ITEMID: 001-58987
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF BILGIN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 8+P1-1;Violation of Art. 13;No violation of Art. 14 or 18;Failure to comply with obligations under former Art. 25-1 (Art. 34);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka
TEXT: 9. The applicant, Mr İhsan Bilgin, is a Turkish citizen who was born in 1960 and is at present living in Batman (Turkey). At the time of the events giving rise to his application, he was living in Yukarıgören, a hamlet attached to the village of Güzderesi in the Province of Diyarbakır (south-east Turkey). The application concerns the applicant’s allegations that his house and other possessions in Yukarıgören were destroyed by security forces.
10. The facts concerning the destruction of the applicant’s possessions are disputed between the parties.
11. The facts as presented by the applicant are set out in paragraphs 14 to 17 below. In his memorial to the Court, the applicant relied on the facts as established by the Commission in its report adopted on 21 October 1999. The facts as presented by the Government are set out in paragraphs 18 to 20 below.
12. A description of the material submitted to the Commission is found in paragraphs 21 to 26 below. A description of the proceedings before the domestic authorities regarding the destruction of the applicant’s possessions is set out in paragraphs 39 to 61 below.
13. The Commission, in order to establish the facts disputed between the parties, conducted an investigation in accordance with former Article 28 § 1 (a) of the Convention. To this end, the Commission examined documents submitted by both the applicant and the respondent Government in support of their respective assertions and appointed three delegates to take the evidence of witnesses at a hearing conducted in Ankara on 13 and 14 March 1997. The Commission’s evaluation of the evidence and its findings are summarised in paragraphs 66 to 70 below.
14. On 28 September 1993 a large number of gendarmes arrived in Yukarıgören, a hamlet attached to the village of Güzderesi. They were probably looking for Faysal Alpan, who lived there and who was suspected of PKK related activities. The gendarmes ordered him and the other inhabitants of Yukarıgören to remove the harvested tobacco leaves from their houses and to pile them up in front of the houses. The gendarmes then set fire to the tobacco. On that day the gendarmes apprehended 11 or 12 persons in Güzderesi, including the two sons of Hüsnü Eraslan and a son of Mehmet Salih Eraslan, and placed them in detention.
15. Although the applicant had no precise recollection whether this occurred on the same day or two weeks later, the gendarmes further damaged and broke the furnishings, windows and various household goods in his house. The applicant took photographs of the burned mound of tobacco and the damage caused to his possessions in his house.
16. In the late summer or fall of 1994, on a day when the applicant was in Batman, the gendarmes returned to Yukarıgören. The applicant’s family was the only household to have remained in the hamlet, all other inhabitants having moved away in the meantime. After the gendarmes had gathered the applicant’s family and a visiting guest at the water tower in the hamlet, the gendarmes set fire to the houses in the hamlet. The applicant returned to Yukarıgören in the morning of the following day. After the burning of his house, the applicant and his family left Yukarıgören.
17. The burning of the harvested tobacco and the destruction of the applicant’s house and other possessions was conducted by the gendarmes under the orders and responsibility of the Commander of the Çatakköprü gendarmerie station and the Commander of the Silvan District gendarmerie station. The gendarmes of both units were engaged in a series of raids and operations in 1993 and 1994 in both Yukarıgören and Güzderesi culminating in the burning down of Yukarıgören. The purpose of this series of attacks was to force its inhabitants, including the applicant, to leave.
18. The Government stated that at the relevant time there were many PKK activities in the region and the area was regularly patrolled by gendarmes for military, administrative, judicial and civil purposes.
19. According to the military authorities no operation had been conducted in or around Güzderesi at the material time.
20. The Government further stated that, as the applicant had not filed an official complaint with the domestic authorities, a preliminary investigation was opened and conducted once the application had been brought to the notice of the Turkish Government. The case was transferred to the Provincial Administrative Council for a decision whether or not to prosecute those allegedly responsible, i.e. İbrahim Aktürk (Commander of the Silvan District gendarmerie station), Hakan Temel (Commander of a commando unit of the Silvan District gendarmerie station) and Hüdaverdi Tunç (Commander of the Çatakköprü gendarmerie station). In its decision of 4 June 1998, the Provincial Administrative Council found that there was insufficient evidence in support of the allegations made against İbrahim Aktürk, Hakan Temel and Hüdaverdi Tunç.
21. In the proceedings before the Commission, the applicant and the Government submitted a number of statements made by the applicant to the Human Rights Association in Diyarbakır (HRA) and to the domestic authorities.
22. The Government’s submissions included a statement taken from the applicant on 9 August 1995 by a gendarme of the Çatakköprü gendarmerie station. According to this statement, the applicant told this gendarme that on 28-29 September 1993, when he was absent from his home, his house and his possessions in his house had been destroyed by unknown persons and that, around that time, a group of 4-5 persons from the Human Rights Association had come to Güzderesi and had interviewed him. He denied having applied to the HRA and stated that, if any application had been made, it had been made without his knowledge and that he did not wish to pursue it.
23. According to a statement made by the applicant on 21 August 1995 to the HRA, he had been taken by soldiers on 7 August 1995 to the Çatakköprü gendarmerie station, where he was questioned about a complaint that he had filed against the State. The station commander had insisted that some villages had been burned down by the PKK and wanted the applicant to admit that he had received material aid. The applicant maintained that his village had been burned by State forces and denied that the PKK had been involved in any way. He was further made to sign a statement.
24. The applicant further submitted statements made to the HRA by Hüsnü Eraslan, two petitions filed with domestic authorities by Hüsnü Eraslan and Mehmet Salih Eraslan; an undated damage report by the muhtar and Council of Elders of Güzderesi, and fourteen photographs. Three photographs show burned remains of alleged farm produce and eleven show ransacked and damaged interiors of homes.
25. The Government also submitted a statement made by the applicant on 6 November 1995 to the public prosecutor at Silvan, official reports about incidents having taken place in the area, custody records of the Silvan gendarmerie station indicating that on 14 October 1993 twelve persons from Güzderesi had been taken into detention on suspicion of aiding and abetting the PKK, a total of 18 daily duty ledgers of the Çatakköprü gendarmerie station and documents relating to the investigation carried out by the authorities into the allegations, including statements taken from Mehmet Salih Eraslan, Hüsnü Eraslan, Abdulkadir Toptemiş, Mehmet Emin Tanrıkulu, Mehmet Selim Oğurlu, Hüdaverdi Tunç, İbrahim Aktürk and Hakan Temel Aksel.
26. The Commission requested the Government to provide it with all planning agendas, duty ledgers, operation reports and incident reports of the Çatakköprü gendarmerie station from September 1993 to October 1994 in relation to Güzderesi. Apart from the daily duty ledgers for eighteen different dates, one incident report of 30 December 1993 in relation to Güzderesi and two incident reports of 17 November 1992 and 2 March 1994 respectively in relation to the Güzderesi area, the Government did not provide the Commission with the daily duty ledgers of the remaining dates nor with the requested planning agendas and operation reports or with any further incident reports.
27. In an incident report of 17 November 1992 – signed by İbrahim Aktürk – and a joint statement of 18 November 1992 – signed by Hüdaverdi Tunç and three other gendarmes – it is stated that a group of 15-20 PKK terrorists held up 15-20 cars on the Silvan-Batman road on 17 November 1992, set fire to three official cars and robbed several drivers of their money. The body of a man shot dead was found near the scene of the incident.
28. According to an incident report of 30 December 1993 – signed by İbrahim Aktürk – and a scene of incident report of the same date – signed by Hüdaverdi Tunç, four other gendarmes and three civilians – unknown persons had thrown a molotov cocktail in the telephone exchange building in Güzderesi. According to the incident report this act occurred on 29 December 1993 and the perpetrators were apparently members of the PKK or persons harbouring PKK members.
29. In an incident report, dated 2 March 1994, and a scene of incident report of the same date and signed jointly by Hüdaverdi Tunç, his Deputy, two other gendarmes and the two civilian victims, it is recorded that four masked and armed unknown persons had held up a vehicle on the Çatakköprü-Silvan road at the turnoff to Güzderesi and robbed the two passengers of a substantial amount of money they were transporting to a bank and locked them in the boot of the car.
30. It appears from the custody records of the Silvan gendarmerie station that thirty-nine persons were taken into detention on 14 October 1993 on suspicion of aiding and abetting the PKK. Amongst them were twelve persons from Güzderesi, including Mehmet Uğurlu, son of A. Kerim; Mehmet Eraslan, son of Hüsnü; M. Faysal Eraslan, son of Hüsnü; Ercan Eraslan, son of M. Salih; and Mehmet Eraslan, son of A. Kerim.
31. It further appears from a report of the Diyarbakır Provincial Gendarmerie Command of 16 November 1993 signed by inter alia the Provincial Gendarmerie Commander and the Provincial Governor that, apart from M. Faysal Eraslan, all persons from Güzderesi apprehended on 14 October 1993 had been taken into detention on the basis of an arrest warrant of 4 October 1993. M. Faysal Eraslan had been apprehended on the basis of an arrest warrant of 12 October 1993.
32. This report further states that two Kalashnikov rifles, one cartridge clip and 35 bullets had been found on indications provided by Eşref Aykut and Irfan Uğurlu (son of Hasan), who were both from Güzderesi.
33. According to this report, Mehmet and Ercan Eraslan had declared that on 12 August 1993, “with members of the organisation” (“örgüt mensupları ile”), they had taken part in the commission of arson at the Malabadi Dam building site on 12 August 1993, and that M. Faysal, Mehmet and Ercan Eraslan had confessed that on 17 November 1992, “with members of the organisation”, they had taken part in a hold-up at Güzderesi on the Silvan-Batman road, the burning of a vehicle and the killing of a civilian. It further states that Mehmet Faysal Eraslan had confessed to having taken part in the burning of a passenger bus on the road from Silvan to Bahçe and that Faysal, Ercan and Mehmet Eraslan had confessed to having taken part in the commission of arson at the Tekel depot in Silvan and the theft of weapons.
34. According to the eighteen daily duty ledgers of the Çatakköprü gendarme station made available by the Government, the Çatakköprü gendarmerie station Commander Hüdaverdi Tunç, together with eight other gendarmes and one Mechanised Infantry Battalion (“ZPT”) team were, on Monday <number illegible> September 1993, assigned village patrol duty in Güzderesi and three other nearby villages. Their duties were described as the gathering of intelligence and execution of documentation duties.
On Tuesday 28 September 1993, Hüdaverdi Tunç and nine other gendarmes were assigned the duty of searching for suspects and wanted persons in Çığıl (a nearby village to the south of Güzderesi).
On 3 October 1993, nine gendarmes of the Çatakköprü gendarme station and one Commando Team were assigned the duty of conducting house searches in Güzderesi and apprehending wanted persons.
On 13 October 1993, Hüdaverdi Tunç and eight other gendarmes were assigned the duty of conducting house searches and apprehending suspected persons in the Örenköy hamlet of the village Güzderesi.
On Wednesday <date illegible> 1993, Hüdaverdi Tunç and nine other gendarmes and two ZPT teams were assigned the duty of village patrol, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and three other nearby villages.
On Wednesday 13 December 1993, Hüdaverdi Tunç and seven other gendarmes were assigned village patrol duty, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and three other villages.
On both 11 and 12 February 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi, Örenköy and five other nearby villages and hamlets.
On 27 February 1994, Hüdaverdi Tunç and seven other gendarmes were assigned village patrol duty, described as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and three other villages.
On Saturday 12 March 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, describes as the gathering of intelligence, execution of documentation duties and apprehension of wanted persons, in Güzderesi and six other villages.
On 21 March 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi.
On Saturday 26 March 1994, Hüdaverdi Tunç and ten other gendarmes and in co-operation with one <illegible> team were assigned village patrol duty in Güzderesi and seven other villages. The duties assigned are illegible on the copy of the duty ledger submitted.
On Wednesday 6 April 1994, Hüdaverdi Tunç and nine other gendarmes and one ZPT team were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and three other villages.
On Thursday 14 April 1994, Hüdaverdi Tunç and at least six other gendarmes were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and three other villages.
On 22 <month illegible> 1994, Hüdaverdi Tunç and eleven other gendarmes were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and three other villages.
On Monday 25 September 1994, the Çatakköprü gendarmerie station commander Mustafa Kalfa and nine other gendarmes were assigned village patrol duty, described as the gathering of intelligence and apprehension of wanted persons, in Güzderesi and five other villages.
On Saturday 8 October 1994, the Deputy Commander of the Çatakköprü gendarmerie station and ten other gendarmes, accompanied by an unspecified number of District gendarme teams and other gendarme teams, were assigned village patrol duty, described as carrying out village search, confirming received intelligence reports, securing the supply of provisions and apprehension of wanted persons, in Güzderesi.
On 29 December 1994, the Deputy Commander of the Çatakköprü gendarmerie station and at least seven other gendarmes were assigned village patrol duty, described as apprehension of deserters and execution of documentation duties, in Güzderesi and three other villages.
35. In an undated document with the heading “Record” (“Tutanak”), Hüsnü Eraslan and the applicant state that soldiers had raided Güzderesi on 28 September 1993 and had damaged their house. This document specifies that “in my house all the pots and pans, the television set, refrigerator, the doors, the windows, the blankets, the pillows, one water dynamo, one radio cassette player, one stove, one china cabinet, one wardrobe and all my furniture were damaged”. It is further stated that the record was determined by the muhtar and Council of Elders. It is signed by Hüsnü Eraslan and the applicant under the mention “requesting determination”; by Mehmet Avşar, A. Kadir Toptemiş, M. Emin Tanrıkulu and M. Dahil Aykut under the mention “expert”; and by Abdulkerim Uğurlu under the mention of Güzderesi village muhtar. The muhtar’s signature is officially stamped.
36. In an undated petition to the Silvan Magistrate Court, Hüsnü Eraslan stated that on 28 September 1993 soldiers had raided the house of his son Mehmet in Güzderesi in the course of which all his son’s household goods had been destroyed. The petition contains a detailed description of the damage. Hüsnü Eraslan requested a judicial determination of the damage for use in evidence in proceedings that he wished to institute.
37. In a petition dated 1 October 1993, Mehmet Salih Eraslan informed the office of the public prosecutor at the State Security Court in Diyarbakır that his son and ten others had been taken away during a military raid on Güzderesi on 28 September 1993. He requested to be informed whether, and if so where, his son was being detained. In his reply dated 18 October 1993, handwritten at the bottom of this petition, the public prosecutor to the State Security Court stated that, “He has been taken into custody at the Silvan District Gendarme Command Headquarters.”
38. In an article, published on 18 October 1993 in the Özgür Gündem newspaper, it is reported that a delegation consisting of three British Parliamentarians, Lord Avebury, Greg Plummer and John Austin Walker, and three Turkish Parliamentarians, Leyla Zana, Mahmut Kılınç and İsmail Aydın, visited South-east Turkey in order to report on human rights violations and evacuated villages. According to this article, the delegation met with villagers from nine villages and hamlets in Silvan, Diyarbakır, who related that State forces had burned their crops and winter supplies. These villagers, whose identity was not disclosed in the article, further told the delegation that many villagers had been taken into detention and that Hüsnü Eraslan and his sons Mehmet and Faysal Eraslan from Güzderesi had been taken into detention by State forces. The villagers further told the delegation that they lived in villages of the Silvan District and that soldiers had raided their village four days ago. Some of the soldiers had gone into their houses and had smashed up household goods and had mixed up foodstuffs so that these would become unusable. The soldiers had then set fire to the villagers’ tobacco and grain and had demanded that the villagers leave their village.
39. Following the communication of the application to the Government, a preliminary investigation of the applicant’s allegations was conducted by the public prosecutor at Silvan.
40. In a letter of 9 August 1994 from the Silvan Magistrate Court to the Silvan public prosecutor it is denied that a petition had been filed by Hüsnü Eraslan in relation to the burning of a house in Güzderesi.
41. According to a statement taken on 30 August 1994 from Mehmet Salih Eraslan, the Güzderesi muhtar, the alleged operations of 28 September, 13 October and 23 November 1993 by security forces in Güzderesi had not given rise to any complaints by residents of Güzderesi.
42. In a statement signed by the Çatakköprü gendarmerie station commander, two gendarmes and Mehmet Salih Eraslan, it is declared that, upon the request to establish whether the security forces had carried out operations in Güzderesi on 28 September 1993, 13 October 1993 and 23 November 1993, the Çatakköprü station records of routine services had been examined and that according to these records no forces had gone to Güzderesi on 28 September 1993 and 23 November 1993 and that, on 13 October 1993, a village patrol had gone to Güzderesi. The statement does not mention why the gendarme patrol had gone there on that day. Without referring to any particular date or dates the statement further mentions that, according to the records, no operation had been conducted.
43. On 1 September 1994, the Silvan public prosecutor took a statement from Mehmet Salih Eraslan, who declared that the applicant had left Yukarıgören about 3-4 months previously and that, on 28 September 1993, soldiers had conducted a search in Güzderesi in the course of which twelve persons – including his son Ercan – had been taken into detention and that charges of aiding and abetting the PKK had been brought against them. He further stated that, in the course of this search, the soldiers had damaged some of his property in his house, but denied that they had burned houses or belongings. Although he could not remember the exact dates, he stated that one or two further searches had been carried out in Güzderesi on later dates. He denied that any damage had been inflicted by the soldiers to the villagers’ houses or belongings during the subsequent searches.
44. On 2 September 1994, the Silvan public prosecutor took a statement from Hüsnü Eraslan, who confirmed the account of Mehmet Salih Eraslan. He told the public prosecutor that, during the search of his house conducted on 28 September 1993, soldiers had damaged his belongings and that he wished to file a complaint against them. He further confirmed that there had been subsequent searches and that the searches of Güzderesi included Yukarıgören. He denied that the soldiers had burned any houses during these searches.
45. According to a statement taken by the Silvan public prosecutor from Abdulkadir Toptemiş on 9 September 1994, the latter told the prosecutor that in September 1993 gendarmes had taken 14-15 persons from Güzderesi, including Mehmet Salih Eraslan’s son Ercan, in detention and that they had destroyed the household goods of those taken into detention. After the gendarmes’ departure from the village, he had noticed that some windows and wardrobes had been damaged. He denied that the soldiers had burned any household goods. He explained that the applicant did not live in Güzderesi but in Yukarıgören. He denied that the signature under his name on the undated “record” (see § 35 above) was his.
46. On 23 September 1994 the public prosecutor at Silvan took a statement from the applicant. According to this statement the applicant told the public prosecutor that, about one year previously, gendarmes had come to Yukarıgören asking the villagers to show them terrorists’ shelters. When the villagers denied knowledge of such shelters, the soldiers became angry and burned about 20 [metric] tonnes of tobacco belonging to the villagers. The applicant further told the prosecutor that on 28 September 1993, as stated in an undated report that was put to him, soldiers had destroyed his household goods. According to the applicant, the soldiers had returned to Yukarıgören on several occasions and on one of those occasions – on a day when he was not in Yukarıgören – the soldiers had burned his house. After his house had been burned, he and his family had moved to Batman. The applicant further told the public prosecutor that out of fear for the soldiers he had not filed any complaint to any authority and that, insofar as he knew, no one had done so out of fear for the soldiers.
47. On 17 October 1994 the Silvan public prosecutor took a statement from Mehmet Emin Tanrıkulu, who declared that he lived in Güzderesi. He denied having signed a report about the burning of household goods belonging to Hüsnü Eraslan and the applicant by soldiers on 28 September 1993. He had not been in the village on that day. Upon his return to the village, he had seen that belongings and the applicant’s house had been burned. The applicant had told him that soldiers had done the burning. The soldiers had carried out two more ambushes in the village. He had been in the village on those occasions. During one of these ambushes, the soldiers apprehended 11-12 persons, including his daughter Necla. The soldiers had then damaged his household goods by hitting them with hard objects. The second time, the soldiers had taken out and burned three tonnes of his tobacco. The soldiers had damaged property of those persons who had been apprehended. There had been a Major amongst the soldiers. He had not filed a complaint of this matter and had moved to Mersin as a result of these incidents. He did not wish to file any charges or complaints.
48. By letter of 3 November 1994, the Ministry of the Interior informed the Ministry of Foreign Affairs that the allegations made by the applicant before the Commission had been investigated and that, contrary to his assertions, no operation had taken place in Güzderesi or Yukarıgören on 28 September 1993.
49. In the context of the preliminary investigation of the applicant’s complaint to the Commission, the Silvan public prosecutor visited Yukarıgören in person. The report on this visit of 16 December 1994, insofar as relevant, reads:
“… Mehmet Salih Eraslan, Muhtar of Güzderesi, was directly appointed as the indicating witness of the location. … The witness was asked to indicate the house belonging to the complainant İhsan Bilgin. The indicated house was seen. It was observed that the single floor house was of mud brick with a concrete flat roof. Roof columns, window and door frames were absent. The roof and walls were covered with soot indicating fire. Walls separating rooms were partially demolished without traces of bullets either in or outside the house. The house in its present state was observed to be uninhabitable. The hamlet consists of 7-8 houses. It is understood that the hamlet is totally uninhabited. The complainant’s house did not contain any belongings…”
50. By letter of 28 December 1994, the General Gendarmerie Command of the Ministry of the Interior informed the Ministry of Foreign Affairs that the applicant’s complaints to the Commission had been investigated. An examination of the records had revealed that no operation by security forces had been carried out on 28 September 1993. It was concluded that the applicant’s claims were unfounded and that the applicant had not made any application to the security forces.
51. On 9 August 1995, the Çatakköprü gendarme station Commander, who had replaced Hüdaverdi Tunç in the meantime, took a statement from Mehmet Selim Oğurlu, a former Güzderesi resident. Mehmet Selim Oğurlu stated that in September or October 1993, early in the morning, the applicant’s house had been burned by unknown persons. After having woken up, he had gone to the applicant’s house that had still been burning. The applicant had been unable to take any of his belongings from his house and they were totally burned together with the house. The applicant had not received any financial aid from the State for his losses. Insofar as he knew, the applicant was in no way involved with illegal organisations. He and other villagers suspected the terrorists of the arson attack on the applicant’s house.
52. Also on 9 August 1995 a statement was taken from the applicant at the Çatakköprü gendarmerie station (see § 22 above).
53. On 25 October 1995, after several unsuccessful attempts to locate his new place of duty, a statement was taken by the Hanönü public prosecutor from Hüdaverdi Tunç, the commanding officer of the Çatakköprü gendarme station at the material time. Mr Tunç declared that the gendarmes used to carry out joint operations with the Silvan Station Command and that they had gone to Güzderesi several times. In the autumn of 1993, terrorist incidents had been at their peak and gendarmes continually went on operations. The gendarme forces used to search villages on the basis of gathered intelligence. Such searches were perceived as ambushes by villagers. He did not remember the applicant. He had gone to the applicant’s village several times but could not recall exact dates. He confirmed that the gendarmes had been searching for a person named Faysal Alpan, who was wanted for PKK membership, and that they had searched houses in the village. During searches, gendarmes would also verify the identities of other persons. They had apprehended 12 persons, including the Muhtar’s son, who had been handed over to the prosecution authorities. After the search he and his men had returned to their base. It was not true that the gendarmes had assembled the villagers in the village square, had ill-treated them, had burned their tobacco or damaged their possessions. He denied that he or soldiers under his command had burned the applicant’s village. He did not know whether or not it had been burned and if it had, the PKK must have done it. As stated by the village muhtar Abdulkerim Uğurlu, he had attended both village searches.
54. The Silvan public prosecutor took a further statement from the applicant on 6 November 1995. According to this statement, the applicant provided the public prosecutor with information about his financial situation. He further stated that, some days after the burning of his house, a van with seven or eight persons arrived in Yukarıgören who questioned him about the incident. He had thought that they were journalists and informed them of the incident. His application had been written by them and he had signed it. After this, he had gone to the <Human Rights> Association in Diyarbakır from time to time.
55. On 15 November 1995, the Silvan public prosecutor, issued a decision of lack of jurisdiction. The decision named the applicant and Hüsnü Eraslan as the complainants, Mehmet Salih Eraslan and Mehmet Emin Tanrıkulu as injured parties and Abdulkadir Toptemiş and Abdulkerim Uğurlu as witnesses. The defendants named were İbrahim Aktürk, Hakan Temel Aksel and Hüdaverdi Tunç. The offences were described as arson, damage to property, intimidation and ill-treatment committed on 28 September 1993, 13 October 1993 and 23 November 1993.
The decision noted that the applicant had filed an application with the European Commission of Human Rights via representatives and that the applicant claimed that on 28 September 1993 armed forces had carried out a raid on Yukarıgören and had destroyed the complainants’ household goods. It further stated that the applicant had extended his allegations by adding that his house and tobacco stock had also been burned by the security forces. It was further found established that Hüsnü Eraslan had also filed a complaint about the destruction of his household goods and burning of his tobacco by the security forces.
The decision noted that Abdulkadir Toptemiş had confirmed the incident in part, that Mehmet Emin Tanrıkulu claimed that his household goods had also been destroyed by the military and his tobacco burned, and that Mehmet Salih Eraslan had also claimed that his belongings had been destroyed by the military. The then muhtar of Güzderesi, Abdulkerim Uğurlu, had confirmed the incidents in part but had also stated that the incidents stemmed from the fact that certain illiterate persons in the hamlet had been supporting the PKK.
Since the alleged offences had been committed in the course of the defendants’ exercise of duties, the public prosecutor decided, pursuant to Article 2 of the Act on Proceedings for the Prosecution of Public Servants, to transfer the case to the Silvan District Administrative Council.
56. On 4 December 1995, the Silvan public prosecutor took two further statements from Abdulkadir Toptemiş, who maintained his previous statement (see § 45 above). He stated, inter alia, that after the incident in the village, persons from the Human Rights Association had arrived in a jeep. They had taken pictures and statements from villagers. He had not been in the village at that time. He had heard about it later. The applicant had moved some of his household goods to Batman prior to the military operation in the village. The applicant had become frightened after his brother Mehmet Şah Bilgin had been apprehended. The applicant had only kept basic essentials for his daily needs. He did not remember whether the applicant had been in the village or in Batman during the incident.
57. On 14 November 1996 the commanding officer of the Silvan District gendarme station between 1992 and 1994, İbrahim Aktürk, gave a statement to the Adıyaman public prosecutor. He stated that in the period 1992-1994 there had been terrorist incidents in the Silvan region and that various operations had been carried out. He had no clear recollection of an operation carried out in Güzderesi. He doubted the veracity of the applicant’s allegations.
58. On 23 March 1998, Hakan Temel Aksel, the Commander of a commando unit of the Silvan Gendarmerie at the relevant time, gave a statement to a superior gendarmerie officer. Insofar as he remembered, the inhabitants of Güzderesi supported the PKK. The village fell within the jurisdiction of Çatakköprü gendarme station. Güzderesi was used by PKK frontliners and held an important position in supplying food, personnel and money to the PKK. The PKK used it as a meeting point, particularly for the robberies that had taken place between Silvan and Çatakköprü. At the end of 1993 or the beginning of 1994, a female PKK commander in the area between Bismil and Silvan had given herself up to the security forces. On the basis of information provided by her, a number of PKK activists and fighters had been captured by the gendarme forces. Among these PKK supporters were a large number of Güzderesi residents. He denied that the gendarme forces or he himself, as Commander of a commando team, had ill-treated persons or had damaged any property. In his view, the applicant’s complaint had been arranged by PKK activists in order to denigrate the gendarme forces’ work and to take revenge.
59. In its decision of 4 June 1998, the Diyarbakır Provincial Administrative Council – to which the case had been referred by order of the Provincial Governor of 11 March 1997 – found that there was insufficient evidence in support of the allegations made against the defendants İbrahim Aktürk, Hakan Temel Aksel and Hüdaverdi Tunç about offences allegedly committed on 28 September, 13 October and 23 November 1993 and that, therefore, the case did not warrant the institution of criminal proceedings.
60. On instructions dated 23 November 1998 issued by the Silvan public prosecutor, an inspection team went to Yukarıgören. This team consisted of a gendarme of the Silvan District Gendarme Command, an official of the District Finance Office, an official of the Municipal Real Property Division, an official of the District Agricultural Office and two inhabitants of the village of Dutveren. Their joint report dated 24 November 1998 states, inter alia, that the surface of the applicant’s collapsed house was 100 square metres, that it was in ruins, that it had not been burned or destroyed by the use of force but that the cause of the collapse was neglect and natural forces, that the applicant’s barn measured 150 square metres and, like the house, had collapsed as a result of neglect and natural forces, and that the applicant’s sheepfold measured 30 square metres and was in the same condition as the barn.
61. The facts of the case being in dispute between the parties, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements and oral evidence taken on 13 and 14 March 1997 by three Delegates of the Commission from seven witnesses: the applicant; Hüsnü Eraslan; Mahmut Soner; Mehmet Emin Tanrıkulu; Hüdaverdi Tunç; Mustafa Düzgün, public prosecutor at Silvan from 1993-1995; and Bülent Elver, senior public prosecutor at Silvan from 1993-1995.
A further five witnesses had been summoned but did not appear: the villagers Abdulkadir Toptemiş and Abdulkerim Uğurlu had died, two other villagers were said to be too scared to give evidence and one villager could not attend for reasons of ill-health.
62. In his testimony to the Commission’s Delegates, the applicant stated that, although he could not read, he was able to recognise his signature. Although he was unable to give any precise indication of the dates of the alleged events, he maintained that, in the end of the summer of 1993, soldiers had burned his tobacco and household goods and that, about one year later, soldiers had burned his house. He further stated that he had gone to the HRA to complain and that he wished to pursue his application to the Commission. The Commission’s Delegates found the applicant a modest, simple and sincere man, whose world appeared to be mainly confined to his agricultural activities, his wife and children, and the need to provide for them. Despite his stout appearance, he struck the Delegates as a vulnerable man deeply affected by the loss of his house and material possessions, which was all he was concerned about in his life as this had secured his family’s livelihood. Although his testimony was confused and lacked precision as to particular dates, times and number of incidents, the general tenure of his account was found to be sincere, convincing and supported by the evidence given by other villagers both in the domestic investigation and before the Delegates.
63. The general tenure of the applicant’s account was confirmed by the testimonies of the villager witnesses Hüsnü Eraslan, Mehmet Emin Tanrıkulu and Mahmut Soner. The Commission’s Delegates found Hüsnü Eraslan and Mehmet Emin Tanrıkulu to be credible witnesses, but considered that Mahmut Soner’s evidence was to be treated with caution.
64. Hüdaverdi Tunç confirmed that the gendarmes under his command had gone to Güzderesi regularly on village patrol duty, i.e. to carry out routine duties of a military, civil and judicial nature. Such duties would be recorded in the gendarmerie station’s duty ledgers. In gendarme terminology an “operation” might consist of a substantial number of gendarmes, possibly from more than one gendarmerie station, going to a village for a search, the gathering of intelligence and apprehending suspects.
He recalled that gendarmes had conducted a search in Güzderesi in the autumn of 1993 and that they had apprehended twelve persons there, but denied that on that occasion gendarmes had burned tobacco of villagers or had damaged household goods. He had never heard of allegations of widespread destruction of villages in the region and no such thing had happened during his term of office there. He had heard about the allegations against him in relation with the burning of Güzderesi for the first time on 25 October 1995, when he gave his statement to the public prosecutor.
The Commission’s Delegates found his evidence on general issues credible, but considered that his evidence on specific events was to be assessed with caution. They were further not convinced by his unconditional denial that gendarmes had ever caused any damage, even when conducting house searches.
65. The Silvan public prosecutors Bülent Elver and Mustafa Düzgün gave evidence in relation to their investigation of the applicant’s allegations, which respective accounts the Commission’s Delegates considered credible. The Delegates were, however, not convinced by their evidence that they had never, or only once, been confronted with allegations that security forces had damaged private property.
66. In relation to the oral evidence, the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates.
In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problem of language adverted to above, there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. The Commission’s findings may be summarised as follows.
67. Between September 1993 and December 1994, gendarme forces regularly patrolled Güzderesi and its hamlets. On 3 and 13 October 1993 and on 8 October 1994, more important gendarme operations took place in Güzderesi and/or Yukarıgören. Although – apart from the gendarme operation carried out on 13 October 1993 – the documents submitted in relation to activities by the gendarmes of the Çatakköprü station did not explicitly mention Yukarıgören, the Commission considered it likely, on the basis of the testimony given by the witnesses, that when an important gendarme operation took place in the main village of Güzderesi involving gendarmes from other stations than Çatakköprü, such an operation also embraced the Yukarıgören hamlet attached to Güzderesi.
68. The Commission accepted that the inconsistencies in the evidence submitted as to the date or dates on which the belongings of the applicant and other villagers had allegedly been damaged by security forces could be explained by the regularity of gendarme village patrols and more important operations during the relevant period and by witnesses’ problems in recalling events having taken place a number of years ago. Noting the Delegates’ impressions of the witnesses heard, it did not find that this materially undermined the credibility and reliability of the applicant and the other villager witnesses.
69. On the basis of the evidence submitted, the Commission found it established that on 13 October 1993 gendarme forces from Çatakköprü and Silvan had apprehended a number of persons from Güzderesi and Yukarıgören and that, on or around that date, gendarme forces from Çatakköprü and Silvan had damaged the fittings, furniture and household goods in the applicant’s home, including a refrigerator, television, cassette player, washing machine, kitchenware, stove, household goods, furniture, bedding, curtains, doors and windows. It further accepted that on or around 13 October 1993, and in any event in the fall of 1993, the applicant’s tobacco produce had been burned by gendarmes.
70. In the light of the evidence before it, the Commission further found no grounds for doubting the veracity of the evidence given that on or around 8 October 1994, and in any event in the autumn of 1994, gendarme forces from Çatakköprü and Silvan were responsible for the deliberate burning of the applicant’s house, thus forcing him and his family to leave Yukarıgören.
71. On 15 May 2000, the Government submitted a number of further documents not submitted previously. These included various judgments of Turkish administrative courts in unrelated cases in which compensation was granted to individuals for damage incurred as a result of acts of terrorism. The other judicial decisions submitted were convictions by Turkish criminal courts in unrelated cases of soldiers and police officers for manslaughter, torture and assault. The further submission also contained the daily duty ledger of the Çatakköprü gendarmerie station for Monday <date and month illegible> 1993; five reports of the Çatakköprü gendarmerie station and further reports of the Silvan gendarmerie station reporting five incidents having taken place in the area on 26 September 1993, 6 February 1994, 5 and 16 March 1994 and 27 April 1994 respectively; a letter dated 9 August 1994 by the Silvan Magistrate Court to the Silvan public prosecutor concerning the applicant’s whereabouts, and a letter of 7 September 1994 from the Silvan Provincial Gendarmerie to the Silvan public prosecutor stating that the applicant had moved to Batman three months earlier and that his new address could not be established.
72. In their memorial, the Government also mentioned statements taken by the authorities from Abdulkerim Oğurlu (8 November 1994), İhsan Oğurlu (9 August 1995), Mehmet Şirin Eraslan (30 November 1995) and the applicant (4 December 1995). These statements have, however, not been submitted to either the Commission or the Court.
73. The Court refers to the overview of domestic law derived from previous submissions in other cases, in particular the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 28-43, the Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, §§ 36-51; the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, §§ 33-45; and the Gündem v. Turkey judgment of 25 May 1998, Reports 1998-III, §§ 32-45.
74. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has claimed the lives of thousands of civilians and members of the security forces.
75. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor.
76. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
77. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:
“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.”
78. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
79. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
80. The Turkish Criminal Code makes it a criminal offence:
– to oblige an individual through force or threats to commit or not to commit an act (Article 188);
– to issue threats (Article 191);
- to make an unlawful search of an individual’s home (Articles 193 and 194)
– to subject an individual to torture or ill-treatment (Articles 243 in respect of torture, and Article 245 in respect of ill-treatment, inflicted by civil servants); and
– to damage another’s property intentionally (Articles 526 et seq.).
81. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. 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 to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
82. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. In these circumstances proceedings may be initiated by the (non-military) persons concerned before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (Articles 93 and 95 of Law 353 on the Constitution and the Procedure of Military Courts).
83. If, at the relevant time, the alleged author of a crime is a State official or civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.
84. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
85. 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.
86. The public prosecutor is also deprived of jurisdiction with regard to offences allegedly committed by members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 50 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. The Law of 1914 has been replaced by another law in the meantime. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
VIOLATED_ARTICLES: 13
3
8
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-95054
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SOLOMATIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1979 and lives in the city of Kyiv, Ukraine.
5. The applicant is a former military serviceman. In October 2001 he was transferred to the reserve.
6. On an unspecified date the applicant instituted proceedings in the Tsentralno-Gorodskoy District Court of Gorlovka (“the court”) against the Tsentralno-Gorodskoy District Military Enlistment Office of Gorlovka (“the enlistment office”) claiming payment of a single-payment allowance due to him, compensation for non-pecuniary damage and 51 Ukrainian hryvnias (UAH) in compensation for the court fees.
7. While the proceedings were still pending, the enlistment office paid the allowance. Therefore, the applicant withdrew his claims regarding payment of the allowance and compensation for non-pecuniary damage.
8. On 24 April 2003 the court awarded the applicant UAH 51 in compensation for the court fees, to be paid by the enlistment office. The judgment was not appealed against and became final.
9. On an unspecified date the Tsentralno-Gorodskoy District Bailiffs' Service of Gorlovka (“the Bailiffs' Service”) initiated enforcement proceedings in respect of that judgment.
10. On 15 July 2003 the Bailiffs' Service suspended enforcement proceedings since the court had not indicated the debtor's account in the enforcement writ.
11. Later the enlistment office was closed down. The latter's debts were transferred to its successor, the Gorlovsky City Enlistment Office. On 4 May 2006 the court granted the applicant's request and changed the debtor in the enforcement proceedings. The applicant re-lodged the enforcement writ with the Bailiffs' Service.
12. The judgment remains unenforced.
13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-86678
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PANUSZ v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1967 and lives in Katowice.
5. On 28 June 2000 the applicant was arrested on suspicion of murder.
6. On 30 June 2000 the Tychy District Court (Sąd Rejonowy) ordered his detention on remand.
7. The applicant’s detention was subsequently extended on 28 September, 18 December 2000 and on 26 March 2001.
8. On 8 June 2001 the bill of indictment was lodged.
9. On 25 June 2001 the Katowice Regional Court (Sąd Okręgowy) extended the applicant’s detention until 15 January 2002. The court relied on a strong suspicion that he had committed the offence in question, which was supported by evidence. It attached importance to the grave nature of the offence and the likelihood of a severe sentence of imprisonment being imposed on him. In addition, keeping him in custody was necessary to ensure the proper conduct of the proceedings. Lastly, the court stressed that there were 3 coaccused and 26 witnesses involved in the proceedings.
10. On 16 November 2001 the trial court held the first hearing. It subsequently held 7 hearings in the case.
11. On 7 January 2002 the Katowice Regional Court extended the applicant’s detention until 15 May 2002. The court repeated the reasons given previously. Upon an appeal by the applicant, the Katowice Court of Appeal (Sąd Apelacyjny) upheld that decision on 6 February 2002.
12. On 6 May 2002 the Regional Court again extended the applicant’s detention. The court stressed that he was likely to receive a particularly severe sentence.
13. On 23 May 2002 the Katowice Regional Court convicted the applicant as charged and sentenced him to 15 years’ imprisonment. On 10 July 2002 the applicant’s lawyer lodged an appeal. He was kept in detention pending appeal for the 10 subsequent months.
14. On 6 March 2003 the Court of Appeal upheld the first-instance judgment.
15. On 18 June 2003 the applicant’s lawyer filed a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy).
16. On 24 May 2004 the applicant informed the Registry that his cassation appeal had been rejected by the Supreme Court.
17. At the time of lodging his application with the Court the applicant was detained in the course of criminal proceedings against him.
18. On 1 February 2002 the Registry of the Court received a letter from the applicant dated 28 January 2002. The envelope bears a stamp “censored on...” (ocenzurowano dn....) and an illegible signature.
19. On 28 May 2002 the Registry of the Court received the application form from the applicant (dated 16 May 2002). It was delivered in an envelope bearing a stamp “censored on...” (ocenzurowano dn....). It also bears an illegible signature and a handwritten date, 20 May 2002.
20. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
21. The relevant domestic law concerning the means of monitoring the correspondence of persons involved in criminal proceedings applicable at the material time is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 5


ITEMID: 001-99974
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BAUER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger
TEXT: The applicant, Mr Heinz-Peter Bauer, is a German national who was born in 1953 and lives in Herzlake. He is represented before the Court by Mr M. Kleine-Cosack, a lawyer practising in Freiburg. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The applicant had been practising as a lawyer since 1982 and as a notary since 1986.
On 14 May 2001 the President of the Oldenburg Court of Appeal (Oberlandesgericht) opened formal disciplinary proceedings against him on suspicion of official misconduct involving a large number of failures to honour his notarial duties between January 1997 and April 1999.
Consequently, on 3 July 2001 the President of the Oldenburg Court of Appeal provisionally removed the applicant from the office of notary. Given the nature and seriousness of the alleged misconduct, the President considered that there was a risk that the interests of individuals in need of legal advice would be adversely affected if the applicant continued to pursue his notarial activities. On 6 August 2001 the applicant challenged that decision before the Celle Court of Appeal. On 1 November 2001 that court confirmed his provisional removal from office. On 18 March 2002 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal against this decision.
Between 12 September 2001 and 20 November 2002 the President of the Oldenburg Court of Appeal heard twenty-five witnesses. On 20 November 2002 the applicant was informed that the taking of evidence was terminated and granted a four-weeks' time-limit to submit comments, which was later extended on the applicant's request until 20 January 2003. On 3 February 2003 the report on the preliminary investigations was finalised.
On 18 March 2003 the President of the Oldenburg Court of Appeal finalised the charges and accused the applicant of two hundred thirty four violations of his professional duties, inter alia, of falsely certifying contracts, of creating an appearance of partiality and dependence in certifying a great number of contracts and of assisting in activities with clearly dishonest aims.
On 19 May 2003 the applicant suggested that the disciplinary proceedings be suspended pending criminal investigations.
On 22 May 2003 the President of the Oldenburg Court of Appeal requested the court to decline to suspend the proceedings.
On 24 June 2003 the Celle Court of Appeal stayed the disciplinary proceedings in accordance with Article 17 § 2 of the Lower Saxony Disciplinary Code (see “Relevant domestic law” below) with respect to the then ongoing criminal proceedings concerning the same facts.
In criminal proceedings, on 12 December 2003, the prosecution filed the bill of indictment with the Lübeck District Court (Amtsgericht).
On 11 April 2005 the President of the Oldenburg Court of Appeal requested the Celle Court of Appeal to resume the disciplinary proceedings, arguing that the applicant's ongoing provisional removal from office since 3 July 2001 could infringe the principle of proportionality.
On 12 May 2005 the applicant requested the Celle Court of Appeal to annul its decision regarding his provisional removal from office. He further requested the court not to resume the suspended proceedings.
On 19 May 2005 the Celle Court of Appeal rejected the President's request to resume the proceedings.
On 6 June 2005 the Celle Court of Appeal found for the applicant. It held that, in view of the length of the proceedings (three years and eleven months so far) and the unlikelihood that permanent removal from office would be imposed as a disciplinary penalty, the ongoing provisional removal from office was disproportionate.
On 8 August 2005 the Lübeck District Court convicted the applicant of two counts of abetment to fraud and imposed a fine of 25 euros (EUR) per day for 220 days, taking into account as a mitigating factor that the applicant had lost his office as a notary and hence his source of income.
The applicant continued to practise as a notary until 20 March 2006 when the Federal Court of Justice quashed the Court of Appeal's decision of 6 June 2005. The Federal Court of Justice found that the disciplinary proceedings had not been protracted. The fact that the proceedings came to a standstill on 24 June 2003 had been the result of the Court of Appeal's obligation under Article 17 § 2 of the Lower Saxony Disciplinary Code to suspend the disciplinary proceedings while the criminal proceedings were pending. Even taking into account the considerable duration of the still pending criminal proceedings, the Court of Appeal's refusal to resume the suspended disciplinary proceedings did not yet overstep that court's margin of appreciation. The duration of the proceedings, which had been pending for more than four years and eight months, did not justify as such the conclusion that the continuation of the provisional removal was disproportionate. Given the gravity of his alleged misconduct and the great number of accusations, the applicant's conduct had severely endangered the sound administration of justice. The applicant, who had admitted the facts, continued to maintain that his behaviour had been compatible with his notarial duties. Therefore, it could not be ruled out that he would continue to breach his duties if he was allowed to pursue his official functions as a notary. Finally, the court considered that it was very likely that the disciplinary proceedings would end with the applicant's permanent removal from office.
By way of a separate decision, also issued on 20 March 2006, the Federal Court of Justice rejected the President of the Court of Appeal's complaint against the refusal to resume the disciplinary proceedings as inadmissible. The court considered, however, that the length of the proceedings obliged the Court of Appeal to observe special diligence. It considered that the disciplinary proceedings had to be resumed without awaiting the outcome of the criminal proceedings if the latter proceedings on the applicant's appeal were not terminated by the end of May 2006.
On 22 May 2006 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint against the Federal Court of Justice's decision on his provisional removal from office as there had been no appearance of a violation of the applicant's fundamental rights.
On 30 June 2006 the Celle Court of Appeal ordered the continuation of the disciplinary proceedings.
On 9 July 2007 following a hearing, the Celle Court of Appeal decided to permanently remove the applicant from office as he had been found guilty of misconduct, partly through negligence and partly intentional, which involved numerous failures to comply with his professional obligations between January 1997 and January 2000.
The reasoned judgment with a volume of 153 pages was submitted to the court's registry on 26 July 2007.
On 25 September 2007 the Lübeck Regional Court (Landgericht), in the criminal proceedings, upon the applicant's appeal, modified the criminal sentence imposed by the Lübeck District Court, and issued a formal admonishment (Verwarnung) to the applicant while reserving its right to impose a fine. The court considered as mitigating factors that the delays in the criminal proceedings – even taking into account the thorough examination of the facts and the necessity to hear extensive evidence in the first instance proceedings – fell within the judiciary's responsibility.
On 16 September 2008 the applicant, in order to avoid losing his license to practice as a lawyer, filed a request that he be permanently removed from notary office; the request was granted on 31 December 2008.
Therefore, on 23 March 2009 the Federal Court of Justice discontinued the proceedings in accordance with Articles 64, 76 and 85 of the Federal Disciplinary Code as in force at the material time (see “Relevant domestic law” below).
Section 96 of the Federal Notaries Act in conjunction with Article 17 § 2 of the Lower Saxony Disciplinary Code provides that if criminal proceedings are brought against a notary, disciplinary proceedings instituted on account of the same facts shall be suspended until such time as the criminal proceedings have been concluded. The factual finding of a final judgment in criminal proceedings is binding on the disciplinary panel (Article 18 § 2).
Section 96 of the Federal Notaries Act in conjunction with Article 91 of the Lower Saxony Disciplinary Code provides that the authority which institutes disciplinary proceedings against a notary can provisionally remove the latter from office as soon as formal disciplinary proceedings are opened.
According to section 108 of the Federal Notaries Act in conjunction with Articles 64, 76 and 85 of the Federal Disciplinary Code, as in force at the material time, the Federal Court of Justice discontinues the disciplinary proceedings if the notary has resigned or has been dismissed.


ITEMID: 001-85957
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BLUMBERG v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Mr Klaus Blumberg, is a German national who was born in 1947 and lives in Kelheim. He was represented before the Court by Mr L. Paproth, a lawyer practising in Munich.
Since 1995 the applicant, a doctor, had been employed as an expert by the medical service of the Bavarian health insurance which provides medical expert reports to health insurance companies (Medizinischer Dienst der Krankenversicherung in Bayern).
On 17 March 1999 the applicant’s employer ordered him to conduct a medical examination of an apprentice with a view to her being employed by a client health insurance company. On 18 and 19 March 1999 the applicant contested this instruction as he feared a “possible bias” which could lead to difficulties if he had to work with the apprentice in the future. He did not specify exactly what those difficulties might be.
Following this refusal and two warnings (Abmahnungen) concerning the applicant’s failure to follow other instructions from his employer, he was dismissed on 25 March 1999.
Subsequently, he lodged an action with the Munich Labour Court to have his dismissal annulled. He argued that a “moral dilemma” had prevented him from carrying out the requested examination.
On 27 October 1999 the Munich Labour Court found for the applicant. It argued that, although he had not provided an objective or clear reasoning, the applicant had proved that he had experienced a subjective moral dilemma which could justify his refusal to carry out the examination.
On 20 April 2001 the Munich Labour Court of Appeal quashed that decision and dismissed the applicant’s action, arguing that the applicant could not rely on his freedom of conscience for the following reasons: Firstly, when he had refused to carry out the examination on 18/19 March 1999, the applicant had not mentioned a moral dilemma, but referred only to a fear of “bias”. Moreover, the applicant could not rely on a moral dilemma, as he had at one point – even if only for a short period – been prepared to carry out the requested examination, which proved that he had not felt bound by an unconditional, compelling decision of conscience (unbedingt verpflichtende Gewissensentscheidung). Secondly, even assuming that his decision had been based on conscience, it had been impossible for the applicant’s employer, on the basis of the applicant’s reasoning, to appreciate that he had been experiencing a moral dilemma. In particular, the applicant had overlooked the fact that no conflict of interest would have arisen regardless of whether the applicant had recommended the apprentice for employment or not: he would only have had to work with the apprentice if he had recommended her. If he had decided in her favour, no question of conflict would have arisen. If the applicant had not recommended her, any future conflict would have been excluded because he would not have had to work with her.
On 19 March 2002 the Federal Labour Court refused the applicant leave to appeal on points of law as the Labour Court of Appeal’s decision had not diverged from the case-law of the Federal Labour Court.
On 23 October 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, and confirmed that the Labour Court of Appeal’s reasoning had not violated his freedom of conscience.


ITEMID: 001-4568
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ROSS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicant is a British citizen, born in 1919 and resident in Milton Keynes, England. He is represented before the Court by Helen Arabanos, a lawyer practising in London.
A.
On 31 December 1990, the applicant’s wife, Barbara Ross, was hit by a speeding car as she was crossing a road in Glyfada, Athens and died. An autopsy was carried out on her body at a hospital immediately after the accident. The police did not carry out any blood tests on the driver to ensure that he was not under the influence of alcohol or any other illegal substance.
Criminal proceedings were instituted against the driver before the Three-member First Instance Criminal Court (trimeles plimmeliodikio) of Athens. The applicant did not join the proceedings as civil party. On 13 May 1993 the court found the defendant guilty of reckless or negligent manslaughter and sentenced him to a term of seven months imprisonment or to the paying of a fine of 1,500 drachmas for every day of the sentence. The defendant duly served the sentence.
On 8 November 1994, the applicant together with his two sons and the victim’s brother instituted civil proceedings against the driver for compensation before the Single-member First Instance Civil Court (monomeles protodikio) of Athens. The driver’s insurance company represented the driver in court. On 18 September 1995 the court decided that the death of Barbara Ross was entirely due to her own fault since she was not careful enough when crossing the road. The court did not award any compensation.
The applicant together with his two sons and the victim’s brother appealed on 22 January 1996. On 26 June 1997 the Court of Appeal (efetio) of Athens overturned the decision of the first instance court. The Court of Appeal decided that the victim was 70% responsible for her death and that the driver was 30% responsible. Compensation was awarded accordingly. The applicant received 950,000 drachmas, the two sons received 400,000 drachmas each and the victim’s brother received 200,000 drachmas.
B. Relevant domestic law
Section 105 of the Law introducing the Civil Code lays down that:
“The state shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”