ITEMID: 001-90743
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF F.H. v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2;No violation of Art. 3
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 7. The applicant was born in 1956 and is currently in Sweden.
8. On 9 January 1993 the applicant arrived in Sweden and applied to the Immigration Board (Invandrarverket) for asylum and a residence permit, claiming that he had left Iraq due to his fear of Saddam Hussein and his regime. He brought his three children with him (born in 1987, 1988 and 1991, respectively) while his wife arrived in July 1994. At the initial interview held with the applicant on the day of his arrival in Sweden, he stated, inter alia, that he was Christian and had worked as a major in the Republican Guard where he had served in a transport division for heavy vehicles. He had deserted from the army fourteen days previously and had fled to the northern part of Iraq where, with the help of a smuggler, he had managed to get on a plane to Stockholm. He had had neither ticket nor passport and his wife had remained in northern Iraq.
9. In a written submission dated 20 January 1993 the applicant added mainly the following to his initial account. He was born in Basra but had moved to Baghdad in 1986 when he married. Between October 1981 and February 1990, during the war with Iran, he had served in the military and he had been called up again between August 1990 and January 1992, during the occupation of Kuwait, to serve in an armoured transport division assigned to transport tanks. He had been given four military awards for bravery and four medals, however such medals had been given to a large number of officers and soldiers. In October 1992 he had been called upon to carry out military assignments (allegedly murders and terrorist acts) against the Shi’as in Al Ahwar. As he had felt unable to murder his own people, he had deserted and left Iraq on 20 December 1992. In this respect, he submitted that he sympathised with all organisations working against Saddam Hussein and working towards a democratic government. Following his desertion, he had visited his relatives in Basra and then made his way, with his family, to northern Iraq, where he and his children had travelled to Sweden via Turkey with the help of smugglers. Since he had held the rank of major in the reserve and had deserted, he would be executed if he were forced to return to Iraq. Apart from his four medals he also had an identity card as a major which confirmed that he was one of Saddam Hussein’s friends.
10. At a second interview at the Immigration Board, held on 17 September 1993, the applicant confirmed the information provided by him and added, in particular, that he had not engaged in any political activities.
11. On 14 and 15 December 1993 another two in-depth interviews were held with the applicant in which he essentially stated the following. He was Christian and belonged to the Ba’ath Party where he had attained the level of “advanced sympathiser” which was the level before becoming a full member. He had been drafted to the military in October 1981, had become an officer in 1986 and had risen to major in 1990. He claimed that he had never participated in any combat or killed anyone since his military work had mainly consisted of ensuring the functioning of transports and support for the front line. As an officer, he had been placed under the orders of others and thus had never had any influence himself. He had participated in the war against Iran and when this ended in 1988 he had been transferred to an armoured tank division within the Republican Guard. In March 1992 he had received four medals for bravery from the Ministry of Defence. He stated that about 500 officers had received such medals and that they were mainly perceived as an encouragement to the officers. At this time he had also received a special identity card, “Friends of Saddam”, which almost every officer in the Republican Guard and some officers in the regular army received. He had never met Saddam Hussein personally but the card gave certain privileges, inter alia, in contacts with the authorities. During the interview on 15 December 1993, the applicant changed certain statements which he had previously given to the Immigration Board. In particular, he claimed that he had not been called back into service after he left the military in January 1992. Moreover, he stated that he had applied for a visa for a tourist trip to Malta with his family at the Maltese Embassy in Baghdad and that they had received both visas and exit permits for a month. Hence, on 4 October 1992, the family had travelled legally from Baghdad to Jordan and from there by plane to Malta. He and his children had then travelled to Sweden from Malta, with the help of smugglers. The applicant stated that he wished to return to Iraq if Saddam Hussein lost power.
12. One further supplementary interview was held with the applicant on 10 January 1994 in which he maintained that he had left Iraq legally on 4 October 1992 by car to Jordan, after the family had received valid passports, exit permits and visas. He also added that, from Jordan, the family had flown to Cyprus from where they had intended to continue to Greece. Since this had not been possible, they had returned to Jordan before travelling to Malta where they had arrived on 19 October 1992. Since the smugglers had not been able to arrange a passport for his wife, she had had to remain in Malta when the rest of the family went to Sweden.
13. In February 1994 the Swedish Security Police (Säkerhetspolisen) proposed a rejection of the applicant’s asylum request for security reasons. On the basis of this, the Immigration Board decided to transfer the case to the Government for consideration but it recommended that the application be rejected. In its view, the applicant had not convincingly shown that he was in need of protection in Sweden. Although it accepted the applicant’s military background, it did not believe his reasons for leaving Iraq, inter alia, because he had only admitted leaving Iraq legally with his own passport and an exit permit, and the route used, once confronted with facts.
14. Subsequently, in 1997, the Security Police informed the Government that they no longer had any objections to the application from the point of view of security. Hence, the case was transferred back to the Immigration Board.
15. On 11 June 1998 the Immigration Board rejected the application for asylum with reference to its recommendation to the Government and noting that it found no reason to change the evaluation made at that time. Moreover, it dismissed the applicant’s request for a residence permit on the ground that it was not competent to change or repeal a final court judgment concerning expulsion. The Board observed that only the Government could repeal an expulsion order based on a criminal conviction and, in that connection, consider a request for a residence permit.
16. In the meantime, on 2 May 1995, before the asylum application had been determined, the District Court (tingsrätten) of Tierp convicted the applicant of murder and sentenced him to forensic psychiatric care, the duration of which was subject to a medical evaluation. It further ordered that the applicant be expelled from Sweden with a prohibition on returning. The applicant had admitted that he had killed his wife but claimed that he had acted in psychosis and had not intended to kill her. He had suspected that she had been unfaithful and had conspired against him behind his back. In its judgment, the court noted that the applicant, after having locked the door to the children’s room, had repeatedly stabbed his wife while she was asleep. In these circumstances, the court found that the applicant had been completely indifferent as to whether his wife died or not and therefore should be convicted of murder. However, since a forensic psychiatric examination showed that he had committed the crime in a state of “serious mental disturbance” (allvarlig psykisk störning) and was still, during the examination, suffering from such a disturbance, the court concluded that he was in need of treatment and sentenced him to forensic psychiatric care.
17. As concerned the expulsion, the applicant had stated before the District Court that he had been an officer in Saddam Hussein’s army and often away on missions. Because of the war, he and his family had fled from Iraq in 1993 but he had psychological problems stemming from the war.
18. The District Court had also consulted the Immigration Board and it had submitted that, although it had not yet made a decision regarding the applicant’s application for asylum and a residence permit, it considered that there were no impediments to the expulsion of the applicant to his home country. The Board noted that the applicant, an army officer, had left Iraq legally with a valid Iraqi passport containing a one-month exit visa. He had not brought his national passport with him when he entered Sweden. Having regard to the Board’s view and noting that the applicant had committed a very serious crime, the District Court concluded that he should be expelled from Sweden for life.
19. The applicant did not appeal against the judgment which, consequently, gained legal force.
20. It would appear that, following the applicant’s criminal conviction, his children were taken into compulsory public care and placed with a Swedish family. Furthermore, a special guardian was appointed for them and they were granted permanent residence permits in Sweden.
21. On 14 December 2004 the County Administrative Court (länsrätten) of the County of Dalarna decided to end the forensic psychiatric care and to release the applicant.
22. In the meantime, in July 1998, the applicant requested the Government to repeal the expulsion order against him. He insisted that he would be tortured and executed if he was returned to Iraq because he had deserted from the Iraqi army.
23. On 12 November 1998 the Government rejected the request as they found that no special reasons existed for repealing the expulsion order.
24. The applicant renewed his request in February 2001, maintaining his claims. Upon request by the Government, the Migration Board (Migrationsverket) submitted its view on the case, stating that the applicant’s reasons had been examined previously and that no new circumstances had appeared for which reason the enforcement of the expulsion could take place. However, the Board added that there had been practical impediments to enforcement for some time with regard to Iraq.
25. On 17 May 2001 the Government found that there were insufficient reasons for revoking the expulsion order. However, having regard to the situation in Iraq at the time, the Government decided to grant the applicant a temporary residence permit and work permit up until 17 November 2001.
26. In a new application, dated 7 November 2001, the applicant requested that the expulsion order be revoked and that he be granted a permanent residence permit or, in the alternative, that his temporary residence permit be extended for at least one year.
27. The Migration Board submitted its comments on the case on 12 December 2002, concluding that there were no legal or practical impediments to the enforcement of the expulsion order and that the applicant should be able to return to Iraq.
28. Following the fall of Saddam Hussein’s regime in April 2003, the Migration Board sent another submission to the Government on 17 November 2003 where it noted that the applicant’s case now had to be seen in another light. His reasons for fearing a return to Iraq had been removed now that Saddam Hussein was no longer in power. The Coalition Provisional Authority governing Iraq at the time was striving to build up a society characterised by democracy and respect for human rights and those who had been close to the old regime and who had committed war crimes and other crimes against humanity would be brought to justice. Thus, the Board considered that the applicant would not risk being tortured or treated inhumanely if sent back to Iraq and consequently there was no impediment to his expulsion.
29. In reply, the applicant claimed that since he had been an officer in the Republican Guard, he would be exposed to persecution and acts of revenge from primarily Shi’a Muslim groups and that there was no functioning legal system or police force which could give him protection against abuse. It followed that there existed impediments to the enforcement of his expulsion.
30. Since the Government had several pending cases concerning expulsion to Iraq, they requested the Iraq Office at the Swedish Embassy in Jordan to reply to some questions relating to the situation in Iraq.
31. In November 2004 the Iraq Office sent, inter alia, the following information to the Government, which was communicated to the applicant. In August 2004 the death penalty was reintroduced in Iraq for offences such as murder, kidnapping and crimes against national security. Moreover, according to the Iraqi Penal Code of 1969, a person who had been convicted or acquitted by final judgment in another country could not be retried in Iraq. However, it was not known whether this provision had been modified or changed by the Interim Government. Furthermore, it was difficult to assess “tribal justice” in Iraq due to the poor security situation in the country but it was possible that, if a person were to return to an area where he was known and his victim was also known, there could be a risk of revenge or “tribal justice”. It was further noted that there were reports of harassment against Christians and that attacks had been directed against Christians and other minorities during 2004.
32. The applicant commented on the information and stressed that he was Christian and that the Christian minority in Iraq was being persecuted. Moreover, he had held a prominent position in the Ba’ath Party, had belonged to the exclusive circle that had been given the “Saddam’s Friends” identity card and he was well known and hated by many. Thus, it was certain that he would be killed if returned to Iraq.
33. On 21 March 2005 the Minister of Justice at the time decided to suspend the enforcement of the expulsion order until otherwise decided or until the Government made a final decision on the case. He further decided that the applicant should report to the police three times per week in order to prevent him from going into hiding.
34. Subsequently, the Government requested the Iraq Office at the Swedish Embassy in Jordan to reply to some supplementary questions relating to the situation in Iraq, which it did on 3 November 2005. In its reply it noted that, at the time, it was very difficult to obtain a complete overview and clear information about Iraq. Still, it observed that persons who had been part of the Republican Guard, other special military units or the military in general were being arrested and tried in Iraq. According to sources such as the UNHCR, the activities of these persons within their organisation determined how they were being treated more than to which military unit they had belonged. However, their position and military rank was of relevance as an indication of who could be targeted. In this context it was noted that members from special units, such as the Republican Guard, were being re-employed into the current special units. Moreover, the UNHCR had stated that even though many Iraqis were harassed as a result of their former membership of the Ba’ath Party, this harassment did not necessarily amount to persecution. A careful individual assessment was always necessary.
35. The applicant, in a comment on the Iraq Office’s information, maintained that there was a real risk that he would be subjected to extrajudicial execution if returned to Iraq due to his previous connections to Saddam Hussein’s regime.
36. On 27 June 2006 the Migration Board submitted its opinion on whether the reintroduction of the death penalty in Iraq in 2004 had an impact on the enforceability of the applicant’s expulsion order. It considered that none of the information submitted by the applicant, in his detailed asylum interview in 1993 and later, regarding his position and activities until he left Iraq in 1992, indicated that he would risk legal measures, least of all the death penalty, from the current Iraqi government. Neither his membership of the Ba’ath Party nor his relatively subordinate position in a non-combat unit were likely to cause him problems with the Iraqi authorities upon return to his home country. Thus, there were no impediments to the enforcement of the expulsion order.
37. On 6 July 2006 the Government decided not to revoke the expulsion order and rejected the applicant’s request for a residence permit. It found that there was neither any impediment to the enforcement of the expulsion nor any other special reason under the Aliens Act to revoke the expulsion order.
38. As the expulsion order had become enforceable anew, the police authority, on 27 July 2006, detained the applicant awaiting the enforcement of his expulsion order.
39. On 15 August 2006 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his expulsion to Iraq. He alleged that he would be executed or tortured and imprisoned if returned to his home country because he had been an officer during Saddam Hussein’s regime and had belonged to his “inner circle”. Moreover, since he was Christian, he risked persecution on religious grounds.
40. On 17 August 2006 the Court decided to apply Rule 39 and to suspend the expulsion until 1 September 2006 in order to obtain some further information from the Swedish Government. In particular, the Government were requested to give their opinion on whether the applicant would risk being brought to trial before the Supreme Iraqi Criminal Tribunal (hereafter referred to as “the SICT”) and sentenced to death.
41. On the following day, the Minister of Justice at that time decided to suspend the expulsion of the applicant until further notice. He also decided to keep the applicant in detention since there was reason to believe that he would otherwise try to abscond. The detention decision was reconsidered every two months until 29 June 2007, when it was decided that he should be released and that he should report to the police twice a week.
42. In the meantime, on 31 August 2006, the Government replied to the Court’s request. They first observed that the SICT had jurisdiction over individuals residing in Iraq accused of war crimes, genocide, crimes against humanity and a number of “political” offences under Iraqi law, including waste of national resources and abuse of position. It applied the penalties available in Iraqi law, including the death penalty. The Iraqi Governing Council had agreed that the SICT should process a limited series of 10 to 15 trials, focusing on major events that showed the geographic and temporal spread of the regime’s crimes, and that only the highest-level perpetrators should be tried before the SICT. Other perpetrators should be tried by regular Iraqi courts.
43. The Government further noted that the applicant’s claim that he had belonged to Saddam Hussein’s inner circle was recent and did not correspond to the detailed statements given by him during the asylum proceedings. They also stressed that the applicant had neither claimed to have committed any crime, nor that he was, or might be, suspected of having committed a crime which fell under the jurisdiction of the SICT. The sole fact that he had held a subordinate position as an officer in the Republican Guard or been a member of the Ba’ath Party did not give reason to believe that he would be suspected of such serious or brought to trial before the SICT.
44. On 1 September 2006 the Court extended the application of Rule 39 until 15 September 2006 in order to enable the applicant to reply to the Government’s comments.
45. The applicant submitted his comments in reply to those of the Government on 13 September 2006. He stated that the Ba’ath Party had been an elite party with only a few full members. He had been an “advanced sympathiser” which meant that he had held a high position in the hierarchy. Moreover, although he had not been in the infantry, he had participated in battle in an armoured unit during the various wars until 1992 when he had left the country because he had been ordered to carry out military actions that were against international law. The Government’s allegation that he had said that he had not been or could not be suspected of crimes under the jurisdiction of the SICT was wrong. The assessment of his application for asylum took place in 1993, at a time when the SICT had not yet come into existence and he had also not been asked about it later. Apart from the risk of being sentenced by the SICT or another jurisdiction, there was a real risk that he would be the victim of an extrajudicial killing. Extremist militias tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or who had fought against the Shi’as in southern Iraq in 1991. The retaliation was collective and directed against all officers who had fought under Saddam Hussein. The applicant also stressed that as a Christian he would be without protection in Iraq and his situation upon return would thus be most serious.
46. On 13 September 2006 the Court extended the application of Rule 39 until 26 September 2006, on which date it was extended until further notice.
47. Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken, 1962:700), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place.
48. Provisions on expulsion on this ground are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter “the 2005 Act”) which replaced the old Aliens Act (Utlänningslagen, 1989:529) on 31 March 2006. However, the rules on expulsion on account of a criminal offence remain the same in substance under the 2005 Act as under the old Aliens Act. Thus, in the following, reference will only be made to the 2005 Act.
49. According to Chapter 8, sections 8 and 11 of the 2005 Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person’s links to Swedish society have been taken into account.
50. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1 of the 2005 Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.
51. A decision to expel an alien on account of having committed a criminal offence is, according to Chapter 12, section 14 § 3(2) of the 2005 Act, enforced by the police authority. If the police authority finds that there are impediments to the enforcement, it shall notify the Migration Board, which shall refer the matter to the Government to examine whether the expulsion can be executed (Chapter 12, section 20 of the 2005 Act). If there are no impediments to the enforcement, the alien shall normally be sent to his or her country of origin or, if possible, to the country from which he came to Sweden (Chapter 12, section 4 of the 2005 Act).
52. According to Chapter 8, section 14 of the 2005 Act, if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen), pardon or reduce a penal sanction or other legal effect of a criminal act.
53. In cases where the expulsion order is not revoked, the Government may still grant a temporary residence permit and work permit. For as long as such a permit is valid, the expulsion order may not be executed (Chapter 8, section 14 of the 2005 Act).
54. In a judgment of 26 February 2007 (MIG 2007:9), the Migration Court of Appeal (Migrationsöverdomstolen) found that, at that time, the security situation in Iraq was very serious but that it did not amount to an internal armed conflict, as defined by international law. Moreover, it noted that it was practically possible to return to Iraq voluntarily and that some Iraqis indeed did so. In these circumstances, an individual assessment of each asylum seeker’s personal grounds for requesting asylum and a residence permit in Sweden had to be carried out. This conclusion has been reiterated by the Migration Court of Appeal on several occasions during the last year (see, for example, MIG 2007:22 and MIG 2007:33). Furthermore, on 24 April 2008, in a leading decision concerning three Christian asylum seekers from Mosul (a mother and her two minor children), the Director-General for Legal Affairs of the Migration Board made the assessment that the general situation for Christians in Iraq, and in the province of Nineve (where Mosul is situated), was not so serious that this group could be considered to be in need of protection in Sweden. An individual assessment had to be made in each case of the reasons invoked by the asylum seeker.
55. On 18 February 2008 the Swedish Government signed a Memorandum of Understanding with the Iraqi Government, whereby the two countries “resolve to cooperate in order to assist the voluntary, dignified, safe and orderly return to and successful reintegration in Iraq of Iraqis now in Sweden”. Although primarily focusing on voluntary returns, the Memorandum also allowed for forced returns of failed asylum seekers.
56. During the regime of Saddam Hussein, Iraq was at war with Iran between 1980 and 1988. In August 1990, Iraq invaded Kuwait, which led to the “First Gulf War”, lasting for six weeks between 17 January and 28 February 1991. Between March and April 1991 the regime suppressed a Kurdish insurgency in northern Iraq and a Shi’a insurgency in the south of the country. In March 2003 the “Second Gulf War” started when US-led multinational forces invaded Iraq and overthrew Saddam Hussein’s regime. The Republican Guard was involved in all of these conflicts. It expanded rapidly during the Iraq-Iran War and comprised the best equipped and trained units among Saddam Hussein’s forces. In May 2003 the Republican Guard, the Iraqi army, the police and the Ba’ath Party were officially dissolved by the Coalition Provisional Authority (hereafter “the CPA”) in a process called the “De-ba’athification” (through CPA Order Number 2 of 23 May 2003). Subsequently, in June 2004 power was transferred from the CPA to the Iraqi Interim Government and, in October 2005, a permanent government was elected by the Iraqis.
57. The Ba’ath Party membership lists have never been found and there is relatively little information about the inner workings of the party and its structure. However, it would appear that membership was originally highly restricted but that the rules were significantly relaxed in the 1990s, leading to a great expansion of the membership in order to bolster stability (International Center for Transitional Justice, Briefing Paper: Iraq’s New “Accountability and Justice” Law, 22 January 2008, hereafter “ICTJ Briefing Paper”). There were several levels of membership (between 6 and 8, depending on the source) and training and probation periods (divided into 3 to 5 levels) were always required before becoming a full member of the party (Ibid. and Landinfo, Baath-partiet. Medlemskapsnivåer og partiorganisasjon [The Ba’ath Party. Membership levels and party organisation], 13 June 2008 – hereafter “Landinfo”). The total number of party members has been estimated to between 1 and 2.5 million (Landinfo). A person who was a “sympathiser” or an “advanced partisan” was not a full member of the Party. Moreover, it would appear that persons who had been in the Ba’ath Party for at least 10 years were called “Friends of Saddam” (UNGA, A/51/496, Note by the Secretary-General, Situation of Human Rights in Iraq, 15 October 1996).
58. The De-ba’athification process was widely criticised as it was seen as a collective punishment while, at the same time, providing impunity for others. Therefore, in January 2008 the Iraqi Parliament passed the Accountability and Justice Act which established a clearer legal framework for dismissals and reinstatements of former Ba’ath Party members and introduced an element of individual responsibility into the process. The law allows for some higher ranking members of the Ba’ath Party to apply for reinstatement (an estimated 30.000 persons) and makes most individuals who have been dismissed eligible for pensions, with the exception of some of the highest part members and those who have been involved in corruption or committed crimes (ICTJ Briefing Paper and International Herald Tribune, Solomon Moore, Uncertainty surrounds new Iraqi De-ba’athification law, 14 January 2008).
59. Holders of high positions in the Ba’ath Party who were suspected of having been close to the old regime and/or taken part in different violent actions could be, and had been, arrested and called to account. It was the person’s own background and the credibility of his or her account that determined the risk of judicial proceedings (Information from the Iraq Office of the Swedish Embassy in Jordan to the Swedish Government, dated 15 March 2007; hereafter “the Iraq Office’s Information”). Hence, in 2003, the Iraqi High Tribunal (IHT, formerly the SICT) was created to try persons accused of committing war crimes, crimes against humanity, genocide and specified offences between 17 July 1968 and 1 May 2003. The IHT had already tried and convicted Saddam Hussein and a few of his closest collaborators. Several of them had been sentenced to death and some to life imprisonment. At least one defendant had been acquitted (US Department of State, Iraq, Country Reports on Human Rights Practices 2007, 11 March 2008; hereafter “US Country Report”).
60. According to the Iraq Office’s Information, for individuals who did not “qualify” for examination by the IHT, there still remained a risk of review by the usual legal system and its criminal courts. The death penalty had been reintroduced in 2004 for, inter alia, crimes against national security, murder, kidnapping and drug trafficking and it was increasingly used. Moreover, in particular in Baghdad, southern and central Iraq, several Shi’a militia groups more or less systematically, and very extensively, sought out people who were guilty of acts of aggression under the former regime. The more well known a person had been as a representative of the former regime, the greater the risk of being discovered and punished.
61. In February 2008 the Iraqi parliament adopted an Amnesty Law which provided a general amnesty for all convicted Iraqis and those accused of crimes but who were still under investigation or trial. It did not apply to persons convicted of very serious crimes such as murder, rape, kidnapping, drug-related crimes and embezzlement (Reuters, Factbox: Iraq’s amnesty and provincial powers law, 18 February 2008). By October 2008 just over 122,000 detainees in Iraqi jails had been released by virtue of the Amnesty law, while roughly 30,000 remained in prison as the law did not apply to them (Iraq Updates, Voices of Iraq, More than 120,000 detainees covered by amnesty law, 12 October 2008).
62. On 29 October 2008 the US military relinquished security responsibility to Iraqi forces of Wasit province, the 13th province out of 18 to be placed under Iraqi control. Only Baghdad and the four Northern provinces remained under US command (Center for Excellence, Iraq Crisis Report, 29 October 2008).
63. The declared state of emergency lapsed in April 2007 and has not been renewed. However, there were reports that law enforcement activities often continued as if the state of emergency was still in effect (US Country Report). Civilians were targeted by attacks by Sunni and Shi’a groups across the country, and there were widespread and severe human rights abuses, including kidnappings, disappearances, torture and killings. The authorities frequently did not maintain effective control over security forces and did not have effective mechanisms to investigate and punish abuse and corruption (US Country Report).
64. In October 2008, the UN Special Representative of the Secretary General for Iraq stated there had been a noticeable drop in violence over the past year and that Iraq had made significant strides towards stability and institution building although the human rights situation continued to be serious (UNAMI press releases 24 October 2008, UNAMI Commemorates the 63rd United Nations Day). According to Iraq Body Count (www.iraqbodycount.org as downloaded on 6 November 2008), civilian deaths in Iraq had gradually decreased since August 2007, with the exception of March and April 2008. Thus, there were 590 civilian deaths in August 2008 and 539 in September 2008, as compared to 2,324 in August 2007 and 1,220 in September 2007. The decrease in civilian deaths has mainly been attributed to the cease-fire declared in August 2007 by Moqtada al-Sadr, the leader of the Mahdi Army (a Shi’a paramilitary force created in June 2003 to fight against the multinational forces). The ceasefire was initially declared for a period of six months but was prolonged and, in August 2008, al-Sadr announced an indefinite ceasefire and stated that anyone in his Mahdi Army who did not follow his order would not be considered a member of his group (United Press International, Sadr declares another ceasefire, 29 August 2008). Moreover, according to Human Rights Watch, violence has abated because Sunni and Shi’a populations have fled from mixed areas and thus have become increasingly divided into geographically distinct communities (Human Rights Watch, World Report –Iraq, 31 January 2008).
65. Another sign of the decrease in violence is the establishment of the World Health Organization’s (WHO) permanent office in Baghdad in June 2008 (UNAMI press release 28 June 2008, The World Health Organization Establishes Permanent Office in Baghdad) and the activities of some 32 humanitarian international NGOs with programmes in Iraq, operating directly or via implementing partners, although the Iraqi Red Crescent Society was the only agency operating openly nation-wide through its 18 branches (Center of Excellence, Iraq Crisis Report, 29 October 2008). Furthermore, several Arab countries, including Bahrain and Kuwait, sent ambassadors to Iraq during September and October 2008 to open their Embassies (Center of Excellence, Iraq Crisis Report, 22 October 2008).
66. The Iraqi Constitution provides for freedom of religion. Passports do not indicate an individual’s religion but the national identity card explicitly notes the holder’s religion. According to the official 1987 census, there were 1.4 million Christians living in Iraq. Although difficult to verify, the Christian Peace Association (CPA), estimated that about 450,000 Christians remained in Iraq at the end of October 2007, most of whom had moved to the northern provinces, although since September 2007 there had been attacks and threats against the community in Kirkuk and Mosul (The Humanitarian News and Analysis Service, IRIN, Iraq: Christians seek new life in Europe, 5 November 2007). The Iraqi Government and religious leaders publicly denounced all incidents of sectarian violence and repeatedly encouraged unity among the country’s religious groups. However, deficiencies in security force capabilities made it difficult for the Iraqi Security Forces and the justice system to investigate or address alleged violations (US Department of State, International Religious Freedom Report 2007 -Iraq, 14 September 2007).
67. Between 4 and 13 October 2008, 12 Christians were killed in Mosul and others were threatened to leave the city. About 11,000 Christians left as a result, although the Iraqi Prime Minister ordered the Iraqi Army and police in the Mosul area to protect the members of the Christian community. On 19 October 2008 security had been restored and the displaced persons were encouraged by the authorities to return. The Organisation of the Islamic Conference, among others, condemned the attacks (US Department of State, Iraq Weekly Status Report, 15 and 22 October 2008, and IRIN, Iraq: Uncertainty over who is behind attacks on Christians, 20 October 2008).
68. Currently there are about 2,700,000 Iraqis displaced within Iraq and over 2,000,000 Iraqis have left the country, most of them for Syria and Jordan (Center of Excellence, Iraq Crisis Report, 22 October 2008).
69. Since March 2003, the UNHCR has advocated recognition of the international protection needs of Iraqis outside their country, and hence a suspension of forced returns, due to the objective situation of armed conflict and generalised violence in Iraq (UNHCR, Strategy for the Iraq Situation, as revised 1 January 2007 and Addenum to UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers, December 2007). In September 2008 the UNHCR stated that it hoped that the majority of Iraqi refugees would be able to return home in safety once the necessary conditions of stability and security were established but that these conditions were not yet present. The security environment remained precarious, particularly in Central and Southern Iraq, where issues relating to shelter and property restitution or compensation had not yet been solved (UNHCR, UNCHR urges reinforced EU commitment to protection of Iraqi refugees, 23 September 2008).
70. The United Nations and the International Organisation for Migration (IOM) have stated that, although they “do not necessarily encourage return at this time because of security concerns, both are committed to providing assistance to those who do decide to return” (IOM, Assessment of Iraqi Return, August 2008). The IOM has further noted that the rate of displacement in Iraq has slowed and that the rate of return has accelerated, mostly to Baghdad. So far, more than 100,000 people have returned to Baghdad, the absolute majority being internally displaced persons who have returned to their homes of origin (Center of Excellence, Iraq Crisis Report, 22 October 2008). Moreover, the Iraqi Government have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees (IOM, cited above). According to the IOM, military operations, general insecurity and occupied houses are the primary reasons preventing Iraqis from returning home.
71. Amnesty International considered that Iraq was still in a situation of internal armed conflict and criticised several European countries, including Sweden, Denmark and the United Kingdom, for forcibly returning failed asylum seekers to all parts of Iraq (Amnesty International, Iraq - Rhetoric and reality: the Iraqi refugee crisis, June 2008).
NON_VIOLATED_ARTICLES: 2
3


ITEMID: 001-75715
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GAZIKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1932 and lives in Bojnice.
5. The applicant’s mother, Mrs D., owned real property. She died in 1982. Her estate was determined by the State Notary Office (Štátne notárstvo) in Považská Bystrica in a decision of 7 October 1982. The inheritance comprised inter alia a share in a complex of agricultural land which was located in Klobušice and was formally divided into several plots. The share of Mrs D. passed to the applicant’s father, Mr D., who himself already owned an equal share in the land.
6. In 1983 Mr D. died. His estate was determined by notarial decisions of 18 August 1983 and 4 December 1987. His own share in the above land as well as the share inherited from Mrs D. passed to the applicant and her sister.
7. On 22 March 1993 the applicant and her sister, who were represented by a lawyer, made a submission to the Považská Bystrica District Court (Okresný súd) described as a “motion for commencement of inheritance proceedings”. They maintained that the above inheritance decisions were flawed by inaccuracies as regards the definition of the parcels, their acreage and the ownership shares to be inherited. The applicant and her sister asserted in particular that in the original decisions no account had been taken of the fact that Mrs D. and Mr D. both had equal shares in the land and that the decisions were wrongfully based on their having only one of these shares. They sought “additional inheritance proceedings” and the “correction of obvious errors” in the original decisions.
8. On 20 January 1994 the District Court took a formal decision to commence inheritance proceedings and authorised a notary public to carry them out.
9. On 23 May 1996 the District Court discontinued the proceedings. It interpreted the motion of 22 March 1993 as being formally aimed at determining a “newly discovered inheritance” on the death of Mrs D. It observed that no such new inheritance had in fact been disclosed and concluded that, therefore, there was no case to be determined.
10. On 31 July 1996, on appeal by the applicant and her sister, the Banská Bystrica Regional Court (Krajský súd) quashed the decision of 23 May 1996 and remitted the matter to the District Court for reexamination. The Regional Court found that the written version of the decision of 7 October 1982 did not correspond to the oral version as recorded in the minutes of the hearing at which it had been pronounced. The Regional Court instructed the District Court to bring the written version in line with the recorded oral version. The Regional Court observed that even the oral version was not absolutely precise. However, in the Regional Court’s view, once the written version of the decision was so “corrected” and a copy of it was served on the parties, they could appeal against it on the merits.
11. The casefile was subsequently transmitted to a notary public who was designated by the District Court to effect certain procedural steps in the matter (súdny komisár).
12. In September 1998 the notary public obtained a report from the Land Registry explaining changes in definition of the land in issue in the context of the preceding land reforms.
13. On 20 November 1998 the District Court gave a decision under Article 164 of the Code of Civil Procedure correcting errors in the operative part of the written decision of 7 October 1982 by aligning it with the oral version.
14. On 1 February 1999 the applicant and her sister appealed against the decision of 7 October 1982, as corrected by the decision of 20 November 1998. They argued that, even after the correction, the ruling as regards the land in question was inoperative as the land was not defined clearly.
15. On 31 May 1999 the Trenčín Regional Court quashed the decision of 20 November 1998. It found that it was not bound by the views of the Banská Bystrica Regional Court as expressed in its decision of 31 July 1996 and found that it was not right “to correct” the decision of 7 October 1982 by bringing it in line with the recorded oral version which itself was inaccurate. The Trenčín Regional Court remitted the case to the District Court and instructed it to examine the contents of the case file. On the basis of such contents the decision of 7 October 1982 was to be corrected by defining the land properly.
16. In a letter of 6 October 1999 the Vice President of the District Court acknowledged that there had been unjustified delays in the proceedings, especially in the period prior to 23 May 1996 and between 31 October 1996 and 20 November 1998.
17. On 8 November 1999 the District Court gave a new decision under Article 164 of the Code of Civil Procedure correcting errors in the decision of 7 October 1982. It defined the parcels belonging to the inheritance and took account of the shares in the ownership of these parcels of both Mrs D. and Mr D. However, the District Court also found that some other parcels to which the applicant and her sister claimed title by way of succession did not belong to the estate of Mrs D.
18. On 7 December 1999 the applicant and her sister lodged an appeal challenging the decision of 8 November 1999 mainly in so far as it concerned the parcels which had been left out from the estate. They demanded that the decision of 8 November 1999 be quashed and that in the subsequent proceedings a hearing should be held before the District Court in order to clarify the matter and to avoid further confusion.
19. On 31 May 2000 the Trenčín Regional Court upheld the decision of 8 November 1999. In its summary reasoning the Regional Court referred to and fully endorsed the findings and conclusions of the District Court. The Regional Court’s decision was served on the applicant’s lawyer at some point after 17 August 2000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100665
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: FAKHRETDINOV and OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 1. The applicants are Russian nationals. The first applicant, Rustem Rifovich Fakhretdinov, was born in 1973 and lives in Oktyabrskiy in the Republic of Bashkortostan. The second applicant, Vladimir Viktorovich Kuzovlev, was born in 1950 and lives in Uzlovaya in the Tula Region. He is represented by L.S. Sladkikh, a lawyer practising in Shvartsevskiy, Tula Region. The third applicant, Valeriy Leonidovich Sergeyev, was born in 1952 and lives in Pobednoye in the Orel Region.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 12 May 2005 the applicant was arrested on suspicion of a drug offence. On 29 December 2007 he was convicted by Salavat Town Court, Republic of Bashkortostan, of unlawful dealing in drugs and sentenced to five years' imprisonment. On 23 December 2008 the conviction was upheld on appeal by the Supreme Court of the Republic of Bashkortostan.
4. On 28 June 2001 the applicant lodged a claim for invalidation of certain gift agreements, which he later supplemented with other claims. His claims were dismissed in a judgment of 17 March 2008 by Uzlovaya Town Court, Tula Region. On 10 July 2008 Tula Regional Court upheld part of the judgment on appeal and remitted the rest for fresh consideration. On 19 May 2009 the trial court partially granted the applicant's claims invalidating certain transactions and third persons' property titles and acknowledging the applicant's title to a plot of land and a house. The judgment was upheld on appeal on 16 July 2009.
5. On 5 June 2002 the authorities instituted criminal proceedings against the applicant. On 24 September 2008 the justice of the peace of Verkhovskiy District, Orel Region, found the applicant guilty of infliction of bodily harm through negligence, did not impose any sanction due to the expiry of the time-limit for criminal prosecution and partly granted a civil suit against him. On 17 July 2009 Verkhovskiy District Court, Orel Region, upheld the judgment on appeal after some minor changes. The conviction was finally upheld at a third level of jurisdiction by Orel Regional Court on 13 October 2009.
6. On 4 May 2010 the Government informed the Court that in response to the pilot judgment two federal laws had been enacted, introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the State. The laws entered into force on the same date (“the Compensation Act”, see part B below).
7. In May 2010 the Registry of the Court informed the applicants in the present cases and all other applicants in the same position of the new remedy, advising them to make use of it within the six-month time-limit set by the Compensation Act (see paragraph 16 below).
8. By a letter of 4 June 2010 Mr Fakhretdinov informed the Court in response that he had indeed brought a relevant claim before a domestic court in accordance with the new statute.
9. By a letter of 22 June 2010 Mr Sergeyev expressed an intention to lodge such a claim but cast strong doubts as to the effectiveness of the procedure, and added that it had not been available at the time of his application to the Court.
10. All the applicants explicitly maintained their complaints concerning undue length of the proceedings before the Court. Mr Fakhretdinov furthermore insisted on his other complaint (see paragraph 18 below).
11. On 30 April 2010 the Russian Parliament adopted a Federal Law no. 68-ФЗ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). On the same date the Parliament adopted a Federal Law, no. 69-ФЗ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010.
12. The Compensation Act entitles a party concerned (“an applicant”) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from State budgets (Section 1, § 1). Such compensation can only be awarded if the alleged violation took place independently of the applicant's own actions except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time (Section 1, § 2). A compensation award is not dependent on the competent authorities' fault (Section 1, § 3).
13. The compensation is awarded in monetary form (Section 2, § 1). The amount of the compensation should be determined by courts according to the applicant'
14. Section 3 sets out the rules of jurisdiction and procedure. It states in particular that a claim for compensation for excessively lengthy civil and criminal proceedings should be brought to a court of general jurisdiction, and a claim concerning commercial proceedings to a commercial court. Such a claim can also be introduced as part of an application for supervisory review of the decisions of commercial courts. This provision further sets down the conditions to be satisfied prior to lodging a claim for compensation. Thus, in the case of civil proceedings the claim should be lodged within six months of the last judicial decision, or prior to termination of the proceedings provided that their length has exceeded three years and the applicant has applied for their expedition in a procedure determined by statute. In the case of criminal proceedings the claim for compensation should be lodged within six months of the entry into force of a final judicial decision, or prior to termination of the proceedings if their length has exceeded four years and the applicant has applied for their expedition in a procedure determined by statute.
15. A court decision granting compensation is subject to immediate enforcement (Section 4, § 4). It may be appealed against in accordance with the procedural legislation in force (Section 4, § 5). The costs of payment of compensation awards are included in the federal budget, in the budgets of federal entities and in local budgets (Section 5, § 3).
16. All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the Compensation Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).


ITEMID: 001-84700
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: OLEDZKI AND OLEDZKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Tadeusz Olędzki and Mrs Lucyna Olędzka, are Polish nationals who were born in 1923 and 1924 respectively and lived in Siemiatycze, Poland. On 20 November 2003 Mrs Lucyna Olędzka died. The applicants were represented by their son, Mr Andrzej Olędzki.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1974 the State Treasury bought from the applicants several plots of land in Siemiatycze. The land was later partly developed and, inter alia, a bakery was built on it.
On 24 June 1991 the first applicant applied for the return of the remainder of their property, which had not been built on according to the relevant development plans.
On 3 April 1993 the Head of the Siemiatycze District Office (Urząd Rejonowy) decided to return the property in question to the applicants. The applicants and other parties to the proceedings appealed against the decision.
On 10 May 1993 the Białystok Governor (Wojewoda Białostocki) quashed the impugned decision and remitted the case.
Between 15 July 1993 and 6 January 1994 the case was stayed.
On 3 February 1994 the Head of the Siemiatycze District Office dismissed the applicants’ application and refused to return the property to them. They appealed against the decision.
On 24 February 1994 the Białystok Governor dismissed the appeal and discontinued the proceedings. The applicants lodged a complaint against the decision with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 24 January 1996 the Supreme Administrative Court quashed the impugned decision and remitted the case.
On 6 May 1996 the Białystok Governor quashed the District Office’s decision of 3 February 1994 and remitted the case.
On 6 September 1996 the Head of the Siemiatycze District Office stayed the proceedings on the grounds that the outcome of two other sets of administrative proceedings was important for the instant case. The applicants’ appeal was dismissed on 30 September 1996.
On 25 February 1997 the applicants complained to the Supreme Administrative Court about the non-compliance by the District Office with the judgment of 24 January 1996 and asked the court to impose a fine. The Supreme Administrative Court in its decision of 10 July 1997 rejected the complaint finding that domestic law did not allow for the imposition of a fine in such circumstances.
On 18 March 1998 the Head of the Siemiatycze District Office resumed the proceedings.
On 10 June 1998 the applicants complained to the higher authority, the Office for Housing and Town Development (Urząd Mieszkalnictwa i Rozwoju Miast), about the inactivity of the District Office. The applicants claimed that they had received no further information about their complaint. The Government submitted that on 11 September 1998 the Office for Housing and Town Development had given a decision urging the Governor to issue a decision in the applicants’ case.
On 22 September 1998 the Białystok Governor gave a decision in which he refused to return the property to the applicants.
The applicants’ appeal against this decision was dismissed by the Head of the Office for Housing and Town Development on 6 August 1999. The applicants lodged a complaint against it with the Supreme Administrative Court.
On 28 November 2000 the Supreme Administrative Court quashed both decisions and remitted the case to the Bialystok Governor. Following an amendment to the law, the case was transferred to the Mayor of Siemiatycze (Starosta).
On 21 December 2001 the Mayor of Siemiatycze dismissed the application and refused to return the property to the applicants.
The applicants’ appeal was dismissed by the Podlaski Governor on 28 February 2002. The applicants lodged a complaint with the Supreme Administrative Court against that decision.
On 14 August 2002 the Supreme Administrative Court quashed both preceding decisions and remitted the case to the Mayor of the District.
On 4 December 2002 the Supreme Administrative Court dismissed the applicants’ request for a fine to be imposed on the Mayor of Siemiatyczne. In their request, the applicants complained about the inactivity of the Mayor and his non-compliance with the judgment of the Supreme Administrative Court of 28 November 2000. However, at the hearing held on 14 August 2002 the applicants’ representative specified that the complaint concerned the Mayor’s alleged non-compliance with the court’s judgment. Consequently, the Supreme Administrative Court found that the application was manifestly ill-founded as the impugned judgment had not imposed any obligation on the Mayor.
On 29 May 2003 the applicants lodged a complaint about the inactivity of the Mayor of Siemiatycze with the Supreme Administrative Court. On 14 November 2003 the court rejected the complaint as it had not been lodged first with the higher authority, as provided by the domestic law.
On 5 November 2003 the Mayor of Siemiatycze decided to return the disputed property to the applicants.
On 20 November 2003 the second applicant, Mrs Lucyna Olędzka, died. It appears that the applicants’ son, Mr Andrzej Olędzki, joined the proceedings as her heir.
The other parties to the proceedings appealed against the decision of 5 November 2003.
On 24 December 2003 the Podlaski Governor allowed the appeals and quashed the decision. The appeal against this decision was dismissed by the Regional Administrative Court (Wojewódzki Sąd Administracyjny) on 25 January 2005.
The case was transferred to the Mayor of Siemiatycze who, on 13 July 2005, stayed the proceedings in view of the fact that the Constitutional Court was examining the constitutionality of the relevant domestic regulation.
The other party to the proceedings appealed against the decision asking for the proceedings to be resumed.
On 5 August 2005 the Podlaski Governor quashed the impugned decision, finding that there were no valid grounds for staying the proceedings.
The applicants’ son appealed against this decision to the Regional Administrative Court and asked for the proceedings to be stayed until the Constitutional Court had reached a decision.
On 16 February 2006 the Regional Administrative Court dismissed his complaint.
On 15 February 2007 the Mayor of Siemiatycze dismissed the applicants’ motion for the return of the property.
It appears that the first applicant and Mr Andrzej Olędzki appealed against this decision to the Podlaski Governor. The proceedings are pending.
Under Article 35 of the Code of Administrative Procedure (“the Code”) of 1960 an administrative authority should give a decision on the merits of a case within two months. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new timelimit.
Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent future such delays.
Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge with the Supreme Administrative Court a complaint about the fact that an administrative authority had failed to issue a decision.
On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force. Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints against inactivity on the part of an authority.
Section 26 of the Act provided:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
Section 34 of the 1995 Act set out the requirement of the exhaustion of available remedies before lodging a complaint with the Supreme Administrative Court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the abovementioned Article 37 of the Code of Administrative Procedure.
Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question.
The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.


ITEMID: 001-114276
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF Z.H. v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information in language understood);Non-pecuniary damage - award
JUDGES: András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 6. The applicant was born in 1987 and lives in the village of A. in eastern Hungary.
7. The applicant is innately deaf and dumb and has medium-grade intellectual disability. He is illiterate.
8. According to the bill of indictment preferred in the case, on 10 April 2011 the applicant – a multiple recidivist offender with the most recent conviction dating from 2 November 2009 – mugged a passer-by in Gyüre. He was then halted for an identity check by officers of the Vásárosnamény Police Department. He attempted to escape but was apprehended while still in possession of the stolen item. He was committed to the police station.
9. Since the applicant was perceived to use a sort of sign language, a sign-language interpreter was appointed for him at once. Later in the day he was interrogated as a suspect of robbery. No lawyer was present.
10. The Government submitted that the applicant had understood the charges brought against him but made no complaint about it and admitted the commission of the offence by signing the minutes of the interrogation. The applicant denied this, arguing that the sign language used by him and the one used by the interpreter were different and thus no comprehension had been possible between them.
The applicant’s signature on the minutes in question consists of his scribbled nickname, hardly legible.
11. Between 10 April and 4 July 2011 the applicant was detained on remand on the charge of mugging at Szabolcs-Szatmár-Bereg County Prison.
12. The applicant maintained that the conditions of detention were inapt to his condition and that he had been molested, sexually and otherwise, by the other inmates. The Government argued that special measures had been put in place to address the applicant’s situation (in particular, the prison governor issued an instruction to that effect on 23 May 2011) – an assertion of which the efficacy has been disputed by the applicant (for details, see paragraphs 25 and 26 below).
13. On 4 July 2011 the applicant was released from detention and placed under house arrest. The Vásárosnamény District Court, having noted that he did not know any sign language and was able to communicate only with his mother, was of the view that the time spent by the applicant in detention had be to be reduced to a minimum.
14. Meanwhile, on 20 June 2011 the applicant was indicted for robbery. His mental condition was noted by the prosecution. A public defence counsel and a sign-language interpreter were appointed for him.
15. While detained, the applicant was examined by a forensic psychiatrist. On 30 June 2011 the expert gave the opinion that the applicant’s faculties were to a large extent reduced and that he should be placed under partial guardianship. This was done by the Vásárosnamény District Court on 27 September 2011. The court noted that the applicant’s IQ was 39, he was deaf and dumb, he had medium-grade intellectual disability, he could not count and did not know sign language; the only person with whom he could communicate was his mother.
16. The criminal proceedings conducted against the applicant are still pending.
17. The applicant submitted the testimonies of a Mr F. and a Mr R. who were present when Mr Karsai met with the applicant on 6 May 2012 to discuss his representation before the Court. According to these testimonies, the applicant communicated using a peculiar sign-language-like method, essentially only intelligible to his mother, which appeared to be completely different from the standard sign language.
18. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:
“(2) A defendant’s pre-trial detention may be ordered in proceedings conducted for a criminal offence punishable by imprisonment and only if:
a) the defendant has escaped or absconded from the reach of the court, the prosecutor or the investigating authority or attempted to do so, or if other proceedings for an intentional criminal offence punishable by imprisonment has been instituted against him during the procedure,
b) due to the risk of his escape or absconding or for other reasons it can reasonably be assumed that his attendance at the procedural acts cannot be ensured otherwise,
c) it can reasonably be assumed that if left at large he would frustrate, obstruct or jeopardise the taking of evidence, especially by influencing or intimidating the witnesses, or by destroying, falsifying or concealing physical evidence or documents,
d) it can reasonably be assumed that if left at large he would accomplish the attempted or prepared criminal offence, or would commit another criminal offence punishable by imprisonment.”
19. The United Nations Convention on the Rights of Persons with Disabilities contains the following provisions:
“For the purposes of the present Convention:
...
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...”
“1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.”
“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”
20. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63rd session of the General Assembly of the UN (A/63/175), contains the following passages:
“The Special Rapporteur draws the attention of the General Assembly to the situation of persons with disabilities, who are frequently subjected to neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence. He is concerned that such practices, perpetrated in public institutions, as well as in the private sphere, remain invisible and are not recognized as torture or other cruel, inhuman or degrading treatment or punishment.” [summary]
“Persons with disabilities are often segregated from society in institutions, including prisons, social care centres, orphanages and mental health institutions. They are deprived of their liberty for long periods of time including what may amount to a lifelong experience, either against their will or without their free and informed consent. Inside these institutions, persons with disabilities are frequently subjected to unspeakable indignities, neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence. The lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect, violence, abuse, torture and ill-treatment.” [paragraph 38]
“Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...” [paragraph 50]
“States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...” [paragraph 53]
“The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” [paragraph 54]
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-60844
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SCURCI CHIMENTI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1943 and lives in Leghorn.
9. The applicant is the owner of an apartment in Leghorn, which she had let to G.T. and G.P.
10. In a registered letter of 18 November 1987, the applicant informed the tenants that she intended to terminate the lease on expiry of the term on 31 October 1989 and asked them to vacate the premises by that date.
11. In a writ served on the tenants on 5 December 1987, the applicant reiterated her intention to terminate the lease and summoned the tenants to appear before the Leghorn Magistrate.
12. By a decision of 14 December 1987, which was made enforceable on 15 December 1987, the Leghorn Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 October 1989.
13. On 11 May 1990, the applicant served notice on the tenants requiring them to vacate the premises.
14. On 31 May 1990, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
15. On 15 June 1990, she served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 10 July 1990.
16. Between 10 July 1990 and 5 April 1996, the bailiff made thirteen attempts to recover possession.
17. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
18. On 9 July 1999, the tenants asked the Leghorn District Court to postpone the execution of the order for possession, pursuant to Article 6 of Law no. 431 of 9 December 1998.
19. On 11 August 1999, the applicant served a second notice on the tenants informing them that the order for possession would be enforced by a bailiff on 28 September 1999.
20. On 10 November 1999, pursuant to Article 6 of Law no. 431 of 9 December 1998, the Leghorn District Court postponed the execution of the order for possession until 14 April 2000.
21. On 25 May 2000 and on 15 July 2000, the bailiff made two attempts, which proved unsuccessful, as the applicant was not granted the assistance of the police in enforcing the order for possession.
22. In the meanwhile, on 2 July 2000, the applicant made a statutory declaration that she urgently needed the apartment for herself.
23. On 19 October 2000, the applicant recovered possession of the apartment.
24. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23525
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PIETILÄ v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Kari Pietilä, is a Finnish national, who was born in 1956 and lives in Lasikangas. He is represented before the Court by Mr O. Siponen, a lawyer practising in Oulu.
The applicant used to be employed by the municipality of Raahe as a civil servant in charge of a division (työkeskus, arbetscentralen) subordinated to the Social Welfare Board (perusturvalautakunta, bastrygghetsnämnden). The applicant was, among other things, in charge of purchasing within that division. His post was, however, abolished and he was given notice on 12 October 1999 due to economic reasons and a reorganisation of the organic chart of municipal staff. On 17 November 1999 the Social Welfare Board confirmed his dismissal.
The applicant appealed to the Administrative Court of Oulu (hallinto-oikeus, förvaltningsdomstolen), arguing, among other things, that the decision to dismiss him was unlawful, since he should instead have been given the post as head of purchasing, which was vacant at that time and which he had applied for. The Administrative Court, finding that the applicant should have been given another post within the municipality, overturned the decision on 2 August 2000.
However, the decision by the Administrative Court was overturned, by three votes to two, by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 3 August 2001. It found that there were no vacant posts available to the applicant as the municipality in January 2000 had decided not to fill the post as head of purchasing. Thus, the dismissal of the applicant became final.
No oral hearing was held at any time of the proceedings, nor did the applicant request that such a hearing be held. He was represented by counsel at least before the Supreme Administrative Court.


ITEMID: 001-76139
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NOLD v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicants live in Rümmelsheim in Germany.
6. In 1993 the applicants engaged company H., represented by Mr H., to build a house for them.
7. On 31 May 1995 company H. filed a claim against the applicants with the Bad Kreuznach Regional Court (Landgericht), seeking 242,651.10 Deutschmarks (DEM) in outstanding payments. The claim reached the Regional Court on 2 June 1995.
8. On 27 July 1995, following an extension of the time allowed for submissions, the applicants contested the claim. They argued that company H. had failed to fulfil its contractual obligations and that the building had serious construction defects.
9. On 27 October 1995, following an extension of the timelimit, company H. reduced its claim to DEM 202,005.40.
10. Between November 1995 and April 1996 both parties – following several extensions of the set time-limits – submitted extensive written statements.
11. On 24 April 1996 the presiding judge of the Regional Court instructed the judge rapporteur to prepare the oral hearing.
12. On 19 July 1996 the plaintiff requested the Regional Court to schedule a hearing.
13. On 20 July 1996 the presiding judge assigned the case to a new rapporteur.
14. On 1 August 1997 the Regional Court held an oral hearing.
15. Between September and December 1997 both parties submitted further observations.
16. On 12 December 1997 the Regional Court instructed the expert W. to prepare an expert opinion on the alleged building defects. It further decided to hear evidence from witnesses.
17. On 19 January 1998 the Regional Court dispatched the case file to the expert.
18. On 9 February 1998 the applicants requested that the questions to the expert be amended.
19. On 10 February 1998 the presiding judge rejected the applicants’ request in order, inter alia, to avoid delays. He further announced that a new rapporteur had been appointed.
20. On 20 August 1998 the applicants submitted a document on the progress of the building work (Bautagebuch), totalling 180 pages.
21. On 10 November 1998 the presiding judge rejected the applicant’s request to forward the document to the expert.
22. On 15 December 1998 the expert submitted his expert opinion.
23. On 8 January 1999 the Regional Court served the expert opinion on the parties for comments within six weeks.
24. On 13 January 1999 applicants’ counsel withdrew from the case.
25. On 15 March 1999 the applicants lodged a criminal complaint (Strafanzeige) against H. for having lied during the proceedings.
26. Between 24 April and 26 May 1999 the case file was dispatched to the Public Prosecutor’s Office.
27. On 6 July 1999 the applicants submitted a personal statement totalling 122 pages. On 28 July 1999 the presiding judge informed them that these submissions could not be taken into consideration, as they had not been drafted by counsel.
28. On 20 August 1999, following several extensions of the set time-limit, the applicants’ new counsel submitted critical comments on the expert opinion. He further requested on several occasions that evidence be taken from the expert in court and that another expert opinion be commissioned.
29. On 20 October 1999, following two extensions of the time-limit, the plaintiff submitted further comments.
30. On 15 November 1999 the presiding judge transferred the case file to the rapporteur.
31. On 9 December 1999 the case file was dispatched to the Public Prosecutor’s Office.
32. On 10 February 2000 the case file was dispatched to the Court of Appeal.
33. On 16 February 2000 company H. lodged a thirdparty complaint (Streitverkündung) against its subcontractor.
34. On 29 February 2000 the applicants appointed a new counsel, who had worked on the case previously.
35. On 9 March 2000 the plaintiff requested the Regional Court to expedite the proceedings.
36. On 29 March 2000 the third party acceded to the proceedings.
37. On 9 August 2000 the case file was transferred to a new rapporteur.
38. On 21 February 2001 the applicants asked whether the Regional Court intended to schedule a further hearing.
39. On 22 February 2001 the Regional Court scheduled a hearing for 10 August 2001.
40. On 2 April 2001 the plaintiff informed the Regional Court that company H. had been converted into a limitedliability company.
41. Between 15 and 22 May 2001 the case file was dispatched to the Court of Appeal.
42. On 8 August 2001 the plaintiffs increased the amount of their claim.
43. On 10 August and 7 December 2001 the Regional Court heard evidence from three witnesses.
44. On 11 January 2002 the Regional Court scheduled an inspection of the building site for 24 May 2002.
45. Between January and May 2002 both parties submitted further observations.
46. On 3 March 2002 the applicants lodged an appeal to a higher authority (Dienstaufsichtsbeschwerde) against the presiding judge of the Regional Court for breach of his official duties, raising the issue of the length of the proceedings. The applicants simultaneously informed the President of the Koblenz Court of Appeal, the Ministry of Justice and the Bad Kreuznach Public Prosecutor’s Office of their appeal.
47. On 8 April 2002 the President of the Regional Court informed the applicants that she did not intend to impose disciplinary measures on the presiding judge. While conceding that the proceedings in question were lengthy, she found this to be due mainly to the fact that they were extremely contentious and that both parties had submitted lengthy written statements. She further pointed out that both parties had repeatedly requested the extension of deadlines and had failed to pay an advance on the experts’ fees. The proceedings had been further delayed by the public prosecutor’s repeated requests to obtain the case file and by the fact that the judge rapporteur had been replaced several times. The President concluded that the parties’ counsel should reduce the scope of the litigation in order to permit the Regional Court better to comply with its obligation to speed up the proceedings.
48. On 24 May 2002 the Regional Court conducted an inspection of the building site.
49. On 29 May 2002 the case file was dispatched to the Chief Public Prosecutor’s Office.
50. On 22 July 2002 the presiding judge ordered the preparation of a copy of the case file, in view of its frequent dispatch.
51. On 5 August 2002 the plaintiff informed the Regional Court that he had filed for insolvency on 23 July 2002. Preliminary insolvency proceedings had been opened on that date.
52. On 9 and 30 August 2002 the Regional Court decided to hear a further expert opinion on the alleged building defects. They also ordered the applicants to pay an advance on the expert’s expenses.
53. On 4 September 2002 the applicants requested an extension of the time allowed for paying an advance on the expenses.
54. On 6 September 2002 the applicants lodged an objection of bias (Befangenheitsantrag) against expert W. On an unspecified date, they lodged a criminal complaint against that same expert.
55. Between 9 September and 19 September 2002 the case file was dispatched to the Public Prosecutor’s Office.
56. On 30 September 2002 the applicant requested a further extension of the time allowed to pay an advance on the expenses. They further alleged that the proceedings had been suspended owing to the plaintiff’s insolvency.
57. On 7 October 2002 the applicants lodged an objection of bias against the Chamber of the Regional Court as a whole as well as against its presiding judge, arguing that the judges had committed several procedural errors.
58. On 21 October 2002 the Regional Court rejected as inadmissible the complaint against the Chamber as a whole.
59. Between 31 October and November 2002 the case file was dispatched to the Public Prosecutor’s Office.
60. On 3 December 2002 plaintiff’s counsel informed the court that insolvency proceedings had been opened on 1 October 2002 and declared that the administrator in insolvency wished to take over the case.
61. On 19 December 2002 the applicants received the rapporteur’s submissions on the objection of bias, with a request for comments to be submitted by 15 January 2003.
62. On 7 January 2003 the applicants lodged an appeal against the Regional Court’s decision of 21 October 2002.
63. On 27 January 2003 the Koblenz Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 21 October 2002 as having been lodged outside the statutory time-limit of two weeks, and fixed the value at issue (Streitwert) at 124,065.53 euros (EUR).
64. On 10 February 2003 the Regional Court dismissed the applicants’ objection against the presiding judge.
65. On 12 March 2003 the applicants lodged another objection of bias against the presiding judge of the Regional Court, which was dismissed on 24 June 2003.
66. Between 28 March and 14 April 2003 the case file was sent to the Federal Constitutional Court.
67. On 24 June 2003 the Regional Court dismissed the objection of bias against the presiding judge, finding that there was no indication that the latter had been biased against the applicants.
68. On 25 July 2003 the Koblenz Court of Appeal rejected the applicants’ complaint against the value which it had determined in its decision of 27 January 2003.
69. On 19 August 2003 expert W. died.
70. On 25 August 2003 the Koblenz Court of Appeal dismissed the applicants’ appeal against the Regional Court’s decision of 24 June 2003 and fixed the value at issue at between EUR 110,001 and EUR 120,000.
71. On 28 August 2003 the presiding judge proposed that evidence be taken from a further expert.
72. On 7 September and 31 October 2003 the applicants lodged criminal complaints against the judges of the Regional Court.
73. On 14 October 2003 the applicants informed the Regional Court that they had entered into negotiations with a view to a friendly settlement.
74. On 3 November 2003, the Regional Court, with the parties’ consent, ordered that the proceedings be suspended (Ruhen des Verfahrens).
75. On 1 December 2003 the trustee in insolvency of company H. withdrew the action against the applicants. In return, the applicants paid EUR 15,000 and waived all their remaining claims against company H.
76. On 5 January 2004 the Regional Court fixed the value of the claim at EUR 107,768.36.
77. On 18 February 2004 the Court of Appeal fixed the value of the claim at the same amount.
78. On 3 October 2002 the applicants lodged a constitutional complaint concerning the length of the proceedings before the Bad Kreuznach Regional Court.
79. On 9 April 2003 the Federal Constitutional Court refused to entertain the constitutional complaint, finding that the Regional Court had not violated the applicants’ right to a hearing within a reasonable time.
The relevant parts of the decision read as follows:
“...the length of proceedings – almost eight years – appears to be still just acceptable (gerade noch hinnehmbar) from a constitutional point of view. While the case which had to be adjudicated by the Regional Court was not particularly complex from a legal point of view, it was conducted in a very contentious and lengthy manner. Furthermore, it does not appear from the case file that the Regional Court delayed the proceedings ... by any inactivity on its part or that it neglected to advance the proceedings. The Regional Court constantly advanced the proceedings by exchanging the written statements rapidly, deciding on the taking of evidence and issuing legal instructions.
It must further be taken into account that the applicants repeatedly contributed to the obstructions and delays in the proceedings by requesting that further evidence be taken and time-limits extended and by lodging objections of bias and criminal complaints necessitating the dispatch of the case file. While these actions form part of the parties’ rights in civil proceedings, the relevant court cannot be held responsible for the resulting prolongation of the proceedings.
Finally, it must be borne in mind that the applicants, as far as can be established, have not been affected economically by the length of the proceedings.
While no objection can be made to the conduct of the proceedings from a constitutional point of view, the Regional Court – in view of the length of the proceedings – is requested to speed up the proceedings and bring them to an early conclusion.”
80. On 14 September 2003 the applicants lodged a further constitutional complaint alleging a violation of their right to a fair trial. They argued that the Regional Court had committed several material and procedural errors which gave them good grounds for believing that the judges were biased against them. In particular, the applicants claimed that the Regional Court had arbitrarily failed to determine the correct value at issue.
81. On 3 November 2003 the Federal Constitutional Court refused to entertain the applicants’ complaint.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104626
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ABDULLAH YILDIZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 3. The applicant was born in 1981 and lives in Tokat.
4. While performing his compulsory military service, the applicant was injured. He was subsequently declared medically unfit to serve in the armed forces on account of his injury and was thus discharged.
5. The applicant subsequently applied to the Social Security Institution (“Sosyal Güvenlik Kurumu”, “SGK”), claiming a special service disability pension. Upon the SGK’s refusal of this claim, he brought an action before the Supreme Military Administrative Court for the annulment of the SGK’s decision denying him a service disability pension.
6. On 14 April 2005 the Supreme Military Administrative Court dismissed the applicant’s claim, holding that no causal link could be established between the applicant’s disability and the functions he performed in the armed forces. The written opinion of the principal public prosecutor submitted to this court prior to the delivery of the decision was not communicated to the applicant.
7. On 9 June 2005 the Supreme Military Administrative Court dismissed the applicant’s request for rectification of its previous decision as the request had been lodged outside the statutory time-limit.
8. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1