ITEMID: 001-5151
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SORIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Croatian citizen, born in 1933 and living in Zagreb.
In 1939 the applicant, then aged six, moved, together with his mother, to the privately owned flat in Zagreb he still occupies. The applicant and his mother were tenants and in possession of the flat on the basis of a lease between the applicant's mother and the owner. In 1958 the flat in question was nationalised, but a year later, in 1959, returned to the previous owner. The applicant and his mother continued to live in the flat, and in 1967 the owner of the flat leased the flat to the applicant's mother. After the mother's death in 1987, the applicant prolonged the lease under his name.
On 3 June 1991, the Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo) and on 22 October 1996, the Leases Act (Zakon o najmu stanova). While the first one regulates the sale of publicly-owned flats previously let under a specially protected tenancy, the second regulates the conditions of leasing privately-owned flats, including those previously let under a specially protected tenancy.
The applicant, together with some hundred and fifty other applicants, lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), claiming that certain provisions of the Leases Act and the Specially Protected Tenancies (Sale to Occupier) Act violated the constitutional guarantees of the right to enjoy their possessions, the respect and protection for family life and discriminated against former holders of specially protected tenancies of privately-owned flats.
The Constitutional Court ruled on 31 March 1998, and its decision was published in the Official Gazette (Narodne novine). The Court quashed several provisions of the Leases Act and dismissed the request to examine the constitutionality of the Specially Protected Tenancies (Sale to Occupiers) Act. As to the Leases Act, the Court quashed Article 21 § 2, which obliged an owner of a flat let for an unlimited period of time to provide a lessee with another flat in adequate condition before cancelling the lease, if the owner intended to live in the flat himself or intended to install in the flat his children, parents or his dependants. The Court also quashed Article 31 § 2, point 3, which excluded from the right to “protected rent” a lessee who had ceased to use the flat during the six months preceding the enactment of the Act in question. Furthermore, the Court quashed Articles 39 and 40 § 2. Article 39 restricted the lessor's right to terminate the lease of a lessee who does not pay the rent and charges, and is over sixty years of age or receiving social security benefits, only to cases where the municipality provides such a lessee with another adequate flat with a right to “protected rent” in an amount affordable to the lessee. Article 40 § 2 provided in substance the same as the above-mentioned Article 21 § 2.
B. Relevant domestic law before amendments by the Constitutional Court
The Specially Protected Tenancies (Sale to Occupier) Act regulates the conditions of sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly-owned flat to purchase it under favourable conditions of sale. However, the Act excludes from such favourable treatment the holders of specially protected tenancies on most privately-owned flats.
The provisions of the Act challenged by the applicant before the Constitutional Court provide as follows.
Article 3 § 1 point 2 provides, inter alia, that the Act does not concern privately-owned flats let under specially protected tenancies.
Article 7 provides that where the tenant of a publicly-owned flat has not applied to purchase it under the Act, the tenant of any privately-owned flat may lodge a request to buy it. Furthermore, this provision establishes the criteria for priority in the purchase of such flats.
Article 27 regulates the spending of the funds collected through the sale of flats let under specially protected tenancies. It requires 90 % on such funds to be used, inter alia, to provide flats for the former holders of specially protected tenancies of privately owned-flats, while 10 % of the funds must be used to help providing flats for families with three or more children. If the funds originate from the sale of flats in culturally protected buildings, 20 % of those funds must be used for the maintenance and reconstruction of such buildings while the rest is to be used according to the above mentioned criteria.
Article 34 provides that the private owners of rented flats may, within two years of the Act's enactment, sell their flats to the municipality. The municipality is under an obligation to purchase such a flat if the tenant undertakes to repurchase the flat from the municipality. The price of such a flat will be fixed according to the provisions for determining prices of publicly-owned flats let under specially protected tenancies.
The Leases Act in general regulates the legal relationship between lessee and lessor in regard to the lease of flats. It recognises a special category of lessees, those who were previously holders of specially protected tenancies on privately-owned flats. Such a category is, according to the Act, subject to a number of protections, such as an obligation for the owners to contract a lease for an unlimited period of time, the payment of a so called “protected rent”, the amount of which is to be prescribed by the Government, and strictly limited reasons for termination of the lease. This Act abolishes the specially protected tenancy as such.
Article 7 § 2 provides that the criteria for establishing the amount of “protected rent” are the condition of the flat in question, expenses for maintenance of the building and the lessee's financial situation.
Article 30 provides that, by enactment of the Act in question, specially protected tenancies cease to exist and the former holders of specially protected tenancies become lessees.
Article 31 provides that the former holder of a specially protected tenancy and the owner of the flat have to take out a lease for an unlimited period of time, and the lessee is entitled to pay the so-called “protected rent”, except where the lessee is using a part of the flat for some business-related activity; or where the lessee is the owner of an inhabitable house or flat; or where the flat has not been used by the lessee or any members of his family, during the six months preceding the entry into force of the Leases Act, unless the owner had permitted their absence.
Article 32 provides that an owner is not obliged to lease a flat to a person who is renting two flats. In that case the lessee is entitled to choose which flat he wants to keep as a lessee.
Article 33 obliges the owner to inform a lessee entitled to the “protected rent” that he is the owner of the flat, as well as of his personal address, within sixty days of the Act's entry into force. Furthermore, the former holder of a specially protected tenancy is obliged to submit a request for a lease to the owner within six months of the entry into force of the Leases Act, or of a court's decision recognising the right of the former holder of a specially protected tenancy to use the flat. If within a further period of three months the owner does not sign the lease, the former holder of a specially protected tenancy may seek a court order imposing such an agreement. Such applications must be heard under the accellerated procedure. If the owner does not inform the former holder of a specially protected tenancy about his ownership, it is presumed that the owner is the person registered as such in the land registry.
Article 34 provides that before the lease is signed, the former holder of a specially protected tenancy is obliged to pay the rent in the amount that he was paying before the entry into force of the Lease Act.
Article 35 obliges a “protected lessee” to pay, besides “protected rent”, communal and other charges, if such charges are stipulated in the lease.
Article 36 provides that if the amount of the “protected rent” is changed, the lessee is obliged to pay this new rent, without a change of the relevant provision in the lease being necessary.
Article 37 provides that the names of family members sharing the same household as the former holder of a specially protected tenancy will be noted in the lease.
Article 38 transfers the legal position of a lessee to the persons referred to in the previous paragraph, in the event of the lessee's death or relinquishment of the flat. The lessor is obliged to sign a new lease with such a person contracting a “protected rent”.
Article 39 provides that the lessor may terminate the lease of a lessee in receipt of social security benefits or older than sixty years of age, if such a person does not pay the rent or other charges, only where a municipality provides the lessee with another appropriate flat with a “protected rent”.
Article 40 reiterates the basis on which a lessor may terminate the lease of a “protected lessee”, the conditions being: if the lessee does not pay the rent and charges; if the lessee sublets the flat or part of it, without permission from the lessor; if the lessee or other tenants in the flat disturb other tenants in the building; if some other person, not noted in the lease, lives in the flat longer than thirty days, without permission from the lessor, except where that person is a spouse, child or parent of the lessee or of the other legal tenants in the flat, or a dependant of the lessee or a person on whom the lessee is dependent if the lessee or other legal tenants do not use the flat as their home, but for other purposes; if the lessor intends to move into the flat himself or install his children, parents or dependants there; if the lessor does not have another flat and is entitled to social security benefits or is more than sixty years of age. If the lessor intends to move into the flat, he is obliged to provide the lessee with another inhabitable and appropriate flat of at least equivalent quality. If the lessor has no other flat to live in, then the municipality is obliged to provide the lessee with another appropriate flat unless he owns another inhabitable and appropriate flat in the same municipality or town.
Article 41 provides that an appropriate apartment is one that provides one room for each person, but the number of the rooms shall not exceed the number of the rooms in the previous flat. The new apartment has to be in the same municipality or town.
Article 42 enables persons who have acquired the right to purchase a flat pursuant to the Specially Protected Tenancies (Sale to Occupier) Act, but for certain reasons have not been able to exercise that right, to purchase a flat until the expiration dates laid down by that Act.
Article 43 obliges a lessor to sign a lease with a person who has purchased the flat under the Protected Tenancies (Sale to Occupier) Act, where the sale has been terminated or annulled.
Article 44 obliges a lessor who intends to sell a flat, to offer the flat for sale to the lessee.
Article 45 invests a lessee who was not notified of the lessor's intention to sell the flat with a right to apply for a judgment declaring the sale null and void and to purchase the flat under the same conditions.
Article 46 invests a protected lessee with a right to occupy the parts of a flat abandoned by one or more other protected lessees in the same flat, unless the lessor decides to use the abandoned parts of the flat himself.
Article 47 provides that any person who was a tenant before the entry into force of the Leases Act remains a tenant, whoever the lessor or lessee of that flat may be.
Article 48 invests the former holder of a specially protected tenancy on a flat in private ownership with a right to purchase it if the owner of the flat has already purchased some other flat under the Specially Protected Tenancies (Sale to Occupier) Act and if the former holder of a specially protected tenancy does not own some other inhabitable flat or house.


ITEMID: 001-58243
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF AYTEKIN v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
TEXT: 6. The applicant, Mrs Gülten Aytekin, is a Turkish citizen, born in 1969 and currently living in Istanbul. She is the widow of Mr Ali Rıza Aytekin, who she alleges was unlawfully killed by a soldier on 24 April 1993 at a checkpoint outside a gendarmerie headquarters on the road between Diyarbakır and Sason in south-east Turkey. Her deceased husband had been a building contractor and a partner in the Aytekinler Construction and Trading and Industry Company Ltd, which had its office in Diyarbakır. He was 27 years old at the time of his death.
7. The circumstances in which the applicant’s husband was killed on 24 April 1993 are disputed.
8. On 24 April 1993, Ali Rıza Aytekin, his brother, Feyzullah Aytekin (a building contractor), and his cousins, Salih Aytekin and Resul Aytekin (both building workers), were travelling in a private car to check the construction of two bridges in the Sason district of the province of Batman, south-east Turkey. Ali Rıza Aytekin’s company had been awarded a contract by the State authorities for the construction of the bridges. Ali Rıza Aytekin was at the wheel of the car.
9. At about 1.30 p.m. just as the vehicle had passed the Yanıkkaya gendarmerie headquarters near Kozluk, a soldier on duty outside shouted to the vehicle to pull over and stop. Ali Rıza Aytekin, who was driving
relatively slowly due to the presence of speed ramps, pulled over or began to pull over to the right-hand side of the road in response to the soldier’s order.
10. Just as he stopped, the soldier, Private Tuncay Deniz, shot in the direction of the vehicle. The bullet went through the rear window of the vehicle, entered the back of Ali Rıza Aytekin’s head, came out through his forehead and exited the car through the windscreen. Ali Rıza Aytekin was killed instantly.
11. When Feyzullah Aytekin, Salih Aytekin and Resul Aytekin got out of the car, Private Tuncay Deniz raised his rifle as if to fire at them. However, when other soldiers came out of the gendarmerie headquarters and surrounded the car, Private Tuncay Deniz changed his mind and approached the car.
12. All the persons in the car were unarmed and there was nothing in the vehicle except their personal belongings, the tools of their trade, a map and a calculator.
13. Following the conduct of a post-mortem examination of the body and the issuance of a burial certificate Feyzullah Aytekin, Salih Aytekin and Resul Aytekin had to procure a car from local villagers in order to transport the deceased’s body back to Diyarbakır. The applicant was living in Istanbul at the time of her husband’s death.
14. The applicant maintains that the above description of the circumstances surrounding the killing was confirmed by, inter alia, Feyzullah Aytekin, Salih Aytekin and Resul Aytekin in the statements which they each gave to the public prosecutor shortly after the incident (see paragraph 21 below). She also relies on the evidence of Mehmet Bayram and his son Ramazan who were waiting to be picked up by her husband at a café about 50–60 metres down the road from the gendarmerie headquarters and who both gave statements to the Batman Criminal Court (see paragraph 32 below).
15. The Government, in their memorial, rely on the facts as outlined in the judgment of the Batman Criminal Court which convicted Private Tuncay Deniz of manslaughter on 2 October 1997 (see paragraphs 32–35 below).
16. Private Tuncay Deniz, a conscript who was 21 years old at the time, was performing his military service at the Yanıkkaya gendarmerie headquarters in Kozluk in Batman province, south-east Turkey. He was on guard duty on 24 April 1993. Part of his functions was to check passing vehicles.
17. At about 1.30 p.m. a car driven by Ali Rıza Aytekin and containing three passengers approached the checkpoint. Private Tuncay Deniz warned the driver of the car to stop, first by blowing his whistle and then by firing a shot in the air. Despite these warnings and despite the fact that a “Stop – Gendarmerie” warning sign had been placed 65 metres before the checkpoint, the car failed to stop. When it had travelled more than 50 metres past the checkpoint, Private Tuncay Deniz fired a shot towards the car. This shot, fired from behind, caused the driver’s death. The incident was immediately reported to the prosecuting authorities by the commanding officer of Kozluk gendarmerie headquarters.
18. It is not disputed that shortly following the shooting the public prosecutor of Kozluk, Ümit Ceyhan, arrived at the scene with a doctor, Mehmet Kökcü, to conduct a post-mortem examination. The autopsy report confirmed the entry and exit points of the bullet and that the brain of Ali Rıza Aytekin had been shattered by the impact of the bullet. An incident report was prepared, a sketch made of the scene and a burial certificate issued.
19. On 24 April 1993 Major Cengiz Eryılmaz, the Kozluk district commander, took statements from Private Tuncay Deniz as well as from Sergeant Bekir Çakır who was also on duty on that day.
20. The Kozluk public prosecutor, who arrived at the scene shortly after the fatal shooting, immediately commenced an investigation into the incident (file no. 1993/112). At 4.50 p.m. on 24 April 1993 he took written statements from Feyzullah Aytekin, Salih Aytekin and Resul Aytekin.
21. The statements provided by Feyzullah Aytekin, Salih Aytekin and Resul Aytekin reflect the applicant’s account of the incident. When Feyzullah Aytekin was asked by the public prosecutor whether he wished to file a complaint against anyone, he replied that he wished to file a complaint against those who shot his brother.
22. On 26 April 1993 the public prosecutor took statements from Private Tuncay Deniz and Sergeant Bekir Çakır, both of whom had been interviewed by Major Cengiz Eryılmaz on the day of the incident, as well as from Sergeant Murat Hekim who drew up the sketch of the incident. In his statement Private Tuncay Deniz affirmed that it was never his intention to kill the driver, only to stop the car by firing one shot at the tyres. According to Private Tuncay Deniz, the car had been driven towards him at speed forcing him to jump aside. The driver continued beyond the checkpoint failing to heed his warning whistle and shot.
23. On 27 April 1993 the public prosecutor decided that he lacked jurisdiction in the matter and that the case, since it involved a soldier, should be dealt with under the Prosecution Against Public Officials (Official Conduct) Act. The file was subsequently transferred to the Kozluk district governor.
24. On 29 April 1993 the Kozluk district governor referred the file to the Batman Administrative Council which in turn appointed Major Osman Gökçen to investigate the incident. Statements were taken on 11 May 1993 from Private Tuncay Deniz and from Sergeants Bekir Çakır, Murat Hekim and Expert Sergeant Kutlu Alkurt, the latter also having been on duty on the day of the incident. Major Osman Gökçen also had regard to the statements which Feyzullah Aytekin, Salih Aytekin and Resul Aytekin gave to the public prosecutor.
25. Major Osman Gökçen drafted his summary report on 11 May 1993. In his report, he concluded that:
“On 24 April 1993 at 1.30 p.m. when the incident took place, the accused soldier, Tuncay Deniz, was posted at the road checkpoint by his commander. This area has a critical importance in terms of security. The terrorist organisation, PKK, is known to be transferring weapons and other goods along this route. It is also a route for other sorts of smuggling. The soldier on duty saw the car travelling from Batman in the direction of Sason and waved to it to stop. Instead, the car increased its speed, came towards the soldier and passed him. The soldier tried to stop the car by whistling and firing a warning shot. The car failed to stop and as a last resort the soldier fired once at the tyres of the car. Due to reasons beyond the control of Tuncay Deniz and to the fact that the car was moving, the bullet entered through the rear window and caused the death of the driver, Ali Rıza Aytekin.”
26. On receipt of the report, the Kozluk public prosecutor, on 8 June 1993, contacted the military prosecutor in respect of competence to proceed further with the case. In the opinion of the public prosecutor, the investigation should be completed by the military prosecutor in accordance with section 87(4) of Law no. 211 which regulates investigations against members of the armed forces. The military prosecutor in turn sent Private Tuncay Deniz for trial before the Diyarbakır Military Tribunal on a charge of intentional homicide committed in excess of his duties contrary to Article 448 taken together with Article 50 of the Criminal Code.
27. On 6 and 26 May 1993 the applicant gave general powers of attorney to Mr Sedat Aslantaş and Mr Arif Altınkalem, both of the Diyarbakır Bar. On 8 June 1993 Mr Aslantaş wrote to the Kozluk public prosecutor submitting that the applicant’s husband’s death was the result of an act of intentional homicide and that the necessary steps should be taken to prosecute the soldier for murder and the gendarmerie commander for negligence.
28. On 27 September 1993 Private Tuncay Deniz was put on trial before the Seventh Military Tribunal in Diyarbakır, charged with intentional homicide committed in excess of his duties. Statements obtained pursuant to letters rogatory were submitted to the Diyarbakır Military Tribunal by Sergeants Murat Hekim and Bekir Çakır and Expert Sergeant Kutlu Alkurt. Feyzullah Aytekin testified before the Diyarbakır Military Tribunal on 22 March 1994, repeating the version of the incident which he had given to the public prosecutor on the day of the incident (see paragraph 21 above).
29. On 10 May 1994 the tribunal decided that as the crime was not one against another soldier or committed in a military location it had no jurisdiction to hear the case. The tribunal transferred the file accordingly to the Batman Criminal Court so that the case could be tried under Articles 448 and 50 of the Criminal Code.
30. The applicant applied to the tribunal on 10 May 1994 to join the proceedings as a civil party in accordance with the provisions of Article 365 of the Code of Criminal Procedure. She averred that her spouse had been intentionally murdered by Private Tuncay Deniz and for that reason wished to participate in the hearings as an intervening party. On the same date she also requested the tribunal to take statements from Mehmet Bayram and Ramazan Bayram, who had been waiting to be picked up by her deceased husband on the day of the incident (see paragraph 14 above). Since the tribunal had declared the same day that it lacked competence to hear the case against Private Tuncay Deniz it was unable to take a decision on the applicant’s requests. Notwithstanding, it added the applicant’s requests to the file.
31. The case file was transferred to the Batman Criminal Court. In transferring the file, the Diyarbakır Military Tribunal declared:
“After the examination of the files, it is clear that the accused, who was the soldier on duty for road inspection and control at Yanıkkaya gendarmerie headquarters, first warned the private car to stop (licence plate number: 34 Z 9189) then whistled to warn it; immediately after that he fired a warning shot in the air, then fired once again towards the car without aiming at any specific target. The single bullet fired from his rifle hit the civilian, Ali Rıza Aytekin, in the head and caused his death.”
32. When it was seized of the case (file no. 1994/283), the Batman Criminal Court organised on 13 July 1994 the future procedure for dealing with the case and to that end drew up a list of witnesses and documents. The court ordered that the evidence of the witnesses be taken by other domestic courts by letters rogatory and their statements forwarded to it for inclusion in the case file. In accordance with the procedure so fixed, the Batman Criminal Court obtained the statements of a number of witnesses, including Resul Aytekin, Mehmet Bayram and Ramazan Bayram. A statement was also obtained from Private Tuncay Deniz in which he claimed that he was not guilty of the charges against him as well as from Sergeants Murat Hekim and Bekir Çakır and Expert Sergeant Kutlu Alkurt.
33. On 20 September 1994 the court accepted the submissions of the prosecuting counsel that the applicant be acknowledged as an intervening party in the proceedings on account of the possibility that she may have suffered as a result of the offence committed by Private Tuncay Deniz. The court had regard in this respect to the petition which the applicant submitted to the Diyarbakır Military Tribunal on 10 May 1994 (see paragraph 30 above). The court acknowledged at the same time that she would be represented in her capacity of intervening party by the lawyers to whom she had given a power of attorney (see paragraph 27 above). A statement was taken from the applicant by letters rogatory on 20 October 1994 and forwarded to the Batman Criminal Court. In her statement she informed the court that she had learned of the circumstances of her husband’s death from Feyzullah Aytekin and relied on his account of the circumstances in which her husband was killed. She also declared that she filed a complaint against the defendant.
34. On 19 January 1995 the Forensic Department of the Ministry of Justice submitted to the Batman Criminal Court at the latter’s request a ballistics report on the two spent bullets found at the scene of the incident. According to the report, the bullets had been fired from Private Tuncay Deniz’s gun.
35. On 2 October 1997 Private Tuncay Deniz was convicted under Article 452 § 1 of the Criminal Code (see paragraph 51 below) which governs causing death unintentionally, in conjunction with Article 50 thereof (using force in excess of that required by lawful self-defence) and was sentenced to three years and four months’ imprisonment. The court also ordered the defendant to pay the legal fees of the applicant as from the moment she became an intervening party in the proceedings. In its judgment the Batman Criminal Court considered that:
“According to the defendant’s evidence and the preliminary statement of his friend Bekir, who was at the gendarmerie headquarters, the defendant signalled the approaching vehicle to stop; when the vehicle failed to stop he gave a warning with his whistle and fired one round in the air. The vehicle still not having stopped he fired towards it without taking any particular aim when it was 50 metres away. By doing so he caused the death of Ali Rıza Aytekin. According to the passenger witnesses’ account they were not warned to stop in any way. However, if the driver was not warned to stop, it would have been illogical for him to have moved to the right. Under these circumstances the driver was warned one way or another, even after he had passed. Nevertheless witness Feyzullah Aytekin declared in his preliminary statement, and there is no reason for this statement not to be taken seriously, that he heard the sound of a whistle. The witness Ramazan Bayram’s account that the defendant fired from a distance of 10 to 15 metres without seeing anything at all was not confirmed by his father who was sitting in the same location.
The primary issue to be resolved is whether the defendant acted with the intention to kill in this incident...
As it may be concluded from the content of the file, the defendant did not know the victim and the other passengers. The incident sketch in the file indicates that the firing distance was 40–50 metres. In addition to the driver, there were two persons seated in the back and one other passenger in the front. Under these circumstances and at that distance it would not have been possible to identify the driver through the persons sitting in the back seat and take aim. Despite there being nearly twenty bullets in his rifle, the defendant fired one single shot and despite that he still did not know whether this caused death. If his intention was to kill, he could have continued firing. Nevertheless there is no reason to ground a finding of murder. Having considered all these elements it is concluded that the defendant did not act with the intention to kill. Therefore, in due fairness, it is more appropriate to conclude that the intention was a wrongful assault.
Although the defendant was on duty he should have assumed that the individuals in the vehicle did not hear him and he could have fired more than one shot in the air; and having considered the fact that a serious situation such as an escape or apprehending someone in the act was not present and since an assumption must be made that he knew the specification of his weapon, he should have been more careful and should have fired his weapon in a way which would not have harmed the persons in the vehicle. As a result of failing to comply with these considerations he exceeded the limits of his duty. However, the reduction of his sentence based on this factor is to be minimal as a result of the reasons, importance and seriousness of the offence, and the gravity of the harm caused by the offence...”
36. The applicant, through a domestic lawyer, Mr Oktay Bagatır, appealed to the Court of Cassation on 13 October 1997 against the judgment of the Batman Criminal Court on the grounds that the accused should have been convicted of intentional homicide.
37. According to the information provided by the Government at the hearing, the victim’s brother, Mr Feyzullah Aytekin, requested that as one of the intervening parties in the domestic proceedings he be permitted to exercise separately his right to appeal against the judgment. The Court of Cassation acceded to this request on 22 April 1998. Furthermore, the Batman public prosecutor appealed to the Court of Cassation on 14 October 1997 against the judgment of the Batman Criminal Court on the ground that Private Tuncay Deniz should have been convicted of the more serious offence of wilful homicide as defined under Article 448 of the Criminal Code.
38. The appeal is currently pending before the Court of Cassation.
39. Although the Government submitted to the Commission on 14 October 1996 details of the investigation into the death of the applicant’s husband as well as of the trial of the accused soldier before the Diyarbakır Military Tribunal and the state of the proceedings against him before the Batman Criminal Court, the Commission did not in fact have the benefit of the full file when assessing the evidence surrounding the killing since the Government’s submissions had been misplaced as a result of a clerical error.
40. As a consequence of this error, the Commission based its assessment of the case on the following official documents only: the incident report prepared by Major Cengiz Eryılmaz; the sketch map of the incident drawn by hand by Sergeant Murat Hekim; the post-mortem and autopsy report prepared by the medical examiner; statements taken by Major Cengiz Eryılmaz on 24 April 1993 from Private Tuncay Deniz and Sergeant Bekir Çakır; statements taken by Major Osman Gökçen on 11 May 1993 from Private Tuncay Deniz, Sergeant Bekir Çakır, Expert Sergeant Kutlu Alkurt and Sergeant Murat Hekim (see paragraphs 18, 19 and 24 above).
The Commission also had regard to the following: four statements of Feyzullah Aytekin, two of which had been taken by the Diyarbakır Human Rights Association; a statement of the applicant taken by the Diyarbakır Human Rights Association on 30 April 1993; an expert statement dated 7 February 1995 of Dr Christopher Milroy, a consultant pathologist for the British Home Office.
41. The Commission accepted firstly that there were speed ramps in place outside the gendarmerie headquarters which would have made it difficult and unlikely that the applicant’s husband could have driven the car at speed through the checkpoint.
42. Secondly, no explanation was offered as to why the deceased would have driven recklessly through the checkpoint causing the soldier to jump to safety. For these reasons, the Commission found the soldier’s account of being at risk to be unconvincing.
43. Thirdly, while the Commission was unable to determine on the evidence whether the car was stationary or was still moving when the gendarme opened fire, it found it established that Private Tuncay Deniz signalled the car to stop. However, in its view there was insufficient material to conclude that he had fired a warning shot in the air as alleged since no ballistics report had been submitted.
44. Fourthly, the Commission considered that there must be a very strong inference either that Private Tuncay Deniz aimed into the back of the car at the driver or fired so quickly as to render his aim inaccurate.
45. In view of the above findings the Commission concluded that the car driven by the applicant’s husband was driven slowly up to and through the checkpoint, that the soldier signalled it to stop and that very shortly afterwards he opened fire intending to stop the car, either aiming at the driver or failing to take proper aim.
46. In the absence of detailed submissions on domestic law and practice, the Court, like the Commission, has had regard to the relevant provisions and submissions made in the context of previous cases involving the respondent Government and the applicant’s representatives.
47. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
48. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the authorities, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the authorities may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
49. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the state of emergency, which provides:
“... actions for compensation in relation to the exercise of powers conferred by this Law are to be brought against the authorities before the administrative courts.”
50. The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), inadvertent and negligent homicide (Article 455), intentional homicide (Article 448) and murder (Article 450). Articles 49 and 50 of the Criminal Code address the commission of offences carried out inter alia in excess of a duty.
51. According to Article 448 any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine.
52. According to Article 49 of the Code, a person shall not be punished for committing an act which was carried out in pursuance of a law or on the orders of a competent authority or where the person was obliged to commit the act in immediate necessity to repel an unjustified assault against his own or another’s person or chastity or in order to save his life or the life of another from an immediate and grave personal danger for which he was not responsible and the commission of the act was the only way in which the danger could be avoided. Article 50 qualifies the provisions of Article 49 in stipulating that where the person in committing the act exceeds the limits of a duty prescribed by law or by the competent authority or exceeds the exigencies of the situation, that person shall be sentenced to a minimum term of imprisonment of eight years if the punishment in respect of the act is the death penalty, and to a minimum term of imprisonment of between six and fifteen years if the punishment in respect of the act is life imprisonment.
53. Pursuant to section 23(1) of Law no. 2935 on the state of emergency, when a state of emergency has been proclaimed the security forces, special forces on duty and members of the armed forces when carrying out their duties are empowered to use their weapons in situations where recourse to them is considered justified under law. According to section 23(2), when a state of emergency has been declared under section 3(b) of the Law, members of the security forces when on duty may without hesitation open fire directly on a person who fails to heed their orders to surrender, returns fire or when they are obliged to act in self-defence.
54. For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165).
55. If the suspected authors of the impugned acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected person’s hierarchical superior (sections 93 and 95 of Law no. 353 on the constitution and the procedure of military courts).
56. If the alleged author of a crime is a State official or civil servant, which includes members of the security forces, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly) which carry out a preliminary investigation (Article 4 § 1 of Decree no. 285). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
57. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Turkish Civil Code, an injured person may file a complaint for compensation against an alleged perpetrator who has caused him or her damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages may be awarded under Article 47.
58. Proceedings against the authorities may be brought before the administrative courts, whose procedure is written. A plaintiff has one year in which to lodge a complaint against the authorities in respect of an impugned act and thereafter 120 days in which to bring the complaint before the administrative courts.
59. The Criminal Code also makes provision to allow a person to constitute himself or herself a civil party in respect of pecuniary loss resulting from the commission of an offence. According to Article 365 of the Code of Criminal Procedure, any person injured by a crime may, at any time during an investigation, by means of a complaint declare himself or herself a civil party and request compensation for damage which is the direct result of the accused’s criminal act. This remedy is only available to direct victims and cannot be exercised on behalf of a deceased victim. The remedy is not applicable if the accused is acquitted of the offence. The acquisition of civil party status is dependent on the fact that that party has not sought compensation from the civil courts in respect of the damage resulting from the offence.
60. The applicant points to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme.
61. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.
62. Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law no. 2935 on the state of emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.
63. Extensive powers have been granted to the regional governor of the state of emergency by such decrees, especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.
64. Decree no. 285 modifies the application of Law no. 3713 of 1981 on the prevention of terrorism in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils.


ITEMID: 001-73113
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KUKOVIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Hedigan
TEXT: 5. The applicant was born in 1935 and lives in Grobelno.
6. On 20 April 1998 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZM.
7. On 20 November 1998 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,007,020 Slovenian tolars (approximately 8,400 euros) for the injuries sustained.
Between 13 April 1999 and 22 May 2002 the applicant lodged five preliminary written submissions and/or adduced evidence.
Between 22 June 1999 and 3 October 2001 he made five requests that a date be set for a hearing.
Of the three hearings held between 13 December 2001 and 28 May 2002, none was adjourned at the request of the applicant.
During the proceedings, the court appointed a medical expert.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant 28 August 2002
8. On 5 September 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 2 April 2003 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 18 April 2003.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5852
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: HARRISON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Jean Harrison, is a United Kingdom national, born in 1946 and living in Christchurch. She is represented before the Court by Mr M. Murdoch, a lawyer practising in Birmingham. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a Romany traveller or gypsy. In 1985 she purchased her plot of land at 22E Dudmoor Farm Road, Christchurch, County Dorset and since then she has lived in a caravan or caravans on the plot with her aged mother and the applicant's three grandchildren who attend local schools. The applicant's mother suffers from poor health and requires constant attention. She has lived in caravans all her life. The applicant at the time of introducing the applicant had employment in a local supermarket, but herself also has difficulty reading and writing. A number of other gypsy families lived in caravans in adjacent sites. The Dudmoor Valley had been used by gypsies for at least 40 years and the group resident there were known as the “Dudmoor gypsies”.
The applicant's request to Christchurch Borough Council (the “Council”) for planning permission to station her caravans on her land was refused sometime in 1986. The reasons given for the refusal were:
1. that the site fell within an area designated as Green Belt and was therefore contrary to the South East Dorset Structure Plan;
2. that a residential caravan as proposed was considered to be visually damaging to the landscape and was therefore contrary to the South East Dorset Structure Plan;
3. that the proposed development would be contrary to the provisions of the Country Conservation Policy as adopted by the Local Planning Authority for this area, and
4. that, whilst the foul water drainage arrangements were considered to be adequate for the proposed development, the Authority was concerned about the proliferation of such facilities in the immediately surrounding area which might ultimately cause environmental problems and necessitate a marine drainage scheme.
An enforcement notice was issued on 29 October 1986 concluding that there had been a breach of planning control due to a material change of use of land from uncultivated and uninhabited land to use for stationing a caravan for the purposes of human habitation. The notice required that the land be reverted to former use as uncultivated and uninhabited land by removing the caravan from the land within a period of six months.
An appeal was made to the Secretary of State for the Environment against the refusal of planning permission (under section 36 of the Town and Country Planning Act 1971 as amended by the Local Government and Planning (Amendment) Act 1981) and the enforcement notice (under s. 88(2)(a) and (h) of the Town and Country Planning Act 1971 as amended). An Inspector was appointed and he held a local public inquiry into the appeals on 5 and 6 February 1987. Having visited the site and having heard submissions for the applicant, the Council and third parties, the Inspector concluded that there was a “small but identifiable need for accommodation in the area”. However in respect to the impact of the unauthorised development, the Inspector stated:
“The buildings, caravans and rectangular shaped plots are out of keeping with the area and considerably detract from its rural character and appearance ... [T]hey have, in my opinion, a suburban appearance, quite alien in this setting, that unacceptably harms the visual quality of the area and serves to undermine the aims and application of the prevailing restrictive policies.”
Placing considerable weight on the serious harm that the sites caused to the area and the strong policy and amenity objections to the site, the Inspector concluded that on balance the use of the sites should not continue. Recognising that the applicant had local links of some longstanding to the extent that she was considered to be “resident in the area”, the Inspector concluded that the question of proliferation and precedent were of particular importance given that, if the present appeal were allowed, future requests would be difficult to refuse. As a result, the Inspector found that the appeal should be dismissed and, recommending that the enforcement notice should be upheld, he proposed extending the period for compliance to 12 months.
The Secretary of State accepted the Inspector's recommendations on 30 June 1987 and his conclusion that the appearance of the appeal sites was “out of character with the generally rural nature of the area”. He acknowledged that there was a need to provide accommodation for travelling families in Dorset, but considered that in this case the objections put forward against the proposal outweighed that need. Furthermore, the Secretary of State reiterated the conclusions of the Inspector in relation to the proposal to develop the area for leisure activities, in particular that although this development would substantially alter the area, he did not believe that the proposal would be incompatible with the status of the area as Green Belt, nor would it erode its visual qualities or conflict with its amenity value. The Secretary of State also agreed with the extension of the period for compliance on the grounds that the applicant had nowhere else to go.
An offer of sites at Mannings Heath was made to the applicant and other gypsies in or about 1991-1992. It was considered by them to be unacceptable. While the applicant's husband moved to the site after separating from her, she did not believe that he stayed more than a few weeks. Her son took his wife and family to Mannings Heath after she had been scared by council officials but had only stayed there a few weeks.
In 1994, complaints were made by the applicant and her neighbours to the Local Authority Ombudsman alleging that the County Council had not fulfilled its statutory obligations to them and that it had not dealt properly with their proposals for resolving the situation.
By letter dated May 1994, the Ombudsman noted that the County Council had been attempting to find alternative sites for the complainants for some four years and had offered a number of solutions which the complainants had refused. She concluded:
“Having considered the evidence, I am not persuaded that the County Council have failed in their statutory duty to provide adequate accommodation for [the complainants]. I am more inclined to commend the Council for the considerable efforts that they made to try and ensure that [the complainants] were able to remain in Christchurch. ...The offers of accommodation which the Council made... appear to me to be reasonable and consistent with their statutory obligations.”
Proceedings were instituted in the Bournemouth County Court by the Council in April 1995 and they resulted in an injunction being made on 9 October 1995 that the applicant remove her caravan from her land by 9 April 1996. The applicant sought to vary this order by extending the time for compliance pending the decision by the European Court of Human Rights in Buckley v United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1271). This application was opposed by the Council and the Bournemouth County Court dismissed the application on 26 March 1996 on the ground that the injunction was a final order under the Town and County Planning Act 1971 and the judge had no power to alter it.
Subsequent appeal to the High Court was available, but the applicant declined to appeal on the advice that such an appeal was bound to fail. In mid-1996, the Council made an application to commit the applicant for contempt of court. On 22 January 1997, the County Court dismissed the order for committal against the applicant and ordered costs in her favour. By letter dated 3 February 1997, the applicant's solicitor informed the European Commission of Human Rights that the application for committal failed on a technicality, namely, that the local authority had failed to ensure that the documentation was adequately and properly served on the applicant.
The Council recommenced proceedings in the County Court. An order was made by consent under which the applicant was given six months to vacate the land. The County Council had given notice that they were prepared to re-open a former gypsy site for the applicant and others. The six month period in the order was renewable until the site opened.
In February 1998, the site at Mannings Heath was inspected by the applicant and others with representatives of the County Council and District Council. The applicant stated that the warden's office had been destroyed by vandalism and fire; no site warden had been appointed; the site itself was in very poor condition and, when transient gypsy families left, reoccupation of their vacated sites was not being permitted. She alleged that there was a general consensus that she and the other gypsies could not be reasonably expected to move from a rural location to a site which was the equivalent of an inner city sink estate.
The applicant's further application for planning permission, along with other Dudmoor gypsies who occupied adjacent sites, concerning altogether 7 residential caravans, 5 touring caravans and associated structures, was refused by the Council during 1997.
A public local inquiry concerning their appeals was held before an Inspector on 25 and 26 November 1997.
In his report dated 23 November 1998, the Inspector stated:
“7.3 It is a matter of agreement that the appeal site and the surrounding area is within the Green Belt and the proposal is contrary to Green Belt policies of the statutory and emerging Developments Plans for the area.
7.4 The area is remote, being accessed over a long partly unmade country lane, but there are views over it from the adjacent St Catherine's Hill which is a popular recreation area. Despite a scatter of buildings the area retains a predominantly rural appearance.
7.5 In my view the cluster of mobile homes the subject of this appeal form an obtrusive feature, harmful to the predominantly rural character and appearance of the area particularly when viewed from St Catherine's Hill and from Dudmoor Farm Road. Despite the long history of the plots, screening has not been effective and in my view the mobile homes are not acceptable in terms of gypsy sites or affordable housing.
7.6. Two earlier appeals in 1987 and 1992 were dismissed and efforts to relocate the appellants and others have been going on since at least the late 1980s. A number of other gypsies have been relocated.
7.7 Despite the appellants' protestations that the alternative sites offered were either unsuitable or unavailable, it seems to me that the evidence of the considerable efforts made to relocate them is much stronger. This was recognised by the Local Authority Ombudsman in 1994 and I find no reason to disagree with his findings.
7.8 The resident gypsies are acknowledged to be hard working families and there is no animosity towards them from local people. However there have been problems arising from the use of the plots as transit sites.
7.9 I am mindful of the disturbance and stress likely to be caused to the appellants and their relatives, particularly the very old, the frail and the young. However, in all the circumstances of this case I conclude that this is not sufficient to justify setting aside the Green Belt and country protection policies ... or outweigh the harm the presence of the mobile homes do to the predominantly rural character and appearance of this area...”
In his letter of 25 February 1999, the Secretary of State for the Environment accepted the Inspector's recommendation to refuse the appeals. He considered that considerable efforts had been made to find alternatives for the applicant, including reasonable offers of accommodation at Mannings Heath which were not taken up. He noted that the applicant had stated that she would move to the Mannington Park site (temporarily closed) if that was reopened under suitable conditions and in a suitable state of repair.
Offers of sites at Thornicombe and Coldharbour were made to the applicant. She refused them as inappropriate and unacceptable, as they were outside the Christchurch area with which she had long associations and where she had employment and her children had schools. There was no direct public transport and she could not drive.
The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).
The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
Again there is a further right of appeal on a point of law to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995).
“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. ...
1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.
1.5. There are five purposes in Green Belts:
– to check the unrestricted sprawl of large built-up areas;
– to prevent neighbouring towns from merging into one another;
– to assist in safeguarding the countryside from encroachment;
– to preserve the setting and special character of historic towns; and
– to assist in urban regeneration by encouraging the recycling of derelict and other urban land. ...
2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. ...
3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. ...
3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”