ITEMID: 001-75698
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BONEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. At the material time the applicant was a vagrant, without a permanent place of abode. It seems that he had several convictions for various offences and had served jail time.
6. On an unknown date in the end of September or in early October 1998 criminal proceedings were instituted against the applicant for having heavily beaten up an acquaintance of his, Mr S.K. (“the victim”) at a construction site on 26 September 1998, and thus having caused his death on one of the following days.
7. On an unspecified later date the investigator in charge of the case questioned Mr L.A., an eyewitness to the incident. The applicant was not present. Mr L.A. died a few days later, in early October 1998.
8. On 6 October 1998 the applicant was arrested.
9. On 10 October 1998 the investigator interviewed Mr I.Y., a witness. The applicant was not present.
10. On 21 October 1998 the applicant was charged with intentionally murdering the victim in an especially cruel manner and with extreme ferocity, while being a dangerous repeat offender, contrary to Article 116 § 1 (6) and (11) of the Criminal Code of 1968, as in force at that time, and placed in pretrial detention.
11. On 28 October 1998 the investigator questioned Mr Z.T., another eyewitness to the incident. The applicant was not present.
12. On 16 November 1998 the applicant was questioned in the presence of an ex officio counsel. It seems that he admitted to having beaten the victim with a wooden board.
13. On 26 November 1998 the charges were diminished. The applicant was accused of intentionally causing severe bodily injury to the victim and thus negligently bringing about his death, while being a dangerous repeat offender, contrary to Article 124 §§ 1 and 3 of the Criminal Code of 1968. His pretrial detention was continued.
14. The Bourgas Regional Prosecutor’s Office subsequently filed an indictment against the applicant with the Bourgas Regional Court.
15. The trial took place in the morning of 2 February 1999 at the Bourgas Regional Court. The applicant did not have counsel and was acting pro se.
16. The court first heard the applicant, who admitted to having beaten the victim with a wooden board, but stated that the next day he had seen him in good health. He had learned that the victim had died only on 6 October 1998, when arrested by the police.
17. The court then questioned two expert witnesses and admitted their reports in evidence. The first expert, a psychiatrist, gave an opinion on the applicant’s mental state at the time of the commission of the alleged offence and on his fitness to stand trial, on the basis of documents in the investigation case file and an examination of the applicant on 12 November 1998. The second expert, a forensic medical doctor, who had carried out an autopsy on the victim’s body on 30 September 1998, gave an opinion on the cause of the death, the extent of the injuries found on the body, the possible timing of their inflicting and the causal link between the injuries and the death.
18. After that the court heard the victim’s sons, who testified about their father’s character.
19. As Mr I.Y. and Mr Z.T. had not been found at the addresses which they had indicated during the preliminary investigation and had thus not been called at the trial, and as Mr S.V. did not appear despite being subpoenaed, the prosecution requested that their statements made during the preliminary investigation be read out before the court. The applicant agreed. The court, acting in pursuance of Article 279 § 1 (4) of the Code of Criminal Procedure of 1974 (see paragraph 31 below), observing that the first two witnesses had not been found at the addresses which they had indicated and were permanently changing their places of abode, and noting that the applicant agreed to the reading out of their statements, decided to admit these statements in evidence. The court also read out the statement of Mr S.V. on the basis of Article 279 § 1 (5) of the Code (see paragraph 32 below).
20. The court then questioned Mr S.V., who showed up later that morning. He testified that he had heard from Mr Z.T. and Mr L.A. that the applicant had beaten up the victim and that on the day after the incident he had seen the victim who could not stand up.
21. At the end of the trial the court heard the parties’ closing statements. The applicant said that he considered himself guilty, expressed his regrets for his act, and pleaded for a minimal sentence.
22. In a judgment of the same day the Bourgas Regional Court found the applicant guilty as charged. It sentenced him to ten years’ imprisonment. On the basis of the statements of Mr L.A. and Mr Z.T., the eyewitnesses, the testimony of Mr S.V., who had learned about the incident from them, and the statements of the applicant made during the preliminary investigation and at the trial, the court found that during the early hours of 26 September 1998 the applicant had heavily beaten up the victim with a wooden board at a construction site, after consuming a considerable amount of alcohol and having had a quarrel and a fight with him and the eyewitnesses several hours earlier. The court went on to find, on the basis of the statements of Mr L.A. and Mr Z.T. and the testimony of Mr S.V., that the victim had been in a very bad state of health the following day, when the three had visited him at the construction site. The court relied on the opinion of the forensic expert to determine that the death had occurred in all probability on 28 September 1998 and could be the result of a beating as the one described by the applicant and the eyewitnesses. It relied on the other expert’s opinion to conclude that the applicant had not been as heavily intoxicated by alcohol as to be unable to control his actions.
23. After delivering its judgment, the court ordered that the applicant be maintained in custody pending any appeals against it.
24. The applicant appealed to the Bourgas Court of Appeals. He complained, inter alia, that the Bourgas Regional Court had convicted him on the basis of the statements of persons who had not been present during the trial. He specifically requested the court to call Mr I.Y. and Mr Z.T. as witnesses.
25. In a decision of 16 April 1999 the Bourgas Court of Appeals rejected the applicant’s request to call Mr I.Y. and Mr Z.T. It held that both were vagrants and had no permanent place of abode where to be subpoenaed. The subpoenas sent out before the trial to the addresses which they had indicated during the preliminary investigation had been returned with a mention that neither of them lived at the respective address. The court went on to state that it was impossible for it to locate and subpoena Mr I.Y. and Mr Z.T.
26. After holding a hearing on 18 May 1999, in a judgment of the same day the Bourgas Court of Appeals upheld the lower court’s judgment. It fully confirmed its findings of fact and went on to state that it had not erred by reading out the statements of Mr Z.T. and Mr L.A. made during the preliminary investigation and admitting them in evidence. These two witnesses were vagrants, did not have a permanent place of abode and could not be found in order to be subpoenaed. Moreover, the applicant had acquiesced to the reading of their statements and did not dispute that he had beaten up the victim and had said that he was guilty. The court held that the applicant’s guilt had been established beyond doubt on the basis of the statements of the witnesses, the admissions of the applicant and the findings made during the victim’s autopsy.
27. The applicant appealed on points of law to the Supreme Court of Cassation. The counsel representing him argued, inter alia, that he had been convicted on the basis of the statements of persons whom the court had not heard personally and whom the applicant had not been able to crossexamine. The courts below had not made any effective efforts to locate Mr Z.T. and Mr I.Y. and there was no indication that Mr L.A. had indeed deceased. He relied on Article 6 § 3 (d) of the Convention.
28. The Supreme Court of Cassation held a hearing on 17 September 1999.
29. In a final judgment of 8 November 1999 the Supreme Court of Cassation upheld the lower court’s judgment, fully confirming its findings of fact. It held that the applicant’s complaint that Mr L.A. had not been called by the lower courts was unfounded, because the applicant had not requested that. In any event, it had been established that Mr L.A. had died before the trial. As regards the reading of the statements of Mr Z.T. and Mr I.Y., the court found they could not have been called at the trial because they did not have permanent places of abode and were vagrants. The subpoenas sent to the address indicated by them during the preliminary investigation had been returned with the notes that one of them was unknown at that address and the other had left that address and his current address was likewise unknown. In these circumstances, their statements had been properly read out, to which the applicant had agreed. The court further noted that the lower courts’ findings of fact rested also on the applicant’s statements made during the preliminary investigation and at the trial.
30. At his trial the applicant stood accused of an offence under Article 124 §§ 1 and 3 of that Code, which, as in force at the relevant time, provided that whoever negligently caused the death of another by intentionally inflicting him bodily injury while being a dangerous repeat offender was punishable by a term of imprisonment ranging from five to fifteen years in the case of serious bodily injury, from three to ten years in the case of intermediate bodily injury, and up to five years in the case of light bodily injury.
31. Article 279 § 1 (4) of that Code, as in force at the relevant time, provided that the statement of a witness given at the preliminary investigation could be read out at the trial if the witness could not be found in order to be called or had died. The Supreme Court has said that statements made by a witness during the preliminary investigation may be read out at the trial and admitted in evidence only if the court expressly finds that, after a thorough effort to locate the witness, it is impossible to find him or her (реш. № 301 от 19 юни 1981 г. по н.д. № 292/1981 г., ВС, II н.о.; реш. № 674 от 16 януари 1991 г. по н.д. 765/1990 г., ВС, ІІ н.о.).
32. By Article 279 § 1 (5) of the Code, as in force at the material time, a witness’ statement made during the preliminary investigation could also be read out at the trial if the witness, despite being duly subpoenaed, did not appear and the parties agreed to this. The same provision, amended effective 1 January 2000 (after the proceedings in issue), added the requirement that the court had to explain to an accused acting pro se that the statements thus read out will be used in reaching the verdict.
33. Article 95 § 1 of the Code provided that a recalcitrant witness could be fined and brought for questioning by force. By Article 157 § 2 of the Code, a witness could be brought by force even without being previously subpoenaed if he or she did not have a permanent place of abode. The authority responsible for bringing a witness by force was the Ministry of Internal Affairs (Article 157 § 4 of the Code).
34. Article 91 § 1 of the Code provided that the conviction could not rest solely on the admission of the accused.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-70160
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF DÜNDAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 2 (death of applicant's son);Violation of Art. 2 (inadequate investigation);No Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1940 and lives in the town of Cizre, in south-east Turkey.
10. The facts surrounding the death of the applicant's son, Mesut Dündar, are disputed by the parties.
11. The facts as presented by the applicant are set out in Section B below (see paragraphs 12-23). The Government's submissions concerning the facts are summarised in Section C below (see paragraphs 24-35). Documentary evidence submitted by the Government is summarised in Section D (see paragraphs 36-57 below).
12. The applicant's son Mesut Dündar was born in 1972. When he was a child Mesut Dündar suffered from meningitis. The applicant was unable to have him treated and he remained mentally disabled.
13. Mesut Dündar was always interested in Kurdish national music, poetry and colours and on many occasions used to walk in front of the crowd on Kurdish national holidays, carrying the Kurdish colours; yellow, red and green.
14. These activities of Mesut Dündar attracted the attention of the police, who took to following him and, on occasions, raided his family home. Mesut Dündar was taken into custody three times, and on each such occasion he was beaten and tortured by the police.
15. In about July 1992, police officers from Cizre Police Headquarters raided the applicant's home and told the applicant that they had come to take Mesut Dündar to Elazığ Psychiatric Hospital for treatment. They took the applicant and Mesut Dündar to the Police Headquarters. Mesut Dündar was terrified that he would be killed in the hospital and jumped out of a window and escaped.
16. Thereupon the police officers took the applicant around Cizre town centre and neighbouring villages for three days, during which they unsuccessfully looked for Mesut Dündar. The police officers beat the applicant and threatened him by saying that they would kill him if he did not find his son and hand him over to the police. The applicant was released at the end of the third day, only after having promised the police officers that if he saw his son he would bring him in himself.
17. Mesut Dündar did not return home because of his fear of the police. He stayed with friends and telephoned the applicant's house every day in order to speak to his mother. The police often visited the applicant's house to ask about Mesut Dündar's whereabouts.
18. After some time, Mesut Dündar no longer telephoned and the police no longer came to the applicant's home. The applicant therefore began to suspect that the police had caught Mesut Dündar.
19. On 6 September 1992 Mesut Dündar's strangled body was found near the Şeyh Değirmenci watermill, near the Sulak village. A report of an interview with four women from Sulak, who had been taking yoghurt to the market in Cizre in the early hours of that day, and another person, was published in Özgür Gündem newspaper on 19 November 1992. According to this interview, four armed persons, one of whom was thought to be a police officer, had strangled Mesut Dündar while his arms were tied behind his back. Soldiers, who had come to the place where Mesut Dündar had been strangled following the killing, had dragged his body behind an armoured personnel carrier, claiming that they were doing so because they thought there might be a booby-trap under the body.
20. The applicant's family heard at a later stage that Mesut Dündar's corpse was at the hospital. A member of the family went to the hospital where the body was handed over to him. The whole of Mesut Dündar's ribcage, throat and neck were covered in bruises. His face and eyes were dirty with mud and there were red spots and bruises in 34 places on his neck.
21. The police took a statement from the applicant, asking him, “Who could have killed your son? Who do you suspect? Did you have any enemies?” Mesut Dündar's possessions were then handed over to the applicant.
22. The applicant contacted the Prosecutor and asked him what had happened to his son. The Prosecutor told him that Mesut Dündar had been strangled. He did not take any statements from the applicant, nor did he ask the applicant whether he wished to start legal proceedings.
23. On 13 September 1994 the applicant and his family lodged a petition with the Cizre Prosecutor to find out whether there was an on-going investigation and what stage it had reached. The prosecutor had been friendly until the applicant mentioned the case of Mesut Dündar. The applicant was told by the Prosecutor's clerk that the case was closed. The applicant later discovered that the investigation was continuing.
24. The authorities were informed about the killing when the headman (muhtar) of the Sulak village approached the Gendarme Headquarters on 7 September 1992 and reported that he had seen a body at the road intersection of his village.
25. In his testimony of 18 October 1992, the muhtar stated that, after he had informed the gendarmerie, the Prosecutor and a number of gendarmes had arrived at the scene. The Prosecutor had warned those present that the body could be booby-trapped and a decision was taken to trail the body for a short distance with a rope attached to an armoured vehicle. When it was clear that the body had not been booby-trapped, the Prosecutor and the doctor carried out an in situ examination of the body. The body was then taken to Cizre by car.
26. On 8 September 1992 the Gendarme Headquarters forwarded their reports of the incident, together with a sketch showing the position of the body where it was found, to the Prosecutor's office in Cizre. The Gendarmerie Headquarters informed the Prosecutor that the identity of the person(s) who had strangled the victim was not known.
27. A criminal investigation was opened immediately by the Cizre Prosecutor. The Prosecutor instructed the Cizre Gendarmerie Headquarters on 10 September 1992 to carry out a comprehensive investigation and to keep him informed on a regular basis about this investigation.
28. On 7 September 1992 the Prosecutor took a statement from the applicant. He told the Prosecutor that his son had been mentally ill and beyond his control. He further said that he had no complaints against anyone.
29. The Cizre Gendarmerie Headquarters informed the Cizre Prosecutor on 14 November and 14 December 1992 and 24 February and 30 May 1993 that the investigation was still continuing and that there had not been any developments.
30. On 7 December 1993 the Prosecutor instructed the Cizre Gendarmerie Headquarters to up-date him every three months. On 31 May 1994 the Prosecutor instructed the Cizre Gendarmerie Headquarters to continue the investigation until the expiry of the statutory limitation period.
31. The Cizre Gendarmerie Headquarters regularly continued to inform the Prosecutor that there had been no developments in the investigation.
32. On 19 February 1996 the Mayor of Şırnak informed the Gendarmerie Headquarters in Ankara that the allegation that Mesut Dündar had been taken into custody prior to his death was baseless. In support of his submissions, the Mayor enclosed copies of the custody ledgers in which Mesut Dündar's name did not feature.
33. The Cizre Prosecutor informed the Ministry of Justice that the allegation that the applicant had not been given any information by his office was baseless.
34. According to an indictment filed by the Midyat Prosecutor with the Midyat Assize Court on 11 December 1989, a certain T.M. and the applicant's deceased son, Mesut Dündar, had raped a nine-year old boy in breach of Article 414 of the Criminal Code. As a result, Mesut Dündar had been arrested on 1 December 1989.
35. On the basis of a report prepared by the Forensic Medicine Directorate on 25 October 1991, which stated that Mesut Dündar was seriously, mentally impaired, the trial court held that Mesut Dündar could not be held criminally responsible for his actions. On 17 December 1991 the trial court ordered Mesut Dündar to be detained in a mental institution for a minimum period of one year. The decision became final on 27 May 1992 and was forwarded to the office for the execution of judgments on 22 June 1992. This had been the reason for police officers' visit to the applicant's house in July 1992 - to take Mesut Dündar to the Elazığ Psychiatric Hospital.
36. The following information appears from the documents submitted by the Government.
37. On 11 December 1989 the Midyat Prosecutor filed an indictment with the Midyat Assize Court in which Mesut Dündar was charged with the rape of a nine year old boy on 29 November 1989.
38. Pursuant to a request made by the Miday Assize Court, the Forensic Medicine Directorate examined Mesut Dündar on 16 October 1991. The Forensic Medicine Directorate concluded in their report, drawn up on 25 November 1991, that Mesut Dündar was an imbecile and therefore he did not have criminal culpability. The report recommended the detention of Mesut Dündar in a mental institution.
39. On 17 December 1991 the Midyat Assize Court established that Mesut Dündar and a certain T.M. had raped the nine-year old child. Taking into account the report of the Forensic Medicine Directorate, the Assize Court ordered Mesut Dündar's detention in a mental institution for a minimum period of one year, during which time he would receive psychiatric treatment. This judgment became final on 27 May 1992, following the rejection by the Court of Cassation of the appeal lodged by T.M.
40. On 8 September 1992, the Cizre Prosecutor and a doctor carried out an in situ examination of Mesut Dündar's body at a location near the Sulak village, approximately 7 kilometres from the town of Cizre. They recorded their findings. According to their report, the body had been trailed with a rope in case there had been a booby-trap under it. After it had been established that it was safe, the body had been searched and a PKK flag found in one of the pockets.
41. The cause of death was established by the doctor as asphyxiation, caused by strangulation. Rigor mortis and post mortem hypostasis had set in. The cause of death having been thus established, the doctor decided that a full autopsy was not necessary. The Prosecutor issued a burial license.
42. Also on 7 September 1992 the Cizre Prosecutor questioned the applicant. He told the prosecutor that his son had been mentally ill and beyond his control. The applicant did not have any complaint against anyone for the murder of his son.
43. According to a report which was prepared by the deputy commander of the Cizre District Gendarmerie Headquarters on 8 September 1992 and forwarded to the Prosecutor's office in Cizre, it had been established that Mesut Dündar had been strangled elsewhere and his body dumped at the place where it was found.
44. On 10 September 1992 the Cizre prosecutor instructed the Cizre Gendarmerie Headquarters to carry out a “secret and a proper search” for the perpetrator(s) of the murder. The Prosecutor also asked to be kept informed regularly about the investigation.
45. On 14 September 1992 the Cizre Prosecutor summonsed the applicant and his son Esvet Dündar to his office.
46. According to a report drawn up by three gendarme soldiers on 13 November 1992, “the perpetrator(s) of the murder of Mesut Dündar had been secretly and properly searched for by the soldiers but could not be found. The office of the Prosecutor would be informed once the perpetrator(s) were found”.
47. Between 19 February 1993 and 15 February 1996, the Cizre Prosecutor repeated his above mentioned instructions to the Cizre Gendarmerie Headquarters (paragraph 44) and asked the Gendarmerie to continue to inform his office every three months of any developments until the expiry of the statutory limitation period on 7 September 2007.
48. Gendarmes from the Cizre Gendarmerie Headquarters drew up identical reports on 29 May 1993, 18 April and 18 May 1994, 28 March, 3 June and 18 June 1995, and finally on 19 June 1995. These reports were forwarded to the Cizre Prosecutor.
49. According to a report, drawn up by gendarmes on 5 January 1996, it had been established that Mesut Dündar had been killed by members of the PKK who had then left the PKK flag in the deceased's pocket.
50. On 18 February 1996 the gendarmerie informed the Prosecutor that they were unable to find any person who knew the identity of the perpetrators.
51. On 18 March 1996 the Cizre Prosecutor summonsed the applicant and two of his relatives to his office.
52. On 19 March 1996 the Cizre Prosecutor sent a letter to the Ministry of Justice's International Law and Foreign Affairs Directorate (hereinafter “the Directorate”) in which he stated that the investigation into the murder was continuing and that his office was being kept informed every month by the gendarmerie. The applicant had not informed the Prosecutor's office of his allegations, namely that his son had been detained at the police headquarters and that his son had subsequently escaped, or that four female villagers had seen four armed men strangling Mesut Dündar. The Prosecutor had not, therefore, taken these allegations into account in his investigation. He would, however, from that moment on.
53. On 12 April 1996 a statement was taken from the applicant by the Cizre Prosecutor. The applicant confirmed the accuracy of the contents of the statement he had made on 7 September 1992 (see paragraph 42 above) and further stated that his son had been arrested by police who had wanted to take him to a psychiatric hospital. However, his son had managed to escape from the window of the police station. The applicant and police officers had unsuccessfully searched for him for three days. Mesut Dündar had never returned since that date. The applicant had been told by a number of children that they had seen Mesut Dündar. Police officers had also visited his home and looked for Mesut Dündar. Following the discovery of the body of his son, the applicant had been told by a number of people that four women from the Sulak village had seen his son while he was being beaten up by four people. The women did not know whether the four men had been police officers. The reason why the applicant suspected that the police were responsible for the murder of his son was because the police officers had insisted on finding Mesut Dündar following his escape from the police station and had repeatedly come to his house to find Mesut Dündar.
54. On 17 and 19 April 1996 the Cizre Prosecutor questioned Esvet and Abdulaziz Dündar, the brothers of Mesut Dündar. Both brothers gave similar statements to that of their father.
55. On 19 April 1996 the Cizre Prosecutor asked the Cizre Gendarmerie Headquarters to find the four women who, according to the applicant, had witnessed the strangulation of Mesut Dündar.
56. On 20 May and 26 June 1996 the deputy commander of the Cizre Gendarmerie Headquarters informed the Cizre Prosecutor that none of the villagers in Sulak had witnessed the strangulation of Mesut Dündar.
57. The gendarmerie continued to draw up similar reports until 1999 which were then forwarded to the Cizre Prosecutor.
58. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey (no. 27244/95, §§115-122, 9 May 2003).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 2
3


ITEMID: 001-90334
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOTLYAROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1950 and lives in Perm, the Perm Region. He is a retired military officer.
6. At the material time the applicant performed his military service at the Department of Military Science of the Perm State Technical University. He sued the authorities for repayment of arrears in respect of the food allowance.
7. On 15 July 1998 the Perm Garrison Military Court granted the applicant’s action in part. The court established that the applicant was receiving the food allowance from military unit 04163 of the Privolzhskiy Military Circuit and ordered the Catering Service of the Privolzhskiy Military Circuit to pay him monetary compensation instead of uncollected food allowance for the period from 1 January 1997 to 31 July 1998, the amount of compensation to be calculated on the basis of the real value of the food allowance at the day of payment. The judgment was not appealed against and became final on 25 July 1998.
8. On 15 March 1999 the Perm Garrison Military Court amended the operative part of the judgment and ordered the respondent authority to pay to the applicant 9,807.27 Russian Roubles (RUB) in arrears relating to the food allowance. The judgment entered into force ten days later.
9. On 16 March 1999 the writ of execution was issued in respect of the judgment and on 29 March 1999 the enforcement proceedings were opened by the bailiffs.
10. As from 22 November 1999 the employees of the Department of Military Science of the Perm State Technical University started receiving the food allowance from the Perm Military Missile Force Institute (“the Institute”). The applicant forwarded the judgments of 15 July 1998 and 15 March 1999 to the Institute, for repayment of the allowances due to him before his dismissal from the military service.
11. On 14 April 2000 the Institute proposed to pay the applicant RUB 4,853.33 of the uncollected food allowance in respect of the period specified in the judgment of 15 July 1998. The applicant refused to accept the payment, since he was entitled to a bigger sum pursuant to the judgment.
12. On 15 April 2000 the applicant was dismissed from military service.
13. At some point he asked the Perm Garrison Military Court to replace the defendant in his case by the Catering Service of the Institute.
14. On 4 May 2000 the Perm Garrison Military Court informed the applicant that his motion could not be examined, since the enforcement proceedings were pending in respect of the judgment and the writ of execution was with the bailiffs’ office, and invited the applicant to address his inquiries directly to the bailiffs.
15. On 12 May 2000 the Missile Force Institute paid to the applicant RUB 11,840 in respect of the food allowance for the period from August 1998 to April 2000. According to the applicant, the Institute refused to make any payments in respect of the period between 1 January 1997 to 31 July 1998, since the compensation for the unpaid allowance in respect of this period should have been paid to him by the Catering Service of the Privolzhskiy Military Circuit, as ordered by the judgments of 15 July 1998 and 15 March 1999.
16. On 15 June 2000 and 15 August 2000 the bailiff fined the Head of the respondent service for the failure to comply with the judgment. The decisions to impose the fines were annulled by the Leninskiy District Court of Samara, on 6 July 2000 and 2 October 2000 respectively.
17. On 31 July 2001 the bailiffs concluded that the execution was impossible, due to the respondent authority’s lack of funds, discontinued the enforcement proceedings and returned the unexecuted writ to the domestic court.
18. On 18 October 2001 the Perm Garrison Military Court found that the shortage of funds could not be regarded as justification for delayed enforcement of the judgment. The court further ordered the replacement of the respondent by the Catering Service of the Privolzhsko-Uralskiy Military Circuit, on account or re-organisation of the military circuits. The decision entered into force ten days later.
19. On 22 March 2002 the Perm Garrison Military Court ordered the replacement of the defendant in the applicant’s case by the Financial and Economics Department of the Privolzhsko-Uralskiy Military Circuit. The decision was not appealed against and entered into force on 2 April 2002.
20. On 31 May 2002 the Financial and Economics Department asked the court to reopen the case due to the newly established circumstances, to replace the defendant by the Institute and to stay the execution of the judgment.
21. By letter of 8 July 2002 a judge of the Perm Garrison Military Court informed the defendant, inter alia, that its motion could not be granted. The court found it established that during the period at stake the applicant was receiving the food allowance from military unit 04163 of the Privolzhskiy Military Circuit, and there was no ground to replace the Catering Service of the respective circuit by the Institute. The court urged the defendant to pay the judgment debt without further delay.
22. On 26 August 2002 the amount awarded by the judgment of 15 July 1998, as modified on 15 March 1999, was paid to the applicant in full.
23. The applicant challenged at the court his dismissal of 15 April 2000 from the military service. He argued that he could not have been dismissed from the military service until all the allowances were paid to him in full.
24. On 11 May 2000 the Perm Garrison Military Court rejected his claim as having no grounds under the domestic law. The court acknowledged that the allowances he was entitled to had not been paid to him in their entirety by the date of dismissal. However, in the court’s view, that this fact did not affect lawfulness of the dismissal, since the applicant himself had refused to receive a part of the allowance proposed to him.
25. On 14 June 2000 the Privolzhskiy Circuit Military Court upheld the judgment on appeal.
26. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-59718
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SOMMERFELD v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Antonio Pastor Ridruejo
TEXT: 8. The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant recognised his paternity of M.
9. The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contacts between the applicant and the child. The applicant still met M. several times at school until such contacts were no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name.
10. On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access (Umgangsregelung) to his daughter. Having heard the persons concerned, the Rostock Youth Office advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W. which would be adversely affected by contacts between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering from his continuing efforts for access.
11. On 27 June 1991 M., then ten years old, was heard by the competent District Court Judge. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court.
12. At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office.
On 30 September 1991 the Youth Office informed the District Court that no agreement could be achieved and that M. had stated that she did not wish to see the applicant.
13. On 12 December 1991 the court ordered a psychological expert opinion. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services (Gesundheitsamt) stated that, as the contacts between the applicant and M. were disrupted for six years, no diagnosis of their actual relationship appeared possible. The psychologist considered that M. did not wish any personal contacts with the applicant who should give her the necessary time to take up contacts on her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather.
14. On 24 June 1992 the competent District Court Judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contacts with the applicant, the latter affirmed that he would withdraw his request for a right of access.
The applicant withdrew his request on 1 July 1992.
15. On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter.
16. On 15 February 1994 the District Court Judge heard the thirteen-year-old M. who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994.
17. On 1 June 1994 the District Court dismissed the applicant’s request.
The District Court noted the comments filed by the Rostock Youth Office as well as the parents’ and the child’s statements in court. The Court had also regard to the comments filed by the Youth Office in April 1991 and by the psychologist of April 1992, both in the context of the first set of access proceedings.
The District Court found that the applicant was not entitled to have access to his daughter. Referring to section 1711 of the Civil Code, the Court observed that the mother, in the exercise of her right to custody, determined the child’s relations with third persons, and that therefore her will was decisive. The father could only be granted a right of access by court order, if this was in the interest of the child. According to the District Court’s findings, in particular M.’s statements in 1992 and February 1994, these conditions were not met. The District Court considered that M., then thirteen years old and capable of forming her own will, unequivocally refused contacts with her natural father. In the District Court’s view, it was not in M.’s interest to enforce contacts contrary to her will, as her mental and psychological well-being would be endangered thereby. The applicant’s argument that contacts with the natural father were generally in a child’s interest was rejected.
18. On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal.
Endorsing the District Court’s findings, the Regional Court found that contacts were not in the child’s interest. It regarded as decisive that for many years the now thirteen-year-old girl had clearly refused contacts with her father. The applicant should accept his adolescent daughter’s will in his own and her interest. Only if he would stop to inflict himself on her, contacts might eventually be possible. The court further observed that contacts between the applicant and M. could hardly be enforced against her will.
On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court.
On 19 January 1996 a panel of three judges of the First Chamber of the Federal Constitutional Court refused to entertain the applicant’s complaint.
19. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998.
20. Section 1626 § 1 reads as follows (the Court’s translation):
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
21. Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association.
22. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (the Court’s translation):
Section 1634
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
23. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation):
Section 1705
“Custody over a minor child born out of wedlock is exercised by the child’s mother...”
Section 1711
“1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child’s personal circumstances is set out in Section 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
24. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
25. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.
26. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1) (k)).
27. As regards the hearing of parents in custody proceedings, section 50a (1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.
28. Section 63 provides for a right of a further appeal challenging the first appeal decision. Section 63a of that Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. This provision has been repealed by the Law on Family Matters of 1997.
VIOLATED_ARTICLES: 14
6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23017
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NOYE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Kenneth James Noye, is a United Kingdom national, who was born in 1947 and is currently detained in HM Prison Whitemoor. He is represented before the Court by Mr H. Milner, a lawyer practising in London.
The facts of the case, as submitted by the applicant and as revealed by the supporting documents, may be summarised as follows.
In 1983 the applicant came to the attention of the public when he was implicated in a notorious gold bullion robbery (‘the Brinks-Mat robbery’). As part of their enquiries, police kept observations on the applicant and his property. A police officer dressed in black and wearing a balaclava with only slits for eyes, hid in the grounds of the applicant’s home. The applicant’s dogs alerted him to the presence of someone and he went to confront the intruder. A violent struggle ensued during which the officer was stabbed and died. The applicant was tried and acquitted of murder, his defence being that he had acted in self-defence.
The applicant was subsequently convicted of handling proceeds from the Brinks-Mat robbery and was sentenced to fourteen years’ imprisonment. Both trials received extensive media coverage.
At about 1.20 p.m. on the afternoon of 19 May 1996, Stephen Cameron became involved in an altercation with the applicant on a slip road of the M25 motorway. The applicant had overtaken the van in which Cameron was a passenger and which was driven by his girlfriend, Danielle Cable. The applicant and Cameron left their respective vehicles and fought, during the course of which the applicant stabbed Cameron twice, fatally wounding him. Fearing that he would not be treated fairly by the police the applicant fled abroad. In 1998 he was arrested in Spain for the murder of Cameron and extradited to the UK to face trial.
In December 1999 at a pre-trial hearing the applicant submitted that it would be impossible for him to have a fair trial in light of the lurid and extensive press coverage since the 1996 death of Cameron. The judge acknowledged that the coverage was “tendentious in the extreme” and went on to say:
“There were allegations made about his criminal activities which went beyond any of his previous convictions, to the extent that he was being presented ... as ‘public enemy number one’. The undoubted effect of those articles, and the media coverage generally, will have been to bring back into the public mind all the controversy which surrounded his trial in 1983. Indeed, it is clear that a lot of the material was intended to stimulate precisely that controversy, to the extent that a significant proportion of the press coverage was so slanted as to suggest that the jury’s verdict in the defendant’s previous trial was perverse.”
The judge noted that the coverage had been extreme in 1996 (when the applicant was out of the country) and 1997, but had then decreased and there was no significant adverse publicity after August 1998 (when he was arrested).
The applicant submitted that the test to be applied was whether on the balance of probabilities there was a real danger of even one juror being prejudiced by the publicity. The tribunal could not then properly be said to be impartial. It was submitted that there clearly was such a danger and that therefore it was not possible for the applicant to have a fair trial. The judge considered that there were two aspects of the adverse publicity; the ‘general miasma of notoriety’, which could be addressed by careful directions to the jury, who could be trusted to approach the facts as established, and also the fact that the applicant was charged with the same offence as in 1983 and was running the same defence. Given the cynicism in the press about the earlier verdict, the latter aspect was a cause for concern. However, even if, as the prosecution had conceded, there was a risk that,
“one or more members of the jury may have retained sufficient prejudice from the publicity as to let it affect his or her judgement”
that was not the test to apply. The fact that one or more jurors had already formed an adverse view of the applicant was not bias in the relevant sense. The applicant had confused bias and prejudice in the way the application had been argued.
The judge concluded that the test to be applied was whether it was possible for the applicant to have a fair trial and he found that the jury could be trusted to deal with the matter fairly and properly in the context of the directions they would be given. The passage of time, coupled with the process of trial, would sufficiently concentrate the jury’s minds on the events in issue so as to enable a fair trial to take place.
On 14 April 2000, the applicant was convicted of Cameron’s murder, by a majority of eleven to one. At the trial he gave evidence that the deceased had been the aggressor throughout the fight and he had only taken out the knife as a last resort to try and dissuade the deceased from attacking him. He only stabbed the deceased when the attack continued and he believed it was necessary to protect himself. The issue for the jury therefore centred on the credibility of the applicant and by extension, the prosecution witnesses. There were two prosecution witnesses who claimed to have seen the stabbing (although many others who saw part of the fight); Danielle Cable and an apparently independent witness called Alain De Cabral, who presented himself as a respectable and successful businessman. Danielle Cable gave evidence that the deceased had behaved aggressively and that he had pursued the applicant when he had broken away from the fight, thus providing some support for the applicant’s case. A number of the other witnesses also suggested that the deceased was the more aggressive of the two men.
De Cabral said that the applicant had initially approached the van and there had been a tussle between the two men, Cameron apparently trying to get back in the van. He was not sure who threw the first punch, but Cameron appeared to be in a stronger position. He gave evidence that he saw the applicant take the knife from his front right hand pocket of his trousers and conceal it behind his back. The applicant then ran at the deceased, who punched and kicked at him. The applicant lunged at him, stabbing him in the sternum. The applicant then turned to face De Cabral and shut the knife. As he walked past De Cabral’s car he nodded at him as if to say, ‘that sorted him out’. Neither the applicant or deceased were known to him. Soon after the incident De Cabral made a 999 emergency call to report a stabbing, the transcript of which was made available to the jury.
Before the trial the prosecution had disclosed to the defence the fact that in June 1999 De Cabral had been arrested, suspected of involvement in a large scale drug dealing operation. Over 120,000 pounds sterling GBP in cash had been seized from him, but subsequently returned, the police being satisfied that he had an adequate explanation for it. He pleaded guilty to minor drugs possession offences and was conditionally discharged. Some time after the trial, De Cabral’s wife approached the applicant’s solicitors and gave a statement claiming that her husband had been involved in substantial cocaine dealing and that he was dishonest. It also transpired that a Mercedes car had been seized from De Cabral at the time of his arrest, which had been adapted to include a secret compartment to enable drugs to be concealed in the petrol tank. The modification had been noted by a customs officer four days before the witness attended an Identification Parade at which he picked out the applicant. The vehicle was returned to De Cabral after the trial. No application was made to the trial judge for an order relating to disclosure of the information about the vehicle and the judge was not aware of the information.
Leading counsel for the applicant at trial did not consider that on the basis of the information provided to the defence he could justify suggesting to De Cabral that he had a motive to give untrue or embroidered evidence. Information disclosed which tended to show that De Cabral was suspected of involvement in the supply of Class A drugs was evidentially insufficient to form the basis of cross examination. A query raised with the prosecution about whether De Cabral had received unusual or lenient treatment was never answered.
The applicant appealed against the conviction, initially on the grounds that the judge had been wrong to refuse the application to stay the proceedings on the basis of the adverse publicity and also that there had been excessive security, including jury protection, which would have reinforced any prejudices the jury did have. Later, the applicant submitted additional grounds relating to the fresh evidence from Mrs De Cabral (who gave evidence on the appeal) and the lack of disclosure by the prosecution about the Mercedes vehicle. By the time of the appeal De Cabral himself had been killed. The applicant was represented by new counsel on the appeal and leading trial counsel gave evidence as to how his approach to the case would have differed had he been aware of the additional information about De Cabral.
On 10 October 2001 the Court of Appeal dismissed the appeal. It was noted that the trial judge’s summing up had not been criticised. The court found that the judge had been correct to refuse the application to stay the proceedings. The submissions made by both parties to the judge had amounted to the same in essence, namely was the court satisfied that the applicant could have a fair trial. A question of that nature was very much within the judge’s discretion. Whilst it was regrettable that the press had not exercised more self-restraint, it was noted that the applicant had fled the country following some of the publicity and it was not clear that there ever would be a prosecution. The court agreed that juries were well able to put media comment out of their minds and do proper justice to a case in the great majority of cases. The court said:
“We must be cautious about reaching a situation as a consequence of our decisions that if the conduct of a defendant has been sufficiently sensational he cannot be tried but can say, ‘Because of the media attention which I have received I cannot be tried’. As in so many situations it is for the judge to hold the scales evenly between the public and the defendant.”
The court proceeded on the basis that the evidence about the Mercedes car ought to have been disclosed, but nevertheless found that even had De Cabral’s credibility been duly impugned, the jury would not have come to a different conclusion, as the real issue was whether the applicant’s account of events was fanciful. De Cabral did not in any event appear to have been motivated in the way it was claimed for the applicant. He had in fact made favourable concessions to the applicant. There had been absolutely no justification for the applicant to take out and use a knife and it could not have been reasonable and proportional having regard to the nature of the fracas.
The procedure to be applied when determining questions of disclosure was governed at the time by common law. The prosecution were under a duty to disclose any information which was ‘material’ and (i) raised a relevant or possibly relevant issue in the case, (ii) raised or possibly raised a new issue, or (iii) which held out a real, as opposed to fanciful, lead on (i) or (ii) (R. v. Keane [1994] 1 WLR 747). It was for the court to determine what it was proper to disclose if the prosecution sought to withhold material information. Previous convictions of a prosecution witness or other matters adverse to the character of the witness were matters which would prima facie fall to be disclosed (R. v. Ward [1993] 96 Cr.App.R. 23, and R. v. Winston Brown [1995] 1 Cr.App.R. 191).
Jurors are required to swear an oath or affirmation that they will:
“faithfully try the defendant and give a true verdict according to the evidence.” (Practice Direction (New Jury Oath) 80 Cr.App.R. 13)
In a case of alleged bias, the test for the court to consider was set out in R. v. Gough ([1993] A.C. 646). Having ascertained the relevant circumstances, the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal, in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration, a test confirmed in the case of Locabail (UK) Ltd. v. Bayfield Properties ([2000] 2 WLR 870).
Where it is alleged that the particular circumstances mean that a defendant cannot have a fair trial, for example where there has been significant delay, the defendant must show on the balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held (Attorney General’s Reference number 1 of 1990 [1992] 95 Cr.App.R. 296).
In the case of R. v. West, (1996 2 Cr.App.R 374) the appellant claimed that she could not have a fair trial because of the publicity surrounding the case. The Lord Chief Justice said:
“The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise.”


ITEMID: 001-61264
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF YÖYLER v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 8 and P1-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Antonio Pastor Ridruejo;Feyyaz Gölcüklü
TEXT: 9. The applicant, Mr Celalettin Yöyler, is a Turkish citizen who was born in 1941 and is at present living in Istanbul (Turkey). Until June 1994 the applicant lived in the village of Dirimpınar, attached to the Malazgirt district in the province of Muş. Between 1966 and 1994 the applicant was the imam (religious leader) of the village. As a result of his involvement with a number of political organisations, including the Social Democratic Populist Party (SHP), the People's Labour Party (HEP) and the Democracy Party (DEP), of which he became the local leader, he was imprisoned on a number of occasions. The applicant left and had never returned to his village prior to the alleged events in question, since he had been threatened with death. The application concerns the applicant's allegations that State security forces destroyed his house.
10. The facts surrounding the destruction of the applicant's house are in dispute between the parties.
11. In 1994 three young women from the village, all of whom were related to the applicant's extended family, decided to join the PKK.
12. On 15 September 1994 the gendarme unit commander of Malazgirt came to the village and threatened to burn the village to the ground if the women were not brought to him within three days.
13. The applicant's family and the families of the young women, frightened by this threat, loaded up their possessions and fled. However, the gendarmes, accompanied by special teams, forced them to return to the village and to unload their possessions. They gathered the families into a house by force, where they assaulted certain of them, including the applicant's wife. They withdrew from the village telling the villagers to take good photographs of their houses, as that was all they would have to remember them by.
14. On 18 September 1994, at 8 p.m., special gendarme teams and village guards came to the village. Villagers were ordered to go into their homes and to turn off their lamps. The security forces then took diesel oil from the villagers' tractors and barrels and set fire to the houses of the applicant and his family. The applicant was out of the village, in İzmir, when his house was burned down.
15. On 23 September 1994 the applicant filed a criminal complaint with the Karşıyaka public prosecutor in İzmir for submission to the Malazgirt public prosecutor, calling for an on-site investigation and the institution of proceedings against the perpetrators. This document was registered as no. 35798 by the Karşıyaka public prosecutor's office.
16. On 24 September 1994 the applicant made a press statement through a human rights body, the Human Rights Association, which was carried the same day in the pro-Kurdish newspaper Özgür Ülke.
17. On 8 November 1994 the public prosecutor (no. 31583) sent a letter to the Gendarme Command in Malazgirt requesting a report on the matters raised in the applicant's allegations. He repeated his request in letters of 8 December 1994 (no. 30965) and 2 February 1995 (no. 31583).
18. By letter of 2 March 1995, the Gendarme Central Command in Malazgirt replied to the prosecutor's letter of 8 December 1994 by submitting the records of the statements they had taken. The prosecutor took further statements in May 1995, and the gendarme commander M.A. in June and November 1995. Since November 1995, there has been no development in the investigation.
19. The applicant left the village of Dirimpinar of his own free will, together with his spouse and children. He settled first in Adapazarı and then in Istanbul or Izmir. The Government submitted various records of the statements taken by the authorities in relation to the burning of the applicant's house.
20. Mr Muhsettin Yöyler, the mayor (muhtar) of the village of Dirimpinar, stated to the public prosecutor that on the night of the incident, he had seen some persons setting fire to the applicant's house but as they had their faces covered, he had not been able to recognise them. He did, however, recognise one of them, Ahmet (A.K.), a village guard from the village of Nurettin.
The statement by the applicant's fellow villager, Mr Abdulcebbar Sezen, revealed that the applicant had not been in the village during the incident, but that his family had been.
21. Mr Muhsettin Yöyler claimed that although he had seen the applicant's house burning, he had not seen who had set fire to it, as it was dark.
Mr Süleyman Yılmaz and Mr Ömer Sezen from the same village made identical statements.
22. Mr Aydın Sezen declared before the same gendarme commander that the applicant had always acted in a subversive manner towards the State, that his house had indeed been burned, that he had not seen who had set fire to it, but it had definitely not been the security forces. He also added that all the villagers were pleased that the applicant had left the village. In a further statement, Mr Muhsettin Yöyler told M.A. that the applicant had always been a PKK supporter, that the applicant and his family had not been in the village on the night of the incident, that he had not seen who had set fire to the house, but that he was sure that it was not the security forces. He also stated that the applicant himself might perhaps have done it.
23. Mr Abdulcebbar Sezen was recorded as having declared to the police officer that the applicant was a member of the PKK, that he used to be a source of trouble in the village and that the villagers were pleased that he had left the village. He also stated that the applicant's house had definitely not been burned by the security forces or the gendarmes and that the security forces had always helped the villagers.
24. Mr Muhlis Umulgan recalled having declared that the applicant was collaborating with the PKK, that on the night of the incident he had seen the applicant's house burning but had been afraid to go out, as he knew that the PKK were in the region at the time. He added that the security forces had not set fire to the applicant's house.
25. As to Süleyman Yılmaz, he declared that the applicant had not been in the village when the incident had occurred, that three days before the fire his spouse and children had left the village as well, taking the furniture, and that although some days before the incident security forces had been in the village, they had not been there during the incident. He finally stated that he did not know who had set fire to the applicant's house but was sure that it had not been the gendarmes.
26. The investigation could not continue in the applicant's absence. According to a letter of 2 April 1995 from the Gendarme Central Command in Malazgirt, the applicant had left Dirimpınar for an unknown place, probably Adapazarı.
27. The documents contained under this heading concern the applicant's statement letters and his petitions to the authorities about his complaints as well as the statements made by several witnesses in support of the applicant's allegations.
28. The documents listed below pertain to the applicant's complaints about the destruction of his house by the Malazgirt gendarmerie forces.
(i) Petition by the applicant dated 23 September 1994 to the Karşıyaka public prosecutor's office for submission to the Malazgirt public prosecutor's office;
(ii) Letter from the applicant to Kerim Yıldız of the Kurdish Human Rights Project (“KHRP”) in London, containing his complaints about the destruction of his property;
(iii) A report dated 23 November 1994, signed by the applicant, setting out the sequence of the impugned events and the details of the property destroyed;
(iv) Letter of 11 May 2000 from the applicant to Kerim Yıldız and Philip Leach of the KHRP, in which he set out his efforts to exhaust domestic remedies in regard to his complaints;
(v) Letter of 4 July 2000 from the applicant to the KHRP concerning the statements taken by the gendarmerie from the muhtar, Muhsettin Yöyler.
(vi) Letter dated 9 December 2000 from the applicant to Kerim Yıldız of the KHRP, containing his comments about the statements taken by the gendarmes from his fellow villagers.
29. The witnesses mentioned below alleged in their statements that gendarmes had burned the applicant's house along with some other houses in Dirimpınar on 18 September 1994.
(i) Statements dated 20 May 2000 by Dilsa, Saliha, Leyla, Evin, Gülüstan and Ziri (Esma) Yöyler and Kutbettin Fırtına;
(ii) An undated statement by Ahmet Kınay and statements dated 23 December 1996 and 20 May 2000 by Bahattin Kınay;
(iii) Statement of 9 January 2001 by Bahattin Sezen;
(iv) Statement of 3 November 2000 Zeynel Abidin Daş together with his statement to the Sakarya Human Rights Association, also dated 3 November 2000.
30. The applicant produced press releases and articles concerning the alleged destruction of his property by State security forces as well as the general situation in south-east Turkey at the relevant time.
(i) A Turkish Daily News article dated 15 September 1994;
(ii) Statement of 23 September 1994 by the applicant to the press complaining about the destruction of his property and explaining the general situation in south-east Turkey;
(iii) Özgür Ülke newspaper articles dated 24 September 1994 concerning the burning of the applicant's house along with other houses in villages in the Nusaybin and Malazgirt districts.
(i) A copy of a plan of the village of Dirimpınar;
(ii) A copy of the applicant's title deed, to his house, land and buildings in Dirimpınar;
(iii) Guiding Principles on Internal Displacement issued by the Office of the UN High Commissioner for Human Rights.
31. The documents listed below concern the statements taken from various witnesses in regard to the applicant's allegations and the investigation conducted by the national authorities into the impugned events as well as the criminal proceedings against the applicant for having been involved in the PKK.
32. The witnesses mentioned below alleged in their statements to the authorities that they did not know or had not seen who had burned the applicant's house. They deny the applicant's allegations that the gendarmes burned his house. They claimed that the applicant was involved in the PKK and that for this reason nobody had wanted him in the village.
(i) Report dated 27 December 1994, containing statements by Muhsettin Yöyler, taken by the gendarmes, about the applicant's allegations;
(ii) Statements dated 28 April 1999, taken by the Malazgirt Chief Public Prosecutor, and made by Zilkif and Gürsel Polat, Abdulmuttalip, Abdulkerim and Abdulbaki Koçak and Celal Çelik;
(iii) Statements dated 29 April 1999, taken by the Malazgirt Chief Public Prosecutor, and made by Ali Haydar, Azmi, Yılmaz and Hüseyin Polat, İhsan Erkoçak, Mehmet, Kemal, Bahattin and Abdullah Koçak and Nizamettin and Ahmet Çelik.
(iv) Statement dated 20 May 2000 by Ahmet Kınay;
(v) Statements of 22 November 1995 and 20 June 2000 by Aydın Sezen;
(vi) Statements of 19 and 20 June 1995 and 20 and 23 June 2000 by Ömer Sezen;
(vii) Statements of 22 November 1995, 26 July 1996, 20 and 23 June 2000 by Muhlis Umulgan;
(viii) Statements of 19 and 20 June 1995, 22 November 1995 and 20 and 23 June 2000 by Süleyman Yılmaz;
(ix) Statements of 27 December 1994, 29 May 1995, 19 and 20 June 1995, 22 November 1995, 26 July 1996 and 20 and 23 June 2000 by Abdülcebbar Sezen;
(x) Statements of 27 December 1994, 29 May 1995, 19 and 20 June 1995, 22 November 1995, 26 July 1996 and 20 and 23 June 2000 by Muhsettin Yöyler.
33. The documents below concern the authorities' investigation into the applicant's allegations of the destruction of his property by the gendarmes.
(i) Duty schedules of 15-20 September 1994;
(ii) Letters of 8 November 1994, 8 December 1994, 2 February 1995, 14 March 1995, 5 May 1995 and 7 August 1995 from the Malazgirt public prosecutor to the Gendarmerie Command in Malazgirt;
(iii) Letters of 2 March 1995, 21 April 1995 and 25 August 1995 from the Malatya District Gendarmerie Commander to the public prosecutor's office in Malazgirt;
(iv) Report dated 18 April 1994 drafted by the gendarmes;
(v) Assessment report of the scene of the incident, dated 19 June 1995 and drafted by the gendarmes;
(vi) Report dated 2 August 1995 drafted by the gendarmes;
(vii) Letter of 23 October 1995 from public prosecutor no. 30965 to the Magistrates' Court in Malazgirt;
(viii) Letter of 3 October 1996 from the Malazgirt District Governor to Mr Metin Alacuklu, an agricultural engineer, who was appointed as an inspector by the District Council;
(ix) Letter of 16 October 1996 from the Malazgirt District Governor to the Magistrates' Court;
(x) Letter of 16 October 1996 from the Malazgirt District Governor to the Malazgirt District Gendarme Command;
(xi) Letter of 6 November 1996 from the Malazgirt public prosecutor to the District Governor;
(xii) Letter of 7 November 1996 from the Malazgirt Deputy District Commander to the Directorate of Agriculture in Malazgirt;
(xiii) Investigation report of 19 November 1996 by Metin Alacuklu for submission to the District Governor's office;
(xiv) Letter of 19 November 1996 from Metin Alacuklu to the Malazgirt District Governor;
(xv) Decision of 15 January 1997 by the Commission on the Prosecution of Civil Servants to discontinue the proceedings against the gendarme officers accused of destruction of the applicant's property;
(xvi) On-site report of 16 January 1997 by the The Malazgirt Chief Public Prosecutor;
(xvii) Inspection report of 16 January 1997 concerning the burned buildings in the village of Dirimpınar;
(xviii) Expert report and sketch maps dated 21 January 1997 on the burning of houses in Dirimpınar;
(xix) Letter of 27 January 1997 from the Malazgirt Deputy Mayor to the public prosecutor's office in Malazgirt;
(xx) Investigation report by the Malazgirt Chief Public Prosecutor for submission to the Chief Public Prosecutor's office in Muş;
(xxi) Letter of 25 March 1997 from the Malazgirt District Governor to the Van Admistrative Court;
(xxii) The Van Administrative Court's decision of 1 April 1997 to uphold the decision given by the Commission on the Prosecution of Civil Servants on 15 January 1997;
(xxiii) Letter of 4 June 1997 from the Muş Public Prosecutor to the Muş Assize Court and the latter's letter of the same day in reply;
(xxiv) Letter of 5 June 1997 from the Muş Public Prosecutor to the Muş Assize Court and the latter's letter of the same day in reply;
(xxv) Decision of non-jurisdiction by the Malazgirt Chief Public Prosecutor, dated 6 June 1997;
(xxvi) Report dated 30 September 1997 signed by the Dirimpınar village muhtar, Mr Muhsettin Yöyler, and two of his fellow villagers;
(xxvii) Permanent search warrant dated 14 November 1997 issued by the Malazgirt public prosecutor to find the perpetrators of the burning of the applicant's house;
(xxviii) Reports dated 4 February 1998, 19 May 1998, 20 September 1998, 22 December 1998 and 17 September 1999 signed by the Dirimpınar village muhtar, Muhsettin Yöyler, and two gendarmes;
(xxix) Letters of 8 February 1998, 24 June 1998 and 6 April 1999 from the Malazgirt Deputy District Commander to the Malazgirt public prosecutor;
(xxx) Letters of 29 March 1998, 24 June 1998, 23 September 1998, 5 May 1999 and 22 September 1999 from the Malazgirt District Gendarme Commander to the Malazgirt Chief Public Prosecutor;
(xxxi) Letters of 11 March 1999 and 24 April 1999 from the Malazgirt public prosecutor to the Malazgirt Gendarme Command;
(xxxii) Report dated 24 March 1999, drafted and signed by three gendarmes;
(xxxiii) Letter of 1 October 1999 from the Malazgirt Public Prosecutor to the Chief Public Prosecutor's office in Muş;
(xxxiv) Undated documents indicating that Abdulcebbar Sezen and Celalettin Yöyler were no longer resident in the village, drafted by the village muhtar, Muhsettin Yöyler.
34. These documents concern the criminal proceedings brought against Ahmet Kınay, the applicant's fellow villager, for allegedly setting the applicant's house on fire. Ahmet Kınay was acquitted of the charges in a judgment of 6 May 1997 by the Muş Assize Court.
(i) Copy of a birth certificate belonging to Ahmet Kınay dated 23 October 1995;
(ii) Letter of 23 October 1995 from the Sakarya Chief Public Prosecutor to the Ministry of Justice;
(iii) Letter of 23 October 1995 from the Sakarya Security Director to the Sakarya Chief Public Prosecutor's office;
(iv) Report dated 23 October 1995 drafted by police officers in Sakarya;
(v) Arrest warrant in absentia, issued by the Malazgirt Magistrates' Court on 25 October 1995, against Ahmet Kınay;
(vi) Report dated 13 November 1996 for the arrest of Ahmet Kınay;
(vii) Body search report concerning Ahmet Kınay;
(viii) Petition of 15 November 1996 by Ahmet Kınay filed with the Sakarya public prosecutor's office for submission to the Malazgirt public prosecutor's office;
(viii) Letters of 15 November and 26 December 1995 from the Malazgirt public prosecutor to the Chief Public Prosecutor's office in Adapazarı;
(ix) Letter of 15 December 1995 from the Sakarya Security Director to the Public Order Department;
(x) Petition of 18 November 1996 filed by Ahmet Kınay with the Sakarya Criminal Court on duty, for submission to the Malazgirt Criminal Court, which includes his request for release;
(xi) Petition of 18 November 1996 from the representative of Ahmet Kınay to the Chief Public Prosecutor's office in Sakarya for submission to the Chief Public Prosecutor's office in Malazgirt;
(xii) Decision of nonjurisdiction by the Malazgirt Chief Public Prosecutor, dated 9 September 1996, addressed to the Malazgirt District Administrative Council;
(xiii) Decision of 9 September 1996 by the Malazgirt Chief Public Prosecutor to sever the criminal proceedings against the gendarmes from the criminal proceedings against Ahmet Kınay;
(xiv) Indictment of 7 February 1997 by the Muş Chief Public Prosecutor against Ahmet Kınay charging the latter with setting the applicant's house on fire;
(xv) Decision of 31 January 1997 by the Muş Chief Public Prosecutor ordering the continued detention of Ahmet Kınay, who was accused of setting the applicant's house on fire;
(xvi) Minutes of the preliminary hearings before the Muş Assize Court concerning the trial of Ahmet Kınay, dated 7 February 1997 and 6 March 1997;
(xvii) Judgment of 6 May 1997 by the Muş Assize Court which acquitted Ahmet Kınay of burning the applicant's house.
35. The documents under this heading concern the criminal proceedings instituted against the applicant on account of his alleged involvement in the PKK.
(i) Judgment of 10 March 1992 by the Erzincan State Security Court which acquitted the applicant of the charges of having been involved in subversive activities and of membership of the PKK;
(ii) Supplementary decision of 24 September 1992 by the Malazgirt Chief Public Prosecutor to discontinue the criminal proceedings against the applicant on charges of involvement in the PKK;
(iii) Supplementary decision of 24 November 1992 by the Malazgirt Chief Public Prosecutor to discontinue the criminal proceedings against the applicant on charges of membership of the PKK;
(iv) Decision of 11 March 1992 by the Malazgirt Chief Public Prosecutor to discontinue criminal proceedings against the applicant;
(v) Decision of 27 March 1992 by the Court of Cassation to uphold the first instance court's decision to refuse the applicant's request to change his family name;
(vi) Decision of 10 February 1994 by the Chief Public Prosecutor at the Diyarbakır State Security Court to discontinue the proceedings against the applicant on charges of aiding and abetting the PKK.
36. The facts of the case being in dispute between the parties, the Court conducted an investigation with the assistance of the parties. In this connection, three Delegates of the Court (Mr A. Pastor Ridruejo, Mr M. Pellonpää and Mrs S. Boutoucharova) took oral evidence from 2 to 5 April 2001 from thirty witnesses. A further four witnesses had been summoned but did not appear for various reasons. The Delegates took evidence from the following witnesses [Nota: The verbatim records of the evidence given by the witnesses are available to the public at the Court's archives.]:
(1) Celalettin Yöyler;
(2) Dilsa Yöyler;
(3) Saliha Yöyler;
(4) Leyla Yöyler;
(5) Gülistan Yöyler;
(6) Evin Yöyler;
(7) Ahmet Kınay;
(8) Bahattin Kınay;
(9) Esma (Ziri) Yöyler;
(10) Kutbettin Fırtına;
(11) Zeynel Abidin Daş;
(12) Mehmet Şirin Yıldız;
(13) Selahattin Yıldırım;
(14) Serhat Yöyler;
(15) Hakan Tekin;
(16) Halil İbrahim Akkan;
(17) Muhsettin Yöyler;
(18) Abdulcabbar Sezen;
(19) Muhlis Umulgan;
(20) Ömer Sezen;
(21) Ahmet Çelik
(22) İsmail Mezgil;
(23) Süleyman Yılmaz;
(24) Fuat Girişken;
(25) Mustafa Akkan;
(26) Erdal Yanıker;
(27) Halil İbrahim Kuş;
(28) Sacit Savaşçı;
(29) Cengiz Yıldız;
(30) Turgut Abaş.
37. Article 125 of the Constitution provides:
“All acts or decisions of the administration are subject to judicial review ...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
38. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
39. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law shall be brought against the administration before the administrative courts.”
40. The Criminal Code makes it a criminal offence
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188);
(c) to issue threats (Article 191);
(d) to make an unlawful search of an individual's home (Articles 193 and 194);
(e) to commit arson (Articles 369, 370, 371, 372), or in case human life is endangered aggravated arson (Article 382),
(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); or
(g) to damage another's property intentionally (Articles 526 et seq.).
41. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
42. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
43. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). An appeal against the local council's decisions lies to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
44. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
45. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
46. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
47. Extensive powers have been granted to state of emergency the regional governor by decrees enacted under Law no. 2935 on the State of Emergency (25 October 1983), especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.
48. Decree no. 285 modifies the application of Law no. 3713, the Prevention of Terrorism Act (1991), in those areas which are subject to the state of emergency, with the effect that the powers to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces.
49. Article 8 of Decree no. 430 of 16 December 1990 provides:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
According to the applicant, this Article grants impunity to the governors and reinforces the powers of the regional governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.
VIOLATED_ARTICLES: 13
3
8
NON_VIOLATED_ARTICLES: 14
18


ITEMID: 001-95589
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LAUTSI v. ITALY
IMPORTANCE: 2
CONCLUSION: Violation of P1-2+Art. 9;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 6. The applicant lives in Abano Terme and has two children, Dataico and Sami Albertin. The two boys, aged eleven and thirteen respectively, attended in 2001-2002 the Istituto comprensivo statale Vittorino da Feltre, a state-school in Abano Terme.
7. The applicant considered the school’s practice of displaying a crucifix in each of the classrooms contrary to the principle of secularism in accordance with which she wished to bring up her children. She raised the question at a meeting held by the school on 22 April 2002, pointing out that the Court of Cassation, in judgment no. 4273 of 1 March 2000, had ruled that the presence of a crucifix in the polling stations prepared for political elections was contrary to the principle of the secular basis of the State.
8. On 27 May 2002 the school’s governors decided to leave the crucifixes in its classrooms.
9. On 23 July 2002 the applicant challenged that decision in the Veneto Regional Administrative Court. Relying on Articles 3 and 19 of the Italian Constitution and Article 9 of the Convention, she alleged an infringement of the principle of secularism. She also complained of a breach of the principle of impartiality on the part of public administrative authorities, (Article 97 of the Constitution). She was thus asking the Regional Administrative Court to refer the question of constitutionality to the Constitutional Court.
10. On 3 October 2007 the Ministry of Education adopted Directive no. 2666, which recommended that school principals display crucifixes. It joined the proceedings, arguing that the situation complained of was based on Article 118 of Royal Decree no. 965 of 30 April 1924 and Article 119 of Royal Decree no. 1297 of 26 April 1928 (provisions pre-dating the Constitution and the agreements between Italy and the Holy See).
11. On 14 January 2004 the Veneto Regional Administrative Court ruled that, regard being had to the principle of secularism (Articles 2, 3, 7, 8, 9, 19 and 20 of the Constitution), the question regarding the constitutionality of the practice was not manifestly ill-founded and accordingly referred it to the Constitutional Court. In addition, in view of the freedom of education and the obligation to attend school, the presence of crucifixes was imposed on pupils, their parents and their teachers and favoured the Christian religion to the detriment of other religions. The applicant joined the proceedings in the Constitutional Court. The Government maintained that the presence of crucifixes in classrooms was “natural”, on the ground that the crucifix was not only a religious symbol but also the “banner of the Catholic Church”, which was the only church mentioned in the Constitution (Article 7). The crucifix therefore had to be regarded as a symbol of the Italian State.
12. In decision no. 389 of 15 December 2004 the Constitutional Court ruled that it did not have jurisdiction, seeing that the provisions complained of were not provisions of statute law but were contained in regulations, which did not have legal force (see paragraph 26 below).
13. The proceedings in the administrative court resumed. In judgment no. 1110 of 17 March 2005 the administrative court dismissed the applicant’s complaint. It held that the crucifix was both the symbol of Italian history and culture, and therefore of Italian identity, and the symbol of the principles of equality, freedom and tolerance and of the State’s secular basis.
14. The applicant appealed to the Consiglio di Stato.
15. In a judgment of 13 February 2006 the Consiglio di Stato dismissed the appeal, ruling that the cross had become one of the secular values of the Italian Constitution and represented the values of civil life.
16. The obligation to display crucifixes in classrooms pre-dates the unification of Italy. Article 140 of the Kingdom of Piedmont-Sardinia’s Royal Decree no. 4336 of 15 September 1860 required “each school without fail [to] be equipped ... with a crucifix”. ».
17. In 1861, the year in which the Italian State came into being, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of Italy. It stipulated that “the Roman catholic apostolic religion [was] the only State religion. Other existing religions [were] tolerated in accordance with the law”.
18. The capture of Rome by the Italian army on 20 September 1870, following which Rome was annexed and proclaimed capital of the new Kingdom of Italy, led to a crisis in relations between the State and the Catholic Church. By Law no. 214 of 13 May 1871 the Italian State unilaterally regulated relations with the Church and granted the Pope a number of privileges to ensure the lawful conduct of religious activity.
19. After the advent of fascism the State issued a series of circulars intended to enforce compliance with the obligation to display crucifixes in classrooms.
The Ministry of Education’s circular no. 68 of 22 November 1922 contained the following text: “In recent years the image of Christ and the King’s portrait have been removed from many of the Kingdom’s primary schools. That is a manifest and intolerable breach of the regulations and above all an attack on the dominant religion of the State and on the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore to those schools which no longer have them the two sacred symbols of faith and national consciousness.”
The Ministry of Education’s circular no. 2134-1867 of 26 May 1926 asserted: “The symbol of our religion, sacred for the faith and for national consciousness, exhorts and inspires our studious youth, busy sharpening in our universities and other higher education establishments their wit and intelligence with a view to discharging the great responsibilities to which they are called.”
20. Article 118 of Royal Decree no. 965 of 30 April 1924 (Rules of the Kingdom’s secondary schools) reads: “Each school must have the national flag and each classroom a crucifix and the King’s portrait”.
Article 119 of Royal Decree no. 1297 of 26 April 1928 (Approval of the general rules governing primary education services) lists crucifixes among the “necessary equipment and material in school classrooms”.
The national courts have ruled that those two provisions are still in force and apply to the present case.
21. The Lateran Pacts, signed on 11 February 1929, marked the reconciliation between the Italian State and the Catholic Church. Catholicism was confirmed as Italy’s official religion. Article 1 of the Lateran Treaty reads: “Italy recognises and reaffirms the principle enshrined in Article 1 of the Kingdom’s Albertine Statute of 4 March 1848, according to which the Roman catholic apostolic religion is the only State religion of the State.”
22. In 1948 the Italian State adopted its republican Constitution.
Article 7 of the Constitution explicitly acknowledges that the State and the Catholic Church are, each in its own sphere, independent and sovereign. Relations between the State and the Catholic Church are governed by the Lateran Pacts and amendments to those agreements accepted by both parties do not require any procedure for revision of the Constitution.
Article 8 provides that non-catholic religions “are entitled to organise in accordance with their own rules, in so far as they do not set themselves up against the Italian legal order”. Relations between the State and these other religions must be “laid down by law on the basis of agreements with their respective representatives”.
23. The catholic religion’s status changed as a result of the ratification, by Law no. 121 of 25 March 1985, of the first provision of the Protocol to the new Concordat with the Vatican of 18 February 1984, amending the Lateran Pacts of 1929. That provision held that the principle originally proclaimed in the Lateran Pacts, that the catholic religion was the only religion of the Italian State, should be considered to be no longer in force.
24. In judgment no. 508 of 20 November 2000 the Italian Constitutional Court summarised its case-law as follows, affirming that the fundamental principles of equality between all citizens without distinction of religion (Article 3 of the Constitution) and equal freedom for all religions before the law (Article 8) required the State’s attitude to be marked by equidistance and impartiality, without attaching importance to the number of adherents of this or that religion (see judgments nos. 925/88, 440/95 and 329/97) or the scale of social reactions to infringement of the rights of one or the other (see judgment no. 329/97). Equal protection of the conscience of each adherent of a religion does not depend on the religion chosen (see judgment no. 440/95), a principle which is not in contradiction with the possibility of regulating relations between the State and the various religions in different ways for the purposes of Articles 7 and 8 of the Constitution. Such a position of equidistance and impartiality reflects the principle of secularism which the Constitutional Court derived from the provisions of the Constitution and which has the character of a “supreme principle” (see judgments nos. 203/89, 259/90, 195/93 and 329/97), defining the State as a pluralist entity. The various beliefs, cultures and traditions must coexist in equality and freedom (see judgment no. 440/95).
25. In judgment no. 203/89 the Constitutional Court examined the question of the non-compulsory nature of the teaching of the catholic religion in state-schools. On that occasion it affirmed that the Constitution contained the principle of secularism (Articles 2, 3, 7, 8, 9, 19 and 20) and that the religious nature of the State had been explicitly abandoned in 1985, by virtue of the Protocol to the new agreements with the Holy See.
26. When called upon to rule on the obligation to display crucifixes in state-schools, the Constitutional Court delivered its decision no. 389 of 15 December 2004 (see paragraph 12 above). Without ruling on the merits, it declared the question put to it manifestly ill-founded because it related to regulations, without legal force, which consequently fell outside its jurisdiction.
VIOLATED_ARTICLES: 9