ITEMID: 001-82891
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TARDI AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicants were born in born in 1952, 1949, 1926, 1950 and 1980 and live in Eger, Novaj and Budapest, respectively.
5. Under the rules of Act no. 2 of 1993, the shareholders of agricultural co-operatives became entitled to claim from the local “land distribution committees”– which consisted of lay members elected by the shareholders – the reallocation of plots of arable land to them, at a value corresponding to that of the land which had been surrendered by the original owners to the co-operatives under the socialist legislation.
6. The applicants, all in this legal position, filed their respective claims with regard to the “Novaj 0124” plot, situated in the Eger historical wine region, within the statutory 60-day time-limit counted from the entry into force of the Act on 23 January 1993. The distribution committee had an obligation under the procedural law to proceed with such claims within a deadline of two months running from the expiry of that time-limit. However, it was not until 17 February 1995 that it organised a meeting of the claimants of plot no. 0124.
7. The decisions adopted at the meeting were susceptible to administrative remedies. On appeal, on 19 December 1995 the Heves County Agricultural Office, a State authority, quashed the decisions and instructed the committee to resume the proceedings. The complainants' procedural appeals against the remittal were dismissed by the Heves County Regional Court and the Supreme Court on 28 June 1996 and 7 September 1998, respectively.
8. However, at that point neither the distribution committee nor its legal successor – the Agricultural Office itself – resumed the administrative proceedings.
9. Meanwhile, in September 1996 the Heves County Public Prosecutor's Office challenged the legality of the decision of 19 December 1995. On 17 January 2000 the Supreme Court finally discontinued these proceedings, since the prosecution's motion was incompatible ratione materiae with the relevant provisions of the Code of Administrative Procedure.
10. Once the legality proceedings had been terminated, the Fejér County Agricultural Office was appointed, at some time in 2002, to process the Novaj land distribution. The applicants filed an administrative appeal against the decisions of this body, arguing that the individuals who had in the meantime been granted land belonging to plot no. 0124 had not been so entitled.
11. Although the applicants' administrative appeal was largely unsuccessful, the actual owners nevertheless sought judicial review.
12. On 30 August 2002 the Fejér County Regional Court quashed the administrative decisions adopted in the case hitherto and ordered the Heves County Agricultural Office to resume its proceedings. It held that the case had been unlawfully assigned to the Fejér County Office.
13. On 12 April 2005 the Heves County Agricultural Office adopted certain decisions in the case. The administrative appeals against these decisions were to no avail. According to the information provided by the parties and the elements available in the case file to date, the judicial review of these decisions before the Nógrád County Regional Court has not yet ended.
14. Criminal proceedings which the applicants had sought against various officials involved in the case were to no avail.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84046
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RYDZ v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3;No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1976 and lives in Brzeg.
6. On 14 May 1999 the applicant was arrested on suspicion of having committed multiple gang rape (including statutory rape), of inducing the victims to take intoxicants and of persuading the victims not to inform the police about those crimes.
7. On 17 May 1999 the applicant was remanded in custody by the Brzeg District Court. The decision was based on a reasonable suspicion, confirmed by testimonies of the victims and of other suspects, that the applicant had committed the offences with which he had been charged, the severity of the sentence he faced and the need to secure the proper conduct of the investigation. The court pointed to a serious risk that the applicant, if not detained, might attempt to influence the co-accused and the victims.
8. Subsequently, twelve other persons were charged with participation in the crime and eight of them were remanded in custody.
9. On 22 July 1999 the prosecutor decided to obtain an expert opinion on the mental state of two witnesses, who were minors, and on their ability to appreciate and recollect things they had witnessed. The psychologist submitted his opinions on 6 and 11 October 1999.
10. On 5 August 1999 the public prosecutor decided to prolong the investigation.
11. The applicant's detention was extended on 11 August, 5 November and 13 December 1999, 24 May 2000, 12 June and 13 November 2000, 14 March, 27 April, 10 May, 28 June and 7 November 2001, 13 February, 8 May, 13 July and 13 November 2002, 11 February and 8 May 2003. The court found that the grounds for detention on remand were still valid and owing to the fact that the crimes had been committed in co-operation with other persons, there remained a high risk that the applicant might interfere with the course of justice and exert pressure on witnesses and victims. The courts also pointed to the necessity of separating the suspects. As the investigation continued, the court stated that there had been exceptional circumstances which precluded the termination of the preparatory proceedings, such as the complexity of the case, the need to obtain further evidence and the multiplicity of plots, accused and charges. The court also found that the applicant's case had not disclosed any of the grounds for release provided for by Article 259 of the Code of Criminal Procedure.
12. On 19 and 29 September 1999 the prosecutor decided to include in the case file the case files of other proceedings conducted against the suspects.
13. In October 1999 the public prosecutor ordered expert opinions on the kind of injuries the victims had suffered and whether these might have resulted from the circumstances described by them, and on the ability of the suspects to understand the meaning of their acts and to control their behaviour at the time when the offences had been committed. The opinions were submitted on 6 and 15 October 1999.
14. On 11 October 1999 the Opole Regional Prosecutor charged the applicant, in addition to the previous charges, with participation in an organised criminal gang.
15. By decision of 29 October 1999 the investigation was prolonged until 31 December 1999.
16. The preparatory proceedings, during which the prosecutor examined a total of 66 witnesses and obtained over 150 other items of evidence, were closed on 3 December 1999. On the same date the public prosecutor lodged a bill of indictment comprising 59 charges and five victims. The applicant was charged with seven offences: participation in an organised criminal gang, gang rape (including statutory rape) committed with extreme cruelty and in conjunction with deprivation of liberty, and with threatening the victims and persuading them not to inform the police about the crimes.
17. In 2000 the first-instance court held 11 hearings during which the evidence of the witnesses and defendants was heard: on 26 April, 24 May, 12 June, 10 and 28 July, 31 August, 17 November, 14, 15, 18 and 23 December. Seven other hearings scheduled in 2000 were cancelled or adjourned for reasons not attributable to the court, in particular the absence of the defendants, including the applicant, or their representatives. The court remanded in custody one of the defendants who had failed to appear at a hearing and lifted the detention of another. It also dismissed from his function a legal-aid lawyer who had failed to appear and appointed a new one in his place. The court also decided to examine the case against one of the co-accused separately since it was felt that his psychiatric observation could lead to a delay in the proceedings.
18. At the hearing of 24 May 2000 the court prolonged the applicant's detention until 15 November 2000. The court emphasised that the absence of one of the defendants prevented the hearing of the other accused and that detention was the only preventive measure which could in those circumstances secure the proper conduct of the proceedings.
19. The hearing scheduled for 30 January 2001 was adjourned in order to have one of the victims heard with the assistance of a psychologist. On 26 February 2001 the psychologist submitted an opinion in which he considered that it was inadvisable to hear the victim, since this would oblige her to re-live her traumatic experience.
20. In 2001 nineteen hearings were held and three had to be adjourned or cancelled because of the illness of a judge, the absence of a witness or the fact that the case file was with the Court of Appeal which was deciding on the prolongation of the detention. The court requested the police to determine the whereabouts of nine witnesses. Fines were imposed on eleven absent witnesses.
21. From 11 April 2001 until 10 April 2002 the applicant served a one-year prison sentence imposed in separate proceedings.
22. On 28 June 2001 the Wrocław Court of Appeal prolonged the applicant's detention until 15 November 2001. It held that there had been a serious risk that the applicant might try to hinder the proper course of the proceedings. It was proved that two of the defendants had exerted improper pressure on witnesses and thus caused them to alter significantly their versions of the events. The court noted that the case involved thirteen defendants and sixty-six witnesses. Owing to the considerable amount of evidence to be taken, it was inevitable that the proceedings had been prolonged, given the need to ensure that the right to a fair trial was fully respected. At this point the court emphasised that the defendants had been making extensive use of their rights to question witnesses. Several witnesses had changed their testimonies and the reading out of their earlier statements had been justified. Almost thirty witnesses remained to be heard at that stage of the proceedings and there was a need to summon further witnesses and to cross-examine them.
23. On 7 November 2001 the Wrocław Court of Appeal prolonged the applicant's detention until 15 February 2002. The court endorsed the reasoning of the first-instance court in the latter's decision of 28 June 2000. In addition, it dealt with the length of the proceedings. The court noted that, since June 2000, the first-instance court had held seven hearings and examined ten witnesses. The absence of other witnesses was the major reason for the prolongation of the proceedings; however, the trial court had taken proper measures to speed up the trial. The appellate court also pointed to the fact that the examination of the witnesses had been very time-consuming owing to the complexity of the case and the mental state of the victims. The parties had also requested additional witnesses to be heard.
24. Three hearings were held in January 2002, despite the absence of some of the defendants at one of the hearings. A number of absent witnesses were ordered to be brought to court.
25. Two further hearings were held in February 2002. The third hearing, scheduled for 26 February 2002, had to be adjourned because of the absence of a key witness. The court fixed a time-limit for submission of the parties' motions for evidence. Consequently, the defendants (among them the applicant) made almost twenty applications for the examination and cross-examination of witnesses, the ordering of expert opinions and inspections of the crime scene.
26. On 13 February and 8 May 2002 the Wrocław Court of Appeal decided to prolong the applicant's detention. The court held that the considerable length of the proceeding was due to the complexity of the case coupled with the large number of accused and witnesses. The court concluded that the prerequisites for detention provided for by Article 263 § 4 of the Code of Criminal Procedure applied.
27. On 5 March 2002 the court held a hearing despite the absence of two defendants. A witness was ordered to come to the hearing. The court also obliged the defendants to specify their reasons for requiring the cross-examination of witnesses.
28. Two further hearings were held in March 2002 and four in April 2002. The court dismissed eight motions for evidence, having found them irrelevant for proving the facts alleged.
29. From 10 April 2002 until 9 December 2002 the applicant was serving a prison sentence imposed on him in separate proceedings.
30. Up to 31 July 2002 nine hearings had been held during which the court took evidence from further witnesses and an expert. One witness was examined at his place of residence and the testimonies of four other witnesses, who were abroad, were read out. The court dismissed the defendant's request to summon other absent witnesses, having found that their examination would not add anything to the case. The police were ordered to determine the whereabouts of two defendants.
31. On 31 July 2002 the Opole Regional Court found the applicant guilty as charged and sentenced him to nine years' imprisonment and a four-year period of deprivation of his civic rights. The time spent in pre-trial detention was deducted from the sentence. All the accused appealed.
32. On the same date the court prolonged the applicant's detention until 15 November 2002.
33. On 2 June 2003 the Wrocław Court of Appeal upheld the judgment with respect to the applicant. The applicant appealed.
34. On 14 February 2005 the Wrocław Court of Appeal rejected the applicant's complaint of 25 January 2005 about the excessive length of the proceedings before the Opole Regional Court, finding that it had been lodged after the termination of the proceedings.
35. On 24 February 2005 the applicant lodged a new complaint about the undue length of the proceedings, referring to his application pending before the Court. On 29 April 2005 the Court of Appeal dismissed the complaint as ill-founded. The court admitted that the proceedings had lasted a considerable period of time but stated that this fact alone could not lead to the conclusion that the applicant's right to a trial within a reasonable time had been violated. The court examined solely the part of the proceedings conducted before the Opole Regional Court.
36. On 11 March 2005 the Supreme Court dismissed the applicant's cassation appeal.
37. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is set out in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
38. The judgment Bąk v. Poland, no. 7870/04, §§ 38-40, 16 January 2007, addresses more specifically the issue of domestic practice in the area of pre-trial detention and organised crime.
39. For the relevant domestic law and practice concerning the available remedies against excessive length of proceedings, see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Rybczyńscy v. Poland, no. 3501/02, judgment of 3 October 2006, and Białas v. Poland, no. 69129/01, judgment of 10 October 2006.
NON_VIOLATED_ARTICLES: 5
6
NON_VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-70601
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: T. DALSGAARD AND J. DALSGAARD  v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The first applicant, Tove Dalsgaard, and the second applicant, Jens Dalsgaard, are spouses. They are Danish nationals, born in 1946 and 1943 respectively and live in Hillerød. They are represented before the Court by Uffe Baller, a lawyer practising in Århus. The Government are represented by their Agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants ran a freshwater fish farm, which formally was owned by the first applicant.
On respectively 17 and 18 November 1993 the applicants were interviewed by the police and charged with offences against the Act on freshwater fish farms of 5 April 1989 (bekendtgørelse nr. 224), as allegedly during the year 1992, they had for their own enrichment intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment. An indictment was issued on 17 December 1993 and filed with the City Court of Terndrup (retten i Terndrup) on 20 December 1993. As the applicants continued to exceed the fixed feed quotas, the indictment was succeeded by supplementary indictments of 31 May 1994, 11 July 1995, 10 October 1996, 13 January 1998 and 19 March 1998 concerning the years 1993-1997; the four latter concerning an amended Act on freshwater fish farms (bekendtgørelse nr. 900) of 31 October 1994, and the latter including charges as to breach of the Environmental Protection Act (Miljøbeskyttelsesloven).
On 10 January 1994 the case was adjourned awaiting the outcome of a corresponding pending criminal case, considered to be a “test-case”, in which the defendant had alleged inter alia that the 1989 Act had no legal authority as it contravened articles of the Penal Code and provisions of the Environmental Protection Act (Miljøbeskyttelsesloven). The applicants did not object to this adjournment. The proceedings in the test-case were finally determined on appeal by a High Court judgment of 21 September 1995 which stated that the Act provided the requisite authority and that the sanction for any violation of it should be imposition of a fine and confiscation of any profit. As a consequence of the judgment the Regional Public Prosecutor of Aalborg (Statsadvokaten i Aalborg), who at the relevant time had 23 similar cases being prosecuted by him in the first instance, forwarded a memorandum to all the Chief Constables in December 1995, urging them to expedite the “fish farms cases”.
However, in January 1996 a defendant in another test-case alleged that the 1989 Act was anti-competitive and therefore in conflict with EU law, resulting in the Regional Public Prosecutor of Aalborg requesting the Environmental Protection Agency (Miljøstyrelsen) and the Special European Committee on Legal Issues set up by the Danish Ministry of Justice (Justitsministeriets EU-specialudvalg for juridiske spørgsmål) to provide an opinion. Neither found that the Act fell within the scope of Article 34 and 35 of the EC treaty, and in November 1996, as to the specific test-case, the High Court ruled that it found no reason to refer to question to the European Court of Justice. Against this background in the autumn the Regional Public Prosecutor of Aalborg forwarded two memorandums to the Chief Constables urging them to expedite the fish farm cases as much as possible.
In the meantime, in the spring of 1996 in yet another test-case, a defendant had alleged in vain that the 1989 Act was contrary to section 73 of the Danish Constitution. Consequently, in September 1996 the Regional Public Prosecutor of Sønderborg (Statsadvokaten i Sønderborg) forwarded a memorandum to all the Chief Constables providing an account of the latest development in the cases concerning fish farms and urging to expedite them.
Also, in the meantime investigation and administrative appeals had been ongoing resulting in the supplementary indictments of 31 May 1994, 11 July 1995 and 10 October 1996 being filed with the City Court of Terndrup, and the trial had been scheduled to take place on 15 October 1997.
On 8 July 1997 the applicants retained a new counsel, who shortly thereafter requested an adjournment of the case in order to go through the material and to obtain an expert opinion on the confiscation amount. His request was granted. Therefore, and due to counsel’s engagement elsewhere, the trial was scheduled to take place on 27 and 28 October 1998.
Two supplementary indictments of 13 January 1998 and 19 March 1998 were filed with the City Court of Terndrup.
By judgment of 19 November 1998 the applicants were convicted. The first applicant was sentenced to pay a fine of 5,000 Danish kroner (DKK) and her profit estimated to DKK 1,400,000 was confiscated. The second applicant was fined of DKK 350,000. In addition, weekly fines in the amount of DKK 500 were to be imposed on the applicants up until 1 April 1999 or until they had complied with a prohibition of 2 July 1997 that had been issued by the regional environmental protection authorities (Nordjyllands Amtsråd) against carrying on business on a specific part of the applicants’ freshwater fish farm.
On appeal to the High Court of Western Denmark (Vestre Landsret) counsel requested information from the prosecution as to whether the 1989 Act had been notified to the European Commission, since in the affirmative he would request a preliminary reference to the European Court of Justice.
At the relevant time two test-cases were already pending before the Supreme Court (Højesteret) in which the two defendants (see Pedersen and Pedersen v. Denmark, no. 68693/01, 14 October 2004) had maintained that the relevant Act lacked legal authority because the European Commission had not been notified of it as prescribed by a Council Directive, for which reason they requested the case referred to the Luxembourg Court for a preliminary ruling.
Consequently, in the beginning of 1999 the Prosecutor General (Rigsadvokaten) found that all cases concerning the 1989 Act should await the outcome of the cases pending before the Supreme Court.
The decision to adjourn the present case in accordance therewith was taken formally by the High Court on 12 April 1999.
In the test-cases, on 22 August 2000 the Supreme Court decided not to refer the cases to the Court of Justice for a preliminary ruling and on 16 February 2001 the Supreme Court passed judgments, published in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) for 2001, pp. 1046 and 1056 (see Pedersen and Pedersen v. Denmark cited above).
On 6 April 2001 the Prosecutor General forwarded a letter to the Regional Public Prosecutors and others stating that the adjourned cases could now proceed.
On 24 April 2001 the Regional Public Prosecutor requested the High Court to set down the applicant’s cases for trial, however, since the Prosecution and the environmental authorities had to discuss and coordinate the claims made in all the cases concerning fish farming, the Regional Public Prosecutor requested that the case was not scheduled before September 2001.
On 10 September 2001 the High Court scheduled the trial for 19 and 20 March 2002.
On 12 December 2001 the Prosecutor General procured guidelines to the prosecution (Meddelelse nr. 3/2001) on how to go about with this kind of criminal cases and which sentences to propose.
On 22 January 2002 counsel informed the High Court that the applicants wished to change counsel, namely to the lawyer who had represented the defendants (Pedersen and Pedersen) before the Supreme Court.
On 7 February 2002 the applicants’ new counsel forwarded a request to the Regional Public Prosecutor of Aalborg for the production of 18 additional witnesses and a proposal that the trial be postponed.
In a letter of 11 March 2002 to the High Court counsel made various submissions in favour of adjourning the case, inter alia that he maintained his request for additional evidence and that the case ought to await the decision of the Court in the case Pedersen and Pedersen v. Denmark (cited above).
In spite of objections by the Regional Public Prosecutor, on 14 March 2002 the High Court decided to adjourn the case. Instead a preparatory hearing was held on 19 March 2002, during which counsel’s request for the production of additional evidence was refused. The trial was listed to take place on 24 and 25 June 2002.
The applicants’ request for leave to appeal against the High Court’s decision of 19 March 2002 to the Supreme Court was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 7 May 2002.
By judgment of 25 June 2002 the High Court of Western Denmark upheld the applicants’ convictions, but partly amended the sentences to be imposed. Thus, the first applicant was sentenced to pay a fine of 5,000 Danish kroner (DKK) and her profit estimated to DKK 1,150,000 was confiscated; the second applicant was fined of DKK 285,000; and the City Court’s imposition of weekly fines was quashed.
The applicants’ complaint that the length of the proceedings had exceeded a reasonable time was rejected by the High Court stating inter alia:
“Since the issuing of the indictment in 1993, the progress of the case has been influenced inter alia by the fact that the case during longer periods had to await the outcome of other similar cases, including cases which were finally determined by the Supreme Court (Højesteret). [Having regard thereto], the length of the proceedings did not breach Article 6 § 1 of the Convention on Human Rights as to a trial within a reasonable time.”
On 3 July 2002 the applicants requested leave to appeal against the High Court judgment to the Supreme Court. In support thereof they maintained, inter alia, that the length of the proceedings was in violation of Article 6 § 1 of the Convention. Their request was refused by the Leave to Appeal Board on 13 August 2002.
The Administration of Justice Act provides in as far as relevant:
Section 840, subsection 1
The High Court notifies the Regional Public Prosecutor of the scheduling of the trial, and informs [him or her] and the accused about assignment of counsel [if any]. The information to the accused thereon may be given through the Regional Public Prosecutor in connection with the serving of the summons.


ITEMID: 001-73187
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF UÇAR v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);No violation of Article 14 - Prohibition of discrimination (Article 14 - Discrimination);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 8. The applicant was born in 1948 and lives in Gaziantep. The application concerns the alleged abduction and ill-treatment of Cemal Uçar, the applicant’s son, by unknown persons and his death in Diyarbakır E-type prison. At the time of the events giving rise to the application, Cemal Uçar was 26 years old. The facts surrounding the detention and death of the applicant’s son are disputed between the parties.
9. On 5 October 1999 at around 11 a.m. Cemal Uçar left his house to buy water. Four plain-clothes persons carrying weapons and radios attempted to abduct him. Cemal Uçar tried to run away. However, he was caught behind his house. These persons told him that they were policemen. He was then blindfolded and put in a vehicle. The applicant claims that a neighbour witnessed the abduction. According to this witness, Cemal Uçar resisted arrest but was dragged into a dark red car. After being driven around for some time Cemal Uçar was taken to an unknown location.
10. Between 11 and 26 October 1999, the applicant filed petitions with the public prosecutor’s office at the Diyarbakır State Security Court and the Diyarbakır public prosecutor. He requested that the authorities carry out an investigation into the abduction of Cemal Uçar and that he be informed of his son’s whereabouts.
11. Between 5 October and 2 November 1999 Cemal Uçar was detained by the kidnappers. He was kept blindfolded, deprived of food and was subjected to electric shocks.
12. On 2 November 1999 the kidnappers took Cemal Uçar to the city stadium in Diyarbakır and left him outside. A balaclava was put over his head and he was made to lie on the ground. The kidnappers told him that they would send the police shortly.
13. On 11 October 1999, after having received the applicant’s petition, the Diyarbakır public prosecutor requested the security directorate to examine the allegations. He took statements from the applicant concerning the alleged abduction of Cemal Uçar.
14. On 22 November 1999 the Diyarbakır public prosecutor sent letters to the public prosecutor’s office in Nusaybin, the Security Directorate, the Gendarme Command and the Population Office in Diyarbakır, requesting these offices to conduct an investigation.
15. On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır AntiTerror Branch and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court.
16. On 29 November 1999 the deputy chief of police in Diyarbakır notified the Diyarbakır public prosecutor that on 24 November 1999 Cemal Uçar had committed suicide in Diyarbakır E-type prison.
17. On 10 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute in respect of the applicant’s allegations.
18. On 23 December 1999 the decision of 10 December 1999 was served on the applicant.
19. On 2 November 1999, at 3.30 a.m., within 3 to 5 minutes after the kidnappers had left, police arrived at the stadium and arrested Cemal Uçar. The police officers found a forged identity card in Cemal Uçar’s pocket. It had been placed there by his kidnappers. He was then taken to the Diyarbakır State Hospital and examined by a doctor who noted that there were several injuries on various parts of his body.
20. On 10 November 1999 Cemal Uçar was forced by the police to sign a statement, according to which he had been responsible for the organisation of Hizbullah activities in Diyarbakır.
21. On 11 November 1999 Cemal Uçar, along with nine other persons, was taken to a medical expert who noted that none of the ten persons had sustained any injuries.
22. On the same day, Cemal Uçar made statements before the public prosecutor at the Diyarbakır State Security Court and denied the truth of the statements taken from him on 10 November 1999 by the police. Subsequently, he was taken to the Diyarbakır State Security Court before which he repeated the statements that he had made to the public prosecutor. The court ordered his detention on remand.
23. On 2 November 1999, at around 3.15 a.m., in the course of a routine police check, Cemal Uçar was seen sitting in front of the city stadium. As he appeared suspicious, the police officers asked him to show them his identity card. A forged identity card was seized and Cemal Uçar was taken into custody.
24. On 4 November 1999 the public prosecutor at the Diyarbakır State Security Court extended Cemal Uçar’s custody period for two days. On 6 November 1999 the period was extended for a further six days by the Diyarbakır State Security Court.
25. In his statement to the police dated 10 November 1999, Cemal Uçar acknowledged his involvement in Hizbullah activities in Diyarbakır.
26. On 11 November 1999 the Diyarbakır State Security Court ordered his detention on remand. Cemal Uçar was then transferred to Diyarbakır Etype prison.
27. After being transferred to Diyarbakır E-type prison, the applicant was placed in a cell where he remained for eleven days.
28. On 24 November 1999 Cemal Uçar died in Diyarbakır E-type prison.
29. In a letter dated 27 September 2000, the applicant’s representatives informed the Court that the applicant believed that police officers had killed his son. In their submissions of 15 September 2005, the representatives claimed that Cemal Uçar could have been killed by other inmates of the ward where Cemal Uçar had been detained.
30. On 24 November 1999 during the regular morning inspection, at around 8.15 a.m., Cemal Uçar was discovered by prison officers hanging from a bunk bed by a belt in ward no. 1 in Diyarbakır E-type prison. The prison officers called the prison doctor who established that Cemal Uçar was dead. They drafted a report immediately after the incident which stated that Cemal Uçar had been hung by a belt. They then informed the prison director and his deputy.
31. On the same day, at 9.30 a.m., the public prosecutor, the prison director, his deputy and one prison officer prepared a further report describing the ward in which the applicant’s son had died.
32. At 11.30 a.m. a further report was drafted by technical police officers from the Diyarbakır Security Directorate.
33. Subsequently, an autopsy was carried out on the deceased. According to the autopsy report, no indication of ill-treatment, such as scars or bruises, was identified on the corpse. The report revealed that the cause of death was mechanical asphyxia resulting from suspension.
34. On the same day, statements were taken from the three prison officers who had found the body of Cemal Uçar and from the two other inmates of the ward in which Cemal Uçar had been found dead.
35. On 2 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute, finding that Cemal Uçar had committed suicide and that there was no offence to prosecute.
36. On the same day, the public prosecutor at the Diyarbakır State Security Court issued an additional decision not to prosecute in respect of the charges against Cemal Uçar, given the latter’s demise.
37. The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, may be summarised as follows.
38. The following information is disclosed in the documents submitted by the Government.
39. The applicant maintained before the Diyarbakır public prosecutor that his son had been abducted, that he did not know whether the persons who had abducted his son had been police officers and that he feared for his son’s life.
40. The Diyarbakır public prosecutor informed the security directorate of the alleged abduction of Cemal Uçar and requested that an investigation be conducted into his disappearance.
41. On 22 November 1999 the Diyarbakır public prosecutor sent letters to the public prosecutor’s office in Nusaybin, the Security Directorate, the Gendarme Command and the Population Office in Diyarbakır, requesting these offices to conduct an investigation and transmit certain information regarding Cemal Uçar.
42. On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır AntiTerror Branch, and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court.
43. By a further letter dated 29 November 1999, the deputy chief of police in Diyarbakır notified the Diyarbakır public prosecutor that on 24 November 1999 Cemal Uçar had committed suicide in Diyarbakır Etype prison.
44. On 10 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute in respect of the applicant’s allegations, finding that Cemal Uçar had been taken into police custody and, consequently, no offence had been committed or offender sought. On 23 December 1999 the decision of 10 December 1999 was served on the applicant.
45. In his statement to the police dated 10 November 1999, Cemal Uçar acknowledged his involvement in Hizbullah activities in Diyarbakır.
46. On 2 November 1999, following his arrest, Cemal Uçar was taken to the Diyarbakır State Hospital and examined by a doctor who noted the following:
“An abrasion on the nose, scars on the right wrist, right hand and left foot, an oedema on the right foot and injuries to various parts of the body have been identified...”
47. On 11 November 1999 Cemal Uçar, along with nine other persons, was taken to a medical expert in a health clinic in Diyarbakır who noted that none of the ten persons had sustained any injuries.
48. On 11 November 1999 Cemal Uçar requested to be placed in the same prison ward as the other persons who were charged with membership of the Hizbullah.
49. According to two reports drawn up by prison officers, on 24 November 1999, during the regular morning inspection at around 8.15 a.m., Cemal Uçar was discovered by prison officers hanging from a bunk bed by means of a belt. The prison officers called the prison doctor who established that Cemal Uçar was dead. They then informed the prison director and his deputy.
50. On 24 November 1999, at 9.30 a.m., the public prosecutor, the prison director, his deputy and a prison officer prepared a further report describing the ward in which the applicant’s son had died. According to this second report, there were six bunk beds in the 36 m² ward where Cemal Uçar was kept. One of these six beds was turned upright so that it could be used as a wardrobe. The deceased was hanging from the upright bunk bed by a blue belt. There were two pillows, a bottle of water and two glasses placed under his feet. There was no sign of a struggle in the ward, such as broken objects or traces of blood.
51. At 11.30 a.m. a report was drafted by technical police officers from the Diyarbakır Security Directorate. They established that Cemal Uçar had committed suicide by hanging himself from a bunk bed, positioned vertically, by means of a black belt. They took photographs of the scene of the incident, drew a plan and filmed the ward with a video camera.
52. An autopsy was carried out on the deceased at Diyarbakır State Hospital by Dr Lokman Eğilmez, the director of the Diyarbakır Forensic Medical Branch Office. According to the examination of the body and autopsy report, no indication of ill-treatment, such as scars or bruises, was identified on the corpse. At the end of the examination, Dr Lokman Eğilmez concluded that the cause of death was mechanical asphyxia resulting from suspension.
53. According to the documents submitted to the Court, the prison officers testified that Cemal Uçar had taken breakfast at around 6.45 a.m. and that at around 8.15 a.m. they had found him dead during the inspection of the ward. One of the officers stated that the other inmates were asleep when they arrived at the scene of incident. The officers stated that they then informed the prison authorities. The two inmates stated that they had been woken up at around 8 a.m. by a noise in the ward and had found that Cemal Uçar had hung himself and that prison officers had been in the ward. They both testified that Cemal Uçar had been depressed and had talked about killing himself prior to his death. They affirmed that Cemal Uçar had talked about his previous suicide attempts during his detention in police custody.
54. On 2 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute, finding that Cemal Uçar had committed suicide and that there was no offence to prosecute.
55. On the same day, the public prosecutor at the Diyarbakır State Security Court issued an additional non-prosecution decision in respect of the charges against Cemal Uçar, given the latter’ demise.
56. The following information appears from documents submitted by the applicant.
57. In his petition dated 11 October 1999 addressed to the public prosecutor at the State Security Court, the applicant submitted that his son had been arrested by persons claiming to be police officers. He requested the authorities to inform him whether his son had been taken into police custody. On the same day, after having been notified that Cemal Uçar had not been taken into police custody, the applicant lodged a further petition with the public prosecutor’s office in Diyarbakır, requesting the authorities to ascertain the whereabouts of his son.
58. In his second petition dated 26 October 1999, addressed to the Diyarbakır public prosecutor, the applicant repeated his allegation concerning his son’s abduction. The applicant further stated that two plain-clothes police officers had gone to his son’s house two days after the abduction and that, on the same day, a plain-clothes police officer had gone to his house, searching for his son. The applicant contended that he had been unable to obtain information about his son from the Diyarbakır Security Directorate. He requested the public prosecutor’s office to ascertain his son’s whereabouts.
59. In his letter, Mr Ensaroğlu informed the Minister of the Interior of the disappearance of Cemal Uçar and requested that an investigation be conducted.
60. In his statements to the public prosecutor, Cemal Uçar claimed that he had been kidnapped and taken somewhere close to the Diyarbakır prison. There he had been tortured by the kidnappers, who said they were working for Mahmut Yıldırım, an individual also known as “Yeşil”, who carried out unlawful acts in the south-east in the 1990s and whose activities were allegedly known to the police and the Turkish intelligence service. He denied the truth of the statements taken from him by the police. He maintained that he had been forced to sign them.
61. In his statements before the Diyarbakır State Security Court, Cemal Uçar repeated the statements that he had made to the public prosecutor.
62. According to the report drafted at 5.45 a.m. on 2 November 1999 about the search conducted in Cemal Uçar’s house, the house was searched in the course of a police operation carried out against the Hizbullah and seven books were found. This report was signed by eight police officers and Cemal Uçar.
63. Mr İ. Sağlam stated that Cemal Uçar sent a letter to his family, informing them that he had been taken into police custody and, subsequently, detained in Diyarbakır E-type prison. After having received the letter, the applicant went to the prison and saw his son. Subsequently, he asked Mr İ. Sağlam to visit his son. On an unspecified date, Mr İ. Sağlam visited Cemal Uçar, who maintained that he had been kidnapped by security forces and that he had made statements before the public prosecutor about his abduction. Cemal Uçar refrained from informing the public prosecutor about the place where had been kept for almost a month as he feared for himself and his family. Mr İ. Sağlam further stated that he did not have the impression that Cemal Uçar was disturbed psychologically. However, he had feared the possibility of being taken to the security directorate again.
64. Two reports were prepared on behalf of the applicant by Dr A.M. Anscombe, a consultant forensic pathologist practising in the United Kingdom. The applicant instructed Mr Anscombe to review the autopsy report on Cemal Uçar, the police reports on the inspection and verification of the scene of the incident, the plan of the ward, the video and photocopies of photographs of the scene, with the deceased in situ, and to comment on the adequacy of the autopsy examination.
65. In his reports Dr Anscombe maintained that his main criticism was the absence of autopsy photographs. He stated that autopsy photographs were a standard part of any forensic post-mortem examination since without photographs, one was reliant upon the description by the pathologist and there was no other means of corroborating what the pathologist had found or described. He further maintained that the autopsy report would be considered to be inadequate in the United Kingdom because of its brevity and lack of detail. As regards the cause of death of Cemal Uçar, Dr Anscombe stated that there was nothing in the disposition of the body, the manner of dress, and disposition of the scene which raised suspicion of anything other than suicide. He however opined that it was possible that the deceased could have been suspended by another person or persons, the assessment of which likelihood in turn rested on the accuracy and reliability of the autopsy report. He concluded that that was why an adequate autopsy description with documentation, including photographs, was so important.
66. At the time of the events, Turkish law did not contain any provision regulating communications between persons held in custody and their relatives.
On 6 February 2002 the third paragraph of Article 128 of the Code of Criminal Procedure was amended by Law no. 4744 and currently reads as follows:
“When a person is arrested, following the public prosecutor’s decision, a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period.”
67. A description of the other relevant domestic law at the material time may be found in the judgments of Tekdağ v. Turkey (no. 27699/95, §§ 4051, 15 January 2004), and Akdoğdu v. Turkey (no. 46747/99, §§ 28 and 29, 18 October 2005).
VIOLATED_ARTICLES: 13
2
5
8
VIOLATED_PARAGRAPHS: 2-1
5-3
5-5
8-1
NON_VIOLATED_ARTICLES: 14
2
3
38
5
6
NON_VIOLATED_PARAGRAPHS: 2-1
5-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-126912
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KLYUKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1961 and lives in Moscow.
6. On 16 April 2006 the applicant was arrested on suspicion of having committed a burglary together with K., his underage son, and S., also a minor. His flat was searched. He was brought to a temporary detention centre, where he was held until 18 or 19 April 2006 (the parties disputed the relevant date). He received very little food and water and did not have access to medical assistance. During that period he was questioned on several occasions in the absence of a lawyer and beaten up by police officers, who wanted him to confess. According to the applicant, his lawyer’s signature was later added to the transcript of his questioning.
7. On 18 April 2006 the Moscow Tushinskiy District Court authorised the applicant’s pre-trial detention. In particular, the court noted as follows:
“Pursuant to the materials submitted, [the applicant] is charged with criminal offences entailing a custodial sentence exceeding five years, he is not officially employed and, if released, might abscond. Furthermore, the court discerns no grounds rendering possible the imposition of a less strict restrictive measure.”
8. The applicant remained in custody pending investigation and trial. The District Court extended his detention on 14 June and 29 November 2006 and 27 February 2007. The applicant did not appeal against those decisions.
9. On 14 June 2006 the District Court opened the trial. The applicant was represented by State-appointed counsel.
10. On 12 March 2007 the District Court found the applicant guilty as charged and sentenced him to five-and-a-half years’ imprisonment. On 14 May 2007 the Moscow City Court upheld the applicant’s conviction on appeal.
11. From 18 or 19 April 2006 to 13 June 2007, the applicant was detained at remand prison no. IZ-77/3 in Moscow.
12. The Government’s submissions as regards the conditions of the applicant’s detention in remand prison no. IZ-77/3 can be summarised as follows:
13. All the cells were equipped with a ventilation system ensuring adequate fresh air circulation. Each cell had two windows measuring 0.89 x 0.94 metres covered with metal grilles that had 50 x 50 millimetres openings. The grilles installed did not prevent access to natural light. The windows had small vents which could also be kept open to ensure access to fresh air. The electric lighting was constantly on. From 6 a.m. to 10 p.m. four 40-watt electric bulbs were used. For the rest of the time two 40-watt electric bulbs were used.
14. The toilet in each cell was separated from the living area by a 1.7metre high brick wall and a door. The distance between the toilet and the dining table was 2 metres. There was a sink with hot and cold running tap water.
15. The inmates were allowed at least an hour’s daily outdoor exercise in designated exercise areas measuring 33 square metres on average. The exercise areas were covered with steel mesh, with openings measuring 20 x 20 centimetres. The mesh did not prevent access to natural light or fresh air.
16. The applicant accepted the Government’s submissions in part concerning cell measurements and the number of sleeping places. He challenged the data submitted by the Government as regards cell population. According to the applicant, at all times the cells were severely overcrowded. The number of inmates was two to three times as high as the cells’ design capacity. The number of sleeping places was insufficient and the inmates had to take turns to sleep. In particular, in cells nos. 401 and 411 there were from 30 to 50 inmates detained together with the applicant; cell no. 704 housed from 5 to 20 inmates. The applicant did not contest the information submitted by the Government in respect of the number of inmates detained in cell no. 309.
17. There was no ventilation system in any of the cells. The electric lighting was insufficient. The glass panes were missing from the windows and it was extremely cold in the winter and extremely hot in the summer. The windows were covered with several layers of metal grilles and bars which prevented access to natural light. Nor was there running hot water.
18. The applicant was allowed outdoor daily exercise in the specially designated areas only during the period of his detention in cell no. 309, in other words from 16 May to 13 June 2007. For the rest of the time he was taken outdoors to a semi-circular area measuring from 20 to 25 square metres. However, in view of the large number of inmates brought to that area, it was impossible to exercise or walk around. The applicant did not have winter clothes and was not allowed to exercise outdoors during the winter.
19. In cells nos. 401 and 411 the toilet was not separated from the living area of the cell. The cells were infested with lice, bed bugs and other insects. The toilet was foul smelling. No bed linen was provided. The only mattresses provided were dirty, covered with blood stains and infested with lice. Sometimes detainees suffering from tuberculosis, hepatitis and AIDS were placed in the cell. The food was of a very low quality. The library was closed. Nor were the inmates provided with board games.
20. From 24 April to 16 May 2007 the applicant was admitted to the hospital at remand prison no. IZ-77/1 in Moscow. He claimed that he did not receive proper medical assistance there.
21. The time frame of the applicant’s detention in correctional colonies nos. IK-5 and IK-16 in the Nizhniy Novgorod region where the applicant served a prison sentence can be presented as follows:
22. According to the Government, from 5 to 9 September 2007 the applicant was held in the colony’s hospital, in ward no. 2 measuring 23.3 square metres and equipped with eight beds. From 10 September to 7 November 2007 and from 16 April 2008 to 2 July 2008 the applicant was held in ward no. 3 measuring 23.3 square metres and equipped with ten beds. The Government did not specify the number of inmates detained there. The wards were equipped with a ventilation system. The windows in the wards ensured adequate access to daylight. They were not covered with grilles or shutters. The electric lighting was adequate. The bathroom was located outside the ward. Both the hospital and the transit area of the correctional colony had outdoor exercise areas.
23. According to the applicant, upon arrival to the hospital on 5 September 2007, he was placed in disciplinary cell no. 2 measuring 20 sq. m. since there were no beds available in ordinary wards. The toilet was located some 1 metre away from the dining table. He was transferred to hospital ward no. 3 only on 10 September 2007.
24. Disciplinary cell no. 2 was infested with insects and rats. The walls were dirty. The windows there were covered with metal grilles. The mattresses were dirty and covered with blood. No bedding was provided. It was impossible to sleep in those beds because of metal springs sticking out. The lighting there was insufficient. Ward no. 3 was much cleaner than the disciplinary cell. There were no metal grilles on the windows. The lighting was sufficient.
25. The applicant was provided with an individual bed at all times. The food was scarce and of a very low quality. During the night the applicant was unable to sleep because of hunger. He spent nights in the bathroom reading the bible. The bathroom was in a satisfactory condition. The number of inmates detained together with the applicant sometimes was twice as high as the number indicated by the Government. The applicant was not allowed any outdoor exercise.
26. Without indicating specific time periods, the Government submitted the following information as regards the number of inmates detained together with the applicant in correctional colony no. IK-16 in the Nizhniy Novgorod region:
27. The living premises in the colony were equipped with a ventilation system. The inmates could also open vents in the windows to ensure access to fresh air. The windows were not covered with metal bars or grilles. The electric lighting in the dormitories was sufficient. The sanitary area in each unit was equipped with five toilets separated by one-metre high non-transparent screens.
28. The inmates were able to partake in outdoor exercise in areas adjacent to blocks 1 and 2 measuring 70 and 274 square metres respectively.
29. The applicant did not challenge the veracity of the Government’s submissions concerning the surface area of the dormitories in correctional colony no. IK-16 at the time of his detention there. He claimed, however, that the number of inmates assigned with him to the dormitories was much higher than the figures provided by the Government. According to the applicant, the beds in the dormitories were arranged in three-tier bunks offering very little personal space to the inmates. His bed was located near the window and he could read easily during the day time. In the evening, however, the electric light was insufficient for reading. The hygienic conditions of the dormitories were also poor due to the large number of detainees assigned to them. The dormitories were equipped with a ventilation system. The windows were not covered with metal grilles. The bathrooms located were in satisfactory conditions. The applicant had sufficient opportunity for an outdoor exercise.
30. On 30 November 2009 the Lyskovo District Court in the Nizhniy Novgorod Region released the applicant on parole. The court noted, inter alia, that the applicant demonstrated his remorse for the crimes he had committed and regretted them.
31. The applicant appealed, claiming that he had never admitted that he had actually committed the crimes he had been convicted of and that the District Court had erred in stating the contrary in the decision of 30 November 2009.
32. The parties did not inform the Court of the outcome of the appeal proceedings.
33. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Moreover, detainees should be given, free of charge, sufficient food for the maintenance of good health in line with the standards established by the Government of the Russian Federation (section 22 of the Act).
34. Article 99 of the Russian Code on the Execution of Criminal Sentences of 8 January 1997, as amended, provides that the personal space allocated to each individual in a dormitory should be no less than two square metres. Inmates are to be provided with individual sleeping places, bed sheets, toiletries and seasonal clothes.
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-82038
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DYULDIN AND KISLOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Christos Rozakis
TEXT: 7. The applicants were born in 1944 and 1948, and live in Penza. At the material time the first applicant was a trade-union leader, the second applicant a journalist. They also co-chaired the Penza Regional Voters' Association “Civic Unity” (Grazhdanskoye yedinstvo).
8. On 15 August 2000 the Co-ordination Council of the Penza Regional Voters' Association Civic Unity adopted at its meeting the draft text of an open letter, entitled “Media coverage of the reforms of President Putin in the Penza Region” (“Informatsionnoye obespecheniy reform Prezidenta V.V. Putina v Penzenskoy oblasti”).
9. On 16 August 2000 the text was discussed at a round table attended by the applicants, the editors-in-chief of local newspapers and journalists. The draft was amended and elaborated. The discussion concluded with the adoption of the open letter by the Co-ordination Council of Civic Unity and managers of the independent media in the Penza Region to the President of the Russian Federation, the Security Council of the Russian Federation, the Journalists' Union of Russia, the plenipotentiary representative of the President for the Volga Federal District, and the Minister for Press and Information of the Russian Federation. The open letter was signed by the applicants and four editors-in-chief.
10. On 24 August 2000 the Novaya birzhevaya gazeta newspaper published the open letter on its front page. The relevant extracts of the letter, translated from Russian, read as follows:
“We (authors of the open letter) subscribe to various political views but are unanimous in our support of the President's drive to curb corruption in the country, bring order to the economy, and assert the rule of law and democratic standards in all sectors of society. We have gathered at the round table because of our common concern for the fate of the President's reforms in the Penza Region. The Penza Region is gradually transforming into a private holding controlled by Governor V. Bochkaryov and his close circle ... [emphasis added, see below]
Today we (the independent media) embarrass the regional authorities because we openly disagree with the selfish and destructive policy of the governor and his team, we publish materials denouncing bribe-takers and officials who abuse their position ...
Once again, as in early 1991 when the [Communist] Party's nomenclature feared their imminent dismissal, the regional authorities have started reprisals against the independent media. Journalists are subjected to threats and beatings, our publications are prohibited from being printed and distributed in the region ...
On the other side – the independent media, whose attempts to stand for the rule of law, human rights, to talk about bringing order to the economy and to expose corruption are routinely suppressed by the governor and his acolytes ...”
11. The remainder of the open letter harshly criticised the Governor of the Penza Region personally and contained allegations of serious wrongdoings.
12. On 3 February 2001 twelve members of the Penza Regional Government lodged a civil action with the Leninskiy District Court of Penza for the protection of their honour, dignity and professional reputation and for compensation for non-pecuniary damage allegedly sustained as a result of the publication of the open letter. They named the applicants and other signatories to the letter, as well as the newspaper that published it, as co-defendants.
13. On 3 March 2001 the original plaintiffs were joined by fourteen other members of the Penza Regional Government with identical claims.
14. On 30 March 2001 one of the original plaintiffs, Mr D., withdrew his claim. Speaking to the Novaya birzhevaya gazeta newspaper, he described the proceedings as “an attempt to bring the media under control”. In April 2001 Mr D. was dismissed from his position in the Government.
15. The applicants brought a counterclaim against the plaintiffs, alleging that they had violated civil-service law in that they had used their official position to discredit and adversely affect the functioning of the Civic Unity association. The applicants claimed compensation for non-pecuniary damage allegedly caused by a violation of their rights and freedoms, in particular, the right to freedom of opinion guaranteed by the Constitution.
16. On 15 May 2001 the Leninskiy District Court of Penza gave judgment. It carried out at the outset a detailed analysis of federal and regional laws on the structure of the Penza Regional Government and reached the following conclusion on the plaintiffs' standing in the defamation suit:
“... any State official in the Penza Region wields a certain power and authority that is essential to the performance of his functional duties; hence, he falls into the category of 'regional authority'. Considering that the 'regional authority' is made up of individuals, that is, State officials, the term 'regional authority' applies to each plaintiff who is, by virtue of his position, a State official in the Penza Region.
The words 'the close circle of Governor Bochkaryov', 'the governor's acolytes', and 'the governor's team' used in the impugned publication are – in the court's opinion, and despite the defendants' and their representatives' assertions to the contrary – applicable to all State officials [working in] the executive body of the Penza Regional Government and, therefore, to the plaintiffs.”
17. The District Court then examined the truthfulness of the applicants' statements referring to the “destructive” policy of the governor's team. It found that the applicants had not used any “scientific methodology for a comprehensive assessment of the social and economic development of the region” for the preparation of the open letter and that their evaluation had been entirely based on their personal views. The court rejected the statement by Mr D. on the economic decline in the Penza Region in 2001 because he had been dismissed from the Government and therefore, in the court's opinion, he was on the defendants' side. The court concluded that the statements referring to the “selfish and destructive policy” were untrue.
18. Likewise, the District Court found no evidence to support the statements referring to the persecution of journalists in the Penza Region. It pointed out that one of the signatories, the editor-in-chief of a local newspaper, could not prove that an attack on one of his journalists had been politically motivated. In the court's opinion, the fact that certain members of the Government had put pressure on local officials to subscribe to the newspapers controlled by the governor to the detriment of all others was lawful and could not be interpreted as “prohibition on distribution”.
19. The District Court held that the extracts of the open letter bold-faced in the text above were not true and damaged the honour and dignity of the plaintiffs as the members of the Penza Regional Government. It ordered that all the plaintiffs be jointly compensated for non-pecuniary damage: the defendant newspaper was to pay 50,000 Russian roubles (RUR) and each of the applicants and four of their co-defendants was to pay RUR 2,500. The court also ordered the defendant newspaper to publish a rectification.
20. The District Court dismissed the applicants' counterclaim on the ground that the plaintiffs had exercised their right to a court and, therefore, had not violated any of the applicants' rights.
21. On 24 July 2001 the Penza Regional Court examined an appeal by the applicants and upheld the judgment of 15 May 2001.
22. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
23. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.
24. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7).
VIOLATED_ARTICLES: 10


ITEMID: 001-93783
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DUPIN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The person stated as the applicant in the application form, Mr Vladimir Dupin, was a Croatian national who was born in 1943. Mr J. Janković and Mrs I. Gerovac, advocates practising in Karlovac, claimed to have represented him before the Court. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The application was lodged with the Court on 31 October 2003 in the name of Mr Vladimir Dupin. Enclosed with the application form was the power of attorney dated 30 October 2003 and signed “Dupin Vladimir” authorising Mr J. Janković and Mrs I. Gerovac to represent him before the Court. The power of attorney was also signed by Mr Janković and Mrs Gerovac and stamped with their stamp.
By a letter of 7 February 2007 the Registry informed the Government and Mr Vladimir Dupin’s representatives that on 6 February 2007 the President of the First Section had decided to give notice of the application to the Government.
On 30 April 2007 the Government submitted their observations. On 17 December 2007 Mr J. Janković submitted observations in reply in the name of Mr Vladimir Dupin.
By a letter dated 30 September 2008 Mr Vladimir Dupin’s wife Mrs Milka Dupin submitted claims for just satisfaction in the case. The letter was signed “For the Dupin family: Milka Dupin”. On 5 November 2008 the Government submitted their comments on the claims for just satisfaction.
In her further letter dated 17 November 2008, Mrs Milka Dupin mentioned, inter alia, that her husband had “passed away a few years ago”.
By a letter dated 9 December 2008 the Government informed the Court that Mr Vladimir Dupin had died on 13 March 2003, that is, before the application had been lodged with the Court on 31 October 2003. As proof, the Government enclosed his death certificate with their letter.
In his reply of 12 January 2009, Mr D. Lančić, an advocate practising in Zagreb, acting on behalf of Mrs Milka Dupin, informed the Court that she, as Mr Vladimir Dupin’s universal legal heir, intended to take over the proceedings instituted before it by her late husband. The power of attorney authorising Mr Lančić to represent her in the proceedings before the Court as well as the decision of the Karlovac Municipal Court of 17 December 2004 naming her as Mr Vladimir Dupin’s sole heir, were enclosed with the letter.
Section 29 of the former Yugoslav Basic Property Act of 1980 (Zakon o osnovnim vlasničkopravnim odnosima, Official Gazette of the former Yugoslavia nos. 6/1980 and 36/1990 – “the 1980 Basic Property Act”) prohibited the acquisition of ownership of socially-owned (društveno vlasništvo) property by adverse possession (dosjelost).
When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991(Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima, Official Gazette no. 53/1991 of 8 October 1991), Parliament repealed that provision.
Subsequently, the new Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/1996 of 28 October 1996, which entered into force on 1 January 1997 – “the 1996 Property Act”) provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the period for acquisition of ownership by adverse possession of socially-owned immovable property.
Following several petitions for constitutional review (prijedlog za ocjenu ustavnosti), on 17 November 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) abrogated section 388(4) of the 1996 Property Act as unconstitutional (decision nos. U-I-58/1997, U-I-235/1997, U-I-237/1997, U-I-1053/1997 and U-I-1054/1997 of 17 November 1999, Official Gazette no. 137/99 of 4 December 1999).
On 21 June 1999 Mr Vladimir Dupin brought a civil action against the State in the Karlovac Municipal Court (Općinski sud u Karlovcu), seeking a declaration of his ownership of a certain plot of land and its registration in his name in the land register. He submitted that the property at issue had been in his possession and the possession of his family since 1903. Relying on section 388(4) of the 1996 Property Act, he claimed that he had ex lege become its owner by adverse possession despite the fact that the land was socially owned.
On 17 December 2001 the Karlovac Municipal Court gave judgment for the plaintiff. It held that he had proved that he and his predecessors had possessed the land in question at least since 1905. However, having regard to the Constitutional Court’s decision of 17 November 1999 abrogating section 388(4) of the 1996 Property Act, the Municipal Court did not take into account the period between 6 April 1941 and 8 October 1991 when calculating the statutory prescribed period for acquiring ownership by adverse possession. Thus, it held that the statutory time-limit had been running between 1905 and 6 April 1941 as well as after 8 October 1991. Given that in the first-mentioned period the plaintiff had been in possession of the land in question for more than 36 years, the court concluded that in that period he had, through his predecessors, already become the owner of the land by adverse possession.
Following an appeal by the respondent, on 2 October 2002 the Karlovac County Court (Županijski sud u Karlovcu) reversed the first-instance judgment by dismissing the action. It held that the Municipal Court had established the facts correctly (continuous possession of the land since at least 1905) but had erred in its application of the substantive law. In particular, the first-instance court should have applied the law applicable in the relevant period, i.e. paragraph 1472 of the Civil Code of 1811, which was applicable in Croatia from 1852 until 1980. As that provision provided that immovable property in State ownership could be acquired by adverse possession only after 40 years, the plaintiff’s claim should have been dismissed.
On 26 March 2003 the Constitutional Court dismissed Mr Vladimir Dupin’s constitutional complaint lodged against the second-instance judgment and served its decision on his representatives on 2 May 2003.


ITEMID: 001-22472
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: L.B. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Finnish citizen born in 1955 and resident in Helsinki.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the single mother of A., born in 1987. On 10 February 1998 A. was placed in public care by an emergency order issued pursuant to section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). The applicant was informed of the public care order only two days later. A.’s situation had been followed by the Helsinki social authorities for some time, following reports received from the police and neighbours. In January 1998 his behaviour had deteriorated significantly, involving uncontrollable aggressive behaviour against his peers.
A. was placed in a temporary reception centre, where the applicant could visit him on a daily basis. The emergency order was extended on 20 February 1998 and on 31 March 1998 the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Helsinki replaced it with an ordinary care order pursuant to section 16 of the Child Welfare Act. The applicant’s appeal against the immediate enforcement of the care order was dismissed on 15 June 1998 by the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa. Her further appeal was dismissed by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 22 September 1998.
Meanwhile, on 22 June 1998 A. left the reception centre with the applicant, who eventually took him to Estonia, where the applicant’s mother was living and where A. began to attend school. Neither the applicant nor A. attended the County Administrative Court’s hearing on 20 August 1998 concerning the ordinary care order but the applicant was represented by counsel. Two witnesses were examined at the Social Welfare Board’s request (i.e. the Acting Director of the reception centre and a psychologist who had examined A. both in the presence and in the absence of the applicant) and three witnesses proposed by the County Administrative Court of its own motion (i.e. A.’s teacher, his school counsellor and his personal assistant in the reception centre). Counsel for the applicant did not propose any witnesses.
The applicant’s appeal was dismissed on 10 September 1998, the County Administrative Court having found, inter alia, that A.’s public care had been justified in order to carry out a complete assessment of his conditions and the extent of psychological assistance required to treat his behavioural disturbance. Although such an investigation would have been possible as an open-care assistance measure, the applicant had refused to co-operate with the social authorities both in that respect and more generally. The applicant’s further appeal was dismissed by the Supreme Administrative Court on 29 March 1999.
On 27 April 1999 the applicant requested the Social Welfare Board to terminate A.’s public care and pay her damages. Her request for termination of the public care was allegedly never examined by the Board, as one of its senior officials considered that the applicant had not adduced any fresh information regarding her conditions.
During a visit to Finland on 25 June 2000 A. was apprehended by customs officials and placed in a children’s home. At meetings with social welfare officials in July 2000 the applicant and A. opposed the latter’s intended transfer to a children’s home in Vantaa, where he was placed by decision of 11 August 2000.
According to the Government, the facts of the case are as follows.
The first report concerning A. had been drawn up already in 1989. A.’s situation had been closely followed in 1992–94 by the Espoo social authorities due to the applicant’s mental problems and difficulties in assuming A.’s upbringing. In June 1993 the applicant had requested that A. be placed in a children’s home but without wishing to discuss the reasons therefor. The authorities had located a place for A. but the applicant had refused to accept it. Neither had she accepted day-care for A. The applicant had failed to attend the meetings agreed on and had failed to be available for home visits. The Helsinki authorities had followed the family situation in 1995-97, having received several reports from neighbours, the police and A.’s school. The applicant had not accepted any help from the social authorities, and had only occasionally been in contact with A.’s school. In March 1997 the social authorities had made an appointment for A. at a child psychiatric clinic, but the applicant had refused to take him there. Nor had she accepted any open-care assistance. During a home visit in December 1997 the social worker had noticed that their one-room flat had contained only a double-bed and one chair with a small table for A.’s homework. In January 1998 his situation had worsened considerably: he had repeatedly behaved in an aggressive manner towards other pupils. The applicant had failed to attend a meeting with the school psychologist to discuss A.’s disruptive behaviour. The applicant having told the social authorities that she would take A. to Estonia if they were not left alone, A. had been placed in emergency care. Social welfare officials had visited the applicant two days later to inform her about the order. It had not been possible to inform her of the care intention at the meeting with the school psychologist on 9 February 1998 because she had failed to attend that meeting.
On 20 February 1998 A.’s emergency care had been extended until 12 April 1998. Assistance in open care had remained impossible because the applicant had rejected all help. In May 1998 A. had been examined by psychologist J.S., who had concluded that he was in need of a living environment with clear and safe limits and needed to learn and find ways to solve conflict situations.
On 22 June 1998 the applicant had taken A. out of the reception centre and had apparently sent him to Estonia alone. The applicant had refused to co-operate with the social welfare authorities and had not revealed A.’s whereabouts and conditions. On 14 and 27 April 1999 she had requested termination of A.’s public care. In its decision of 27 May 1999 – which had been communicated to the applicant – the Board had noted that the normal care order had been finally upheld only one month earlier. The Board had decided to take no measures until the applicant had provided information on A.’s whereabouts and her own conditions, thereby enabling the Board to examine her requests in accordance with the law. To that end, she had been invited to forward any opinions prepared by the Estonian child welfare, school and health authorities, on the basis of which the Finnish authorities would contact them to establish A.’s conditions and decide on his future care.
On 25 June 2000 A. had been apprehended by Finnish customs officials and placed in a child welfare institution. The applicant had failed to attend a meeting to discuss the future implementation of A.’s public care and had refused to inform the officials of his conditions in Estonia. On 21 July 2000 A. had been placed in another child welfare institution after both he himself and the applicant had been heard. The applicant had maintained that there was no need for public care and had refused to inform the authorities of her place of residence. On 11 August 2000 A. had been placed in a family home specialised in the foster care of Russian-speaking children. The applicant, represented by counsel, had objected to A.’s continued public care and had challenged the decisions of 21 July and 11 August 2000 before the Administrative Court and the Supreme Administrative Court which had rejected her appeals on 19 December 2000 and 20 August 2001 respectively.
Meanwhile, on 18 October 2000 the applicant had again requested termination of A.’s public care. The social authorities had asked A.’s foster parents and the headmaster of his school to give their written opinions. On 15 February 2001 the Social Welfare Board had decided to maintain the public care and the applicant had not appealed. The Board had recalled that A.’s public care had been justified in view of the applicant’s difficulties in assuming his upbringing. At no stage had she accepted that A. needed psycho-social examinations and care. Nor had she recognised her own difficulties for which she would need psychiatric help before being able to look after A.
The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001).


ITEMID: 001-104530
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: WEHINGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Ms Edith Wehinger, is an Austrian national who was born in 1947 and lives in Bürs. She was represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s father was a member of the Agricultural Association of Bürs (Agrargemeinschaft Bürs, hereinafter “the Association”). He died in 1984.
The statutes of the Agricultural Association of Bürs of 1969 (“the 1969 statutes”) provided in its § 4 that entitlement to membership would be based, inter alia, on the legitimate descent from a male member. In its § 6, however, the 1969 statutes stated that such membership should be suspended, inter alia, in respect of married daughters for the duration of their marriage (see also “Relevant domestic law” below). The applicant, who is married, did not upon her father’s death in 1984 apply for membership pursuant to § 4 of the 1969 statutes.
In 1993 a woman applied for membership in the Association after her father, being a member of the Association, had died. Her application for membership was rejected as she had been married at the time the application for membership was lodged. She appealed and then filed a complaint with the Constitutional Court. On 12 December 1994 the Constitutional Court held that the provision that membership of women was suspended while they were married was discriminatory on grounds of sex. It also held that, in line with its case-law, the statutes of agricultural associations did not have the legal status of an ordinance (Verordnung) and that the Constitutional Court thus did not have the competence to review such statutes directly. As agricultural associations were public-law entities, their statutes were only binding upon an act of public law by the agricultural authorities, namely authorisation of the statutes. Thus the statutes had to be interpreted in conformity with fundamental rights and the basic principles of the Constitution, such as the principle of non-discrimination. Any provisions of the statutes that were not in line with those principles would have to be treated as null and void ab initio, as provided for in Section 879 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). The agricultural authorities had thus erred when finding that the discriminatory provision, according to which membership of women was suspended for the time they were married, was valid and in force. Their decisions to that effect had thus to be set aside.
Following the decision of the Constitutional Court the Association held a general meeting and adopted, on 15 December 1995, new statutes in order to comply with the Constitutional Court’s ruling. On 9 February 1996 the new statutes were approved by the Agricultural District Authority (Agrarbezirksbehörde) with binding effect as of 15 December 1995. The new statutes provided that the key date for defining current members under the new statute was 12 December 1994. Furthermore, whereas the right to acquire membership remained the same, the suspension of membership of female married persons had been deleted (see “Relevant domestic law” below).
On 27 December 1995 the applicant wrote a letter to the Association in which she applied for membership. On 27 March 1996 she was informed that her application for membership was refused. The reason given was that the new statutes provided that membership by way of succession could only be derived from persons who were members on the key date of 12 December 1994; since the applicant’s father had died in 1984 and thus was not a member on the key date, the applicant could not derive any claim to membership from him.
Meanwhile, being represented by a lawyer, the applicant applied to the Agricultural District Authority on 22 August 1997 to have the rule on the key date set aside. The District Authority turned down the application on 18 November 1997. On 3 December 1997 the applicant appealed to the Regional Land Reform Board (Landesagrarsenat).
On 31 October 2000 the Regional Land Reform Board decided that the applicant (and several persons who had also challenged the statutes of the Association) should be accepted as members of the Association. Whereas the Regional Land Reform Board found that all applicants in the proceedings had failed to submit documentary evidence that they fulfilled all further prerequisites for membership, it found it unjust to refuse membership on those formal grounds.
The Association appealed to the Supreme Agricultural Board (Oberster Agrarsenat). On 5 December 2001, however the Supreme Agricultural Board rejected the Association’s appeal.
The Association thereafter complained to the Administrative Court, which, on 16 October 2003, set aside the decision to accept the applicant’s membership. It held that whilst the applicant had been entitled to become a member under the old statutes which would have had to be interpreted in a non-discriminatory way, she had only applied for membership after the statutes had been changed and according to which she was not entitled to membership. The case was returned to the Supreme Agricultural Board for consideration.
On 5 May 2004 the Supreme Agricultural Board granted the Association’s appeal and rejected the applicant’s application for membership. It held that the application for membership had been made too late and that the rejection of her application was therefore justified.
The applicant complained to the Constitutional Court, which on 4 October 2004 refused to deal with the complaint. The applicant applied to have the case transferred to the Administrative Court.
The Administrative Court dismissed the complaint on 24 November 2005. It held that the Supreme Agricultural Board was bound by the Administrative Court’s decision of 16 October 2003. The Supreme Agricultural Board had decided in the light of that decision. The Administrative Court’s decision was served on the applicant’s counsel on 14 December 2005.
The Agricultural Association of Bürs is situated in the Province of Vorarlberg.
The Vorarlberg Agricultural Land Planning Act (Flurverfassungsgesetz), governing inter alia agricultural associations, defines agricultural associations as follows:
“§ 32
(1) An agricultural association consists of the totality of the respective owners of the real-estate properties to which participation rights in a real-estate property of an agricultural association attach (ancestral real-estate properties), including those persons who are entitled to person (“walzende”) shares.”
An agricultural association has the legal status of a public-law corporation, but is not endowed with the typical sovereign competences; it is thus not a state institution, but an association of private persons. Its tasks are to manage, cultivate, preserve and improve the property of the association. The members of the association, which are those holding shares in the association, have rights and duties vis-à-vis the other members and the property of the association. The rights of members include participation in elections and the right to use the common economic facilities and real-estate properties. The duties include payment of contributions for proper management of the association, and for the construction and maintenance of the common facilities.
A member’s free disposition concerning their shares is largely excluded, and the transfer of ancestral real-estate properties and the transfer by legal transaction of the shares attaching to specific persons are subject to supervision by the agricultural authority.
The 1969 statutes of the Agricultural Association contained the following rules on membership:
“§ 3 Membership
The members of the Bürs Agricultural Association are those persons whose names appear on the list of members on the date of entry into force of the present statutes. ...
§ 4 Acquisition of membership
Membership is acquired by means of entry in the list of members. Entitlement to entry in the list of members, provided that the conditions for actual exercise of the rights of use are met, shall be based on the following grounds:
(a) legitimate descent from a male member (§ 3 ) ...
(b) ...
...
§ 6 Suspension of membership
Membership shall be suspended in the case of:
(a) members who are not habitually resident in the municipality of Bürs;
(b) members’ married daughters, for the duration of their marriage;
...
§ 7 Effects of suspension of membership
For the duration of suspension of membership there is no right to participate in the administration and the use of real property belonging to the Agricultural Association.
...
§ 8 Reinstatement of membership
Once the reasons for suspension of membership no longer apply, membership shall be reinstated, namely with regard to the rights of participation in administration as of the date of a written notice stating that the reasons for suspension no longer apply, and with regard to participation in use [of property] as of the beginning of the following calendar year.
...”
After the amendment of the statutes in 1996 (“the 1996 statutes”), the relevant provisions read as follows:
“§ 3 Membership
The members of the Bürs Agricultural Association are those persons possessing the relevant rights of use whose names, as at 12 December 1994, appeared on the Association’s current list of members, and persons who are admitted as members in accordance with the provisions of the present statutes.
§ 4 Acquisition of membership
1. Membership is acquired by means of entry in the list of members. The requrements for entry in the list of members are:
a) Austrian nationality
b) ordinary domicile at Bürs
c) maintaining one’s own household
d) direct descent form a member (father/mother: son/daughter)
...
§ 6 Suspension of membership
Membership shall be suspended in the case of:
(a) members who are not permanently resident in Bürs;
...”


ITEMID: 001-5595
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LAZAREVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Croatian citizen of Serbian origin, born in 1940 and living in Rijeka, Croatia. He is represented before the Court by Mr Dragan Jovanić, a lawyer practising in Rijeka (Croatia). The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army and in 1991 retired from service. His military pension was assessed to 85% of his average wage, according to his rank and years of service and was paid from the Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.
Two separate proceedings took place, in respect of the decrease in the applicant’s military pension.
Firstly, on 31 December 1992, the Croatian Social Security Fund, Rijeka Office, assessed the applicant’s pension, as from 1 October 1992, at 63,22 % of the amount he had received until December 1991. The applicant appealed against that decision and, after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 18 November 1993.
On 4 June 1994 the applicant lodged a constitutional complaint.
On 3 March 1999 the Constitutional Court dismissed the applicant’s complaint.
Secondly, the applicant lodged a constitutional claim challenging the constitutionality of the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Yugoslav Military Pensions Act) enacted in 1991 and altered several times in 1991 and 1992. On 4 February 1998 the Constitutional Court terminated those proceedings due to the enactment of new laws regulating the same matter.


ITEMID: 001-88065
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BRUTON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Edward Bruton, is a British national who was born in 1964 and lives in Essex. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 1 April 1993. In February 2001 the applicant applied for widows’ benefits. On 13 February 2001 the applicant was informed that his claim had been disallowed. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was cohabiting as from August 1999.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.