ITEMID: 001-75189
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STOLL v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 7. In 1996 and 1997 negotiations were conducted between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts.
8. Against that background Carlo Jagmetti, who was the Swiss ambassador to the United States at the time, drew up on 19 December 1996 a “strategy paper”, classified as “confidential”, which was faxed to Thomas Borer, who was the head of the task force that had been set up to deal with the question within the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals and to the Swiss diplomatic missions in Tel Aviv, New York, London, Paris and Bonn.
9. The applicant obtained a copy. It seems clear that he could not have acquired possession of the document without a breach of professional confidence by a person whose identity remains unknown. On Sunday 26 January 1997 the Zürich Sunday newspaper the Sonntags-Zeitung published the following article by the applicant (translation):
“Mr Carlo Jagmetti insults the Jews
Secret document: 'Our adversaries are not to be trusted'
by [the applicant]
Berne/Washington – Another scandal involving the Swiss ambassador to the United States: Carlo Jagmetti, in a confidential strategy paper on the assets of Holocaust victims, talks of the 'war Switzerland must wage', and of 'adversaries' who 'are not to be trusted'.
The paper is classified as 'confidential'. It was written by Carlo Jagmetti, Swiss ambassador to the United States. On 19 December the 64-year-old high-ranking diplomat in Washington sent the task force in Berne his views on what he described as a 'campaign against Switzerland'. This report has been obtained by the SonntagsZeitung, and is dynamite. In terms of its content, it is an unremarkable assessment of the situation. But the aggressive language used by Carlo Jagmetti has the effect of an electric shock on the reader. 'It is a war', writes the ambassador, 'a war Switzerland must wage, and win, on the external and the domestic fronts'. He describes Senator D'Amato and the Jewish organisations as 'adversaries', saying that 'most of our adversaries are not to be trusted'.
In his paper, Carlo Jagmetti mentions the possibility of concluding an agreement, because 'the Jewish organisations and Senator D'Amato must be placated as a matter of urgency'. He uses the word 'deal' in this context. Ambassador Jagmetti suggests 'payment of a lump sum' in order to settle 'all Jewish claims once and for all'. Then, he writes, 'everyone will be happy'.
Speaking of the 'external front', Carlo Jagmetti says that Switzerland should 'campaign systematically in political circles and in the media'. Relations with Jewish organisations should be 'cultivated in a friendly manner but without servility', with the help of a firm of lawyers, and a 'well-orchestrated public relations campaign [should be launched] including seminars and round-table sessions'.
No comments on this strategy paper by the eminent diplomat – due to retire in the spring – were forthcoming yesterday either from Flavio Cotti [head of the Swiss diplomatic service] at the Federal Department of Foreign Affairs or from the task force headed by Thomas Borer. Carlo Jagmetti had no comment to make to this newspaper.
Martin Rosenfeld, President of the Swiss Federation of Jewish Communities (SIG/FSCI) described Carlo Jagmetti's remarks as 'shocking and profoundly insulting'. He said he foresaw 'a difficult run-up to retirement' for Mr Jagmetti.
10. In the same edition of the Sonntags-Zeitung of 26 January 1997, another article by the applicant read (translation):
“The ambassador in bathrobe and climbing boots puts his foot in it again
An unusual public display for a diplomat ... and the strategy paper on unclaimed assets
By [the applicant]
Berne/Washington – Swiss ambassador Carlo Jagmetti constantly gets himself noticed on the diplomatic stage. With his insensitive remarks on the assets of Holocaust victims, he has thrown Swiss foreign policy into turmoil – and not for the first time.
Early on Friday morning the temperature began to rise in the offices of the Swiss embassy in Washington. 'We do not comment on internal documents' said an embassy spokesman emphatically to this newspaper... By the following day, nevertheless, ... [an] editor on the [daily newspaper] Neue Zürcher Zeitung had already leapt to the defence of his close friend Carlo Jagmetti. Under the heading 'Leaks continue unabated', he announced that 'this balanced document, some parts of which may, of course, be wrongly construed, may be published this weekend'.
Damage limitation, therefore, was the name of the game in Washington on Friday. Ambassador Carlo Jagmetti, who has represented Switzerland abroad for 34 years, was clearly aware of the explosive nature of his strategy paper, dated 19 December 1996, on the subject of unclaimed Jewish assets. In his paper, he talks about a 'war Switzerland must wage, and win, on the external and the domestic fronts'. He winds up with a flourish by observing: 'Most of our adversaries are not to be trusted'.
The Swiss Embassy in Washington is however, experienced in crisis management. Carlo Jagmetti, who heads the embassy, regularly puts his foot in it. In 1993, a few months after moving into his office in the prestigious Cathedral Avenue, this senior diplomat committed his first faux pas. In an interview with the Schweizer Illustrierte, he complained about the American administration, saying 'I've observed a certain lack of courtesy'. Even Bill Clinton, who was said to 'burst out laughing sometimes at inopportune moments', was criticised during the interview. Apparently, Mr Clinton had 'kept [Carlo Jagmetti] waiting for four months' before he was accredited. And, according to the ambassador, it was legitimate to ask, on a general note, 'who [was] actually governing the United States'.
Berne reprimanded the ambassador for his ill-chosen remarks and for an unconventional public appearance (Carlo Jagmetti and his wife had been pictured [in an article in the magazine Schweizer Illustrierte] in their bathrobes), but the ambassador did not prove much more reticent in his subsequent utterances. And in the highly topical debate concerning the assets of Holocaust victims, Carlo Jagmetti has also given the impression of somebody blundering onto the diplomatic stage in outsize boots. He rebuked the Holocaust survivor Gerda Beer in front of the assembled American press, saying that her claims were unfounded as her uncle had emptied the Swiss bank account in question. The incident-prone diplomat based his remarks, however, not on proven facts, but on unsubstantiated rumours which had been circulating.
Berne was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage.
These remarks, which have now been made public, are all the more embarrassing since the tension seemed to be easing. Only last Friday Senator D'Amato and the World Jewish Congress had for the first time welcomed Switzerland's agreeing to set up a fund for Holocaust victims.
Swiss diplomats are now engaged in behind-the-scenes efforts to head off the impending crisis by stressing the fact that Carlo Jagmetti is due to retire shortly. In any event, they argue, Mr Jagmetti played only a minor role in the recent successful negotiations between Jewish organisations and the American Senator D'Amato.
Carlo Jagmetti himself has declined to comment. He absented himself from the major press conference held by Senator D'Amato on Friday before the world's press. He was reportedly on holiday in Florida.”
11. A third article, which also appeared in the Sonntags-Zeitung on 26 January 1997 and was written by the editor Ueli Haldimann, was entitled “The ambassador with a bunker mentality”. On Monday 27 January 1997 the Zürich daily the Tages-Anzeiger reproduced lengthy extracts from the strategy paper in an article entitled “The finishing touches!”. Subsequently, another newspaper, the Nouveau Quotidien, also published extracts from the paper.
12. On 5 November 1998 the Zürich District Office (Statthalteramt des Bezirkes Zürich) fined the applicant 4,000 Swiss francs (CHF) for contravening Article 293 of the Swiss Criminal Code (see “Domestic law and practice” below) in publishing the articles entitled “Mr Carlo Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it again”.
13. On 22 January 1999, following an application by the applicant to have the decision set aside, the Zürich District Court (Bezirksgericht) convicted him of an offence under Article 293 § 1 of the Swiss Criminal Code, but reduced the amount of the fine to CHF 800.
14. In its decision the District Court, noting that prior to its publication by the applicant, the strategy paper had not been in the public domain, found that the issue of whether the content of the paper should ultimately be divulged was irrelevant. The document had been far from insignificant, as it contained an assessment of the delicate foreign-policy situation in which Switzerland found itself in relation to the assets of Holocaust victims deposited in Swiss banks. It outlined various strategies open to Switzerland in order to deal with this difficult situation. The District Court held that carefully worded evaluations and assessments, provided on a regular basis, were an essential part of the exchange and formation of opinion among ambassadors. That being so, even dissenting points of view were circulated internally. Article 293 of the Swiss Criminal Code was designed to ensure freedom to form opinions without undue outside influence. In the instant case, the document in question had been aimed at assisting the head of the task force set up by the Government to form his opinion, and would therefore have influenced the country's handling of the issue concerned. Given its nature, publishing an internal document of that kind could have devastating consequences.
15. As to the applicant's argument that the public had the right to be informed of points of view which were at variance with the official Swiss position, the District Court considered that the applicant had in reality sought to report on a document whose style he found offensive. He could have started a public debate on the issue without contravening Article 293 of the Swiss Criminal Code. Lastly, the District Court considered that this was not a matter of “minor importance” within the meaning of the third paragraph of that Article. By publishing the paper, the applicant had jeopardised Swiss foreign policy.
16. In determining the amount of the fine, the District Court took mitigating circumstances into account, notably the fact that the disclosure of the confidential document had not undermined Switzerland's very foundations. In addition, the applicant had published the article with the approval of his editor and the newspaper's legal department, and with the intention of starting an open debate on the subject.
17. The applicant lodged an appeal on grounds of nullity (Nichtigkeitsbeschwerde), which was dismissed by the Court of Appeal (Obergericht) of the Canton of Zürich on 25 May 2000.
18. The applicant lodged an appeal on grounds of nullity and a publiclaw appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht). He complained that a journalist could be convicted of an offence under Article 293 of the Swiss Criminal Code only in exceptional circumstances, namely if the secret published was of unusual importance and publishing it undermined the country's very foundations. He referred to the public interest in the remarks made by the Swiss ambassador and the role of journalists as watchdogs in a democratic society.
19. The Federal Court dismissed the applicant's appeals in two judgments dated 5 December 2000 (served on 9 January 2001) in which it upheld the decisions of the lower courts. The Federal Court considered in particular that the applicant, in submitting that Article 293 of the Swiss Criminal Code should apply only to breaches of confidentiality in matters of major importance, was in fact requesting that the legislative provision in question be amended. That was not within the jurisdiction of the Federal Court. Whether or not a fact was confidential depended not on the degree of public interest in the information, but on the content and subject matter of the fact in question.
20. Meanwhile, the Swiss Federal Council (Bundesrat) had requested the Swiss Press Council (Presserat) to examine the case.
The Swiss Press Council acts as a complaints body for media-related issues. It is an institution under Swiss private law set up by four associations of journalists which formed a foundation (Stiftung) to organise and fund the activities of the Press Council. According to the Press Council rules, its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media. Its task is to uphold freedom of the press and freedom of information, and it adopts opinions, on its own initiative or in response to complaints, on issues concerning journalistic ethics. The Swiss Press Council has adopted a “Declaration on the rights and responsibilities of journalists” which is available on the Internet.
Below is its opinion (Stellungnahme) of 4 March 1997 concerning the present case (no. 1/97, C.J./Sonntags-Zeitung) (translation):
“II. Considerations
...
2. With regard to the publishing of confidential information, the following extracts from the Declaration on the rights and responsibilities of journalists are of relevance:
(a) '[Journalists'] responsibility to the public [shall take precedence] over their responsibility ... towards the ... authorities ... in particular' (Preamble).
(b) Journalists shall have free access 'to all the sources of their information and [shall have the] right to investigate without hindrance any facts which are in the public interest; objections of secrecy in public or private matters may be raised only in exceptional cases, with sufficient reasons given in each case' (point a. of the Declaration of rights).
(c) Journalists shall publish only 'such information, documents [or] images whose origin is known to them; [they shall not suppress] information or essential elements [and shall not] distort any text, document, image ... or opinion expressed by another. [They shall] present unsubstantiated news items very clearly as such [and] make clear when pictures have been edited'. They shall comply with reasonable deadlines (point 3 of the Declaration of responsibilities).
(d) Journalists shall not make use of 'unfair methods in order to obtain information, ... images or documents' (point 4 of the Declaration of responsibilities).
(e) They shall respect 'editorial secrecy and shall not reveal the sources of information obtained in confidence' (point 6 of the Declaration of responsibilities).
(f) They shall not accept 'any favours or promises which might compromise their professional independence or their ability to express their own opinions' (point 9 of the Declaration of responsibilities).
...
5. It must first be established whether diplomats' reports come under the heading of vital interests. The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by the Federal Council and the reports preceding such negotiations. These documents, they argue, merit greater protection than, for instance, expert reports or minutes of parliamentary committees. The Federal Department of Foreign Affairs and the Federal Council cannot form an accurate picture of international relations unless the ambassadors provide them with additional information, different to and more sensitive than that provided by the media. Diplomats also provide information they have obtained from confidential sources, behind the scenes or off the record. They need, for instance, to be able to express in plain language their views about violations of human rights and political relations in Iran, the involvement of leading Colombian politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the Kremlin. If, despite everything, reports of this kind are published, the ambassador concerned will almost automatically be declared persona non grata in the host country. If reports of this kind were to be published on a regular basis, ambassadors would no longer be able to report on everything that was going on. That would have an adverse impact on Swiss foreign policy, perhaps even paralysing it completely. And if everything were to be made public, Switzerland might just as well recall its diplomats and replace them with the media. In exercising their function as critic and watchdog, the media must always remain mindful of their responsibilities. This applies with particular force in the sphere of foreign policy, as the reports relating to foreign policy are also read abroad. If only for this reason, they are more sensitive than reports on domestic policy matters.
Conversely, the representatives of the media argue that the function of the media as critic and watchdog is much the same in the foreign policy sphere as in other spheres. The tendency to invoke the national interest is particularly marked where foreign policy is concerned. This happened in Switzerland in the case of the closure of the Novosti agency and the revelations concerning the defects in the Panzer 68 tanks, and in the United States in the case of the Watergate and Pentagon Papers scandals. However, Swiss foreign policy is not a reserved area. When the media bow to the wishes of the Government, we are dangerously close to the kind of artificial neutrality we had during the Second World War. In all spheres, including foreign policy, it is argued, reforms occur only when the veil of secrecy is lifted.
The Press Council acknowledges the importance of the principle that diplomatic correspondence should remain confidential. In the past, the Swiss media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view. Revelations in the foreign policy sphere have been the exception rather than the rule in Switzerland. Media bosses are clearly aware of the responsibilities inherent in the media's role as critic and watchdog in this sphere. At the same time, it should not be forgotten that revelations by the media in the field of foreign policy are commonplace in other countries, particularly in the United States, but also in the United Kingdom and Israel. Clearly, other governments and diplomats have long had to contend with this risk of revelations concerning foreign policy, and have learned to live with it. Whether they like it or not, the Swiss authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy, and in which revelations may come not just from the Swiss media but also from foreign media. An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate, particularly since diplomatic reports are regularly forwarded to a large number of authorities.
There can be no doubt that the revelations in the Sonntags-Zeitung and the TagesAnzeiger were a source of embarrassment and problems for those responsible for Swiss foreign policy, but they did not restrict their room for manoeuvre substantially. Diplomatic reports are confidential in law, but when the conditions that allow confidential reports to be published are met, freedom of the press must take precedence (Opinion 2/94, Moser/Reimann parliamentary questions).
6. The Press Council must now examine whether the content of Mr Jagmetti's strategy paper is of such importance that it was appropriate to invoke the public interest, and whether it should have been published. In the view of Ueli Haldimann, editor of the Sonntags-Zeitung, the public interest lay in the fact that it was important to let people know how the Swiss ambassador in Washington perceived the complex issue of the assets of the Holocaust victims and the way Switzerland was coming to terms with its past, and the kind of aggressive language he used. According to Haldimann, his newspaper did not publish any leaked information unless the public interest was at stake. Although there were more leaks now than previously, they were not damaging in principle, and were often the only remaining means of putting a stop to harmful conduct. The representatives of other media also recognised the fact that Mr Jagmetti's paper was of public interest, as it shed important light on the Delamuraz affair. The television channels or the Tages-Anzeiger, for example, would have reported on the document in the same way had they happened on it first.
Those critical of the publication of Mr Jagmetti's paper, on the other hand, take the view that the public interest of information not intended for public consumption is invariably defined by the media themselves, and that other factors should be considered, such as confidentiality, personality rights, the national interest, the foreseeable consequences of disclosure and the motives and interests of those providing the information. In the present case, so the argument runs, Ambassador Jagmetti's report was of limited public interest, since prior to publication it had been a non-event, it was already five weeks old and it could not be made public without damaging Swiss interests. In that respect, the Sonntags-Zeitung undermined Swiss foreign policy in a foreseeable and serious manner which was not justified in the public interest. According to this line of argument, the Jagmetti report should properly have been dealt with as a background document in the classic sense and should not have been published, either in full or in part.
From the Press Council's standpoint, the next step is to assess the strategic importance of Mr Jagmetti's paper. Mr Jagmetti set out in this document to make a perfectly reasonable analysis of the situation, making a number of constructive proposals. He explored two 'extreme' options – the first involving some kind of 'deal' and the second involving a 'legal approach'. The paper testifies to a fundamental concern to get at the truth, to find a generous financial solution and to protect Swiss interests and the country's good relations with the United States. However, it could not escape the attention of even the most casual reader that Mr Jagmetti used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal. The language used betrays attitudes which are problematic even in an internal document, since attitudes are liable to be reflected also in negotiations and informal contacts. In that connection, Mr Jagmetti was to have been engaged in important discussions concerning the assets of Holocaust victims during the last six months of his tenure.
The Press Council is mindful of the fact that the degree of public interest of confidential information cannot be determined in a wholly objective manner, but depends on the ideological, cultural, economic and advertising context in which the medium operates. Nevertheless, in the case of Mr Jagmetti's strategy paper, the public interest was clear, as the debate surrounding the assets of Holocaust victims and Switzerland's role in the Second World War was highly topical in late 1996 and early 1997 and had an international dimension, and because the Swiss ambassador in Washington was to occupy a prominent position in the forthcoming discussions. Knowing what that ambassador thought and how he formulated his opinions was relevant, and not a trivial concern. Leaving aside the question of the public interest and the relevance of the ambassador's remarks, the publication of this supposedly confidential paper was justified from an ethical viewpoint, as only as a result of its publication did it become clear that those in charge still had no very clear idea, despite the creation of the task force, as to the question of Swiss responsibility and what steps should be taken. From the perspective of political transparency, publication of the confidential paper, despite the fact that it was more than a month old and that in the meantime there had been talk of setting up a fund for Holocaust victims, might have spurred the Government on to overcome the problems, demonstrate leadership and devise convincing solutions.
7. Finally, it is necessary to assess whether the information was made public in the most appropriate form. According to one school of thought, the media are in a position of power, since not only do they inform, they also suggest by the way in which they present the information how it is to be viewed. In the present case the Sonntags-Zeitung, it is argued, presented an internal analysis of foreign policy in truncated form and, by publishing it alongside comments from third parties who had not seen the original text, planted in people's minds the idea that Ambassador Jagmetti had “insulted the Jews”. The newspaper, by accusing Mr Jagmetti of antiSemitism, started a rumour in an irresponsible manner. Reproducing the full text would not have placed Mr Jagmetti under the same kind of pressure and would not have forced him to resign. The manner in which the information was published, therefore, was the source of problems and consternation.
The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti's remarks. According to the Sonntags-Zeitung, there was no question of accusing Ambassador Jagmetti of anti-Semitism. Nevertheless, the newspaper's editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full. They maintain that, on the day of publication, it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems.
The Press Council regards these arguments as spurious, and agrees with the criticism regarding the manner of publication. The Sonntags-Zeitung did not make sufficiently clear that Ambassador Jagmetti had outlined several options in his strategy paper, of which the 'deal' was just one. Nor did it make the timing of the events sufficiently clear, particularly since the document was already five weeks old and had reached the addressees before the interview given by the outgoing Swiss President on the programme 24 heures/Tribune de Genève. The newspaper unnecessarily made the affair appear shocking and scandalous and, by its use of the headline “Mr Carlo Jagmetti insults the Jews”, misled the reader and made it appear that the remarks had been made the previous day. It was incorrect to assert that Mr Jagmetti's letter undermined the process which had begun in January, particularly since the document had been circulated beforehand and had not previously been in the public domain, and could not therefore adversely affect the talks with the country's partners at home and abroad. When the Sonntags-Zeitung attempted to contact Mr Jagmetti on Friday 24 January in order to obtain a comment, and failed to reach him because he was in Florida, the newspaper's editors should have considered whether it might not be wiser to delay publication by a week so as to be able to publish an interview with Carlo Jagmetti alongside the extracts from his paper. The fact that publication went ahead in the next issue can only have been prompted by the fear of competition, which on no account constitutes sufficient justification for immediate publication. Hence, by publishing the strategy paper in the way it did, the Sonntags-Zeitung omitted vital pieces of information, in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities).
...
III. Findings
1. Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the State. The media's role as critic and watchdog requires them to make information public where the public interest is at stake, whether the source of information is freely accessible or confidential.
2. As to the publication of confidential information, the pros and cons must be weighed up carefully, with an eye to whether interests which merit protection are liable to be damaged in the process.
3. Internal reports by diplomats are rightly confidential, but do not necessarily merit a high degree of protection in all cases. The media's role as critic and watchdog also extends to foreign policy, with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest.
4. In the case of Mr Jagmetti, the interest to the public of his strategy paper should be acknowledged, as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims, the prominent position occupied by the Swiss ambassador in Washington and the content of the document.
5. In this case the Sonntags-Zeitung, in irresponsible fashion, by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear, made Mr Jagmetti's views appear shocking and scandalous. The newspaper therefore acted in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). The Tages-Anzeiger and the Nouveau Quotidien, on the other hand, placed the affair in its proper context by reproducing the document in its near-entirety.”
21. Article 293 of the Swiss Criminal Code, entitled “Publication of secret official deliberations”, reads as follows:
“1. Anyone who, without being entitled to do so, makes public all or part of the proceedings of an investigation or of the deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine.
2. Complicity in such acts shall be punishable.
3. The court may decide not to impose any penalty if the secret concerned is of minor importance.”
VIOLATED_ARTICLES: 10


ITEMID: 001-81664
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ANDREYENKO AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The first and the second applicants, Mrs Valentina Borisovna and Mr Aleksandr Nikolayevich Andreyenko, were born in 1949. The third applicant, Mrs Olga Aleksandrovna Kutsenko, was born in 1974. The applicants are Ukrainian nationals and live in the town of Dniprodzerzhynsk.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 2000 the applicants lodged with the Zavodskyi District Court of Dniprodzerzhynsk (hereinafter “the Zavodskyi Court) civil claims against the President of Ukraine, the State Savings Bank (hereinafter “the Bank”), and the State Treasury seeking recovery of their indexed deposits in the Bank and compensation for non-pecuniary damage. On 5 June and 8 July 2002 the court found in part for the applicants and ordered the Dnipropetrovs’k Department of the Bank to pay them, respectively, UAH 11,740, UAH 2,847 and UAH 11,692 in reimbursement of the indexed bank deposits.
According to the Government, the Bank appealed on 24 July 2002. In the third applicant’s case, on 29 July 2002 the Zavodskyi Court rejected the appeal of the Bank for failure to lodge it within the statutory time-limit; however, on 13 February 2003 the Dnipropetrovs’k Regional Court of Appeal (hereinafter “the Court of Appeal”) allowed the appeal of the Bank and granted an extension of the time-limit for lodging its appeal against the judgment of 5 June 2002.
On 14 November 2002 and 19 June 2003 the Court of Appeal quashed the judgments of 5 June and 8 July 2002 and remitted the cases for a fresh consideration. The applicants did not appeal in cassation.
On 26 March 2003 the Zavodskyi Court left the first and the second applicants’ claim without consideration for failure to appear before the court. On 22 May 2003 the court left the applicants’ appeal without consideration and allowed them time to rectify the shortcomings. On 17 June 2003 the applicants’ appeal was returned without consideration for failure to comply with the ruling of 22 May 2003. The applicants did not appeal against this procedural decision.
On 2 March 2004 the Zavodskyi Court left the third applicant’s claim without consideration for failure to appear before the court. The applicant did not appeal against this ruling.
Enforcement proceedings in respect of the judgments in the applicant’s favour
On 10 July and 9 August 2002 the Bailiffs’ Service (hereinafter “the Bailiffs”) instituted the enforcement proceedings in respect of the judgments of the Zavodskyi Court in the applicants’ favour. On 21 August 2002 the Bailiffs discontinued the enforcement proceedings on the grounds that the debtor was not a separate legal entity and that the order of reimbursement of the indexed deposits should be established by the Cabinet of Ministers under the Law of Ukraine on the State Budget. The applicants did not challenge these decisions before the domestic courts.


ITEMID: 001-104813
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: AMZUICA v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Ms Stanca Amzuică, is a Romanian national who was born in 1918 and lives in Târgu Jiu. She was represented by Ms I. E. Vass and Ms A. A. Teis, lawyers practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. In 2002, the applicant lodged a civil action against the Târgu Jiu Town Council, company H. and third parties D., S., C., P., F. and M. (private individuals), who were seeking to become the owners of six sheds constructed by company H. on her land. The sheds were occupied by the above-mentioned individuals on the basis of a lease contract concluded with the Town Council. She based her action on Article 494 of the Civil Code and maintained that the competent authority for the application of Law 18/1991 had issued ownership title to the said land in her favour on 12 January 1998. She underlined that her ownership right to the land had been confirmed by a final and enforceable decision of the Târgu Jiu District Court, rendered on 6 April 2001. She also submitted that taking into account that company H. had acted in good faith when it constructed the sheds on her land, she required the recognition of a property right over the sheds to accompany her obligation to pay compensation to the builder. She based her claim on Articles 492 and 494 of the Civil Code.
2. The Târgu Jiu District Court ordered an expert report which would assess the land and the structures on it and establish their value. The expert concluded that the sheds had been erected on the applicant’s land more than thirty years before, as a temporary annexe to a building site; he revealed that their condition had seriously deteriorated and that the period for which they had been intended to be used had long ago expired, and thus concluded that they were worth no more than the raw material used for their construction.
3. By a judgment of 17 December 2002, the court of first instance allowed the action and held that the applicant had a property right over the land, whose value greatly exceeded the value of the structures erected on it. It also held that on the basis of Article 494 of the Civil Code the applicant had become the owner of the structures in her capacity as owner of the land, and that the builder of the structures had the right to obtain their value from the applicant. Moreover, the court noted that the lease contracts concluded by the Târgu Jiu Town Council with D, S., C., P., F. and M. were not opposable to the applicant, as neither the company H. which had built the structures, nor the Târgu Jiu Town Council which was responsible for them, were owners of the land.
4. The Gorj County Court dismissed the appeal lodged by the Târgu Jiu Town Council and company H. as unfounded. It noted that the structures were in an advanced state of disrepair which made them unfit to be used as dwellings by private individuals.
5. By a final decision of 3 December 2003, the Craiova Court of Appeal allowed an appeal on points of law by the Târgu Jiu Town Council and company H. and dismissed the applicant’s action. Admitting that the applicant was the owner of the land on which the disputed sheds had been built, the court of last resort held that the applicant had not proved her right of property over the sheds. It noted that the sheds had been erected in a period when the owner of the land was the State and company H. had the authorisation of the State to build. It noted that the structures had been transferred to the Târgu Jiu Town Council, becoming part of the private sector of the city of Târgu Jiu by a decision of the local council of 29 July 2002. Therefore, the court reversed the presumption that the owner of the land was the owner of all structures on the land, and recognised the right of the local council over the structures and implicitly the right to use the applicant’s land on which the structures had been built.
6. The relevant law and case-law and doctrine regarding the right of superficies and real estate accession are described in Bock and Palade v. Romania, (no. 21740/02, §§ 29-33, 15 February 2007), and Moculescu v. Romania, (no. 15636/04, §§ 16-18, 2 March 2010).
7. The Civil Code does not contain any specific provision concerning enrichment without just cause. However, it is unanimously considered in doctrine and case-law that the provisions that should be indicated when referring to it are Articles 992-997 of the Civil Code. Enrichment without just cause is defined by doctrine as the legal instrument by which a person obtains any property, service or other benefit from another person without legal cause; the beneficiary shall indemnify the person at whose expense he has enriched himself to the extent to which he has benefited from his property or work.


ITEMID: 001-22951
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MOLLA HOUSEÏN v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicant, Mr Bachri Molla Houseïn, is a Greek national, who was born in 1950 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants.
On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993.
A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi.
On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace.
On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott.
On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993.
On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993.
On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights.
On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993.
On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him.
On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties.
On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following:
– First, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in the strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code).
– Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code).
– Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code).
The Board was fully satisfied that the applicant, “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant.
On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers.
On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty.
On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace.
Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3595/1995).
On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3595/1995 of the Council of State, ordered the applicant’s dismissal as from the same date.
On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect (decision no. 1719/1996).
On 4 December 1997 the Prefect ordered for the third time the applicant’s dismissal.
On 16 March 1998 the applicant appealed against the Prefect’s decision of 4 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1. A hearing was set down for 18 January 2000. On that date, on the applicant’s request, the hearing was postponed for 16 May 2000.
On 13 June 2000 the Administrative Court of Appeal rejected the appeal (decision no. 174/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State.
The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred.
On 28 December 2001 the First Instance Administrative Court of Komotini awarded the applicant EUR 4,421 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.


ITEMID: 001-61963
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ŞİRİN YILMAZ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies, six month period);No violation of Art. 2 with regard to death of applicant's wife;Violation of Art. 2 with regard to lack of effective investigation;Not necessary to examine Art. 2 with regard to lack of protection of the right to life;Not necessary to examine Art. 6;Violation of Art. 13;No violation of Art. 3;No violation of Art. 8;No violation of Art. 14;No violation of Art. 18;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1964 and lives in Istanbul. He is the widower of the deceased Sariye Yılmaz. He introduced this application on his own behalf and on behalf of his family and deceased spouse. At the time of the events at issue the applicant was residing in the village of Bayırlı (Karıncak) attached to the Lice district.
10. In June 1996 the commander of the Lice Gendarme Station, Hacı İlbaş, ordered all the villagers from Bayırlı village to evacuate their homes. This instruction was communicated to the villagers by the headman (muhtar) of the village. In response, the villagers requested the commander's permission to remain in the village long enough to harvest their crops.
11. Commander Hacı İlbaş began to pressurise and intimidate the villagers. No cars were allowed in or out of the village. The livestock was taken away from the villagers. A food embargo was imposed. At the beginning of October 1996 soldiers told the villagers that should they fail to evacuate the village by 15 October, their houses would be burned down.
12. On 7 October 1996 an armed clash broke out between members of the PKK (proscribed as a terrorist organisation under Turkish law) and the security forces stationed on Cüm Hill, which is situated between the applicant's village and Lice.
13. When the clash was over, at about 3 a.m. soldiers who were stationed at the Lice Boarding School fired four artillery shells towards the village. A piece of shrapnel wounded one of the villagers, Hürriyet Doğan, in the foot. Hearing Hürriyet Doğan's screams, the applicant attempted to leave his house to help her. However his wife, Sariye Yılmaz, tried to pull him back. At that moment a second artillery shell landed six to seven metres from their house and a piece of shrapnel struck the applicant's wife in the abdomen.
14. Around 5 p.m., when the shooting was over, the applicant and his elder brother, Adil Yılmaz, together with some other relatives, Mehmet Tataş, Ramazan Yaşar, Abdullah Doğan and a group of women set out for Lice in order to take Sariye Yılmaz to the local health clinic. She died on the way.
15. On 7 October 1996 a group of terrorists attacked the security forces which were stationed near the village of Bayırlı in the Lice district. At around 4.30 a.m. terrorists tried to escape through the village. When they arrived in Bayırlı the terrorists fired randomly at the houses. The applicant's wife and another villager were wounded in the incident. The security forces identified the footprints of members of the PKK in the village.
16. When the applicant and his relatives were returning to their village they were stopped on Cüm Hill by the security forces. The senior lieutenant examined the corpse of the applicant's wife. According to the applicant, the senior lieutenant drafted a report which stated that Sariye Yılmaz had died due to a shrapnel wound caused by an artillery shell fired by the soldiers. However, the applicant did not submit this report to the Court and the Government claimed that it did not exist.
The applicant requested to have an autopsy performed before burying the corpse. The senior lieutenant told him that there was no need to carry out an autopsy and reassured him that his report would be given to the relevant authorities.
17. On 7 October 1996 Sergeant Nuri Yüksel and a unit of soldiers arrived in the village to investigate the circumstances of the incident. Four villagers, namely Abdullah Doğan, Hürriyet Doğan, Ahmet Doğan and Sait Doğan, gave statements to the sergeant. They all stated that at around 3 a.m., 25 to 30 terrorists arrived in the village and indiscriminately opened fire with rockets and long-barrel guns. Hürriyet Doğan had been wounded and the applicant's wife had died in the incident.
18. According to the applicant, he expressly told the sergeant that the artillery shell that caused the death of his wife had been fired by the soldiers. He also told the sergeant that the senior lieutenant had seen the corpse and confirmed this fact in his report. The sergeant contacted the senior lieutenant by radio. According to the applicant, the senior lieutenant verbally confirmed his version of the facts.
19. The sergeant drew a sketch map of the scene of the incident and drafted two incident reports. The more detailed report stated as follows:
“... When the members of the PKK failed to strike the security forces, they ran away towards Bayırlı village. When they entered the village, they yelled 'you still have not evacuated the village! Because of you very many of us have been wounded and we have lost very many soldiers!' and they started to shoot at random using heavy weapons and missile launchers. ... two persons were wounded. Two of the places where the missiles fell, as well as bullet marks on the houses, have been noted. Moreover, according to the footprints left by the PKK members they ran off towards the forest near the village. As far as it could be construed by looking at the footprints, they were around 25-30 people. ...”
The houses of the applicant and the other witnesses, the sites where the shells fell and the footprints of members of the PKK were indicated in the sketch map. All the statements and reports were co-signed by Sergeant Nuri Yüksel and non-commissioned officer Yusuf Denden.
20. Upon the applicant's request to have an autopsy carried out on the corpse, the sergeant told him that this was not possible, as the public prosecutor and the doctor refused to come to the village for security reasons. He reassured the applicant that he would make sure that the senior lieutenant's report was forwarded to the public prosecutor. Later on the same day, the applicant buried his wife.
21. On 8 October 1996 Feyzi Doğan, the father of Hürriyet Doğan, and the applicant gave statements to the sergeant. The applicant's statement was as follows:
“On 7 October 1996, at around 3 a.m., I heard guns being fired from the direction of Cüm Hill, which is located to the south of our village. Everybody was sleeping. I went out of the house. It was silent in the village. At around 4 a.m. I heard [people] screaming in the village. These sounds were coming from a distance. Then I heard firing coming from the village. My wife came outside to look for me. There was random gun fire. My wife was wounded in the abdomen. I took her into the house but I wasn't able to do anything as the shooting continued. I waited at home until 5 a.m. When the shooting was over I called my relatives and we set off for Lice in order to take my wife to the hospital. She died when we reached Cüm Hill. After a short while another group of people who was transporting Hürriyet Doğan came along. They went to Lice. We returned to Bayırlı village. We buried my wife in the village ...”
“... terrorists were shouting in the middle of the village. After yelling 'you still have not evacuated the village! Because of you very many of us have been wounded and we have lost very many soldiers!' They started to shoot at random. ... My daughter Hürriyet Doğan was wounded in her foot. I saw three of the terrorists with my own eyes. I believe there were in total twenty to thirty people. ... After we waited for a while we set off for Lice. ... When we were almost on Cüm Hill we saw another wounded person being transported. ... I am complaining about those terrorists who attacked our village and who are responsible for wounding my daughter.”
22. A preliminary investigation into the incident was initiated by the Lice Public Prosecutor.
23. On 10 October 1996 the applicant went to see the Lice Gendarmerie Commander, Hacı İlbaş. The applicant alleged that Hacı İlbaş prepared a petition for him, the contents of which laid blame on the PKK for the incident. He refused to sign it. On 15 October 1996 Hacı İlbaş sent all the documents concerning the incident to the office of the Lice Public Prosecutor along with an explanatory letter. In his letter he explained that the death of Sariye Yılmaz and Hürriyet Doğan's injuries were the result of random shooting by the terrorists. The annexed documents consisted of five witness statements, two incident reports and one medical report about Hürriyet Doğan's state of health, drafted on 7 October 1997 by a doctor at the Lice Health Clinic.
24. On 16 October 1996 the applicant filed petitions with the offices of the Diyarbakır District Governor and the State of Emergency Region Governor. He stated that his wife had died during an artillery attack launched from the direction of the Lice Boarding School. A senior lieutenant, after examining the corpse, confirmed that she had been killed by artillery fire. He further stated that he had had to move to Diyarbakır with his seven children following the evacuation of his village. The applicant requested that an investigation be initiated in order to find those responsible. He also requested compensation.
25. On 19 October 1996 the applicant filed similar petitions with the Diyarbakır State Security Court and the Lice Public Prosecutor. On the same day he went to see the Lice Public Prosecutor and the Lice District Governor personally.
26. On 21 October 1996 the applicant submitted a petition to the Lice Governorship about the death of Sariye Yılmaz. In the petition he stated that his wife died on 7 October 1996 during an operation carried out against terrorists. Moreover, he stated that neither the public prosecutor nor a doctor had examined the corpse. The Lice Governor transferred the applicant's petition to the Registry Office. On the same day the Registry Office requested the Lice District Gendarmerie to provide information about the death of Sariye Yılmaz.
27. On 23 October 1996 the Lice District Gendarmerie informed the Registry Office in a letter that Sariye Yılmaz had been wounded on 7 October 1996 due to random shooting by terrorists who entered the village, that she died while being transferred to a hospital and that she had been buried in the village cemetery. The district gendarmerie had also provided the Registry Office with reports and written statements which confirmed the accuracy of these findings.
28. Following the applicant's petitions filed with the Lice Public Prosecutor and the Lice District Governor, the Lice Social Help and Solidarity Fund decided to grant the applicant the sum of 15,000,000 Turkish liras. This sum was paid to the applicant on 1 November 1996.
29. On 5 November 1996 the applicant filed petitions with the Ministry of Internal Affairs and the Ministry of Foreign Affairs. In these petitions he maintained that his wife died during an artillery attack by the security forces and he requested that an investigation be initiated into the killing of his wife. He stated that he was stunned to find out that in the case file at the office of the Lice Public Prosecutor the perpetrators of the incident were stated to be members of the PKK. Moreover, he maintained that he had had to move to Diyarbakır with his seven children following the evacuation of his village. The applicant also informed the authorities in his petition that he would lodge an application with the European Commission of Human Rights.
30. On 13 December 1996 the Lice Public Prosecutor issued a decision of non-jurisdiction as the death of the applicant's wife fell within the jurisdiction of the Diyarbakır State Security Court. In his decision the public prosecutor maintained that after engaging in a combat with the security forces, terrorists retreated to Bayırlı village. When they arrived in the village they started shooting at random using large weapons to force the villagers to evacuate. The applicant's wife was killed as a result of this random shooting.
31. On 17 December 1996 the public prosecutor at the Diyarbakır State Security Court also issued a decision of non-jurisdiction and referred the case file back to the office of the Lice Public Prosecutor. The decision on lack of jurisdiction indicated that Sariye Yılmaz was killed by an artillery shell fired from the Lice Boarding School.
32. On 25 March 1997 the public prosecutor at the Diyarbakır State Security Court, seeing that an investigation had already been initiated by his office into the same incident, decided to join the two case files within the jurisdiction of the Lice Public Prosecutor's Office. The decision joining the case files named the defendant(s) as “member(s) of the illegal PKK organisation” and the offence as “engaging in acts aimed at the separation of a part of the territory of the State”.
33. On 20 February 1998 the public prosecutor at the Diyarbakır State Security Court issued a search warrant for the terrorist(s) who wounded Hürriyet Doğan and killed Sariye Yılmaz on 7 October 1996. According to this order the Lice Public Prosecutor, together with the Lice District Gendarmerie and the Diyarbakır Security Directorate, had to carry out a rigorous investigation so as to identify the perpetrator(s) by the date fixed for the expiry of the warrant. He further requested to be kept informed of the outcome of the investigation every three months.
34. On 9 September 1998 the public prosecutor at the Diyarbakır State Security Court requested from the Registry Office a copy of Sariye Yilmaz's details of birth. On 21 September 1998 the Registry Office submitted the information requested.
35. By a letter dated 5 October 1999, the public prosecutor at the Diyarbakır State Security Court requested the Lice Public Prosecutor to conduct an investigation in order to identify the officials who had failed to carry out an autopsy on Sariye Yılmaz.
36. By a letter dated 6 October 1999 the public prosecutor at the Diyarbakır State Security Court, referring to the applicant's application to the European Commission of Human Rights, requested authorisation from the Ministry of Justice to initiate an investigation against the Lice Public Prosecutor who had failed to organise an autopsy on the applicant's wife's body.
37. On 1 November 1999 and on 13 December 2000 the public prosecutor at the Diyarbakır State Security Court renewed the warrant issued on 20 February 1998.
38. On 12 February 2001, in accordance with Law no. 4616, the Lice Public Prosecutor postponed the criminal proceedings initiated against Sergeant Nuri Yüksel and the non-commissioned officer Yusuf Denden who had allegedly failed to carry out an autopsy on the applicant's wife's body.
39. On 23 July 2001, upon the Lice District Governor's inquiry, the Lice Gendarmerie Commander sent him a letter stating that it was clear from the incident report and the witness statements that the applicant's wife was killed by members of the PKK. He maintained that there was no documentation in their files which proved that, after examining the corpse of the applicant's wife, a senior lieutenant drafted a report in which the cause of death was described as resulting from artillery shell fire. Moreover, he stated that the letter sent by them to the Registry Office in which the PKK was stated to be responsible for the death of Sariye Yılmaz, had not been found in their files. However, he indicated that this letter could be located at the Registry Office.
40. On 3 August 2001 a letter from the gendarmerie headquarters in Ankara was sent to the Ministry of Interior Affaires. The letter was a reply to an inquiry made by the Ministry of Foreign Affaires following the communication of the applicant's case by the Court to the respondent Government. It was stated in the letter that on 7 October 1996, following an armed clash between terrorists and the security forces, terrorists fled to Bayırlı village and killed the applicant's wife by firing at random with rockets and long-barrel guns in the middle of the village. Moreover, it was incorrect that a senior lieutenant had examined the corpse of the applicant's wife and drafted a report which concluded that she had died due to a shrapnel wound caused by an artillery shell fired by soldiers. Such a report did not exist. It was apparent from the witness statements and from the incident report that the perpetrators of the incident were members of the PKK. It was also stated in the letter that the Lice Gendarmerie Command submitted the document concerning the death of Sariye Yılmaz to the Registry Office.
41. In respect of relevant domestic legislation, the Court refers to its case-law in Tepe v. Turkey (no. 27244/95, §§ 115-122, 9 May 2003).
Article 79 of the Code on Criminal Procedure provides:
“Official examination of a corpse must be made in the presence of a physician. An autopsy shall be performed in the presence of a judge and in those case where it is necessary to avoid prejudicial delay, the autopsy shall be performed by two physicians in the presence of the public prosecutor, at least one of the physicians being a forensic practitioner.
In an emergency situation, the operation may be conducted by one doctor only.”
According to Law no. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999, proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within a five year period.
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
18
2
3
8


ITEMID: 001-127220
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF LAPSHOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 5. The applicant was born in 1982 and is serving a prison sentence in Kaliningrad.
6. On an unspecified date the applicant was charged with robbery and remanded in custody. During the period between 26 July 2006 and 7 August 2007 he was detained on numerous occasions in a temporary detention centre in Bagrationovsk, Kaliningrad Region.
7. According to the applicant, the criminal proceedings against him ended in his conviction for robbery. The final decision on the matter was taken on 18 December 2007.
8. According to the Government, the applicant was detained in the temporary detention centre in Bagrationovsk from 26 to 29 July, 11 to 13 September, 1 to 4 November, 13 to 23 December 2006, 17 to 24 January, 31 January to 7 February, 1 to 10 March, 11 to 14 and 18 to 21 April, 2 to 4 May, 30 May to 9 June, 14 to 18 and, 21 to 25 July and 1 to 7 August 2007. During the relevant periods he was brought to the centre in order to participate in investigation activities and court hearings.
9. The Government were unable to indicate the exact cell numbers where the applicant had been detained. Nor was it possible for the Government to submit the information on the population of the temporary detention centre at the time of the applicant’s detention. The Government provided the following overview of all the cells in the temporary detention centre:
10. There were no individual beds in the cells. The inmates had to share sleeping platforms. The number of inmates detained together with the applicant varied from one to four. On the average, the number of the inmates detained daily at the temporary detention centre was seven to eight. There was no ventilation system. There was only artificial lighting. The cells were lit by a 100-watt electric bulb. The cells were not equipped with a toilet. Nor was there an outdoor exercise area.
11. According to the applicant, he was kept in a windowless cell measuring approximately nine sq. m and housing from four to six inmates. The cell was not equipped with a toilet. Instead, the inmates were to use a tank placed in the cell. The person using it could be seen by others present in the cell. The applicant had to stay indoors all the time. No daily exercise was provided for. Nor was he given any bedding or a mattress. He received one meal per day and had to eat standing or sitting on a bed with a plate in the hands as there were no chairs or table in the cell.
12. In response to the applicant’s complaint about conditions of his detention in the temporary detention centre, the prosecutor’s office carried out an inquiry which confirmed the applicant’s allegations. The prosecutor asked the regional department of the interior to take measures necessary to bring the conditions of detention in the temporary detention centre in compliance with statutory standards. He also informed the Regional Governor of the situation suggesting an allocation of budgetary funds for reconstruction of the temporary detention centre. In particular, in his report to the Governor, the prosecutor stated as follows:
“The inspection of the temporary detention centre of the Bargationovsk department of the interior conducted by the regional prosecutor’s office on 24 July 2007 in response to the complaints lodged by six persons who had been detained there has disclosed a serious violation of all requirements of the law: [toilets and sinks] are not installed, there are no sanitary hygiene products in the stuffy cells; the inmates are served only one meal a day, etc. As regards the medical assistance, ... the only medicine available is analgin and citramonum with the passed expiration date.”
13. The Federal Law on Detention of Suspects and Defendants charged with Criminal Offences, in effect, as amended, since 21 June 1995, provides that suspects and defendants detained pending investigation and trial are held in remand prisons (Article 8). They may be transferred to temporary detention facilities if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or court-house is not feasible because of the distance between them. Such detention in a temporary detention facility may not exceed ten days a month (Article 13). Temporary detention facilities in police stations are designated for the detention of persons arrested on suspicion of a criminal offence (Article 9).
14. According to the Internal Regulations for Temporary Detention Facilities, approved by Order No. 41 of the Ministry of the Interior of the Russian Federation on 26 January 1996, as amended (in force at the time of the applicant’s detention), the living space per detainee should be four square metres (paragraph 3.3 of the Regulations). It also made provision for cells in temporary detention facilities to be equipped with a table, toilet, water tap, shelf for toiletries, drinking water tank, radio and rubbish bin (paragraph 3.2 of the Regulations). Furthermore, the Regulations made provision for detainees to have outdoor exercise for at least one hour a day in a designated exercise area (paragraphs 6.1, 6.40, and 6.43 of the Regulations).
VIOLATED_ARTICLES: 3