, Greece, Moldova, Romania, the Russian Federation, Turkey and Ukraine. It was created on 25 June 1992 and has its headquarters in Istanbul, Turkey.
The applicant has not provided detailed information on the organisation’s structure and governing bodies at the relevant time (its Charter came into force only on 1 May 1999, after the period under consideration in the present case).
The applicant submitted excerpts from the “Regulations for the Staff of the Permanent International Secretariat of the BSEC”, apparently in force at the relevant time. Under the Regulations the Director was appointed by the Meeting of Ministers of Foreign Affairs of the BSEC participating States among the nominees proposed by those States. All nominations, accompanied by the candidates’ CV/resumes and other relevant information, had to be notified to the participating States. The Director was appointed in accordance with the rule of rotation. “Geographical distribution and equitable representation [were] also taken into account.”
The duties of the Director were, inter alia, to represent the BSEC International Secretariat in the host country and to supervise the management and the fiscal resources of the Secretariat.