ITEMID: 001-59372
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF TANLI v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 2 with regard to the death;Violation of Art. 2 with regard to the investigation;No violation of Art. 3;No violation of Art. 5;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The facts of the case, in particular concerning what happened to Mahmut Tanlı, the applicant’s son, during his detention in police custody from 27 to 28 June 1994 are in dispute between the parties. Having regard however to the length of time which had elapsed since those events and the nature of the documentary material submitted by the parties, the Court decided that a fact finding investigation, involving the hearing of witnesses, would not effectively assist in resolving the issues. It has proceeded to examine the applicant’s complaints on the basis of the written submissions and documents provided by the parties.
8. The applicant’s and Government’s submissions concerning the facts are set out below (Sections A and B). The documents relating to the events and complaints are also summarised (Section C).
9. The applicant, a Kurdish farmer born in 1933, lived in the village of Örtülü in the Doğubeyazit region in south-east Turkey. His son Mahmut was born in 1972.
10. On 27 June 1994, gendarmes from the Doğubeyazit central gendarme station arrived at the village to carry out a search. The villagers were gathered outside the mosque. The applicant’s son conducted some of the gendarmes round the village as they searched. The gendarme commanders questioned the applicant about his son. The gendarmes left taking Mahmut Tanlı with them. At that time Mahmut Tanlı was in good health.
11. On 28 June 1994, the applicant sought information from the authorities about his son. They refused to let him see his son and he left.
12. On 29 June 1994, at about 5.30 a.m., a police car arrived at the applicant’s son’s house and took the applicant to the police station. There the security director informed him that his son had died of a heart attack while in custody. The applicant replied that his son did not suffer from any illness and that he had probably died from torture. He asked to speak to the public prosecutor, who came into the security director’s office and told the applicant that the cause of death was heart failure. The applicant maintained that his son’s death had been caused by torture.
13. On 28 June 1994, an autopsy was carried out on the body by two doctors İhsan Özüu and Aydın Mazlum, one of whom was a paediatrician and the other worked in a health clinic at the Doğubeyazit Hospital.
14. Mahmut Tanlı’s body was delivered to Ulusoy police station on 29 June 1994. The body was covered in bruises. There was also a large incision, which had been stitched, running down the left breast towards the upper abdomen. The police claimed that the incision was the result of an operation carried out when Mahmut Tanlı had had a heart attack. The police asked the applicant to sign a document. As he was afraid for his safety, the applicant signed without knowing what it was.
15. Mahmut Tanlı had no criminal record and was not suspected of any criminal activities. He had no known or suspected heart disease before he was taken into custody or any other medical condition. The applicant was too afraid of the risk of reprisals to request or arrange a forensic examination of his son’s body.
16. On 29 June 1994, the applicant made a statement to the Doğubeyazit branch of the Human Rights Association, reporting that his son’s body had shown marks and blows of force and that it was clear that he was killed under torture. The applicant’s brother made a statement in similar terms.
17. On 29 June 1994, the applicant lodged a written petition with the Doğubeyazit chief public prosecutor concerning his son’s death, which he said was suspicious. He also complained of the inadequacy of the post mortem examination which had not been carried out by experts. He asked that his son’s body be referred to the Forensic Medical Institute. He later withdrew this request because he feared for his life.
18. On 25 July 1994, the public prosecutor took statements from the muhtar and other villagers in Örtülü, which confirmed that Mahmut Tanlı had no previous medical problems.
19. On 3 August 1994, proceedings were brought by the Agri Chief Public Prosecutor against the three police officers, Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, who had been interrogating Mahmut Tanlı when he died. There were a series of adjournments in the proceedings. On 2 February 1995, the court ordered that the file be sent to the Forensic Medicine Institute for an opinion as to the cause of death. On 23 May 1995, it was noted that the Institute had ordered the exhumation of the body. Further adjournments followed awaiting the Institute’s report. On 14 May 1996, the court found that the cause of Mahmut Tanlı’s death could not be established and the three defendants were acquitted.
20. Ahmet Akkuş, a former member of the PKK, had informed the authorities that Mahmut Tanlı from Örtülü village was an armed militiaman in the PKK. His name was also mentioned on a list of militiamen found on a dead PKK member after a clash. Mahmut Tanlı was therefore suspected of having aided and abetted the PKK.
21. On 27 June 1994, following a search of Örtülü, the Doğubeyazit gendarmes took Mahmut Tanlı into custody. They transferred him the same day to the Uluyol police station for questioning. He arrived at about 9.30 p.m. As the police officers responsible for questioning were in pursuit of other suspects, his questioning was postponed to the next day.
22. On 28 June 1994 three police officers, Ali Gündoğdu, Murat Demirpençe and Ökkeş Aybar, started to question Mahmut Tanlı. He at first refused to admit any connection with the PKK, alleging that it was a slander. When details were put to him of his alleged connections, including Akkuş’s statement, he became excited and began stammering and trembling. He went pale, his voice changed and it was clear that he was developing a kind of shock. The questioning was stopped and a doctor sent for. The doctor arrived within 5 to 10 minutes. The doctor, Yunus Ağralı, found him to be having difficulty in breathing and that he was cyanotic. He ordered an ambulance. Within three minutes, his breathing and heart had stopped. He was given artificial respiration and cardiac massage for 20 minutes by the doctor, assisted by the police officers. This was to no avail.
23. The public prosecutor, informed of the death, arrived soon after. The ambulance took the body to the Ağri State Hospital where an autopsy was carried out by İhsan Özlü and Aydın Mazlum, two doctors from the Doğubeyazit State Hospital, in the presence of the public prosecutor. According to the report, there was no trace of lesions, traumas or the use of force on the head and no fresh bruises. After the autopsy the public prosecutor suggested to the applicant that his son’s body should undergo a comprehensive forensic examination at the İstanbul Forensic Medicine Institute in order to dispel any doubts. The applicant initially agreed. After consulting other members of the family, however, he withdrew his consent. The public prosecutor handed over the body to be buried by the family.
24. The public prosecutor, Halil Erdem, started an investigation into the allegation of the applicant that his son died as a result of torture in custody. He interviewed the three police officers. He also wrote to the Doğubeyazit Military Recruitment Office to obtain any military medical records. After a comprehensive investigation, an indictment was drawn up accusing the three police officers of an offence under Article 243 of the Turkish Penal Code. On 14 May 1996, having considered all the evidence, the Ağri Criminal Court acquitted the three police officers on grounds of lack of evidence. The decision of acquittal was upheld by the Court of Cassation on 11 November 1996. It also rejected the applicant’s appeal as he had failed to intervene in the proceedings against the police officers.
25. The applicant stated that on 26 June 1994 the Doğubeyazit gendarmes station and central commanders carried out a search in Örtülü village. They asked about his son Mahmut who was walking around with the soldiers. His son had never committed an offence. His son had been killed under torture by teams in the Uluyol district of Doğubeyazit. He had made an application. He was going to take the body to the Forensic Medicine place. He did not as he was afraid for his life. He complained against those who killed his son, whose only offence was to be a Kurd.
26. This was also signed by the applicant’s uncle, Ahmet Tanlı. The applicant’s son had been taken into custody by the Doğubeyazit Security Directorate on 27 June 1994. The applicant stated that the police claimed that his son had died of a heart attack in custody. When he went there he saw marks of blows and force on his son. His body was covered in bruises and it was clear that he had been killed under torture. The uncle said that he had seen the whole of the body covered in bruises. There was no question of a heart attack.
27. The applicant submitted four colour photographs of the body of Mahmut Tanlı taken before the burial. These showed the chest, face and forearms. The quality was poor. Red marks and grazes appeared to be visible on the arms, body and hips. A stitched incision ran from the neck across the chest to the stomach.
28. The suspect was from Örtülü village. In recounting his contacts and activities for the PKK, he named Mahmut Tanlı, son of Mustafa, as one of the villagers working for the PKK in the village.
29. This document was signed by the public prosecutor and police superintendent Ali Gündoğdu, head of the Anti-Terror Department of the Doğubeyazit Security Directorate. It stated that at 10.30 p.m. on 28 June 1994 it had been reported on the telephone that Mahmut Tanlı, a suspected PKK member, had had an attack while under interrogation at the Uluyol police station. When he entered the police station, the public prosecutor found the body stretched out on the bench. There was nothing worthy of note at the scene. The body was dressed and there were no signs of blows.
30. Ali Gündoğdu stated, having been sworn, that Mahmut Tanlı had been handed over to the police station by the gendarmes at about 9 to 9.30 p.m. on 27 June 1994. He had the necessary medical examination by the doctor. He looked perfectly well. They did not interrogate him that day. He and two other officers, Murat Demirpençe and Ökkeş Aybar, went to the room to interrogate him. He told him that his name had been mentioned in statements taken from Ahmet Akkuş and other PKK activists. Mahmut Tanlı denied that he was involved and claimed that it was slander. He became very agitated and began to tremble. As they realised that he was unwell, they immediately sent for a doctor at the hospital. By the time the doctor arrived, he had died from the sudden shock. They tried to revive him without success. The suspect had not been subject to any blows or violence. He died of shock.
31. Dr Yunus Ağralı, from the Doğubeyazit State Hospital, stated that despite artificial respiration and cardiac massage the suspect had died.
32. The decision was taken to transport the body to the Doğubeyazit State Hospital for an autopsy to be performed.
33. No traces of blows or lesions were found on the head. There was a graze about 2 cm below the right collarbone on which a scab had formed – it looked about two days old. No traces of blows were found on the back, arms, hands or legs. Grazes about 2x2 cm were found on the left hip, which were probably about one week old.
34. No traces of blows or violence were found on opening the thoracic cavity. The ribs and collarbones were intact, as were the bones of the chest. The heart tissue was seen to be pale in colour and a bruised area observed near the apex. Blood clotting was observed inside the blood vessels in the front section and clotted blood was detected inside heart. Black pigmented specks were found in the lungs. No abnormalities were found in the abdominal or cranial cavities. The cause of death was sudden heart failure resulting from an embolus in the blood vessels of the heart. As no further procedures were required, it was decided to issue the burial and transport licence.
35. The autopsy had been carried out by Dr İhsan Özlü, a paediatrician at the Doğubeyazit State Hospital, and Dr Aydın Mazlum, employed in the Doğubeyazit Health Clinic.
36. This stated that his son did not have any heart condition. It was suspicious and absurd to claim that he died of a heart attack. His son had just completed his military service without the slightest health problem during or before. As far as he gathered, no traces of violence had been found. However, other forms of torture (electric shock, medication, injections, cold water treatment) were possible which left no marks but could affect the heart. He requested that the body be sent to the Forensic Medicine Institute for a full report so that the responsible persons could be punished.
37. It had been determined that the deceased died of a heart attack and a decision was taken to issue a licence for the applicant to transport and bury the body.
38. The applicant withdrew his request for a report by the Forensic Medicine Institute as there was no point in doing so. The note was taken down by the public prosecutor and signed by him and the applicant.
39. Mahmut Tanlı, wanted as a suspected member of the PKK militia in Örtülü, was handed over to them by the gendarmes at about 9.30 p.m. on 27 June 1994. He was not interrogated then as they had other duties on search operations the next day. He, Murat Demirpençe and Ökkeş Akbar commenced questioning Mahmut Tanlı in the interrogation room on 28 June 1994 at about 9 p.m. They told him that his name had been mentioned in statements made by Ahmet Akkuş and that documents found on the bodies of PKK members killed in operations showed that he had carried out activities as a member of the armed militia of Örtülü under the assumed name of Agır. Mahmut Tanli suddenly became agitated, his voice began to tremble and, speaking in a quavering voice, he said that he did not have the assumed name of Agir and that they had been lying. The witness repeated that his name was mentioned in documents. He suddenly was unable to speak, his colour changed and he began to shake. He lost consciousness. The witness immediately informed the relevant authorities and asked them to send a doctor. They laid Mahmut Tanlı on the floor and uncovered his chest. His breathing was difficult. Ökkeş Aybar, who had knowledge of first aid and was attending a training course, began to give him heart massage. There was no change. They continued for about 10 minutes until the doctor arrived. Dr Yunus Ağrali immediately checked the patient’s pulse as he lay on the floor and listened to his heart and said that his condition was very serious. While he gave heart massage, he told the police officers to give artificial respiration. This went on for 10 minutes but there was no change in his condition and the doctor said that he had died. During the interrogation, they had not pushed, kicked or beaten the detainee in any way. The detainee’s death was not the result of any action on his part or on the part of his colleagues.
40. The witness, a police officer in the Anti-Terror Branch of the Doğubeyazit Security Directorate, was with Superintendent Gündoğdu and Murat Demirpençe when they interrogated Mahmut Tanlı on 28 June 1994. They had not done so earlier due to other business. He did not carry out interrogations himself. They began to put questions to the detainee. Superintendent Gündogdu told the detainee that he was wanted by the Security Police and that they had information and documents about him. The detainee spoke calmly to begin with, but when Superintendent Gündogdu told him those things, his voice changed and he quavered and stammered. He suddenly became unwell and appeared to faint. They immediately laid him out on the floor and uncovered his chest as he was having difficulty breathing. The witness knew how to give first aid, having attended a course in first aid. Superintendent Gündogdu immediately informed the squads and the security headquarters of the situation and told an officer to take the HQ car and get a doctor urgently. Dr Yunus Ağrali arrived 10 minutes later and immediately checked the patient’s pulse and heart beat and said that his condition was serious. A couple of minutes after his arrival, the doctor said that the patient had died but that it was necessary to continue with heart massage and artificial respiration. He told them to give artificial respiration, while he carried out heart massage. However, it was to no avail and the doctor then said that the patient had died. While the detainee was in the security headquarters neither the witness nor his colleagues did anything to him which would have made him faint or caused his death.
41. The witness, a police officer in the Anti-Terror Branch of the Doğubeyazit Security Directorate, stated that at about 9 p.m. on 28 June 1994, Superintendent Ali Gündogdu, Ökkeş Aybar and himself went to the Uluyol police station to interrogate Mahmut Tanlı. They commenced the interrogation in the room reserved for detainees. They had not done so before as they had had other business. There were only the three officers in the interrogation room. Superintendent Ali Gündogdu first asked the detainee if he knew why he had been arrested. When he said that he did not, the Superintendent told him that he had been mentioned as a member of the armed militia in Örtülü village in the statements made by Ahmet Akkuş, and that his name had been found in notebooks found with the bodies of the 24 terrorists killed in clashes near Uzunkaya village on 9 May1994 identifying him as a member of the PKK armed militia in Örtülü village. Thereupon the detainee began to stammer and tremble. He went pale and suddenly collapsed. The Superintendent immediately reported the situation to the squads by radio and told them to get a doctor urgently. At the same time he told a police officer outside the room to take the car and fetch the doctor. Meanwhile, Ökkeş Aybar said that he knew how to give first aid and he laid the detainee out on the floor, uncovered his chest and gave him heart massage. Within ten minutes, the police officer returned with Dr Yunus Ağralı, who immediately checked the patient’s pulse, listened to his heart and said that his condition was serious. The doctor told police officer Cafer to go and get medicine. The doctor told them to give artificial respiration while he gave the heart massage. They continued like that for several minutes. Then the doctor checked his pulse and listened to his heart again and said that the patient had died, but that it was necessary to continue with heart massage and artificial respiration. They continued. Then the doctor said that the patient had died and there was nothing else to be done. They reported the situation to their security headquarters by radio. Neither he nor his colleagues did anything to the detainee which would have caused his death.
42. The witness, a lawyer, stated that the applicant and other members of the family came to his office telling him that the death of Mahmut Tanlı was suspicious and consulting him as to what could be done legally. He suggested that the body be sent to the Forensic Medicine Institute before burial. They agreed. He wrote a petition for them to the public prosecutor, which they presented together. The prosecutor said that it was possible and he would look into it. A couple of hours later, he phoned the witness and said that he would send the body and that a special coffin had to be prepared. He said that there was no budget for this at the prosecutors’ office but that assistance could be obtained through the District Governor’s office. The witness told the family that once they had obtained the zinc-lined coffin the public prosecutor would send the body to the Institute. The family went away and came back an hour later. They said that they were afraid that it would be very difficult to transport the body back and forth and that anything might happen. The witness went with them to the public prosecutors’ office and the applicant declared verbally to the public prosecutor that he was waiving any further examination. The public prosecutor said that it would be of great advantage in elucidating the facts, as well as from a legal point of view, if the body were sent. The applicant went away with his family and came back half an hour later. He repeated that they were definitely waiving sending the body to the Institute and were going to bury it. The public prosecutor told them that they could. The family took the burial licence, collected the body from the morgue and took it back to the village.
43. While the witness was on duty at the State Hospital, a police officer came and said that there was a patient in need of urgent treatment. Taken in a police car to the Uluyol police station, he found the patient stretched out on a bench. The pulse was 200/minute, the heartbeat irregular and breathing difficult. The patient’s situation was serious. He told a police officer to get some adrenaline atropine. The patient’s general appearance was somnolent. His breathing stopped. He could not hear any heartbeat. He immediately performed heart massage, telling the police officers to give artificial respiration at the same time. This went on for 5 to 10 minutes. There was no trace of any vital functions. The pupils were fairly dilated and there was no light reflex. He realised the patient was dead and stopped performing first aid as there was no point. However, since heart massage and artificial respiration can continue up to half an hour, he told the police officers to continue both. It was in vain.
44. On 27 June 1994, the gendarmes came to the village, saying that they were looking for his son Mahmut. They took him away. On 28 June the applicant went to visit his son but they would not let him speak to him. On 29 June, when he was at his son Hasan’s house, a police car arrived at about 5.30 a.m. and took him to the office of the chief of police. The chief of police told him that his son had died. The applicant replied that his son had not been ill, that it was suspicious and that he could have been tortured to death. He asked to talk to the public prosecutor. The public prosecutor came into the office and said that he had carried out the autopsy procedure which showed no signs of blows or violence and that his son had died of heart failure. The applicant repeated that he could have been tortured to death.
45. The applicant went to see the lawyer Ahmet Gerez who said that the body could be sent to the Forensic Medicine Institute. He drew up a petition for this and they took it to the public prosecutor. The prosecutor said that they needed a galvanised sheet metal coffin and asked them to have it made. Some money for this might be available from local funds. The applicant, family elders and relatives discussed the matter and decided to give up the idea as various difficulties could arise and they would be put under pressure. They told the prosecutor that. He said that it would be of great advantage to send the body to the Institute and asked them to reconsider. The family discussed it again and, accompanied by Ahmet Gerez, told the public prosecutor that they had decided not to send the body. The public prosecutor issued a burial licence and they buried the body in the village.
46. The applicant wanted an investigation concerning the persons who caused his son’s death and that they should be punished.
47. The witness, a police officer, was sitting in the office of the chief of the Anti-Terror Branch when the chief, Ali Gündoğdu, as well as Ökkeş Aybar and Murat Demirpençe, went into the room for detainees. Gündoğdu asked for the statements of Ahmet Akkuş and took them with him. About 10 to 15 minutes later, he came back and said that Mahmut Tanlı had been taken ill. He asked the police driver present to get a doctor quickly. The witness went to the room to see the detainee. Ökkeş Aybar had uncovered the detainee’s chest and was trying to get him to breathe. Dr Ağralı arrived a short time later. He said that he needed heart massage and artificial respiration. He told the police driver to go to the pharmacist to get a drug but a few minutes later announced that the Mahmut Tanlı had died. The witness did not see or hear that Mahmut Tanlı had been subjected to blows or violence. Only a short time passed between his colleagues going into the room and coming out again.
48. The witness, a police driver at the Anti-Terror Branch of Doğubeyazit Security Directorate, was on duty that evening. Superintendent Gündoğdu and officers Aybar and Demirpençe arrived at Uluyol at about 9 p.m. The superintendent was carrying a file in his hand. They went into the room where Mahmut Tanlı was being held. The witness and other officers waited in the superintendent’s office. After about 10 minutes, the superintendant came out, saying that the detainee was ill and telling him to take a car to get a doctor. He drove to the hospital about 800-1000 metres away and brought back Dr Ağralı 5 to 10 minutes later. The doctor checked the detainee’s pulse and heart and said that the man needed heart massage and artificial respiration. He told the witness to fetch a drug from the chemist on night call. He was about to get into the car when the doctor said that it was no longer necessary as the detainee had died. He had not seen anyone at the station subject the detainee to any blows or violence.
49. The witness, a police officer in the intelligence unit, arrived at Uluyol police station at about 9 p.m. He was having tea with others while three colleagues went to take a statement from Mahmut Tanlı. About 10 minutes later, Superintendent Gündoğdu came out and told the police driver to get a doctor urgently as the detainee had been taken ill. The witness did not go in the room. He heard the doctor tell the driver to get a drug and then not to bother. While he was there no-one subjected the detainee to blows or violence.
50. This stated, with reference to an incident report of 13 May 1994, that after an armed clash between the terrorists and security forces, 24 terrorists had been arrested or killed and a number of documents found. One of these, a list of PKK members, included Mahmut Tanlı’s name on page 45.
51. These statements from villagers stated that Mahmut Tanlı had no health problems and that they had never seen or heard of him having any illness.
52. Having examined the file of Mahmut Tanlı in response to the query as to whether he had suffered any health problems or been treated during his military service, they could not find any medical reports about his health.
53. This listed the defendants Ali Gündoğdu, Ökkeş Aybar and Murat Demirpençe as charged with the offence of causing the death of Mahmut Tanlı by ill-treatment in their capacity as police officers, contrary to Article 243/2 of the Turkish Penal Code. The evidence was summarised, including the autopsy conclusion that death had been caused by heart failure and that there were no signs of blows or violence. It concluded that it was for the court to assess the fault or negligence of the defendants in possibly causing death – such as causing the death of the deceased, allegedly tortured, by frightening him.
54. It was stated that the letter and enclosures from the Ministry of Justice (International Law and Foreign Relations Directorate) were read out to the applicant.
55. The applicant stated that he had been informed that his son had died of a heart attack in police custody. The public prosecutor said that there had been an autopsy and that this had concluded that there had been a heart attack and that there were no marks of ill-treatment. The applicant wanted the body to go to the Forensic Medicine Institute for a more definite conclusion. The prosecutor accepted this and he left to obtain a coffin. For a couple of hours, he discussed the matter with the elders in the family and finally decided that it would be very burdensome to take the corpse there and back. They went to the prosecutor’s office and told him that they had given up the idea. The prosecutor said that, although the cause of death had been established, it would still be useful to send the body for a more thorough examination. They insisted however and took the body to the village.
56. He confirmed his petition and signature on the petition and letter of authority. He wanted those who killed his son found and punished.
57. The court decided to summon the defendants to give evidence, to obtain any records of their previous convictions and to summon witnesses (the applicant, Dr Ağrali, Ahmet Gerez, Ali Temtek, Musa Sabaş, Mirsevdin Timur, Mahmut Ardin, Ömer Güzel, Cafer Yiğit, Nihat Açar and Ahmet Akkuş).
58. The court heard evidence from a number of witnesses and two of the defendants. Murat Demirpençe did not attend.
59. Ökkeş Aybar said that they had been questioning the deceased. When Superintendent Gündoğdu told him that he was wanted as a PKK militia man, the deceased’s speech and voice changed. His facial expression changed. As he said that he was unwell, they got him to lie down on a bench. Since he had difficulty breathing, they tried to help him and called a doctor. A few minutes after the doctor arrived, the doctor said that he had died. He had not tortured or ill-treated the deceased in any way.
60. Ali Gündoğdu said that he told the deceased what the allegations were and the evidence that he was in the PKK militia. The deceased suddenly became unwell, his voice began to tremble and he had difficulty breathing. He ended the interrogation and they tried to ease his breathing. At the same time they contacted the hospital. A doctor came but after a couple of minutes said that the deceased had died. He denied the offence.
61. The applicant said that his son had no health problems whatsoever and did his military service without problem. The police had not called him after they had killed his son. He thought that the doctor who carried out the autopsy was under pressure. The defendants had tortured his son to death. In answer to a question, he said that he had not allowed his son’s body to be sent to the Forensic Medicine Institute because he was afraid of reprisals. The public prosecutor had suggested it should be done but he was afraid that they would kill him on the way there. He rejected the autopsy report. He had heard that one of the doctor signatories had not in fact been there. It was impossible that his son had died of a heart attack.
62. Mirsevdin Timur from Örtülü village confirmed that Mahmut Tanlı had had no health problems.
63. Nihat Açar, a police officer, stated that he was outside the interrogation room when the defendants and deceased were in there. After a few minutes, Ali Gündoğdu came and said that that the deceased was unwell, sending the driver to fetch a doctor. When he entered the room, the police officers were trying to ease the deceased’s breathing. The doctor arrived about 5 minutes later. The deceased had no marks of blows on him and he did not see him being tortured.
64. Mahmut Ardin, a villager, stated that Mahmut Tanlı had no health problems. He had been present when his body was being washed. There were marks of blows on his arms and bruises on the sides. He had not mentioned that in his previous statement as he was not asked.
65. Cafer Yiğit, a police officer, stated that he had been on duty at the police station when the defendants went in to interrogate the deceased. A short while later, Ali Gündoğdu came out and said that the deceased was unwell. He went to find a doctor. That took about 5 to 10 minutes. He did not hear or see the deceased being tortured. They had been adjacent to the room and would have heard any sounds coming from there.
66. Ömer Güzel, a police officer, had been outside the room where the deceased was being interrogated. He saw the defendants and deceased go in. After 10 minutes, Ali Gündoğdu came out and said that the deceased was unwell and asked for a doctor to be called. Cafer brought back a doctor after 5 to 10 minutes. He did not hear or see the defendants subject the deceased to any blows or violence. They would have been bound to hear if they had.
67. Ali Temtek, the muhtar from Örtülü, had not been there and did not attend the funeral.
68. The court decided inter alia to make a further request for the defendants’ records, to subpoena Murat Demirpençe, to send letters rogatory concerning Dr Ağralı and to subpoena Ahmet Gerez, Musa Savaş and Ahmut Akkuş.
69. The defendant Murat Demirpençe attended. He stated that he had taken the deceased into the room used for interrogation. The deceased sat down on the bench. Superintendent Gündoğdu asked if he knew why he was there. When he said that he did not know, the superintendent told him why he had been brought. The deceased began to tremble. His voice changed, he went pale and began to feel unwell. The superintendent reported this on the radio. They sent Cafer to fetch a doctor, who arrived about 10 minutes later. The doctor treated him and sent Cafer for some medicine. He and his colleagues had definitely not tortured the deceased.
70. The court adjourned to wait for the reply inter alia to the letters rogatory and subpoenas for the remaining witnesses.
71. It was noted that Dr Ağralı, by reply to the letter rogatory, had maintained his previous statement.
72. Ahmut Akkuş appeared. He denied the statement of 17 February 1994. He had been blindfolded and did not know what was in it. He did not know if the deceased was in the PKK or not.
73. Musa Savaş, a villager, said that Mahmut Tanlı had no health problems and knew nothing else.
74. The court decided inter alia to await the response to the subpoena for Ahmet Gerez and to re-issue letters rogatory to Dr Ağralı to put a question about the autopsy report.
75. The court adjourned pending responses to pending matters.
76. The court decided to dispense with hearing Ahmet Gerez, whose address had not been found, and to send the entire file to the Forensic Medicine Institute, requesting their opinion on the cause of death of the deceased and asking whether he had died as the result of torture, violence or blows.
77. The court adjourned pending the reply from the Forensic Medicine Institute.
78. Pursuant to the report of the 1st Specialist Committee of the Institute of Forensic Medicine, the court decided to order the exhumation of the body of Mahmut Tanlı.
79. The court adjourned pending the report of the Forensic Medicine Institute. On 18 January 1996, noting the delay, it issued a writ to the prosecution department to request the opinion to be submitted.
80. The report reviewed the evidence in the file. It stated that an autopsy had been performed on the body exhumed on 9 June 1995 and an autopsy report issued on 12 June 1995. That report indicated that the body was in an advanced state of putrefaction. The soft tissue in the head area had entirely disappeared; the radioscopy did not reveal any particular features in the skeletal system or any foreign metal objects; no lesions were found on the skull; 3-5 cm lesions were observed from the previous autopsy; the facial bones and teeth were intact; despite the putrefied and shrunken appearance of the heart, it could be seen that the ventricles had not been opened; advanced putrefaction made it impossible to assess the main veins or coronary arteries; no particular features could be distinguished in the lungs or abdomen; examination of the cervical organs revealed that the standard dissection had not been performed; the toxicological analysis disclosed no substances for which tests were done.
81. It was concluded as follows: The information given was that an autopsy including the opening of the three cavities was performed, that clotted blood was found in the heart and internal clotting in the anterior part of the coronary arteries and that death was caused by sudden heart failure due to an embolism in the cardiac vessels. However, as the autopsy after the exhumation showed, the organs had not been removed, sectioned and examined and that the heart ventricles had not been opened. The changes described therefore were of no scientific value. In cases of torture, traumatic changes might not be visible on external examination. The skin and deep muscle tissue had to be sectioned and examined to investigate deceptive traumatic changes. As regarded possible electric shocks, samples of cutaneous and subcutaneous tissue had to be taken from the usual places – the inside of the mouth, nose and ears and genital area had to be examined and samples taken from the organs for histopathological analysis. None of these tests, included in the Minnesota model autopsy protocol published by the United Nations, were performed at the time. Therefore the judicial procedure had been left incomplete.
82. The findings showed that no injury was suffered likely to cause bone fracture. However owing to advanced putrefaction, it could not be established whether or not the deceased died as a result of torture, assault or battery; nor was it possible to determine the cause of death.
83. The court summarised the evidence. It noted that the public prosecutor had given his opinion that there was no concrete evidence to support the allegation that the defendants had caused the death of Mahmut Tanlı. The testimonies of the witnesses who appeared before the court did not make it possible to reach the conclusion that the defendants tortured or ill-treated the deceased.
According to the documents in the file and the on-site report, the deceased was apprehended by the gendarmerie on 27 June 1994 on suspicion of being a PKK militant and was handed to the police the same day in order to be questioned. He had not been questioned the same day because they had other things to do and, when they started to question him the next day, he fell ill and subsequently died despite the first aid attempts.
According to the corpse examination and autopsy report of 28 June 1994, a copy of which is in the case file, there were no signs of ill-treatment or lesions on the head; there was a cut under his right collar bone, measuring 2 cm, which had formed a scab and which probably had been caused 2 days previously. There were no signs of ill-treatment on the back of the body, hands or arms. On the left side of the buttocks there were superficial cuts, measuring 2x2 cm, which had formed scabs and which had possibly been caused a week previously. There were no signs of ill-treatment on the legs or the feet. A full autopsy was also carried out on the deceased’s body. There were no signs of ill-treatment on the chest. The collar-bones and the rib cage were intact. There were no bruises on the neck. There was no accumulation of blood in the thoracic cavity. The examination of the heart revealed an ecchymotic area on the apex cordis, near the pallor. On the front sides of the coronary arteries there were blood clots. There was also clotted blood in the heart and occasional pigment spots in the lungs. There was no blood accumulation in the thoracic or abdominal cavities. The stomach and intestines were normal. There were no signs of ill-treatment on the scalp or on the bones. No broken bones or oedema were observed. The brains were intact and there was no bleeding or discoloration on the tissue covering the brains. The cause of death was given as emboli in the blood vessels of the heart which caused the heart to stop.
The Forensic Medicine Council was contacted and their opinion was requested. The 1st Specialist Committee in their report of 13 March 1996 stated that the autopsy conducted locally on the body was inadequate. They also stated that the autopsy conducted on the remains of the body after the exhumation was not sufficient to determine conclusively whether he had been killed as a result of torture or ill-treatment, or to determine conclusively the cause of death, because the soft tissues of the body and the internal organs had seriously decomposed.
According to the summary of the documents above, and the autopsy reports, it had not been possible to determine the cause of death. The defendants’ denials had also not been disproved. It was therefore not possible to determine conclusively that the defendants had committed this crime. The cause of death had not been established and therefore there was no conclusive evidence to prove beyond reasonable doubt that the defendants had committed the crime with which they have been charged. It was therefore decided, unanimously, to acquit all the defendants.
84. The court noted that on 15 May 1996 the applicant had appealed against the decision of acquittal. However, as he had not applied to join the proceedings as an intervenor, the Assize Court had refused leave to appeal. He appealed against this refusal on 15 June 1996.
85. The court decided, unanimously, that the decision of the Assize Court not to grant leave to appeal, as the applicant was not a party, was correct. The applicant’s appeal was therefore rejected.
86. This report was issued on behalf of the applicant by Dr Milroy, a Reader in Forensic Pathology at the University of Sheffield and consultant pathologist to the Home Office.
87. The report recounted the findings of the autopsy. It noted that no organ weights were recorded or any indication of any material being retained for toxicology or histology. Though the cause of death was alleged to be heart failure as a result of emboli in the heart veins, there was no description of any such finding in the section on the chest organs. The further post mortem examination in June 1995 found that the heart had not been opened or dissected in an appropriate manner, that dissection to detect traumatic changes due to torture had not been carried out and that the neck area had not been dissected in the classical manner at the first examination (the hyoid bone and thyroid cartilage were firm). The black and white photocopies of the photographs of the body taken by the applicant were of no assistance in determining the presence of injuries.
88. The opinion was given that the post mortem examination after the death of Mahmut Tanlı was wholly inadequate. The conclusion of death due to heart failure appeared to have no pathological basis. It is said that there were emboli in the coronary veins but there is no description of any source for these emboli and no disorder of any organs was described. If the heart was dissected at all, and this appeared unlikely from the second examination, the so-called emboli would appear to be post mortem clotting of blood and not an event that had occurred in life to account for death. In any event emboli, or thrombosis, in a 22 year old man would be exceptional and, if present, would be expected to be present in coronary arteries not veins. The cause of death given at the first post mortem examination could be dismissed as incorrect, based on observations of doctors who had no pathological training or as, frankly, made up as the heart did not appear to have been dissected.
89. While no fresh injuries were identified by the doctors at the first examination, in view of the incompetent nature of the examination, it had to be questioned whether subtle changes would have been detected. If such injuries were present on the skin, they would not have been visible to the pathologists carrying out the second examination a year later.
90. The possibility that Mahmut Tanlı met his death as the result of torture had to be strongly considered. Techniques such as neck holds leave subtle signs in the neck which require detailed and appropriate dissection which was not carried out. The absence of injury to the hyoid bone and thyroid cartilage were not conclusive as the structures were cartilaginous and less liable to fracture than in an older person. Another possibility was some form of restraint asphyxia or positional asphyxia where significant pathological findings were absent or minimal and needed careful consideration. Post mortem techniques existed for that but were not used. Another possibility was the application of electrical current, which left subtle skin changes that required careful examination for detection. The autopsy was inadequate for that purpose.
91. It was concluded that the autopsy findings did not support a natural cause of death and no other natural cause of death was identified. In the absence of a natural cause of death, unnatural causes had to be strongly considered. However, the first autopsy was inadequate to identify specifically subtle forms of torture or ill-treatment that could lead to death.
92. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
93. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
94. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.
95. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court.
96. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see preceding paragraph) also applies to members of the security forces who come under the governor’s authority.
97. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 93 above) or with the offender’s superior.
98. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
99. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review ...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
100. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned in the preceding paragraph, provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
101. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).
102. Article 79 of the Turkish Code on Criminal Procedure provides:
“Official examination of a corpse must be made in the presence of a physician. An autopsy shall be performed in the presence of a judge and in those case where it is necessary to avoid prejudicial delay, the autopsy shall be performed by two physicians in the presence of the public prosecutor, at least one of the physicians being a forensic practitioner.
In an emergency situation, the operation may be conducted by one doctor only.”
103. By the end of 1999, the European Committee for the Prevention of Torture (CPT) had carried out eight visits to Turkey. The two first visits in 1990 and 1991 were ad hoc visits considered necessary in the light of the considerable number of reports received from a variety of sources, containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, relating to those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996, October 1997 and February-March 1999. The CPT’s reports on these visits, save the last two, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming.
104. The CPT has issued two public statements.
105. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged: Palestinian hanging, electric shocks, beating of the soles of the feet (“falaka”), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention.
On its second visit in 1991, it found no progress had been made in eliminating torture and ill-treatment by the police. Many persons made complaint of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana prison displayed haematomas on the soles of his feet and a series of vertical violet stripes (10 cm long, 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. In Ankara police headquarters and Diyarbakır police headquarters, it found equipment consistent with use in torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”.
106. In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. A considerable number of persons examined by the delegations’ forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the Anti-Terror Department at Istanbul Police Headquarters which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons who had lost the use of both arms, threatened to be irreversible. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.
107. The Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions adopted by the United Nations in 1991 includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it noted that an abridged examination or report was never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details:
“It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results.”
108. In part 2(c), it stated that adequate photographs were crucial for thorough documentation of autopsy findings. Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report.
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
18
3
5


ITEMID: 001-102700
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF SEPPALA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Mihai Poalelungi;Päivi Hirvelä
TEXT: 4. The applicant was born in 1975.
5. On 2 March 2000 the applicant was first questioned by the police on suspicion of offences in relation to his business activities. The last questioning of the applicant took place on 26 June 2001.
6. The first pre-trial investigation reports were completed and sent to the public prosecutor on 25 October 2000, 4 December 2000 and 4 October 2001. The last pre-trial investigation report was submitted to the prosecutor on 16 November 2004.
7. On 22 December 2004 the prosecutor, who according to the Government had decided to join the cases concerning the applicant, preferred charges against him at the District Court. The court held a preliminary hearing on 16 November 2005 and later an oral hearing over a number of days. The applicant was heard before the court for the first time on 12 January 2006.
8. On 12 April 2006 the District Court issued its judgment with regard to the applicant and 24 other defendants in 11 cases which had been joined. The applicant was convicted of aggravated tax fraud and other economic offences and sentenced to one year and two months’ imprisonment. Jointly with other defendants, he was also ordered to pay some EUR 89,000 with interest to the tax authorities.
9. In its reasoning the District Court stated that the majority of the criminal acts in respect of all defendants had been committed in 1998 and 1999. The bulk of cases had been lodged with the court on 22 December 2004. The last application for a summons in the joined cases had been filed with the court on 27 July 2005. The court noted that the case concerned particularly wide-ranging economic crimes. The examination of the cases needed to be joined due to the connections between different companies and persons involved. For that reason the court, in sentencing the defendants, took into account only to a lesser degree the time that had elapsed since the commission of the criminal acts and the length of the proceedings as mitigating circumstances. The amount of reduction in the respective sentences was not specified by the court. As regarded the applicant, the court also took into account his previous community service and noted that he had committed the crimes partly while on probation.
10. On 27 November 2007, having held an oral hearing, the Court of Appeal dismissed the applicant’s appeal, including his complaint concerning the length of the proceedings.
11. On 31 March 2008 the Supreme Court refused leave to appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87424
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KITA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 10 - Freedom of expression -{General}
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1968 and lives in Kazimierza Wielka.
6. The applicant works as a teacher in Kazimierza Wielka. In 1998 he was also a member of the Municipal Electoral Commission (Miejska Komisja Wyborcza w Kazimierzy Wielkiej).
7. In August 1998 the applicant wanted to publish an article in the local newspaper (Gazeta Kazimierska) on alleged financial irregularities in the municipality. As the newspaper had been closed down, the applicant published the article himself. On 5 October 1998 he distributed it in the form of leaflets.
8. In his article entitled “Information Bulletin: What the president of the City Council and the City Council Board have to hide”, he referred to six municipality officials. He stated that Z. J. and H. O. had been so busy interfering with the employment policies of the local schools that they had not had time to administer the municipal educational funds properly. As a consequence teachers and employers of the municipal educational institutions had not received allowances (for protective clothing) which under relevant legal provisions they should have received. In addition, the physical education teachers had received lower salaries without a certain 25 % allowance. In the applicant’s opinion the teachers did not claim this allowance as they had been afraid to lose their jobs. When the applicant had informed the mayors - T. B., K. S. and the president of the City Council Board W. M. - about the financial irregularities, he had been dismissed from his post. He had eventually been reinstated.
9. The applicant further claimed that the municipality had received subsidies from the State to provide transport for children to schools. However, the schools had been required to pay an additional contribution to the municipality. The applicant maintained that H. O. had known about this situation but had failed to take appropriate action. In addition she had not acted for the benefit of the school employees. Parties which had been organised for city council members had been wholly financed from public funds.
10. Lastly, the applicant stated that he was not surprised that W. M. had not replied to an inquiry from the Supreme Control Chamber (Najwyższa Izba Kontroli) as the municipal budget surplus had probably been used to pay bonuses and per diem allowances for the council members.
He concluded:
“I encourage the readers to reconsider whether between 1994 and 1998 the city was governed by the right people; whether these people can be offered yet another term of office in the October elections.
Whether during those four years they have indeed acted honestly for the common well-being of the Kazimierza Wielka community or in their own personal interests.
Can these people be trusted again with the city council mandates?”
11. On an unknown later date the Social Democrat group in Kazimierza Wielka (representing W. M., H. O. and K. S.) instituted proceedings against the applicant under section 72 of the Local Election Act. The applicant had not been aware of that fact.
12. On 8 October 1998 the applicant’s mother was informed that the applicant was supposed to appear before the court next day at 11 a.m. She could not inform the applicant as he was in Krakow on 8 and 9 October.
13. On 9 October 1998 the Kielce Regional Court (Sąd Okręgowy) held a hearing and gave a decision. It ordered the applicant to publish in the local newspaper Słowo Ludu an apology and a statement that he had included untrue information in his leaflet. It further ordered the applicant to pay a fine of 1,000 Polish zlotys (PLN) (approx. 280 euros (EUR)) for the benefit of the Children’s Hospital in Kielce.
14. On 10 October 1998 the applicant went personally to the Regional Court and was informed about the decision taken on 9 October. On the same date he lodged an appeal.
15. The local elections took place on 11 October 1998.
16. On 13 October 1998 the Cracow Court of Appeal (Sąd Apelacyjny) quashed the first-instance decision and remitted the case. The court considered that the applicant had not been duly summoned to the hearing held on 9 October. The applicant had not been able to defend himself in person and accordingly the proceedings had been invalid.
17. On 26 November 1998 the Kielce Regional Court gave a decision. The court ordered the applicant to publish in the local newspaper Słowo Ludu an apology for the fact that he had included untrue information in his leaflet. It further ordered the applicant to pay a fine of PLN 700 (approx. EUR 200) for the benefit of the Children’s Hospital in Kielce. The court held that the applicant’s article concerned six municipal officials but amongst them only three were members of the Social Democrat group. None of them had been elected to the City Council in the local elections. The court heard evidence from these persons and considered that the applicant’s statements had been untrue. The article distributed by the applicant contained statements which lacked any factual basis. In addition, it could have caused the fact that H.O. and K.S. had not been elected to the city council and W.M. had received fewer votes. The court further stressed that the applicant had not mentioned that he had a criminal record. On 26 May 1992 he had been convicted of participation in a hooligan scuffle and sentenced to one year’s imprisonment, suspended for four years. Lastly, in the court’s opinion, the applicant had deliberately distributed the leaflet during the election campaign. The court did not quote the statements made by the applicant in his article but made a general assessment of the content of the article.
18. On 3 March 1999 the Krakow Court of Appeal dismissed an appeal by the applicant as lodged outside the prescribed time-limit. The court considered that as the proceedings had been conducted under the Local Elections Act the appeal should have been lodged within twenty-four hours.
19. On 4 March 1999 the applicant asked to be allowed to lodge an appeal out of time. In his appeal the applicant claimed that since 1997 he had informed various institutions about financial irregularities on the part of the municipal authorities. He added that he had planned to publish his article in a local newspaper, Gazeta Kazimierowska; however the newspaper had been closed down. Relying on Article 10 of the Convention he maintained that he had been punished for criticising the local authority. However, as it emerged from the European Court of Human Rights’ case-law the limitations of acceptable criticism were wider as regards politicians than as regards private individuals. He further stressed that the court had based its opinion, that the applicant’s statements were untrue, only on the testimonies of the persons concerned by the article. The court had not referred to other pieces of evidence such as documents submitted by the applicant. He further claimed that the Regional Court had not heard evidence from him. Finally, he stressed that in his article he had never mentioned the Social Democrat group but had only referred to the municipal officials.
20. On 28 April 1999 the Kielce Regional Court allowed the applicant to appeal out of time.
21. On 8 June 1999 the Krakow Court of Appeal gave its decision. The court amended the first-instance decision, in that it ordered the applicant to pay PLN 300 PLN (approx. EUR 85) for the benefit of the Children’s Hospital in Kielce and dismissed the remainder of his appeal. The court did not quote passages from the leaflet but made a general assessment of the content of the article. With reference to the applicant’s allegations that the process of obtaining evidence had been unfair, the court held that the applicant could have produced evidence of this during the hearing on 26 November 1998; however he had not done so. It further considered that the applicant’s untrue statements could not be considered as part of “acceptable criticism” within the meaning of Article 10 of the Convention. It considered that proceedings provided for under section 72 of the Local Elections Act were aimed at ensuring the proper conduct of the electoral campaign by preventing infringements of the personal rights of those standing for election. The Court of Appeal considered that the content of the leaflet put the claimants in an unambiguously negative light as candidates for the local council and was aimed at preventing them from being elected. The court in particular referred to the concluding remarks of the article. The Court of Appeal considered that they were incompatible with section 72 § 1 of the Local Elections Act. In these circumstances the Court of Appeal found that the decision of the Regional Court was correct.
22. Section 72 of the Law of 16 July 1998 on Elections to Municipalities, District Councils and Regional Assemblies (Ordynacja wyborcza do rad gmin, rad powiatów i sejmików województw) (“the Local Elections Act”) provided, in so far as relevant:
“§ 1. If posters, slogans, leaflets, statements or other forms of propaganda and campaigning contain untrue data and information, a candidate standing for local election or a representative of an electoral committee has the right to make an application asking the Regional Court to:
1) order the confiscation of such materials,
2) issue an injunction restraining [the defendant] from publishing such data and information,
3) order the information to be corrected,
4) order [the defendant] to apologise to the aggrieved party,
5) order [the defendant] to pay to a charity up to PLN 10,000,
6) order [the defendant] to pay to the claimant up to PLN 10,000 in damages.
§ 2. The Regional Court, sitting as a single judge, shall examine the application referred to in § 1 within 24 hours in [civil] non-contentious proceedings. [...]. The court shall serve on the interested party referred to in § 1, the relevant regional electoral commissioner and the person obligated to execute the court’s decision, without undue delay, a decision terminating the proceedings in the case.
§ 3. Decisions of the Regional Court may be appealed to the Court of Appeal within 24 hours of the time they are pronounced. The Court of Appeal, sitting as a panel of three judges, shall examine the appeal in [civil] non-contentious proceedings, according to the same procedure and within the time-limit referred to in § 2. No appeal shall lie against decisions of the Court of Appeal and any decision shall be enforceable with immediate effect.”
On 26 July 2002 Parliament amended section 72 § 1 of the Local Elections Act by repealing subsection 6, which allowed a claimant to seek compensation from a person who has divulged untrue information about him/her.
23. On 1 October 1998 the Katowice Court of Appeal gave a decision in case no. I ACz 972/98 in which it stated:
1. Section 72 of the Local Elections Act applies to factual statements contained in materials pertaining to an electoral campaign. It does not apply to conclusions or opinions based on those factual statements. Only factual statements have an objective character. Every opinion is subjective and depends on the point of view of the person holding it.
2. No one can be prevented from expressing his views and making judgments as long as they do not infringe the rights of others. However, even an infringement of personal rights which does not meet the conditions specified in section 72 cannot be afforded protection under that provision which is an exception [to the general rule] and thus cannot be interpreted extensively.
24. On 7 November 2002 the Katowice Court of Appeal gave a decision in the case no. IACz 1956/02 in which it held:
“Section 72 of the Local Elections Act [...] is an exceptional provision and as such cannot be construed extensively. That provision is applicable solely to untrue information included in electoral materials. It is not applicable to comments and opinions concerning the character of a candidate [standing for election]. If such comments and opinions infringe the candidate’s personal rights, he may seek redress under the general rules [of protection of personal rights], and not on the basis of Section 72 of the Local Elections Act.”
VIOLATED_ARTICLES: 10


ITEMID: 001-58133
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF ALLAN JACOBSSON v. SWEDEN (No. 2)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6
TEXT: 7. The applicant is a Swedish citizen, born in 1927, and living in Tullinge, Sweden.
In 1974 he bought a property of 2,644 sq. m, Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south-west of Stockholm. On the property there is a one-family house.
8. When the applicant bought the property it was covered by a so-called subdivision plan (avstyckningsplan), adopted in 1938. According to this plan no building could be constructed on a plot of less than 1,500 sq. m until sufficient water and sewerage facilities had been provided for. Such facilities appear to have been built at the end of the 1960s. The property was also covered by an area plan (områdesplan), adopted in 1972, which described the property mainly as a public area containing open spaces, streets and car parking, and by a building prohibition made pursuant to section 35 of the Building Act (byggnadslagen) 1947 and issued on 26 August 1974.
9. The first building prohibition under the Building Act 1947 was issued by the County Administrative Board (länsstyrelsen – “the Board”) of the Stockholm County as far back as September 1965 and was valid for one year. This prohibition was subsequently prolonged by the Board for one or two years each time. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Planning and Building Act 1987 (Plan- och bygglagen – “the 1987 Act”) replacing the Building Act 1947, the existing system for prohibition on construction was abolished and replaced by a possibility for the Building Committee (byggnadsnämnden) to defer its decision on an application for a building permit, or a preliminary opinion on an application, for a maximum period of two years.
10. Ever since he bought the property in question the applicant has tried in vain to obtain from the competent authorities a permit to divide his plot and/or to build, in addition to the existing house, more houses on it. On 28 July 1975 the Building Committee of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots, referring inter alia to the area plan adopted in 1972 (see paragraph 8 above).
11. On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant’s property was earmarked for blocks of flats of more than two storeys. On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that having regard to the master plan it was not prepared to grant him either an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was invalid. The Board rejected the appeal on 25 April 1980, stating inter alia that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979.
12. On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant’s property is situated should be used for the construction of multi-family housing in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect.
13. On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant’s appeals against this were, as before, unsuccessful.
14. On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant’s property. This plan mentioned the possibility of using the area for single or multi-family housing development.
15. The proceedings and the interference with the applicant’s enjoyment of his possessions referred to above formed the subject matter of the Allan Jacobsson v. Sweden judgment of 25 October 1989 (Series A no. 163). In that case the Court concluded that there had been no violation of Article 1 of Protocol No. 1. On the other hand, it found that there had been a violation of Article 6 § 1 of the Convention in that the applicant did not enjoy a right to a court to enable him to challenge the decisions whereby the building prohibitions on his property were maintained in force.
16. On 9 July 1987, while the above case was pending before the Convention institutions, the applicant requested under the 1987 Act (which had entered into force on 1 July 1987) a preliminary opinion from the Building Committee on whether a permit to build a house on his property could be granted. On 13 October 1987 the Building Committee decided, however, pursuant to the rules laid down in the 1987 Act, to defer its decision on the request for a period of two years (see paragraph 26 below). It informed the applicant that a building permit could not be expected for the time being.
17. On 21 June 1989, before the expiry of the above two-year period the Salem Municipal Assembly revoked the detailed development plan (previously called a subdivision plan) which had been in force since 1938 (see paragraph 8 above).
18. Following this decision the Building Committee confirmed, on 11 September 1990, its preliminary opinion of 13 October 1987 rejecting the applicant’s request for a building permit. In its reasons the Committee referred to the need for a new detailed development plan and to the Municipality’s intention to earmark the land for single or multi-family housing development in accordance with the area plan adopted in 1986 (see paragraph 14 above). The applicant did not appeal against this decision.
19. In the meantime, however, the applicant had lodged an appeal with the Administrative Court of Appeal (kammarrätten) of Stockholm against the Municipal Assembly’s decision of 21 June 1989 revoking the 1938 plan. On 6 July 1989 the Court declined to entertain the appeal on the grounds that, under the 1987 Act, the County Administrative Board was the competent body. Leave to appeal against this decision was refused by the Supreme Administrative Court (regeringsrätten) on 20 September 1989.
20. Subsequently the applicant lodged an appeal with the Board. He observed that under Chapter 8, section 23, of the 1987 Act, a decision (on building permission) could be postponed if work had been initiated to amend, revoke or adopt a plan. However, in the present case, such steps had only been taken nineteen days before the expiration of the two-year period within which the planning measure should be completed (see paragraph 26 below). Moreover, he maintained that the above-mentioned provision had only authorised alternative measures, not a combination of measures which, as here, consisted of a revocation of a plan in order to amend it or adopt a new plan. By proceeding in this manner, the Municipality had circumvented the legal time-limit for consideration of his request for a building permit. The applicant further pointed out that a revocation should comply with, inter alia, Chapter 1, section 5, of the 1987 Act which requires the authorities to take into consideration both private and public interests (see paragraph 26 below). The applicant invited the Board to find that the revocation of the detailed development plan was to be considered as a real revocation, not as a method of prolonging the time-limit for deciding on his application for a building permit. In the alternative, he requested that his application be examined without undue delay.
21. On 7 September 1989 the Board rejected the appeal and upheld the revocation by the Municipal Assembly of the detailed development plan of 1938, giving the following reasons:
“The area is covered by a detailed development plan, approved by the County Administrative Board on 16 September 1938. Pursuant to Chapter 17, section 4, of the 1987 Act the implementation period for the plan is to be considered as having elapsed.
In such circumstances the municipality has a strong position in respect of the right to revoke a detailed development plan, something which has been exemplified by the fact that the revocation may be decided without the rights which derived from the plan being taken into consideration (Chapter 5, section 11, subsection 2, of the 1987 Act). This presupposes that public interests militate in favour of revocation. The existence of such interests has been expressed by the issuing of an area plan for Östra Rönninge.
The review of issues under the 1987 Act must take into consideration both public and individual interests, unless otherwise has been specifically provided. The above provision is an example thereof. The meaning of this provision is that the person who has obtained a right according to the plan cannot rely on it during the examination of whether the plan should be repealed. However, when it comes to examining the contents of a new plan the main rule in Chapter 1, section 5, concerning the individual’s interests must obviously be considered, but even in these circumstances it is not required that the rights under the old plan must be respected. As regards the adoption of a new plan, the 1987 Act does not constitute an obstacle to the adoption being preceded by a revocation of a detailed development plan. The possible result of an examination of a request for a building permit in respect of a new construction on Salem 2[3]:1 following revocation of the detailed development plan cannot be examined in this case. The applicant’s submissions in support of his appeal do not provide a reason for refusing the implementation of the decision appealed against.”
22. The applicant appealed against this decision to the Government, which, on 14 June 1990, rejected it on the grounds that they agreed with the assessment made by the County Administrative Board.
23. In accordance with the provisions of the 1988 Act on Judicial Review of Certain Administrative Decisions (lag 1988:205 om rättsprövning av vissa förvaltningsbeslut – “the 1988 Act”) the applicant challenged the Government’s decision in the Supreme Administrative Court. He also requested the court to examine a request for a building permit and to hold an oral hearing.
The applicant stressed that, according to Chapter 8, section 23, of the 1987 Act, where steps had been taken to draw up, amend or revoke a detailed development plan, the Building Committee could, pending the completion of the planning measure, postpone its decision on a request for a building permit. If the Municipality had not completed the measure within a period of two years, the request should be decided without delay. It followed from this provision that a prolongation of the said period could not be made by means of revocation of the plan. Moreover, the Municipality had not been free to opt for both revocation and either amendment of the plan or adoption of a new plan. In the applicant’s view, whilst the plan in question had been revoked with a view to adoption of a new plan, the measure fell to be considered as an amendment of the plan. Since the amendment had not been effected within the two-year time-limit, the Municipality had not been permitted both to amend and revoke the plan. Revocation of the plan was meaningless as Chapter 5, section 11, did not apply to a detailed development plan the completion of which had not been subjected to any time-limit. Contrary to what the Board and the Government had suggested, Chapter 1, Section 5, should apply in his case. In view of these considerations, the applicant requested that the Government’s decision be quashed and that his application for a building permit be examined without further delay.
24. On 11 November 1990 the Supreme Administrative Court, without holding an oral hearing, rejected the applicant’s complaints against the Government’s decision. The Court held:
“According to section 1 of the [1988 Act] the Supreme Administrative Court must, at the request of a private party in certain administrative matters dealt with by the Government or an administrative authority, examine whether the decision is contrary to any legal rule.
In the present case the examination concerns the Government’s decision of 14 June 1990. In this decision the Government rejected an appeal lodged by [the applicant] against a decision of the County Administrative Board of Stockholm to uphold a decision to revoke [the 1938 detailed development plan] concerning a land area within the Municipality of Salem. This means that the Supreme Administrative Court cannot in the present proceedings examine [the applicant’s] request to be granted a building permit. The Supreme Administrative Court dismisses [avvisar] this request and rejects the request for a public oral hearing.
As regards the question whether the revocation of [the 1938 plan] is contrary to any legal provision, it can be established that the plan, according to Chapter 17, section 4, of the 1987 Act, was to be regarded as a detailed development plan with regard to which the implementation period had elapsed. According to Chapter 5, section 11, of the 1987 Act such a plan may be amended or annulled without regard to the rights which may have accrued during the plan’s existence. The latter provision constitutes an exception to the main rule in Chapter 1, section 5, of the 1987 Act that consideration must be given to both public and private interests when examining issues under the 1987 Act (see Government Bill 1985/86:1 pp. 175 and 464). The facts of the case do not indicate that the revocation of the plan is contrary to Chapter 5, section 11, or Chapter 1, section 5, of the 1987 Act or to any other provision in the law. The decision is upheld.”
25. The Planning and Building Act which entered into force on 1 July 1987 contains provisions about the planning of land and water areas as well as building. Their purpose is to promote a development of society characterised by equal and good living conditions for people today and for future generations, whilst having due regard to the freedom of the individual (Chapter 1, section 1).
26. The provisions of the 1987 Act which have been invoked in the present case read as follows:
“Chapter 1 – Introductory provisions
…
Section 5. When issues are examined in accordance with this Act, consideration shall be given to both public and private interests unless otherwise prescribed.
…
Chapter 5 – Detailed development plans and area regulations
Section 1. The examination of the suitability of a site for development and the regulation of manner of design of the area of construction are to be carried out in accordance with a detailed development plan, which applies to
new continuous developments;
2. new individual buildings, the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites, or where the examination of the proposed building cannot be carried out in connection with the review of the application for a building permit or a provisional opinion.
…
Section 5. The detailed development plan shall contain a time-limit for development. This time-limit shall be fixed in such a way that there is a reasonable chance of the plan’s implementation taking place within at least five and at most fifteen years. ... When the time-limit expires, the plan will continue to be valid until it is amended or annulled.
…
Section 11. Before the expiry of the implementation period a detailed development plan may only be amended or annulled contrary to the wishes of the property owners concerned when this is required as a result of new conditions of great public importance and which could not be foreseen when the plan was drawn up.
When the implementation period has elapsed, the plan may be amended or annulled without regard to the rights which may have accrued during the plan’s existence...
…
Chapter 8 – Building permit, demolition permit and site improvement permit
…
Section 23. If authorisation has been requested for the expropriation of a building or land in respect of which a permit has been sought, or if work has been initiated to adopt, amend or annul a detailed development plan, area regulations or property regulation covering the building or land, the Building Committee may postpone its decision regarding the permit until the expropriation issue has been solved or the planning work has been completed. If the municipality has not completed the planning work within two years from the Building Committee’s receipt of the application of a permit, the application shall be dealt with without further delay.
…
Chapter 17 – Transitional provisions
…
Section 4. Town development plans and rural development plans adopted under the Building Act (1947:385) or the Town Planning Act (1931:142), older types of plans and regulations referred to in sections 79 and 83 of the latter act as well as subdivision plans, which are not covered by a directive issued in accordance with section 168 of the Building Act, shall be regarded as a detailed development plan in accordance with this Act. Subdivision plans, to the extent they are covered by the above-mentioned directives, will cease to be valid with the coming into force of this Act.
With regard to town development plans and rural development plans which have been adopted before the end of 1978, the implementation period will be considered, in accordance with section 5, subsection 5, to be five years from the date of their gaining legal force. For other plans and regulations, referred to in the first subsection, the implementation period will be regarded as having elapsed.
Unless otherwise prescribed in a plan or regulation which, according to the first subsection is to be regarded as a detailed development plan in accordance with this Act, section 39 in the Building Ordinance (1959:612) shall apply as a regulation in the plan.”
27. The Act on Judicial Review of Certain Administrative Decisions 1988 was introduced as a result of the European Court of Human Rights’ findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time.
28. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3, of the Instrument of Government (regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions falling outside its scope, none of which is relevant in the instant case.
29. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision “conflicts with any legal rule” (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp. 23–24), its review of the merits of cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case.
30. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority.
31. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996, section 3(a) of the 1988 Act provided that in matters of judicial review the Supreme Administrative Court should hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-73263
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BEDI v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1959 and lives in Velenje.
6. On 8 September 1994 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 12 February 1996 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,411,312 Slovenian tolars (approximately 10,050 euros) for the injuries sustained.
Between 29 August 1996 and 2 April 2001 the applicant lodged thirteen preliminary written submissions.
On 1 April 1998 she made a request that a date be set for a hearing.
Of the seven hearings held between 18 September 1998 and 27 February 2002, none was adjourned at the request of the applicant.
During the proceedings, the court appointed three different medical experts. The court also sought additional opinions of the appointed experts.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 6 May 2002.
8. On 20 May 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 15 October 2003 the court allowed the applicant’s appeal in part and increased the damages awarded.
The judgment was served on the applicant on 17 December 2003.
9. On 16 January 2004 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 9 June 2005 the court dismissed the applicant’s appeal.
The decision was served on the applicant on 5 July 2005.
10. On 20 July 2005 the applicant lodged a constitutional appeal.
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1