ITEMID: 001-70520
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BAGIŃSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1968 and lives in Wrocław, Poland.
9. In 1994 two sets of criminal proceedings were instituted against the applicant. The first involved a charge of theft, the second a charge of forgery. The second proceedings, which were the object of the present application, began on 14 January 1994. On that day the applicant was arrested and charged with forgery. He was released after 48 hours. As from 3 March 1994 the police unsuccessfully tried to summon him in order to take evidence from him.
10. On 13 October 1994 the applicant was arrested by the police under a warrant of arrest, issued on 22 June 1994 along with a “wanted” notice. He was then brought before the Wrocław District Prosecutor (Prokurator Rejonowy). The applicant made his escape while the prosecutor was taking evidence from him.
11. On 12 December 1994 the applicant was re-arrested by the police and brought before the Wrocław-Fabryczna District Prosecutor. He was charged with five counts of burglary and one count of escaping from lawful custody. On the same day the prosecutor detained him on remand for three months.
12. On 3 January 1995 the investigation was taken over by the Wrocław Regional Prosecutor (Prokurator Wojewódzki).
13. On 13 June 1995 the Regional Prosecutor charged the applicant with forgery, escaping from lawful custody and seven counts of burglary.
14. The investigation involved 6 suspects, including the applicant. The prosecution obtained evidence from several witnesses, 17 reports from experts in mechanics and evidence from experts in graphology.
15. During the investigation, at the request of the Wrocław Regional Prosecutor, the Wrocław Regional Court (Sąd Wojewódzki) on three occasions prolonged the applicant’s detention. The last of the relevant decisions was given on 30 August 1995 and extended the applicant’s detention until 10 December 1995.
16. In all those decisions the Regional Court relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature. It also held that his detention was necessary to ensure the proper course of the proceedings, in particular as during the investigation evidence needed to be obtained from other suspects, experts and numerous witnesses.
17. On 8 December 1995 the Wrocław Regional Prosecutor lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on charges of handling stolen goods, forgery of documents and escaping from lawful custody.
18. Between December 1995 and the end of 1996 the applicant lodged numerous applications for release. In particular, he asked to be released on bail. All those applications were dismissed, both at first instance and on appeal.
19. Neither the applicant, nor his lawyer participated in any of the sessions held by the courts in connection with his applications for release or his subsequent appeals. The sessions were held in camera. The prosecution authorities were informed of session dates and were represented either by a regional prosecutor or a prosecutor of appeal. It was recorded in the minutes of the sessions held on 19 February and 27 June 1996 before the Wrocław Regional Court and on 9 September 1996 before the Wrocław Court of Appeal that the courts made their decisions after having heard the prosecutor’s arguments. The grounds invoked by the courts are stated below.
20. On 19 February 1996 the Wrocław Regional Court, ruling on the applicant’s application of 12 February 1996, found that:
“... in the light of evidence there is a sufficient likelihood that [the applicant] committed the offences with which is charged [. A] serious danger to society represented by these offences and need to secure the proper conduct of the criminal proceedings, in particular as [he] absconded at the investigative stage of the proceedings, give grounds for his continuing detention.”
21. The first hearing on the merits was to be held on 22 March 1996 but it was adjourned to 23 May 1996 since one of the applicant’s co-defendants had failed to appear. On 23 May 1996 the trial was postponed to 8 August 1996 because 3 of the applicant’s co-defendants had failed to appear.
22. On 27 June 1996, the Regional Court rejected two further applications for release, lodged by the applicant on 24 and 25 June 1996 respectively. It held the following:
“... in the light of evidence there is a sufficient likelihood that [the applicant] committed the offences with which he is charged [. A] serious danger to society created by these offences and need to secure the proper conduct of the criminal proceedings give grounds for continuing detention[;] on the other hand, having regard to the fact that [the applicant] absconded at the investigative stage of the proceedings, the possibility of varying the preventive measure cannot be taken into account.”
23. On 8 August 1996, at the first hearing on the merits held in the applicant’s case, the Regional Court rejected his subsequent application for release. On 9 September 1996 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against this decision, holding that:
“In his appeal [the applicant] argues that he has already been detained for 20 months and considers that in view of the fact that the trial has begun, he should be released. He also refers to his arrears in child support obligations and to [the situation of] his mother, on whom he [previously] attended.
This court has taken account of the following:
The period spent by [the applicant] in detention is indeed very long. However, there is no error in [the lower] court’s finding that this is not in itself a particular circumstance which would be a ground for not continuing his detention, as referred to in the first sentence of Article 218 of the Code of Criminal Procedure. There is no basis on which to refute the Regional Court’s statements expressing its concern about the proper conduct of the trial without [detention] being imposed on [the applicant]. In the course of the investigation [he] was elusive for the investigating authority and he was twice searched for by a “wanted” notice (see p. 15, volume I). [The applicant’s] detention still has a basis within the meaning of Article 217 § 1 of the [Code of Criminal Procedure] and the circumstances upon which he relies do not suffice for the Court of Appeal to question the decision of the Regional Court in respect of the preventive measure imposed on [him].
The case has now reached the stage of the opening of the trial and the subsequent hearings (the dates of which have already been fixed) will soon be held. Accordingly, it is likely that the case will in a short time be terminated which – still more – justifies [an opinion] that the contested decision of the Regional Court should be upheld. ...”
24. On 27 September 1996 the court held the second hearing. Subsequently, it listed hearings for 20 November 1996 (cancelled as two of the applicant’s co-defendants failed to appear), 28 January 1997 (cancelled as the case-file had been sent to the Supreme Court) and 18 March 1997 (cancelled as one of the co-defendants failed to appear).
25. Meanwhile, on 31 December 1996 the Regional Court had made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court (Sąd Najwyższy), asking it to prolong the applicant’s detention until 24 June 1997. The application was posted to the Supreme Court on 10 January 1997.
26. On 24 January 1997 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor (Prokurator Krajowy), who represented the prosecution, granted the application and prolonged the applicant’s detention “from 24 January 1997 to 24 June 1997”. The Supreme Court’s decision contained exhaustive reasons, the relevant part of which may be summarised as follows:
The Supreme Court, noting that the application was filed on 31 December 1996 but posted as late as 10 January 1997, first considered what was the proper date of “lodging” such an application for the purposes of Article 222 § 4 of the Code of Criminal Procedure.
The Supreme Court next observed that, depending on the answer to this question, it would have to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in section 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no application for a further prolongation of detention on remand had been “lodged”, detention had to be lifted no later than on 1 January 1997.
The Supreme Court considered that it should also deal with the question whether it was competent to rule on the application if it had been “lodged” after the deadline referred to in section 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997.
Referring to the first question, the Supreme Court held that the proper date of “lodging” an application under Article 222 § 4 of the Code of Criminal Procedure had to be deemed to be either the date of posting the application or the date of submitting it to the registry of the Supreme Court since to hold otherwise would mean leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention. Moreover, if the requesting court was not bound by any time-limits for submitting its request, detention, the most severe among the preventive measures, might continue for an unspecified and unlimited time outside the Supreme Court’s supervision. In consequence, an application under Article 222 § 4 of the Code of Criminal Procedure, a mere “proposal” to continue detention, would, for all practical purposes, transform into a basis for continuing detention. Clearly, it was not the intention of the legislator.
The Supreme Court therefore concluded that since in the applicant’s case no application for a further prolongation of his detention had been lodged before 1 January 1997, the order for his detention should have been quashed at latest on that day. Accordingly, his detention from that date to the date on which the Supreme Court was giving the present decision lacked any legal basis and was, consequently, unlawful. The court noted that such an “unlawful” detention might justify granting compensation for unlawful deprivation of liberty if this period were not deducted from the future sentence.
The Supreme Court went on to find that it was, nevertheless, competent to deal with the application. A lower court’s obligation to release a detainee in case of its failure properly to lodge an application under Article 222 § 4 of the Code of Criminal Procedure was one thing but its right to make such an application at any time was another. In the Supreme Court’s opinion, the application in question should be deemed a “fresh request” and be examined as such.
The Supreme Court then dealt with the application and found that further prolongation of the applicant’s detention was necessary. It relied on the likelihood that the applicant had committed the offences with which he had been charged and the risk of his absconding or going into hiding which, in its view, was justified by the fact that the applicant had already absconded after having been arrested and had been searched for by a “wanted” notice. Lastly, the Supreme Court stressed the complexity of the case.
27. On 16 May 1997 the court held a hearing and heard evidence from witnesses. On 18 June 1997 the Regional Court held the next hearing. On the same day it made the second application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant’s detention until 24 December 1997. On 8 August 1997 the Supreme Court granted the application. It held a session in camera. Before taking its decision, it heard arguments of the State Prosecutor. The decision read, in so far as relevant:
“... the principal charge laid against [the applicant] concerns the offence of handling stolen goods of a high value. A severe penalty, that is, a sentence of up to 10 years’ imprisonment may be imposed for the commission of this offence ... The charges against the applicant have a degree of likelihood, as required by Article 209 of [the Code of Criminal Procedure], in particular in view of the testimonies given by the co-defendants Ł[...], L[...] and B[...] as well as [evidence] which has so far been heard from witnesses. Given that [the applicant], after having been arrested, had on one occasion fled and was then searched for by a “wanted” notice, there is a risk of his absconding or going into hiding. ... Accordingly, his detention has its basis under Article 217 § 1(1) and § 2. In the present case there is a need to take various evidence, in particular from witnesses. The process of obtaining evidence is lengthy and, as it emerges from the case-file, it has been extended because of [the obstacles] which the [trial] court, despite its efforts, could not overcome. Consequently, there are grounds for further prolongation of detention, as defined in Article 222 § 4 of the [Code of Criminal Procedure]. ...”
28. On 10 September 1997 the applicant applied to the Regional Court for his release. He relied on Article 5 § 3 of the Convention, submitting that his detention had clearly exceeded a “reasonable time”. On 11 September 1997 a panel of three judges, sitting in camera as the Wrocław Regional Court rejected the application. A.G., a regional prosecutor from the Wrocław Regional Prosecutor’s Office took part in the session and the court heard her arguments. The relevant decision comprises a four-line reasoning, which reads as follows:
“Since the grounds for continuing detention, mentioned in the decision of the Supreme Court of 8 August 1997 file no. V K0 42/97, are still valid and as there are no circumstances militating in favour of not continuing the preventive measure imposed, it has been held [as in the operative part of the decision].”
29. On 18 September 1997 the court cancelled a hearing since one of the co-defendants had failed to appear. Further hearings were held on 30 September and 11 and 22 December 1997.
30. On 22 December 1997 the applicant was released.
31. A hearing listed for 17 March 1998 was cancelled due to the absence of one of the applicant’s co-defendants. On 11 September 1998 the trial came to an end. On 14 September 1998 the Regional Court delivered judgment. The applicant was convicted as charged and sentenced to 3 years’ and 2 months’ imprisonment. The period spent by him in pre-trial detention was deducted from the sentence to be served.
32. On 24 September 1998 the applicant lodged a notice of appeal with the Regional Court. On 16 October 1998 the applicant’s counsel informed the court that the applicant did not intend to contest the judgment and withdrew his notice of appeal. In consequence, the judgment became final on 10 November 1998.
33. On 2 December 1998 the applicant asked the Regional Court to grant him retrospective leave to appeal out of time. He maintained that his counsel had withdrawn the notice of appeal without his consent. On 25 February 1999 the court refused his application. The applicant later lodged two further appeals but, eventually, he withdrew his application for leave to appeal out of time on 2 September 1999.
34. In his original submissions, the applicant maintained that for 17 months following the submission of the bill of indictment to the Regional Court (which took place on 8 December 1995) he had not, in principle, been allowed to maintain personal contact with his family. He asserted that particular restrictions had been placed on his personal contact with his mother.
35. As it transpires from a letter from the Director of Legal Department of the Central Board of Prisons dated 10 October 2000 and copies of visit permissions given to the applicant’s brother and mother, from 4 February 1995 to 6 December 1995 the applicant’s mother was allowed to visit him in prison on 9 occasions (4 February; 15 March; 23 June; 28 July; 17 August; 13 September; 20 October; 22 November and 6 December 1995. The applicant’s brother was allowed to visit him in prison on 19 July and 27 December 1995.
36. On 18 December 1995 the applicant’s mother asked the Regional Court to allow her to visit him in prison; in the same letter she stated that she would take advantage of her right to refuse to testify in the applicant’s case. On 20 December 1995 the court rejected her request and held that, on account of the fact that she had been called as a witness by the prosecution, no such permission could be granted as long as evidence from her had not been heard or, alternatively, as long as she refused to give evidence on the ground that she was not qualified to testify as a close relative. The court further stated that the applicant’s mother could refuse to testify only during a hearing in the case
37. On 21 December 1995 the applicant asked the court to allow his mother to visit him in prison. The court refused on 10 January 1996. On 23 May 1996 the court allowed the applicant’s brother to visit him in prison. On 4 June 1996 the applicant again asked the court to allow his mother to visit him in prison. He also asked for permission to contact his family by phone. The court allowed him to make two phone calls but refused to give a visit permission to his mother since she had not yet given evidence before it.
38. On 12 July 1996 the applicant asked the court to allow him to speak on the phone to his brother and son. In August, the court allowed him to make a phone call to the son but not to the brother. Overall, in 1996 the applicant was allowed to make three phone calls; two in June and one in August
39. The applicant submits that the court permission to make phone calls was delivered too late to the prison authorities and, as a result, he could not make use of it.
40. The applicant’s mother was allowed to resume visits on 16 May 1997 and then, up to 21 November 1997, she visited him 9 times (16 and 25 May; 8 and 15 June; 29 August; 12 September; 3 and 24 October and 21 November 1997). The applicant’s brother was allowed to visit him on 21 and 26 May 1996 and on 4 November 1997.
41. Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1999, Polish criminal legislation was amended on several occasions.
In so far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (“the 1969 Code”), a law which is no longer in force as it was repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998.
The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see below).
The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (“the 1995 Interim Law”) came into force on 1 January 1996. Section 10(a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the 1969 Code in cases where such detention had been imposed before 4 August 1996 (see below, 3. “Statutory time-limits for detention on remand”).
42. At the material time the 1969 Code listed as “preventive measures” (środki zapobiegawcze), inter alia, detention on remand, bail and police supervision.
Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996):
“Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.”
Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant:
“1. The prosecutor may order detention on remand for a period not exceeding three months.
(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;
(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.”
Under Article 212 § 2 a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal.
43. Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant:
“Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society.”
On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read:
“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) [as it stood before 1 January 1996].”
Paragraph 2 of Article 217 then read:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
The 1969 Code contained provisions governing the imposition of specific preventive measures. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate.
Article 213 § 1 provided:
“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”
Article 225 stated:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”
The provisions of the 1969 Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.
Finally, Article 218 provided:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1)o it may seriously jeopardise the life or health of the accused; or
(2) oit would entail excessively burdensome effects for the accused or his family.”
44. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits on detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 1.”Imposition of detention on remand”; Article 222 in the version applicable until 4 August 1996).
Article 222 of the 1969 Code in the version applicable after 4 August 1996 provided, in so far as relevant:
“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”
45. On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:
“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”
However, as already mentioned (see above A. “Amendments to Polish criminal legislation”), under section 10 (a) of the 1995 Interim Law, different rules applied to persons whose detention on remand started prior to 4 August 1996. That section provided:
“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be kept in detention until the Supreme Court gives a decision on an application for prolongation of his detention under Article 222 § 4 of the Code of Criminal Procedure.
2. In cases mentioned in paragraph 1, if no [such] application has been lodged, detention shall be lifted not later than 1 January 1997.”
In cases where the Supreme Court dismissed an application under Article 222 § 4, a detainee had to be released. As long as it had not given its ruling, the application to the relevant court – which had the form of a decision (“postanowienie”) – was deemed to be a legal basis for the continued detention.
46. At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee’s application for release.
As regards the last of these, Article 214 of the 1969 Code stated that an accused could at any time apply to have a preventive measure lifted or varied. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.
Under Article 88 of the 1969 Code the participation of the parties at judicial sessions other than hearings was a matter for the discretion of the court. Sessions concerning an application for release, a prosecutor’s application for prolongation of detention or an appeal against a decision on detention on remand were held in camera. If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera.
At the material time the law did not give the detainee the right to participate – either himself or through his counsel – in any court session concerning his detention on remand. In practice, only the prosecutor was notified of, and could participate in, those sessions. If he was present, he was entitled to adduce arguments before the court. The prosecutor’s submissions were put on the record of the session (see also Włoch v. Poland, no. 27785/95, judgment of 19 October 2000, §§ 69-73).
Under all the relevant provisions read together a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or trial stage. However, no appeal lay in law either against a decision whereby the trial court applied, under Article 222 § 4, for prolongation of detention beyond the statutory time-limit, or against a decision of the Supreme Court prolonging detention under that provision.
47. At the material time Articles 82-90 of the Code of Execution of Criminal Sentences of 1969 dealt with the execution of detention on remand. The Code is no longer in force; it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 6 July 1997, which entered into force on 1 September 1998.
Under section 89 § 2 of the Code a detainee was allowed to receive visits from his family, or could contact his family by phone, provided that he obtained permission in writing from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial began). The authorities could order that a visit should take place in the presence of a prison guard. No appeal lay in law against decisions refusing to grant such permission.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-70035
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SZCZERBIN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Henryk Szczerbin, is a Polish national who was born in 1953 and lived in Torzym. The applicant died on 29 October 2001. The case has been pursued by his wife Krystyna Szczerbin.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of proceedings
On 12 September 1994 the applicant lodged a compensation claim with the Zielona Góra Regional Court (Sąd Wojewódzki) claiming compensation from the company “D” for its failure to pay under a lease.
The proceedings were terminated by the judgment of the Poznań Court of Appeal of 25 June 2002. On 3 August 2001, the date on which the application was lodged with the Court, they were pending before the Zielona Góra Regional Court.
2. Second set of proceedings
On 6 March 1998 the applicant lodged a compensation claim with the Zielona Góra Regional Court (Sąd Wojewódzki) claiming a supplementary compensation from “D”.
The proceedings are pending before the Poznań Court of Appeal.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-100717
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SOPOT v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Aleksey Vladimirovich Sopot, is a Russian national who was born in 1988 and is serving a prison sentence. He is represented before the Court by Mr Yu. Chigayev, a lawyer practising in Pechory, Pskov Region. The respondent Government are represented by Mr G. Matyushkin, 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.
The applicant has been disabled since childhood. He suffers from Scheuermann's disease (kyphosis), spinal arachnoiditis, and myelopathy. Following two operations in 2002 and 2005, he also developed spastic paraparesis.
On 25 February 2006 the applicant was arrested and charged with numerous offences, including murder and theft of firearms. His pre-trial detention was extended on several occasions.
On 11 October 2006 the Pskov Town Court of the Pskov Region extended the applicant's pre-trial detention until 14 November 2006. The applicant applied for release, referring to the seriousness of his condition and lack of medical assistance in the pre-trial detention facility. He also submitted medical documents indicating that he was in need of further examination and treatment at a specialised medical institution. The court decided that the applicant's ill-health did not render him unfit for detention.
On 8 November 2006 the Pskov Regional Court upheld the decision of 11 October 2006 on appeal. The applicant remained in detention pending investigation and trial.
On 18 January 2007 the Pskov Regional Court found the applicant guilty as charged and sentenced him to thirteen years' imprisonment.
On 15 March 2007 the Supreme Court of Russia upheld the applicant's conviction on appeal.
From 3 March 2006 to 18 January 2007 the applicant remained in custody pending investigation and consideration of the criminal charges against him. He was detained in remand prison no. 1 in Pskov. According to the documents submitted by the Government, the prison comprised a medical unit with qualified staff. The unit was licensed to carry out general treatment and therapy, lab testing, anaesthetics, intensive care, dentistry, psychiatric and substance abuse treatment, X-ray examination, ultrasonography, anti-tuberculosis treatment and surgery.
According to the medical file, the applicant received medical treatment and consultations as follows.
On 3 March 2006 he was examined by a general practitioner and had general tests, including fluorography and blood tests. Noting that the applicant's condition was typical of someone who had previously undergone spinal surgery, the doctor concluded that there was no need for any treatment.
On 25 August 2006 the applicant complained about regular pain around the surgical stitches and leg cramps. He was examined by the head of the medical unit who recommended a consultation with a neurologist.
On 27 September 2006 the applicant was examined by a general practitioner and a neurologist. The applicant complained of pain in the lumbar and thoracic regions. The doctors detected loss of sensitivity in his left leg, loss of mass in the right shin and partial paraparesis. The doctors prescribed pentoxyfilline, lucetam, cavinton, and diclofenac. The latter medication was not administered in view of the low severity of the pain. It was further recommended that the applicant undergo an X-ray examination and consult a neurosurgeon. The applicant received the remainder of the medication free of charge.
On 27 September 2006 the applicant had another fluorography.
On 28 September 2006 the applicant underwent an X-ray examination of the spinal cord.
On 12 October 2006 a regional hospital where the applicant had undergone treatment submitted certain medical documentation concerning the applicant's condition, including a medical certificate issued on 14 April 2006 by a district outpatient clinic and confirming that the applicant had undergone two operations on the spinal cord and that he was in need of further examination and another operation.
On 2 November 2006 the applicant was examined by a neurosurgeon from a regional hospital. He confirmed the earlier diagnosis, noting that the applicant's condition did not call for urgent surgery. He considered that, subject to the results of magnetic resonance imaging and computed tomography of the spinal cord, the applicant might require another operation on the spinal cord.
On 11 December 2006 the applicant was examined by an ophthalmologist.
On 12 December 2006 the remand prison prepared the documents necessary for the applicant's disability assessment.
On 26 December 2006 the Chief Medical Expert Bureau of the Pskov Region examined the applicant's medical file and classified his disability as “category three”. The applicant's appeal was to no avail.
The 1995 Law on the conditions of detention of suspects and accused (закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений») (as amended) provides that inmates are entitled to medical assistance (section 17). If an inmate's health deteriorates, the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing. If the inmate requests to be examined by staff of other medical institutions, the administration of the detention facility is to organise such an examination. If the administration refuses, the refusal can be appealed against to a prosecutor or court. If an inmate suffers from a serious disease, the administration of the remand prison is obliged immediately to inform the prosecutor, who can carry out an inquiry into the matter (section 24).


ITEMID: 001-85960
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GRIFFITHS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Malcolm Griffiths, is a British national who was born in 1941 and lives in Leigh. The applicant was unrepresented before this Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 26 February 1998. On 18 February 2002, the applicant made a claim for widows’ benefits. On 27 February 2002 the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant appealed. On 25 June 2002 the appeal tribunal confirmed the previous decision.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-84672
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NAGOVITSYN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1950 and lives in Kirov.
5. In 1986 the applicant took part in the cleaning up operation after the nuclear accident at the Chernobyl nuclear plant. He was subsequently registered disabled, becoming entitled to various social benefits, including the right to obtain a loan on preferential terms (льготный кредит) and free housing from the State.
6. According to the Government, the applicant lived in a four-room flat with six other members of his family. The flat measured 52 square metres. In 1996 this flat was officially categorised as a “communal dwelling” which gave the applicant the right to claim free housing from the State.
7. On an unspecified date the applicant requested Sberbank (a bank controlled by the State – hereafter “the bank”) to provide him with a preferential loan to purchase housing for himself and his family. However, he did not obtain the loan. Apparently there had been no agreement between the State and the banks regulating the allocation of such credits to Chernobyl victims.
8. In 1997 the applicant brought proceedings against the State and the bank, seeking to obtain a preferential loan, as provided by the Law on the welfare of Chernobyl victims (“the Chernobyl Law” – see “Relevant domestic law” below).
9. On 19 November 1997 the Leninskiy District Court of Kirov decided the case in his favour. It found that the applicant, as a Chernobyl victim, had the right to a preferential loan under section 14 (20) of the Chernobyl Law, but the Ministry of Finance had not yet signed an agreement with banks on the procedure for issuing such loans. The District Court ordered the Ministry of Finance to secure the applicant's right to the loan. That judgment was not appealed against and became final on 1 December 1997. The writ of execution was forwarded to the bailiff in Moscow, and on 27 July 1999 enforcement proceedings were commenced.
10. In the meantime, on 13 July 1999 the Ministry of Finance informed the applicant that the judgment of 19 November 1997 could not be enforced since the law relating to the federal budget did not allow the allocation of preferential loans to Chernobyl victims.
11. Later that year, referring to the lack of progress in the enforcement proceedings, the applicant requested the court to modify the operative part of the judgment of 1997. He sought to obtain compensation of 50% of the amount he needed to buy a flat. On 24 November 1999 the Leninskiy District Court modified the judgment of 19 November 1997 ordering the State to compensate the applicant for the cost of the flat he would buy.
12. On 27 December 1999 the applicant purchased a three-room flat in a house under construction from a developer. He paid 203,200 Russian roubles (RUB) for that flat.
13. On 10 April 2001 the Kirov Regional Court quashed the decision of 24 November 1999 and remitted the case to the district court for fresh examination. There is no information as to whether the applicant's request concerning the modification of the original judgment of 19 November 1997 was eventually satisfied.
14. On 10 October 2000, referring to the provisions of the Chernobyl Law, the applicant brought proceedings against the municipality of Moscow seeking an order to oblige them to provide him with a flat in Moscow. On 15 January 2001 the Presnenskiy District Court of Moscow dismissed his claim. On 14 May 2001 the Moscow City Court upheld the district court's decision.
15. On 8 August 2001 the applicant brought proceedings against the local municipality of Kirov claiming free accommodation. On 28 November 2001 the Leninskiy District Court of Kirov ruled in his favour and ordered the municipality to provide the applicant with appropriate housing for a family of three within three months, in accordance with existing housing and sanitary standards. That judgment was not appealed against and became final on 10 December 2001. On 11 January 2002 the bailiffs initiated enforcement proceedings.
16. On an unspecified date the municipality requested the court to stay the enforcement proceedings. They claimed that they had no free housing available to enforce the judgment of 28 November 2001. The applicant objected; he also asked the court to specify how the judgment of 28 November 2001 should be enforced.
17. By a supplementary judgment of 12 November 2002 the Leninskiy District Court dismissed the request of the municipality. The court also held that housing should be given to the applicant under a protected tenancy agreement. The court further held that the applicant had the right to acquire the housing through privatisation in accordance with section 14 (21) of the Chernobyl Law. In the operative part of the supplementary judgment the court held as follows:
“[the applicant] should be provided with housing either [on the basis of] a social tenancy or ...by way of transfer [of housing] into his ownership.”
That judgment was not appealed against and became final.
18. On 15 December 2002 the applicant registered himself as the owner of another flat in Kirov, which he had purchased some time earlier from a developer (see paragraph 12 above).
19. On 25 December 2002 the municipality formally deprived the applicant of the status of a person in need of better housing. On 29 May 2003 the municipality tried to reopen the case which had ended with the judgment of 28 November 2001, claiming that the applicant was no longer entitled to better housing. However, on 14 July 2003 the court refused to reopen the case.
20. On 22 June 2004 the municipality offered the applicant a two-room flat. According to the Government, since the flat offered to the applicant was smaller than the one awarded by the court judgment, the municipality also offered the applicant compensation to cover the difference. However, the applicant refused to accept the flat and the compensation.
21. In December 2004 the applicant was offered a three-room flat. However, he did not accept the offer.
22. On 5 April 2005 the municipality provided the applicant with another three-room flat. On 11 April 2005 the applicant signed a declaration which was formulated as follows:
“I declare that I accept, in execution of the judgment of 28 November 2001..., ... the three-room flat situated at 9/1, Stroiteley Avenue, ... measuring 40.28 square metres.
Taking into account the decision of the Leninskiy District Court of 12 November 2002, the flat should either be transferred into my ownership or the social tenancy agreement should stipulate that ... 'the owner shall transfer the flat into the ownership of the tenant at his first request.'
...
Otherwise I shall not consider that the judgment of the court is executed.”
23. On 13 April 2005 the applicant received the keys to flat no. 68, 9/1, Stroiteley Avenue. However, it appears that another tenant had already obtained the title to the flat by that time. Thus, on 6 May 2005 the municipality decided to allocate another flat to the applicant (no. 72). The applicant accepted the flat, and on 19 May 2005 he signed a social tenancy agreement with the municipality.
24. On 27 May 2005 the Mayor of Kirov wrote a letter to the applicant stating that “flat no. 72 would be transferred to the applicant, free of charge”.
25. The Law on social protection of citizens exposed to radiation as a result of the Chernobyl Nuclear Power Station explosion (“the Chernobyl Law”) of 15 May 1991, as in force at the material time, provides that persons who were registered disabled following their exposure to radioactive emissions are entitled to certain social benefits. In particular, they were entitled to free housing, where their existing accommodation did not comply with minimum housing standards (“a person in need of better housing”). The State undertook to provide such persons with accommodation within three months of placing them on a waiting list. The same law entitled them to obtain preferential credit - an interest-free loan for buying or constructing a house. It also provided that fifty per cent of the amount of the loan would be paid off by the State (section 14 (20) of the Chernobyl Law), under the condition that they are in need of better housing.
26. The Law of 27 December 2000 on the federal budget for 2001 suspended the application of section 20 (14) of the Chernobyl Law until 31 December 2000 because of the lack of funds. In the following years the application of this paragraph was repeatedly suspended by the laws relating to the federal budget.
27. On 22 August 2004 the law commonly known as “the Monetisation of Social Benefits Law” was passed (Law no. 122-FZ). That Law abrogated various non-monetary social benefits granted by the previous legislation (free housing, free medicine and so on) or replaced them with monetary payments. Section 3 (8) of that Law modified the wording of section 14 of the Chernobyl Law. In particular, the right to receive preferential loans from the State was excluded from the list of social benefits to which the Chernobyl victims were entitled.
28. For provisions governing the right to “social tenancy” of State-owned housing see Malinovskiy v. Russia, no. 41302/02, §§ 20 et seq., ECHR 2005... (extracts)).
29. Under Articles 13, 209 and 338 of the Code of Civil Procedure, a court judgment which has acquired legal force is binding and must be executed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60936
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 10. The first applicant, Refah Partisi (the Welfare Party – “Refah”), was a political party founded on 19 July 1983. It was represented by its chairman, Mr Necmettin Erbakan, who is also the second applicant. He was born in 1926 and lives in Ankara. An engineer by training, he is a politician. At the material time he was a member of Parliament and Refah’s chairman.
The third applicant, Mr Şevket Kazan, who was born in 1933, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah. The fourth applicant, Mr Ahmet Tekdal, who was born in 1931, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah.
11. Refah took part in a number of general and local elections. In the local elections in March 1989 Refah obtained about 10% of the votes and its candidates were elected mayor in a number of towns, including five large cities. In the general election of 1991 it obtained 16.88% of the votes. The sixty-two MPs elected as a result took part between 1991 and 1995 in the work of Parliament and its various committees, including the Committee on Constitutional Questions, which proposed amendments to Article 69 of the Constitution that became law on 23 July 1995. During the debate in Parliament on the new sixth paragraph of Article 69 of the Constitution (see paragraph 45 below) the chairman of the Committee on Constitutional Questions explained when he presented the draft it had prepared that the Constitutional Court would not restrict itself to noting the unconstitutional nature of the individual acts of the members of a party but would then be obliged to declare that the party concerned had become a centre of anticonstitutional activities on account of those acts. One MP, representing the parliamentary group of the Motherland Party, emphasised the need to change the relevant provisions of Law no. 2820 on the regulation of political parties to take account of the new sixth paragraph of Article 69 of the Constitution.
Ultimately, Refah obtained approximately 22% of the votes in the general election of 24 December 1995 and about 35% of the votes in the local elections of 3 November 1996.
The results of the 1995 general election made Refah the largest political party in Turkey with a total of 158 seats in the Grand National Assembly (which had 450 members at the material time). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path Party (Doğru Yol Partisi), led by Mrs Tansu Ciller. According to an opinion poll carried out in January 1997, if a general election had been held at that time, Refah would have obtained 38% of the votes. The same poll predicted that Refah might obtain 67% of the votes in the general election to be held roughly four years later.
12. On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” (mihrak) of activities contrary to the principles of secularism. In support of his application, he referred to the following acts and remarks by certain leaders and members of Refah.
– Whenever they spoke in public Refah’s chairman and other leaders advocated the wearing of Islamic headscarves in State schools and buildings occupied by public administrative authorities, whereas the Constitutional Court had already ruled that this infringed the principle of secularism enshrined in the Constitution.
– At a meeting on constitutional reform Refah’s chairman, Mr Necmettin Erbakan, had made proposals tending towards the abolition of secularism in Turkey. He had suggested that the adherents of each religious movement should obey their own rules rather than the rules of Turkish law.
– On 13 April 1994 Mr Necmettin Erbakan had asked Refah’s representatives in the Grand National Assembly to consider whether the change in the social order which the party sought would be “peaceful or violent” and would be achieved “harmoniously or by bloodshed”.
– At a seminar held in January 1991 in Sivas, Mr Necmettin Erbakan had called on Muslims to join Refah, saying that only his party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should therefore make donations to Refah rather than distributing alms to third parties.
– During Ramadan Mr Necmettin Erbakan had received the heads of the Islamist movements at the residence reserved for the Prime Minister, thus assuring them of his support.
– Several members of Refah, including some in high office, had made speeches calling for the secular political system to be replaced by a theocratic system. These persons had also advocated the elimination of the opponents of this policy, if necessary by force. Refah, by refusing to open disciplinary proceedings against the members concerned and even, in certain cases, facilitating the dissemination of their speeches, had tacitly approved the views expressed.
– On 8 May 1997 a Refah MP, Mr İbrahim Halil Çelik, had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “İmam-Hatip” theological colleges, that the situation might become worse than in Algeria, that he personally wanted blood to flow so that democracy could be installed in the country, that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of Islamic law (sharia).
– The Minister of Justice, Mr Şevket Kazan (a Refah MP and vice-chairman of the party), had expressed his support for the mayor of Sincan by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international Islamist terrorist groups.
Principal State Counsel further observed that Refah had not opened any disciplinary proceedings against those responsible for the above-mentioned acts and remarks.
13. On 7 July 1997 Principal State Counsel submitted new evidence against Refah to the Constitutional Court.
14. On 4 August 1997 Refah’s representatives filed their defence submissions, in which they relied on international human-rights protection instruments, including the Convention, pointing out that these instruments formed part of Turkish written law. They further referred to the case-law of the Commission, which had expressed the opinion that Article 11 of the Convention had been breached in the cases concerning the United Communist Party of Turkey and the Socialist Party, and to the case-law of the Court and the Commission on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution of Refah was not prompted by a pressing social need and was not necessary in a democratic society. Nor, according to Refah’s representatives, was their party’s dissolution justified by application of the “clear and present danger” test laid down by the Supreme Court of the United States of America.
15. Refah’s representatives further rejected Principal State Counsel’s argument that the party was a “centre” of activities which undermined the secular nature of the Republic. They submitted that Refah was not caught by the criteria laid down in the Law on the regulation of political parties for determining whether a political party constituted a “centre of anticonstitutional activities”. They observed, inter alia, that the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code.
16. Refah’s representatives also set out their point of view on the concept of secularism. They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity.
17. The applicants’ representatives alleged that in accusing Mr Necmettin Erbakan of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context. Moreover, these remarks were covered by Mr Necmettin Erbakan’s parliamentary immunity. They further noted that the dinner he had given to senior officials of the Religious Affairs Department and former members of the theology faculty had been presented by Principal State Counsel as a reception organised for the leaders of Islamist fundamentalist movements, which had in any event been legally proscribed since 1925.
18. With regard to the remarks of the other Refah leaders and members criticised by Principal State Counsel’s Office, Refah’s representatives observed that these did not constitute any criminal offence.
They asserted that none of the MPs whose speeches had been referred to by Principal State Counsel was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation of political parties so as to give Refah the opportunity, if the need arose, to decide whether or not the persons concerned should continue to be members of the party; the first time Refah’s leadership had been informed of the remarks criticised in the case had been when they read Principal State Counsel’s submissions. The three MPs under attack had been expelled from the party, which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the meaning of the Law on the regulation of political parties.
19. On 5 August 1997 Principal State Counsel filed his observations on the merits of the case with the Constitutional Court. He submitted that according to the Convention and the case-law of the Turkish courts on constitutional-law issues nothing obliged States to tolerate the existence of political parties that sought the destruction of democracy and the rule of law. He contended that Refah, by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the requirements of a democratic society. Refah’s aim to establish a plurality of legal systems (in which each group would be governed by a legal system in conformity with its members’ religious beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the Republic.
20. In their observations on the merits of the case, Refah’s representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of Article 11 of the Convention. They went on to say that Article 17 was not applicable in the case, as Refah had nothing in common with political parties which sought to install a totalitarian regime. Furthermore, the plurality of legal systems which their party proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction.
21. On 11 November 1997 Principal State Counsel submitted his observations orally. On 18 and 20 November 1997 Mr Necmettin Erbakan submitted his oral observations on behalf of Refah.
22. In a judgment of 9 January 1998, which it delivered following proceedings on preliminary issues it had instituted of its own motion as the court dealing with the merits, the Constitutional Court ruled that, regard being had to Article 69 § 6 of the Constitution, the second paragraph of section 103 of the Law on the regulation of political parties was unconstitutional and declared it null and void. Article 69 § 6, taken together with section 101(d) of the same Law, provided that for a political party to be considered a “centre” of activities contrary to the fundamental principles of the Republic its members had to have been convicted of criminal offences. According to the Constitutional Court, that legal restriction did not cover all cases where the principles of the Republic had been flouted. It pointed out, among other observations, that after the repeal of Article 163 of the Criminal Code activities contrary to the principle of secularism no longer attracted criminal penalties.
23. On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism”. It based its decision on sections 101(b) and 103(1) of Law no. 2820 on the regulation of political parties. It also noted the transfer of Refah’s assets to the Treasury as an automatic consequence of dissolution, in accordance with section 107 of Law no. 2820.
24. In its judgment the Constitutional Court first dismissed the preliminary objections raised by Refah. In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in Principal State Counsel’s submissions of 21 May 1997 had nothing to do with consideration of an application for the dissolution of a political party and forfeiture of political rights by its members, but was a question of the criminal responsibility of the MPs concerned, which was not a matter of constitutional law.
25. With regard to the merits, the Constitutional Court held that while political parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The rules of sharia were incompatible with the democratic regime. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society.
26. The Constitutional Court held that the following evidence proved that Refah had become a centre of activities contrary to the principle of secularism (see paragraphs 27-39 below):
27. Refah’s chairman, Mr Necmettin Erbakan, had encouraged the wearing of Islamic headscarves in public and educational establishments. On 10 October 1993, at the party’s Fourth Ordinary General Meeting, he had said:
“... when we were in government, for four years, the notorious Article 163 of the Persecution Code was never applied against any child in the country. In our time there was never any question of hostility to the wearing of headscarves ...”
In his speech of 14 December 1995 before the general election he had said:
“... [university] chancellors are going to retreat before the headscarf when Refah comes to power.”
But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs. That finding was supported by various rulings of the Constitutional Court and the Supreme Administrative Court and by the case-law of the European Commission of Human Rights on applications nos. 16278/90 and 18783/91 concerning the wearing of headscarves at universities.
28. The plurality of legal systems proposed by Mr Necmettin Erbakan was nothing to do with the freedom to enter into contracts as Refah claimed, but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime. On 23 March 1993 Mr Erbakan had made the following speech to the National Assembly:
“... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished. There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history. In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose one’s own legal system is an integral part of the freedom of religion.”
In addition, Mr Necmettin Erbakan had spoken as follows on 10 October 1993 at a Refah party conference:
“... we shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers. We shall free the administration from centralism. The State which you have installed is a repressive State, not a State at the people’s service. You do not allow the freedom to choose one’s code of law. When we are in power a Muslim will be able to get married before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.”
29. The plurality of legal systems advocated by Mr Necmettin Erbakan in his speeches had its origin in the practice introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and polytheist communities the right to live according to their own legal systems, not according to Islamic law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a model of peaceful social co-existence under which each religious group would be free to choose its own legal system. Since the foundation of the Nizam Party in 1970 (dissolved by a judgment of 2 May 1971) Mr Necmettin Erbakan had been seeking to replace the single legal system with a plurality of legal systems.
30. The Constitutional Court further observed that in a plurality of legal systems, as proposed by Refah, society would have to be divided into several religious movements; each individual would have to choose the movement to which he wished to belong and would thus be subjected to the rights and obligations prescribed by the religion of his community. The Constitutional Court pointed out that such a system, whose origins lay in the history of Islam as a political regime, was inimical to the consciousness of allegiance to a nation having legislative and judicial unity. It would naturally impair judicial unity since each religious movement would set up its own courts and the ordinary courts would be obliged to apply the law according to the religion of those appearing before them, thus obliging the latter to reveal their beliefs. It would also undermine legislative and judicial unity, the preconditions for secularism and the consciousness of nationhood, given that each religious movement would be empowered to decree what legal rules should be applicable to its members.
31. In addition, Mr Necmettin Erbakan had made a speech on 13 April 1994 to the Refah group in Parliament in which he had advocated setting up a theocratic regime, if necessary through force:
“The second important point is this: Refah will come to power and a just [social] order [adil dozen] will be established. The question we must ask ourselves is whether this change will be violent or peaceful; whether it will entail bloodshed. I would have preferred not to have to use those terms, but in the face of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel obliged to do so. Today Turkey must take a decision. The Welfare Party will establish a just order, that is certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? The sixty million [citizens] must make up their minds on that point.”
32. The reception given by Mr Necmettin Erbakan at the Prime Minister’s residence to the leaders of various religious movements, who had attended in vestments denoting their religious allegiance, unambiguously evidenced Refah’s chairman’s support for these religious groups vis-à-vis public opinion.
33. In a public speech in April 1994 Mr Şevki Yılmaz, MP for the province of Rize, had issued a clear call to wage a jihad and had argued for the introduction of Islamic law, making the following declaration:
“We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s Messenger of his jurisdiction in their country.”
In another public speech, also in April 1994, Mr Şevki Yılmaz had said:
“In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach, you preach. ... None of that is part of the chapter on jihad but of that on the amel-i salih [peacetime activities]. Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he made it a requirement for warriors [cahudi]. What does that mean? That jihad must be waged by an army! The commander is identified ... The condition to be met before prayer [namaz] is the Islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim ... It is not erecting vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have reached a sufficient level ... today, if Muslims have a hundred liras, they must give thirty to the Koranic schools, to train our children, girls and boys, and sixty must be given to the political establishments which open the road to power. Allah asked all His prophets to fight for power. You cannot name a single member of a religious movement who does not fight for power. I tell you, if I had as many heads as I have hairs on my head, even if each of those heads were to be torn from my shoulders for following the way of the Koran, I would not abandon my cause ... The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved. Even Abraham the Jew has realised that in this country the symbol of Islam is Refah. He who incites the Muslim community [cemaat] to take up arms before political power is in Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not to talk, but to apply the war plan, as soldiers in the army ...”
Criminal proceedings had been brought against Mr Şevki Yılmaz. Although his antipathy to secularism was well-known, Refah had adopted him as a candidate in local-government elections. After he had been elected mayor of Rize, Refah had made sure that he was elected as an MP in the Turkish Grand National Assembly.
34. In a public speech on 14 March 1993 and a television interview first recorded in 1992 and rebroadcast on 24 November 1996, Mr Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, had encouraged discrimination between believers and non-believers and had predicted that if the supporters of applying sharia came to power they would annihilate nonbelievers:
“Our homeland belongs to us, but not the regime, dear brothers. The regime and Kemalism belong to others. ... Turkey will be destroyed, gentlemen. People say: Could Turkey become like Algeria? Just as, in Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not waste your energy on us – I am speaking here to you, to those ... of the imperialist West, the colonising West, the wild West, to those who, in order to unite with the rest of the world, become the enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people of Kırıkkale.’ ”
“... the army says: ‘We can accept it if you’re a supporter of the PKK, but a supporter of sharia, never.’ Well you won’t solve the problem with that attitude. If you want the solution, it’s sharia.”
Refah had ensured that Mr Ceylan was elected as an MP and its local branches had played videotapes of this speech and the interview.
35. Refah’s vice-chairman, Mr Ahmet Tekdal, in a speech he made in 1993 while on pilgrimage in Saudi Arabia which was shown by a Turkish television station, had said that he advocated installing a regime based on sharia:
“In countries which have a parliamentary regime, if the people are not sufficiently aware, if they do not work hard enough to bring about the advent of ‘hak nizami’ [a just order or God’s order], two calamities lie ahead. The first calamity is the renegades they will have to face. They will be tyrannised by them and will eventually disappear. The second calamity is that they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘hak nizami’. And so they will likewise perish. Venerable brothers, our duty is to do what is necessary to introduce the system of justice, taking these subtleties into consideration. The political apparatus which seeks to establish ‘hak nizami’ in Turkey is the Welfare Party.”
36. On 10 November 1996 the mayor of Kayseri, Mr Şükrü Karatepe, had urged the population to renounce secularism and asked his audience to “keep their hatred alive” until the regime was changed, in the following terms:
“The dominant forces say ‘either you live as we do or we will sow discord and corruption among you’. So even Welfare Party Ministers dare not reveal their world-outlook inside their Ministries. This morning I too attended a ceremony in my official capacity. When you see me dressed up like this in all this finery, don’t think it’s because I’m a supporter of secularism. In this period when our beliefs are not respected, and indeed are blasphemed against, I have had to attend these ceremonies in spite of myself. The Prime Minister, other Ministers and MPs have certain obligations. But you have no obligations. This system must change. We have waited, we will wait a little longer. Let us see what the future has in store for us. And let Muslims keep alive the resentment, rancour and hatred they feel in their hearts.”
Mr Şükrü Karatepe had been convicted of inciting the people to hatred on the ground of religion.
37. On 8 May 1997 Mr İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, had spoken in Parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in Algeria:
“If you attempt to close down the ‘İmam-Hatip’ theological colleges while the Welfare Party is in government, blood will flow. It would be worse than in Algeria. I too would like blood to flow. That’s how democracy will be installed. And it will be a beautiful thing. The army has not been able to deal with 3,500 members of the PKK. How would it see off six million Islamists? If they piss into the wind they’ll get their faces wet. If anyone attacks me I will strike back. I will fight to the end to introduce sharia.”
Mr İbrahim Halil Çelik had been expelled from the party one month after the application for dissolution had been lodged. His exclusion had probably only been an attempt to evade the penalty in question.
38. Refah’s vice-chairman, the Minister of Justice, Mr Şevket Kazan, had visited a person detained pending trial for activities contrary to the principle of secularism, thus publicly lending him his support as a Minister.
39. On the basis of the evidence adduced on 7 July 1997 by Principal State Counsel’s Office, the Constitutional Court held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism:
– In a public speech on 7 May 1996 Mr Necmettin Erbakan had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish Islamic order:
“... A State without television is not a State. If today, with your leadership, you wished to create a State, if you wanted to set up a television station, you would not even be able to broadcast for more than twenty-four hours. Do you believe it is as easy as that to create a State? That’s what I told them ten years ago. I remember it now. Because today people who have beliefs, an audience and a certain vision of the world, have a television station of their own, thanks be to God. It is a great event.
Conscience, the fact that the television [channel] has the same conscience in all its programmes, and that the whole is harmonious, is very important. A cause cannot be fought for without [the support of] television. Besides, today we can say that television plays the role of artillery or an air force in the jihad, that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it. That is why the jihad of today cannot be waged without television. So, for something so vital, sacrifices must be made. What difference does it make if we sacrifice money? Death is close to all of us. When everything is dark, after death, if you want something to show you the way, that something is the money you give today, with conviction, for Kanal 7. It was to remind you of that that I shared my memories with you.
... That is why, from now on, with that conviction, we will truly make every sacrifice, until it hurts. May those who contribute, with conviction, to the supremacy of Hakk [Allah] be happy. May Allah bless you all, and may He grant Kanal 7 even more success. Greetings.”
– By a decree of 13 January 1997 the cabinet (in which the Refah members formed a majority) had reorganised working hours in public establishments to make allowances for fasting during Ramadan. The Supreme Administrative Court had annulled this decree on the ground that it undermined the principle of secularism.
40. The Constitutional Court observed that it had taken into consideration international human-rights protection instruments, including the Convention. It also referred to the restrictions authorised by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context that Refah’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia. The Constitutional Court observed:
“Democracy is the antithesis of sharia. [The] principle [of secularism], which is a sign of civic responsibility, was the impetus which enabled the Turkish Republic to move on from Ummah [ümmet – the Muslim religious community] to the nation. With adherence to the principle of secularism, values based on reason and science replaced dogmatic values. ... Persons of different beliefs, desiring to live together, were encouraged to do so by the State’s egalitarian attitude towards them. ... Secularism accelerated civilisation by preventing religion from replacing scientific thought in the State’s activities. It creates a vast environment of civic responsibility and freedom. The philosophy of modernisation of Turkey is based on a humanist ideal, namely living in a more human way. Under a secular regime religion, which is a specific social institution, can have no authority over the constitution and governance of the State. ... Conferring on the State the right to supervise and oversee religious matters cannot be regarded as interference contrary to the requirements of democratic society. ... Secularism, which is also the instrument of the transition to democracy, is the philosophical essence of life in Turkey. Within a secular State religious feelings simply cannot be associated with politics, public affairs and legislative provisions. Those are not matters to which religious requirements and thought apply, only scientific data, with consideration for the needs of individuals and societies.”
The Constitutional Court held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim, the Constitution and supranational human-rights protection rules authorised its dissolution.
41. The Constitutional Court observed that the public statements of Refah’s leaders, namely those of Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, had directly engaged Refah’s responsibility with regard to the constitutionality of its activities. It further observed that the public statements made by MPs Mr Şevki Yılmaz, Mr Hasan Hüseyin Ceylan and Mr İbrahim Halil Çelik, and by the mayor of Kayseri, Mr Şükrü Karatepe, had likewise engaged the party’s responsibility since it had not reacted to them in any way or sought to distance itself from them, or at least not before the commencement of the dissolution proceedings.
42. As an additional penalty, the Constitutional Court decided to strip Necmettin Erbakan, Şevket Kazan, Ahmet Tekdal, Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik of their MP status, in accordance with Article 84 of the Constitution. It found that these persons, by their words and deeds, had caused Refah’s dissolution. The Constitutional Court also banned them for five years from becoming founding members, ordinary members, leaders or auditors of any other political party, pursuant to Article 69 § 8 of the Constitution.
43. Judges Haşim Kılıç and Sacit Adalı expressed dissenting opinions stating, inter alia, that in their view the dissolution of Refah was not compatible either with the provisions of the Convention or with the caselaw of the European Court of Human Rights on the dissolution of political parties. They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking.
44. This judgment was published in the Official Gazette on 22 February 1998.
45. The relevant provisions of the Constitution read as follows:
“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”
“No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”
“Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be delegated to an individual, a group or a social class. ...”
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical beliefs, religion, membership of a religious sect or other similar grounds.”
“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious organisation, or establishing by any other means a State political system based on such concepts and opinions.”
“No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.”
“The constitutions, rule books and activities of political parties shall not be incompatible with the independence of the State, the integrity of State territory and of the nation, human rights, the principles of equality and the rule of law, national sovereignty or the principles of a democratic, secular republic. No political party may be founded with the aim of advocating and establishing the domination of one social class or group, or a dictatorship in any form whatsoever. ...”
“... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by Principal State Counsel at the Court of Cassation.”
“... A political party may not be dissolved on account of activities contrary to the provisions of Article 68 § 4 unless the Constitutional Court has held that the political party concerned constitutes a centre of such activities.”
This provision of the Constitution was added on 23 July 1995.
“... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette ...”
“Forfeiture of the status of member
Where the Council of the Presidency of the Grand National Assembly has validated the resignation of members of Parliament, the loss of their status as members shall be decided by the Grand National Assembly in plenary session.
A convicted member of Parliament shall not forfeit the status of member until the court which convicted him has notified the plenary Assembly of the final judgment.
A member of Parliament who continues to hold an office or carry on an activity incompatible with the status of member, within the meaning of Article 82, shall forfeit that status after a secret ballot of the plenary Assembly held in the light of the relevant committee’s report showing that the member concerned holds or carries on the office or activity in question.
Where the Council of the Presidency of the Grand National Assembly notes that a member of Parliament, without valid authorisation or excuse, has failed, for a total of five days in one month, to take part in the work of the Assembly, that member shall forfeit the status of member where by majority vote the plenary Assembly so decides.
The term of office of a member of Parliament whose words and deeds have, according to the Constitutional Court’s judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.”
46. The relevant provisions of Law no. 2820 read as follows:
“Political parties
... shall not aim or strive to or incite third parties to
...
– jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.
...”
“The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.”
“The Constitutional Court shall dissolve a political party
...
(b) where its general meeting, central office or executive committee ... takes a decision, issues a circular or makes a statement ... contrary to the provisions of Chapter 4 of this Law [This chapter (from section 78 to section 97), which concerns restrictions on the activities of political parties, provides, inter alia, that such activities may not be conducted to the detriment of the democratic constitutional order (including the sovereignty of the people and free elections), the nature of the nation State (including national independence, national unity and the principle of equality), and the secular nature of the State (including observance of the reforms carried out by Atatürk, the prohibition on exploiting religious feelings and the prohibition on religious demonstrations organised by political parties)], or where the chairman, vice-chairman or general secretary makes any written or oral statement contrary to those provisions.
...
(d) Where acts contrary to the provisions of Chapter 4 of this Law have been committed by organs, authorities or councils other than those mentioned in sub-paragraph (b), State Counsel shall, within two years of the act concerned, require the party in writing to disband those organs and/or authorities and/or councils. State Counsel shall order the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Part 4.
State counsel shall institute proceedings for the dissolution of any political party which fails to comply with the instructions in his letter within thirty days of its service. If, within thirty days of service of State Counsel’s application, the organs, authorities or councils concerned have been disbanded by the party, and the member or members in question have been permanently excluded, the dissolution proceedings shall lapse. If not, the Constitutional Court shall consider the case on the basis of the file and shall adjudicate after hearing, if necessary, the oral submissions of State Counsel, the representatives of the political party and all those capable of providing information about the case ...”
“Where it is found that a political party has become a centre of activities contrary to the provisions of sections 78 to 88 ... of the present Law, the party shall be dissolved by the Constitutional Court.”
“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”
47. Paragraph 2 of section 103, which the Constitutional Court declared unconstitutional on 9 January 1998, prescribed the use of the procedure laid down in section 101(d) for determination of the question whether a political party had become a centre of anti-constitutional activities.
48. This provision was worded as follows:
“It shall be an offence, punishable by eight to fifteen years’ imprisonment, to establish, found, organise, regulate, direct or administer associations with the intention of adapting the fundamental legal, social, economic or political bases of the State, even in part, to religious beliefs.
It shall be an offence, punishable by five to twelve years’ imprisonment, to be a member of an association of that type or to incite another to become a member.
It shall be an offence, punishable by five to ten years’ imprisonment, to spread propaganda in any form or to attempt to acquire influence by exploiting religion, religious feelings or objects regarded as sacred by religion in a manner contrary to the principle of secularism and with the intention of adapting the fundamental legal, social, economic or political bases of the State, even in part, to religious beliefs or of serving political interests.
It shall be an offence, punishable by two to five years’ imprisonment, to spread propaganda in any form or to attempt to acquire influence, with the aim of serving one’s personal interests or obtaining advantages, by exploiting religion, religious feelings, objects regarded as sacred by religion or religious books.
Where the acts mentioned above are committed on the premises of the public administrative authorities, municipal councils, publicly owned undertakings whose capital, or part of whose capital, belongs to the State, trade unions, workers’ organisations, schools, or institutions of higher education, or by civil servants, technicians, doorkeepers or members of such establishments, the penalty shall be increased by a third.
Where the acts mentioned in the third and fourth paragraphs above are committed by means of publications, the penalty shall be increased by a half.”
NON_VIOLATED_ARTICLES: 11
NON_VIOLATED_PARAGRAPHS: 11-1