ITEMID: 001-68288
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WALLIN KARLSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Jan Wallin Karlsen, is a Danish national, who was born in 1952 and lives in Åhus, Sweden. He is represented before the Court by Jacob Arrevad, a lawyer practising in Copenhagen
The respondent Government are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits earmarked for payment of corporation tax. Often the persons involved systematically acquired the inactive, solvent companies for the companies' own fund. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts. According to surveys made by the customs and tax authorities, approximately one thousand six hundred companies with a total tax debt exceeding 2 billion Danish kroner (DKK) were stripped in the period from the late 1980s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993.
On 11 May 1992 the tax authorities sent a letter to the police in Frederikssund and requested assistance to investigate a case of tax asset stripping involving two Swedish nationals. The preliminary investigation, which was undertaken in secret, began in the autumn of 1992 and revealed that the applicant and many other Danish nationals were also involved.
Behind closed doors and thus unknown to the applicant, on 20 January 1993 the City Court in Frederikssund (Retten i Frederikssund), henceforth referred to as the City Court, granted warrants to the police to search the premises of the applicant, but also those of a number of banks, accountants' firms, law firms and companies that had been used by the applicant and others in relation to the tax asset stripping.
On 23 February 1993 the applicant was arrested and charged with tax asset stripping of about twenty-seven companies in the period 19891993. At the same time the police carried out a search at his premises in accordance with the above court order. The applicant was released the following day.
The City Court issued a discovery order on 25 March 1993 with regard to a specified bank and its documents relating among others to the applicant.
Subsequently, on 19 April 1993 the applicant was arrested anew, still charged with tax asset stripping relating to about twenty-seven companies. Also, his premises were searched anew. Subject to court orders, the applicant was detained on remand in the period from 20 April until 2 June 1993 when, on appeal, the High Court of Eastern Denmark (Østre Landsret), henceforth referred to as the High Court, released him stating that there was no reason to suspect that he would be able to hamper the on-going investigation if set free.
In the period from the summer of 1993 until January 1996 the City Court issued numerous search warrants and discovery orders concerning banks, lawyers, state-authorised public accountants, credit card companies and other companies.
Thus, court orders relating to the above residing in Denmark were issued by the City Court on 26 August, 7 October and 3 November 1993; on 4 January, 25 February and 22 August 1994; on 7 September and 27 October 1995; and on 15 January 1996.
Court orders relating to the above residing outside Denmark and corresponding international letters of request were issued by the City Court on 6 July 1993 as to a number of companies on the Isle of Man and in London; on 15 October 1993 as to a credit card company in London; on 5 November 1993 as to two banks in Vanuatu in the Pacific Ocean; on 1 September 1994 as to a bank and a company in Gibraltar; and on 9 November 1994 as to a bank in Switzerland.
In the same period, as part of their investigation, the Danish police also required assistance from various individuals and institutions in Sweden, France, Belgium, Luxembourg and Israel.
Furthermore, in order to assist the police in processing the material obtained from the searches and the discovery orders a firm of stateauthorised public accountants was hired to untangle the intricate corporation structures and ownership structures of the companies, as well as the problems of tax technicalities posed by the case and the thousands of financial transactions. Hence, in the period from 1 November 1994 until 15 September 1996 audit reports were drawn up for each of the seventy-five companies that had been stripped of their assets as well as an additional number of companies that had been used as intermediaries and buyers and a seemingly fictitious bank registered in Vanuatu. The accountants also made a statement on financial transactions concerning the companies involved.
In the meantime, by judgment of 26 May 1994 the City Court convicted the two Swedish nationals, who in May 1992 had been reported to the police by the tax authorities. They were both convicted in accordance with their confessions and sentenced respectively to four and six years' imprisonment.
In January 1996 the public prosecution informed the City Court that an indictment in the applicant's case was expected to be ready in April 1996. At the same time it was emphasised that the two Swedish nationals, who had been convicted by the same City Court, were to be heard as witnesses on the prosecution's behalf. Accordingly, in order to avoid issues of impartiality, the presiding judge of the City Court in a letter of 5 February 1996 requested the President of the High Court to appoint a substitute judge in the case against the applicants and the co-charged. The presiding judge of the City Court pointed out that dates for the hearings needed to be scheduled as soon as possible, and that it should be taken into account in this respect that each of the eight defendants had their own chosen counsel, some of whom were already busy with other cases in months to come.
In February 1996, the City Court (with a substitute judge appointed), the public prosecutor, counsel for the applicant and counsel for the seven cocharged agreed on provisional dates for scheduling court hearings.
As the trial would take up a lot of space, the City Court had to rent suitable facilities to accommodate all the persons involved and all the documents. In June 1996 the City Court signed a lease contract for appropriate facilities which, however, needed to be refurbished before the trial could begin.
By indictment of 1 July 1996, submitted to the City Court, the applicant was indicted inter alia pursuant to section 283, subsection 1 (3) cf. section 286, subsection 2, and cf. section 23 of seventytwo counts of fraudulent preference of a particularly aggravated nature involving tax asset stripping of about seventy-four companies, having been committed in collaboration with the seven coaccused and others.
Pre-trial reviews were held on 24 June, 2 July and 7 August 1996, during which it was decided inter alia that the trial commence on 9 October 1996 and that two days each week should be scheduled for the trial. Twenty-two court hearings were fixed for the period from October until December 1996; sixty-five hearings were fixed for 1997; and about thirty hearings were fixed for the period from January until April 1998, reserving May 1998 for closing speeches. Also, the City Court appointed back-up counsel for the applicant and the co-accused.
Another pre-trial review was held on 12 August 1996. Furthermore, during the months of August and September 1996, procedural questions were determined e.g. as to whether seventy-five audit reports and various other reports concerning the financial transactions of the companies and persons involved were admissible as evidence during the trial. This was answered in the affirmative by the City Court on 15 August 1996, a decision that was upheld on appeal by the High Court on 23 September 1996, and by the Supreme Court (Højesteret) on 4 March 1997. A decision of 23 September 1996, according to which the City Court judge did not have to vacate his seat on the bench due to disqualification, was upheld on appeal by the High Court on 7 October 1996.
The proceedings began as planned before the City Court on 9 October 1996.
Thereafter approximately two court hearings took place every week, except from the month of July when the parties involved took their summer holiday. Altogether, one hundred and fifty-eight whole court days were used before the City Court for the trial, including fours days of pre-trial review.
In February 1997 fifty-two additional dates for hearings to be held during 1998 were scheduled. On 8 August 1997 dates for twelve additional hearings were scheduled for November and December 1998, and fifteen additional hearings for January to March 1999.
In December 1997, the City Court allowed that one of the co-accused change counsel, provided that such would not entail any delay of the trial. Also, the City Court stated that the trial had to be brought to an end within the dates previously scheduled and that no extension would be permitted.
In the period from 9 October 1996 until 28 January 1999, the applicant, the seven coaccused, and fifty-three witnesses were heard, including two state-authorised public accountants, who gave evidence over several days in which they collaborated on the audit reports, etc. In addition, statements of accounts and a considerable amount of other documentary evidence were presented about e.g. corporate structures involving Danish and foreign companies and money transactions in Danish and foreign banks.
Each exhibit for the case took up about one hundred and thirty-five A4 binders and contained approximately fifty thousand pages of documentary evidence, including the seventy-five audit reports concerning the solvent companies that had been stripped of their tax assets and about eight audit reports concerning companies used for emptying the solvent companies and a statement of financial transaction.
On 8, 11 And 15 March 1999 the public prosecutor gave his closing speech. Counsel for the applicant gave his closing speech on 10 and 11 May 1999. Counsel for the seven co-accused gave their closing speeches on 12, 17, 18, 19, 20, 25 and 26 May 1999.
On 31 May 1999 a hearing was held at which the applicant and the coaccused were given an opportunity to make a statement. The proceedings were then adjourned pending the City Court's deliberations.
The court records of the proceedings ran to two thousand three hundred and twenty-three pages.
By judgment of 10 August 1999, which ran to two hundred and twentyfive pages, the City Court convicted the applicant of inter alia tax assets stripping in respect of the said seventy-two counts of the indictment. The court found that the applicant was one of the principal offenders and that he had been involved with tax asset stripping concerning an amount of approximately DKK 76 million equal to approximately € 10,133,330. He was sentenced to four years' imprisonment. In addition, for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval.
By the same judgment five of the coaccused were convicted and two of them acquitted.
As to the length of the proceedings the City Court stated as follows:
“The [applicant and the co-accused] were charged in the period from February to April 1993, and prosecution was initiated by indictment of 1 July 1996. The trial started in October 1996.
There is no basis for establishing that the investigation has been unnecessarily inactive during any period, nor is there any reason to criticise the scope or length of the investigation in view of the nature and magnitude of the case. Thus, there is no violation of Article 6 of the Convention on Human Rights”.
However, when imposing the sentence the City Court stated:
“Although the public prosecution cannot be blamed for the length of the proceedings, nevertheless, in metering out the sentence the court has taken into consideration the strain inflicted on [the applicant and the co-accused], due to the fact that the proceedings have extended over so many years”.
On 16 August 1999 the applicant appealed against the judgment to the High Court and the Public Prosecution cross-appealed on 20 August 1999. The judgment was also appealed against by five of the co-accused, in respect of whom the public prosecution served a cross-appeal during August and September 1999.
On 18 October 1999 the High Court appointed back-up counsel for the applicant and the co-accused during the appeal proceedings and in agreement with the parties scheduled a pre-trial review to take place on 11 January 2000. According to the court records of the latter day, the High Court tried to commence the hearings in June 2000, but that this was not possible as several of the counsel chosen by the co-accused had to appear as counsel in other prolonged proceedings. They were therefore unable to attend the appeal proceedings until January 2001. This also applied to one of the applicant's counsel, who could not attend the appeal proceedings because he had to appear for the defence in three other comprehensive criminal proceedings which would take up seventy-two days in the period from 1 June 2000 until 1 January 2001. In addition, he had to attend a number of hearings in other less comprehensive cases in the same period. Thus, the proceedings were scheduled to begin on 30 January 2001 and, at the request of the parties involved, the High Court fixed sixty-eight hearings to take place. In the meantime practical and procedural matters were dealt with e.g., in respect of the latter, the High Court's intention to lift a prohibition against disclosure of names.
The trial commenced on 30 January 2001, and thereafter two court hearings took place almost every week.
On 12 March 2001 the Public Prosecutor requested that the proceedings against one of the co-accused be separated for a special hearing and that a judgment to acquit him be passed immediately because some conditions of the Administration of Justice Act relating to the indictment had not been satisfied. The High Court passed judgment accordingly.
On 19 March 2001 one of the co-accused withdrew his appeal. As the Public Prosecutor withdrew his cross-appeal the High Court dismissed the case as to this co-accused.
On 26 March the prosecution submitted an amended indictment of 21 March 2001. Notably, the description of the time of the alleged crime was changed from periods into exact dates in each count of the indictment, and one sentence was inserted as to the counts concerning aggravated debtor fraud so that not only the loss actually caused by the applicant was included, but also the obvious risk of a loss that he had inflicted the private limited companies. Furthermore, the prosecution withdrew four counts of the indictment. Counsel for the applicant and the co-accused claimed dismissal or further corrections of the amended indictment, which was dismissed by the High Court on 2 April 2001.
In the period between 26 June and 7 August 2001 the proceedings were adjourned due to illness on behalf of one of the co-accused.
On 17 September 2001 the case was set down for judgment.
In the period between 30 January and 17 September 2001, altogether thirty-seven court hearings were held, during which the applicant, the coaccused and witnesses were heard, including one of the stateauthorised public accountants. In addition, audit reports, statements of accounts and a considerable amount of other documentary evidence were presented.
By judgment of 19 December 2001, which ran to fifty-nine pages, the applicant was convicted in accordance with the indictment of 21 March 2001, but for seven counts, including the four counts that the prosecution had already withdrawn. Thus, the applicant was found guilty of sixty-five counts, in which the total sum of unpaid taxes amounted to approximately DKK 71,000,000 equal to approximately € 9,466,500.
The sentence was increased to five years' imprisonment and the deprivation of his right to become manager etc. was confirmed. As to the length of the proceedings the High Court stated:
“The acquisitions of the approximately 75 companies originally comprised by the indictment took place from October 1989 until October 1992. In February-March 1993 [the applicant] and [two of the co-accused] were charged with fraudulent preference in relation to the acquisition of 27 inactive, solvent companies which had made claims against the tax authorities for payments of tax compensation of just over DKK 29 million. A report was lodged with the police in May 1992. The indictment was drafted in July 1996, the City Court trial commenced in October 1996, and judgment was passed on 10 august 1999. The High Court trial commenced in January 2001 after a pre-trial review had been held with the then eight counsel in January 2000.
Although proceedings lasting almost nine years in a criminal case must be considered, in principle, as a violation of the right to a “hearing within a reasonable time” afforded by Article 6 § 1 of the European Convention on Human Rights, no violation is found to have occurred in this case in respect of any of the defendants. [When reaching this] decision it has been found of importance that the case turned out to involve a far larger number of company acquisitions than originally assumed, that the company acquisitions took place by means of a large number of companies, both as intermediaries and as buyers, that the various tax elimination initiatives made it necessary for the Public Prosecutor to gather [information on] and elucidate a large number of intricate corporate structures, several of which were domiciled in or connected with foreign, sometimes exotic tax havens where investigation had to be made, and that consequently extremely comprehensive audit work was required to elucidate each individual company's money transactions, which were normally pure book entries without any real content. It cannot be attached importance that the City Court proceedings lasted about three years and at that time concerned eight defendants, as the relevant crime was a new form of complex economic crime involving examination of a considerable number of witnesses and production of substantial documentary evidence, and each defendant's role in the group had to be clarified. Moreover, no inactive periods are found to have occurred during the proceedings”.
When metering out the sentence the High Court stated:
“The High Court ... has taken into account that [the case] concerns aggravated and systematic offences against property involving very substantial amounts and committed by several offenders jointly under cover of highly non-transparent transactions. The length of the time elapsed since the offences were committed has also been taken into account. In view of the nature and the scope of the offences, the High Court has found no basis for suspending the sentences imposed in full or in part.”
The applicant's request of 21 December 2001 for leave to appeal against the judgment to the Supreme Court was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 15 April 2002.


ITEMID: 001-108953
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF TIMOSHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: Anatoly Kovler;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1952 and lives in Ussuriysk, Primorye Region.
5. The applicant served in the military.
6. On 20 March 2001 the authorities opened criminal proceedings on account of a single incident of theft of the rare-earth metal palladium from certain military equipment.
7. A week later by a decision of the investigator in accordance with the procedural law at the time, the applicant was remanded on suspicion of participation in the above crime.
8. The applicant was served with a bill of indictment for the first time on 5 April 2001, and on the following day he was released from detention with an undertaking not to leave the town. He was subsequently issued with several amended bills of indictment.
9. The Government submitted that the applicant and his counsel had studied the material of the case between 7 March and 25 September 2002. According to the applicant, such a long period was granted to him because the prosecutor in the case was out of town and the proceedings could not advance in his absence.
10. The criminal case against the applicant and his co-accused arrived at the Military Court of the Spassk-Dalniy Garrison on 8 October 2002.
11. Between 1 May and 13 June 2003 the applicant had been out of town.
12. By a decision of the trial court of 9 September 2003 the applicant was again remanded. However, on an unspecified date he appears to have been released on bail.
13. On 4 June 2004 the trial court considered the case against the applicant and his co-defendant. By a judgment of the same date it convicted the applicant of aggravated theft and sentenced him to three years’ imprisonment, with a subsequent one-year bar on holding managerial office and forfeiture of his military rank and the State awards.
14. On 18 August 2004 the Military Court of the Far-East Circuit changed the legal qualification of the criminal act and sentenced the applicant to one year and six months’ imprisonment, a fine of 3,000 Russian roubles, and forfeiture of his military rank and the State awards.
15. Federal Law № 68-ФЗ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99337
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AYDIN (3) v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr Yasin Aydın, is a Turkish national who was born in 1967 and is currently serving his prison sentence in the Muş F-type Prison. The Turkish Government (“the Government”) are represented by their Agent.
2. On 6 March 2006 the applicant wrote a petition to the Ministry of Justice and requested his transfer to the Imrali Prison, where Abdullah Öcalan was imprisoned. On 5 April 2006 the Prison Disciplinary Board found the applicant guilty of making propaganda in favour of an illegal organisation and sentenced him to twelve days' solitary confinement. The applicant's appeal requests were rejected on 17 April 2006 and 30 June 2006 respectively by the Enforcement Judge and the Assize Court.


ITEMID: 001-97000
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PUCHSTEIN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant lives in St Oswald.
6. The applicant is a medical practitioner. He has an individual contract (Einzelvertrag) with the Lower Austrian Health Insurance Board (Niederösterreichische Gebietskrankenkasse).
7. In two submissions to the Joint Arbitration Committee (Paritätische Schiedskommission) dated 7 September 1998 and 5 October 1998, the applicant demanded payment for laboratory tests carried out in the first and second quarters of 1998. The claims against the Lower Austrian Health Insurance Board amounted to 8,022.41 euros (EUR) and EUR 6,603.81, respectively.
8. The Lower Austrian Health Insurance Board claimed that the applicant had not participated in the test series for quality checking of laboratory parameters in 1997, and refused to pay for the tests.
9. The applicant argued that he had participated in the quality checks in previous years with positive results and had – as previously – submitted the relevant samples for the period in question.
10. The Joint Arbitration Committee held an oral hearing and on 25 February 1999 it dismissed the applicant’s claim of 7 September 1998.
11. The applicant appealed against that decision to the Regional Appeals Commission (Landesberufungskommission).
12. On 17 May 1999 the applicant filed an application for transfer of jurisdiction (Devolutionsantrag), requesting a decision on his submission of 5 October 1998 from the Regional Appeals Commission, as the Joint Arbitration Committee had failed to decide within the statutory six-month time-limit.
13. The Regional Appeals Commission held a hearing and rejected both of the applicant’s claims. The decision was dated 24 August 1999, and was served on the applicant on 7 July 2000.
14. The applicant complained about this decision to the Constitutional Court (Verfassungsgerichtshof). On 27 November 2000 the Constitutional Court set aside the decision for violation of the right to a fair hearing before an independent and impartial tribunal established by law. It noted that one of the assessors of the Regional Appeals Commission had negotiated the clause on remuneration for laboratory tests on behalf of the Lower Austrian Medical Association (Ärztekammer für Niederösterreich), and thus the tribunal could not be regarded as impartial and/or independent.
15. An amendment to the Social Insurance Act (Allgemeines Sozialversicherungsgesetz) entered into force on 1 September 2002; it provided for changes in the composition of, inter alia, the Regional Appeals Commission.
16. The newly composed Regional Appeals Commission held a hearing on 15 May 2002, during which the applicant gave evidence.
17. On 24 March 2003 the applicant requested that the decision be served on him. As the Regional Appeals Commission did not react, the applicant repeated his demand on 18 July 2003.
18. The applicant was summoned to another hearing by a newly composed Regional Appeals Commission on 26 November 2003. During that hearing the entire subject was examined anew. Apparently the Regional Appeals Commission reached a decision on the same day. It dismissed the applicant’s claims, finding that he had failed to participate in the required tests and had therefore not complied with the conditions for payment of the laboratory tests. The Regional Appeals Commission did not find any reasons to doubt the lawfulness of the underlying provision of the Remuneration Regulation (Honorarordnung). The decision was served on the applicant’s counsel on 30 November 2004.
19. On 15 December 2004 the applicant complained to the Constitutional Court claiming that the Regional Appeals Commission lacked independence and impartiality. The former rejected the applicant’s complaint in a decision of 27 September 2005. It observed that the members of the Regional Appeals Commission were not bound by any instructions. They were independent and impartial unless special circumstances, for instance the fact that one member of the Regional Appeals Commission had been involved in the negotiation of the general agreements, gave rise to legitimate doubts about that member’s independence and impartiality. Such special circumstances had not been shown by the applicant in the present case. The mere fact that the assessors were members of Regional Medial Associations or Regional Health Insurance Boards which had provisions with the same content in their general agreements, did not suffice to cast doubt on the independence and impartiality of the Regional Appeals Commission. The decision was served on counsel on 29 November 2005.
20. The Social Insurance Act, which governs the composition of the Regional Appeals Commission, provides as follows:
“341. (1) Relations between the health insurance boards on the one hand and independent medical practitioners and group practices on the other shall be governed by general agreements to be concluded with the local medical associations by the Association [of Social Insurance Boards] on behalf of the insurance boards. General agreements shall require the consent of the health insurance boards on behalf of which they are concluded. The Austrian Medical Association may conclude the general agreements on behalf of the medical associations concerned, with their consent ...
(3) The content of the general agreement shall be incorporated in the individual contract between the health insurance board and the doctor or group practice. Any provisions of the individual contract which are contrary to the provisions of a general agreement in force in the place in which the doctor or group practice is established shall be devoid of legal effect. ...
344. (1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land in individual cases. ...
(2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the local Medical Association and two by the Insurance Board, which is a party to the individual contract. ...
(4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. ...
345. (1) For each Land, a permanent Regional Appeals Commission shall be established. It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Justice Minister. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.”
21. The above version of section 345(1) of the Social Insurance Act entered into force on 1 September 2002. Before that date the Regional Medical Association and the Association of Social Insurance Boards each appointed two assessors to the Regional Appeals Commission and there had been no provision that members and employees of the parties to the general agreement would be excluded.
22. According to section 347(4) of the Social Insurance Act, the Regional Appeals Commission decides by a simple majority of votes; abstention from voting is not possible.
23. The assessors of the Regional Appeals Commission are appointed for a renewable period of five years. They are not subject to the hierarchical authority of the bodies which proposed their appointment (Article 20 of the Federal Constitutional Law).
24. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 § 4 of the Federal Constitutional Law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23409
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KOREC v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jozef Korec, is a Slovakian national, who was born in 1915 and lives in Uhrovec. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 December 1993 the applicant filed an action for damages with the Topoľčany District Court. He claimed 4,345 Slovakian korunas (SKK) from his neighbour on the ground that snow which had fallen from the roof of the latter’s house had damaged his fence in 1991. The amount claimed was based on an expert’s opinion of 23 September 1993 elaborated at the applicant’s request. In his action the applicant stated that, upon the municipal office’s order of 7 January 1992, the neighbour had fixed the fence in a provisional manner. In the applicant’s view, the repair had not been carried out properly. He therefore considered himself entitled to compensation.
On 24 January 1994 the Topoľčany District Court heard two witnesses.
On 25 February 1994 the applicant challenged the judge. The Nitra branch office of the Bratislava Regional Court dismissed the request on 31 March 1994.
On 1 July 1994 the judge examined the damaged fence in the presence of the parties. Hearings before the District Court were held on 22 August 1994 and on 8 September 1994.
On 19 September 1994 the Topoľčany District Court dismissed the action with reference to witness statements according to which the defendant had repaired the applicant’s fence. The applicant appealed on 16 November 1994.
On 25 May 1995 the Nitra branch office of the Bratislava Regional Court adjourned the case as the applicant had challenged the presiding judge. On 20 July 1995 the Supreme Court found that the judge concerned was not biased.
On 28 September 1995 the Nitra branch office of the Bratislava Regional Court quashed the first instance judgment and instructed the District Court to appoint an expert with a view to determining the damage.
On 11 December 1995 the District Court adjourned the case pending the submission of an expert opinion.
On 12 December 1995 the applicant challenged the District Court judge. On 13 May 1996 the Nitra branch office of the Bratislava Regional Court found that the applicant’s request was unsubstantiated.
On 26 June 1996 the District Court appointed an expert and instructed him to assess the damage. On 3 October 1996 the expert informed the District Court that the applicant had not allowed him to inspect the property in question. On 14 October 1996 the District Court informed the applicant that he was obliged to co-operate with the expert.
On 1 January 1997 the case was taken over by a different judge following the transfer of the judge who had originally dealt with it to a different court.
On 12 April 1997 the expert informed the District Court that the applicant had prevented him from entering his property. He was therefore not in a position to elaborate an opinion.
On 13 June 1997 the District Court asked the police to assist the expert. This request was revoked after the applicant had informed the court, on 19 June 1997, that he did not wish to be disturbed by third persons entering his property.
On 25 July 1997 the expert appointed by the District Court concluded in his opinion that the damage which the applicant had suffered amounted to SKK 5,900. The opinion was based on the material included in another expert opinion which had been elaborated at the applicant’s request in 1993.
On 16 September 1997 the District Court delivered a decision on the expert’s fees. The applicant appealed and contended that the appointment of the expert had been superfluous and that the opinion submitted by the expert appointed by the court was erroneous.
On 23 October 1997 the District Court delivered a judgment in which it ordered the defendant to pay compensation as claimed by the applicant, namely SKK 4,345. The compensation granted to the applicant was lower than the assessment made by the expert appointed by the court, as the District Court was bound by the applicant’s claim.
On 3 December 1997 the applicant appealed. He claimed, with reference to the length of the proceedings, SKK 200,000 in compensation for non-pecuniary damage. The applicant also claimed the reimbursement of the fees of the expert whom he had asked to assess the damage in 1993.
On 17 December 1997 the defendant submitted his observations on the applicant’s appeal.
On 7 October 1998 the Nitra Regional Court rejected the applicant’s appeal against the judgment of 23 October 1997. It noted that under the relevant provisions of the Code of Civil Procedure a plaintiff lacked standing to appeal against a first instance judgement by which his or her claim was allowed in full. In the same decision the Nitra Regional Court upheld the District Court’s decision on expert’s fees of 16 September 1997.


ITEMID: 001-86611
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BETAYEV AND BETAYEVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 8;Violation of Art. 13+2;Violation of Art. 13+8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants were born in 1957 and 1958 respectively and live in the village of Goyty, the Urus-Martan District, the Chechen Republic.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicants and their two sons, Lecha Betayev, born in 1981, and Ibragim Betayev, born in 1983, lived together in their three-room family house at 52 Kagermanova Street in the village of Goyty.
8. On the night of 25 to 26 April 2003 the applicants and both their sons were at home. The applicants were sleeping in one room and their sons in separate rooms.
9. At about 1.30 a.m. a group of around twenty armed men in camouflage uniforms arrived at the Betayevs’ house. Some of them stayed outside, while others forcibly entered the house. All but three of them were wearing balaclava masks. They did not identify themselves and offered no explanation for their visit. Their commander had no mask on, and the applicants observed that he had fair hair, blue eyes, a straight nose and Slavic features. The applicants inferred that the armed men were federal military or security servicemen because they spoke Russian without an accent and their uniform was similar to that of the federal armed forces.
10. The servicemen went to all rooms at once and three of them entered the room where the applicants were sleeping. They turned on the light and shouted at the applicants while pointing their machine guns at them. The first applicant tried to get up, but one serviceman hit him on the shoulder with the butt of his machine gun to push him down. Then he grabbed the first applicant by the collar of the shirt, pulled him down and ordered him to lie face down on the floor. The first applicant obeyed. The second applicant was told to face the wall and stand still without turning her head.
11. The applicants could hear from the next room that Ibragim Betayev was asked his full name and replied. The first applicant could also see that Lecha Betayev was woken up, ordered to get out of bed and then taken outside by two servicemen. The applicants and their sons were not requested to show their identity papers.
12. One of the servicemen, who appeared to be in charge of the others, told the first applicant that one of his fellow Chechen villagers had reported that the first applicant had had a machine gun and a radio station at home. The first applicant replied that he had not had any weapon. The servicemen started searching the house; the applicants were not presented with a search warrant and no witnesses were asked to observe the scene.
13. During the search the first applicant was permitted to sit on the bed, but was ordered not to turn his head and not to follow the search.
14. The servicemen searched the house, including the attic, the courtyard and the sheds outside, turning everything upside down. They were going to take up the floor of the house, but the first applicant asked them not to do so because, given the poor condition of the house, it might have been problematic, and the commander decided not to. The search took about one hour; after that the applicants heard the noise of an armoured personnel carrier (“APC”) revving up outside. Two or three minutes later the man who was in charge of the other servicemen told them that they were leaving. He ordered the applicants to remain in the house, threatening to shoot if they went outside before the servicemen had left.
15. Only then did the applicants discover that Lecha and Ibragim Betayev had been taken away.
16. The second applicant went into the courtyard and saw five military vehicles. When the vehicles started driving off the APC went first, followed by two UAZ vehicles and then two Ural vehicles. The applicants could hear that the vehicles were moving in the direction of the village centre of Goyty and then towards Grozny without stopping or slowing down at the military checkpoint on the bridge across Argun channel, although they could not avoid it driving in that direction.
17. Having looked around, the applicants discovered that the servicemen had taken away some of their belongings, such as mechanical tools, an electric battery charger and some other domestic hardware. According to the written statements by Ms M. and Ms D., villagers of Goyty, in the morning of 26 April 2003, the applicants’ house was in chaos after the search and the marks of military boots could be seen everywhere.
18. The applicants waited until the dawn and then inspected the traces of the military vehicles. They found that all the vehicles, apart from the APC, had been parked some thirty or fifty metres away from their house, while the APC must have been parked right in the river bed of Goytinka, which flows about twenty metres from the applicants’ house. They could see the traces clearly because it had drizzled that night. According to the written statement by Ms M., she saw the APC traces at the same spot as well. She also discovered that her fence had been broken through on that same night, so as to allow access into the courtyard of the Betayevs’ house.
19. The Government submitted that, according to the Prosecutor General’s Office, on 26 April 2003 the first applicant had reported to the Urus-Martan District Department of the Interior (“ROVD”) that at about 2.30 a.m. unidentified persons armed with machine guns had broken into his house and taken away his sons, Lecha and Ibragim Betayev.
20. On 26 April 2003 the applicants started searching for Lecha and Ibragim Betayev. Both in person and in writing, they applied to various official bodies trying to find out the whereabouts and the fate of their sons. It was the first applicant who made all the written submissions to various authorities on behalf of both applicants because the second applicant was illiterate. The applicants retained copies of some of the letters to the authorities and their answers, which they submitted to the Court.
21. The applicants also kept up a constant search for traces of their sons through informal channels, by contacting officials and other people. They took part in the identification of numerous dead bodies found in all parts of Chechnya, but in vain.
22. Their attempts to find out the whereabouts of Lecha and Ibragim Betayev and the criminal proceedings can be summarised as follows.
23. In the morning of 26 April 2003 the first applicant went to the local police station in Goyty and asked Mr Kh., the officer on duty, about the abduction of his sons. Mr Kh. told the applicant that at about 1.30 a.m. on 26 April 2003 he had seen two UAZ vehicles and an APC with men wearing camouflage uniforms sitting on it. The vehicles had been heading towards the applicants’ house. Mr Kh. and his colleague had unsuccessfully tried to stop them. Mr Kh. had informed the ROVD of this, but received an order from the latter not to intervene. The applicants provided Mr Kh.’s detailed written testimony of those events.
24. After going to the police station in Goyty, the first applicant went to the district centre, the town of Urus-Martan. There he visited the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”), the ROVD and the local administration. With all of them he lodged complaints concerning the abduction of his sons, in which he also mentioned that the perpetrators had broken his furniture and wrecked the floors and the ceiling. An investigator from the district prosecutor’s office interviewed him and the first applicant related in detail the circumstances of his sons’ abduction.
25. On the following days the applicants regularly went to Urus-Martan to visit all district authorities and find out whether there had been any news of their sons. However, no authority acknowledged any involvement in the abduction of Lecha and Ibragim Betayev and all of them denied knowledge of their whereabouts.
26. Four days later the applicants were visited by an officer from the ROVD. He briefly inspected the site, which was still in a state of disorder after the search; he also questioned the applicants and two neighbours, who confirmed the use of military vehicles by the armed servicemen.
27. On 5 May 2003 the district prosecutor’s office informed the first applicant that an investigation into the kidnapping of Lecha and Ibragim Betayev had been opened in case no. 34053.
28. On 8 May 2003 the district prosecutor’s office granted the first applicant victim status in the criminal proceedings.
29. On 1 July 2003 the district prosecutor’s office suspended the investigation in case no. 34053 for failure to identify those responsible.
30. On an unspecified date the applicants requested the expert of the European Union in respect of the Southern Federal Circuit, Mr Lyuboslavskiy, to assist them in the search for their sons. On 21 July 2003 the latter wrote to the Prosecutor General of Russia describing the circumstances of the search of the applicants’ house and of Lecha and Ibragim Betayev’s abduction and asking for information about the measures taken to investigate the unlawful arrest of the Betayev brothers.
31. On 21 July 2003 the district prosecutor’s office resumed the investigation in case no. 34053.
32. On 25 August 2003 the prosecutor’s office of the Chechen Republic notified the first applicant that the criminal investigation into the kidnapping of his sons had been suspended and subsequently resumed.
33. On 29 September 2003 the first applicant wrote to the district prosecutor’s office once again complaining of the unlawful search and of his sons’ arrest and setting out all the details he considered relevant to the investigation, such as the description of the military vehicles and the reasons why he thought that the armed men had belonged to the federal forces. He also complained of lack of information on the progress in the investigation and requested an update.
34. On 7 October 2003 the first applicant wrote the Urus-Martan District Department of the Federal Security Service (“FSB”) asking whether his sons had been detained by the FSB or whether they had been wanted or suspected of any criminal activity.
35. On 13 October 2003 the first applicant again wrote to the district prosecutor’s office reiterating his allegations that the State agencies had been involved in the detention of his sons. He expressed concern that their lives could be in danger, or that they may have been tortured, and asked for urgent and effective measures to be taken in the search for them. He also requested to be allowed access to case file no. 34053.
36. On 24 October 2003 the first applicant lodged a complaint with the prosecutor’s office of the Chechen Republic requesting that the district prosecutor’s office be compelled to take urgent steps to investigate the disappearance of his sons.
37. On 31 October 2003 the district prosecutor’s office suspended the investigation in case no. 34053.
38. On 10 November 2003 the district prosecutor’s office resumed the criminal proceedings in case no. 34053 and notified the first applicant at once of the suspension and resumption of the investigation.
39. On 9 December 2003 the first applicant wrote to the Department of the FSB of the Chechen Republic reiterating his enquiry of 7 October 2003.
40. On 19 January 2004 the first applicant complained to the Prosecutor General of Russia of the failure to investigate the disappearance of his sons.
41. On an unspecified date in January 2004 the first applicant received a reply from the Department of the FSB of the Chechen Republic. He was informed that Lecha and Ibragim Betayev had not been arrested by the Urus-Martan District Department of the FSB and had never been brought to its premises. He was also informed that no criminal proceedings had been instituted against his sons and that their arrest had not been ordered.
42. On 9 March 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that, further to his complaint to the Prosecutor General of Russia, his case had been reviewed and that some investigative actions were being taken. He was invited to address all his queries to the district prosecutor’s office.
43. On 5 November 2004 the first applicant requested the district prosecutor’s office to resume the investigation in case no. 34053. On 14 November 2004 the district prosecutor’s office replied that all requisite investigative measures had been taken to solve the crime and that the search for the perpetrators was under way.
44. On 2 June 2006 the Prosecutor General’s Office informed the first applicant that his complaint had been forwarded to the prosecutor’s office of the Chechen Republic.
45. On 1 May 2003 the district prosecutor’s office instituted a criminal investigation in case no. 34053 into the disappearance of Lecha and Ibragim Betayev by unidentified armed persons under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping).
46. On 8 May 2003 the first applicant was granted victim status and questioned. He submitted that at about 1.30 a.m. around twenty unknown armed men had entered his house and searched it. They had taken away his sons. The second applicant was questioned on an unspecified date and made a statement identical to that by her husband.
47. The district prosecutor’s office questioned nine neighbours of the Betayevs. They submitted that they had not eyewitnessed the abduction of the applicants’ sons and had heard no noise of engines on the night of 25 to 26 April 2003.
48. A number of other witnesses were questioned in the course of the investigation. However, the identities of the perpetrators were not established. No proof was found supporting the allegation that servicemen of the federal forces had been involved in the crime.
49. On several occasions the district prosecutor’s office instructed the ROVD to establish the whereabouts of Lecha and Ibragim Betayev. They also sent requests to remand prisons of the Chechen Republic and adjacent regions, military units of the United Group Alignment, the military commander’s office of the Urus-Martan District and the departments of the FSB. Those bodies had no information on Lecha and Ibragim Betayev’s whereabouts.
50. The headquarters of a military unit located not far from the village of Goyty informed the district prosecutor’s office that their servicemen had not carried out any special operations on 26 April 2003.
51. Between 1 July 2003 and 16 January 2004 the investigation was suspended four times for failure to identify those responsible and then resumed. The first applicant was promptly notified of the decisions suspending and resuming the investigation.
52. On 16 February 2004 the district prosecutor’s office once again suspended the investigation and notified the first applicant accordingly.
53. On 11 July 2006 the prosecutor’s office of the Chechen Republic quashed the decision of 16 February 2004 because certain requisite investigative measures had not been taken; in particular, the servicemen of the ROVD had not been questioned. The proceedings were resumed.
54. On 17 August 2006 the district prosecutor’s office rejected a request by the applicants to institute criminal proceedings on account of unlawful intrusion into their home on the night of 25 to 26 April 2003 for failure to comply with a two-year statutory limitation period. On the same date they extended the scope of the charges against the unidentified persons who had kidnapped the applicants’ sons to an offence under Article 158 § 2 (aggravated theft) and allowed the first applicant to join the criminal proceedings as a civil party.
55. On 17 August 2006 the district prosecutor’s office suspended the investigation in case no. 34053.
56. On 18 September 2006 the investigation was again resumed.
57. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34053, providing only copies of decisions to suspend and resume the investigation and to grant victim status and of several notifications to the relatives of the suspension and resumption of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings.
58. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5
8


ITEMID: 001-6029
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: VOYAGER LIMITED v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant company Voyager Ltd. (hereinafter the applicant) is a limited liability company incorporated under the laws of the Isle of Man. It is represented before the Court by Cameron Markby Hewitt, a firm of solicitors in London.
The applicant is a subsidiary company of Polly Peck International (“PPI”). Mr Asil Nadir was the director of PPI from 1980 until he was declared bankrupt in 1991. In October 1990, the applicant owned 32,000 of the 40,000 shares in AN Graphics A.Ş., a company registered in İstanbul and incorporated in accordance with Turkish law.
On 16 October 1990, a meeting of the applicant’s Board of Directors was held in Cyprus. The Articles of Association of the applicant provided that the quorum for a board of directors’ meeting is two. However, this meeting was only attended by Mr Tunalıer, a director of the applicant, and Mr Nevzat, a former director of the applicant, who had formally resigned from his post a day before the meeting. The other two directors of the applicant were not informed about this meeting. At this meeting a decision was taken to appoint Mr Aziz as director of Voyager. On 21 October 1990 another Board of Directors’ meeting was held in Cyprus, this time in the presence of Mr Tunalıer and Mr Aziz. At this meeting, the transfer of 32,000 shares held by the applicant in AN Graphics to Mr Nadir for a payment of GBP 8,000,000 was ratified. Consequently, the applicant’s 32,000 shares in AN Graphics were registered in the share register in the name of Mr Nadir.
On 25 October 1990 an Administrative Order was made by the English courts in respect of PPI whereby two administrators were appointed to act as the company’s officers.
On 25 November 1991 Mr Nadir was made bankrupt in accordance with English law.
On 5 November 1992 the High Court of Justice of the Isle of Man declared that the meetings of the applicant’s Board of Directors held respectively on 16 October 1990 and 21 October 1990 were inquorate and therefore null and void.
The applicant accused Mr Nadir of wrongful transfer of shares with the intention of transferring them outside the PPI Group to ensure that they remained under his personal control after the Administration Order became effective on 25 October 1990. Consequently several proceedings were brought before the Turkish courts against AN Graphics and Mr Asil Nadir.

On 2 September 1991 the applicant initiated legal proceedings before the İstanbul Commercial Court for a declaration that 23,112 of its shares in AN Graphics had been unlawfully transferred into the name of Mr Nadir.
On 26 February 1993, after having examined all the evidence and the arguments submitted by the parties, the court found that there was no dispute between the parties concerning the nullity of the Board meetings held on 16 October 1990 and 21 October 1990. Accordingly, the Court held that the transfer of 23,112 shares into the name of Mr Nadir was null and therefore void. The court further ruled that the restoration of the shares in the applicant’s name was dependent on the payment of GBP 5,778,000 to Mr Nadir, this sum being fixed in the light of the minutes of the meeting of the Board of Directors held on 21 October 1990.
The applicant appealed. On 31 March 1994 the Court of Cassation upheld the decision of the first instance court as regards the nullity of the share transfer. However, it quashed the remainder of the judgment concerning the obligation to pay back GBP 5,778,000 to Mr Nadir to restore the shares, on the ground that Mr Nadir had not made such a claim before the first instance court.
Subsequently, Mr Nadir requested the rectification of the decision dated 31 March 1994. On 27 October 1994 the Court of Cassation found that the Commercial Court’s decision, dated 26 February 1993, was in fact in line with the established case-law of the Court of Cassation, which provides that first instance courts are entitled, ex officio, to establish a lien even though the parties do not make such a claim. Thus, the Court of Cassation concluded that the first instance court had acted in accordance with domestic law in establishing a lien over the shares in favour of the defendant. Accordingly, it ruled that the reasoning of the Court of Cassation’s decision dated 31 March 1994 was erroneous. However, the court further held that, as there was a dispute between the parties about the payment of GBP 5,778,000, the first instance court should have first examined in detail whether the defendant had really paid the sum in question before ruling on a lien in respect of the shares. In view of its findings, the court remitted the case to the first instance court for a detailed examination.
On 23 January 1995 the Commercial Court decided to apply the Court of Cassation’s decision of 27 October 1994. Recalling that under Turkish law the conditions which apply to share transfer are regulated by the provisions governing the contract of sale in the Code of Obligations, the court placed the burden of proof on the applicant to show that it had not received any consideration from the defendant in return for the shares. The court granted one month to the applicant to submit any evidence in support of its allegations. However, the applicant stated before the court that it did not have any proof. Accordingly, on 24 March 1995 the Commercial Court held that pursuant to the Code of Obligations, the vendor and the purchaser should fulfil their contractual obligations at the same time unless there was an agreement to the contrary. The court observed that the defendant claimed to have paid the sum in question to the applicant in return for the shares and that, according to Turkish domestic law, the burden of proof was on the applicant to show that its allegations were true. Accordingly, the court accepted that the defendant had paid GBP 5,778,000 in return for the shares and was therefore entitled to a lien on the shares until this sum was paid back to him.
On 19 October 1995, finding the reasoning and the cogency of the first instance court in line with domestic law, the Court of Cassation rejected the applicant’s appeal.
On 9 February 1996 the Court of Cassation dismissed the applicant’s request for rectification. It held that the transfer of limited liability company shares was governed by Article 182 of the Code of Obligations and therefore the burden of proof was on the applicant to show that it had not received any consideration in return for the shares. As the applicant failed to do so, the Court of Cassation held that the decisions of the Commercial Court and the Court of Cassation were in line with domestic law. This decision was served on the applicant on 13 March 1996.
On 25 February 1992 the applicant filed a further application with the İstanbul Commercial Court for a declaration that 8,888 of its shares in AN Graphics had been unlawfully transferred into the name of Mr Nadir.
On 24 March 1995 the Commercial Court ruled that the transfer of 8,888 shares to Mr Nadir by the applicant was null and void. The court further held that pursuant to Article 182 of the Code of Obligations, the burden of proof was on the applicant to show that no consideration had been received from the defendant in return for the shares. As the applicant failed to adduce any evidence in support of its allegations, the Commercial Court granted the defendant a lien over the shares and made the restoration of shares dependent on the payment of GBP 2,222,000.
On 19 October 1995 the Court of Cassation, finding the cogency and reasoning of the first instance court in line with domestic law, upheld the judgment dated 24 March 1995.
On 25 December 1995 the applicant requested the rectification of this decision. Subsequently, on 7 March 1996 the Court of Cassation dismissed the applicant’s requests, stating that the transfer of shares was governed by Article 182 of the Code of Obligations and the national courts had acted in accordance with this provision.
On 21 February 1996 the Isle of Man High Court granted a declaration that the applicant had never received payment from Mr Nadir for the transfer of 32,000 shares in AN Graphics.
In addition to the principal proceedings described in subsection (a) and (b) above, the applicant also initiated an action to establish and enforce its rights as a shareholder in AN Graphics including its right to participate in shareholders’ meetings. On 22 May 1995 the İstanbul Commercial Court dismissed the case. It recalled that pursuant to Article 417 of the Commercial Code, only the persons whose names are registered in the share register could be considered shareholders. The court observed that the applicant’s name was not registered in the share register and that no proceedings had been brought to amend the share register. Accordingly, the court ruled that the applicant was not entitled to convene a shareholders’ meeting. This decision was upheld by the Court of Cassation on 4 October 1996. The applicant asked for rectification of this decision. During these proceedings, the applicant also requested disqualification of three of the members of the Court of Cassation. The applicant maintained that these three judges had previously sat in the proceedings concerning the establishment of the applicant’s ownership to the 8,888 shares in AN Graphics, and had acted in favour of Mr Nadir. On 4 October 1996 the Court refused the applicant’s request basing itself on Article 39 of the Court of Cassation Act, which provides that motions for disqualification will not be heard where disqualification can result in the loss of quorum. On the same day, the court also refused the applicant’s request for rectification.