ITEMID: 001-79394
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VENERA-NORD-VEST BORTA A.G. v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Government's request for a strike-out rejected;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. On 1 May 1999 the applicant concluded a contract with another private company. According to the contract, the applicant would locate assets belonging to the debtors of the second company in exchange for a commission. Since the second company failed to comply with the contract, the applicant brought an action against it seeking damages for breach of the contract.
8. On 8 May 2001 the Chişinău Economic Court found in favour of the applicant and awarded it 244,939 Moldovan lei (MDL) (the equivalent of 21,050.46 euros (EUR) at that time).
9. On 30 January and 9 October 2002 the Economic Court of the Republic of Moldova and the Supreme Court of Justice respectively dismissed the second company’s appeals and upheld the judgment of the first-instance court, which thus became final.
10. On 24 December 2002 the Prosecutor General lodged with the Plenary of the Supreme Court of Justice a request for annulment of the judgment in favour of the applicant.
11. On 27 January 2003 the Plenary of the Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the judgment. It adopted a new judgment dismissing the applicant’s action.
12. Following the communication of the case by the Court, the Government Agent asked the Prosecutor General to lodge a request with the Plenary of the Supreme Court of Justice in order to quash its judgment of 27 January 2003 and to discontinue the request for annulment proceedings. He considered that the quashing of a final judgment in favour of the applicant following the annulment proceedings had breached the applicant’s rights under the Convention.
13. On 2 November 2004 the Prosecutor General complied with the Government Agent’s request. He lodged a revision request relying on section 449 § 1 (j) of the Code of Civil Procedure (the “CCP”, see paragraph 16 below) and indicated that the applicant and the Government intended to conclude a friendly settlement agreement.
14. By a judgment of 21 February 2005 the Plenary of the Supreme Court of Justice dismissed the Prosecutor’s request for revision on the ground that the parties had not submitted any evidence of the alleged friendly settlement.
15. The relevant domestic law concerning the quashing of a final judgment was set out in Roşca v. Moldova, no. 6267/02, § 16, 22 March 2005.
16. The Code of Civil Procedure of 12 June 2003, insofar as relevant, reads as follows:
Revision may be requested:
...
j) When the Government of the Republic of Moldova, represented by the Government Agent, or the European Court of Human Rights has started a procedure of friendly settlement in a pending case against the Republic of Moldova, and the Government consider that by a final decision of a court a fundamental right guaranteed by the Constitution of the Republic of Moldova or by the European Convention for the Protection of Human Rights and Fundamental Freedoms has been breached.
k) When the European Court of Human Rights has found a violation of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court.
17. In Ungureanu v. the Sângerei Local Council on 25 January 2006 the Supreme Court of Justice upheld the Prosecutor’s request for revision lodged in accordance with section 449 § 1 (j) following the Government’s Agent request. It discontinued the annulment proceedings, acknowledged the violation of the applicant’s rights under Article 6 § 1 of the Convention and awarded her compensation in respect of pecuniary and non-pecuniary damage and for costs and expenses.
18. In Dumitru Grosu v. the Ministry of Finance on 22 March 2006 the Supreme Court of Justice upheld the Prosecutor’s request for revision lodged on 6 May 2004 in accordance with section 449 § 1 (j) following the Government’s Agent request. It discontinued the annulment proceedings, acknowledged the violation of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and awarded him compensation in respect of pecuniary and non-pecuniary damage and for costs and expenses.
19. In Enachi v. the Ministry of Finance on 15 March 2006 the Supreme Court of Justice upheld the applicant’s action following the re-opening of the proceedings upon the Prosecutor’s request for revision lodged in accordance with section 449 § 1 (j). It acknowledged the violation of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and awarded him compensation in respect of pecuniary and non-pecuniary damage and for costs and expenses.
20. In The Ministry of Industry of the Republic of Moldova v. JSC Hidromasina on 29 June 2006 the Supreme Court of Justice dismissed the Prosecutor’s request for revision lodged in accordance with section 449 § 1 (j) following the Government’s Agent request. It found that the Government had failed to submit any evidence of the violation of the applicant company’s rights under the Convention. The Supreme Court also stated it could not re-open the case until the Court had adopted a judgment on the merits of the case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87074
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: AKGÖÇMEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Özgür Akgöçmen, is a Turkish national who was born in 1954 and lives in Ankara. He was represented before the Court by Mr S. Cengiz, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
“Where a public officer embezzles or converts to his own use money or documents or bills valued as money or other property instructed to him or under his custody, control or responsibility by virtue of his office, he shall be punished by heavy imprisonment of six to twelve years...
...
If the amount is paid in full by the offender before the commencement of the trial, the punishment stated in the previous paragraphs shall be reduced by one-half; if the amount is paid in full before the judgment is given, the punishment shall be reduced by one-third.
...”
“Whoever, being a public officer, abuses his office in any manner other than described in the Code, shall be punished by imprisonment for one year to three years, depending on the degree of the offence. Where matters of mitigating circumstances exist, the offender shall be punished by imprisonment of six months to one year and in both cases the offender shall be fined ...The offender shall be disqualified from holding public office temporarily or for life”.


ITEMID: 001-67220
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF AB KURT KELLERMANN v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 10. The applicant company, which conducted business within the textile industry, was not a member of any employers' association. Thus, it was not automatically bound by any collective bargaining agreement (kollektivavtal) negotiated in the industry, and had not signed any such agreement of its own volition. It had about twenty employees two of whom were members of the Industrial Union (Industrifacket; hereinafter “the union”), an affiliated member of the Swedish Trade Union Confederation (Landsorganisationen; hereinafter “the LO”).
11. In the spring of 1997 the union requested negotiations with the applicant company with a view to concluding a collective agreement. Such negotiations were held on 13 May 1997. The minutes of the negotiations stated, inter alia, that the applicant company was not interested in reaching an agreement at that time but would consider the matter. The minutes also recorded that the parties had concluded that the salaries paid by the applicant company were higher than the minimum wage stipulated in the collective agreement proposed by the union.
12. In a subsequent written exchange the applicant company stated that it had no intention of concluding a collective agreement with the union.
13. Soon thereafter the union demanded that the applicant company sign the so-called IG agreement (IG-avtalet), a collective agreement specially conceived by the union for employers who were not members of an employers' association. The applicant company declined, stating that its terms of employment were considerably more favourable to the employees than those stipulated in the IG agreement, that the existing employment contracts were perfectly adequate and that the employees belonging to the union objected to the union intervening on their behalf. However, it offered to sign a collective agreement with the union incorporating its existing terms of employment. The union rejected this proposal and announced that it might take industrial action.
14. On 3 October 1997 the union gave the applicant company formal notice (varsel) that it would take action by ordering the cessation of all work at the company and by imposing a “blockade” on the company from 13 October onwards unless an agreement had been reached before that date.
15. On 17 October 1997 the applicant company instituted proceedings against the union in the Stockholm District Court (tingsrätt), claiming that the threatened industrial action was unlawful and that the union should be ordered to withdraw the notice. The applicant company also requested that the District Court make an interim order to that effect.
16. On 20 October 1997 the union took the industrial action. It lasted only one day. The notice remained effective, however.
17. Negotiations were thereafter held before the National Conciliation Board (Statens förlikningsmannaexpedition). The union stated that certain parts of the IG agreement were not negotiable. The applicant company indicated that it was considering joining an employers' association, the Swedish Textile and Clothing Industries' Association (Tekoindustrierna), to which the union responded that it would not take any further industrial action against the company. However, the applicant company did not join that association and the negotiations broke down.
18. On 13 November 1997 the District Court rejected the applicant company's request for an interim order.
19. In the substantive proceedings, the union claimed that the District Court had no jurisdiction to decide the dispute and that, instead, it should be referred to the Labour Court (Arbetsdomstolen), whose decision should be final. By a decision of 5 December 1997 the District Court, referring to chapter 2, section 1, subsection 4 of the Litigation in Labour Disputes Act (Lagen om rättegången i arbetstvister, 1974:371; hereinafter “the 1974 Act”) and section 41 of the Co-Determination at Work Act (Lagen om medbestämmande i arbetslivet, 1976:580; hereinafter “the 1976 Act”), agreed with the union and transferred the case to the Labour Court.
20. Before the Labour Court, the applicant company claimed that the composition of the court which would determine the case should be restricted to professional judges – i.e. without members representing employers' and employees' interests – as it would otherwise not meet the requirement of objective impartiality under Article 6 of the Convention.
21. On 14 January 1998 a bench of the Labour Court composed of members who did not represent labour market interests rejected the applicant company's claim, stating that at the main hearing of a case, the composition of the court had to be in accordance with chapter 3, section 6 of the 1974 Act.
22. The Labour Court held a hearing in the case on 23 January 1998.
23. The applicant company maintained that the industrial action taken by the union was aimed at forcing it to join an employers' association or to accept the collective IG agreement drawn up by the union. It stated that only two union members were employed at the company and both of them had declared that they did not want to take part in the industrial action. The applicant company also claimed that its terms of employment were more favourable than those stipulated in the IG agreement. Since the means employed by the union were not reasonably proportional to the aim sought to be achieved, the industrial action had violated the applicant company's right not to join an employers' association and thus its right to negative freedom of association under Article 11 of the Convention. Alternatively, the applicant company asserted that the industrial action conflicted with a general principle of proportionality which it maintained was applicable under Swedish law, as it could entail serious economic consequences for the company.
24. For its part, the union claimed that, on the whole, the terms of employment provided by the applicant company were not more favourable than those contained in the IG agreement although it accepted that the salaries of its two members were higher than the minimum salary prescribed by that agreement. The union also stated that the IG agreement could be adapted to meet the special requirements of the applicant company. It further argued that the Convention was not applicable to the dispute as it only governed relations between individuals and the State and the 1976 Act was applicable as lex specialis. Alternatively, it asserted that Article 11 of the Convention did not afford any protection to a limited liability company and that, in any event, the judgment of the European Court of Human Rights in the case of Gustafsson v. Sweden (judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 637 et seq.) showed that Article 11 did not confer any right not to sign a collective agreement. As regards the industrial action that had been taken, the union stated that it served the legitimate aims of improving the employment situation for union members and protecting them in various ways and could not be considered disproportionate to those aims. The union also claimed that a general principle of proportionality, as invoked by the applicant company, could not be used to limit the constitutional right to take industrial action. In its submission, the right to take such action against employers who were not bound by collective agreements was in principle unlimited under Swedish law.
25. By a judgment of 11 February 1998 the Labour Court found in favour of the union. Noting at the outset that the parties agreed that the industrial action in question was not unlawful under the 1976 Act, it went on to examine in detail whether it could involve a violation of the applicant company's right to negative freedom of association under Article 11 of the Convention, which had been part of Swedish law since its incorporation into domestic law on 1 January 1995.
First, the Labour Court rejected the union's preliminary objections as to the applicability of the Convention, as such, to the dispute at hand. It noted, inter alia, that the rules on industrial action in the 1976 Act – which were based on the constitutional principle that the right to take such action is unlimited unless otherwise provided by law – prescribed the situations in which such action would be unlawful. Thus, it could not be excluded that further restrictions on the right to take industrial action could follow from other legislation, including the Convention. The provisions of the 1976 Act, therefore, did not prevent Article 11 of the Convention from being applicable.
The Labour Court then went on to examine whether the industrial action had violated Article 11. It noted that the rationale behind the union's action was not to force the applicant company to join an employers' association but to conclude a collective agreement with it which, according to the union, would promote the economic interests of its members. Among other things, the proposed agreement prescribed that compensation be paid for overtime work, which, indisputably, was not the case under the applicant company's terms of employment. Having regard, inter alia, to the aforementioned judgment in the case of Gustafsson v. Sweden, the Labour Court concluded that the industrial action had not violated the applicant company's rights under Article 11. It found also that there was no basis in law for the applicant company's contention that a general principle of proportionality was applicable in labour disputes.
26. The Labour Court which heard the case and delivered judgment was composed of seven members. In accordance with the 1974 Act, the Labour Court was composed of two legally trained and qualified judges and five lay assessors. One assessor had been appointed because of her special knowledge of the labour market. However, she did not represent any employers' or employees' interests. Of the other four assessors, two had been nominated by employers' associations (a director of the Swedish Employer's Confederation (Svenska Arbetsgivareföreningen; hereinafter “the SAF”) and an employee of the Ministry of Finance representing the State employers) and two by employees' associations (ombudsmen in the LO and the joint Central Organisation of Salaried Employees and Central Organisation of Swedish Academics (Tjänstemännens Centralorganisation and Svenska Akademikers Centralorganisation; hereinafter “the TCO/SACO”), respectively).
27. The member nominated by the SAF disagreed with the Labour Court's judgment and considered that the industrial action in question violated Article 11 of the Convention, as the union had failed to show that the terms of employment stipulated by the IG agreement were more favourable than those provided by the applicant company.
28. Following the Labour Court's judgment, the union made a further approach to the applicant company with a view to concluding a collective agreement. The applicant company again refused but informed the union that the rules on overtime work set out in the IG agreement had been introduced at the company.
29. On 23 February 1998 the union applied to the Labour Court for a declaratory judgment establishing the union's right to take immediate industrial action against the applicant company. It also requested the court to take an interim decision on this matter.
30. The applicant company opposed the union's claims and again objected to the composition of the Labour Court. It also requested an order requiring the union to provide security for any damage the company might sustain.
31. By a decision of 9 March 1998 the Labour Court, composed of members who did not represent labour market interests, rejected the applicant company's challenge to its impartiality on the same grounds as in its decision of 14 January 1998.
32. Following a hearing on 12 March 1998, the Labour Court, by a decision of 13 March, granted the union's request for an interim declaration that the proposed industrial action was lawful. It thus rejected the applicant company's claims that the union's application was res judicata on account of its previous judgment and that the requirements under Swedish law for a declaratory decision – whether final or interim – were not met. It also rejected the applicant company's claim that the proposed action should be deemed unlawful as the rules on overtime work set out in the IG agreement had been introduced at the company – an assertion which was not confirmed by the union – and as the two union members had been dismissed owing to scarcity of work at the company. Referring to its established case-law, the Labour Court further found that the union, being an organisation, did not have to provide security.
33. The composition of the Labour Court which heard and examined the union's claims was the same as for the judgment of 11 February 1998 (see paragraph 25 above), including two assessors nominated by employers' associations (another SAF director and the same employee of the Ministry of Finance) and two by employees' associations (a former vice-president of a trade union affiliated to the LO and a former head lawyer of a trade union affiliated to the TCO/SACO).
34. The member nominated by the SAF submitted an opinion dissenting from the Labour Court's decision, on the ground that it was not perfectly clear that the proposed industrial action was lawful, for which reason the union's interim request should be rejected.
35. The applicant company complained to the Supreme Court (Högsta domstolen), requesting that the Labour Court's decision of 13 March 1998 be set aside owing to a grave procedural error (domvilla). It argued that the Labour Court could not rule on the union's request unless security had been furnished for the applicant company's potential loss. Alternatively, the applicant company's negative freedom of association had been breached as a consequence of the union having been afforded procedural privileges in its capacity as an organisation. On 26 March 1998 the Supreme Court refused the applicant company's request, finding that it had not established any grounds for quashing the Labour Court's decision.
36. It would appear that the union proceeded with industrial action on 6 April 1998. Supportive industrial action was also taken by other trade unions. On 8 April the applicant company joined the Swedish Textile and Clothing Industries' Association and thus became bound by a collective agreement. The union's own industrial action was immediately suspended but supportive action by another trade union lasted over the Easter weekend until 13 April.
37. On 30 April 1998, following a settlement between the applicant company and the union and the latter's withdrawal of the application it had lodged on 23 February 1998, the Labour Court struck the proceedings out of its list.
38. Due to declining profitability, the applicant company went into voluntary liquidation in June 1998. By a decision of 17 June the District Court of Nacka declared the applicant company insolvent. On 30 March 2001 the winding up was terminated and the applicant company dissolved.
39. The right to take industrial action is guaranteed under the Swedish Constitution. Chapter 2, section 17 of the Instrument of Government (Regeringsformen) provides the following:
“Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement.”
40. The law referred to is the Co-Determination at Work Act (“the 1976 Act”). The right of association is defined in section 7:
“Right of association means the right of employers and employees to belong to an organisation of employers or employees, to benefit from their membership as well as to work for an organisation or for the founding of one.”
This right is further regulated in section 8:
“The right of association shall not be violated. A violation ... will occur, if anyone from the employer's side or the employee's side takes any action to the detriment of anybody on the other side by reason of that person having exercised his right of association, or if anybody on either side takes any action against anybody on the other side with a view to inducing that person not to exercise his right of association. A violation will occur even if the action so taken is designed to fulfil an obligation towards another party.
An employers' or employees' organisation shall not have to tolerate a violation of its right of association encroaching upon its activities. Where there is both a local and a central organisation, these provisions shall apply to the central organisation.
If the right of association is violated by termination of an agreement or another legal measure or by a provision in a collective agreement or other contract, that measure or provision shall be void.”
Section 10 provides a right of negotiation:
“An employees' organisation shall have the right to negotiate with an employer regarding any matter relating to the relationship between the employer and any member of the organisation who is or has been employed by that employer. An employer shall have a corresponding right to negotiate with an employees' organisation.
A right of negotiation ... shall also be enjoyed by the employees' organisation in relation to any organisation to which an employer belongs, and by the employer's organisation in relation to the employees' organisation.”
41. Under section 41 there is an obligation for parties bound by a collective agreement to maintain peaceful industrial relations:
“Employers and employees who are bound by a collective agreement may not initiate or take part in a work stoppage (lockout or strike), blockade, boycott or other comparable industrial action, if the agreement has been concluded by an organisation and that organisation has not decided on the measure in the prescribed manner, if the measure is contrary to a provision on peaceful industrial relations in a collective agreement or if the measure is designed:
1. to exert pressure in a dispute concerning the validity, continuance or meaning of the collective agreement or whether particular conduct is contrary to the agreement or this Act,
2. to bring about changes to the agreement,
3. to give effect to a provision which it is intended will be applied once the agreement ceases to be valid, or
4. to support a person who has no right to take industrial action.
Industrial action taken in contravention of the first paragraph shall be unlawful.
...”
42. Labour disputes are generally governed by the provisions of the Code of Judicial Procedure (Rättegångsbalken). However, the Litigation in Labour Disputes Act (“the 1974 Act”) contains specific rules relevant to disputes concerning the application of the 1976 Act and to other labour disputes. The courts' jurisdiction is set out in chapter 2 of the 1974 Act. Section 1 provides:
“The Labour Court shall, as a court of first instance, hear and decide disputes referred to it by an employers' or an employees' organisation or by an employer which has itself entered into a collective agreement, if the case concerns:
1. a dispute relating to a collective agreement or other labour dispute referred to in [the 1976 Act],
2. another labour dispute on condition that there is a valid collective agreement between the parties or that an individual employee concerned by the dispute is employed in work covered by a collective agreement by which the employer is bound.
The Labour Court shall also be the competent court under the first paragraph when a collective agreement temporarily ceases to be valid.
Other labour disputes between the same or other parties may be heard together with a labour dispute under the first or second paragraphs, if the Court finds it expedient in the light of the investigation or other circumstances. When appropriate, the cases may be severed again.
The Labour Court shall have jurisdiction, as a court of first instance, to hear and decide all disputes referred to in section 41 of [the 1976 Act]”.
43. Other labour disputes are heard by the District Court (section 2) and an appeal lies to the Labour Court (section 3). The Labour Court's judgments and decisions are final (section 4).
44. The composition of the Labour Court is regulated in chapter 3 of the 1974 Act. Sections 1-3 contain rules on the number of members of the Labour Court and the eligibility, term of office, nomination and election of members. Section 1 states:
“The Labour Court shall be composed of no more than four presidents, no more than four vice-presidents and seventeen other members.
Members shall be Swedish citizens and may not be minors, undischarged bankrupts or under guardianship ... . Before taking up office in the Labour Court, they shall take the judicial oath.
...
Members ... shall be appointed by the Government for a period of three years.”
Section 2 provides:
“The presidents, vice-presidents and three other members shall be elected from among persons who cannot be considered to represent employers' or employees' interests.
The presidents and vice-presidents shall be legally qualified and experienced in the judicial profession.
The three other members shall have special knowledge of the conditions on the labour market.”
Section 3 reads:
“Of the other fourteen members, four shall be elected on the proposal of the Confederation of Swedish Enterprise [Föreningen Svenskt Näringsliv; until 2001 the Swedish Employers' Confederation], one on the proposal of the Swedish Association of Local Authorities [Svenska Kommunförbundet], one on the proposal of the Federation of County Councils [Landstingsförbundet], one on the proposal of the Swedish Agency for Government Employers [Arbetsgivarverket; until 1 July 2001 the text read “one as a representative of the State as employer”], four on the proposal of the Swedish Trade Union Confederation, two on the proposal of the Central Organisation of Salaried Employees and one on the proposal of the Central Organisation of Swedish Academics.
...”
45. Section 6 regulates the composition of the Labour Court in individual cases. It reads as follows:
“The Labour Court shall sit with a president and no more than six or less than four other members. Of the members referred to in section 2, no more than three or less than one shall take part. Of the members referred to in section 3, no more than four or less than two shall take part, in equal numbers from the employers' side and the employees' side.
The Labour Court may also sit with a president and one member each from the employers' side and the employees' side:
1. at a main hearing in a case which has no jurisprudential significance and is in other respects uncomplicated;
2. in the determination of a case without a main hearing;
3. in other proceedings not conducted at a main hearing.
The Labour Court may further sit with three professional judges in proceedings referred to in subsections 2 (2) and (3) if the examination essentially concerns matters unrelated to labour law.
...”
46. Chapter 11, section 2 of the Instrument of Government, which contains provisions on safeguarding the independence of the judiciary, is applicable to the members of the Labour Court. It provides:
“Neither a public authority nor Parliament may decide how a court should adjudicate an individual case or otherwise apply a rule of law in a particular case.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88381
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DUR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1973 and lives in Cologne, Germany.
5. On 27 October 1998 at 1 p.m. a group of 43 women belonging to “Mothers for Peace”, including the applicant, arrived at the provincial branch of the Motherland Party (Anavatan Partisi (ANAP)) in Istanbul in order to meet that party’s provincial leaders. Two women who received them at the entrance of the building stated that there was a press conference in progress, asked them to wait in the waiting room, which was on the third floor of the building, and left.
6. Five to ten minutes later, police officers arrived in the waiting room, threw a smoke bomb inside and entered. A police officer hit the applicant on the back of her head with a truncheon, grabbed her hair and dragged her down the stairs. She was then put in a police vehicle and taken to the Beyoğlu police headquarters.
7. On the same day at 3.50 p.m. the applicant, along with the other 42 women, was examined by a doctor at the Beyoğlu branch of the Forensic Medicine Institute. According to the medical report, the applicant had oedemas on her neck and scalp. The doctor considered that the injuries rendered the applicant unfit to work for three days.
8. The applicant spent the night in a cell with 10 other women at the police headquarters. Police officers came to the cell two or three times and insulted and beat the detainees each time.
9. On 28 October 1998 the applicant was examined by the same doctor at the Beyoğlu branch of the Forensic Medicine Institute, who noted no new injuries on the applicant’s body.
10. On the same day, the applicant and the other 42 women were brought before the Beyoğlu Magistrates’ Court. They were questioned about whether they had deprived Y.U., the person who was in charge of the coffee bar in the waiting room, of his liberty and whether they had resisted the police officers who had arrested them. They all contended that they had neither deprived Y.U. of his liberty nor resisted the police officers. The court remanded five women in custody and ordered the release of the others, including the applicant.
11. On 27 October 1998 a group of 43 women, including the applicant, entered the premises of the provincial branch of the Motherland Party in Istanbul after a press conference had been held by the party’s Vice-President. They occupied the premises with the aim of protesting against a meeting which would be held there and attended by the party members. The security forces attempted to lead the women out of the building in order to prevent possible clashes between them and the party members. Three of the women, including the applicant, resisted the police and used physical violence. All 43 women were then arrested and taken to the Beyoğlu branch of the Forensic Medicine Institute for a medical examination. Subsequently, they were taken to the Beyoğlu police headquarters.
12. The police took statements from Y.U., who maintained that the women who had occupied the premises had beaten four party members and deprived him of his liberty. He further stated that they had resisted the police officers during the arrest.
13. On 2 November 1998 the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Assize Court, charging all 43 women with resisting the police and depriving Y.U. of his liberty for ideological reasons.
14. On 4 November 1999 the Beyoğlu Assize Court acquitted the applicant and the other accused. In its judgment, the trial court noted that the accused women were members of “Mothers for Peace” and that they had visited the Motherland Party in order to hold a meeting with the members of that party with a view to informing them of their problems. The court further noted that there was no evidence in the case file demonstrating that the members of “Mothers for Peace” had committed an offence. In particular, they had not deprived Y.U. of his liberty or damaged the building. Nor had they had any objects on their person which could have been used to commit offences. Furthermore, no complaint had been lodged against them by the party members who had allegedly been beaten by them. The court further observed that there was no evidence that the accused had resisted the police as no officer had been injured in the course of the arrest. On the contrary, some of the women, including the applicant, had sustained injuries.
15. According to the information in the case file, no appeal was lodged against the judgment of 4 November 1999.
16. On 19 March 1999 the applicant lodged a complaint with the Beyoğlu public prosecutor’s office, alleging that physical force had been used by the police officers during her arrest and requesting that an investigation be initiated.
17. On an unspecified date the Beyoğlu public prosecutor initiated an investigation. Within the context of this investigation, on 26 May 1999 the applicant made statements to the public prosecutor and reiterated her allegations. On the same day, she was examined by a doctor, who noted that there were no injuries on her body. On 30 September 1999 the public prosecutor took statements from a police officer, F.M.S., who denied the allegation of having ill-treated the applicant.
18. On 8 October 1999 the Beyoğlu public prosecutor issued a decision not to prosecute F.M.S. in respect of the applicant’s allegation. In his decision, the prosecutor noted that there was insufficient evidence to suggest that F.M.S. had ill-treated the applicant, who had participated in an illegal meeting and resisted the police. The public prosecutor considered that the force employed by the police had not been excessive and that they had acted within the scope of their duties.
19. The decision of 8 October 1999 was not served on the applicant or her representatives. One of the applicant’s representatives obtained a copy of the decision from the Fatih public prosecutor’s office in October 2002.
20. On 31 October 2002 the applicant filed an objection against the decision of 8 October 1999.
21. On 31 March 2003 the Istanbul Assize Court dismissed the applicant’s objection, holding that the decision of 8 October 1999 was in accordance with the law.
22. A description of the relevant domestic law in force at the material time can be found in Balçık and Others v. Turkey (no. 25/02, § 19, 29 November 2007), Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-99, ECHR 2004IV), Elci and Others v. Turkey (nos. 23145/93 and 25091/94, § 577, 13 November 2003) and Altay v. Turkey (no. 22279/93, § 31, 22 May 2001).
VIOLATED_ARTICLES: 3


ITEMID: 001-72921
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: B.c. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs B.Č., is a Slovakian national who was born in 1960 and lives in Košice. She is represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice.
In March 1999 the applicant petitioned for divorce from her husband as their relations had disintegrated. At that time, their son, born in 1992, lived together with the applicant’s husband in one room. The applicant with her daughter born from her previous marriage lived in a different room of the same flat. All family members commonly used the living room and the kitchen.
In the evening of 7 July 1999 the applicant and her daughter found her husband and the boy naked in the living room. They noticed that the penis of the boy’s father was erect. In fear that her husband had abused the boy, the applicant let him spend the night in her room and they slept at their neighbour’s place on the following night.
On 9 July 1999 the child was examined by a psychologist who concluded that he had suffered a psychological trauma. According to the report, the child had made a picture resembling an erect penis when asked to draw his family.
The applicant and her children started living at a different place.
On 3 September 1999 the applicant filed a criminal complaint alleging that her husband had sexually abused the boy. The applicant submitted, in particular, that she had found both her husband and her son lying naked in their living room on 7 July 1999, and that her husband’s penis had been erect.
On 7 October 1999 the District Court in Košice II placed the boy provisionally in the applicant’s custody. It further prohibited the father from meeting the child.
On 23 December 1999 the District Office of Investigation of the Police Corps in Košice II, with reference to the child’s statement, dismissed the complaint holding that nothing indicated that an offence had been committed. The police had before them, among other documents, an opinion submitted by an expert on 19 October 1999. In it reference was made to the boy’s statement that his father had moved his penis as if playing a guitar while being naked when the boy had come to sleep in the father’s room. The child further stated that the father had wanted him to watch him, but had neither touched the boy nor had he wanted the boy to touch him. In his opinion of 19 October 1999, the expert characterised the father’s behaviour as sexually abusive. The expert later admitted that such conclusion could be drawn under the hypothetical assumption that the father’s behaviour had been erotically motivated. Otherwise that behaviour was to be qualified as socially inappropriate.
The applicant filed a complaint against the above decision on 13 January 2000. She pointed out, in particular, that in his statement before an expert her son had affirmed that her husband had manipulated his sexual organ in the presence of the child. Her son displayed the syndromes of an abused child despite the fact that she and the child had moved to a different place. She also referred to the conclusion of a psychologist who had examined the child, at her request, on 9 July 1999. According to the psychologist, the child had suffered a serious psychological trauma.
On 26 January 2000 the Košice II District Prosecutor quashed the investigator’s decision.
In the course of the subsequent criminal proceedings the public prosecutor indicted the child’s father for the offence of sexual abuse pursuant to Article 242 (1) and (2) of the Criminal Code. According to the indictment, the accused, on 7 July 1999, had been lying naked in the living room with an erect penis and had masturbated, while his son had been lying undressed close to him. They had been found in that position by the applicant.
Throughout the investigation the father denied the accusation. He explained that he and the child had watched TV before going to sleep in the evening in issue. They had undressed as it had been very hot that day.
On 25 August 2000 the Košice II District Court discontinued the proceedings as no offence had been committed. It referred to documents included in the file, such as statements of the applicant, her son and daughter as well as of the accused. It also had regard to four expert opinions and the information submitted by an administrative authority. The court concluded that the action described in the indictment could not be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code. Finally, the decision stated that in criminal proceedings a court can assess only acts which are described in the indictment.
On 15 November 2000 a court decreed the divorce of the applicant and her husband.
On 30 November 2000 the Regional Court in Košice quashed the District Court’s decision of 25 August 2000. The Regional Court noted that two expert opinions supported the public prosecutor’s view that the applicant’s son had been sexually abused. However, the file also comprised a third expert opinion, submitted in the context of proceedings concerning parental rights and obligations. In it the expert, who had examined both the parents and the child, had reached a different conclusion. With a view to having the relevant facts established, the Regional Court instructed the prosecuting authorities to ask the Slovak Chamber of Psychologists to identify a suitable expert. It held that both parents should be examined by an expert, and that the applicant should be asked to explain why she had filed her criminal complaint nearly two months after the incident had occurred. The case was returned to the public prosecutor who re-transmitted it to the police investigator.
On 9 August 2001 the District Office of Investigation in Košice II discontinued the criminal proceedings against the child’s father as the action imputed to him did not constitute an offence. The police investigator heard the two parents, the boy and the applicant’s daughter and several witnesses.
According to the boy’s statements, he had often been obliged to sleep together with the father when the latter had returned home intoxicated. On one occasion, he had been obliged to sleep naked with the father as they had not found his pyjamas. His father had always locked the door. The boy stated that he had disliked sleeping with his father as the latter had been intoxicated and naked.
The applicant’s daughter stated that, in the evening of 7 July 1999, she had seen that her step-father had risen from the sofa with his penis erect and had run to his room at the moment when her brother had switched on the light in the living room. She affirmed that her step-father had in the past stayed with her brother locked in the bathroom and in his room.
In addition to the expert opinions mentioned above, the investigator had also regard to the opinion of a sexologist stating that the accused was heterosexually oriented and that he displayed no signs of sexual deviation.
As there were discrepancies in the various expert opinions, the investigator requested, in accordance with the Regional Court’s instruction, the Research Institute of Child Psychology and Patopsychology in Bratislava to submit an opinion on the relevant issues. The experts of the institute submitted their opinion of 23 pages on 30 April 2001. The experts of the institute examined the boy, his father, the applicant and her daughter and assessed in detail the trustworthiness of their statements. They then commented on the four opinions earlier submitted by different experts. In their conclusion, the experts of the institute held that the father’s behaviour had not threatened the boy’s mental development. They considered trustworthy the boy’s statement according to which the father had neither beaten him nor had he touched his body or asked the boy to touch his genitals. As regards the alleged abuse of the child, the only reliable information represented the boy’s statement according to which his father had moved his penis as if playing a guitar. It was impossible to establish when, in what context and how often such behaviour had occurred. In the experts’ view, it was however improbable that the child had observed his father masturbating. The experts further considered disputable the quality of two expert opinions submitted earlier. As to the signs of neurosis which the boy had displayed in the past, the experts of the institute held that they did not prove that the child had been sexually abused.
On the basis of the above materials the police investigator concluded, in a decision of 9 August 2001, that there was no indication that the accused had behaved in a manner which could be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code.
On 27 August 2001 the applicant filed a complaint. She argued that the investigator’s decision did not correspond with the evidence taken in the criminal proceedings.
On 14 September 2001 the District Prosecutor’s Office in Košice II dismissed the applicant’s complaint against the investigator’s decision on the ground that the applicant was not entitled to file it. In a separate letter of the same date the public prosecutor informed the applicant, with reference to the opinion of the experts from the research institute, that he shared the view of the police investigator according to which her former husband had not sexually abused the boy.
Article 242 of the Criminal Code governs the offence of sexual abuse.
Pursuant to paragraph 1, a person who has sexual intercourse with a person younger that 15 years or who sexually abuses such a person in a different manner is to be punished with a prison term between 1 and 8 years.
Under paragraph 2, the prison term shall be between 2 and 10 years where a perpetrator commits the offence set out in paragraph 1 in respect of a person placed under his or her authority and in abuse of the victim’s dependence.
In practice, forms of sexual abuse other than sexual intercourse within the meaning of Article 242(1) comprise satisfying one’s sexual drive by touching the body of the abused person, kissing or touching genitals provided that such actions are intensive.


ITEMID: 001-5671
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SOLHAN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Turkish national of Kurdish origin, born in 1965 and, at the time of the introduction of the application, was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 October 1998, the applicant, his spouse and their two daughters left Turkey for an unspecified destination somewhere in Europe. In the course of their journey, one of the applicant’s daughters died of suffocation in the truck in which they were hiding. The applicant’s spouse and the other daughter returned to Turkey in order to bury the deceased child there. The applicant continued his journey.
On 28 October 1998, the applicant and seventeen others, who were found concealed in a vehicle bound to leave the Netherlands for the United Kingdom, were arrested by the Royal Constabulary (Koninklijke Marechausee) on suspicion of being illegal aliens. On 29 October 1998, after a verification of his identity, nationality and residence title, the applicant was placed in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (b) and (c) of the Aliens Act (Vreemdelingenwet).
On the same day, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 16 November 1998, the applicant – with the assistance of an interpreter – was interviewed by an official of the Ministry of Justice in relation to the grounds for his asylum request.
The applicant stated, inter alia, that as from 1994 he had made propaganda for the pro-Kurdish HADEP party and that as from 1995, being a pharmacist, he had provided the PKK with medicines on a regular basis. His brother, a PKK member since 1989, had been arrested in 1995 and was detained since. Between January 1997 and February 1998, he himself had been arrested several times. After having been kept in detention for short periods, he had been released each time. After the arrest in July 1998 of a PKK member who had had medicines from the applicant’s pharmacy in his possession, the applicant and his family left their home town for İstanbul. During his stay in İstanbul, the applicant learned that his pharmacy had been destroyed by a bomb by the Turkish authorities. The applicant concluded therefrom that the arrested PKK member had given his name to the Turkish authorities.
On 18 November 1998, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request for asylum or a residence permit. The State Secretary doubted the veracity of the applicant’s account and in this respect noted, inter alia, that the applicant, who stated he was a pharmacist, could only name four kinds of medicines amongst which aspirin, that he was unable to state the name of the medicine he claimed to use for treatment of his mental condition and that he was unable to state the name of the wholesaler from whom he would have bought medicines for his pharmacy. The State Secretary did not find it established that the applicant would face a real danger of treatment contrary to Article 3 of the Convention if be expelled to Turkey. In accordance with Article 18a of the Aliens Act, the State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers’ centre and that this order was suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than by a departure from the Netherlands.
On 19 November 1998, the legal basis for the applicant’s placement in aliens’ detention was altered from Article 26 § 1 (b) and (c) of the Aliens Act into Article 26 § 1 (a) of this Act. On the same day his expulsion from the Netherlands was ordered.
On 20 November 1998, the applicant filed an appeal with the Administrative Law Division (Sector Bestuursrecht) of the Hague Regional Court (Arrondissementsrechtbank) sitting in ‘s-Hertogenbosch against the State Secretary’s decision of 18 November 1998. He further requested the Regional Court for an injunction on his expulsion pending the appeal proceedings. As he was placed in aliens’ detention he was not required, like asylum seekers not placed in aliens’ detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court.
At two unspecified points in time the applicant started a hunger strike in order to obtain access to the asylum procedure for persons not placed in aliens’ detention. His first hunger strike lasted eight days and his second five days.
On 24 November 1998, the State Secretary of Justice sent a notification to the Administrative Law Division of the Hague Regional Court sitting in ‘s-Hertogenbosch that the applicant had been in aliens’ detention for a period of four weeks without having filed an appeal against the decision of his placement in aliens’ detention. This notification is considered on a par with a first appeal under Article 34a § 2 of the Aliens Act.
In its decision of 8 December 1998, following a hearing held on 7 December 1998 in the course of which the applicant was represented by a lawyer, the Regional Court rejected the appeal filed by way of a notification. It considered that the applicant’s arrest and placement in aliens’ detention was lawful under the relevant statutory provisions. It held that there were serious grounds for believing that the applicant would seek to find ways of avoiding his expulsion. The Regional Court considered at the outset that there were serious doubts as to the veracity of the applicant’s account that he had come to the Netherlands to apply for asylum, as at the moment of his arrest he had been at the point of leaving the Netherlands. The Regional Court found it established that he had intentionally sought to evade any form of control of entry of aliens and had sought to leave the Netherlands in an uncontrolled manner.
In these circumstances, the Regional Court did not find that the applicant’s request for asylum opposed (a continuation of) his placement in aliens’ detention. Noting that, at the time of his arrest and to date, the applicant did not hold a valid residence title, did not have any identity papers and did not have sufficient means of existence, the Regional Court found that there were sufficient grounds to justify the measure of placement in aliens’ detention. It finally considered that the applicant’s request for an injunction on his expulsion pending the appeal proceedings on the refusal to grant him asylum or a residence permit did not as such affect the lawfulness of his placement in aliens’ detention as pending the determination of this request it could not be said that there were no prospects of expulsion. Moreover, there were no indications in the applicant’s case that it was highly likely that his request for an injunction would be successful. In this respect the court further noted that the injunction request would be dealt with in the near future. In the court’s opinion, there were as yet realistic perspectives for the applicant’s expulsion and the authorities were sufficiently diligent in their activities aimed at the applicant’s expulsion.
On 14 April 1999, the applicant and a unspecified number of others placed in aliens’ detention started a third hunger strike in order to obtain access to the asylum procedure for persons not placed in aliens’ detention. He claims that during this hunger strike, that lasted until 7 May 1999, he was denied recreational rights that other persons placed in aliens’ detention enjoyed, such as access to the library. He further claims that he was not allowed to buy a telephone card or cigarettes and that medical care was hardly provided. Also, after he had ceased his hunger strike, no medical care was provided although he did complain of pain.
On 20 April 1999, following a hearing held on 26 February 1999 in the course of which the applicant was represented by a lawyer, the President of the Regional Court rejected the applicant’s appeal. The President held that, although the general (human rights) situation in (in particular south-east) Turkey could be called bad, the mere belonging to the Kurdish community in Turkey is not sufficient for a finding of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees. The President found that it had not been established that the applicant had founded reasons to fear persecution within the meaning of the 1951 Convention.
The President further considered that the fact that the applicant has only applied for asylum following his arrest did cast doubts as to the reliability of his statements. The President noted that the applicant, who alleged to be a pharmacist, could only name four kinds of medicine and was unable to state the name of the wholesaler in İstanbul from whom he would have bought medicines. The President further considered as implausible the applicant’s claim that pharmacists in Turkey do not necessarily have to be professionally qualified. Since the applicant had failed to substantiate his account with any documents, the President held that the above seriously undermined the credibility of the applicant’s account.
The President noted that the applicant’s activities for HADEP were only of a marginal nature and that the applicant had stated that his various arrests were not linked to his brother’s activities for the PKK but were based on his own activities for the PKK. Further noting that, shortly after each arrest, the applicant had been unconditionally released, the President held that there was no indication that the applicant was being considered by the Turkish authorities as an important political opponent. The President further did not find it plausible that the Turkish authorities would consider the fact that the applicant had provided the PKK with medicines as a political act, since a pharmacist always runs the risk that medicines are being provided to PKK members. The President further found no causal link between the bomb attack on the applicant’s pharmacy and his activities for the PKK and considered that it was more plausible that this was linked to the general security situation in south-east Turkey.

The President also noted that the alleged events had not given the applicant cause to leave Turkey immediately as he had remained in İstanbul until 12 October 1998 without having encountered any problems from the side of the Turkish authorities. As to information contained in a letter of 8 April 1999 from the Kurdish Human Rights Project in London to the effect that the applicant was an active supporter of HADEP, that the Turkish authorities were aware of these activities and that it was extremely likely that the applicant, if returned to Turkey, would be arrested and detained with a very high risk of being ill-treated and/or tortured during his detention, the President held that this information could not be considered as coming from an objective source. The President concluded that it had not been established that the applicant, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. In these circumstances, the President did not find it necessary to determine the applicant’s request for an injunction on his expulsion.
On 12 May 1999 the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. On 17 May 1999 the applicant was interviewed by an official of the Ministry of Justice in respect of his second asylum request. According to the written record of this interview, the applicant stated that he could understand the assisting interpreter very well, that he had no new facts or circumstances to adduce in support of his new asylum request and that he had filed this new request upon the advice of his new lawyer who considered that the written record of the applicant’s interview held on 16 November 1998 did not correctly reflect the applicant’s account.
By letter of 13 May 1999, the applicant’s new lawyer sent comments on the written record of the applicant’s interview held on 16 November 1998 to the State Secretary of Justice. In this letter a number of examples were given of discrepancies between what the applicant had allegedly said and what had been recorded. According to the applicant’s lawyer, these discrepancies were the result of inadequate interpretation. On 18 May 1999, the applicant’s new lawyer submitted comments to the written record of the interview held on 17 May 1999.
By letters of 20 May 1999, the applicant’s lawyer filed complaints with the Minister of Justice and the National Ombudsman about the asylum proceedings conducted in the applicant’s case. In these letters, the applicant’s lawyer complained in particular about the quality of interpretation during the applicant’s interviews in relation to his two asylum requests in that this interpreter was allegedly unable to communicate adequately in either Turkish or Kurdish.
On 3 June 1999 the State Secretary of Justice rejected the applicant’s second request for asylum or a residence permit. The State Secretary noted that the comments submitted on 13 and 18 May 1999 related to the first asylum proceedings and could not be regarded as new relevant facts and circumstances. In this respect, the State Secretary noted that the applicant’s initial lawyer had already addressed the contents of the record on the interview held on 16 November 1998 and had raised the same points as the ones that were now being raised by the applicant’s new lawyer in relation to this interview. These subject matters had been examined both in the proceedings on the applicant’s first request for asylum and in the proceedings on the lawfulness of the applicant’s placement in aliens’ detention. The applicant’s new asylum request was, therefore, inadmissible.
The State Secretary of Justice further held that no facts or circumstances had appeared on the basis of which the applicant would qualify for a residence permit on humanitarian grounds and that it had not been established that there was a real risk that the applicant, if returned to his country of origin, will be subjected to treatment contrary to Article 3 of the Convention. Having found no reasons on grounds of which the applicant should be given the possibility to await the outcome of a possible appeal in the Netherlands, the State Secretary considered that the applicant should leave the Netherlands as soon as possible. The State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers centre and that this order was suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than by a departure from the Netherlands.
The applicant’s expulsion to Turkey was scheduled for 11 June 1999. No information has been submitted as to whether he has in fact been deported on this or any subsequent date.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention:
a. alien whose expulsion has been ordered;
b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered;
c. aliens who are not entitled to residency in the Netherlands under Articles 8-10 <of the Aliens Act>, pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugee.
2. Placement in aliens’ detention will not be ordered when - and will be terminated as soon as - the alien indicates that he wants to leave the Netherlands and has the possibility to do so.
3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.”
An alien who does not have any identity papers and whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be lifted.
According to Dutch case-law, the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, it is feasible that this point in time is attained at an earlier or later point in time than after six months have passed. It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Article 15 of the Netherlands Constitution (Grondwet) provides:
“1. Other than in the cases laid down by or pursuant to law, no one may be deprived of his liberty.
2. Anyone who has been deprived of his liberty other than by order of a court may request a court to order his release. In such a case he shall be heard by the court within a period to be laid down by law. The court shall order his immediate release if it considers the deprivation of liberty to be unlawful.
3. The trial of a person who has been deprived of his liberty pending trial shall take place within a reasonable time.
4. A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is incompatible with the deprivation of liberty.”
Article 34a of the Aliens Act provides as follows:
“1. A measure taken under this Act to the effect of a limitation of the freedom of movement or deprivation of liberty shall, for the purposes of Article 8:1 § 1 of the Administrative Law Act, be considered as being on a par with a decision.
2. The court shall examine a first appeal against a decision to the effect of deprivation of liberty within two weeks, either during the preliminary examination under Article 8:44 § 1 of the Administrative Law Act or during a court hearing.
3. If the appeal is directed against a decision as referred to in the second paragraph, the court shall determine the time of the trial proceedings without delay and in any event not later than two weeks after the day of transmission of the appeal. In deviation of Article 8:42 § 2 of the Administrative Law Act, the delay referred to in that Article cannot be prolonged.
4. The Regional Court hands down its written decision, unless immediately at the court hearing a decision is handed down orally, within two weeks following the closure of the investigation <at the hearing>. As a deviation of Article 8:66, second paragraph, of the General Administrative Law Act, the delay referred to in that provision cannot be extended.
5. Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved cannot in all reasonability be regarded as justified, it declares the appeal <filed> under this provision founded and orders that the measure be lifted or a change in the manner of its execution.”
Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)
There is no time-limit for filing an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention can file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.
Pursuant to Article 86 of the Aliens Decree (Vreemdelingenbesluit), the Minister of Justice must send a notification to the competent court when an alien has spent four weeks in aliens’ detention where the person concerned has not himself filed an appeal against this decision. This notification is considered on a par with a first appeal within the meaning of Article 34a § 2 of the Aliens Act.


ITEMID: 001-89969
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TADEVOSYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Violation of Art. 6-1 and 6-3-b;Violation of P7-2;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1944 and lives in the village of Mrgashat, Armenia.
5. The applicant is the Chairman of the Armavir regional branch of the National Unity party, one of the opposition parties. Prior to his retirement the applicant had worked in law enforcement for 30 years, including ten years as chief of police of the Metsamor Police Department (ՀՀ ոստիկանության Մեծամորի բաժին).
6. A series of demonstrations were held from March to May 2004 in Yerevan, organised by the opposition parties in protest against the alleged irregularities that had taken place at the February-March 2003 presidential election, challenging the legitimacy of the re-elected President. It appears that the applicant participated in some of these demonstrations.
7. On 4 April 2004 the applicant was visited at his home by two police officers who asked him to accompany them to the Metsamor Police Department. It appears from the materials of the case that the applicant showed some resistance while being taken to the police station. The applicant denied this fact.
8. At the police station an administrative case was initiated against the applicant on the grounds that he had disobeyed the lawful orders of the police officers and had used foul language. The applicant alleged that the chief of police had told him that he had been arrested in order to prevent him from participating in the political demonstration due to be held the following day in Yerevan.
9. On 5 April 2004 the applicant was taken to the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան) where he was brought before Judge A. who sentenced him to ten days of administrative detention for “disobeying the lawful order of the police officers and using foul language for about five minutes, when asked to come to the Metsamor Police Department on suspicion of having committed a robbery”.
10. The applicant was then taken to the Temporary Detention Facility at the Ejmiatsin Police Department to serve his sentence.
11. The applicant alleged that, following his release from detention on 14 April 2004, he had been subjected to frequent police visits to, and searches of, his home. He had been forced to hide when such visits took place, fearing that he would be taken to the police station again.
12. On 20 April 2004 the applicant wrote to the Ombudsman (ՀՀ մարդու իրավունքների պաշտպան), complaining about the above events, including the alleged frequent visits by the police officers. It appears that this complaint was forwarded by the Ombudsman to the regional prosecutor’s office by a letter of 17 May 2004.
13. The applicant alleged that on 20 May 2004 at around 8 a.m. he had been visited at his home by three police officers who had informed him that the Chief of the Metsamor Police Department (ՀՀ ոստիկանության Մեծամորի բաժնի պետ) wanted to talk to him. He had then been taken to the police station.
14. It appears from the materials of the case that the applicant was arrested at around 9 a.m. on that day. According to the Government, the reason for his arrest was an argument that had erupted between him and the police officers who had stopped his car for a check.
15. At the police station an administrative case was initiated against the applicant, who was apparently charged under Article 182 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) with maliciously disobeying the lawful orders of police officers and using foul language. It appears that a record of an administrative offence was drawn up which was signed by the applicant. A third person, S., made a statement corroborating the charge against the applicant.
16. The applicant alleged that at the police station he had been asked to sign a statement that he had used offensive language when stopped by police officers while driving his car. He had refused to sign this statement, claiming that the charge against him was false. The officers responded by stating that they had been instructed to write such a statement by the chief of police.
17. The applicant further alleged that at around 12 noon he had been taken to meet the chief of police, who had informed him that he was to be detained for a further ten days. In reply the applicant denied the charges. The chief of police then used insulting language towards the applicant. Shortly thereafter he was taken to a court.
18. The Government contested the above allegations and claimed that the applicant had been informed by the police officers of his procedural rights, including his right to have a lawyer, but the applicant did not wish to have a lawyer.
19. The applicant was brought before Judge H. of the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան). Judge H., after a brief hearing, sentenced the applicant under Article 182 of the CAO to ten days of administrative detention. The judge’s entire finding amounted to the following:
“On the night from 19 to 20 May 2004 [a car] was continually driving through the village of Mrgashat, which raised the suspicion of police officers on duty who, for the purpose of a check, at around 9 a.m. attempted to stop the car and to dispel their suspicion. The driver of the car [the applicant] started to swear at the police officers, obstructed their work, used foul language and disobeyed their lawful orders, for which he was brought to the Metsamor Police Department.
In his submissions [the applicant] did not admit to having committed the offence, stating that he had not done anything wrong. He understood that he had to serve a sentence, therefore, he would go and serve a sentence. He was grateful to everybody, knew the law well and did not need defence counsel.
The witnesses, District Inspector [G.] and Operative Officer on Juvenile Crimes [A.] of the Metsamor Police Department, stated that [the applicant] had disobeyed their lawful orders, used foul language and sworn at them.
Witness [S.] stated that he had been present when [the applicant] swore at and argued with the police officers.
The commission of the offence by [the applicant] is corroborated by the record of an administrative offence, the reports, [the record of the arrest] and witness statements.”
20. According to the record of the court hearing, the hearing was held in public at 4 p.m. The judge informed the applicant of his right to challenge the judge and the clerk and to have a lawyer. The applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with examination of evidence. It appears that the judge heard the applicant, the relevant police officers and then witness S. The judge departed to the deliberation room, after which he returned and announced the decision.
21. The applicant alleged that the record of the court hearing did not adequately reflect what had taken place in reality. The judge had failed to question or take any evidence from the applicant and to provide him with the necessary time to call defence witnesses and to cross-examine the police officers and the prosecution witnesses. His submissions as to the falseness of the police reports had been ignored. He had never been informed of his right to have a lawyer. The hearing had lasted only a few minutes.
22. On 21 May 2004 the applicant wrote to the Armavir Regional Prosecutor (Արմավիրի մարզի դատախազ), complaining about the alleged police visits, claiming that the administrative cases against him had been fabricated, asking the Prosecutor to act upon his complaints and asking to be released. He also alleged that the chief of police had insulted him.
23. On 26 May 2004 the competent prosecutor’s office refused to institute criminal proceedings in the absence of a criminal act. No appeal was lodged against this decision.
24. The applicant served his second ten-day sentence at the Temporary Detention Facility at the Ejmiatsin Police Department.
25. The applicant alleged, and the Government did not dispute, that during that period he had been kept in a cell which measured 10 sq. m together with nine other inmates, of whom several held multiple criminal convictions, despite his age, his position as a former chief of police and his lack of previous convictions. There were no beds and the detainees had to sleep on plywood on the floor. The cell was poorly ventilated and there was not enough fresh air. All the detainees except the applicant smoked in the cell. The cell was half dark, with a small window which measured 0.32 sq. m and was practically closed. The applicant’s access to the toilet facilities and to drinking water was limited to twice per day. He received only one meal per day. Since he was a former chief of police, he felt grossly humiliated and was fearful for his safety during his detention.
26. The applicant alleged that after his release from detention on 30 May 2004 he continued to suffer from anxiety and insomnia.
27. For a summary of the relevant provisions of the CAO see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). The provisions of the CAO which were not cited in the above judgment, as in force at the material time, provide:
“Maliciously disobeying a lawful order or demand of a police officer or a member of the voluntary police made in the performance of his duties of preserving public order shall result in the imposition of a fine of between 50% and double the fixed minimum wage, or of correctional labour for between one and two months with the ’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.”
28. The relevant provisions of the Law, as in force at the material time, read as follows:
“An arrested or detained person is entitled: ... (3) to lodge, himself or through his lawyer or lawful representative, applications and complaints alleging a violation of his rights and freedoms with the administration of the facility for arrested or detained persons, their superior authorities, a court, a prosecutor’s office, the Ombudsman, the bodies of public administration and local self-governance, non-governmental unions and [political] parties, mass media and international institutions and organisations protecting human rights and freedoms.”
“...The living space afforded to arrested and detained persons must comply with the building and sanitary-hygienic norms established for general living spaces. The area of the living space afforded to arrested and detained persons shall not be less than 2.5 sq. m for each individual.
Arrested and detained persons must be provided with individual bedding and bed linen.”
29. The relevant provisions of the Decree read as follows:
“Special sections of the [facilities for holding arrested persons] shall be reserved for persons who have been subjected to administrative detention for periods prescribed by [the CAO]...”
30. The relevant part of the Report reads as follows:
“4. Conditions of detention
a. introduction
43. At the outset, the CPT wishes to highlight the criteria which it applies when assessing police detention facilities.
All police cells should be clean, of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (for example, a chair or bench) and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets.
Persons in custody should be able to satisfy the needs of nature when necessary, in clean and decent conditions, and be offered adequate washing facilities. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (that is, something more substantial than a sandwich) every day. Persons held in custody for 24 hours or more should, as far as possible, be offered one hour of outdoor exercise every day.
b. temporary detention centres
44. During the visit, the CPT’s delegation visited temporary detention centres in Yerevan, Akhurian, Hrazdan, Maralik and Sevan. Establishments of this type are used to hold two categories of detainees: criminal suspects and persons under administrative arrest.
Conditions of detention in the temporary detention centres visited varied from acceptable (at the Hrazdan Department of Internal Affairs) to poor (e.g. at the Akhurian and Sevan Departments of Internal Affairs).
45. As regards occupancy levels, a consultation of registers and the number of sleeping places per cell suggested that the minimum standard of 2.5 m² of living space per person, as stipulated by the Law on [Conditions for Holding Arrested and Detained Persons], was respected as concerns criminal suspects. However, the CPT must add that this minimum standard is too low. As concerns the cells for administrative detainees, the information gathered during the visit indicated that conditions could become extremely cramped, e.g. up to 6 detainees in a cell of 9 m² in Hrazdan and Sevan.
All the centres visited presented deficiencies concerning the in-cell lighting and ventilation. With the exception of the Hrazdan centre, access to natural light was poor (small windows, sometimes - as in Yerevan - covered by metal shutters) or inexistent (e.g. in Akhurian). Artificial lighting was invariably dim, with some cells (e.g. in Yerevan, Akhurian and Maralik) submerged in near darkness. As to ventilation, it left something to be desired at Yerevan and Sevan.
As to the state of repair and hygiene of the detention areas, it ranged from quite acceptable at the Hrazdan Department of Internal Affairs to poor at the Sevan establishment. Cells at the Temporary detention centre in Yerevan were in a reasonably good state of repair; however, their level of cleanliness left something to be desired. Detention areas in Akhurian and Maralik were dilapidated but clean.
46. Cells were furnished with beds or wooden sleeping platforms. The delegation noted that mattresses, sheets, pillows and blankets were available for criminal suspects at all the temporary detention centres visited; however, this was not the case for administrative detainees.
The delegation did not hear any complaints from persons who were - or had recently been - detained at the centres visited as regards access to a toilet. However, with the notable exception of the Hrazdan Department of Internal Affairs, the communal toilet and washing facilities were dilapidated and dirty.
The centres in Yerevan and Hrazdan possessed shower facilities, which could apparently be used by newly-arrived detainees (upon recommendation of a feldsher/doctor) and by those administrative detainees who stayed in the respective establishments for longer than a week. In both centres, the shower facilities were in an acceptable state of repair and cleanliness, and hot water was available. However, the only personal hygiene item that was distributed to detainees was a small piece of soap.
47. According to information provided by police officers in the majority of the temporary detention centres visited, detainees were offered food three times per day, including one hot meal. However, this was not the case at the Sevan Department of Internal Affairs, where food was only delivered once per day, reportedly due to the limited budget set aside for this purpose (320 AMD - i.e. some 50 euro cents - per detainee per day). In this situation, the provision of food was to a large extent ensured by detainees’ families. Detained persons without family contacts had to rely on the generosity of other detainees or individual police officers for food.
48. All the temporary detention centres visited possessed outdoor exercise areas, where detainees were apparently allowed to take exercise for one hour per day (in the case of women and juveniles - for two hours per day). However, at the Temporary Detention Centre of the City Department of Internal Affairs in Yerevan, the delegation was informed that detainees could be deprived of outdoor exercise as a form of punishment for violation of the centre’s internal regulations.
49. The CPT recommends that the Armenian authorities take steps at temporary detention centres to:
- ensure that all detainees are offered adequate living space; the objective should be at least 4 m² per person;
- provide adequate in-cell lighting (including access to natural light) and ventilation;
- maintain the cells and common sanitary facilities in a satisfactory state of repair and hygiene;
- ensure that all detainees (including those held for administrative violations) are offered a mattress and blankets at night;
- ensure that administrative detainees are able to take a hot shower at least once a week during their period of detention;
- ensure that all detainees are offered food - sufficient in quantity and quality - at normal meal times;
- put an end to deprivation of outdoor exercise as a disciplinary punishment.”
31. The relevant part of the Report reads as follows:
“4. Conditions of detention
a. Temporary detention centre of the Department of Internal Affairs of the City of Yerevan
20. Conditions of detention in this facility remained basically the same as those observed during the 2002 visit, i.e. poor. One positive change was that persons under administrative arrest were now provided with bedding (pursuant to Order No. 8 of the Head of the National Police of 20 August 2003). Further, the delegation was informed that the food entitlement for detainees had been increased by Government decision of May 2003. Otherwise, no refurbishment or major repairs had taken place since the previous visit.
Consequently, the CPT reiterates the recommendations made in paragraph 49 of the report on the 2002 visit, in particular as regards living space, in-cell lighting, ventilation, state of repair and hygiene.”
32. The relevant part of the Report reads as follows:
“4. Conditions of detention
a. police holding areas
28. At the beginning of the 2006 visit, the delegation was informed that, pursuant to Order NK–328–NG of the President of the Republic of Armenia, dated 28 December 2004, a large-scale refurbishment programme had been initiated in all police holding areas. The CPT welcomes this. It should also be noted that a recent amendment to the [Law on Conditions for Holding Arrested and Detained Persons] increased the official standard of living space per detained person in police holding areas to 4 m². This can be considered as acceptable when applied to multi-occupancy cells; however, 4 m² is not an adequate size for a single occupancy cell.
29. During the visit, the delegation could observe the impact of the above-mentioned programme. Some of the police holding areas (e.g. in Charentsavan, Gavar and Hrazdan) were still undergoing refurbishment and were to reopen shortly. As regards the already refurbished holding areas, conditions in them were overall of a high standard.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1