ITEMID: 001-67192
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF CACAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;No violation of Art. 5;Not necessary to examine Art. 6;No violation of Art. 8;No violation of Art. 13;No violation of Art. 14;No violation of P1-1
TEXT: 9. The applicant was born in 1952 and lives in Switzerland. Until December 1993 she lived in the Düzcealan village, attached to the Tatvan District in the province of Bitlis. She left and has never returned to the village after the events alleged below.
10. The facts surrounding the destruction of the applicant's house and property are in dispute between the parties.
11. Before the alleged incident, the village of Düzcealan had been subjected to attacks by the security forces, who had forced the villagers to become village guards.
12. On 27 December 1993 PKK members attacked and burned a bus on the Tatvan-Van highway, about one kilometre from the Düzcealan village.
13. On the same day at about 3 p.m. security forces, led by Gendarme Brigade Commander Korkmaz Tağma, entered the village and surrounded it with armoured military vehicles and unmarked cars. Thereafter, soldiers using G3 weapons and other fire arms opened fire on the village and destroyed some of the houses with mortar shells. This attack lasted about four hours.
14. At about 9 p.m. three masked men with white oil drums began burning the houses in the village. The applicant's house and possessions were also burned during the incident. All the villagers were gathered in the village square and beaten by the soldiers. Necmi Çaçan, the applicant's brother-in-law, was killed during the incident.
15. After the incident, the applicant left Düzcealan and moved to Izmir and subsequently to Istanbul. On 5 September 1996 she filed a complaint with the Istanbul public prosecutor for the attention of the Tatvan public prosecutor's office. She alleged that on 27 December 1993 security forces had raided the village of Düzcealan and burned down her house and belongings.
16. While she was living in Istanbul, on 27 May 1997 the applicant's house was raided by the police. As a result of the intimidation to which she was subjected in Turkey, the applicant had to move to Switzerland.
17. The Government submitted in the first place that the village of Düzcealan had been under constant threat from PKK members, who forced the villagers to provide them with food and supplies. Young villagers were also forced to join the PKK. However, the villagers resisted the pressures brought to bear on them.
18. In their observations, the Government disputed the facts as submitted by the applicant. They stated that no military operation had been conducted in the village of Düzcealan. In this connection, they maintained that on 29 December 1993, at about 3 p.m., a bus and a truck had been attacked and burned by the PKK on the Tatvan-Van highway, about one kilometre from the Düzcealan village. After this attack, PKK members escaped and entered the applicant's village. The terrorists raided the village, killed Necmi Çaçan, and burned down some of the houses. This attack lasted until the morning of the following day.
19. On the morning of 30 December 1993, an on-site investigation was conducted in the village by the non-commissioned gendarme officer, Yavuz Gürbüz. In his incident report, Mr Gürbüz noted that the houses of Hikmet Küçükarslan, Mehmet İşbulan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Küçükarslan and Mehmet Şirin Çaçan, and the harvest of Sait Adar, Abdülmecit Çaçan, Mehmet İşbulan, Bedrettin Çaçan, Necmi Çaçan and Hikmet Kılıçarslan had been burned by the PKK. The report further noted that Necmi Çaçan had been shot dead by members of this illegal group. The security forces found one cartridge and 94 empty cartridges, 4 of which were near Necmi Çaçan's body. The non-commissioned officer further drew a sketch of the houses which had been burned down the day before. The Government emphasised that the applicant's house was not among the houses which had been burned down on 29 December 1993.
20. Further to this incident, the Tatvan public prosecutor commenced an investigation into the destruction of the six houses and the killing of Necmi Çaçan. On 4 January 1994 the Tatvan public prosecutor delivered a decision of non-jurisdiction and transferred the file to the Diyarbakır State Security Court Public Prosecutor. On 12 December 1995 Mehmet Durman, Mehmet Şirin Mete, Alattin Çaçan and Mehmet Sait Adar, who used to reside in the Düzcealan village before April 1994, gave statements to the gendarme. They said that they had left the village in April 1994 due to pressure from the terrorist organisation. The proceedings are still pending before the Diyarbakır State Security Court as the perpetrators of the crime remain unknown.
21. When the applicant filed a complaint concerning the destruction of her house and possessions by the security forces on 5 September 1996, the authorities undertook a further investigation into her allegations. On 9 October 1996 the Tatvan public prosecutor declared that he was not competent for reasons of jurisdiction and transferred the file to the Diyarbakır public prosecutor's office at the State Security Court. On 30 October 1996 the Diyarbakır State Security Court Public Prosecutor declined jurisdiction and sent the file back to the Tatvan public prosecutor. On 14 November 1996 the Tatvan public prosecutor delivered another non-jurisdiction decision and transmitted the case file to the Bitlis Governor's office, pursuant to the Law on the Prosecution of Civil Servants.
22. Upon receipt of the file, the Bitlis Provincial Administrative Council immediately commenced an investigation and appointed Mr Sabri Dikici, a gendarme officer, to investigate the allegations against the security forces.
23. Mr Dikici took fifteen statements from nine different persons, namely Alaattin Çaçan (mayor of the Düzcealan village), Şemsettin Demir (mayor of the Kolbaşı village), Servet İlhan, İbrahim Çaçan, Yavuz Gürbüz (gendarme officers), Ismail Çaçan, Mehmet Durman, Sait Adar and Mehmet İşbulan (villagers from Düzcealan). The applicant's statement was also taken by the police. In her statement she mainly reiterated her complaint lodged with the public prosecutor.
24. On 13 February 1997 the investigator conducted an on-site inspection in Düzcealan together with the village mayor. The village mayor informed him that the applicant had already left the village when her house was burned by the PKK in April 1994. In his report, the investigator indicated that there were no signs of mortar or gunfire on the remains of the houses. He concluded that the houses had been burned down by the PKK to punish the villagers for abandoning the village in April 1994. Some of the houses were further damaged on account of bad weather.
25. The investigator inquired from the relevant military commanders whether a military operation had been conducted in the Düzcealan village on 27 December 1993. On 24 December 1997 the Bitlis Gendarme Commander informed the Tatvan District Gendarme Commander that no military operation had been conducted in the village on 29 December 1993. However, he indicated that a bus had been burned near the Düzcealan village on that day. He further maintained that as the accused gendarme commander, Korkmaz Tağma, had retired from the military, his address could not be established and it was therefore impossible to take his statement. The Bitlis Security Directorate and Tatvan District Security Directorate further stated, on 8 and 10 January 1997 respectively, that they had not been involved in an operation in the Düzcealan village on 27 December 1993.
26. In the light of the evidence before him, the investigator concluded that the applicant's house had not been burned down by the security forces as alleged, but by the PKK after the villagers had evacuated the village in April 1994. In a report dated 14 May 1997, he advised the Bitlis Provincial Administrative Council to discontinue the proceedings against the security forces. On 20 May 1997 the Governor of Bitlis approved the conclusion of the investigator and ordered that the procedure against the security forces be terminated.
27. The Government finally submitted that the applicant's husband owned three plots of land totalling 14,245 square metres in the Düzcealan village. They further contended that the applicant had only one cow, which she had sold to Ramazan Gökçe, a villager from a neighbouring village, before she left Düzcealan.
28. In her petition, the applicant complained of the killing of her brother-in-law, Necmi Çaçan, and the destruction of her house and possessions by the security forces.
29. According to the copies of the title deeds, submitted to the Court, the applicant's husband, Hakim Çaçan, owns three plots of land in the village of Düzcealan.
30. On 4 January 1993 the Tatvan public prosecutor delivered a non-jurisdiction decision and sent the case file on the killing of Necmi Çaçan and the burning of six houses in the village of Düzcealan to the office of the chief public prosecutor attached to the Diyarbakır State Security Court. In the decision, it was stated that on the night of 29 December 1993 unidentified PKK terrorists had attacked the Düzcealan village, killed Necmi Çaçan and burned down the houses and harvest of Hikmet Kılıçarslan, Mehmet İşbulan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan, Mehmet Şirin Çaçan, Mehmet Sait Adar, Abdülmecit Çaçan and Bedrettin Çaçan.
31. On 9 October 1996 the Tatvan public prosecutor took a decision not to prosecute and transferred the case file to the office of the public prosecutor attached to the Diyarbakır State Security Court, as the complaint fell within the jurisdiction of that court, pursuant to Laws No. 2845 and 3713.
32. On 30 October 1996 the Diyarbakır State Security Court public prosecutor remitted the case to the Tatvan public prosecutor on the ground that he lacked jurisdiction to examine this complaint.
33. On 14 November 1996 the Tatvan public prosecutor delivered a non-jurisdiction decision and sent the file to the Bitlis Governor's office pursuant to the Law on the Prosecution of Civil Servants.
34. On 22 November 1996 a gendarme officer, Sabri Dikici, was appointed as investigator by the Bitlis Provincial Administrative Council.
35. In his statement the witness explained that he had lived in the Düzcealan village until April 1994 and had been the village mayor for three years. According to the witness, PKK members had been coming to Düzcealan to spread propaganda and ask for food, clothes and shelter. They also tried to persuade the young villagers to join the PKK. The witness recalled that the terrorists had conducted a raid in Düzcealan on the night of 29 December 1993, killed Necmi Çaçan and burned down the houses and harvest of the villagers. He emphasised, however, that the applicant's house had not been burned down on that day. It was burned down by the terrorists after the villagers had abandoned the village. The villagers left Düzcealan of their own free will. The security forces never forced the villagers to abandon their homes. The village was therefore empty when Zahide Çaçan's house was burned down.
36. In his statements the witness reiterated that he had been the mayor of the Kolbaşı village, a neighbouring village of Düzcealan. He recalled that following the incidents that took place on 30 December 1993, he heard that Necmi Çaçan from the Düzcealan village had been killed and that the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan, Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan had been burned down by the terrorists. Due to PKK pressure, the villagers decided to evacuate the village in April 1994. Before leaving, they sold their animals in neighbouring villages. The applicant's husband sold his cow to Ramazan Gökçe from the Kolbaşı village. When the villagers left, PKK members burned down the remaining houses, including the applicant's. The witness concluded that Zahide Çaçan's house was burned down in April 1994 by the PKK after the village had already been evacuated.
37. The witness is a gendarme officer, who used to live in the Düzcealan village until 1991. After his family left Düzcealan, the witness never returned to the village and stated that he had no knowledge of the alleged incidents.
38. The witness was the gendarmerie commander in Yelkenli attached to Tatvan in the Bitlis province between 1991 and 1994. The Düzcealan village was among the fifteen villages in the region that were attached to his command. He stated that he did not remember the exact date of the incident. On the day of the incident, terrorists attacked a bus on the Tatvan-Van road, which is about one kilometre from the Düzcealan village. The terrorists burned the bus and tried to escape through the Düzcealan village, setting fire to five or six places in the village. The next day, at about 6 a.m., the witness went to the scene of the incident with a security team, and drafted a sketch of the bus and of the houses. Korkmaz Tağma was the Bitlis Provincial Security Commander at the time of the events. He was informed about the events via wireless. The villagers in Düzcealan abandoned their village of their own free will due to pressure from the terrorists.
39. In a letter dated 8 January 1997, the Bitlis Security Directorate indicated that their Directorate had not been involved in any operation in the Düzcealan village on 27 December 1993.
40. The Tatvan Security Directorate concluded that their Directorate had not been involved in an operation in the Düzcealan village on 27 December 1993.
41. In this letter, the Bitlis Gendarme Commander informed the Bitlis Governor that no military operation had been conducted in the Düzcealan village on 27 December 1993.
42. In a letter dated 24 December 1997 the Bitlis Gendarme Commander informed the Tatvan District Commander that on 27 December 1993 a bus had been burned by the PKK. He indicated that there were no military records indicating that a possible military operation had been conducted in the village of Düzcealan on the same date.
43. On 13 February 1997 the investigator Sabri Dikici conducted an on-site visit to the village of Düzcealan together with the mayor of Alaattin Çaçan. In his report, he concluded that there were 35 households in the village and that the village had been completely evacuated. The houses, which were made of concrete, had been badly damaged or were in ruin due to disuse and the effect of bad weather. There were no signs of a mortar attack.
44. Referring to the statements of the villagers, gendarme officers, the relevant military reports and documents, the investigator concluded that the applicant'He found that the village was in fact raided by the PKK on the night of 29 December 1993. However, it was clear from the testimonies of the villagers that the applicant's house was not destroyed that day. From the evidence before him, the investigator found that the applicant had in fact stayed in the village until April 1994, when the villagers evacuated Düzcealan to escape the pressure from PKK members. The applicant sold her cow to a certain Ramazan Gökçe from the Kolbaşı village and moved out before her house was burned down by the PKK. When the village was evacuated, they burned down all the houses. There was no pressure from the security forces to evacuate the village.
45. Referring to the investigation report prepared by gendarme officer Sabri Dikici, the Head of the Bitlis Administrative Council recommended the Governor to discontinue the proceedings against the security forces.
46. On 20 May 1997 the Bitlis Governor decided that the proceedings against the security forces should be dismissed.
47. In his statement, the witness explained that he had been living in Çamaltı hamlet of the Düzcealan village until April 1994. He stated that the village of Düzcealan and its hamlets had been evacuated by the villagers of their own free will as they wanted to escape from the pressure exerted on them by the PKK. After the village was evacuated, the PKK burned down all the houses.
48. In the sketch, drafted by the gendarme officer Yavuz Gürbüz, the locations of the six houses which had been burned down on 29 December 1993 were indicated.
49. In the report, prepared by gendarme officer Yavuz Gürbüz, it was noted that on 29 December 1993, at about 3.45 p.m., a bus with the registration number 34 JYL 13 was burned by PKK terrorists. The terrorists then escaped to the Düzcealan village and burned down the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan. They also killed Necmi Çaçan.
50. In this report, it was noted that a bus had been burned on 29 December 1993. This was followed by the killing of Necmi Çaçan and the burning down of some houses in the Düzcealan village. It was, however, established that no military records existed indicating that a military operation had been conducted in Düzcealan on that day. The Commander further noted that as Korkmaz Tağma, the accused gendarme commander, had retired from military forces, his address could not be established, with the result that no statement could be taken from him.
51. In his statement, the witness deposed that he used to reside in Çamaltı hamlet attached to the Düzcealan village. He explained that all the villagers evacuated the village and the hamlet in April 1994 due to the activities of the PKK. PKK members had been asking the villagers to supply them with food, clothes and weapons. They also wanted to persuade the children to go to the mountains. According to the witness, the security forces never forced the villagers to abandon the village. The villagers left of their own motion due to PKK pressure. The houses were burned down subsequently by PKK members after the village had been evacuated.
52. The witness used to live in the Düzcealan village until April 1994. He recalled that, on the night of 29 December 1993, PKK members raided the village, burning down the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan. Necmi Çaçan, a villager, was also killed by PKK members. The PKK pressurised the villagers and demanded logistic support. In order to escape this intimidation, the witness left the village in April 1994, together with all the villagers of Düzcealan. He explained that Zahide Çaçan had also lived in the village until April 1994. He recalled that, before leaving, she had sold her cow to Ramazan Gökçe from the Kolbaşı village.
53. In her statement, dated 30 January 1997, the applicant mainly reiterated the complaints she had made to the public prosecutor.
54. The witness used to reside in the village of Düzcealan. Following the burning of a bus on the Tatvan-Van highway, a clash broke out between the security forces and PKK terrorists. The terrorists entered the Düzcealan village. They killed Necmi Çaçan, burned down the houses of Mehmet İşbulan, Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Abdülmecit Çaçan, Mehmet İşbulan, Necmi Çaçan and Hikmet Kılıçarslan. The witness stated that his crops were burned down by PKK members.
55. The witness, who used to live in the Düzcealan village, stated that on 29 December 1993 at about 4 p.m. a bus had been burned by the PKK on the Tatvan-Van highway. Subsequently a clash broke out between the security forces and PKK members. The PKK members escaped to the village of Düzcealan. When they arrived in the village, they burned and destroyed his house and harvest. The houses of Hikmet Kılıçarslan, Sebahattin Çaçan, Hayrettin Çaçan, Feyzullah Kılıçarslan and Mehmet Şirin Çaçan, and the harvest of Said Adar, Abdülmecit Çaçan, Necmi Çaçan and Hikmet Kılıçarslan were also destroyed. Moreover, they killed Necmi Çaçan.
56. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003) and Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002).
NON_VIOLATED_ARTICLES: 13
14
3
5
8


ITEMID: 001-71416
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KHAZIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Albert Kharisovich Khaziyev, is a Russian national who was born in 1950 and lives in the town of Izhevsk. He is represented before the Court by Mr R. I. Mukhametshin, a lawyer practising in Izhevsk. The Russian Government (“the Government”) were 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.
In the 1980s the applicant took part in a rescue operation on the site of the Chernobyl nuclear disaster. As of an unspecified date the applicant has been in receipt of social benefits in this connection.
On an unspecified date the applicant brought court proceedings against the social security authority (Отдел пенсий и пособий Администрации Первомайского района г. Ижевска, “the authority”) for unpaid social benefits.
On 17 May 1999 the Pervomayskiy District Court of the town of Izhevsk granted the claim and ordered the authority to re-calculate the amount of the applicant’s social benefits. It appears that the judgment indicated the specific amounts due by the authority.
Having examined the authority’s appeal on 1 February 2000, the Supreme Court of the Republic of Udmurtiya upheld the judgment of 17 May 1999 with minor amendments. In particular, it replaced the specific amounts with a general indication that the authority ought to have re-calculated the applicant’s social benefits using index “6”.
On 22 February 2000 the first instance court issued the writ of execution in respect of the judgment of 17 May 1999.
It appears that thereafter the applicant sent the writ to the bailiffs and on 20 March 2000 they opened the enforcement proceedings.
Having received a letter from the authority confirming the compliance with the judgment, on 27 March 2000 the bailiff terminated the enforcement proceedings. The letter of the authority stated that the amount due for the period between 21 August 1996 and 31 January 2000 (150,763.95 RUR) was requested from the Ministry of Finance, that the re-calculated monthly payment for period as of February 2000 was of 5,401.44 RUR and that it was paid in full.
It appears that the payment allegedly due for the period from 21 August 1996 to January 2000 was not paid to the applicant and on an unspecified date the applicant brought court proceedings against the authority in this connection. He also sought higher amount of social benefits and damages.
By judgment of 23 December 2002 the Industrialnyy District Court of the town of Izhevsk partly granted the claim and ordered the authority to pay RUR 96,097.75 as a principal debt in respect of past payments and RUR 30,733.38 as damages in respect of inflation losses in the applicant’s favour. The court clarified the judgment of 17 May 1999 and the decision of 1 February 2000, having ruled that the authority ought to have re-calculated the applicant’s monthly payments for the period from March 1999 onwards and not from 21 August 1996 as indicated by the authority earlier.
The judgment of 23 December 2002 was upheld on appeal by the Supreme Court of the Republic of Udmurtiya on 23 January 2003.
The Government submits that the money due pursuant to the judgment of 23 December 2002 and the decision of 23 January 2003 was paid to the applicant in full on 22 May 2003.
A special law adopted in 1995 entitles the participants of the liquidation of the consequences of the Chernobyl nuclear accident to additional social benefits, including monthly payments.
Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that a coercive action will follow, should the defendant fail to comply with the time-limit.
Under Section 13 of the Law, the enforcement proceedings should be completed within two months upon receipt of the writ of enforcement by the bailiff.


ITEMID: 001-90950
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LOBANOVSKAYA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Ms Svetlana Vasilyevna Lobanovskaya, is a Russian national who was born in 1959 and lives in the Krasnodar Region. She was represented before the Court by Mr V. Shamshurov, a lawyer practising in the Krasnodar Region. The respondent Government were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives 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.
On 19 November 2002 the police arrested a person codenamed by the authorities “Fyodor” for possession of drugs. The arrest was conducted in the presence of two lay witnesses, Mr G. and Mr P. “Fyodor” submitted that he had bought the drugs from the applicant earlier that day and agreed to participate in a test purchase organised by the police.
On 20 November 2002 “Fyodor” bought drugs from the applicant. She was arrested on the spot in the presence of two lay witnesses, Mr Z. and Mr S., and the marked money given to her by “Fyodor” for the drugs were found on her. On the same day she was charged with drug trafficking.
During the investigation “Fyodor” testified that he had purchased the drugs from the applicant on 19 and 20 November 2002. Mr G., Mr P., Mr Z., and Mr S. also gave written depositions to the investigator, describing the circumstances of “Fyodor’s” and the applicant’s arrests.
As neither of the witnesses appeared at the hearing, the prosecutor requested the court’s permission to read out their statements. The applicant and her counsel did not object and the witnesses’ statements made during the pre-trial investigation were read out.
On 19 June 2003 the Dinskoy District Court of the Krasnodar Region found the applicant guilty of drug trafficking on 19 and 20 November 2002 and sentenced her to four years and six months’ imprisonment with forfeiture of estate. The conviction was based on the pre-trial testimonies of “Fyodor” and the lay witnesses, and the material evidence, including the marked money found on the applicant.
The applicant appealed. It follows from the summary made by the appeal court that she protested her innocence, alleged that the investigation had been procedurally flawed and complained about inaccurate assessment of evidence by the trial court.
On 23 July 2003 the Krasnodar Regional Court upheld the conviction on appeal. The applicant and her counsel were absent, while the prosecutor attended the hearing and pleaded before the court.
On 9 August 2006 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Krasnodar Regional Court. He submitted that the Krasnodar Regional Court had infringed the applicant’s right to attend the appeal hearing.
On 5 July 2007 the Presidium of the Krasnodar Regional Court granted the prosecutor’s application, finding that the failure to bring the applicant before the appeal court had violated the rights of the defence. It quashed the appeal judgment of 23 July 2003 and remitted the case for a fresh examination before the Krasnodar Regional Court.
On 31 October 2007 the Krasnodar Regional Court held a new appeal hearing and upheld the conviction. Counsel for the applicant attended the hearing.


ITEMID: 001-59869
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SOLAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-3-d
JUDGES: Christos Rozakis
TEXT: 8. The applicant, who had lived for a while in the United States of America, was suspected of drug trafficking and a warrant for his arrest was issued by the United States police in January 1996.
9. Following the request of the United States authorities, on 15 August 1997 the public prosecutor asked the Skopje Municipal Court to institute a preliminary investigation against the applicant on charges that between January 1992 and May 1995 he had smuggled around 10.5 kg of drugs from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and that for that purpose had set up a drug-trafficking network involving also his son, who lives in the United States. The prosecution’s request set out the names of the persons involved and against whom criminal proceedings were pending or completed in the United States and asked for their questioning.
10. On 30 September 1997 the investigating judge opened a criminal investigation against the applicant, decided to hear the witnesses proposed by the prosecution and detained the applicant on remand.
11. On 1 October 1997 the investigating judge asked the Ministry of Justice to contact the United States government and to request their assistance in the hearing of some witnesses in their country. On 10 October 1997 the Ministry of Justice addressed the request to the United States embassy.
12. On 7 November 1997 the United States embassy was informed by the investigating judge of the investigation pending against the applicant. The notice contained the names of the witnesses to be examined in the United States and a list of fifteen questions to be put to them.
13. On 28 November 1997 the applicant’s lawyer was informed that the investigating judge would go to the United States one week later and was summoned to the hearing.
14. On 1 December 1997 the lawyer was denied a visa for the United States on the ground that he had not produced all the relevant documents required. The United States embassy informed him that it would review his application for a visa provided that he submitted a certificate of his working position, income, and seniority and evidence that he owned real estate and had family ties in the Former Yugoslav Republic of Macedonia. The lawyer never reapplied for a visa. On 2 December 1997 the applicant withdrew his power of attorney.
15. On 3 December 1997 the applicant appointed another lawyer, who, on the same day, was summoned to attend the hearing of witnesses in the United States, scheduled for 8 December 1997. On the summons, the lawyer placed his signature in the space provided for the bailiff’s signature and the bailiff placed his signature in the space provided for the lawyer’s signature.
16. On 4 December 1997 the applicant was questioned. He stated that he had been informed by the investigating judge that witnesses would be heard in the United States. He had contacted his second lawyer and left to him the decision whether or not to attend the hearing. He further stated that the expenses for the trip would not be a problem as he had sufficient funds to cover them.
17. On the same day the investigating judge informed the United States embassy in the Former Yugoslav Republic of Macedonia that on 28 November 1997 the applicant’s first lawyer had been summoned to attend the questioning of the witnesses in the United States and that the applicant’s second lawyer had declared that there was no need to attend the questioning and that he had insufficient funds to meet the travel expenses.
18. On 8 and 9 December 1997, five witnesses were heard by the investigating judge in the presence of the public prosecutor and the court interpreter. Their testimonies were recorded. The witnesses were involved in the drug-trafficking network organised by the applicant, and they were all serving prison sentences in the United States for drug trafficking.
19. According to the witnesses, who were under oath and were heard separately, it was the applicant who had set up the entire network and who had organised the smuggling into the United States and the re-sale there of approximately 10.5 kg of drugs. The applicant had contacts in Bulgaria, from where he would smuggle the drugs into the Former Yugoslav Republic of Macedonia. He would then arrange for them to be smuggled into the United States. Some of the witnesses stated that they had smuggled the drugs in a plaster-cast which the applicant would wrap around one of their legs, as though it were broken. On their arrival in the United States they would hand over the drugs to the applicant’s son in return for payment. Some of the witnesses stated that they had had an agreement with the applicant and his son for drug dealing and had been supplied with the drugs in the applicant’s and his son’s house.
20. Two of the witnesses who had travelled to Bulgaria on separate occasions gave evidence that they had been taken into Mr Robert M.’s flat in Bulgaria, where Mr Robert M. and the applicant had wrapped plasters with drugs around one of the witnesses’ legs. None of the witnesses made any statement regarding Mr Angel B.
21. On 22 December 1997 the public prosecutor indicted the applicant with drug trafficking from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and with setting up an international network for that purpose. The witnesses’ statements were included in the indictment.
On 29 December 1997 the applicant was released.
22. On 1 January 1998 the applicant made a submission to the Municipal Court that there was no case to answer as there was no convincing evidence against him. In particular, the indictment was predominantly based on the testimonies of the witnesses who were serving prison sentences in the United States and who had not been cross-examined by the defence. The applicant argued that the witnesses had a deal with the United States authorities to have their sentences reduced in exchange for their cooperation. On the one hand, since they had already been convicted in the United States, the witnesses were aware that they would not risk anything if they gave false evidence, as they could not be prosecuted for drug trafficking under the law of the Former Yugoslav Republic of Macedonia. On the other hand, if they modified their testimonies, they ran the risk of losing all the benefits which had been agreed upon by the authorities.
23. On 12 January 1998 the court held that on the basis of all the evidence in the case there was a reasonable suspicion that the applicant might have committed the offence with which he had been charged and refused to terminate the criminal proceedings against him.
24. On 13 January 1998 a hearing was held before the Skopje Municipal Court. On 22 January 1998 a second hearing was held. The applicant claimed to be innocent and stated that he had not travelled to the United States because he knew that it might be dangerous for him.
Photographs showing the plaster-cast, belonging to a person involved in the drug dealing with the applicant, in which drugs had been found, photographs of the witnesses, reports on the search of the applicant’s son’s and another witness’s flat where some drugs had been found and the reports on the investigation in connection with the applicant’s son and his pre-trial detention were, inter alia, examined.
25. The applicant complained that he had been unable to cross-examine the witnesses. He also objected to their statements being read out in open court.
The court decided to read out in open court the statements of the witnesses examined in the United States, because “to secure the attendance of the witnesses is extremely difficult and there are also other important reasons”.
The applicant challenged the witnesses’ statements without pointing out concretely why they should not be considered trustworthy, or specifying the questions that he would have liked to be put to the witnesses.
26. At the hearing of 22 January 1998 the applicant requested that two additional witnesses for the defence be examined. The record of the hearing states as follows:
“... the applicant’s lawyer asked the court to gather information about Mr Robert M., in particular regarding his place of residence, whether Mr Robert M. was charged with being one of the co-organisers [of the drug trafficking] with the accused, [and if so] to obtain his case file, and to call him as a witness.
He also called the witness, Mr Angel B., from the village of Kompliven, Bulgaria, to give evidence on whether he knew the accused and Mr Robert M., whether he had ever been in Mr Robert M.’s flat with the accused, whether he knew if the accused had been supplied with drugs (amphetamines), whether he knew some of the prosecution witnesses, etc. ...”
The Skopje Municipal Court refused the motion on the ground that “the court [had] sufficient evidence before it to reach its verdict”.
27. On 26 January 1998 the municipal court found the applicant guilty of drug trafficking within the meaning of Article 255 § 2 of the Criminal Code and sentenced him to ten years’ imprisonment. The court dismissed the applicant’s objection that there had been a breach of his right of defence in that he had been unable to cross-examine the witnesses, on the ground that it had been impossible to summon them. It considered the witnesses’ statements reliable, since they had had no opportunity to make a deal with the public prosecutor of the Former Yugoslav Republic of Macedonia to have their sentences in the United States reduced in exchange for giving evidence against the applicant. The court further observed that all the witnesses had recognised the applicant on a photo and that, although each of them had been heard separately by the investigating judge in the presence of the public prosecutor, their statements were consistent and precise. The court also had regard to the applicant’s testimony.
28. On 26 February 1998 the public prosecutor submitted an appeal to the Skopje Court of Appeal (Апелационен суд) requesting an increase of the sentence in view of the nature of the offence committed, the degree of danger to the public, the fact that it concerned organised crime at international level and the fact that the applicant was a habitual offender.
29. On 6 March 1998 the applicant also filed an appeal with the Skopje Court of Appeal, complaining, inter alia, that the lower court had infringed the Code of Criminal Procedure and Article 6 of the Convention, as it had reached its verdict only on the basis of the statements of witnesses whom he had not cross-examined. The applicant further complained about the court’s refusal to hear two additional witnesses on his behalf.
30. On 20 May 1998 the Court of Appeal dismissed the applicant’s appeal on the ground that the Municipal Court had acted in accordance with Article 325 of the Code of Criminal Procedure, which stated that witnesses might be heard in the absence of the accused or his lawyer if there was a valid reason making it impossible or extremely difficult to do otherwise (see “Relevant domestic law and practice” below).
The court found that the lower court had given a reasoned explanation why it was extremely difficult to cross-examine those witnesses at the public hearing. They had been heard only by the investigating judge and the public prosecutor, but the legal representatives of the applicant had been duly summoned for the examination of the witnesses and, therefore, had had a sufficient opportunity to attend the witnesses’ questioning.
It held that the statements were consistent and logical and were corroborated by each other and by other evidence such as the reports from the searches carried out in the flat of the applicant’s son and of another witness. It also held that the two witnesses called by the defence were not relevant as they would not have contributed much to the establishment of the truth.
The court granted the public prosecutor’s appeal and increased the applicant’s sentence to thirteen years’ imprisonment.
31. On 11 June 1998 the applicant filed an appeal on points of law (Барање за вонредно преиспитување на правосилна одлука) with the Supreme Court (Врховен суд).
32. On 2 July 1998 the Supreme Court dismissed the appeal on points of law on the grounds that the investigating judge had acted within his competence when he decided to interrogate the witnesses in the United States and that the applicant and his lawyers had been given an opportunity to attend the hearing. Furthermore, the Supreme Court held that it would have been impossible to have the witnesses heard at the public hearing, as they were serving a prison sentence abroad. Consequently, in accordance with the rules of the Code of Criminal Procedure there were sufficient reasons to justify the statements being read out at the public hearing.
33. On 6 September 1999 the applicant’s son declared before a notary that his father had had nothing to do with drug trafficking. Another person also declared before a public notary that the applicant had been engaged in trade with spare parts for motor vehicles.
On 5 October 1999 the applicant applied to the Skopje Municipal Court to have his case reopened on the basis of those declarations. His application was dismissed on 27 October 1999. On 27 December 1999 that decision was upheld by the Skopje Court of Appeal.
34. Article 22 § 6, inter alia, provides that a bench of three judges of the first-instance court shall decide on appeals lodged against the decisions of the investigating judge.
Article 382 § 1, inter alia, provides that a person shall have the right to appeal against the decisions of the investigating judge.
35. Article 66 §§ 2 and 5 provides that the president of the court may officially appoint a lawyer for a person who is detained pending trial.
36. Under Articles 69 and 124 a lawyer has the right to consult all the documents in the case file from the day the prosecution authorities request the investigating judge to open a preliminary investigation. A defendant enjoys that right from the day he has been questioned by the investigating judge.
37. Article 160 provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation.
Article 161 §§ 4, 5 and 7 reads as follows:
“4. The prosecution, the defendant and the defendant’s lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ...
5. When the prosecution, the defendant and the defendant’s lawyer are entitled to be present ... at an interrogation of a witness by an investigating judge, they shall be informed of the time and place of ... the interrogation. If the defendant has been represented by a lawyer the investigating judge shall only inform the lawyer.
...
7. Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ...”
Article 325 §§ 1, 2 and 5 reads as follows:
“1. When an allegation is based on a statement of a person, that person shall be heard at a public hearing. The right to cross-examine him shall not be lost because the transcript of his statement is read out, or because he has already given a written statement.
2. As an exception ... a bench of judges may decide to read out the transcript of the witness’s statement ... if:
(i) the person concerned has died, is mentally ill, cannot be found, or if his attendance is impossible because of old age, illness or any other important reason.
...
5. In the records of the public hearing, the court shall state the reasons why the transcript of the witness’s statement is read out and whether the witness ... took an oath.”
As a matter of court practice, the fact that a witness is abroad has been considered as an “important reason” within the meaning of Article 325 § 2 (i) of the Code, as the court may have no effective means of securing his attendance at the public hearing.
Article 326 provides that where necessary the court may, at its own discretion, decide to hear a tape-recording of the witness’s statement instead of relying solely on the transcript.
38. Article 274 §§ 1 and 2 reads as follows:
“1. The parties shall have the right to call a witness ... or other evidence at the hearing even after the case is listed for a hearing.
2. If the President of the Chamber dismisses the request to call fresh evidence, the parties shall have the right to call the evidence at the public hearing.”
39. Article 392 provides that criminal proceedings may be reopened if, inter alia, a new fact or new evidence is adduced or called before the court, which may prove the convicted person’s innocence or militate for the reduction of his sentence.
Article 411 § 1 reads as follows:
“A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an appeal on points of law in the cases set forth in this Code.”
Article 412 reads as follows:
“The Supreme Court shall have jurisdiction to deal with such appeals.”
Article 413 taken in conjunction with Articles 355 and 356 lays down that such appeals may be lodged on the ground that the courts have erred in law.
Article 415 taken in conjunction with Article 408 provides that when the Supreme Court grants the appeal on points of law it may substitute its own verdict or quash the decisions of the lower courts and remit the case to them, or declare that the lower courts erred in law.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-122454
LANGUAGEISOCODE: ENG
RESPONDENT: AUT;ITA
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: HALIMI v. AUSTRIA AND ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Mr Nasib Halimi, is an Afghan national who was born in 1994 and resides at present in Vienna. He was represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna.
2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.
4. The applicant lodged his first asylum request in Austria on 20 September 2010. He claimed then to be 17 years old and to have left Afghanistan two and a half years before. He spent two years in Turkey and had finally left for Italy with the aid of traffickers. He and a group of others had hidden in a refrigerator truck that was held up and searched in Tarvisio, Italy. There, police officers had allegedly taken the applicant to a police station, interviewed him without an interpreter, and held him without food or water for twenty-four hours. After his release they had handed him an order to leave the country, which the applicant had thrown away. He had taken a train for Rome, slept in a railway station, received food from a church and, finally, after five days in Italy, travelled on to Austria. He stated that he had left Afghanistan because the Taliban had come to his village and had asked his father to cooperate with them, which he had refused to do. Thereupon, the Taliban had kidnapped his father and brother, and the applicant had been afraid that he would suffer the same destiny if he stayed in Afghanistan.
5. With regard to his age, the applicant claimed to have been born on 5 December 1372 according to the Afghan calendar. He stated that in Turkey he had been told to say that he was born on 24 February 1993, whereas a conversion of his birth date into the Gregorian calendar would give a birth date of 24 February 1994. The applicant mentioned that he had a birth certificate showing that he was 17 years old. However, he was not entirely certain about his date of birth.
6. When asked whether he had lodged an asylum request in Italy, the applicant replied in the negative, stating that he wanted to lodge his asylum application in Austria, not in Italy.
7. On 21 February 2011 the Federal Asylum Office (Bundesasylamt) rejected the applicant’s asylum request under section 5 of the 2005 Asylum Act and declared that Italy had jurisdiction in respect of asylum proceedings pursuant to Article 10 § 1 taken in conjunction with Article 18 § 7 of European Council Regulation no. 343/2003/EC (hereinafter, “the Dublin Regulation”). It also ordered the applicant’s transfer to Italy. It stated that the results of a forensic examination had found the applicant to be at least 19 years old. With reference to a number of country reports concerning asylum proceedings in Italy, the Federal Asylum Office found that asylum requests could be lodged in Italy at any police station or in the local Questura. An asylum-seeker had to present himself personally to lodge a request. The Italian authority would first examine the question of the applicability of the Dublin Regulation and would then forward the request to one of ten Territorial Commissions to be dealt with. With regard to access to subsistence in Italy, the Federal Asylum Office referred to legislation on the provision to asylum-seekers of shelter or financial support and access to medical treatment in accordance with the relevant European Union directives. It further stated that problems had been reported concerning immigration centres in the south of the country owing to refugees arriving by boat. Upon a request by the authority, the Austrian embassy in Rome explained in February 2011 that every asylum-seeker could request an interpreter for his or her interviews, but that an interpreter had to be asked for specifically, which was sometimes difficult and often depended on the good will of the officials dealing with the case. As to the order to leave the country, the embassy explained that an illegal immigrant received an order to leave the country within fifteen days. If he or she did not leave the country, his illegal presence would become a criminal act which could lead to him or her being detained. It could happen that the order to leave the country was given in a language the foreigner could not understand, so that he would slip into a criminal illegal presence in Italy without knowledge or intent.
8. The applicant appealed against the decision.
9. On 21 March 2011 the Asylum Court (Asylgerichtshof) dismissed the applicant’s appeal as unfounded. Referring to country reports on Italy, it found that there was no systematic real risk that the applicant would be subjected to ill-treatment because of lack of access to asylum proceedings, refoulement, or lack of subsistence upon his return to Italy. Furthermore, it found the applicant’s story about his stay in Italy contradictory and not credible. With reference to the “effet utile” principle of Community law, it concluded that the applicant had thus not substantiated his claim of a real risk under Article 3 of the Convention sufficiently for the sovereignty clause to be engaged under the Dublin Regulation. Furthermore, any possible criticism with regard to the treatment of refugees arriving by boat in the south of Italy would not apply to the applicant as a returner to the north of Italy under that Regulation.
10. On 7 April 2011 the applicant was transferred to Italy.
11. The applicant returned to Austria after twelve days and subsequently lodged an asylum request in Austria on 19 April 2011. In his first interview at the Baden police station the applicant stated that the conditions for asylum-seekers in Italy had been inhuman and that the Italian police had treated him badly. In subsequent statements he stated that he had been stopped by police at the airport in Rome immediately upon his return and had been served with a paper ordering him to leave the country. There had again been no interpreter available. He had slept at the Roma Ostiense railway station together with other foreigners, and they had been woken at 6.00 a.m. by the police, in some cases brutally so. When he had tried to enter an official refugee camp in Rome he had been chased away by police. He had received food from a church once per day, but the church did not distribute food at weekends. The applicant further stated that he had had problems with his stomach and kidneys, but no access to medical care.
12. When asked whether he had lodged an asylum request in Italy, the applicant answered that he had not.
13. On 4 January 2012 the applicant was heard by the Federal Asylum Office in the presence of his legal representative. In respect of his medical condition, he submitted that he was suffering from post-traumatic stress disorder and asked for a further psychiatric examination to be carried out. It can be seen from the minutes of the hearing that the applicant interrupted the interview, claiming that he could not carry on because of an acute headache. A number of reports on the reception conditions for asylum-seekers in Italy were handed to his representative, who was given a two-week time-limit to comment. The applicant was placed in detention with a view to his expulsion.
14. On 6 January 2012 the Court applied an interim measure under Rule 39, requesting the Austrian Government to stay the applicant’s transfer to Italy until further notice. Thereupon, the applicant’s transfer to Milan scheduled for 19 January 2012 was cancelled.
15. The applicant’s subsequent asylum proceedings in Austria are still pending at first instance.
16. A doctor’s note from the Amber-Med free clinic in Vienna dated 17 August 2011 stated that the applicant was suffering from gastritis and pain in the lower back and recommended further examinations.
17. In a letter of 29 December 2011 a psychologist at the Hemayat centre for support for trauma patients stated after an hour-long diagnostic meeting that the applicant was suffering from an acute stress reaction that had its origins in a post-traumatic stress disorder and posed a latent suicide risk that could very quickly become acute. The applicant further suffered from a somatoform pain disorder. A stable environment, medical investigation of the pain disorder and long-term psychotherapy were urgently recommended.
18. In the course of the proceedings, the applicant’s representative provided an update by way of an information letter from the Hemayat centre dated 23 May 2012. It was stated therein that the applicant had been receiving regular psychotherapy since 11 January 2012 and that a stable therapeutic relationship had been established in the course of the therapy. There were no diagnostic changes. The letter recommended a stable social environment for the applicant and the continuation of the promising therapy in order for him to avoid a deterioration of his current symptoms.
19. She also submitted an expert opinion prepared in June 2012 by a psychiatrist in Vienna after an examination on 26 June 2012. That opinion found that the applicant’s post-traumatic stress disorder had developed into a depressive episode with a personality change due to extreme stress. The applicant was therefore a multiply traumatised adolescent and the expert classified him as gravely psychologically impaired. She urgently recommended a safe living environment and ongoing psychotherapy to stabilise the applicant’s mental state. His removal would lead to re-traumatisation and could pose an acute suicidal risk.
20. The Austrian Government provided a psychological expert opinion, undated, submitted to the Federal Asylum Office in June 2012. It found that the applicant suffered from a mild adjustment disorder bordering on a stress disorder but without a clinical character. There were no indications of an acute suicidal tendency and no symptoms of serious post-traumatic stress disorder.
21. The relevant European and Italian law, instruments, principles and practice have recently been exhaustively summarised in Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013. Only the information that is particularly relevant to the present case is repeated below.
22. Under the Regulation, the member States must determine, on the basis of a hierarchy of objective criteria (Articles 5 to 14), which member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum-seeker’s case is dealt with by a single member State.
23. Where it is established that an asylum-seeker has irregularly crossed the border into a member State, having come from a third country, the member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place.
24. Where the criteria in the regulation indicate that another member State is responsible, that State is requested to take responsibility for the asylum-seeker and examine the application for asylum (Article 17).
25. By way of derogation from the general rule, each member State may examine an application for asylum lodged with it by a third-country national, even if such an examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the member State responsible and assumes the obligations associated with that responsibility.
26. Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application must be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. When rendering a decision rejecting an application, the authority shall specify which State has jurisdiction in the matter.
27. Section 12 establishes – with the exception of cases falling under section 12a – de facto protection against deportation (faktischer Abschiebeschutz) for aliens who have lodged an application for asylum. However, section 12a provides that a person whose asylum application has been rejected because of lack of jurisdiction under the Dublin Regulation (section 5 of the Asylum Act) is not entitled to such de facto protection against deportation in the event that he or she lodges a second asylum application.
28. Asylum-seekers can lodge an appeal with the Asylum Court against decisions rejecting their application rendered by the Federal Asylum Office as the first-instance asylum authority within one week of the decision (see section 22(12)). However, section 36(1) stipulates that such an appeal shall not have suspensive effect. Section 37 allows the Asylum Court to grant suspensive effect to such an appeal – or to an appeal against a deportation order issued in conjunction with the rejection of an asylum application – within one week if there is reason to believe that the individual’s deportation will give rise to: (i) a real risk of a violation of Articles 2 or 3 of the Convention or of Protocol 6 or Protocol 13 to the Convention; or (ii) a serious threat to his or her life or person as a result of arbitrary violence in connection with an international or internal conflict in relation to which the applicant is a civilian. Against decisions rendered by the Asylum Court, claimants may lodge a complaint with the Constitutional Court alleging a violation of a constitutionally guaranteed right (Article 144 a of the Federal Constitution). Such a complaint has no automatic suspensive effect; however, such suspensive effect can be granted by the Constitutional Court upon a request by the claimant.
29. Reference is made to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41.
30. In particular, paragraphs 33-36 state as follows:
“33. A person wishing to apply for asylum in Italy should do so with the border police or, if already in Italy, with the police (questura) immigration department. As soon as an asylum request has been filed, the petitioner is granted access to Italy as well as to the asylum procedure, and is authorised to remain in Italy pending the determination of the asylum request by the Territorial Commission for the Recognition of International Protection.
34. For petitioners who do not hold a valid entry visa, an identification procedure (fotosegnalamento) is carried out by the police – if need be – with the assistance of an interpreter. This procedure comprises the taking of passport photographs and fingerprints. The fingerprints are checked for matches in EURODAC and the domestic AFIS (Automated Fingerprint Identification System) database. At the end of this procedure, the petitioner is given a notice confirming the first registration (cedolino), on which future appointments are noted, in particular the appointment for the formal registration of the request.
35. The formal asylum request will be made in writing. On the basis of an interview held with the petitioner in a language which he or she understands, the police will fill out the ‘Standard form C/3 for the recognition of refugee status according to the Geneva Convention’ (Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra), which contains questions on the petitioner’s personal data (name, surname, date of birth, citizenship, name and surname of parents/spouse/children and their whereabouts) as well as the details of the journey to Italy and reasons for fleeing the country of origin and for seeking asylum in Italy. The petitioner will be asked to provide a written paper, which will be appended to the form, containing his or her asylum account and written in his or her own language. The police will retain the original form and provide the petitioner with a stamped copy.
36. The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent Territorial Commission for the Recognition of International Protection. During this hearing, the petitioner will be assisted by an interpreter.”
31. The ‘Dublin II Regulation National Report’ on Italy of December 2012 states, in addition to the above-mentioned information with regard to access to the asylum procedure for Dublin-returners (pages 18 and 19 of the report):
“At the arrival in the main airports, the applicant finds NGOs/associations which may help him/her to find an accommodation centre and provide him/her with further information on the asylum procedure. At the airport, the Border Police carry out the fotosegnalamento and verify the person’s identity in the EURODAC database. After having undertaken these procedures, the applicant will receive a letter (called “verbale di invito”) saying that s/he has to go to the Questura competent to continue the asylum procedure. The asylum seeker may be addressed to the office of the Questura where s/he was fingerprinted and photographed or to the office where s/he lodged the asylum application or where the documents related to his/her case are kept. The law does not foresee any support for reaching the competent Questura. In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent Prefecture. However, this support is not always guaranteed and often it happens that the NGO does not have information on the real arrival of the asylum seekers and on whether s/he has found an accommodation there.
Once the person is at the Questura, s/he may face different outcomes according to whether s/he did not apply or s/he did apply for asylum when s/he was in Italy previously.
If the person had never applied for international protection before, s/he is able to ask for protection now and is entitled to the same rights as the other asylum seekers. ...”
32. Both the UNHCR in its “Recommendations on Important Aspects of Refugee Protection in Italy” of July 2012 (page 7) and the Swiss Refugee Council and the Norwegian NGO Juss-Buss in their report “Asylum procedure and reception conditions in Italy” of May 2011 (page 10) refer to incidents in which asylum-seekers have had difficulties lodging a formal asylum application with the Questura, or only obtained an appointment with the Questura several months after their arrival in Italy. During this period of time however, asylum-seekers have no access to accommodation or subsistence.
33. The reception scheme and the reception conditions in Italy are also summarised in Mohammed Hussein, cited above, §§ 42-50.
34. In particular, it is noted in respect of vulnerable asylum-seekers that, pursuant to Legislative Decree no. 140/2005 implementing Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers, asylum-seekers in Italy are entitled to reception facilities. According to Article 8 of that Decree, reception arrangements are to be made on the basis of the specific needs of asylum-seekers and their families, in particular the needs of vulnerable persons, namely unaccompanied minors, disabled persons, pregnant women, single parents with minor children, and persons who have been subjected to torture, rape or other forms of serious psychological, physical or sexual violence. Italian domestic law provides for special guarantees for such vulnerable persons, including a reserved quota of places in the SPRAR reception scheme (see ibid., § 42). The Italian authorities specified in their comments on the report by the Council of Europe Commissioner for Human Rights dated 18 September 2012 that the system of reception in the CARA centres, which accommodate asylum-seekers, envisaged that a range of services must be provided to migrants, including, inter alia, socio-psychological support, with special attention for persons belonging to vulnerable categories, and medical appointments with consultants. These reception conditions were also guaranteed to Dublin-returners. This category received a preliminary form of reception upon arrival from the services present in the main airports; subsequently these asylum-seekers were accommodated in government reception centres. When the transferring country reported an asylum-seeker as belonging to a vulnerable category, appropriate medical measures were taken in the centres with the aim of providing appropriate reception conditions. Special attention was paid to migrants with physical or psychological trauma and to victims of torture, who were entrusted to the medical stations of the reception centres or to a local centre to receive treatment and support of a professional and appropriate nature (see ibid., § 45).
35. As regards medical assistance, the Italian comments established as follows (ibid.).
“In Italy, foreign citizens, even those not complying with the provisions regulating their presence, are entitled to ordinary and/or urgent treatment through the National Health Service.
In the government centres for migrants the psychic/physical health of guests is recognized as an unalienable right of the individual, which is safeguarded by art. 32 of the Italian Constitution and it has always been put at the forefront when the regulatory and management system of the centres is being prepared.
More specifically, the medical assistance service provided for in the centres for migrants must grant guests the following:
a) Visit upon entry and medical first aid, carried out in a consulting room set up within the facility with medical staff and nurses, whose shifts must be based on the ratio guests/staff as indicated in the tables of the tender specifications;
b) When the need arises, possible transfer of guests to hospitals outside the centres, in compliance with art. 35 of Legislative Decree 286/98 as migrants hosted in CARA centres can benefit from the services of the National Health Service by showing their STP cards (Temporarily Present Alien), issued by the Local Health Service Unit, whereby they can enjoy treatment in the consulting room or in hospitals, when it is urgent or essential in case life is in peril;
c) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance, including for generic conditions of psychological type;
d) Recording of a personal medical file, a copy of which must be handed over to the guest. In this connection it is worth mentioning that doctors, when screening the guests upon entry must also evaluate their psychic-social situation as well as the presence of vulnerability factors (serious psychic-psychological conditions, including previous ones, victims of mistreatment/torture, substance addiction, etc.) in order to prescribe possible drug treatment or psychological counselling.
It is further specified that as provided for by the above mentioned art. 35 of Legislative Decree No. 286/98 (Consolidated Text on Immigration), foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and/or in hospital (both urgent and continuing treatment) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health.
Regardless of the possession of a residence permit, the Italian legislation provides for the social protection and medical assistance to expectant mothers and to mothers, the protection of the psychic-physical health of minors (as a result of the Convention on the Rights of the Child of 1989), interventions of prevention, diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection.
Finally, when aliens not complying with provisions regulating their presence visit public medical facilities, they are not reported to the Police Authorities.
As far as social services are concerned, the principle enshrined in art. 24 of the 1951 Geneva Convention – according to which the status of a refugee is equal to that of a national – is embodied in the Italian legislation also as a consequence of art. 27 of the above mentioned Legislative Decree No. 251 of 19 November 2007, which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as Italian citizens and thus they have access to all services and benefits, including economic ones, covered by the social and medical assistance system.
Furthermore, the projects funded through resources of the ERF include measures to ease the access to social security, particularly on the part of vulnerable groups.”
36. And finally, with regard to the reception of Dublin-returners, the “Dublin II Regulation National Report” on Italy stated in particular (ibid., § 49):
“Within this broader category, another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s/he was in Italy.
If returnees (international protection seekers, beneficiaries of international protection or of a permit of stay for humanitarian reasons) had not been placed in reception facilities while they were in Italy, they may still enter reception centres. Due to the lack of available places in reception structures and to the fragmentation of the reception system, the length of time necessary to find again availability in the centres is – in most of the cases - too long. Since, there is no general practice, it is not possible to make a quantification of the time necessary to access to an accommodation. However, in the last years, temporary reception systems have been established to house persons transferred to Italy on the basis of the Dublin II Regulation. However, it concerns a form of temporary reception that lasts until their juridical situation is defined or, in case they belong to vulnerable categories, an alternative facility is found.
Such temporary reception has been set up thanks to targeted projects funded by the European Fund for Refugees. For instance, in Rome, there are currently projects providing assistance to 200 persons – within this broader category 60 places are for vulnerable categories.
However, it happens that Dublin returnees are not accommodated and find alternative forms of accommodation such as self-organized settlements. ...”


ITEMID: 001-58281
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF SÜREK v. TURKEY (No. 3)
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Luzius Wildhaber;Paul Mahoney
TEXT: 8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul.
9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul.
10. In issue No. 42 of the review, dated 9 January 1993, a news commentary entitled “In Botan the poor peasants are expropriating the landlords!” was published.
The relevant parts of this news commentary read:
“...
‘The waves of the earthquake centred on Botan have reached all of Kurdistan. The national liberation struggle, growing like the ripples caused by a stone cast into a pool of water, has already gone past Botan in waves, currently embracing 50 districts in 8 provinces in the active front of armed struggle.’
PKK [Kurdistan Workers’ Party ] sources briefly describe the extent of the national struggle in Kurdistan as follows: the said 8 provinces (together with their districts) are Hakkari, Şırnak, Siirt, Mardin, Batman, Urfa and Diyarbakır; while the provinces of Van, Malatya, Bitlis, Muş and Gaziantep and their districts are described as being partially involved in the war.
The popular movements in the Botan area, where approximately 4.5 to 5 million Kurds live, which have developed with the rise of the national liberation movement, have made rapid strides in the years 1990-92. The political point reached in the area is that the State has almost become inoperative. ...
The domain vacated by the State in the political sense has since been occupied by the PKK in the rural areas and H.E.P. organisations in the cities. ...
Land cannot be redistributed before it is transferred to the free will of the Kurdish people, because it is inconceivable to distribute land that bears the seal of the Republic of Turkey. ...
Today, our struggle is an external war directed against the forces of the Republic of Turkey. ...
We want to wage a total liberation struggle. ...”
11. On 10 January 1993 the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) ordered the seizure of this edition of the review on the ground that, allegedly, it disseminated propaganda against the indivisibility of the State.
12. In an indictment dated 28 January 1993, the Public Prosecutor at the Istanbul National Security Court charged the applicant, being the owner of the review, with disseminating propaganda against the indivisibility of the State. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (-“the 1991 Act”; see paragraph 16 below) on account of the publication of the above news commentary, which concerned, inter alia, the activities of the PKK.
13. In the proceedings before the National Security Court, the applicant denied the charges. He pleaded that the commentary on which the charges were based in fact criticised the activities of the PKK. He invoked Article 10 of the Convention and referred to the case-law of the Commission and the Court. He stated that pluralism of opinions, including those opinions which shock or offend, is essential in a democratic society. He argued that the provisions of section 8 of the 1991 Act restrict the right to freedom of expression in contravention of the Turkish Constitution and the criteria laid down by the case-law of the Commission and the Court.
14. In a judgment dated 27 September 1993, the National Security Court found the applicant guilty of making propaganda against the indivisibility of the State. The applicant was first sentenced to a fine of 100,000,000 Turkish liras (TRL). Thereupon the Court, considering the good conduct of the applicant during the trial, reduced the fine to TRL 83,333,333.
The National Security Court, considering those parts of the news commentary cited at paragraph 10 above in the light of the article as a whole, observed that it referred to certain parts of Turkey as “Kurdistan”. Moreover, in the words of the Court, it described the acts of the “PKK terrorist organisation” as a national liberation struggle, which amounted to propaganda aimed at undermining the indivisibility of the State.
15. The applicant appealed. He, inter alia, reiterated the defence he had relied on before the National Security Court. On 18 February 1994 the Court of Cassation dismissed the appeal, upholding the cogency of the National Security Court’s assessment of evidence.
16. The relevant provisions of the Press Act 1950 read as follows:
“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.
‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.
An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”
17. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:
(before amendment by Law no. 4126 of 27 October 1995)
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.
Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”
(as amended by Law no. 4126 of 27 October 1995)
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.
Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.
Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras…
…”
(before amendment by Law no. 4126 of 27 October 1995)
“The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”
(as amended by Law no. 4126 of 27 October 1995)
“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.
However, the provisions of this section shall not apply to convictions pursuant to section 8.”
18. The relevant provisions of domestic law governing the organisation and procedure of the National Security Court are quoted in paragraphs 3236 of the Sürek v. Turkey (no. 1) judgment, which is being delivered on the same date as the present judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-69925
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PRONINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Galina Ilyinichna Pronina, is a Russian national, who was born in 1927 and lives in Tenginka, a village in the Krasnodar Region. The President of the Chamber has granted the applicant leave to present her own case. The respondent Government are represented by Mr P.A. Laptev, the 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 had an interest-bearing account in the Savings Bank. In October 1997, she brought a civil action against the bank because she considered that it had arbitrarily decreased the interest rate.
On 5 November 1997, the Tuapsinskiy District Court held against the applicant. On 29 January 1998, the Krasnodar Regional Court quashed this judgment on appeal and remitted the case for a re-examination.
Having re-examined the case, on 14 May 1998 the district court partly held for the applicant. On 6 August 1998, the regional court upheld this judgment on appeal. On 26 November 1998, the district court reopened the case due to discovery of new evidence and remitted the case for a re-examination.
Having re-examined the case, on 9 April 1999 the district court, composed of one professional and two lay judges, partly held for the applicant. On 27 May 1999, the regional court upheld this judgment on appeal.
On an unspeciﬁed date, the Public Prosecutor of the Krasnodar Region applied for supervisory review of the judgments of 9 April and 27 May 1999. He asked to quash the judgments because of errors of fact and law. On 2 June 2000, the Presidium of the Krasnodar Regional Court quashed the judgments and remitted the case for a re-examination.
Having re-examined the case, on 19 April 2001 the district court held against the applicant. On 10 July 2001, the regional court upheld this judgment on appeal.