ITEMID: 001-106460
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FLISAR v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Mark Villiger
TEXT: 5. The applicant was born in 1968 and lives in Martjanci.
6. At around 10 p.m. on 2 October 2006 the police, having been called, intervened at the home of the applicant’s half-sister P., who had been behaving in a violent and threatening manner towards their mother. The applicant arrived at the scene after the police officers. During the police intervention, P. managed to escape together with her 8-year-old daughter. The applicant and the officers searched for P. In the meantime, she returned alone and refused to disclose her daughter’s whereabouts. The applicant got upset and, according to the police statement, grabbed P.’s neck with one hand and slapped her with the other hand, in the presence of the police officers. He then calmed down and was informed by the officers of the minor offence he had committed. In accordance with the summary procedure under the Minor Offences Act (hereinafter the “MOA”) he was fined 150,000 Slovenian tolars (approximately 625 euros (EUR)) for the offence of violent and aggressive behaviour. In his application to the Court the applicant maintained that he had assisted the officers and had been unjustifiably implicated in the situation.
7. Four days later, the applicant received written notice of the payment order issued by the police, which stated that he had committed a minor offence under section 6(4) of the Protection of Public Order Act and included a statement of facts which read as follows (in its entirety):
“The mentioned [person] was present at the incident involving his half-sister P. at home. Her conduct, insults and aggressive behaviour had upset him and for that reason he grabbed P.’s neck and slapped her across the face. After that act, he calmed down.”
8. On 13 October 2006 the applicant lodged a request for judicial review. He alleged that his sister had been under the influence of alcohol and drugs, and had threatened and offended their mother and other people present, including the police officers. He also explained that P. had taken her child away in the car and had returned without her, refusing for a while to say where she had left her. The applicant and the officers had tried to convince her to disclose the child’s whereabouts but P. had threatened the applicant and spat at him. After being provoked by her, the applicant, fearing for the child, had approached her and gently held her neck but had not slapped her. She had then revealed the whereabouts of the child and one of the officers had gone with her to pick him up. The applicant alleged that he had committed no offence and that he had not slapped P. In accordance with section 63 of the MOA the police forwarded the request for judicial review to the Murska Sobota Local Court.
9. On 26 May 2008 the Murska Sobota Local Court gave a judgment in which, relying on section 65(1) of the MOA, it rejected the applicant’s request for judicial review as unsubstantiated and upheld the payment order. The applicant was ordered to pay EUR 62 for the costs of the proceedings.
10. As explained in the judgment, the court based its decision on the payment order and the statement of facts concerning the event, which the police submitted to the court at the same time as the request for judicial review. The court found as follows:
“the conduct of the defendant towards his sister which was observed by the police officers personally and directly .... was unjustified regardless of her mental and physical state, which therefore leads the court to conclude that this [request for judicial review] is only an attempt at avoiding payment of the fine, since the court has no doubts as to the officers’ findings.”
11. On 23 June 2008 the applicant then lodged a constitutional appeal alleging that his constitutional rights had been violated. He complained, inter alia, of a violation of the right to a fair trial and presumption of innocence, alleged that the judge had decided only on the basis of the police file, that there had been no public hearing, that he had not had enough time to prepare his request for judicial review and that no appeal lay against the first-instance court’s judgment.
12. Relying on section 55b(1)(3), read together with section 55a(2)(4) of the Constitutional Court Act, the Constitutional Court dismissed the appeal on 25 August 2008. The decision was served on the applicant on 30 August 2008.
13. For the relevant domestic law and practice see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011). In addition, the following domestic provisions are relevant to the present case.
14. Section 6 of the Minor Offences Act (Official Gazette no. 7/2003), referred to as the “MOA”, defines an “offence” as any act that is against the law or in breach of a Government regulation or local self-government ordinance, and which is, as such, designated as a punishable minor offence. While the MOA contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence, it also refers to provisions of the Penal Code, which are to be applied by analogy in minor-offence proceedings. In addition, the principle of the presumption of innocence is included in the MOA, which provides in section 7 that “persons accused of having committed minor offences are innocent until their responsibility is established by a final decision”.
15. Under section 57, in cases where an officer observes the commission of the offence, or where the latter is established by special technical equipment, the authority may issue a “payment order” (plačilni nalog). The payment order has the same effect as the authority’s decision. However, the measure of imprisonment for non-payment is not available when the fine was imposed by a payment order.
16. A judge can decide on the admissibility and merits of the request for judicial review on the basis of the file received from the administrative authority. Under section 65 of the MOA, the judge may reject the request in a judgment, if there is no need for further fact-finding and if the grounds for appeal are not established. This is done without hearing the applicant. If the judge finds that the facts were correctly established but that a different sanction should be imposed, he may uphold the request in part and modify the administrative authority’s decision accordingly. If a violation of procedural or substantive law is established or if further fact-finding is required, the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties. In these judicial proceedings, the defendant has a right to be heard orally by the judge, to adduce evidence, to make procedural requests and to appeal against the judgment (sections 67, 69, 90, 114 and 119 of the MOA). Under section 125 of the MAO, the judge can, at his discretion, schedule a public hearing in ordinary judicial proceedings.
17. Section 6 of the Protection of Public Order Act (Zakon o varstvu javnega reda in miru, Official Gazette no. 70/2006, in force since 2 July 2006) reads as follows:
“ (1) Any person who challenges or incites another person to fight, acts dangerously or violently, or insults or offends another person ... shall be punished with a fine of between 60,000 and 120,000 Slovenian tolars (SIT).
(2) A person who hits another person shall be punished with a fine of between SIT 80,000 and 150,000.
(3) The person who engages in a fight shall be punished with a fine of between SIT 100,000 and 300,000.
(4) If an offence listed in subsections (1)-(3) above is committed against ... a blood relative in the direct line ... , the offender shall be punished with a fine of between SIT 150,000 and 300,000 [EUR 625 to 1,251].”
18. The Constitutional Court Act (Zakon o ustavnem sodišču, Official Gazette no. 15/1994, as amended on 30 May 2007, Official Gazette no. 64/2007 – official consolidated version) provides in section 53 as follows:
“(1) A constitutional complaint must state the following:
- the decision which is challenged, the authority which issued it, its
reference number, and the date it was issued;
- the human rights or fundamental freedoms allegedly violated;
- the reasons that support the violations;
- the date on which the claimant was served the decision which he challenges;
- if the claimant is a natural person, the full name of the claimant and the address of his permanent or temporary residence, or, if the claimant is a legal entity, state authority, bearer of public authority, or other legal subject, its name and where it is based, as well as the name and title or position of its representative;
- other information determined by the Rules of Procedure of the Constitutional Court.
(2) The constitutional complaint must be submitted in writing. A copy of the challenged decision and all other decisions that were issued in connection with the challenged decision in proceedings before the competent authorities in the case, as well as the relevant documents on which the constitutional complaint is based, must be enclosed with the complaint.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-139323
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: A. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr A., is a Libyan national, who was born in 1972 and lives in Eindhoven. He was represented before the Court by Mr P.J. Schüller, a lawyer practising in Amsterdam.
2. The applicant is married to a Netherlands national. Three children have been born to the couple, in 2004, in 2006 and in 2008. The children have Netherlands nationality.
3. Mr A. was also the applicant in the case of A. v. the Netherlands (no. 4900/06). The following is taken from the Court’s admissibility decision in that case, adopted on 17 November 2009, and its judgment, delivered on 20 July 2010.
4. In his native Libya the applicant opposed the regime of Colonel Muammer Gaddafi, which at that time held power there.
5. The applicant entered the Netherlands in 1997 and applied for asylum. He was met with a refusal. He exhausted the available domestic remedies without success. In the course of the domestic proceedings secret intelligence reports were prepared by the intelligence and security service, the National Security Service (Binnenlandse Veiligheidsdienst – “BVD”) and its successor, the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst – “AIVD”). Details are provided in the Court’s judgment A. v. the Netherlands, no. 4900/06, §§ 8-62, 20 July 2010.
6. The applicant was one of twelve individuals tried in Rotterdam as members of an organisation suspected of, among other things, recruiting Muslim militants for jihad (Islamic holy war) against countries including the Netherlands. The “Rotterdam jihad trial”, as the proceedings were dubbed, attracted considerable media attention and the applicant’s identity became known. The applicant and his co-accused were acquitted of all charges on 5 June 2003, after the trial court had excluded evidence based on secret intelligence withheld from the defence.
7. On 4 November 2005, the Minister for Immigration and Integration (Minister voor Immigratie en Integratie) imposed an exclusion order (ongewenstverklaring; section 67 of the Aliens Act 2000 (Vreemdelingenwet 2000), see paragraph 33 below) on the applicant on the ground that he constituted a threat to national security. As a consequence of this decision, the applicant could no longer be lawfully resident in the Netherlands and was subject to expulsion. The decision itself was based largely on secret intelligence not disclosed to the applicant.
8. The applicant lodged an objection (bezwaar) against this decision, which the Minister for Immigration and Integration rejected on 7 April 2006. The applicant appealed (beroep) to the Regional Court (rechtbank) of The Hague, which dismissed the appeal on 5 March 2007. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Administrative Jurisdiction Division”), which was rejected on summary reasoning on 15 May 2007.
9. The applicant lodged an application (no. 4900/06) with the Court. As relevant to the present case, the applicant complained that his expulsion to Libya, if effected, would violate his rights under Article 3 of the Convention.
10. In its judgment of 20 July 2010 (no. 4900/06, A. v. the Netherlands), the Court held as follows (paragraph references omitted):
“145. The applicant fears detention and ill-treatment in Libya on account of his political opposition activities, and the nature of the charges for which he had been tried in the Netherlands and which trial had been widely reported in the media.
146. The Court observes from the materials in its possession and the materials submitted by the parties that the overall human-rights situation in Libya continues to give rise to serious concerns. Where it concerns the position of persons detained in Libya, materials from both governmental and nongovernmental sources indicate the existence of a real risk for detainees in Libya to be subjected to torture and/or ill-treatment (...) which – according to the most recent report of the USA Department of State – are said to occur routinely (...).
147. As to the risk that the applicant will be detained if expelled to Libya, the Court notes that, in the applicant’s own submissions, the opposition group for which he had been active had started having problems with the Libyan regime as from late 1992 or early 1993 whereas he had not encountered any problems from the side of the Libyan authorities when he left Libya at the end of 1994 via an official border crossing-point, holding his own authentic passport. As apparently persons leaving or entering Libya are subjected to strict controls by border control officials, the Court considers that in these circumstances it has not been established that the applicant had attracted the negative attention of the Libyan authorities on account of his alleged opposition activities prior to his departure from Libya.
148. Where it concerns the risk of the applicant being detained in Libya for having stood trial in the Netherlands on suspicion of involvement in an Islamic extremist network active in the Netherlands, the Court notes that the applicant was acquitted in these proceedings. However, these criminal proceedings attracted considerable media attention and the applicant’s name and nationality were disclosed in several printed media reports. The Court also notes that on 9 November 2005, shortly after the prosecution had withdrawn its appeal against the applicant’s acquittal in the criminal proceedings, the Libyan mission in the Netherlands was informed by the Aliens Police Department [Vreemdelingenpolitie] that the applicant had been placed in aliens’ detention [vreemdelingenbewaring] for removal purposes.
149. The Court further notes that, according to reports of the Netherlands Ministry of Foreign Affairs and the United States Department of State, the Libyan authorities oppose militant forms of Islam and that, according to information gathered by the Dutch Refugee Council [i.e. Vereniging VluchtelingenWerk Nederland], the Libyan authorities often have a good insight in the activities and contacts of Libyans abroad. Against this background and the strict controls of persons seeking to enter Libya, the Court considers it sufficiently plausible for the purposes of Article 3 of the Convention that the applicant would be identified and detained for questioning after his arrival in Libya entailing a real risk of being subjected to treatment in violation of Article 3 at the hands of the Libyan authorities.
150. In view of the above, the Court considers that substantial grounds have been shown for believing that the applicant would face a real risk of treatment proscribed by Article 3 of the Convention if expelled to Libya. Given this finding, the Court does not find it necessary to examine the remaining issues raised by the applicant under this provision.
151. The Court finds therefore that, in the circumstances of the present case, the applicant’s expulsion to Libya would breach Article 3 of the Convention.”
11. The regime of Colonel Muammer Gaddafi was overthrown in August 2011. On 20 October 2011 Colonel Gaddafi himself was captured and killed. The National Transitional Council, the internationally recognised interim authority, declared the country liberated three days later.
12. Libya is now governed under a transitional constitution, the Constitutional Declaration, which was promulgated on 3 August 2011. According to Article 1 of this document, Libya is an independent democratic state in which power derives from the people; Islam is the state religion; and sharia (Islamic law) is the principal source of legislation. Article 4 provides that Libya shall be a multi-party democracy.
13. Parliamentary elections were held in July 2012. The Libyan parliament, the General National Congress, was sworn in on 8 August 2012.
14. The facts of the present case, as submitted by the applicant, may be summarised as follows.
15. After the Court had given its judgment of 20 July 2010, the applicant asked the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry of Justice (Ministerie van Justitie; renamed Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) after 14 October 2010) to reconsider the applicant’s exclusion order. He questioned, in particular, the relevance of the secret intelligence which was by then several years old. He also submitted information on his family life, in particular the state of health of his wife who suffered from post-traumatic stress disorder as a result of police raids on the couple’s home carried out in 2002 and 2003 to arrest the applicant.
16. On 1 November 2010 the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel, by this time the successor to the Minister for Immigration and Integration) wrote to the applicant’s counsel informing him of his refusal to have the secret intelligence report on the applicant, which dated from 2005, updated by the AIVD.
17. On 10 November 2010 the Minister for Immigration, Integration and Asylum Policy gave his decision.
18. The Minister noted that the applicant was not yet entitled to the lifting of the exclusion order in any case, since he had not spent at least ten consecutive years outside the Netherlands. There was accordingly no need to have the secret intelligence report updated. He referred in this connection to the Court’s judgment of 20 July 2010, in which it had been held that the decision to deny the applicant the status of refugee as well as the decision to impose an exclusion order on him did not, as such, concern a right or freedom guaranteed under the Convention (loc. cit., § 153) and also that the secret intelligence report and the underlying materials did not, as such, concern the applicant’s fear of being subjected to ill-treatment in Libya but only whether he was posing a threat to Netherlands national security (loc. cit., § 160).
19. The fact that Article 3 of the Convention prevented the applicant’s expulsion to his country of origin did not affect the exclusion order. An alien subject to such an order was under an obligation to leave the country. Only if the alien was able to prove that Article 3 of the Convention constituted a durable obstacle to his return, and that there was no other foreign country where he could settle, and that in the individual case the exclusion order was disproportionate, could the exclusion order be lifted at the alien’s request. The applicant had failed to seek refuge in any foreign country and had failed to explain why he could not travel to countries other than Libya where he had spent time earlier.
20. The secret intelligence report, which dated from 9 February 2005, was still sufficiently up-to-date and determinative of danger to justify the exclusion order. The applicant’s family life did not make any difference. The pertinent information, including the reports on the medical state of the applicant’s wife, had already been known at the time of the appeal against the exclusion order itself and did not, therefore, constitute relevant new facts; nor was the subsequent birth of two further children justification for making an exception. The refusal to lift the exclusion order was therefore not contrary to Article 8 of the Convention.
21. The applicant lodged an objection (bezwaar) against the Minister’s decision.
22. In addition, the applicant applied to the Regional Court of The Hague for a provisional measure (voorlopige voorziening).
23. The objection was dismissed by the Immigration and Naturalisation Service on 24 March 2011, on behalf of the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties).
24. The applicant lodged an appeal with the Regional Court of The Hague.
25. On 23 December 2011 the Regional Court of The Hague, sitting in ‘s-Hertogenbosch, gave its decision. It found that the Court’s judgment of 20 July 2010 did not of itself require the exclusion order to be revisited. However, the exclusion order had been based on the assumption that the applicant could return to Libya, which assumption had been found by the Court to be incorrect; this meant that the decision of 24 March 2011 would have to be overturned. The matter had now to be reviewed in the light of the fact that the applicant was prevented by operation of Article 3 of the Convention from returning to Libya.
26. The Regional Court first went into the question whether the original exclusion order could stand. In this connection, it held that an exclusion order required the person concerned to leave the Netherlands of his or her own accord, whether to his or her country of origin or to another country. The applicant had failed to establish that there was no country other than Libya for him to settle. He had likewise failed to establish that there was no country other than Libya to which his wife and children could, or would, follow him. This meant that the Minister of the Interior and Kingdom Relations could reasonably argue that the exclusion order would have been given even if it had been known at the time that the applicant could not return to Libya.
27. The Regional Court then considered whether the Minister of the Interior and Kingdom Relations had acted reasonably by failing to lift the exclusion order. It noted in this connection that the applicant had clearly not met the requirement of ten consecutive years’ residence abroad. Since the applicant had not established that Article 3 of the Convention constituted a durable obstacle to his return to Libya – “durable” meaning that it prevented the applicant’s expulsion to that country for a period of ten years – and that there was no other foreign country for him to settle, the Minister of the Interior and Kingdom Relations had been entitled in reason to consider that the impossibility of expelling the applicant to Libya did not require the exclusion order to be lifted.
28. Since Article 8 of the Convention had been taken into consideration in the proceedings concerning the exclusion order itself, the question now was whether there had been any relevant changes in the applicant’s situation requiring the Netherlands State to allow him to exercise his family life in the Netherlands. Taking the view that the birth of two more children since the end of the first set of proceedings changed nothing in principle, the Regional Court found none.
29. The Regional Court accordingly overturned the decision of 24 March 2011 (see paragraph 25 above) but left its legal consequences in place.
30. In a simultaneous but separate decision, the Regional Court dismissed the applicant’s application for a provisional measure (see paragraph 22 above) as manifestly ill-founded.
31. The applicant lodged an appeal with the Administrative Jurisdiction Division.
32. On 17 June 2013 the Administrative Jurisdiction Division gave a decision dismissing the appeal on summary reasoning.
33. Section 67 of the Aliens Act 2000 (Vreemdelingenwet 2000) provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to national security. An exclusion order entails a ban on residing in or visiting the Netherlands.
34. Exclusion orders, as well as expulsion orders, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act (Algemene wet bestuursrecht). Such appeal proceedings do not have an automatic suspensive effect.
35. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands in the knowledge that he or she is subject to an exclusion order commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 4,500 euros.
36. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (section 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.


ITEMID: 001-80492
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SIRMANOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Vilation of Art. 6-1;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. In a judgment of 8 February 1990 the Pleven Military Court convicted the applicant of a criminal offence, which had been, according to this court, committed during the applicant's probationary period after his early release from prison, and sentenced him, inter alia, to serve the remainder of the sentence from his prior conviction, which the applicant did, between 21 December 1989 and 20 March 1990. In a judgment of 16 May 1994 the Supreme Court quashed that judgment and ruled that the applicant should not have served the remainder of his prior prison sentence.
5. In 1998 the applicant brought proceedings against the Pleven Military Court under section 2(6) the State Responsibility for Damage Act (see paragraph 16 below), seeking 25,0000,000 old Bulgarian levs (BGL) as compensation for the time he had spent in custody between 21 December 1989 and 20 March 1990.
6. In a judgment of 7 June 1999 the Pleven Regional Court found that the applicant's deprivation of liberty during that period had been unlawful within the meaning of above-mentioned provision and awarded him BGL 1,000,000 in nonpecuniary damages, together with interest at the statutory rate, from 21 December 1989 until the final settlement of the judgment debt. It dismissed the remainder of the applicant's claim.
7. As none of the parties appealed, the judgment entered into force on 17 June 1999.
8. The applicant obtained a writ of execution against the Pleven Military Court on 17 June 1999. On the same date he presented it to the chairperson of that court for payment. The chairperson made a copy of the writ and returned the original to the applicant.
9. As no payment was made, the applicant complained to numerous State agencies and bodies.
10. In a letter of 14 September 1999 the Inspectorate of the Ministry of Justice informed the applicant that the amount owed to him was BGL 6,128,316. Since this was a significant amount for the budget of the Pleven Military Court, the chairperson of that court had made an express request for funding before the Supreme Judicial Council – the body responsible for managing the judiciary's budget. The debt would be paid fully or in part, depending on the amount of the available funding.
11. On 17 April 2000 the applicant asked the Pleven Regional Court to issue him a duplicate of the writ of execution, because the original had been stolen. His request was examined at a hearing on 16 June 2000 and the duplicate was issued on 9 August 2000.
12. In the meantime, on 23 May 2000, the Supreme Judicial Council allotted to the Pleven Military Court 1,000 new Bulgarian levs (BGN) with a view to paying the debt towards the applicant. On 1 June 2000 the Pleven Military Court paid the applicant BGN 1,000, apparently intended to be imputed to the principal of the debt. However, the remainder of the debt remained outstanding.
13. The applicant subsequently complained to various authorities, such as the President of the Republic, the Supreme Cassation Prosecutor's Office, the Ministry of Finance and the Supreme Judicial Council. In a letter of 8 June 2000 the chief secretary of the Supreme Judicial Council informed the applicant that the processing of the payment had been delayed because the amount due was not a usual line item in the judiciary's budget and had to be specifically allotted to the Pleven Military Court.
14. In a further letter of 7 December 2000 the administration of the Supreme Judicial Council informed the applicant that on 29 November 2000 the chairperson of the Pleven Military Court had apprised the Council that the court lacked funding to pay the remainder of the debt towards the applicant and had requested an increase of its budget appropriation for 2001.
15. On 24 September 2003 the accountant of the Pleven Military Court paid the applicant the remainder of the judgment debt (BGN 5,262.01) and the applicant signed a declaration that he had received the amount and had no further claims against the court or the Supreme Judicial Council.
16. Section 2 of the State Responsibility for Damage Act of 1988 (formerly „Закон за отговорността на държавата за вреди, причинени на граждани“, presently „Закон за отговорността на държавата и общините за вреди“), which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts, provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:
...
6. execution of a sentence above and beyond the specified period.”
17. By paragraph 2 of Article 399 of the Code of Civil Procedure of 1952, a person who has an enforceable pecuniary claim (e.g. a judgment debt) against a state authority receives payment out of the funds earmarked for that purpose in the authority's budget.
18. The writ of execution evidencing the claim must be submitted to the authority's financial department. If there are no funds available in the authority's budget, the higher administrative authority has to ensure that funds become available in the budget for the following year.
19. Enforcement proceedings are not possible where the judgment debtor is a state authority. Until December 1997 paragraph 1 of Article 399 of the Code contained an express prohibition to that effect. Although this provision was repealed in December 1997, the legal framework remained unchanged, as paragraph 2 of Article 399 was not amended.
20. Section 66 of the Obligations and Contracts Act of 1950 („Закон за задълженията и договорите“) provides that the creditor is not bound to accept partial payment even if the obligation is severable. Section 76(2) of that Act provides that when a payment by the debtor is not sufficient to extinguish the interest, the expenses and the principal of the debt, the money paid is imputed first to the expenses, then to the interest, and at the end to the principal. This rule is in the interest of the creditor (реш. № 748 от 24 април 2001 г. по гр.д. № 2504/2000 г., V г.о. на ВКС) and reflects the idea that he or she should not be deprived of an interestbearing debt and remain only with the claim in respect of the interest (реш. № 6 от 6 януари 1956 г. по гр.д. № 7963/1955 г., I г.о. на ВС).


ITEMID: 001-67103
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF YORGIYADIS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 4. The applicant, Ms Efrosini Yorgiyadis, was born in 1964 and lives in Istanbul.
5. On 25 October 1982 by signing a contract of adoption before a notary public in Bakırköy, Semiramis Gradlekova adopted the applicant. Semiramis Gradlekova died on 18 November 1982. The applicant was left as the only legal heir to her property.
6. On 17 May 1983 the Treasury filed an action with the Şişli First Instance Court in Civil Matters requesting the annulment of the above-mentioned contract of adoption. The Treasury alleged that the contract did not comply with the necessary requirements and was not therefore a valid contract of adoption. They requested that Mrs Gradlekova's property be transferred to the State.
7. On 3 August 1983 the public prosecutor filed an indictment with the Bakırköy Assize Court accusing the applicant and four other persons of fraudulent misrepresentation and forgery.
8. On 10 October 1983 experts in handwriting analysis produced a report in which they concluded that the signature of Semiramis Gradlekova appearing on the contract of adoption was authentic. The applicant submitted this report to the Şişli First Instance Court in Civil Matters. The court requested the opinion of another group of experts. On 27 November 1985 the second group of experts confirmed the findings contained in the first report.
9. On 17 December 1986 the Şişli First Instance Court in Civil Matters held that the contract satisfied the necessary requirements of a valid contract of adoption and rejected the Treasury's claims.
10. The Treasury appealed. On 20 December 1987 the Court of Cassation quashed the decision of the Şişli First Instance Court. It held that the first-instance court should have adjourned the examination of the case pending the decision of the Bakırköy Assize Court in the criminal proceedings. The applicant requested rectification of the Court of Cassation's ruling. On 17 October 1988 the Court of Cassation rejected her request.
11. On 21 April 1989 the Şişli First Instance Court in Civil Matters decided not to follow the decision of the Court of Cassation. The Treasury lodged an appeal with the Joint Civil Chambers of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), which quashed the decision of the Şişli First Instance Court in Civil Matters on 21 February 1990.
12. On 4 February 1991, at the request of the Bakırköy Assize Court, the Forensic Medicine Institute drew up a report which concluded that the signature of Semiramis Gradlekova on the contract of adoption was authentic. However, in a further report dated 28 August 1991 the Forensic Medicine Institute noted that its examination of 4 February 1991 had been based on a comparison between the signature of Semiramis Gradlekova on the contract of adoption and her signature on documents submitted in furtherance of her request for permission to draw up and conclude a contract of adoption. The examination of other materials bearing the signature of Semiramis Gradlekova revealed in fact that the signature on the contract of adoption was not her signature.
13. On 13 May 1992 five experts from the Forensic Medicine Institute prepared another report. According to the experts, the signature of Semiramis Gradlekova on the contract of adoption was not authentic.
14. The applicant sought the opinion of another group of handwriting experts. On 20 May 1993 the experts, a graphologist and two professors, finalised their analysis and drafted a report. According to the experts, the reports submitted by the Forensic Medicine Institute experts were contradictory. In their opinion, the signature of Semiramis Gradlekova on the contract of adoption was genuine.
On 16 July 1993 the Bakırköy Assize Court requested the Forensic Medicine Institute to clarify whether or not the signature of Semiramis Gradlekova on the contract of adoption was authentic. On 10 August 1993 seven experts belonging to the Forensic Medicine Institute, having considered the findings contained in the previous expert reports, concluded that the signature of Semiramis Gradlekova on the contract of adoption was authentic. Five of the experts who signed this report had also signed the report dated 13 May 1992.
15. On 6 September 1993, after requesting several reports from different handwriting experts and from the Forensic Medicine Institute, the Bakırköy Assize Court decided to discontinue the proceedings against the applicant and her co-accused on the ground that the offences of which they were charged had become time-barred since a period of ten years had elapsed since the date of the charges. The court further held that, having regard to the apparent inconsistency between the two reports of the Forensic Medicine Institute dated 13 May 1992 and 10 August 1993, the Bakırköy Public Prosecutor should open criminal proceedings against the five experts who had signed both reports.
16. The applicant lodged an appeal against the decision of the Bakırköy Assize Court. On 7 June 1994 the Court of Cassation rejected the applicant's appeal.
17. On 15 December 1994 the Şişli First Instance Court in Civil Matters held that the expert reports had established that the Treasury had failed to substantiate the allegations of forgery and thus rejected their claim. The Treasury appealed. On 20 April 1995 the Court of Cassation quashed the decision of the Şişli First Instance Court in Civil Matters.
18. On 18 April 1996 the Şişli First Instance Court in Civil Matters decided not to follow the decision of the Court of Cassation. The Treasury lodged an appeal with the Joint Civil Chambers of the Court of Cassation. On 12 March 1997 it quashed the decision of the Şişli First Instance Court in Civil Matters.
19. On 9 December 1997 the Şişli First Instance Court in Civil Matters decided to abide by the decision of the Joint Civil Chambers of the Court of Cassation. On 7 May 1998 the Court of Cassation upheld the decision of the Şişli First Instance Court in Civil Matters.
20. On 15 November 1998 the Court of Cassation rejected the applicant's request for rectification of the judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5552
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SIEWERT v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish citizen, born in 1932, residing in Krakòw.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The facts of the case
During the Second World War the applicant and her mother lived near Łódź. The applicant’s mother was of German origin. Before the war she did not have any citizenship. Later on, during the war, she obtained German citizenship and was put on the “Volkslist”.
In April 1945 the applicant and her mother were arrested and detained in prison in Warsaw. While detained, the applicant worked with other prisoners, clearing the streets of Warsaw of rubble. When the applicant was released in September 1945, she was informed that her mother had died during her detention.
On 17 July 1990 the applicant requested the Main Commission on Research on Crimes Against the Nation to institute criminal proceedings concerning her and her mother’s detention in 1945. Apparently, on 25 October 1990 the Kraków regional branch of the Commission questioned the applicant in respect of the circumstances of her and her mother’s detention and her mother’s death.
In a letter to the applicant dated 30 November 1990 the commission stated that the acts of the agents of the communist regime towards her and her mother were indeed deplorable. The applicant was requested to accept sincere apologies. She was further informed that due to prescription it was now impossible to institute criminal proceedings in order to identify persons responsible for these acts. However, legislative amendments were under way such as to allow the victims of the communist persecution to seek moral and pecuniary satisfaction for their sufferings.
On 8 August 1996 the commission declared that it lacked competence to investigate the applicant’s case and later on, transmitted it to the Łódź Regional Prosecutor.
In a letter of 21 August 1996 the commission informed the applicant that on 12 July 1995 amendments to the Criminal Code had been adopted, according to which certain crimes were not any more subject to prescription. Accordingly, it became possible to investigate the applicant’s case. However, the commission lacked competence to do so as its task was to investigate cases of war crimes and crimes against humanity. Thus, it was outside its jurisdiction to investigate the individual case of a twelve-year-old child detained in a labour camp.
On 17 December 1996 the documents concerning the applicant and her mother’s case were submitted, through the office of the Regional Prosecutor, to the Łòdź District Prosecutor.
In May 1997 the Łòdź District Prosecutor discontinued the investigations of the applicant’s complaints. It was established that the applicant and her mother, who was of German origin, had during the war been put on the so-called “Volkslist”, a list of persons who acknowledged their German nationality. In April 1945 both the applicant’s mother and the applicant had been arrested. Subsequently they had been transported to Warsaw, to Mokotów prison at Rakowiecka Street, and afterwards, after two months of detention, they were put in another Warsaw prison, serving also as labour camp, known as “Gęsiówka”. Upon her release in September 1945 the applicant was informed that her mother had died in prison.
The prosecutor went on to state that the authorities responsible for the applicant’s detention had breached all applicable laws in that none of the provisions in force at that time, concerning punitive and criminal measures in respect of persons who had accepted German citizenship during the war or had otherwise collaborated with the occupants, provided for detention or allowed for any other punitive measures to be taken in respect of children under fourteen years of age. Certain measures set forth by the Military Criminal Code then in force could be applied to persons older than thirteen, whereas the provisions of the Decree on Exclusion of Persons Guilty of Betrayal of the Nation could only be applied to persons older than fourteen. However, all investigative measures undertaken by the prosecuting authorities in order to identify persons and authorities responsible for the applicant’s unlawful persecution, had failed. The prosecution authorities had submitted a number of requests concerning the applicant's imprisonment to: the archives of the Main Commission on Research on Crimes Against the Nation, the archives of the Łódź Regional Court and the Regional Prosecutor, the State Archives in Łódź and in Warsaw, the Bureau of the State Security, the Central Prison Administration, and the Central State Archives of New Documentation. Despite these efforts, the identity of persons responsible for the decision to put the applicant and her mother in detention could not be established. The applicant’s name was not to be found in the incomplete archives of the Rakowiecka Prison or of the so-called Central Labour Camp in Warsaw. Therefore the prosecuting authorities, having exhausted all available investigative measures, had to discontinue the proceedings.
By a letter of 19 January 1998 the office of the Ombudsman informed the applicant that in reply to her query they had requested the Director of the Private Office of the Minister of Justice to suggest an available legal procedure by way of which she could seek compensation for her unlawful detention in 1945.
In a letter of 27 February 1998 the Łódź Appellate Prosecutor informed the applicant, in reply to her complaint about the outcome of the investigations which she had submitted on 13 September 1997 to the Ombudsman, that the decision to discontinue the investigation was justified. This conclusion was supported by a thorough analysis of the case-file, which in particular did not give any ground for the view that the prosecuting authorities had been acting negligently or superficially. The first-instance prosecutor had found that the offence of unlawful deprivation of liberty had clearly been committed in the applicant’s case, as shown by documents of the former Ministry of Public Security, found in the State Archives. The file No. 5/11, containing, inter alia, a list of prisoners for 1 May 1945, had confirmed that the applicant had been at that time detained in Mokotów prison at Rakowiecka Street. It was true that the decision of 27 May 1997 had failed to indicate detailed findings made in respect of the applicant’s detention and to refer to concrete documentary evidence. However, there was nothing to show that the decision was, on the whole, unjustified. As regards the issue of compensation for the unlawful detention, the prosecuting authorities had no competence to examine it within the framework of their investigations.
In a further letter of 2 March 1998 the Łódź Appellate Prosecutor informed the applicant, in reply to her query about the possibility to obtain, under existing laws, compensation for her detention in 1945, that, regrettably, the laws in force did not offer any prospects of success. Persons seeking compensation for unlawful detention could submit their claims either under Chapter 50 of the Code of Criminal Procedure of 1969, or under the provisions of the Civil Code governing liability in tort. However, in the applicant’s case all substantive and procedural time-limits for lodging of such claims had expired long before.
The applicant twice, by letters of 10 March and 21 May 1998, disagreed with the opinion expressed in the letter of 2 March 1998. In reply, the Appellate Prosecutor confirmed his position in the letter of 26 May 1998.
In a letter of 8 July 1998 the Ministry of Justice informed the applicant, in reply to her complaint about the decision to discontinue the investigations, that her complaints were unfounded. The contested decision and the following letters of the Apellate Prosecutor contained detailed arguments in support of the decision to discontinue the investigations.
B. Relevant domestic law
Chapter 50 of the Code of Criminal Procedure of 1969 provided in Article 487 § 4 for compensation regarding damages arising out of obviously unjustified detention on remand and for arrest and detention up to 48 hours. The Regional Court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed to the Court of Appeal.
inter alia, the decision of the Supreme Court no. II KRN 124/95, 13.10.1995, published in OSNKW 1996/1-2/7).
Chapter 58 of the Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, provides for a request for compensation for, inter alia, unjustified detention. Article 552 § 4 of the Code is currently an equivalent of Article 487 § 4 of the Code of 1969.


ITEMID: 001-103232
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KHARIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1-e;Remainder inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1973 and lives in Arkhangelsk.
7. According to the Government, in the evening of 11 October 2001 the Oktyabrskiy District police station received an emergency call from a local shop. Police officers were sent to the shop to investigate. On their arrival a shop security guard, Mr G., informed the police officers that a drunken man, who was subsequently identified as the applicant, was using offensive language and shouting in the shop, not responding to reprimands and disturbing the work of the shop. The Government provided written statements made by Mr G. and Ms V., a shop assistant, on 14 May 2005. The statements, in so far as relevant, read as follows:
“In the autumn of 2001 (October) I was on duty in the shop... At approximately 9 p.m. a man, who was drunk, entered the shop and went to the department of the shop selling beverages. Subsequently he had an argument with a shop assistant, Ms V. I do not know the reason behind the argument. Ms V. asked me to calm the man down. When [the man] entered the sales area, he, being drunk, shouted loudly, using offensive language.
Handwritten by me.”
“In the autumn of 2001 (I do not remember the date), in the evening...., an unknown man entered the shop and, despite the fact that he was already drunk, began demanding that I sell him alcoholic beverages, and, his request being refused, he began using offensive language, offending shop assistants [and] disturbing the functioning of the shop; I applied to the guard in the shop [Mr G.] for assistance. [Mr G.] escorted the man from the shop; however, several minutes later the man returned and began harassing the shop guard [Mr G.], using offensive language, shouting that he would fire the shop staff; subsequently [Mr G.] pressed an emergency button and police officers arrived; [they] escorted the man from the shop and arrested him.”
8. The applicant was taken to a sobering-up centre of the Arkhangelsk Town Police Department. An officer on duty at the sobering-up centre drew up medical report no. 22. The report, provided to the Court by the Government, consisted of a one-page printed template, in which the dates, the officer's and applicant's names, the applicant's personal data and circumstances surrounding his arrest were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics):
“The arrestee was discovered in an intoxicated state... by a police patrol at 9.20 p.m. in the street ... near the house.
The drunken [person] exhibited the following [behaviour] at the place of his arrest strong smell of alcohol, shaky walk, scrambled speech, disorientation in time.
A medical assistant, Ms S., performed a medical examination, during which a moderate state of intoxication was identified. Symptoms (which must be underlined): smell of alcohol on the breath, excited behaviour, aggressive language, blurred vision, blood pressure was not measured, pulse was not measured, shaky gait, weak legs, impaired movement coordination....
Also established during the medical examination: Conscious when admitted [to the sobering-up centre]. Mydriatic pupils. [the remaining handwritten text is illegible]”
The report was signed by the officer on duty, the two police officers who had escorted the applicant to the sobering-up centre, Mr Sa. and Mr Ve., and the medical assistant, Ms S. In addition, the two escorting police officers made a note in the report alleging that the applicant was aggressive and that he had tried to initiate a fight. The applicant refused to sign the report.
9. At the centre the applicant's hands were tied to a bed with “soft ties” because he “had behaved aggressively and gestured actively”. He remained tied up for about an hour.
10. On 12 October 2001, at about 9.40 a.m., the applicant was released from the centre and brought to the Oktyabrskiy District Police Department where a report on an administrative offence was drawn up. The report indicated that the applicant had committed an offence under Article 158 of the RSFSR Code on Administrative Offences. It stated that the applicant had been arrested by the police on 11 October 2001 because he had been drunk, used foul language in a public place, thereby disturbing public order.
11. The applicant was ordered to pay 150 Russian roubles (RUB, approximately six euros) “for medical assistance provided in the sobering-up centre”.
12. On 19 October 2001 the police officers, Mr Sa. and Mr Ve., wrote similar reports to the head of the sobering-up centre, describing the circumstances of the applicant's arrest and placement in the centre. According to the police officers, in response to their request to board a police car, the applicant, who had been in a moderate state of alcohol intoxication, had started waving his hands about, using offensive language and throwing his bag around. After he had been placed in the police car, he had attempted to break metal bars and had banged on the door. He had also behaved aggressively in the sobering-up centre, waving his hands about and attempting to start a fight. Soft ties had been applied to him for a short period of time. According to the report, on admission to the centre the applicant did not have any money.
13. On the same day a deputy head of the sobering-up centre drew up a report, stating that on 11 October 2001, in the street near a house, a police patrol car had found the applicant, who was in a moderate state of alcohol intoxication. The deputy head provided the following description of the subsequent events. The applicant had been brought to the sobering-up centre where a medical assistant, Ms S., confirmed that he was moderately drunk. After the applicant had been asked to go into a room he had resisted, trying to initiate a fight with an officer, had acted aggressively and had used offensive language. The applicant had been tied to a bed with soft tissues for no longer than an hour and had calmed down.
14. Two days later the medical assistant, Ms S., wrote an explanatory statement addressed to the head of the sobering-up centre. The statement read as follows:
“On 11 October 2001, at 10.30 p.m., [the applicant], who was in a state of alcohol intoxication, was brought to the duty unit of the sobering-up centre. [The state of intoxication was determined] on the following grounds: strong smell of alcohol on the breath, barely able to stand, unsteady walk. Coordination was impaired. Speech was blurred. The face and whites of the eyes were bloodshot, [the applicant] could not do coordination exercises and was unsteady in the Romberg position (standing upright with eyes closed). [The applicant] was asked to undress for a further medical examination. [He] acted aggressively, waved his hands about, attempted to start a fight, and began swinging his bag around. [He] refused to undress voluntarily and was forced to undress; [he] refused to go to a room to rest. Soft ties were applied to him from 10.30 to 11.30 p.m. to prevent damage to him and other individuals. During that [hour] the ties loosened up. On a number of occasions while he was in the sobering-up room he knocked and asked to be released and said that he was being detained unlawfully. On his release he did not make any complaints, [he] refused to sign [the report] insisting that on his admission [to the sobering-up centre] he had had money with him. He was given back personal belongings in compliance with the list which had been drawn up on his admission.”
15. The applicant asked the Arkhangelsk Town Prosecutor's office to institute criminal proceedings against officials of the sobering-up centre, claiming that they had unlawfully seized more than RUB 8,000 from him.
16. On 26 October 2001 a senior assistant to the Arkhangelsk Town Prosecutor dismissed the applicant's complaint, finding that there was no case to answer. The senior assistant concluded that there was no evidence in support of the applicant's allegation that he had had money on him before his admission to the sobering-up centre.
17. The applicant lodged a complaint with the Oktyabrskiy District Court seeking annulment of the decision of 26 October 2001. In addition, he brought a complaint with the Lomonosovskiy District Court of Arkhangelsk against the sobering-up centre of the Arkhangelsk Town Police Department. While not disputing that on 11 October 2001 he had been under the influence of alcohol, the applicant claimed that he had been arbitrarily detained in the sobering-up centre on the basis of an internal regulation adopted by an order of the Ministry of Interior. He further argued that he had been ill-treated at the centre as the police officers had forced him to stay in a very painful position known as “the swallow” [ласточка]. In addition, the applicant alleged that he had been forced to pay for medical assistance although such assistance was never provided.
18. On 29 October 2002 the Lomonosovskiy District Court dismissed the applicant's complaint against the sobering-up centre. It grounded its findings on medical report no. 22 drawn up in the centre on 11 October 2001 and statements by the medical assistant, Ms S., the police officer, Mr V., who had escorted the applicant to the centre, and the head of the centre. The District Court found as follows:
“By virtue of paragraph 18 of [the Regulations on Medical Sobering-up Centres at Town (District) Police Stations], approved by Order no. 106 of the USSR Ministry of Interior on 30 May 1985, individuals in a state of alcohol intoxication (moderate or severe) who are in streets, public gardens, parks, stations, airports and other public places, are taken to medical sobering-up centres if their appearance offends human dignity and public morals.
Due to the fact that [the applicant] was in a moderate state of alcohol intoxication, and his appearance – his walk was unsteady, he had a hard time keeping himself upright, he talked incoherently, he reeked of alcohol - offended human dignity and public morals, officials of the sobering-up centre had the right to take him to the sobering-up centre and keep him there until he sobered up.
...
By virtue of paragraph 9 of [the Instruction on Provision of Medical Assistance to Persons Brought to Medical Sobering-up Centres] a medical assistant ... should determine the period necessary for an individual to sober up; however it should not exceed twenty-four hours.
As follows from the case file materials [the applicant] was detained in the medical sobering-up centre from 10.30 p.m. on 11 October to 9.40 a.m. on 12 October 2001, which is no longer than twenty-four hours. ”
The District Court also held that the payment for medical assistance had been lawful and that the applicant had paid the sum of RUB 150 voluntarily. It did not address the alleged disappearance of cash.
19. The applicant appealed against the judgment of 29 October 2002. In his statement of appeal he complained that he had been unlawfully detained against his will, that the District Court had grounded its judgment solely on statements by the officials of the sobering-up centre and that his unsteady walk and incoherent speech before his detention in the sobering-up centre had not posed a threat to anyone, including himself.
20. On 3 March 2003 the Arkhangelsk Regional Court upheld the judgment of 29 October 2002, endorsing the reasons given by the Lomonosovskiy District Court.
21. On 5 December 2003 the Oktyabrskiy District Court quashed the assistant prosecutor's decision of 26 October 2001 and sent the case for an additional inquiry, noting that the assistant prosecutor had failed to question the applicant in relation to his complaint about the money allegedly seized in the sobering-up centre.
22. Two weeks later a deputy Oktyabrskiy District Prosecutor closed the additional inquiry, noting that it was impossible to question the applicant. According to the deputy prosecutor, the applicant had not responded to summons sent by the prosecutor's office on a number of occasions. Moreover, police officers who had been sent to his place of residence could not find him. The applicant was served with a copy of the decision. No appeal followed.
“Minor disorderly acts, that is utterance of obscenities in public places, abusive solicitation and other similar acts that breach the public order and peace, - shall be punishable with a fine of 10 to 15 minimum wages or with correctional works for one to two months compounded with withholding of 20% days.”
23. The relevant provisions of the Regulations on Medical Sobering-up Centres read as follows:
“18. Persons in a state of alcohol intoxication who are in streets, public gardens, parks, stations, airports and other public places, are taken to medical sobering-up centres if their appearance offends human dignity and public morals or if they have lost the ability to walk unaided or could cause damage to others or to themselves ...
...
44. Once the person placed in a medical sobering-up centre has sobered up completely, a doctor shall examine him for the second time and give an opinion on the possibility of his release. The period for holding a person in a sobering-up centre shall, in any event, be no shorter than three hours, but no longer than twenty-four hours ...”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-76712
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YAVORSKAYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1941 and resides in the village of Grodovka, Donetsk region, Ukraine.
6. The applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover salary arrears and other payments due to her.
7. On 2 August 2001 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded her UAH 2,048.73. On 13 September 2001 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) initiated the enforcement proceedings.
8. In November 2001, the applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskiy Town Bailiffs’ Service for failure to enforce the judgment in her favour. On 23 November 2001 the Town Court rejected the applicant’s claim, finding that no fault had been committed by the Bailiffs’ Service. The court stated that the Bailiffs’ Service had acted properly in trying to enforce the judgment of 2 August 2001. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs’ Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company.
9. On 11 February 2002 the Court of Appeal of the Donetsk Region upheld the judgment of the first instance court of 23 November 2001. The applicant appealed in cassation to the Supreme Court of Ukraine. The parties did not provide any further information about this set of proceedings.
10. In August 2004 the judgment in the applicant’s favour was enforced in full.
11. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88558
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WATKINS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr William Watkins, is a British national who was born in 1944 and lives in Salford.
The applicant’s wife died on 7 June 1993. They had three children from the marriage, born in 1964, 1966 and 1981. In August 1993 the applicant applied for widows’ benefits and was informed that he was not entitled to these benefits as he was a man. He again claimed widows’ benefits in May 2003. His claim was rejected on 22 May 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not entitled to child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-80168
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ZHELEZNYAKOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Mr Aleksey Leonidovich Zheleznyakov and Ms Svetlana Vyacheslavovna Zheleznyakova, are Russian nationals who were born in 1968 and 1970 respectively and live in Penza. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1993 the first applicant received a position at the Penza Regional Hospital and moved to Penza together with his wife (“the second applicant”).
In 1999 the applicants sued the Penza Town Council and the Penza Regional Hospital for the alleged failure to grant them a flat in accordance with Russian law.
On 25 January 2001 the Leninskiy District Court of Penza partly granted the applicants’ claims and placed them on a waiting list, ordering that Penza Regional Hospital provide the family with housing in accordance with the existing order of precedence. The District Court dismissed the claims against the Penza Town Council.
On 27 February 2001 the Penza Regional Court upheld the judgment on appeal and held the Town Council jointly liable for allocation of a flat to the applicants.
On 7 May 2001 the bailiffs began enforcement but the judgments could not be enforced as the order of precedence had not been determined by the Penza Town Council.
At the applicants’ initiative, on 7 March 2003 the Presidium of the Penza Regional Court varied the previous judgments by way of supervisory review and held that the applicants were to receive a flat without further delay.
On 14 November 2003 the applicants accepted the flat which had been offered to them by the Penza Town Council.


ITEMID: 001-82155
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: COOPERATIVE DES AGRICULTEURS DE MAYENNE AND COOPERATIVE LAITIÈRE MAINE-ANJOU v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Coopérative des agriculteurs de la Mayenne and Coopérative laitière Maine-Anjou, are farm cooperatives under French law whose registered offices are in Laval and Le Mans respectively. They were represented before the Court by Mr J.-C. Cavaille, a lawyer practising in Lyons.
The facts of the case, as submitted by the applicant cooperatives, may be summarised as follows.
Between 2 and 13 November 1992 the first applicant, Coopérative des agriculteurs de la Mayenne, was the subject of an inspection by the National Dairy Board (Onilait) aimed in particular at checking that its activities complied with Community Regulations Nos 804/68 of 27 June 1968 and 856/84 and 857/84 of 31 March 1984 (see “Relevant law” below).
In two letters of 29 July 1993, the first applicant was informed that, following the inspection, it had come to light that the milk production quotas for the years 1988/89, 1989/90 and 1990/91 had been exceeded. The letters informed the applicant that it was required to pay Onilait the sums of 9,105,335.50 French francs (FRF), FRF 9,322,127.11 and FRF 14,534,813.51, corresponding to each of the years covered by the inspection.
By three enforceable orders dated 8 December 1993, the Director of Onilait served notice on Coopérative des agriculteurs de la Mayenne, requiring it to pay the above sums to Onilait.
On 7 January 1994 the cooperative applied to the Nantes Administrative Court seeking to have the enforceable orders set aside.
On 9 March 1994 the cooperative handed over its milk collection operations to another cooperative, Coopérative laitière Maine-Anjou (the second applicant).
On 15 April 1994 Coopérative laitière Maine-Anjou intervened in the proceedings before the Nantes Administrative Court and, relying on the same grounds as the first applicant, requested the court to uphold the conclusions set out in the latter’s application.
On 30 April 1994 the Director of Onilait sent a demand for payment to the first applicant, seeking payment of the sum of FRF 24,013,557.93, corresponding to the additional levy for the 1991/92 milk marketing year. On 16 June 1994 the Director of Onilait issued an enforceable order to secure payment of the sum in question.
Meanwhile, on 3 June 1994, the applicants requested the Nantes Administrative Court to set aside the payment demand of 30 April 1994. They subsequently also requested the setting-aside of the enforceable order of 16 June 1994.
In a first judgment of 20 May 1998, ruling on the application of 7 January 1994 seeking to have the enforceable orders of 8 December 1993 set aside, the Nantes Administrative Court granted the second applicant’s request to be joined to the proceedings and dismissed the first applicant’s application, in particular on the following grounds:
“... The applications ... lodged on behalf of Coopérative des agriculteurs de la Mayenne and Coopérative laitière Maine-Anjou raise the same issues and have been the subject of a joint investigation; they should therefore be joined and dealt with in a single judgment.
... The judgment in this case ... is likely to be prejudicial to the interests of Coopérative laitière Maine-Anjou. Accordingly, [its] application to be joined to the proceedings is admissible. ...
The investigation has shown that Onilait, between 2 and 13 November 1992, inspected the accounts for 1988/89, 1989/90 and 1990/91. This inspection revealed deliveries of milk that had not been declared by Coopérative des agriculteurs de la Mayenne, which are the subject of the impugned requests for payment. ...
As to the argument that the basis on which the sums were calculated was not indicated
In submitting that Onilait did not indicate to it the exact amounts by which the quotas had been exceeded, Coopérative des agriculteurs de la Mayenne must be deemed to have claimed that the basis for calculating the amounts to be recovered under the enforceable orders in question was not indicated to it.
While any enforceable order must indicate the basis on which the amounts payable have been calculated, this requirement does not apply where the person liable has already been informed of the basis for calculation in an earlier document.
The investigation has shown that, contrary to the assertions of Coopérative des agriculteurs de la Mayenne, which was given notice by Onilait of the reference quantities allocated to it at the beginning of the 1988/89, 1989/90 and 1990/91 milk marketing years, the cooperative was informed by this State agency in three letters dated 29 July 1993 of the corrections to the basis of assessment arising out of the checks carried out between 2 and 13 November [1992] and of the resulting additional levies. It follows that Coopérative des agriculteurs de la Mayenne which, in its capacity as purchaser – which it cannot seriously dispute – was required to identify the producers whose deliveries were in excess of the quotas, may not validly argue that the basis on which the amounts owing were calculated was not made sufficiently clear.
As to the argument that the manner in which the cost of the additional levy was to be passed on to producers was not set out in a prefectoral order
Contrary to what has been asserted by the applicant cooperative, which does not rely on any specific text, it is not stated in any legislative or regulatory provision, or elsewhere, that the manner in which the cost of the additional levy is to be passed on to producers should be set down in a prefectoral order. Accordingly, this argument must be rejected.
As to the argument alleging unequal treatment between producers
While the provisions of the decree of 17 July 1984, reiterated in the decree of 11 [February] 1991, make the levies payable by producers partly subject to the situation of the purchaser whom they supply, the difference which may result is inherent in the mechanism of “Formula B”, as defined in Article 5c of Regulation (EEC) No 804/68. Accordingly, the Court must reject the argument that the impugned enforceable orders, which arose out of the imposition of additional levies triggered by the high level of deliveries, applied rules that were discriminatory.
As to the argument that the Community objectives were not complied with
The applicant cooperative submits that the enforceable orders in question did not comply with the objective of curbing the increase in milk production laid down in the Community rules, on the grounds that the corrections were made late, after the end of the years in question, and that the enforceable orders did not make it possible to determine how the levies were to be allocated subsequently.
In confining itself to these criticisms – which, moreover, are shown by the foregoing to be unfounded – Coopérative des agriculteurs de la Mayenne has failed to provide any evidence to demonstrate that the enforceable orders were contrary to Community objectives, as it alleges. Accordingly, the Court must reject this argument also. ...”
In a second judgment of 20 May 1998, the Nantes Administrative Court rejected the application lodged on 3 June 1994, in particular on the following grounds:
“... the applications ... challenge two measures taken in the same set of recovery proceedings instituted by Onilait against the first cooperative ... and were the subject of a single investigation. They should therefore be joined and dealt with in a single judgment ...
As to the argument that the basis on which the amounts were calculated was not indicated
... It is clear from the investigation that the demand for payment in question referred expressly to the provisions of Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products, cited above, which provides the legal basis for the impugned levies. In addition, the demand for payment presented in sufficient detail the figures for excess production observed at the end of the 1991/92 milk marketing year and arising out of the inspection conducted in 1992, and the means of calculating the amounts in question, thus enabling the person liable to assess the validity of the claim and the amount thereof. It follows that there is no foundation for the assertion made by Coopérative des agriculteurs de la Mayenne, whose capacity as purchaser – which it cannot seriously dispute – required it to identify those producers whose deliveries exceeded the quotas, and by Coopérative [laitière] Maine-Anjou, to the effect that the basis on which the amounts to be recovered were calculated was not made sufficiently clear.
Furthermore, while any enforceable order must indicate the basis on which the amounts payable have been calculated, this requirement does not apply where the person liable has already been informed of the basis for calculation in an earlier document.
The investigation showed that the enforceable order at issue had been preceded by the above-mentioned demand for payment, which gave details both of the legislation forming the legal basis for the claim and the elements used to calculate it. Accordingly, the requirement referred to above must be regarded as having been fulfilled in the present case ...
As to the argument that the manner in which the cost of the additional levy was to be passed on to producers was not laid down in a prefectoral order
Contrary to what has been asserted by the applicant cooperatives, which do not rely on any specific text, it is not stated in any legislative or regulatory provision, or elsewhere, that the manner in which the cost of the additional levy is to be passed on to producers should be set down in a prefectoral order. Accordingly, this argument must be rejected. ...”
On 28 August 1998 the applicants lodged an appeal against the two judgments of the Nantes Administrative Court.
In a judgment of 14 June 2000, the Nantes Administrative Court of Appeal rejected the applicants’ appeal against the first judgment, in particular on the following grounds:
“... having regard to the requirement for Onilait, pursuant to the Community rules and Decree no. 91-157 of 11 February 1991, to seek payment of the additional levy owed by purchasers, the decisions in accordance with which Onilait imposes the levy on purchasers cannot be regarded as unfavourable individual administrative decisions for which reasons must be given pursuant to section 1 of the Act of 11 July 1979, cited above ...
As stated above, Coopérative des agriculteurs de la Mayenne was in a position to challenge all the elements in the correction carried out. In a letter of 13 May 1993, Onilait sent it a copy of the findings of the on-site inspection conducted lawfully in November 1992 by officials of the Central Board for Agricultural Intervention Agencies [...] on the basis of Decree no. 85-367 of 26 March 1985 and Article 19 of the decree of 11 February 1991, cited above, and gave it fifteen days to reply. The cooperative was able throughout the proceedings to submit its observations, which were taken into account in order to reduce the correction. Hence, the cooperative in question has no basis for arguing a violation of the adversarial principle or of its defence rights. There was no provision of Community or domestic law, or any general legal principle, requiring the cooperative to be informed of its right to be assisted by a lawyer. Nor is there any foundation for the applicants’ allegation of a violation of Article 6 §§ 1, 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as these provisions do not lay down any rule or principle whose scope extends beyond proceedings before the courts to encompass Onilait, which is not a court for the purposes of those provisions ...
Article 5c of Council Regulation (EEC) No 804/68, as amended by the abovementioned Regulation No 856/84, states that under Formula B, which France decided to apply, the additional levy is payable by purchasers of milk and that ‘the purchaser liable to the levy shall pass on the burden in the price paid to those producers who have increased their deliveries, in proportion to their contribution to the purchaser’s reference quantity being exceeded’. However, this provision does not have the effect of requiring member States to introduce a procedure for passing on the cost of the levy under the supervision of the authorities but, on the contrary, states that it is for purchasers to pass on the cost of the levy to the producers. Accordingly, the ground of appeal arguing that the French rules are in breach of Regulation No 856/84 cannot succeed.
France’s decision to opt for Formula B was based on the provisions of Article 5c of Council Regulation (EEC) No 804/68, as amended by Regulation No 856/84 of 31 March 1984, to which the French rules simply gave effect in this regard. Consequently, the grounds of appeal to the effect that those rules are in breach of the principles of equality and proportionality are in any case ineffective.
... An administrative court, in examining submissions challenging an enforceable order or a collection order as in the present case may, after checking the facts relied upon and their characterisation by the authorities and depending on the outcome, decide to uphold or reduce the amount payable by the person concerned or, where appropriate, to discharge him or her from liability. On the other hand, the provisions concerning the additional levy do not permit the court or the authorities to adjust the rate of the levy. Nor does the need to comply with the provisions of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms imply that the court should adjust the amount of the levy. Accordingly, the ground of appeal based on a breach of the right to a fair hearing must fail. ...”
In a further judgment of 14 June 2000, the Administrative Court of Appeal dismissed the appeal lodged by the applicants against the second judgment, on similar grounds to those outlined above, adding:
“...The fact that the order of 20 June 1992 on arrangements for collection of the additional levy for the 1991/92 milk marketing year came into effect after the end of the year in question does not mean that it should be regarded as retrospective, in breach of the law, since the levy, which is based on excess production during the year and the basis and amount of which were laid down by the orders of 29 March and 24 July 1991 which came into force before the end of the year, cannot be collected until the end of the relevant year.
Since Council Regulation (EEC) No 3950/92 of 28 December 1992 applied only from 1993/94 onwards, the ground of appeal to the effect that the decree of 11 February 1991 on controlling cow’s milk production was in breach of that Regulation is ineffective in the context of the present case, which relates to the 1991/92 milk marketing year ...”
On 12 September 2000 the applicants lodged an appeal on points of law with the Conseil d’Etat against the two judgments delivered by the Nantes Administrative Court of Appeal on 14 June 2000. They argued in particular that the levy at issue was in breach of the provisions of Article 1 of Protocol No. 1.
In a judgment of 5 November 2003, the Conseil d’Etat joined the two cases but dismissed the appeal on the following grounds:
“... The applications referred to above both relate to the same issue and should therefore be dealt with in a single decision.
... In addressing the grounds of appeal arguing that the inspection carried out concerning Coopérative des agriculteurs de la Mayenne had been unlawful, the court observed that the latter, in accordance with the overall principle of due process, had been in a position to challenge all the elements in the correction notified to it by Onilait in its letter of 13 May 1993 setting out the findings of the on-site inspection conducted lawfully in November 1992 by officials of the Central Board for Agricultural Intervention Agencies, and that it had been able throughout the proceedings to submit its observations, which were taken into account, among other things, in order to reduce the correction. The court dismissed the grounds of appeal alleging that the French rules were in breach of the Community rules or contrary to the principles of equality and proportionality. Accordingly, the court addressed adequately those grounds of appeal submitted to it which were not inoperative.
... An enforceable order must indicate the basis on which the amounts payable have been calculated, even where it is issued by a public agency other than the State, for which the requirement is expressly laid down in Article 81 of the decree of 29 December 1962. In accordance with this principle, Onilait cannot request payment of an additional levy without indicating, either in the order itself or by reference to a document attached to it or previously addressed to the person liable, the basis for and the elements contained in its calculation of the amounts due. Onilait satisfied this requirement in the instant case by making reference in the impugned enforceable orders to the letters of 30 July 1993 to the applicant cooperatives, which the latter do not deny having received and which, in the context of the adversarial procedure which the authorities were obliged to conduct before correcting the declared bases, set out clearly the basis on which the amounts payable had been calculated. Consequently, the Nantes Administrative Court of Appeal did not commit any error of law in finding the enforceable orders in question to be lawful. ...”
“...
Whereas the operation and development of the common market in agricultural products must be accompanied by the establishment of a common agricultural policy to include in particular a common organisation of agricultural markets which may take various forms depending on the product;
...
Whereas the aim of the common agricultural policy is to attain the objectives set out in Article 39 of the Treaty; whereas, in the milk sector, in order to stabilise markets and to ensure a fair standard of living for the agricultural community concerned, it is necessary that the intervention agencies continue to take intervention measures on the market, such measures however to be standardised so as not to impede the free movement of the goods in question within the Community;
...”
“...
Whereas the market in milk products in the Community is suffering from structural surpluses as a result of an imbalance between supply and demand for the products ...
Whereas a careful examination of the different possible ways of re-establishing balance in the milk sector shows that, despite the administrative difficulties which its implementation may involve, the most effective method, and the one having the least drastic effect on the incomes of producers, is the introduction for an initial period of five years of an additional levy on quantities of milk delivered beyond a guarantee threshold;
...
Whereas, in view of the diversity of milk production structures in the different regions of the Community, the administrative problems arising and considerations of regional development policy, the possibility must be provided for of a choice between a formula of a reference quantity per producer and a reference quantity per purchaser;
Whereas, where the levy is to be paid by the purchaser, provision should be made for ensuring that the purchaser passes on the burden in the price paid to those producers who have increased their deliveries, in proportion to their contribution to the purchaser’s reference quantity being exceeded;
Whereas the purpose of the levy provided for by this Regulation is to regulate and stabilise the market in milk and milk products; whereas revenue from the said levy should therefore be used to finance expenditure in the milk and milk products sector;
...
Regulation (EEC) No 804/68 is hereby amended as follows: 1. The following Article 5c is inserted:
‘Article 5c
1. During five consecutive periods of 12 months beginning on 1 April 1984, an additional levy payable by producers or purchasers of cows’ milk shall be introduced. ...
The levy system shall be implemented in each region of the territory of the member States in accordance with one of the following formulas:
...
Formula B – A levy shall be payable by every purchaser of milk or other milk products on the quantities of milk or milk equivalent which have been delivered to him by a producer and which, during the 12 months concerned, exceed a reference quantity to be determined.
– The purchaser liable to the levy shall pass on the burden in the price paid to those producers who have increased their deliveries, in proportion to their contribution to the purchaser’s reference quantity being exceeded.
...’”
“...
Whereas Article 5c of Regulation (EEC) No 804/68 instituted a levy payable by every producer or purchaser of milk or other milk products on quantities exceeding an annual reference quantity; whereas the amount of this levy should normally cover the cost of disposal of the milk exceeding the reference quantity; whereas, however, when the levy is charged to the purchaser, its application does not necessarily cover all the quantities of milk delivered by each producer and exceeding a quantity corresponding to that adopted in order to establish the purchaser’s reference quantity; whereas, in order to obtain equivalence of results, a higher levy should be fixed when it is payable by the purchaser;
Whereas the reference quantity should be fixed on the basis of the quantity which corresponds to the 1981 calendar year ..., plus 1%; whereas, however, for reasons to do with their production or collecting conditions, member States should be enabled to adopt as a basis the quantity corresponding to the 1982 calendar year or to the 1983 calendar year, weighted by a percentage enabling the same results to be achieved;
...
1. The levy referred to in Article 5c of Regulation (EEC) No 804/68 is hereby fixed at:
– 75% of the target price for milk, where Formula A is applied,
– 100% of the target price for milk, where Formula B is applied,
– 75% of the target price for milk, where there is direct sale to consumption.
...”
“Regulation (EEC) No 857/84 is hereby amended as follows:
1. in Article 1 (1) first and second indents, ‘100%’ is replaced by ‘115%’;”
“This Regulation ... shall apply ... from the beginning of the seventh period of application of the additional levy arrangements with regard to Article 1 (1).
...”
“The National Dairy Board (‘Onilait’) shall be responsible for the following tasks relating to cow’s milk:
1. Determining the reference quantities within the meaning of Article 5c of Regulation (EEC) No 804/68 ... for purchasers of milk and milk equivalent; the purchasers shall inform the producers which deliver to them of the reference quantities which have been allocated;
2. Determining directly the reference quantities for producers selling direct to consumption;
...
4. Collecting the additional levy introduced by Community Regulations Nos 804/68, amended, and 857/84 ...”
“The additional levy referred to in Article 1 shall be payable by any purchaser of milk or other milk products on the quantity of milk or milk equivalent delivered to him in excess of the reference quantity allocated by Onilait.
The purchaser liable for the levy shall pass on the cost of the levy only to those producers which have exceeded the reference quantity, in proportion to their contribution to the purchaser’s reference quantity being exceeded.”


ITEMID: 001-100737
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DOGRU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Galip Doğru, is a Turkish national who was born in 1983 and lives in İstanbul. He is represented before the Court by Mr İ. Akmeşe, a lawyer practising in İstanbul.
On 15 February 2003 the applicant was caught red-handed while throwing a Molotov cocktail into a bank during an illegal demonstration in support of the PKK (the Workers' Party of Kurdistan). According to the arrest record signed by the applicant, while escaping from the police the applicant entered an empty building under construction, where he fell on the staircase and was subsequently caught by the police. According to the same document, the police used force to counteract the applicant's resistance.
The applicant was examined by a number of doctors on 15 February 2003. According to two medical reports issued following these examinations, the applicant sustained a cut and a haematoma on his right eyebrow, a bruise and oedema on his nose and a graze on his chin. In his statement to the doctor, the applicant maintained that the injuries had occurred during his arrest.
According to the medical report issued on 19 February 2003 at the end of the applicant's detention in police custody, the applicant had a sutured injury on his right eyebrow, a 2 x 2 cm bruise under his right eye and a 1.5 cm graze on his chin. In his medical examination, the applicant declared to the doctor that he was beaten during his arrest but that no such treatment had occurred in police custody.
On 19 February 2003 the applicant was taken before the public prosecutor, where he submitted that police officers had caused his injuries during his arrest. On the same day the applicant's lawyer complained before the investigating judge that the applicant had been illtreated and forced to sign self-incriminating statements in police custody. The applicant was detained pending trial by the investigating judge.
On 21 February 2003 the public prosecutor at the Istanbul State Security Court lodged a bill of indictment charging the applicant with membership of the PKK and with throwing explosives.
On 16 May 2003 the applicant complained before the trial court that he had been ill-treated during his arrest and his detention in police custody.
Following the abolition of State Security Courts, on 30 June 2004 the criminal proceedings against the applicant were transferred to the Fourteenth Division of the Istanbul Assize Court.
On 26 May 2006 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation and of possession of and throwing explosives. In its decision, the court found that the applicant's injuries had occurred at the time of his arrest, as he had claimed in his initial statements to the authorities. The Court relied, inter alia, on the applicant's police statement, the arrest record, on-site inspection records, medical reports and the statements it took from the accused and witnesses.
On 12 December 2006 the Court of Cassation quashed the judgment on procedural grounds due to the absence of the trial judges' signatures on the verdict.
Following the remittal of the case to the first-instance court, on 25 July 2007 the applicant was released pending trial.
On 31 October 2007 the Istanbul Assize Court convicted the applicant once again of the same offences.
On 29 September 2009 the Court of Cassation upheld the applicant's conviction for membership of the PKK and possession of explosives.
On 24 March 2003 the Sultanbeyli public prosecutor brought criminal proceedings against three police officers before the Sultanbeyli Criminal Court for the alleged ill-treatment of the applicant. The applicant took part in the proceedings.
On 18 December 2003 the first-instance court acquitted the accused police officers during the hearing when the applicant was present. The court found that the applicant's injuries had happened as a result of his fall whilst running away from the police and due to his resistance to the arrest by the police officers. The judgment became final, in the absence of any appeal request.