ITEMID: 001-60738
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF RADOS AND OTHERS v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 with regard to eleven sets of proceedings;No violation of Art. 6-1 with regard to two sets of proceedings;No violation of Art. 13 with regard to pending proceedings;Violation of Art. 13 with regard to concluded proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Françoise Tulkens
TEXT: 10. The first to fifth applicants were born in 1929, 1970, 1934, 1929 and 1934 respectively and live in Zagreb.
11. During 1992 the applicants lent various sums of money to a number of agencies that were supposed to pay back the loans within periods ranging from 2 to 12 months and at interest rates ranging from 10 to 30 % per month (so called “financial engineering”). As these agencies failed to re-pay the loans, the applicants instituted civil proceedings against the agencies and their alleged owners.
12. On 18 October 1993 the applicant filed an action with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of his loan in the amount of 10,000 German Marks (DEM).
13. The preliminary hearing scheduled for 24 January 1994 was adjourned.
As on 15 February 1994 the presiding judge resigned from her office, the case was transferred to another judge in October 1996.
14. The next hearing scheduled for 6 December 2000 was adjourned because the presiding judge was absent.
15. The hearing scheduled for 20 April 2001 was adjourned because B.J. did not appear. As the documents indicated that she had been released from detention on remand, the court invited the applicant to submit her new address. When the applicant informed the court that he did not know B.J.’s new address, the court requested the Ministry of Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) to submit B.J.’s new address. The Ministry of Interior informed the court that B.J. had changed her name into B.Č.
16. The hearings scheduled for 21 September 2001 and 4 April 2002 were adjourned because B.J. had not collected a notice of the hearing date.
It appears that the proceedings are pending before the court of first instance.
17. On 18 October 1993 the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 20,000.
18. Before the period to be examined by the Court several hearings were held and several adjourned. The hearing scheduled for 18 June 1997 was adjourned because B.B. did not appear. The court invited the applicant to submit the number of the case-file concerning criminal proceedings against B.B. before the same court.
As the applicant failed to do so, the court itself found the file number, but was unable to review that file because it was sent to the Zagreb County Court (Županijski sud u Zagrebu) on 13 June 1997. The court repeated its request to examine the file on 15 November 1998, 15 September 1999 and 5 September 2000.
19. As neither party appeared at the hearing scheduled for 11 April 2001 the court found that the applicant had withdrawn his claim.
The applicant appealed against that decision stating that he had been ill on the date of the hearing. On 23 May 2001 the court invited the applicant to submit evidence as to the fact that he had been ill. The applicant appeared before the court on 13 June 2001 and stated that he had no medical documentation.
On 5 July the court sent the case-file to the Zagreb County Court as the appellate court. However that court found that the applicant’s appeal in effect had been a request to resume the proceedings. Consequently, on 22 October 2001 the case-file was returned to the Zagreb Municipal Court.
It appears that the proceedings are pending before the Zagreb Municipal Court.
20. On 6 May 1993 the applicant, together with 244 other plaintiffs, filed an action for re-payment of their loans with the Zagreb Municipal Court. The applicant claimed a sum of DEM 28,000.
21. Before the period to be examined by the Court two hearings were held.
On 17 July 1997 the court dismissed the claims of 43 plaintiffs, but not in respect of the second applicant. As on 24 September 1997 the plaintiffs whose claims were dismissed appealed against that decision, the case file was sent to the Zagreb County Court (Županijski sud u Zagrebu) on 29 September 1997, for consideration on appeal.
22. On 14 July 1998 the Zagreb County Court upheld the first instance decision except in respect of one of the plaintiffs.
23. On 10 February 1999 the Zagreb Municipal Court invited the plaintiffs’ counsel to submit a certificate from the registry of the Zagreb Commercial Court (Trgovački sud u Zagrebu) regarding the legal status of F.I.M.
On 10 March 1999 the plaintiffs’ counsel withdrew the claim in respect of F.I.M.
24. The next hearing took place on 18 June 1999.
25. At the hearing on 14 October 1999 the court heard Đ.M. and then adopted judgment rejecting all claims. The judgment was served on the plaintiffs’ counsel on 26 September 2000. On 4 October 2000 the plaintiffs’ counsel appealed against the judgment.
The Zagreb County Court, as the appellate court, found that the appeal was submitted by Mr Lajnert on behalf of all plaintiffs although he had not had a power of attorney. The case file was therefore returned to the Zagreb Municipal Court on 20 September 2001. On 27 September 2001 the Zagreb Municipal Court invited Mr Lajnert to submit a power of attorney to represent the other plaintiffs.
It appears that the proceedings are pending on appeal before the Zagreb County Court.
26. On 1 June 1993 the applicant, together with 603 other plaintiffs, filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed DEM 16,500.
27. Before the period to be taken into account one hearing was held and one was adjourned.
28. At the next hearing on 2 February 1998 the court invited the plaintiffs to submit additional documentation.
Although they failed to submit that documentation, the next hearing was held on 10 April 2000. The plaintiffs asked the court to hear several witnesses but were unable to submit their addresses.
On 10 November 2000 the court invited the plaintiffs to submit further evidence necessary to proceed with the case. The plaintiffs claimed that they were members of the “Association of the Financial Engineering Investors V.M.M.”, but did not submit either its registration certificate or its articles of association. Furthermore, three plaintiffs failed to submit evidence as to their investments into the “financial engineering” and seven plaintiffs failed to submit their addresses.
29. At the hearing on 15 December 2000 the plaintiffs’ counsel submitted the registration certificate and the articles of association as well as the addresses of the witnesses to be heard.
30. At the hearing on 31 January 2001 the court heard one witness. It invited again the plaintiffs’ counsel to submit evidence in respect of three plaintiffs as to their investments into the “financial engineering” as well as the addresses of seven plaintiffs.
On 22 February 2001 the plaintiffs submitted the requested addresses and asked the court to allow them an additional period of 30 days to submit evidence in respect of three plaintiffs as to their investments into “financial engineering”.
On 2 May 2001 the plaintiffs submitted evidence in respect of two plaintiffs as to their investments but were unable to produce such evidence for the third plaintiff. They also changed their claims.
31. At the next hearing scheduled for 17 September 2001 the court stayed the proceedings because the plaintiffs’ representative did not appear.
On 1 October 2001 the applicant filed a request to resume the proceedings.
It appears that the proceedings are pending before the court of first instance.
32. On 21 December 1994 the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of Swiss Francs (CHF) 15,000.
33. Before the period to be examined by the Court two hearings were adjourned. It turned out that F.I.S. had ceased to exist and that J.S. had changed her address. In 1995 the court invited the applicant to submit her correct address within 30 days.
On 14 May 1998 the court repeated its request.
On 25 May 1998 the applicant submitted J.S.’s new address.
34. On 21 July 1998 the court ordered the applicant to request the Social Welfare Centre (Centar za socijalnu skrb) to appoint a legal representative for J. S.
On 11 December 1998 the Zagreb Social Welfare Centre informed the court that by a decision of 8 December 1998 it had appointed a legal representative for J.S.
35. At the next hearing on 7 April 1999 the representative gave her reply to the applicant’s claim. The applicant informed the court that he had obtained J.S.’s new address and asked the court to invite J.S. to the next hearing.
36. At the next hearing on 21 May 1999 the applicant was heard. J.S. failed to appear. Her representative asked the court to enclose the case-file concerning the criminal proceedings against J.S. before the same court.
However, the court was unable to enclose the criminal case file as the criminal proceedings against J.S. were still pending.
According to the Government, on 28 December 2000 the court requested the Zagreb Commercial Court’s registry to submit a certificate regarding the legal status of F.I.S. It turned out that on 18 July 2001 the Zagreb Commercial Court had instituted ex officio proceedings for liquidation of F.I.S.
37. At the next hearing on 19 December 2001 the court concluded the proceedings.
38. On 5 October 1995 the applicant, together with five other plaintiffs, filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed a sum of DEM 5,000.
39. Before the period to be examined by the Court one hearing was adjourned.
40. A hearing scheduled for 14 May 1998 was adjourned because the defendants did not appear. T.I.A. had ceased to exist and I.A. had failed to collect the notice of the hearing date.
41. At the hearing on 22 October 1998 the defendants’ counsel gave his reply to the plaintiffs’ claim. The court invited I.A. to give his additional detailed reply to the plaintiffs’ claim within 8 days.
42. The next hearing scheduled for 7 June 1999 was adjourned because four plaintiffs, including the applicant, who were supposed to be heard, failed to appear. It turned out that the applicant had failed to collect the notice of the hearing date as well as another plaintiff, while two other plaintiffs had changed their addresses.
On 21 July 1999 the plaintiffs’ counsel submitted their addresses.
43. The next hearing scheduled for 2 April 2001 was adjourned because I.A. did not appear.
44. At hearing on 15 October 2001 the court heard one of the plaintiffs and then asked the plaintiffs to specify their claims and submit further documents.
It appears that the proceedings are pending before the court of first instance.
45. On 5 October 1995 the applicant, together with ten other plaintiffs, filed an action for re-payment of their loans with the Zagreb Municipal Court. The applicant claimed a sum of DEM 5,000.
46. Before the period to be examined by the Court one hearing was adjourned.
47. On 12 January 1998 the court requested the Ministry of Interior to submit B.J.’s correct address.
On 3 February 1998 the Ministry of Interior informed the court that B.J.’s address was unknown.
48. The next hearing scheduled for 2 April 2001 was adjourned as B.J. did not appear. The documents showed that she was unknown at the address indicated. According to the registry of the Ministry of Interior, however, she remained registered at the same address.
On 21 May 2001 the plaintiffs’ counsel asked the court to request the Social Welfare Centre to appoint a legal representative for B.J.
On 24 May 2001 the court invited again the Ministry of Interior to submit B.J.’s address.
On 7 September 2001 the court ordered the Zagreb Police Department (Policijska uprava zagrebačka) to make an on the spot inquiry about B.J.’s address. The police found out that she had left the address where she was registered and that her new address was unknown.
It appears that the proceedings are pending before the court of first instance.
49. On 5 October 1995 the applicant, together with ten other plaintiffs, filed an action for re-payment of their loans with the Zagreb Municipal Court. The applicant claimed a sum of DEM 6,000.
50. Before the period to be examined by the Court two hearings were adjourned.
51. The court scheduled the next hearing for 6 November 1997 and invited B.B. to submit the evidence he relied on in his written reply to the plaintiffs’ claims. However, he failed to do so and also did not appear at the hearing. The plaintiffs’ counsel submitted that B.B. was found guilty for fraud in criminal proceedings conducted before the same court in connection with the plaintiffs’ loans. On 10 November 1997 the plaintiffs’ counsel submitted the number of the criminal case-file against B.B.
On 14 November 1997 the court requested the criminal case-file against B.B. from the criminal division of the Zagreb Municipal Court, but the case-file was at the Zagreb County Court pending decision on appeal.
The court repeated its request to enclose the criminal case-file on 22 October 1998, 11 March and 22 November 1999 and 24 October 2000, but the case-file was at the Public Prosecutor’s Office (Ured državnog odvjetništva).
52. At the next hearing on 2 April 2001 the court invited the applicant to submit a copy of the judgment finding B.B. guilty for fraud.
On 17 April 2001 the applicant informed the court that the first instance judgment in the criminal proceedings against B.B. had been quashed and the case remitted to the court of first instance for re-trial.
It appears that the proceedings are pending before the court of first instance.
53. On 5 October 1995 the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 7,000.
54. Before the period to be examined by the Court one hearing was held and one was adjourned.
55. On 29 October 1999 the court invited the applicant’s counsel to submit T.K.’s address within 30 days.
On 25 November 1999 the applicant’s counsel submitted T.K.’s new address.
On 28 June 2000 the court invited the applicant’s counsel to submit within 30 days a notice from the registry of the Zagreb Commercial Court concerning the legal status of T.K.M.
It appears that the proceedings are pending before the court of first instance.
56. On 24 January 1994 the applicant filed an action for re-payment of his loan, in the amount of DEM 13,540, with the Zagreb Municipal Court.
57. Before the period to be examined by the Court, first instance judgment awarding the applicant’s claim in part and rejecting it in part was adopted. This judgment was quashed on appeal in the part rejecting the applicant’s claim and the case was remitted for re-trial to the court of first instance.
58. The hearings scheduled for 19 March, 7 and 20 April 1998 before the Zagreb Municipal Court were adjourned since S.D. failed to appear.
59. At the next hearing on 7 May 1998 the court adopted a judgment awarding the rest of the applicant’s claim. The judgment became final on 16 June 1998.
According to the Government, the applicant has not sought to enforce the judgment.
60. On 27 January 1994 the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 11,052.
61. Before the period to be examined by the Court several hearing were held and several adjourned and on 14 May 1997 the court adopted judgment rejecting the applicant’s claim.
On 18 September 1997 the applicant appealed against the judgment.
On 21 November 2000 the proceedings ended by the Zagreb County Court’s decision upholding the first instance judgment.
62. On 5 July 1994 the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 10,000; 980,000 HRK; and CHF 18,350.
63. The preliminary hearings scheduled for 8 November 1994, 26 September 1995, 7 February, 24 April, 10 September and 2 December 1996 and 12 February 1998 were adjourned as B.J. failed to appear.
64. At the hearing on 22 April 1998 B.J. replied to the applicant’s claim.
On 26 June 1998 the applicant specified his claim.
65. At the hearing on 1 July 1998 the applicant and a witness were heard.
From 10 September 1998 to 12 October 2000 the court unsuccessfully attempted on many occasions to consult the case-file concerning criminal proceedings against B.J. before the same court.
66. At the hearing on 12 October 2000 the court adopted a judgment finding in favour of the applicant. The judgment became final on 16 January 2001.
According to the Government, the applicant has not sought the enforcement of the judgment.
67. On 5 July 1994 the applicant filed an action for re-payment of his loan in the amount of DEM 23,800 with the Zagreb Municipal Court.
68. Before the period to be examined by the Court several hearings were held and several adjourned.
69. The hearing scheduled for 5 December 1997 was adjourned because the witnesses invited did not appear.
70. At the hearing on 18 April 1998 one witness was heard. The court requested the Varaždin Police Department (Policijska uprava varaždinska) to submit the address of another witness.
On 9 July 1998 the Varaždin Police Department submitted the requested address.
71. At the hearing on 5 March 1999 Ð.M. gave her testimony. The court invited the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of F.I.M. and decided to examine the criminal case-file against Ð.M. However, the criminal case-file could not be consulted because the criminal proceedings were pending.
72. The hearings scheduled for 15 December 2000 and 22 February 2001 were adjourned because Ð.M. did not appear.
73. At the next hearing the court heard the applicant and Ð. M.
74. At the next hearing on 2 October 2001 the court stayed the proceedings because the applicant did not appear.
On 2 November 2001 the applicant filed a request to resume the proceedings.
It appears that the proceedings are pending before the court of first instance.
75. Section 59 (4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 – hereinafter “the Constitutional Court Act” – Ustavni zakon o Ustavnom sudu) reads as follows:
“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party’s constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”
Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 – hereinafter “The Act of 15 March 2002” – Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58244
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF PETRA v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 25;Non-pecuniary damage - financial award
JUDGES: John Freeland;N. Valticos
TEXT: 7. Mr Ioan Petra, who was born in 1941, is currently in custody in Aiud Prison (county of Alba), serving a fifteen-year sentence for murder imposed on 30 April 1991 by the Târgu-Mureş County Court.
8. On 10 January 1994, when the applicant was in custody at Mârgineni (county of Dâmboviţa), his wife wrote to the Commission to complain that her husband had not had a fair trial in the County Court. She also reported that he had encountered difficulties in sending letters from prison.
9. On 20 May 1994 the applicant himself sent the Commission a letter posted by his wife and asked that correspondence should be sent to him at home. On 22 July 1994 the Commission asked the applicant for additional information and documents in support of the application.
10. On 30 October and 19 November 1994 Mr Petra wrote to the Commission through his wife, reporting that the prison authorities would not allow him to fill in the application form.
11. On 21 January 1995 he sent the Commission a letter from Mârgineni Prison that was received on 14 February 1995. Written on regulation prison paper, it bore a registration number and had been sent from Bucharest in a Ministry of Justice envelope. Although mentioned as an enclosure, the judgment of 30 April 1991 was missing. This letter was written in a different hand from the earlier ones.
12. On 22 February 1995 the Commission sent the applicant an application form.
The form was filled in by the applicant on 9 March 1995 and sent to the Commission by the Romanian Prison Service (Direcţia Generală a Penitenciarelor) on 17 April 1995. No mention was made in it of any hindrance of correspondence.
13. On 18 June 1995, in response to a question from the Commission concerning the different handwriting in the letters it had received, Mr Petra indicated that he had been assisted by a friend “wholly unconnected with the case, a man who is discreet and disinterested”. He added that the prison authorities had informed him that the documents requested by the Commission had been dispatched. However, the Commission never received any of them.
Referring also to the right to respect for his correspondence, the applicant said that the prison governor, although very “flexible”, could not be of any greater assistance to him as the authorities were required to apply Law no. 23/1969 on the execution of sentences and its “secret” implementing regulations. In his view, it followed that there was a violation of Articles 8 and 25 of the Convention.
14. The applicant has stated that he never received the letter of 19 October 1995 in which the Commission informed him, among other things, that his application had been communicated to the Government.
15. On 9 December 1995 Mr Petra sent a letter through his wife to the Commission, informing it that on 26 September 1995 he had been transferred to Aiud Prison and that when he had sought permission to communicate his change of address, the reply had been “the Council of Europe is at Aiud and nowhere else” and that if he persisted, he would be put under the special prison regime.
16. On 4 January 1996 Mrs Petra informed the Commission that her husband had asked her to enquire about his application and to complain about the prison authorities’ systematic interference with his correspondence with the Commission. On 26 January 1996 the Commission sent a reply to Aiud Prison.
17. On 22 April 1996 the applicant’s wife wrote to the Commission to complain about the conditions in which her husband was being held, stating that he shared a 12 sq. m cell with five other prisoners and that the warders subjected him to inhuman treatment. The applicant had refused to give her the names of the warders who beat the prisoners, because he was too afraid.
18. Mr Petra did not learn that his application had been communicated to the Government until April 1996, when he received a copy of the letter of 19 October 1995 and relevant documents.
19. In a letter of 24 May 1996 posted by his wife the applicant again complained that his correspondence was being censored and stated that he was obliged to give his letters to the prison governor, who forwarded them to the Prison Service in Bucharest and that he was never certain that his letters were actually sent to Strasbourg.
20. On 13 June 1996 the Government submitted to the Commission all the documents concerning the court proceedings that had resulted in the applicant’s conviction.
21. On 3 January 1997 the Commission received two further letters sent from Bucharest in a Ministry of Justice envelope. The first of these, written by the applicant on regulation prison paper, was dated 4 December 1996, was stamped and bore a registration number. The second was a covering letter from the Head of the Prison Service, Major-General I.C.
Two other letters from the applicant, dated 24 and 27 February 1997, each stamped and bearing a registration number, were sent together from Bucharest by the Ministry of Justice on 14 March 1997, again with a covering letter from Major-General I.C.
22. In a letter of 9 March 1997 posted by his wife Mr Petra informed the Commission that he had received the decision on the admissibility of his application. He added that his correspondence with the Commission was being routinely opened and that his letters were being sent to the Commission through the Prison Service. He said that he had written the letter secretly for fear of being denounced to Lieutenant-Colonel V.C., who had threatened him in the following terms: “I’ll give you Council of Europe!” (Te aranjez eu pe tine cu Consiliul Europei!).
23. On 14 August 1997 the Commission received another letter written from prison on regulation prison paper on 8 July 1997, which was stamped, bore a registration number and had been sent from Bucharest in a Ministry of Justice envelope on 30 July 1997. No mention was made in it of any hindrance of correspondence.
24. On 15 April 1998 the registry of the Court received the applicant’s memorial written on regulation prison paper; it was stamped, bore a registration number and had been sent from Bucharest in a Ministry of Justice envelope.
25. The relevant provisions of Law no. 23/1969 on the execution of sentences provide:
“Convicted prisoners shall be entitled … to receive and send mail and sums of money.”
“A convicted prisoner’s right to receive … and send mail shall be granted according to the nature of the offence he has committed, the length of his sentence, whether he is a reoffender, whether he is doing work, his conduct and his willingness to undergo rehabilitation measures.
…”
“Any mail, books, newspapers or magazines whose content the prison governor considers unsuited to the process of rehabilitating a prisoner shall be withheld and kept at the prison. They shall be returned to the prisoner when he is released.
Mail whose content is unsuitable shall, if need be, be forwarded to the competent authorities.”
26. The relevant regulations of the implementing regulations of Law no. 23/1969, which were not published, provide:
“Convicted prisoners shall be entitled to submit petitions and written or oral requests to the prison governor, the public prosecutor, the President of the County Court for the area in which he is being held or other bodies.
The prison authorities shall provide convicted prisoners with writing materials.”
“Requests and complaints addressed to central or local authorities shall be sent direct to those authorities by the prison authorities. Unsuitable requests shall be sent to the Prison Service so that the measures prescribed by law may be taken.
…”
“Prison governors shall dispatch requests and complaints within five days of the day on which they receive them. Convicted prisoners shall be informed of the outcome of their requests and complaints as soon as the replies have been received and shall sign to that effect.”
According to the table annexed to the implementing regulations, prisoners convicted of murder are entitled to receive and send one letter every two months if they are working in prison and one letter every three months if they are not.
VIOLATED_ARTICLES: 25
8


ITEMID: 001-58751
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF DIKME v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (non exhaustion of domestic remedies, six month period);No violation of Art. 5-2;Violation of Art. 5-3;Violation of Art. 3 in respect of ill-treatment;Violation of Art. 3 in respect of ineffective investigation;No violation of Art. 6-1 and 6-3-c;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 10. The applicants, Mr Metin Dikme and his mother, Mrs Emine Dikme, were born in 1969 and 1933 respectively. The first applicant is currently held in Istanbul Prison. His mother lives in Vienna.
11. The circumstances in which the first applicant was arrested, taken into police custody and detained pending trial, as set out by him in a letter dated 24 June 1992, may be summarised as follows.
12. At 7.30 a.m. on 10 February 1992 three police officers stopped and questioned the first applicant and his female companion Y.O. in the Levent district of Istanbul. Both were in possession of false identity papers. They were immediately arrested and, after a wait of several hours at the local police station, were taken to the anti-terrorist branch of the Levent police headquarters in Istanbul (“the branch”).
They were taken into custody in separate parts of the building. On arrival, the first applicant was blindfolded and a group of police officers who said they were members of the “anti-Dev-Sol” squad began punching and kicking him, threatening to kill him if he did not reveal his true identity. He was then led to a ground-floor room where he was stripped, had his hands tied together behind his back and was suspended by his arms, a method known as “Palestinian hanging”. For several hours the police officers beat him repeatedly while he was in this position and administered electric shocks through electrodes attached to his feet and genitals.
13. At about 7 p.m. Mr Dikme was carried to another room and made to lie on the floor with his hands still tied behind his back. A man who said he was a member of the secret service told him: “You belong to Devrimci Sol, and if you don't give us the information we need, you'll be leaving here feet first!” The police officers then started to beat him, aiming some of their blows at his genitals. That lasted until 2 a.m., at which point he was taken to a 2-sq. m. cell, where he had to sleep naked on the floor.
14. At about 8 a.m. the next morning he was taken back to the ground floor, tied up and laid on the ground. He suffered a further beating and electric shocks were administered to his feet, the area behind his ears and his tongue. By the time the torturers went to lunch, he had already fainted twice. An hour later he was again subjected to “Palestinian hanging” and given electric shocks while having cold water poured over him. He was then left lying on the concrete, naked and blindfolded.
That evening he was taken back upstairs, where the secret-service agent dragged him by the hair and twice banged his head against the wall. He was then dressed and taken to a forest, where somebody pointed a revolver at his head and urged him to say his “last prayer” before firing a blank shot. Immediately after this mock execution, he was escorted back to the branch. There he was again blindfolded and stripped and then placed in a bath of ice-cold water. The next day the police officers continued to ill-treat him.
15. The ill-treatment ended on Mr Dikme's fifth day in custody. However, he continued to be questioned while blindfolded, and was subjected to a barrage of abuse.
16. Mr Dikme had no assistance from a lawyer at any time while he was in police custody; he spent sixteen hours a day in his cell and was not allowed to have any visitors or to read any books or newspapers. The only person he saw after entering the premises of the branch was his companion Y.O., although he was not able to speak to her.
In that connection, he produced to the Court a letter from Y.O. containing the following passages:
“Metin Dikme and I were arrested on 10 February 1992. ... As soon as we arrived at the first branch they blindfolded us and separated us. Before I was taken to a cell, I saw that they had started to beat him. During the sixteen days I spent in the branch, I only saw Metin when he was on his way to or from interrogation sessions, and sometimes when he was being taken to the toilet. On each occasion he was blindfolded. Just once, I could see bruises on his eyes. However, when they questioned me they were always insulting Metin and telling me how they had tortured him ...”
17. On 25 February 1992 the branch requested the public prosecutor at the Istanbul National Security Court (“the public prosecutor”, “the National Security Court”) to refer the first applicant and Y.O. to the Sultanahmet office of the Institute of Forensic Medicine. The public prosecutor consented and on 26 February 1992 – the sixteenth day of their detention in police custody – they were examined by a forensic medical expert, who allegedly told the first applicant: “You're fighting fit; there's nothing wrong with you.”
The medical report, drawn up that same day, stated that no traces of blows or physical force had been found on Y.O.'s body; only “old grazes covered by a scab were observed on [the first applicant's] left elbow”.
18. Later that day the first applicant and Y.O. were interviewed by the public prosecutor and brought before a judge of the National Security Court. They retracted the statements which they had made to the police and said that they had been signed “under torture”; they denied the accusations against them. Y.O. made the following statement: “I am lodging a complaint against the police officers who tortured me and who ... called themselves the Dev-Sol Squad.”
The judge ordered them to be detained pending trial, as he found that there was “substantial evidence” of their membership of Dev-Sol and of their involvement in acts of violence carried out by that organisation.
The following comment, signed by Metin Dikme, appeared at the bottom of the order: “I do not wish to inform anybody that I am being held in detention.”
19. After being transferred to Istanbul Prison, the first applicant was examined by the prison doctor, without a lawyer being present.
In his “preliminary” report, dated 28 February 1992, the doctor noted the presence of a series of marks on the first applicant's body. These findings were subsequently reiterated and confirmed in the final report of 4 March 1992, drawn up by the Eyüp office of the Institute of Forensic Medicine following a further examination of the first applicant by a forensic medical expert from that office:
“With reference to report no. 55 of 28 February 1992, signed by the prison doctor and drawn up in respect of Metin Dikme ... and further to an examination of the latter, the following findings were recorded:
[Observed] a scab 0.5 cm in diameter in the left axillary region; a 7 cm by 7 cm erosion on the left elbow, which had formed a scab; two parallel circular lesions, which had partly formed a scab, 4 cm apart on the left wrist; skin erosions on the proximal phalanges of the thumb, index finger and middle finger and a 1.5 cm skin abrasion on the inner side of the distal phalanx of the middle finger of the left hand; a scab on the right elbow; two 0.5 cm scabs on the right outer forearm; a skin lesion on the right wrist; scabs measuring 1 cm on the distal phalanx of the third finger, 0.5 cm on the proximal phalanges of the middle, third and little fingers, 3 cm by 1 cm and 3 cm by 2 cm behind the patella, 10 cm by 1 cm in the region of the right thigh, 0.5 cm by 0.5 cm on the upper part of the right medial malleolus, and 0.5 cm by 0.5 cm on the lateral malleolus; a bruise on which a scab had formed on the fifth toe of the right foot and a 0.5 cm by 0.5 cm scab on the big toe; a 2 cm by 2 cm skin erosion on the upper part of the right foot; and a 2 cm by 2 cm scab on the medial malleolus and a 1 cm by 1 cm scab on the lateral malleolus.
There are also signs of abrasions which have partly formed scabs and partly healed over, as well as of yellowish and brownish bruises (whose dimensions were recorded in the preliminary report) now returning to a normal colour on the fingers of both hands, on both wrists, on the elbows, arms and ankles, on the upper parts of the toes of both feet, and on the right thigh and patella.”
The forensic medical expert concluded by stating that the above-mentioned sequelae were not life-threatening and prescribing a five-day period of convalescence.
20. On 11 June 1992, the date of the religious festival marking the last day of Ramadan, Mrs Dikme sought to visit the first applicant, but was refused permission by the prison managers.
21. On 18 June 1992 the first applicant signed an authority for a lawyer to act on his behalf, although he did not see the lawyer in person (see paragraph 28 below).
22. In an indictment issued on 7 September 1992 the public prosecutor charged the first applicant and Y.O. with carrying out a series of attacks between 1990 and 1992, the victims of which had included a public prosecutor, a retired general and six police officers, and with involvement in a number of acts of violence committed on behalf of the illegal armed organisation Dev-Sol. He sought the death penalty for the first applicant and Y.O., under Article 146 § 1 of the Criminal Code.
23. On 23 October 1992 the trial began at the National Security Court. The first applicant filed pleadings in which he denied the charges against him and categorically repudiated the content of the records of statements taken by the police while he was in custody, alleging that the statements had been obtained by torture. He accordingly made formal complaints against the officers responsible for him during his time in police custody, and relied on the medical report of 4 March 1992 (see paragraph 19 above and paragraph 29 below).
The first applicant submitted, inter alia, that he and Y.O. had had to use false identity papers for fear of police reprisals on account of the criminal record of his sister, who had been killed during a clash with the police in Ankara, and that they had passed themselves off as a married couple simply in order to be able to rent a flat more easily. He consequently pleaded not guilty and applied for release on bail.
24. On 8 January and 8 October 1993 the public prosecutor preferred two further indictments, charging the first applicant with carrying out other acts of violence, likewise between 1990 and 1992, including murder, armed assaults and robberies, bomb attacks and assault and battery.
25. After holding forty-four hearings and hearing evidence from some seventy witnesses, the National Security Court delivered its judgment on 26 June 1998. It held that “in the light of the evidence, the accused's guilt [was] established” in relation to some of the offences, which he had committed on behalf of Dev-Sol with the aim of undermining the constitutional order, and sentenced him to death, having regard to the intensity, quantity and seriousness of the offences and to his failure to show any remorse during the trial.
26. The first applicant's counsel and Principal State Counsel at the Court of Cassation appealed on points of law against the National Security Court's judgment on 29 September and 12 November 1998 respectively. In his appeal counsel for the first applicant did no more than complain that the sentence was “unjust and severe”, while Principal State Counsel submitted that the impugned judgment could not be regarded as having been supported by sufficient grounds, since it did not contain details, where they were needed, of the evidence on which the conviction had been based and the National Security Court's assessment of that evidence.
27. In a judgment of 22 March 1999, delivered on 7 April 1999, the Court of Cassation set aside the judgment of 26 June 1998 on the ground that it was “contrary to Article 141 of the Constitution and Articles 32 and 260 of the Code of Criminal Procedure to deliver a judgment without applying the rule that judgments must be reasoned in such a way as to enable the Court of Cassation to carry out its review, and without referring in the operative provisions to the substantiated evidence in respect of each of the charges and the assessment made of it ...”.
The Court of Cassation consequently remitted the case to the National Security Court, where it is still pending.
28. After putting forward their defence at the hearing of 23 October 1992 in the National Security Court (see paragraph 23 above), the first applicant and Y.O. had lodged two separate written complaints against their alleged torturers. On 27 November 1992, in the light of that and, it would seem, on the instructions of a ministerial authority, the public prosecutor decided to contact the relevant authorities in order to ascertain whether the first applicant had had access to a lawyer while in police custody and/or been subjected to ill-treatment after being taken into custody at Istanbul Prison.
In a letter dated 30 November the head of the branch replied that “no interview with a lawyer [had taken] place, since throughout Metin Dikme's time in police custody, no lawyer [had] submitted ... a request to that effect”.
On 1 December 1992 the governor of Istanbul Prison stated: “Metin Dikme ... was not subjected to ill-treatment during his detention and has never lodged a complaint to that effect with our management. There is no risk of his being subjected to ill-treatment while he is held in our prison. Our files also indicate that he had never conferred with a lawyer.”
29. On 8 December 1992 the President of the National Security Court forwarded the complaints filed on 23 October 1992 to the public prosecutor for action.
30. In an order of 10 December 1992 the public prosecutor ruled that he had no jurisdiction ratione materiae and sent the case to the Istanbul prefecture, pursuant to section 15(3) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 36 below).
31. On 9 July 1993 the Administrative Council of the province of Istanbul decided that there was no case to answer in respect of the criminal complaint lodged by the first applicant and Y.O. That decision was served on the first applicant on 6 August 1993.
32. The Court does not have any other information regarding those proceedings.
33. At the material time section 16 of Law no. 2845 on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within forty-eight hours at the latest or, if the offence was a joint one committed outside the region under emergency rule, within fifteen days, not including the time needed to convey the detainee to the judge.
34. Before questioning an arrested person, police officers must inform him of the offence of which he is suspected and ask whether he wishes to say anything in reply. With regard to legal assistance, Article 144 of the Code of Criminal Procedure (“CCP”) provides, in the version applicable in the instant case, that an accused may confer or correspond with a legal adviser only after being detained pending trial, and the judge may decide that certain items in the file which are considered sensitive will not be disclosed to the accused until criminal proceedings have been instituted. In addition, the accused's legal adviser may not inspect documents in the file until the public prosecutor's office has preferred the indictment (Article 143).
35. Under the Turkish Criminal Code it is an offence for a government employee to subject a person to torture or ill-treatment (Article 243 in relation to torture and Article 245 in relation to ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation where acts or omissions that may constitute such an offence are brought to their attention are governed by Articles 151 to 153 CCP. Offences may be reported not only to public prosecutors' offices or the security forces but also to local administrative authorities. Complaints may be made in writing or orally. If they are made orally, the authority must make a record of them (Article 151).
Under Article 235 of the Criminal Code, any government employee who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the performance of his duties is liable to imprisonment. A public prosecutor who is informed by whatever means of a situation that gives rise to the suspicion that an offence has been committed is under a duty to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 CCP).
36. If the suspected offender is a civil servant and the offence was committed in the performance of his duties, the preliminary investigation of the case is governed by the Prosecution of Civil Servants Act 1914, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or the province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against decisions of local administrative councils. If a decision not to prosecute is taken, the case is automatically referred to that court.
With regard to accusations against members of the police force and intelligence services engaged in combating terrorism, section 15(3) of Law no. 3713 – which was in force at the material time – was a lex specialis under which preliminary investigations were subject to the same rule on jurisdiction, but only in respect of offences other than homicide. Subsequently, in a judgment of 31 March 1992 published in the Official Gazette on 27 January 1993, the Constitutional Court annulled that provision with effect from 27 July 1993.
37. Under Article 102 of the Criminal Code taken together with Articles 243 and 245 cited earlier, there is a five-year time-limit for prosecuting offences of ill-treatment and torture committed by civil servants.
38. From the principles established by the Turkish courts when applying the criminal law it is clear that the questioning of a suspect is a means of enabling him to defend himself that should work to his advantage and not a measure designed to obtain evidence against him. While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case, they must nonetheless be made voluntarily, and statements obtained through the use of pressure or force are not admissible in evidence. By Article 247 CCP, as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor's office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution. If the confessions are not repeated, the records in question are not allowed to be read out as evidence in court and consequently cannot be relied on to support a conviction. Nevertheless, even a confession repeated in court cannot on its own be regarded as a decisive piece of evidence but must be supported by additional evidence.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 5
6
8
NON_VIOLATED_PARAGRAPHS: 5-2
6-1


ITEMID: 001-96457
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GARDEL v. FRANCE
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Art. 8
JUDGES: Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1962 and is currently in prison in Montmédy.
6. Following a complaint lodged on 18 February 1997 by the parents of a young girl, S., the applicant was charged with the rape and sexual assault of a minor under 15 years of age by a person in a position of authority.
7. During the investigation he made several requests for additional investigative measures to be taken, which were refused by the investigating authorities.
8. On 15 April 2003 an investigating judge at the Bar-le-Duc tribunal de grande instance issued an order discontinuing the proceedings in respect of the sexual assault charges, as the limitation period had expired. The judge committed the applicant for trial on a charge of rape of a minor under the age of 15 by a person in a position of authority over the victim.
9. On 30 October 2003 the Meuse Assize Court sentenced the applicant to fifteen years’ imprisonment and stripped him of all his civil, civic and family rights for ten years.
10. The applicant did not appeal against that decision but lodged an application for a retrial, producing a number of documents which he claimed placed his guilt in doubt.
11. On 9 March 2004 Law no. 2004-204 established the national automated register of sex offenders (“the Sex Offenders Register”).
12. On 11 April 2005 the Criminal Cases Review Board rejected the applicant’s application for a retrial.
13. On 28 February 2005 the applicant applied to the Créteil Postsentencing Court to have his sentence suspended. On 17 June 2005 the application was refused on the grounds that, according to the expert medical reports, “the applicant’s survival is not in doubt, nor is his state of health incompatible in the long term with detention. Therefore, as matters stand, he does not meet the requirements of Article 720-1-1 of the Code of Criminal Procedure and is not eligible for the measure in question”. The court pointed out that the applicant’s sentence was due to run until 27 May 2019 and that his criminal record mentioned another conviction for sexual abuse of a minor under the age of 15 by a person in authority (a sentence of six years’ imprisonment and a judicial and social supervision order imposed by the Nancy Court of Appeal on 29 August 2002 for sexual assault of a minor). The court also took into consideration medical reports according to which the applicant suffered from congenital heart disease which made any physical activity impossible. The report advocated his placement under an enhanced prison regime with an individual cell, no exercise or physical activity, a salt-free diet and regular medication. The court also referred to a psychiatric expert report from November 2004 according to which the applicant’s psychological development “appears very limited in so far as he has failed to reflect on his own conduct. He has expressed no feelings of guilt or responsibility for the offences which he denies committing. A course of psychotherapy would help him develop more satisfactory relationships in the future with the people he comes into contact with”.
14. On 13 October 2005 the post-sentencing division of the Paris Court of Appeal upheld this judgment.
15. On 22 November 2005 the applicant was informed by a police officer from l’Haÿ-les-Roses police station that his name was being entered in the Sex Offenders Register on account of his conviction by the Meuse Assize Court, in accordance with the transitional provisions of the abovementioned Law of 9 March 2004. The official notification was worded as follows:
“I, the undersigned, Mr Fabrice Gardel, hereby acknowledge that I have today been notified of my inclusion in the Sex Offenders Register on account of the [sentence] of imprisonment imposed on 30 October 2003 by the Meuse Assize Court, and that I am accordingly required, under Article 706-53-5 of the Code of Criminal Procedure, to:
1. provide proof of my address: ...
Once a year either to the authority managing the register (the Ministry of Justice) ... or to my local police or gendarmerie station ..., during the month in which my birthday falls or during the month of January if my date of birth is not known or not established. ...
I expressly acknowledge having been informed that:
I have been finally convicted of an offence carrying a sentence of ten years or more. Accordingly, I am required to provide proof of my address by reporting in person every six months. ...
I take note of the fact that if I leave the country my obligation to report in person will be suspended for the duration of my stay abroad but that I must continue to provide proof of my address by means of a registered letter with recorded delivery to the authority managing the Sex Offenders Register ... accompanied by documents certifying my address and signed by the local consular authority.
2. declare any change of address within fifteen days at the latest, in the same manner.
I acknowledge having been informed:
(i) that I must provide proof of my address for the first time within fifteen days of this notification, unless the latter is issued less than two months before the first day of the month of my birth, referred to above, or I am already required to provide proof of my address on an annual basis;
(ii) that failure to comply with these obligations is punishable by a term of two years’ imprisonment and a fine of 30,000 euros;
(iii) that any breach of these obligations will lead to an alert being issued to the judicial authorities and the police or gendarmerie which may result in my inclusion on the list of wanted persons and may be accompanied by a criminal prosecution;
(iv) that, pursuant to Article R. 53-8-13, the proof of address and declaration of change of address provided for by Article 706-53-5 shall take the form of any document less than three months old in my name which gives proof of my home address, such as a bill or invoice;
(v) that if the document produced refers to the address of another person, it must be accompanied by a statement written and signed by the latter confirming that I am staying at that address.
I further acknowledge having been informed that I have the following rights:
(i) under the Data Protection Act and Article 706-53-9, I may obtain a copy of all the information concerning me in the register by applying to the public prosecutor in whose district I am resident;
(ii) if the decision forming the basis for my placement on the register was issued by a foreign judicial authority, I may apply to the public prosecutor at the Nantes tribunal de grande instance to have the information in the register rectified or deleted or to have the frequency of reporting reduced to once a year, in accordance with Articles R 53-8-27 et seq.”
16. The national automated register of sex offenders (“the Sex Offenders Register” – FIJAIS), which was established in 2004, is a criminal identification register similar to the national fingerprint database (FAED), the national genetic database (FNAEG) and the national criminal records (CJN), the last of which have been in existence the longest. An information paper on police registers tabled before the National Assembly on 24 March 2009 noted an upsurge in the number of such registers. The working party chaired by Mr Alain Bauer noted that there were around forty-five in 2008 compared with thirty-four in 2006, and that another dozen or so were “in the pipeline”.
The Ministry of Justice is responsible for and manages the Sex Offenders Register. It is maintained by the National Criminal Records Department in Nantes, under the supervision of the judge in charge of the national criminal records.
17. The national automated register of perpetrators of sexual crimes was established by Law no. 2004-204 of 9 March 2004 on adaptation of the justice system to changing trends in criminal offending. It is aimed at preventing repeat sexual offences, making it easier to identify offenders and allowing them to be traced quickly at any time.
A series of transitional measures lay down detailed arrangements for the placement on the register of persons who committed such offences prior to the entry into force of the above-mentioned Law. The provisions are applicable to persons who committed such offences before the date of promulgation of the Law but were the subject, after that date, of one of the decisions referred to in Article 706-53-2 of the Code of Criminal Procedure (see paragraph 18 below). They can also be applied to persons serving a custodial sentence before the promulgation of the Law (at the request of the public prosecutor).
18. The relevant provisions of the CCP read as follows:
“The provisions of this Title shall apply to proceedings concerning the murder, whether or not premeditated, of a minor preceded or accompanied by rape, torture or acts of barbarity or for the offences of sexual assault or sexual abuse of a minor, living on the immoral earnings of a minor or paying a minor for sexual services ...
These provisions shall also apply to proceedings concerning the crime of murder, whether or not premeditated, accompanied by torture or acts of barbarity, the crimes of torture or acts of barbarity and the crime of murder, whether or not premeditated, committed as a repeat offence.”
“The national automated register of perpetrators of sexual or violent crimes shall constitute a database of personal information held by the Criminal Records Department under the authority of the Minister of Justice and the supervision of a judge. In order to prevent repeat offences of the kind referred to in Article 706-47 and to facilitate identification of the perpetrators of such offences, the information referred to in Article 706-53-2 shall be gathered, stored and communicated to authorised persons in accordance with the arrangements laid down in this Chapter.”
“Subject to the provisions of the last paragraph of this Article, and in so far as they relate to one or more of the offences referred to in Article 706-47, details of an individual’s identity and home address or successive home addresses and, where applicable, other residences shall be entered in the register where the individual concerned has been the subject of:
1. A conviction, whether or not final, including conviction in absentia, or a declaration of guilt accompanied by an order dispensing him or her from sentence or adjourning sentence;
2. A decision, whether or not final, delivered under sections 8, 15, 15-1, 16, 16 bis and 28 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency;
3. An agreed penalty scheme provided for by Article 41-2 of this Code, the implementation of which has been certified by the public prosecutor;
4. A decision discontinuing the proceedings or discharging or acquitting the person concerned on the basis of the first paragraph of Article 122-1 of the Criminal Code;
5. A criminal charge, accompanied by a court supervision order, where the investigating judge has ordered the entry of the decision in the register;
6. A decision of the same kind as those referred to above which was delivered by a foreign court or judicial authority and which, under the terms of an international convention or agreement, was notified to the French authorities or was enforced in France following the transfer of the convicted person.
The register shall also contain information concerning the judicial decision forming the basis for placement on the register and information on the nature of the offence. The decisions referred to in points 1 and 2 shall be entered in the register on delivery.
Decisions concerning the offences referred to in Article 706-47 which carry a sentence less than or equal to five years’ imprisonment shall not be entered in the register, except where expressly ordered by the court or, in the case of points 3 and 4, by the public prosecutor.”
“Without prejudice to application of the provisions of Articles 706-53-9 and 7065310, the information referred to in Article 706-53-2 concerning an individual shall be deleted from the register on the death of the person concerned or on expiry of the periods laid down below, calculated from the date on which all the decisions entered in the register cease to have effect:
1. A period of thirty years in the case of a serious crime or a major offence carrying a sentence of ten years’ imprisonment;
2. A period of twenty years in all other cases.
The information in question shall not be deleted as the result of an amnesty or rehabilitation, or under the rules relating to the removal of convictions from the criminal records.
This information may not, by itself, be used as evidence of recidivism.
Information entered in the register under points 1, 2 and 5 of Article 706-53-2 shall be deleted from the register in the event of a final decision discontinuing the proceedings, a final discharge or a final acquittal. Information entered under point 5 shall also be deleted in the event of the cessation or lifting of the court supervision order.”
“All persons whose identity is recorded in the register shall be bound, as a security measure, by the obligations set forth in this Article.
The person concerned shall be required, by means of a registered letter with recorded delivery addressed to the authority managing the register, or by registered letter with recorded delivery addressed to the local police or gendarmerie station, or by reporting in person, to:
1. provide proof of his or her address once a year;
2. declare any change of address within fifteen days at the latest.
If the person concerned has been finally convicted of a serious crime or a major offence carrying a sentence of ten years’ imprisonment, he or she must provide proof of address every six months by reporting to the local police or gendarmerie station or the gendarmerie or police headquarters in his or her département of residence, or to any other department designated by the prefecture.
Failure to comply with the obligations laid down in this Article shall be punishable by two years’ imprisonment and a fine of 30,000 euros.”
“Any person whose identity has been recorded in the register shall be informed accordingly by the judicial authority, either in person or by registered letter to the last reported address.
The person concerned shall be informed on that occasion of his or her obligations under Article 706-53-5 and the penalties he or she faces in the event of failure to comply.
Where the person concerned is in detention, the information provided for by this Article shall be provided on his or her final release or prior to the first measure relaxing the conditions of the sentence.”
“The information contained in the register shall be directly accessible, via a secure telecommunications system, to:
1. The judicial authorities;
2. The criminal investigation police, in the context of proceedings concerning the crimes of deliberately endangering human life, abduction or kidnapping or one of the offences referred to in Article 706-47, and for the purpose of taking the measures provided for in Articles 706-53-5 and 706-53-8;
3. The prefects and State administrative authorities listed in the decree provided for by Article 706-53-12, for the purposes of administrative decisions concerning recruitment, posting, authorisation, approval or permission in relation to activities or professions involving contact with minors and for the purpose of supervising the carrying-on of such activities or professions. ...
The information in the register shall also be made available to mayors and presidents of the département councils and regional councils, via the prefects, for the purposes of the administrative decisions referred to in point 3 relating to activities and professions involving contact with minors and for the purpose of supervising the carrying-on of such activities or professions.”
“In the manner specified in the decree provided for by Article 706-53-12, the authority managing the register shall inform the Ministry of the Interior directly of any new entry in the register or change of address, or if a person on the register has not provided proof of his or her address within the prescribed period. The Ministry shall forward the information without delay to the competent police or gendarmerie department.
The police or gendarmerie may conduct all relevant checks and lodge whatever requests are necessary with the public authorities with a view to verifying or tracing the person’s address.
If it transpires that the person concerned is no longer at the address indicated, the public prosecutor shall enter his or her name on the list of wanted persons.”
“Persons who furnish proof of their identity shall be provided with all the information concerning them in the register, on application to the public prosecutor at the tribunal de grande instance for their place of residence.”
“Persons whose identity is recorded in the register may request the public prosecutor to rectify or order the deletion of the information concerning them if the information is inaccurate or it is no longer necessary to conserve it in view of the purpose of the register, regard being had to the nature of the offence, the age of the person concerned when it was committed, the interval that has elapsed and the current personality of the person concerned.
A request for information to be deleted shall be inadmissible where the information concerned (repealed by section 43 of Law no. 2007-297 of 5 March 2007, with effect from 7 March 2008) ‘remains in Bulletin no. 1 of the criminal record of the person concerned or’ concerns judicial proceedings which are still pending (section 43 of Law no. 2007-297 of 5 March 2007), ‘in so far as the person concerned has not been rehabilitated or the measure giving rise to the entry in the register has not been deleted from Bulletin no. 1’.
If the public prosecutor does not order the rectification or deletion of the information, the person concerned may apply for this purpose to the liberties and detention judge. An appeal shall lie against the latter’s decision to the President of the Investigation Division.
Before ruling on the request for rectification or deletion, the public prosecutor, the liberties and detention judge and the President of the Investigation Division may order whatever checks they deem necessary, including an expert medical report on the person concerned. If the information in the register concerns a serious crime or a major offence carrying a sentence of ten years’ imprisonment and committed against a minor, no decision to delete the information may be taken in the absence of such an expert report. ...”
“The detailed arrangements for application of the provisions of this Chapter shall be laid down by decree of the Conseil d’Etat after consultation of the National Data Protection Commission.
The decree shall specify, in particular, the circumstances in which the register shall record the enquiries relating to it and the occasions when it was consulted.”
“A record shall be kept in the register for three years of information concerning entries and enquiries relating to it, specifying the status of the person or authority making the entry or enquiry.
This information shall be accessible only to the judge in charge of the department maintaining the register or to persons to whom he or she gives express permission.
Statistics may be compiled on the basis of this information.”
19. In its ruling no. 2004-492 DC of 2 March 2004, the Constitutional Council held as follows:
“... the recording of a person’s identity in the [Sex Offenders Register] ... is designed ... to prevent repeat offences of this kind and to facilitate the identification of the perpetrators of such offences. It follows that placement on the register is not a sanction but a public-order measure.” (§ 74)
The Constitutional Council further held, with regard to the entry of information in the register and its consultation and use:
“... regard being had firstly to the safeguards provided by the conditions on the use and consultation of the register and the fact that the power to enter or delete personal data rested with the judicial authority, and secondly to the seriousness of the offences giving rise to the entry of personal data in the register and the rate of reoffending with this type of offence, the impugned provisions were such as to reconcile respect for private life and the protection of public order in a manner that clearly struck a fair balance.” (§ 87)
Lastly, it held:
“... the requirement for persons on the register to give periodic notice of their home address or the address where they are resident does not constitute a sanction, but rather a public-order measure aimed at preventing reoffending and facilitating the identification of offenders. The very purpose of the register makes it necessary to check the addresses of the persons concerned on an ongoing basis. The burden imposed on them in order to ensure that such checks are carried out does not constitute a non-essential [measure] for the purposes of Article 9 of the 1789 Declaration ...” (§ 91)
20. In a judgment of the Criminal Division of 12 March 2008, the Court of Cassation ruled on the nature of placement on the register (see also Cass. crim. 31 October 2006, Bull. crim. no. 267). It held as follows:
“Whereas ... in ordering placement on the Sex Offenders Register, the Court of Appeal accurately applied section 216 of the Law of 9 March 2004, according to which the provisions concerning placement on the register apply to offences committed before the date of promulgation of the Law. This section is not in breach of the Convention provisions relied on, as placement on the Sex Offenders Register, which is merely a security measure and not a penalty, is not subject to the principle prohibiting the retrospective application of more severe provisions of substantive law. ...”
The Court of Cassation has upheld the automatic nature of placement on the register in the case of offenders sentenced to more than five years’ imprisonment (Cass. crim. 16 January 2008).
21. In December 2008 this working party submitted a report to the Minister of the Interior, the Overseas Departments and Territories and the Territorial Authorities entitled: “Tightening procedures to improve the protection of freedoms”. According to the report, 20,222 names had been entered in the Sex Offenders Register when it was established in June 2005; by October 2008 the number of entries was 43,408.
22. Articles 768 to 781 of the CCP deal with the operation of the national criminal records. These record convictions imposed by the criminal courts, as well as some commercial, administrative and disciplinary convictions which entail incapacity. A person’s criminal record is divided into three headings. The information contained in the criminal record is provided in the form of bulletins.
Bulletin no. 1 (Article 774 CCP) records all the files in the criminal record, in other words all the person’s convictions. It may be issued only to the judicial authorities.
Bulletin no. 2 (Article 775 CCP) contains most of the convictions for criminal offences with the exception, in particular, of youth convictions, foreign rulings, convictions for minor offences and suspended sentences once the probationary period has expired. A request can be made to the judge for a conviction not to be entered in Bulletin no. 2 (although it will remain in Bulletin no. 1). This bulletin is made available only to certain administrative and military authorities (prefects, military authorities, heads of public companies, etc.) on specific grounds.
Bulletin no. 3 (Article 777 CCP) records the most serious convictions for major offences, and especially custodial sentences of over two years. This bulletin is the only one of which the person concerned may obtain a copy.
23. The Criminal Code provides for a rehabilitation procedure for convicted individuals, enabling a conviction to be deleted from the criminal records before expiry of the statutory period (forty years). Article 133-1 of that Code states that rehabilitation erases the conviction.
24. Article 133-13 lays down the conditions for automatic rehabilitation:
“A convicted individual who has not been the subject of a further criminal conviction within the periods set out below shall be automatically rehabilitated:
...
3. In the case of a single prison sentence not exceeding ten years or multiple prison sentences not exceeding five years in total, after a period of ten years calculated from the date on which the sentence ends or from the date of expiry of the limitation period.
...”
25. The CCP lays down the arrangements governing the judicial rehabilitation procedure:
“During the lifetime of the convicted person, an application for rehabilitation may be made to the courts only by the person concerned or, if he or she is disqualified, by his or her legal representative. In the event of the person’s death and where the statutory conditions are met, the application may be pursued by his or her spouse, ascendants or descendants or may even be lodged by them, within one year of the person’s death.”
“The application for rehabilitation may be made only after five years in the case of persons convicted of a serious crime ...
This period shall be counted ... in the case of persons who have received a custodial sentence, from the date of their final release or, in accordance with the provisions of Article 733, third paragraph, the date of their conditional release where the latter was not revoked subsequently ...”
26. The rules governing the removal of an offence from the criminal records are as follows:
“... Files concerning convictions which have been erased by an amnesty or have been overturned shall be deleted from the criminal records ... The same shall apply ... to files concerning convictions ... imposed more than forty years previously where there have been no further convictions for any category of criminal offence.
The following shall also be deleted from the criminal records:
...
8. Convictions in respect of which the offender has been granted judicial rehabilitation, where the court expressly orders the removal of the conviction from the records in accordance with the second paragraph of Article 798.”
27. The 1981 Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”) defines “personal data” as any information relating to an identified or identifiable individual. The Convention provides, inter alia, as follows:
“...
Considering that it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing;
...
Personal data undergoing automatic processing shall be:
...
b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;
c. adequate, relevant and not excessive in relation to the purposes for which they are stored;
...
e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.
Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. ...
Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”
28. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17 September 1987) provides, inter alia, as follows:
“2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.
...
Principle 3 – Storage of data
3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.
...
Principle 7 – Length of storage and updating of data
7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.
For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.”
29. In March 2004 the Senate of the French Republic published a “Comparative law study” (no. 133) concerning the treatment of sexual offences committed against minors. The report stated that “a sex-offenders register exists only in England and Wales”. In Germany, there is no Federal register but two Länder (Bavaria and Bremen) have their own registers. The Bavarian register, known as HEADS (Haft-Entlassenen-Auskunfts-Datei-Sexualstraftäter), can be accessed only by police officers and judges. In the United Kingdom, data concerning offenders sentenced to more than thirty months’ imprisonment are kept indefinitely and there is no possibility of having the data deleted (Sexual Offences Act 2003, section 82).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-80079
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZELENI BALKANI v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection (non-exhaustion of domestic remedies) dismissed;Violation of Art. 11;Violation of Art. 11+13;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Peer Lorenzen
TEXT: 6. On an unspecified date the Plovdiv Municipality (the municipality) started clearing the banks and the riverbed of the river “Maritza”, which runs through the city. The procedure involved the uprooting and eradication of trees and plant life, which were blocking the flow of the river.
7. The applicant organisation believed that the actions of the municipality were in violation of the domestic environmental protection legislation and that the disorderly uprooting and eradication of the trees and the plant life would disrupt the biological balance of the river.
8. On 18 April 2000 the applicant organisation informed the municipality of its intention to hold a public rally on the following day, the 19th, in front of the municipality. The aim of the public rally was to protest against the municipality's actions and to demand that the disorderly uprooting and eradication of the river's plant life be stopped because it was destroying important alluvial trees and the habitat of rare, endangered birds.
9. In a letter of 19 April 2000 the municipality informed the applicant organisation that it would not permit the rally to go ahead as planned. The full text of the letter, signed by the secretary of the municipality, read as follows:
“We inform you that the Plovdiv Municipality does not permit the conducting of the [planned] public rally.”
10. Later on the same day, police officers visited the offices of the applicant organisation and obtained signed declarations from its leaders that they were aware of the prohibition and would not organise the rally as planned.
11. The applicant organisation did not hold a rally on 19 April 2000 and the clearing the banks and the riverbed of the river “Maritza” continued unabated.
12. On 26 April 2000 the applicant organisation appealed against the municipality's prohibition of its public rally. The appeal was filed with the municipality which did not forward it, as required under the applicable legislation, to the domestic courts together with all relevant documents.
13. On 7 June 2000 the applicant organisation re-filed its appeal with the Plovdiv Regional Court.
14. On 21 June 2000 the Plovdiv Regional Court requested the municipality to provide it with its file and all other relevant documents regarding the public rally planned by the applicant organisation.
15. The municipality sent the requested documents to the Plovdiv Regional Court on 22 June 2000 with the exception of the applicant organisation's appeal of 26 April 2000.
16. On 5 July 2000 the Plovdiv Regional Court requested that the municipality also provide it with the applicant organisation's appeal of 26 April 2000. On the same day it also instructed the applicant organisation to deposit the required court fee, which the latter did on 9 October 2000.
17. On 25 October 2000 the municipality provided the Plovdiv Regional Court with the applicant organisation's appeal of 26 April 2000.
18. At a hearing on 24 January 2001 the applicant organisation's appeal was examined by the Plovdiv Regional Court.
19. In a judgment of 28 March 2001 the Plovdiv Regional Court declared null and void the municipality's prohibition of the public rally planned by the applicant organisation for 19 April 2000. It established that the prohibition had been issued in violation of the provisions of the Meetings and Marches Act, as it had been decided not by the mayor but by the secretary of the municipality. Furthermore, it lacked reference to any of the statutory grounds for issuing such prohibitions.
20. The applicant organisation claimed, which the Government did not challenge, that it was informed of the judgment of the Plovdiv Regional Court on 10 July 2001.
21. No appeal was filed against the judgment of 28 March 2001 and it became final on an unspecified date.
22. The relevant provisions of the Constitution (1991) and the Meetings and Marches Act (1990) have been summarised in the Court's judgment in the case of The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98, §§ 72-79, 20 October 2005).
23. Section 39 (1) of the Administrative Procedures Act provided at the relevant time that the administrative authority, whose act was being appealed, had an obligation to forward the appeal filed with it to the competent court within three days together with its full file on the matter. The second paragraph of this section provided that if the appeal and file were not forwarded to the courts then the appellant had the right to re-file his appeal directly with the courts.
24. Before 1 January 2006 the State Responsibility for Damage Act of 1988 (the “SRDA”) provided, inter alia, that the State was liable for damage caused only to private persons by (a) the illegal acts, actions or omissions of its bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts (sections 1 and 2: see Решение № 1307 от 21.10.2003 г. по гр. д. № 2136/2002 г., V г. о. на ВКС and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС).
25. Currently, the State and local municipalities are also liable for damage caused to juridical entities by the illegal acts, actions or omissions of their bodies and officials acting within the scope of, or in connection with, their administrative duties (section 1). The amendment does not have retroactive effect in respect of damage cause prior to its date of introduction.
VIOLATED_ARTICLES: 11
13