ITEMID: 001-68625
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF STOICHKOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1958. He is presently detained in the Bobov Dol prison.
9. During the 197588 period the applicant was convicted six times of various offences: theft, car theft, deserting military duties and possession of narcotic drugs.
10. In 1988 the applicant fled Bulgaria to Austria, travelling through the former Yugoslavia and Italy on a Yugoslav passport. The applicant submits that he left Bulgaria on 25 June 1988, but according to the Pernik District Court's judgment of 30 October 1989 (see paragraph 15 below) he committed a rape on 13 July 1988 and an attempted rape on 3 September 1988, both offences taking place in Bulgaria. In 1990 the applicant settled in the United States of America, where he lived until 1999.
11. On 13 September 1988 criminal proceedings were opened against the applicant on charges of rape. There is no indication – and it has not been argued by the Government – that the applicant was notified of the proceedings.
12. On 16 November 1988 the proceedings were stayed, most probably because the applicant was abroad. The proceedings resumed on 29 June 1989 and thereafter were conducted in the applicant's absence.
13. On 7 September 1989 the Pernik District Prosecutor's Office submitted an indictment against the applicant to the Pernik District Court.
14. The court held a hearing on 30 October 1989. The applicant was represented by an ex officio counsel, as mandated by Article 70 § 1 (6) of the Code of Criminal Procedure (“the CCP”).
15. In a judgment of 30 October 1989 the Pernik District Court found the applicant guilty of rape and attempted rape and sentenced him to ten years' imprisonment. The court found that on 13 July 1988 the applicant had decoyed a Mrs D.K., who vaguely knew him, into following him into a house, where he had threatened and beaten her into having sexual intercourse with him. The court also found that on 3 September 1988 the applicant had decoyed, in a similar manner, an acquaintance of his, a Ms S.V., had likewise threatened and heavily beaten her and had cut her with a knife. She had, however, managed to break out, thus avoiding sexual intercourse with the applicant. The court based its findings of fact on the testimony of Mrs D.K., Ms S.V., Mrs D.K.'s husband, two other witnesses, medical reports and other written evidence, including two notes written by the applicant himself.
16. No appeal having been lodged against the judgment, it came into force on 14 November 1989.
17. On 16 January 1997 the Pernik District Court's casefile, containing all documents relevant to the proceedings, was destroyed. Only a copy of the judgment was kept in the archive of the court.
18. On 21 November 1989 the Pernik District Prosecutor's Office transmitted a copy of the judgment to the police with a view to the applicant's apprehension for the purpose of enforcing his sentence. The letter accompanying the judgment stated that the applicant was believed to be in Austria, but his exact whereabouts were unknown.
19. On 25 April 1990 the Pernik District Prosecutor's Office sent a copy of the judgment to the Chief Prosecutor's Office with a view to the applicant's extradition from Austria. On 14 May 1990 the Chief Prosecutor's Office wrote back to the Pernik District Prosecutor's Office, stating that the legal cooperation treaty between Bulgaria and Austria contained no provisions for assistance in criminal cases, and that therefore there was no possibility to request the applicant's extradition from Austria.
20. On 22 September 1992 the Pernik District Prosecutor's Office sent a second copy of the judgment to the police with instructions to enforce it in the event the applicant returned to Bulgaria.
21. On 9 November 1995 the police issued a nationwide search warrant for the applicant. Interpol was also requested to establish the applicant's whereabouts, apparently to no avail.
22. In November 1999 the applicant came back to Bulgaria, to visit relatives.
23. On 18 February 2000 he went to a police station in Pernik to renew his driver's licence. The same day he was arrested and taken to a prison facility to start serving his sentence.
24. On 1 June 2000 the applicant filed with the Pernik District Prosecutor's Office a request for release. He argued that the tenyear limitation period for the enforcement of his sentence had expired in 1999.
25. On 9 June 2000 the Pernik District Prosecutor's Office rejected the request, holding that the ten-year limitation period had been interrupted on several occasions and had therefore not expired. The latest interruption had taken place on 22 September 1992, which was less than ten years before the day of the applicant's arrest.
26. The applicant appealed to the Pernik Regional Prosecutor's Office.
27. On 11 August 2000 the Pernik Regional Prosecutor's Office dismissed the appeal, holding that actions had been undertaken for the enforcement of the applicant's sentence in 1992 and in 1995. Therefore, the running of the limitation period had been interrupted and a new period had started to run in 1995, due to expire on 9 November 2005.
28. The applicant appealed to Sofia Appellate Prosecutor's Office, submitting that the actions which had been undertaken during the 19892000 period had not in fact had the effect of interrupting the running of the limitation period.
29. On 27 October 2000 the Sofia Appellate Prosecutor's Office dismissed the appeal, holding that the running of the limitation period for the enforcement of a sentence was interrupted by every act of the competent authorities aimed at its enforcement. These acts could be legal acts, or organisational, or technical acts. During the 19892000 period the competent authorities had undertaken a number of acts for enforcing the applicant's sentence. In particular, a copy of the judgment had been sent to the police in 1992 and a nationwide search warrant had been issued for the applicant in 1995. These had had the effect of interrupting the running of the limitation period.
30. The applicant appealed to the Supreme Cassation Prosecutor's Office.
31. On 20 December 2001 the Supreme Cassation Prosecutor's Office dismissed the appeal, holding that the running of the limitation period had been interrupted on several occasions and that therefore it had not expired as of 18 February 2000.
32. In the meantime, in February 2001, the applicant lodged with the Supreme Court of Cassation a request for the reopening of the 198889 criminal proceedings against him on the basis of Article 362a of the CCP. He also argued that the limitation period for the enforcement of his sentence had expired and requested release on that basis.
33. The Supreme Court of Cassation rejected the request in a judgment of 19 July 2001. It held that the request was partly inadmissible and partly illfounded. The applicant's request for reopening and rehearing of the case was inadmissible, since that could not be done, the casefile having been destroyed in 1997. Whether the casefile had been destroyed in accordance with the relevant rules was immaterial, the fact remained that as a result, a rehearing was impossible in practice. Insofar as the applicant could be understood as requesting reopening, quashing of the conviction and suspension or discontinuation of the proceedings, that request was illfounded, as it had not been established that at the time of the trial there had existed grounds for suspension or discontinuation of the proceedings. As to the applicant's request for the application of the statute of limitations, it was inadmissible, as the Supreme Court of Cassation had no primary jurisdiction in such matters.
34. On 21 August 2002 the applicant requested the president of the Pernik District Court to restore the casefile of the 198889 criminal case against him. It seems that he has received no reply to his request.
35. The CCP allows trial in absentia in certain limited circumstances. According to Article 268 § 3 of the Code, as in force at the material time, it was possible when:
“[the trial in absentia] would not hamper the ascertaining of the truth ... [and] the accused [was] outside the territory of Bulgaria, if:
1. his residence [was] unknown; [or]
2. he [could not] be summoned because of other reasons; [or]
3. he ha[d] been duly summoned and ha[d] not indicated a good cause for his failure to appear.”
Cases where the offence carried a term of imprisonment could be heard in absentia “only if [the accused's] residence in the country [was] unknown and [had] not been established after a thorough effort to locate [him]” (Article 268 § 4 of the CCP).
When an accused is tried in absentia, he must be mandatorily represented by an ex officio counsel (Article 70 § 1 (6) of the CCP).
36. Until 1 January 2000 Bulgarian law did not provide for reopening of criminal cases heard in absentia. Thereafter such reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and submits a request for reopening within one year after having learned of the conviction (new Article 362a of the CCP). The request is examined by the Supreme Court of Cassation (Article 363 of the CCP), which may quash the conviction and either order rehearing of the case (Article 364 § 1 of the CCP) or discontinue or suspend the criminal proceedings (Article 364 § 2 of the CCP).
37. Article 82 §§ 1 and 2 of the Criminal Code (“the CC”), insofar as relevant, provides that a judgment imposing a sentence from three to ten years' imprisonment cannot be enforced more than ten years after its entry into force. The running of this limitation period is interrupted by every act effected by the competent authorities for the purpose of enforcing the sentence (Article 82 § 3 of the CC). Such interruptions notwithstanding, the sentence may no longer be enforced if fifteen years have elapsed since the judgment's entry into force (Article 82 § 4 of the CC).
38. The CCP does not contain express provisions establishing a procedure to be followed in cases where there is a dispute as to whether a person has been detained in execution of a sentence after the expiry of the limitation period for its enforcement. Article 373 § 1 (1) of the CCP provides that the court which has delivered a judgment rules on all difficulties or uncertainties relating to its interpretation. In general, the authority responsible for supervising legality in the enforcement of sentences of imprisonment is the competent prosecutor (Article 375 § 2 of the CCP, section 118(2) of the Judicial Power Act and section 4(1) of the Execution of Sentences Act). In particular, the competent prosecutor has to order the release of every imprisoned person whom he or she finds deprived of liberty unlawfully (section 119(7)(1) of the Judicial Power Act).
39. By section 91(4) of Regulation no. 28 of 1995 on the functions of the registries of the district, regional, military and appellate courts („Наредба № 28 за функциите на служителите в помощните звена и канцелариите на районните, окръжните, военните и апелативните съдилища“), in force at the material time and until 28 November 2004, criminal casefiles where the sentence had not been enforced were to be kept in the court's archive for a period equal to the limitation period for the enforcement of the sentence. The superseding regulations provide the same (see section 148(4) of the Rules on Court Administration in the District, Regional, Military and Appellate Courts)
40. Section 14 of the Regulation provided that if a casefile was lost or destroyed prematurely, it could be restored by order of the president of the respective court, acting ex officio or pursuant to a request by a party. This was technically done by the administrative secretary of the court, who gathered all documents relating to the case which were kept by the court, by other bodies and by the parties to the case. After all available materials were collected, the court held a public hearing, to which the parties were summoned, and ruled on the restoration of the casefile. The court's order was subject to appeal to a higher court. The superseding regulations are broadly similar (see section 74 of the Rules on Court Administration in the District, Regional, Military and Appellate Courts).
41. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts, provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:
1. pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds;
2. accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because the crime was not committed by the accused, because the act committed by the accused does not constitute a crime, or because the criminal proceedings were instituted after the expiry of the limitation period or despite an amnesty;
3. conviction of a crime ... if the convicted is [subsequently] acquitted ...;
...
6. execution of a sentence above and beyond the specified period.”
42. The reported caselaw under section 2 of the Act suggests that the term “unlawful” refers to unlawfulness under domestic law (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС).
43. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful deprivation of liberty.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
5-5


ITEMID: 001-5181
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BULLIVANT v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza
TEXT: The applicant is a British national, born in 1946 and detained in HM Prison Long Lartin, Evesham, Worcestershire. He is represented before the Court by Mrs Mary O’Neill, a business analyst, of Selly Park, Birmingham.
A.
The court proceedings
On 3 December 1996, the applicant was convicted of robbing a Brinks Mat van of £498,000 and possession of firearms. On 4 December 1996, he was sentenced to 15 years’ imprisonment for the robbery with 3 consecutive years for possession of firearms, a total of 18 years’ imprisonment. He was represented under legal aid by solicitors and Counsel.
During the trial, the applicant’s counsel was denied sight of two intelligence reports from the police and MI5 which were presented to the judge by the prosecution. Counsel for the applicant applied for sight of the reports. This was denied by the trial judge who stated that the named informants were contained therein and invoked Public Interest Immunity. During the jury deliberations, following consultation with defence counsel who proposed amendments to the written direction, the judge directed the jury that on the evidence it was possible to find that the applicant was the driver of the getaway car, rather than as originally submitted by the prosecution, driver of the car used in the robbery. Counsel did not apply for the introduction of a lesser charge of accessory after the fact. The jury convicted the applicant, rejecting his defence of duress which was raised at trial.
The applicant appealed against conviction with leave from a single judge of the Court of Appeal. He claimed, firstly, that the judge introduced a new basis for convicting him (that he was driving a getaway car rather than the vehicle used in the robbery) at a late stage, namely during jury deliberations, which his counsel did not have a chance to address. Secondly, the judge’s directions as to knowledge and participation in the robbery were muddled and inadequate in that the directions may have left the jury with the impression that it was open to convict the applicant as a principal even if all he did was to assist those who had committed a robbery to avoid apprehension and had no part in the planning and execution of the robbery.
In July 1998, the applicant made an out of time application to the Court of Appeal for leave to appeal. In December 1998, the Court of Appeal refused leave to appeal to the House of Lords. The applicant states he did not receive confirmation in writing of this decision until 14 May 1999.
Conditions of imprisonment
The applicant was held on remand for one year and moved to five prisons and for some months he was held in a segregation unit. He allegedly suffered a mental breakdown and received anti-depressant drugs. As a Category A prisoner, he states that he has no right to home leave, open prison or parole, he is checked every hour by a prison officer through the night shining a light into his cell and disturbing his sleep and prospective visitors are vetted by the Home Office. According to him, Category A prisoners would also be executed in the event of a nuclear strike on the United Kingdom.
He complains that he received delayed medical treatment for a suspected heart condition. He was taken to a local hospital for an appointment but because the consultant was not there he was taken back to prison without seeing him due to the potential security risk. The visit was rescheduled and took place 5 months later. No heart problem was found. The applicant was advised by his solicitor that there was no prospect of obtaining legal aid to pursue a case relating to the delay in seeing a cardiologist.
The applicant was transported to the Court of Appeal in February 1998 in an unheated van, locked in a metal cell in the rear of the van, wearing thin clothing with no food, water or toilet breaks for 8 hours. In October 1998, his complaint to the Prison Ombudsman was upheld who recommended the setting up of guidelines for the transfer of Category A prisoners. No proceedings were issued by the applicant against the Prison Service.
The applicant states that the security classification of Category A prisoners should be reviewed annually. He has only had one review of his Category A status in April 1997 some 18 months since he was first held on remand and four months after his conviction. He has had no review since. The result of the review security category status was sent to the prison governor in a letter dated 30 June 1997 but the applicant says it was not communicated to him in writing until November 1997. It was decided that he should remain a Category A prisoner. On 8 January 1999, the applicant wrote to ask why he had only had one review and when his next review would take place but has not received a response nor pursued the matter further.
B. Relevant domestic law and practice
Disclosure of evidence to the Defence
R. v. Ward [1993] 1 WLR 619. This case dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure.
R v. Trevor Douglas K (1993) 97 Cr. App.R. 342. The Court of Appeal stated that that balancing exercise could only be performed by the trial judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind.


ITEMID: 001-77883
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GARIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Mr Branko Garić and Mr Slaviša Garić, are Croatian nationals, who live in Dubrovnik. They are represented before the Court by Mr T. Vukičević, a lawyer practising in Split. The respondent Government are represented by their Agent, Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are co-owners of the first floor of a house in Dubrovnik. N.S. is the owner of the ground floor of the same house.
N.S. has lived in the house with his family since 1967. They shared the house with other tenants during certain periods of time.
As the other tenants left the house during the eighties, N.S. acquired specially protected tenancy on the entire house. He acquired the tenancy on the first floor by a decision of the competent Ministry on 23 February 1995. It was also established, on the basis of an expert opinion, that the ground floor and the first floor constituted one flat.
The applicants filed an administrative action challenging the Ministry’s decision. The Administrative Court (Upravni sud Republike Hrvatske) dismissed their action on 19 March 1997.
On 30 June 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicants’ constitutional complaint.
N.S. subsequently instituted civil proceedings against the applicants before the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) requesting it to order the applicants to conclude a tenancy contract with him (“the contract”).
Under the relevant legislation, the holders of specially protected tenancies on privately owned flats were granted the position of protected tenants (“zaštićeni najmoprimci”).
On 23 March 1999 the Dubrovnik Municipal Court ordered the applicants to conclude the contract with N.S. It established, on the basis of the previous administrative proceedings, that N.S. had acquired a specially protected tenancy on the first floor of the house and was thus entitled to be a protected tenant in respect of that part of the house. It also accepted the fact that the whole house represented one flat.
On 8 July 1999 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed the applicants’ appeal.
On 20 May 2002 the Constitutional Court dismissed the applicants’ constitutional complaint. It found that the courts’ decisions had been based on the law and that they had not interfered with the applicants’ property rights, since they had not been deprived of their ownership.
The Flat Lease Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996) (“the Lease Act”) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely 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, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a so-called protected rent, the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. The Lease Act abolished the specially protected tenancy as such.
Pursuant to the Lease Act a landlord may terminate the lease of a protected tenant in the following cases:
if the tenant does not pay the rent or charges;
if the tenant sublets the flat or part of it, without permission from the landlord;
if the tenant or other tenants in the flat disturb other tenants in the building;
if another person, not figuring in the lease contract, lives in the flat longer than thirty days, without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent;
if the tenant or other legal tenants do not use the flat for living, but for other purposes;
if the landlord does not have another flat and is entitled to social assistance benefits or is older than sixty years.
Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.


ITEMID: 001-101776
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF BRATCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 4. On 5 December 2001 the applicant instituted proceedings in the Leninsky Court of the Crimea (“the Leninsky Court”) against the Leninsky District Police Office (“the police office”) and the Leninsky Prosecutor's Office. She challenged their actions in investigating the criminal case against Mr R., who had inflicted light bodily harm on the applicant in August 1999. The applicant also claimed compensation for the damage caused to her.
5. Between 16 September 2002 and 20 November 2002 no hearings were held since the judge sitting in the case was on holiday.
6. On 20 January 2003 the Leninsky Court left the applicant's claim without consideration since she failed to appear. On 19 May 2003 the Leninsky Court reviewed its decision and the proceedings were resumed.
7. On 6 April 2004 the Leninsky Court partly allowed the claim and awarded the applicant UAH 15,000 (about EUR 2,278) in compensation for non-pecuniary damage, to be paid by the police office.
8. The applicant and the police office lodged their appeals against the judgment.
9. On 10 June and 23 June 2004 the Leninsky Court left the applicant's and the police office's appeals, respectively, without consideration due to their procedural shortcomings.
10. On 28 February 2005 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) dismissed the applicant's appeal against the ruling of 10 June 2004. On 25 April 2005 the applicant lodged an appeal in cassation against the ruling of 28 February 2005 with the Supreme Court.
11. There was no procedural activity from 25 April 2005 to 19 May 2007.
12. On 19 May 2007 the Supreme Court transferred the case to the Zaporizhzhya Regional Court of Appeal for consideration. On 27 November 2007 the latter, acting in its cassation jurisdiction, quashed the ruling of 28 February 2005 and transmitted the case to the Court of Appeal for consideration of the applicant's appeal against the ruling of 10 June 2004.
13. On 8 April 2008 the Court of Appeal quashed the ruling of 10 June 2004. On 20 May 2008 the Court of Appeal quashed the judgment of 6 April 2004 and terminated the proceedings since the first instance court had no jurisdiction to consider the case.
14. The applicant stated in her submissions that she had challenged the decision of 20 May 2008 before the Higher Administrative Court and the proceedings are still pending. However, she provided no documents in support of that statement. According to the records provided by the Government, the applicant lodged no appeal against the decision of 20 May 2008.
15. In the period from September till December 1989 the applicant's apartment was used by the acquaintances of her son, Mr B. and Mr S, who moved in without her permission and, according to the applicant's submissions, damaged it.
16. On 11 January 1990 the applicant instituted proceedings in the Leninsky Court against Mr B. and Mr S. seeking compensation for pecuniary and non-pecuniary damage. On an unspecified date the case was transferred to the Kerch Court. On 29 October 1991 the latter left the applicant's claim without consideration. On 6 May 1992 the Court of Appeal of the Crimean Region quashed that ruling.
17. On 18 August 1995 the Kerch Court left the applicant's claim without consideration and discontinued the proceedings.
18. On 3 April 1998 the Presidium of the High Court of the Autonomous Republic of Crimea allowed the protest (extraordinary appeal) of its Deputy President against the ruling of 18 August 1995, quashed it and remitted the case to the Kerch Court for fresh consideration.
19. On 5 November 1998 the Kerch Court partly allowed the applicant's claims and awarded her 30,600 Ukrainian hryvnias (UAH), to be paid by Mr B. and UAH 7,400, to be paid by Mr S. The judgment was not appealed against and became final. It remained unenforced.
20. In January 2002 Mr B. asked the Kerch Court to renew a deadline to appeal against the judgment of 5 November 1998. On 6 March 2002 the Kerch Court granted his request. On 10 April 2002 the Court of Appeal quashed the judgment of 5 November 1998 and remitted the case to the Kerch Court. In particular, the Court of Appeal found that Mr B. had not been duly informed about the hearings in the case and that the judgment of 5 November 1998 had been adopted in his absence.
21. On 30 September 2002 the Supreme Court dismissed the applicant's appeal in cassation against the ruling of 10 April 2002.
22. On 12 December 2002 the Kerch Court partly allowed the applicant's claims and awarded her UAH 38,080 (about 6,840 euros, EUR), to be paid jointly by Mr B. and Mr S.
23. On 12 February 2003 the Kerch Court dismissed Mr B.'s appeal due to its procedural shortcomings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79464
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BORIS VASILYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1948 and lives in the town of Bataysk of the Rostov Region.
7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума).
8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (2,851 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period.
9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,474.5 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid.
10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court.
11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened.
12. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003.
13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).
14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal.
15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The case was transferred to the Presidium for the examination on the merits.
16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium.
17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence. The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination.
18. On 22 April 2004 the Town Court examined the case anew. In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted that multiplier.
19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from January 2004, pay him 4,567.5 Roubles monthly, with subsequent readjustment.
20. The judgment of the Town Court was not appealed against and became final.
21. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review.
22. The CCivP, in the relevant part, provides as follows:
“1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.”
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
“2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.”
“2. The President of the...regional...court...may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.”
“The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-60645
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF NERVA AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of P1-1;No violation of Art. 14+P1-1
JUDGES: Gaukur Jörundsson;Nicolas Bratza
TEXT: 8. The applicants were employed as waiters at the material time. When the applicants received a tip in cash directly from a customer, the money was placed in a box called a “tronc” and distributed proportionately among the waiters at the end of the week by the “tronc master”.
9. Initially, tips left by customers which were paid to the restaurant by way of an addition to a sum paid by cheque or credit card were dealt with by removing from the cash register a sum equivalent to the tip paid by cheque or credit card and placing it in the tronc, out of which it would be distributed at the end of the week in the same way as cash tips.
10. In 1979, following an inspection from the tax authorities, the applicants’ employer was required to treat tips left by cheque or credit card within the “Pay-As-You-Earn” (“PAYE”) system. Under the PAYE system an employer had to ensure that employees’ income tax and national insurance contributions were deducted from the sums paid, and that employers’ national insurance contributions were paid on those sums. In the applicants’ view, the tax authorities in 1979 were simply insisting that as cheque and credit card tips passed through the hands of the employer the latter was responsible for distribution and should be responsible for ensuring that tax and national insurance were properly deducted through PAYE.
11. Rather than distributing cash sums equivalent to those left by customers on cheque and credit card vouchers, the applicants’ employer included “additional pay” in their weekly pay slip. It would appear that the method of distribution was the same as the method hitherto applied to tronc money.
12. Although initially opposed, this new system was eventually agreed to by the staff. The first applicant was already a staff member at the time of the introduction of the system. The remaining applicants agreed to the system when they took up employment. The applicants submitted that the staff agreement to the new system was not intended to alter the fact that the gratuities were to be paid in full to employees.
13. The cheque and credit card gratuities were the subject of deductions by the employer in respect of tax and national insurance contributions. The employer bore the charges of the credit card companies, varying at the time from 3% to 5% on the amount of the gratuities. When a credit card voucher was improperly completed and rejected by a credit card company, the employer wrote off the amount and, it would appear, did not seek to recover any sums distributed to waiters in respect of any gratuity included on the voucher; it does not appear either that the employer sought to recover from the waiters any sums which it did not receive as a result of dishonoured cheques. The applicants highlighted their view that this was not a new practice, but that it applied before 1979.
14. At the relevant time there was a legal requirement that various categories of workers, including waiting staff like the applicants, be paid a minimum sum as remuneration. This requirement was embodied first in the Wages Councils Act 1979 and then, as from 1 January 1987, in the Wages Act 1986.
15. The applicants sued their employer for breach of contract and challenged the employer’s right to count the tips included in cheque or credit card payments as part of their statutory minimum remuneration. The applicants’ claim covered the six-year period prior to 6 March 1989 and therefore straddled both of the above-mentioned Acts. In the Government’s view, the issue between the parties was whether the “additional pay” constituted money paid to them by their employer. If the applicants’ claim was upheld, the consequence would have been that their employer had been paying them remuneration less that the statutory minimum over a period of years, in breach of contract, entitling them to substantial damages. The applicants maintained that the dispute centred on whether the “additional pay” constituted money paid to the applicants by their employer or, they emphasised, by their employer in respect of time worked.
16. On 25 May 1994 a High Court judge, Mr Justice Mance, held on a preliminary point that tips included in cheque and credit card transactions did count against the minimum remuneration requirement. Mr Justice Mance rejected the applicants’ submission that the tips paid in this manner were held in trust for them by the employer. In his judgment, the employer obtained the legal title to a tip paid by credit card or cheque, with the result that it became the employer’s property.
17. The applicants appealed to the Court of Appeal. By the time of the hearing before the Court of Appeal, the applicants had accepted that property in the cheque and credit card tips passed to their employer and no longer relied on the argument that they were to be considered beneficiaries of money held on trust for them by the employer.
18. In its judgment of 15 May 1996, the Court of Appeal dismissed the applicants’ appeal.
19. Lord Justice Staughton observed that it was not disputed that the relevant legislation (the Wages Councils Act 1979 and the Wages Act 1986) embodied the rule that what was paid by the employer and not by any other person counted as remuneration for the purpose of that legislation. For that reason, tips paid in cash to waiters or to the tronc did not count as remuneration. However, he considered that the same reasoning could not apply to tips which were built into payments made by cheque or credit card to their employer since the amounts became the latter’s property. The employer thereafter paid an equivalent amount to the applicants. In his view, tips paid in this manner should count against the minimum remuneration requirement. Lord Justice Staughton rejected the attempts of the applicants’ counsel to interpret the applicable legislation differently. He further rejected counsel’s argument that the applicants had a right to the cheque and credit card tips as money had and received for their use. In Lord Justice Staughton’s opinion, it was decisive that the employer was paying the tips with its own money even if they had been paid by the customers to the employer in the belief that the latter would pass the tips on to the waiters and on the understanding that it would do so.
20. As to the issue of the customers’ intention when adding the tip to the cheque or credit card payment, Lord Justice Staughton considered:
“This is relevant ... in deciding whether the money became the property of the employers or the waiters. But it is clear and (in this court) uncontroverted in this case that it became the property of the employers. Beyond that, as it seems to me, the intention of the customers has no part to play. ... ”
21. Mr Justice Douglas Brown concurred. As to the applicants’ reliance on customer intention, Mr Justice Douglas Brown stated that the intention of the different customers could only be the subject of speculation.
22. Lord Justice Aldous dissented. As to tips paid by cheque or credit card, Lord Justice Aldous accepted that the amount was paid to the employer and therefore it could not be said that the tip so paid never became the employer’s property. However, in his opinion the intention of the customer was the same when paying a tip by credit card or cheque as when paying by cash and, in either case, the customer had no intention of giving anything to the employer. Lord Justice Aldous stated:
“It was paid to the employer by the customer as a gratuity with the intention that it should be passed to the staff in the same way as cash payments would be and was accepted upon that basis as was apparent from the way that it was operated. The money added to the slip was taken out of the till and added to the tronc. That being so, I do not believe that tips paid by way of cheque or credit card should be considered ‘remuneration’ when cash tips would not be.”
23. Lord Justice Aldous further observed that there was no difference in principle between tips paid in cash and tips paid by cheque or credit card. In his opinion, the only difference was that in the latter cases the employer acted as agent for the customer and, when doing so, had to carry out its duties under the relevant tax legislation to ensure that tax was levied on the tips. However, the fact that tax on cheque and credit card tips was deducted under the PAYE system, instead of being paid by the waiters, did not affect the relationship between the customer and the employee and the intention of the customer that his tip would find its way into the hands of the employee rather than enriching the employer’s bank account.
24. On 14 June 1996 the applicants applied for leave to appeal to the House of Lords. On 28 October 1996 the applicants were informed that the Appeal Committee had provisionally decided that leave to appeal should be given and that the applicants’ employer was invited to submit objections to the applicants’ petition before 11 November 1996. On 4 February 1997 the Appeal Committee referred the matter for an oral hearing before three Law Lords.
25. On 20 February 1997 the hearing was held. The applicants’ counsel was given the opportunity to speak to the petition for leave and to address the employer’s written objections. The hearing lasted five minutes. On the same day the Appeal Committee refused leave to appeal without giving reasons.
26. Section 1 of the Wages Councils Act 1979 provided for the establishment of wages councils by order of the Secretary of State for Employment in respect of those workers described in the order and their employers. Under section 14, wages councils were empowered, inter alia, to fix the rate of remuneration for any workers in relation to which they operated. Under section 15, contracts of employment providing for payment of less than the minimum remuneration prescribed by a wages council would have effect as if the contractual rate were superseded by the statutory minimum rate. A wages council was established for workers in licensed residential establishments and licensed restaurants. Minimum remuneration for those workers was laid down in the Wages (Licensed Residential Establishment and Licensed Restaurant) Order 1982. Paragraph 3 of the 1982 Order specified the minimum rate to be paid for forty hours’ work as well as the rates for overtime, night work, etc. Paragraph 12 of the 1982 Order provided that if in any week in which a worker performed some work for his employer the total amount of gratuities from customers received by the worker was less that 8.40 pounds sterling (GBP), the employer had to pay the worker such sum as the amount of gratuities fell short of GBP 8.40. There had to be a written agreement between the worker and the employer to this effect. Where such an agreement existed, the worker had to be paid the appropriate amount reduced by twenty-one pence per hour for the first forty hours worked by him in any week.
27. Section 17 of the Wages Councils Act 1979 defined remuneration as the amount obtained or to be obtained in cash by the worker from his employer after allowing for the worker’s necessary expenditure, if any, in connection with his employment.
28. The definition of remuneration under section 17 of the Wages Act 1986 also took as its starting-point the total amount of any money payments made by the employer to the worker. The applicants draw attention to the terms of section 17(I)(a), which provided:
“For the purposes of determining, for the purposes of this Part, the amount of remuneration paid to a time worker by an employer in respect of time worked by the employee in any week there shall be added together -
(a) the total amount of any money payments made by the employer to the worker, on or before the relevant pay day, by way of remuneration in respect of time worked by him in that week ...”
29. The applicants stressed in the above connection that they were regarded as time workers at the material time.
30. The Wages Act 1986 made provision for the continued existence of wages councils, although with reduced powers. Under section 16, a worker could claim as additional remuneration the difference between a statutory minimum set by a wages council and the amount he was actually paid under contract.
31. Under section 1 of the Wages Act 1986 (now re-enacted in section 13 of the Employment Rights Act 1996), employers were prevented from making deductions from the wages properly payable to their employees, save in certain defined circumstances and, in particular, where the employee had given prior consent to the deduction in writing.
32. In Saavedra v. Aceground Ltd t/a Terazza Est ([1995] Industrial Relations Law Reports 198), the Employment Appeal Tribunal held that a restaurant owner who kept for himself a proportion of the sums paid by customers as a service charge had contravened section 1 of the Wages Act 1986. Whilst it was at the restaurant owner’s discretion how the tronc was allocated, this did not extend to permitting him to allocate some of the money to himself.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-61957
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SULEYMAN YILDIRIM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1968 and is currently detained in Batman “E” Type Prison.
10. The facts of the case, as submitted by the parties, may be summarised as follows.
11. On 2 September 1997 the applicant was arrested in Istanbul on suspicion of membership of an illegal organisation, namely the PKK. 4,000 German Marks and 2,600 US Dollars in cash were found in his possession. During his questioning at the Istanbul Police Headquarters, the applicant stated that he had joined the PKK in 1992 and that the money found in his possession at the time of his arrest had been given to him by the PKK to obtain a false passport. He also added that he had been trained in Syria and that he had carried out activities on behalf of the PKK in Germany, the Netherlands and France.
12. On 3 September 1997 the applicant’s detention period was extended for two days with the permission of the public prosecutor at the Istanbul State Security Court.
13. On 6 September 1997 the applicant was handed over to the Siirt Police Headquarters in whose jurisdiction the applicant had allegedly committed a number of offences. On the same day the Siirt public prosecutor authorised the applicant’s detention for a further two days.
14. On 7 September 1997 a statement was taken from the applicant by the Siirt Police. The applicant reiterated the confessions he had made in his statement at the Istanbul Police Headquarters.
15. The applicant was subsequently handed over to the Batman Police in whose jurisdiction he had allegedly carried out certain illegal activities. On his arrival in Batman the applicant was given a medical examination by a doctor. No signs of ill-treatment were observed on his body according to the medical report drawn up on 7 September 1997.
16. On 8 September 1997, at the request of the Batman public prosecutor and without the applicant being brought before him, a judge at the Batman Magistrates’ Court in Criminal Matters authorised the applicant’s detention until 12 September 1997.
17. On 11 September 1997 a statement was taken from the applicant by the Batman Police. The applicant gave a detailed account of his involvement within the PKK and of the activities he had carried out on behalf of that organisation. He further described the structure of the PKK in detail.
18. On 12 September 1997 the applicant gave a statement before the Batman public prosecutor. He maintained that his police statements were correct and that he had nothing to add to them.
19. On the same day the applicant was taken before the Batman Magistrates’ Court in Criminal Matters and subsequently remanded in detention.
20. On 2 October 1997 the public prosecutor filed an indictment with the Diyarbakır State Security Court against the applicant and requested the court to sentence him pursuant to Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.
21. In the proceedings before the Diyarbakır State Security Court, which was composed of three judges including a military judge, the applicant mainly repeated the statements he had made to the police.
22. In a supplementary indictment submitted to the trial court on 30 May 2000, the prosecutor accused the applicant of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State’s control. He requested the court to sentence the applicant in accordance with Article 125 of the Criminal Code.
23. On 2 November 2000 the Diyarbakır State Security Court found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. Taking into account the applicant’s good conduct during the trial, the death penalty was commuted to a life sentence.
24. The applicant’s appeal against the judgment was rejected by the Court of Cassation on 22 May 2001.
25. A full description of the relevant domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Nuray Şen v. Turkey (no. 41478/98, §§ 13-16, 17 June 2003).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-57536
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF MATHIEU-MOHIN AND CLERFAYT v. BELGIUM
IMPORTANCE: 2
CONCLUSION: No violation of P1-3;No violation of Art. 14+P1-3
JUDGES: C. Russo;N. Valticos
TEXT: 11. Mrs. Mathieu-Mohin, who is a French-speaking Belgian citizen, currently lives in Brussels but was living in Vilvoorde (Vilvorde) at the time she made her application to the Commission. Vilvoorde is in the administrative district of Halle-Vilvoorde (Hal-Vilvorde), in the Flemish Region, and in the electoral district of Brussels (see paragraphs 19, 21 and 37-38 below).
The applicant had been elected by direct universal suffrage in the latter constituency and at the time sat in the Senate, one of the two Houses of the national Parliament. As she had taken the parliamentary oath in French, she could not be a member of the Flemish Council (see paragraphs 16, 27 and 30 below). She was, on the other hand, a member of the French Community Council, but not of the Walloon Regional Council (see paragraphs 27 and 30 below).
She was not re-elected on 8 November 1981 and did not stand in the general election of October 1985.
12. Mr. Clerfayt, who is likewise a French-speaking Belgian national, was living - and still lives - in Sint-Genesius-Rode (Rhode-Saint-Genèse). Like Vilvoorde, this municipality is in the administrative district of Halle-Vilvoorde and the electoral district of Brussels. Together with five other localities on the outskirts of the capital, however, it was given a "special status" by Parliament because of its large number of French-speaking inhabitants (see paragraph 37 below).
Mr. Clerfayt was from the outset active in the ranks of the Brussels French-Speakers’ Democratic Front. Since 1968 he has sat in the national Parliament - in the House of Representatives - as a member for the electoral district of Brussels. He took the parliamentary oath in French, which prevents him from belonging to the Flemish Council; on the other hand, he was and is a member of the French Community Council, but not of the Walloon Regional Council.
13. On 28 November 1983, Mr. Clerfayt sought leave from the Speaker of the House of Representatives to put a question to the member of the Flemish Executive (see paragraph 27 below) responsible for matters relating to regional planning, land policy, subsidised housing and compulsory purchase in the public interest, on a number of relevant issues arising in Sint-Genesius-Rode and in other municipalities in the electoral district of Brussels. The next day, leave was refused him on the ground that his request was inadmissible. He accordingly approached the Speaker of the Flemish Council on 13 December, who gave him a similar reply on 15 December.
14. The Kingdom of Belgium was initially conceived, in 1831, as a unitary State although divided into provinces and municipalities with a large degree of autonomy (Articles 1, 31 and 108 of the Constitution of 7 February 1831), but it is gradually moving towards a federal pattern of organisation.
This process of change, in which the main landmarks have been the constitutional reforms of 24 December 1970 and 17 July 1980, is not yet over. Apart from a number of repercussions on central national institutions, it has been reflected in the creation of Regions and Communities; and the position of elected representatives and electors resident in the administrative district of Halle-Vilvoorde has not remained unaffected.
15. Legislative power at national level is exercised jointly by the King and both Houses of Parliament, i.e. the House of Representatives and the Senate (Article 20 of the Constitution). The House of Representatives has 212 members elected for four years by direct universal suffrage in a compulsory secret ballot, under a system of proportional representation (Articles 47, 48, 49 § 1 and 51); the Senate’s membership is made up of 106 Senators elected in the same manner, together with a further number either elected by the provincial councils or else co-opted, again for four years (Articles 53-55).
As regards the House of Representatives, each electoral district has as many seats as the number of times by which its population can be divided by the national factor, which is calculated by dividing the population of the Kingdom by 212; the remaining seats are allotted to the districts with the largest surplus unrepresented populations (Article 49(2)). In order to win a seat, a candidate must poll about 20,000 votes, the exact quota varying slightly from one constituency to another.
16. For certain decisions specified in the Constitution, the elected members of each House are divided into a French-language group and a Dutch-language group in the manner prescribed by law and irrespective of the language each member personally speaks (Article 32 bis of the Constitution).
In the House of Representatives the French-language group includes as of right the members elected by the constituencies of the French-speaking region and by the constituency of the district of Verviers, while the Dutch-language group contains the members elected by the constituencies of the Dutch-speaking region (see paragraph 19 below); the members elected in the Brussels electoral district belong to one or the other group, according as they choose to take the parliamentary oath in French or in Dutch (section 1(1) of the Act of 3 July 1971).
Similar criteria apply to the language groups in the Senate (section 1(2) of the same Act).
17. The language groups have a role to play, inter alia, in the making of various decisions - decisions to withdraw a territory from the scheme of division into provinces in order to give it a special status (Article 1 of the Constitution, last paragraph); to rectify or otherwise alter the boundaries of the language regions (Article 3 bis); to lay down the composition and manner of functioning of the Community Councils and Executives (Article 59 bis § 1 in fine); to specify the scope of the powers of the aforesaid Councils (Article 59 bis §§ 2 in fine, 2 bis in fine and 4 bis); and to determine the powers and territorial jurisdiction of regional institutions (Article 107 quater, last paragraph). In such cases the Constitution requires "a majority of votes in each language group of each House"; further conditions are that "the majority of the members of each group is present" and that "the total of the affirmative votes cast in the two language groups amounts to at least two-thirds of the votes cast".
In addition to this there is the system - sometimes called the "alarm bell" - provided for in Article 38 bis of the Constitution:
"Other than for the budgets and for Acts requiring a special majority, a reasoned motion signed by at least three-quarters of the members of one of the language groups may be moved after the report has been tabled and before the final vote is taken in public session, stating that the provisions of a specified Bill are likely to be seriously detrimental to relations between the Communities.
In that case the parliamentary proceedings shall be suspended and the motion referred to the Cabinet, which shall give a reasoned opinion on it within thirty days and request the House concerned to vote either on this opinion or on the Bill, possibly in amended form.
This procedure shall not be used more than once by the members of a language group in respect of any one Bill."
These provisions are designed primarily to protect the speakers of the country’s minority language, i.e. French.
On the other hand, membership of a language group does not entail any obligation to use the language concerned during parliamentary debates. Furthermore, by the terms of Article 32 of the Constitution, members of the House of Representatives and the Senate "represent the nation" as a whole, "not solely the province or subdivision of a province which has sent them to Parliament".
18. As to the Cabinet, it shall have "as many French-speaking Ministers as Dutch-speaking ones", "with the possible exception of the Prime Minister" (Article 86 bis of the Constitution).
19. By Article 3 bis of the Constitution, added on 24 December 1970, Belgium is divided into "four language regions: the French-language region, the Dutch-language region, the bilingual region of Brussels-Capital and the German-language region"; each municipality "shall belong to one of these".
The first language region comprises the provinces of Hainaut, Luxembourg and Namur, the province of Liège excluding the municipalities in the German-language region, and the district of Nivelles in the province of Brabant; the second region contains the provinces of Antwerp, West Flanders, East Flanders and Limbourg and also the districts of Halle-Vilvoorde - in which Vilvoorde and Sint-Genesius-Rode lie (see paragraphs 11 and 12 above) - and Louvain in Brabant; the third, Brussels and eighteen municipalities on its outskirts; and the fourth, twenty-five of the municipalities in the district of Verviers (sections 3-6 of the Acts on the use of languages in administrative matters, consolidated on 18 July 1966, hereinafter referred to as "the 1966 consolidated Acts").
20. The language regions serve to define the territorial scope of Acts on the use of languages in administrative and judicial matters as well as in education; they do not have their own powers or institutions. In this they differ from the Regions - sometimes described as "political" - which were set up under the constitutional reform of 24 December 1970.
21. By Article 107 quater, first paragraph, of the Constitution, Belgium has "three Regions: the Walloon Region, the Flemish Region and the Brussels Region"; there is no "German Region".
The Special Act on Institutional Reform of 8 August 1980 ("the 1980 Special Act") "transitionally" demarcates the territory of the first two Regions: the Flemish Region comprises exactly the same provinces and administrative districts as the Dutch-language region, while the Walloon Region includes, in addition to the provinces of Hainaut, Luxembourg and Namur and the district of Nivelles, the whole of the province of Liège not excluding the municipalities of the German-language region (section 2 of the 1980 Special Act).
On the other hand, the 1980 Special Act makes no mention of the Brussels Region. The boundaries of this continue to be governed by the final paragraph of section 1 of the Act, consolidated on 20 July 1979, "establishing temporary Community and regional institutions"; they correspond to the "territory of the administrative district of Brussels-Capital".
22. The 1980 Special Act was passed with the special majorities required under Articles 59 bis and 107 quater of the Constitution (see paragraph 17 above) and which would be required for any subsequent amendments. In the Senate it was passed by 137 votes to 22, with 3 abstentions, and in the House of Representatives by 156 votes to 19, with 5 abstentions.
23. Lastly, Article 3 ter, first paragraph, of the Constitution, which dates back to the revision of 17 July 1980, establishes "three Communities: the French Community, the Flemish Community and the German-speaking Community", all of which - like the Walloon and Flemish Regions - have legal personality (section 3 of the 1980 Special Act).
24. Section 6(1) of the 1980 Special Act was enacted to implement Article 107 quater, second paragraph, of the Constitution and it sets out, at length and in detail, the competence of the Walloon and Flemish Regions in matters of regional planning, the environment, rural renewal and nature conservation, housing, water policy, economic policy, energy policy, subordinate authorities, employment policy and applied research.
It does not apply to the Brussels Region, which continues to come under the national Parliament as regards regional matters or those which can be regarded as local (section 48 of the "ordinary" Act on Institutional Reform of 9 August 1980, taken together with section 2 of the "consolidated" Act of 20 July 1979).
25. Article 59 bis §§ 2, 2 bis and 3 of the Constitution confers powers on the French and Flemish Communities in cultural matters, education (with certain exceptions), co-operation between the Communities, international cultural co-operation, matters on which members of the public may correspond with the authorities in their own language even if it is not the local official language (matières "personnalisables") and - in some fields - language use. Sections 4 and 5(1) of the 1980 Special Act contain detailed provisions as to cultural matters and matières personnalisables; the latter relate to health policy, aid for individuals and applied scientific research. The German-speaking Community, to which little further reference will be made hereinafter, has slightly less extensive powers (Article 59 ter §§ 2-4 of the Constitution).
26. Article 107 quater, second paragraph, of the Constitution leaves it to Parliament to set up the necessary regional bodies.
Article 59 bis § 1, on the other hand, provides that the French Community and the Flemish Community shall each have a Council and an Executive. Under the following paragraph, these Councils and Executives "shall be able to exercise the powers of the Walloon Region and the Flemish Region respectively, in the circumstances and the manner prescribed by law".
27. The legislature has availed itself of this possibility in respect of the Flemish Region only. By section 1(1) of the 1980 Special Act, "the Council and the Executive of the Flemish Community", referred to as "the Flemish Council" ("de Vlaamse Raad") and "the Flemish Executive" ("de Vlaamse Executieve"), are vested with powers not only in respect of the Community matters listed in Article 59 bis of the Constitution but also, in the Flemish Region, in respect of the regional matters listed in Article 107 quater.
On the other hand, there is a Council and an Executive of the French Community for Community matters and a Walloon Regional Council and Executive for regional matters (section 1(2) and (3) of the 1980 Special Act). Subsection 4 of section 1 of the 1980 Special Act admittedly authorises the two Councils to "decide by common accord" that "the Council and Executive of the French Community" shall exercise, in the Walloon Region, "the powers of the regional institutions in respect of the matters referred to in Article 107 quater of the Constitution", but it has not been applied hitherto.
28. The Brussels Region continues for the time being to be regulated by the consolidated Act of 1979 which has been referred to previously. It does not have any legislative assembly similar to the Flemish Council or the Walloon Regional Council or any executive elected by such an assembly; it has only a "ministerial committee" appointed by royal decree (section 4).
According to the Government, this is a "‘wait-and-see’ situation". In 1980, the Legislation Section of the Conseil d’Etat, which had been asked for its opinion, expressed the view that the Bill that was to become the 1980 Special Act was "constitutionally admissible only on condition that implementation of Article 107 quater [of the Constitution] in respect of the Brussels Region is merely postponed and not abandoned and that failure to implement it does not continue beyond a reasonable time".
In a statement on 29 November 1985, the government elected the previous month made it clear that the Study Centre for Reform of the State (Centre d’études pour la réforme de l’État) would have to "pay particular attention to the problems of Brussels". The Study Centre was set up under a royal decree of 14 March 1983 and is staffed by parliamentarians and practising or former university teachers of constitutional law. Its remit is to prepare the ground for the "continuation, amendment and improvement of reform of the State".
29. The Constitution indicates only, in Article 59 bis § 1 in fine (French and Flemish Communities), Article 59 ter § 1, second sub-paragraph (German-speaking Community), and Article 107 quater, second paragraph (Regions), that the Councils shall consist of elected delegates.
When required to prescribe how these were to be appointed, the legislation provided for two consecutive transitional periods designed to ease the change to a permanent system. The first period, during the course of which the application to the Commission was lodged (5 February 1981), ended with the complete renewal of both Houses of Parliament on 8 November 1981; the second period, which is not yet over, will end once Articles 53 and 54 of the Constitution, concerning the Senate, have been revised.
30. During the first transitional period the Flemish Council and the French Community Council comprised the members of the Dutch- and French-language groups of the two Houses respectively; the Walloon Regional Council was composed of those members of the same French-language groups who were elected either in the provinces of Hainaut, Liège, Luxembourg or Namur, or alternatively in Brabant or by the Senate if, additionally, they were resident in the Walloon Region on the day of their election (section 28(1) of the 1980 Special Act).
31. For the duration of the second transitional period, which has not yet ended, the Flemish Council, the French Community Council, and the Walloon Regional Council consist respectively of the members of:
- the Dutch-language group in the House of Representatives and, if they have been directly elected by the electorate, in the Senate;
- the French-language group in the House of Representatives and, subject to the same condition, in the Senate; and
- the French-language group in either House, provided that they are Representatives or Senators directly elected in the provinces of Hainaut, Liège, Luxembourg or Namur or in the district of Nivelles.
This is the provision made in section 29 of the 1980 Special Act, to which the applicants’ complaints are primarily directed (see paragraph 44 below). The section was passed by the special majorities required under Articles 59 bis and 107 quater of the Constitution. In the Senate it was passed by 127 votes to 19, with 4 abstentions, and in the House of Representatives by 160 votes to 16, with 2 abstentions.
32. Once the permanent system has come into force, the three Councils will consist solely of members of the Senate directly elected by the electorate, viz.:
- the Senators of the Dutch-language group in the case of the Flemish Council; and
- the Senators of the French-language group in the case of the French Community Council and, if they were elected in the provinces of Hainaut, Liège, Luxembourg or Namur or in the district of Nivelles, in the case of the Walloon Regional Council (sections 24 and 25 of the 1980 Special Act).
33. The first paragraph of section 50 of the 1980 Special Act makes a special provision in respect of the "members of the Flemish Council elected by the constituency for the Brussels district and who, for as long as that electoral district shall comprise [as it does today (see paragraph 38 below)] several administrative districts, are resident in the Brussels-Capital bilingual region on the day of their election": although they are on the same footing as their colleagues in Community matters, they "shall not vote within the Flemish Council on matters for which the Flemish Region has responsibility".
34. The three Executives are elected by the Councils from among their own members (sections 59 and 60 of the 1980 Special Act). The Flemish Executive has nine members, the French Community Executive three and the Walloon Regional Executive six; at least one member of the Flemish Executive and the French Community Executive "shall belong to the Brussels-Capital bilingual region" (section 63).
"Whenever the Flemish Executive discusses matters for which the Flemish Region has responsibility, any members elected by the constituency of the Brussels district and who, for as long as that electoral district shall comprise several administrative districts, are resident in the Brussels-Capital bilingual region on the day of their election shall sit only in an advisory capacity" (section 76(1)).
35. The Brussels Region Ministerial Committee (see paragraph 28 above) consists of three members appointed "by royal decree after deliberation in Cabinet" and not elected by an assembly. The members are: one Minister, who acts as Chairman, and two Ministers of State "one of whom shall be from a different language group from the [Chairman’s]" (section 4, first paragraph, of the 1979 consolidated Act).
36. The French and Flemish Communities, like the Walloon and Flemish Regions, have power to issue decrees, and this power is exercised jointly by their respective institutions (Article 26 bis and Article 59 bis §§ 2, 2 bis and 3 of the Constitution, sections 17 and 18 of the 1980 Special Act); additionally, their Executives have power to make regulations (section 20 of the 1980 Special Act). The Executives each work in only one language (French or Dutch, as appropriate), without interpreters for the other language.
A decree has "the force of law" and "may abrogate, supplement, amend or replace existing provisions of law" (section 19(2) of the 1980 Special Act). The constitutional reforms of 1970 and 1980 thus resulted in the rule-making function being shared by three distinct legislative bodies: the national Parliament, the Community Councils and the Regional Councils.
Subject to a number of exceptions, the French Community Council’s decrees and, in Community matters, those of the Flemish Council apply in the French-language region and the Dutch-language region respectively, "and also to institutions established in the Brussels-Capital bilingual region which, by reason of their activities, must be regarded as belonging exclusively to one of the Communities" (Article 59 bis §§ 4 and 4 bis of the Constitution); the Walloon Regional Council’s decrees and, in regional matters, those of the Flemish Council apply "in the Walloon Region or the Flemish Region, as appropriate" (section 19(3) of the 1980 Special Act); and the decrees of the Flemish Council indicate whether "they regulate any of the matters referred to in Article 59 bis or in Article 107 quater of the Constitution", in other words Community or regional matters (section 19(1), second paragraph, of the 1980 Special Act).
By Article 107 ter of the Constitution, "the procedure for the avoidance of conflict between statutes, decrees and the rules referred to in Article 26 bis, and between different decrees or different [rules] shall be prescribed by law". "For the whole of Belgium there shall be a Court of Arbitration" responsible for resolving such conflicts and whose membership, jurisdiction and manner of functioning is to be laid down by law (Act of 28 June 1983).
37. The administrative district of Halle-Vilvoorde was created in 1983, and today it comprises the municipalities of the former administrative district of Brussels, excluding those in the bilingual district of Brussels, but including the six "peripheral municipalities with special status", of which Sint-Genesius-Rode is one (sections 3(2), 7 and 23-31 of the 1966 consolidated Acts).
Halle-Vilvoorde comes within the Dutch-language region and the Flemish Region and thus under the authority of the Flemish Council and Executive, and is accordingly not subject to the authority of the French Community institutions or those of the Walloon Region (see paragraphs 19, 21 and 36 above). It nevertheless contains a sizable French-speaking minority: according to the applicants (whose figures were not disputed by the Government), at least 100,000 people out of a total population of 518,962 at 1 January 1982. The French-speakers are even claimed to be in the majority in the six "peripheral municipalities", and the Belgian State is alleged to have acted against their wishes in hitherto refusing to incorporate these municipalities into the Brussels Region.
38. Ordinarily, electoral districts in Belgium correspond to administrative ones (Article 87 of the Electoral Code). There is one exception, however. The administrative districts of Brussels-Capital and Halle-Vilvoorde together form a single electoral district for parliamentary and provincial elections, with Brussels as the principal town (section 3(2), second paragraph, of the 1966 consolidated Acts). The votes cast in the two administrative districts are consequently counted together, and it is impossible to distinguish between candidates elected by the one district and those elected by the other. The applicants claim that the French-speaking voters in the Halle-Vilvoorde district can expect - given their numbers and the statutory quota (see paragraphs 15 and 37 above) - to return three or four members to the House of Representatives by their own votes alone.
In the general election of 8 November 1981 there were 999,601 registered voters in the Brussels electoral district, who had to elect 34 Representatives and 17 Senators (Royal Decree of 1 December 1972 and Act of 19 July 1973).
39. Nothing prevents French-speaking candidates - whether resident in Halle-Vilvoorde or not - from standing for election in that district, or the voters - whether French-speaking or not - from voting for them. If they are elected, they may take the parliamentary oath in French or Dutch as they wish, irrespective of the language they personally speak (see paragraph 16 above).
If they take the oath in French (as the applicants did), their membership of the French-language group in the House of Representatives or the Senate entitles them to sit on the French Community Council (which has no responsibility for the district of Halle-Vilvoorde) but not on the Flemish Council - whether exercising its Community or its regional functions - nor on the Walloon Regional Council (see paragraphs 30-32 and 36 above).
Conversely, if they take the oath in Dutch, they will be members of a Dutch-language group and will accordingly sit on the Flemish Council but not on the French Community Council nor on the Walloon Regional Council (see paragraphs 30-32 above); and they will lose the right to vote in a French-language group on those matters in respect of which the Constitution requires special majorities (see paragraph 17 above).
Correspondingly, the French-speaking voters in Halle-Vilvoorde cannot be represented on the Flemish Council other than by parliamentarians who have taken the oath in Dutch.
Candidates are not under any obligation to state in advance which language group they will join, and they do not usually do so.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-104574
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MOCZULSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+6-3
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1930 and lives in Warsaw.
6. On 4 June 1992 the Minister of Internal Affairs, Mr Antoni Macierewicz, submitted to Parliament and made public a “list of secret collaborators with the security services between 1945 and 1990”. The list, unofficially called “the Macierewicz list”, contained names of public officials who appeared in the archives of the Ministry and included the President and many Members of Parliament. The publication of the list sparked uproar in the Sejm, a Chamber of the Polish Parliament, which led to the fall of the government of Jan Olszewski a couple of hours later.
7. The applicant, who had been a Member of Parliament, appeared on the list.
8. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19441990 osób pełniących funkcje publiczne; “the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime.
9. On 26 March 1999 the applicant applied to the court to institute the socalled “autolustration” proceedings under section 18a § 3 of the Lustration Act. He submitted his lustration declaration, in which he stated that he had not been an intentional and secret collaborator with the secret services.
10. The applicant was the first of many persons from the Macierewicz list who applied for autolustration claiming that they had not been secret collaborators with the communistera secret services. In some cases the lustration courts agreed and cleared the name of the person concerned.
11. On 6 May 1999 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings in the applicant’s case.
12. On 6 November 2001 the Court of Appeal gave a judgment in which it found that his lustration declaration had been truthful and that the applicant had not been an intentional and secret collaborator with the secret services. The panel of the court was composed of three judges.
13. The Commissioner of the Public Interest (Rzecznik Interesu Publicznego) appealed against the judgment.
14. On 30 July 2002 the Warsaw Court of Appeal, acting as the secondinstance lustration court allowed the appeal and remitted the case. The court was constituted of a panel of three judges which included judge R.K.
15. On 6 April 2005 the Warsaw Court of Appeal acting as the firstinstance lustration court, found that the applicant had been an intentional and secret collaborator with the security services between 1969 and 1977.
16. The applicant appealed against the judgment.
17. On 12 September 2006 the Warsaw Court of Appeal dismissed the appeal and upheld the judgment. The court was constituted of a panel of three judges which again included Judge R.K.
18. The applicant lodged a cassation appeal complaining inter alia about the lack of impartiality of Judge R.K. The applicant submitted that this judge had participated in the preparation of his lustration proceedings and was a member of a lustration court between 1999 and 2000. The latter panel was later dissolved; nevertheless, these factors cast doubt on the judge’s impartiality particularly as he was a member of the panels giving judgment at the secondinstance.
19. The applicant’s cassation appeal was dismissed on 17 April 2008 by the Supreme Court (Sąd Najwyższy). The Supreme Court examined inter alia the applicant’s complaint that Judge R.K. had participated in his trial at the first and, on two occasions, the second instance. It dismissed the argument that such participation had given rise to doubts regarding his impartiality, finding that the judge in question had not been a member of the panel that had given a decision at first instance. As regards the applicant’s complaint that Judge R.K. had been a member of the panel of the second-instance court twice, the court noted that, according to the domestic law, such judge was not ex lege excluded from dealing with the case. It was however open to the party having doubts as to the lack of impartiality of the judge to challenge him or her during the proceedings; the applicant had failed to do that. Since the applicant accepted the composition of the second-instance court which gave the judgment on 12 September 2006, he cannot effectively raise doubts as to the lack of impartiality of one of the judges at the cassation appeal stage.
20. The applicant was barred from being a Member of Parliament for a period of ten years in application of the 1997 Lustration Act.
21. The judgment was notified to the applicant’s representative in June 2008.
22. The relevant law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, § 2739, ECHR 2007V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-22359
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: LARIOSHINA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicant is a Russian national, born in 1918. She lives in Ardatov, Republic of Mordoviya of the Russian Federation.
The applicant receives her old-age pension and certain other social benefits from the social security authorities. At the time when the applicant lodged the application the total amount of the social payments that she received was 653 Russian roubles per month.
She claimed that from 1995 to 1998 the amount of these benefits had not been properly calculated. In particular, she alleged that during this period she had been entitled to a special benefit as a widow of a Second World War participant, in accordance with a statute of 7 May 1995 (see the ‘Relevant domestic law’ part below). She applied to the Ardatov District Court of the Mordoviya Republic, claiming pecuniary and non-pecuniary damages in this respect.
On 11 November 1998 the court dismissed the action on the ground that the applicant had been entitled to the social benefit in question, but that before July 1998 she had not applied for it in accordance with the procedure established by that law. The court also noted that since July 1998 the applicant had received the claimed benefit. On 29 December 1998 the Supreme Court of the Mordoviya Republic dismissed the applicant’s appeal against the judgment, finding that the lower court had properly decided the case.
The Russian Constitution (Article 39) and the State Pensions Act entitle a person to an old-age pension, the amount of which depends on the employment and related activities record.
The Act of 7 May 1995 entitles Second World War participants and their widows to additional monthly payments.


ITEMID: 001-4856
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: A.G. AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The first applicant is an Iranian national, born in 1961 in Ajab-Shahr, Iran. He is currently living in Kastamonu, Turkey, with his wife (the second applicant) and their three children (the remaining applicants). His wife and children are all Iranian nationals. The family are subject to a deportation order under which they are to be expelled to Iran. The applicants are represented before the Court by the Iranian Refugees’ Alliance in collaboration with Rights International, both New York-based organisations.
The facts, as presented by the applicants, may be summarised as follows.
The first applicant was an activist in the Iranian People Fedaee Guerrillas (IPFG), a Marxist-Leninist organisation, and had taken part in the 1978-79 uprising against the Shah of Iran. IPFG’s opposition to the Islamic government installed after the uprising led to the organisation being banned and its members arrested and executed.
In August or September 1981, the applicant was shot and wounded in the leg when trying to evade an arrest operation carried out by the Iranian security forces against opponents of the regime. He was subsequently detained without trial for eighteen months in a prison in the town of Tabriz. The first applicant claims that during his detention he was severely and frequently tortured in order to compel him to confess to his illegal political activities, including by means of mock executions and beatings. He was given a summary trial and sentenced to twenty-eight months’ imprisonment. Following his release in early 1984, he moved to Tehran where he lived under another name and continued his activities in the IPFG. He married the second applicant who had been involved in a branch of the IPFG and had been arrested in 1981 along with her brother. Their three children were born between 1985 and 1990. The family had to change addresses frequently because of fear of arrest.
Fearing that the authorities would discover his true identity and whereabouts and that he would be arrested and tortured again, the first applicant determined to flee Iran with his family.
The applicant’s wife and children entered Turkey legally on 21 July 1995. On 24 July 1995 she was interviewed by the Turkish branch of the Office of the United Nations High Commissioner for Refugees (UNHCR). On the same day the family was granted a temporary residence permit by the Turkish authorities with instructions to reside in the town of Kastamonu. On 15 January 1996 the second applicant was notified by the UNHCR that her asylum claim had been rejected and was subsequently served with a deportation order by the Turkish authorities. Following her appeal against the execution of the order, the authorities agreed on 24 July 1996 to extend the family’s residence permit for another three months.
On 4 March 1996 the first applicant entered Turkey illegally and on 6 March 1996 he lodged a request with the Ankara office of the UNHCR for political refugee status. At his interview, which was conducted in the absence of an interpreter, he maintained that he was a member of the IPFG and was wanted by the Iranian authorities.
The applicant was subsequently interviewed by the Turkish authorities, again without the assistance of an interpreter, and was granted a temporary residence permit with instructions to live in the Turkish-Iranian border town of Van. On 29 July 1996 the authorities authorised the first applicant to join his family in Kastamonu for a period of six months and he moved there the following day.
On 24 July 1996 the UNHCR interviewed the first and second applicants separately. The second applicant alone was provided with an interpreter. On 29 July 1996 the UNHCR rejected their asylum claims and considered that they were on that account ineligible for resettlement in a third country.
Amnesty International appealed successfully to the UNHCR in January 1997 to reconsider the first applicant’s case, which they did. However their decision remained unchanged.
On 17 February 1997 the Ministry of the Interior served a deportation notice on the first applicant ordering him and his family to leave Turkey within fifteen days. On 19 February 1997 the applicant requested the authorities to review their decision. Having regard to the fact that the Commission had acceded to the first applicant’s request for interim measures under Rule 36 of its Rules of Procedures, the validity of the family’s residence permit was extended to December 1997. The Commission declared the first applicant’s application inadmissible on 18 September 1997.
On 17 December 1997 the Ministry of the Interior ordered the applicant and his family to leave Turkey. The applicants were informed of this decision on 30 December 1997.
On 14 January 1998 the applicants contested this decision. On 26 January 1998 the Ministry of the Interior rejected their appeal and instructed the Kastamonu police to have the applicants escorted to the border.
On 11 February 1998 the applicants filed proceedings before the Ankara Administrative Court, requesting a stay in the execution of the expulsion decision. On 4 March 1998 the court, on the basis of the dossier submitted by the applicants, rejected their request.
Following his request to the Istanbul Human Rights Foundation, the first applicant was examined by a panel of doctors. According to the applicants, the doctors found that the first applicant had behavioural symptoms which were consistent with his claim that he had been ill-treated when in detention.