ITEMID: 001-59482
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF AKDENIZ AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 with State's liability for death of eleven missing persons;Violation of Art. 2 with regard to failure to conduct an effective investigation;Violation of Art. 3 with regard to the missing persons;No violation of Art. 3 with regard to the applicants;Violation of Art. 5-1;Violation of Art. 13;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: András Baka
TEXT: 7. The facts of the case, particularly concerning events during October 1993 when security forces conducted an operation in the Alaca village area in south-east Turkey, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.
8. The Commission Delegates (Mrs J. Liddy, Mr M. P. Pellonpää and Mr P. Lorenzen) heard witnesses in Ankara from 30 September to 4 October 1997 and on 4 and 9 May 1998. These included the nine applicants; Zekiye Demir, mother of the disappeared Turan Demir; Abdurrahim Yerlikaya, brother of the disappeared Nusreddin Yerlikaya; Selahattin Tutuş, brother of the disappeared Behçet Tutuş; Mehmet İlbey, a villager who witnessed events; Ulvi Kartal, Panak gendarme station commander; Ali Ergülmez, Kulp district gendarme commander; Kenan Sağlam, Bingöl public prosecutor; Bekir Selçuk, chief public prosecutor at the Diyarbakır State Security Court; Lüfti Baran, Vehbi Başer and Hakkı Zümrüt, villagers called by the Government; General Yavuz Ertürk, commander of the Bolu forces during the operation; Pembe Akdeniz, wife of the disappeared Mehmet Sali Akdeniz and Vesha Avar, the mother and sister-in-law of the disappeared Mehmet Şerif Avar and Hasan Avar.
9. The Commission’s findings of fact are set out in its report of 27 October 1999 and summarised below (Section A). The applicants accept the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).
10. The applicants are close relatives of eleven persons who went missing in October 1993.
Mehmet Emin Akdeniz is the brother of Mehmet Salih Akdeniz and the uncle of Celil Aydoğdu.
Sabri Tutuş is the son of Behçet Tutuş.
Sabri Avar is the father of Mehmet Şerif Avar and the brother of Hasan Avar.
Keleş Şimşek is the brother of Bahri Şimşek.
Seyithan Atala is the brother of Mehmet Şah Atala.
Aydın Demir is the brother of Turan Demir.
Süleyman Yamuk is the brother of Abdo Yamuk.
Ramazan Yerlikaya is the brother of Nusreddin Yerlikaya.
Kemal Taş is the father of Ümit Taş.
The eleven men disappeared at the time the security forces were carrying out a massive operation around the Alaca village in the region between Kulp-Muş-Lice.
11. Alaca village may be described as an area of dispersed hamlets and houses spread over mountainous terrain, which for administrative purposes was regarded as being in the Kulp district. Its hamlets included Gurnik (where Zekiye Demir, Aydın Demir and Turan Demir lived), Mezire (where Sabri Avar, his brother Hasan Avar and son Mehmet Şerif Avar, Bahri Şimşek and Mehmet Şah Atala were said to live), Pireş (where Abdo Yamuk lived), Kepir and Şuşan. Nearby but in the Muş district was Kayalısu village, including Licik hamlet (where Ramazan Yerlikaya and Abdurrahim Yerlikaya stated that they lived with their brother Nusreddin; Sabri Tutuş also said he lived there with his father Behçet Tutuş; Selahattin Tutuş lived there).
12. Alaca village was not far from the Şen plateau (Şenyayla), where some people led a nomadic style of life and where there were fruit and walnut trees (Mehmet İlbey stated that he lived there and Mehmet Salih Akdeniz was stated to have pastures there, living a nomadic life with other members of his family). The nearest gendarme station was at Panak, which was on the Kulp-Muş road. Many of the applicants and members of their families were also living in either Muş or Kulp, the two nearest large towns. Some distance to the south of Alaca was Inkaya of which Mehmet Salih Akdeniz was the muhtar.
13. In 1993, terrorist activity was a major concern in this area. There were several PKK bases in the vicinity of Alaca. Ulvi Kartal, the commander of Panak station, stated that his station had been attacked several times. The Kulp district gendarme commander Captain Ali Ergülmez stated that there was intensive terrorist activity in the Kulp area. General Yavuz Ertürk of the Bolu brigade described the area as being the backbone of the PKK activities, and explained that his forces were involved in many operations there. An undated final operation report (Commission report, paragraphs 243-245) described the Şenyayla plateau as the largest training area for the PKK. According to this report, it had fortified defences and enjoyed the support of 90% of the hamlets and villages in the region, the villagers from which supplied the PKK with shelter and food. Villagers also used to go into the towns to buy food for the terrorists.
14. By October 1993, many people from in and around Alaca village had left or were about to leave either due to the difficulty of life in the remote mountainous area or due to the security situation. The Commission rejected the evidence of the gendarme witnesses that the area had already been abandoned. The weight of the evidence showed that a significant number of families were still living there, while other villagers from this area continued to move to and from the mountains to the town seasonally. Some, like Mehmet Salih Akdeniz and Pembe Akdeniz, were nomadic herders.
15. From 8 October 1993, the Bolu brigade assisted by gendarmerie forces conducted a massive military operation. On the evidence of the commanding officer, General Yavuz Ertürk, this involved 2,500 soldiers and helicopters. Its purpose was to converge soldiers from bases in the Kulp and Muş districts on the Şenyayla area to apprehend terrorists and locate their bases, stores and weapons dumps. The operation lasted until 24-25 October 1993. The Government and the applicants were at variance however as to the events which occurred concerning the villagers during the operation.
16. The Commission noted that the conflict lay between the Government’s assertion, supported by the security force witnesses, that the missing persons had been kidnapped by the PKK dressed as soldiers and that the families in introducing the applications were acting as the pawns of the PKK, motivated by fear or a desire to obtain financial gain; and the assertion of the applicants and their families that their relatives had been detained by soldiers during the operation and last seen being taken away by helicopter. The credibility and reliability of the witnesses was the crucial issue.
17. The Commission, relying on its Delegates, found the applicants and the members of their family and the villager Mehmet İlbey were honest and convincing in the way they gave their evidence. Some were confused about details, in particular about dates, which was not unexpected due to the lapse of time. Some of the women witnesses and Sabri Avar were simple, unsophisticated individuals who were answering sincerely to the best of their ability. The Commission commented that all the applicants showed deep and abiding distress at the uncertainty which they had suffered after the disappearance of their relatives, several making appeals that they might at last be told the fate of their family members. Their evidence was strongly consistent with supporting documentary material, including petitions made by the families shortly after the events and the reliability of this considerable weight of evidence was confirmed as more witnesses were heard. In significant aspects, it was also substantiated by the villager witnesses brought forward by the Government.
18. Conversely, the Commission Delegates received a negative impression from the gendarme witnesses, Ulvi Kartal and Ali Ergülmez. Their evidence, which included the denials that there was any operation in the area at the time, was shown to be unreliable when the General Yavuz Ertürk informed the Delegates that there was such an operation and indicated that both would have been aware. While General Ertürk impressed as a forceful and competent witness, his evidence was given under circumstances which diminished its weight, as the Government refused to allow the applicant’s representatives to be present when he gave evidence to the Delegates. He showed reluctance to address the factual concerns of the Commission, avoiding precise answers. It found doubts arose as to the reliability of his evidence on the treatment of the villagers, the use of helicopters and the claim that no soldiers went into the villages or hamlets in the Alaca area. It examined the alleged points of inconsistency in the applicants’ versions of events put forward by the Government. It found that some differences in detail were explicable by the lapse of time and that they were not of such a nature as to undermine the applicants or the witnesses’ credibility. Their accounts were essentially consistent, credible and reliable.
19. On that basis, the Commission found as follows.
20. Soon after the operation started, the soldiers began collecting villagers together, for use as guides to show them the location of settlements and PKK shelters and stores, for questioning about involvement with the PKK and for possible transfer to detention elsewhere.
21. Villagers were first taken into custody on or near the Şen plateau on 9 October, the soldiers arriving at Gurnik, Mezire and Licik on about 10 October. Some villagers were looked for by name. Others were gathered generally for an identity check. The soldiers set up a camp at Kepir, a hill close to the hamlet of Gurnik, where helicopters landed, inter alia, to bring in supplies. There were other camps set up, one or two near Kayalisu and Licik and another near the Muş district boundary, where villagers were held for some days.
22. At the commencement of the operation, villagers who were living up on the Şenyayla plateau witnessed planes carrying out bombardment. Mehmet Salih Akdeniz was taken by soldiers, apparently to act as guide. About a day or two later, Mehmet Salih was being held by soldiers at the camp which had been set up at Kepir.
23. On or about 10 October 1993, Celil Aydoğdu was apprehended by the soldiers. It was unclear exactly where this occurred between Gurnik and the Şen plateau. However, he was seen by a number of persons being held shortly afterwards under guard in Kepir.
24. On or about 10 October 1993, soldiers arrived at the hamlet of Mezire, about an hour from Gurnik. Vesha Avar saw them take her brother-in-law Hasan Avar out of his house. On the same day, Mehmet Şah Atala was also picked up by the soldiers at Mezire, who had been asking for him by name. The soldiers told his family that Mehmet Şah would show them around and make a statement. Abdo Yamuk, Süleyman Atala, Bahri Şimşek and Şirin Avar were also picked up at Mezire.
25. Ali Yerlikaya was apprehended at the beginning of the operation at Licik being taken to Pireş, half an hour away, where he was joined by Mehmet Şah Atala, Bahri Şimşek and Ümit Taş. The next day, on or about 10 October 1993, Ali Yerlikaya accompanied the soldiers who took Nusreddin Yerlikaya, Abdurrahim Yerlikaya and Medeni Yerlikaya from their homes at Licik, Kayalısu and brought them back to Pireş. The same day Hasan Avar and Abdo Yamuk were brought by soldiers to Pireş, where a group of 20 to 30 people were being held. They were kept overnight at a place variously described as being at the cemetery, or near Pireş or Şuşan hamlet. They were questioned and tied up during the night. The next morning, on 11 October, a helicopter landed and a person arrived with his face covered. Some of the villagers thought to have recognised this man when the wind blew his scarf aside. His identity was not established however. A selection process was carried out, with identity cards being handed in and inspected. All the villagers but nine were allowed to go. Mehmet Şah Atala, Abdo Yamuk, Bahri Şimşek, Hasan Avar, the three Yerlikaya brothers, Ali Yerlikaya and a young man, a stranger to the village said to be called Ümit Taş, were placed on a helicopter and flown to Kepir that day.
26. Behçet Tutuş and Selahattin Tutuş were apprehended by the soldiers in Gurnik on their way to their village Licik from Muş, shortly after the operation started. Turan Demir and Mehmet Şerif Avar were with them, having come back from Muş on the same minibus. The date when they were detained was unclear. However, on an assessment of the varying accounts, the Commission found that the group of Turan Demir, Behçet Tutuş, Mehmet Şerif Avar and Selahattin Tutuş were brought to Kepir before the group from the cemetery at Pireş, on or before 11 October.
27. Shortly after the operation began, Ramazan Yerlikaya was detained with others near their village of Kayalısu. These villagers were held on a plateau area near the village for nine days. During that time, checks were made on the radio as to whether any of them were wanted. During this time, they were tied up. On about 19 October, he and a relative were taken by helicopter to Muş where he was held in a basement with over a hundred other people, including Süleyman Yamuk, who were villagers from Kayalısu and other places in Muş. He was released after about eight days.
28. At a time unspecified after the operation began, Sabri Tutuş and several of his male relatives were at their home in Licik when the soldiers took them. They were held by soldiers for about nine days in a wood near Licik before being released.
29. On or about 13 or 14 October, Süleyman Yamuk was detained by soldiers in or near Pireş. He was taken the same day to Muş by helicopter where he was detained for six to seven days. Mehmet İlbey was also apprehended with several others when he arrived in Gurnik on 13 October. They were taken up to Kepir and their ID cards collected. A man with his face covered seemed to inspect them. By this date, the eleven men who were later to go missing, were being held at Kepir.
30. Ümit Taş, who was sixteen-seventeen years old, was not from the Alaca village. He is known to have been detained by the police when he arrived in Kulp on or about 25 September. His brother Mehmet Tahir arrived in Kulp, paying visits to him. According to the official documents provided, in particular a release statement of 30 September 1993 apparently bearing Ümit Taş’s thumbprint, he ceased to be in police custody at that date. According to the evidence of his father, the applicant Kemal Taş, Mehmet Tahir arrived to visit him but was told by the police that he had been released. When Ümit did not arrive home however, Mehmet Tahir and then the applicant went back to Kulp to discover what had happened to him.
31. The applicant alleges that in making enquiries he was told that his son had been handed over to the forces from Bolu who were on an operation. He also heard from nomads that his son had been seen tied up outside the Panak station and that from there he had been taken to Gurnik. When he visited Gurnik, people there told him that they had seen his son with the other detainees held at Kepir.
32. The evidence before the Delegates concerning Ümit Taş showed that he was not known by any of the applicants and witnesses. Several witnesses referred to seeing a person, not from the village, being detained with the other ten. Others only knew of the name Ümit Taş when his father came looking for him after events. Abdurrahim Yerlikaya gave eye-witness evidence that he saw Ümit Taş, detained with them overnight at Pireş and taken with them to Kepir. However, he did not talk to the young man himself. He stated that Mehmet Şah Atala and Abdo Yamuk who were with the young man, told him that his name was Ümit Taş.
33. The Commission observed that there were difficulties in the evidence concerning the identification of Ümit Taş, in particular the differing ages estimated by the persons who saw him. However this could be accounted for, inter alia, by the fact that ill-treatment or living rough over a period of time could change a person’s appearance dramatically. In light of the firm identification of Abdurrahim Yerlikaya, supported by the evidence of Keleş Şimşek who had heard from his brother Bahri that Ümit Taş was in the group of eleven and the written statement of 25 December 1993 by Ali Yerlikaya naming Ümit Taş as a young boy caught in Kulp who had been held with him, the Commission was satisfied that these elements were sufficiently coherent and consistent to establish beyond reasonable doubt that he was the eleventh detainee.
34. At Kepir, the villagers were held in different groups, to which different restrictions applied. Eleven of them (the persons who later disappeared) were kept in one group. They were tied up, though they were untied for visits, or when they ate or relieved themselves. Four witnesses (Pembe Akdeniz, Vesha Avar, Selahattin Tutuş, Mehmet İlbey) however stated that Mehmet Salih Akdeniz, though of this group, was not tied up. Other detainees – Selahattin Tutuş, Mehmet İlbey – were held in a group of about 30-50 villagers, who were not tied up. They were kept in the camp during the day and sent to houses in Gurnik to spend the night. Abdurrahim Yerlikaya and Ali Yerlikaya, who were tied up, were held with or near the group of eleven.
35. As concerning the way in which the eleven men were treated at Kepir, the Commission found that:
– the eleven persons, save Mehmet Salih Akdeniz, were tied up (Vesha Avar described that her relatives’ toes were swollen as a result);
– they were kept outside during the day and at night (Mehmet Şah Atala was seen to be flushed, shaking, his lips chapped and to be affected by the cold);
– they were questioned by the soldiers;
– they were in a state of some distress and apprehension (Turan Demir was described as hungry, thirsty and miserable; Mehmet Salih Akdeniz told others that he was in a terrible state and feared that they were going to be killed; Mehmet İlbey’s evidence referred to the detainees being in a miserable state, having gone hungry and been tied up for a week);
– Behçet Tutuş and Nusreddin Yerlikaya were taken from the group by helicopter apparently to act as guides or show locations;
– Abdo Yamuk was taken away from the group for a day or two and on his return was seen to be limping and needing the support of soldiers to walk;
– Ümit Taş was also taken away to Şen pastures to act as a guide;
– money (20 million TRL) was taken from Behçet Tutuş by the soldiers;
36. There was insufficient evidence to establish that the eleven men were subject to torture under interrogation. There was some evidence of beating of the detainees (Selahattin Tutuş witnessed his brother Behçet being beaten), but the nature and extent of the beating was not apparent.
37. By a date about 16-17 October, all the detainees at Kepir, save eleven, had been released. Descriptions were given of a selection process where names were called out and those persons released. Some of the remaining detainees were seen being placed in helicopters. The Commission observed that the timing of this event is problematic, the evidence of the principal witnesses being vague or confused on this point. The weight of the evidence placed the last sighting of the remaining eleven detainees at about 17-19 October but this can only be regarded as approximate.
38. The eye-witness evidence as to whom was seen being taken away was also not clear. Zekiye Demir referred to seeing Turan and his friends being put on the helicopter but that it was too far to see. Vesha Avar referred to ten persons. She did not know Ümit Taş and if he was there she was not in a position to identify him. She stated specifically that she could see Hasan and Mehmet Şerif Avar being put on the helicopter. The Commission noted that the applicants and the other witnesses appeared to associate the placing of detainees on the helicopter with their missing relatives largely because some were identified by the women and also on the basis that these eleven persons were the only detainees remaining at Kepir after the others such as Abdurrahim Yerlikaya and Mehmet İlbey were released. They had also been held together as a distinct group and were no longer there after the operation ended. While this provided strong circumstantial evidence, the Commission was not satisfied that it could be established, to the necessary standard of proof, that the eleven missing persons were all placed on the helicopters, in particular Ümit Taş, though it was satisfied that at least some of the eleven detainees were. There was no evidence that any of these persons were seen after the operation ended on or about 24-25 October. The Commission found that when they were last seen they were detained under guard by security forces.
39. The applicants approached numerous authorities in the region, sometimes alone or in small and varying groups, seeking to find out what had happened to the eleven missing men from Kepir.
i. Mehmet Emin Akdeniz wrote a petition to the State Security Prosecutor on 1 and 8 November 1993. He went to the Bingöl public prosecutor on 18 January 1994, who spoke on the phone with a major. In Diyarbakır, he contacted Mehmet Gören a friend of the regiment commander. He also went to Ankara where, on 23 November 1993, he saw the Prime Minister and the Minister for Human Rights. He contacted the Minister of the Interior and on 27 November went back to see the Minister for Human Rights. He went to see the deputy regional governor with seven others. He went to Kayseri, submitting a petition to the prosecutor and enquiring at the prison.
ii. Sabri Avar went to the police in Diyarbakır, accompanied others to see the Kulp district governor and petitioned the Muş public prosecutor.
iii. Selahattin Tutuş went to the Kulp public prosecutor who sent him to Diyarbakır. He visited the Provincial Governor’s office. Sabri Tutuş went to see the Kulp District Governor with Süleyman Yamuk and Sabri Avar and to enquire at the Kulp gendarmerie. He also went to see the Diyarbakır provincial governor and public prosecutor.
iv. Seyithan Atala went first to the Diyarbakır State Security Court and returned repeatedly with petitions. He checked the prisons regularly. He saw the Emergency Area Assistant Governor and went with Mehmet Emin Akdeniz and Aydin Demir to the provincial gendarme headquarters, where they talked to a lieutenant colonel. On 27 December 1993, he went with Süleyman Yamuk and Sabri Avar to Kulp, where they saw the public prosecutor, the governor Kadir Koçdemır and then the Kulp gendarme commander. In light of what the governor said about the involvement of the Bolu forces, he went to Bolu with Süleyman Yamuk in an attempt to see General Yavuz Ertürk.
v. Keleş Şimşek approached the authorities in Diyarbakır.
vi. Aydın Demir went to the Diyarbakır gendarmerie and to the Governor.
vii. Kemal Taş went to the district governor, public prosecutor, police and gendarmes in Kulp, the commando unit, police and public prosecutor in Elazıg, and various authorities (including prisons) in Bingöl, Muş, Erzurum and Erzincan where a woman prosecutor suggested he try Diyarbakır. He submitted three or four petitions to the Diyarbakır public prosecutor.
viii. Süleyman Yamuk went to the public prosecutor in Bingöl, the Diyarbakır State Security Court, the District Governor in Kulp (with Seyithan Atala, Sabri Avar and Kemal Taş) and to Bolu with Seyithan Atala. He submitted two petitions to the Ministry of Justice.
ix. Ramazan Yerlikaya visited the Governor’s office in Diyarbakır and the State Security Court. On 27 December 1993, he went to the Governor’s office in Kulp with Seyithan Atala, Süleyman Yamuk and Sabri Tutuş and also to the authorities in Muş and Diyarbakır.
40. As far as may be deduced from the documents, the official steps taken by the authorities were as follows:
41. In respect of the petition of 5 October 1993 by Mehmet Ali Taş concerning Ümit Taş, the public prosecutor made enquiries from the Kulp district gendarme command and to the Security Directorate, the latter of which indicated that Ümit Taş had been released from their custody.
42. In respect of petitions of 2 November 1993 by Seyithan Atala (concerning Mehmet Şah Atala), 5 and 8 November 1993 by Mehmet Emin Akdeniz (concerning Mehmet Salih Akdeniz and Celil Aydoğdu), 26 November 1993 by Hüsnü Demir (concerning Turan Demir) and 12 December 1993 by Keleş Şimşek (concerning Bahri Şimşek) to the Diyarbakır State Security Court (“SSC”) prosecution, manuscript notes indicated that the records had been checked and the names not discovered. Aziz Atala’s petition of 17 December 1993 (concerning Mehmet Şah Atala) and Hüsnü Demir’s of the same date (concerning Turan Demir) met the same response verbally.
43. In respect of a petition of 12 November 1993 by Mehmet Emin Akdeniz concerning his father to the Bingöl chief public prosecutor, a hand-written note indicated that the public prosecutor had checked with the gendarmes and police but no record of the name was found.
44. In respect of a petition of 14 December 1993 by Mehmet Emin Akdeniz and Aziz Atala, which mentioned all eleven missing persons, to the Kayseri State Security Court prosecutor, a manuscript note indicated that the public prosecutor made an enquiry of the Kayseri prison authorities.
45. Following Mehmet Emin Akdeniz’s visit to Ankara where he complained to various ministers in or about November 1993, an enquiry was made by the Minister of State to the Ministry of the Interior, to which, on 20 January 1994, the gendarme general command replied that Mehmet Salih Akdeniz and Celil Aydoğdu had not been detained by the provincial gendarme command.
46. Following a petition of 15 December 1993 by Kemal Taş to the Kulp public prosecutor, which requested an investigation be carried out into Ümit Taş’s whereabouts, the public prosecutor took a statement of the same date and a note on the petition indicates that enquiries were made of the district gendarmerie and Security Directorate.
47. Following a petition of 22 December 1993 from Süleyman Yamuk, the Kulp district governor replied on 18 April 1994 that Abdo Yamuk, Turan Demir, Behcet Tutuş, Bahri Şimşek and Mehmet Şah Atala had not been detained by Kulp security forces and referred to not having any information as the operation had concluded in the Muş province.
48. In or about December 1993-January 1994, the Diyarbakır SSC public prosecutor made a request to the Kulp public prosecutor for information relevant to the complaints about the disappearance.
49. On the petitions submitted by Sabri Tutuş and Süleyman Yamük on 27 December 1993 which both refer to their relatives and mention that 10 other people were missing, it appears from the noted number 1993/130 prel. that the Kulp public prosecutor opened an investigation. Ramazan Yerlikaya, Sabri Avar and Seyithan Atala made petitions at the same time. The following steps then ensued:
– On 28 December 1993, the Kulp public prosecutor requested the Diyarbakır chief public prosecutor to provide information about the relatives of seven of the applicants’ missing relatives (namely, the relatives of the five applicants who have submitted petitions on 27 December and Ümit Taş);
– The Diyarbakır SSC prosecutor replied on 19 January 1994 that the seven persons’ names were not in the records.
50. On 31 January 1994, the Kulp public prosecutor issued a decision of withdrawal of duty in respect of the seven missing relatives, referring the case to the Diyarbakır SSC on the basis that they had been kidnapped by the PKK. The grounds for this conclusion were not apparent. The petitions in the file at this point, and the statement of Kemal Taş, referred to the missing persons having disappeared while in the custody of the security forces. No step had been taken by the Kulp public prosecutor beyond enquiring whether their names had been registered as detained by the Kulp gendarmerie and police or appeared in the Diyarbakır SSC records.
51. From 31 January 1994, the investigation was transferred to the Diyarbakır SSC prosecutor. The following steps were taken under investigation no. 1994/940:
– On 15 February 1994, the SSC Chief Prosecutor instructed the Kulp public prosecutor, Kulp district gendarme command, Diyarbakır Security Directorate and Diyarbakır provincial gendarme command to report on any information, documents or confession etc relevant to the investigation every three months;
– The petitions dated 9 March 1994 from Hüsnü Demir, which referred to Turan Demir and 10 other missing persons and from Seyithan Atala, which referred to Mehmet Şah Atala and 10 other missing persons was added to the file.
– Enquiries were made to the local gendarme station at Panak. A report dated 10 March 1994 was issued by gendarme sergeant Ulvi Kartal referring to the disappearance of seven persons and stating that he had no information and that the search was ongoing. In his testimony to the Delegates, Ulvi Kartal stated that since the area was not inhabited he had not needed to make any enquiries in order to answer the petition. The petition however was counter-signed by Vehbi Başer, the muhtar of the village, who before the Delegates had confirmed that there was an operation in the village following which eleven persons had disappeared.
– On 10 March 1994, the Diyarbakır provincial gendarme command requested an investigation into the alleged disappearance of eleven named persons and for a report to be made urgently. The letter referred to complaints having been made to the European Commission of Human Rights. The Diyarbakır SSC prosecutor replied on 17 March 1994 that the men had not been detained.
– On 18 April 1994, a request was made by the Ministry of Justice (General Directorate of International Law and Foreign Relations) to the Kulp prosecutor for an investigation to be made into allegations that eleven named persons had disappeared. In response, the Kulp prosecutor sent back on 11 May 1994 a request for information from the Diyarbakır SSC as to whether the men had been detained under their jurisdiction and sent another brief enquiry to the Kulp gendarme district command which received the same brief reply that the men had not been detained (25 May 1994). By letter dated 6 June 1994, the Kulp prosecutor stated an investigation file had been opened no. 1994/50 concerning the missing persons, though only 5 names were mentioned.
– On 12 August 1994, the Diyarbakır Chief Prosecutor requested, on prompting from Ankara, that the Kulp public prosecutor take statements from Mehmet Emin Akdeniz and Kemal Taş, as well as any other witnesses. This request seemed to lead to further action by the Kulp public prosecutor: a request on 18 August yet again for information as to whether the men had been detained to be provided by the Kulp district gendarme command, as well as a similar letter to the Security Directorate and widening the enquiry this time to the Kulp district mechanised infantry battalion.
– On 22 August 1994, the Diyarbakir SSC prosecution took statements from Aydın Demir, Aziz Atala and Sabri Tutuş, which all maintained that the security forces were responsible for the disappearance of their relatives. Aziz Atala named the Bolu forces.
– On 25(8) August 1994, the Kulp Security Directorate provided information about Ümit Taş’s detention in September 1993.
– On 28 October 1994, a statement was taken from Mehmet Emin Akdeniz by a Diyarbakır public prosecutor. He referred to Pembe and Zekiye Akdeniz as having seen the eleven missing persons being taken away. He also mentioned the Bolu forces.
– On 4 November 1994, the Kulp public prosecutor sent a reminder to the Kulp gendarme division command for information to be provided.
– On 9 November 1994, the Kulp district gendarme command enclosed a further investigation report dated 1 November 1994 from the Panak commander Ulvi Kartal which stated that an investigation had been carried out into the possibility of a kidnapping but no information had been obtained. However, as stated above, Ulvi Kartal informed the Delegates that he in fact took no steps to investigate.
– On 12 December 1994, a statement was taken from Kemal Taş by the Kulp public prosecutor. He, inter alia, named a shepherd from Yakut called Çesim as having given information that his son had been seen with the soldiers in the operation at Alaca.
– On 19 December 1994, a statement was taken from Mehmet Tahir Taş by a public prosecutor, which referred to his brother having been held by Kulp gendarme commandos and then in Alaca.
– On a date unspecified a statement was taken from Zeki Akdeniz by the same public prosecutor that took the statements of Kemal Taş and Mehmet Tahir Taş (above). This statement refers to a possibility that the PKK kidnapped the missing persons though also said that the people went missing after an operation.
– On 27 December 1994, the Kulp public prosecutor asked the Kulp gendarmes for Pembe and Zekiye Akdeniz to be brought to make a statement. A reminder was sent on 23 February 1995.
– On 3 July 1995, the Kulp public prosecutor asked for the gendarmes to make enquiries about Çesim, a villager from Yakut.
– On 3 August 1995, the Diyarbakır public prosecutor requested the Kulp public prosecutor to summon Mehmet Emin Akdeniz, Kemal Taş and Ramazan Yerlikaya for their statements to be taken. A request was made the same day to the security directorate for Sabri Tutuş, Aydın Demir and Seyithan Atala to be brought. On 11 August 1995, Muş public prosecutor was making similar requests in respect of Sabri Avar and Süleyman Yamuk.
– On 11 September 1995, the Diyarbakır Security Directorate provided information about certain of the applicants, and referred to the fact that Süleyman Atala and Hüsnü Demir had been brought in to make statements.
– On 19 September 1995, the statement of Sabri Tutuş was taken, which referred to the military operation which he had witnessed in the village.
– On 26 September 1995, the statement of Kemal Taş was taken by the Diyarbakır SSC Chief Prosecutor.
– Following further requests for Mehmet Emin Akdeniz to be brought (20 September 1995), the Diyarbakır public prosecutor was informed the same day of information provided by the Kulp gendarmes on 18 August as regarded his address. A statement was then taken from him on 3 October 1995. It referred to the women as being eye-witnesses.
– On 23 October 1995, the Kulp public prosecutor instructed that Pembe Akdeniz, Zekiye Akdeniz and the shepherd Çesim be brought. At about the time, he was also making enquiries about Vehbi Başer the current muhtar of Alaca. He requested that Diyarbakır prosecution return the investigation file to enable him to pursue matters. The file was provided on 4 December 1995.
– On 11 December 1995, the Kulp prosecutor made requests for Hüsnü Demir, Çesim, Misbah Akdeniz, Medine Akdeniz, Pembe Akdeniz and Zekiye Akdeniz to be brought. Further reminders were sent for Hüsnü Demir on 5 August 1996 and for the latter two witnesses on 16 April 1996.
– On a date in April 1996, a statement was taken from Çesim Boskurt, who denied having witnessed any events. On 29 May 1996, a statement was taken from Pembe Akdeniz in which she confirmed witnessing her husband being detained by soldiers during an operation. By a report of that date, it was indicated that Zekiye Akdeniz had died.
– A statement was taken on 9 August 1996 from Mizbah Akdeniz which gave no substantial information.
– On 8 April 1997, a second statement was taken from Mizbah Akdeniz, which this time referred to the operation and the Bolu forces taking his father as a guide. On 25 April a statement was taken from Aydın Demir.
52. On 29 April 1997, the Diyarbakir SSC Chief Prosecutor issued a decision of withdrawal of jurisdiction, in which it concluded that there was an absence of evidence that the PKK kidnapped the missing persons, named the security forces as the defendants and noted that the complaints involved an alleged disappearance in custody. The file was accordingly sent back to the Kulp public prosecutor, who on 20 June 1997 joined it to the ongoing file at Kulp. The only step taken by the Kulp public prosecutor according to the documents provided to the Commission was on 8 September 1997 to request the Kulp police and gendarme authorities to provide information as to any developments and whether the missing persons had been found missing or dead.
53. The Commission observed that a number of reports were made to the authorities in Ankara on the progress of the investigations. On 30 June and 24 August 1995, Bekir Selçuk, Diyarbakır SSC Chief Prosecutor reported to the Ministry of Justice, that the missing persons had probably been kidnapped by the PKK and that no concrete evidence had been obtained. The second letter claimed also that the applicants had denied that they were eye-witnesses and failed to give the names of the women who were alleged to have witnessed events and that there was no evidence that an operation took place in Alaca or that people were detained. These two letters ignored the fact that Zeki Akdeniz stated that he saw an operation take place, that the statements of Sabri Tutuş, Aziz Atala and Aydın Demir gave details of an operation in the village and that in his statement of 28 October 1994 Mehmet Emin Akdeniz had named Pembe and Zekiye Akdeniz as eye-witnesses.
54. The letter of 31 December 1994 from the General Gendarmerie Headquarters to the Ministry of Foreign Affairs denied that any operation had occurred at Alaca village area on 9 October 1993 and omitted to refer to the operation conducted on the nearby Şen plateau by the Bolu forces.
55. The authorities took steps to contact all the applicants concerning their applications, and did question all of them save Seyithan Atala.
In October 1995, Mehmet Emin Akdeniz was summoned by the State Security Court (SSC) Chief Public Prosecutor, being held in custody for two nights beforehand by the police. He described how the prosecutor claimed that it was other people bringing the application rather than himself and how the prosecutor was angry when he maintained that he had applied to Europe after applications in Turkey had proved futile.
In June 1997, Sabri Avar was summoned by the Muş public prosecutor who asked if he had complained against the State and why he had applied to the Human Rights.
In or about 1996, Keleş Şimşek was summoned by the public prosecutor in Mersin, who asked him why he had applied to European Human Rights Commission.
In August 1994, Seyithan Atala’s brother Aziz was summoned during his absence on military service and his statement taken by the Diyarbakir public prosecutor, who referred to documents from the Ministry of Justice and enclosed petitions.
On 19 September 1995, Sabri Tutuş was questioned by the SSC Chief Prosecutor. He recalled that he was questioned about what had happened in the village. Though he did not remember being questioned about his application, he was asked to confirm his signature on his statement to the Human Rights Association (“HRA”) which was part of his application. He had also given a statement to the Diyarbakır public prosecutor on 22 August 1994.
On 25 April 1997, Aydın Demir was held overnight by the police and, after the documents relevant to his application were read out, questioned by the SSC Chief Public Prosecutor about whether he had applied to the HRA and to Europe.
Kemal Taş made a statement to the Chief Public Prosecutor on 26 September 1996, from which it appears that he was asked about his statement to the HRA and whether he had signed a power of attorney for the lawyers representing him in this application.
In or about 1996, Süleyman Yamuk was summoned by the Tarsus public prosecutor, who said that he had complained against the State and to whom he explained why he had made a petition to Europe.
Ramazan Yerlikaya also recalled being summoned by a prosecutor who claimed that he had complained against the State, in or about 1998.
56. In the statements recorded as taken from Aziz Atala, Sabri Tutuş, Kemal Taş, Mehmet Emin Akdeniz and Aydın Demir, there were references to correspondence and enclosures from the Ministry of Justice (General Directorate of International Law and Foreign Relations) or to documents from the Commission being read out. When questioned about this during the witness hearings before the Commission Delegates, the Diyarbakır SSC Chief Prosecutor stated that he did not have copies of the applicants’ petitions to show them but only correspondence from the Ministry. The Commission rejected this denial. It observed that he considered it his duty to verify the signatures on applications to the Commission. Sabri Tutuş recalled being asked to do so. It found that these four applicants, and, in the case of Seyithan Atala, his brother Aziz, were questioned about their applications on the basis of the documents submitted on their behalf to the Commission.
57. A military operation was carried out in October 1993 in the Kulp-Muş-Bingöl triangle of Diyarbakır province. It was carried out by the Bolu brigade under General Yavuz Ertürk. No aeroplanes were used during the operation and only a limited number of UH-1 helicopters were made available, taking a maximum of 6 persons. Persons detained during the operation were transported on foot to Muş.
58. The authorities carried out investigations promptly into the alleged disappearance of the eleven persons. The applicant Kemal Taş was informed that his son had been released. The petitions lodged by the other applicants asked only for information and did not contain denunciations. The petitions were only made in December 1993 in any event, without any explanation for why they waited so long to take action.
59. The applicants’ assertions of security force involvement in the detention and disappearance of their relatives were totally unsubstantiated. If thousands of soldiers were involved, it would have been expected that they would have talked about when leaving their military service.
60. All these factors indicated that it was probable that the persons were kidnapped by the PKK.
61. The Government provided a batch of documents relating to the investigation by the Kulp public prosecutor from 1996-2000, some of which were already provided to the Commission. They have not made any submissions as to the significance of these documents or as to whether they contradict any findings by the Commission.
62. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
63. 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 some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment) or to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants).
64. 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 prosecutor’s 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).
65. 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.
66. 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 (sometimes referred to as the Official Conduct Act), 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.
67. 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 paragraph 66 above) also applies to members of the security forces who come under the governor’s authority.
68. 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 64 above) or with the offender’s superior.
69. 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.
70. 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.
71. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 71 above), 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.”
72. 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).
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-24018
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: NDANGOYA v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Charles Ndangoya, is a Tanzanian national who was born in 1963. He was represented before the Court by Mr P. Bergquist, a lawyer practising in Tyresö. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant entered Sweden on 28 October 1991. He applied for a permanent residence permit, based on his marriage to a Swedish national, on the following day.
In support of his application the applicant stated, inter alia, that he had met his wife in August 1990, at which time he had been living with his family in Arusha, Tanzania and working as a machine operator at a pharmaceutical factory. After a period of time he had moved in with her and the couple had subsequently married at the Swedish Embassy in Tanzania on 14 August 1991. His family had accepted the relationship and permission to marry had been sought from his uncle, who was living in Kenya and who had become the head of the family after the death, in 1986, of the applicant’s father. His grandfather had been a “tribal chief”. His father had been educated and the family had been living in town. His mother was residing in Arusha and he had eight brothers and sisters, seven of whom were living in Tanzania.
Interviewed together with the applicant, his wife stated, inter alia, that she had been working as a teacher in Tanzania since September 1989 and that before she met the applicant she had been acquainted with his sisters and the family. The applicant’s father had apparently been a highly respected man and she had noticed that people recognised the family when their name was mentioned. All the applicant’s siblings had received an education, all but one of them probably as teachers. The family also had a family business that dealt in gems. In March 1991 the applicant had left his job at the pharmaceutical factory as it caused him to experience allergic reactions. He had thereafter not had any other employment but had assisted his mother who was building a house.
On 27 November 1991 the applicant was given a temporary residence permit in Sweden which was subsequently extended until 27 May 1993. On 13 December 1991 the applicant’s wife gave birth to the couple’s first child.
In October 1993 the couple left for Tanzania, where they remained until the beginning of 1996. While the applicant’s wife returned to Sweden in January 1996, the applicant re-entered Sweden on 12 March 1996. On the same day the couple’s second child was born. The applicant was granted a permanent residence permit in Sweden on 10 July 1996.
As a result of tests performed in connection with her pregnancy, the applicant’s wife in the summer of 1991 learned that she was infected with the HIV virus. A test was subsequently performed also on the applicant which showed that he too carried the infection. The applicant was in this context, and subsequently on repeated occasions, informed of his obligations as a carrier of an infectious disease to refrain from conduct that could cause any further spreading of the disease. According to the evidence subsequently given by the applicant’s (then former) wife at his trial, both she and the applicant were very well aware of the precautions they were obliged to observe, both with respect to each other and with respect to other persons who did not carry the infection.
In September 1997 the applicant and his wife separated and the applicant moved out of the family home in the province of Dalarna and settled in Stockholm. The couple was divorced in November 1998.
On 30 December 1998 the District Court (tingsrätten) of Stockholm found the applicant guilty of making unlawful threats and of carrying knives in a public place. He was given a conditional sentence and ordered to pay a fine. No appeal was made against the judgment.
In the winter and spring of 1999 reports were made to the unit for prevention of infectious diseases at the Karolinska hospital in Stockholm that the applicant was engaging in sexual contacts without disclosing to his partners that he was HIV positive. As a result, he was in May 1999 subjected to compulsory isolation pursuant to the Infectious Diseases Act (Smittskyddslagen, 1988:1472). Following police investigation he was subsequently charged with having had unprotected sexual intercourse with three different women without disclosing to them that he carried the HIV virus, thereby transmitting the infection to two of them.
During the preliminary investigation, the applicant provided further information on his family background and the circumstances surrounding his life in Tanzania. He stated, inter alia, that he grew up with his mother and stepfather in his home village. He first went to a primary school close to the village and later attended a catholic high school in Arusha. He had six full brothers and sisters and eight siblings on his father’s side.
By a judgment of 8 September 1999 the District Court found the applicant guilty of two counts of aggravated assault and one count of attempted aggravated assault and sentenced him to six years’ imprisonment.
Upon the applicant’s and the prosecutor’s appeal, the Svea Court of Appeal (Svea hovrätt), on 2 December 1999, upheld the applicant’s conviction and sentence. Whilst not finding any evidence to show that the applicant had deliberately sought to transmit the virus to the victims, the court observed that he on repeated occasions had been informed of the special risk of transmitting the disease during unprotected sexual intercourse and that he accordingly had been well aware of that risk. Yet, the material before the court showed that he had not informed any of the three victims of his condition. With respect to two of the victims the unprotected sexual contacts had occurred on repeated occasions and in the remaining case on a single occasion when the victim was asleep and despite the fact that she at all previous times had insisted that the applicant should use a condom throughout the intercourse. Considering that the applicant had acted with exceptional ruthlessness and indifference towards his victims, the court concluded that that he would not have refrained from having sexual intercourse with them even if he had known that the disease would be transmitted. The applicant had accordingly shown the requisite mens rea under the applicable principles of Swedish criminal law to be held criminally liable for having committed the crimes with intent.
The Court of Appeal further ordered the applicant’s expulsion from Sweden. Having found that the crimes for which he had been convicted justified a seven-year prison sentence, the court had regard to the inconvenience caused by his expulsion and consequently fixed the sentence at six years’ imprisonment. In regard to the expulsion, the court made, inter alia, the following observations. The applicant’s only connection to Sweden was the fact that his former wife and their two children were residing in the country. He had no other link to the country; he had not learned the Swedish language or established himself on the Swedish labour market and did not appear to have undergone any continuous prescribed treatment for his HIV infection in Sweden. In regard to the applicant’s contacts with his children, evidence given by his former wife revealed that he had been seeing them about four to five times per year and that he had otherwise only had contact with them by telephone. The former wife had maintained, particularly out of concern for the children, certain contacts with the applicant’s relatives in Tanzania. There were thus contacts by letter and telephone between the children and the relatives. The court further found that the applicant had not been continuously residing in Sweden for such a period of time that exceptional reasons were required for his expulsion. However, even if he were to be considered as having resided in Sweden for such a continuous period, the court considered that, in view of the very serious nature of the offences and the applicant’s unsettled conditions in the country, there were sufficiently strong reasons to expel him from Sweden with a lifelong ban on his return. In this context, the court noted that the children’s established contact with relatives in Tanzania would probably mean that the expulsion would not cause the contact between the applicant and his children to be severed. The court also stated that there was probably a significant risk that the applicant would relapse into the same type of criminal behaviour and that this factor strongly militated in favour of expulsion.
The applicant appealed to the Supreme Court (Högsta domstolen). He submitted a statement of 5 January 2000 by Mr Sören Strid, a psychologist at the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatriska mottagningen) in Karlstad, according to which the applicant’s former wife and their two children had visited the clinic on four occasions during the autumn of 1999. Mr Strid stated that the children had a strong emotional relationship to their father and that their need of continuous contact with him could not realistically be maintained should he be expelled to Tanzania.
By a decision of 1 February 2000 the Supreme Court refused the applicant leave to appeal against the Court of Appeal’s judgment.
During the applicant’s time in prison, five petitions have been made to the Government for a revocation of the expulsion order. They were rejected by decisions of 29 June 2000, 26 July 2001, 7 November 2002 (two petitions) and 12 June 2003 respectively.
In support of his requests for a revocation, the applicant submitted several statements. In a medical certificate of 27 November 2001, Dr Stefan Lindbäck, chief physician at the HIV unit at Huddinge hospital and the physician responsible for the applicant’s treatment during the preceding two years, stated that the applicant had undergone anti-retroviral treatment, albeit irregularly, between the summer of 1996 and the end of 1998, and had thereafter not been under treatment until October 1999 when – viral levels in his blood being very high and his immune system being severely weakened and “at the level where AIDS complications usually appear” – he had resumed his medication. The resumed treatment had been successful to the point where the HIV levels in the applicant’s blood were no longer detectable. According to Dr Lindbäck, his chances of receiving life-sustaining HIV treatment in Tanzania were very slim. Moreover, experience showed that the interruption of treatment of a patient like the applicant would lead to a relatively rapid deterioration of the immune system leading to the development of AIDS within 1 to 2 years and death within 3 to 4 years. In a further certificate of 2 June 2003 Dr Lindbäck reiterated his previous statements and added that the applicant’s understanding and acceptance of his disease had improved and that the risk of his relapsing into his previous behaviour had to be considered as extremely small.
In a statement, dated 18 December 2001, Ms Christina Persson, a counsellor (kurator) at the HIV ward at the same hospital, stated that she had met the applicant regularly since August 1997, during which time he had shown an increased understanding of his illness, his previous actions and his prevailing situation. Ms Persson concluded that there was no great risk that the applicant would relapse into his previous hazardous behaviour, as the root causes of that behaviour – fear that his illness would become known to other people, depression and alcohol abuse – had been removed.
In submissions of 13 August 2002 Mr Andreas Berglöf, ombudsman at the Swedish Association for HIV-positive People (Riksförbundet för hivpositiva; RFHP), stated that the applicant had expressed anxieties about his impending expulsion, partly because of the lack of adequate treatment in Tanzania and partly because of the risk of his contact with his children being severed. The applicant had also mentioned that one of his brothers had recently died from AIDS and that a sister was seriously ill due to an HIV infection.
In a report of 4 May 2003 the National Prisons and Probation Authority (Kriminalvården) stated that, after initially having been in a bad state, both mentally and physically, at the prison where he was serving his sentence, the applicant’s situation had improved considerably. He was open and understanding about his illness and received continuous medical treatment. He also received regular visits once a month from his children, accompanied by his former wife, a contact which was very important both to him and the children.
In submissions of 21, 26 and 28 May 2003, respectively, a friend of the applicant’s former wife, her psychiatric counsellor and her brother attested to the close relationship between the applicant and his children and the fact that they had met regularly at the prison.
In a letter of 31 May 2003 the applicant’s former wife described her and the children’s relationship to the applicant. She explained that since it had been easier for her to integrate on the labour market, the applicant had stayed at home with the children. Even after the separation and the applicant’s move to Stockholm, they had remained in close contact, seeing each other as often as their financial situation permitted. They had ensured that the children spoke Swahili; the older child spoke Swahili with the applicant whereas the younger child preferred Swedish. During the applicant’s serving of his sentence, they had visited him as often as possible, altogether on 47 occasions. She further claimed that she could not afford regular visits to the applicant if he were to be expelled to Tanzania.
In his latest application for a revocation of the expulsion order, submitted to the Government during the spring of 2003, the applicant maintained that, as from the autumn of 2001, he had a new relationship with a Swedish woman and that there was no risk that he upon release would relapse into the same type of criminal behaviour. The new relationship had apparently been established in the autumn of 2001 through the exchange of letters. The couple met for the first time in the prison in February 2002 and the woman had subsequently visited the applicant every fortnight. She had a metabolic disturbance and was consequently considerably overweight.
On 13 June 2003, following the Court’s indication, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Tanzania until further notice, the Minister of Justice decided to stay the enforcement of the expulsion order. The Minister further decided that the applicant upon his release from prison on the following day was to be taken into custody pursuant to chapter 6, sections 2 and 9 of the Aliens Act (Utlänningslagen, 1989:529) on the ground that there was reason to believe that he would abscond.
On 14 June 2003 the applicant was released on probation. He remains in detention.
In a report to the Government of 11 July 2003 the Swedish Embassy in Tanzania, after consulting with medical doctors with experience of HIV/AIDS treatment at the Nordic clinic in Dar es Salaam, the head of the Tanzania Occupational Health Service in Dar es Salaam and three of the latter’s colleagues from other parts of the country, provided the following information. Both HIV treatment, in the form of anti-retroviral therapy, and medical care for persons suffering from an HIV infection or developed AIDS were available in Tanzania for those who could afford it. Anti-retroviral therapy and medical attention could be obtained in Dar es Salaam and probably also in Arusha in the north of the country. The physicians with whom the Embassy had been in contact could not with certainty say that anti-retroviral therapy could be obtained in other parts of the country. So-called “CD4-count”, a test to establish the number of certain white blood cells, was available at two hospitals in Dar es Salaam and in all probability also at a medical centre in Moshi in the north. Various types of antibiotics were available throughout Tanzania, also the most modern types suitable for persons suffering from allergy to penicillin. The cost of anti-retroviral therapy lay between 50,000 and 100,000 Tanzanian shillings per month, to be compared with the minimum wage of a Government employee which was 45,000 shillings (1000 Tanzanian shillings approximately corresponded to 0.87 euros). The cost of antibiotics and the treatment of different types of opportunistic diseases varied and was difficult to estimate but lay above 40,000 shillings per month. The cost of “CD4-count” in Dar es Salaam was 40,000 shillings.
Pursuant to chapter 1, section 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence.
Provisions on expulsion on this ground are laid down in the Aliens Act. According to chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he must be convicted of a crime that is punishable by imprisonment. Secondly, he may only be expelled if he is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he will continue his criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he ought not to be allowed to remain in the country.
Furthermore, under chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his links to Swedish society. As regards aliens who are considered to be refugees, special rules apply. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.


ITEMID: 001-5928
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KISSOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Marta Kissová is a Slovakian national, born in 1946 and living in Nová Dedinka.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 October 1991 the applicant acquired, at a public auction, a business situated in a commercial centre in Bratislava in accordance with the relevant provisions of the State Property Transfer Act of 1990 (see “Relevant domestic law” below). On 22 October 1991 the owner of the premises in which the business was situated concluded a tenancy agreement with the applicant as required by Section 15 of the State Property Transfer Act. The tenancy agreement was concluded for a period expiring on 31 October 1996. On 23 February 1993 the ownership of the commercial centre was transferred to a private limited company.
As the new owner and the applicant failed to reach an agreement as regards the tenancy of the premises, the owner sued the applicant and claimed that she should vacate the premises.
On 6 September 1993 the Bratislava III District Court (then Obvodný súd, at present Okresný súd) granted the action and on 23 May 1994 the Bratislava City Court (Mestský súd) upheld this decision. The judgments stated, inter alia, that the original tenancy agreement of 22 October 1991 was void as it had not been approved by the competent administrative authority as required by the law. On 29 September 1994 the Supreme Court (Najvyšší súd) dismissed the applicant’s appeal on points of law.
On 14 February 1994 the applicant filed an action with the Bratislava III District Court claiming that the new owner of the premises should be ordered to conclude a tenancy agreement with her for a five years’ period pursuant to Section 15 of the State Property Transfer Act. She joined the text of the agreement to be concluded to her action.
On 11 December 1996 the Bratislava III District Court granted the action and ordered the defendant to conclude a tenancy agreement with the applicant as suggested by the latter. The defendant appealed.
On 26 June 1998 the Bratislava Regional Court (Krajský súd) overturned the first instance judgment. The Regional Court held, inter alia, that the applicant had benefited from her right under Section 15 of the State Property Transfer Act in that she had concluded a tenancy agreement with the original owner.
On 10 September 1998 the applicant filed an appeal on points of law. She alleged that the tenancy agreement of 22 October 1991 was void and that she had not, therefore, used the premises de iure. She maintained that the period during which she had used the premises could therefore not be taken into consideration when determining her right under Section 15(1) of the State Property Transfer Act.
On 29 September 1999 the Supreme Court dismissed the applicant’s appeal on points of law. It established that the applicant had used the premises de facto for a certain time. In the Supreme Court’s view, it was irrelevant whether this use had been covered by a valid legal title when examining whether and to what extent the applicant’s right under Section 15(1) of the State Property Transfer Act had been respected. The Supreme Court concluded that the applicant was entitled to claim that the new owner should conclude a tenancy agreement with her only for the outstanding period, i.e. so that the overall period during which she would be able to effectively use the premises amounts to five years. The Supreme Court further recalled that in cases when a plaintiff seeks the injunction that an agreement be concluded and the draft text of such an agreement is joined to the action, a court can either grant the action or reject it, but it lacks jurisdiction to modify the terms of the agreement proposed by the plaintiff. The Supreme Court’s judgment was served on 28 October 1999.
Section 15 of the State Property Transfer Act of 1990 (Zákon o prevodoch vlastníctva štátu k niektorým veciam na iné právnické alebo fyzické osoby, Coll. No. 427/1990), as in force until 31 October 1991, provides that a person who acquired a business under the provisions of this Act has the right to have an agreement on tenancy of the premises in which the business is located concluded with the owner of the premises or, as the case may be, his or her legal successor. The duration of the tenancy agreement should be two years unless the parties otherwise agree.
Under Section 15(1) of the State Property Transfer Act, as in force from 1 November 1991, the persons concerned have the right to have such a tenancy agreement concluded for a period of five years.
Under Section 15(2) of the State Property Transfer Act, as in force from 1 November 1991, when the person concerned and the owner of the premises fail to reach an agreement as regards the rent, its amount shall be determined by the competent administrative authority in accordance with the relevant law.


ITEMID: 001-78275
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: YALÇIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Yakup Yalçın, is a Turkish national who was born in 1937 and lives in Istanbul. He was represented before the Court by Mr H. Çınar and Mr E. Çınar, lawyers practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was one of the partners of a company named Balıkçılık İstihsal ve Satış Kooperatifi ve Ocak Pastanesi Kollektif Şirketi (“the Company”). The Company, together with a joint venture partner, leased the Tuzla Lagoon in Keşan, Edirne, for seafood production for a period from 1976 to 1987.
In October 1976, the Turkish, the United States and the NATO forces carried out military exercises in the area. As a result of wastes discharged by military vessels, the lagoon was polluted, which had detrimental effects on the Company’s investment.
On 19 October 1979, the applicant applied to the Keşan Civil Court for an assessment of the level of the pollution and the amount of damages that his enterprise had suffered. An expert report was prepared and submitted to the court on 10 March 1980. Relying on such report, the applicant applied to the Ministry of Defence for compensation.
Upon the Ministry’s refusal to compensate him, the applicant brought an action before the Keşan Civil Court, which held its first hearing on 9 March 1981.
In the meanwhile, the Company became bankrupt and went into liquidation. Pursuant to the applicable bankruptcy laws, the Keşan Civil Court ruled that the applicant no longer had standing and suspended the proceedings on 23 May 1983. The court held that only the liquidator (iflas idaresi) who was in charge of the management and liquidation of the assets of the bankrupt Company, was eligible to resume the proceedings. The court relied on a bankruptcy law principle under which all receivables including the rights, interests and claims relating to ongoing litigation automatically become part of the bankruptcy estate (iflas masası), created in the name and for the benefit of the creditors of a given bankrupt company.
On 23 May 1984, the liquidator applied to the Keşan Civil Court in order to resume the proceedings. From that date on, the proceedings continued with the liquidator being the only eligible plaintiff.
From 14 September 1984 to 16 July 1990, the court held a total of thirtyfour hearings, at least ten of which the liquidator failed to attend. Throughout these hearings, the court suspended the proceedings more than once in view of the liquidator’s failure to attend the hearings, but later resumed them upon the liquidator’s petition.
On 8 June 1990, the court held a hearing which the liquidator did not attend. The court postponed the hearing to 16 July 1990. The liquidator also failed to attend the postponed hearing. On 19 July 1991, the court struck the case off, ruling that the plaintiff, i.e. the liquidator, failed to pursue his case. This decision was not notified to the liquidator.
On 18 January 1995, having heard about this decision, the applicant filed an application with the Keşan Civil Court to contest its strike-off decision. On 27 January 1995, the court dismissed the application holding that the applicant lacked standing and that the liquidator alone could bring such an application. The court also decided to notify the strike-off decision of 19 July 1991 to the liquidator.
The applicant and the liquidator jointly appealed.
On 25 May 1995, the Court of Cassation quashed the civil court’s decision on a ground unrelated to the questions raised in the appeal. It ruled that under Article 62 § 1 of the “Act on the National Defence Duty” (Milli Müdafaa Mükellefiyeti Kanunu) the State’s liability for military operations had to be first examined by a national defence commission. The court found that the Keşan Civil Court’s hearing of the case without referring the matter to such a commission first was a procedural defect warranting quashing. Yet, the Court of Cassation has not made a ruling granting the applicant standing.
On re-examination, the Keşan Civil Court decided that an application needed to be made to a national defence commission. This court did not grant the applicant standing either. On 13 February 1996, the liquidator applied to the Ministry of Defence. The Ministry clarified on 4 March 1996 however that no such commission existed.
On 19 July 1996, the Keşan Civil Court decided to dismiss the case on the ground that a national defence commission’s assessment has not been submitted to it and that the prescribed time period had expired.
On 14 October 1996, the applicant and the liquidator jointly appealed this decision. On 27 June 1997, the Court of Cassation upheld it and dismissed an application for rectification on 25 December 1997. This latter ruling was served on 27 November 1998.


ITEMID: 001-61054
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SYLVESTER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicants were born in 1953 and 1994 respectively. The first applicant lives in West Bloomfield (Michigan) and the second applicant lives in Graz.
11. The first applicant married an Austrian citizen in April 1994. The marriage was concluded in the United States of America, where the couple set up their common residence. On 11 September 1994 their daughter, the second applicant, was born. The family's last common residence was in Michigan. Under the law of the State of Michigan the parents had joint custody over the second applicant.
12. On 30 October 1995 the first applicant's wife, without obtaining his consent, left the United States with the second applicant and took her to Austria.
13. On 31 October 1995 the first applicant, relying on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), requested the Austrian courts to order the second applicant's return. In these and the subsequent proceedings the first applicant was represented by counsel.
14. On 3 November 1995 the second applicant's mother filed an application with the Graz District Civil Court (Bezirksgericht für Zivilrechtssachen) for the award of sole custody over the second applicant.
15. On 20 December 1995 the Graz District Civil Court, after having heard evidence from the first applicant and his wife and the oral statement of an expert in child psychology, Dr. K., ordered that the second applicant be returned to the first applicant at her former place of residence in Michigan.
16. The court, noting that under Michigan law the first applicant and his wife had joint custody of their daughter, found that the first applicant's wife had wrongfully removed the child within the meaning of Article 3 of the Hague Convention. Moreover, it dismissed the mother's claim that the child's return would entail a grave risk of physical or psychological harm within the meaning of Article 13 (b) of the Hague Convention. It considered that the second applicant's return could not be hindered by the fact that the mother was her main person of reference and that returning could cause a massive trauma affecting her development. Otherwise, mothers of small children could easily circumvent the aim of the Hague Convention. As to the mother's allegation that the first applicant regularly masturbated in the presence of the child, the court referred to the expert's statement that such conduct would, in view of the child's tender age, not cause immediate harm. The fact that such conduct, if proved, could in the long run be harmful to the child would have to be assessed in the custody proceedings. Finally, it held that the mother could be expected to return with the second applicant to the United States.
17. On 19 January 1996 the Graz Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed an appeal by the second applicant's mother.
18. The Regional Court confirmed the District Court's assessment as regards the question whether the second applicant's return would entail a grave risk of physical or psychological harm within the meaning of Article 13 (b) of the Hague Convention. It noted that the onus of proof was on the person opposing the return, i.e. the second applicant's mother. Further, it noted that the statement of the expert in child psychology had denied that there was any such risk. That statement had been made on the assumption that the mother's allegations were true. However, the Regional Court emphasised that the truth of these allegations had not been proved and that the District Court had had the benefit of hearing the first applicant and, thus, of forming a personal impression of him.
19. On 27 February 1996 the Supreme Court (Oberster Gerichtshof) dismissed a further appeal by the second applicant's mother.
20. On 27 February 1996 the first applicant filed an application for enforcement of the return order of 20 December 1995.
21. Meanwhile, the first applicant had started divorce proceedings before the Oakland Circuit Court (Michigan). By a decision of 16 April 1996, the court pronounced a default judgment of divorce. Further, it awarded the first applicant sole custody of the second applicant and ordered that the second applicant should reside with the first applicant in the event of her return.
22. On 7 May 1996 the file arrived again at the Graz District Civil Court.
23. On 8 May 1996 the Graz District Civil Court ordered the enforcement of the return order under section 19 (1) of the Non-Contentious Proceedings Act (Ausserstreitgesetz). It noted that it was necessary to order coercive measures as there were indications that the mother was obstructing the child's return. She had given an interview to a local newspaper according to which she frequently changed her whereabouts and was determined not to let the child be taken away from her.
24. In the early hours of 10 May 1996, an attempt to enforce the return order was made in accordance with the terms set out in the order of 8 May. A bailiff, assisted by a police officer, a locksmith and a representative of the Youth Welfare Office, appeared at the house where the second applicant and her mother were living. The first applicant was also present. A search carried out in the house, necessitating the use of force against the second applicant's mother and the forceful opening of several doors, remained unsuccessful. On the occasion of the enforcement attempt the Supreme Court's decision of 27 February 1996 and the enforcement order of 8 May 1996 were served on the second applicant's mother.
25. On 15 May 1996 the second applicant's mother appealed against the decision of 8 May 1996 and again filed an application for the award of sole custody of the second applicant.
26. On 29 May 1996 the United States District Court, Eastern District of Michigan, issued an arrest warrant against the second applicant's mother on suspicion of international parental kidnapping.
27. On 18 June 1996 the first applicant made a further application for enforcement of the return order.
28. By a decision of 25 June 1996 the Graz District Civil Court, at the request of the second applicant's mother, transferred jurisdiction to the Leibnitz District Court, in the judicial district of which the second applicant had purportedly established her residence.
29. On 29 August 1996 the Graz Regional Civil Court granted an appeal by the first applicant against the transfer of jurisdiction and, on the mother's appeal, quashed the Graz District Civil Court's enforcement order of 8 May 1996 and referred the case back to it.
30. Referring to section 19 (1) of the Non-Contentious Proceedings Act, the court found that, in the enforcement proceedings, the child's well-being had to be taken into account in so far as a change in the situation had occurred since the issue of the return order and the taking of coercive measures. However, under Article 13 of the Hague Convention, this question was not to be examined by the court of its own motion but only upon an application by the person opposing the return. Following the service of the enforcement order of 8 May 1996 the mother had submitted, in particular, that she was the second applicant's main person of reference. Because of the lapse of time, the second applicant no longer recognised her father when she was shown his picture. By being taken away from her mother the child would suffer irreparable harm. The court therefore ordered the District Court to examine whether the situation had changed since the return order of 20 December 1995. It also ordered the District Court to obtain the opinion of an expert child psychologist on the question whether the child's return would entail a grave risk of physical or psychological harm and whether coercive measures were compatible with the interests of the child's well-being.
31. Between May and December 1996 numerous letters were exchanged between the United States Department of State and the Austrian Ministry of Justice, acting as their respective States' Central Authorities under the Hague Convention. The United States Department of State repeatedly requested information as to which steps had been taken to locate the second applicant and to enforce the return order of 20 December 1995. The Austrian Ministry of Justice replied that the first applicant was represented by counsel in the Austrian proceedings and that it was up to him to take all necessary steps to obtain the enforcement of the return order. It also pointed out that there were only rather limited possibilities to locate a child who had disappeared after a return order had been made.
32. On 15 October 1996 the Supreme Court dismissed an appeal by the first applicant and set aside the enforcement order of 8 May 1996. It noted in particular that the notion of the child's well-being was central to the entire proceedings. When ordering coercive measures under section 19 (1) of the Non-Contentious Proceedings Act, the court had to take the interests of the child's well-being into account, despite the fact that the return order was final, if the relevant situation had changed in the meantime. Having regard to the aims of the Hague Convention, a refusal of coercive measures was only justified if the child's return would entail a grave risk of physical or psychological harm for the child within the meaning of Article 13 (b) of the Hague Convention.
33. The Supreme Court acknowledged that particularly difficult problems arose in cases in which the abductor had created the situation in which the return represented a serious danger to the child's well-being. Where the abductor of a small child was the latter's main person of reference and refused to return with the child, a serious threat to the child's well-being might arise. Nevertheless, Article 13 (b) of the Hague Convention made clear that the child's well-being took priority over the Convention's general aim of preventing child abduction. Reasons of general deterrence or, in other words, the aim of showing that child abduction was not worthwhile could not justify exposing a child to a grave risk of physical or psychological harm.
34. In the present case, the mother had claimed that the child, who was now more than two years old, had become alienated from the father. The child's abrupt removal from her main person of reference and her return to the United States would cause her irreparable harm. The Supreme Court emphasised that the particularity of the case lay in the fact that, in the main proceedings, the courts had denied that there was any risk of psychological harm (as a result of the alleged sexual behaviour of the first applicant) exclusively on account of the child's tender age. In these circumstances, it could not be excluded that the child, who was now more than two years old and had been living solely with her mother for more than a year, would suffer grave psychological harm in the event of a return to her father. Thus, the Regional Court had rightly found that the question whether the return order could be enforced by coercive measures needed further examination, including an opinion by an expert in child psychology. It might also prove necessary to assess whether or not the mother's allegations were at all true.
35. In accordance with the Supreme Court's decision, the case was referred back to the Graz District Civil Court.
36. On 23 April 1997 the Oakland Circuit Court issued a “safe harbour” order, valid until 21 October 1997, which provided, inter alia, that pending determination of custody in expedited proceedings, the first applicant would not exercise his right to sole custody of the child; the second applicant would live with her mother away from the first applicant, who would undertake to cover their living expenses; and the arrest warrant against the mother would be set aside as soon as she and the second applicant boarded a direct flight to Michigan.
37. On 29 April 1997 the Graz District Civil Court dismissed an application by the first applicant for enforcement of the return order.
38. In the continued proceedings, the expert on child psychology, Dr. K., had submitted his opinion on 26 March 1997 and the first applicant had been given an opportunity to comment. On the basis of the expert opinion, the court found that since the second applicant's birth her mother had been her main person of reference. However, the first applicant had had regular contact with her until 30 October 1995, the date of her abduction. Thereafter they had had no contact at all. Since the return order had been made, a year and four months had elapsed and the first applicant had become a complete stranger to the second applicant. Given that a young child needed a stable relationship with the main person of reference at least until the age of six, the second applicant's removal from her main person of reference, namely her mother, would expose her to serious psychological harm. Having regard to the considerable lapse of time since the return order had been made on 20 December 1995, the District Court found that there had been a change in the relevant circumstances, in that the second applicant had lost all contact with the first applicant while her ties with her mother and her maternal grandparents had become ever closer. Consequently, her return would expose her to serious psychological harm.
39. The court noted the first applicant's statement of 28 April 1997 and his offer within the meaning of the “safe harbour” case-law but considered that this offer did not guarantee that the second applicant's relationship with her main person of reference would be preserved in the long run. As this relationship was indispensable for her well-being, the application for enforcement of the return order had to be dismissed.
40. On 28 May 1997 the Graz Regional Civil Court dismissed an appeal by the first applicant. It shared the District Court's view that the situation had changed fundamentally since the issuing of the return order. At that time the second applicant had been much younger and, given the short time which had elapsed between her abduction and the issuing of the return order, had not yet lost contact with the first applicant. A return of the second applicant accompanied by her mother could not be envisaged either. Apart from the reasons adduced by the District Court, the mother would face criminal prosecution in the United States and the child would, accordingly, be taken away from her.
41. On 2, 3 and 4 June 1997 the first applicant was granted a couple of hours of supervised access to the second applicant.
42. On 9 September 1997 the Supreme Court dismissed a further appeal by the first applicant on the ground that it did not raise any important legal issues.
43. On 29 December 1997 the second applicant's mother was awarded sole custody of the second applicant by the Graz District Civil Court. It noted that Article 16 of the Hague Convention, which prohibited the State to which the child has been abducted from taking a decision on custody while proceedings for the child's return were pending, no longer applied, as the decision not to enforce the return order had become final. Following appeal proceedings the judgment became final on 31 March 1998.
44. The preamble of the Convention, which has been incorporated into Austrian law, includes the following statement as to its purpose:
“ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...”
45. The object of such a return is that, following the restoration of the status quo, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident. This principle is based on the consideration that the courts of the State of habitual residence are usually best placed to take custody decisions.
“The removal or the retention of a child is to be considered wrongful where
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and
(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...”
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures
(a) To discover the whereabouts of a child who has been wrongfully removed or retained;
(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) To exchange, where desirable, information relating to the social background of the child;
(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay ...”
“Where a child has been wrongfully removed or retained in terms of Article 3 ..., the authority concerned shall order the return of the child forthwith.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that
...
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. ...”
46. Section 19 (1) provides that adequate coercive measures are to be taken without any further proceedings against a party refusing to comply with court orders.
47. According to the Supreme Court's case-law the courts have, in any proceedings relating to the removal of a child, the courts have to take the interests of the child's well-being into account when assessing whether coercive measures are to be ordered and, if so, which ones are to be applied.
VIOLATED_ARTICLES: 8