ITEMID: 001-57817
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF W. v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-3
JUDGES: Franz Matscher;John Freeland
TEXT: 7. The applicant is a Swiss businessman who with eleven accomplices was prosecuted for a series of economic offences, including a large number of frauds in the management of some sixty companies. He was arrested on 27 March 1985 and placed in pre-trial detention with six of his co-accused, on the grounds that there was a risk of absconding, collusion and repetition of offences.
8. The first complaints relating to him had reached the criminal police of the Canton of Berne in October 1982, inter alia following a number of fraudulent bankruptcies. In October 1984 the cantonal authorities asked the Interpol agencies in Germany, the United States of America, the United Kingdom, Monaco and several Caribbean countries to make inquiries about the applicant, and opened a preliminary investigation against him on 8 February 1985.
In view of the complexity of the case they set up in mid-1985 a subsection of the office of the investigating judge (Untersuchungsrichteramt) of the Canton of Berne, consisting of two investigating judges assigned exclusively to the investigation, under the authority of a cantonal attorney at the Berne Court of Appeal (Obergericht) and the indictments chamber (Anklagekammer) of that court. They were assisted by specialist police officers and considerable facilities were made available to them (secretariat, computer, archives).
9. In the period from March 1985 to June 1986 their investigation, which traced events back as far as 1977, gave rise to eighteen searches, including several at W.’s residence and the office of the companies he controlled. Documents in large quantities were found there, mostly in utter disorder, some in the cellar, some in the bathroom and even some in bin bags ready to be destroyed. W. had in fact altered the accounts of his companies, some of which were incidentally fictitious, in order to thwart possible investigations.
On 3 April 1985 the authorities froze assets in seventeen banks and issued warrants relating to other credit institutions. They drew up a list of about two hundred accounts in all which were affected by the fraudulent dealings of the applicant and his accomplices.
In 1985 and 1987 money and valuables belonging to the applicant and his co-accused were seized following orders or searches. These were dated 27 and 28 March, 3 April, 4 May, 2, 3 and 27 June, 5 September, 3 October and 25 November 1985, 16 and 19 January, 9 February, 5 March, 14 May, 2 July, 19 and 21 August and 1 December 1987.
The investigators also had to have recourse to international judicial assistance, in particular from the Munich public prosecutor’s office. That office sent them a report dated 16 April 1987, as a result of which the Swiss authorities extended their inquiries to Germany and took over criminal proceedings instituted against W. in that country.
On 11 December 1987 the investigating judges requested thirteen insolvency practitioners to provide documents relating to seventeen companies. The last of these reached them in December 1988 and January 1989.
On 26 May 1988, in view of the urgency, they severed the proceedings against the applicant from those against two accomplices.
10. The applicant twice challenged the investigating judges. He also brought eleven appeals and two complaints against decisions by them restricting access to the case-file at the beginning of the investigation. The accused were eventually given access to nine-tenths of the file from May 1986 and the entire file from 22 October of that year. W. had meanwhile reacted by deciding on 11 April 1986 to make no further statements.
On 28 June 1988 he complained of other irregularities, stating that documents had not been given to him and his lawyer had been unable to obtain free photocopies of them. The indictments chamber dismissed his complaint on 27 July 1988. After the committal for trial (see paragraph 13 below) the authorities on 13 October and 30 November 1988 and 3 January 1989 allowed the case-file to be consulted by the defence for nine, seven and five half-days respectively.
There was another incident when W. was not permitted to be present at certain investigative acts. On 27 January 1987 the indictments chamber decided that in principle he had the right to attend these.
His request of 18 December 1987 that there should be no supervision of the visits by his wife was dismissed by the indictments chamber on 16 February and the Federal Court on 19 May 1988.
11. During his pre-trial detention W. committed further offences, which resulted in an additional conviction for fraudulent bankruptcy and criminal mismanagement (see paragraph 24 below); the general meeting of a company controlled by him, which took place in prison on 11 October 1985 in the presence of a lawyer (advocate and notary), had allowed the latter to use a power of attorney to issue bonds secured on the property of the said company and used as security for the applicant’s personal debts.
12. Once the basic documentation had been collected and sorted, the authorities in October and July 1986 also ordered three expert reports, one from a psychiatrist and two from accountants, the latter following a defence request for evidence of 6 September 1985, the only such request made by them in the course of the investigation. The reports were filed on 22 December 1986 and in April 1987. The psychiatric report concluded that the applicant was fully criminally liable, and described him as a confidence trickster (Hochstapler) and an unrestrained hedonist (hemmungsloser Hedonist) who had no scruples about causing harm to others.
13. On 29 April 1988 the investigating judges declared, pursuant to Article 98 of the Berne Code of Criminal Procedure (see paragraph 25 below), that they would request the cantonal attorney’s office to commit W. for trial before the Economic Criminal Court (Wirtschaftsstrafgericht) of the canton. The order committing for trial (Überweisungsbeschluß) was made on 2 September 1988.
The investigators had carried out a total of approximately 350 interrogations. From 11 April 1986 to 12 July 1988 the applicant himself had been questioned thirty-six times, but he had always refused to answer the questions put to him (see paragraph 10 above). The transcripts recording the questions and noting his silence filled almost 700 pages.
In September 1987 the main case-file comprised about 600 binders. At the time of the trial there were 711, together with the original documents which themselves took up over 120 metres of shelving.
The amount of the damage had been estimated at over 50 million Swiss francs.
14. From 29 March 1985 to 18 May 1988, twenty-five applications for release were submitted by the persons in pre-trial detention in this case. Eight of them came from the applicant. The first of these, made on 24 May 1985, was dismissed by the indictments chamber on 1 July. The indictments chamber also dismissed on 22 July 1985 a complaint of 8 July and on 28 August a complaint of 2 August, relating respectively to the lawyer who had been appointed for W. and his visiting rights.
15. On 13 September 1985 the indictments chamber turned down a further application of 26 August 1985. A public law appeal to the Federal Court was dismissed on 7 November 1985, as that court considered that all the conditions to which pre-trial detention was subject under Article 111 of the Berne Code of Criminal Procedure had been fulfilled (see paragraph 25 below). The court felt that the serious suspicions against W. were supported by the case-file; moreover, he had transferred his residence to Monte Carlo, and his numerous stays in Germany, England, the United States of America and Anguilla also gave reason to fear that he might try to evade the Swiss judicial authorities; as to the very genuine risk of collusion, this resulted from the way in which the applicant’s various companies were entangled and from the large number of his associates.
The Federal Court, however, invited the investigators to act with diligence and in particular to question as soon as possible the persons likely to collude with the applicant, as in the court’s opinion the complexity of the facts alone could not justify detention for several years.
16. W. brought a third application for release on 17 March 1986. It was dismissed by the indictments chamber in a decision of 4 June 1986, which was upheld by the Federal Court on 25 August, following a public law appeal. The Federal Court said that even a summary reading of certain transcripts of interrogations showed that there was serious suspicion against the applicant of multiple fraud and fraudulent bankruptcy; he was wrong in claiming that this suspicion was unfounded in the specific cases cited by the indictments chamber in justifying the already considerable duration of the detention in issue.
Moreover, the danger of absconding and that of collusion still both persisted, the former because of the applicant’s good relations with foreign countries and his stated intention of starting a new life in the United States, and the latter in the light of his conduct before his arrest and during the investigation. However, as the last of the co-accused had now been arrested and the principal witnesses had already made statements, this ground could no longer be relied upon without specifying the collusive acts which were feared.
Furthermore, W. was primarily responsible for the length of his detention; the lack of any proper accounts of his companies had made it extremely difficult to identify the financial transfers by means of which the companies had been burdened for personal ends. Despite this, the investigating judges had worked intensively. All things considered, the detention complained of did not yet appear to be too long. It was nevertheless disturbing that not much progress had been made with the systematic processing of the documents and the production of a report for the purpose of indicting the applicant. Secondly, there was still some doubt as to whether expert reports on the accounting and psychiatric aspects were needed. A close watch had to be kept on these points.
17. A fourth application for release was made on 12 December 1986, and dismissed by the indictments chamber on 20 January 1987.
The applicant brought a public law appeal against this decision; he complained of the time taken to produce the accounting report, and of the alleged inability of the authorities to complete the file. The Federal Court gave its ruling on 24 March 1987. It considered that the applicant’s disregard of the elementary rules of bookkeeping was the reason why it had not been possible to complete the expert report earlier; and the accusation against W. was precisely that he had mingled funds of his various companies. Since the judgment of 25 August 1986 (see paragraph 16 above) the authorities had taken account of its observations on the processing of the documents, so that in this respect the investigation could not be criticised, bearing in mind in particular the very large number of documents to be classified. That the authorities had entrusted the investigation to a team of two investigating judges also showed the great importance they attached to it. As to the psychiatric report and accountancy reports, which were moreover on the point of being filed, there had been no delay in drawing them up, since W. was refusing to answer any questions at all. In short, the detention in issue had not yet exceeded the maximum period allowed.
The court added, however:
"... a practice according to which an accused who was suspected of serious economic offences but not of acts of violence necessarily had to remain in detention until final judgment in his case, merely because of a general risk of absconding, would not be compatible with the fundamental right of personal freedom ... . It should also be taken into account in this respect that the incentive to abscond generally decreases as the proportion of time already spent in detention increases. The investigating judges, the public prosecutor’s office and the indictments chamber will therefore, after carrying out the few investigative acts in respect of which a certain danger of collusion can still be presumed, but at the latest after a period of detention of two and a half years, have to consider the applicant’s release subject to appropriate substitute measures within the meaning of Article 111a of the Berne Code of Criminal Procedure. The case would be different only if specific indications of [W.’s] intention to abscond were by then present. The risk of repeated offending ... would on the other hand probably not be of relevance as a ground for detention in the case of the applicant, who has no previous convictions."
18. On 3 August 1987 the applicant once more requested the indictments chamber to terminate his detention. This was refused in a decision of 4 September 1987.
The Federal Court dismissed the applicant’s public law appeal on 29 October 1987. In its opinion the slowing down of the investigation, noted since its last judgment (see paragraph 17 above), was not open to criticism, as the Swiss authorities had in the meantime taken over the proceedings brought against W. by the Munich public prosecutor’s office (see paragraph 9 above), and this had entailed additional work. In this respect the investigators could not be blamed either for having often questioned the applicant on these proceedings despite his refusal to make a statement; their sole aim had been to allow W. to exercise his rights of defence. No failure to observe the requirement of acting swiftly had resulted; rather it was the applicant’s attitude which amounted to delaying the investigation by any legal means. In view of the minimum sentence of five years’ imprisonment which the applicant was likely to receive, the pre-trial detention of two years and seven months had in any event not yet reached the critical level.
The Federal Court also invited the investigating judges to reconsider, by the end of January 1988, the length of the detention in issue. On 31 January 1988 they took a decision to extend it (Haftbelassungsbeschluß).
19. The applicant’s sixth application for release had meanwhile been made to the indictments chamber on 2 December 1987. It had dismissed it on 9 December on the grounds that nothing had changed since the Federal Court’s last judgment of 29 October 1987 (see paragraph 18 above); it considered that there was still a danger of absconding and collusion. W. did not appeal against this decision.
20. On 1 February 1988 he once more requested his release. The indictments chamber refused this on 18 February, and he appealed to the Federal Court.
The Federal Court dismissed the appeal on 25 April 1988. It held that the indictments chamber had not breached the Constitution or the Convention in considering that there was still a danger of absconding; in his application of 1 February 1988, W. had moreover refused to provide a security.
Apart from the applicant himself, the authorities were also partly responsible for the delays in the investigation; they had put forward in explanation reasons - such as the taking over of the German file (see paragraph 9 above) and the different charges against the various co-accused - which they had already been aware of on 13 August 1987, when they said that the investigation would be completed in early 1988. These delays admittedly had not brought about an excessive prolongation of the deprivation of liberty in issue, but in the Federal Court’s opinion it was necessary to close the investigation as quickly as possible.
The Federal Court said:
"The judge deciding on detention may prolong the pre-trial detention only to the extent that its duration does not come too close to the sentence to be expected in the specific case; he must not, for example, take the possible maximum sentence as a reference point. Great attention must also be paid to this limit because the trial court might be inclined to take the length of pre-trial detention into account as one factor in determining the sentence. To this extent there is thus a sort of absolute maximum length of pre-trial detention ... . However, even the European Convention institutions allow detention for several years in cases which are both highly complex and also subject to heavy sentences ..."
In this instance the length of the detention had not yet reached the critical level, as the total sentence which could be expected was now considerably more than five years’ imprisonment.
21. On 18 May 1988 the applicant submitted his eighth application for release; he supplemented this on 7 June 1988 by offering a security of a maximum of 30,000 Swiss francs (CHF). The indictments chamber dismissed the application on 27 June 1988, inter alia on the grounds that he had not given any information on the third party who would pay the money and that the sum appeared derisory in view of the size of the case and the personality of the defendant.
On a public law appeal by the applicant, the Federal Court quashed the decision on the grounds that Article 5 para. 4 (art. 5-4) of the Convention had been violated, as W. had not had an opportunity to reply to the arguments of the investigating judge and the cantonal attorney before the indictments chamber.
22. Rehearing the application, the indictments chamber on 6 September 1988 refused to release the applicant, who again appealed to the Federal Court. That court gave judgment on 15 November 1988; it considered that at this stage of the proceedings, after the end of the investigation and the committal for trial (see paragraph 13 above), pre-trial detention on the ground of a risk of collusion could only be justified by specific evidence, such as in this case the applicant’s personality and the numerous examples of forgery and interference with witnesses already shown to have been done by him in specific cases. It quashed the decision, however, on the grounds that the indictments chamber, when assessing the maximum permissible period of the detention in issue, had omitted to consider whether there were special circumstances in W.’s case which meant that the possibility of his conditional release should be taken into account.
23. On 10 January 1989 the indictments chamber dismissed the application of 18 May 1988 (see paragraph 21 above) for the third time. The Federal Court upheld its decision on 23 February 1989: having regard to the number and nature of the offences the applicant was accused of, and to his conduct during the investigation and the conclusions of the psychiatric report (see paragraph 12 above), the indictments chamber had been right to conclude that there were no reasons making conditional release appear very probable.
24. The trial before the Economic Criminal Court (see paragraph 13 above) opened on 17 February 1989 and ended on 30 March 1989 with the applicant being convicted and sentenced to eleven years’ imprisonment and a fine of CHF 10,000, for offences including fraud on a professional basis (gewerbsmäßiger Betrug), fraudulent bankruptcy (betrügerischer Konkurs), forgery of documents (Urkundenfälschung) and aggravated criminal mismanagement (qualifizierte ungetreue Geschäftsführung). The 1,465 days spent in pre-trial detention were deducted from the main sentence.
25. The Code of Criminal Procedure (Gesetz über das Strafverfahren) of the Canton of Berne provides that:
"When the investigating judge regards the investigation as sufficient, he shall notify this to the parties whose addresses are known. If it is for the investigating judge and the district attorney to decide on committal, the investigating judge shall state whether he intends to request that the proceedings be stayed or discontinued or the accused be committed for trial.
The parties may, within a period from such notification determined by the judge, apply in writing, giving brief reasons, for specified further investigative measures or additional questions and express their opinion on the outcome of the proceedings. If the investigative measures applied for are ordered, the parties may be present at their implementation."
"During the preliminary investigation the accused shall as a rule remain at liberty.
The investigating judge shall however be empowered to arrest him if there are specific and serious grounds for suspecting him as perpetrator or accomplice, and in addition there are reasons for supposing
(a) that there is a risk of absconding, or (b) that the accused would abuse his liberty in order to frustrate or endanger the discovery of the true facts of the matter, or (c) that the accused, if he has intentionally committed a further criminal offence (Verbrechen oder Vergehen) during the proceedings, will commit further criminal offences.
A risk of absconding shall be presumed if the accused has no fixed residence in Switzerland.
..."
26. According to the Swiss Federal Court, the unwritten constitutional right to individual freedom is to be interpreted in the light of Article 5 para. 3 (art. 5-3) of the Convention and the case-law of the Strasbourg institutions, and requires that pre-trial detention must not be excessively prolonged. Each case must be assessed individually, with the accused’s right to liberty being balanced against the State’s right to bring criminal proceedings and enforce sentences. If the length of the detention is excessive, the detainee must be released even if serious suspicions and the danger of absconding still subsist (Decisions of the Swiss Federal Court, 108 Ia 66; 107 Ia 257/258; 105 Ia 29/30).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-22917
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: THE SYNOD COLLEGE OF THE EVANGELICAL REFORMED CHURCH OF LITHUANIA v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant church, the Synod College of the Evangelical Reformed Church of Lithuania, is based in Vilnius. It was represented before the Court by Mr K. Stungys, a lawyer practising in Vilnius. The respondent Government were represented by Mr G. Švedas, Agent of the Government.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 1889 the Evangelical Reformed Church of Lithuania had owned an apartment building of 1,795.63 square metres in the centre of Vilnius (“the building”). In 1940, following the Soviet invasion in Lithuania, the building was nationalised. In 1990 the independence of Lithuania was re-established.
During the period from March 1992 to March 1993 the Vilnius Naujamiestis Municipal Council (seniūnija) transferred ownership rights of 12 apartments in the building to the tenants of those flats under the Privatisation of Flats Act.
1. Decisions of the Vilnius City Council of 8 and 20 December 1993
On 8 December 1993 the Vilnius City Council (valdyba) adopted a decision to return the building to the Vilnius Community of the Evangelical Reformed Church of Lithuania based on the Restitution of Church Property Act 1990.
On 20 December 1993 an executive branch of the Vilnius City Council took a decision to hand over the building to the Vilnius Community of the Evangelical Reformed Church of Lithuania.
On 27 December 1993 the necessary formalities were finalised whereby the Vilnius Community of the Evangelical Reformed Church of Lithuania was handed over the control of the building.
2. Annulment of the decisions of 8 and 20 December 1993

The tenants brought court proceedings to quash the administrative decisions of 8 and 20 December 1993. The Vilnius Community of the Evangelical Reformed Church of Lithuania filed a counter-claim, asking the court to declare null and void the contracts of privatisation of the flats between the Naujamiestis Municipal Council and the tenants.
On 9 January 1996 the Vilnius City Second District Court satisfied the claim of the tenants. The court quashed the decisions of 8 and 20 December 1993, holding that the Restitution of Church Property Act 1990 had required the local authority to provide the former tenants with appropriate housing when deciding to restore property rights of the former owner. The court also held that, pursuant to the Restitution of Church Property Act 1995, houses and apartments that had leasehold tenants could not be returned to former owners. The Vilnius Community of the Evangelical Reformed Church of Lithuania and the Vilnius City Council appealed against this decision.
By a decision of 18 January 1996 the Vilnius Community of the Evangelical Reformed Church of Lithuania transferred the rights to the building and the claims thereto to the Synod College of the Evangelical Reformed Church of Lithuania.
On 14 August 1996 the Vilnius Regional Court quashed the judgment of the District Court and dismissed the tenants’ claims. The Regional Court found that the Restitution of Church Property Act 1990 nullified the relevant Soviet regulation of 1948 under which churches and other property of religious communities had been nationalised. The court held that since the adoption of the law in 1990 the State had had no property right to the building in question, and that the flats therein could not be privatised. Accordingly, the contracts of privatisation between the Naujamiestis Municipal Council and the tenants had been null and void. The Regional Court confirmed the validity of the decisions of 8 and 20 December 1993.
The tenants lodged a cassation appeal against the above decision, alleging that the flats in question were in fact their property.
On 14 October 1997 the Court of Appeal examined the case acting as a court of cassation. It agreed with the tenants, reversing the decision of the Regional Court and upholding the judgment of the first-instance court.
The Court of Appeal noted that the nationalisation of the building had been based on a Soviet regulation of 1940, and not by that of 1948 as it had been stated by the Regional Court. Accordingly, the Restitution of Church Property Act 1990 could not apply in the instant case.
The Court of Appeal recalled the decision of the Constitutional Court of 27 May 1994, stating that only from the moment of the decision of a competent authority to return the property in kind or to compensate therefor did the former owner acquire a property right.
The Court of Appeal ruled that the right of the Vilnius Community of the Evangelical Reformed Church of Lithuania to control the building had been restored by the decision of the Vilnius City Council of 8 December 1993, that is, after the tenants had bought the flats in accordance with the Privatisation of Flats Act. Therefore the Vilnius City Council, at the time when it had decided to return the building to the former owner, had no longer had ownership rights of the 12 flats constituting part of the building. The Vilnius City Council had not therefore had the right to return the building in its entirety to the former owner. The Court of Appeal also noted that the Privatisation of Flats Act had not barred privatisation of flats in a building formerly owned by a religious community. The Court of Appeal quashed the decisions of 8 and 20 December 1993 and confirmed the tenants as the lawful owners of the flats.
The Court of Appeal found that the Vilnius Community of the Evangelical Reformed Church of Lithuania was entitled to restitution of its property rights in respect of the building in accordance with the Restitution of Church Property Act 1995. Under the above law, however, no return of the whole building was possible. The Court of Appeal noted in the reasoning part of the judgment that the Vilnius City Council will have to decide newly with the question of the property rights of the Evangelical Reformed Church of Lithuania in accordance with the applicable domestic legislation (also see the ‘Relevant domestic law and practice part’ below). The Court of Appeal did not order the local authority to conduct any specific actions in this connection.
3. Proceedings concerning the charges for heating

On an unspecified date in 1998 a communal services company of the local authorities (“the company”) brought a court action against the Synod College of the Evangelical Reformed Church of Lithuania, claiming that the applicant church had not paid for heating of the building during a period from 1997 to 1998. On 16 November 1999 the Vilnius City Second District Court rejected the action as unsubstantiated.
On 28 December 1999 the Vilnius Regional Court quashed the decision, accepting the company’s action and awarding damages against the applicant church for the unpaid charges for heating during the period from 2 February 1997 until 14 May 1998. The court found that on 27 December 1993 the control over the building had been handed over to the Vilnius Community of the Evangelical Reformed Church of Lithuania. It was further established that on 14 May 1998, in view of the judgment of the Court of Appeal of 14 October 1997, the control over the building had been transferred back to the local authorities. The court found that the applicant church had entered into a contract with the company to pay for heating of the building, and that they had breached their contractual obligations. It was established that during the period from 27 December 1993 until 14 May 1998 the applicant church had controlled the use of the building and that it had, through a subsidiary unit, executed the functions of managing the building, of renovation, and of payment for communal services. The court found inter alia that the applicant church had the right to enter into sub-contracts with the tenants in order to act on their behalf in managing the payment of communal charges for the building. It stressed that the outcome of the proceedings concerning the validity of the decisions to restore the applicant church’s property rights had no bearing on the obligation for the applicant church to perform its contractual duties.
The applicant church did not state that it appealed against this decision.
4. Administrative proceedings
On an unspecified date in 2001 the Synod College of the Evangelical Reformed Church of Lithuania filed an administrative action against the Government, claiming damages in the amount of 5 million litai (LTL) in connection with the failure of the Government to prevent the privatisation of the 12 flats and the authorities’ refusal to return the whole building to the applicant church.
On 20 November 2001 the Vilnius Regional Administrative Court rejected the action as unsubstantiated. On 31 January 2002 the Supreme Administrative Court upheld the lower court’s judgment. It found inter alia that the lawfulness of the privatisation of the flats had been established by the final judgment of the Court of Appeal of 14 October 1997. No fault was attributed to the Government. The Supreme Administrative Court also noted that the applicant church had been entitled to file a civil action against a State authority if it considered that it had been prevented from making its property claims under the applicable domestic legislation.
The Restitution of Church Property Act 1990 provides for return to religious communities of property nationalised by a specific Soviet regulation of 1948.
The Restitution of Church Property Act 1995 deals with instances of nationalisation of church property other than those specified in the 1990 Act. The 1995 Act provides for two forms of “restitution of property rights” (nuosavybės teisių atkūrimas): 1) return of property in certain circumstances; 2) compensation in others; compensation can be made in money or alternative items. The 1995 Act specifically bars a return in kind of buildings having tenants or owners of flats (paragraphs 1 and 4). Under Article 12 of the Act, an appropriate form of compensation should be chosen by the former owner if the property cannot be returned in kind.
The Privatisation of Flats Act 1991 specifies the conditions for tenants to privatise flats in apartments and houses in the State possession.
On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution of property rights. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated: “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is paid. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item. In this situation the decision of a competent authority to return the property or to compensate therefor has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.
In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts.
On 20 June 1995 the Constitutional Court also said that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”.


ITEMID: 001-89212
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NOYAN TAPAN LTD v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Noyan Tapan Ltd, is a private Armenian news agency and television company (“the applicant company”) that was set up in 1991 and has its registered office in Yerevan. The applicant company was represented before the Court by Mr M. Muller, Mr T. Otty, Ms J. Gordon, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers practising in London, Mr T. Ter-Yesayan and Ms N. Gasparyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company was established in 1991 and initially operated as a news agency, with its own publishing house, newspaper and internet network.
According to the applicant company, since 1997 it had applied on several occasions to the relevant public authorities to obtain a broadcasting licence with the intention of getting involved in television broadcasting, but was repeatedly refused a licence.
On 1 November 1999 the applicant company entered into an agreement with another private company, the Lotus television company (“Lotus”), to jointly produce a set of the applicant company's television programmes, which included re-broadcasts of the TV6 Russian television channel and its own programmes, comprising news, political and economic analysis and constituting 25% of the whole content. Under the terms of the agreement, Lotus allowed the applicant company to broadcast over band 35, for which Lotus held a broadcasting licence due to expire on 22 January 2002.
In 2000-2001 legislative changes were introduced in the sphere of television and radio broadcasting.
The Television and Radio Broadcasting Act («Հեռուստատեսության և ռադիոյի մասին» ՀՀ օրենք – “the Broadcasting Act”), passed in October 2000, established a new authority, the National Television and Radio Commission (Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies. The NTRC was a public body composed of nine members appointed by the President of Armenia. The Broadcasting Act also introduced a new licensing procedure, according to which a broadcasting licence was granted on the basis of a call for tenders conducted by the NTRC in respect of the list of available frequencies.
During 2001 all existing broadcasting licences were temporarily re-registered by the NTRC until the relevant calls for tenders were announced.
On an unspecified date in 2001 the NTRC decided to postpone the call for tenders for band 35 until the adoption of appropriate rules and regulations and to permit Lotus to continue to operate on band 35 for an indefinite period of time until such call for tenders was issued.
On 19 February 2002 the NTRC announced calls for tenders for various broadcasting frequencies, including band 35. The NTRC issued a notice in which it defined the conditions for participation in the call for tenders for band 35 and the information and documents to be submitted. The information required included data on the technical facilities, the financial sources, the staff and the programme policy of an applicant.
The applicant company and two other companies, Shoghakat and Yan TV, submitted bids for band 35. The applicant company alleged that Shoghakat was a company producing predominantly clerical programmes, while Yan TV focused mostly on entertainment programmes.
On 2 April 2002 the NTRC held a points-based vote and recognised Shoghakat as the winner of the call for tenders for band 35. The decision stated:
“Based on [the relevant provisions the Broadcasting Act and other complementary legal acts], and taking into account the results of the call for tenders for television broadcasting on decimetric band 35 in the area of Yerevan, [the NTRC] decides (1) to recognise Shoghakat TV Company Ltd as the winner of the call for tenders for television broadcasting on decimetric band 35 in the area of Yerevan, and (2) to grant a television broadcasting licence to Shoghakat TV Company Ltd.”
On an unspecified date the manager of the applicant company, Mr T.H., lodged an application with the Commercial Court (ՀՀ տնտեսական դատարան), claiming that the tender procedure had been conducted with violations of the law and seeking to invalidate its results. In particular, he argued that the NTRC, by announcing separate calls for tenders for different bands as opposed to a single one for all bands, had restricted the applicant company's right to win a licence for any of the unoccupied bands. He further argued that the information required by the NTRC had not been consistent with the information to be contained in a bid for a broadcasting licence as defined by law. Moreover, the NTRC had not been authorised by law to define the information to be contained in a bid. Furthermore, he submitted that the NTRC had failed to inform the applicant company in writing about the reasons for the refusal of a licence.
On 24 May 2002 the Commercial Court examined the applicant company's application. The applicant company was represented at this hearing by three lawyers, A.D., T.T.-Y. and L.S., who made submissions on its behalf. The Commercial Court decided to dismiss the application, finding that the fact that the NTRC had announced separate calls for tenders as opposed to a single one did not contravene the law. Nothing had precluded the applicant company from submitting bids for all these calls for tenders. The court further found that the NTRC had been authorised by law to define the procedures and conditions of the tender process and that it had acted in accordance with the law in doing so. Nothing in the information required by the NTRC in its notice issued following the announcement of the call for tenders on 19 February 2002 had conflicted with the requirements of the law. As to the requirement to provide a written notification of the reasons for the refusal of a licence, the court found that the NTRC, having recognised Shoghakat as the winner of the competition, had informed the applicant company about this in writing on 3 April 2002.
On an unspecified date Mr T.H. lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In his appeal, he raised the same arguments as before the Commercial Court
On 28 June 2002 the Court of Cassation notified the applicant company that its hearing was scheduled for 12 July 2002 at 11 a.m.
On 10 July 2002 lawyer L.S. informed the Court of Cassation in writing that on 12 July 2002 at 12 noon he had to appear at another court hearing. In order to avoid an overlap between the two hearings, lawyer L.S. requested the Court of Cassation to notify him of the exact time when the applicant company's claim would be examined. It appears that no reply was received to this letter.
On 12 July 2002 at 11 a.m. Mr T.H., accompanied by lawyers L.S. and T.T.-Y., appeared at the Court of Cassation. The latter had 85 cases scheduled for that date with all the parties involved being notified to appear at the same hour. The hearings started at 11 a.m.
The applicant company alleged that at 11.30 a.m. lawyer L.S. requested the presiding judge to inform him as to when the hearing on the applicant company's claim would commence. The presiding judge replied that the hearing would commence “whenever the court found it necessary”. The lawyer repeated his request, explaining about the need to prevent any overlap between the two hearings, whereupon he was removed from the courtroom upon the instruction of the presiding judge for violating order in court. At 4 p.m. the Court of Cassation proceeded to examining the applicant company's case. The NTRC was represented at the hearing by three lawyers, while the applicant company was represented only by Mr T.H. since lawyer T.T.-Y. had not been instructed to represent the applicant company. The hearing lasted about five minutes. The parties were not asked any questions and did not make any submissions.
The Government contested this allegation, claiming that the applicant company's lawyer was never removed from the courtroom. The Court of Cassation had 85 cases scheduled to be examined on 12 July 2002, starting at 11 a.m. Priority was given to cases involving parties coming from distant regions and women. Having found out about this order, the lawyer informed the court that he had another hearing to attend at 12 noon and requested that the applicant company's case be heard in a priority order. This request was refused so the lawyer voluntarily left the courtroom. The Government further alleged that the applicant company was represented by two other lawyers, while the NTRC had no representative.
Commercial Court, and concluded by dismissing the applicant company's appeal, finding that:
“...the arguments put forward in the appeal concerning a violation by the Commercial Court of [the relevant legal acts] are groundless, as [the NTRC], acting within the authority vested in it by the above legal acts ... defined the tender procedure for licensing of television broadcasting, which contains the rules on the conditions, procedures and time-limits of a call for tenders, submission of bids, recognising the winner of the call for tenders and declaring the call for tenders void. On 19 February 2002 [the NTRC] ... announced separate calls for tenders for unoccupied frequencies and on 2 April 2002 in its decision no. 36 recognised Shoghakat Ltd as the winner, about which it informed [the applicant company in its letter] of 3 April 2002.
...Article 10 [of the Convention] guarantees the right to freedom of expression. This Article, however, does “not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”. The arguments [concerning a violation of Article 10] are also groundless, as the Commercial Court did not violate the requirements of [this Article].
...
[As to the improper examination of the applicant company's claims by the Commercial Court, this argument is also groundless] ... as the [court] ... evaluated each piece of evidence of the case in a detailed, thorough and objective manner.”
The relevant provisions of the Code, as in force at the material time, read as follows:
“1. [The Commercial Court] shall adopt a judgment when deciding on the merits of a dispute.”
“1. When adopting a judgment [the Commercial Court] shall: (1) assess the evidence; (2) determine which circumstances significant for the case have or have not been disclosed; (3) determine the laws and other legal acts applicable to the case; and (4) decide to fully or partially grant the claim or to dismiss it.”
“Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant's rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.”
“1. An application seeking to annul the unlawful acts of public authorities, local self-government bodies and their officials shall be submitted to a court dealing with civil cases or the Commercial Court, pursuant to their jurisdiction over the case.
...
3. The submission of an application to a court does not suspend the effect of the contested act...”
“An appeal on points of law can be lodged on ... the ground of a material or a procedural violation of the parties' rights...”
“1. The President of the Court of Cassation shall instruct one of the judges of the chambers of the Court of Cassation to study the appeal and the case file...
2. The judges of the Court of Cassation shall be entitled to get acquainted with the appeal and the case file.”
“1. The examination of a case in the Court of Cassation shall start with the presentation by the judge rapporteur...
The judge rapporteur shall [contested] judgment and the arguments raised in the appeal.
The judges of the Court of Cassation shall be entitled to ask questions to the judge rapporteur.
2. The appellant shall have the right to be present at the hearing before the Court of Cassation.
3. If explanations are necessary, the appellant and other parties may be summoned to the hearing ... Their failure to appear shall not preclude the examination of the case.”
“The chamber of the Court of Cassation shall review judgments and decisions within the grounds presented in the appeal.”
“Having examined a case, the Court of Cassation has the right:
(1) to uphold the court judgment and to dismiss the appeal...;
(2) to quash the whole or part of the judgment and to remit the case for a new examination...;
(3) to terminate the proceedings or to leave the claim unexamined, if the grounds for [doing so] were disclosed during the proceedings in the court of first instance, the Commercial Court or the Court of Appeal.”
“1. The Court of Cassation shall adopt a decision based on the results of the examination of the case.
...
3. The decision shall be adopted in the absence of the appellant and other persons summoned to the hearing to give explanations.
4. The Court of Cassation shall be competent to adopt a decision if the majority of judges of the chamber of the Court of Cassation are present.
5. The decision shall be adopted by an open vote.
The decision shall be considered adopted if the majority of the total number of judges present at the hearing voted for it.
...
7. The operative part of the Court of Cassation's decision shall be pronounced at the hearing.”
“3. The Court of Cassation is not entitled to establish or consider as proven circumstances which have not been established by the judgment [of the Commercial Court] or have been rejected by it, to determine whether or not this or that piece of evidence is trustworthy, to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.”
The relevant provisions of the Broadcasting Act, as in force at the material time, read as follows:
“In Armenia television and radio broadcasting shall be conducted on the basis of a licence.”
“The National Television and Radio Commission (hereafter, the National Commission) is an independent body with the status of a public agency whose activity is regulated by this law, its regulations and the legislation of Armenia. The National Commission deals with licensing and monitoring of only private television and radio companies (television companies or radio companies).
The National Commission: (a) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders; ... (c) shall grant licences...”
“A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders...”
“When selecting the licence-holder, the National Commission shall take into account:
(a) the predominance of programmes produced in-house;
(b) the predominance of programmes produced in Armenia;
(c) the technical and financial capacity of the applicant; and
(d) the professional level of the staff.”
“A licence shall not be granted if:
(a) the applicant cannot be a licence-holder pursuant to this law;
(b) the information contained in the bid is inaccurate; or
(c) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient.
An applicant shall be informed in writing of the reasons for the refusal of a licence within ten days from the date of the decision.
The refusal of a licence can be contested before the courts.”
The relevant provisions of the NTRC Regulations Act read as follows:
“In order to grant a broadcasting licence, the Commission, at its meeting and within the period prescribed by the tendering rules, shall adopt a decision on the basis of the results of a call for tenders.”


ITEMID: 001-85118
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GITSKAYLO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1936 and lives in the village of Yasonovskiy, Lugansk Region, Ukraine.
5. The applicant is a former employee of the Frunze State Mine (ДОАО шахта ім. Фрунзе, hereafter “the Mine”). He is suffering from an occupational disease.
6. In 1994 a medical commission established that due to his occupational disease the applicant had permanently lost 25% of his ability to work.
7. As during his employment with the Mine the applicant had served in several different capacities, on 13 June 1997 he brought proceedings against his former employer, seeking to have identified the work which had caused his occupational disease. He also sought recovery of his occupational disability allowance arrears.
8. On 9 July 1997 the judge of the Rovenkovskiy Town Court (Ровеньківський міський суд, hereafter “the Town Court”), dealing with the applicant's case, ordered an additional medical examination to determine the degree of his disability.
9. On 12 December 1997 the Lugansk Bureau of the Regional Bureau of Forensic Medical Examinations (Луганське обласне бюро судово-медичних експертиз) confirmed the applicant's previous diagnosis and the fact that he had lost 25% of his ability to work.
10. On 6 March 1998 the Town Court terminated the proceedings as the parties had reached a friendly settlement under which the Mine was to pay the applicant 947.50 Ukrainian hryvnas (UAH) in compensation.
11. On an unspecified date in 1998 the applicant requested a supervisory (наглядове) review of the above decision, stating that he had agreed to the friendly settlement under unlawful pressure from the trial judge.
12. On 23 December 1998 the Presidium of the Lugansk Regional Court (Луганський обласний суд, hereafter “the Regional Court”), acting upon an extraordinary appeal (протест в порядку нагляду) of the Deputy President of this court, quashed the decision of 6 March 1998 and remitted the case for a fresh consideration. It was found that the first-instance court had not examined the possible consequences of this decision for the parties.
13. Of seven hearings scheduled for the period between February 1998 and February 2000 one was adjourned at the applicant's request and four were cancelled on account of the applicant's and his lawyer's absence from the courtroom. This delayed the proceedings for a total of seven months.
14. On two occasions during this period the Mine's representative failed to appear. During this period the applicant filed one successful and three unsuccessful challenges to the impartiality of the presiding judge.
15. On 29 February 2000 the Town Court, having heard the parties and examined the case file, allowed the applicant's claims in part. The applicant appealed, considering that the sum of the disability allowance arrears which had been awarded to him was insufficient.
16. On 1 March 2001 the Regional Court quashed this decision on the ground that the first-instance court had failed to give due consideration to all the applicant's claims and that the amount of his allowance had been calculated wrongly. The case was remitted for a fresh hearing.
17. Of five hearings fixed for the period from June to September 2001 four were quashed due to the failure of the Mine's representative to appear.
18. On 27 July 2001 the Supreme Court (Верховний Суд України), in response to the applicant's complaint about the length of the proceedings, urged the Lugansk Regional Court of Appeal (Апеляційний суд Луганської області, the Lugansk Regional Court as renamed on 29 June 2001, hereafter “the Court of Appeal”) to take the necessary measures to ensure the prompt determination of the applicant's claims.
19. On 26 September 2001 the Town Court found for the applicant in part. The court identified the work which had caused the applicant's occupational disease. However, his compensation claims were rejected in their entirety. The applicant appealed against the latter part of the judgment.
20. On 17 December 2001 the Court of Appeal quashed the appealed part of the judgment and remitted the question of disability allowance arrears for a fresh consideration. The Court of Appeal indicated that the first instance court had failed to examine thoroughly the applicant's statements as to the wrong calculation of the amount of his allowance.
21. On 26 April 2002 the Town Court rejected the applicant's compensation claims as unsubstantiated. The applicant appealed.
22. On 8 August 2002 the Court of Appeal quashed this judgment and remitted the case for a fresh consideration, relying on the same grounds as those stated in its decision of 17 December 2001.
23. On 1 November 2002 the Town Court, based on the case file and the parties' oral submissions, rejected the applicant's claims for recovery of disability allowance arrears as unsubstantiated. The applicant lodged an appeal against this judgment.
24. On 5 May 2003 the Court of Appeal changed this decision and ordered the Mine to pay the applicant a lump sum of UAH 103.72. Considering this sum insufficient the applicant appealed in cassation.
25. On 17 November 2004 the Supreme Court dismissed the applicant's appeal in cassation.
26. This decision was served on the applicant on 14 February 2005.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-68084
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KARADEMİRCİ AND OTHERS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 11. The applicants were born in 1961, 1964, 1966, 1966, 1961 and 1972 respectively and live in İzmir.
12. On 30 June 1995 twenty-five people, including the applicants, gathered outside the Yenişehir Meslek Lisesi secondary school. The first applicant, İsmail Karademirci, who was the president of the Health Workers' Union (Tüm Sağlık Sen), read out a statement signed by the İzmir branches of that union and of the Education Union (Eğitim Sen) denouncing the ill-treatment of pupils from the İzmir Atatürk Sağlık Meslek Lisesi secondary school. The group remained outside the school for twenty-five minutes before dispersing.
13. The statement reads as follows:
“To the press and the general public
The pressure put on pupils by the authorities at the İzmir Atatürk Sağlık Lisesi secondary school has resulted in Vesile Bayram receiving a beating. The pupils reacted by protesting against the school authorities because of the pressure they were under. In an initial attempt to calm down the pupils, whose reaction was justified, the authorities held a meeting with them. However, they reneged on a promise to open an inquiry into the actions of one of the teachers, E.S., who, moreover, was provided with a forensic report.
The pressure continues in the form of a lengthy (one year) suspension of nine pupils, and the deduction of eight marks from their marks for behaviour.
Although officially pupils in the school are not subjected to beatings or academic pressure, the administrators are despots.
We strongly condemn the administrators and teachers, who are responsible for such pressure.
We call for the withdrawal of the penalties imposed on the nine pupils.
We call for an investigation into the conduct of the teacher who administered the beating.
We will not be intimidated by pressure.
We reject reactionary and oppressive education.
The pupils are not alone.
Society should not remain silent.”
14. By an indictment submitted on 23 October 1995, the public prosecutor instituted criminal proceedings against twenty-five leaders and members of the Health Workers' Union and the Education Union for making a “statement to the press” (basın açıklaması) without complying with the statutory requirement to obtain a receipt from the public prosecutor's office confirming that they had filed a copy of the statement with it. The public prosecutor relied in particular on sections 44 and 82 of the Associations Act (Law no. 2908 of 6 October 1983).
15. In a judgment of 13 February 1996, the İzmir Criminal Court found the applicants and nine other co-defendants guilty as charged and sentenced them to three months' imprisonment under the provisions relied on by the public prosecutor. The prison sentence was commuted to a suspended fine of 450,000 Turkish liras (7 United States dollars).
16. The Criminal Court held that the constitutive elements of the offence had been made out in that, firstly, the trade unions had not passed a resolution authorising a statement to be made to the press and, secondly, the accused were present when the statement was read out in public. The other co-defendants were acquitted on the ground that they were not present when the statement was read out.
17. The applicants appealed to the Court of Cassation against that judgment. In their written submissions, they alleged that their convictions violated their right to freedom of expression and, in particular, that “a statement to the press” could not be classified as a “leaflet” or “written statement” within the meaning of section 44 of the Associations Act.
18. In a judgment of 11 October 1996, the Court of Cassation upheld the judgment at first instance, holding that it complied with the law and the rules of procedure. The applicants did not receive a full copy of the judgment.
19. On 12 November 1996 the judgment of 11 October 1996 was placed in the file of the İzmir Criminal Court. The sixth applicant, Ms S.T., obtained a copy of it on 25 December 1996.
20. The relevant provisions of the Associations Act, which was published in the Official Gazette on 7 October 1983, are as follows:
“(1) Associations shall not publish or distribute leaflets [bildiri], written statements [beyanname] or similar publications [benzeri yayın] without a prior resolution by their executive board. The leaflets, written statements and similar publications shall contain the forenames, surnames and signatures of the president and members of the executive board which passed the resolution.
(2) A copy of the resolution by the association's executive board to publish and of the leaflet, written statement or similar publication shall be filed for information purposes with the head of the local authority and the public prosecutor's office for the area. The latter shall deliver, in exchange, a receipt recording the time and date the documents were filed. No leaflet, written statement or similar publication may be distributed or communicated to the press until twenty-four hours after it has been filed.”
“Anyone failing to comply with the procedure set out in section 44(1) and (2) shall be liable on conviction to between three and six months' imprisonment.”
21. At the material time trade unions representing public servants were formed without any specific statutory basis. Associations and trade unions were governed by two pieces of legislation: the Associations Act and the Trade Unions Act (Law no. 2821 of 5 May 1983). Although there are no restrictions in the Trade Unions Act on written statements by trade unions, section 63 refers to the Associations Act and lays down that the provisions of that Act shall apply where the Trade Unions Act is silent.
22. The first five applicants produced various judgments that had been delivered by the İzmir Criminal Court in cases concerning the activities of public-sector trade unions. These included a judgment of 1 July 1996 (no. 1996/669), from which it emerged that the first five applicants had ultimately been acquitted in another case in which they had been charged with an offence under sections 44 and 82 of the Associations Act after reading out a statement to the press and distributing it to members of the press. In that case, the Criminal Court had followed a judgment of the Court of Cassation (without giving the reference) in finding that a statement read out to the press drafted by the Health Workers' Union could not be classified as a “written statement” or “similar publication” within the meaning of section 44 of the Associations Act.
23. On 2 May 2000 and 4 June 2002 the Court of Cassation, sitting as a full court, delivered two judgments in which it clarified the issue of whether it was foreseeable that section 44(1) and (2) of the Associations Act applied to written statements read out to the press by members of an association's executive board. In its view, those subsections applied to texts which had previously been adopted and prepared for publication and dissemination. However, a statement read out to the press by an association on a particular subject was not a text that was drafted with a view to publication and dissemination, but a series of verbal comments. “Dissemination”, “publication” and similar terms could not possibly cover the situation in which the content of a speech due to be made orally was distributed among members of the press as an aid to understanding. The effect of holding otherwise – by a broad interpretation of the law, one which, in other words, included oral statements within the scope of section 44 – would be that members of an association's executive board would be liable to penalties for any replies or explanations given in response to questions from journalists; such a state of affairs would introduce an unlawful restriction on freedoms. In addition, the legislature had unambiguously laid down in that section that a text drafted with a view to publication could be published only once the executive board of the association had so resolved and the relevant documents had been filed with the competent authority.
24. Law no. 5231, which Parliament passed on 17 July 2004, amends the Associations Act, repealing sections 44 and 82. On 2 August 2004 the President of the Republic returned the legislation to Parliament for a fresh debate on sections 10 and 21, which relate to the financing of associations.
VIOLATED_ARTICLES: 10


ITEMID: 001-58062
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF AKDİVAR AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (abuse of process);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 25-1;Violation of P1-1;No violation of Art. 14;No violation of Art. 18;Not necessary to examine Art. 3;Not necessary to examine Art. 5;Not necessary to examine Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 12. The facts are based on the Commission's findings of fact as set out and developed in its report of 26 October 1995.
13. 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 so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. It appears from information submitted by the applicants and by the amicus curiae that a large number of villages, estimated at more than 1,000, have been destroyed and evacuated during this conflict (see paragraph 7 above).
14. Since 1987, ten of the eleven provinces of south-eastern Turkey have been subjected to emergency rule which was in force at the time of the facts complained of.
15. The applicants (see paragraph 1 above), Turkish nationals, were residents in the village of Kelekçi in the Dicle district of the province of Diyarbakir. The village of Kelekçi and the surrounding areas have been the centre of intense PKK terrorist activity. It is undisputed that the PKK launched serious attacks on Kelekçi on 17 or 18 July 1992, and the neighbouring village of Bogazköy on 1 November 1992. As a result of the first attack, three Kelekçi villagers were killed and three others wounded. The second attack on 1 November 1992 was directed at the Bogazköy gendarme station, which was destroyed, with one gendarme being killed and eight others injured. Thereafter security forces were reinforced in the area and extensive searches were carried out for terrorists. The applicants alleged that on 10 November 1992 State security forces launched an attack on the village of Kelekçi, burnt nine houses, including their homes, and forced the immediate evacuation of the entire village.
16. The Government categorically denied these allegations, contending that the houses had been set on fire by the PKK. Initially they stated that the village had merely been searched and that no damage had been caused. Subsequently, it was maintained that no soldiers had entered Kelekçi on 10 November 1992, and, if they had been in the vicinity, they had stopped on the outskirts of the village to take a rest.
17. On 6 April 1993 houses in Kelekçi were set on fire and the village was almost completely destroyed. It is disputed, however, whether this destruction was caused by terrorists or by security forces.
18. The Commission established that nine houses, including those of the applicants, were destroyed or seriously damaged by fire not long after the attack on the Bogazköy gendarme station on 1 November 1992. Although noting that there was some uncertainty as to the exact date when the nine houses were burnt, it accepted the applicants' claims that this occurred on 10 November 1992.
19. The Commission found that no proper investigation was carried out at the domestic level regarding the destruction of the nine houses at Kelekçi on 10 November 1992 either immediately after the event or thereafter. Apparently, a gendarmerie report of 29 November 1993 dealt with events at Kelekçi. However, the Commission concluded that this report and other "incident reports" which had been submitted to the Chief Public Prosecutor at the Diyarbakir State Security Court, in so far as they concerned the destruction of the nine houses, did not result in any investigation of the facts and involved no attempt to establish responsibility for the destruction.
20. It was also established by the Commission that, although the applicants had lost their homes, no one gave proper advice to them or, apparently, to the other displaced Kelekçi villagers, on how to obtain compensation for the loss of their homes or other forms of assistance. Petitions were made by the mayor of the village and statements were given to several State officials. However, no authority took up the applicants' problems or referred them to the competent body.
21. There was also evidence before the Commission that, after the case had been brought to it, certain of the applicants, or persons who were believed to be applicants such as Hüseyin Akdivar and Ahmet Çiçek (see paragraphs 48-50 below), had been questioned by the State authorities about their applications to the Commission. The Commission had been provided with a filmed interview with these two persons, during which they were asked about the case in Strasbourg.
22. As regards the events on 10 November 1992 (see paragraph 15 above), the Commission noted that the investigation reports and the recorded statements by villagers which had been submitted to it by the respondent Government were dated September 1994, i.e. almost two years after the destruction of the nine houses. In these statements they placed the blame on the PKK for setting fire to the houses. At that time, a number of villagers had been heard by the authorities about events at Kelekçi. It was observed that this inquiry had taken place at a time when the village had been further damaged on 6 April 1993, and after the Commission had communicated the applicants' complaints to the Government for observations and decided to hold an oral hearing in the case.
It was further noted that the investigation reports of September 1994 were based on an exploratory mission undertaken by helicopter on 21 September 1994. During this mission, the investigating team did not land at Kelekçi but only observed the village during low-level flights. The report stated that all the houses at Kelekçi had collapsed and that there were no inhabitants in the village.
23. As to the events of 6 April 1993, the Commission found that a team of gendarmes had heard various villagers in April 1993. However, in their recorded statements no reference was made by the villagers to the incident of 10 November 1992. The statements were examined by the Commission in order to determine whether they should affect the Commission's findings on questions of fact in respect of the incident complained of. In its report of 26 October 1995 it concluded as follows:
"197. In this respect, it is striking that the various statements by the villagers are drafted in a stereotyped form and have on the whole the same contents (see paragraphs 54, 56, 57, 59, 61, 65, 66, 68, 71, 73 and 75). Most of them describe the events of 6 April 1993 in an almost identical manner. In the recorded statements the villagers refer to the fact that the terrorists had made a previous attack on the village during which three persons had been killed and three others injured, this general formula being used even in the statements of the applicants Ahmet Çiçek and Abdurrahman Aktas whose close relatives, including the latter's father, had been killed on that occasion. The statements also contain a declaration about the villagers' respect for the State and their willingness to help the State. All in all, the recorded statements give the impression of having been drafted in a uniform manner by the gendarmes rather than reflecting spontaneous declarations by the villagers. This may also explain why some of these statements are in complete contradiction to what the same persons have stated on other occasions (see Ahmet Çiçek's statements referred to in paragraphs 61 and 89-90 above, Abdurrahman Aktas's statements referred to in paragraphs 54 and 98 above, and Abdullah Karabulut's statements referred to in paragraphs 66, 67 and 111 above). Thus it seems highly doubtful whether the recorded statements to the gendarmes can be said to reflect the information that the villagers intended to convey in regard to the events at issue."
24. The Commission concluded that it attached no particular weight to the statements of the villagers in April 1993. It further noted the inadequacy of any real investigations at the domestic level which could be of assistance in elucidating the events on 10 November 1992. It concluded that the absence of any such investigations was in itself a disturbing element in regard to a serious matter such as the destruction of the homes of a considerable number of persons.
25. In the absence of any relevant investigations at the domestic level, the Commission based its finding on the evidence which had been given orally by various persons or submitted in writing in the course of the proceedings before it.
26. The Commission concluded that there was no evidence of any conspiracy between the villagers to accuse the State of the burning of the houses in order to obtain compensation or for any other purpose.
It also noted that, while there was evidence that the security forces were in the village, none of the witnesses stated that any stranger had been seen at Kelekçi on 10 November 1992. It was unlikely that terrorists would have set fire to nine houses in the village without anyone having noted their presence. Nor was there any other evidence showing that terrorists had been at Kelekçi on that day.
27. Following an assessment of the evidence, the Commission found it convincingly shown that security forces - presumably under the strain of intense terrorist activity in the area - were responsible for the burning of the nine Kelekçi houses on 10 November 1992. However, it had not been shown that the applicants were forcibly expelled from Kelekçi, but the loss of their homes caused them to abandon the village and move elsewhere.
28. The Government have submitted that the following domestic law is relevant to the case.
Article 125 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 indemnify any damage caused by its own acts and measures."
29. The above 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 responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as 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.
30. The principle of administrative liability is reflected in the additional Article 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
"... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts."
31. The Turkish Criminal Code makes it a criminal offence
- to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
- to oblige someone through force or threats to commit or not to commit an act (Article 188), - to issue threats (Article 191),
- to make an unlawful search of someone's home (Articles 193 and 194),
- to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),
- to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or
- to damage another's property intentionally (Articles 526 et seq.).
32. 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. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
33. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and the Procedure of Military Courts).
34. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court (Danistay); a refusal to prosecute is subject to an automatic appeal of this kind.
35. 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.
36. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
37. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
38. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.
39. Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law no. 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.
40. Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.
41. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. According to the Commission, these councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces.
42. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:
"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."
43. According to the submissions of the applicants, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be "with justification" and therefore immune from suit.
VIOLATED_ARTICLES: 25
8
VIOLATED_PARAGRAPHS: 25-1
NON_VIOLATED_ARTICLES: 14
18