ITEMID: 001-80869
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ANIK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive asoect);Violation of Art. 2 (procedural aspect)
TEXT: 4. The first applicant is the brother and the second applicant is the wife of Mr Ahmet Anık, who was born in 1959 and killed by members of the security forces on 19 August 1999. The third to eighth applicants are the children of Mr Ahmet Anık.
5. The ninth applicant was the father and the tenth applicant is the mother of Mr Abdulkerim Sanrı, who was born in 1981 and also killed by members of the security forces on 19 August 1999. The eleventh and twelfth applicants are the brothers of Mr Abdulkerim Sanrı.
6. The facts of the case as presented by the applicants and the Government are based on a number of documents drawn up in the course of the domestic investigation. The following information appears from the parties' submissions as well as from the documents submitted by them.
7. Ahmet Anık and Abdulkerim Sanrı (hereinafter “the two village guards”) had been living in the Balveren village and employed by the State as provisional village guards. Their duties included providing guidance to the armed forces about a particular area near their village where there was intense PKK activity.
8. The area in question was situated to the south of an asphalt road which ran between the city of Şırnak and the town of Uludere. The two village guards and a team of soldiers from the nearby Milli gendarmerie station would take up positions on Yaylatepe, a hill from where they could maintain the security of the road. The distance between the top of Yaylatepe and the road was approximately 600 metres and a footpath connected the two. From their positions, the soldiers and the two village guards would also observe another footpath which ran in a river bed between Yaylatepe and the Ömerağa hills. This footpath was frequently used by PKK terrorists on their way to and from Northern Iraq. Ömerağa was 1,500 metres to the south-east of Yaylatepe. 2,500 metres to the north-east of Yaylatepe was Elmalı, from where soldiers would monitor the area at night with the help of thermal cameras.
9. In the morning the two village guards would walk the short distance of 400 metres from their village to the gendarmerie station where they would report their arrival at 6 a.m. From the gendarmerie station they would walk, together with the soldiers, to Yaylatepe, a distance of two kilometres. At the end of their shift they would return to the gendarmerie station together with the soldiers. If it was dark, they would be driven to their village from the gendarmerie station in military vehicles, otherwise they would walk. For security reasons, no civilians or even village guards would be allowed to remain or enter the area in question or use the asphalt road during the hours of darkness. Any civilians who needed to use the road at night time in case of an emergency would inform the local gendarmerie station beforehand and they would be observed by night vision binoculars and thermal cameras until they were out of the area.
10. On 24 August 1999 sub-Lieutenant Hakan Paç submitted in his statement taken by the Şırnak prosecutor that he had been in charge of the soldiers and the two village guards, who had taken up positions on Yaylatepe on 18 August 1999. At 8 p.m. he had grouped his men and, upon the arrival of a team of soldiers at 8.45 p.m. who were to take over the command of the hill from him, his men had started walking down the hill. He had stayed behind to ensure that no one was left. In accordance with usual practice, the two village guards had been walking ahead of the soldiers. He had been able to see the soldiers reach the main road and thereafter continue to walk towards the station. However, he thought that the two village guards must have turned off the footpath before reaching the main road; it was not his duty to check whether the two village guards had safely reached their village.
11. It appears from a post-incident report drawn up on 20 August 1999 that, at 11 p.m. on 18 August 1999, the soldiers positioned on Elmalı had observed two persons on the slopes of Yaylatepe. Having established that no one had been given authorisation to be in that area, a number of military units were deployed to the vicinity of Yaylatepe. By 1.15 a.m. on 19 August the two persons had been surrounded by soldiers, some of whom had taken up positions on Yaylatepe.
12. Two groups of soldiers fired a number of 120 mm mortars in the direction of the two persons. Flares were also fired and the two were ordered to surrender. However, they started running towards Yaylatepe, and the distance between them and the soldiers on Yaylatepe was down to approximately 200 metres when the soldiers fired in the air to warn them. When the two failed to stop, the soldiers fired directly at them. The time by then was 1.30 a.m., according to the report.
13. At dawn the soldiers approached the bodies and established that they were the two village guards. In the opinion of the authors of this report – the military officers in charge of the operation – the two village guards had left the group of soldiers on their way down from Yaylatepe in order to help PKK members enter northern Iraq or plant land mines in the area.
14. According to the on-site report prepared by the soldiers on 19 August 1999, the two village guards had been shot in the head and chest. Their bodies had been found on the slopes of Yaylatepe, fifty metres from the top of the hill. Two hand grenades had exploded approximately 50 centimetres away from the bodies. The pins belonging to these hand grenades had been found 30 metres away from the bodies, further up the hill.
15. According to the same report, there was no ammunition on the body of Abdulkerim Sanrı, but there were three loaded bullet cartridges belonging to a Kalashnikov rifle and a hand grenade in a military style vest worn by the deceased Ahmet Anık. The rifles belonging to the two village guards were found two hundred metres away from their bodies, next to a rock, at the side of the main road. The barrels of the rifles smelt and bore traces of gun powder, indicating that they had been fired. Next to the two rifles was Abdulkerim Sanrı's military style vest with three loaded bullet cartridges belonging to a Kalashnikov rifle and a hand grenade in one of its pockets. Also, 30 metres away from the bodies were a number of spent bullet cases discharged from G3 and BKC rifles. A sketch, detailing the features of the area and showing the position of the bodies together with the discharged ammunition, was drawn up and appended to this report and forwarded to the public prosecutor's office in Şırnak.
16. On 19 August 1999 the Şırnak public prosecutor and a doctor visited the area to examine the bodies. According to the report drawn up by the prosecutor and the doctor, there were extensive injuries to the heads, chests and various other parts of the bodies. It concluded that “as the cause of death was so obvious, there was no reason to carry out classical autopsies”.
17. The prosecutor took a number of statements in the course of his investigation. These statements, insofar as they are relevant to the Court's examination of the case, are summarised below.
18. Captain Ömer Arslan was the commander of the soldiers positioned on Elmalı on the day of the incident. He recounted in his statement of 24 August 1999 that, at 11.10 p.m. on 18 August 1999, with the use of thermal cameras, he had seen two persons in the area and informed the battalion commander. The battalion commander had ordered him to continue to observe and record the two people by thermal camera. As the two persons had been behaving suspiciously, he and the soldiers under his command had thought that they were terrorists.
19. The military unit on Elmalı had then been deployed to ambush the two people. He had been able to see that mortars and flares were fired. He had also heard Lieutenant Alpaslan Güldal asking the two to surrender and to lie on the asphalt road. At that moment the two persons, who were standing next to the road, had attempted to escape and the soldiers from his military unit had fired towards them. He thought that one of the two persons had been shot and, in his opinion, there were blood stains on an adjacent rock. The two people had then escaped towards the hill and “were exterminated there”.
20. Lieutenant Güldal recounted in his statement of 24 August 1999 that, on the day of the events, he had been in charge of the soldiers on Ömerağa hill. Upon receiving information that there were two persons in the area who were acting suspiciously, he had been ordered by the battalion commander to apprehend the two persons. He had then taken his team to Yaylatepe. As it was dark, he had been unable to see the two people but Captain Arslan, who was watching the area with a thermal camera, had provided him with information over the radio about their positions and their distance from his military team. The two persons had first attempted to escape in an easterly direction, but had turned around when a mortar was fired towards them. When the westerly direction was also shelled with mortar fire, the two men had started running towards the river bed down the side of Yaylatepe.
21. He had ordered the two persons to stop and lie on the asphalt road; had they complied with his orders, they could have been caught alive. However, it was possible that they had not heard him as they were 500 metres away at the time. The two people had then started running towards Yaylatepe where he and his soldiers were positioned. When the distance was about 100 metres he had fired in the air. He had also seen, using night vision binoculars, that the two were not armed. Nevertheless, one of them was wearing a military style vest in which ammunition could be carried and the other was wearing thick clothing. It was possible that they had strapped their bodies with bombs. The two persons continued to approach the soldiers and, when at a distance of 50 metres, he had radioed the battalion commander for permission to open fire. After receiving authorisation from his commander, he had asked the two men, both in Turkish and Kurdish, to surrender. After having fired at the men he had thrown four hand grenades at them in order to destroy any explosives which might have been strapped to their bodies. It was not until the following morning that they had realised that the two people were in fact the two village guards.
22. Nuri Ünlü, an expert-sergeant who took part in the operation, recounted in his statement of 25 August 1999 that, when the distance between the two persons and the soldiers was approximately 50 metres, he and a number of soldiers had ordered the two people to stop. He had been unable to see the two persons but could hear them. He and the soldiers next to him had then fired warning shots, after which they had fired directly at the two men. Noting that the two were still alive, they had thrown hand grenades in order to “neutralise them”.
23. On 25 August 1999 Hüseyin Sarıca, another expert-sergeant who had also participated in the incident, gave a similar statement to that of Mr Ünlü and added that he had been able to see, using night vision binoculars, that the two persons were not armed but were wearing thick clothing. Lieutenant Güldal, who was in charge of the soldiers, had then asked and obtained permission from the battalion commander to open fire on the two men. They had then been warned that they would be shot at. After the firing had ceased, four grenades had been thrown at them when they fell to the ground. He had not heard or seen whether the two people had opened fire on the soldiers.
24. On the day of the events Asım Altay had been serving as a private soldier under the command of Lieutenant Güldal and was positioned on Yaylatepe. Private Altay recounted in his statement of 25 August 1999 that he had been using night vision binoculars and had thus been able to see that the two persons were not armed. One of them was wearing thick clothing and a military style vest. After having unsuccessfully ordered the two men – both in Turkish and Kurdish – to stop and surrender, the soldiers had fired at them. He had also heard a hand grenade explosion; he did not know the distance from which the hand grenade had been thrown or whether or not the two persons had been alive when the hand grenade was thrown.
25. Hasan Tecim had also been serving as a private soldier under the command of Lieutenant Güldal and was positioned on Yaylatepe at the relevant time. Private Tecim recounted in his statement of 25 August 1999 that one of the two people had been wearing thick clothing. The soldiers, thinking that the two men might be suicide bombers, had not wanted them to approach. When the distance between the two persons and the soldiers was approximately 50-60 metres, the soldiers had started firing. A bomb had also been thrown at the two men. The two had not fired at the soldiers.
26. Both the first applicant Mahmut Anık and the ninth applicant Osman Sanrı were questioned by the prosecutor on 20 August 1999. They asked the prosecutor to find and prosecute those responsible for the deaths of their relatives.
27. On 26 August 1999 the prosecutor decided that he lacked jurisdiction to investigate the killings and forwarded his decision and the above mentioned statements to the military prosecutor's office at the Air Force Headquarters in Diyarbakır. In his decision the prosecutor summed up the information he had been given by the above mentioned members of the military and concluded that the two village guards had been mistaken for terrorists and had thus been killed. According to the prosecutor, the killings had been carried out in the performance of military duties and, as such, had to be investigated by a military prosecutor.
28. In this decision the battalion commander Abdulveli Kayaş, Lieutenant Alpaslan Güldal, sub-Lieutenant Hakan Paç and expert-sergeants Hüseyin Sarıca and Nuri Ünlü were named as defendants in respect of the offence of “causing death by negligence and carelessness”. The first and the ninth applicants, i.e. Mahmut Anık and Osman Sanrı, were referred to in the decision as the complainants.
29. On 8 October 1999 the applicants' lawyer asked the military prosecutor for information about the investigation and asked to be contacted if his presence was required.
30. On 12 October 1999 the military prosecutor asked the commander of the gendarmerie in the city of Van to appoint three high ranking officers as experts to assist him in the investigation. The military prosecutor specified that those three officers should not be chosen from among members of the military teams to which the defendants belonged.
31. On 5 November 1999 the military prosecutor visited the area where the two village guards had been killed. Two majors and a lieutenant-colonel who had been appointed as experts, the defendants and other eye-witnesses were also present during the military prosecutor's visit.
32. The military prosecutor observed that, at the time of the shooting, the distance between the two village guards and the soldiers was 40 metres. Furthermore, the place where the two village guards were killed was 20-30 metres away from the river bed which was often used by terrorists as an escape route.
33. During his visit, the military prosecutor also questioned Lieutenant Alpaslan Güldal, expert-sergeant Nuri Ünlü and the battalion commander Captain Abdulveli Kayaş, i.e. three of the five defendants.
34. Lieutenant Güldal stated that the two village guards had been trying to reach the river bed to escape. When fire was opened, the two village guards had been approximately 20 metres away from the river bed; had they been able to proceed any further, it would have been impossible to find them again. He had not known at the time that the two persons were in fact the village guards. He had been informed at the time that the two men had been crouching frequently, thereby giving the impression that they were planting land mines. Lieutenant Güldal added that the two people had been “exterminated” by the soldiers after having obtained permission from the battalion commander. Although the two village guards had been unarmed, they were wearing thick clothing, thereby giving the impression that they had explosives on them. Thus, the reason for the soldiers to continue firing even after the two men had fallen to the ground was to destroy any explosives. It had been his duty to stop terrorists from using the area as an escape route and to exterminate them; on the day of the events he had carried out that duty.
35. Expert-sergeant Nuri Ünlü repeated the contents of his previous statement (see paragraph 22 above) and added that the reason for the presence of the military in that area at the time had been to prevent terrorists from using the area as a transport route. On the day of the events, they had exterminated two terrorists. He had not thought at the time that they could be village guards. Their priority was to catch terrorists alive so that they could obtain information from them, but that had not been possible on this particular occasion because the two persons had refused to surrender.
36. Battalion commander Captain Abdulveli Kayaş stated that he had been informed in a fax message, sent to him from the regimental headquarters some time before the incident took place, that a group of eight terrorists had used the area three to four days previously. He had been warned to be on high alert in case more terrorists tried to use the area. He knew that the locals helped terrorists by providing guidance around the area. Furthermore, land mines were being planted thereabouts. He confirmed that Lieutenant Güldal had kept him informed about the movements of the two persons and about the operation. He added that Lieutenant Güldal had told him that the two men were escaping and that it would have been impossible to find them again if they were allowed to do so. Furthermore, Lieutenant Güldal had also said that the two persons might have explosives on them and that it would be dangerous for the soldiers if they came close. He had thus authorised the firing. In his opinion the two village guards had been in the area in order to plant land mines or to help a group of terrorists.
37. On 16 November 1999 the first applicant Mahmut Anık and the ninth applicant Osman Sanrı applied to the military prosecutor for permission to intervene in the proceedings. In their statements taken by the military prosecutor the same day, the two applicants stated that their relatives had been killed intentionally or negligently. They asked the military prosecutor to establish the circumstances surrounding the killings and prosecute those responsible.
38. On 29 December 1999 the three experts submitted their opinions to the military prosecutor. They stated that, in reaching their conclusion, they had taken note of the above mentioned statements taken from members of the military and had watched the video footage of the operation recorded by Captain Arslan using the thermal camera (see paragraph 18 above). According to the experts, during the hours of darkness the area in question was out of bounds for all persons, with the exception of members of the military, because it was a transport route for terrorists to reach Northern Iraq. The village guards knew this well and their presence in that area could only be explained by their having ulterior motives. In fact, one and a half months before the killing of the two village guards, a military vehicle had been damaged by a land mine. On account of the heavy military presence in the area, it could not have been possible for terrorists to plant land mines themselves. In the experts' opinion, the deceased village guards had been responsible for planting the mines. Furthermore, they had intelligence suggesting that the deceased village guards had been assisting terrorists by providing guidance around the area.
39. According to the three experts, although the two village guards had been unarmed, their heavy clothing could reasonably have been mistaken for explosives. In fact, it was possible to see in the footage recorded by thermal cameras that the soldiers had continued to fire at the two persons after they had fallen to the ground. This was done in order to destroy any explosives. The military units which had taken part in this incident had been deployed in that particular area to ambush terrorists. It was “completely natural”, therefore, that the “village guards were exterminated on the assumption that they were terrorists”. The experts concluded by stating their opinion that “none of the defendants had been at fault; in fact, they had carried out their duties effectively and successfully”.
40. On 11 April 2000 the military prosecutor took a statement from Mehmet Zeki Bahşi. Mr Bahşi had performed his military service in the area in question at the relevant time but had since completed his service and been discharged from the army. He had taken part in the operation under Lieutenant Güldal's command. Mr Bahşi stated that on the night in question he had been using night vision binoculars and had thus been able to see the two persons. The soldiers had then started firing to the left and right of the two men, upon which the two had started running towards the river bed. When the soldiers opened fire in that direction, the two people had put their hands up and said “Stop firing; we surrender”. Lieutenant Güldal had then ordered the two men to lie on the road but they refused to do so, instead advancing towards the soldiers on Yaylatepe. One of the two persons had one hand up in the air, but the other hand was behind his back as if he was reaching for something. Although Mr Bahşi had been able to see that because he was wearing night vision binoculars, some of the soldiers who were closer to the two persons had also been able to see it with the naked eye. When the two persons continued advancing towards the soldiers, Lieutenant Güldal had ordered the soldiers to open fire. The firing had continued after the two had fallen to the ground in order to eliminate the risk of a booby-trap.
41. On 10 May 2000 the military prosecutor questioned Sedat Dilmen and Asım Altay who, like Mr Bahşi, had been performing their military services and had taken part in the operation under the command of Lieutenant Güldal. Mr Dilmen stated that he had been the sniper of the military team. Mr Dilmen and Mr Altay both stated that the two persons had been given ample opportunity to surrender but had failed to do so. When the distance between the two persons and the soldiers was down to 50 metres, the soldiers had opened fire. They had not seen any weapons on the two people, but the clothes they were wearing had been very thick, which had led the soldiers to think that they were laden with explosives.
42. On 2 June 2000 the military prosecutor decided not to prosecute the defendants for the offence of “causing death by negligence and carelessness”. The military prosecutor concluded in his decision that the soldiers had “shown more than necessary sensitivity in apprehending the two persons alive, but had been unable to do so because of the two person's refusal to surrender”. According to the military prosecutor, “following the two person's refusal to surrender, killing them had become a duty for the soldiers” and that the soldiers had carried out that duty.
43. The decision not to prosecute was communicated to the applicants' lawyer on 15 June 2000. The lawyer contacted the military prosecutor the same day and asked to be provided with the documents from the investigation file. The military prosecutor authorised the release of the statements taken from the applicants only.
44. On 23 June 2000 the applicants lodged an objection against the decision not to prosecute. In their petition submitted to the Diyarbakır Military Court, the applicants argued that, due to the secret nature of the investigation, they had not been given access to the documents in the investigation file. Neither had they been able to participate in the investigation, notwithstanding their submission of petitions to intervene in the proceedings (see paragraph 37 above). The applicants argued, in particular, that their two deceased relatives had been unarmed and that it thus should have been possible to apprehend them alive. They submitted that everyone had the right to life; the killing of their two relatives and the military prosecutor's decision to discontinue the proceedings was a violation of their relatives' right to life, which was protected by the Constitution and by international conventions.
45. The applicants' objection was rejected on 30 June 2000 by the Diyarbakır Military Court, which concluded that the decision not to prosecute was compatible with the legislation in force and the applicable procedure, and that there was no need to widen the scope of the investigation. The decision rejecting the objection was communicated to the applicants' lawyer on 19 July 2000.
46. The relevant domestic law and practice, applicable at the time of the events giving rise to the present application, are set out in the judgments in the cases of Erdoğan and Others v. Turkey (no. 19807/92, §§ 51-57, 25 April 2006), and Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV, §§ 46-52).
VIOLATED_ARTICLES: 2


ITEMID: 001-4654
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: A.S. AND S.S. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicants are Turkish nationals, born in 1946 and 1939 respectively, and living in Yrecik village of Mu.
They are represented before the Court by Mr Selahattin Kaya, a lawyer practising in Ankara.
A.
On 14 October 1993 security forces burnt down the applicants’ houses along with all the other houses in Yrecik village in the province of Mu, in south-east Turkey. The village was subsequently evacuated.
The applicants did not apply to the competent authorities for compensation for their losses as they were intimidated by the security forces in the region.
On 13 October 1997 the applicant Abdulhalık Sakık filed a petition with the Mu Governor’s office. He stated the following:
“In 1993 my house in Yrecik village of our province was burnt down. I would request you to give me a written document from the archives of the state of emergency office or from other institutions which confirms that my house was burnt down.”
The applicant has not received any reply to his petition.
B. Relevant domestic law and practice
1. Administrative liability
Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”
2. Criminal responsibility
The Turkish Criminal Code makes it a criminal offence:
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),
(c) to issue threats (Article 191),
(d) to make an unlawful search of an individual’s home (Articles 193 and 194),
(e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),
(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or
(g) to damage another’s property intentionally (Articles 526 et seq.).
For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the Public Prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
3. Provisions on compensation
Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.


ITEMID: 001-5946
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: WUNDERLICH v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Olaf Wunderlich, is a German national, born in 1968. He is represented before the Court by Mr G. Mandl, a lawyer practising in Feldkirch. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department of the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1994 the applicant was arrested in the Czech Republic and taken into detention with a view to his extradition (Auslieferungshaft). Four months later he was transferred to Austria and remanded in custody by the Feldkirch Regional Court (Landesgericht) on suspicion of murder and aggravated robbery.
On 14 November 1996 the Feldkirch Regional Court sitting as an assize court (Geschwornengericht) acquitted the applicant of all the charges against him. Upon the pronouncement of the acquittal, the applicant was released. The judgment was served on the applicant on 2 December and became final on 30 December 1996.
Immediately after the pronouncement of the acquittal, at the same hearing, the applicant requested compensation for his detention on remand.
The Feldkirch Regional Court, with the same composition as above, dismissed the applicant’s claim. It found that the suspicion against the applicant had not been dispelled and that, thus, the requirements of section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969 - “the 1969 Act”) were not met. The court’s decision was served on the applicant after his acquittal had become final.
The applicant lodged an appeal with the Innsbruck Court of Appeal (Oberlandesgericht). He complained, in particular, that the Regional Court’s decision violated the presumption of innocence.
On 4 March 1997 the Innsbruck Court of Appeal dismissed the applicant’s appeal. Its decision was served on the applicant’s counsel on 17 March 1997.
On 27 November 1998 the Feldkirch Regional Court, upon the Public Prosecutor’s request, ordered the re-opening of the criminal proceedings against the applicant, having regard to new statements by two witnesses. Consequently, it quashed the acquittal of 14 November 1996. According to section 359 § 1 of the Code of Criminal Procedure, the proceedings were resumed at the stage of preliminary investigations.
On 9 February 2000 the Public Prosecutor filed the indictment, charging the applicant again with murder and aggravated robbery.
On 25 February 2000 an international arrest warrant was issued. Currently, the applicant’s whereabouts are unknown and the criminal proceedings against him are still pending.


ITEMID: 001-80886
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: WHITE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Ian White, is a British national who was born in 1944 and lives in Cornwall. He was represented before the Court by Royds RDW, Solicitors, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was in receipt of child benefit until 1993 or 1994. His wife died on 8 January 1996 and he remarried in 1998.
His formal claim for widows’ benefits was made in October 2000 and was rejected on 12 October 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant requested the Benefits Agency to reconsider this decision. On 7 February 2001 the original decision was confirmed.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-120946
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF BAKSA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Nebojša Vučinić;Peer Lorenzen
TEXT: 4. The applicant was born in 1949 and lives in Budapest.
5. In 2001 the applicant lodged an action in damages against the owner of a flat in which he lived with his family. He also sought the protection of possession with respect to the flat. The respondent lodged a counter-claim seeking the payment of usage fees for the flat.
6. After having held several hearings and obtained the opinions of experts, on 14 November 2007 the Budapest Regional Court delivered its judgment, finding that the respondent was liable for the damages sought. It partly upheld the counter-claim of the respondent and ordered the applicant to pay usage fees for the flat.
7. On 15 January 2008 the Budapest Court of Appeal, sitting as a second-instance court, increased the amount to be paid to the applicant.
8. On 26 June 2008, the Supreme Court, acting as a review instance, decreased the amount to be paid to the applicant and increased the amount of usage fees to be paid to the respondent.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83603
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ARAPOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Loukis Loucaides
TEXT: 4. The applicants were born in 1929. Mrs Arapova died in 2006. Mr Arapov lives in Voronezh. He decided to pursue the application of his late wife Mrs Arapova.
5. From April 1998 to April 1999 the applicants received their old-age pensions, totalling approximately 377 and 430 Russian roubles (RUB) per month, several months in arrears.
6. On 14 July 2000 each applicant lodged an action against the Sovetskiy District Social Security Authority of Voronezh for index-linking of their delayed pension payments in line with inflation.
7. On 1 November 2000 the Sovetskiy District Court of Voronezh granted the applicants' claims and awarded the applicants RUB 977.50 (Mrs Arapova) and RUB 1,117.61 (Mr Arapov). Both judgments came into force on 12 November 2000.
8. The District Court issued writs of execution and forwarded them to the Sovetskiy District Bailiff's Service of Voronezh for execution.
9. In April 2001 the Bailiff's Service returned the writs of execution to the applicants advising them to apply to the local office of the Federal Treasury. The Treasury refused to execute the judgments.
10. In 2001-2003 the applicants applied to the Bailiff's Service on numerous occasions. The Bailiff's Service refused to accept the writs of execution because the defendant did not have funds.
11. It was not before November 2005 that the writs of execution were accepted for payment by the Sovetskiy District Social Security Authority of Voronezh.
12. The money awarded by the judgments was transferred to the applicants' bank accounts on 2 December 2005, and received by the applicants on 5 December 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104849
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MAAYEVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The first applicant is the mother and the second applicant is the father of Mr Isa Maayev, born in 1975. The applicants were born in 1957 and 1942 respectively. They live in the town of Urus-Martan, in the Chechen Republic.
6. At the material time the applicants and Isa Maayev resided at 64 Titova Street in Urus-Martan. Their property consisted of two houses.
7. On 10 March 2003 the applicants and Isa Maayev were at home in one of the houses.
8. At about 2 a.m. on 10 March 2003 about ten men in camouflage uniforms burst into the applicants’ bedroom. All of the intruders wore masks, were armed with sub-machine guns and spoke unaccented Russian. The intruders blinded the applicants with their flashlights. When the first applicant asked them why they were there, they ordered her in Russian to lie on the floor and pushed her to the ground. One of the intruders stepped on her back, pressed his gun against her neck and told her to remain quiet. At the same time several other armed men pushed the second applicant out of bed, tied his hands and asked him where he kept his weapons. He replied that there were no weapons in the house and they then ordered him to be silent. One of the armed men pressed his gun against the second applicant’s head. While the applicants stayed on the ground, several intruders went into another room where Isa Maayev was sleeping. After a while the armed men in the applicants’ bedroom ordered the applicants not to move and left the room.
9. The first applicant immediately ran to the window and saw four other men in the courtyard. One of them punctured the tyres of the applicants’ car. Another man broke the lamp above the entrance to the house. All of the men then left the courtyard. The first applicant followed them outside and saw that they had turned right into Mayakovskogo Street. She then heard the noise of a vehicle and a sound as if someone was being thrown into it. When she returned home she realised that the armed men had taken Isa Maayev away and she started crying and shouting for help.
10. According to a written statement by M.K., enclosed by the applicants, on the night of 10 March 2003 she felt unwell and went outside. She heard shouting coming from the applicants’ house. Immediately thereafter she saw a group of men moving quickly from the applicants’ house in the direction of Mayakovskogo Street. M.K. immediately rushed to the applicants’ house.
11. According to a written statement by A.M., at about 2 a.m. on 10 March 2003 she was returning home from her late shift at a bakery where she worked at the time. On her way home she saw several UAZ vehicles parked at the corner of Mayakovskogo and Bolnichnaya streets, and a number of camouflaged men whom she identified as servicemen. The servicemen were armed and some of them were masked. They were standing one metre apart from each other and kept themselves in formation. She quickly passed by them without being stopped (despite the curfew) and initially went in the direction of her home, but then heard the first applicant’s screaming and turned back to go to the applicants’ house. She found the first applicant and M.K. there. A.M. untied the second applicant and then accompanied the applicants to the place where she had seen the UAZ vehicles, but by the time they arrived there the vehicles and the servicemen had already left.
12. According to the statement by M.K., all of the people present in the applicants’ house heard the noise of departing vehicles and, after untying the second applicant, they tried to follow the vehicles by their noise but did so in vain. Their attempt brought them to the centre of Urus-Martan, where they reported the matter to the local police.
13. The applicants have had no news of Isa Maayev since 10 March 2003.
14. The above account of the events is based on the information contained in the application form; written statements by the applicants dated 22 December 2006; and written statements by M.K. and A.M. dated 21 December 2006.
15. The Government submitted that the domestic investigation had obtained no evidence that Isa Maayev had been abducted by State agents.
16. Immediately after the intruders left with Isa Maayev, the applicants, accompanied by A.M. and M.K., went to the local police station and alerted the police officers to the abduction. An on-duty police officer took note of their complaint and told them to return home.
17. On 10 March 2003 two police officers came to the applicants’ house and questioned them about the circumstances of the abduction of Isa Maayev. The applicants were allegedly told that the police would not be able to help them find their son.
18. On the same date the applicants filed a written complaint about the abduction of Isa Maayev with the prosecutor’s office for the UrusMartanovskiy District (“the district prosecutor’s office”).
19. On 13 March 2003 the second applicant complained to the Special Envoy of the President of the Russian Federation in the Chechen Republic about the abduction of his son. He submitted, in particular, that Isa Maayev had been abducted by a group of armed camouflaged men who had arrived in several vehicles, including a UAZ vehicle and an armoured personnel carrier (“APC”).
20. On 17 March 2003 the applicants allegedly found a note bearing the handwriting of Isa Maayev at the entry to their house. The note stated that the applicants were to pay 1,000 United States dollars to an unidentified person, upon which Isa Maayev would be released. The applicants were instructed to pay half of the sum before the referendum on the Constitution for Chechnya which was to take place on 23 March 2003. The remaining amount was to be paid after the referendum. The applicants obtained the money and made preparations to pay it but no one showed up to collect it.
21. On 18 March 2003 the applicants’ relative, Mr I., told them that on 10 March 2003 Mr A., who was a police officer and a friend of Mr I., had been on duty together with other police officers at the local school building. The police had been guarding the building because it was to be used as a polling station in the forthcoming referendum. Mr I. said that Mr A. had told him that on the night of 10 March 2003 he had seen a big group of Russian servicemen in camouflage uniforms. They had been leading a man away and urging him to hurry. Mr A. had allegedly also heard the servicemen throw the man into a vehicle. According to Mr A., on 16 March 2003 during the night, when he was again on guard duty at the school building, the police officers had spotted an UAZ car parked between the school and the applicants’ house. There had been three people in the car. The police officers had contacted the local police and had been advised that those people were members of the Federal Security Service (“the FSB”), that they were carrying out a special operation in Urus-Martan and that the police officers were not to interfere.
22. Subsequently, the applicants contacted two military servicemen from a military unit located near Urus-Martan. The applicants did not give their names. Those servicemen allegedly claimed that a “Sergey” from the FSB department in Urus-Martan had “[taken] over” the case concerning the applicants’ son.
23. On 20 March 2003 the district prosecutor’s office instituted an investigation into the abduction of Isa Maayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case was assigned the number 34032.
24. On 9 April 2003 the first applicant was granted victim status in the proceedings in case no 34032.
25. On 11 June 2003 the head of the Urus-Martanovskiy District Department of the Interior (“the ROVD”) informed the first applicant that his service was carrying out various operational and search measures aimed at establishing the whereabouts of Isa Maayev and identifying those responsible for his abduction.
26. By a letter of 21 July 2003 the Department for the Supervision of the Investigation of Crimes in the Chechen Republic (“the supervision department”) notified the second applicant that on 20 May 2003 the investigation of case no 34032 had been suspended owing to a failure to identify the perpetrators.
27. On 4 August 2003 the second applicant complained of the abduction of his son to a number of State authorities. In his complaint he submitted, in particular, that Isa Maayev had been abducted by armed men in camouflage uniforms and masks who had arrived in several UAZ and VAZ-2109 vehicles.
28. On 27 August 2003 the Chechen Department of the FSB notified the second applicant that the department’s officials had not arrested Isa Maayev and that the department was carrying out various search measures aimed at establishing his whereabouts.
29. On 6 September 2003 the supervision department forwarded the second applicant’s complaint of the abduction of Isa Maayev to the district prosecutor’s office and ordered it to verify his submissions and to inform him accordingly.
30. On 8 September 2003 the district prosecutor’s office responded to the supervision department that it had already verified the information contained in the second applicant’s complaint and that those submissions did not contain new evidence which would prompt the resumption of the investigation. The letter also stated that the district prosecutor’s office had taken all investigative steps which could be carried out in the absence of information as to the persons implicated in the abduction. A copy of the letter was forwarded to the second applicant.
31. On 14 October 2003 a prosecutor from military unit no. 20102 informed the first applicant that the inquiry conducted by the prosecutor’s office of that military unit had not established that the federal military were implicated in the abduction of Isa Maayev.
32. On 20 October 2003 the military commander of the UrusMartanovskiy District notified the second applicant that the military commander’s office had not had any information on either the whereabouts of Isa Maayev or the eventual implication of officers from the Ministry of the Interior in his disappearance.
33. By a letter of 8 December 2003 the supervision department informed the second applicant that on 24 November 2003 the district prosecutor’s office had set aside the decision to suspend the investigation of case no. 34032 and that operational and search measures aimed at identifying the persons responsible for the abduction of Isa Maayev and establishing his whereabouts were under way.
34. On 10 March 2004 the supervision department forwarded the first applicant’s complaint about the abduction of Isa Maayev to the district prosecutor’s office and requested that it activate the investigation.
35. By a letter dated 23 August 2004 the Prosecutor’s Office of the Chechen Republic notified the first applicant that they had examined her complaint of the abduction of Isa Maayev, which had been forwarded to them by the State Duma. They informed her that the investigation of case no. 34032 had been suspended on an unspecified date and that various operational measures aimed at establishing the whereabouts of her son and identifying the perpetrators were under way.
36. By a letter of 30 November 2004 the district prosecutor’s office informed the first applicant that it had examined her complaint, which had been forwarded to it by the Prosecutor’s Office of the Chechen Republic. The letter further stated that the investigation of case no. 34032 had been suspended on 9 March 2004.
37. On 17 June 2005 the deputy prosecutor of the UrusMartanovskiy District notified the first applicant that operational and search measures in connection with the proceedings concerning case no. 34032 were under way. Letters along the same lines from the supervision department and the Urus-Martanovskiy ROVD were sent to the first applicant on 27 June and 13 July 2005.
38. On 20 September 2005 the first applicant complained to the prosecutor of the Urus-Martanovskiy District that the investigation into the abduction of Isa Maayev had not produced any results. She submitted that Isa Maayev had been abducted by armed men in camouflage uniforms who had arrived in UAZ and VAZ-2109 vehicles. She requested that the investigation be resumed and that she be granted access to the materials of case file no. 34032 and be given information on the progress of the investigation. It appears that her complaint was left without reply.
39. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 34032, referring to Article 161 of the Russian Code of Criminal Procedure. They only provided copies of: several decisions to open, suspend and resume the investigation; records of several witness interviews; a crime scene inspection report; and requests for information addressed to various State authorities and some of the replies to them. Some of the documents submitted by the Government were illegible and some were legible only in part. It appears that the latest document provided by the Government was dated 24 May 2007. In so far as the documents submitted by the Government were legible, the information contained therein may be summarised as follows.
40. On 10 March 2003 the applicants complained of the abduction of Isa Maayev to the ROVD. According to the stamp on their complaint, it was received by that authority on the same date.
41. On 20 March 2003 the town prosecutor’s office instituted an investigation into the abduction of Isa Maayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping).
42. On 1 April 2003 the first applicant was interviewed. She stated that at about 2 a.m. on 10 March 2003 a group of about ten to twelve armed men in camouflage uniforms and masks had burst into her house at 64 Titova Street, where she had been staying with her husband and Isa Maayev. They had ordered the first applicant and her husband to lie down, speaking unaccented Russian. The first applicant had inferred that the intruders were servicemen. They had tied her husband up and had taken away her son. Before leaving, they had punctured the tyres of the applicants’ car and had broken the lamp over the entry to the house. The intruders had left by foot. Shortly thereafter the second applicant had gone to the ROVD and alerted the police to the abduction.
43. On 1 April 2003 the investigators interviewed the second applicant as a witness. He stated that at about 2.30 a.m. on 10 March 2003 a group of armed people in camouflage uniforms and masks had burst into his house. The intruders had blinded the applicant with their flashlights, pushed him face down on the floor and tied his hands. They had turned everything in the house upside down and had taken away Isa Maayev. Once they had left, the second applicant had gone to the ROVD and alerted them to the abduction. An on-duty officer from the ROVD had called the military commander’s office in the second applicant’s presence and had informed them of the kidnapping. The second applicant thought that the intruders must have left by foot, as he had not seen any vehicles.
44. On 3 October 2003 the second applicant was again interviewed as a witness. He stated that at about 2.30 a.m. on 10 March 2003 a group of ten to fifteen armed people in camouflage uniforms and masks had burst into his house, blinded him with their flashlights, tied up his hands and pushed him and his wife to the floor. Meanwhile some of the intruders had entered an adjacent room where Isa Maayev was sleeping. The intruders had spoken unaccented Russian. Several minutes later they had taken Isa Maayev outside and left. The applicants had not been able to see anything because they had been lying face down on the floor. When the second applicant had managed to stand up, he had seen through the window that the armed men were leaving the second house. Shortly thereafter the second applicant had gone to the ROVD to complain of the abduction of his son.
45. On 9 April 2003 the first applicant was granted victim status in the proceedings concerning case no. 34032 and was interviewed. She submitted that on 10 March 2003 her family, including her husband, Isa Maayev and herself, had stayed at home at 64 Titova Street. At about 2 a.m. she had been woken up by some noise and had seen a group of armed men in camouflage uniforms and masks. They had pushed her family members to the floor and had taken away her son, without explaining the reasons for his detention. The first applicant had heard the noise of departing vehicles.
46. On 27 November 2003 the investigators re-interviewed the first applicant. She confirmed her previous accounts of the events of 10 March 2003 and submitted, in addition, that the intruders had broken a lamp above the entrance to the house. She also stated that the intruders had come and gone by foot and that she had discovered the absence of Isa Maayev after they had left.
47. On 27 November 2003 the investigators interviewed S.M. as a witness. He stated that he was the missing person’s brother and that on the night of 10 March 2003 he had been woken up by the crying and shouting of the first applicant. When S.M. had entered his parents’ room, the first applicant had told him that a group of about ten to fifteen armed men in camouflage uniforms and masks had taken away Isa Maayev. S.M. submitted that he had heard the intruders break the lamp which was outside. When he looked outside he had not been able to see anything.
48. On 28 November 2003 the investigators interviewed A.S. as a witness. She stated that she was Isa Maayev’s wife and that on the night of his abduction Isa Maayev had been sleeping in the house with his parents, while she had stayed with the children in another house. At about 2 a.m. on 10 March 2003 a group of ten to fifteen armed men in camouflage uniforms and masks had burst into A.S.’s room. They had spoken unaccented Russian. A.S. had started shouting but had been told to remain silent. The intruders had searched her room and had turned everything there upside down. When they had been leaving, A.S. had seen one of them break the lamp above the entrance to the house. After their departure the first applicant had told A.S. that the intruders had abducted Isa Maayev.
49. On 11 February 2004 the first applicant was interviewed again. She stated that on 10 March 2003 a group of twenty to thirty armed men in camouflage uniforms and masks had burst into her room and had abducted her son. She also stated that the abductors had come and gone by foot because she had not heard the noise of either military or other vehicles.
50. On 14 February 2004 A.M. was interviewed as a witness. She stated that she was the applicants’ neighbour, that she herself knew nothing of the circumstances of the abduction of Isa Maayev and that she had learnt about it from his relatives. On the night of 10 March 2003 A.M. had been sleeping in her house. At a certain point her neighbour M.K. had woken her up, saying that there was noise from vehicles outside. Together they had gone to the Maayevs’ home. Someone there had told A.M. that armed men in camouflage uniforms, who had arrived in two UAZ vehicles, had abducted Isa Maayev. When A.M. had gone to the applicants’ home, she had not herself seen either the abductors or their vehicles. According to A.M., the people who had seen the vehicles had been unable to identify them because they had not had licence plates.
51. On 17 February 2004 the investigators interviewed M.K. as a witness. She stated that she had been living in the vicinity of the applicants’ house and that at about 3 a.m. on 10 March 2003 she had been woken up by shouting coming from there. At the same time, she had heard the noise of vehicles travelling along Mayakovskogo Street and had then seen several vehicles that had looked like trucks, but she was unable to identify their make. When she had arrived at the applicants’ home, the first applicant had told her that a large group of armed men in camouflage uniforms and masks had abducted Isa Maayev and that the abductors had spoken unaccented Russian. The applicants had immediately gone to the ROVD to complain of his abduction.
52. On 2 March 2004 the investigators interviewed the second applicant for the third time. He confirmed his previous accounts of the events of 10 March 2003 and stated, in addition, that the abductors had come to his house by foot and that he did not know if they had come in military or other vehicles because he had not seen them.
53. On 26 April 2007 the investigators interviewed L. Ya. as a witness. He stated that he was the applicants’ neighbour and that he had learnt of the abduction of Isa Maayev from unspecified individuals. L. Ya. had not heard any noise of military or other vehicles on the night of the abduction.
54. On 11 May 2007 the first applicant was interviewed for the fourth time. She confirmed her previous accounts of the events given to the investigation. She stated, in addition, that she had heard the noise of vehicles outside shortly after the abduction of Isa Maayev and suggested that the noise had come from Mayakovskogo Street, which ran parallel to Titova Street. However, she could not provide more detailed information concerning the vehicles or their make.
55. Between 20 March and 10 October 2003 the district prosecutor’s office requested that a number of law-enforcement authorities, including the FSB, the Ministry of the Interior and the military commander’s office, inform it whether they had information on Isa Maayev’s whereabouts, whether they had conducted special operations in the area and whether they had arrested the applicants’ son. It appears that no relevant information was obtained in reply.
56. On 24 November 2003 the investigators inspected the crime scene. According to the crime scene inspection report of the same date, no objects of interest to the investigation were discovered during the inspection.
57. Between 24 and 26 March 2004 and 2 and 3 May 2007 the investigators sent out further requests to a number of State authorities, seeking information on Isa Maayev’s whereabouts. There is no indication that any relevant information was obtained in reply.
58. On 19 May 2007 the chief of police for the Urus-Martanovskiy district replied to the Urus-Martanovskiy district prosecutor, stating that it had been impossible to establish what power structures and military departments of the Urus-Martanovskiy district had been equipped with Ural and UAZ vehicles in 2003, to identify heads of departments equipped with such vehicles, or to verify whether the security forces in the UrusMartanovskiy district had kept logbooks concerning the use of such vehicles, in order to identify the vehicles which had left the premises of the State authorities in question at the time of the abduction of Isa Maayev. Information concerning the heads of the military commander’s office, the FSB department and the police was restricted.
59. On 20 May 2003 the investigation of case no. 34032 was suspended owing its failure to identify the perpetrators. A letter informing the first applicant of that decision was sent to her on 23 May 2003.
60. On 1 October 2003 the Urus-Martanovskiy District prosecutor quashed the decision of 20 May 2003 as premature and unfounded.
61. On 1 November 2003 the investigation was suspended because of its failure to identify those responsible for the abduction.
62. On 24 November 2003 the Urus-Martanovskiy District prosecutor set aside the decision of 1 November 2003 to suspend the investigation, finding that it had been issued despite a failure to take all relevant investigative steps and in breach of the applicable legislation.
63. On 24 December 2003 the investigation of case no. 34032 was suspended because of its failure to identify those responsible for the abduction.
64. On 5 February 2004 the deputy prosecutor of the Chechen Republic quashed the decision of 24 December 2003 and ordered the district prosecutor’s office to resume the investigation.
65. On 9 March 2004 the investigation was suspended due to its failure to establish the identities of those involved in the abduction of Isa Maayev.
66. On 21 November 2005 the investigation of case no. 34032 was resumed, owing to the need to examine the first applicant’s complaint in which she sought access to the case file and requested that the investigation be resumed.
67. On the same date the investigators dismissed the applicant’s complaint as unfounded.
68. On 22 November 2005 the investigation was suspended.
69. On 24 April 2007 the investigation of case no. 34032 was resumed, owing to a need to rectify unspecified shortcomings.
70. On 24 May 2007 the investigation of case no. 34032 was suspended.
71. According to the Government, the investigation into the abduction of Isa Maayev is pending.
72. On 11 January 2006 the first applicant complained to the UrusMartan Town Court (“the Town Court”) of the inaction of the investigating authorities, their failure to provide her access to case file no. 34032 and their refusal to allow her to make copies of the case file materials.
73. On 25 April 2006 the Town Court granted the first applicant’s claim in part. It declared unlawful the investigating authorities’ refusal to provide the first applicant access to the case file and ordered them to remedy that shortcoming in so far as documents concerning investigative measures carried out with her participation were concerned. At the same time it found that the district prosecutor’s office had carried out all relevant operational and search measures and dismissed the first applicant’s complaint of the ineffectiveness of the investigation, without providing any further details or specifying what measures had been taken. It also rejected the first applicant’s request for permission to copy documents from the case file.
74. The first applicant appealed. She referred to various specific omissions on the part of the district prosecutor’s office and alleged that the investigation into the abduction of Isa Maayev had been ineffective. She also sought permission to copy documents from the investigation case file.
75. On 16 August 2006 the Supreme Court of the Chechen Republic (“the Supreme Court”) dismissed the first applicant’s appeal.
76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 6769, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-97210
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: NERSESYAN v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Beniamin Nersesyan, is a Canadian national who was born in 1954 and lives in Misissauga, Canada. He was represented before the Court by Ms A. Atoyan, a lawyer practising in Yerevan. The respondent Government were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Since 1993 the applicant has been living in Canada.
4. On 2 August 2006 he instituted civil proceedings against his brother, seeking to have annulled a number of documents relating to his brother’s acquisition of their deceased father’s estate and to be recognised as one of the heirs. He alleged that his father, prior to his death in September 1998, had made a will which named him and his brother as heirs. The notary, when formalising the inheritance in March 1999 pursuant to the law, had failed to verify this circumstance before issuing his brother and mother with an inheritance certificate.
5. On 18 October 2006 the Kentron and Nork-Marash District Court of Yerevan (Երևանի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) examined and dismissed the applicant’s claim as unsubstantiated. The District Court found that the applicant had been aware of his father’s death and was therefore aware that an inheritance procedure had been opened. In spite of this, he had missed the six month time-limit prescribed by law to claim the inheritance.
6. On an unspecified date the applicant lodged an appeal.
7. On 13 December 2006 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld the judgment of the District Court, reaching similar conclusions.
8. On 25 December 2006 the applicant lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան), claiming various substantive violations of the law. Pursuant to Article 231.2 § 1 of the Code of Civil Procedure (“the CCP”), he argued that these violations would have grave consequences, namely the loss of his property. He further argued that the decision to be adopted by the Court of Cassation would have a significant impact on the uniform application of the law, claiming that a person was not obliged to know about the existence of a will on the day of the testator’s death. He finally argued that the judgment of the Court of Appeal contradicted a decision of the Court of Cassation adopted on 3 March 2005 in connection with another dispute. A copy of that decision was attached to the applicant’s appeal.
9. On 15 January 2007 the Court of Cassation, sitting in camera as a panel of seven judges, decided to return the appeal, that is, to declare it inadmissible. The reasons provided were as follows:
“The Civil Chamber of the Court of Cassation ... having examined the question of admitting [the applicant’s appeal lodged against the judgment of the Civil Court of Appeal of 13 December 2006], found that it must be returned with the following reasoning:
Pursuant to Article 230 § 1 (4.1) of [the CCP] an appeal on points of law must contain any of the grounds [required by] Article 231.2 § 1 of [the CCP].
10. The relevant provisions of the Constitution read as follows:
“Everyone has the right to an effective remedy to have his rights and freedoms protected by the judicial and other public authorities.
Everyone has the right to defend his rights and freedoms by any means not prohibited by law. ...”
“Everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time in conditions of equality and with respect for all fair trial requirements in order to have his violated rights restored, as well as the validity of the charge against him determined. ...”
“...The highest judicial instance in Armenia, except matters falling within constitutional jurisdiction, is the Court of Cassation which is called upon to ensure the uniform application of the law. ...”
11. The relevant provisions of the CCP, as in force at the material time, read as follows:
Article 219: Entry into force of judgments of the Court of Appeal
“Judgments of the Court of Appeal enter into force from the moment of their delivery.”
Article 222: Review of judicial acts through cassation proceedings
“1. Judgments of the first instance courts, the Commercial Court and the Court of Appeal which have entered into force ... can be reviewed through cassation proceedings based on the appeals brought by persons indicated in Article 223 of this Code.”
Article 223: Persons entitled to bring appeals on points of law
“2. Appeals on points of law against judgments of lower courts which have entered into force can be brought by (1) the parties to the proceedings; [and] (2) persons who were not parties to the proceedings but whose rights and obligations were affected by the judicial act deciding on the merits of the case.”
“1. Appeals on points of law lodged against judgments of the first instance courts, the Commercial Court and the Court of Appeal which have entered into force ... are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation).
2. The objective of the Court of Cassation’s activity is to ensure the uniform application of the law and its correct interpretation, and to promote the development of the law.”
“An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...”
“1. An appeal on points of law can be lodged within six months from the date of entry into force of the judicial act of a lower court deciding on the merits of the case.”
“1. An appeal on points of law must contain (1) the name of the court to which the appeal is addressed; (2) the appellant’s name; (3) the name of the court that has adopted the judgment, the case number, the date on which the judgment was adopted, the names of the parties, and the subject-matter of the dispute; (4) the appellant’s claim, with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ...; (4.1) arguments required by any of the subparagraphs of paragraph 1 of Article 231.2 of this Code; [and] (5) a list of documents enclosed with the appeal.
2. An appeal on points of law shall be signed by the appellant.
3. A document certifying payment of the State fee shall be attached to the appeal.”
“1. An appeal on points of law shall be returned if it does not comply with the requirements of Article 230 and paragraph 1 of Article 231.2 of this Code or if it has been lodged by a person whose rights have not been violated.
2. The Court of Cassation shall adopt a decision to return an appeal on points of law within ten days after the receipt of the appeal.
3. In its decision to return an appeal on points of law the Court of Cassation may fix a time-limit for correcting the shortcoming and lodging the appeal anew.”
“1. The Court of Cassation shall admit an appeal on points of law, if (1) the judicial act to be adopted on the given case by the Court of Cassation may have a significant impact on the uniform application of the law, or (2) the contested judicial act contradicts a judicial act previously adopted by the Court of Cassation, or (3) a violation of the procedural or the substantive law by the lower court may cause grave consequences, or (4) there are newly discovered circumstances.
2. The Court of Cassation sitting as a panel composed of the President of the Court of Cassation and the judges of the chamber shall decide whether appeals on points of law lodged with the Court of Cassation comply with the requirements of Article 230 of this Code and paragraph 1 of this article and should be admitted.
3. An appeal on points of law shall be admitted if at least three of the judges of the Court of Cassation vote in favour of admitting it. This decision of the Court of Cassation is not subject to appeal.”
12. The above Articles 231.1 and 231.2 of the CCP were amended into Articles 233 and 234 by the Law of 28 November 2007 with effect from 1 January 2008, following the Constitutional Court’s decision of 9 April 2007 (see paragraph 14 below), and read as follows:
“... 2. The Civil and Administrative Chamber of the Court of Cassation shall adopt a decision to return an appeal on points of law within ten days after the receipt of the case file by the Court of Cassation. The decision to return an appeal on points of law must be reasoned, except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by Article 234 § 1 (1). ...”
“1. The Court of Cassation shall admit an appeal on points of law if, in its opinion, the appeal substantiates that (1) the decision of the Court of Cassation concerning the question raised in the appeal may have a significant impact on the uniform application of the law, or (2) the contested judicial act prima facie contradicts a decision previously adopted by the Court of Cassation, or (3) a prima facie judicial error made by the lower court which may cause or have caused grave consequences. ...”
13. The new Article 233 § 2 of the CCP was further amended by the Law of 26 December 2008 with effect from 1 January 2009, following the Constitutional Court’s decision of 8 October 2008 (see paragraph 15 below) and currently reads as follows:
“... 2. The Court of Cassation shall adopt a decision to return an appeal on points of law within one month after the receipt of the case file by the Court of Cassation. The decision to return an appeal on points of law must be reasoned. ...”
14. The Constitutional Court found paragraph 2 of Article 231.1 in its part concerning the lack of a requirement to provide reasons for a decision to return an appeal on points of law incompatible with, inter alia, Articles 18 and 19 of the Constitution, because it failed to ensure legal safeguards for an effective and accessible administration of justice. The remaining contested provisions were found to be compatible with the Constitution.
15. The Constitutional Court found paragraph 2 of Article 233 in its part reading “except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by Article 234 § 1 (1)” incompatible with Articles 18 and 19 of the Constitution. The Constitutional Court noted that the amendments introduced following its decision of 9 April 2007 did not sufficiently ensure the relevant legal guarantees. It found that the legislature, by including the exception in question, failed to ensure the implementation of the above-mentioned decision. The Constitutional Court explained that the requirement of a reasoned decision did not concern this or that particular admissibility ground of an appeal on points of law, but concerned all such grounds. This requirement aimed at ensuring the legitimate and lawful exercise of the court’s discretionary powers and an individual’s confidence in a judicial act.


ITEMID: 001-100559
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ŞENYÜREK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. All of the applicants are from the Çayçatı village of Muş. Numerous plots of land in the village had been used by the applicants' parents or grandparents without a title deed since the 1930's. These parcels were registered in the name of the Treasury in 1960 pursuant to Law no. 4753. In 1977 they were re-registered in the name of the Treasury pursuant to the Land Registry Act (Law no. 766).
5. On various dates in 1989, the applicants instituted numerous civil proceedings in the Varto Civil Court of First Instance pursuant to Law no. 3402 and requested the annulment of the titles to the plots. Claiming that the parcels in question had been in their families' possession for many years, the applicants further requested that the land be registered in their name. They were all represented by the same lawyer. The first-instance court examined the claims under various files and delivered its initial judgments on different dates between 1989 and 1991 in the presence of the representatives of both parties, which were then either upheld or quashed by the Court of Cassation on various dates between 2003 and 2005. For those judgments that had been quashed, the domestic court continued the proceedings by holding numerous on-site visits, hearing witnesses and requesting expert reports, whilst collecting information. The proceedings ended in the applicants' favour on various dates between 2005 and 2007, after being examined at two levels of jurisdiction, which delivered up to six judgments. The final decisions for files nos. 2005/152, 2005/72, 2005/55, 2005/54 and 2005/49 were served on the applicants on 18 July 2006.
6. Further details concerning the present applications, including the dates of the domestic judgments and notifications, may be found in the attached list.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1