ITEMID: 001-107044
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND IVANOV v. BULGARIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - award
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 7. The background to the case is described in detail in the Court’s judgments in the cases of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (nos. 29221/95 and 29225/95, ECHR 2001IX) and United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98, 20 October 2005).
8. On 30 March 2004 the second applicant and two other members of Ilinden notified the Mayor of Sandanski that the organisation intended to stage a rally between 10 a.m. and 4 p.m. on 18 April 2004 at the grave of Yane Sandanski near the Rozhen Monastery, to commemorate the anniversary of his “dastardly murder”. The event would include laying flowers at the grave, making speeches about the life and the activity of Yane Sandanski, and a “cultural programme”.
9. On 13 April 2004 the Mayor of Sandanski, without giving reasons for his decision, advised the organisers that Ilinden could hold a rally between 10 a.m. and 12 noon on 18 April 2004, and that it could include laying flowers on the grave of Yane Sandanski and making speeches about him.
10. On the morning of 18 April 2004 the organisers of the rally built a stage near the grave and started decorating it. According to them, at about 10.30 a.m. a plainclothes police officer, accompanied by two uniformed police officers, approached and told them to stop decorating the stage, as the Mayor’s permission was valid only until 12 noon, and after that they were to leave the area. That statement led to tension, with some of the participants reacting forcefully. After that the rally was allowed to proceed. The Government disputed that assertion. According to them, the rally took place without incident and was attended by more than two hundred foreign guests, including representatives of the embassy of “the former Yugoslav Republic of Macedonia” and a number of Bulgarian and Macedonian journalists. According to the applicants, no other organisations held events at Yane Sandanski’s grave between 8 a.m. and 4 p.m. on that day.
11. According to the applicants, in the days before the rally the local radio and cable television stations reported that the rally had been banned and was not to be attended. The Government disputed that assertion.
12. On 19 April 2004 Ilinden notified the Mayor of Blagoevgrad of its intention of staging a rally at 3 p.m. on 4 May 2004 in front of the monument to “the great Macedonian revolutionary” Gotse Delchev in Blagoevgrad, to commemorate the anniversary of his assassination by laying flowers. The rally would start in front of the American University in Blagoevgrad and make its way to Macedonia Square, where the monument was located.
13. In a letter dated 20 April and received by Ilinden on 24 April 2004 the Mayor of Blagoevgrad informed it that “[e]very citizen of the Republic of Bulgaria [had] the right to pay his respect to the memory of the national heroes and lay flowers at their monuments”. However, in the way it had been planned, the rally was in fact a procession. To proclaim Gotse Delchev a “Macedonian revolutionary” was “unconstitutional and provocative”. The rally was likely to stir unrest and breaches of public order, as had happened in the past. Moreover, the holding of rallies presupposed registration, proof of which Ilinden had not presented. Finally, the municipality had planned an event on Macedonia Square for the same date, to mark the “May holidays”, which made the holding of the rally impossible.
14. On 26 April 2004 Ilinden sought judicial review of the Mayor’s decision by the Blagoevgrad District Court (“Благоевградски районен съд”). It appears that the court instructed Ilinden to provide proof of registration, which it did not produce. In a decision of 4 May 2004 the court declared the application for judicial review inadmissible. It noted that on 18 November 2002 Ilinden had been refused registration as a non-profit association (see United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, §§ 1216, 18 October 2011). In view of this and of the fact that the application concerned a rally which was due to take place on the day of the court’s decision – 4 May 2004 – it was obvious that the court’s instructions could not be complied with. The application was therefore defective and could not be examined.
15. In the meantime, on 3 May 2004, the police, relying on section 62 of the 1997 Ministry of Internal Affairs Act (see paragraph 108 below), ordered the head of Ilinden’s Blagoevgrad chapter not to organise “rallies by members of the organisation ... without permission by the Mayor of Blagoevgrad and in breach of the [1990] Meetings and Marches Act”. The order further admonished him to “coordinate the members of Ilinden to prevent demonstrations with foreign ... flags and other symbols, or the display of placards ... with antiBulgarian slogans, which [was] likely to incite unrest and breaches of public order”. Another member of Ilinden was ordered not to commemorate the anniversary of the death of Gotse Delchev or “use propaganda materials against the Republic of Bulgaria and the Constitution of the Republic of Bulgaria”.
16. Nevertheless, on 4 May 2004 members of Ilinden were able to lay flowers on the monument, but were not allowed to carry flags or placards. According to the applicants, the municipality did not hold any event on that day. According to the Government, the municipality held the traditional celebration which was open to all comers, including members of Ilinden.
17. On 19 July 2004 the head of Ilinden’s chapter in Petrich notified the Mayor that the organisation intended to stage a rally in the area of Samuilova Krepost between 10.30 a.m. and 4 p.m. on 1 August 2004, to mark the anniversary of the Ilinden uprising.
18. In a letter of 22 July 2004 the Mayor of Petrich advised Ilinden that it did not have permission to hold the rally, as another organisation, VMRO, had already applied for and been granted permission to hold an event at the same place and at the same time.
19. On 29 July 2004 Ilinden sought judicial review of the Mayor’s decision by the Petrich District Court (“Петрички районен съд”). In a decision of 30 July 2004 the court discontinued the proceedings. It held that under the 1990 Meetings and Marches Act (see paragraph 107 below) the holding of rallies was not subject to permission by the Mayor. On the other hand, in certain limited cases the Mayor could ban a rally. The Mayor’s letter did not amount to a ban; it could be regarded as a mere proposal to alter the time and place of the rally. There was therefore no valid administrative decision to be reviewed and the application for judicial review was pointless.
20. On 1 August 2004 Ilinden held its rally in Samuilova Krepost, apparently without disturbance by the authorities or by hostile counterdemonstrators. According to the Government, the authorities did everything to ensure the smooth unfolding of the event, including asking VMRO to reschedule its event and instructing the management of the site not to collect the usual fees for visiting it. According to the applicants, VMRO did not have any real intention to hold an event at that date and had coordinated their request with the police.
21. On 23 August 2004 Ilinden notified the Mayor of Blagoevgrad of its intention to hold a rally at 3 p.m. on 12 September 2004, “to commemorate the Macedonians who fell victim to State terrorism and genocide in Bulgaria”, by laying wreaths and making a short speech in front of Gotse Delchev’s monument on Macedonia Square.
22. In a letter dated 24 August 2004 and received by Ilinden on 3 September 2004 the Mayor said that the phrase “to commemorate the Macedonians who fell victim to State terrorism in Bulgaria” showed that the event Ilinden sought to organise would lead to breaches of public order and conflicts, as had happened in the past. Moreover, the holding of rallies presupposed registration, which had not been proved. Finally, the municipality had planned an event on Macedonia Square for the same date, to mark the beginning of the school year, which made the holding of the rally impossible.
23. Ilinden sought judicial review of the ban by the Blagoevgrad District Court. In a decision of 8 September 2004, notified to Ilinden on 10 September 2004, the court instructed it to provide evidence of, inter alia, its registration.
24. At about 2.30 p.m. on 12 September 2004 members and supporters of Ilinden gathered in front of the American University in Blagoevgrad, with a view to marching to Macedonia Square. They were surrounded by about twentyfive uniformed police officers. Two plainclothes officers approached the leaders of the rally and asked them to leave the placards and banners they were carrying. At about 3 p.m. the participants in the rally marched to Macedonia Square, holding up one flag and three placards. They were surrounded by police, who apparently told them several times to put the flag and the placards down. About eighty metres from the monument a group of some forty police officers stopped the participants. A group of about fifteen counter-demonstrators from VMRO were assembled at the base of the monument, waving flags and shouting insults at the participants in the rally. According to the applicants, the counterdemonstrators had not notified the Mayor of their intention to hold an event.
25. According to the applicants, the police told the participants in Ilinden’s rally that, to be allowed to approach the monument, they had to put down their flags and placards, remove the ribbon from the wreath which they were carrying, and proceed one by one. As the participants refused to comply, they were not allowed to approach the monument.
26. According to the Government, Ilinden’s failure to take into account the reasons given by the Mayor sparked an angry reaction on the part of citizens around the monument. The police protected the participants in Ilinden’s rally from the angry bystanders and allowed them to approach the monument.
27. On 4 April 2005 Ilinden notified the Mayor of Sandanski that it intended to organise a rally at the grave of Yane Sandanski near the Rozhen Monastery, to take place between 10.30 a.m. and 3 p.m. on 23 April 2005.
28. In a letter of 5 April 2005 the Mayor said that an event had been planned for that date by a vocational training school, which had given notice of it on an earlier date – 10 March 2005 – and that Ilinden would therefore have to change the date, time and place of its rally.
29. On 8 April 2005 Ilinden objected, saying that they could not change the date and the time because according to Macedonian cultural tradition the dead had to be commemorated either on the day of their death or on the closest Saturday, and that, moreover, the grave had to be accessible to everyone. It also said that it could change the place of its rally from the front of a church located near the grave to the back of the church.
30. On 11 April 2005 Ilinden sought judicial review by the Sandanski District Court (“Сандански районен съд”), arguing that the Mayor’s refusal to allow its rally because of another event was unfounded, as there was enough room near the Rozhen Monastery for both to proceed. In a decision of 13 April 2005 the Sandanski District Court found that the application for judicial review was inadmissible. Only bans on rallies were subject to judicial review, whereas the Mayor’s letter did not amount to such a ban. Even assuming that it could be regarded as a ban, it had not been previously appealed before the municipal council, as required under section 12(4) of the 1990 Meetings and Marches Act (see paragraph 107 below). The decision was served on the second applicant on 13 April 2005.
31. At 10.30 a.m. on 23 April 2005 members and supporters of Ilinden assembled near Rozhen Monastery, building a stage with posters about three hundred metres from the grave of Yane Sandanski. The applicants asserted that at approximately 10.30 a.m. several police officers told them to remove the posters because at 11 a.m. a group of pupils would be coming to lay wreaths at the grave and on the posters they would see that Yane Sandanski was being proclaimed not as a Bulgarian, but as a Macedonian revolutionary. After the pupils left the scene, the participants in the rally were allowed to put the posters back up. According to the Government, Ilinden reneged on a previous undertaking to move its rally two hundred metres to the west. Despite Ilinden’s numerous breaches of the Mayor’s order, the police intervened only to allow the pupils of the vocational training school to commemorate Yane Sandanski. After that, the pupils were asked to leave the area, so as to avoid “physical and other” conflicts with Ilinden’s members and supporters. The applicants said that no “physical conflicts” had been likely because the participants in the rally had withdrawn to about two hundred metres from the grave and, moreover, knew and respected the teachers.
32. According to the applicants, during the rally several plainclothes police officers had threatened participants with arrest.
33. On 18 April 2005 Ilinden notified the Mayor of Blagoevgrad of its intention to hold a rally at 3 p.m. on 4 May 2005 on Macedonia Square, where it would lay wreaths on the monument to Gotse Delchev and make a short speech. The rally would start in front of the American University in Blagoevgrad and make its way to Macedonia Square, where the monument was located.
34. In a letter of 19 April 2005 the Mayor of Blagoevgrad informed Ilinden that “[e]very citizen of the Republic of Bulgaria [had] the right to pay his respects to the memory of the national heroes and lay flowers at their monuments”. However, in the way it had been planned, the rally was in fact a procession. It was likely to cause breaches of public order and unrest, as had happened in the past. Moreover, the holding of rallies presupposed registration, proof of which Ilinden had not presented. Finally, the municipality had planned an event on Macedonia Square for the same date: a children’s holiday, which made the holding of the rally impossible.
35. On 21 April 2005 Ilinden sought judicial review of the ban by the Blagoevgrad District Court. On the same day it also appealed against the ban to the Blagoevgrad Municipal Council.
36. In a letter of 22 April 2005 the chairman of the Municipal Council rejected the appeal, on the ground that the Mayor’s decision was lawful.
37. On 3 May 2005 the Blagoevgrad District Court instructed Ilinden to rectify its application for judicial review, by specifying which decision it sought review of and exactly what form of relief it was requesting.
38. On 3 May 2005 the police, relying on section 62 of the 1997 Ministry of Internal Affairs Act (see paragraph 108 below), ordered the head of Ilinden’s Blagoevgrad chapter not to organise a rally the following day. According to the applicants, on 4 May 2005 the second applicant was arrested and taken to a police station in the town of Simitli. On 5 May 2005 the police drew up a report accusing him of having unlawfully organised a prohibited rally.
39. The rally took place on 4 May 2005. According to the applicants, the participants were not allowed to approach Gotse Delchev’s monument.
40. On 4 July 2005 the head of Ilinden’s chapter in Petrich notified the Mayor that the organisation intended to stage a rally in the area of Samuilova Krepost at 10 a.m. on 2 August 2005, to mark the anniversary of the Ilinden uprising.
41. In a letter of 11 July 2005 the Mayor of Petrich advised Ilinden that he could not allow the rally, as VMRO (see paragraph 18 above) had already, on 20 June 2005, applied for and been granted permission to hold an event at the same place and at the same time.
42. On 18 July 2005 Ilinden sought judicial review of the Mayor’s decision by the Petrich District Court. It did not receive a reply.
43. On 2 August 2005 Ilinden held its rally in Samuilova Krepost, allegedly accompanied by a heavy police presence. The police filmed the rally with a video camera. According to the applicants, this was done to identify new participants and bring pressure on them to make them refrain from taking part in similar rallies in the future. According to the Government, the police officers present were no more than the usual number dispatched to such events. They did not allow any breaches of public order, save for the consumption of alcohol by members of Ilinden and their foreign guests. Another factor which had served to prevent breaches had been VMRO’s decision, at the authorities’ request, to reschedule their event for another time.
44. On 23 August 2005 Ilinden notified the Mayor of Blagoevgrad of its intention to hold a rally in front of the monument to Gotse Delchev on Macedonia Square at 3 p.m. on 12 September 2005. In reply, the Mayor banned the event because it coincided with a children’s celebration marking the opening of the school year. Ilinden apparently did not receive a copy of the Mayor’s decision.
45. On 12 September 2005 the Blagoevgrad police, relying on section 62 of the 1997 Ministry of Internal Affairs Act (see paragraph 108 below), ordered the head of Ilinden’s Blagoevgrad chapter and another of the organisation’s leaders not to organise or take part in rallies involving the laying of wreaths and flowers in front of Gotse Delchev’s monument.
46. At about 1 p.m. on 12 September 2005 members and supporters of Ilinden started gathering in front of the American University in Blagoevgrad with a view to marching to Macedonia Square. They were surrounded by approximately thirty uniformed and plainclothes police officers who blocked their way, seized the flags and placards they were carrying and destroyed a wreath. According to the Government, the actions of the police were monitored by a public prosecutor, who did not note any abuse of their powers. After that the participants in the rally decided not to go to Macedonia Square. On their way back a group of participants from Sandanski laid flowers at a roadside monument near the village of Cherniche.
47. A few days later a Member of Parliament from VMRO, Mr B. Yachev, was reported by the press to have commented that the police had acted properly, doing the job done in previous years by VMRO itself. The Mayor of Blagoevgrad was reported by the press to have said that he “would not allow the staging of antiBulgarian demonstrations by separatist associations”.
48. On 30 October 2005 three of Ilinden’s leaders filed a complaint about the actions of the police with the Sofia Regional Military Prosecutor’s Office. In a decision of 1 December 2005 that Office refused to open a criminal investigation, reasoning that there was no indication that the police officers had acted unlawfully in preventing the rally – which had been banned by the Mayor – or in impounding the objects carried by the participants in it. Ilinden’s ensuing appeal was rejected by the Military Appellate Prosecutor’s Office on 16 January 2006.
49. On 30 March 2006 the second applicant and two other members of Ilinden notified the Mayor of Sandanski that the organisation intended to stage a rally between 10 a.m. and 3 p.m. on 23 April 2006 at the grave of Yane Sandanski near the Rozhen Monastery, to commemorate the anniversary of his “dastardly murder”. The event would include laying flowers at the grave, a speech about the life and the activity of Yane Sandanski, and a “cultural programme”.
50. In a letter of 18 April 2006 the Mayor of Sandanski informed Ilinden that it could lay flowers at the grave and organise a cultural programme between 10 a.m. and 12 noon on 23 April 2006.
51. On 23 April 2006 members and supporters of Ilinden gathered in front of Yane Sandanski’s grave. At about 12 noon they were interrupted by the police, who told them that the time allowed by the Mayor had expired and they should disperse. The participants complied and left the area. According to the Government, the interruption was necessary following the insistence of other organisations. According to the applicants, no other organisations held commemorative events near Rozhen Monastery on that day; the real reason for the interruption was the desire of the police to prevent visitors to the Monastery from seeing Ilinden’s event.
52. On 25 April 2006 Ilinden notified the Mayor of Blagoevgrad of its intention to hold a rally at 4 p.m. on 4 May 2006 on Macedonia Square, laying wreaths on the monument to Gotse Delchev and making a short speech, to mark the anniversary of the death of this “Macedonian apostle revolutionary”. The rally would start in front of the American University in Blagoevgrad and then make its way to Macedonia Square, where the monument was located.
53. In a letter of the same date the Mayor of Blagoevgrad informed Ilinden that “[e]very citizen of the Republic of Bulgaria [had] the right to pay his respects to the memory of the national heroes and lay flowers at their monuments”. However, in the way it had been planned, the rally was in fact a procession. It was likely to cause breaches of public order and unrest, as had happened in the past. Moreover, the holding of rallies presupposed registration, proof of which Ilinden had not presented. Finally, the municipality had planned an event on Macedonia Square for the same date: a children’s holiday, which made the holding of the rally impossible.
54. On 4 May 2006 the police prevented the participants in the rally from moving towards Macedonia Square and, relying on section 55 of the 2006 Ministry of Internal Affairs Act (see paragraph 108 below), ordered them in writing to refrain from participating in assemblies “without permission from the Mayor of Blagoevgrad” and not to “use placards, banners and other visual materials featuring texts with antiBulgarian content”. According to the Government, the restrictions were necessary because of the simultaneous staging of a children’s celebration.
55. On 6 July 2006 the head of Ilinden’s chapter in Petrich notified the Mayor that the organisation intended to hold a rally in the area of Samuilova Krepost at 10 a.m. on 30 July 2006, to mark the anniversary of the Ilinden uprising.
56. In a letter of 14 July 2006 the Mayor of Petrich advised Ilinden that he authorised the rally.
57. The rally proceeded on 30 July 2006. It was attended by about two hundred and fifteen people. According to the Government, the only incident was an attempt by a member of Ilinden to damage the film camera of a local television station. According to the applicants, the same member of Ilinden was kicked three times in the legs by a police officer while trying to prevent the officer from entering a restaurant where the participants in the rally were dining.
58. On 30 August 2006 Ilinden notified the Mayor of Blagoevgrad of its intention to hold a rally on Macedonia Square at 4 p.m. on 12 September 2006. It seems that on the same day the Mayor replied that the event could not proceed, as it might breach public order and infringe the rights of others.
59. On 4 September 2006 a member of Ilinden’s managing council once again notified the Mayor of Blagoevgrad of the organisation’s intention to hold the rally, to commemorate “the victims of the Macedonian nation following the Bulgarian governments’ acts of State terrorism and genocide”. He added that for years on end the Mayor had prevented Ilinden from staging rallies, relying on bogus arguments.
60. In a letter of 5 September 2006 the Mayor replied that the notification could not be examined, as no documents proving that Ilinden had been registered had been produced. It was therefore impossible to identify the “members of the managing bodies of [the] event”. Moreover, the municipality had organised a school holiday at the same place and on the same date, which made the holding of the rally impossible.
61. On 7 September 2006 Ilinden sought judicial review of the ban by the Blagoevgrad District Court. In a final decision of 8 September 2006 the court rejected the application for judicial review. It held that the risk of breaches of public order had not been made out by the Mayor and that, in the light of the European Court of Human Rights’ judgments in a series of cases against Bulgaria, the lack of registration was not a sufficient ground to ban a rally. However, the holding of a school holiday prevented the parallel holding of Ilinden’s rally. In the court’s view, it was inopportune to allow adults and children to gather at the same time and place, to concurrently stage a school event and a political one, as “the children’s fragile minds should not be subjected to the political interventions and influences which would inevitably occur if the two events [were] allowed to proceed together. Children should on no account be burdened with the political passions and confrontations of adults and become the unwilling witnesses of acts which [were] perceived equivocally by Bulgarian society”.
62. On the same day, 8 September 2006, Ilinden notified the Mayor that, in view of the fact that the holding of the rally could not take place on 12 September, it was willing to reschedule it for 4 p.m. on 11 September 2006. On the same day the Mayor replied that the notification could not be examined, as no documents proving that Ilinden had been registered had been produced. It was therefore impossible to identify the “members of the managing bodies of [the] event”.
63. According to the applicants, as a result Ilinden decided not to hold an event; only one member laid flowers at the monument. According to the Government, the rally did take place without hindrance from the police.
64. On 12 September 2006 Ilinden sought permission from the Mayor of Sandanski to rent a municipal hall on 15 October 2006, to hold a founding meeting needed for the organisation’s registration as a political party. On 26 September 2006 the Mayor replied that Ilinden’s request could not be accommodated, as on 15 and 16 October 2006 the hall was due to host an international wrestling tournament. He also added that the hall was very often used for cultural events and was due to undergo repairs.
65. On 27 September 2006 Ilinden informed the Mayor that it had learned that the tournament would not take place and asked him to reconsider his decision, saying that there were no other suitable halls in the region. Failing that, it asked the Mayor to allow the founding meeting to be held in a square in front of the hall. On 29 September 2006 the Mayor replied that according to the information available to him, the tournament would take place as planned. As regards the staging of the meeting in the square, Ilinden had to submit an official notification, specifying the organiser of the event, its aim and its exact time and place.
66. On 2 October 2006 Ilinden reiterated its request to use the hall. It alternatively asked the Mayor to indicate another venue which could take up to five hundred people and allow its use. On 5 October 2006 the Mayor confirmed his initial statement that the hall would be in use on the requested date. He also said that no other venue of such a size existed.
67. Ilinden complained about the refusal to let it use the hall to the Commission for Protection against Discrimination and to the Blagoevgrad Regional Governor, but to no avail. It seems that as a result it did not hold the founding meeting as planned.
According to the applicants, on 15 October 2006 the municipal hall was not hosting a sports event, but was empty.
68. According to the applicants, on 19 December 2006 three members of Ilinden were collecting declarations by persons who wished to become members of the political party at a stall in the centre of Sandanski. They were approached by two men, one of whom was the head of the Petrich chapter of the political party Attack (“Атака”), who shouted insults at them. He threw the materials on the stall to the ground, hit one of the members of Ilinden in the face, tore apart an Ilinden poster, and then called the police. The police arrived and arrested the attacker. Later he was warned not to engage in violent actions and released.
69. On the same day the three members of Ilinden complained about the assault to the prosecuting authorities.
70. In a decision of 25 January 2007 the Sandanski District Prosecutor’s Office refused to open a criminal investigation, as the acts alleged in the complaint did not constitute publicly prosecutable offences. The bodily injuries suffered by the first Ilinden member were minor and therefore gave cause for a private prosecution, the destroyed property was not of great value, which made its destruction a trivial occurrence which should not be criminally prosecuted, and the proffering of insults also gave cause for a private prosecution only.
71. On appeal by the three Ilinden members, on 5 February 2007 the Blagoevgrad Regional Prosecutor’s Office upheld that decision, fully endorsing its reasoning.
72. On 16 March 2007 Ilinden notified the Mayor of Sandanski that it intended to stage a rally between 10.30 a.m. and 2 p.m. on 22 April 2007 at the grave of Yane Sandanski near the Rozhen Monastery, to commemorate the anniversary of his “dastardly murder”. The event would include laying flowers at the grave, a speech about the life and the activity of Yane Sandanski, and a “cultural programme”. On the same date the Mayor of Sandanski informed Ilinden that he could not agree to the rally, as he had already allowed a sister organisation, UMO Ilinden – PIRIN, to stage an event at the grave of Yane Sandanski between 10 a.m. and 4 p.m. on 22 April 2007.
73. On 26 March 2007 Ilinden informed the Mayor that they had learned that UMO Ilinden – PIRIN would in fact be holding their event in the town of Melnik, in front of Yane Sandanski’s monument, between 10 a.m. and 4 p.m., and that only a small delegation would go to the grave near the Rozhen Monastery, to lay flowers between 10 and 11 a.m. They therefore proposed to stage their rally at the grave after 11 a.m. On the same day the Mayor informed Ilinden that the rally could take place between 11 a.m. and 12 noon, as the police did not have the means of protecting a longer event.
74. As a result, Ilinden decided to change the date of its rally to 21 April 2007 and notified the Mayor accordingly. On 27 March 2007 the Mayor replied that he could not accommodate its wish, as a vocational training school had already applied for, and been given, permission to stage an event at that time.
75. On 28 March 2007 Ilinden filed an application for judicial review with the Sandanski District Court. It argued that the Mayor’s refusals to allow the rally as planned were unlawful, as Ilinden was willing to shift the timing of the event, but could not shrink it into the short timeframe allowed by the Mayor. It included a programme which needed time and it would not in any way disturb other events or visitors to Yane Sandanski’s grave. Ilinden therefore asked the court to set aside the Mayor’s decisions and allow the rally to be staged between 11 a.m. and 3 p.m. on 22 April 2007.
76. In a decision of 2 April 2007 the Sandanski District Court declared the application inadmissible. It held that the Mayor had not banned the rally, but merely proposed a change in its timing, as was his duty under section 12(1) of the 1990 Meetings and Marches Act (see paragraph 107 below). Only bans on rallies were reviewable by the courts, and only after such bans had been appealed against to the municipal council. Moreover, the Act did not give the courts jurisdiction to allow the holding of rallies.
77. On 6 April 2007 Ilinden appealed to the Blagoevgrad Regional Court, relying, inter alia, on the Court’s judgment in the case of Ivanov and Others v. Bulgaria (no. 46336/99, 24 November 2005). It is unclear what the outcome of the proceedings was.
78. On 18 April 2007 the Regional Governor of Blagoevgrad, acting of his own motion, annulled the Mayor’s letter of 26 March 2007 allowing the rally. He reasoned that it amounted to an administrative decision, creating legal rights for Ilinden, and that it was unlawful. Firstly, the organisation was not registered; on the contrary, in February 2007 the Supreme Court of Cassation had upheld the Sofia City Court’s judgment turning down a request by UMO Ilinden – PIRIN to be registered as a political party (see UMO Ilinden – PIRIN and Others v. Bulgaria (no. 2), no. 41561/07, §§ 819, 18 October 2011). Since it was accordingly unlawful under Bulgarian law, it had no standing to give notice of its intention to hold a rally. Secondly, the proposed rally would put public order at risk. The Rozhen Monastery was a place visited by many tourists, especially at weekends. It was therefore inappropriate to allow the staging of a rally there. Moreover, rallies and meetings were being organised at those locations at the same time by the local authorities and non-governmental organisations. As clashes between supporters of Ilinden and others had taken place in the past, it was necessary to ban its rally. Finally, the activities of the organisation were contrary to Bulgarian law, as they consisted in propaganda against the country’s sovereignty and territorial integrity and aroused national and ethnic hatred.
79. According to the applicants, on 22 April 2007 many bus companies hired to transport participants in the rally to the Rozhen Monastery desisted, under pressure from the police. Two cars carrying materials for a stage to be erected at the site of the rally were stopped by the police and not allowed to continue. A bus transporting a group of singers was also diverted by the police. A number of other cars with participants were stopped and searched by the police while en route to Rozhen Monastery. The grave of Yane Sandanski was surrounded by about a hundred uniformed police officers and a number of plainclothes ones, who did not allow the participants in the rally to approach it. No other organisations were present.
80. According to the Government, Ilinden was able to hold the rally, in the presence of many Macedonian journalists and representatives of the Ministry of Foreign Affairs of the “former Yugoslav Republic of Macedonia”. The alleged difficulties with the transportation of the participants were overblown; the police had done nothing more than to ensure the smooth commemoration by various organisations of the anniversary of Yane Sandanski’s death. It was not true that participants in the rally had been stopped and searched.
81. On 26 April 2007 Ilinden notified the Mayor of Blagoevgrad of its intention to stage a rally on Macedonia Square, in front of Gotse Delchev’s monument, at 4 p.m. on 4 May 2007. The event, which was to mark the anniversary of the assassination of the “Macedonian revolutionary”, would consist of the laying of a wreath and flowers on the monument and a short speech. It would last one hour.
82. On the same day the Mayor replied that the notification could not be examined as Ilinden had not produced documents proving its official registration. It was thus impossible to identify the “managing bodies of [the] event”. Moreover, on 4 May 2007 the municipality was organising children’s games on Macedonia Square, so that the staging of Ilinden’s event could not be allowed.
83. Ilinden filed an application for judicial review with the Blagoevgrad District Court. It argued, inter alia, that there was no risk that breaches of public order or traffic disturbances would occur. The place of the rally and the limited number of participants had been specifically chosen to avoid such eventualities. Macedonia Square was very large and Ilinden was planning to use only a small part of it for its rally. The ban was not justified under section 12(2) of the 1990 Meetings and Marches Act (see paragraph 107 below) or Article 11 § 2 of the Convention and was in breach of Ilinden’s right to express its opinion, enshrined, inter alia, in Article 10 of the Convention.
84. In a final decision of 27 April 2007 the Blagoevgrad District Court dismissed the application. It held that, while the lack of registration did not amount to sufficient grounds to prohibit the rally, the risk that it could infringe the rights of others was enough to justify the ban. In the court’s view, it was inopportune to allow adults and children to gather at the same time and place, to concurrently stage a school event and a political one, as “the children should not be subjected to the political interventions and influences which would inevitably occur if the two events [were] allowed to proceed together. Children should on no account be burdened with the political passions and confrontations of adults and become the unwilling witnesses of acts which [were] perceived equivocally by Bulgarian society”.
85. On 3 May 2007 the police, relying on section 55 of the 2006 Ministry of Internal Affairs Act (see paragraph 108 below), ordered in writing a member of Ilinden’s leadership not to organise or take part in a rally on the next day. According to the Government, in spite of that, on 4 May 2007, members of Ilinden laid flowers at the monument without being stopped by the police.
86. On 16 July 2007 the head of Ilinden’s chapter in Petrich notified the Mayor that the organisation intended to stage a rally in the area of Samuilova Krepost at 10 a.m. on 29 July 2007, to mark the anniversary of the Ilinden uprising.
87. In a letter of 22 July 2004 the Mayor of Petrich advised Ilinden that VMRO (see paragraph 18 above) had already applied for and been granted permission to hold an event at the same place and at the same time.
88. On 20 July 2007 Ilinden sought judicial review of the Mayor’s decision by the Petrich District Court. It argued that both events could proceed simultaneously. In a decision of 25 July 2007 the court declared the application for judicial review inadmissible. It held that the Mayor’s letter did not amount to a ban, but merely to information that another rally had been planned for the same time and place. Under the 1990 Meetings and Marches Act, if a rally had not been banned within twenty-four hours of notice being given to the Mayor, it could proceed. Even if the Mayor did ban a rally, that decision first had to be appealed against to the municipal council and only then challenged by way of judicial review.
89. On 29 July 2007 about three hundred and fifty members and supporters of Ilinden approached Samuilova Krepost, carrying placards and banners – according to the Government, “in defiance of the orders of the municipality”. According to the applicants, they were stopped by the police before reaching the site and were ordered to put the placards and banners down. They obeyed and were allowed access to the site without the materials. The participants in the rally laid wreaths and flowers. A plainclothes police officer removed the ribbons from the wreaths. Later the participants tried to erect a stage at their chosen place, but were stopped by the police and so erected it on the other side of a small river crossing the site. According to the Government, the police did not impose restrictions on the manner of commemorating the anniversary.
90. On 28 August 2007 Ilinden notified the Mayor of Blagoevgrad of its intention to stage a rally on Macedonia Square, in front of Gotse Delchev’s monument, at 4.30 p.m. on 12 September 2007. The event, which was to mark the anniversary of “the genocide against the Macedonians”, would consist of the laying of a wreath and flowers on the monument and a short speech. It would last one hour.
91. On 29 August 2007 the Mayor replied that the notification could not be examined as Ilinden had not produced documents proving its official registration. It was thus impossible to identify the “managing bodies of [the] event”. Moreover, the municipality had planned an event on Macedonia Square for the same date, a children’s holiday under the name “Hello, school”, to mark the beginning of the school year, which made the holding of the rally impossible.
92. On 30 August 2007 Ilinden sought judicial review by the newly created Blagoevgrad Administrative Court (“Благоевградски административен съд”), reiterating the arguments raised in its previous applications. In a decision of 30 August 2007 the Blagoevgrad Administrative Court found that under the 1990 Meetings and Marches Act, which was lex specialis in relation to the general rules of administrative procedure, the court competent to examine an application for judicial review of a Mayor’s decision to ban a rally was the district court. It therefore sent the file to the Blagoevgrad District Court.
93. In a final decision of 5 September 2007 the Blagoevgrad District Court dismissed the application. It held that, while the lack of registration did not amount to sufficient grounds to prohibit the rally, the fact that another event, likely to draw a number of people, many of whom were children, was due to take place on the same date in Macedonia Square was enough to justify the ban. In the court’s view, it was inopportune to allow two wholly different events to be staged at the same time and place.
94. According to the applicants, no school event took place at 4 p.m. on 12 September 2007 on Macedonia Square. When a number of members and supporters of Ilinden gathered in front of the American University in Blagoevgrad at about 5 p.m., they were stopped by the police and a number of them were arrested. They were taken to a police station, held for about three hours and charged with committing administrative offences for having tried to take part in a banned rally.
95. On 22 October 2007 the deputy Mayor of Blagoevgrad imposed administrative punishments (fines of 200 Bulgarian levs (102.26 euros) each) on the second applicant and on a number of members of Ilinden for having taken part in a banned rally, in breach of a publicorder regulation issued by the Blagoevgrad Municipal Council. All of them sought judicial review. In a series of judgments delivered on 18 and 19 February, 11 March, and 22 and 29 May 2008 the Blagoevgrad District Court annulled the fines. In some of the judgments it found that they were invalid, as under the applicable rules the deputy Mayor had no power to impose administrative punishments. In other judgments the court found that the deputy Mayor’s decisions were defective because they did not specify which administrative offences had been committed. In others it held that although the Mayor’s ban on the rally planned for 12 September 2007 was legally binding, the actions of the members of Ilinden on that date had not amounted to the staging of a rally, as they had been too few and had not tried to wave banners and make speeches, but merely to lay flowers on Gotse Delchev’s monument. The court went on to say that every person, regardless of their political convictions, had the right to honour the memory of national heroes in peace.
96. On 4 March 2008 Ilinden notified the Mayor of Sandanski that it intended to stage a rally between 10.30 a.m. and 3 p.m. on 20 April 2008 at the grave of Yane Sandanski near the Rozhen Monastery, to commemorate the anniversary of his murder. The event would include laying flowers at the grave, a speech about the life and work of Yane Sandanski, and a “literary and musical programme”. On 17 March 2008 the Mayor of Sandanski advised the organisation that its members could lay flowers on the grave of Yane Sandanski between 10.30 and 11 a.m. on 20 April 2008, but not carry out the remainder of their programme, as an event had been planned for that date by a vocational training school.
97. On 26 March 2008 Ilinden sought judicial review by the Sandanski District Court, arguing that there was enough room for both its and the school’s events and that, as on many previous occasions, the limitations imposed by the Mayor hindered the exercise of its right of peaceful assembly. In a decision of 17 April 2008 the Sandanski District Court found that the application for judicial review was inadmissible. It held that the Mayor had not banned the rally, but merely proposed a change in its timing, as was his duty under section 12(1) of the 1990 Meetings and Marches Act (see paragraph 107 below). Only bans on rallies were reviewable by the courts, and only after such bans had been appealed against to the municipal council. Moreover, the Act did not give the courts jurisdiction to allow the holding of rallies.
98. On 17 April 2008 the police, relying on section 55 of the 2006 Ministry of Internal Affairs Act (see paragraph 108 below), ordered the second applicant to abide by the limitations imposed by the Mayor of Sandanski, to ensure public order during the event, not to urge a violent change of the constitutional order, and not to incite the commission of offences through public speeches.
99. The applicants submitted that on 20 April 2008 the police stopped a number of cars travelling to Rozhen to take part in the rally. The grave of Yane Sandanski was surrounded by about thirty officers. One of them wanted to remove the ribbons from a wreath which members of Ilinden wished to lay on the grave, which sparked off a forceful verbal exchange.
100. On 1 September 2008 Ilinden notified the Mayor of Blagoevgrad of its intention to stage a rally on Macedonia Square, in front of Gotse Delchev’s monument, from 5 p.m. to 6 p.m. on 12 September 2008, to commemorate “the genocide against the Macedonians perpetrated by Bulgarian State terrorism”. The rally would consist of the laying of a wreath and flowers in front of the monument, the making of a short speech, and the lighting of candles. The Mayor did not reply.
101. A number of members and supporters of Ilinden gathered in front of the American University in Blagoevgrad at about 4.40 p.m. on 12 September 2008. They carried two posters saying “UMO Ilinden” and “12 September – Day of the Genocide of the Macedonians of Bulgaria”. Several uniformed and plain-clothes police officers appeared on the scene ten minutes later. One officer told the participants that if they carried posters “which are against Bulgaria” the posters would be taken away. After that the police seized the second poster. The participants in the rally then headed towards Macedonia Square. On the way there, two men threatened one of the participants in the rally, saying “we will now fine you 200 [Bulgarian] levs each, I know your sons, we will fire them from work ...”. In Macedonia Square the members of Ilinden stood in front of Gotse Delchev’s monument, laid a wreath and flowers, and lit candles. One of them made a short speech. The police did not interfere with the event. However, they later arrested a member of Ilinden who was taking photographs, took his camera by force and exposed the film in it.
102. On 24 April 2009 Ilinden notified the Mayor of Blagoevgrad of its intention to stage a rally on Macedonia Square, in front of Gotse Delchev’s monument, at 5 p.m. on 4 May 2009, to mark the anniversary of his death.
103. In a letter delivered to Ilinden’s chairman at 4.30 p.m. on 30 April 2009 the Mayor informed the organisation that they could join the laying of flowers in front of the monument at 10 a.m. on 4 May 2009, together with representatives of other political and civic organisations. In view of the short time until the date of the planned event, Ilinden did not seek judicial review of the Mayor’s decision.
104. The second applicant and two other members of Ilinden, who tried to approach Gotse Delchev’s monument at 2.40 p.m. on 4 May 2009, were arrested and taken to a police station. There they were issued orders under section 55 of the Ministry of Internal Affairs Act (see paragraph 108 below) not to take part in the rally prohibited by the Mayor. The police also seized a wreath with a ribbon saying “To Gotse from UMO Ilinden”.
105. On 31 August 2009 Ilinden notified the Mayor of Blagoevgrad of its intention to stage a rally in Macedonia Square, in front of Gotse Delchev’s monument, between 12 noon and 1 p.m. on 12 September 2009, to mark the “day of the genocide against the Macedonian people”. The Mayor did not reply.
106. On 12 September 2009 members and supporters of Ilinden gathered in front of the monument, but were arrested and taken to a police station. There the police, relying on section 55 of the Ministry of Internal Affairs Act (see paragraph 108 below), ordered the second applicant and six other members of Ilinden’s leadership not to take part in rallies not authorised by the Mayor of Blagoevgrad. The police also seized from them several items: a ribbon bearing the inscription “12.IX. Day of the genocide against the Macedonian people”; a poster bearing the same inscription; and a red flag bearing the inscription “Macedonia” and depicting the “Star of Vergina”. On 14 September 2009 Ilinden requested the return of those items. The police acceded to the request on 15 September 2009.
107. The relevant provisions of the 1991 Constitution and of the 1990 Meetings and Marches Act are set out in paragraphs 4851 of the Court’s judgment in the case of Stankov and the United Macedonian Organisation Ilinden (cited above), in paragraphs 7276 of the Court’s judgment in the case of United Macedonian Organisation Ilinden and Ivanov (cited above) and in paragraphs 2428 of the Court’s judgment in the case of Ivanov and Others v. Bulgaria (cited above). For the purposes of the present case, particular mention needs to be made of section 12 of the 1990 Act, which at the material time provided as follows:
“(1) Where the time or the place of the meeting, or the itinerary of the march, would create a situation endangering public order or traffic safety, the President of the Executive Committee of the People’s Council, or the mayor, respectively, shall propose their modification.
(2) The President of the Executive Committee of the People’s Council, or the mayor, shall be competent to prohibit the holding of a meeting, demonstration or march, where reliable information exists that:
1. it aims at the violent overturning of Constitutional public order or is directed against the territorial integrity of the country;
2. it would endanger public order in the local community;
...
4. it would breach the rights and freedoms of others.
(3) The prohibition shall be imposed by a written reasoned act not later than twenty-four hours following the notification.
(4) The organiser of the meeting, demonstration or march may appeal to the Executive Committee of the People’s Council against the prohibition referred to in the preceding paragraph. The Executive Committee shall decide within twentyfour hours.
(5) Where the Executive Committee of the People’s Council has not decided within [that] timelimit, the march, demonstration or meeting may proceed.
(6) If the appeal is dismissed the dispute shall be referred to the relevant district court which shall decide within five days. That court’s decision shall be final.”
The Meetings and Marches Act was adopted in 1990, when the 1971 Constitution was in force. Under that Constitution, the executive local State authorities were the executive committees of the people’s councils in each district. The mayors referred to in some of the provisions of the Meetings and Marches Act were representatives of the executive committee acting in villages and towns which were under the jurisdiction of the respective people’s councils. The 1991 Constitution abolished the executive committees and established the post of mayor, elected by direct universal suffrage, as the “organ of the executive power in the municipality” (Article 139).
108. Under section 62(1) of the 1997 Ministry of Internal Affairs Act, the police could, if necessary for the performance of their duties, issue orders to individuals or organisations. Those orders were binding unless they obviously imposed the commission of an offence (section 62(4)). Section 62(5) provided that such orders, when issued in writing, were subject to judicial review. The wording of section 55(1), (4) and (5) of the 2006 Ministry of Internal Affairs Act, which superseded the above provision on 1 May 2006 and is currently in force, is almost identical.
109. Under section 31(1) of the 1998 Administration Act, regional governors (a) carry out governmental policy and coordinate the operations of the branches of central government in their respective regions; (b) seek to achieve a balance between national and local interests and interact with the local authorities; (c) are responsible for safeguarding State property in their respective regions; (d) uphold legality in their regions and supervise the enforcement of administrative decisions; (e) control the lawfulness of the decisions and the actions of local authorities; (f) coordinate and control the operations of the territorial branches of ministries and other central authorities, as well as the enforcement of their decisions; (g) organise civil defence; (h) preside the regional security councils; and (i) carry out the region’s international contacts.
110. Under Article 93 § 4 of the 2006 Code of Administrative Procedure, all mayoral decisions may be challenged before regional governors. Under section 32(2) of the 1998 Administration Act, regional governors may annul unlawful mayoral decisions. Their decisions to do so are subject to judicial review (section 32(3) of the Act).
111. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act” – hereinafter “the 1988 Act”) provides that the State – and since 1 January 2006 municipalities – are liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties.
112. Article 169b of the 1968 Criminal Code makes it an offence to prevent someone, through violence, threats or other unlawful means, from exercising their “constitutional political rights”. The offence is aggravated if committed by officials during or in connection with the performance of their duties (Article 169c of the Code).
113. The Committee of Ministers concluded the examination of application no. 44079/98 (United Macedonian Organisation Ilinden and Ivanov v. Bulgaria) and application no. 46336/99 (Ivanov and Others v. Bulgaria) on 8 June 2011, by adopting Resolution CM/ResDH(2011)46, which reads:
“The Committee of Ministers, ...
Recalling that the violations of the Convention found by the Court in these cases concern the infringement of the freedom of assembly of organisations which aim to achieve “the recognition of the Macedonian minority in Bulgaria” due to prohibitions of their meetings between 1998 and 2003 (violation of Article 11) and the lack of effective remedies to complain against these prohibitions (violation of Article 13) (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
– individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
– general measures preventing similar violations;
Having noted that two other applications presently pending before the European Court concern allegations relating to bans or to the holding of certain meetings of the applicants initially scheduled between March 2004 and September 2009;
Having considered, without prejudging the judgment the Court could deliver in respect of these applications, that in view of the positive trend observed concerning the holding of the applicants’ meetings in particular since 2008 and the absence of complaints from them as regards 2010, no further individual measure seemed required in these cases;
Having also examined the general measures and in particular the awareness-raising measures taken by the Bulgarian authorities to ensure that applicable domestic law is interpreted in conformity with the Convention and thus to prevent violations similar to that found by the European Court (see details in Appendix);
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.”
VIOLATED_ARTICLES: 11


ITEMID: 001-96773
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF Z.N.S. v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (in case of deportation to Iran);Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 3 (substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1967 and is currently held in the Kırklareli Foreigners' Admission and Accommodation Centre, in Turkey.
7. The applicant first entered Turkey on 24 September 2002 using a false passport. She began living and working in Istanbul without informing the Turkish authorities or the United Nations High Commissioner for Refugees (“the UNHCR”).
8. On 22 October 2003 the applicant applied to the UNHCR and asked to be recognised as a refugee. On an unspecified date in 2004 she was detained by the Turkish authorities and deported to Iran, where she claims to have been imprisoned for nine months and subjected to illtreatment.
9. Following her release from prison in Iran, the applicant reentered Turkey illegally on 3 February 2005. She learned that her case before the UNHCR had been closed in her absence.
10. In June 2006 the applicant was diagnosed with myomatosis of the uterus and operated in a private hospital on 5 June 2006. The medical reports, in particular the pathology results, revealed that there were no cancerous cells.
11. In the meantime, she became interested in Christianity and began attending Bible classes. On 7 September 2007 the applicant was baptised in a Protestant church in Istanbul. On an unspecified date the applicant's son, who was attending the Iranian Consulate School in Istanbul, was expelled on the ground of “conduct against the school's faith”. Some time within a year of that incident the applicant applied to the Iranian Consulate in Istanbul for a passport. While there, she was asked to complete a form stating that she was a Christian.
12. On an unspecified date at the end of 2007, the applicant applied to the UNHCR and requested that her case be re-examined.
13. On 3 May 2008 the applicant went to the Fatih police headquarters in Istanbul in order to make statements as a witness regarding a criminal offence committed by third persons. As she was found to have identity documents with different names on them, an investigation was initiated into this and she was arrested. On an unspecified date she was released.
14. On 9 May 2008 the applicant was rearrested on suspicion of infringement of visa requirements and forging official documents. According to a letter sent by the Istanbul police to the Department responsible for foreigners, borders and asylum attached to the General Police Headquarters on the same day, the applicant had stated that she did not wish to live in Iran and that she had come to Turkey in order to apply to the UNHCR. The same letter stated that the applicant had been placed in the Foreigners' Department of the Istanbul police headquarters with a view to her deportation from Turkey.
15. On 13 May 2008 the director of the department responsible for foreigners, borders and asylum attached to the General Police Headquarters requested the Istanbul police headquarters to obtain statements from the applicant regarding a number of issues, including her failure to apply to the Turkish authorities when she had applied to the UNHCR, the reason why she had made multiple entries and exits between Iran and Turkey and why she was staying illegally in Turkey. The director also requested that the possible security risks that the applicant may pose in Turkey be determined.
16. On 16 May 2008 the applicant sent another letter to the Ministry of the Interior. Referring to her medical condition, she requested urgent treatment and asked to be released and issued with a temporary residence permit pending the proceedings before the UNHCR and the Court.
17. On the same day the applicant was questioned by a police officer at the Istanbul police headquarters. She maintained, inter alia, that she had initially entered Turkey with a false passport and that she had been deported to Iran where she had spent nine months in prison. She contended that when she re-entered Turkish territory on 3 February 2005 she had immediately re-applied to the UNHCR. She noted that she was against the present government in Iran and that she and her family members had been oppressed when they lived in Iran. The applicant mentioned that she had left and reentered Turkish territory as that was the only way to renew her visa. She further contended that she had not applied to the Turkish authorities earlier as her case had been closed by the UNHCR.
18. On 20 May 2008 the applicant's statements were sent to the General Police Headquarters by the Istanbul police.
19. On 6 and 16 May and 2 June 2008, the applicant's representative lodged petitions with the Istanbul Police Headquarters and requested that his client be released and given a residence permit pending the outcome of her application to the UNHCR.
20. By a letter dated 10 June 2008, the deputy director of the Istanbul police headquarters informed the Kırklareli police headquarters that the applicant did not wish to return to her country, but wished to seek asylum, and had applied to the Court. The director reiterated that she had been held in the Istanbul police headquarters with a view to her deportation. He further maintained that the applicant should be held in the Kırklareli Foreigners' Admission and Accommodation Centre pending the outcome of the proceedings before the Court. On the same day the applicant was transferred to that facility.
21. On 18 July 2008 the Ministry of the Interior informed the applicant that her case before the Turkish authorities was suspended pending the proceedings before the Court.
22. On 29 December 2008 the applicant and her son were recognised as refugees, under the UNHCR's mandate, on religious grounds.
23. On 14 April 2009 the applicant's representative lodged a case with the Ankara Administrative Court. He requested the court to annul the decision of the Ministry not to release his client and to order a stay of execution of that decision pending the proceedings.
24. On 28 May 2009 the Ankara Administrative Court rejected the applicant's request for a stay of execution.
25. The applicant's representative appealed. On 24 June 2009 the Ankara Regional Administrative Court dismissed the appeal.
26. In his submissions to the Court dated 16 May 2008 the applicant's representative contended that, although the applicant was suffering from serious consequences of the operation she underwent in June 2006, she did not have access to a doctor in the Kırklareli Foreigners' Admission and Accommodation Centre. On 18 June 2008 he informed the Court that the applicant had been examined by a doctor, who had ordered a further medical examination. Despite this, the Ministry of the Interior did not authorise a further examination and the applicant's health was deteriorating.
27. On 27 August 2008 the applicant, with four other persons, started a “fast to the death” to protest about her placement and the physical conditions in the Centre.
28. Before the Court, the applicant maintained that the physical conditions in the Kırklareli Centre were below the minimum standards set by the European Committee for the Prevention of Torture (the “CPT”). In support of her submissions the applicant provided a number of photographs containing images of several parts of the Centre. In one room there were two bunk beds on which there were pillows and blankets. There was no bed linen on the beds. In another room there were two beds with bed linen, pillows and blankets. The photographs of the kitchen sinks and stoves showed that the latter were unusable. Another photograph showed that there were four sinks in the bathroom. Inside, the toilets were partially covered with some kind of dark substance. Photographs of the cleaning products that had labels in the Cyrillic alphabet showed that their dates had expired nine to ten years ago.
29. The applicant finally alleged that the officers who worked at the Kırklareli Centre did not treat the detainees well. In particular, she had been insulted and threatened by a police officer.
30. The Government replied that the applicant was subjected to a series of medical examinations during July 2008 at the Kırklareli State Hospital According to the documents submitted, blood tests, an abdomino-pelvic ultrasound examination and an abdominal tomography were performed on the applicant. The doctors found no pathological signs as a result of these examinations.
31. The Government denied the applicant's allegation that the physical conditions at the Kırklareli Foreigners' Admission and Accommodation Centre did not comply with the minimum standards established by the CPT. Noting that the Centre in question was not a detention facility, the Government provided photographs of a birthday party and an engagement party, both organised in the common room of the Kırklareli Centre. They further submitted photographs of an Islamic celebration (Festival of Sacrifice) organised in the garden of the Centre.
32. In their submissions dated 9 September 2009, the Government maintained that an investigation had been initiated into the actions of the police officer who had allegedly insulted the applicant in relation to the latter's complaint of ill-treatment.
33. A description of the relevant domestic law and practice may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-44, 22 September 2009).
34. The standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning the conditions of detention of foreign nationals (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2006, page 41) provide, in so far as relevant, as follows:
“... In the view of the CPT ... where it is deemed necessary to deprive persons of their liberty for an extended period under aliens' legislation, they should be accommodated in centres specifically designed for that purpose...
Obviously, such centres should provide accommodation which is adequatelyfurnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them. ...”
35. In June 2008 Human Rights Watch visited three Admission and Accommodation Centres in Turkey, including the Centre in Kırklareli. The relevant extracts from the report entitled “Stuck in a Revolving Door”, published by Human Rights Watch on 6 November 2008, read as follows:
“... The Kırklareli Gaziosmanpaşa Refugee Camp (hereafter Kırklareli) has had a long history as an actual refugee camp. In 1989 it was a safe haven for ethnic Turks fleeing Bulgaria; in 1992, a shelter for refugees from Bosnia; and in 1999, a place of refuge for Kosovar Albanians. It can no longer be described, truthfully, as a refugee camp, however. It is rather a detention centre for migrants, some of whom may indeed be refugees, but not refugees being protected from persecution, but rather refugees that Turkey is seeking to remove.
At the time of Human Rights Watch's visit, Kırklareli held 174 detainees, including four women and the four-year-old child of one of the women.
Although the men are locked away in a long barracks building, they were freely wandering around the outdoor grounds of the fenced-in facility during the Human Rights Watch visit. They appeared to be allowed to go outside the barracks during the afternoons. The facility is surrounded by a chain-link fence topped with barbed wire. Signs of its history as a former refugee camp are abundant in the form of old unused shelters with faded UNHCR logos and an overgrown soccer field that have not been used in many years, despite a rather comical attempt by the Kırklareli administrator to give Human Rights a guided tour intended to show that old classrooms and recreational facilities are still being used by the detainees.
The women and child were housed in a separate building that the women told Human Rights Watch they had recently been asked to clean prior to a visit by another delegation. The administrator showed Human Rights Watch a large-screen television set in one of the women's private rooms, but failed to note that the TV was not plugged in and didn't work at all. Although the men are allowed to leave their barracks during most afternoons, the guards tell the women that they are not allowed to leave their building. "The door is kept open to allow the child to come and go, but we are not allowed to walk out the door," said a 25-year-old Iranian woman.
Both men and women at Kırklareli complained about the poor quality and small quantity of food. A man claiming to be Burmese said, "The food is not good. It is not fit for humans, and it is not enough. Nothing happens if we complain. The guards say, 'If you don't like the food, go to the market and buy your own.'"
The main complaint, however, is that the detainees are not informed how long they will remain in detention. Human Rights Watch spoke privately with a man who appeared to be an informal leader of the "Burmese" at Kırklareli. He said that the Burmese numbered 160 of the 174 detainees in the camp and that most, including him, had already been held there for nine months and had no idea how much longer they would stay there. "Just tell us what to do," he said. "Give us a sentence. If they let us leave, we will work and feed our families. Let us leave or kill us.”
Even though the conditions at Kırklareli did not appear to be nearly as bad as at Edirne, tensions between detainees and guards were very high. The camp administrator told Human Rights Watch, "Despite the good conditions here, there is an enmity towards us."
On the night of the day after the Human Rights Watch visit there was a riot at Kırklareli. The causes of the riot and the response of the security forces were under investigation when Human Rights Watch left the country. In the course of putting down the disturbance, Turkish security forces shot and killed one of the detainees, a young man of unknown nationality who Human Rights Watch had talked to at length. ...”
36. On 11 June 2008 around midnight a riot started in the Kırklareli Foreigners' Admission and Accommodation Centre. During the riot an asylum seeker died and another asylum seeker and two police officers were wounded. Subsequent to the riot, the Organisation for Human Rights and Solidarity for Oppressed People (Mazlum-Der), a human rights organisation based in Turkey, made a visit to the Centre in order to assess the situation there. During this visit, the Mazlum-Der interviewed persons held in the Centre, the Kırklareli governor, the director of the Kırklareli Centre and one of the officers who had been injured. The governor stated, inter alia, that the authorities were doing their best to meet the needs of the persons held in the Centre. The director also stated that they maintained good standards of living in the Centre.
37. Following the initiation of the “fast to the death” by the five persons held in the Kırklareli Foreigners' Admission and Accommodation Centre, including the applicant, on 3 September 2008 the Mazlum-Der made a second visit to the Centre in order to interview the persons on hunger strike and to observe the living conditions in the Centre. According to the report published by Mazlum-Der, they were not allowed to visit the inside of the Centre where foreign nationals were held. They could however interview the applicant and the other four persons, who maintained that there had been problems regarding the quality of food provided by the administration of the Centre, the Centre's hygiene, access to medical care and common living space.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-4
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-72837
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SAYDAM v. TURKEY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Mehmet Saydam, is a Turkish national who was born in 1948 and lives in Istanbul. He was represented before the Court by Mr N. Ertekin, Mr T. Aycık and Mr K. Öztürk, lawyers practising in Istanbul.
On 12 March 1998 the Istanbul State Security Court convicted the applicant of drug trafficking and sentenced him to seventeen years and six months' imprisonment. The applicant was placed in Kırklareli Prison.
On 8 December 2002 the applicant was diagnosed as suffering from lung cancer. He was transferred to the Edirne open-farm prison in order to facilitate his medical treatment.
On 7 January 2003 the applicant was operated on at Cerrahpaşa Hospital, attached to the Faculty of Medicine of Istanbul University. The top right lobe of his lung was removed (lobectomy). The applicant remained in hospital between 6 and 24 January 2003.
Between 5 March and 8 April 2003 the applicant received radiotherapy at the hospital of the Faculty of Medicine of Thrace University. On 8 April 2003 the doctors in charge of the applicant recommended house rest for three months.
Between 9 April and 12 June 2003 the applicant was transferred seven times to the prison clinic for a check-up.
On 29 April 2003 the applicant was examined by six doctors at Edirne State Hospital. The doctors noted that he was suffering from chronic obstructive lung disease of a permanent nature.
On 9 June 2003 the 3rd Section of the Forensic Medicine Institute, referring to the applicant's health condition, held that his continued incarceration could be life-threatening and recommended the suspension of his sentence for a year. It further held that at the end of that period his state of health would be reviewed.
On 13 June 2003 the Edirne public prosecutor suspended the execution of the applicant's sentence for one year, in accordance with Article 399 § 1 of the Code of Criminal Procedure, and ordered his release. He was released on the same day.
According to a medical report issued by Cerrahpaşa Hospital on 21 April 2004, the applicant was placed under medical supervision in case he suffered a relapse.
On 26 April 2004 the applicant filed a petition with the Edirne public prosecutor. In his petition the applicant submitted that he was still ill and that his sentence should be suspended. He also requested to be pardoned under Article 104 § 2 (b) of the Constitution.
According to a medical report issued by Edirne State Hospital on 4 May 2004, the applicant's illness and treatment were continuing and his condition constituted a handicap and a state of ageing.
On 23 June 2004 the 3rd Section of the Forensic Medicine Institute, after evaluating the medical reports on the applicant together with his blood analysis and lung images, held that the applicant, who had been suffering from adenocarcinoma of the lung and had been operated on, presented no symptoms of a recurrence. It concluded that, at the time of the report, the applicant no longer fulfilled the requirements of Article 399 § 1 of the Code of Criminal Procedure and Article 104 of the Constitution. It further stated that, in the event of any change in his medical condition, it would reconsider its decision.
Consequently, on 7 July 2004 the Edirne public prosecutor informed the applicant that he had seven days in which to apply to the public prosecutor's office for his incarceration. That decision was served on the applicant on 19 July 2004.
According to a medical report issued by Cerrahpaşa Hospital on 12 July 2004, an analysis of the applicant did not reveal any atypical cells and his illness had not progressed. The report further stated that the applicant was under medical supervision in case of a relapse.
On 21 July 2004 the applicant applied to the Edirne public prosecutor's office for the suspension of his prison sentence. He challenged the veracity of the medical report issued by the Forensic Medicine Institute on 23 June 2004 and claimed that he would face the risk of a relapse if he were returned to prison. He stated that in order to provide for his children he had been trying to reactivate his company and that he needed a further three or four months.
On 26 July 2004 his application was dismissed by the Edirne public prosecutor's office. On the same day the applicant was incarcerated at Edirne open-farm prison.
On 4 August 2004 the applicant was transferred to the prison clinic for a check-up.
On 1 September 2004 the Edirne public prosecutor decided that, in view of the conflicting reports issued by the Forensic Medicine Institute on 23 June 2004 and by Edirne State Hospital on 4 May 2004, the applicant's case should be examined by the General Assembly of the Forensic Medicine Institute. The public prosecutor considered that, since the date of the meeting of the General Assembly was not known, it was appropriate to suspend the execution of the applicant's sentence for a period of six months. The applicant was released on the same day.
On 23 September 2004 the General Assembly of the Forensic Medicine Institute, after examining the medical reports concerning the applicant, concluded that, at the time of its decision, he did not fulfil the requirements of Article 399 § 1 of the Code of Criminal Procedure and Article 104 of the Constitution. It further stated that in the event of any change in the applicant's medical condition it would reconsider its decision.
In the meantime, on 12 October 2004, the new Criminal Code was adopted by Parliament.
On 29 November 2004 the Edirne Assize Court reviewed the applicant's sentence in the light of the provisions of the new Criminal Code resulting from Law no. 5252 and decided to suspend the execution of his sentence pending the entry into force of the new Criminal Code on 1 June 2005.
On 10 February 2005 the Faculty of Medicine of Thrace University submitted to the Edirne public prosecutor a report dated 9 February 2005 by Dr C.U., the head of its oncology department. In the report Dr C.U., referring to the medical reports drafted by the doctors at the hospital of the Faculty of Medicine of Thrace University, submitted that the applicant presented certain symptoms resulting from the various treatments he had received, but no symptoms of lung cancer. Accordingly, he concluded that the applicant had recovered from lung cancer. He held, however, that as there was a small risk of recurrence, the applicant should be kept under medical supervision for a further five years.
In a letter dated 22 August 2005 the applicant informed the Court that he was still under medical supervision in Cerrahpaşa Hospital. He also submitted that no further decisions had been taken by the national authorities as regards his return to prison. Finally, the applicant stated that, at the request of the public prosecutor, he had submitted the results of his latest medical tests to the authorities.
“The execution of penalties restricting the liberty of a person suffering from mental disease shall be postponed until the patient has recovered.
The same provision shall apply in the event of any other illness which would constitute a serious danger to the life of the convicted person in the event of the execution of a sentence restricting liberty.”
“The President of the Republic is the head of State...
To this end, the duties he or she shall perform, and the powers he or she shall exercise, in accordance with the conditions laid down in the relevant Articles of the Constitution, are as follows:
... to remit, on grounds of chronic illness, disability or old age, all or part of the sentences imposed on certain individuals...”
Law no. 5252, adopted on 4 November 2004, concerns the rules and procedures to be applied during the transitional period pending the entry into force of the new Criminal Code. It provides for a review of the suspension of the execution of sentences in respect of convictions which became final before 1 April 2005, if the provisions of the new Criminal Code are more favourable to the convicted person.


ITEMID: 001-79282
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PALJIC v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1952 and lives in Blaichach, Germany.
7. Since July 1990 the applicant worked as a cleaner in a home for the care of mentally disabled persons.
8. On 11 August 1994 the applicant was arrested on suspicion of having sexually abused Ms U., a mentally disabled resident of the said home.
9. On 14 February 1995 the Munich Public Prosecutor's Office charged the applicant with having attempted to sexually abuse Ms U. twice, once on an unspecified date at the end of 1993 or the beginning of 1994 (first charge) and a second time on 12 July 1994 (second charge).
10. On 29 February 1996 the Munich Regional Court II convicted the applicant on two charges of sexual abuse of a person unfit to defend herself and sentenced him to a cumulative sentence of three years' imprisonment (one year for the first charge and two years and six months for the second one).
11. On 5 September 1996, following the applicant's appeal on points of law, the Federal Court of Justice quashed the Regional Court's judgment and remitted the case to a different chamber of the Munich Regional Court. The Federal Court of Justice found that the Regional Court, in dismissing the defence's motion to obtain another report of a psychiatric expert, had made a procedural mistake. In view of the fact that witness U. had abused alcohol and tablets at a period in time prior to the offences, it was necessary to have her examined by a medical expert in order to verify whether she suffered from a mental illness affecting her ability to give correct evidence (Aussagetüchtigkeit). In these circumstances, it was not sufficient, as was done by the Regional Court, to have the witness's credibility examined by a psychological expert.
12. During an oral hearing on 15 December 1999, the sixth hearing in the case, the Munich Regional Court II heard further witnesses. It indicated to the parties that the offences in question could be qualified differently in law as Ms U. had not proved unable to defend herself. Following a short interruption of the hearing, the Regional Court discontinued the proceedings concerning the first charge preliminarily according to section 154 § 2 of the Code of Criminal Procedure (see paragraph 26 below) upon a motion by the Public Prosecutor's Office. The minutes of the hearing do not contain any reasons given either by the Public Prosecutor's Office or by the Regional Court for proceeding in this manner. It had not been possible throughout the proceedings to establish the exact date on which the offence underlying the first charge had been committed.
13. On 17 December 1999 the Munich Regional Court II convicted the applicant in respect of the remaining second charge of sexual abuse and of bodily injury and sentenced him to two years' imprisonment suspended on probation. The Regional Court based its judgment mainly on the evidence given by Ms U., who was the only eye-witness to the alleged crime. Relying on reports given by both a psychological and a psychiatric expert, the court noted that due to her slight mental disability, Ms U.'s ability to give correct evidence was considerably restricted. Nevertheless, it was convinced that Ms U.'s statements were correct. She had not reported the offence on her own motion, but had confessed it to her partner on the same day when the latter had noticed that she felt depressed. Her partner had then convinced her some days later to inform the management of the home of the incident. Numerous other signs, such as the fact that U. had not tried unnecessarily to incriminate the applicant and had no other motives to accuse him demonstrated that the witness was credible. Moreover, two further female witnesses had confirmed that the applicant had harassed them.
14. In the judgment, no reasons were given for discontinuing the proceedings in respect of the first charge.
15. On 20 December 1999 the applicant, represented by counsel, lodged an appeal on points of law with the Federal Court of Justice, which he reasoned on 13 March 2000. He complained, inter alia, that there was a procedural error as no reasons for discontinuing the proceedings in respect of the first charge emerged either from the Public Prosecutor's request to do so or from the Regional Court's decision to partly discontinue the proceedings or from its judgment. However, the Regional Court had not found witness U. to be credible in this respect, which was documented by the fact that it had decided to discontinue the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure. The reasons for discontinuing the proceedings could be essential for the evaluation of Ms U.'s credibility as both charges concerned similar offences and were primarily based on Ms U.'s assertions. If the Regional Court did not follow Ms U.'s testimony with respect to the first charge, it would have been necessary to explain why that court found the same witness's testimony to be credible with respect to the second charge.
16. On 18 April 2000 the General Public Prosecutor requested the court to dismiss the applicant's appeal on points of law as ill-founded. He argued in particular that no reasons had to be given for partly discontinuing the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure.
17. In his submissions in reply dated 9 May 2000, the applicant agreed that section 154 § 2 of the Code of Criminal Procedure did not prescribe that reasons had to be given for the discontinuance of the proceedings. However, failure to do so nevertheless rendered the evaluation of evidence defective in the circumstances of the present case.
18. On 30 May 2000 the Federal Court of Justice rejected the applicant's appeal on points of law. In respect of the said procedural error complained of, it dismissed his appeal on points of law as inadmissible, finding that the applicant had not sufficiently set out the facts which were relevant for his complaint as required by section 344 § 2 of the Code of Criminal Procedure (see paragraph 26 below).
19. The court agreed with the applicant's submission that
“in cases in which the charges for two offences were based on the statement of only one witness and the proceedings were discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure in respect of one of these offences, the reasons to do so can have evidential value for the decisive question of the credibility of the sole witness for the prosecution; if no grounds for discontinuing the proceedings are given, there is a lack of reasoning (Erörterungsmangel) (see Federal Court of Justice, Strafverteidiger (StV) 1998, pp. 580, 582).”
20. However, what had been discussed in the hearing before the Regional Court discontinued the proceedings pursuant to section 154 § 2 of the Code of Criminal Procedure could not be known by having regard to the text of the judgment alone, as there was no duty to mention the discontinuance of the proceedings pursuant to that section or the reasons therefor in the judgment. It was true that there were judgments in which courts had set out in detail the reasons for partly discontinuing the proceedings and the influence of that decision on the evaluation of evidence, but this was only done if the court saw reasons to do so.
21. In the present case, the Federal Court of Justice was unable to ascertain on the basis of the applicant's reasoning in his appeal alone whether there had been a procedural error assuming that the facts submitted by him proved to be true (the court referred to its previous decisions published in the Neue Juristische Wochenschrift (NJW) 1995, p. 2047 and StV 1996, p. 530 in this respect).
22. According to the Federal Court of Justice,
“what is missing is a statement as to which reasons, if any, for discontinuing the proceedings were orally discussed during the court's hearing, because the failure to give reasons for the discontinuance could only constitute a procedural error if these reasons could have had an influence on the outcome of the judgment, such as doubts about the credibility of the statements of the only prosecution witness.”
23. The Federal Court of Justice noted that as a rule, proceedings were not discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure without any comments, despite the fact that there was no duty to record such statements in the minutes. If, in exceptional circumstances, no comments were made, the appellant was at least obliged expressly to state that the court had not given any other grounds, such as a limitation of the offences at issue in the proceedings for reasons of efficiency, which were irrelevant for the evaluation of evidence.
24. On 7 September 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his rights to be heard and to a fair trial were violated as in its decision the Federal Court of Justice had applied new admissibility criteria which he could not have foreseen. According to the applicant, the Federal Court of Justice, in its previous case-law, had demanded an account of the oral statements during the hearing only if the minutes disclosed that there had been such statements at all. Now on the contrary, that same court asked for an account of statements which (might) have been made in the course of the hearing and which were not included in the record.
25. On 15 October 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant's constitutional complaint. The decision was served on the applicant's counsel on 19 October 2000.
26. The relevant provisions of the Code of Criminal Procedure read as follows:
Section 154 [Insignificant further offences]
“(1) The Public Prosecutor's Office may dispense with prosecuting an offence
1. if the penalty or the measure of correction and prevention (Maβregel der Besserung und Sicherung) in which the prosecution might result is not particularly significant compared to a penalty or measure of correction and prevention which was imposed with binding effect upon the defendant for another offence or which he has to expect for another offence, or
2. furthermore, if a judgment for such offence is not to be expected within a reasonable time and if the penalty or the measure of correction and prevention which was imposed with binding effect upon the defendant or which he has to expect for another offence, appears sufficient to have an influence on the offender and to defend the legal order.
(2) If public charges have already been preferred, the court may provisionally discontinue the proceedings upon the motion of the Public Prosecutor's Office at any stage.
...
(4) If the proceedings were discontinued provisionally on account of a penalty or measure of correction and prevention which was to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment delivered in respect of the other offence became final.”
Section 344 [Reasoning of an appeal on points of law]
“(1) The appellant shall make a statement on the extent to which he contests the judgment and applies for it to be quashed (notices of appeal on points of law) and shall give reasons for his motions.
(2) The reasoning must show whether the judgment is contested because of a violation of the law of procedure or because of a violation of a different legal provision. In the former case the facts which constitute the defect have to be set out.”
Section 345 [Time-limit for reasoning the appeal on points of law]
“(...)
(2) The defendant may only do so [i.e. submit notices of appeal and the grounds therefor] in the form of observations signed by defence counsel or a lawyer or orally to be recorded by the court's registry.”
Section 273 [Recording of the main hearing]
“(1) The record must indicate the course and the results of the main hearing in essence, and show that all essential formalities have been observed; it must also specify the documents read out or those documents the reading of which has been dispensed with ..., as well as the applications filed during the course of the hearing, the decisions given, and the operative provisions of the judgment.
(2) The main outcome of questionings in the main hearing ... shall also be included in the record; ...”
Section 274 [Probative value of the record]
“Observance of the formalities required for the main hearing can only be proved by the record. Against the contents of the record concerning these formalities only proof of forgery is possible.”
27. Pursuant to the well-established case-law of the Federal Court of Justice, an appellant alleging a violation of a procedural rule must set out the facts which constitute the defect within the meaning of section 344 § 2, second sentence, of the Code of Criminal Procedure in such a comprehensive and detailed manner that the appellate court is in a position to verify on the basis of the appellant's reasoning alone whether there would be a procedural error if the alleged facts were proved. It is not only necessary for the appellant not to omit facts weighing against him, but also to submit facts militating in favour of exceptional circumstances which would render his complaint unfounded. Depending on the nature of the violation of the procedural rule, the Federal Court of Justice developed special requirements in its case-law on how to reason an appeal on points of law (see the decision of the Federal Constitutional Court of 25 January 2005, nos. 2 BvR 656/99, 2 BvR 657/99 and 2 BvR 683/99, § 92 with many references to decisions taken by the Federal Court of Justice between 1982 and 2002).
28. In its decision of 25 January 2005 (cited in paragraph 27 above) the Federal Constitutional Court examined the constitutionality of the requirements set up in the case-law of the Federal Court of Justice which an appellant has to satisfy in order to lodge an admissible appeal on points of law about a procedural error in accordance with section 344 § 2, second sentence, of the Code of Criminal Procedure. The Federal Constitutional Court found that as a rule, these requirements did not violate the individuals' right to effective legal protection and did not limit access to the Federal Court of Justice in an arbitrary manner (see §§ 91-108 of the decision). It stressed that the interpretation of the said section by the Federal Court of Justice served to prevent that court from being overcharged, which would itself compromise an effective legal protection (see § 107 of the decision).
29. The Federal Court of Justice, in its decision of 9 March 1995 (no. 4 StR 77/95, NJW 1995, p. 2047), considered an appeal on points of law lodged by the Public Prosecutor's Office complaining about a procedural error to be inadmissible for failure to comply with the requirements of section 344 § 2, second sentence, of the Code of Criminal Procedure. It found that the appellant failed to set out all the facts which constituted the defect in such a comprehensive and detailed manner that the appellate court was in a position to verify on the basis of the appellant's reasoning alone whether there would be a procedural error if the alleged facts were proved. The submissions failed to give an account of the contents of the statements made by the defendant prior to the hearing before the police.
30. In its decision taken on 5 March 1996 (no. 5 StR 643/95, StV 1996, pp. 529-530) the Federal Court of Justice dismissed the defendant's appeal on points of law concerning a procedural error as inadmissible pursuant to section 344 § 2 of the Code of Criminal Procedure. The appellant, who complained that his motion to appoint a further expert had wrongly been dismissed, despite the fact that the court-appointed expert allegedly lacked expertise, failed to set out the full contents of the report given by that expert. In so far as the appellant based his allegations on statements made by that expert during the hearing, the account given in the judgment of the discussion with the expert in the hearing proved that there was no lack of expertise on his part. Accordingly, the Federal Court of Justice was not in a position to verify whether the allegation of a lack of expertise was wellfounded.
31. On 29 July 1998 the Federal Court of Justice (no. 1 StR 94/98, StV 1998, pp. 580-582) allowed the defendant's appeal on points of law alleging that the law had been applied wrongly to the facts ascertained in the judgment (Sachrüge). The defendant had been charged with six counts of sexual abuse of children, which had all been based on the statements made by the only witness for the prosecution. He was acquitted as the witness had been proved to have invented the incident in respect of one count and convicted in respect of three other counts; in respect of two counts of sexual abuse the proceedings were discontinued pursuant to section 154 § 2 of the Code of Criminal Procedure. According to the Federal Court of Justice, the evaluation of evidence in the Regional Court's judgment was defective, inter alia, because that court had discontinued the proceedings in respect of two counts of sexual abuse of children without giving reasons therefore. In the circumstances of the case – there was notably only one witness for the prosecution, no further incriminating evidence and the defendant's innocence was established in respect of one of the comparable offences he had been charged with – the reasons for discontinuing the proceedings in respect of two further counts could have had evidential value for the decisive question of the credibility of the sole witness for the prosecution.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1