ITEMID: 001-90700
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GÜVEÇ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born on 30 April 1980 and lives in Belgium.
6. On 29 September 1995 a certain Mr Özcan Atik was arrested on suspicion of membership of the PKK. The following day the applicant was arrested in Istanbul upon information allegedly given to the police by Mr Atik. According to that information, the applicant was a member of the PKK. Following his arrest the applicant was placed in police custody.
7. The applicant was questioned by police officers on 5 October 1995. In a written statement prepared by the police and signed by him, the applicant was quoted as having stated that he was a member of the PKK and that he had had a number of meetings with several of its members, including Özcan Atik. One day Özcan Atik had told the applicant that he had asked a certain Menderes Koçak to provide financial assistance to the PKK but that Mr Koçak had refused. Özcan Atik had then asked the applicant to help him set fire to a vehicle owned by Mr Koçak. This they had done one evening with the help of two other persons. The applicant also added that had he not been arrested, he would have taken part in further activities on behalf of the PKK.
8. On 7 October 1995 Mr Koçak identified Mr Atik and another person as the persons who had asked him to give money to the PKK. He did not know whether it had been the same two persons who had subsequently set fire to his vehicle and shop.
9. On 9 October 1995 police officers took the applicant and three other persons, including Mr Atik, to the street where Mr Koçak’s vehicle had been set on fire.
10. On 12 October 1995 the applicant and 21 other persons who had been arrested as part of the same police operation were taken to the Istanbul branch of the Forensic Medicine Institute, where they were examined by a doctor. According to the medical report drawn up the same day, the applicant’s body did not bear any signs of ill-treatment.
11. The same day the applicant was taken to the Istanbul State Security Court, where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him. In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the PKK. He had set fire to the vehicle together with three other persons. In the statement drawn up by the judge, however, the applicant was quoted as having stated that he had set fire to the vehicle on his own.
12. When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer.
13. On 27 November 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and fifteen other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. According to Article 125 of the Criminal Code in force at the time, the punishment stipulated for this offence was the death penalty (see Relevant Domestic Law and Practice below).
14. A preparatory hearing was held on 18 December 1995 by the Istanbul State Security Court (hereinafter “the trial court”). One of the three judges on the bench was an army officer.
15. At the first hearing, held on 27 February 1996, the applicant was present but not represented by a lawyer.
16. During the second hearing, held on 1 March 1996, the applicant was still not represented by a lawyer but was questioned by the trial court. The applicant told the trial court that his childhood friend Özcan Atik had told him one day that he had been selling newspapers and that one of his customers had refused to pay. Mr Atik had then suggested “teaching that customer a lesson”. One night the applicant and Mr Atik had arrived outside a big building. Mr Atik had poured some petrol on the street outside the building from a jerry can and set fire to it. The applicant himself had not set fire to any vehicle and he did not know Menderes Koçak.
17. The applicant also told the trial court that, while detained in police custody, he had been given electric shocks, sprayed with pressurised water and beaten with a truncheon; the soles of his feet had also been beaten. He had then signed the statements implicating him in the offences with which he was subsequently charged. As regards the statements taken from him by the prosecutor and the judge on 12 October 1995, the applicant stated that the prosecutor and the judge had only asked him his date of birth; he had not made any statements before them. The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle (see paragraph 9 above). The applicant’s request for release was rejected by the trial court the same day.
18. During the third hearing held on 18 April 1996, a lawyer representing some of the applicant’s co-accused informed the trial court that she would also be representing the applicant. During the same hearing Menderes Koçak also gave evidence as a witness and stated that Özcan Atik had never asked him to give money to the PKK. A vehicle owned by him had been set on fire but he did not think Özcan Atik had done it.
19. The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family.
20. The applicant did not attend four of the subsequent six hearings held at two-monthly intervals. Requests for his release made by his lawyer were all rejected by the trial court. The lawyer argued that there was no evidence against the applicant other than that obtained under ill-treatment.
21. In the course of the 10th hearing, which was held on 29 May 1997 in the applicant’s absence but with the attendance of his lawyer, the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property, and not for the offence with which he was charged in the indictment (see paragraph 13 above). The trial court rejected the request for the applicant’s release.
22. The applicant’s lawyer did not attend the 11th hearing held on 17 July 1997. During the 12th hearing, on 26 August 1997, the lawyer argued that, on account of the testimony given to the trial court by Mr Koçak on 18 April 1996 (see paragraph 18 above), there was no evidence showing that the applicant had committed the offences with which he was charged.
23. The lawyer did not attend the 13th hearing, held on 2 October 1997, because she had other business before a Labour Court. The applicant made his own defence submissions and repeated his allegations of ill-treatment in police custody. He also asked to be released. This request was rejected by the trial court.
24. On 17 October 1997 the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle, and sentenced him to nine years, eight months and ten days’ imprisonment. The trial court considered that the statements given by the applicant in police custody and the statements given by his co-accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle.
25. The applicant appealed. On 12 March 1998 the Court of Cassation quashed the applicant’s conviction. The case was remitted to the trial court for a retrial.
26. On 11 September 1998 the trial court held a preparatory hearing in the retrial. One of the three judges on the bench was a military officer.
27. Eight hearings were held between 27 October 1998 and 30 December 1999. The applicant’s lawyer attended only one of these hearings, that on 18 March 1999, whereas the applicant attended two hearings. During the 5th hearing, held on 15 July 1999, the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime (cf. Öcalan v. Turkey [GC], no. 46221/99, §§ 2-54, ECHR 2005IV).
28. On 18 November 1999 a police chief informed the trial court that, contrary to the allegations, no vehicle belonging to Menderes Koçak had been set on fire.
29. A 9th hearing was held on 21 March 2000. The applicant was present but his lawyer was not. During the hearing Menderes Koçak gave evidence before the trial court and stated that his vehicle had not been burned. No one had asked him to give money to the PKK. When asked by the trial court to explain the inconsistencies between the statement he had made to the police on 7 October 1995 (see paragraph 8 above) and his testimony, Mr Koçak stated that he had not told any such things to the police; he had had to sign whatever was written in the statement drafted by the police officers.
30. During the same hearing the applicant reiterated that he did not know Mr Koçak and had not set fire to any vehicle. He pointed out that he had been arrested at the age of 15 with no evidence against him, and asked to be released. This request was rejected by the trial court.
31. The applicant but not his lawyer attended the 10th hearing, held on 23 May 2000.
32. In the course of the 11th hearing, held on 25 July 2000 in the absence of the applicant’s lawyer, the trial court was presented with a letter drafted by the applicant’s cell-mates. The letter states that “[the applicant] has serious psychiatric problems. His treatment is being overseen by a psychiatric hospital in Istanbul. He is unable to live without the assistance of others and his health is deteriorating. As such, he is unable to attend the hearings and he refused to attend today’s hearing. We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings”.
33. According to a medical report prepared by the prison doctor on 24 July 2000 which was appended to the cell-mates’ letter, the applicant had been taken to a psychiatric hospital on 2 June 2000 and returned to the prison on 11 July 2000.
34. The applicant’s mother also attended this hearing and informed the trial court of the applicant’s serious psychiatric problems. She asked for the applicant to be released from the prison. During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson (Article 516 § 7 of the Criminal Code) but to convict him of the offence of membership of an illegal organisation (Article 168 of the Criminal Code).
35. Nevertheless, the trial court ordered the applicant’s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity (doli capax) at the time of the alleged commission of the offence.
36. On 7 August 2000 the prison doctor reported on the problems which the applicant had been suffering in prison. According to this report, the applicant had attempted suicide in June 1999 by taking an overdose. In August 1999 he had set himself on fire and suffered extensive and serious burns. He had spent three months in hospital where he was treated for his injuries. During that time in hospital he had also received medication for depression. Following his return to the prison his treatment for the burns had continued for five months. His body still bore burn marks.
37. On 2 June 2000 the applicant’s psychological health had deteriorated and he was taken to hospital, where he stayed for a month and a half. His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone.
38. The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant’s treatment. The applicant needed to spend a considerable time in a specialised hospital.
39. During the 12th hearing, held on 10 October 2000, Ms Mükrime Avcı, one of the applicant’s legal representatives named above (see paragraph 2), submitted a power of attorney to the trial court and informed that court that she was taking over the applicant’s representation. Ms Avcı argued in her written observations submitted to the trial court the same day that the applicant had only been 15 years old at the time of his arrest. Turkey was a Party to the United Nations Convention on the Rights of the Child. Article 40 § 3 of that Convention recommended that the States Parties establish procedures and institutions specifically for children charged with criminal offences. Indeed, juvenile courts existed in Turkey. However, the applicant had been charged with an offence falling within the jurisdiction of State Security Courts and, as such, the domestic law prevented him from being tried by a juvenile court. Had the applicant been tried before a juvenile court, he would not have been kept in police custody for 12 days, a lawyer would have been appointed to represent him and his case would have been concluded within a short time.
40. The lawyer added that the ill-treatment to which the applicant had been subjected in police custody, coupled with his long detention in prison, had been too much to bear for a child of his age. He had attempted to take his own life on two occasions. He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings. The lawyer asked for the applicant to be released so that he could receive medical treatment.
41. The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of 25 July 2000 (see paragraph 35 above). The same day the trial court ordered the applicant’s release from prison on bail.
42. The applicant attended the 14th hearing, held on 13 March 2001 and informed the trial court that, although he had gone to the hospital for a medical examination, the hospital authorities had refused to examine him as he had no official letter of referral. The trial court issued a new order of referral.
43. The applicant was examined at a psychiatric hospital on 25 April 2001. According to the report pertaining to that examination, other than the two instances referred to above (see paragraph 36), the applicant had made another attempt to kill himself, by slashing his wrists, in September 1998. The extensive burn marks on his arms and body were still visible. His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there. Between 2 June 2000 and 11 July 2000 he had been treated in hospital for “major depression”. His psychological problems were now in remission. It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility.
44. In its 16th hearing, held on 22 May 2001, the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to eight years and four months’ imprisonment. The trial court stated that the statements made by the applicant in police custody, and then before the prosecutor and the judge at the end of his police custody, had been decisive in reaching the conclusion that he was a member of the illegal organisation. In those statements the applicant had described the “various activities” in which he had been involved. The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets.
45. The applicant appealed. On 13 March 2002 the prosecutor at the Court of Cassation submitted his written observations to that court and asked for the applicant’s conviction to be upheld. These observations were not communicated to the applicant or to his lawyer.
46. In her detailed appeal submissions the applicant’s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle. As established by the trial court, however, no such incident had occurred and the owner of the vehicle had made no such complaint. There was no place in the Turkish legal system for abstract concepts such as “various activities” (see paragraph 44 above). For any activity to be relied on in evidence, it should have been set out clearly and supported with adequate evidence. Furthermore, the trial court’s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation’s leaflets. The lawyer also reiterated her arguments concerning the applicant’s age and her references to the United Nations Convention on the Rights of the Child (see paragraph 39 above).
47. On 20 May 2002 the Court of Cassation upheld the applicant’s conviction.
48. According to the information provided to the Court by the applicant’s lawyer, in 2002 the applicant left Turkey for Belgium, where he was subsequently granted refugee status.
49. Article 125 of the Criminal Code as it stood at the material time provided that:
“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”
“Any person who, with the intention of committing the offences defined in sections 125, 131, 146, 147, 149 or 156, forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.
The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”
51. Article 516 of the Criminal Code provided:
“Any person who destroys, demolishes, spoils or damages property owned by another person shall, upon the complaint of the aggrieved person, be sentenced to not less than one and not more than three years’ imprisonment...”
According to paragraph 7 of this Article, if the offence in question was carried out using inflammable or explosive material and if the property in question was a motor vehicle, the sentence to be imposed varied between three and seven years.
52. At the material time Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the State Security Courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days.
53. Article 138 of the Code of Criminal Procedure as it stood at the material time stipulated that, from the time of their arrest, persons under the age of 18 should be given the assistance of an officially assigned legal representative without having to ask for it. According to Article 31 of the above-mentioned Law no. 3842, however, Article 138 was not applicable to persons accused of offences within the jurisdiction of the State Security Courts.
54. According to Article 6 § 1 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law No. 2253 of 21 November 1979; repealed and replaced by Law No. 5395 of 15 July 2005 on the Protection of the Child), only juvenile courts had the power to try persons under the age of 15. According to the last paragraph of that Article, however, even children under the age of 15 charged with offences falling within the jurisdiction of State Security Courts were to be tried before those courts rather than before juvenile courts.
55. Article 37 of Law No. 2253 also stipulated that minors could only be detained on remand in prisons specially designed for them. In places where no such prisons existed, minors were to be kept in a part of a normal prison separate from where adults were detained. For the purposes of this Law the term “minor” means persons who were under 15 years of age at the time when the offence was committed.
56. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (dated 5 July 1967) stipulated that detainees under the age of 18 were to be kept separately from other detainees. Under Article 106 of the same Regulations, detainees had the possibility to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”.
57. Pursuant to the Law on the Protection of the Child, which on 15 July 2005 replaced the above-mentioned Law on the Establishment, Duties and Procedures of Juvenile Courts, persons under the age of 18 can only be tried before juvenile courts. However, if the prosecuting authorities allege that the offence with which the juvenile is charged was committed jointly with adults, the juvenile may be tried before the ordinary criminal courts together with those adults.
58. The United Nations Convention on the Rights of the Child 1989 (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.
Article 1 of the UN Convention states:
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”
Article 3(i) states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 37(a) and (b) provides:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
Article 40 provides as relevant:
“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society.
2. To this end ... the States Parties shall, in particular, ensure that:
...
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
...
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
...
(vii.) To have his or her privacy fully respected at all stages of the proceedings.
...”
59. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows:
“65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period.
66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”
60. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, insofar as relevant, reads as follows:
“Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ...
7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...”
61. Article 17 of the European Social Charter 1961 regulates the right of mothers and children to social and economic protection. In that context, the European Committee of Social Rights noted in its Conclusions XVII-2 (2005, Turkey) that the length of pre-trial detention of young offenders was long and the conditions of imprisonment poor.
62. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons” (CPT/Inf(99) 2 EN, publication date: 23 February 1999).
63. In its report prepared in respect of its visits conducted in Turkey between 16 and 29 March 2004 (CPT/Inf (2005) 18), the CPT stated the following:
“[i]n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (“the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities”) have apparently had little practical impact.”
64. According to UNICEF, the juvenile justice system is still in its infancy in Turkey in 2008. Judges were learning about child-sensitive detention centres, alternative dispute resolution and due process for children in conflict with the law.
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-114665
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GHIURĂU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1963 and lives in Oradea.
7. According to the applicant, at about 4 p.m. on 27 November 2006, police officers belonging to the special intervention forces of Bihor Police Inspectorate took the applicant into custody in order to transport him from his home in Borş to Cluj, about 200 km away. They had not presented any warrant or other legal document justifying his arrest, nor informed him of the reason for his arrest or where they intended to transport him.
8. The applicant contended that while in custody he had been beaten by police officers so severely that he had lost consciousness. As a result, he needed urgent medical assistance and was admitted to the emergency ward of Huedin Hospital. While he was on a drip at the hospital, he was hit again and handcuffed by police officers. This occurred in the presence of his lawyer.
9. The Cluj Police immediately transferred him from Huedin Hospital to the emergency ward of Cluj Hospital, where he remained for about three hours from 9.15 p.m. until midnight.
10. At about 0.45 a.m., although unable to speak because he had been given sedatives in hospital, he was transported from the hospital directly to the Cluj Police Headquarters in order to be interviewed. There, he was informed for the first time of the reason for his arrest, namely that he was suspected of making repeated phone calls threatening to kill someone. He was interviewed until 1.52 a.m.
11. A preliminary criminal investigation was initiated in connection with allegations that the applicant had made threatening telephone calls against a resident of Cluj-Napoca. On 27 November 2006, the prosecutor attached to the Cluj-Napoca District Court therefore issued an order for the applicant to be brought before him for questioning.
12. At 4 p.m. on the same day, having been informed by police officers about the order, the applicant agreed to accompany the police officers to the Prosecutor’s Office in Cluj. On their way to Cluj, near Huedin, the applicant informed them that he was feeling sick and became physically agitated, presenting the symptoms of an epileptic seizure.
13. The police officers took the applicant to the nearest hospital in Huedin, where he was examined and received immediate medical treatment. While in the consulting room, the applicant had a panic attack and started hitting his legs and hands against the bed. Two police officers had to intervene and immobilise the applicant’s hands so that he could be disconnected from the medical devices.
14. The applicant was transported in an ambulance from Huedin Hospital to the emergency ward of Cluj-Napoca Hospital for further medical examinations, which took place from 9 p.m. until midnight. The diagnosis was abdominal trauma and abrasions.
15. As no traumatic injuries or clinical indications requiring an immediate operation were diagnosed, the applicant was discharged from the hospital and presented himself at the police station for questioning.
16. After questioning, the applicant gave a written statement, which according to the prosecutor was barely legible. He was assisted by his lawyer during the questioning.
17. On 28 November 2006 the Bihor Forensic Institute examined the applicant and issued a report that stated that his injuries could have been caused the previous day by being hit with a hard object. It noted the existence of bruising and abrasions on the upper abdomen and on both hips, and estimated that the applicant would need four to five days to recover.
18. A medical certificate issued by Cluj-Napoca Hospital on 19 December 2006 showed that the applicant had been hospitalised on 27 November 2006 for about three hours. The certificate stated that the applicant had been diagnosed with a minor cranial trauma, abdominal trauma and abrasions, and concluded with the expression “Affirmative assault” (“Afirmativ agresiune”).
19. The applicant contended that although on 29 November 2006 he had submitted a request with the Bihor Police Inspectorate to be provided with a copy of the order to which the police officers had referred in order to justify the deprivation of his liberty, he had not received a copy.
20. On 22 June 2009 the Prosecutor’s Office attached to Cluj County Court decided to discontinue the criminal proceedings against the applicant for making threatening phone calls on the grounds that his guilt could not be proved.
21. On 7 December 2006 the applicant lodged a criminal complaint against ten police officers alleging unlawful arrest, abuse of authority, abuse of the officers’ powers of investigation and deprivation of liberty.
22. On 4 January 2007 the applicant’s lawyer, B.V., made a written statement concerning the events that had occurred on 27 November 2006. She submitted that the manager of the applicant’s company had called her at about 4 p.m. informing her that two police patrols had taken the applicant into custody. She had called the applicant, who had confirmed that he was in police custody. She also submitted that she could hear police officers insulting and hitting the applicant. As she had understood from their phone conversation that the applicant did not feel well, she had decided to accompany him. She had called the ambulance service and discovered that the applicant had been taken to the Huedin Hospital emergency ward. When she found him there, he had been connected to medical devices but supervised by three police officers from the Cluj Police Department. She alleged that she had seen the police officers punch the applicant because he refused to remain in bed. She had accompanied the applicant to ClujNapoca Hospital and then to the police headquarters, assisting him during questioning.
23. On 12 March 2007 the applicant’s criminal complaint was registered with the Prosecutor’s Office attached to the Cluj Court of Appeal.
24. On 6 February 2008 four of the police officers against whom the applicant had lodged a criminal complaint were heard by the prosecutor. Their written statements were all identical.
25. On 12 February 2008 the Prosecutor’s Office attached to the Cluj Court of Appeal decided not to prosecute on the grounds of lack of evidence that the offences in question had been committed. The decision stated that criminal proceedings had been initiated against the applicant on 27 November 2006. His deprivation of liberty had been justified by the necessity to interview him immediately, even before summoning him on the basis of an order to appear before the investigating body (mandat de aducere) issued by a prosecutor. The decision further stated that the applicant had agreed to accompany the police officers and that, in any event, the applicant’s allegation that he had not been given a copy of the warrant could not lead to the conclusion that the police officers had abused their position, as his legal interests had not been infringed. In addition, the prosecutor held that the applicant had been provided with the order on the way from Huedin Hospital to Cluj-Napoca Hospital. In respect of the applicant’s allegation that he was subjected to physical violence by the police officers, he concluded that the injuries noted by the forensic doctor had been self-inflicted. The police officers had accompanied him to Huedin Hospital because he had mentioned that he did not feel well. While he was being examined by a doctor, he had had a panic attack and had started to hit the hospital’s bed with his body, hands and feet. The police officers’ intervention had therefore been necessary; they had immobilised him in order to disconnect him from the various medical devices.
26. On 1 August 2008 the head of the Prosecutor’s Office dismissed the applicant’s appeal against the aforesaid decision on the grounds that it had been lodged outside the time-limit set by the law. He stated, inter alia, that the order to appear before the investigating body had been issued because the applicant, although legally summoned, had refused to go to the police station to be interviewed. He added that the decision of 12 February 2008 had been communicated to the applicant on 14 February 2008 by registered letter and kept at the local post office until 26 February 2008. As the applicant had not collected the letter, it had been returned to the sender.
27. On 23 September 2008 the applicant appealed to the Cluj Court of Appeal against the prosecutor’s decisions.
28. On 15 January 2009 the Cluj Court of Appeal dismissed the appeal on the grounds that it had been lodged outside the time-limit. It stated that the decision of 1 August 2008 had been communicated to the applicant by registered letter on 5 August 2008, but had not been collected by him from the post office. It concluded that the legal term of twenty days for lodging an appeal against the prosecutor’s decision had begun on 5 August 2008 and not on 16 September 2008, the date on which the applicant had allegedly found out about the decision.
29. The applicant appealed again, claiming that the decision of 1 August 2008 had never been communicated to him and, therefore, that the term for submitting his complaint against it had not started to run.
30. On 18 May 2009 the High Court of Cassation and Justice allowed the appeal on points of law lodged by the applicant on the grounds that the appeal had been lodged within the time-limit set by law, quashed the judgment of 15 January 2009 and referred the file back to the Cluj Court of Appeal.
31. The applicant lodged an application with the High Court of Cassation and Justice for the removal of the file to another court on the grounds that the Cluj Court of Appeal was not impartial. His application was granted on 2 November 2009 and the file was transferred to the Ploieşti Court of Appeal.
32. On 19 January 2010, the Ploiesti Court of Appeal allowed the applicant’s appeal against the prosecutors’ decision not to prosecute. It sent the file back to the Prosecutor’s Office attached to the Cluj Court of Appeal for further investigation on the grounds that the investigation proceedings had not been properly conducted. It noted, inter alia, that the investigation of the allegations against the police officers had not been thoroughly investigated on the basis of the evidence against each of them. It added that despite the fact that the file contained 236 pages, the procedural acts carried out by the criminal investigation body were mentioned only at pages 21732 and consisted of four identical statements made by four of the police officers involved in the incident, and the statements of the applicant (pages 50-54) and the applicant’s lawyer (pages 12-14). The rest of the file contained copies of documents submitted by the applicant and copies of documents not related to the case. It also noted that the prosecutor, in deciding not to prosecute, had provided no explanation as to why only four police officers out of ten had been interviewed, why their statements were identical and why he had not taken into account the documents submitted by the applicant attesting that the applicant had suffered injuries. It made particular reference to the medical certificate issued by the Bihor Institute of Forensic Medicine on 28 November 2006, as well as the medical certificate issued by Cluj Hospital on 19 December 2006. It concluded that in the light of such medical certificates, a competent court could not decide that there was a lack of evidence that the offences in question had been committed.
33. On 14 April 2010 the High Court of Cassation and Justice dismissed an appeal on points of law lodged by the Prosecutor’s Office attached to the Ploieşti Court of Appeal. Consequently, the decision to continue the investigation was upheld.
34. On 18 January 2011 the prosecutor questioned for the first time the six other police officers involved in the events of 27 November 2006.
35. On 21 April 2011 the applicant’s lawyer made a written statement that she had not only heard during her phone conversation with the applicant but had also seen how the latter had been subjected to ill-treatment by the police officers on 27 November 2006. She added that despite the fact that she had repeatedly asked to see the order to appear before the investigating authority on the day of the events, she had only seen it two years later in the case file.
36. On 22 August 2011 the prosecutor heard two of the police officers who had already made statements on 6 February 2008.
37. On 25 August 2011 the Prosecutor’s Office attached to the Cluj Court of Appeal again decided not to prosecute the police officers. It found that the applicant had not been subjected to ill-treatment by the police officers and had been deprived of his liberty pursuant to a warrant that had been issued in compliance with the law.
38. The applicant lodged an appeal against this decision with the chief prosecutor, claiming that the prosecutor in charge had not observed the instructions of the High Court of Cassation and Justice in respect of the evidence to be re-administered. He also claimed that despite the fact that he had been summoned to appear before the prosecutor on 18 July 2011, he had not been heard because the prosecutor had been absent from his office for the whole day. The applicant also submitted that not all of the police officers against whom he had lodged the criminal complaint had been heard by the prosecutor; he made the same claim with respect to other individuals who had witnessed the events of 27 November 2006 but had never been heard by the investigating body.
39. On 21 September 2011 the chief prosecutor dismissed the applicant’s appeal on the grounds that the injuries mentioned in the forensic certificate had been self-inflicted while he was simulating an epileptic seizure. He held inter alia that the order to appear before the investigating body had been issued because the applicant had failed to appear before the prosecutor, despite the fact that he had been summoned.
40. By a decision of 11 November 2011, the Ploiesti Court of Appeal allowed the applicant’s appeal. It held that the prosecutor had not complied with its decision of 19 January 2010 and again remitted the case to the Prosecutor’s Office, ordering it to commence criminal proceedings against the ten police officers mentioned in the initial criminal complaint.
41. The criminal proceedings are still pending and no judgment on the merits has been rendered.
42. Excerpts from the relevant provisions of the Romanian Criminal Code with regard to ill-treatment can be found in Iambor v. Romania (no. 64536/01, § 130, 24 June 2008).
43. Article 180 of the Romanian Criminal Code deals with bodily harm and provides, inter alia, that the harm caused to the physical integrity or health of a person requiring up to twenty days of medical care is punishable by one to three months’ imprisonment or a fine.
44. Article 250 deals with abusive behaviour and provides that a public servant on duty who uses insulting language while physically harming someone shall be punished by six months to five years’ imprisonment.
45. The order to appear before the courts (mandatul de aducere) was, at the material time, provided for by Articles 183-184 of the Code of Criminal Procedure, which read as follows:
“(1) A person may be brought before [a] criminal-investigation body or [a] court on the basis of an order to appear, drawn up in accordance with the provisions of Article 176, if, having been previously summoned, he or she has not appeared, and his or her hearing or presence is necessary.
(2) An offender or a defendant may be brought [before the authorities] on the basis of an order to appear even before being summoned, if the criminal-investigation body or the court considers that, and provides reasons why, this measure is necessary for the determination of the case.”
“(1) [An] order to appear is enforced by the police.
(2) If the person specified in the order cannot be brought [before the authorities] because of an illness or for any other reason, the police officer appointed to enforce the order shall mention this situation in an official report, which shall immediately be handed to the criminal-investigation body or the court.
(3) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address, he shall investigate and, if unsuccessful [in locating the individual], shall draw up an official report including mention of the investigative activities undertaken.
(31) If the offender or the defendant refuses to accompany a police officer or tries to escape, he or she may be forced to obey the order.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-111467
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ABDULGADIR AND MOHAMEDNUR v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicants, Ms Amulkheir Suleimen Abdulgadir and Ms Zemzem Saleh Mohamednur, are Eritrean nationals, who were born in 1940 and 1971 respectively. They were represented before the Court by Ms A. Lindblad, a lawyer practising in Stockholm.
While the applicants, a mother and her adult daughter, are Eritrean nationals they have resided for most of their lives in Saudi Arabia. They arrived in Sweden on 7 September 2008 carrying valid passports and visas valid until 29 October 2008. They had come to stay with the first applicant’s son. On 30 October 2008 they applied for asylum and submitted that they would be at risk of ill-treatment and harassment on return to Eritrea. Allegedly, the second applicant would be called up for military service on return. Both applicants also referred to a risk based on their state of health as the first applicant suffered from old age in combination with Alzheimer’s disease and the second applicant was diagnosed with Systemic Lupus Erythomathosis (SLE), a chronic rheumatic disease. The second applicant submitted a medical certificate, issued on 4 August 2009 by chief physician E., which stated that she suffered from serious SLE and that she would have to undergo regular treatment and medication for long periods of time.
On 4 September 2009 the Migration Board (Migrationsverket) rejected the applicants’ request for asylum. The Board noted that they had waited two months before applying for asylum which indicated that they were not in need of international protection. It was further noted that the second applicant had not been called up for military service, but she was likely to be excused from service due to her medical condition. She had visited Eritrea in 2004 without any problems and she had been able to travel legally to and from the country. With regard to the applicants’ state of health, the first applicant’s condition was not considered sufficiently serious. Furthermore, the Board noted that the second applicant had been admitted to hospital and had received medical treatment in Eritrea in 2004, although a diagnosis could not be established. The Board could not find that the second applicant had made plausible that she would not receive appropriate medical care in Eritrea.
The applicants appealed to the Migration Court (Migrationsdomstolen) in Stockholm and submitted additionally that they belonged to a small religious minority and were subject to persecution in Eritrea.
On 27 December 2010 the Migration Court rejected the applicants’ appeal. The court found that they had added new circumstances at a late stage of the proceedings and that there was no indication that they would be subjected to persecution due to their religious affiliation in Eritrea. Furthermore, it found no reason to believe that the applicants would be subjected to ill-treatment on the grounds that the second applicant had not done military service. The first applicant’s medical condition was not considered to be of such a serious nature as to constitute grounds for asylum. With regard to the second applicant’s medical condition, the court found that the submitted medical certificate did not substantiate that the illness was fatal. Furthermore, there was no indication that adequate care and medical treatment would not be available to the applicant in Eritrea.
On 25 May 2011 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal.
The applicants turned anew to the Migration Board and submitted, inter alia, a medical certificate concerning the first applicant and some correspondence from a physician working for the World Health Organisation (WHO) in Eritrea and from the Red Cross in Stockholm concerning the second applicant. The medical certificate, dated 17 January 2011, was issued by a general practitioner and stated that the first applicant had an alleged progressive memory problem and could occasionally not remember her daughter. There was no evidence, but strong indications of early Alzheimer’s disease. According to the submitted correspondence, not all of the drugs that the second applicant had received in Sweden were available in Eritrea and the management of complications such as thrombosis and, in the long run, renal complications was not possible there. There were allegedly difficulties in having haemodialysis since only two units were available for the whole country and there were regular breaks in service.
On 29 September 2011 the Migration Board refused to review the case as it found no new circumstances which constituted impediments to the enforcement of the expulsion. Concerning the first applicant, it was noted that she had received effective medical treatment and that her Alzheimer’s disease had improved. With regard to the second applicant, the only medical certificate submitted had already been considered in the main proceedings.
On 12 October 2011 the Migration Court rejected the applicants’ appeal with regard to a review of the case in accordance with Chapter 12, section 19 of the Alien’s Act.
The applicants turned again to the Migration Board and submitted an additional medical certificate, issued by a specialist physician on 4 October 2011, concerning the second applicant. The certificate stated that if the necessary medication were stopped this would, within days or weeks, lead to fatal complications.
On 7 October 2011 the Board noted that the medical certificate described the progression of SLE in general terms as well as general treatment methods. It had not been issued by the second applicant’s own doctor and the Board noted that no information was submitted concerning the applicant’s state of health for the period 2009-2011. The Board did not question the submitted mail correspondence with the WHO, but found that the applicant had failed to substantiate that there were no alternative medicines available in Eritrea. Furthermore, it was considered that the correspondence had taken place in 2009 and there was no new information on the applicant’s state of health or required medicines for treatment. The Board found that the applicants had failed to substantiate any impediments to enforcing the expulsion to Eritrea.
On 13 October 2011 the applicants were deported to Eritrea, but no information has been submitted as to their situation following their return.
The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716).
Chapter 5, section 1, of the Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.
According to Chapter 4, section 1, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).
As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).
Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, section 18, where new circumstances have emerged which imply there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to treatment as referred to in Chapter 12, sections 1 and 2, or that there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a reexamination (Chapter 12, section 19).
The World Health Organisation report, Eritrea Country Cooperation Strategy 2009-2013 (pp. 3-5), published in 2009, stated that:
“Since independence in 1991, Eritrea has made considerable progress in promoting equitable, accessible and affordable health services to the majority of its citizens with the support of its partners. This is demonstrated by the significant improvement of health indicators.
The health infrastructure has made considerable progress. ... Over 60 different medical products are locally produced; key medicines are available in 95% of health facilities and there is no shortage of supplies and equipment. ... Chronic diseases like diabetes, hypertension, mental health and infectious diseases like tuberculosis, HIV/AIDS and other sexually transmitted diseases are treated free of charge.
...
...[T]he country still experiences acute shortage of human resources particularly at the peripheral level of the healthcare delivery system.”


ITEMID: 001-72093
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Not necessary to examine Arts. 6-1 and 14;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. Ilinden is an association based in southwest Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia.
9. Ilinden was founded on 14 April 1990. Its aims, according to its articles of association and programme, were to “unite all Macedonians in Bulgaria on a regional and cultural basis” and to achieve “the recognition of the Macedonian minority in Bulgaria”. Clauses 8 and 9 of the articles stated that the organisation would not infringe the territorial integrity of Bulgaria and “would not use violent, brutal, inhuman or unlawful means”.
10. In 1990 Ilinden applied for, but was refused, registration. In the proceedings for registration, the Blagoevgrad Regional Court and the Supreme Court examined its articles of association, its programme and other written evidence.
11. In their decisions of July and November 1990 and March 1991 the courts found that Ilinden’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred and that it was dangerous for the territorial integrity of Bulgaria. Therefore, its registration would have been contrary to Articles 3, 8 and 52 § 3 of the Constitution of 1971, as in force at the time. In particular, the aims of the association included the “political development of Macedonia” and the “united, independent Macedonian State”. Moreover, in its appeal to the Supreme Court, the association had stated that “the Macedonian people [would] not accept Bulgarian, Greek or Serbian rule”. The formal declaration in its articles of association that it would not imperil the territorial integrity of Bulgaria appeared inconsistent with the remaining material.
12. The judgment of the Supreme Court of 11 March 1991 stated, inter alia:
“[T]he lower courts have correctly established that the aims of [Ilinden] under its articles of association and programme were directed against the unity of the nation... [The material in the case] demonstrates that [Ilinden] seeks to disseminate the ideas of Macedonianism among the Bulgarian population, especially in a particular geographical area. [Those ideas] presuppose the ‘denationalisation’ of the Bulgarian population and its conversion into a Macedonian population... It follows that [Ilinden] is directed against the unity of the nation and is therefore prohibited under Article 35 § 3 of the [1971] Constitution...”
13. Throughout the period 19902003 Ilinden tried to organise commemorations of historical events every year on certain dates in April, August and September, on various sites in Pirin Macedonia. Almost all of the commemoration gatherings were banned by the authorities, often on the basis of the organisation not been registered. In some instances the courts refused to examine appeals against such bans on the same ground (for the period 199497 see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 21, 25, and 2930, ECHR 2001IX; for the period 19982003 see The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, §§ 1271, 20 October 2005).
14. On 26 October 1997 the applicants, together with seven, eight or nine other persons, held a meeting in Petrich. There are two versions of the minutes of this meeting. The first one states that eighteen persons adopted a resolution to reapply for registration of Ilinden. The second one states that seventeen persons decided to found a nonprofitmaking association named Ilinden. Both versions state that the persons present adopted the articles and elected the management committee and the chairman of the association.
15. The relevant clauses of the articles of association of Ilinden adopted at that meeting read:
“1. [Ilinden] is a national Macedonian organisation, on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the Macedonian nation ... and of the Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide.
2(1). Ilinden recognises and respects the territorial integrity of the Republic of Bulgaria and its laws and Constitution, provided they are consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities.
2(2). [Ilinden] supports the international law [rules providing that] borders between countries may be altered peacefully through negotiations.
3. The goals and objects of [Ilinden] ... [are] to express and defend the civil, political, national, social, and economic rights of Macedonians living on Macedonian land under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria.
4(1). [Ilinden] will protect the Macedonians subjected to assimilation by the Bulgarian nationalistic policies.
4(2). [Ilinden will seek the r]ecognition of a status of cultural autonomy of Pirin Macedonia [in order to] halt the process of assimilation of the Macedonians.
...
4(5). [and the g]iving of autocephalous status of the Macedonian church in Pirin Macedonia with a view to cutting off the assimilation activities of the Bulgarian priests.
...
5. [Ilinden] will strive towards ... liberating the Macedonians from the feelings of fear of the discrimination and assimilation policies of the [Bulgarian State].
...
7(2). [The means employed by Ilinden for achieving its goals shall be] ... the holding of peaceful assemblies, meetings, marches and demonstrations...
7(3). Participation in elections through nomination of independent Macedonians candidates.
...
8(2). Every Macedonian, as well as a citizen of another ethnicity, may become a member of the organisation.”
16. On 16 March 1998 the applicants lodged an application for the registration of Ilinden with the Blagoevgrad Regional Court. They submitted to the court a copy of the first version of the minutes of the 26 October 1997 meeting (see paragraph 14 above). Finding that one member of the management committee had not signed the application for registration and that the filed copy of the articles of association had not been signed either, the court invited the applicants to submit duly signed copies of the application and the articles. On 6 April 1998 one of the applicants filed a signed application and an unsigned copy of the articles. The court also instructed the applicants to produce a copy of the resolution for the founding of Ilinden. On 2 June 1998 an unsigned copy of the second version of the minutes of the October 1997 meeting (see paragraph 14 above), containing a resolution for the founding of Ilinden and the names of eighteen purported founders, was filed with the court. A hearing was held on 19 June 1998. On 10 July 1998 a copy of the second version of the minutes (see paragraph 14 above), signed by fifteen persons, was filed with the court. At a hearing held on 29 September 1998 the applicants stated that this second version had been drafted by an attorney and had been signed by the founders before the first hearing on 19 June 1998. The court admitted the document in evidence.
17. The Blagoevgrad Regional Court gave judgment on 2 November 1998. It rejected the application in the following terms:
“By section 136(1) of the Persons and Family Act [of 1949], the application for registration of a nonprofitmaking association must be accompanied by a resolution for its founding [and] its articles of association, signed by the founders...
In their application for registration the members of the management committee state that in 1990 the organisation was denied registration ..., which may lead to the conclusion that the resolution for the founding of Ilinden was adopted ... at the latest in 1990. This conclusion is supported by the first version of the minutes of 26 October 1997. This version states that at a meeting held on 26 October 1997 in Petrich, with eighteen persons present, the question of the reregistration of Ilinden was discussed...
In a letter of 30 April 1998 the court instructed the applicants to present a resolution for the founding of the association. Following this instruction the applicants submitted unsigned minutes dated 26 October 1997, which reflect a different agenda and different decisions. These new minutes contain an express resolution for the founding of Ilinden, for the adoption of its articles of association and the electing of a management committee. The heading of these minutes indicates that seventeen persons were founders. An additional, signed version of these minutes bears the signatures of fifteen persons. Three of the alleged founders ... have not signed the minutes of 26 October 1997, while the minutes state that the resolution for the founding of the association was adopted by unanimity. However, these persons have signed the [first version of the minutes], which contain the resolution to re-register Ilinden. [During the hearing] on 29 September 1998 the members of the management committee averred that there had only been one meeting, [which took place] on 26 October 1997. In view of these circumstances, the court considers that it has not been categorically established that a resolution for the founding of Ilinden was adopted on 26 October 1997. It is unclear who the founders were, because there are two versions of the minutes of the same date, signed by different persons and having different contents. Thus, one of the absolute prerequisites of section 136(1) of the [Persons and Family Act of 1949] – a resolution for the founding the association – is missing.
The second mandatory attachment to the application for registration – articles of association signed by the founders – is likewise missing.
When the applicants first applied for registration on 16 March 1998..., they were instructed to submit articles of association signed by the founders. This instruction has not been complied with. The articles ... dated 27 September 1997 are not signed. Alongside the articles the applicants have submitted a separate sheet, stating: ‘The articles of association of Ilinden were discussed and adopted at the founding meeting on 26 October 1997’. Only the signatures of the members of the management committee follow. The presentation of articles of association signed by the founders is an absolute prerequisite for [registration]. On this ground alone – the failure to comply with the requirements of section 136(1) of the [Persons and Family Act of 1949] – the registration of [Ilinden] must be refused.
The court considers it necessary to note that, alongside the above-mentioned [reasons to refuse registration], there are a number of serious discrepancies between the submitted articles of association and the laws of [Bulgaria], which render the registration inadmissible.
In clause 1 of its articles of association [Ilinden] defines itself as a ‘Macedonian national organisation on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the Macedonian nation ... and of the Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide’.
This text clearly shows that the association considers itself a ‘successor’ and continuer of ... the ‘national liberation struggle of the Macedonian nation’... The evoking of historical events in which the Bulgarian people fought for the protection of its national interests [and] for the restoration of the Bulgarian State is puzzling in the context of an activity which is to be carried out against this same State. It is not clear how an association may be a ‘successor’ of ‘fighters fallen victim’ but probably the applicants wanted to underscore that they intend to lead a ‘national liberation struggle’ on the territory of the Republic of Bulgaria through uprisings, which process is expected to lead to victims. Read this way, clause 1 of the articles raises serious doubts as to the peaceful means for the achievement of the goals of the association declared in clause 7. Clause 2(1) of the articles recognises the territorial integrity of the country, its laws and Constitution, but under a condition: ‘if they are consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities’. The reservations relating to respect for the territorial integrity of the country continue in clause 2(2) of the articles, which introduces the concept of modification of the borders through ‘negotiations’. The association’s goal – to achieve a modification of the borders of Bulgaria through taking of territory away – is clearly spelled out in clause 3 of the articles, which indicates that [Ilinden] ‘expresses and defends the civil, political, national and social and economic rights of Macedonians living on Macedonian land under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria’. The use of the term ‘occupation’ indicates that, according to the applicants, the Republic of Bulgaria includes forcibly annexed ‘Macedonian’ lands, for the liberation of which they will lead a ‘national liberation struggle’. This idea is underscored in several other provisions of the articles. Thus, clause 4 speaks of protection against Bulgarian ‘assimilation’ through cultural autonomy of Pirin Macedonia, which takes as a given that the population there is not Bulgarian, clause 5 [speaks of] ‘taking the Macedonians out’ of the state of [being subjected to] ‘discrimination and assimilation’ by the Bulgarian State.
Clause 7 of the articles indicates that the association will organise peaceful assemblies, meetings, marches and demonstrations with demands for political rights, and that it will participate in elections through the nomination of candidates. Therefore, even though it claims to be a non-profitmaking association, Ilinden proclaims that it will carry out a political activity within the meaning of Article 11 § 3 of the Constitution [of 1991] and section 13(3) of the Political Parties Act [of 1990].
Article 12 § 2 of the Constitution [of 1991] provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. This prohibition is developed in section 13(1) and (5) of the Political Parties Act [of 1990]. An association which pursues political goals such as those clearly designated by the applicants here may not be registered [as such].
Apart from the political character of the goals and of the future activity [of the association], the aforesaid leads to the conclusion that [Ilinden] is an organisation directed against the sovereignty, the territorial integrity and the unity of the nation and towards the incitement of national hatred, and is not categorically excluding the use of violence.
Clauses 1, 2, 4, 6, and 7 of the articles of the association contain suggestions [that there exists] a Macedonian ethnos [constituting a] minority and deprived of the rights that the Constitution [of 1991] bestows upon all Bulgarian citizens.
There is no Macedonian minority in Bulgaria. There are no historical, religious, linguistic, or ethnical grounds for such an assertion. [Such an assertion], coupled with the declarations alleging ‘assimilation, discrimination and xenophobia’ in respect of the ‘Macedonians’, is in reality directed against the unity of the nation. Every organisation committed to such a political platform is prohibited by virtue of Article 44 § 2 of the Constitution [of 1991]. ...”
18. The management committee of Ilinden appealed to the Sofia Court of Appeals. They argued that the Blagoevgrad Regional Court had deliberately misconstrued the articles of association. Ilinden had no political goals and had never intended to dispute the territorial integrity and the sovereignty of Bulgaria, nor to incite violence or ethnic hatred. The court had refused registration because of its mistaken finding that the articles insinuated the existence of a Macedonian ethnos having a minority character. Also, as there had apparently been doubt about technical problems with the registration documents, the management committee submitted a fresh copy of the minutes of the association’s founding meeting. It also submitted a list of signatures of the founders of Ilinden who were not members of the management committee, apparently with the purpose of remedying the deficiency noted by the Blagoevgrad Regional Court – that the articles of association bore the signatures of the members of the management committee only, not of all founders.
19. The Sofia Court of Appeals dismissed the appeal in a judgment of 28 April 1998. The relevant part of its opinion read:
“...this court finds that the prerequisites for entering [Ilinden] in the register of nonprofitmaking legal persons are missing. The first irregularity of the association is that the submitted articles are not signed by the founders, as required by section 136 of the Persons and Family Act [of 1949]. Furthermore, the articles contain a number of clauses which do not allow the registration of the association. Clause 1 indicates that [Ilinden] shall be ‘a Macedonian national organisation [based] on ethnicity and origin’, and clause 8 provides that ‘only a Macedonian’ may be a member of the organisation; such type of association is inadmissible and contrary to Article 6 § 2 of the Constitution [of 1991], which prohibits privileges based on ‘nationality, ethnicity, origin’...
In clause 7 of its articles the association sets itself political goals, which it may pursue only if registered [as a political party]. The formulated aims, such as ‘participation in elections’ [and] the holding of ‘meetings, marches and demonstrations’ run also against Article 12 § 2 of the Constitution [of 1991], which does not allow associations to perform political activities. The legal definition of the term ‘political activity’ set out in section 13(3) of the Political Parties Act [of 1990] indicates that it comprises precisely the holding of meetings, demonstrations, assemblies and other forms of public campaigning.
Clause 4 of the articles provides that the association will carry out activities that are characteristic of a denomination ... : ‘struggling to achieve an autocephalous status of the Macedonian church and cutting off the assimilation activities of the Bulgarian priests’ [; such activities] may be carried out only by nonprofitmaking organisations registered under section 133a of the Persons and Family Act [of 1949] and the Denominations Act [of 1949].
The proposition of the applicants is that the association should be registered because its articles do not set forth political aims and the association is not established on an ethnical or a national basis. These assertions are unfounded. On the one hand, the submitted articles of association have not been signed by the founders, which precludes the possibility of registration ... On the other hand, the activities the articles envisage ... may not be carried out by such a type of association. This indicates that the irregularities in the founding of the association may not be rectified through the additional presentation of evidence; the registration is therefore impossible.”
20. The management committee of Ilinden appealed on points of law to the Supreme Court of Cassation. They argued that the Sofia Court of Appeals had erred in holding that the formation of an association could lead to discrimination. On the contrary, it was the exercise of a fundamental right. Also, Ilinden did not pursue any of the activities proscribed by Article 44 § 2 of the Constitution of 1991. As regarded the alleged political goals and activities of the association, they submitted that the Sofia Court of Appeals had misconstrued the term “political activity”: the holding of meetings and marches was not the prerogative of political parties – they could be organised by any organisation or person. The statement of the court that the meaning of clause 4 of its articles of association was that Ilinden intended to engage in religious activities was tendentious and untrue. In addition, the applicants complained that the Sofia Court of Appeals had repeated the conclusion of the Blagoevgrad Regional Court that they had not submitted a duly signed copy of the articles of association, apparently disregarding the fresh documents they had presented together with their appeal from the latter’s judgment.
21. The Supreme Court of Cassation gave judgment on 12 October 1999. It dismissed the appeal in the following terms:
“...The appeal is illfounded.
The [Sofia] Court of Appeals found that the submitted articles of association have not been signed by the founders, as mandated by the imperative rule of section 136 of the [Persons and Family Act of 1949]. Secondly, the articles contain a number of clauses precluding the registration of the association. Clauses 1 and 8 contravene Article 6 § 2 of the Constitution [of 1991], clause 7 [contravenes] Article 12 § 2 of the Constitution [of 1991] in conjunction with section 13(3) of the [Political Parties Act of 1990], [and] clause 4 [runs counter to] section 133a of the [Persons and Family Act of 1949].
The judgment of the [Sofia] Court of Appeals is correct. The finding that the legal requirements for the registration of the association have not been met corresponds to the documents in the case file and more specifically to the articles of association [of Ilinden].
An association is registered pursuant to an application by its management committee which must be accompanied by a resolution for its founding and its articles, signed by the founders. This means a signed copy of the articles and not separate lists and minutes. [In addition,] Article 6 § 2 of the Constitution [of 1991] does not allow privileges on the basis of nationality, ethnicity, origin, etc. By Article 12 § 2 of the Constitution [of 1991], associations may not pursue political goals and carry out political activities characteristic solely of political parties. Account should also be taken of section 13 of the [Political Parties Act of 1990].”
22. On 21 October 2002 Ilinden lodged another application for registration with the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the court refused to register the association. Its opinion read, as relevant:
“The evidence ... indicates ... that the activities of the organisation which seeks registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation. This is apparent from the main goals of the association ... and the means for their achievement...
The way they are formulated ... indicate[s] their political character. ...The organisation states that it is a successor and continuer of the ‘national liberation struggle of the Macedonian nation’, including the ‘Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide’[. Its articles of association] specify that [the organisation] will respect the territorial integrity of the Republic of Bulgaria, but only if ‘[it is] consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities’; [that the organisation] will ‘voice and protect the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians who live in Bulgaria’[. The articles also] insist that ‘the process of assimilation in Pirin Macedonia must be stopped’. Obviously, the aim is to distort the historical truth and to ignore the Bulgarian character of certain geographical regions [and] to cause overt opposition of one part of the population to another. This also threatens the territorial integrity of the country, while Article 44 § 2 of the Constitution [of 1991] prohibits organisations engaging in such an activity.
Even if, despite [what was found] above, it is assumed that the activities of [Ilinden] do not run counter to the Constitution [of 1991], by Article 12 § 2 thereof associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. The political character of the aims [of Ilinden] is clearly indicated by [its articles of association], while the [applicable law] provides that organisations seeking to engage in political, trade union or religious activities shall be regulated in a separate statute.
All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal. It cannot be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community. ... The realisation of the true aims [of Ilinden] would no doubt be at the expense of the unity of the Bulgarian nation [and] the sovereignty and the territorial integrity [of the country], which is declared inviolable by Article 2 § 2 of the Constitution [of 1991].”
23. Ilinden’s ensuing appeal was dismissed by the Sofia Court of Appeals in a judgment of 11 July 2003. The court held that the aims of Ilinden were political, which was impermissible for a nonprofitmaking association. It further held that the aims of Ilinden were directed towards a “twisting of the historical truths and towards ignoring the Bulgarian character of certain geographical regions, with a view to causing overt opposition of one part of the Bulgarian citizens against another, which imperil[ed] the territorial integrity of the country and the unity of the nation, in breach of the imperative rule of Article 44 § 2 of the Constitution [of 1991]”. Finally, the court held that there had been an irregularity in the number of elected members of the association’s management committee.
24. Ilinden’s appeal on points of law to the Supreme Court of Cassation was likewise dismissed, in a final judgment of 12 May 2004. The court held that Ilinden’s activity, which would include protecting the ‘civil, social and economic rights of the Macedonians living on Bulgarian soil and of the Macedonians living in Bulgaria’ ran counter to Article 44 § 2 of the Constitution of 1991. Even assuming that this was not the case, registration was impossible, because Ilinden’s aims were in reality political, as indicated by its declarations that it was a continuer of the “national liberation struggle of the Macedonian nation” and that its founders were “spiritual successors of ‘the Macedonian fighters which had fallen victim of the Bulgarian state terrorism and genocide’”, which was impermissible for a nonprofitmaking association. Finally, the court endorsed the Sofia Court of Appeals’ finding that there had been an irregularity in the number of elected members of the management committee.
25. The relevant provisions of the Constitution of 1991 read as follows:
“The territorial integrity of the Republic of Bulgaria shall be inviolable.”
“All citizens shall be equal before the law. There shall be no privileges or restriction of rights on the grounds of race, nationality, ethnicity, sex, origin, religion, education, opinion, political affiliation, personal or social status, or property status.”
“Parties shall facilitate the formation of the citizens’ political will...”
“Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.”
“Everyone shall have the right to peaceful and unarmed assembly at meetings and marches.”
“1. Citizens may freely associate.
2. Organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited.
3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.”
26. At the material time this Act, the relevant provisions of which were subsequently superseded by the NonProfitMaking Legal Persons Act of 2000 (see paragraph 29 below) and some other statutes, regulated the formation, status and dissolution of nonprofitmaking legal persons. Its pertinent provisions were:
“Nonprofitmaking legal entities carrying out an activity characteristic of a denomination or performing a religious or a religious educational activity shall be registered ... after assent being given by the Council of Ministers.”
“An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.”
“An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...”
“Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, goals, means...”
“...An association may be dissolved by decision of the Regional Court if ... its functioning is contrary to law, its articles or the state and public order...”
27. This act, which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows:
“1. A public organisation which has not been registered as a political party may not carry out the activity of a political party.
2. A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations.
3. ’Organised political activities’ shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate.
4. If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall offer that it be dissolved or register as a political party within one month.
5. If the organisation under the foregoing subsection does not cease its political activity or register as a political party, it shall be dissolved...”
28. The relevant provisions of this Act read as follows:
“Meetings, rallies and marches may be organised by individuals, associations, political or other civic organisations.”
29. Under section 13(1)(3)(b) of this Act, which came into force on 1 January 2001 and at present regulates, inter alia, nonprofitmaking associations, the competent regional court may dissolve any association which carries out an activity which is contrary to the law, the public order or morality. By section 13(2) of the Act, the court may act pursuant to the request of any interested person or the public prosecutor.
VIOLATED_ARTICLES: 11


ITEMID: 001-70104
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KEPENEKLİOĞLU AND CANPOLAT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violations of Art. 6-1;Not necessary to examine Arts. 6-2 and 6-3
TEXT: 6. The applicants, Mr Adem Kepeneklioğlu and Mr Mehmet Hakan Canpolat, are Turkish nationals, who were born in 1954 and 1964 respectively. When they lodged their application with the Court they were imprisoned in Turkey.
7. On 29 and 30 June 1992 the applicants were taken into custody in Istanbul by police officers from the Istanbul Anti-Terrorist Branch. On 13 July 1992 they were detained on remand.
8. On 27 July 1992 the Public Prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicants of, inter alia, organised murder and armed burglary, as well as being members of an illegal terrorist organization.
9. On 25 November 1992 the Istanbul State Security Court commenced the trial against the applicants and three other accused and prolonged the applicants' detention.
10. On 3 April 1998 the Istanbul State Security Court convicted the applicants under Article 146 of the Criminal Code and sentenced them to death.
11. On 10 March 1999 the Court of Cassation quashed the judgment.
12. On 12 June 2001 the Istanbul State Security Court convicted them of the same crimes.
13. On 4 February 2002, upon the applicants' appeal, the Court of Cassation upheld the judgment of the State Security Court.
14. A full description of the domestic law may be found in the judgments of Demirel v. Turkey (no. 39324/98, §§ 47-49, 28 April 2003) and Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1