ITEMID: 001-98349
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LASKA AND LIKA v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicants were both born in 1980 and are currently serving prison sentences in Burrel Prison, Albania.
7. On 31 March 2001, at dawn, three persons wearing blue and white balaclavas robbed a minibus on the line between Tirana and Kukës. The aggressors were armed with two Kalashnikovs and a knife. Having taken the passengers' money and jewellery, they left the scene without causing casualties.
8. Some hours after the event, the police searched houses near the scene of the crime, including that of Mr Lika (“the second applicant”), where he was having lunch with his father, his brother, B.L., and his friend, Mr Laska (“the first applicant”).
9. The police officers conducted the said search in the absence of the applicants' lawyer.
10. According to the police report of the search, the police found in the pocket of the first applicant's jacket two white T-shirts and a blue cloth, made into balaclavas. Moreover, near the house they found some grenades, but failed to find the stolen goods or the weapons that had been in the possession of the aggressors.
11. The applicants, B.L, and the father were escorted to the police station for questioning. The first applicant requested, but was refused, the presence of his lawyer (H.B). He disputed having had in his possession a balaclava or other form of mask and accused the police of manipulating the evidence.
12. On the same day, the police officers in charge of the investigation proceeded to the identification of persons and items by the victims of the robbery, pursuant to Articles 171 and 172 of the Code of Criminal Procedure (“CCP”). The applicants' lawyer was not present.
13. As to the identification of persons, the applicants and B.L., wearing blue and white home-made balaclavas, and two other persons, wearing black balaclavas, were put in a row in the same room in order to be identified. Notwithstanding the fact that the police changed the position of the persons in the room, the victims consistently identified the persons wearing blue and white balaclavas as the aggressors, that is to say the applicants and B.L..
14. As to the identification of objects, the victims were asked to identify the balaclavas used by the aggressors, choosing among two black balaclavas, two white balaclavas and a blue one. The victims identified the white and blue balaclavas as those worn by the aggressors.
15. At 9.30 p.m. on the same day the applicants and B.L. were arrested on suspicion of armed robbery. They were questioned by the police in the absence of a lawyer, notwithstanding the fact that B.L. was a minor at the time and that the applicants had explicitly requested a lawyer to be present. The first applicant accepted that he had in his possession a white T-shirt, transformed by F.N, a police officer in charge of the investigations, into a home-made balaclava. The second applicant stated that the white T-shirt which had been found in the possession of the first applicant was not his.
16. On 2 April 2001 the applicants and B.L. were charged with one count of armed robbery and one count of illegal possession of arms. On the same day they were questioned by the prosecutor. The first applicant asked to be represented by H.B. The second applicant sought to be defended by counsel.
17. On 29 June 2001 the General Prosecutor's Office (GPO) requested to inspect the criminal investigation file in respect of the second applicant. On 10 September 2001 the GPO consented to the case being committed to trial.
18. On 11 September 2001, the prosecutor committed the applicants and B.L. to trial on charges of armed robbery and illegal possession of weapons.
19. During the hearing of 26 November 2001 before the Puke District Court, (“the District Court”), the applicants contested the charges against them and requested the domestic court to declare null and void the identification carried out by the police of persons and objects, as it had been in breach of the relevant provisions of the CCP. Moreover, they accused the police officers in charge of the investigation of manipulating the evidence against them: the applicants therefore requested the court to summon the police officers as witnesses and to produce at the trial the items considered by the police to be balaclavas, but which were, in their view, simple T-shirts. The applicants requested the domestic court to exclude the illegal evidence against them. As to the charge of illegal possession of arms, the applicants maintained that the investigation had failed to find the weapons used by the offenders during the robbery and it had not been proved that the grenades found had been in their possession. Both applicants were represented by the same counsel, P.Gj.
20. On 24 May 2002 the District Court dismissed the applicants' request to summon the police officers as witnesses, without giving reasons. Notwithstanding the fact that the court noticed certain irregularities during the investigation stage (such as the absence of a lawyer during the applicants' questioning and during the identification of persons and objects), the court found the applicants guilty of armed robbery on the basis of the eyewitnesses' identification of the applicants as the offenders. Moreover, the court found the applicants guilty of illegal possession of two Kalashnikovs and B.L guilty of possession of a knife. No weapons having been found, the applicants' conviction was based on eyewitness statements. The court sentenced the applicants to thirteen years' imprisonment and B.L. to five years' imprisonment. The applicants were ordered to serve their sentences in a high-security prison.
21. On 29 May 2002 the applicants appealed to the Shkoder Court of Appeal, (“the Court of Appeal”), on the grounds that the District Court's judgment was the result of unfair proceedings. They argued that the identification had been conducted in flagrant breach of Articles 171-175 of the CCP as they had worn the same balaclavas during the identification parade. Their lawyers' request about the nullity of the acts concerning identification had been rejected by the trial court. They also stated that none of the material evidence (balaclavas), as requested by themselves, had been produced at the trial proceedings. Moreover, the authorities had failed to find the money and the weapons that had been used in the robbery.
22. On 9 September 2002, the Court of Appeal upheld the District Court's judgment.
23. On 7 October 2002 the applicants appealed to the Supreme Court. They relied on the same grounds of appeal as before the Court of Appeal. They also alleged that both of them had been represented by the same counsel before the lower courts, at a time when there were inconsistencies in their testimonies given during the criminal investigation.
24. On 26 December 2002 the Supreme Court declared the appeal inadmissible as its grounds fell outside the scope of Article 432 of the CCP.
25. On an unspecified date the first applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He relied on the same grounds as raised before the Court of Appeal and the Supreme Court.
26. On 17 September 2004 the Constitutional Court, sitting as a bench of three judges, declared the complaint inadmissible. It held that the applicant's complaints did not raise any fair trial issues, but mainly concerned the assessment of evidence, which was the function of the lower courts.
27. The applicants alleged that they had been ill-treated by F.N. and other police officers during police questioning. They alleged that they had been tied up with ropes, beaten and hosed with cold water during the interrogations.
28. At the hearings of 26 November 2001 before the District Court, the applicants alleged that they had been ill-treated by the police officers in charge of the investigation, in that the latter had attempted to force them to confess to the robbery and to reveal the location of the stolen goods and the arms used. B.L and the applicants gave the same description of the alleged ill-treatment.
29. On 24 May 2002 the District Court rejected the applicants' requests on the ground that they had been submitted outside the six-month time-limit. No legal basis was mentioned in the judgment.
30. The Albanian Code of Criminal Procedure (“CCP”) in its relevant parts reads as follows:
1. When the need arises to conduct the identification of a person, the proceeding authority invites the person who must do the identification to describe the person (to be identified), relating all the signs he/she remembers and that person is asked whether he/she has been previously summoned to do the identification and about other circumstances, which may contribute to the accuracy of the identification.
2. Actions provided for by paragraph 1 and statements made by the person who does the identification are entered in the records.
3. Non-compliance with the provisions of paragraphs 1 and 2 is a cause for the invalidity of the identification.
1. The proceeding authority, after taking away the person who will do the identification, ensures the presence of at least two persons, looking as alike as possible, to the person to be identified. It invites the latter to choose his/her place in relation to others, taking care to be portrayed, as much as possible, in the same circumstances under which he/she would have been seen by the person called to do the identification. After the person who will do the identification appears, the court asks the latter whether he/she knows anyone among those presented for identification, and if yes, to point out the person he/she knows and to specify whether he/she is sure.
2. When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified, the proceeding authority orders the act to be performed without the latter seeing the former.
3. The records must describe how the identification was performed. Failure to do so invalidates the identification. The proceeding authority may order, for records purposes, that the performance of the identification be photographed or filmed.
1. When the identification of material evidence or other items relevant to the criminal offence must be performed, the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable.
2. After finding, when possible, at least two similar items to the one to be identified, the proceeding authority asks the person called to identify whether he/she recognises any of them and, if the answer is yes, invites him/her to state which of them he/she recognised and to specify whether he/she is sure.
3. The records must describe how the identification was performed. Failure to do so invalidates the identification.
1. When several persons are called to do the identification of the same person or item, the proceeding authority performs it one by one separately, prohibiting any communication between the one who has done the identification and those who will do it subsequently.
2. When a person must identify several persons or items, the proceeding authority orders the person or item to be identified to be placed among different persons or items.
3. The provisions of Articles 171, 172 and 173 of the CCP are applicable.
1. The defendant, when present, and the person in possession of the premises subject to the search, is handed a copy of the search order, informing them of the right to request the presence of a person they rely on.
2. When the persons stipulated in paragraph 1 are absent, a copy of the order is handed over to a relative, neighbour or to a colleague.
3. The proceeding authority may search the persons present when it judges that they may conceal material evidence or items relating to the criminal offence. It may order that the persons present may not leave prior to the conclusion of the search and may use force to retain those who leave.
The prosecutor questions the arrested or the detained person in the presence of the chosen or appointed lawyer. He shall notify the arrested or the detained person of the facts for which he is being prosecuted and of the reasons for the interrogation, making known the information available about the charge and, when the investigation would not be impaired, even the sources.
In taking a decision the court shall not make use of evidence other than that obtained or confirmed during the trial.
31. Articles 449–461 of the CCP govern the application for review of a final judgment. According to Article 451, the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article 450. The request is submitted to the Supreme Court which may decide to reject or accept it (Article 453).
32. In an effort to harmonise the legal practice, the Supreme Court Joint Benches examined the institution of judicial review in its judgment no. 6 of 11 October 2002. The relevant parts of the judgment read:
“(...) It is acknowledged that the review of final judgments is an extraordinary remedy, the only one, that has been envisaged by the lawmaker in the CCP in order to put right any judicial mistakes (in respect of final court judgments).
The trial that occurs, as a result of the review [proceedings], is not limited to a mere review (in the strictest sense of the word) of the previous trial. In its conclusion, the court, having examined the facts, circumstances and evidence submitted by the parties, taken together and in concert with the evidence, circumstances and facts administered and examined during the previous trial, can reach a different outcome, going as far as delivering a judgment in total contradiction to the previous one. (...)
This is the reason why the lawmaker allowed for a review in strictly defined instances, which have been explicitly laid down in a special provision of the CCP, notably in Article 450 (...). According to this provision, the review can be sought by the parties only if there exists one of the requirements explicitly provided therein.”
33. On 19 January 2000, at the 694th meeting of the Ministers' Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members;
Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter "the Convention");
Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms ("the Convention") the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights ("the Court") in any case to which they are parties and that the Committee of Ministers shall supervise its execution;
Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum);
Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system;
Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court's judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum;
I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum;
II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where:
(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and
(ii) the judgment of the Court leads to the conclusion that
(a) the impugned domestic decision is on the merits contrary to the Convention, or
(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”
34. The explanatory memorandum on Recommendation R (2000) 2 provides, in so far as relevant, that:
“...
Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist.
...”
35. Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows:
“A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89558
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF DEMİR AND BAYKARA v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed (ratione materiae);Violations of Art. 11;Damage - award;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi;Vladimiro Zagrebelsky
TEXT: 14. The applicants, Mr Kemal Demir and Mrs Vicdan Baykara, were born in 1951 and 1958 and live in Gaziantep and Istanbul respectively. The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its President.
15. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under Article 2 of its constitution, the trade union’s objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims. Its head office is located in Istanbul.
16. On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years, effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council’s employees, such as salaries, allowances and welfare services.
17. As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular its financial obligations, the second applicant, as President of the trade union, brought civil proceedings against it in the Gaziantep District Court (“the District Court”) on 18 June 1993.
18. In a judgment of 22 June 1994, the District Court found in favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed on points of law.
19. On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court’s judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood.
20. In arriving at this conclusion, the Court of Cassation took into account the special relationship between civil servants and the public administration as regards recruitment, the nature and scope of the work concerned, and the privileges and guarantees afforded to officials by virtue of their status. It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take strike or lock-out action, could not apply to relations between civil servants and a public administration. Any agreement of a “collective” nature between civil servants’ unions and a public administration had to be grounded in specific legislation.
21. In a judgment of 28 March 1995, the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation (ILO) which had already been ratified by Turkey and which, by virtue of the Turkish Constitution, were directly applicable in domestic law.
22. Among other things, the District Court indicated, firstly, that the trade union Tüm Bel Sen was a legally established entity which had filed its constitution with the provincial governor’s office a long time ago and which, since then, had carried on its activities without the slightest intervention by the competent authorities. The court added that, on this matter, there was no discrepancy between its judgment and that of the Fourth Civil Division of the Court of Cassation.
23. As regards the right of civil servants to enter into collective agreements, the court considered that, even if there was an omission in Turkish law on this point, the court to which a dispute was referred had an obligation, under Article 1 of the Civil Code, to make good the omission itself and to adjudicate the case. In the court’s view, the same obligation also arose from Article 36 of the Turkish Constitution, under which everyone was afforded the right of access to a court. In this context the relevant provisions of the ILO conventions ratified by Turkey had to be applied in the case, even though the specific national laws had not yet been enacted by the legislature. Directly applying the relevant provisions of these international instruments ratified by Turkey, the court considered that the applicant trade union did have the right to enter into collective agreements.
24. As to the question whether the validity of the collective agreement in question was affected by the fact that it had not been provided for by any legislation at the time it was entered into, the court considered that, since it concerned employer-employee relations, the agreement was of a private-law nature. In the context of the limits imposed by Articles 19 and 20 of the Code of Obligations, namely compliance with statutory provisions, customary law, morals and public order, the parties had been freely entitled to determine the content of this collective agreement. An examination of the text of the collective agreement in question did not reveal any contradiction with those requirements. Consequently, the court found that the collective agreement between the applicant trade union and the Gaziantep Municipal Council had been a valid legal instrument with binding effect for the parties.
25. The court awarded Mr Kemal Demir a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question.
26. In a judgment of 6 December 1995, the Court of Cassation (combined civil divisions) quashed the District Court’s judgment of 28 March 1995. It found that certain rights and freedoms mentioned in the Turkish Constitution were directly applicable to litigants, whereas others were not. In fact, the Constitution, by the indication “the exercise of this right shall be governed by legislation” clearly earmarked the rights and freedoms which, to be used and applied, required the enactment of specific legislation. Absent such legislation, these rights and freedoms, which included the freedom to join a trade union and to bargain collectively, could not be exercised.
27. The Court of Cassation further considered that the principle of the individual’s free will was not absolute in respect of the establishment of legal entities. They could acquire legal personality, distinct from their constituent persons, only by complying with the formal conditions and procedures laid down by law for that purpose. The creation of a legal entity was no more than a legal consequence conferred by the law on an expression of free will by the founders.
28. The Court of Cassation pointed out that the freedom to form associations, trade unions and political parties, even if provided for in the Turkish Constitution, could not be exercised simply by a declaration of the free will of individuals. As there was no specific law on the subject, the existence of such a legal entity could not be recognised. According to the Court of Cassation, this finding was not at odds with the principles of “the rule of law” and “democracy” mentioned in the Constitution, since supervision of legal entities by the State, in order to ensure public usefulness, was necessary in any democratic legal system.
29. The Court of Cassation further pointed out that the legislation in force at the time when the trade union was founded did not permit civil servants to form trade unions. It added that the amendments subsequently made to the Turkish Constitution, recognising the right of civil servants to form trade unions and bargain collectively, were not such as to invalidate the finding that Tüm Bel Sen had not acquired legal personality and, as a result, did not have the capacity to take or defend court proceedings.
30. An application by representatives of the trade union for rectification of that decision was rejected by the Court of Cassation on 10 April 1996.
31. Following an audit of the Gaziantep Municipal Council’s accounts by the Audit Court, the members of the trade union Tüm Bel Sen had to reimburse the additional income they had received as a result of the defunct collective agreement. The Audit Court, in a number of decisions that it gave as the court of last resort in respect of the collective agreements entered into by the trade union, pointed out that the rules applicable to civil servants, including the salaries and allowances to which they were entitled, were laid down by law. It further considered that, since the amendment on 23 July 1995 of Article 53 of the Turkish Constitution and the enactment on 25 June 2001 of Law no. 4688 on civil servants’ trade unions, such unions were admittedly entitled to engage in collective bargaining under certain conditions of representation, but were not entitled to enter into valid collective agreements directly with the authorities concerned, unlike trade unions of ordinary contractual employees who could enter into such agreements with their employers. If an agreement was entered into between the employing authority and the trade union concerned, it could only become binding following its approval by the Council of Ministers. The Audit Court, after finding that the collective agreement entered into by the applicant trade union had not fulfilled these conditions, decided that the accountants who had authorised higher payments than those provided for by law should reimburse the surplus amounts to the State’s budget.
32. The Audit Court refused to apply section 4 of Law no. 4688, which required the discontinuance of any administrative, financial or judicial proceedings brought against accountants who were responsible for such payments. It considered that this provision did not render the collective agreements valid and did not release the accountants in question from the obligation to reimburse the State for any losses sustained by it as a result of payments made in accordance with those agreements.
33. The accountants concerned in turn brought proceedings against the civil servants who were members of the trade unions and had benefited from the additional payments granted under the defunct collective agreements.
34. The relevant provisions of the Turkish Constitution read as follows:
“Ordinary contractual employees (işçi) and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in the context of their labour relations.
In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation are not in conformity with the law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions.
Everyone shall be entitled to join or resign from a trade union.
No one shall be compelled to become a member, remain a member, or resign from a trade union.
Ordinary contractual employees and employers shall not be entitled to join more than one trade union at a time.
Employment in a particular workplace shall not be made conditional on membership or lack of membership of a trade union of ordinary contractual employees.
In order to hold an executive post in a trade union or federation of trade unions of ordinary contractual employees, it is necessary to have effectively been employed as such an employee for at least ten years.
The constitution, administration, and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.”
“Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations, and to join or withdraw from such entities of their own free will. No one shall be compelled to join or resign from a trade union.
The right to form a union may only be limited as prescribed by law in the interests of national security or public order, for the prevention of crime, for the protection of public health or morals or for the protection of the rights and freedoms of others.
The formalities, conditions and procedures applicable to the right to form a trade union shall be prescribed by law.
Membership of more than one trade union within the same sector of activity shall be prohibited.
The scope of the rights in this sphere of public officials other than those who have the status of ordinary contractual employee, and the exceptions and limitations applicable to them, shall be prescribed by law in a manner appropriate to the nature of the services they provide.
The constitution, administration and functioning of trade unions and federations of unions shall not be inconsistent with the fundamental characteristics of the Republic or with democratic principles.”
“Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work.
Collective agreements shall be entered into in accordance with the statutory procedure.
It shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.”
“Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work.
Collective agreements shall be entered into in accordance with the statutory procedure.
The trade unions and federations of unions which the public officials referred to in the first paragraph of Article 128 shall be entitled to form, and which do not fall within the scope of the first and second paragraphs of the present Article, nor that of Article 54, shall be entitled to take or defend court proceedings and to bargain collectively with the public administration in accordance with their objectives and on behalf of their members. If an agreement is reached as a result of collective bargaining, the text of the agreement shall be signed by the parties. This text shall be submitted to the Council of Ministers so that legal or administrative arrangements can be made for its implementation. If no such agreement is reached through collective bargaining, a record of the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by the Council of Ministers. The procedure for the implementation of this paragraph shall be laid down by law.
It shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.”
“... International treaties that are duly in force are directly applicable in domestic law. Their constitutionality cannot be challenged in the Constitutional Court.
In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.” (Second sub-paragraph added by Law no. 5170 of 7 May 2004)
“The essential and permanent duties necessitated by the public services that the State, public economic undertakings and other public-law entities are required to provide, in accordance with general principles of public administration, shall be performed by civil servants and other public officials.
The qualifications, appointment, duties and powers, rights and responsibilities, and salaries and allowances of civil servants and other public officials, and other matters related to their status, shall be provided for by law.
The procedure and principles governing the training of senior civil servants shall be specially provided for by law.”
35. Section 22 of the Public Service Act (Law no. 657 of 14 July 1965) stated that civil servants were authorised to form and join trade unions and professional organisations, in accordance with the conditions set out in special legislation. The second subsection of that provision stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities.
Section 22 was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972. It was reinstated by section 1 of Law no. 4275 of 12 June 1997. The text now reads:
“In accordance with the provisions of the Constitution and of the special legislation, civil servants shall be permitted to form and to become members of trade unions and federations of trade unions.”
36. The Civil Servants’ Trade Union Act (Law no. 4688 – which was enacted on 25 June 2001 and entered into force on 12 July 2001) applies, according to section 2, to public officials, other than those who have the status of ordinary contractual employees (işçi), working for government agencies and other public-law entities providing a public service, organisations operating on a general, supplementary or special budget, public administrations and municipal authorities in provinces and services attached thereto, publicly owned enterprises, banks and other private-law undertakings and establishments attached thereto, and for all other public organisations and establishments.
Section 30 of the Act provides as follows:
“The trade union with the greatest number of members in each branch of public administration and the federations to which those unions are affiliated shall have the capacity to bargain collectively. The delegate from the most representative trade union shall chair the delegation taking part in the negotiations.”
The determination of which civil servants’ trade unions and federations are competent to bargain collectively is made by the Minister for Labour and Social Security on the basis of lists that are co-signed and presented by the public administrations and the trade unions (section 30 of Law no. 4688).
During the collective bargaining, the employer is represented by the Public Employers’ Committee. Civil servants and other public officials are represented by the trade union that is recognised as competent and the federation to which it is affiliated.
The Public Employers’ Committee and the trade unions and federations concerned are required to meet on 15 August every year. The parties then submit their proposals, which will form the starting-point and agenda of the collective bargaining. The principles governing the negotiations are determined by the parties (section 32 of Law no. 4688).
The collective negotiations must be concluded within fifteen days. If agreement is reached within that time, the parties concerned sign a collective agreement which is sent to the Council of Ministers to enable the legal and administrative steps required for its implementation to be taken. The Council of Ministers takes the appropriate measures within a period of three months and presents its draft law to the Grand National Assembly of Turkey (section 34 of Law no. 4688).
If the parties concerned are unable to reach an agreement within the time-limit thus fixed, each one may refer the matter to the Arbitral Board, which is made up of academics who are not members of political parties. If the parties approve the decision of the Arbitral Board, an agreement is signed and sent to the Council of Ministers. If there is still no agreement, the parties sign a record indicating the points on which they have agreed and disagreed. This record is also sent to the Council of Ministers (section 35 of Law no. 4688).
37. Article 2 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Turkey on 12 July 1993) provides as follows:
“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”
38. In its Individual Observation to the Turkish government concerning ILO Convention No. 87, adopted in 2005, the Committee of Experts on the Application of Conventions and Recommendations stated as follows:
“The Committee underlines that Article 2 of the Convention [No. 87] provides that workers without distinction whatsoever should have the right to form and join organisations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. ...”
39. The ILO Committee on Freedom of Association declared as follows concerning municipal civil servants (see Digest of Decisions 1996, paragraph 217):
“Local public service employees should be able effectively to establish organisations of their own choosing, and these organisations should enjoy the full right to further and defend the interests of the workers whom they represent.”
40. Article 22 of the International Covenant on Civil and Political Rights provides as follows:
“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
...”
41. Article 8 of the International Covenant on Economic, Social and Cultural Rights provides as follows:
“1. The States Parties to the present Covenant undertake to ensure:
(a) the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
...
(c) the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
...
2. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
...”
42. The relevant Articles of ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted in 1949 and ratified by Turkey on 3 January 1952) read as follows:
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”
“1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.”
“This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”
43. The ILO Committee of Experts interpreted this provision as excluding from the scope of Convention No. 98 only those officials who are directly employed in the administration of the State. With that exception, all other persons employed by the government, by public enterprises or by autonomous public institutions should benefit, according to the Committee, from the guarantees provided for in Convention No. 98 in the same manner as other employees, and consequently should be able to engage in collective bargaining in respect of their conditions of employment, including wages (General Survey 1994, Freedom of Association and Collective Bargaining, on Conventions Nos. 87 and 98 [ILO, 1994a], paragraph 200).
44. The relevant provisions of ILO Convention No. 151 (adopted in 1978 and ratified by Turkey on 12 July 1993) concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service read as follows:
“1. This Convention applies to all persons employed by public authorities, to the extent that more favourable provisions in other international labour conventions are not applicable to them.
2. The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations.
3. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.”
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.”
The General Conference of the ILO, in the Preamble to Convention No. 151, noted “the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948, [and] the Right to Organise and Collective Bargaining Convention, 1949” and took into account:
“... the particular problems arising as to the scope of, and definitions for the purpose of, any international instrument, owing to the differences in many countries between private and public employment, as well as the difficulties of interpretation which have arisen in respect of the application of relevant provisions of the Right to Organise and Collective Bargaining Convention, 1949, to public servants, and the observations of the supervisory bodies of the ILO on a number of occasions that some governments have applied these provisions in a manner which excludes large groups of public employees from coverage by that Convention.”
45. Article 5 of the European Social Charter (revised), not yet ratified by Turkey, provides as follows:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
46. Principle 8 of Recommendation No. R (2000) 6 of the Committee of Ministers of the Council of Europe on the status of public officials in Europe reads as follows:
“Public officials should, in principle, enjoy the same rights as all citizens. However, the exercise of these rights may be regulated by law or through collective agreement in order to make it compatible with their public duties. Their rights, particularly political and trade union rights, should only be lawfully restricted in so far as it is necessary for the proper exercise of their public functions.”
47. Article 12 § 1 of the European Union’s Charter of Fundamental Rights provides as follows:
“Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”
48. As to European practice, it can be observed that the right of public servants to join trade unions is now recognised by all Contracting States. This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises, whether national or municipal. Civil servants, whether they work for central government or a local authority, are generally entitled to join the trade union of their choosing. The density of trade-union membership is generally higher in the public sector than in the private sector. In the majority of member States, the few restrictions that can be found are limited to judicial offices, to the police and to the fire services, with the most stringent restrictions, culminating in the prohibition of union membership, being reserved for members of the armed forces.
49. Article 6 of the European Social Charter (revised), not yet ratified by Turkey, contains the following provision concerning the right to bargain collectively:
“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:
1. to promote joint consultation between workers and employers;
2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise:
4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”
50. According to the meaning attributed by the Charter’s Committee of Independent Experts (now the European Committee of Social Rights) to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations (see, for example, in respect of Germany, Conclusions III, pp. 34-35).
51. Article 28 of the European Union’s Charter of Fundamental Rights provides as follows:
“Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”
52. As to the practice of European States, it can be observed that, in the vast majority of them, the right for public servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas (disciplinary procedures, pensions, medical insurance, wages of senior civil servants) or certain categories of civil servants who hold exclusive powers of the State (members of the armed forces and of the police, judges, diplomats, career civil servants at federal level). The right of public servants working for local authorities and not holding State powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the vast majority of Contracting States. The remaining exceptions can be justified by particular circumstances.
VIOLATED_ARTICLES: 11


ITEMID: 001-97546
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: EBMER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Elfriede Ebmer, is an Austrian national who lives in Adlwang. She is represented before the Court by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a plot of land in Adlwang. Her neighbour owns two plots of land. The first one, directly bordering the applicant's land, is a strip of 10 metres in width, which is classed as “dividing green” (Trenngrün) in the area zoning plan (Flächenwidmungsplan). For the second plot of land the applicant's neighbour requested a building permit to erect a workshop for assembling tools. Initially, the neighbour would have had to keep a distance of an additional three metres from the dividing green for any building on the second land, i.e. a total of 13 metres from the applicant's land.
This request was granted by the Mayor (Bürgermeister) of Adlwang on 18 May 1987. Appeal proceedings brought by the applicant remained unsuccessful and on 15 May 1990 the Administrative Court dismissed a complaint brought by her.
An inspection on 20 November 1989 showed that the neighbour had not fully complied with his building permit and notice to halt the construction (Baueinstellungsbescheid) was issued.
On 14 December 1989 the Municipal Council (Gemeinderat) issued for the first time a construction planning scheme (Bebauungsplan) concerning the plots of land of the applicant's neighbour. The construction planning scheme allowed for the construction of buildings up to a height of 8.37 metres and changed the building line to allow in part building closer to the dividing green which was situated between the applicant's land and the land of her neighbour. The applicant filed a direct application (Individualantrag) with the Constitutional Court requesting to have this planning scheme reviewed. This request was rejected by the Constitutional Court on 9 October 1991, because the applicant could have asked for review of the planning scheme in building proceedings concerning the land at issue. In 1990 and 1994 the planning scheme was modified following amendments to the building legislation, allowing for a maximum construction height of 8.95 metres and moving the building line on to the northern edge of the land, opposite to where the applicant's land was situated.
In 1996 the applicant's neighbour filed a further request for a building permit for an extension of a part of the building. The permit was granted on 7 August 1996 by the Mayor. Appeal proceedings brought by the applicant remained unsuccessful. On 28 February 2000 the Constitutional Court dismissed a complaint by the applicant as it found that the construction planning scheme and its amendments were lawful.
Meanwhile, on 5 February 1997, a further inspection by the authorities showed that the workshop was not completely in compliance with the permit, because it was 20 centimetres too wide and was also built on a small piece of the dividing green.
Thereupon, on 2 October 1999, the applicant's neighbour requested a retrospective building permit for the workshop. This request was based on a plan that included the demolition of those parts of the workshop that were built on the dividing green.
At a hearing (Bauverhandlung) on 21 October 1999 the applicant was present and filed several objections, following which the hearing was adjourned and the neighbour asked to amend his request. Besides the parties several experts were also heard. The landscape protection expert found that the proposed project was an improvement from the point of view of landscape protection. In his view the underlying problem was that initially the workshop for assembling tools had been situated on an isolated plot of land; subsequently building land had been designated in its close vicinity, and that was what had led to the present tensions. The hearing was resumed and, on 30 March 2000, the Mayor of Adlwang granted the neighbour the building permit.
On 17 April 2000 the applicant appealed.
On 17 October 2000 the Municipal Council (Gemeinderat) dismissed the applicant's appeal and allowed the minor breach of the specifications regarding the width of the workshop for assembling tools, because no public interest or rights of third persons had been infringed.
Subsequently, on 25 April 2001, the Upper Austria Regional Government (Oberösterreichische Landesregierung) also dismissed the applicant's appeal (Vorstellung). It held, inter alia, that the applicant's subjective rights could not have been infringed by the building permit, because those parts of the workshop erected on the dividing green fell outside the scope of the existing building permit.
On 7 June 2001 the applicant filed a complaint with the Constitutional Court. In her complaint she submitted that her neighbour had not respected all the relevant regulations for the building and that the construction planning scheme had been unlawful and in breach of the principle of equality.
On 25 February 2002 the Constitutional Court, referring, inter alia, to its case law on that matter and its previous decision of 28 February 2000 in which it had found that the construction planning scheme at issue had been lawful, declined to deal with the applicant's complaint for lack of any prospect of success. On 23 April 2002 it referred the case to the Administrative Court upon the applicant's request.
On 26 April 2002 the Administrative Court instructed the applicant to remedy procedural shortcomings of her complaint. The applicant did so on 4 June 2002.
She submitted that the building authorities had incorrectly applied the provisions of the building legislation and that the building project was not in accordance with the relevant provisions of the area zoning plan and the construction planning scheme.
On 18 July 2002 and 14 August 2002 the applicant's neighbour and the Municipality of Adlwang submitted their comments. On 26 August 2002 the Upper Austria Regional Government submitted the files and also commented on the applicant's complaint.
On 20 January 2004 the applicant supplemented her complaint and submitted additional evidence. The applicant's neighbour commented on her submissions on 27 February 2004.
On 18 January 2005 the Administrative Court dismissed the applicant's complaint as being manifestly ill-founded since no interference with the applicant's rights as a neighbour had occurred. This decision was served on the applicant's lawyer on 9 February 2005.


ITEMID: 001-59210
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SCHÖPS v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-4
JUDGES: Elisabeth Palm
TEXT: 7. The applicant is a German national, born in 1953 and living in Essen.
8. In 1992 the Essen public prosecutor's office (Staatsanwaltschaft) started investigations against the applicant and a number of other people suspected of fraud.
9. On 11 March 1993 the Essen District Court (Amtsgericht) issued a warrant for the arrest of the applicant and two other suspects, Ms S. and Ms L., on suspicion of criminal association, drug trafficking and several counts of fraud.
In its decision, the District Court noted that the suspects had been charged with having founded – towards the end of December 1988 – an association for the purpose of gaining large profits from fraudulent trading in options. Moreover, as from mid-1990 the suspects had agreed to import cocaine from Majorca to Germany and to sell it there. Several accomplices had been recruited as members of the criminal organisation and had been involved in the numerous criminal offences. As regards the fraudulent trading in options, almost one thousand victims had been defrauded by the criminal association between the beginning of 1989 and March 1993, and they had lost a total of sixty million German marks. Moreover, between October 1990 and August 1992 approximately 100 kg of cocaine had been imported to and sold in Germany. The District Court found that, having regard to the statements made by some witnesses and the defendants, the results of the telephone-tapping operations and other results of the investigations, there was a strong suspicion that the applicant, Ms S. and Ms L. had committed the criminal offences in question.
The District Court also considered that there was a danger of absconding within the meaning of Article 112 § 2.2 of the Code of Criminal Procedure (Strafprozeßordnung). In this respect, the court found that, taking into account the seriousness of the offences with which the suspects were charged and the importance of the damage they had caused, they had to expect a long term of imprisonment. Moreover, the suspects obviously had sufficient financial means to abscond. According to the District Court, there was also a danger of collusion within the meaning of Article 112 § 2.3 of the Code of Criminal Procedure, since, as members of a criminal association, the suspects were accustomed to disguising the extent of their activities by having recourse to “men of straw” and fictitious contracts, and were therefore likely to suppress evidence or influence witnesses.
10. The applicant was arrested on 19 March 1993. In the presence of his defence counsel, Mr Hütsch, he was informed by the detention judge (Haftrichter) of the charges against him and of the arrest warrant of 11 March 1993. The applicant did not make a statement. He requested an oral hearing on the lawfulness of his detention (Haftprüfung) but later withdrew his request.
11. According to the applicant, his counsel applied as early as March 1993 to the Essen public prosecutor's office for leave to consult the investigation files, but his request was rejected on the ground that access to those documents would endanger the course of the investigations. However, neither the request nor its dismissal are recorded in the files of the public prosecutor's office.
12. In the ensuing proceedings, counsel for the applicant was joined by a colleague, Mr Küpper-Fahrenberg.
13. On 3 May 1993 the applicant, in the presence of defence counsel, was questioned by the police about the charges against him. He indicated that he had, in the meantime, repeatedly consulted his counsel. In the course of further interrogations on 5 and 6 May, and 13 and 20 July 1993, mostly in the presence of counsel, the applicant was questioned in detail about the charges against him, in particular about the contents of telephone calls which had been recorded by tapping under an order made in May 1992.
14. On 8 September 1993 the Essen District Court amended the arrest warrant, adding in particular further charges of tax evasion, corruption, incitement to make a false entry in official records and making a false affidavit. The District Court confirmed that there was still a danger of the applicant and other suspects absconding and that less stringent measures could be taken only in the case of Ms S. Consequently the execution of the warrant for Ms S.'s arrest could be suspended, whereas the applicant and Ms L. had to be further remanded in custody.
15. On 14 September 1993 the applicant was informed of the amended arrest warrant. His counsel then applied for access to the files. No action was taken on that request as the duplicate copy of the files had already been forwarded to the Düsseldorf Court of Appeal (Oberlandesgericht) for the purposes of the review proceedings, while the original files were needed for the purposes of the continuing investigations.
16. On 14 September 1993 the Hamm public prosecutor's office (Generalstaatsanwaltschaft) requested the prolongation of the applicant's and Ms L.'s detention on remand. In this request, to which 24 investigation files were attached, the public prosecutor noted the history of the detention proceedings and summarised the offences of which the suspects were accused. As to the factual details, he referred to the arrest warrant and a police report of July 1993 which were to be found in the attached files. According to the public prosecutor, the strong suspicion against the suspects was based on the statements of the suspects and of witnesses, the opinion of a stockbroking expert, records of telephone tapping and seized business documents, which were all included in the investigation files. He also confirmed that there was a danger of absconding.
17. In his reply of 21 October 1993, the applicant's defence counsel applied to the Düsseldorf Court of Appeal for access to the files, for an oral hearing on the question of the applicant's continued detention and for his release. He submitted that he could not comment in detail on the public prosecutor's submission as, despite repeated promises, he had not yet been granted access to the investigation files, and the public prosecutor's submissions were fragmentary and therefore did not provide a sufficient basis for him to rely on.
18. According to a handwritten file note drafted by the Court of Appeal rapporteur, the applicant's counsel, in answer to a telephone query, had agreed to a decision on the question of the applicant's continued detention on remand being taken without him having been given access to the files beforehand. However, according to the applicant, as confirmed by his counsel, Mr Hütsch, and the latter's colleague, Mr Pott, the rapporteur and counsel had agreed that counsel could not comment on the question of the applicant's continued detention on remand without having had access to the files and that the Court of Appeal judge would therefore arrange for a consultation of the files.
19. On 3 November 1993 the Düsseldorf Court of Appeal ordered the applicant's continued detention on remand.
The Court of Appeal, having regard to the result of the investigations thus far, in particular the applicant's and the co-suspects' statements, the statements of the victims, the records of telephone tapping, seized business documents and the provisional opinion of a stockbroking expert, confirmed that there was a strong suspicion that the applicant had committed the offences in question. As regards the danger of the applicant's absconding, the Court of Appeal noted that he had substantial financial means and real property in Majorca. Moreover, until his arrest, he had had contacts in the United States of America, Switzerland and Spain.
The Court of Appeal also considered that the applicant's continued detention on remand was not disproportionate. As to the conduct of the investigation proceedings, the Court of Appeal observed that the complex nature and the scope of the investigations had not yet enabled a judgment to be reached. In this connection, the Court of Appeal noted that the investigation files already comprised 24 volumes, the indictment being envisaged for November 1993. Finally, the Court of Appeal stated that there had been no need for an oral review hearing.
20. On 22 November 1993 the Essen public prosecutor's office decided to allow the applicant's defence counsel to consult the investigation files. According to the applicant, only 22 of the then 24 files were made available. They were returned in January 1994. According to the applicant, his counsel applied for further consultation of the files at the beginning of 1994.
21. On 7 February 1994, following changes in the jurisdiction of the courts, the Hamm public prosecutor's office requested the Hamm Court of Appeal to order the applicant's continued detention on remand. The public prosecutor's office enclosed the criminal files, which comprised 69 volumes and 3 subsidiary files (Beiakten).
22. In his written submission of 28 February 1994, the applicant's counsel stated that he had thus far been able to consult only 22 volumes of the criminal files and that he could not, therefore, add anything to his previous observations.
23. On 1 March 1994 the Hamm Court of Appeal granted the request of 7 February 1994 and ordered the applicant's continued detention on remand.
The Court of Appeal considered that the reasons stated in the Düsseldorf Court of Appeal's previous decision remained valid. Moreover, the investigations had progressed. The police had prepared an intermediate report in January 1994 and indicated that the questioning of about one thousand witnesses had almost been completed. The final police report and the report of the tax-investigation authorities had been announced for the end of February 1994. The public prosecutor's office envisaged preparing the bill of indictment immediately afterwards. Thus the obligation to conduct the proceedings expeditiously had not been disregarded.
The Court of Appeal further found that the applicant's complaint under Article 5 § 4 of the Convention about the lack of access to the investigation files did not affect the validity of the arrest warrant.
24. On 25 March 1994 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) about the decisions of 3 November 1993 and 1 March 1994, complaining in particular about the lack of sufficient access to the investigation files. In this respect, he stressed that he had been granted access to only 22 volumes of the investigation files which, at that time, comprised 132 volumes altogether. He and his defence counsel had not, therefore, been able to comment properly on the accusation against him and to exercise the defence rights effectively.
25. On 2 May 1994 the Federal Constitutional Court (Bundesverfassungsgericht) decided not to entertain the applicant's complaint.
26. On 25 March 1994 the Essen public prosecutor's office drew up the bill of indictment (Anklageschrift) against the applicant and four co-accused, who were charged with various criminal offences. As far as the applicant was concerned, the bill of indictment mentioned 91 counts of fraud, corruption, incitement to make a false entry in an official record and swearing a false affidavit. The proceedings relating to the charges of tax evasion were severed from these main proceedings. Prosecution for unlawful association was discontinued in view of the seriousness of the other charges. The bill of indictment, which set out in detail the charges against the applicant, the relevant facts and the evidence, was served on the applicant's counsel on 9 June 1994.
27. On 9 June 1994 the Essen public prosecutor's office forwarded copies of the investigation files, namely 132 main and 2 supplementary volumes (about 16,000 pages altogether) to the applicant's defence counsel for consultation. It requested that they be returned within one week to allow consultation by the other defence counsel. On 23 June 1994 the office sent a reminder regarding the return of the files. The date of their return was not recorded. According to the applicant, the copies made available to his counsel were not complete.
28. On 30 June 1994 the Hamm Court of Appeal ordered the applicant's continued detention on remand. Upon request by counsel of one of the applicant's co-accused, the decision had to be adjourned for one week in order to allow an adequate opportunity for submissions to be filed.
The Court of Appeal confirmed the findings as laid down in the earlier decisions of 3 November 1993 and 1 March 1994. As regards the charges against the applicant, the Court of Appeal noted the changes resulting from the bill of indictment, which did not include the charges of founding a criminal association and of tax evasion. The prosecution regarding the first of these charges had been discontinued in accordance with the relevant provisions of the Code of Criminal Procedure, in view of the minor importance of the offence as compared to those set out in the bill of indictment. As regards the tax-evasion offence, further investigations were pending.
The Court of Appeal also considered that the investigations had progressed. The bill of indictment had meanwhile been drawn up and forwarded to the Economic Offences Division at the Essen Regional Court (Landgericht). The Regional Court had started examining the complex case and envisaged, if the main trial proceedings were to begin, starting the hearings in September 1994.
29. On 19 October 1994 the Hamm Court of Appeal ordered the applicant's release. The Court of Appeal confirmed that there was still a strong case against the applicant and that the reasons for detaining him on remand remained; however, his continued detention had ceased to be proportionate. The Court of Appeal considered, in particular, that since May 1994 the Essen Regional Court had not made progress in the proceedings. The applicant was released from detention the same day.
30. On 15 December 1998 the Essen Regional Court found the applicant guilty of fraud, bribery and swearing a false affidavit and sentenced him to an aggregate term of five years and six months' imprisonment.
31. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozeßordnung) concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112, a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant.
32. Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask at any time for judicial review of the arrest warrant. An oral hearing will be held at the request of the remand prisoner, or if the court so decides of its own motion (Article 118 § 1). If the arrest warrant is held to be valid following the hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 120 provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-22).
33. Articles 137 et seq. of the Code of Criminal Procedure concern the defence of a person charged with having committed a criminal offence, in particular the choice of defence counsel or appointment of official defence counsel. According to Article 147 § 1, defence counsel is entitled to consult the files which have been presented to the trial court or which would be presented to the trial court in case of an indictment, and to inspect the exhibits. Paragraph 2 of this provision allows for a refusal of access to part or all of the files or to the exhibits for as long as the preliminary investigation has not been terminated, if the purpose of the investigation would otherwise be endangered. Pending the termination of the preliminary investigation, it is for the public prosecutor's office to decide whether to grant access to the file or not; thereafter it is for the president of the trial court (Article 147 § 5). By an Act amending the Code of Criminal Procedure (Strafverfahrensänderungsgesetz, Bundesgesetzblatt, 2000, vol. I, p. 1253) with effect as from 1 November 2000, the latter provision has been amended to the effect, inter alia, that an accused who is in detention is now entitled to ask for judicial review of the decision of the public prosecutor's office denying access to the file.
34. Articles 151 et seq. of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment. Article 151 provides that any trial has to be initiated by an indictment. According to Article 152, the indictment is to be preferred by the public prosecutor's office which is, unless otherwise provided, bound to investigate any criminal offence for which there exist sufficient grounds of suspicion.
35. Preliminary investigations are to be conducted by the public prosecutor's office according to Articles 160 and 161 of the Code of Criminal Procedure. On the basis of these investigations the public prosecutor's office decides under Article 170 whether to prefer an indictment or to discontinue the proceedings.
36. According to Article 103 § 1 of the Basic Law (Grundgesetz), every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör).
According to the Federal Constitutional Court (Bundesverfassungs-gericht), this rule requires a court decision to be based only on those facts and evidential findings which could be commented upon by the parties. In cases involving arrest and detention on remand, the arrest warrant and all court decisions upholding it must be founded only on those facts and pieces of evidence of which the accused was previously aware and on which he was able to comment (Federal Constitutional Court, decision of 11 July 1994 (Neue juristische Wochenschrift, 1994, p. 3219), with further references).
In the aforementioned decision, the Federal Constitutional Court held that, following his arrest, an accused had to be informed of the content of the arrest warrant and promptly brought before a judge who, when questioning him, had to inform him of all relevant incriminating evidence as well as of evidence in his favour. Moreover, in the course of ensuing review proceedings, the accused must be heard and, to the extent that the investigation will not be prejudiced, the relevant results of the investigation at that stage must be given to him. In some cases, such oral information may not be sufficient. If the facts and the evidence forming the basis of a decision in detention matters cannot or can no longer be communicated orally, other means of informing the accused, such as a right to consult the files (Akteneinsicht), are to be used. On the other hand, statutory limitations on an accused's access to the files until the preliminary investigation is completed are to be accepted if the efficient conduct of criminal investigations so requires. However, even while those investigations are in progress, an accused who is detained on remand has a right of access to the files through his lawyer if and to the extent that the information which they contain might affect his position in the review proceedings and oral information is not sufficient. If in such cases the prosecution refuses access to the relevant parts of the files pursuant to Article 147 § 2 of the Code of Criminal Procedure, the reviewing court cannot base its decision on those facts and evidence and, if necessary, has to set the arrest warrant aside (Federal Constitutional Court, op. cit.).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-85828
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DZELADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 6. At around midnight on 2 August 1998, a group of Roma, who were leaving a restaurant where they had attended a Romani circumcision celebration, were involved in a fight with Z.S., a wrestling champion who worked as a fitness instructor for the police force. Z.S. reported the incident to the local police and around ten police officers went to the restaurant in search of the alleged attackers. When they entered the restaurant, they allegedly started to assault the guests.
7. According to the applicants, they were beaten with truncheons, punched and kicked. The fifth applicant said that he was grabbed by the hair and beaten all over his body; he was then handcuffed and taken to the police station where he was subjected to severe ill-treatment. The second applicant also complained that he had been beaten, despite his wife’s attempts to protect him. The second and fourth applicants said that they were taken to a police station where they were kept for several hours and beaten by the police officers, who repeatedly insulted them on account of their ethnic origin.
8. The third applicant was seven months pregnant when she was beaten in the restaurant. Following the raid, the police were asked to arrange for her to be taken to hospital, but refused. She somehow managed to get to the hospital, but the doctors refused to examine her when they found out that her assailants had been police officers. She said that she was severely distressed and in pain throughout the night. The following day, she was examined in the same hospital, but no injuries or problems were detected.
9. It was alleged that twenty other Roma asked for medical help that night, but they were all turned down as they could not pay for treatment.
10. The next day, in response to an earlier police summons, the first applicant went to the police station where he was allegedly beaten for two hours and insulted on account of his ethnic origin. He said that some six police officers had hit him with a truncheon, and punched and kicked him. A gun had been held to his head, at which point he had falsely confessed to his involvement in the fight with Z.S.
11. The applicants, in support of their application before the Court, provided photographs of bruises on their backs, heads and buttocks.
12. At around 11.40 p.m. on 2 August 1998 the police officers on duty received a telephone call saying that four Roma, who had attended a circumcision party in a restaurant, had stopped a car and physically attacked the driver (Z.S.). Three police officers went to the scene. After Z.S. had identified the first applicant as being among the attackers, the police officers requested him to leave the group and get into the police car. Although the police officers did nothing to provoke the group, some fifty to eighty Roma started to throw stones and bottles causing facial injuries to one of the officers. The police car was also damaged. As the police officers were prevented from arresting the first applicant, who had fled the scene, and as they feared for their own safety, they radioed for backup. One of the officers fired two shots in the air to disperse the crowd. A patrol of five more officers arrived at the scene. Another two shots were fired in the air.
13. As these attempts to restore order proved unsuccessful, the police officers used batons. After the crowd had been broken up, the police took various people, including the second and fifth applicants, to the police station. After being questioned about the assault on Z.S., the second and fifth applicants were released. It was established that they had been among the crowd, but had not been involved in the physical attack on Z.S. No force was used against them at the police station. According to the medical records of the Emergency Unit of Štip Hospital, none of the persons apprehended or involved in the fight had requested medical assistance as a result of the police intervention. On the other hand, three police officers had been examined and two of them were found to have sustained minor injuries.
14. According to the medical records, at the request of a pregnant woman, a medical team had gone to the scene and brought her to the hospital. An entry in the hospital’s medical records of 3 August 1998 showed that one Sulimanova Ramize or Demirova Remzie had been “urgently” admitted with bruising to the head. Two doctors, a surgeon and a gynaecologist, had examined her and a note had been made in the record: “no funds – fight”. No injuries to the foetus or other pregnancy-related trauma were detected. On 4 August 1998 the same findings were recorded by another doctor in the medical records of Sulimanova Ramize, who, it was noted, had frequently requested medical assistance in the past for injuries sustained in fights and had sustained a black eye on the most recent occasion. An eyewitness to the incident stated that a pregnant woman had hit a police officer over the head with a bottle.
15. The Government based their version of events on a number of police reports that had been compiled between 3 August and 11 September 1998.
16. On 3 August 1998 the chief of the local police drew up a report concerning the coercive measures that had been used during the incident. It reads, inter alia, as follows:
“...on 2 August 1998 a phone call was received [to the effect] that Z.S. had been physically attacked by a group of Roma ... Mr S., Mr A. and Mr M. [police officers] arrived at the scene ... Z.S. identified one of the attackers ... he was requested to get into the police car. The person concerned came forward without resisting ..., but when a van arrived ... the crowd attacked it, started to drag Mr S. and Mr M. ... they started to throw stones, bottles and other objects at the officers and the police car. The suspect fled ... Backup was immediately requested; five police officers arrived after two to three minutes ... around 60 to 80 people threw stones, bottles and other items ... police officers A.D., M.Z. and N.P. were hit ... Physical force and rubber batons were used against several Roma by the officers S.S., A.D., M.Z., S.V., T.T., N.P., B.R., S.V. and Z.S. ... because the crowd continued to throw stones and other objects at the officers despite warnings (six shots fired in the air) ...”
17. In the telegram, the police described the incident and stated that four people, including the second and fifth applicants, had been brought to the police station for questioning. It said that three police officers had sustained minor injuries in the intervention in which stones and bottles had been thrown at the police officers.
18. In a document of 11 September 1998, the Štip police indicated that according to the statement of an eyewitness, the incident had caused considerable alarm. This is how the eyewitness described the incident:
“...my wife and I were extremely unnerved by the incident and the intensity of the attack by the Roma, first, against the occupant of the car [referring to Z.S.], and then against the police officers who had done nothing to anger the crowd. It was simply that the savage nature [of the attack] was clear to see and incited by an inebriated group of people who had been celebrating a circumcision ...”
19. Concerning the use of coercive measures, the report stated, inter alia:
“... it is considered that the use of rubber batons was justified for the following reasons: [there had been an] unmotivated and brutal attack on Z.S.; the authorised officers had been prevented from carrying out an official activity, i.e. identifying the perpetrator of an offence, although no coercive measures had been used against the person concerned or anyone else; the life and physical integrity of the authorised officers had been endangered by a sustained attack which was liable to cause grievous bodily harm or fatal injury; officials were injured and a police car damaged; orders by the police officers were disobeyed and the attack had continued even after shots were fired in the air ...”
20. The document continued:
“... some [sections of the] media and citizens’ associations are minimising or ignoring the objective circumstances and the responsibility of the perpetrators and the individual involvement of each of the participants in the group, tendentiously asserting that the police targeted the Roma population, whereas they were not influenced by the perpetrators’ ethnic affiliation, but merely responded to the concrete circumstances of the incident ...”
21. It was further noted that a group of some twenty to thirty Roma and Mr A.B., a former member of Parliament, had gathered outside the local police station afterwards.
22. Mrs P.S., Z.S.’s wife, who was in the car at the time of the incident stated, inter alia:
“... Meanwhile, one of the participants went to the restaurant where the Roma were holding a wedding party and most probably told lies [about the incident]. A large group of people came out of the restaurant causing total chaos. When the officers got out of the car, they started throwing stones and other objects. A horse cart was standing nearby and a man gave wooden sticks to the group to use against the police. I would stress that women and children stood in front of the officers with the men behind. There was a pregnant woman among the group of people. My husband took her out of the group so that she would not be injured; he stopped a car which took her to the city hospital ...”
23. The first applicant stated, inter alia:
“... While he [the police officer] was taking me to the police van, a scuffle started as many people gathered around. At that moment, the police officers fired six shots in the air to disperse the crowd. I did not see any stones, bottles or pieces of wood being thrown at the van. When the officer released my arm, he launched himself at the group with a truncheon. I escaped and went home ...”
24. Describing the circumstances concerning the fight with Z.S., the fourth applicant stated, inter alia:
“... while I was pulling S. aside, Z.S. punched me once in the face ... I think that there were around 40 or 50 people at the scene ...”
25. The fourth applicant stated, inter alia:
“... It is not true that he [Z.S.] did not hit anyone. He hit me with his elbow in the chest and punched me in the left eye. I felt intense pain, I found a bottle and struck Z.S. over the head ... I had blood in my eye from Z.S.’s punch and could not see ...”
26. Mrs P.S. identified the first applicant as one of the attackers of her husband, describing him as a person “with long hair and dressed in black”. The first applicant confirmed that he had long hair and had been wearing black clothes.
27. Mr D.K., an eyewitness, stated, inter alia:
“... a large group of Roma gathered ... they started to throw stones and bottles at the police officers who had arrived at the scene. I think that one of the officers concerned fired to restore order ...”
28. Mrs N.J., an eyewitness, stated, inter alia:
“... Z.S. firstly hit D. [the fourth applicant] in the eye and then D. hit him with a bottle on the back of the head ...”
29. On 9 September 1998 the Ministry filed a criminal complaint against four persons, including the first and fourth applicants, for assault.
30. On 28 April 1999 the public prosecutor lodged an indictment with the court alleging assault (насилство) on Z.S. under Article 386 of the Criminal Code. It was noted in the indictment, inter alia, that around a hundred people had witnessed the incident.
31. On 8 November 1999 the Štip Court of First Instance found the first and fourth applicants guilty of taking part in the fight and sentenced them to six and eight months’ imprisonment respectively. It acquitted a co-defendant, M.J., as he had attempted to separate those involved. The court admitted a considerable amount of evidence including oral evidence from the accused, Z.S. and his wife; evidence from nine eyewitnesses and two doctors concerning Z.S.’s injuries; and a medical certificate of 2 August 1998 on Z.S. The court established that S.U., one of the accused, had left the restaurant at around 11.30 p.m. While under the influence of alcohol he had gone out into the street and stopped the car in which Z.S. and his wife were travelling. S.U. had immediately started to bang on the car. When Z.S. got out, S.U. had attacked him with his fists and kicked him. Shortly afterwards, the first and fourth applicants had joined in, battering Z.S. with their fists and a glass bottle and kicking him all over his body. Z.S. had sustained injuries to his head, cuts to his finger and elbow, bruising to his face and damage to eight teeth. The court rejected the first applicant’s defence that he had not been involved in the quarrel as contrary to the evidence. It found the fourth applicant’s argument that he had been involved in the fight with Z.S. because the latter had hit him in the eye unsubstantiated, as no evidence or medical certificate had been produced in support of that allegation.
32. On 15 January 2000 the first-instance decision became final as no appeal had been lodged within the statutory time-limit. According to the applicants, they had not appealed against the decision because the trial judge’s lack of sympathy with their allegations of ill-treatment and repeated intimidation by the police gave them little hope that they would have any prospect of success on appeal.
33. On 11 August 1998 the applicants filed a criminal complaint (кривична пријава) for torture with the Štip public prosecutor’s office (Основно Јавно Обвинителство Штип) against the Ministry. It was stated in the complaint that after the fight with Z.S. a large group of police officers had arrived and beaten the guests in the restaurant with their truncheons and fists and kicked them. The applicants alleged that some of the guests had been tied up and beaten at the police station the following day. They also complained that the officers concerned had used force to extract confessions from some of them concerning their involvement in the fight with Z.S. They said that they had produced photographs and a medical certificate in support of that allegation. They also invited the public prosecutor to take statements.
34. On 20 August 1998 the applicants provided the public prosecutor with further photographs as evidence of the police abuse.
35. On 2 September 1998 they submitted written statements about the events.
36. The first applicant stated, inter alia:
“... [after my release from custody] I wanted to see a doctor, but assumed that, as with the others, I would not be admitted to the hospital. We have all had to put up with the pains ...”
37. After being taken to hospital after the incident, the third applicant stated, inter alia:
“... a gynaecologist examined me and sent me home. He told me to visit a doctor on the following Tuesday ...”
38. The fourth applicant stated, inter alia:
“... After I was released from custody, I went to the Emergency Unit as I felt unbearable pains all over my body. There, they refused to give me medical care as I had no funds. I was told that (medical services) for injuries sustained in a fight have to be paid for ...”
39. The fifth applicant stated, inter alia:
“... [after his release from custody] ... After several hours, I went to the Štip Medical Centre because of the unbearable pains all over my body. They did not want to examine me, nor did they issue a medical certificate as I had no funds to pay [for treatment] ...”
40. On 30 September 1998 the local public prosecutor’s office requested information concerning the incident from the Ministry through the State public prosecutor’s office. On 13 October 1998 the State public prosecutor’s office transmitted this request to the Ministry. On 11 November 1998 the local police submitted to the central police authority all the material relating to the incident.
41. As the local public prosecutor failed to respond to the applicants’ complaint for almost seven months, the applicants’ representative wrote to the Minister of the Interior on 10 March 1999 informing him about the case.
42. As they did not receive a reply from the Ministry or the local public prosecutor, on 26 October 2000 the applicants sent another letter to the latter enquiring about the progress of their case.
43. In a letter dated 28 November 2000 the local public prosecutor replied that on 30 September 1998 his office had requested the Ministry to take steps to identify the offenders, but had not received a reply.
44. The applicants received no information or acknowledgement about the action that had been taken by the competent national prosecuting authorities in relation to their complaint of torture by police officers.
45. The provisions relevant to the present case were described in the Jasar judgment (see Jasar v. the former Yugoslav Republic of Macedonia, cited above, §§ 32-40).
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3