ITEMID: 001-81338
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KAYA v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1978 and lives in Istanbul in Turkey.
7. The applicant was born in Mannheim in Germany, where he lived with his parents and his younger sister and attended school. On an unspecified date the applicant's brother died in an accident. His parents have been lawfully resident in Germany for more than thirty years. According to the applicant's submissions, he visited Turkey only two or three times during his holidays.
8. On 19 May 1994 the competent authorities granted the applicant a permanent residence permit.
9. On 31 January 1996 the Mannheim public prosecutor discontinued juvenile-delinquency proceedings brought against the applicant for grievous bodily harm.
10. In 1998 the applicant completed his apprenticeship as a car mechanic. In July 1998 he worked for three or four weeks in Turkey.
11. On 27 January 1999 the applicant was arrested and subsequently detained on remand.
12. On 8 September 1999 the Mannheim District Court (Amtsgericht) convicted the applicant of two counts of attempted aggravated trafficking in human beings (versuchter schwerer Menschenhandel), several counts of battery and aggravated battery (schwere gefährliche Körperverletzung), procurement (Zuhälterei), purchasing illegal drugs (Erwerb von Betäubungsmitteln), two counts of drunken driving and two counts of insulting behaviour and sentenced him to three years and four months' imprisonment. The District Court found that between June 1998 and January 1999 the applicant had forced his former partner to surrender the main part of her earnings acquired through prostitution. To that end, he had used physical violence, on one occasion kicking the woman's face with his shod foot. In January 1999 the applicant – together with two accomplices, including his former partner – had attempted on two occasions to force another woman into prostitution. The applicant and his male accomplice had intended to use the earnings to finance their upkeep and their drug consumption.
13. To that end, the applicant and his accomplices had first locked the woman in. Later on, the applicant had encouraged his former partner to beat the woman and her sister, who had aided her resistance. In the applicant's presence and with his explicit consent, both women had been punched at least ten times in their face.
14. The applicant was also found guilty of having purchased five grams of cocaine on one occasion, together with one accomplice, and of having insulted several police officers. In view of the fact that the applicant had been twenty years old when committing those offences and that there was no indication of retarded development, the District Court did not apply juvenile but adult criminal law.
15. When assessing the applicant's sentence, the District Court treated as mitigating factors the fact that the applicant had no previous convictions and that he had confessed to the offences during the main proceedings. It emphasised, however, that the applicant had acted as the driving force in carrying out the crimes committed jointly against the second victim. The District Court further noted that the applicant had acted with “incredible brutality” (unglaubliche Brutalität) towards his second victim, after having already exploited his former partner. The applicant had taken around 48,000 German marks from the latter without leaving her the necessary resources to cater to her own and her child's needs, his intention being to use the money for alcohol, drugs and other purposes of his own. The District Court put special emphasis on the exceptional brutality with which the applicant had exploited his former partner. Lastly, it considered the degree of disdain he had shown towards the police officers. Only the applicant's confession had prevented the District Court from imposing a prison sentence of more than four years, which would have meant relinquishing the examination of the case in favour of the Regional Court.
16. On 23 November 1999 the Karlsruhe Regional Government (Regierungspräsidium) ordered the applicant's expulsion to Turkey. It was announced that he would be deported on his release from prison.
17. Although the applicant was born in Germany and possessed a valid residence permit, the Regional Government considered that his conviction for several serious offences made it necessary to expel him under section 47(1) and (3) and section 48(1) of the Aliens Act (Ausländergesetz – see “Relevant domestic law” below) for serious reasons relating to public safety. Regard being had to the reasons given for the applicant's criminal conviction, his expulsion was necessary in the interest of general deterrence (Generalprävention).
18. The Regional Government also considered the applicant's expulsion justified in this particular case because there was a high risk that he would continue to pose a serious threat to public safety. The seriousness of the offences committed by the applicant demonstrated his high criminal potential and his violent disposition. His criminal offences showed that he was not willing to respect the rights and dignity of his fellow human beings. These factors led to a serious danger of recidivism (erhebliche Wiederholungsgefahr).
19. The Regional Government further found that the applicant's expulsion was proportionate and complied with Article 8 § 2 of the Convention. The applicant was a single adult and could be reasonably expected to live in Turkey. He had not submitted any evidence that his parents depended on his support. His parents would be in a position to maintain contact with him by way of visits and exchanging letters.
20. On 3 January 2000 the applicant applied to the Karlsruhe Administrative Court (Verwaltungsgericht) for judicial review of the expulsion order. He stated, inter alia, that his parents – especially his mother, but also, to a lesser degree, his father – were suffering from serious depression caused by the earlier loss of their other son. The applicant's current situation had aggravated their condition, obliging them to seek medical treatment. His deportation might cause his mother to suffer a complete psychological breakdown. He was, moreover, ready to undergo social training and to come to terms with his former alcohol abuse. With respect to his prospects in Turkey, the applicant alleged that he spoke only colloquial Turkish and had but limited writing skills in that language.
21. In a judgment of 24 February 2000 the Administrative Court rejected the applicant's motion. It concurred with the reasoning set out in the expulsion order to the effect that there were sufficient indications that the applicant would continue to pose a danger to public order and safety. The alleged hardships suffered by the applicant's parents did not justify a different assessment of the facts.
22. The applicant subsequently applied for leave to appeal. In a letter of 10 January 2001 he submitted, inter alia, that he had been born in Germany, where he had gone to school and received vocational training. His whole family lived in Germany. He further submitted that he did not have any connection with Turkey and that he had poor knowledge of the Turkish language. His expulsion would lead to the destruction of his family.
23. On 7 March 2001 the Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) refused the applicant leave to appeal. It found, firstly, that the applicant's submissions were not capable of raising serious doubts as to the correctness of the Administrative Court's judgment. Furthermore, he had not established that an appeal would be justified on the ground of the legal complexity of the subject matter. It was obvious that the interference with the applicant's right to respect for his private and family life, as guaranteed by Article 8 of the Convention, was justified under paragraph 2 of that Article, regard being had in particular to the serious danger of recidivism.
24. On 5 April 2001 the applicant was deported from prison to Turkey. The remaining third of his prison sentence was suspended in view of his deportation.
25. On 7 April 2001 the applicant lodged a constitutional complaint. On 12 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant's complaint for adjudication. That decision was served on the applicant on 21 February 2002.
26. On 20 May 2002 the applicant married a German national of Turkish origin, who lives in Germany. On 28 December 2003 a child was born to the couple.
27. On 16 September 2002 the applicant requested to have a time-limit placed on his exclusion order. On 19 July 2004 the Karlsruhe Regional Government limited the period of validity of the applicant's exclusion order until 5 October 2006, i. e. five years from the date of his deportation. The limitation was subject to the condition that the applicant was to submit evidence that he had not committed any further criminal offences and that he was still married to his German wife, that he was to submit a hair analysis proving that he did not consume drugs and that he was to reimburse the expenses incurred in connection with his deportation.
28. On 11 April 2006 the Karlsruhe Administrative Court rejected the applicant's application for judicial review aimed at further shortening the time-limit set to his exclusion order.
29. By the end of February 2007, the applicant was still residing in Turkey.
30. The rights of entry and residence for foreigners were governed until 31 December 2004 by the Aliens Act (Ausländergesetz) and from 1 January 2005 by the Residency Act (Aufenthaltsgesetz).
31. By section 47(1), point 1, of the Aliens Act, a foreigner is to be expelled where he or she has been sentenced to a minimum of three years' imprisonment for having wilfully committed one or more criminal offences.
32. If a foreigner was born in Germany and is in possession of a permanent residence permit, he or she may only be expelled if serious reasons relating to public safety and order justify the expulsion (section 48(1)). Generally, this will be the case where section 47(1) applies (Regelausweisung).
33. Pursuant to section 8(2), an alien who has been expelled is not permitted to re-enter German territory. This effect can, as a rule (in der Regel), be limited in time upon application. A similar provision is contained in section 11 of the Residency Act.
34. According to section 44 (1) no.1 of the Aliens Act and section 51 (1) no. 5 of the Residency Act, an alien's residence permit expires on issue of an expulsion order against him.
35. Section 85 of the Aliens Act, as in force from 1 July 1993 until 31 December 1999, provided as follows:
“(1) An alien who applies for naturalisation between the age of 16 and 23 shall be naturalised provided that he or she
1. loses or relinquishes his or her former nationality,
2. has been legally residing in Germany for eight years,
3. has attended a school for six years, including at least four years of attendance at a school providing general education, and
4. has not been convicted of a criminal offence.
(2) There shall be no entitlement to naturalisation if the alien does not possess a residence permit. Naturalisation may be denied if there is a ground for expulsion.”
36. Section 27 of the Residency Act provides that a residence permit is to be granted for reasons of family reunion. By section 28, a residence permit is to be granted to a German national's spouse or minor child, or to the parent of a minor German national in order to exercise parental authority.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-76703
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KIR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicants Ms Habibe Kır, Ms Feriştah Çenesiz, Mr Hasan Çenesiz and Ms Fatma Ekiz were born in 1926, 1941, 1951 and 1951 respectively and live in Mersin.
6. On 17 December 1992 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Mersin in order to build a motorway. A committee of experts assessed the value of the plots and the relevant amounts were paid to them when the expropriation took place.
7. On 28 December 1994, following the applicants’ requests for increased compensation, the Mersin Civil Court awarded them an additional compensation of 131,387,300 Turkish liras (TRL) plus interest at the statutory rate, applicable at the date of the court’s decision, running from the date of transfer of title deeds of the plots of land.
8. On 14 September 1998 the Court of Cassation upheld the judgment of the Mersin Civil Court.
9. On 22 June 2000 the General Directorate of National Roads and Highways paid the amount of TRL 556,290,000 to the applicants, interest included.
10. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).


ITEMID: 001-112432
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ZIEMBIŃSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1944 and lives in Kłomnice.
6. He is the proprietor, editor-in-chief and journalist of a local weekly Komu i Czemu, published in the Radomsko and Bełchatów Districts.
7. At the end of May 2005 M.Dz., a local businessman providing services to a district hospital, visited M.D., the district mayor (starosta), to complain about D.K., the director of the hospital. It appears that the hospital owed some money to the businessman. M.Dz. recorded the conversation and the following day passed it on to the applicant.
8. On 2 June 2005 the applicant wrote to the district mayor and asked him to explain why he had delayed informing the prosecution authorities about the alleged corruption at the district hospital. In reaction to the letter, the district mayor summoned D.K. to respond to those allegations. He also sent a copy of the applicant’s letter to the prosecution service asking for the matter to be examined. In his letter to the prosecution service, the district mayor stated that the applicant’s allegations were insinuations aimed at undermining the public trust in him. A copy of this letter was sent to the applicant.
9. On 6 June 2005 M.Dz. notified a local member of parliament (“MP”) that the director of the hospital had received bribes from M.Dz. He stated that his recent conversation with the district mayor indicated that the latter had some knowledge about the bribe-taking. On 14 June 2005 the MP relayed this information to the Minister of Internal Affairs and Administration. Subsequently, the information was transmitted to the Ministry of Justice and then, in turn, to the Piotrków Trybunalski Regional Prosecutor’s Office.
10. In the article “D.K. took bribes” published in issue no. 23 (8-14 June 2005), the applicant stated that “the hospital director was being protected by the district mayor who knew that the subordinate director had taken bribes”. In the article “Corruption of Madame Director” published in issue no. 24 (15-21 June 2005) the applicant wrote that the district mayor had known that D.K. was corrupt but had not notified the prosecution authorities. The same allegation was made in the article published in issue no. 25 (2228 June 2005). In the article “Young prosecutor examines Deszcz [the district mayor]” published in issue no. 28 the applicant stated that “the district mayor is obviously fibbing, because he received information that the director took [bribes] from at least two sources”.
11. On an unspecified date in 2005 the district mayor lodged a private bill of indictment against the applicant with the Piotrków Trybunalski District Court. He accused the applicant of defamation committed through the mass media under Article 212 § 2 of the Criminal Code.
12. The bill of indictment related to two separate charges. The first concerned an article entitled “Hey those district roads” published in issue no. 1 of 2005 in which the applicant had discussed mismanagement of road works in the district. The second charge concerned four articles published by the weekly in June and July 2005 in which the applicant alleged that the district mayor had known that D.K. was corrupt but had failed to inform the prosecution service. The district mayor claimed that the impugned articles lowered his standing in the eyes of the public and undermined the public confidence necessary for the discharge of his duties.
13. On 8 February 2006 the Piotrków Trybunalski District Court gave judgment. It acquitted the applicant of the first charge and convicted him of defamation committed through the mass media in respect of the second charge. The District Court held that the applicant had wrongly alleged in his articles that the district mayor had known that D.K. accepted bribes but had not informed the police about it, despite having been under a duty to do so. Thus, the applicant had lowered D.K.’s public standing and undermined the public confidence necessary for the discharge of his duties. The District Court sentenced the applicant to a fine of 10,000 Polish zlotys (PLN; 2,600 euros (EUR)). It further ordered him to pay the private prosecutor’s costs (PLN 300; EUR 80) and the costs of the State Treasury (PLN 1,000; EUR 260).
14. When examining the first charge against the applicant, the trial court observed that the contours of the offence of defamation specified in Article 212 of the Criminal Code were delimited on one hand by the protection of reputation and dignity of a person and, on the other, by socalled legitimate criticism (dozwolona krytyka) which derived from Article 54 of the Constitution. It noted that in accordance with the Strasbourg case-law political or public activity inevitably resulted in subjecting officials to the judgment of the public opinion. Persons holding important offices were thus required to show a higher degree of tolerance to criticism.
15. In respect of the second charge, the trial court heard evidence from the applicant, the district mayor, M.Dz., D.K. and G.D. (spokesperson of the district mayor). It further heard the recording of the conversation between the district mayor and M.Dz.
16. The District Court observed that the applicant and the district mayor had once been good colleagues; however their relations had deteriorated since M.D.’s election as district mayor in 2002. From then onwards the applicant’s newspaper had begun publishing articles virulently criticising the district mayor and his staff.
17. The court established that the local businessman M.Dz., who provided services to the local hospital and was dissatisfied with his cooperation with the hospital director (D.K.), had informed the district mayor that D.K. had been taking bribes. M.Dz. had recorded his conversation with the district mayor. Subsequently, he had provided the applicant with the content of the recording and informed him that he had given bribes to D.K.
18. The court found that the applicant had alleged in a series of articles published between 15 June and 19 July 2005 that the district mayor had covered up the corruption affair, without having verified the information received from M.Dz. and disregarding the actual content of the recording.
19. The court further established that the applicant, when publishing a series of articles about the alleged corruption affair, had relied exclusively on the recorded conversation between the district mayor and M.Dz. It noted that neither the recording nor the statements of M.Dz. had confirmed the allegation that the district mayor had known about bribe-taking in the hospital, and thus the applicant’s assertions had been untrue. Even if the district mayor had some misgivings about the management of the hospital it could not be inferred from that that he had specific knowledge about the corruption. The trial court noted that allegations of covering-up corruption were of immense gravity and that the applicant had published them without having them verified. It underlined that shortly after having received the applicant’s letter of 2 June 2005 the district mayor referred the matter of corruption allegations to the prosecution service. In the court’s view, the applicant had flagrantly breached the journalistic principles of diligence and objectivity. The court further noted that in none of the impugned articles had the applicant referred to the uncertain nature of the presented information. The applicant, as an experienced journalist, should have been particularly cautious with the information received from the disgruntled businessman as he had been aware of a sharp conflict between him and the hospital management. However, he had failed to display particular diligence and had exploited that information for sensational purposes in making the district mayor and his alleged cover-up of the corruption the central part of his articles. The trial court referred to section 12 of the Press Act which obliged journalists to display particular diligence in gathering and using the information, and, in particular, to verify the truthfulness of obtained information.
20. The District Court held, inter alia, as follows:
“There is no doubt that by imparting information clearly presupposing that M.D. [the district mayor] had allegedly covered up the corruption affair [the applicant] not only did not demonstrate the requisite diligence but in general did not take the trouble to confirm and verify in any way the information he had received. Without having regard to the gravity of the allegations made against M.D., the applicant hastily used the words of his informant for the purposes of settling his scores with M.D. ... The articles discrediting M.D. did not serve anything but the personal satisfaction of [the applicant], and the concern for the respect of law in the local hospital appeared to be of marginal importance.
Having read the series of the above-mentioned articles it is difficult to escape the conclusion that the attention of the applicant was focused on damaging the reputation of the district mayor, while the hospital director D.K. was put on the sidelines. ... Besides, these actions constitute not the only but certainly the most far-reaching element of the personal war with M.D. waged in the weekly Komu i czemu.
Defamation committed with the knowledge that information and opinions concerning the behaviour or characteristics of another person are false never serve to defend a justifiable public interest.
Such actions do not benefit from the protection granted to freedom of expression and the right to criticise under Article 31 § 3 of the Constitution or Article 10 § 2 of the Convention.
The real effect of the applicant’s publication cannot be assessed in isolation from the public office held by M.D. It is obvious that the office of the district mayor must be based on public trust and respect. Imparting by means of mass communication information about the alleged participation of the district mayor in the cover-up of a corruption scandal does not enhance his popularity. It risks not only the loss of the office, but also lowers his public standing creating an atmosphere of scandal and suspicion. ... By attributing to M.D. behaviour constituting an offence and doing so by means of mass communication, M. Ziembiński made out all the statutory features of the offence specified in Article 212 § 2 of the Criminal Code.”
21. The trial court noted that the applicant published four separate articles containing defamatory statements in respect of the district mayor within the period of a few weeks. Those statements fell outside the limits of permissible criticism referred to in Article 213 § 2 of the Criminal Code since they had been untrue.
22. The trial court considered that the degree of the applicant’s guilt was significant and for that reason the proceedings could not have been conditionally discontinued. ’s guilt and his financial standing which was beyond average. With regard to the latter, it had regard to the profits from the ownership of one of the most widely read newspapers in the region. As regards other relevant factors, the court noted that the applicant had deliberately infringed the district mayor’s reputation and had been motivated by personal animosity. At variance with the professional and deontological standards, he failed to respect the requirement of particular diligence when using information at his disposal. The trial court took further into account that the applicant had not in any way recognised that he had acted inappropriately.
23. The applicant appealed. He contested the factual findings of the first-instance court, in particular that the recorded conversation between M.Dz. and the district mayor had constituted the only source of information about the bribe-taking. He further alleged that the first-instance court had erroneously assessed the evidence.
24. On 23 May 2006 the Piotrków Trybunalski Regional Court upheld the first-instance judgment and found the applicant’s appeal manifestly illfounded. It ordered him to pay costs of PLN 1,000 for the appeal proceedings.
25. The Regional Court endorsed the lower court’s findings. It noted that M.Dz. had been in conflict with the director of the hospital which was related to unpaid invoices of his company. In the past he had frequently complained to the district mayor about the director of the hospital.
26. The Regional Court held that the recorded conversation and information passed orally by M.Dz. to the applicant had constituted the only basis of the allegations made against the district mayor. According to the court, there was not a single statement of the district mayor in that conversation indicating that he had been aware of the alleged corruption of the director of the hospital. The allegations made by the applicant had been based on isolated parts of the conversation which were taken out of context. The Regional Court also noted that the applicant had not sought comments from D.K. At the time of the publication the applicant had not disposed of any information corroborating the alleged cover-up of the corruption. Nor had such information been disclosed during the trial. The Regional Court, having regard to the evidence heard by the trial court, found that the district mayor had learnt about the alleged corruption in the local hospital from his conversation with M.Dz. at the end of May 2005 and then from the applicant’s letter of 2 June 2005. It accordingly confirmed that the allegations raised by the applicant in his articles had proved to be untrue.
27. Referring to the case-law of the Strasbourg Court, it recalled that the limits of acceptable criticism were wider with regard to politicians than with regard to private individuals. However, it did not follow from that that the insulting of a politician could go unpunished.
28. The judgment was served on the applicant on 13 June 2006.
29. Article 14 provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”
30. Article 212 provides in so far as relevant:
“§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.
§ 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.”
31. Article 213 provides as follows:
“§ 1. The offence specified in Article 212 § 1 is not committed, if the allegation made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone’s life or to prevent the demoralisation of a minor.”
32. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdańsk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 of the Constitution read in conjunction with Article 31 § 3.
The Constitutional Court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally efficient as criminal law. Protection of personal rights by means of criminal law did not by itself infringe the relevant provisions of the Constitution.
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-58201
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF LOIZIDOU v. TURKEY (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses - claim dismissed
JUDGES: John Freeland;R. Pekkanen
TEXT: 12. The applicant, a Cypriot national, grew up in Kyrenia in northern Cyprus. In 1972 she married and moved with her husband to Nicosia.
13. She is the owner of plots of land nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386 and 5390 in Kyrenia. Prior to the Turkish occupation of northern Cyprus on 20 July 1974, work had commenced on plot no. 5390 for the construction of a block of flats, one of which was intended as a home for her family. The applicant had entered into an agreement with the property developer to exchange her share in the land for an apartment of 100 sq. m. Her ownership of the properties is attested by certificates of registration issued by the Cypriot Lands and Surveys Department at the moment of acquisition.
14. Since 1974 the applicant has been prevented from gaining access to her properties in northern Cyprus and “peacefully enjoying” them as a result of the presence of Turkish forces there.
15. On 19 March 1989 the applicant participated in a march organised by a women’s group (“Women Walk Home” movement) in the village of Lymbia near the Turkish village of Akıncılar in the occupied area of northern Cyprus. The aim of the march was to assert the right of Greek Cypriot refugees to return to their homes.
Leading a group of fifty marchers she advanced up a hill towards the Church of the Holy Cross in the Turkish-occupied part of Cyprus passing the United Nations' guard post on the way. When they reached the churchyard they were surrounded by Turkish soldiers and prevented from moving any further. She was detained by the Turkish Cypriot police for a period of ten hours and subsequently released.


ITEMID: 001-67796
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: AKBINGOL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Seraffedin Akbingöl, is a Turkish national, who was born in 1965 and lives in Plattling. He was represented before the Court by Mrs Angelica Lex, a lawyer practising in Munich.
On 30 June 1997 the applicant was convicted by the Munich Regional Court (Landgericht München) of an offence under the Associations Act (Vereinsgesetz) and sentenced to six months imprisonment on probation. He was found guilty of having participated in Germany in activities of illegal Turkish organisations.
On 31 October 1997 the Public Prosecutor at the Munich Regional Court served the applicant with a notice to pay the costs, including costs for the translation of his telephone conversations from Kurdish and Turkish into German. These conversations were taped in the course of the criminal investigation.
The applicant unsuccessfully challenged the inclusion of the translation costs in this assessment of the costs. On 19 February 1999 his appeal was dismissed by the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) which held, inter alia, that the accused should bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction. The applicant's conviction was mainly based on the telephone tapping. Article 6 § 3 (e) of the Convention did not prevent translation costs being awarded against a convicted person. This provision had the purpose of ensuring that, irrespective of his financial situation, an accused who could not understand or speak the language used in court had the right to an effective defence and accordingly to a fair trial. The free assistance of an interpreter had therefore to cover all the issues which were relevant for the defence. There would be a breach of the principle of equality of arms between the prosecution and the defence where an accused was deprived of the opportunity to have knowledge of these issues.
However, the situation found in the present case did not affect the applicant's rights under Article 6 § 3 (e). The translation of the applicant's telephone conversations was not necessary for his defence. It was required for the investigations to be carried out in a Kurdish or Turkish speaking environment. These costs were therefore excluded from the scope of Article 6 § 3 (e) of the Convention. This provision did not imply that a foreign accused was exempted from the payment of the costs of the investigations in so far as they resulted from the use of his mother tongue.
On 14 April 1999 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint.


ITEMID: 001-89925
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BOUMEDIENE AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicants, Mr Lakhdar Boumediene, Mr Hadj Boudelaa, Mr Mustafa Ait Idir, Mr Mohamed Nechla, Mr Belkacem Bensayah and Mr Saber Lahmar, are Algerian citizens who were born in 1966, 1965, 1970, 1968, 1962 and 1969 respectively. Mr Boudelaa, Mr Ait Idir and Mr Nechla are also citizens of Bosnia and Herzegovina. They were represented before the Court by Mr Y. van Gerven, a member of the law firm WimerHale, Brussels. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 20 December 1997 Mr Boumediene was granted citizenship of Bosnia and Herzegovina (“BH”) on the basis of a forged document indicating that he had joined the ranks of the Army of the Republic of Bosnia and Herzegovina (“the ARBH”) during the 1992-95 war (for more information as to the relationship between the foreign Muslim fighters and the ARBH see the following judgments of the International Criminal Tribunal for the former Yugoslavia: The Prosecutor v. Enver Hadžihasanović and Amir Kubura, judgment of 15 March 2006, §§ 403-853, and The Prosecutor v. Rasim Delić, judgment of 15 September 2008, §§ 165-199 and 356-471). The applicant now claims that he actually arrived in Bosnia and Herzegovina in April 1997 to work for the Red Crescent Society of the United Arab Emirates (a member of the International Red Cross and Red Crescent Movement).
4. Mr Boudelaa joined the ranks of the ARBH during the 1992-95 war (allegedly as a cook) and obtained BH citizenship on that basis on 2 January 1995. It would appear that he was initially employed by the Benevolence International Foundation and then by Human Appeal International.
5. Allegedly, Mr Ait Idir was working for the International Islamic Relief Organisation (Igasa) in Croatia when he obtained BH citizenship on 5 January 1995. He allegedly moved to Bosnia and Herzegovina shortly thereafter to work first for the Qatar Charitable Society and then for Taibah International as an IT administrator.
6. Allegedly, Mr Nechla was working for the Red Crescent Society of the United Arab Emirates in Albania when he obtained BH citizenship on 25 August 1995. He allegedly moved to Bosnia and Herzegovina in 1997.
7. On 4 January 1995 Mr Bensayah was granted BH citizenship under the name of Abdulkarim al-Sabahi from Yemen, on the basis of a forged Yemeni passport. Allegedly, he arrived in Bosnia and Herzegovina shortly thereafter to work for the Balkan Islamic Centre. After the Centre’s closure he remained in Bosnia and Herzegovina, but did not work.
8. On 4 April 1997 the BH authorities issued Mr Lahmar with a permanent residence permit on the basis of a document indicating that he had arrived in Bosnia and Herzegovina during the 1992-95 war. The applicant now claims that he actually arrived in Bosnia and Herzegovina in 1997 to work for the Saudi High Commission.
9. On 24 February 1998 the applicant was convicted on two counts of aggravated assault and robbery and sentenced to imprisonment for five years and eight months. One of his victims was a citizen of the United States (“the US”). On 7 January 2000 the applicant was released on parole.
10. On 8 October 2001 the home of Mr Bensayah was searched and he was arrested on suspicion of residing in Bosnia and Herzegovina under a false name (Mr Abdulkarim al-Sabahi from Yemen). He was then interrogated by US officials. They confronted Mr Bensayah with allegations that a note with a phone number belonging to Mr Zayn Hussein had been found during the home search and that the two had discussed passport procurement over the phone on many occasions since the attacks of 11 September 2001.
11. On 16 October 2001 the US intelligence reportedly tapped a conversation on Mr Lahmar’s phone which included a coded reference to a forthcoming attack on the US and United Kingdom (“UK”) embassies in Sarajevo. Furthermore, the local police discovered that Mr Lahmar’s father-in-law worked as a janitor in the US embassy in Sarajevo.
12. On 17 October 2001 the US and UK authorities closed their embassies in Sarajevo, citing “credible security threats”.
13. On 18 October 2001 the local police arrested Mr Lahmar. On 20 October 2001 the local police arrested Mr Boumediene, after he had retained a lawyer for Mr Bensayah. Mr Boumediene had allegedly first heard of Mr Bensayah when Mr Bensayah’s wife contacted him and asked for assistance in finding a lawyer for her husband. Mr Boudelaa, Mr Ait Idir and Mr Nechla, acquaintances of Mr Boumediene, were also arrested. The applicants were suspected of having planned a terrorist attack on the US and UK embassies in Sarajevo.
14. On 22 October 2001 the US and UK embassies were reopened.
15. In November 2001 (while the applicants were in pre-trial detention) the competent administrative authorities stripped Mr Boumediene, Mr Boudelaa, Mr Ait Idir, Mr Nechla and Mr Bensayah of their BH citizenship. Following appeals by Mr Boumediene, Mr Boudelaa, Mr Ait Idir and Mr Nechla, their BH citizenship was subsequently restored. Mr Bensayah did not appeal.
16. In November 2001 the competent administrative authorities also terminated the BH residence permit of Mr Lahmar. He appealed, but it would appear that no decision was taken.
17. On 10 January 2002 all six applicants were banned from entering Bosnia and Herzegovina for ten years.
18. On 12 January 2002 the Algerian authorities refused the request by Bosnia and Herzegovina to accept the applicants.
19. Between 14 and 16 January 2002 Mr Boumediene, Mr Boudelaa, Mr Nechla and Mr Lahmar requested the domestic Human Rights Chamber to prevent their removal from BH territory.
20. On 17 January 2002 the United States informed Bosnia and Herzegovina that it was willing to take custody of the applicants.
21. On 17 January 2002 at about 3 p.m. the competent court ordered the applicants’ release.
22. On 17 January 2002 at about 6 p.m. the Human Rights Chamber ordered that all necessary steps be taken to prevent the forcible removal of Mr Boumediene, Mr Boudelaa, Mr Nechla and Mr Lahmar.
23. On 18 January 2002 at about 6 a.m. the applicants were handed over to US forces operating as part of SFOR. It would appear that the applicants arrived at the US Naval Base at Guantánamo Bay (in Cuba) on 20 January 2002, stopping at the US Air Force Base at Incirlik (in Turkey).
24. On 20 February 2002 applications were filed before the Human Rights Chamber on behalf of Mr Ait Idir and Mr Bensayah.
25. On 11 October 2002 the Human Rights Chamber delivered its decision in the case of Mr Boumediene, Mr Boudelaa, Mr Nechla and Mr Lahmar. It found numerous violations of the European Convention on Human Rights and ordered Bosnia and Herzegovina, among other things:
(a) “to use diplomatic channels in order to protect the basic rights of the applicants” and, in particular, “to take all possible steps to establish contacts with the applicants and to provide them with consular support”;
(b) “to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants, including attempts to seek assurances from the US via diplomatic contacts that the applicants [would] not be subjected to the death penalty”; and
(c) “to retain lawyers authorised and admitted to practice in the relevant jurisdictions and before the relevant courts, tribunals or other authoritative bodies in order to take all necessary action to protect the applicants’ rights while in US custody and in case of possible military, criminal or other proceedings involving the applicants”.
26. On 18 October 2002 the BH Deputy Minister of Foreign Affairs informed the US Ambassador to Bosnia and Herzegovina of the legal obligations of Bosnia and Herzegovina deriving from the Human Rights Chamber’s decision, and requested cooperation from the United States.
27. On 7 November 2002 the competent administrative authorities quashed the decisions of 10 January 2002 banning Mr Boumediene, Mr Boudelaa, Mr Nechla and Mr Lahmar from entering Bosnia and Herzegovina.
28. On 4 April 2003 the Human Rights Chamber delivered its decisions concerning Mr Ait Idir and Mr Bensayah. They were largely in line with the decision concerning Mr Boumediene, Mr Boudelaa, Mr Nechla and Mr Lahmar, with an additional order that all possible steps be taken to obtain the release of Mr Ait Idir and his return to Bosnia and Herzegovina.
29. On 18 April 2003 the competent administrative authorities quashed the decisions of 10 January 2002 banning Mr Ait Idir and Mr Bensayah from entering Bosnia and Herzegovina.
30. In response to the request of 18 October 2002, the US authorities sent a non-paper to the BH authorities on 20 May 2003. Its relevant part reads as follows:
“For governments wishing access to their nationals in Guantánamo, the following information may be provided:
...
-- Requests for access to US Naval Base Guantánamo will be granted only for law enforcement or intelligence collection purposes. Issues pertaining to conditions of detention are to be addressed through the International Committee of the Red Cross.
-- Official requests from foreign governments for access to their nationals detained at Guantánamo will be made to the Department of State.
...
-- Department of Defense security, law enforcement and/or intelligence personnel will be present at all times during the interviews and may end the interview at any time when, in the opinion of the senior Defense representative, the security of US personnel, facilities, or detainees is at risk.
-- Foreign government officials will normally be permitted access to their nationals and will not to detainees of other nationalities.”
31. Shortly thereafter, the BH authorities received another non-paper from the US authorities. It reads as follows:
“Release of Guantanamo detainees from USG Control:
-- The US is in the process of transferring for release 27 detainees from Guantánamo. Your nationals are not among this group, although we continue to review their individual cases.
-- The decision to release these detainees is the result of an on-going screening process at GTMO where we determine whether a detainee is to be prosecuted and/or detained by the USG, transferred to his home country for continued detention and/or prosecution, or released.
-- In order to maintain security at the US detention facilities at Guantánamo, and in order to protect the safety of any detainees who may be transferred or released, the US Government does not intend to comment publicly on the details of any such movements.
-- We intend to limit our public comments on such matters to responding to inquiries from the press, only after a transfer or release from Guantánamo has occurred. At this time we do not intend to identify individuals or the countries to which they have been moved.
-- Details regarding transfers or releases are communicated to the governments whose nationals are concerned, and/or to whose control detainees may be transferred.
-- Please be assured that we will notify you promptly if the US Government decides to transfer or release any of your country’s nationals presently detained at Guantánamo. In such event, we would work with you to arrange the details of any transfer or release.”
32. On 30 June 2003 the BH Council of Ministers assigned A.H., the BH Vice-Consul in New York, to visit the applicants.
33. On 19 July 2003 the BH Ministry of Foreign Affairs informed the BH Council of Ministers that the United States did not permit visits from consular authorities to the detention centre at Guantánamo Bay. It suggested that a terrorism expert from the BH Ministry of Security or the BH Ministry of Justice be assigned.
34. On 15 September 2003 the BH authorities assigned A.P., of the BH Ministry of Justice, to visit the applicants.
35. On 15 December 2003 a BH official held a meeting with the applicants’ wives at which they were informed about the intention of the BH authorities to visit the applicants.
36. On 26 December 2003 the BH Ministry of Foreign Affairs formally requested access to four BH citizens (namely Mr Boumediene, Mr Boudelaa, Mr Ait Idir and Mr Nechla). A list of intended questions was attached as requested. In addition, the BH Ministry of Foreign Affairs requested access to Mr Bensayah and Mr Lahmar, although Mr Bensayah was no longer and Mr Lahmar never had been a BH citizen.
37. On 21 April 2004, following a complaint by N.D., Mr Boudelaa’s wife under Islamic law, a parliamentary committee of the BH Parliament requested all the competent authorities to promptly take all possible steps to obtain the applicants’ return to Bosnia and Herzegovina.
38. On 24 June 2004 the BH prosecution authorities formally ended all investigations against the applicants with regard to any suspicion of terrorism.
39. On 15 July 2004 the US authorities, in a diplomatic note, invited A.P., of the BH Ministry of Justice, to visit four BH citizens at the detention centre at Guantánamo Bay from 26 to 29 July 2004, for intelligence and law enforcement purposes. The diplomatic note did not address the request of the BH authorities concerning Mr Bensayah and Mr Lahmar.
40. On 27 and 28 July 2004 A.P., of the BH Ministry of Justice, visited Mr Boumediene, Mr Boudelaa, Mr Ait Idir and Mr Nechla at the detention centre at Guantánamo Bay. A.P. had authorisation to ask fifteen questions to which the US authorities had previously agreed. They primarily concerned the applicants’ activities in Bosnia and Herzegovina. Mr Ait Idir and Mr Boudelaa refused to respond. The last question was in relation to the applicants’ treatment in US custody. They all complained of inadequate medical attention. The request by the BH official for permission to visit the applicants’ cells was refused.
41. In October 2004 the applicants were designated as “enemy combatants” by the competent Combatant Status Review Tribunals. The US Secretary of Defence established a Combatant Status Review Tribunal process to determine whether the individuals detained at Guantánamo Bay were enemy combatants and to give each detainee the opportunity to contest that designation. An “enemy combatant” is defined as “an individual who was part of or supporting Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces” (see the Memorandum of 14 July 2006 on Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay).
42. Following their meeting in Washington, on 2 February 2005 the BH Prime Minister sent a letter to the US Secretary of State seeking the return to Bosnia and Herzegovina of Mr Boumediene, Mr Boudelaa, Mr Ait Idir and Mr Nechla. The response dated 3 March 2005 reads as follows:
“Thank you for your letter concerning the continued detention of the Bosnian-Algerian nationals by US authorities at the US Naval Base, Guantánamo Bay, Cuba.
The United States continues to evaluate the possibility of transferring individuals presently detained at Guantánamo to their countries of nationality. Options available to the United States include: (1) release if the detainee no longer poses a threat; (2) transfer to the detainee’s home country for monitoring, investigation, detention, and/or prosecution as appropriate; or (3) continued detention or prosecution by the United States. The objective of the US transfer policy is to reduce the number of individuals under US control in the course of the war on terrorism, consistent with the national security, intelligence and law enforcement interests of the United States.
Detainees also receive due process and have access to our federal courts to contest their continued detention by US authorities in Guantánamo. As of February 2005, the status of each detainee at Guantánamo Bay has been reviewed by a Combatant Status Review Tribunal (CSRT) to determine, in a fact-based proceeding, whether the individual is still properly classified as an enemy combatant. Your Government has been informed of these proceedings and notified of tribunal results in each case.
The detention of each detainee will also be reviewed annually by an Administrative Review Board (ARB). The ARB assesses whether an enemy combatant continues to pose a threat to the United States or its allies, or whether there are other factors bearing on the need for continued detention. The process permits the detainee to appear in person before an ARB panel of three military officers to explain why the detainee is no longer a threat to the United States or its allies and to provide factual information to support the detainee’s release. We would welcome any information your Government would like to submit for consideration in this process.
Detainees also have the option of filing a petition, called a writ of habeas corpus, in US federal courts. This petition enables detainees to contest their continued detention, with the assistance of a legal representative, by requesting an independent judicial review of the circumstances of their detention at Guantánamo.
The current assessment of the Bosnian-Algerian nationals indicates that each continues to possess significant intelligence value and pose a continuing threat to US security interests.
We will inform your Government at such a time when this assessment changes and we can consider the possibility of transferring them to Bosnia and Herzegovina under certain conditions.”
43. In an undated response to a formal enquiry from US Senator Jeffords, the US Department of State declared on 15 June 2005 that the BH Government had not indicated that they were prepared or willing to accept responsibility for the applicants upon transfer.
44. On 28 November 2005 the BH Ministry of Foreign Affairs confirmed to the law firm WilmerHale (the applicants’ representatives) that the BH authorities were willing to accept all their citizens detained at Guantánamo Bay and that their return to Bosnia and Herzegovina had been sought unsuccessfully from the US authorities.
45. In November and December 2005 the competent Administrative Review Boards recommended the continued detention of the applicants. The US Secretary of Defence established Administrative Review Procedures to determine annually whether enemy combatants detained at the US Naval Base at Guantánamo Bay should be released, transferred or continue to be detained (see the Memorandum of 14 July 2006 on Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay).
The law firm WilmerHale made submissions to those Boards on behalf of the applicants. Among other things, WilmerHale contested the credibility of the statements made by Mr Ali Ahmed Ali Hamad (Mr Lahmar’s ex-brother-in-law and a presumed informant for the US authorities). They also maintained that an expert analysis of Mr Bensayah’s telephone records – conducted by order of the Supreme Court of the Federation of Bosnia and Herzegovina – had failed to find any support for the allegation that Mr Bensayah had been in contact with Mr Zayn Hussein (see paragraph 10 above). Lastly, WilmerHale stressed that the BH authorities had clearly demonstrated their “unequivocal commitment to repatriating the six men to Bosnia”.
46. On 5 April 2006 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (“the Human Rights Commission”), the legal successor to the Human Rights Chamber, examined a complaint by Mr Boudelaa’s wife under Islamic law. It held that the domestic authorities had failed to take all possible steps to protect the basic rights of the applicants and to prevent the death penalty from being pronounced against them. The decision criticised the authorities for taking a “particularly passive attitude” towards the entire matter, including failing even to make a written submission to the Human Rights Commission. The Human Rights Commission considered the complaint concerning non-enforcement of the order to retain lawyers for the applicants to be premature, because no military, criminal or other proceedings had been instituted against them.
47. On 9 October 2006 the competent administrative body stripped Mr Boumediene of his BH citizenship on the ground that it had been obtained on the basis of a forged document.
48. In October and November 2006 the competent Administrative Review Boards again recommended the continued detention of the applicants. The unclassified summary of evidence contains numerous allegations against the applicants, including the following:
(a) that Mr Boudelaa had fought with the Taliban and come into contact with several al-Qaida fighters and operatives;
(b) that Mr Ait Idir had made threats against SFOR personnel in 1999 and exhorted others to kidnap and kill SFOR soldiers and western civilians;
(c) that Mr Bensayah had been the primary al-Qaida facilitator in Bosnia and Herzegovina, had almost two million euros deposited in a bank in Sarajevo and had applied for an Iranian visa in September 2001 for onward travel to Afghanistan; and
(d) that Mr Lahmar had been attempting to assume leadership of the Armed Islamic Group (GIA) in Bosnia and Herzegovina, had proposed attacks on US troops to a local religious council (the shura), had expressed a desire to blow up US soldiers, made threats against the international community in Bosnia and Herzegovina and applied for an Iranian visa in September 2001.
The applicants denied the allegations.
49. On 7 March and 17 April 2007 Mr M.D. Fooks of the US Department of State and Mr D. Zelenika of the BH Embassy in Washington discussed the applicants’ status at meetings in Washington.
50. On 6 August 2007 the BH authorities sent a diplomatic note to the US authorities, the relevant part of which reads as follows:
“Appreciating the hitherto cooperation with the Government of the United States of America regarding these cases, and having in mind the intention of Bosnia and Herzegovina to fulfil its international obligations, as well as obligations that follow from rulings of domestic courts, the Council of Ministers of Bosnia and Herzegovina is asking the Government of the United States of America for guarantees that the above-mentioned persons will not be sentenced to death or executed, as well as that the above-mentioned persons will not be subjected to torture, degrading, and inhuman treatment.
The Ministry of Foreign Affairs of Bosnia and Herzegovina reminds once again of the before mentioned Resolution of the Council of Europe which invites member states ‘to enhance their diplomatic and consular efforts to protect the rights and ensure the release of any of their citizens, nationals or former residents currently detained at Guantánamo Bay, whether legally obliged to do so or not’.”
The relevant part of the response of the US embassy in Sarajevo dated 4 September 2007 reads as follows:
“The Embassy has the honor to inform the Ministry that the United States is a party to the Geneva Conventions of 1949, and notes that Common Article 3 of those Conventions specifically prohibits ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,’ as well as ‘humiliating and degrading treatment’ of detainees in an armed conflict not of an international character. The Embassy also notes that US domestic law prohibits torture of any detainee in US custody, and also prohibits cruel, humiliating or degrading treatment as defined by the US reservation to the Convention Against Torture. The Embassy assures the Government of Bosnia and Herzegovina that the United States strictly adheres to Common Article 3 and US domestic law in its treatment of all detainees at Guantánamo Bay.
The Embassy also informs the Ministry that the Military Commissions Act of 2006, which authorized the President to establish military commissions to try unlawful enemy combatants for crimes including the laws of war, does contemplate the death penalty as a potential sentence for those convicted of the most serious crimes. With regards to the specific detainees referenced in the Ministry’s note, the Embassy understands that the United States Department of Defense does not intend to seek the death penalty in those cases.”
51. On 12 June 2008 the US Supreme Court, by a majority, held that the applicants had illegally been denied access to habeas corpus (Boumediene v. Bush, 553 U.S. __ (2008)). The concluding paragraphs of the majority opinion read as follows:
“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”
52. On 27 February 2006 five holders of mandates of special procedures of the former Commission on Human Rights submitted a joint report on the situation of detainees at Guantánamo Bay (E/CN.4/2006/120). The conclusions read as follows:
“83. International human rights law is applicable to the analysis of the situation of detainees in Guantánamo Bay. Indeed, human rights law applies at all times, even during situations of emergency and armed conflicts. The war on terror, as such, does not constitute an armed conflict for the purposes of the applicability of international humanitarian law. The United States of America has not notified to the Secretary-General of the United Nations or other States parties to the treaties any official derogation from the International Covenant on Civil and Political Rights [hereinafter ‘ICCPR’] or any other international human rights treaty to which it is a party.
84. The persons held at Guantánamo Bay are entitled to challenge the legality of their detention before a judicial body in accordance with article 9 of ICCPR, and to obtain release if detention is found to lack a proper legal basis. This right is currently being violated, and the continuing detention of all persons held at Guantánamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.
85. The executive branch of the United States Government operates as judge, prosecutor and defence counsel of the Guantánamo Bay detainees: this constitutes serious violations of various guarantees of the right to a fair trial before an independent tribunal as provided for by article 14 of the ICCPR.
86. Attempts by the United States Administration to redefine ‘torture’ in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last years is particularly alarming.
87. The interrogation techniques authorised by the Department of Defence, particularly if used simultaneously, amount to degrading treatment in violation of article 7 of ICCPR and article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in article 1 of the Convention. Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10, paragraph 1, of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.
88. The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force-feeding of detainees on hunger strike must be assessed as amounting to torture as defined in article 1 of the Convention against Torture.
89. The practice of rendition of persons to countries where there is a substantial risk of torture, such as in the case of Mr Al Qadasi, amounts to a violation of the principle of non-refoulement and is contrary to article 3 of the Convention against Torture and article 7 of ICCPR.
90. The lack of any impartial investigation into allegations of torture and ill-treatment and the resulting impunity of the perpetrators amount to a violation of articles 12 and 13 of the Convention against Torture.
91. There are reliable indications that, in different circumstances, persons detained in the Guantánamo Bay detention facilities have been victims of violations of the right to freedom of religion or belief, contrary to article 18 of ICCPR and the 1981 [Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief]. It is of particular concern that some of these violations have even been authorised by the authorities. In addition, some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees.
92. The totality of the conditions of their confinement at Guantánamo Bay constitute a right-to-health violation because they derive from a breach of duty and have resulted in profound deterioration of the mental health of many detainees.
93. There are also serious concerns about the alleged violations of ethical standards by health professionals at Guantánamo Bay and the effect that such violations have on the quality of health care, including mental health care, the detainees are receiving.
94. The treatment of the detainees and the conditions of their confinement have led to prolonged hunger strikes. The force-feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved.”
53. On 26 April 2005 the Parliamentary Assembly of the Council of Europe adopted Resolution 1433 (2005), the relevant part of which provides:
“1. The Parliamentary Assembly recalls and restates its outrage and disgust at the terrorist attacks on the United States of America of 11 September 2001, the horror of which has not been dimmed by the passage of time. It shares the United States’ determination to combat international terrorism and fully endorses the importance of detecting and preventing terrorist crimes, prosecuting and punishing terrorists and protecting human lives.
2. Whilst the Assembly therefore offers its full support to the United States in its efforts to fight terrorism, this must be on condition that all measures taken are fully respectful of human rights and the rule of law. Conformity with international human rights and humanitarian law is not a weakness in the fight against terrorism but a weapon, ensuring the widest international support for actions and avoiding situations which could provoke misplaced sympathy for terrorists or their causes.
3. The United States has long been a beacon of democracy and a champion of human rights throughout the world and its positive influence on European development in this respect since the Second World War is greatly appreciated. Nevertheless, the Assembly considers that the United States Government has betrayed its own highest principles in the zeal with which it has attempted to pursue the ‘war on terror’. These errors have perhaps been most manifest in relation to Guantánamo Bay.
4. At no time have detentions at Guantánamo Bay been within a ‘legal black hole’. International human rights law has at all times been fully applicable to all detainees. For those captured during the international armed conflict in Afghanistan, protection of certain rights may have been complemented by the provisions of international humanitarian law (IHL) for the duration of that conflict. Since that international armed conflict ceased, however, international human rights standards have applied in the normal fashion.
5. The Assembly applauds and supports the work of the International Committee of the Red Cross (ICRC) and the various United Nations human rights protection mechanisms, along with that of non-governmental organisations including Human Rights First, the Center for Constitutional Rights and Amnesty International, in striving to improve detention conditions at Guantánamo Bay and ensure that detainees’ rights are respected. It also thanks the European Commission for Democracy through Law (Venice Commission) for its opinion on the possible need for further development of the Geneva Conventions, produced in response to a request from the Assembly’s Committee on Legal Affairs and Human Rights.
6. The Assembly recalls the evidence provided by Mr Jamal Al Harith, former detainee, along with lawyers representing current and former detainees and other international experts, at the hearing held by its Committee on Legal Affairs and Human Rights in Paris on 17 December 2004.
7. On the basis of an extensive review of legal and factual material from these and other reliable sources, the Assembly concludes that the circumstances surrounding detentions by the United States at Guantánamo Bay show unlawfulness and inconsistency with the rule of law, on the following grounds:
i. many if not all detainees have been subjected to cruel, inhuman or degrading treatment occurring as a direct result of official policy, authorised at the very highest levels of government;
ii. many detainees have been subjected to ill-treatment amounting to torture which has occurred systematically and with the knowledge and complicity of the United States Government;
iii. the right of those detained in connection with the international armed conflict previously conducted by the United States in Afghanistan to be presumptively recognised as prisoners of war (POWs) and to have their status independently determined by a competent tribunal was not respected;
iv. there have been numerous violations of various aspects of all detainees’ rights to liberty and security of the person, making their detention arbitrary;
v. there have been numerous violations of various aspects of all detainees’ rights to fair trial, amounting to a flagrant denial of justice;
vi. the United States has engaged in the unlawful practice of secret detention;
vii. the United States has, by practising ‘rendition’ (removal of persons to other countries, without judicial supervision, for purposes such as interrogation or detention), allowed detainees to be subjected to torture and to cruel, inhuman or degrading treatment, in violation of the prohibition on non-refoulement;
viii. the United States’ proposals to return or transfer detainees to other countries, even where reliant on ‘diplomatic assurances’ concerning the detainees’ subsequent treatment, risk violating the prohibition on non-refoulement.”
For the above reasons, the member States of the Council of Europe were called on:
“i. to enhance their diplomatic and consular efforts to protect the rights and ensure the release of any of their citizens, nationals or former residents currently detained at Guantánamo Bay, whether legally obliged to do so or not;
ii. with respect to any of their citizens, nationals or former residents who have been returned or transferred from detention at Guantánamo Bay:
a. to treat such persons according to the usual provisions of criminal law, respecting the presumption in favour of immediate liberty on arrival;
b. to provide such persons with all necessary support and assistance, in particular legal aid to bring cases relating to detention at Guantánamo Bay;
c. to protect such persons from prejudice or discrimination and to ensure their mental and physical well-being during the process of reintegration;
d. to ensure that such persons do not suffer detriment to their rights or interests as a result of being held in unlawful detention at Guantánamo Bay, especially in relation to immigration status;
iii. not to permit their authorities to participate or assist in the interrogation of Guantánamo Bay detainees;
iv. to respect their obligations under international law to exclude any statement established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment from any proceedings, except against a person accused of such ill-treatment as evidence that the statement was made;
v. to refuse to comply with United States’ requests for extradition of terrorist suspects liable to detention at Guantánamo Bay;
vi. to refuse to comply with United States’ requests for mutual legal assistance in relation to Guantánamo Bay detainees, other than by providing exculpatory evidence, or unless in connection with legal proceedings before a regularly constituted court;
vii. to ensure that their territory and facilities are not used in connection with practices of secret detention or rendition in possible violation of international human rights law;
viii. to respect the erga omnes nature of human rights by taking all possible measures to persuade the United States authorities to respect fully the rights under international law of all Guantánamo Bay detainees.”
54. The Inter-American Commission on Human Rights is an autonomous organ of the Organisation of American States. On 20 August 2008 it issued urgent precautionary measures in favour of Mr Djamel Ameziane, an Algerian citizen held by the United States at the detention centre at Guantánamo Bay since 2002. Specifically, the Commission requested that the United States:
“1. Immediately take all measures necessary to ensure that Mr. Djamel Ameziane is not subjected to cruel, inhuman or degrading treatment or torture during the course of interrogations or at any other time, including but not limited to all corporal punishment and punishment that may be prejudicial to Mr. Ameziane’s physical or mental health;
2. Immediately take all measures necessary to ensure that Mr. Djamel Ameziane receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition;
3. Take all measures necessary to ensure that, prior to any potential transfer or release, Mr. Djamel Ameziane is provided an adequate, individualized examination of his circumstances through a fair and transparent process before a competent, independent and impartial decision maker; and
4. Take all measures necessary to ensure that Mr. Djamel Ameziane is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment, and that diplomatic assurances are not used to circumvent the United States’ non-refoulement obligations.”
55. In accordance with Article 239 of the Criminal Code 2003 (Krivični zakon Bosne i Hercegovine; published in the Official Gazette of Bosnia and Herzegovina (“OG BH”) nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003; amendments published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006 and 32/07 of 30 April 2007), non-enforcement of a final and enforceable decision of the Human Rights Chamber amounts to a criminal offence:
“An official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.”
56. On 13 November 2001 the President of the United States issued a military order entitled “Detention, treatment, and trial of certain non-citizens in the war against terrorism” (66 FR 57833). The relevant part of the order reads as follows:
“By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:
(a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government.
(d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.
(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.
(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.
(a) The term ‘individual subject to this order’ shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this order.
(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.
Any individual subject to this order shall be
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
With respect to any individual subject to this order
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”


ITEMID: 001-76187
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF UYANIK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1937 and lives in Ankara.
5. On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place.
6. Following the applicant’s request, on 21 December 1993 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable.
7. On 20 June 1994 the Court of Cassation upheld that judgment.
8. On 4 February 1998 the amount of 3,600,000,000 Turkish liras (TRL) was paid to the applicant.
9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV, §§ 13-16).