ITEMID: 001-89767
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WOLEK, KASPROW AND LESKI  v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicants, Mr Tomasz Wołek, Mr Rafał Kasprów and Mr Jacek Łęski are Polish nationals who live in Warsaw. They were represented before the Court by Mr R. Nowosielski, a lawyer practising in Gdańsk.
, may be summarised as follows.
On 23 August 1997 the daily newspaper “Życie” of which the first applicant was editor-in-chief, published an article entitled “Holidays with an agent” (“Wakacje z agentem”), written by the second and third applicants. The authors made an allegation that the then President of Poland elected in 1995, Aleksander Kwaśniewski, had spent his holidays in 1994, before he had been elected to office, in the same hotel as a Russian spy resident in Poland at that time, a certain W.A., and had had extensive contacts with him. He had at that time been a member of Parliament (Sejm) and represented the Alliance of the Democratic Left (Sojusz Lewicy Demokratycznej– “the SLD”).
The opening text under the heading read:
“There were no accidental visitors to the Rybitwa [a hotel in Władysławowo]. The élite of the Polish post-communists and business had been spending their holidays there for a long time. And, as it happens, an agent of the Russian intelligence services, W.A., also stayed there. And they formed, as the employees of the hotel say, 'a particularly close-knit company'.
The article read:
“Aleksander Kwaśniewski [the President] often spent his holidays in the Main Sports Centre in Władysławowo[-Cetniewo]. In the summer of 1994 he arrived there with his family and took a room in the Rybitwa. Subsequently, W.A. took a room in the same building. The Rybitwa should not be confused with the main building of the Centre. The latter can house up to several hundred people, while the Rybitwa, situated only a short distance away in a secluded place contains only twelve apartments.
As the employees of the Centre say, visitors to the Rybitwa are most certainly not there by chance. Most often they are friends of J.K., the Centre's director, a former official of the Polish United Worker's Party (PZPR). Communist officials often visited the Centre, and later also officials of the SLD. When wellknown public figures visited the hotel it was kept under special surveillance by security agents. The Kwaśniewskis visited Rybitwa from 25 July to 15 August 1994. They got the best apartment, on the third floor. On 5 August, in the early hours, W.A. arrived at the Centre and remained there also until 15 August. He was introduced to the employees by the deputy director of the Centre as a “special guest of director K.”.
This colonel of the Russian intelligence was given apartment no. 1, just beside the main entrance to the hotel and close to the reception room. Neither A. nor Kwaśniewski was listed in the official list of the hotel's guests, even though it was mandatory. Nonetheless, thanks to the efforts of some of the former employees of the Centre, we managed to obtain copies of invoices by which they had both paid for their stay in the Rybitwa.
After we announced on Friday the publication of the present article, at yesterday's press conference the journalists asked Kwaśniewski whether he had ever had contacts with A. 'I have never met him' said the President firmly. Nevertheless, having conducted some investigations, we have found persons who tell us of meetings which A. and Kwaśniewski held at the Centre. We have talked with thirty employees of the Centre, past and current. Most of them are afraid to talk about what was going on in the Rybitwa. Some of them remember, however, that its visitors were good chums. They often had drinking parties. On at least one such occasion A. and Kwaśniewski were seen together.
One former employee remembers another meeting between Kwaśniewski and A. This time, it was a tête-à-tête.
'They met in the socalled lower dining room in the main building of the Centre' says the employee, who was serving at their table.
'Apart from Kwaśniewski and the Russian, nobody else was present. I remember that they spoke in Polish, but some Russian words were thrown in from time to time.'
After a while, having looked at a photo, this employee recognised A. and remembered that it was he who had had lunch with Kwaśniewski.
A. served in the KGB from 1973. From 1982 to 1988 he worked in the Soviet Union embassy in Warsaw. Between 1990 and 1992 he was First Secretary of the embassy responsible for political affairs, and at the same time deputy to the Head of the KGB in Poland, General Walentij Smirnow.
A. formally left the service in 1992. After that he worked as a socalled secondline officer, which meant that he carried on his spying activities, posing as a businessman and a civilian without any links to the Russian State apparatus. He became known in Poland after it became publicly known that he had been a longtime friend of the then Prime Minister, Józef Oleksy. Minister [of Internal Affairs] Andrzej Milczanowski accused Oleksy of being a spy. However, the investigation was discontinued as the prosecution authorities found that there was insufficient evidence to put Oleksy on trial.
During his stays in Poland A. was, as far back as April 1994, kept under surveillance by the State Security Office (Urząd Ochrony Państwa). In the White Paper, a compilation of documents published by the Government's Information Office and relating to the Oleksy case, we find information that during the summer months the Russian was in Cetniewo. However, we find no information there about his activities or contacts during that time – despite the fact that there is a wealth of information concerning his movements before and after his stay in Cetniewo.
In early September 1994 the State Security Office warned Oleksy that he should sever his ties with A. The then Director of the Office, G.C., stated later that it had been found that A. had been particularly active during the holidays, the better part of which he, like Kwaśniewski, spent at the Rybitwa.
The newspaper also published two portrait photographs, one of the plaintiff and one of A., with the following caption:
Friends from the beach – President Aleksander Kwaśniewski and W.A., Soviet and Russian intelligence officer.
The article was accompanied by copies of invoices paid by the President and W.A. for their stay at the Rybitwa.
In the same issue of “Życie” an article entitled “The Biggest Scandal of the Third Republic” was published. It summarised the affair in which in December 1995 A.M., the then Minister of the Interior, declared in Parliament that the then Prime Minister Józef Oleksy, a member of the same political party to which the President had belonged before his election in 1995, had been a Soviet spy recruited by W.A.
The President lodged a civil action with the Warsaw Regional Court against the applicant and the publishing house which published “Życie”, claiming that the defendants should publish apologies for the text, which he qualified as deliberately misleading given that he had never met W.A. He also requested that the applicants pay, jointly, 2,500,000 zlotys (PLN) to the Polish Red Cross.
During the proceedings the court heard evidence from five witnesses with whom the authors had spoken before the article was published and six other witnesses whom they had contacted after its publication. The court further heard evidence from seventeen witnesses called by the plaintiff. It also had regard to thirty-seven documents submitted by both parties, which all related to the plaintiff's schedule and private and public activities between 5 and 15 August 1994. The court examined an expert opinion verifying the plaintiff's signature on attendance lists of various parliamentary bodies during the material period.
The applicants argued, inter alia, that in publishing the article they had exercised their freedom of expression, and referred to Article 10 of the Convention.
By a judgment of 22 May 2000 the court partially allowed the plaintiff's claim. It had regard to thirty-seven documents relating to the essential message of the article, namely that the plaintiff had spent his holidays in Władysławowo in 1994 at the same time as A. and had had friendly contacts with him. The court concluded that the evidence before it was insufficient to make a finding that the applicants had shown sufficient diligence in gathering the material for their article. It further observed that the material which they had had at their disposal before publication was insufficient for the conclusion, which they had nevertheless presented in the article, that the plaintiff had indeed spent the period concerned in Władysławowo, that he had been A's friend and that they had stayed in the same hotel at the same time.
It ordered the applicants to publish an apology in their newspaper, worded as follows:
“Editor-in-chief of “Życie” [...] and [the second and third applicant] present their apologies to Mr Aleksander Kwaśniewski for having breached his personal rights by publishing in “Życie” of 23-24 August 1997, No. 196 (273), in the article “Holidays with an agent”, untrue information suggesting that in the first half of August 1994 he had spent holidays in hotel “Rybitwa” in the Main Sports Centre in WładysławowoCetniewo and that he had had close contacts with [W.A.]; moreover the [applicants] apologise for the manner in which the title of that article was formulated, for publication of the photographs on the first page of the newspaper and for the caption underneath.”
The court dismissed the remainder of the claim and ordered each defendant to pay PLN 4,900 in reimbursement of the court fee paid by the plaintiff. No award regarding the reimbursement of other costs borne by the plaintiff was made.
The applicants appealed. They argued that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence. This failure had had a direct bearing on the court's conclusion that they had failed to act with diligence when preparing and publishing the article concerned. They further argued that the court had ordered them to publish an apology with a different content from that requested by the plaintiff. The applicants finally referred to the Constitution, in so far as it guaranteed freedom of expression and access to information.
By a judgment of 27 February 2001 the Court of Appeal allowed the appeal in so far as the first-instance court had ordered the applicants to apologise for the photographs published on the first page of the newspaper and for the caption underneath, and discontinued the proceedings in the relevant part. The court observed in this connection that the plaintiff's claim had not related to the photographs and the caption and that the court, consequently, had not been required to rule over and above the claim.
The court dismissed the appeal in its remainder.
It observed that the provisions of the Constitution adopted in 1997 relied on by the applicants could not be applied because they had entered into force after the events concerned. Nonetheless, at the material time freedom of expression had been guaranteed by Article 10 of the Convention, ratified by Poland in 1993. The court went on to state:
“The caselaw of the European Court of Human Rights provides that freedom of expression of the press plays an essential role in a democratic society. Although the press should not overstep certain bounds, in particular in respect of reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. There is little scope for restrictions on political speech or on debate on questions of public interest. The limits of acceptable criticism are wider with regard to a politician than with regard to a private individual. A politician is entitled, like any other citizen, to legal protection of his or her personal rights and reputation, but the scope of this protection is considerably narrower than in respect of private individuals. Such an interpretation of Article 10 of the Convention was made in [the Court's] cases Oberschlick v. Austria (no. 1), 23 May 1991, Series A no. 204; Schwabe v. Austria, 28 August 1992, Series A no. 242B; Castells v. Spain, 23 April 1992, Series A no. 236 (...) All these cases were brought [to the Court] by journalists who had been parties to criminal proceedings on charges of defamation against politicians. Neither the veracity of information which they had published nor their diligence had been challenged by domestic courts. None the less, various criminal sanctions had been imposed on them. The [European] Court did not criticise the mere fact that the applicants had been found criminally liable; it found violations of Article 10 finding that the measures complained of had not been necessary in a democratic society.”
The court further noted that the article had attributed to the plaintiff close and friendly contacts with the agent of the KGB, an assertion which in Polish society could not but provoke negative reactions. Hence, the firstinstance court had been right in its finding that the plaintiff's reputation, protected by Article 24 of the Civil Code as one of his personal rights, could be negatively affected. The defendants' conduct could only be protected if it was found to be lawful within the meaning of that provision. However, it could not be so qualified. It was true that the defendants had shown diligence and good faith when gathering the material for the article, in that they had talked with many persons who could have known about the plaintiff's holidays in 1994. Nevertheless, the conclusions which they had drawn on the basis of that material published in their article, were seriously flawed. While there had been sufficient grounds for a finding that the plaintiff and his family had spent some time in the hotel concerned in July and August 1994, it was also clear that during this period the plaintiff had left Władysławowo from time to time to attend to his political duties. There were no indications, let alone any sound evidence to show that he as much as had ever seen W.A. during this period, let alone been friends with him, as was strongly suggested, or that the two men had met in private while at the Rybitwa. While it was true that, on the whole, the article did not contain obvious statements of opinion, it was clearly implied that the plaintiff's conduct had been reprehensible.
The court went on to state that the reasoning of the first-instance court as to the admissibility and assessment of the voluminous evidence before it had been correct and logical. The defendants had failed to show that the article's conclusion that the plaintiff and W.A. had indeed been friends, who in 1994 had spent holidays together, had any factual basis. Their conduct when publishing the article presenting such a conclusion regarding facts, based on manifestly flimsy grounds, was open to criticism and the lower court had been right in making such a finding.
The court further noted that in the same issue another article had been published. It referred to the close contacts between Józef Oleksy, one of the leaders of the party to which the plaintiff belonged, and A.W. The tone of the article concerned, seen in that context, clearly suggested to the reader that there might have been close relations also between the plaintiff and the KGB officer in question. This was not sufficiently borne out by the evidence, either that gathered by the plaintiffs prior to the publication or that available to the first-instance court.
The applicants lodged a cassation appeal with the Supreme Court, making essentially complaints similar to those contained in their appeal.
By a judgment of 14 May 2003 the Supreme Court quashed the judgment of the appellate court in so far as it had dismissed the applicants' appeal, and remitted the case to be reheard by that court.
The Supreme Court observed:
Pursuant to section 1 of the Press Act the press is obliged to safeguard the citizens' right to obtain reliable information, to ensure transparency of the public life and to exercise public control and supervision of public affairs. This is why the press enjoys the freedom of speech and print, guaranteed by the Constitution, and when the impugned article was published – by the constitutional provisions as amended in 1990 and 1992, and also by Article 10 of the European Convention for the Protection of Human Rights. The importance of tasks to be fulfilled by the press and their character taken together with the freedom it should enjoy provide foundations for its crucial role in a democratic society. This is why it is often referred to as “a fourth power”.
The press is obliged to impart an accurate picture of social phenomena which it presents to the public. The significance of this duty flows from the fact that it has been included in section 1 of the Press Act. Hence, it is not open to doubt that the press should provide accurate information. However, the obligations incumbent on journalists could not be interpreted as a straightforward obligation to present only “true” information to society. Similarly, one cannot say that every instance of publishing untrue information amounts to unreliability on the part of the press. It should be borne in mind that the journalists have at their disposal only limited measures, that it is impossible for them to have access to all sources of information and that, as a result, it often is not feasible to give a complete picture of a given situation or event. If the journalists were obliged to write only “truth”, it would amount to a serious restriction on the exercise of the freedom of expression guaranteed by Article 10 of the Convention.
The Supreme Court referred to the Dalban v. Romania judgment of the Court (Dalban v. Romania [GC], no. 28114/95, ECHR 1999VI). However, it noted that journalists were obliged to act with diligence when gathering and verifying information for the purposes of publication. It was a lack of such diligence which could make their conduct unlawful and consequently entail a breach of Article 24 of the Civil Code. It had not been convincingly demonstrated that the defendants' conduct when preparing and publishing the article concerned had lacked such diligence. Hence, the judgment of the appellate court had to be quashed and the applicants' appeal reexamined.
By a judgment of 13 September 2004 the Warsaw Court of Appeal reexamined the applicants' appeal and dismissed it. As a result, the firstinstance order to publish their apologies for having published the article was upheld. The defendants were also ordered to pay PLN 450 to the defendant to cover his costs incurred in the appellate proceedings.
The court was of the view that the defendants had failed to show diligence when gathering the material on which they had later based their article. The evidence gathered by them and by the first-instance court had shown that the plaintiff had indeed been in Władysławowo from 25 July to 2 August 1994 which, in any event, had not been in dispute. However, on 3 August 1994 he had travelled from Warsaw to Ireland. Subsequently, he had come back to Warsaw on 7 August and from that date until 13 August had attended to his political duties, as confirmed by various witnesses and documents. In the light of the evidence, there had been no grounds on which to accept that he had been in Władysławowo-Cetniewo from 5 to 15 August 1994, when W.A. had been spending his holidays there. Likewise, there were no grounds for a conclusion that the plaintiff and A.W. had been friends or that they had been members of a “particularly close-knit company” as alleged in the article.
The court concluded that in the light of the evidence gathered by the defendants themselves prior to publication of the article and, additionally, other evidence submitted to the first-instance court, the conclusions drawn by the defendants, namely that the president and W.A. had spent their holidays in 1994 in the same hotel as good friends, lacked any factual basis. It was of the view that the defendants had not demonstrated the necessary objectivity and detachment when presenting their conclusions to the public, also because they had omitted to present in reasonable detail the basis on which they had reached those conclusions.
The applicants lodged a cassation appeal with the Supreme Court, raising various procedural complaints to the effect that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence.
By a decision of 28 October 2005 served on the applicants' lawyer on 17 November 2005, the Supreme Court refused to entertain their appeal.
Article 14 of the Constitution, adopted in 1997, provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
Article 54 of the Constitution reads:
“1. The freedom to express opinions to acquire and to disseminate information shall be secured to everyone.
2. Preventive censorship of the means of social communication and licensing of the press shall be forbidden. Statutes may require that permits be sought and obtained for the operation of a radio or television station.”
Article 61 of the Constitution, in so far as relevant, provides:
“1. Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include the obtaining of information on the activities of self-governing economic or professional organs and other persons or organisational units, relating to the field in which they perform the duties of public authorities and manage municipal assets or property of the State Treasury.
2. The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage, with the opportunity to make sound and visual recordings.
3. Limitations upon the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order, security or important economic interests of the State.”
Article 23 of the Civil Code contains a list of the rights referred to as “personal” (dobra osobiste). It reads:
“The personal rights of an individual, such as in particular the rights to health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work [as well as] inventions and improvements shall be protected by civil law regardless of the protection enshrined in other legal provisions.”
Article 24 of the Code provides for ways of redressing infringements of personal rights. A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity, unless it is lawful. Where an infringement has taken place the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him/her. If the infringement of a personal right causes financial loss, damages may be sought before a civil court.
A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
(1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
(2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
The Supreme Court could, pursuant to Article 393 of the Code, refuse to entertain the cassation appeal if:
“(i) there [was] no appearance of any significant legal issue in the case;
(ii) there [was] no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts' case-law;
(iii) the appeal [was] manifestly ill-founded.”
Article 393 continued:
“2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”


ITEMID: 001-71800
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF XENIDES-ARESTIS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 14+8 or 14+P1-1;State must introduce remedy within three months;Pecuniary and non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The applicant, Mrs Myra Xenides-Arestis, is a Cypriot national of Greek-Cypriot origin, who was born in 1945 and lives in Nicosia.
10. The applicant owns property in the area of Ayios Memnon (Esperidon Street), in the fenced-up area of Famagusta, that she acquired by way of a gift from her mother. In particular, she owns half a share in a plot of land (plot no. 142, sheet/plan 33/29) with buildings thereon, consisting of one shop, one flat and three houses. One of the houses was her home, where she lived with her husband and children, whereas the rest of the property was used by members of the family and/or rented out to third parties. Furthermore, the applicant partly owns a plot of land (plot no. 158, sheet/plan 33/29) with an orchard (her share being equivalent to 5/48). This was registered in her name on 31 January 1984. The rest of the property is owned by other members of her family.
11. In August 1974 she was forced by the Turkish military forces to leave Famagusta with her family and abandon their home, property and possessions. Since then she has been prevented from having access to, using and enjoying her home and property, which are under the occupation and the control of the Turkish military forces. According to the applicant, only the Turkish military forces have access to the fenced-up area of Famagusta.
12. On 23 April 2003 new measures were adopted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. On 30 June 2003 the “Parliament of the TRNC” enacted “Law no. 49/2003” on compensation for immovable properties located within the boundaries of the “TRNC”, which entered into force on the same day. On 30 July 2003, under Article 11 of this “Law”, an “Immovable Property, Determination, Evaluation and Compensation Commission” was established in the “TRNC”. The rules of the commission were published in the “TRNC Official Gazette” on 15 August 2003 and the commission was constituted by a decision of the “TRNC Council of Ministers” published in the aforementioned gazette on 18 August 2003.
13. On 24 April 2004 two separate referendums were held simultaneously in Cyprus on the Foundation Agreement–Settlement Plan (“Annan Plan”) which had been finalised on 31 March 2004. Since the plan was approved in the Turkish-Cypriot referendum but not in the Greek-Cypriot referendum, the Foundation Agreement did not enter into force.
VIOLATED_ARTICLES: 8


ITEMID: 001-108400
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAKHVADZE v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicant was born in 1975 and is currently serving a prison sentence in the Vladimir region.
5. In 2004 and 2005 the applicant was convicted of a number of criminal offences and sentenced to eight years’ imprisonment. He has served his sentence in prisons in the Vladimir region.
6. From 20 July 2006 to 5 June 2009 the applicant was admitted to the tuberculosis unit in the hospital attached to Vladimir prison no. 3 (“the hospital”). On 5 June 2009 the applicant was transferred to medical facility LIU-8 in Kirzhach, in the Vladimir region.
7. The applicant raised the following specific grievances concerning his medical history and state of health.
8. On an unspecified date the applicant was diagnosed with cervical spinal myelopathy accompanied by motor neuron impairment. In 2009 he described his condition as follows. He could bend his left knee but his right knee only bent with severe pain. As a result, the applicant hardly ever moved and his leg muscles were atrophied. His right-hand fingers were crooked; it was painful when he tried to straighten them. He suffered from severe pain in his right hand, left shoulder, small of the back, knees, neck, left foot and hip. His right-hand palm, back and right hip were covered with sores. He had sores on his right-hand fingers which suppurated.
9. During his admission and stay in the hospital from July 2006 to June 2009 the applicant was examined by neurologist K. The applicant’s medical records indicate that the applicant was bedridden and, for a period of time, communicated with hospital staff by handwritten notes. The neurologist recommended an MRI scan and early release from prison on health grounds. For unspecified reasons, no MRI scan was carried out. Early release was refused in August 2006.
10. In September 2006 the applicant was examined by neurologist N., who prescribed physical therapy, vitamin-based treatment, pain relief medication and non-steroidal anti-inflammatory drugs. It was also recommended that the applicant be examined by a rheumatologist and a trauma specialist (see also paragraph 17 below). X-rays of the right wrist joint and left knee joint were indicated.
11. It is unclear what acts of medical care were performed in relation to the applicant’s myelopathy from September 2006 to February 2007.
12. In reply to a letter from the applicant’s lawyer, in February 2007 L., a neurologist at the Vladimir Region Clinical Hospital, wrote to him advising that myelopathy was a chronic and slowly progressing disease, leading to gradual deterioration of the patient’s condition with increased symptoms related to the motor function, level of awareness, the function of the pelvic organs and bedsores. The neurologist concluded that “complex therapy was required in a specialised medical institution, including an electromyography (EMG) test every six months, irrespective of the treatment’s effectiveness”.
13. In September 2007 the applicant complained to the national authorities in relation to inadequate medical assistance rendered to him and poor conditions of his detention (see paragraphs 41-58 below).
14. In 2008 one of the above-mentioned neurologists examined the applicant and prescribed massage, medication and vitamins.
15. According to the applicant, he was not provided with any specific treatment (medication or physical therapy) in relation to his myelopathy. Any mention in his medical records of a refusal to receive myelopahyrelated treatment was forged. None of the refusals were written on a special form and none of them bore his signature, despite the requirements of national legislation (see also paragraph 18 below).
16. Since early 2009 the applicant has suffered from frequent convulsions and has had difficulties in holding items in his hands.
17. In May 2009 the applicant was examined by neurologist N., who made the following findings:
“There is long-term and progressive post-traumatic damage to the lumbosacral plexus, which prevents active movement with the left leg. Damage to the lumbar spine and left leg prevents autonomous walking and results in a considerable reduction of autonomous movement. Thus, at the moment, the patient has a persisting dysfunction of the motor function of the left leg, impossibility of autonomous movement, dysfunction of the motor function of the right arm/hand...The patient requires constant help and active treatment. Focus should be on physiotherapeutic procedures and medical rehabilitation (electro-stimulation, anaesthetic/analgesic treatment). I recommend medication by Milgamma compositum, Berlition and adequate nonsteroid anaesthetic/analgesic treatment and vascular medication with Kurantil and a course of Aktovegin... A consultation with a trauma specialist and a rheumatologist is necessary to [further] adapt [existing] medical procedures.”
Similar recommendations were made in September 2009.
18. Since 1998 the applicant has been suffering from tuberculosis, which became drug-resistant and affected by haemoptysis (coughing up of blood) in July 2006. The applicant was prescribed medication and injections but refused them on numerous occasions because of acute negative side effects such as nausea. The applicant’s medical records indicate that on several occasions medical staff talked to him about the need to continue treatment but to no avail.
19. On an unspecified date before his admission to hospital, the applicant underwent a gastrectomy, significantly reducing his stomach. The applicant has also had half of his tongue removed, due to which his speech is impaired. In 2009 the applicant weighed less than 56 kg for 180 cm in height.
20. The applicant has also suffered (and continues to suffer) from acute pain in the stomach area, the liver, the kidneys and from nausea. According to the applicant, he was not examined by a gastroenterologist or given any treatment. An endoscopy was carried out for the first time in 2008. On three occasions it was not carried out, although the applicant had not made a valid refusal. No medication was provided to him.
21. In January 2007 the applicant was given an electrocardiogram (ECG) test. No prior or subsequent tests or medication were provided, despite the applicant’s acute and persistent heart pains. He was not examined by a cardiologist.
22. Since mid-2007 the applicant has also suffered from enuresis (urinary incontinence). It was recorded in late 2007 that the applicant had made verbal complaints to the unit supervisor about his treatment and had asked that his mattress be replaced because of a urine odour. His request was refused, as no smells were detected and the mattress was dry.
23. Despite his liver pains, he was not examined by a hepatologist; nor was he given any medication. He submitted that the latter was particularly important, given that he had received chemotherapy for his tuberculosis.
24. In July 2006 the applicant was examined by an ophthalmologist. In March 2007 he was diagnosed with slight nearsightedness and retinal angiospasm. In reply to a complaint he made of deteriorating eyesight, in April 2008 it was recorded that no visual acuity test could be carried out in the cell and no treatment was required.
25. The applicant has lost most of his teeth. His remaining teeth and his gums are rotten and cause him pain. The applicant had two consultations with a dentist; no treatment was given following those consultations.
26. According to the applicant, no medical assistance has been provided to him – in particular, from late December 2008 to June 2009 – in relation to his above-mentioned conditions (see also paragraph 27 below).
27. A discharge certificate was issued on 12 January 2009. It is unclear whether the applicant remained in solitary confinement or was transferred to another part of the hospital. On 15 January 2009 he complained to a neurologist of pain in his extremities and was prescribed medicine. He was also examined by a therapist and was given medicines for headache and abdominal pains. He was examined on 22 January 2009 due to the worsening of his state of health and was given vitamins and medicines for intestinal disbacteriosis and colitis. Three days later he was examined by an ENT specialist, on whose prescription he was given an iodine-based liquid to rinse his mouth with. On 29 January 2009 he was examined by a dentist and an ENT specialist who confirmed a diagnosis of antritis. In February 2009 he was provided with a follow-up check-up and was told to continue the treatment.
28. The Government argued, with reference to the applicant’s medical records, that on numerous occasions between 2006 and 2008 the applicant had refused to be examined, to take medicines (mainly tuberculosis related), to undergo medical examinations or to submit to laboratory tests. For instance, as could be seen from his medical records, the applicant had complained of pain in his body on 12 and 19 September 2007, pelvic pain on 8 October 2007 and pain in his arms on 7 March 2008 but had “plainly refused to submit to an examination”.
29. In support of their statements, the Government relied on typed copies of the applicant’s medical records for the period from July 2006 to January 2009, medical reports (медицинские заключения) of 21 December 2009 issued by the administration of prison no. 3, as well as on various certificates issued by the administrations of prisons no. 3 and LIU-8, their licences for providing medical care and documents confirming the qualifications of their medical staff.
30. The Government stated that the above documents were official documents submitted by duly authorised public officials in the performance of their official duties. These officials, by the nature of their functions, were aware of the fact that any false information could result in prosecution for abuse of power or forgery of official documents.
31. In July 2006 the applicant was admitted to the tuberculosis unit of the hospital attached to prison no. 3.
32. Between July and November 2007 the applicant was kept in various cells accommodating, at various times, two to eight people. In the first cell there was no mandatory ventilation. The cells were dirty, poorly heated, filled with unpleasant kitchen odours and infested with insects and rodents.
33. In November 2007 the applicant was transferred to another cell in which he was kept alone. The cell window was covered with newspaper, hindering access to natural light. The temperature in the cell and the adjoining shower room was often low.
34. Being unable to shout for help owing to the fact that part of his tongue was missing, the applicant was obliged to attract the hospital attendants’ attention by throwing items at the door or by knocking on his bedside table. The door to the cell was kept locked and was unlocked by prison officers at the attendants’ request.
35. The applicant needed assistance to use toilet and to wash himself. Once a month two detainees took him to the shower room and washed him. In addition, a hospital attendant brought a basin into the cell so that the applicant could wash his face. The applicant was provided with a piece of soap and a small roll of toilet paper once a month.
36. The cell was filled with a urine odour because of the applicant’s enuresis. According to the applicant, his request for a new mattress and more frequent cleaning of bed linen was refused. The food was of poor quality. The applicant was not provided with drinking water and had to drink tap water. He was not taken outdoors during his stay in the hospital.
37. The applicant was not visited by doctors or given medication after 29 December 2008. On 12 January 2009 a prison doctor told him that he would soon be discharged from the hospital because he had completed his tuberculosis treatment and that further treatment would be of no use because the applicant was suffering from a drug-resistant form of the disease and his lungs were deteriorating.
38. Although he had been informed of his imminent discharge, the applicant was not transferred from the prison hospital. He was not examined by the doctors; once a day he received visits from hospital attendants who brought him food and water and cleaned his chamber pot. The doctors and nurses refused to examine him, claiming that he had been discharged and thus was not “on the hospital’s books”.
39. The applicant submitted written statements from several detainees, who, however, had not been kept in the same cell(s). Mr Po. described the general material conditions of confinement in the tuberculosis unit between 2004 and 2009. Mr V. described the conditions of his detention in the hospital in 2004 and “in and after 2005”. Mr D. and Mr Ch. stated that since September 2007 they had been kept in rooms measuring approximately fourteen square metres and accommodating ten people. They added that they had heard about the applicant’s solitary confinement; about his inability to move around and to take care of himself; and that he had not been taken outdoors for a long time.
40. According to the Government, the applicant had been kept alone under the constant supervision of one hospital attendant and twentyfourhour assistance from on-duty staff had been available. At any moment the applicant could have asked to be helped by the attendant present. The applicant was able to access, alone or with assistance, a chamber pot or the toilet, which was two metres from his cell. The toilet was equipped with a flushing cistern; a sink was also made available there. The chamber pot was kept in the cell and was always cleaned after use. Bedding had been cleaned and a shower had been available once per week. As could be seen from the applicant’s medical records, in 2007 the applicant had not needed another mattress because he had not asked for it or because there had not been a urine odour in the cell. The cell had functioning mandatory ventilation and air was able to enter the cell through a window ventilator. The window provided access to natural light; this window was properly glazed. Artificial light was also available in the cell. The heating system functioned properly, achieving a room temperature of 20 degrees Celsius on average. The applicant had been fed in accordance with the regulations concerning ill detainees. The applicant had been taken, on foot or in a wheelchair, to outdoor exercise three times per day.
41. On 7 September 2007 the applicant and his lawyer requested that criminal proceedings be initiated concerning inadequate medical assistance rendered to the applicant and poor conditions of his detention. They referred to Article 124 (“failure to provide medical assistance”) and Article 236 (“breach of sanitary and health regulations”) of the Russian Criminal Code.
42. Subsequent events can be split into two parallel sets of proceedings, in which the applicant was represented by a lawyer before the national authorities, including the courts.
43. On 5 October 2007 an assistant to the Vladimir town prosecutor supervising penitentiary facilities (“the town prosecutor”) examined the above complaint and issued a written opinion (заключение) stating that no action was required from the prosecutor under section 33 of the Prosecutors Act (see paragraph 59 below). The town prosecutor approved the assistant prosecutor’s opinion; the applicant was informed accordingly.
44. The applicant brought court proceedings, challenging the opinion of 5 October 2007 and the town prosecutor’s refusal to take action. By a judgment of 21 January 2008 the Oktyabrskiy District Court in Vladimir held that this refusal was unlawful because the inquiry had not been thorough for the following reasons: the applicant’s medical records had not been assessed; no medical expert had been appointed; the material conditions of the applicant’s confinement in hospital had not been inspected; the applicant and his counsel had not been heard; no assessment had been made of the applicant’s complaints concerning lack of outdoor exercise, the deplorable quality of food, insufficiency of hygiene items and the sanitary condition of the shower room and toilets.
45. In February 2008 an assistant town prosecutor issued a new opinion, again concluding that that no action was required from the town prosecutor under section 33 of the Prosecutors Act. This decision was confirmed by the town prosecutor. However, in March 2008 for unspecified reasons the town prosecutor reconsidered his own decision and ordered an additional inquiry. In April 2008 the assistant prosecutor issued a new refusal, which was then confirmed by the town prosecutor.
46. The applicant brought court proceedings to challenge this refusal. By a judgment of 16 June 2008 the District Court held that the refusal had not been properly reasoned because only part of the procedural shortcomings identified in the court decision of 21 January 2008 had been remedied in the resumed inquiry. The court held as follows:
“The proper examination of the complaint relating to inadequate medical assistance within the penitentiary system required that an expert opinion should be sought from specialists unrelated to the penitentiary system... The refusal under review contained no assessment of the complaints concerning chest and heart pain; ... no assessment was made of the allegations concerning the lack of consultation with a cardiologist and the absence of any electrocardiogram...The prosecutor’s findings as to the quality of the food was based on ... reports, while no indication was made as to the method used, for instance lab tests. No assessment was made of the relevant logbooks. The assessment concerning sanitary installations, the alleged presence of rodents and insects, and lack of outdoor exercise was not thorough...”
47. In March 2009 the regional tuberculosis hospital examined the applicant’s medical records at the request of the Vladimir Regional Department of the Health Ministry. The hospital considered that the applicant had been provided with adequate tuberculosis-related treatment in prison no. 3 and that the effectiveness of this treatment had been adversely affected by the applicant’s repeated refusals to take medicines and to comply with his doctors’ recommendations.
48. Also, three people, apparently connected to the regional clinical hospital, examined the applicant’s medical records and on 2 April 2009 issued a short report concerning illnesses affecting the applicant’s nervous system. The panel held as follows:
“The treatment provided [to the applicant] was in full compliance with the applicable standards, in line with the diagnosis established in 2003 and the recommendations issued by medical specialists in Moscow. Since 2003 the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [in] Moscow and Cherepovets. The disease has developed gradually so that additional check-ups were necessary in the meantime. Conclusions: no cervical spine MRI scan has been carried out, despite a recommendation [that one should be conducted] after computer X-ray imaging; no consultation by a neurosurgeon has been arranged; no thioctic acid based medicine has been prescribed.”
49. The town prosecutor asked the Vladimir Regional Department of the Health Ministry to carry out an inquiry regarding the medical care provided to the applicant in detention. The department’s letter of 6 April 2009 indicated that the department had carried out an “independent” inquiry involving unspecified “out-of-staff” leading medical professionals who had examined the applicant’s medical records. They concluded as follows:
“Treatment provided [to the applicant] in prison no. 3 was in compliance with the standard treatment required for patients suffering from drug-resistant tuberculosis... All relevant methods of treatment were used. The effectiveness of the treatment was affected by [the applicant’s] repeated refusals to [take his] prescribed medicines, as confirmed by the medical records. Treatment of [the applicant’s] somatic illnesses was fully compliant with the diagnosis and recommendations made by the Moscowbased specialists in 2003. Since 2003 the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [in] Moscow and Cherepovets. The disease has developed gradually so that additional check-ups were necessary in the meantime. Conclusions: no cervical spine MRI scan has been carried out, despite a recommendation [that one should be conducted] after computer X-ray imaging; no consultation by a neurosurgeon has been arranged; no thioctic acid based medicine has been prescribed.”
50. In his opinion of 18 April 2009, an assistant town prosecutor again considered that no action was required on the part of the prosecutor in reply to the applicant’s complaint. The assistant town prosecutor held as follows:
“The applicant has been admitted to hospital in relation to infiltrating pulmonary tuberculosis, as well as cervical spinal myelopathy affecting movement of the right arm and the legs...
The main diagnosis (tuberculosis) has been confirmed by X-rays and bacteria analysis. The following medical acts were carried out: blood tests, an electromyography (EMG) test in September 2006, CT scanning in September 2007... As mentioned in the [applicant’s medical] records, between November 2007 and January 2008 [the applicant] refused to take medicines for [treating his] tuberculosis... During his stay in the tuberculosis unit he was regularly examined by neurologist K. The latter explained that he had been supervising the patient since 2005.
As can be seen from the medical history: in 2003 the patient was treated for posttraumatic plexopathy. He was given an EMG test, was examined by a specialist doctor and was diagnosed with osteochondrosis and discogenic radiculopathy... He received vascular therapy, B-group vitamins [and] non-steroidal anti-inflammatory drugs.
In 2006 the applicant was diagnosed with pulmonary tuberculosis and was treated in a tuberculosis unit. He was given an EMG test, a CT scan and an X-ray. As a result, he was diagnosed with cervical spinal myelopathy... radiculopathy [and] sciatic neuralgia affecting the movement of [his] left foot.
The patient was and is regularly examined by a neurologist. The [doctor’s] recommendations included a course of vascular therapy, vitamin therapy and [the applicant] was instructed about the further intake of muscle [neuromuscular] relaxants...
At present the patient’s state of health is stable, he has been regularly examined by a neurologist but has refused to [take the medicines prescribed for him] in 2006 and 2007. On several occasions he was examined by specialist medical professionals (such as a surgeon, a therapist and a dermatologist) but refused to be examined by a psychiatrist. At present, he is in section 1 of the hospital in prison no. 3.
In order to assess the medical care afforded [to the applicant], specialists from the regional department of the Ministry of Health were asked to examine [his] medical records together with regional specialists.”
Having cited the letter of 6 April 2009 (see paragraph 49 above), the assistant prosecutor concluded that “independent specialists [had] considered that the patient had been treated in full compliance with the relevant standards”.
Concerning the material conditions of the applicant’s confinement, the assistant prosecutor made the following findings:
“The material in the file discloses that in March 2006 the prison received a favourable (preventive) epidemiological report. This report is valid until 2011... In February 2008 section 1 of the prison hospital was inspected; [the inspection] did not disclose any violations of sanitary regulations. Moreover, in September 2007 repair works were carried out in the tuberculosis unit. Thus, in 2008 it was not possible to inspect the sanitary conditions [pertaining in] the earlier period. Food provided to detainees complied with the relevant regulations concerning minimum rations for convicts. Food cooking and [detainees’] diet were controlled by medical professionals together with on-duty officers. [The applicant] was given a special diet for ill detainees. He was also provided with the required hygiene items, which could be confirmed by his signatures in the logbooks. Clothes and bedding had to be submitted for laundering once per week and would be disinfected.
During the inquiry detainees T., P. and S. were interviewed. Their testimony was not convincing, as they had been named by [the applicant’s] lawyer. Detainees Kh., Z. and Pa. were also interviewed and stated that the material conditions in the living premises of the tuberculosis unit, including food, had been acceptable; cleaning had been regular. [The applicant] had been in the unit since October 2006 when the material conditions had been the same; he had been given medication and had had regular check-ups. An attending assistant had been assigned to him.
Zo. and Pi. had not answered the summons and could not be interviewed.
The prison has a contract with a private company for disinfecting the premises and eradicating rodents and insects. This work was done on a weekly basis. No complaints were made by detainees or staff.
Consequently, the arguments raised by the [applicant’s] lawyers were examined during the additional inquiry and should be dismissed as unfounded.”
51. The applicant sought judicial review of the refusal of 18 April 2009 under Chapter 25 of the Code of Civil Procedure (see paragraph 60 below). The applicant argued that the report of 2 April 2009 (see paragraph 48 above) had not been “independent” and thorough because: there had been no information about the professional status and the medical specialities of the experts, who may or may not have been the report’s signatories; the applicant had not been examined by any of those individuals; the report had contained no findings concerning the adequacy of the applicant’s medical care in relation to his neurological illness, various (liver, stomach and heart) pains, eyesight or his dental care. Thus, a court-ordered forensic examination was indispensable.
52. By a judgment of 3 August 2009 the Oktyabrskiy District Court in Vladimir examined the applicant’s complaint against the above refusal of 18 April 2009 and rejected the complaint. The court considered that a public prosecutor was empowered to ensure that no inhuman or degrading treatment was inflicted on detainees. To comply with this function the prosecutor was empowered to carry out inquiries, which should result in reasoned decisions. Such an inquiry had been carried out between 2007 and 2009. In the court’s view, the prosecutor had examined all relevant medical documents, including expert reports, and had interviewed a number of public officials, detainees, the applicant and his counsel. The court also held as follows:
“A number of medical professionals were charged with the task of assessing the treatment provided to the applicant. An independent expert examination concluded that the applicable standards for treating tuberculosis had been respected; the treatment had been affected by the applicant’s repeated refusals, as recorded, to comply with the recommended course of treatment. The applicable standards of treating somatic diseases had been equally respected. From 2003 the applicant had been supervised by neurologists; no cervical spine MRI scan had been carried out, despite a recommendation [that one should be conducted] after computed X-ray imaging; no consultation by a neurosurgeon had been arranged; no thioctic acid based medicine had been prescribed.
As to the complaints concerning chest or heart pain, as indicated in the inquiry report, the applicant had been examined by cardiologists, had had an electrocardiogram test and had received treatment.
No sufficient argument was adduced by the applicant for commissioning yet another independent expert report. In any event, this argument had not been raised during the inquiry.
As to food, the applicant was given and continues to receive a special diet. The food control record indicates that [his] rations, their quality and quantity were in line with applicable instructions and standards.
As to sanitary installations, the competent authority has issued a report confirming the sanitary conditions [were] proper. It was established that in September 2007 significant repair works had been ongoing in the tuberculosis unit. Thus, it had been impracticable to inspect the units, the shower room or the toilet facilities to which the applicant had previously had access. The findings concerning the absence of rodents and insects in the detention facility had been made with reference to a valid contract for disinfection services, the current reports concerning the performance of the contract and due to the absence of any complaints from the [facility’s] personnel or detainees. Hygiene items had been given to the applicant against his signature on a monthly basis. Clothing and bedding was and is disinfected and cleaned once per week.
In view of the foregoing, the court concludes that the 2009 inquiry report and its conclusions were reasoned and thorough, and comply with the requirements of [applicable] legislation”.
53. The applicant appealed. On 6 October 2009 the Regional Court upheld the judgment of 3 August 2009. It held as follows:
“The applicant’s arguments concerning the correctness of [his] medical diagnosis and the scope and correctness of [his] treatment were thoroughly examined and dismissed by the first-instance court. The latter’s assessment was based on all available medical evidence, which had been received from, amongst other sources, sources unrelated to the penal authorities.”
54. In the meantime, the applicant complained that no decision had been taken as to the institution of criminal proceedings, as requested. By a decision of 23 November 2007 the regional prosecutor’s office refused to institute criminal proceedings, considering there had not been the corpus delicti required under Articles 124 and 236 of the Criminal Code in the actions of the hospital’s staff. On 21 January 2008 the higher investigating authority quashed this decision, considering that it was necessary to interview the medical staff of the detention facility.
55. On 31 January 2008 the investigating authority issued a new refusal to institute criminal proceedings for lack of a criminal offence. On 6 March 2008 the Oktyabrskiy District Court in Vladimir dismissed the applicant’s appeal and upheld this refusal. On 10 April 2008 the Vladimir Regional Court upheld the first-instance decision of 6 March 2008.
56. For unspecified reasons, the inquiry was resumed. On 12 May 2008 an investigator in the Vladimir Investigations Department issued another refusal to institute criminal proceedings.
57. On 23 July 2008 the Leninskiy District Court in Vladimir examined the applicant’s complaint against the refusal of 12 May 2008 under Article 125 of the Code of Criminal Procedure and rejected the complaint. The court held as follows:
“Since 2007 the inquiry proceedings have been resumed on several occasions... The applicant is being detained in a medical facility and has been and is being provided with appropriate medical assistance. It has been established that on a number of occasions he impeded treatment and refused to make medicines. It has not been established that the deterioration of his health was due to inaction on the part of the medical staff. No dangerousness on account of a breach of sanitary regulations, required by Article 236 of the Criminal Code, has been established.”
58. On 11 September 2008 the Regional Court upheld the above judgment.
59. Section 33 of the Prosecutors Act (Federal Law no. 2202-I of 17 January 1992) provided at the time that a prosecutor was empowered to order a detention facility to take measures necessary in order that a detainee’s rights and freedoms be respected.
60. In accordance with ruling no. 2 of 10 February 2009 made by the Plenary Supreme Court of Russia, complaints brought by detainees in relation to inappropriate conditions of detention (for instance, a lack of adequate medical assistance), as well as complaints against decisions imposing disciplinary penalties, should be examined by a court under a procedure prescribed by Chapter 25 of the Code of Civil Procedure. According to this procedure, a person may lodge a court action if an action or omission by a public authority or official has violated an individual’s rights or freedoms, has impeded their exercise or has unlawfully imposed an obligation or liability (Articles 254 and 255 of the Code). This action should be lodged within three months of the date when the person learnt about the violation of his rights or freedoms (Article 256). If the court considers that the complaint is justified, the court shall order the respondent authority or official to remedy the violation (Article 258).
61. Section 29 of the Health Care Act (Federal Law no. 5487-I of 22 July 1993) provides that detainees have a right to medical assistance, such assistance being provided if necessary in public or municipal medical institutions and at public or municipal expense.
62. Detailed regulation of medical care in detention is provided in a Regulation adopted by the Federal Ministry of Justice and the Federal Ministry of Health and Social Development (decree no. 640/190 of 17 October 2005). It provides that medical assistance in detention should be the same as that guaranteed by the general programme of free health care provided in Russia (Rule 9 of the Regulation). Outpatient health files and prescription records should not be handed over to detainees; detainees have a right to receive information relating to their state of health and should be given access to medical documents (Rule 65).
VIOLATED_ARTICLES: 3


ITEMID: 001-57898
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF BEAUMARTIN v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. Mr Pierre Beaumartin, a retired industrialist of French nationality, lives in Léognan (Gironde). His sisters, Mrs Jeanne Droin and Mrs Paule Thibout, live respectively in Bordeaux and Paris.
7. The applicants held between them ten shares in the Société immobilière du Karmat El Hadj, a company under Moroccan law whose sole asset was an agricultural estate of more than 400 hectares in the Moroccan province of Kenitra and whose share capital comprised 6,000 shares. They further owned almost all of the share capital of the Société foncière du Quartier de l’Europe, a non-trading company (société civile) under French law, which itself owned 5,959 shares in the Moroccan company in addition to a building in Paris.
8. Under a dahir (royal decree) of 2 March 1973 the Moroccan Government nationalised agricultural land belonging to foreigners.
9. On 2 August 1974, following negotiations, the Moroccan and French Governments concluded a Protocol with a view to making provision for the financial consequences of the nationalisation of French citizens’ assets. The following provisions are relevant to the instant case:
"The Moroccan Government shall pay the French Government compensation in a single lump sum and the French Government shall be responsible for apportioning that sum among the beneficiaries of this Protocol.
The beneficiaries shall be natural persons of French nationality who are individual or joint landowners or members of partnerships or companies, or who suffered the consequences of the dahir of 2 March 1973 in any other capacity."
"The French Government shall be responsible for apportioning the compensation provided for in this Protocol. ..."
"With effect from the signature of this Protocol, each Government undertakes, subject to the other Government’s compliance with their obligations under the Protocol, to refrain from submitting to the other Government or to an arbitral tribunal or a court any claims made by their nationals in respect of the assets, rights and interests referred to in Articles 1, 2 and 5 of this Protocol or from supporting such claims."
A decree of 3 January 1975 promulgated the text of the agreement and charged the Prime Minister and the Minister for Foreign Affairs with implementing it.
10. Under a decree of 6 November 1979 a committee responsible for apportioning the Moroccan indemnity was set up. Article 3 of the decree provided:
"The committee shall comprise
(a) a representative of the Ministry of Foreign Affairs, who shall chair the committee;
(b) a representative of the Ministry of Justice;
(c) a representative of the Ministry of the Interior; and
(d) a representative of the Ministry of the Economy.
The Chairman and members of the committee shall be appointed by order of the Minister for Foreign Affairs.
...
Decisions shall be taken by a majority. The Chairman shall have a casting vote."
11. In a decision of 23 June 1980, notified on 31 July 1980, the committee awarded the applicants, as natural persons, compensation solely in respect of the shares they owned directly in the Société immobilière du Karmat El Hadj, i.e. four shares in Mr Beaumartin’s case and three shares in the case of each of his sisters. On the other hand, pursuant to the second paragraph of Article 1 of the Protocol, it refused to pay them compensation in their capacity as majority shareholders of the Société foncière du Quartier de l’Europe.
12. On 26 September 1980 the applicants challenged this decision in the Paris Administrative Court. The grounds for their application were set out in a memorial filed on 9 February 1981. They complained that the committee had determined the compensation to be awarded in respect of the Moroccan property company’s agricultural estate solely on the basis of the shares they held in that company in their own names, without taking into consideration the shares they owned in the French property company.
The Minister for Foreign Affairs, the respondent in the proceedings, submitted his observations in reply on 2 April 1981.
13. In an order of 15 June 1981 the Vice-President of the Administrative Court held that the dispute fell outside that court’s jurisdiction and forwarded the application and the file to the Conseil d’Etat.
14. The Minister for Foreign Affairs filed observations on 25 February 1983.
15. On 3 October 1986 the Conseil d’Etat deferred its decision on the application until the authority empowered to interpret the Protocol had given its opinion. It gave the following reasons:
"The outcome of this dispute depends on whether, under this Article [1 of the Franco-Moroccan Protocol], natural persons are entitled to claim compensation solely as members of partnerships or companies that were the direct owners of assets conferring a right to compensation under the above-mentioned Protocol or whether they are also entitled to do so as shareholders of companies themselves members of the partnerships or companies which owned such assets. The outcome of the dispute is accordingly contingent on the interpretation of the Protocol. The Protocol is an international agreement and its meaning is unclear. Consequently, only the Minister for Foreign Affairs is competent to interpret it."
16. In a note of 2 July 1987 the Minister replied that the Protocol in question "was not ... intended to cover natural persons holding shares in companies which themselves were members of the partnerships or companies that owned the assets conferring a right to compensation", with the result that the applicants were not entitled to compensation under the Protocol.
17. On 13 October 1987 the applicants filed further submissions, in which they argued that, if the Conseil d’Etat considered itself bound by the minister’s interpretation, such a decision would entail a violation of Article 6 para. 1 (art. 6-1) of the Convention.
The respondent filed submissions on 10 November 1988.
18. In a judgment of 27 January 1989 the Conseil d’Etat dismissed the application on the following ground: "The interpretation given by the Minister for Foreign Affairs is binding on the Conseil d’Etat which can only draw the legal conclusions which follow from it."
19. Since 1823 (see the Veuve Murat, Comtesse de Lipona, judgment of 23 July 1823, Recueil des arrêts du Conseil d’Etat [Reports of the judgments of the Conseil d’Etat], p. 545) the Conseil d’Etat had held that the interpretation of international treaties fell outside the scope of its judicial functions. When confronted with provisions that it considered insufficiently clear - except for Community legislation, the interpretation of which is governed by Article 177 of the Treaty of Rome - it relied on the official interpretation given by the Minister for Foreign Affairs. It deemed that interpretation to be a prerogative act that could not be dissociated from international relations, had binding force and was not open to challenge in the courts (see the full court’s judgment of 3 July 1931 in the case of Karl and Toto Samé, Recueil des arrêts du Conseil d’Etat, p. 722, Sirey 1932, III, p. 129).
20. On 29 June 1990 the Conseil d’Etat, sitting as a full court and endorsing the submissions of the Commissaire du gouvernement, Mr Ronny Abraham, delivered a judgment relating to the conditions of circulation, residence and employment of Algerian nationals and their families in France (G.I.S.T.I. judgment, Recueil des arrêts du Conseil d’Etat, p. 171; Actualité juridique. Droit administratif 1990, p. 621; Revue générale de droit international public 1990, p. 879; Revue française de droit administratif 1990, p. 923, with a note by Mr Jean-François Lachaume; Revue critique de droit international public 1991, p. 61). It discontinued the practice - which had no equivalent in the other member States of the Council of Europe - of referring a preliminary question to the minister on the construction of an international treaty containing ambiguous or unclear provisions. It now interprets international agreements itself and, if it seeks the opinion of the executive, it does not regard itself as bound thereby.
21. Since a judgment of 24 June 1839 (Dalloz 1839, part one, p. 257), the Civil Divisions of the Court of Cassation have held that the ordinary courts are entitled to interpret clauses of a treaty "provided that they do not raise issues liable to jeopardise good international relations" (l’ordre public international). Otherwise, if an instrument is unclear they still require the question to be referred to the Minister for Foreign Affairs (judgment of 7 June 1989, First Civil Division, Juris-classeur périodique 1990, part two, no. 21448).
In the Criminal Division the principle of a lack of jurisdiction entailing an obligation to seek a preliminary interpretation continues to apply. With the exception of the European Convention on Human Rights, "international treaties are measures taken by the highest administrative authorities which can only be interpreted, if necessary, by the authorities which concluded them" (judgment of 3 June 1985, Bulletin des arrêts de la Cour de cassation [Court of Cassation law reports], no. 212, p. 542). The official interpretation is of general application and is binding on the courts (judgment of 7 June 1988, Bulletin des arrêts de la Cour de cassation, no. 257, p. 683).
On the other hand, the Social Division recently abandoned the approach of distinguishing between international treaties and now interprets them without seeking to establish whether issues liable to jeopardise good international relations are raised (Caisse autonome mutuelle de retraite des agents des chemins de fer judgment of 29 April 1993 and submissions filed by the Advocate-General, Mr Chauvy, Gazette du Palais, 11-12 March 1994, p. 13).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22832
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: EBBINGE v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicants are Dutch national, born in 1951 and at the time of the introduction of the application detained in Leeuwarden. He is represented before the Court by Mr L. de Leon, a lawyer practising in Utrecht.
A.
On 3 and 4 August 1995, two bags containing parts of a human body were found in a river near Bremen (Germany). Around 22 August 1995, it was found very likely that these remains, in any events the hands found, were those of Mr Harrie Roo. According to the findings of an examination of the remains, the victim had died one to two weeks prior to the finding of the remains.
On 23 August 1995, Ms P. filed a criminal complaint with the police against the applicant for extortion and unlawful deprivation of liberty of her friend Mr Harrie Roo. She claimed that she had given a considerable amount of money to the applicant in exchange for the release of Mr Roo.
On 24 August 1995, a preliminary judicial investigation (gerechtelijk vooronderzoek) against the applicant was opened. On 2 September 1995, the applicant was arrested in his father’s home in Amsterdam, where further a suitcase containing an amount of NLG. 71,500 were found. The applicant was taken into custody and interrogated a number of times, during which he remained silent. Following consultations between the police, the public prosecutor and the investigating judge (rechter-commissaris), it was decided to transfer the applicant to detention facilities in Zaandijk in order to interrogate him there with use of the so-called “Zaanse verhoormethode”; a specific interrogation technique.
During the applicant’s interrogations in Zaandijk on 1, 2 and 3 November 1995, the “Zaanse verhoormethode” was used. On 2 November 1995, at around 16.45 hours, the applicant communicated with his lawyer. On the same day, at around 22.45 hours, the applicant gave a confessing statement. He was subsequently charged and summoned to appear before the Regional Court (Arrondissementsrechtbank) of Groningen.
By judgment of 2 September 1996, following adversarial proceedings, the Regional Court acquitted the applicant of the charges relating to the killing of Mr Roo, convicted him of extortion and sentenced him to five years’ imprisonment. Both the prosecution and the applicant filed an appeal with the Court of Appeal (Gerechtshof) of Leeuwarden.
Hearings before the Court of Appeal were held on 18 and 19 March, 16 April and 12 June 1997.
During its hearing held on 18 March 1997, the Court of Appeal watched videotapes containing a summary of the applicant’s interrogations by the police. This summary, or a total duration of about six hours, concerned nearly exclusively parts of the applicant’s interrogations of 1 and 2 November 1995. The summary had been made in consultation with the parties.

In the course of the hearing held on 19 March 1997, the Court of Appeal took evidence from the witness Mr B., a warder in the detention centre where the applicant had been held and to whom - prior to the applicant’s interrogation in Zaandijk - the applicant had told that he had had a conflict with a man who had owed him money for drug transports, that he had unintentionally shot this man dead and that he had had problems in disposing of the body. Mr B. had not asked the applicant for the name of the victim. Mr B. stated that the applicant had been in Zaandijk for three days and that, after his return from Zaandijk, the applicant had appeared to be different in that he had become more relaxed.
On the same day, the Court of Appeal took evidence from Mr K., also a warder in the detention centre where the applicant had been held and to whom the applicant had said that he was detained for a big case and that he risked a considerable sentence. The applicant had further told him that it had been “him or me”, “it was a stout man, 100 kilograms, 2 metres tall” and “I was covered with blood”. Mr K. did not recall whether the applicant had told him this before or after his stay in Zaandijk.
Further hearings before the Court of Appeal were held on 16 April and 12 June 1997.
By judgment of 26 June 1997, following adversarial proceedings, the Court of Appeal quashed the judgment of 2 September 1996, convicted the applicant of homicide and extortion and sentenced him to ten years’ imprisonment.
As to the applicant’s argument that the prosecution should be declared inadmissible in that he had been subjected to the “Zaanse verhoormethode”, which - in his opinion - was in violation of Article 3 of the Convention, the principle of nemo tenetur (right of an accused not to be compelled to provide incriminating evidence and thus to contribute to his own conviction) and the prohibition of exerting pressure on suspects as referred to in Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering), the Court of Appeal considered, with reference to a finding to this effect in the advice of the Criminal Investigation Advice Commission (Recherche Adviescommissie), that the use of the “Zaanse verhoormethode” was not per definition contrary to Article 3 of the Convention or Article 29 of the Code of Criminal Procedure.
The Court of Appeal examined the facts found established as to the manner in which the applicant had been interrogated. It noted, inter alia, that he had been interrogated for lengthy periods by sometimes more than two persons, that nobody had shouted at the applicant, that he had been addressed in a soft voice and that only at some moments voices had been raised. It further found that photographs had been placed in the applicant’s field of vision, showing places, persons and objects linked in some way to the facts of which the applicant was suspected (a farmhouse, the victim, Ms P., their daughters, parts (legs) of the victim’s remains, a wrapped trunk (of what later appeared to be a previously killed prostitute), the applicant’s spouse and his daughter, inside and outside views of the applicant’s home (including bedrooms) and that telephone threats received by the applicant’s wife had been discussed whereas he was repeatedly told that the police would only be able to protect his family if he would give a statement so that the police would know against whom they needed to be protected. As to the applicant’s physical condition during the interrogations of 1 and 2 November 1995, the Court of Appeal noted that the applicant had apparently eaten nothing or little before and during his stay in Zaandijk, but that he had regularly been offered a meal and has been allowed to drink coffee and smoke cigarettes. He had further requested and obtained aspirins. At no point in time had the applicant indicated to be physically incapable to proceed with the interrogations. It therefore concluded that it was not established that the applicant was physically incapable to be subjected to interrogation.

As to the admissibility of the prosecution, the Court of Appeal considered that it did concern a both physically and mentally very burdensome and intrusive interrogation, but that it could not be regarded as treatment contrary to Article 3 of the Convention in consequently rejected the argument that, on this basis, the prosecution should be declared inadmissible.
The Court of Appeal further found no violation of the principle of nemo tenetur, as it had not been established that, as a result of the police actions during the interrogations in Zaandijk, such a serious violation of the principles of a fair trial had occurred that the prosecution should be declared inadmissible.
The defence had also argued that, at least on one occasion, the applicant’s interrogators in Zaandijk had not allowed him to speak to his lawyer as they wished to finish the interrogation. The observation made on this point by the public prosecutor that the applicant had agreed with this course of action, was refuted by the defence stating that, on that moment, the interrogators were in the process of easing him away from his lawyer by stating that the applicant should not care so much about what others were saying. The Court of Appeal rejected the complaint of the alleged refusal to grant the applicant access to his lawyer as not having been established. It also found that it had not been established that the investigating authorities, by deciding to use the “Zaanse verhoormethode” and the manner in which it had been conducted, had acted intentionally or with gross negligence contrary to the applicant’s interests in his right to a fair hearing.
As to the argument under Article 29 of the Code of Criminal Procedure, the Court of Appeal considered that, as a result of the at least particularly strong and misleading suggestion that the applicant’s spouse had received threats by telephone in combination with the interrogators’ intrusive and lengthy harping - using photographs - on the situation in which the applicant’ spouse and in particular his daughter could end up, the acceptable border of the, in itself not unacceptable presentation to an accused of possible consequence of his silence, had been surpassed. It was of the opinion that, therefore and in conjunction with the character and duration of the interrogations of 1 and 2 November 1995, the pressure exerted on the applicant had been increased to such a level that “pressure prohibition” had been violated.
The Court of Appeal did not use the results of the applicant’s interrogations of 1 and 2 November 1995 in evidence. It based the applicant’s conviction on other evidence, i.e. inter alia police reports on the finding and examination of the victim’s remains and the subsequent criminal investigation, statements made by the witnesses B. and K. to the police and the Court of Appeal, statements taken by the police from other witnesses who had had contacts with the applicant either during the period in the course of which the victim was likely to have been killed or at a later point in time, a statement taken by the police from the applicant on 14 September 1995, and statements taken by the police from Ms P., and statements of three other persons to the police in relation to the concealment of amounts of NLG. 125,000 and DEM. 7,430 respectively. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad).
In its judgment of 20 October 1998 the Supreme Court, after having corrected an apparent textual error in the judgment of the Court of Appeal pointed out by the applicant, rejected the applicant’s complaints in cassation.
This judgment, insofar as relevant, reads:
<Translation>
“4.1. The first ground of cassation contains the complaint is that the Court of Appeal has unjustly or on insufficient grounds rejected the argument <of the defence> to the effect that the prosecution should be declared inadmissible. ....
4.2.1. According to the minutes of the hearing on appeal of 12 June 1997, counsel has submitted different grounds which should lead to the inadmissibility of the prosecution, which grounds concern the manner in which the suspect has been interrogated in Zaandijk by the police ...
4.2.2. According to the minutes of the hearing on appeal of 18 March 1997, videotapes made of the police interrogations have for a part been shown and watched there and then. The Court <of Appeal> has selected those parts upon proposal of the Procurator-General and with the consent of the defence. That summary of about six hours, as found by the Court, (almost) exclusively concerns (parts) of the suspect’s interrogations on 1 and 2 November 1995.
...
4.3. According to the minutes of the trial on appeal, the Court <of Appeal> has summarised and rejected the argument <of the defence> as set out on pages 2-15, para. 1, of its judgment.
...
4.5. The considerations of the Court <of Appeal> referred to in 4.3 have to be understood as follows. On grounds of its findings as to the course of the interrogations, the Court <of Appeal> has held that on a number of points, set out on page 14 of the judgment under the heading “Violation of Article 29 of the Code of Criminal Procedure”, unacceptable pressure has been exerted on the suspect as a consequence of which Article 29 para. 1 of the Code of Criminal Procedure has been violated. This finding does not disclose an incorrect conception of the law and is not incomprehensible. On that ground the Court <of Appeal> apparently has held that the statements obtained as a result of the interrogations conducted on 1 and 2 November 1995 cannot be used in evidence as these have been unlawfully obtained; consequently, the Court <of Appeal> have not used these confessions in evidence. ...
4.6. The Court <of Appeal> has further considered that and why the use of the contested interrogation technique and irregularities referred to above found by the Court <of Appeal> should not lead to the inadmissibility of the prosecution.
To this it has held in the first place ... that although, noting the circumstances in which the interrogations of 1 and 2 November 1995 have taken place, it did concern a physically and also mentally very burdensome and intrusive interrogation, it has not by this violated Article 3 of the Convention. In difference to the first cassation ground’s aim, this finding does not disclose an incorrect conception of the law and is not incomprehensible.
The findings of the Court <of Appeal> further mean that - noting that what the Court <of Appeal> has found established as to the basis of the defence plea - there has been no violation of the principles of a fair trial of such serious nature that this should lead to the inadmissibility of the prosecution as it has not been established that there have been infringements of those principles as a result of which intentionally or with gross negligence the suspect’s interests in a fair hearing of his case have been disrespected.
4.7. Understood as such, the findings of the Court <of Appeal> do not disclose an incorrect conception of the law and, in the light of the trial proceedings, not incomprehensible. Insofar as the first ground in cassation objects to factual and not incomprehensible findings and to this relies on facts and circumstances not found established by the Court <of Appeal>, <the Supreme Court considers> that this cannot lead to cassation.”
B. Relevant background and domestic law
Article 29 of the Code of Criminal Procedure, insofar as relevant, reads:
<Translation>
"1. In all cases where a person is heard as a suspect, the questioning judge or civil servant shall refrain from everything which could have the effect of obtaining a statement of which it could be said it was not freely made. The suspect is not obliged to answer.
2. Before the hearing the suspect is informed that he is not obliged to answer.
...”
On 15 May 1996, following the national broadcast of a television programme in which the “Zaanse verhoormethode” was discussed, a Member of Parliament put questions about this interrogation technique to the Minister of Justice, who decided to seek the views of the Criminal Investigation Advice Commission (Recherche Adviescommissie; hereinafter “RAC”) as to the lawfulness and functionality of this method.
On 21 August 1996, the Minister of Justice informed Parliament that, once she would have taken notice of the final outcome of two trials in which the lawfulness of this method had been raised as well as the RAC advice, she would take a final decision as to the acceptability of this interrogation technique. In the meantime, she had instructed the public prosecution department to suspend the use of this technique. In November 1996, in conformity with the advice contained in the RAC report of 1 November 1996, the Minister of Justice decided to prohibit the use of the “Zaanse verhoormethode”.
The RAC report describes the “Zaanse verhoormethode” as an interrogation technique based on the so-called CASE 36 (Communication Analysing System Europe 36) communication method. The method was developed by a communication expert and was further elaborated for police practices.
CASE 36 is described in the report as a communication method focussing in particular on the way in which a person internally perceives the outside world. The application of the CASE 36 technique allows to obtain a very accurate picture of the behaviour of a person and the internal processes on which this behaviour is based, thus enabling to communicate effectively (a correct statement by the suspect) and efficiently (within a short time).
The CASE 36 technique is based on Neuro Linguistic Programming (NLP); originally a form of psychotherapy. NLP has been defined as “the study of the structure of subjective experience”. NLP provides a model of human behaviour and communication which answers questions like “How does a person behave in relation to his environment, how does he take in information and how does he process this information?” An interrogation according to the CASE 36 communication method is aimed at the creation of a tie between the suspect and interrogators through which an optimal communication must become possible and thus to attain the truth via communication.
The actual interrogation is prepared by planning certain steps to be taken during the interrogation. This planning includes, amongst other things, the allocation of individual roles (father figure, specialist, analyst, person of confidence) to each member of the interrogation team. Furthermore, a preliminary meeting with the suspect takes place in order to find out which pattern of thought (in detail or global) he uses and what his “focal points” are, i.e. to what points he looks when he is not specifically asked to look at something. A determination of “focal points” is relevant for the making of “visual chronological lines”.
In having the suspect draw (visual) chronological lines during the interrogation, it is attempted to verify when what has taken place. This takes place, inter alia, by making a suspect relive an experience in his mind. If a suspect has an auditive preference, there is a bigger chance of communication and a reliving when he is made to listen to recordings, like telephone conversations. Has the suspect a sensory preference, the chance of communication is bigger when having him touch an object found at the crime scene, whereas in case of a visual preference, he can be shown photographs of the crime scene.
In case a suspect has a “focal point” on a particular spot on a wall, it is possible to place photographs there. He will unconsciously look at them after which, as the intention is, he will remember facts insofar as he has been responsible for them. The showing of photographs includes both photographs connected to the offence and photographs linked to the suspect’s person, like photographs of his spouse or children. These two kinds of photographs are either shown separately or combined with each other.
The interrogation team leader and the external communication expert watch and listen to the interrogation in another room. There are four hidden cameras covering the entire interrogation room and one hidden camera aimed at the suspect’s face. The suspect is informed that the interrogations are recorded but does not know where the cameras are. The interrogators receive instructions via earphones from the team leader or the external communication expert during the interrogation. The interrogation is constantly adapted to the suspect’s behaviour. The suspect’s non-verbal communication is followed and whether his behaviour is congruent, i.e. whether his body language is in conformity with her verbal expressions. Other features of this interrogation technique are the copying of a suspect’s physical behaviour which is intended to reassure the suspect and the so-called “pushing in”, i.e. to push one by one and on deliberate moment the chairs of each interrogator close to the suspect until in the end all interrogator sit intimately around the suspect.
The interrogations are conducted within a couple of days, lasting on average ten hours per day depending on how the interrogation proceeds.


ITEMID: 001-75140
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: CICEK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Fethi Gümüş and Mr Zülfü Dündar, lawyers practising in Diyarbakır.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
Until 1995 the applicants all lived in Tuzla village, in the district of Lice in the Diyarbakır province, where they own property. It is to be noted that Ali Kivilik, Muhittin Yıldız, Nusret, Müslime and İlhan Kaya did not submit any certificate to the Court attesting their ownership of the property in Tuzla.
In November 1995 security forces forcibly evacuated Tuzla on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır and Istanbul where they currently live.
On 23 November 1995 the mayor of Tuzla, Ağa Yıldız, filed a petition with the office of the state-of-emergency region Governor and asked the latter either to allow the residents to return to their village or to provide them alternative residences.
On 8 December 1995 the Governor of the state-of-emergency region sent a letter to the mayor and informed him that there was no legal ground for his alternative residences request. He further informed that Ağa Yıldız’s request for financial aid would be referred to the District Collaboration and Solidarity Foundation (İlçe Sosyal Yardımlaşma ve Dayanışma Vakfı).
On an unspecified date, some of the applicants filed petitions with the Public Prosecutor’s office in Lice complaining about the burning down of their houses by security forces.
On 8 December 1995 the Public Prosecutor issued decisions of nonjurisdiction and sent the case-files to the Public Prosecutor’s office in the Diyarbakır State Security Court.
On an unspecified date, one of the residents of Tuzla, Tahsin Yıldız, filed a petition with the Human Rights Observation Committee of the Grand National Assembly of Turkey requesting permission to return to his village.
On an unspecified date, the Human Rights Observation Commission referred his petition to Ministry of the Interior.
On 25 May 2000 the Ministry of the Interior notified the Human Rights Commission that some of the villages in Lice, including Tuzla, were not secure and suitable for residence. It stated that once these villages became secure for return, the authorities would take the necessary steps.
On 15 June 2000 the President of the Human Rights Observation Commission informed Tahsin Yıldız about the content of the letter dated 25 May 2000.
On 9 September 2001 the Commander of District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in Lice District and informed them that access to some villages of Lice District would only be possible during daytime in summer. The commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. Tuzla was not listed among the villages to which access would be allowed under aforementioned conditions.
On 23 November 2001 the applicants’ representative, Mr F Gümüş, filed a petition with the Public Prosecutor’s office attached to the Diyarbakır State Security Court requesting information on the investigation about the burning down of the applicants’ houses.
On 12 December 2001 the Public Prosecutor at the Diyarbakır State Security Court sent a reply to the applicants’ representative notifying that the investigation into the burning down of the applicants’ houses was still pending.
The official records indicated that the inhabitants of Tuzla had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their village.
Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).