ITEMID: 001-77036
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GAJCSI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 4. The applicant was born in 1955 and lives in the Lad-Gyöngyöspuszta Social Home, Hungary.
5. On 4 November 1999 the applicant was taken by ambulance to the Psychiatric Department of Nagyatád Hospital. Pursuant to section 199 § 2 of the Health Care Act (“the Act”), the Hospital notified the Nagyatád District Court of this fact the next day.
6. In the opinion of an expert psychiatrist, dated 8 November 1999, it was observed that the applicant had been committed to hospital because of his erratic, pyromaniac behaviour, and was in a deranged state of mind which warranted his compulsory psychiatric treatment in a closed institution. On the same day the court heard the applicant and ordered his treatment under section 199 § 5 of the Act.
7. Between 21 January 2000 and 22 November 2002 the applicant’s compulsory treatment was reviewed by the court at the statutory intervals.
8. On 21 January 2003 the District Court again reviewed the applicant’s psychiatric detention. At the hearing he was represented by an ad hoc guardian (eseti gondnok). The judge in charge appointed an expert psychiatrist, specifying that his task was
“to give an opinion as to whether or not the patient’s (eljárás alá vont személy) admittance to, and prolonged treatment at, the psychiatric department was justified because of his pathological mental status (kóros elmeállapot)”.
The expert confirmed the need to continue the applicant’s treatment.
9. Based on that opinion, the court ordered the prolongation of the applicant’s compulsory psychiatric treatment for an indefinite period, the necessity of which was to be reviewed within 60 days. It reasoned as follows:
“The patient (eljárás alá vont személy) was admitted to the psychiatric department.
Relying on the evidence taken and the expert opinion, the court has established that the patient’s prolonged psychiatric treatment was justified and lawful.
The patient is in need of further therapy; the court has therefore given its decision according to section 198(1) of Act no. 154 [on Health Care].”
10. The applicant’s lawyer appealed to the Somogy County Regional Court, arguing that the first-instance decision was unlawful in that its reasoning was substantially deficient. He pointed out that section 198(1) did not provide any substantive ground for prolonging his compulsory treatment, which could only be authorised under sections 200(1) and 188(b) of the Act.
11. On 28 February 2003 the Regional Court upheld the District Court’s decision, finding that it was in compliance with the relevant provisions of the Code of Civil Procedure. It noted that, according to the expert psychiatrist’s opinion, no change had occurred in the applicant’s condition as to warrant his release, and that his prolonged therapy was justified and necessary. It was satisfied that the first-instance proceedings were in compliance with section 201 of the Act. This decision was received at the District Court for despatch on 11 March, and was served on 17 March 2003.
12. On 15 May 2003 the applicant’s lawyer filed a petition for review by the Supreme Court. He reiterated that the reasoning of the first-instance decision was insufficient, and argued that the lower courts’ decision infringed the applicant’s constitutional right to a fair hearing. He pointed out that the Act provided no ground for compulsory psychiatric treatment because of a patient’s “pathological mental status” – a criminal-law notion which had mistakenly been referred to when the expert psychiatrist had been appointed. The potential grounds for the applicant’s psychiatric confinement were enumerated in section 200(1) of the Act. In his view, this element deprived the expert’s opinion of any relevance. He stressed that the fairness of any proceedings which might result in coercive measures required detailed reasoning in the relevant decisions. Referring to the Court’s conclusions in the case of Van der Leer v. the Netherlands (judgment of 21 February 1990, Series A no. 170A), he also argued that the failure to inform a patient of the reasons for his involuntary psychiatric treatment might amount to a violation of his Convention rights.
13. On 27 October 2004 the Supreme Court rejected the petition for review as inadmissible. It held that it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure.
14. Meanwhile, on 24 April 2003 the applicant was released from hospital.
15. The relevant provisions of Act no. 154 of 1997 on Health Care read as follows:
“... b) Dangerous conduct is constituted by a condition in which a patient, due to his disturbed state of mind, may represent a serious danger to his or others’ life and limb or health, but, given the nature of the illness, ‘urgent hospitalisation’ [within the meaning of section 199] is not warranted (a sürgős intézeti gyógykezelésbe vétel nem indokolt).”
“(1) The treatment may be considered voluntary if, prior to admission to the psychiatric institution, the [mentally] competent patient has consented to it in writing.
(2) A partly or fully incompetent patient may be subjected to treatment in a psychiatric institution at the request of the person referred to in sections 16(1) and 16(2).”
“(1) In cases under sections 197(1) and 197(2), the court shall regularly review the necessity of hospitalisation. Such review shall take place every 30 days in psychiatric hospitals and every 60 days in psychiatric rehabilitation institutions.”
“(1) The doctor in charge shall directly make arrangements to commit a patient to an appropriate psychiatric institution, if the patient’s conduct is imminently dangerous because of his psychiatric or addictive disease and can only be controlled by urgent treatment in a psychiatric institution. ...
(2) The head of the psychiatric institution shall, within 24 hours of the patient’s admission, notify the court thereof and shall thereby initiate steps to establish the necessity of the patient’s admission and the order of compulsory psychiatric treatment. ...
(5) The court shall order the compulsory treatment of a patient subjected to urgent hospitalisation if the patient’s conduct is dangerous and his treatment in an institution necessary.
(6) Before deciding, the court shall hear the patient and obtain the opinion of an independent expert psychiatrist. ...
(8) The court shall review the necessity of the treatment every 30 days.
(9) The patient must be released from the psychiatric institution if his treatment in an institution is no longer necessary.”
“(1) The court shall order the compulsory institutional treatment of a patient whose conduct is dangerous because of his psychiatric or addictive disease but whose urgent treatment is not warranted. ...
(4) Before giving its decision, the court shall hear the patient and an independent ... forensic expert psychiatrist ... as well as the psychiatrist who has initiated the proceedings. ...
(7) The court shall review the necessity of compulsory institutional treatment at the intervals specified in section 198. ...
(8) A patient subjected to compulsory institutional treatment must be released once his treatment is no longer warranted. ...”
“(1) In the proceedings outlined in this chapter, the court shall proceed by way of non-contentious proceedings. Unless required otherwise by this Act or the non-contentious nature of the proceedings, the court shall apply the provisions of Act no. 3 of 1952 on Civil Procedure as appropriate. ...
(4) In the court proceedings, appropriate representation must be secured for the patient. ... .”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-23391
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MAIER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Brigitte Maier, is an Austrian national, who was born in 1956 and lives in Vienna. She is represented before the Court by Mrs E. Bauer-Bannsdorf, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 March 1997 the investigating judge (Untersuchungsrichter) at the Wiener Neustadt Regional Court (Landesgericht) opened preliminary investigations against the applicant on suspicion of fraudulent bankruptcy (betrügerische Krida) and breach of trust (Untreue). The suspicion related to the applicant’s business activities as the general manager of the PLF company and to her activities as chairperson of two associations. Further, she was suspected of unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs) and suppression of documents (Urkundenunterdrückung). The investigating judge issued an arrest warrant and ordered a search of the company’s premises and of the applicant’s home.
On 2 April 1997 the applicant was arrested, the search of the above premises was carried out and several documents were seized and stored at the Regional Court. Later that day, the applicant was questioned by the police.
On 3 April 1997 the applicant was again heard by the police.
On 4 April 1997 the applicant, after having been questioned by the investigating judge, was taken into pre-trial detention.
On 17 April 1997 the Wiener Neustadt Regional Court ordered that the seized documents be examined.
Between April and October 1997 a number of persons laid criminal complaints relating to the applicant’s alleged fraudulent transactions and joined the proceedings as civil parties. During the same period the disclosure of the applicant’s bank-accounts was ordered.
On 5 May 1997 the applicant was examined by the police on questions relating to the seized documents and on 23 May her tax accountant was heard as a witness.
On 25 June 1997 the applicant was released on bail.
On 28 July 1997 the court appointed an expert on accountancy. On 3 December 1997 the latter submitted his opinion which comprised more than a thousand pages.
On 2 February 1998 the investigating judge summoned the applicant to be questioned as a suspect on 24 February. However, the applicant did not appear and the questioning was postponed to 5 March.
Between 2 February and 20 April 1998 nineteen witnesses were heard.
On 30 April 1998 the investigating judge requested the court appointed expert to supplement his opinion.
On 8 October the applicant and her tax accountant were due to appear in order to answer questions of the expert. However, neither of the two appeared and the meeting had to be postponed to 3 November 1998.
On 10 November 1998 the expert submitted 480 pages supplementing his opinion.
On 10 December 1998 the investigating judge closed the preliminary investigations.
On 27 January 1999 the Public Prosecutor’s Office preferred the indictment charging the applicant with breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle and suppression of documents. The indictment was served on the applicant on 16 February 1999. A first attempt to summon her for trial failed as the summons could not be served at her address. Inquiries by the police showed however, that the applicant was living at this address. The beginning of the trial was then scheduled for 23 September 1999.
On 23 September 1999 the trial started before the Wiener Neustadt Regional Court. The applicant was requested to formulate her questions to the expert in writing and to submit certain documents.
On 3 November counsel for the applicant requested to be granted more time for preparing the questions to the expert. A trial hearing was then scheduled for 27 January, but had to be postponed to 9 March 2000 as the summons had erroneously not been sent out.
Further hearings were held on 9 March and 25 May 2000. At the close of the trial on 25 May 2000, the Regional Court convicted the applicant of breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle and suppression of documents. It sentenced her to two years’ imprisonment. The Regional Court found that the applicant had caused financial damage to the company and the associations at issue by abusing her position as financial manager and chairperson, respectively, in that she took money from the company’s and the associations’ accounts to cover her private expenses. Further, the court found that, by diminishing the company’s and the associations’ assets, she had intentionally curtailed the satisfaction of its creditors.
On 8 September 2000 the written version of the judgment was served on the applicant.
On 4 October 2000 the applicant filed a plea of nullity and an appeal against sentence (Nichtigkeitsbeschwerde und Berufung).
On 11 December 2000 the Procurator General’s Office (Generalprokuratur) filed its observations on the applicant’s plea of nullity.
On 15 February 2001 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s plea of nullity as being unfounded, but granted her appeal against sentence and suspended sixteen months of the two years’ sentence on probation. The Supreme Court’s decision was served on the applicant’s lawyer on 16 March 2001.


ITEMID: 001-86473
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GOLD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Leigh Stuart Gold, is a British national who was born in 1943 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 13 June 1999. In December 2000, the applicant made a claim for widows’ benefits. On 10 January 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-113757
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOLUNOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1983 and lives in Moscow.
6. The applicant is a member of the National Bolsheviks Party.
7. On 14 December 2004 a group of about forty members of the National Bolsheviks Party occupied the waiting area of the President’s administration building in Moscow and locked themselves in an office on the ground floor.
8. The members of the group asked for a meeting with the President, the deputy head of the President’s administration and the President’s economic adviser. They handed out leaflets through the windows, featuring a printed letter to the President which listed ten ways in which he had failed to comply with the Constitution and which called for his resignation.
9. The intruders stayed in the office for an hour and a half until the police broke down the locked door and arrested them. They did not offer any resistance to the authorities.
10. On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s detention on the following grounds:
“[The applicant] is suspected of having committed several offences, one of which is particularly grievous. If at liberty, he may continue his criminal activities, interfere with the investigation or put pressure on witnesses. He might abscond or prevent the investigation of the truth.”
11. On 21 December 2004 the applicant was charged with the attempted violent overthrow of State power (Article 278 of the Criminal Code) and the intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214).
12. On 7 February 2005, referring to the gravity of the charges against the applicant, the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 April 2005.
13. On 16 February 2005 the applicant’s charge was amended to that of participation in mass disorder, an offence under Article 212 § 2 of the Criminal Code.
14. On 14 April 2005 the District Court granted the prosecution’s request for an extension of the applicant’s detention until 14 July 2005, for the following reasons:
“... the defendants and their counsel have started to study the case file. Given the file size (12 volumes) and the number of persons studying it (39 defendants and their counsel), the court considers that there are sufficient reasons to extend [the applicant’s] detention for three months, because he has not yet finished studying the case file while his counsel has not yet started.
Notwithstanding the fact that [the applicant] has a registered place of residence in Moscow, the court, taking into account the gravity of charges and the fact that the grounds justifying his placement into custody still persist today, sees no reason to apply a more lenient preventive measure.”
15. On 19 May 2005 the Moscow City Court upheld the decision of 14 April 2005 on appeal, finding that it had been lawful, sufficiently reasoned and justified.
16. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial. On 20 June 2005 the Tverskoy District Court of Moscow scheduled the preliminary hearing for 30 June 2005 and decided that all the defendants should meanwhile remain in custody.
17. On 30 June 2005 the District Court held a preliminary hearing. It rejected the defendants’ requests for release taking into account their characters, age, state of health, family situation and stability of lifestyle. However, it found, referring to the gravity of the charges, that “the grounds on which the preventive measure [had been] previously imposed, still exist[ed]” and that “the case file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. It therefore ordered that all the defendants should remain in custody pending trial.
18. On an unspecified date in July 2005 the applicant and his codefendants lodged applications for release. The District Court rejected these requests on 27 July 2005, finding that their detention was lawful and justified. On 5 October 2005 the City Court upheld the decision of 27 July 2005 on appeal.
19. On 10 August 2005 the applicant and his co-defendants lodged new applications for release. On the same day the District Court rejected the requests. It held:
“The court takes into account the defence’s argument that an individual approach to each defendant’s situation is essential when deciding on the preventive measure.
Examining the grounds on which ... the court ordered and extended the detention period in respect of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered on their behalf by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct the course of justice in some other way ...
In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant ...”
20. On 2 November 2005 the City Court upheld the decision of 10 August 2005 on appeal.
21. On 16 November 2005 the District Court extended the detention in respect of all the defendants, including the applicant, until 7 March 2006. The court stated as follows:
“According to the materials in the criminal case file, the circumstances taken into account by the court when it authorised the pre-trial detention period and its extension for all the defendants still persist.
Regard being had to the above and taking into account the state of health, family situation, age, employment and character of all the defendants, the court concludes that, if at liberty, each of them might abscond or otherwise interfere with the criminal proceedings.”
22. On 8 December 2005 the District Court found the applicant and his co-defendants guilty of participation in mass disorder. It gave the applicant a three-year suspended sentence and then released the applicant on three years’ probation.
23. The applicant was held in remand prison no. IZ-77/3 in Moscow from 24 December 2004 to 8 December 2005. According to his submission, he was detained in a cell together with eleven other inmates. The cell was overcrowded. The light was never turned off which disturbed the applicant’s sleep. The cell was not ventilated. The lavatory pan was separated from the living area by a makeshift partition – one metre in height. The person using the toilet was in view of other inmates. The applicant was allowed to take a shower for ten minutes once a week and a daily walk for about an hour per day. Inmates were not given enough food and medicine, save for aspirin and other analgesics. The applicant claimed that he suffered from epilepsy but received no treatment.
24. According to the Government, the applicant was detained in cells nos. 218, 219, 413, 508, 526 and 611. At all times he was provided with his own bed, bedding and cutlery. Not only did the cells where he was held provide access to daylight, they were equipped with artificial lighting as well. The ventilation system was in good working order. In addition the vents in the windows permitted access to fresh air. All cells had a sink, a water tap and a toilet which was separated by a partition, one metre in height, from the living area. The applicant could take at least one shower per week for fifteen minutes. During the day the lighting was on from 6 a.m. to 10 p.m., with lower-voltage bulbs being constantly in use to light the lavatory at night. The applicant was provided with three meals a day and unlimited access to medical care.
25. For a summary of the relevant domestic law provisions governing conditions and length of pre-trial detention, see the cases of Dolgova v. Russia, no. 11886/05, §§ 26-31, 2 March 2006, and Lind v. Russia, no. 25664/05, §§ 47-52, 6 December 2007.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-5934
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: GAUDER v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Ivan Gauder, is a Croatian national, born in 1929 and living in Pula. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army (YPA) and in 1983 retired from service. His military pension was assessed according to his rank and years of service and was paid from the Yugoslav Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.
On 31 December 1991 the Parliament passed a law on changes of the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (hereinafter the “Military Pesnion Act” - Zakona o preuzimanju saveznih zakona iz oblasti mirovniskog i invalidskog osiguranja vojnih osiguranika koji se u Republici Hrvatskoj primjenjuje kao republički zakon - Official Gazette 73/1991). This new law prescribed that the former YPA officers’ pensions were to be assessed to 63.22 % of what they received in December 1991.
Accordingly, on 12 December 1992, the Social Security Fund, Pula Office (Republički fond mirovinskog i invlidskog osigurnaja radnika Hrvatske, Područna služba u Puli), assessed the applicant’s pension, as from 1 October 1992, to 63.22 % of the amount he had received in December 1991. After the ensuing applicant's appeal was dismissed, he instituted proceedings with the Administrative Court (Upravni sud Republike Hrvatske). The applicant claimed that the decisions to decrease his military pension were unlawful and impaired his property rights. He maintained that since the Croatian authorities had incorporated into the Croatian legal system the Yugoslav federal law on the payment of the former federal military personnel’s pensions the Republic of Croatia was obliged to pay his pension in full amounts.
The Administrative Court dismissed the applicant’s claim on 15 February 1994. It found that the lower bodies applied the provisions of the laws regulating pension rights of the former YPA officers correctly. They based their decision on the Act of 31 December 1991 which provided that the former YPA officers’ pensions were to be assessed to 63.22 % of what they received in December 1991. Furthermore, the applicant's property rights were not impaired by the Croatian authorities as the Yugoslav Federal Fund stopped paying the applicant's pension. The Croatian authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter.
According to the applicant, in his claim of 29 August 1994, he challenged both the constitutionality of the decisions of the administrative bodies and the Administrative Court which reduced his military pension, as well as the constitutionality of the 31 December 1991 Act that served as a basis for the reduction of his pension.
According to the Government, on 29 August 1994, the applicant lodged a constitutional claim challenging only the constitutionality of the 31 December 1991 Act that served as basis for the reduction of his pension, while he failed to challenge the lower bodies’ decisions as such.
On 4 February 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) terminated the proceedings concerning the applicant's complaint. In its decision the court stated that it terminated the proceedings concerning the constitutionality of various laws enacted in 1991 and 1992, regulating pension rights of the former YPA officers, as on 18 October 1993 the Parliament had adopted a new law concerning that matter - the Former YPA Officers Pension Act (Zakon o ostvarivanju prava iz mirovnskog i invalidskog osiguranja pripadnika bivše JNA - Official Gazette no. 96/93).
The relevant provisions of the 1991 Constitutional Act on the Constitutional Court (hereinafter the “1991 Constitutional Court Act” - Ustavni zakon o Ustavnom sudu, Official Gazette 13/1991) read as follows:
“Every person has a right to institute proceedings challenging the constitutionality of the laws...”
“Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...”
“The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the Constitution and statute law while those proceedings are pending before the Constitutional Court.”
“Every person, who considers that any of his constitutional rights have been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.”
“By a decision accepting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.”


ITEMID: 001-72664
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YASSAR HUSSAIN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed
JUDGES: Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Rait Maruste
TEXT: 4. The applicant was born in 1981 and lives in Stoke-on-Trent.
5. The applicant was arrested on 14 May 2002 on suspicion of having intimidated witnesses. In an identity parade held the same afternoon, he was positively identified by one of the two witnesses. The applicant states that this witness accepted in her original statement of evidence to the police that she was a heroin user and an inherently unreliable witness. The applicant was subsequently charged with five counts of doing acts tending and intended to pervert the course of public justice.
6. The applicant pleaded not guilty on 2 August 2002 and the trial was adjourned to the Stoke-on-Trent Crown Court on 7 October 2002. On that date no judge was available and the trial was moved to 3 February 2003. On the second day of the trial the witness who had identified the applicant did not attend and the trial had to be aborted. At the re-listed trial on 15 September 2003, Counsel for the Crown addressed the court in the following terms:
“When this matter was listed for trial in February, [L.] attended on the first day. She wasn't called to give evidence and didn't come back on the second day. Certainly, that caused some concern. I think it is fair to say, at different stages of the entire case, she has blown slightly hot and cold.
[L.] indicated to the police when they contacted her recently and, in fact, again yesterday, that she was reluctant to give evidence. She has attended court today and with my learned friend's permission, I have had the chance to sit down and have a chat to her.
Your Honour, the reality is that she does not want to give evidence. She has personal reasons I don't propose to divulge in open court. She has formed a new relationship. She has moved on. She is trying very hard to put the events of this entire case behind her. She has satisfied the police who spoke to her yesterday and satisfied those who instruct me that no threats have been made toward her in relation to today's proceedings. She insists that there has been no contact from [the applicant] or others acting on his behalf. We don't feel that, due to the nature of this allegation, she ought to be compelled to give evidence in this case.
Your Honour, there has been a very full discussion and the view we have taken is that without her evidence, plainly, we can't proceed. I offer no evidence. Verdicts must follow.”
7. The applicant was duly acquitted. On his counsel's application for a defendant's costs order, the judge refused to make an order and stated:
“That order will be refused. There is clear evidence on the court papers. The Crown have taken the view that they are not going to compel this witness although there is compelling evidence in respect of those matters. It is a discretion which I am afraid I am not going to exercise in your favour.”
8. The applicant's attempted appeal was dismissed on 14 November 2003 as “to be appealable as a sentence, the order must be contingent upon conviction. As the defendant's costs order only arises when a prosecution is unsuccessful, it cannot be a sentence and cannot be appealed at the Court of Appeal Criminal Division”.
9. Section 16(2)(b) of the Prosecution of Offences Act 1985 provides that where
“... any person is tried on indictment and acquitted on any count in the indictment the Crown Court may make a defendant's costs order in favour of the accused”.
10. Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832, which was in force at the time of the applicant's trial, provided that:
“Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so, as where, for example, the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is.”
11. As noted above, no appeal lies to the Court of Appeal against a refusal of a defendant's costs order.
12. By virtue of section 29(3) of the Supreme Court Act 1981, the High Court may not exercise its power of judicial review over the Crown Court in matters relating to “trial on indictment”.
13. An argument that the incorporation of the Convention into United Kingdom law required a remedy against a refusal of a defendant's costs order was rejected in R (Shields) v. Liverpool Crown Court [2001] EWHC Admin 90, in which Lord Justice Brooke stated that
“... unless and until Parliament decides to remove the anomaly, that an acquitted defendant has no right of appeal against the refusal of a defendant's costs order, however unjust the refusal may be, he has no Convention right of challenge to his decision in an English court and he is still bound to go to Strasbourg if he wishes to make the assertions he sought to raise unsuccessfully in the Administrative Court”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-59534
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF AGOUDIMOS AND CEFALLONIAN SKY SHIPPING CO. v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: András Baka
TEXT: 8. The applicant company is incorporated under Greek law, has its seat in Piraeus and has gone into liquidation. The first applicant is one of the three liquidators.
9. On 22 December 1982 the ship Omega Kasos, registered in Piraeus and owned by K Shipping Co., was seized by the company’s creditors. The ship was put on compulsory sale by auction (αναγκαστικός πλειστηριασμός) on 6 February 1983. It was acquired by the first applicant at the price of GRD 4,002,000. On 15 February 1983 the first applicant sold the ship to the applicant company which in turn sold it to a foreign company.
10. On 17 February 1983 the applicant company asked the registrar of ships (νηολόγος) of Piraeus to remove the ship from his records since it had been acquired by a foreigner. The request was refused on the ground that the applicant company had failed to produce a certificate to the effect that debts owed in respect of the ship to the tax and social security authorities prior to the auction had been paid in full.
11. The applicant company challenged ex parte (εκούσια δικαιοδοσία) the registrar’s refusal before the single-member first instance civil court (Μονομελές Πρωτοδικείο) of Piraeus. On 6 April 1983 the court considered that the production of the certificate requested by the registrar was not necessary; according to the view followed by most courts, a person acquiring a ship put on compulsory sale by auction was not responsible for the previous owners’ debts to the State or the sailors’ social security fund (Ναυτικό Απομαχικό Ταμείο – hereinafter NAT). The registrar and NAT did not appeal against this decision. On 1 June 1983 Omega Kasos was removed from the records of the Piraeus registry for ships.
12. On 10 January 1984 NAT ordered the first applicant and the applicant company, in their capacity as previous owners of Omega Kasos, to pay USD 124,915, by way of social security contributions in respect of the period prior to the auction, plus interest. It also asked them to pay GRD 196,000 for the repatriation of the crew of Omega Kasos who had at one stage been left stranded in a foreign port by the previous ship-owners.
13. On 19 January 1984 the applicants challenged NAT’s order before the multi-member first instance civil court (Πολυμελές Πρωτοδικείο) of Piraeus relying, inter alia, on the decision of the single-member first instance civil court of 6 April 1983.
14. On 30 July 1984 the multi-member first instance civil court of Piraeus found against the applicants, relying on Articles 86 § 6 (a) and 88 § 5 of Presidential Decree no. 913/1978 as interpreted in decisions Nos. 127/1984 and 128/1984 of the Court of Cassation. The applicants appealed.
15. On 30 July 1986 the Court of Appeal (Εφετείο) of Piraeus upheld the appeal considering that the legislation that rendered all the previous owners of a ship responsible for debts to NAT did not cover owners who had acquired a ship put on compulsory sale by auction. The court of appeal relied on Articles 86 § 6 (a) and 88 of Presidential Decree no. 913/1978, as interpreted in its own decision No. 649/1981 and in decisions Nos. 8/1983 and 1118/1985 of the Court of Cassation. The court also mentioned a number of decisions that accepted a different interpretation, which it was not prepared to follow (decision No. 128/1984 of the Court of Cassation and its own decisions Nos. 370/1985 and 460/1985).
16. On 30 June 1987 Parliament enacted Law no. 1711/1987, entitled “Modification and completion of the legislation on NAT and other provisions”. Article 1 § 6 of that law interpreted in an authoritative manner (αυθεντική ερμηνεία) Article 88 § 5 of Presidential Decree no. 913/1978: According to Parliament’s interpretation, this provision also concerned owners who had acquired a ship put on compulsory sale by auction.
17. On 10 June 1988 NAT appealed against the decision of 30 July 1986 of the Court of Appeal of Piraeus to the Court of Cassation relying, inter alia, on Article 1 § 6 of Law no. 1711/1987. The applicants submitted that the 1987 law should not be taken into consideration, inter alia, in the light of the Court’s Stran Greek Refineries and Stran Andreadis v. Greece judgment of 9 December 1994 (Series A no. 301-B).
18. On 22 April 1993 NAT obtained an order for the seizure of the first applicant’s real property. The first applicant did not appeal (ανακοπή) against this order.
19. On 16 April 1997 the Court of Cassation found in favour of NAT. The Court of Cassation reasoned as follows: a person acquiring a ship put on compulsory sale by auction was responsible under Article 86 § 6 (a) of Presidential Decree no. 913/1978 for the previous owners’ debts to NAT; this reading of the provision was also supported (in the words of the Court of Cassation “a further argument in favour of this interpretation can be drawn”) by Article 1 § 6 of Law no. 1711/1987 interpreting in an authoritative manner Article 88 § 5 of Presidential Decree no. 913/1978. The Court of Cassation sent the case back to the Court of Appeal.
20. The proceedings are still pending and the first applicant’s property remains under seizure.
21. Article 77 § 1 of the 1975 Constitution reads as follows:
“The authentic interpretation of the laws shall rest with the legislative power.”
22. Presidential decree no. 913/1978 provides the following:
“The following persons are jointly and severally liable, without having the right to require that the creditor should first try to execute against the principal debtor, for any contributions resulting from contracts with sailors on the crew list (ναυτολόγιο) or, in general, contributions assessed by a public authority in accordance with the relevant special procedures (βεβαιωμένες):
a) all former ship-owners in respect of claims created before they transferred the ship’s ownership, as well as their successors; ...”
“The transfer of the ownership of a ship cannot be validly recorded in the registry for ships (νηολόγιο) if unaccompanied by a certificate that the ship does not have any outstanding debts to NAT ... ”
23. The Court of Cassation in its decisions nos. 127/1984, 128/1984, 509/1985, 1145/1987 and 952/1994 considered that the legislation that rendered all the previous owners of a ship responsible for debts to NAT also covered owners who had acquired a ship put on compulsory sale by auction. The same line was followed by the multi-member first-instance civil court of Piraeus in decisions nos. 2796/1980 and 253/1985, the Court of Appeal of Piraeus in decisions nos. 301/1979, 370/1985 and 460/1985, the Court of Appeal of Athens in decision no. 4023/1978, and the Council of State (Συμβούλιο της Επικρατείας) in decision no. 2390/1996.
24. However, in its decisions nos. 8/1983 and 1118/1985 the Court of Cassation adopted the opposite view, which had also been taken by the Court of Appeal of Piraeus in decisions nos. 445/1981, 649/1981 and 915/1982.
25. Law no. 1711/1987 provides the following:
“The true meaning of the term ‘transfer’ in Article 88 § 5 of Presidential Decree no. 913/21978 is such that it includes the ... compulsory sale by auction ...”
“Monies paid to NAT by successful bidders at auctions for the compulsory sale of ships are returned ... only in cases in which, at the time of the publication of this law, a final judgment (αμετάκλητη δικαστική απόφαση) has been issued.”
26. It was indicated in the explanatory report (εισηγητική έκθεση νόμου) of Law no. 1711/1987 that “the purpose of the interpretative provisions of Article 1 was to settle the disputes, secure the collection of NAT’s resources and harmonise the fund’s legislation with the findings of the courts’ caselaw”.
During the parliamentary debates, the Government’s Rapporteur expressed the view that Article 1 of the said law validated the courts’ caselaw on the matter (see the Official Minutes of Parliament - session of 18 May 1987, p. 5990).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88314
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DEAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Melvyn Dean, is a British national who was born in 1949 and lives in Stoke on Trent. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 23 October 1998. On 20 February 2000, the applicant made a claim for widows’ benefits namely Widow’s Payment and Widow’s Pension. Subsequently the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 17 December 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-81836
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TALİPOĞLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1952 and lives in Erzurum.
5. On an unspecified date, the Land Registry Commission issued a decision on plots of land in the Taşbulak village in the Hınıs district in Erzurum registering them as property of the Treasury. The decision included the applicant's plot of land.
6. On 14 January 1985 the mayor of Taşbulak village filed an action with the Hınıs Cadastre Court and requested the annulment of the Land Registry Commission's decision.
7. On an unspecified date, the applicant filed a similar action with the Hınıs Cadastre Court. In his petition he stated that the plot of land in question had been registered in his father's name in 1946.
8. On 3 October 1986 the Hınıs Cadastre Court decided to join the cases.
9. On 21 May 1987 the First Instance Court held its first hearing and heard the parties.
10. Between 21 May 1987 and 19 October 1999 the court held fifty three hearings. During this period, the court examined the documents furnished by the parties concerning their ownership allegations and ordered on-site visits to be carried out on the plots of lands. However, the court postponed carrying out onsite visits on the plots of lands due to bad weather conditions or the absence of experts. Despite the court's letters to the Directorate of Agriculture and Land Registry to secure the presence of the experts, they failed to appear for the on-site visits.
11. The proceedings before the Hınıs Cadastre Court are still pending. The on-site visits to the plots of land have not yet been carried out.
12. On 20 August 1990 the mayor of the Dikili village in Hınıs district filed an action with the Hınıs Civil Court of First-instance against the Uyanık village. The action concerned a dispute over a plot of land.
13. On 27 June 1991 the applicant intervened in the action and alleged that his father was the owner of the plot of land in question. The Suvaran village also intervened in the proceedings.
14. On 28 May 1992 the First Instance Court sent a letter to the Cadastre Registration Office and requested the determination of the borders of the Uyanık and Dikili villages.
15. On 9 July 1992 the court ordered an on-site visit to be carried out on the plot of land. In this connection it sent a letter to the Directorate of Agriculture and Cadastre and requested the latter to secure the presence of experts for the on-site visit.
16. Between 9 July 1992 and 18 November 1999 the court held thirtynine hearings. During this period, the court postponed the conduct of on-site visits on account of bad weather conditions or the absence of the experts.
17. On 18 July 1996 during the hearing before the court the applicant requested the court to carry out an on-site visit to the plot of land and to secure the presence of the experts.
18. On 3 October 1996 the court postponed an on-site visit. It noted that the District Gendarmerie Command had sent a letter and informed the court that an on-site visit could not be carried out for security reasons in the area.
19. On 28 June 2001 the Hınıs Civil Court of First Instance issued a decision of non-jurisdiction in respect of the applicant's action and decided to relinquish jurisdiction in favour of the Hınıs Cadastre Court. The court further decided to strike out the case in respect of the Dikili and Suvaran villages since they had failed to pursue their claim. The applicant appealed.
20. On 11 December 2001 the Court of Cassation dismissed the appeal. This decision became final on 14 February 2002.
21. On 19 February 1985 the mayor of Suvaran village filed an action with the Hınıs Cadastre Court against the Dikili village and requested the annulment of the decision of the Land Registry Commission in respect of the plots of land (see paragraph 5 above).
22. On an unspecified date, the applicant filed an application to intervene in the action.
23. On 25 March 1986 the court accepted the applicant's request for intervention and decided to join the cases nos. 1985/423 and 1985/07.
24. Between 2 September 1986 and 9 November 1999 the court held fiftynine hearings. During this period it examined the documents submitted by the parties and requested the State authorities to submit additional documents concerning the plots of land in question.
25. On 24 March 1989 the court ordered an on-site visit to the plots of land. However it postponed the on-site visits due, respectively, to the absence of the experts or bad weather conditions.
26. The proceedings before the Hınıs Cadastre Court are still pending. The on-site visits to the plots of land have not yet been carried out.
27. On 7 February 2000 the applicant filed a petition with the General Directorate of Criminal Matters attached to the Ministry of Justice. He complained that the judges at the Hınıs Civil Court of First Instance and Hınıs Cadastre Court had failed to display due diligence in handling the proceedings concerning the lands in question.
28. In a letter of 18 May 2000 the General Directorate of Criminal Matters dismissed the applicant's request.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97848
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF OYAL v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. The applicants were born in 1996, 1973 and 1961, respectively, and live in Izmir.
6. The first applicant was born prematurely on 6 May 1996 at the Dr Behçet Uz Children's Hospital in Izmir.
7. On 7 May 1996 he was diagnosed with an “inguinal and umbilical hernia” by doctors working in the same hospital.
8. On an unspecified date in May or June 1996, the third applicant, who is the first applicant's father, purchased a unit of red blood cells and a unit of plasma from the Izmir Directorate of the Kızılay (the Turkish Red Cross, hereinafter “the Kızılay”). A number of blood and plasma transfusions were carried out on 19 May 1996, 24 May 1996, 26 May 1996, 29 May 1996 and 6 and 7 June 1996. The first applicant was discharged from the hospital on 17 June 1996.
9. Approximately four months after the blood transfusion, the second and third applicants learned that the first applicant had been infected with the HIV virus which could develop into the more severe Acquired Immune Deficiency Syndrome (AIDS).
10. According to the information given by the Government, on 31 October 1996 a donor (no. 1294, code MUALAB-43) donated blood to the Kızılay. Subsequent to screening and tests carried out on the donated blood (serial no. 210619), HIV was found and the blood in question was destroyed. Following two more tests, it became certain that donor no. 1294 had been infected with HIV. The authorities conducted an investigation with a view to determining whether donor no. 1294 had donated blood previously. It appeared that the unit of plasma (serial no. 202367) used for the first applicant's treatment had been given by donor no. 1294. The first applicant was admitted to the Hacettepe University Hospital for treatment. The costs of treatment were paid by the Izmir Social Solidarity and MutualAid Foundation.
11. On 7 May 1997 the applicants filed a complaint with the Public Prosecutor's office in Izmir. They claimed that the Kızılay had provided contaminated blood and the Ministry of Health had been negligent in conducting the requisite screening and testing in accordance with the relevant domestic legislation. They requested that criminal proceedings be initiated against the doctors and laboratory personnel involved in the transfusion process, as well as against the Director of the Izmir Health Department (İzmir İl Sağlık Müdürü) and the Director of the Kızılay Izmir Branch.
12. On 2 October 1997 the Audit Department of the Ministry of Health prepared a report in which it stated that the unit of plasma used for the first applicant's treatment had been screened and tested for the HIV virus. However at that stage the HIV antibodies had not yet been produced in the unit of plasma donated by donor no. 1294. The report further noted that all around the world the HIV infection had been screened by Anti-HIV (ELISA) tests on the recommendation of the World Health Organisation. Therefore, it had been scientifically impossible to diagnose the HIV contained in the unit of plasma in question by the routine tests. Thus, relying on the statements given by health personnel and expert reports, the report concluded that there was no negligence attributable to the health personnel involved in the incident or to any other authority.
13. Notwithstanding, the Audit Department advised that (1) a circular be issued to relevant departments; (2) the health personnel be reminded to ensure that questionnaires were properly filled in by blood donors; (3) questions be asked about the sexual history of the donors and (4) donations be refused in doubtful cases. The Audit Department added that health personnel's attention should be drawn to the need to wait for a sufficient period of time before delivering blood in case antibodies had not yet been produced. In this connection, on 3 January 1998 circular no. 141 and its attachments were communicated to all blood centres and stations in order to prevent infections resulting from blood transfusions.
14. On 2 July 1998 the Izmir Administrative Council decided that no investigation could be conducted into the doctors who had been involved in the blood transfusion process on the ground that the children's hospital where the transfusions had taken place was not equipped with facilities for the ELISA test. Therefore the doctors had not been at fault in the incident.
15. On 7 May 1997 the applicants filed a complaint with the Public Prosecutor's office in Izmir, this time against the Minister of Health and the Director General of the Kızılay.
16. On 23 May 1997 the Public Prosecutor issued a decision of nonprosecution. He reasoned that an investigation into the actions of a minister could only be conducted in accordance with Article 100 of the Turkish Constitution, which requires a motion to be brought in parliament. Therefore the Public Prosecutor concluded that he lacked jurisdiction ratione materiae and ratione personae in this matter. As regards the Director General of the Kızılay, the Public Prosecutor noted that he was in Ankara whereas the incident had taken place in Izmir and that there was no fault directly attributable to him, bearing in mind particularly that he had not been involved in selling the infected blood.
17. On 8 September 1997 the applicants filed an objection with the Kırıkkale Assize Court against the Public Prosecutor's decision.
18. On 14 October 1997 the Kırıkkale Assize Court dismissed the applicants' objection for non-compliance with the fifteen-day statutory time-limit to lodge their objection.
19. On 19 December 1997 the applicants initiated compensation proceedings against the Kızılay and the Ministry of Health. They requested non-pecuniary damage for the infection of the first applicant with HIV as a result of medical negligence on the part of the defendants.
20. On 13 July 1998 the Ankara Civil Court of First Instance issued a decision of non-jurisdiction in respect of the case brought against the Ministry of Health. It stated that these complaints must be brought before the competent administrative tribunal.
21. As regards the case instituted against the Kızılay, the court held that it was strictly liable for the incident as it had been established through a witness statement that the test which gave clear results on the presence of the HIV virus could not be carried out due to its high costs and that the health questionnaire system had not been in full practice at the time of the incident (see paragraph 13 above). It thus awarded the applicants 30,000,000,000 Turkish lira (TRL) plus interest at the statutory rate running from 17 June 1996, the date of the incident. The court held, in particular:
“...As briefly mentioned above, Yiğit Turhan Oyal suffers from AIDS after receiving HIV virus infected blood supplied by the Izmir the Kızılay District Office. The Kızılay District Office is at fault for the infection of the child. This appeared from the sworn statements given on 8 June 1998 by Prof. Dr. Hakkı Bahar, who works at the Dokuz Eylül University School of Medicine, Department of Biology and Clinical Microbiology. Hakkı Bahar, who is a specialist on this subject, is the only witness of the Red Crescent Directorate General and holds an academic title of “professor”. In his statements, he submitted that AIDS was a disease which could be detected with certainty by a special test but that, because it was very expensive, it was not employed. Bearing in mind that it was possible to detect HIV with sufficient certainty and that the Kızılay did not employ the test in question, because it was costly, then it should be held responsible for the infection of [the child]. The Kızılay has to bear the consequences of this [negligence]. It cannot escape this [responsibility]. Either it has to employ the test which determines with certainty AIDS, or it fails to do the test and assumes responsibility for providing blood which was infected with AIDS.
Moreover, the Kızılay is at fault for the following reason: As is clear from the statements of the doctors indicated by the Red Crescent and, following the contamination of the plaintiffs' child, the Ministry of Health issued a circular on 3 January 1997 and required the questioning of donors. It thus follows that this circular had to be issued because no such questioning took place at all previously or was not done properly.
Even assuming for a moment that the the Kızılay was not at fault in this incident, it still has strict liability (kusursuz sorumluluk). This is the very requirement of justice.
Yiğit Turhan Oyal was infected with HIV at a very young age because of the blood given by the the Kızılay. He caught AIDS, which is, together with cancer, one of the most dangerous diseases of our age. It is unnecessary to explain how evil and fatal this disease is. It is highly unlikely that little Yiğit will survive this disease; most probably he will lose his life. Even if he survives, he will live with this disease throughout his lifetime and everybody will avoid him. Strictly speaking, by having been infected with this disease, Yiğit has become a social outcast. He should not have sexual intercourse and should not get married during his lifetime. It is impossible for a living person to endure this. Furthermore, Yiğit should be taken care of very well. It is impossible to put into words how father Nazif Oyal and mother Neşe Oyal suffer from sorrow because of Yiğit's infection with this disease. In view of the foregoing, the court considers that the award of TRL 10,000,000,000 for each plaintiff in respect of non-pecuniary damages appears to be low. In fact, the sorrow and pain suffered by the plaintiffs cannot be compensated even if quadrillions were awarded. As noted above, the amount of compensation awarded is an insignificant one and merely aims at lessening their pain to some extent. Having regard to the fact that today compensation of three to five billion Turkish liras is awarded in a defamation case and that the amount in question would not even suffice to buy a car by the current prices of the day, it is obvious that the increase of awards is inevitable. It is considered that today is the time to increase compensation to a satisfactory level. For this reason, the determination of the amount in this case, albeit insignificant, was in line with this view.
Notwithstanding the above, I should like to stress the following: the fact that an aid organisation like the Kızılay ... chose to pursue all avenues with full strength in order to avoid compensating Yiğit, instead of redressing his suffering, is thought provoking...”
22. On 9 February 1999 the Court of Cassation upheld the judgment and stated the following:
“... The case concerns the payment of damages incurred as a result of the tortious act of the defendant. In order to hold the defendant liable for the alleged act, it should be established that the defendant was at fault, that the plaintiff incurred damage as a result of the tortious act and that there was a causal link between the act and the damage suffered. There is no dispute between the parties that the damage in question occurred as a result of the blood used by [Yiğit] and that such an act is unlawful. Again, it is also undisputed that the plaintiffs purchased the blood, which was used for the treatment of Yiğit, from the the Kızılay Izmir District office and that the blood was infected HIV positive.
The focal point of the dispute is whether the Kızılay Directorate General is at fault... It is a known fact that a foundation such as the Kızılay has a noteworthy prominence in meeting the need for blood and is worthy of credence on account of this vocation. In other words, there is an assumption that the blood obtained from the defendant meets expectations. However, it appeared that the blood obtained and used [in the present case] was unclean and so malignant that there was no possibility of purifying it. The fact that the [donor] was the bearer of the known virus cannot absolve the defendant from liability. The defendant should have subjected such an important and vital substance to all necessary tests and screening using the necessary technology in accordance with the purpose of its use and the importance of that substance. Nevertheless it appears that the blood in question was not subjected to the requisite tests available in today'
Turning to the defendant's contention that the amount awarded in respect of nonpecuniary damage was excessive, ... [I]t should be noted that the present and future life of the child, his mother and father have become dramatically insufferable. All segments of society will now avoid having any kind of social or physical contact with these people. Thus, it is apparent that the physical, social and personal values of all the plaintiffs, especially those of the child, shall be under attack during their lives. Having regard to the foregoing and particularly to the rule under Article 49 of the Code of Obligations which stipulates '...parties' social and economic conditions should also be taken into account...', as well as to the current purchase value of money, the court concludes that the amount awarded in respect of non-pecuniary damage was not excessive. In this connection, when determining an amount for non-pecuniary damage, the amount in question should be satisfactory for the suffering party and should have a dissuasive effect for the harming party. Therefore, the defendant's objections on this part of the case must be dismissed...”
23. On 24 February 1999 the Kızılay paid a total amount of TRL 54,930,703,000 to the applicants, to cover the nonpecuniary damage awarded by the court and the statutory interest applied to that sum.
24. On 13 October 1998 the applicants initiated proceedings against the Ministry of Health, requesting non-pecuniary damage.
25. On 20 November 1998 the Izmir Administrative Court rejected the case on the ground that the judgment of the Izmir First Instance Court which had issued a non-jurisdiction decision in respect of the proceedings concerning the Ministry of Health had been pending before the Court of Cassation. On 8 February 1999 the applicants appealed against this decision.
26. On 7 May 2001 the Supreme Administrative Court quashed the decision and remitted the case to the Izmir Administrative Court for examination on the ground that the proceedings concerning the Ministry of Health must have been considered to have become final, given that the Ministry of Health had not appealed against the Izmir First Instance Court's judgment.
27. On 14 July 2003 the Izmir Administrative Court refused the applicants' compensation claims. Referring to the Izmir First Instance Court's judgment, the Izmir Administrative Court reiterated that the Kızılay and the Ministry of Health were both liable for the first applicant's HIV infection. The court added, however, that the purpose of awarding nonpecuniary damage was not to provide full restitution and the award of non-pecuniary damage twice for the same incident would have resulted in unjust enrichment.
28. On 3 October 2003 the applicants appealed.
29. On 31 March 2006 the Supreme Administrative Court quashed the judgment of 14 July 2003, holding that there was no provision in domestic law which could have prevented the administration from being held liable jointly with other real or corporate bodies.
30. On 13 March 2007 the Supreme Administrative Court dismissed the Ministry of Health's rectification request against the above decision.
31. In a judgment dated 7 June 2007, the Izmir Administrative Court held that the Ministry of Health personnel had been negligent in the performance of their duties. The court thus awarded the applicants TRL 30,000 plus interest at the statutory rate running from the date on which the proceedings had been initiated, namely 19 December 1997. Both the applicants and the Ministry of Health appealed against the judgment. The applicants challenged the failure of the court to order the defendant to pay the legal fees, whereas the Ministry of Health challenged the outcome of the case.
32. On 26 December 2007 the Supreme Administrative Court dismissed the Ministry of Interior's appeal but partly quashed the judgment insofar as it concerned the fees. The parties did not inform the Court about the outcome of these proceedings.
33. On 30 April 2008 the Ministry of Health paid 159,369.49 New Turkish Liras to the applicants.
34. On 16 February 2005 the newly appointed Administrative Board of the Kızılay presented their apologies to the applicants and decided to give a scholarship to the first applicant in order to contribute towards his educational costs. A delegation of board members visited the applicants and told them that the medical expenses of the first applicant would also be paid by the Kızılay.
35. According to the information given by the applicants, the Kızılay rejected the applicants' claim for treatment and medical costs which amounted to TRL 3,000 (approximately EUR 1,340) and EUR 5,469, respectively, per month. The Ministry of Health also rejected their request for payment of these expenses.
36. The green card issued by the Governorship of Izmir was cancelled right after the announcement of the judgments ordering the administration to pay compensation to the applicants.
37. The compensation awarded by the civil and administrative courts covered only one year's medical treatment expenses and did not suffice to pay the costs of medication used by the first applicant.
38. The first applicant was not admitted to any school because of his condition and reactions from families of other pupils. He thus started his education at a hospital. Following public pressure and negotiations with the National Education Directorate, he was ultimately admitted to a public school. Yet he has no close friends and suffers from stammering. Every week he sees a psychologist. Upon the latter's advice, he attends drama and painting courses.
39. The third applicant's (the father) health has been severely affected as a result of reactions from parents of other children and the school administration's refusal to admit his son to school. Currently he is unable to work and provide any income for the family.
40. The family is in serious economic difficulty and is trying to pay the first applicant's medical expenses with the help of family friends. Meanwhile, although some health associations offered help, they wanted to test some medications on the first applicant, which the family refused.
41 Article 4 of the Law on Blood and Blood Products (Law no. 2857 dated 25 June 1983) provides:
“The powers and duties of the Ministry of Health and Social Welfare ... are as follows:
...
(c) Inspection and supervision of real and corporate entities which deal with blood and blood products...”
42. Article 23 of the Regulation on the Blood and Blood Products (dated 25 November 1983) reads:
“The following blood screening tests shall be conducted; blood type, Rh, compatibility and cross-match, VDRL tests, Hepatitis B, malaria parasite...”
43. Common provisions in the Law on Blood and Blood Productions and the Regulation on Blood and Blood Products are as follows:
“All entities which deal with blood and blood products shall be inspected by the Ministry of Health and Social Welfare at least twice a year. Defects found during inspections shall immediately be remedied by the relevant entities. In the event the same defects are found to exist during the following inspection, the respondent individuals shall be subject to administrative and criminal proceedings.”
44. On 18 August 1983 the Ministry of Health sent a letter to all governors, for distribution to hospitals, blood centres and public institutions, informing them about AIDS and the measures to be taken to prevent the spread of this disease. The Ministry stressed that particular vigilance must be shown when choosing blood donors. In particular, it required that blood donors be subjected to a medical examination prior to giving blood and that their blood be refused in case any symptoms of HIV AIDS were detected.
45. By a letter dated 21 November 1985, the Ministry of Health informed the governors that all HIV AIDS cases must be reported to the health authorities. It noted that persons suspected of having HIV AIDS must be medically examined, and their blood, bodily fluids and all other relevant substances subjected to the requisite tests.
46. On 4 February 1987 the Ministry of Health issued a circular to all governors (circular no. 1141), for distribution to public and private hospitals and clinics as well as to the Kızılay, for prevention of the spread of the HIV AIDS disease. The Ministry noted in this circular that HIV AIDS could only be transmitted through sexual intercourse, blood transfusion or multiple use of a syringe. In this connection, the Ministry stated that the anti titre test was the most effective way of diagnosing HIV AIDS. This could only be done by the ELISA method. It stressed that, prior to blood transfusions, the requisite ELISA tests must be carried out. To that end, all hospitals should be equipped with facilities for carrying out ELISA tests on blood given by donors. The hospitals which did not have such facilities should send blood samples to the hospitals which had blood centres.
47. By a circular dated 1 April 1992, the Ministry of Health required all blood centres and stations to conduct VDRL, HBsAg, AIDS and malaria tests on all blood and blood products. It stressed that no blood transfusions should be carried out if the aforementioned tests had not been conducted.
48. Between 1980 and 1988, the Committee of Ministers of the Council of Europe adopted a number of recommendations aimed at ensuring the adoption of common rules in the health field. In the below-mentioned Recommendations, the Committee of Ministers drew Member States' attention to the growing importance of a new and severe health hazard, namely AIDS, which was caused by an infectious agent transmissible by blood and blood products, and invited them to adopt a number of measures to prevent the spread of this infectious disease. These Recommendations were as follows:
– Recommendation No. R (80) 5, dated 30 April 1980, on blood products for the treatment of haemophiliacs;
– Recommendation No. R (81) 14, dated 11 September 1981, on preventing the transmission of infectious diseases in the international transfer of blood, its components and derivatives;
– Recommendation No. R (84) 6 on the prevention of the transmission of malaria by blood transfusion;
– Recommendation No. R (83) on preventing the possible transmission of AIDS from affected blood donors to patients receiving blood and blood products;
– Recommendation 985 (1984) on the supply and utilisation of human blood and blood products; and
– Recommendation No. R (85) 12 on the screening of blood donors for the presence of AIDS Markers.
VIOLATED_ARTICLES: 13
2
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79301
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RAMAZANOVA AND OTHERS v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicants were born in 1947, 1949, 1952 and 1947 respectively and live in Baku.
6. On 4 April 2001 the applicants founded a public association named “Assistance to the Human Rights Protection of the Homeless and Vulnerable Residents of Baku” (“Evsiz və Məzlum Bakılıların İnsan Hüquqlarının Müdafiəsinə Yardım” İctimai Birliyi). This was a non-profit organisation aimed at providing aid to the homeless and protection of their interests.
7. On 9 April 2001 the applicants filed a request for the association's state registration with the Ministry of Justice (hereinafter also referred to as the “Ministry”), the government authority responsible for the state registration of legal entities. According to the Government, this request was filed on 12 April 2001. Under the domestic law, a non-governmental organisation acquired the status of a legal entity only upon its state registration by the Ministry.
8. On 18 May 2001 the Ministry returned the registration documents to the applicants “without taking any action”, i.e. without issuing a state registration certificate or an official refusal to register the association. In the cover letter, the Ministry noted that the association's charter did not comply with Article 6 of the Law On Non-Governmental Organisations, because it did not include a provision on the territorial area of the association's activity.
9. The applicants redrafted the charter in line with the Ministry's comments and on 4 June 2001 filed the second registration request, submitting a new version of the charter. On 10 September 2001 the Ministry responded with another refusal, stating that the charter was once again not in compliance with the requirements of the Law On Non-Governmental Organisations. Specifically, it failed to provide for the terms of office of the association's supervisory board, as required by Article 25.1 of that Law.
10. The applicants again revised the charter and on 2 October 2001 submitted their third registration request.
11. Having not received any response to their third registration request for several months, on 22 May 2002 the applicants applied to the Yasamal District Court, complaining that the Ministry “evaded” registering their organisation and asking the court to oblige the Ministry to register it. They also demanded moral compensation in the amount of 25,000,000 Azerbaijani manats (AZM).
12. On 5 July 2002 the Ministry sent a letter to the court, informing that the documents were again returned “with no action taken” by the Ministry. This time the reason for declining the registration was the applicants' failure to include in the charter the conditions for membership in the association, as required by Article 10.3 of the Law On Non-Governmental Organisations.
13. On 15 July 2002 the Yasamal District Court dismissed the applicants' claim, finding nothing unlawful in the actions of the Ministry. The court found that the association's charter had not been drafted in accordance with the requirements of the domestic law.
14. The applicants appealed. On 19 September 2002 the Court of Appeal upheld the district court's judgment. On 20 November 2002 the Supreme Court upheld the Court of Appeal's decision.
15. In the meantime, the applicants once again re-drafted the organisation's charter according to the Ministry's latest comments and on 29 July 2002 submitted their fourth registration request. Having not received a reply within the statutory five-day period, they filed a new lawsuit with the Yasamal District Court, claiming that the Ministry committed repeated procedural violations and unlawfully delayed the examination of their registration request.
16. The representatives of the Ministry argued in the court that the examination of the applicants' registration request was delayed due to the heavy workload of the Ministry's Department of State Registration of Legal Entities.
17. On 5 September 2002 the Yasamal District Court issued a procedural decision (qərardad) on “leaving the claim without examination”, i.e. declaring the applicant's lawsuit inadmissible. The court noted that the applicants' registration request was still pending examination with the Ministry of Justice and that the applicant had filed the lawsuit without exhausting extrajudicial resolution of the matter. On 1 November 2002 the Court of Appeal and on 13 January 2003 the Supreme Court upheld this decision.
18. While the second lawsuit was still examined on appeal, the applicants, having not received any answer from the Ministry by December 2002, filed another lawsuit, asking the court to provide legal interpretation as to whether the Ministry had a right under the domestic law to delay and decline registration multiple times, and to forward the matter of constitutionality of the Ministry's actions for the consideration of the Constitutional Court. On 18 December 2002 the Yasamal District Court refused to admit the lawsuit, noting that the applicants' previous lawsuit was still under consideration on appeal. It also noted that, under the domestic law applicable at that time, a petition to forward the case to the Constitutional Court should be filed with the Supreme Court. By a final decision of 26 September 2003, the Supreme Court upheld this decision.
19. In January 2003, about six months after the filing of the applicants' fourth registration request in July 2002, the Ministry again refused registration. It appears that, on a later unspecified date, having again redrafted the charter, the applicants re-submitted their registration request for the fifth time.
20. At the same time, the applicants filed a new lawsuit against the Ministry's latest refusal. On 26 February 2003 the Yasamal District Court refused to admit this lawsuit, because the applicants' appeals in earlier lawsuits were still pending before the higher courts. By a final decision of 3 September 2003, the Supreme Court upheld this decision.
21. Finally, the applicants filed an additional-cassation appeal with the President of the Supreme Court, requesting the reopening of the proceedings and referral of the case to the Plenum of the Supreme Court. By a letter of 10 November 2003, the Supreme Court's President rejected the applicants' request, finding no grounds for the reopening of the proceedings.
22. The applicants filed a constitutional complaint against the domestic courts' judgments, claiming that a number of their constitutional rights had been violated. On 23 February 2004 the Constitutional Court admitted their complaint for examination on the merits.
23. By a decision of 11 May 2004, the Constitutional Court found that all the judgments and decisions of the Yasamal District Court, the Court of Appeal and the Supreme Court were in breach of the judicial guarantees for protection of human rights and freedoms, as guaranteed by the Constitution. Specifically, the Constitutional Court noted that, in the first set of judicial proceedings, the domestic courts failed to examine the applicants' complaint thoroughly and assess the evidence objectively. In particular, in the first set of civil proceedings, the courts failed to thoroughly examine the issue of an alleged violation of the applicants'Constitutional Court found that, thus, the domestic courts violated Articles 60 and 70 (I) of the Constitution, providing for judicial guarantees of individual rights and freedoms, as well as a number of provisions of the Code of Civil Procedure. It further found that, in the subsequent judicial proceedings, the domestic courts likewise violated the same provisions of the Constitution.
24. The Constitutional Court quashed all the domestic judgments and decisions relating to the applicants' case and remitted the case to the courts of general jurisdiction for a new examination. It specifically instructed them to examine the alleged violation of the applicants' right to freedom of association guaranteed by Article 58 of the Constitution.
25. On 18 February 2005 the Ministry of Justice, in response to the applicants' fifth registration request, registered the association and issued a state registration certificate.
26. On the same day, the Yasamal District Court re-examined the applicants' complaint concerning the unlawful actions of the Ministry and their claim of compensation in the amount of AZM 25,000,000 for the alleged violation of their freedom of association. The court dismissed the applicants' claims, noting that, by the time of the new examination of the case, the applicants' association had already been registered and, therefore, the disputed matter had been solved. The court further held that the domestic law did not provide for compensation for moral damages in such situations.
27. On 22 July 2005 the Court of Appeal upheld the first-instance courts' judgment. On 22 December 2005 the Supreme Court upheld the lower courts' judgments.
28. It appears that, thereafter, the applicants filed a new lawsuit, seeking acknowledgement of a breach of domestic law by the Ministry of Justice. On 14 September 2006 the Yasamal District Court rejected this claim. Following an appeal, on 8 December 2006 the Court of Appeal found that the repeated delays by the relevant official of the Ministry of Justice in responding to the applicants' registration requests had constituted a breach of requirements of Article 9 of the Law On State Registration of Legal Entities. The court awarded three of the four applicants in the present case, Ms Ramazanova, Mr Alizadeh and Ms Ganbarova, collectively, the sum of 800 New Azerbaijani manats (AZN), which approximately equals to 705 euros (EUR), as a compensation for moral damages. This amount was to be paid by the relevant official of the Ministry of Justice responsible for the delays in the association's state registration.
“I. Everyone has a right to freedom of association with others.
II. Everyone has the right to form any association, including political parties, trade unions or other public associations, or join existing associations. Free functioning of all associations shall be guaranteed. ...”
“I. Judicial protection of every person's rights and freedoms shall be guaranteed.
II. Every person shall have a right to complain in the court about decisions and actions (or omission to act) of state authorities, political parties, trade unions and other public associations, as well as public officials.”
“I. The executive, legislative and judicial powers shall have the duty to guarantee and protect human rights and freedoms fixed in the Constitution. ...”
“47.1. The charter of a legal entity approved by its founders is the legal entity's foundation document. ...
47.2. The charter of a legal entity shall define the name, address, procedure for management of activities and procedure for liquidation of the legal entity. The charter of a non-commercial legal entity shall define the object and purpose of its activities. ...”
“48.1. A legal entity shall be subject to state registration by the relevant executive authority. ...
48.2. A violation of the procedure of a legal entity's establishment or non-compliance of its charter with Article 47 of the present Code shall be the grounds for refusal to register the legal entity. ...”
“Upon receipt of an application for state registration from a legal entity or a branch or representative office of a foreign legal entity, the authority responsible for state registration shall:
- accept the documents for review;
- within ten days, issue to the applicant a state registration certificate or a written notification of the refusal to register; or
- review the documents resubmitted after rectification of the breaches previously existing therein and, within five days, take a decision on state registration.”
“6.1. Non-governmental organisations may be established and carry out their activities with the all-Azerbaijani, regional, and local status. The area of activities of a non-governmental organisation shall be determined independently by the organisation.
6.2. Activities of all-Azerbaijani non-governmental organisations shall apply to the whole territory of the Azerbaijan Republic. Activities of regional non-governmental organisations shall cover two or more administrative-territorial units of the Republic of Azerbaijan. Local non-government organisations shall operate within one administrative-territorial unit. ...”
“3. The issue of acquiring and termination of membership in a public association shall be determined by its charter. Charter of a public association shall guarantee the right to lodge a complaint, within the association and in court, regarding termination of membership. ...”
“16.1. The state registration of non-governmental organisations shall be carried out by the relevant executive authority in accordance with the laws of the Republic of Azerbaijan on state registration of legal entities.
16.2. Non-governmental organisations shall acquire the status of a legal entity only after passing the state registration.”
“17.1. Non-governmental organisations can be refused registration only if there is another organisation existing under the same name, or if the documents submitted for registration contradict the Constitution of the Republic of Azerbaijan, this law and other laws of the Republic of Azerbaijan, or contain false information.
17.2. Decision on refusal of state registration shall be presented in writing to the representative of the non-governmental organisation, with indication of the grounds for refusal as well as the provisions and articles of the legislation breached upon preparation of the foundation documents.
17.3. Refusal of registration shall not prevent the organisation from resubmitting its registration documents after rectification of the breaches.
17.4. The decision on refusal of state registration may be challenged in court.”
“25.1. The charter of a public association shall, in accordance with this law and other laws, define the structure and composition of the public association; the competence, formation procedure and term of office of its managing bodies; as well as the procedure for decision-making and representation of the public association. ...”
“1. A grant is an assistance rendered pursuant to this law in order to develop and implement humanitarian, social and ecological projects, works on rehabilitation of destroyed objects of industrial and social purpose, of infrastructure in the territories damaged as a result of the war and disaster, programs in the field of education, health, culture, legal advice, information, publishing, sport, scientific research and design programs as well as other programs of importance for the state and public. A grant shall only be provided for a specific purpose (or purposes).
2. A grant shall be provided in the financial and/or in any other material form. The grant shall be rendered gratis and its repayment in any form may not be requested. ...”
“1. A grant beneficiary is a recipient in respect of a donor.
2. The following may be a recipient:
- The Azerbaijani State in the person of the relevant executive authority;
- Municipal authorities;
- Resident and non-resident legal entities, their branches, representative offices and departments carrying out activity in the Republic of Azerbaijan, whose main objective, according to their articles of association, is charitable activities or implementation of projects and programs that may be a subject of a grant, and which are not aimed at direct generation of profit resulting from the grant; and
- Individuals in the Republic of Azerbaijan. ...”
VIOLATED_ARTICLES: 11


ITEMID: 001-75288
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GOZAYDIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Hasan Gözaydın, Hasan Gündoğdu, Ali Cimin and Hıdır Topaç, are Turkish nationals. They are represented before the Court by Mr Hüseyin Aygün and Mr Özgür Ulaş Kaplan, lawyers practising in Tunceli.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
Until 1994 the applicants lived in Büyükköy and Şahverdi villages, in the district of Ovacık, in Tunceli province, where they own property.
In May 1994 security forces forcibly evacuated Büyükköy and Şahverdi on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Erzincan and Hozat where they currently live.
On an unspecified date, Hasan Gündoğdu lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces.
On 23 June 1995 the Ovacık Administrative Council decided not to conduct an investigation into Hasan Gündoğdu’s allegations as the perpetrators of the alleged acts could not be identified.
On 5 November 2001 Hasan Gündoğdu and Hasan Gözaydın filed petitions with the office of the Ovacık District Governor requesting permission to return to their villages.
On 25 May 2001 the Ovacık District Governor sent the following reply to Hasan Gözaydın:
“...On 23 June 1995 the Administrative Council decided not to conduct investigation against the state officials as the perpetrators of the alleged acts could not be identified.
Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’ ”
On 12 and 17 May 2002 the representatives of the applicants filed petitions, on behalf of the applicants, with the office of the Ovacık District Governor and the Tunceli Governor requesting permission to return to their villages and compensation for the damage they had suffered.
On 7 June 2002 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants’ representatives:
“...The Büyükköy village is available for return and reside. Therefore, the residents can return and reside in Büyükköy.
...
The Şahverdi village is being considered under the ‘Return to the Village and Rehabilitation Project’. Thus, the residents of Şahverdi village can reside in Hanuşağı, Arslandoğmuş, Burnak, Kızık, Koyungölü, Söğütlü, Topuzlu, Ziyaret, Mollaaliler, Çakmaklı, Cevizlidere, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.
...
Your petition containing requests of permission to return to village will be considered under the ‘Return to Village and Rehabilitation Project’.”
On 11 September 2002 the representative of the applicants lodged a petition with the Public Prosecutor’s office in Tunceli complaining about the dereliction of duty by the Tunceli Governor and the Hozat and Ovacık District Governors(görevi ihmal).
On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Public Prosecutor’s office at the Court of Cassation.
On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to start the proceedings into the allegation of dereliction of duty against the Tunceli Governor (dilekçenin işleme konulmaması).
On 23 June 2003 the Tunceli Administrative Council decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and Ovacık District Governors.
On 7 July 2003 the representatives filed an objection with the Malatya Regional Administrative Court against the decision of the Tunceli Administrative Council.
On 2 October 2003 the Malatya Regional Administrative Court rejected the objection.
On 30 October 2003 the Tunceli Public Prosecutor decided not to conduct investigation into the applicants’ allegations against the Hozat and Ovacık District Governors.
On 20 November 2003 the representative of the applicants filed an objection with the Elazığ Assize Court against the decision of the Tunceli Public Prosecutor.
On 4 December 2003 the Elazığ Assize Court rejected the objection.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).