ITEMID: 001-23238
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: FEDERATION CHRETIENNE DES TEMOINS DE JEHOVAH DE FRANCE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant association [the Fédération Chrétienne des Témoins de Jéhovah de France – the Christian Federation of Jehovah’s Witnesses in France] was founded in accordance with the provisions of section 20 of the Act of 9 December 1905 on the separation of the churches and the State. It constitutes the Church of Jehovah’s Witnesses. It was represented before the Court by Mr A. Garay and Mr P. Goni, both of the Paris Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant association provides representation and legal protection for 1,149 local associations for the religion of Jehovah’s Witnesses. Its purpose is to “contribute to the practice of the Jehovah’s Witnesses’ religion, meet its costs and provide for its maintenance. It is committed to coordinating and developing the activities of the member associations, whose purpose is to ensure that Jehovah’s Witnesses can worship and can practise their faith.” (Article 2 of its articles of association). It “shall act to protect and defend Jehovah’s Witnesses from attacks on their religious convictions, in particular by combating any form of segregation or ostracism. The Federation may act by all legal means and, in particular, by taking court proceedings, to protect both individual interests and the collective interests of its members.” (Article 3).
There have been Jehovah’s Witnesses in France since the beginning of the twentieth century and, according to the applicant association, they are the country’s third Christian denomination. At the most recent celebration of the Memorial of Christ’s death on 1 April 1999, 249,918 believers, including both regular and occasional worshippers, gathered in their places of worship.
Since 1906, when the first local association was registered at a prefecture, Jehovah’s Witnesses have been able to exercise their religion in France freely and in peace.
On 29 June 1995 the National Assembly adopted a draft resolution for the establishment of a parliamentary commission of inquiry “to study the phenomenon of sects and, if appropriate, propose changes to existing legal provisions”. The commission was set up on 11 July 1995 and decided to hold its hearings in camera. It held twenty hearings “lasting for a total of twenty-one hours”. On 22 December 1995 it published Report no. 2468, entitled Les sectes en France (“Sects in France”) and better known as the Gest/Guyard Report.
In the report the parliamentarians acknowledged that it was difficult to define the word “sect”. On page 14 they stated: “The difficulty of defining the word “sect”, which will nevertheless be used in the rest of this report, led the Commission to consider a whole range of criteria, each of which could give rise to lengthy discussion. It has therefore preferred, at the risk of offending many people’s susceptibilities or making an incomplete analysis of the real situation, to adopt the ordinary meaning that the public attributes to the word.”
Among the indicators “from which it is possible to infer that there might be some truth in suspicions which lead people to describe as a sect a movement presenting itself as a religious movement” the commission decided to adopt the criteria used by the Police Intelligence Branch (Direction centrale des Renseignements Généraux), namely mental destabilisation, exorbitant financial demands, inducing people to sever their ties with their home environment, bodily harm, indoctrination of children, more or less antisocial views, prejudicing public order, numerous lawsuits, possible misuse of traditional financial channels and attempts to infiltrate public authorities.
According to the Police Intelligence Branch, 172 movements had been identified as fulfilling one of its criteria of dangerousness. Those movements had been separately listed as “sects”. Jehovah’s Witnesses appear on the list, which was published as an integral part of the commission’s report.
The Gest/Guyard Report was widely circulated not only among public authorities (government, civil service, local councillors, etc.) but also among the public at large. A commercial version for the general public was published and distributed by a commercial company.
However, after submitting their report, the members of the National Assembly who had made up the first study group on sects undertook new activities with a view to broadening the investigations into sects.
An Interministerial Observatory on Sects was set up by a decree of 9 May 1996. This body, answerable to the Prime Minister, was charged with studying the phenomenon of sects and making proposals to the Government for improving the means of combating them. It was replaced on 7 October 1998 by the Interministerial Task Force for Action to Combat Sects, which is empowered to report offences committed by sectarian movements to public prosecutors where they are capable of being categorised as criminal offences.
On 15 December 1998 a new resolution intended to broaden investigations was adopted by the National Assembly. A new commission, chaired by Mr Jacques Guyard, the former rapporteur of the first commission, and with Mr Jean-Pierre Brard as its rapporteur, was given six months to carry out its inquiry. According to the report of proceedings in the National Assembly on 10 December 1998, Mr Guyard said:
“If the work carried out by the commission of inquiry in 1995 served a purpose, it was largely because the commission published a list of sectarian movements, giving it a degree of publicity which nobody dared to do for fear of being prosecuted. We accepted that responsibility collectively, irrespective of our political sympathies, and that helped to give the information wide circulation. I am pleased that the 1995 Report is the Assembly’s best-selling report. More than ten thousand copies have had to be printed to meet the demand from members of the public who wanted to be informed.”
The new commission expressly confirmed that it was continuing the work carried out by the 1995 commission. Its aim was to examine the financial, property and tax situation of sects as well as their business activities and their relations with business and financial circles. Its report was registered on 10 June 1999.
Initially the commission sought help from the Police Intelligence Branch. Police investigators asked associations for important documents and sensitive information informally and even orally without giving details. The parliamentary commission sent a questionnaire to some sixty associations, including the applicant association, in a letter of 19 March 1999 requesting a reply by 24 April 1999 at the latest. The applicant association sent a comprehensive reply to the commission by the appointed date, together with nine boxes of documents.
The commission’s report, entitled “Sects and money”, was published on 17 June 1999; it is better known as the Guyard/Brard Report. In its conclusions the commission noted, in particular: “The right to be different must also be protected. However, it is unacceptable for the exercise of that right to jeopardise certain principles, chief among which is the right to protection of the weakest members of society. ... The preservation of freedom of conscience cannot be based on disregard for basic individual liberties – the freedom to come and go as we please, to own property and have the enjoyment of it, to keep ourselves fit and healthy, to be protected from abuses of power, to defend ourselves against damage to our pecuniary and non-pecuniary interests...” An annexe to the report contained information on the organisation, financial influence and economic network of thirty or so associations representative of sectarian movements, including the applicant association.
According to the applicant association, the commission’s report contained numerous inaccurate and defamatory statements about Jehovah’s Witnesses. For example, it was asserted that Jehovah’s Witnesses were engaged in criminal activities amounting to tax evasion (pages 219 to 224).
In a letter of 20 July 1999 to the Speaker of the National Assembly, the applicant association made a formal request for the parts of the Guyard/Brard Report that contained inaccuracies to be purely and simply deleted. It also sent the Speaker of the National Assembly a file on Jehovah’s Witnesses and their funding and the Guyard/Brard Report. The file contained documents analysing the allegations and the accusations disseminated in the parliamentary commission’s report under the responsibility of the National Assembly – accusations which the applicant association said were false. To date, the Speaker of the National Assembly has not taken any action on either of those letters.
The applicant association maintained that on the basis of the work carried out by the parliamentary commissions, the State had embarked on a policy of repression and oppression of the groups mentioned, in particular Jehovah’s Witnesses, the largest of them. It submitted that the following measures taken by the State had formed part of that policy:
(a) On 29 February 1996 the Minister of Justice had sent to Principal Public Prosecutors throughout the country a circular containing the list of “dangerous sects” that had been published in the Gest/Guyard Report, a list that had been supplied by the Police Intelligence Branch. The need to “combat” those movements was urged. The Minister of Justice requested Principal Public Prosecutors to “apply the existing law more strictly” and make full use of “the existing legal arsenal” by exercising “unfailing vigilance” and “particular severity”. They were also to consult anti-sect organisations for information purposes as some of the members of those organisations were former adherents of the groups referred to (Minister of Justice’s Circular no. 92 F24 C, 29 February 1996).
(b) On 9 May 1996 the State had issued a decree to set up an Interministerial Observatory on Sects. That body had been composed of representatives from most of the major government departments. Its purpose had been to assist the Prime Minister in his campaign against sects (Decree no. 96-387 of 9 May 1996).
(c) On 7 October 1998 the State had issued a decree to set up an interministerial task force on combating sects. The task force was empowered to train public officials to combat sects and inform the public about the dangers they posed (Decree no. 98-890 of 7 October 1998).
(d) On 1 December 1998 the Ministry of Justice, noting that it had not received a sufficient number of complaints about sects and was thus not in a position to prosecute them, had instructed Principal Public Prosecutors to work with anti-sect organisations to encourage complaints against minority groups. The aim of that collaboration had been to obtain information in order to prosecute individuals belonging to one of the 172 minority groups regarded as “dangerous sects” (Minister of Justice’s Circular, CRIM. 9811/G3, 1 December 1998).
(e) On 3 October 2000 the Ministry of Employment and Solidarity had issued Circular no. 2000-501 on abuses by sects. It laid down that Ministry’s administrative action when dealing with sectarian practices, clarifying its legal framework, and described the type of administrative organisation that had been adopted. It made direct reference to the criteria used by the 1996 parliamentary commission of inquiry for defining a sect.
The applicant association submitted that although the reports of parliamentary commissions were supposed to be merely information documents without any legal effect, that had not been true of the Gest/Guyard and Guyard/Brard reports. It alleged that the two reports had given rise to the following measures infringing rights and liberties:
(a) Refusals to grant the organisation exemption from property tax on its places of worship (in judgments delivered by the Clermont-Ferrand Administrative Court on 26 May 1999 and the Rennes Administrative Court on 12 May 1999).
(b) A major tax inspection from 1995 to 1997. (It had been established that Jehovah’s Witnesses’ activities were non-profit-making, disinterested and non-commercial.) As a consequence of the tax inspection, believers’ offerings received by the applicant association over the previous four years, totalling 297,403,534 French francs (or 45,335,904 euros), had been taxed at a rate of 108%.
(c) Refusal by the health-insurance office for the clergy to register members of the Christian Community of the Bethelites (one of the applicant association’s member associations), with explicit reference to the Guyard Report.
(d) An inspection by the social-security-contribution collection agency, the URSSAF, and an investigation by the labour inspectorate.
(e) The seizure on 6 June 1998, following the imposition of tax by the authorities, of all the movable and immovable property used by the applicant association.
(f) Investigations by the Police Intelligence Branch into all the local associations of Jehovah’s Witnesses.
As a consequence of the Gest/Guyard Report and the resulting recommendations, numerous administrative decisions had been taken that adversely affected the Jehovah’s Witnesses and some of their registered associations. For example, a series of measures had been taken on grounds that referred expressly to the Report, which maintained that Jehovah’s Witnesses were a “dangerous sect”:
(a) Local authorities had refused to let municipal rooms to local associations because they belonged to the applicant church, as in Lyons (15 September 1997 and 18 November 1999), Annecy (27 January 1998) and Saint-Genis-Laval (27 November 1998).
(b) State representatives had refused to renew the administrative certification of childminders who were Jehovah’s Witnesses, causing them to lose their jobs (administrative decisions by the councils of the départements of Cher (26 August 1996, 27 August 1997 and 5 June 1998), Pas-de-Calais (16 July 1997), Yonne (7 August 1997) and Haute-Marne (11 December 1998)).
(c) A mother’s custody and care of a child had been called in question on the sole ground that she was a Jehovah’s Witness (judgment of the Foix tribunal de grande instance, 5 October 1998).
(d) Local authorities had refused planning permission for places of worship (in municipal decisions of the mayor of Beuvillers (département of Moselle), 29 September 1997, and the mayor of Sainte-Hélène (département of Morbihan) on 26 June 1999).
(e) Fifty-six prefectures consulted by the main tax office in each of their départements had given a negative ruling on whether Jehovah’s Witnesses’ places of worship should be exempted from property tax.
(f) Judgments had been delivered in cases relating to press law in which the classification of offences as insult or defamation had been rejected because of an explicit reference by courts of first instance and courts of appeal to the Guyard Report (judgment of the Rennes Court of Appeal of 10 March 1998).
(g) On 15 November 1999 the governor of Bapaume Prison had refused to allow publications by the Jehovah’s Witnesses in the prison “in view of the sectarian nature of the movement as recognised by the parliamentary commission”.
(h) The authorisation for a childminder in Blagnac to mind a child in her care had been withdrawn because she was a Jehovah’s Witness.
(i) On 12 May 2000 the family-affairs judge at the Colmar tribunal de grande instance had made an order referring directly to the parliamentary reports of 1996 and 1998 (which described the movement as a sect), prohibiting a child’s father from making him take part in events organised by Jehovah’s Witnesses.
The applicant association further alleged that the Guyard Report had also given rise to a series of hostile reactions to Jehovah’s Witnesses, including:
(a) Public impugning, by school parents’ associations, of teachers who were Jehovah’s Witnesses by means of leaflets and denunciation, calling for the teachers in question to be dismissed because they belonged to a “dangerous sect”.
(b) Criticism of the Jehovah’s Witnesses, who had been depicted as forming a “dangerous sect” in the course of awareness-raising activities and discussions on sects held in schools, with the result that the children belonging to that faith had been stigmatised and marginalised.
(c) The setting up of residents’ action groups objecting, often with the support of the local mayor, to the establishment in their community of Jehovah’s Witnesses wishing to build a place of worship.
(d) Damage to Jehovah’s Witnesses’ places of worship and intimidating and threatening letters.
(e) A veritable press campaign attacking the Jehovah’s Witnesses, who had been subjected to an avalanche of negative and detrimental articles (some 700 recorded between 1996 and 1999) and comments simply because they had been listed as a “dangerous sect” in the Gest/Guyard Report and accused of tax evasion in the Guyard/Brard Report.
Under the second paragraph of subsection (1) of section 6 of Ordinance no. 58-1100 of 17 November 1958 on the functioning of the parliamentary assemblies, commissions of inquiry “shall be formed to collect information on specific matters or on the management of public services or State-owned companies with a view to submitting their findings to the assembly which set them up”. The task of these commissions of inquiry comes to an end when they submit their report. The commissions may hold hearings, which are public unless the decision is taken that they should be held in private.
According to the applicant association, the decisions of parliamentary commissions of inquiry could not be challenged in the courts. Although their modus operandi was nowhere laid down, they had wide inquisitorial powers. They could arbitrarily decide to hold hearings in camera without any justification, and no appeal lay against such decisions. Evidence from doubtful sources could be gathered and even used against individuals or groups, who had no right to be heard in their own defence. Refusal to cooperate with a commission could lead to criminal proceedings resulting in fines and imprisonment. It was not possible to challenge either the procedure followed by such commissions or their findings (section 6 of Ordinance no. 58-1100 of 17 November 1958, as amended by Law no. 91-698 of 20 July 1991).
The applicant association observed more particularly that in the case of the Gest/Guyard and Guyard/Brard reports, parliamentary immunity meant that there was no domestic remedy that would enable it to put an end to the discrimination, the violation of freedom of conscience and the other alleged infringements of its believers’ fundamental rights by the State. There was no national authority which could deal with such a complaint.
The applicant association attributed the failure of its attempts to settle the case to the total immunity from legal proceedings enjoyed by parliamentary commissions. For example, on 7 March 1997 the rapporteur of the commission which adopted the Guyard/Brard Report, Mr Jean-Pierre Brard, a member of the National Assembly, wrote to the applicant association. In his letter he referred to “Jehovah’s Witnesses’ criminal nature” and suggested: “If you wish to establish contact with representatives of the State, I would strongly recommend the officers of the national police force or the members of the public prosecutor’s office of the département of Hauts-de-Seine.”
On 22 June 2000 the National Assembly adopted document no. 546 on a bill tabled by Mr Nicolas About, a member of the Senate, designed to strengthen preventive and punitive action against sectarian groups. This bill added an Article to the Criminal Code on the judicial dissolution of “any legal entity, whatever its legal form or purpose, which engaged in activities whose aim or effect was to bring about or exploit the psychological or physical dependence of persons taking part in [certain] activities”. It also included provisions placing restrictions on the establishment or advertising of sectarian groups (clauses 6 and 8 of the bill). The National Assembly further proposed an offence of mental manipulation but on the second reading of the bill in the Senate it was rejected. On the other hand, it was decided to supplement the offence of fraudulent abuse of a state of ignorance or weakness provided for by Article 313-4 of the Criminal Code, which currently appears in the part of the Code relating to interference with property and covers only minors and persons who are particularly vulnerable because of a physical or mental deficiency.
On 12 June 2001 Law no. 2001-504 “to strengthen preventive and punitive action against sectarian movements infringing human rights and fundamental freedoms” was enacted (it was published in Official Gazette no. 135 of 13 June 2001). Section 1 provides as follows:
“Any legal entity, whatever its legal form or purpose, which engages in activities whose aim or effect is to bring about, perpetuate or exploit the psychological or physical subjection of persons taking part in those activities shall be liable to dissolution as provided in this section where there have been final criminal convictions of the legal entity itself or of those who are de jure or de facto in control of it for one or other of the following offences: (1) Intentional or unintentional homicide, bodily harm or psychological injury; endangering life; deprivation of liberty; undermining human dignity; infringing personal rights; endangering minors; or interfering with the peaceful enjoyment of possessions...”
Section 20 of the Law added a new paragraph to Article 223-15, which provides as follows:
“A sentence of three years’ imprisonment and a fine of FRF 2,500,000 shall be imposed for the fraudulent abuse of the state of ignorance or weakness of minors, persons whose particular vulnerability, owing to their age, illness, disability, physical or mental deficiency or pregnancy, is obvious and known to the person committing the abuse, or persons in a state of psychological or physical subjection resulting from the exertion of serious or repeated pressure or techniques likely to affect their judgment, with the purpose of inducing the minors or persons concerned to act or fail to act in such a manner as to cause them serious harm...”
Other provisions restrict advertising by sectarian movements in the same circumstances and confer the rights of a civil party in criminal proceedings on any properly registered, State-approved association that proposes in its articles of association to protect and assist individuals or uphold individual and collective rights and freedoms.


ITEMID: 001-75458
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF JAVOR AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 4. The applicants were born in 1954, 1955, 1986 and 1990, respectively, and live in Budapest.
5. The applicants are husband and wife and their son and daughter. In December 1987 the parents travelled to Cuba on a trip organised by a travel agency. On 13 December 1987 the tourist group had dinner at a restaurant where they were served poisonous sea food. As a consequence, the muscles and the nervous systems of the first and the second applicant were seriously damaged which caused 67% disability.
6. In 1988 the first applicant brought an action against the travel agency in the Budapest II/III District Court claiming damages. The case was then transferred to the competent Pest Central District Court.
7. In an interim judgment (közbenső ítélet), on 23 March 1990 the District Court established the travel agency’s responsibility. After a hearing on 11 June 1993, in a partial judgment (részítélet) of 15 June 1993, it ordered the defendant to pay 600,000 Hungarian forints plus interest to the first applicant, but dismissed his claims for non-pecuniary damage.
8. In the continued proceedings, the District Court held hearings on 16 February, 11 May, 23 September and 9 December 1994, 7 July and 6 October 1995, 17 May 1996, and 9 May and 16 July 1997. The Government stated that further hearings took place on 16 January and 17 April 1998.
9. On 24 April 1998 the court delivered a decision ordering the defendant to pay damages and an allowance to the first applicant.
10. On appeal, on 10 December 1998 the Budapest Regional Court confirmed the first-instance decision. The applicant filed a petition for review on 27 January 1999.
11. On 30 March 2001 the Supreme Court dismissed the petition. This decision was served on 18 June 2001.
12. Meanwhile, on 14 January 1998 all four applicants brought an action in the Pest Central District Court against the travel agency claiming further damages. Subsequently, the case was transferred to the Budapest II/III District Court. On 15 November 1998 the applicants requested in vain that their case be retransferred to the Pest Central District Court in order to facilitate the proceedings.
13. The Budapest II/III District Court held hearings on 27 May 1999 and 19 May 2000. On 27 June 2000 it decided to transfer the case to the Buda Central District Court. However, the file was transferred to the Pest Central District Court by mistake. It therefore only reached the Buda Central District Court on 27 September 2000.
14. On 28 March 2001 the Buda Central District Court declared its lack of competence and transferred the case to the Budapest Regional Court.
15. On 29 June 2001 the Regional Court declared its lack of competence and transferred the file to the Supreme Court for the appropriate delegation.
16. On 17 February 2002 the Supreme Court appointed the Buda Central District Court to hear the case.
17. On 22 April 2002 the District Court established that the proceedings had been stayed since 28 March 2002 because the summonses could not be served on the plaintiffs.
18. On 18 October 2002 the court observed that the case had ceased to exist on 28 September 2002, ipso iure, after a stay of six months. This decision became final on 2 January 2003.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4625
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TOMCZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1919 and living in Skarboszewo.
A.
In 1959 the municipality, by way of an administrative decision, nationalised the farm belonging to the applicant’s father. On an unspecified later date the applicant’s father died and she obtained a judicial decision confirming that she had inherited his property.
In 1992 the Minister of Agriculture refused to allow the applicant's motion to have this decision annulled, considering that it was in conformity with the nationalisation laws applicable at the time when the decision had been issued.
The applicant lodged an appeal with the Supreme Administrative Court.
On 12 October 1992 the Supreme Administrative Court set the Minister’s decision aside.
On 30 April 1993 the Konin Regional Office declared the 1959 decision null and void, finding that it was in breach of substantive law as regards the criteria for nationalisation of agricultural property.
In October 1993 the farm was restored to the applicant.
Subsequently the applicant lodged a civil action against the State Treasury with the Konin Regional Court, claiming compensation for lost profits resulting from the fact that from 1959 to 1993 she could not use the farm and, consequently, did not realise profits therefrom.
On 22 July 1996 the court dismissed the applicant’s action. It had regard to Article 160 § 1 of the Code of Administrative Procedure, which provided for the liability of the State Treasury for actual damage caused by an administrative decision annulled on the ground of unlawfulness. The court observed that under the case-law of the Supreme Court this provision constituted the exclusive legal basis of State liability for damages caused by an administrative decision which was annulled on one of the grounds provided for in Article 156 of the Code. Thus, the provisions of Article 361 § 2 of the Civil Code, which provided for full compensation for damage, including actual damage and lost profits, were not applicable to the applicant’s case. Consequently, having regard to the fact that the damage claimed by the applicant was clearly covered by the notion of lost profits, the applicant’s claim had to be dismissed.
The applicant lodged an appeal against this decision, claiming that the judgment under appeal was in breach of substantive civil law in that the court had failed to apply Article 361 § 1 of the Civil Code.
On 24 October 1996 the Poznań Court of Appeal dismissed the applicant’s appeal. The court reiterated the analysis of the legal basis of the State Treasury’s liability for damage caused by an administrative decision which was subsequently quashed. The court further observed that it had been the intention of the legislator to limit the scope of the liability of the State to actual damage and that the lower court, when dismissing the applicant’s claim for lost profits, had correctly applied the relevant provisions of the Code of Administrative Procedure.
The applicant lodged a cassation appeal against this judgment, claiming that the Court of Appeal had wrongly interpreted Article 160 of the Code of Administrative Procedure.
On 6 March 1997 the Supreme Court dismissed the applicant’s cassation in appeal. It observed that under Article 160 § 1 of the Code of Administrative procedure, a person who suffered damage as a result of an annulled administrative decision could claim compensation for actual damage in administrative proceedings. It was only after a final administrative decision in this respect was given that a party could lodge an action with a court. Where such an action had been lodged before the administrative decision was given, the civil court should have rejected it on those grounds. In the present case, the lower courts had accepted that the applicant pursued her compensation claim in two separate fora, civil and administrative. It was not in dispute that the administrative proceedings were pending. As to the civil proceedings, the lower court had correctly concluded that, on account of Article 160 of the Code of Administrative Procedure as interpreted by the Supreme Court in its resolution of 26 January 1989, the applicant was not entitled to compensation for lost profits. Therefore, despite the fact that the courts could have rejected the applicant’s action for failure to exhaust the administrative procedure provided for in this provision for pursuing her compensation claim, the judgments under examination were in compliance with the law.
The Supreme Court finally held that the absence of an administrative decision concerning the applicant’s compensation claim made it impossible for a civil court to carry out its task under Article 160 of the Code of Administrative Procedure, i.e. to determine whether the compensation awarded to the applicant constituted a suitable redress for the damage which the nationalisation might have caused her.
The administrative proceedings, in which the applicant claimed compensation for damage caused by the 1959 nationalisation decision in that the settlement on the farm had been demolished, are pending.
B. Relevant domestic law
Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws.
Article 160 of the Code of Administrative Procedure enables persons who have sustained damage as a result of a final administrative decision which was declared null and void pursuant, inter alia, to Article 156, or as a result of such decision having been annulled, to submit a compensation claim to the administrative authority which annulled this decision, and this within three years from the date on which the decision on annulment became final. An administrative decision in respect of the compensation claim can be appealed against in a civil court.
Under Article 361 of the Book Three of the Civil Code - Obligations, a person is liable for the normal consequences of his or her act, or failure to act, which caused damage to others. Within such limits, compensation for damage suffered comprises, if applicable laws do not provide otherwise, actual damage and lost profits.


ITEMID: 001-102145
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PIOTR NOWAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 6. The applicant was born in 1979 and lives in Przemyśl.
7. In 1998 the applicant was charged with assaulting a certain A.B. On 15 April 1999 criminal proceedings against him and a co-accused were instituted. On 9 May 2000 the bill of indictment was filed with the Szczecin District Court. On 27 June 2000 both accused were present. However the hearing was adjourned since the applicant had not been served with the bill of indictment. The trial eventually began on 13 January 2004. The applicant was present at the hearing.
8. The applicant subsequently left Poland. He submitted that before leaving, he informed the court that he could be contacted at a correspondence address in Przemysl. He also called the court a few times, asking about progress on his case. The Government disagreed and maintained that the case filed contained no proof that the applicant had attempted to contact the court. They stated that the applicant had not informed the court about his new correspondence address.
9. On 12 February 2004 the applicant failed to appear at the hearing. The Szczecin District Court ordered that the applicant be remanded in custody for a period of three months. The decision reads as follows:
“the court orders that Piotr Nowak be remanded in custody for a period of three months, since he failed to comply with a summons”.
10. In March 2004 the applicant started working in L'viv, Ukraine.
11. On 20 January 2005, at around 11 a.m., the applicant went to a police station in L'viv to report that his friend's car had been stolen. The police checked his passport, verified his personal details and locked him up in a cell. When he asked for the reasons for his arrest he was told that he was an “international thief”. He was subsequently questioned by the officers. He submits that during the questioning the officers severely beat him and extinguished cigarettes and matches on his wrist and forearm.
12. On 24 January 2005 a decision of the police concerning his voluntary expulsion was served on him.
13. The applicant was kept at the police station until the afternoon of 24 January 2005, when he was transported to the Polish border control post in Medyka, where he arrived at around 7 p.m. At around 8 p.m. he was examined by a doctor who noted that the applicant had cigarette burns on his left forearm and provided him with medical aid.
14. The applicant was arrested on the basis of the detention order of 12 February 2004 and a wanted notice issued by the Szczecin police station on 2 August 2004. He was then transferred to the Przemysl Detention Centre.
15. On 25 January 2005 the applicant asked the court to release him from detention. He submitted that he would stay in Poland until the end of the trial. The letter reached the trial court on 1 February 2005.
16. On 31 January 2005 the applicant was examined by a prison doctor. The doctor stated that the applicant had two 0.5 cm cigarette burns on his left hand, plus two similar marks on his left wrist and one on his forearm. He also had abrasions on his lower and upper lip and a broken front tooth.
17. According to the applicant, he was served with the detention order of 12 February 2004 on 2 February 2005. The Government disagreed maintaining that the applicant received the letter from the court on 1 February 2005.
18. On 4 February 2005 the Szczecin District Court dismissed the applicant's motion of 25 January 2005. The court held that the applicant had left the country and failed to appear at hearings. For these reasons he had obstructed the proceedings.
19. On 8 February 2005 the applicant filed another application for release.
20. On 11 February 2005 the Szczecin District Court ordered the applicant's release on bail, which it set at 2,000 Polish zlotys (PLN) (approximately EUR 500). It also prohibited him from leaving the country. The decision was served on a later, unknown date.
21. On 14 February 2005 the Szczecin District Court received the applicant's appeal against his arrest on 20 January 2005 by the Ukrainian Police. On 23 February 2005 the District Court dismissed the appeal against the applicant's arrest by the Polish police on 24 January 2005. The court considered that the arrest was justified, prompt and legal.
22. On 28 February 2005 the applicant paid the bail and on the same day he was released from detention.
23. On 12 December 2005 the Szczecin District Court convicted the applicant as charged and fined him PLN 2,000.
24. Both the applicant and the prosecutor appealed. On 28 April 2006 the Szczecin Regional Court quashed the first-instance judgment and remitted the case.
25. On 11 March 2008 the Sczczecin District Court gave judgment and acquitted the applicant. The judgment is final.
26. On 29 May 2008, on the applicant's complaint, the Szczecin Regional Court acknowledged the excessive length of criminal proceedings before the Szczecin District Court and granted the applicant 3,000 PLN by way of just satisfaction.
27. On 29 October 2008 the Szczecin Regional Court dismissed the applicant's request for compensation for unjustified pre-trial detention under Article 552 § 4 of the Code of Criminal Procedure. The court noted that the applicant was present at the hearing held on 13 January 2004 during which he was informed about the date of the subsequent hearing i.e. 12 February 2004. Since he failed to appear at that hearing, the trial court ordered his detention on remand. Subsequently, the trial court also issued a wanted notice for him. He was detained on 24 January 2005 and released on 28 February 2005. The court held that while indeed the applicant had been detained for 36 days and finally acquitted, the detention could not be considered “obviously unjustified”. It referred to the fact that the applicant was hiding from justice and a wanted notice had been issued. The court considered that the applicant'
28. The applicant failed to appeal against this judgment.
29. Article 244 of the Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights.
30. Article 246 provides that everyone who is arrested shall be entitled to lodge an appeal with a court challenging the lawfulness of the arrest and the manner of its execution. Such an appeal must be promptly transmitted to the competent District Court which is required to examine it speedily. In cases where the District Court has established that the arrest was unlawful or unwarranted, it must order the immediate release of the person concerned.
31. The Code of Criminal Procedure defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), a guarantee by a responsible person (poręczenie osoby godnej zaufania), a guarantee by a social entity (poręczenie społeczne), a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and a ban on leaving the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for the imposition of preventive measures:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, to prevent an accused's committing another serious offence; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence.”
(...)
3. Before deciding on the application of the preventive measures, the court or the prosecutor shall hear the person charged with offence, unless it is impossible due to the accused being in hiding or residing abroad...”
Article 258 lists the grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe penalty will be imposed.”
The Code sets out the extent of the courts' discretion to continue a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259 § 1 reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular, if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
Article 259 § 3 provides:
“Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.”
Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused attempts to evade justice or persistently fails to comply with a summons or when his identity cannot be established.
32. Under Article 75 of the CCP an accused who is not deprived of his liberty is required to appear whenever he receives a summons in the course of criminal proceedings. He is also required to inform the authority conducting the proceedings of any change of his abode or of any absence lasting longer than 7 days. The accused must to be informed of these obligations when first questioned.
33. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for wrongful conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him.
Article 552 provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him.
...
4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand.”
34. Pursuant to Article 555, an application for compensation for manifestly wrongful detention on remand has to be lodged within one year from the date on which the decision terminating the criminal proceedings in question became final.
35. Proceedings relating to an application under Article 552 are subsequent to and independent of the original criminal proceedings in which the detention was ordered. The claimant may retrospectively seek a ruling as to whether his detention was justified. He cannot, however, test the lawfulness of his continuing detention on remand and obtain release.
36. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (prawa osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“...[T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-24007
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ALTOSAAR v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Siim Altosaar, is an Estonian national currently resident in Estonia. He is represented before the Court by Mr Kari Silvennoinen, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 November 2000 the District Court (käräjäoikeus, tingsrätten) of Helsinki convicted the applicant of an aggravated narcotics offence and sentenced him to imprisonment.
On 7 February 2001 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) ordered the applicant to be deported to Estonia.
The applicant started to serve his prison sentence on 12 February 2001 in Finland.
On 12 June 2001 the Court of Appeal (hovioikeus, hovrätten) of Helsinki upheld the applicant’s conviction and fixed his sentence at six years and ten months. This judgment was final.
In a report dated 25 June 2001 the Deputy Governor of the Helsinki Central Prison took a position on the applicant’s placement, noting that he was due to be released on 13 March 2004.
On 4 September 2002 the Ministry of Justice decided that the applicant should be transferred to Estonia with a view to serving the rest of his sentence there. The Ministry relied on section 19, subsection 2 of Act no. 21/1987 on International Co-operation in the Enforcement of Certain Criminal Sanctions, as amended by Act no. 236/2001, as well as on the Additional Protocol to the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 167; Finnish Treaty Series no. 42/2001). The applicant’s transfer was subject to the consent of the Estonian Government.
The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Helsinki, arguing that enforcing the transfer order would violate Articles 3 and 5. Firstly, he risked being placed in the same prison as other members of the gang in whose activities he had been involved, two of whom he had denounced during the criminal proceedings. Secondly, the general prison conditions in Estonia were worse. Thirdly, the applicant argued that in Finland he would, as a first-time offender being of good behaviour in prison, be entitled to release on parole after having served only half of his sentence. In Estonia release on parole would arise only when he had served two thirds of his sentence and even then on a more discretionary basis. By ordering that he should serve the rest of his sentence in Estonia the Finnish Ministry effectively prolonged his sentence beyond that which he would have served, had he been allowed to remain in Finland. This was said to be in violation of Article 5.
In its opinion to the Administrative Court the Ministry of Justice stated the following (as transcribed by the court):
“... Altosaar has been sentenced to six years and ten months’ imprisonment, of which he will, as a first-time offender, be serving three years and five months. According to the Department for Prison Administration of the Estonian Ministry of Justice as well as its international unit, it would be possible for Altosaar to obtain a conditional release in Estonia on having served two thirds of his sentence, that is to say four years, six months and 20 days. [His] possibility of being released conditionally in Estonia is therefore not significantly smaller than in Finland and the Estonian legislation does not in this respect differ significantly from our own. According to the Estonian authorities, the possibility for Altosaar to obtain a conditional release depends inter alia on factors which [he] himself may influence by his own deeds and behaviour. ... The conditions in which the sentence [would be] served in Estonia [would not] differ significantly from those prevailing in Finland. The prohibition of retroactive criminal law does not apply to the case. ...”
On 21 March 2003 the Administrative Court refused the applicant’s appeal, finding that, even though he was likely to serve a significantly longer prison sentence in Estonia, this in itself did not constitute a violation of Article 3. Nor were the general prison conditions in the receiving country such as to subject him to a risk of treatment proscribed by Article 3. The risk that he might face on account of having denounced members of the drug gang had not been substantiated. In any event, there was no reason to believe that the Estonian prison authorities would be unable to curb, to the extent possible, any such violence. Nor did the Administrative Court find that Article 5 would be violated as a result of any transfer to Estonia as the sentence he would actually be serving there would not exceed the sentence imposed by the Finnish courts.
On 7 April 2003 the Finnish Ministry of Justice requested its Estonian counterpart to consent to the applicant’s transfer. On 10 June 2003 the Minister of Justice of Estonia gave consent for the transfer to Estonia. The applicant disputed the consent of the Minister of Justice in Tallinn Administrative Court and requested the annulment of the consent. On 15 October 2003 the Tallinn Administrative Court suspended the proceedings of the administrative case until the application at hand was examined.
On 28 January 2004 the Governor of the Helsinki prison decided to release the applicant conditionally on 13 March 2004. On that day the applicant was immediately deported to Estonia pursuant to the decision of the Directorate of Immigration of 7 February 2001. According to the information provided by the applicant’s representative on 8 April 2004 the applicant is currently at liberty in Estonia.
Under Chapter 2, section 13 (580/2001) of the Enforcement of Sentences Act (laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff) a person sentenced to imprisonment may be conditionally released where he or she has served two thirds or, exceptionally, half of the sentence, in the latter case provided the prisoner has served no prison sentence during the three years preceding the offence.
Under section 13, subsection 2 of the Act the factors to be taken into account in the decision to release a prisoner conditionally include, inter alia, the nature of and the motives for the offence, the prisoner’s earlier life style and his behaviour in the prison, as well as the situation the prisoner would face on release.
Pursuant to Chapter 7, section 1, subsection 2 (580/2001) of the Act a prisoner may appeal to a district court inter alia against the postponement of a conditional release on his or her having served two thirds or half of the sentence (whichever is applicable under Chapter 2, section 13).
In its report of 2001 (no. 2001:6) the Committee on Prison Sentences noted the following (on p. 11):
“...In the 1990s [a conditional release] was almost never postponed. Following the instruction issued by the Department for Prison Administration of the Ministry of Justice in 1995 (no. 9/011/95) postponements have been very rare and almost exclusively based on the prisoner’s consent. ...”
And further (on p. 245):
“[The proposals now made] would not change the existing legislation as regards the possibility of obtaining a conditional release on having served two thirds of a sentence. Nor would there be any change as regards those prisoners, who had served no prison term during the three years preceding their offence and who are [therefore] to be released on having served half of their sentence. ...”
The objectives of the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112; Finnish Treaty Series no. 13/1987; hereinafter “the Transfer Convention”), including its Additional Protocol (European Treaty Series no. 167; Finnish Treaty Series no. 42/2001), are to develop international co-operation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.
The Transfer Convention entered into force for Finland on 1 May 1987 and the Additional Protocol on 1 August 2001. Estonia ratified the Transfer Convention and the Additional Protocol on 28 April 1997 and 27 October 1999, respectively. They entered into force for Estonia on 1 August 1997 and 1 June 2000, respectively.
Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided inter alia that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and provided that the sentencing and administering States both agree to the transfer.
Article 9 (“Effect of transfer for administering State”) reads as follows:
“1. The competent authorities of the administering State shall:
(a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
(b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”
Article 10 (“Continued enforcement”) provides the following:
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 (“Conversion of sentence”) reads as follows:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
Article 3 § 1 of the Additional Protocol provides as follows:
“Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.”
At the time of the commission of the applicant’s offence illegal possession of narcotics was punishable by three to seven years’ imprisonment pursuant to Section 210, subsection 1 of the Criminal Code of Estonia.
The Penal Code replaced the Criminal Code on 1 September 2002. According to Section 4 of the Penal Code criminal offences are divided into offences in the first degree and offences in the second degree. A criminal offence in the first degree are those for which the Penal Code prescribes a maximum punishment of imprisonment for a term of more that five years, life imprisonment or compulsory dissolution. A criminal offence in the second degree attracts imprisonment for a term up to five years or a financial penalty.
According to the Penal Code Implementation Act, which entered into force on 1 September 2002, an offence which is committed prior to entry into force of the Penal Code and which is also punishable as a criminal offence pursuant to the Penal Code shall be legally assessed pursuant to the corresponding section of the Criminal Code in force at the time of the commission of the offence. If, after entry into force of the Penal Code, a punishment is imposed for a criminal offence committed prior to entry into force of the Penal Code, the punishment shall be based on the punishment provided for in the corresponding section of the Criminal Code in force at the time of the commission of the offence, where the said section prescribes a lesser punishment.
The offence of unlawful handling of large quantities of narcotic drugs or psychotropic substances was punishable by one to five years’ imprisonment from 1 September 2002 to 1 January 2004 pursuant to Section 184 of the Penal Code of Estonia (thus rendering the offence an offence in the second degree pursuant to the Penal Code of Estonia).
As from 1 January 2004 the offence has been punishable by one to 10 years’ imprisonment, thus rendering the offence an offence in the first degree (pursuant to section 4 of the Penal Code of Estonia).
Conditional release (release on parole) is governed by section 76 of the Penal Code of Estonia. According to subsection 1, if a person has been convicted of commission of a criminal offence in the second degree, or a criminal offence in the first degree through negligence, the court may release the convicted offender conditionally if he or she has actually served at least half but not less than six months of the term of the imposed punishment. Subsection 2 provides that if a person has been convicted of intentional commission of a criminal offence in the first degree, the court may release the person conditionally if the convicted person has actually served at least two-thirds of the term of the imposed punishment. Pursuant to subsection 3, in deciding on conditional release, the court shall take into consideration the circumstances relating to the commission of the criminal offence, the personality of the convicted offender, his or her previous personal history and conduct during the service of the sentence, his or her living conditions and the consequences which conditional release may bring about for the convicted offender.


ITEMID: 001-111293
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KAUR v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Ms Rajwinder Kaur, is an Indian national who was born in 1986 and lives in Punjab, India. She was represented before the Court by Mr J.E. Groenenberg, a lawyer practising in Hoofddorp.
New Delhi, India – for a provisional residence visa (machtiging tot voorlopig verblijf) for the purpose of joining her partner in the Netherlands, with whom she has a (minor) child. By decision of 21 October 2009 the applicant’s request was denied by the Minister of Foreign Affairs. The applicant was deemed a threat to public order given her conviction by the single-judge chamber of the Regional Court (rechtbank) of The Hague in February 2009 for theft in association with one or more persons, for which offence she had been sentenced to payment of a fine of EUR 400. The Minister also considered that this refusal did not violate the applicant’s right to respect for family life as guaranteed by Article 8 of the Convention given the fact that it had been the applicant’s own doing that had led to her conviction and no insurmountable obstacles could be found preventing the applicant and her family from living their family life outside the Netherlands.
3. By decision of 26 March 2010 the Minister dismissed the applicant’s objection (bezwaar) against the above mentioned decision. The Minister had regard to the fact that the Court of Appeal (gerechtshof) of The Hague had upheld the applicant’s conviction for theft in association with one or more persons in February 2010 and had only reduced the fine to EUR 300. Furthermore, taking into account the principles set out in the Court’s judgments in Boultif v. Switzerland, no. 54273/00, 2 November 2001 and Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII, the Minister considered that the applicant’s right to respect for family life had not been violated.
4. The applicant’s appeal against the decision of 26 March 2010 was upheld by the Regional Court of The Hague by decision of 22 September 2010 and the decision of the Minister was subsequently quashed. The Regional Court considered that the Minister had not weighed the (lack of) seriousness of the offence committed by the applicant in an appropriate manner.
5. The Minister lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; hereafter “the Division”). By decision of 25 March 2011 the Division upheld the Minister’s further appeal, quashed the judgment of the Regional Court on the applicant’s appeal and rejected that appeal. The Division held that the authorities had struck a fair balance between all interests involved and that there had been no infringement of the applicant’s right to respect for family life. Also on 25 March 2011, the judgment of the Division was sent to the lawyer who had represented the applicant pursuant to article 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht).


ITEMID: 001-86889
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SOLAZ v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant is a limited liability company registered in Moscow.
6. On 2 September 1992 the applicant company purchased an aircraft from the Kharkiv State Aviation Industrial Enterprise (Харківське державне авіаційне підприємство, hereafter “the Enterprise”) for 5 million United States dollars (USD). By February 1993 this amount had been paid in full to the Enterprise. On 19 April 1993 the applicant company and the Enterprise signed an aircraft acceptance certificate, entailing, according to the applicant company, the transfer of ownership. On 20 April 1993 a Ukrainian crew – including the chief pilot Mr I. – flew the aircraft to Russia.
7. Until April 1994 the aircraft underwent test flights at the Ramenskoye airfield, located in the Moscow region. On 5 April 1994 and for unspecified reasons, the aircraft was flown back to Ukraine where it landed at the Enterprise’s airfield.
8. In the meantime, namely on 30 March 1994, a Ukrainian Customs officer had drawn up a report that customs rules had been violated. According to this report, when the aircraft had crossed the Ukrainian-Russian border in April 1993, it had been declared by officials of the Enterprise as temporarily exported for test flights whereas it had in fact been exported by way of sale to the applicant company.
9. On 27 May 1994 the Ukrainian Customs authorities instituted criminal proceedings for the attempted smuggling of the aircraft to Russia. On an unspecified date the case was transmitted to the Kharkiv Regional Department of the Security Service (Управління Служби Безпеки України по Харківській області, hereafter “the USBU”).
10. By rulings of 3 December 1994 and 13 November 1995, the USBU investigator decided to classify the aircraft as material evidence (визнав речовим доказом) and attached it to the case file pending the outcome of the criminal proceedings.
11. On 14 December 1995 the Deputy Head of the Investigative Unit of the USBU decided to put the aircraft up for sale by issuing a formal order to this effect (ухвала про долю речового доказу).
12. By letter of 17 January 1995 the Acting Head of the Investigative Unit of the USBU informed the applicant company that the aircraft had been acquired by the Ministry of the Interior (hereafter “the Ministry”) for amount of USD 25,000.
13. On an unspecified date the USBU investigator charged Mr I. with smuggling. In August 1996, the same charge was brought against the Enterprise’s Deputy Director General Mr N. and – in July 1997 – also against the Enterprise’s Director General. The charge against the latter was subsequently dropped for lack of any corpus delicti.
14. By letter of 6 September 1997, the Deputy Prime Minister of the Russian Federation requested the Prime Minister of Ukraine to expedite the criminal proceedings relating to the aircraft at issue.
15. On 16 August 1997 the case was sent to the Kyivsky District Court of Kharkiv (hereafter “the Kyivsky Court”) for trial proceedings. On 16 October 1997 the Kyivsky Court allowed the applicant company to join the criminal proceedings as a civil claimant. On an unspecified subsequent date the Ministry joined the proceedings as a civil respondent.
16. At a preparatory hearing on 1 December 1997 the Kyivsky Court held that further investigations were required and remitted the case to the Kharkiv Regional Prosecutor’s Office (hereafter “the Prosecutor’s Office”), which filed an appeal against this decision.
17. On 20 January 1998 the Kharkiv Regional Court dismissed the prosecution’s appeal, holding inter alia:
“The AN-72 aircraft, which constitutes material evidence, was unlawfully sold at the pre-trial stage of the proceedings, thereby prejudging any subsequent court decision.
In view of the fact that [the applicant company’s] ownership of the AN-72 aircraft is not disputed by anyone and that this company has been admitted as a civil claimant in the proceedings, the investigating authorities should take measures, as provided by law, in order to fulfil the claim in kind or to secure an equivalent amount of money.”
18. The Deputy Prosecutor of the Kharkiv Region filed a protest (extraordinary appeal) against the Kyivsky Court’s decisions of 16 October 1997 and 1 December 1997. On 24 June 1998 the Presidium of the Kharkiv Regional Court dismissed this protest. As regards the decision of 16 October 1997, it found no reason to deny the applicant company the status of civil claimant in this criminal case.
19. On 1 July 1999, the Prosecutor’s Office submitted the case to the Kyivsky Court, which committed Mr I and Mr N for trial.
20. On 17 November 2000 the applicant company requested the Kyivsky Court to quash the investigator’s order of 14 December 1995 to put the aircraft up for sale or, alternatively, to impound the aircraft pending trial. On the same day, the Kyivsky Court dismissed the first request and – accepting the applicant company’s argument that operating the airplane would entail wear and tear and depreciate its value – accepted the request to impound the aircraft for the duration of the criminal proceedings.
21. On 20 February 2001 the Zaliznychny District Bailiffs’ Service of Kyiv arrested the aircraft which, at that time, was parked at Kyiv airport. However, according to a letter dated 30 March 2001 by the Head of this Bailiffs’ Service, the arrest could not be maintained as the aircraft had disappeared from its parking place at this airport.
22. On 2 April 2001 the Kyivsky Court ordered the Ministry of the Interior to inform the court of the whereabouts of the aircraft and to implement its seizure order of 17 November 2000.
23. On 3 April 2001 the Ministry of International Affairs of the Russian Federation filed a note with the Ministry of International Affairs of Ukraine, stating that it “would be grateful for the return as soon as practically possible of the AN-72 aircraft to [the applicant company]”.
24. On 22 May 2001 the Ministry of the Interior appealed against the seizure order of 17 November 2000 to the President of the Kharkiv Regional Court and requested its suspension pending the determination of the appeal. On 28 May 2001 the Kyivsky Court granted this request and suspended the enforcement of the seizure order. No further information about these appeal proceedings has been submitted by the applicant company. Apparently, the seizure order has never been implemented.
25. On 22 June 2001 the Kyivsky Court decided to disjoin the applicant company’s civil claim from the criminal case, considering that it would be more appropriate to determine it in civil proceedings. The applicant company appealed.
26. On 6 July 2001 the Kyivsky Court found that the pre-trial investigations were insufficient and remitted the case to the Prosecutor’s Office. The accused Mr N. appealed.
27. On 22 January 2002 the Kharkiv Regional Court examined both appeals. It upheld the Kyivsky Court’s decision to remit the case for additional investigations, but quashed the impugned decision of 22 June 2001 and reinstated the applicant company’s status as civil claimant in the criminal proceedings.
28. On 30 July 2002 the Kharkiv Regional Prosecutor forwarded the case to the Chervonozavodsky District Court of Kharkiv (hereafter “the Chervonozavodsky Court”) for trial proceedings.
29. On 13 March 2003 the Chervonozavodsky Court accepted a request filed by the applicant company to seize the aircraft pending the trial proceedings.
30. In the course of a hearing held on 17 July 2003, the Ministry challenged the above seizure order on the ground that the law did not entitle a court to order a general seizure of State property, but only to order the owner to refrain from specified actions. The Chervonozavodsky Court held that there was no proof that the Ministry owned the impugned aircraft. In particular the sales contract was said to be lost and the license to operate the plane, issued by the Ministry of Defence, authorised a certain Ministry’s unit to use it, without any reference being made as to who was its owner. However, the court decided to quash its ruling of 13 March 2003 and prohibited the Ministry from disposing of the aircraft in any form whatsoever and from moving it outside the Zhuliany airport, where it was stationed at the material time.
31. In the meantime Mr I. died and the charge against him was dropped.
32. On 13 October 2004 the Chervonozavodsky Court acquitted Mr N, who by that time had become the sole defendant in the proceedings, on the ground of lack of corpus delicti (відсутність складу злочину). The court further held that that the investigating authorities’ decision to sell the aircraft was unlawful. Moreover, there was no cogent proof of the Ministry’s ownership of the aircraft. The aircraft, which thus remained the applicant’s property and an item of material evidence, could be disposed of by a court in a judgment on the criminal case. Based on these findings the Chervonozavodsky Court ordered that the aircraft be handed over to the applicant. It, however, found that it had no jurisdiction, in the criminal case, to entertain the applicant company’s claims for damages against the Ministry, the Enterprise, the USBU and the Customs. The prosecutor, the applicant company, the Ministry and Mr N. (who considered that he should have been acquitted for lack of any offence – відсутність події) filed appeals against this judgment.
33. On 31 March 2005 the Kharkiv Regional Court of Appeal (hereafter “the Court of Appeal”) decided not to entertain the prosecution’s appeal on the ground that it was not signed by the prosecutor who had participated in the proceedings before the first instance court. The appeals of the Ministry, the applicant and Mr N. were rejected as unsubstantiated. The same parties made cassation appeals.
34. On 11 April 2006 the Supreme Court quashed the decision of 31 March 2005 and remitted the case for fresh appellate hearing on the ground that the Court of Appeal’s refusal to entertain the prosecutor’s appeal had not been reasonable.
35. On 1 August 2006 the Court of Appeal granted the appeal of the prosecutor, quashed the judgment of 13 October 2004 and remitted the case to the Prosecutor’s Office for further pre-trial investigations.
36. The investigation in the case is still pending.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-77936
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TAVLI v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1962 and lives in Dortmund, Germany.
5. On 25 December 1980 the applicant registered his marriage with Ms A. in Aksaray. Few months later the applicant moved to Germany to work.
6. On 30 July 1981 Ms A. gave birth to a child, S. On 28 September 1981, soon after having been informed of the birth of S., the applicant filed an action for rejection of paternity before the Aksaray First Instance Court in Civil Matters. On 5 January 1982, based on the results of a blood test, the Ankara University Forensic Institute concluded that it was likely that the applicant was S.'s biological father.
7. On 1 June 1982, in view of the medical report of the forensic institute and considering the facts that the applicant and Ms A. had lived together before the marriage, and that the child was born in wedlock, the court dismissed the applicant's claim.
8. On 6 June 1989 the marriage was dissolved by divorce. The court ordered the applicant to pay an allowance of 1,500,000 Turkish liras (TRL) and TRL 2,500,000 for the maintenance of S. and Ms A., respectively.
9. On 4 March 1997 a DNA test was carried out in Germany which showed that the applicant was not S.'s biological father.
10. On 10 April 1997, relying on the findings of the DNA test, the applicant filed an application before the Aksaray First Instance Court in Civil Matters, requesting a retrial in his action for rejection of paternity. The court ordered another DNA testing.
11. In the meantime, on 30 May 1997 Ms A. filed another action before the same court, requesting to increase the allowance that the applicant was ordered to pay for the maintenance of S. On 26 December 1997 the Aksaray First Instance Court in Civil Matters decided to increase the relevant amount to TRL 10,000,000. On 11 May 1998 the Court of Cassation upheld this decision.
12. The forensic DNA test carried out in the Biology Department of the Ministry of Justice confirmed the findings of the earlier test. The report of 19 August 1998 concluded that the applicant was not the biological father of S.
13. On 20 May 1999 the Aksaray First Instance Court in Civil Matters dismissed the applicant's request to annul the decision dated 1 June 1982 and to have a retrial. It interpreted Article 445 § 1 of the Code of Civil Procedure to the effect that the newly obtained evidence must have been existent at the time of the proceedings and must have been inaccessible due to force majeure. However the DNA test was carried out years after the court gave its final ruling in the case. It recalled that, in a similar case dated 1969 the Court of Cassation held that the plaintiff could not request to have a retrial of an action for rejection of paternity, by invoking the results of a blood test, carried out years after the final decision.
14. On 6 July 1999 the applicant appealed against the decision of the Aksaray First Instance Court in Civil Matters arguing that the court could not dismiss a case for procedural reasons after examining its merits. Furthermore he contended that the medical report of 5 January 1982 was merely based on assumptions, while the DNA tests carried out in 1997 and 1998 revealed the biological fact that he could not be the father of S.
15. On 1 November 1999 the Court of Cassation quashed the decision of the first instance court, holding that S. should have been a party to the proceedings, as she has attained full age and her rights were competing with those of the mother.
16. The proceedings were resumed before the Aksaray First Instance Court in Civil Matters. S. was included in the proceedings as the second defendant and she was notified about the hearing. However she neither appeared before the Court nor submitted any written statements. On 28 November 2000 the court dismissed the applicant's request for retrial for the same reasons as before. The applicant appealed.
17. On 19 April 2001 the Court of Cassation upheld the decision of the first instance court. It held that, in view of the jurisprudence of the Court of Cassation, “scientific progress” (fennin gelişmesi) could not be considered as force majeure provided under Article 455 § 1 of the Code of Civil Procedure.
18. On 12 October 2001 the applicant's request for rectification of the decision was dismissed.
19. Article 445 § 1 of the Code of Civil Procedure, pertaining at the time of the proceedings, provided as follows:
“As regards the final decisions, retrial may be requested under the following circumstances:
After the judgment is rendered, a certificate or a document is found, which could not have been acquired during the trial because of force majeure or because of the acts of the party in favour of which the decision was given.”
20. The relevant provisions of the Civil Code (Law no. 4721, dated 22 November 2001) read as follows:
“The husband is the father of the child, born in wedlock, or within three hundred days after the marriage has ended.”
“In order to rebut the presumption of paternity, an action to reject paternity may be brought by the husband. Such an action shall be brought against the mother and the child. ...”
“If the child is conceived in wedlock, the plaintiff has to prove that he is not the father of the child.
A child is considered to be conceived in wedlock if he or she is born at least one hundred and eight days after the marriage, or at the latest three hundred days from the end of the marriage.”
“The husband shall bring an action within one year from the moment he is informed of the birth, when he realizes that he is not the father of the baby or when he finds out that the mother had sexual intercourse with another man, during the period of conceiving; in any event, within five years from the birth.”
VIOLATED_ARTICLES: 8


ITEMID: 001-22079
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: R.W. and C.T.G.-W. v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, R.W. and C. T.G.-W. are Austrian nationals, born in 1962 and 1967 and living in Hallein and Oberndorf, respectively. They are represented before the Court by Mr G. Tews, a lawyer practising in Linz. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are the parents of a son born in wedlock in 1990.
On 30 June 1993 the Oberndorf District Court (Bezirksgericht) granted the applicants’ petition for divorce by consent. In the settlement regulating the legal consequences of the divorce the applicants agreed, contrary to section 177 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), to continue exercising joint custody over their son. The settlement was subject to approval in separate custody proceedings.
On 13 January 1994 the Oberndorf District Court, in the custody proceedings, refused approval of the settlement on the ground that the law did not provide for joint custody after divorce except where the former spouses continued to live in a common household, which was not the applicants’ case. The applicants appealed against this decision. They submitted an expert opinion which, having regard to both applicants’ relationship with their son and their ability and willingness to care jointly for him, stated that awarding joint custody would be desirable in the interests of the child’s well-being.
On 6 April 1994, the Salzburg Regional Court (Landesgericht) adjourned the proceedings and requested the Constitutional Court (Verfassungsgerichtshof) to review the constitutionality of section 177 of the Civil Code. The Constitutional Court, by judgment of 10 October 1995 (see below), found that the said section was in conformity with the Constitution.
Thereupon, on 13 March 1996 the Salzburg Regional Court dismissed the applicants’ appeal. It noted that, having regard to the clear wording of section 177 of the Civil Code, the courts were not empowered to grant joint custody after divorce except where the former spouses continued to live in a common household, even where this would be in the interests of the child’s well-being in the circumstances of the particular case.
On 6 November 1996 the Supreme Court (Oberster Gerichtshof) dismissed the applicants’ appeal on points of law.
Section 177 of the Civil Code, in the version in force at the material time, provided as follows:
“(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, or that the parents have lived separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court has to approve the agreement if it corresponds to the interests of the child’s well-being.
(2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child’s well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents have lived separately for more than a limited period the court only decides upon the request of one of them.
(3) Section 167 applies accordingly.”
Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child’s well-being.
In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court’s constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent’s right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator’s margin of appreciation, it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard as regards certain important matters. Moreover, the law did not prevent parents, who wished to share their parental rights after divorce, from doing so in practice. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only. It did not generally demand that joint custody be awarded to parents after divorce.
By amendment which entered into force on 1 July 2001 (Federal Gazette - Bundesgesetzblatt - 135/2000), section 177 of the Civil Code was changed. It now reads as follows.
“(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, the parents continue to exercise joint custody. They can, however - even for the purpose of changing an existing arrangement - submit an agreement concerning custody to the court which may provide for sole custody of one parent. ...
(2) Where the parents want to exercise joint custody they have to submit an agreement to the court stating with which parent the child has its main residence.
(3) The court has to approve the parents’ agreement to ensure that it is in the best interests of the child.”
A newly introduced section 177a provides that where an agreement about the child’s main residence is not achieved within a reasonable time, or where an agreement on custody is not reached or is not in the child’s best interests, the court has to award sole custody to one parent. Equally, where both parents exercise joint custody after dissolution of their marriage the court, upon the request of one of them, has to award sole custody to one parent according to the child’s best interests where an agreed solution cannot be reached.
According to section 148 of the Civil Code, in the version in force at the material time, the parent not having custody has a right of access.
Moreover, according to section 178 of the Civil Code in the version in force at the material time, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents), and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child’s well-being. The measures at issue include the change of the child’s first or family name, the entry into or secession from a church or other religious group, the child’s placement in care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child’s property.
Following the above-mentioned amendment of the Civil Code section 148 provides that the parent not living in a common household (be it that he/she is the non-custodial parent or that the parents exercise joint custody) has a right of access. Section 178 still contains the rights of the non-custodial parent, but has slightly strengthened his/her position in case he/she is prevented from exercising the right of access and in case the custodial parent fails to give the required information.


ITEMID: 001-103304
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ÜNSAL ÖZTÜRK v. TURKEY (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 5. The applicant was born in 1957 and lives in Ankara. He is the owner of “Yurt Books and Publishing”, a small independent firm that has published numerous books in Turkey.
6. In the 1990s a number of books published by the applicant's company were found to contain propaganda in breach of various provisions of the Prevention of Terrorism Act (Law no. 3712), as well as “insults to the memory of Atatürk” in breach of Law no. 5816. He was convicted and served a total period of one year, five months and twenty days in prison and paid the equivalent of 5,121 euros (EUR) in fines. Most of the books in question were confiscated. On 21 December 1994 he introduced an application with the Court in relation to that conviction and the confiscation of the books. On 4 October 2005 the Court found a violation of Articles 7 and 10 of the Convention (see Ünsal Öztürk v. Turkey, no. 29365/95, 4 October 2005).
7. Following the repeal of section 8 of the Prevention of Terrorism Act in July 2003, the applicant made applications to the First Chamber of the Ankara State Security Court on various dates in 2003 and asked for the confiscation orders to be lifted.
8. The First Chamber of the Ankara State Security Court rejected the claims and the applicant lodged objections against those rejections with the Second Chamber of the same court.
9. The Second Chamber of the Ankara State Security Court lifted the confiscation orders in respect of a number of the books but held that, as the confiscation orders had already been executed, there were no books to return.
10. On 9 January 2004 the Second Chamber of the Ankara State Security Court held in respect of sixteen books that, although section 8 of the Prevention of Terrorism Act had been repealed, the contents of those books amounted not only to “separatist propaganda” but were also unlawful “under various laws”, and rejected the objection.
11. On 22 November 2005 a further decision was adopted by the Ankara Assize Court in respect of the same sixteen books. Having regard “to the legislation in force” and “considering that the contents of the books might be in contravention of section 7(2) of the Prevention of Terrorism Act” it refused the applicant's request for the lifting of the confiscation order in respect of the sixteen books.
12. The applicant appealed against the decision of 22 November 2005. The prosecutor at the Court of Cassation also requested that the decision be quashed because he considered that rejecting the applicant's request on account of the assumption that the contents of the books “might be unlawful”, rather than examining the substance of the applicant's request in the light of the legal developments, was not in accordance with the law and procedure.
13. On 8 April 2006 the Court of Cassation dismissed the appeal lodged by the applicant.
VIOLATED_ARTICLES: 10


ITEMID: 001-59864
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HASAN YAGIZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson
TEXT: 9. On 17 April 1985 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way).
10. On 6 February 1985 the Ankara Martial Law Court (sıkıyönetim mahkemesi) ordered the applicant’s detention on remand.
11. On an unspecified date in 1985 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant. The Public Prosecutor accused the applicant, inter alia, of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. It was further decided that this indictment should be joined to the indictment of 26 February 1982 lodged against 722 other Dev-Yol defendants.
12. On 11 May 1988 the Ankara Martial Law Court ordered the applicant’s release pending trial.
13. In a judgment of 19 July 1989 the Martial Law Court convicted the applicant on account of his involvement in the Dev-Yol. It sentenced the applicant to six years’ imprisonment under Article 146 § 3 of the Turkish Criminal Code.
14. The applicant appealed to the Military Court of Cassation (askeri yargıtay).
15. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it.
16. On 27 December 1995 the Court of Cassation upheld the above judgment.
17. Article 146 §§ 1 and 3 of the Turkish Criminal Code provides:
“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.
...
Accomplices to the crime specified in paragraph one, other than those specified in paragraph two, shall be punished by heavy imprisonment for not less that fifteen years and be disqualified to hold public office for life.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82599
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GRIVNEAC v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1946 and lives in Chisinau.
6.
7. The applicant initiated court proceedings against a private individual. On 6 October 2000 the Centru District Court awarded him 2,000 United States Dollars (USD). No appeal was lodged and the judgment became final and enforceable fifteen days later. He obtained an enforcement warrant, which the bailiff did not enforce.
8. In response to a request of the Centru District Court dated 22 December 2000, the Chişinău Land Register stated that the debtor did not have any real estate registered in Chişinău.
9. On 14 February 2001 a bailiff established that the debtor did not live at the address indicated by the applicant and that, accordingly, it was impossible to enforce the judgment.
10. On 6 March 2001 the debtor's wife paid the applicant USD 1,000.
11. On 16 March 2001 the Centru District Court ordered the local police to determine the debtor's whereabouts. On an unknown date a copy of the decision was sent to the local police station. On 3 February 2004 the police decided to take steps to locate the debtor. According to the police, the debtor cannot be found.
12. The judgment of 6 October 2000 has not been enforced to date.
13. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1