ITEMID: 001-100935
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: CHENTIEV and IBRAGIMOV v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants are two Russian nationals of Chechen ethnic origin. Mr Anzor Chadidovich Chentiev (the first applicant), was born in 1983 and is detained in Leopoldov prison. Mr Ali Nurdinovich Ibragimov (the second applicant), was born in 1977 and is detained in Košice. They were represented before the Court by Mr M. Škamla, a lawyer practising in Žilina. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the cases, as submitted by the parties, may be summarised as follows.
The first applicant arrived illegally in Slovakia from Ukraine on 18 January 2006. He was arrested. He disclosed his identity to Slovakian authorities in April 2006, in the context of proceedings concerning his request for asylum. That request was dismissed by a decision which became final on 22 August 2007.
A second request for asylum lodged by the first applicant was also dismissed. The final decision on the issue was given by the Bratislava Regional Court on 8 April 2008.
In the meantime, on 20 April 2006 and 8 September 2006, the Office of the Prosecutor General of the Russian Federation applied for the first applicant's extradition. The request was based on the fact that he had been accused of several offences, in particular banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency.
The applicant was suspected of taking part, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001. In 2005 the applicant with the other members of the group had allegedly forced a government official and a different person to give them a firearm, money, gold items and mobile phones.
The letters indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel, and would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letter of 8 September 2006 indicated that there was a moratorium on that penalty in Russia, that the death penalty would not be imposed on the first applicant and that capital punishment was not provided for the offences imputed to him.
On 1 July 2008 the Trnava Regional Court concluded that the first applicant's extradition to Russia for the purpose of his criminal prosecution there was inadmissible. The decision stated that there was a risk that the applicant would be ill-treated, that he ran the risk of receiving the death penalty and that he would not be guaranteed a fair trial if extradited. Reference was made to Amnesty International reports of 2006 and 2007.
The public prosecutor appealed.
On 4 September 2008 the Supreme Court overturned that decision and held that the applicant's extradition was admissible. After examining the applicant's situation in detail, it found no relevant factor preventing his extradition.
In particular, the Supreme Court took note of the guarantees given by the Prosecutor General of the Russian Federation. As regards the risk of imposition of capital punishment, it analysed the law and practice in Russia and concluded that there existed no real risk that the death penalty would be imposed for the offences imputed to him.
As to the risk that the applicant would be ill-treated, the Supreme Court, with reference to the Court's practice (in particular Saadi v. Italy [GC], no. 37201/06, ECHR 2008...) and various international materials on the conflict in Chechnya, noted that its decision on the extradition of a particular person for the purpose of his criminal prosecution could not be exclusively based on the political situation existing in a part of the Russian Federation and the fact that the State's actions in that respect had been subjected to international criticism. The decision further stated that Russia was a member State of the Council of Europe and a Contracting Party to the Convention. All persons within its jurisdiction were therefore entitled to seek redress before the Court as regards alleged breach of their Convention rights by the Russian authorities.
As to the witness Mukayev (see point 3 below), whose statements had given rise to the applicant's prosecution, his alleged ill-treatment was not proof that the applicant would be subjected to treatment incompatible with Article 3 of the Convention.
The Supreme Court also held that a possible failure by Russian authorities to comply with the guarantees issued by them would undermine the trust of its partners and affect further processing of similar requests.
A refusal to extradite the first applicant would affect the rights of other persons, in particular the relatives of the officers who had been killed, who were entitled to have an effective investigation carried out.
The applicant lodged a constitutional complaint. The Fourth Chamber of the Constitutional Court, to which the case fell to be examined, had a different opinion on the issue from that which the Third Chamber had expressed in its decision of 17 December 2008 in the case of the second applicant (see point 2 below). It therefore submitted the matter to the plenary meeting of the Constitutional Court with a view to harmonising the positions.
In decision PLz ÚS 2/09 of 25 February 2009 the Constitutional Court (plenary meeting) did not accept the proposal by its Fourth Chamber to depart from the conclusion which the Third Chamber had reached on 17 December 2008.
On 26 February 2009 the Constitutional Court (Fourth Chamber) decided that the Supreme Court had violated the first applicant's right under Article 3 by allowing his extradition to Russia. The case was returned to the Supreme Court. In its decision the Constitutional Court (Fourth Chamber) stated that it did not, in principle, object to the way in which the Supreme Court had proceeded. However, there was a need for the case to be examined in the light of the most recent case-law of the European Court of Human Rights and all available information. The trustworthiness of the guarantees offered by the Russian Federation had also to be addressed in more detail. Reference was made to the fact that the Court had issued an interim measure in the case.
In an opinion of 4 March 2009 the Constitutional Court (plenary meeting) noted that in the above decision the Fourth Chamber had disregarded decision PLz ÚS 2/09 of 25 February 2009.
On 13 May 2009 the Supreme Court again found that the applicant's extradition to the Russian Federation for the purpose of his criminal prosecution there was admissible.
In its decision the Supreme Court analysed the first applicant's case in the light of the Court's reasoning in the cases of Shamayev and Others v. Georgia and Russia (no. 36378/02, ECHR 2005III), and Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009). It also had regard to other cases, such as Vilvarajah and Others v. the United Kingdom (30 October 1991, Series A no. 215); Čonka v. Belgium (no. 51564/99, ECHR 2002I); Ismoilov and Others v. Russia (no. 2947/06, 24 April 2008); and Estamirov and Others v. Russia (no. 60272/00, 12 October 2006).
The Supreme Court held that various data available internationally containing general information about the use of violence by Russian armed forces against the civilian population of Chechnya did not prove the existence of a specific risk that the first applicant would be ill-treated if extradited. The applicant himself had not provided any specific information about himself permitting a different conclusion.
With reference to the reasons set out in its decision of 4 September 2008 the Supreme Court again concluded that the guarantees offered by the Russian authorities were sufficient and that it had not been established that the applicant ran a real risk of treatment contrary to Article 3. The Supreme Court also invoked the Constitutional Court's (Third Chamber) decision of 17 December 2008 in the case of the second applicant with the same factual background, and decision PLz ÚS 2/09 in which the Constitutional Court at its plenary meeting had refused to depart from that decision.
On 8 June 2009 the first applicant lodged a complaint with the Constitutional Court. He relied on Articles 3 and 6 of the Convention, on an UNHCR interim recommendation concerning international protection of persons of Chechen origin and on a Human Rights Watch report issued on 4 June 2009 (see point 6 below). He argued that the Supreme Court had disregarded the Constitutional Court's order that his case should be examined in the light of the Court's practice, that he would be subjected to inhuman and degrading treatment and that he would not enjoy the guarantees of a fair trial in case of his extradition. As to the last point, he asserted that the principal witness in the criminal proceedings had given a statement against him under torture.
On 17 August 2009 the Constitutional Court (First Chamber) rejected the complaint as manifestly ill-founded. It found that the Supreme Court had duly considered the relevant facts and law, including the practice of the Court. The Constitutional Court accepted the Supreme Court's conclusion according to which it had not been established that the guarantees offered by the Russian authorities were not trustworthy and that the applicant ran a real risk of treatment contrary to Article 3 of the Convention in case of his extradition. Finally, the Constitutional Court held that it lacked the power to address the fairness of criminal proceedings which were pending before the Russian authorities.
In a letter of 12 October 2009 addressed to the Slovakian authorities the Deputy Prosecutor General of the Russian Federation confirmed the guarantees previously given with regard to the first applicant, including respect for his physical and psychological integrity. The letter indicated that, in case of his conviction and imposition of a prison term, the second applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the applicant's detention and Slovakian diplomatic representatives would be able to visit the first applicant and speak to him without third parties present. The applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the first applicant. Finally, the Office of the Prosecutor General of the Russian Federation guaranteed that the first applicant would not be prosecuted for his political views or because of his race, religion or nationality.
The second applicant was arrested by Slovakian border police on 18 January 2006. He had no valid travel document and gave his name as Alej Dzhamaldeyev.
On 15 February 2006 the second applicant applied for asylum in Slovakia. His request was ultimately dismissed. The final decision was given by the Supreme Court on 26 March 2008. The decision became final on 12 May 2008.
In the meantime, in April 2006, the identity of the second applicant was established.
On 20 April 2006 the Office of the Prosecutor General of the Russian Federation applied for the second applicant's extradition. The request was based on the fact that he had been accused of several offences, namely banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency. The applicant was suspected of having participated, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001.
The above letter and another letter from the Office of the Russian Federation's Prosecutor General dated 19 September 2006 indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel and that he would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letters indicated that there was a moratorium on the death penalty in Russia, that the applicant would not face the death penalty if extradited and that, should the applicant be sentenced to death, the sentence would not be carried out. Reference was made to the fact that the Russian Federation had signed Protocol No. 6 to the Convention and that under Articles 18 and 26 of the Vienna Convention on the Law of Treaties of 1969 it had an obligation not to use the death penalty.
The second applicant was placed in preliminary detention with effect from 28 April 2006. On 23 May 2006 the Košice Regional Court remanded him in custody pending extradition. The Supreme Court dismissed the applicant's complaint against that decision on 21 June 2006.
On 3 September 2008 the Košice Regional Court found inadmissible the applicant's extradition to Russia.
On 29 October 2008 the Supreme Court overturned that decision and held that the second applicant's extradition was admissible. The Supreme Court, with reference to documents available, established that the applicant had been involved, as a member of an organised group, in the killing of two Russian servicemen in Grozny in 2001. That killing had taken place after the military conflict had ended and it was not therefore an exclusively political or military action within the meaning of the relevant provision of the Slovakian Code of Criminal Procedure, which prevented the extradition of foreigners in such cases. The Supreme Court further noted that Russia was a member State of the Council of Europe and that respect for human rights was permanently monitored.
Finally, the Supreme Court considered sufficient the guarantees offered by the Prosecutor General of the Russian Federation, which stated that the applicant would not face the death penalty and that such punishment was in any event not carried out in Russia, that he would not be tried by a Special Court as well as the undertaking that Articles 3 and 6 of the Convention would be respected in his case.
On 3 December 2008 the second applicant lodged a complaint with the Constitutional Court. He relied on Article 3 of the Convention and Article 1 of Protocol No. 6. The applicant referred to various reports on the situation in prisons in the Russian Federation. In particular, he invoked reports on treatment to which persons of Chechen origin suspected of fighting against Russian authorities were subjected. He also invoked the fact that the death penalty had not been formally abolished in Russia.
On 17 December 2008 the Constitutional Court (Third Chamber) dismissed the complaint as being manifestly ill-founded. It relied on the reasoning of the Supreme Court which it considered relevant and sufficient from the point of view of protecting the applicant's rights under the Convention and the Constitution.
In a letter of 12 October 2009 addressed to the Slovakian authorities the Deputy Prosecutor General of the Russian Federation confirmed the guarantees previously given with regard to the second applicant, including respect for his physical and psychological integrity. The letter indicated that, if he was convicted and given a prison sentence, the second applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the second applicant's detention and Slovakian diplomatic representatives would be able to visit the second applicant and speak to him without the presence of third persons. The second applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the second applicant. Finally, the Office of the Prosecutor General of the Russian Federation guaranteed that the second applicant would not be prosecuted for his political views or because of his race, religion or nationality.
The applicants maintained that criminal proceedings against them had been instituted on the basis of statements of A.M. Mukayev, which had been extracted under torture.
Mr Mukayev, while being questioned in Chechnya on 26 February 2006, had admitted involvement in a number of offences which he had committed as a member of an organised group. Among those offences reference was made to the killing of two members of the special units of the Ministry of the Interior. Those persons had been shot after members of the group had stopped their car on a road. Mr Mukayev indicated the applicants as having been among the accomplices.
Subsequently Mr Mukayev, with the assistance of an advocate, lodged a criminal complaint, arguing that his defence rights had been infringed after his extradition from Kazakhstan and that he had been subjected to treatment incompatible with Article 3 while he was being questioned and detained in Chechnya. The complaint was dismissed by the prosecuting authorities. On 3 October 2007 the Zavodskyi District Court of Grozny quashed the above decision to dismiss Mr Mukayev's criminal complaint. The court noted that the prosecuting authorities had not examined all the relevant facts and that the origin of several documented injuries sustained by Mr Mukayev had not been established. The court ordered the prosecutor to review the decision to dismiss Mr Mukayev's criminal complaint.
In 2008 Mr Mukayev lodged an application with the Court. The proceedings are pending (application no. 22495/08).
In their observations of 12 March 2010 the applicants referred to the case of Mr Adlan Shakhayev who had unsuccessfully applied for asylum in Slovakia in 2006. The applicants submitted that, after his expulsion, Mr Shakhayev had spent a week in a prison in Moscow and that he had been tortured and ill-treated. Subsequently he had been transferred to the ORB-2 detention facility in Grozny, where he had been repeatedly tortured. With the help of his relatives and the payment of a ransom he received a conditional prison term only and was released.
The applicants indicated that they would submit a written statement by Mr Shakhayev, together with the relevant medical reports.
No such documents have been submitted.
In the above case Rule 39 was applied in the Third Section of the Court to suspend the Chechen applicant's extradition to Russia, where he faced criminal charges. That measure was lifted following the receipt of assurances by the Russian Government that the applicant would not be condemned to the death penalty or to an irreducible life sentence, or detained in conditions which were contrary to Article 3 of the Convention. There was also a guarantee that monitoring of compliance with that guarantee was to be ensured through the Spanish diplomatic representation in Russia.
The Court (Third Section) declared the application inadmissible on 17 February 2009.
According to a press release by Human Rights Watch of 1 September 2009, Mr Gasayev, accused of taking part in an attack on government buildings in Ingushetia in June 2004, had been released by the Russian authorities without charge on 28 August 2009, after ten months in pre-trial detention. The press release further stated that “according to Gasayev, he was tortured for three days and then released without charge”.
According to third-party comments by the Government of the Russian Federation, the criminal proceedings against Mr Gasayev had ended following an amnesty. Such action was permissible under the Russian law subject to admission of guilt by the accused person.
Before the Constitutional Court the applicants relied, inter alia, on a press release by Human Rights Watch of 4 June 2009 entitled “Russia: Prosecute Rights Violations in North Caucasus”. In it reference is made to the fact that the Court adopted more than 100 judgments holding Russia responsible for serious violations of human rights in Chechnya. Human Rights Watch, the Memorial Human Rights Centre and the Russian Justice Initiative called on the Russian government to ratify Protocol No. 14, to re-open investigations in those cases where the Court had concluded that prior investigations were inadequate, to undertake a thorough review and revision of domestic legislation and regulations regarding the use of force by military or security forces to ensure their compliance with human rights law and to carry out an in-depth inquiry into the conduct of investigations of abuses committed by military servicemen, police, and intelligence officials and other forces in Chechnya.


ITEMID: 001-60714
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF PIETILAINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1943 and lives in Laukaa.
10. On 5 January 1987 criminal investigations were instituted against the applicant who was taken into police custody the same day in respect of, inter alia, alleged tax frauds. He was released on 16 January 1987.
11. On 5 July and 31 August 1990 the applicant was summoned to appear before the Helsinki City Court (raastuvanoikeus, rådstuvurätt, as from 1 December 1993 Helsinki District Court, käräjäoikeus, tingsrätt) indicted for several aggravated tax frauds. The alleged offences concerned the importation of parts of vehicles and failure to pay relevant tax for them. The relevant decisions of the tax authorities after the clearance of the taxes were not yet final as the applicant had appealed against them. The first hearing before the District Court was held on 14 November 1990. The complainants and one of the four defendants, MI, had not yet been summoned. The Public Prosecutor charged the applicant with ten aggravated tax frauds, some of which he had allegedly committed together with other defendants, including MI. The applicant’s lawyer asked to be allowed to reply to the charges later. At the request of the Public Prosecutor the case was adjourned until 3 April 1991.
12. At the second hearing, on 3 April 1991, the applicant denied all the charges. Concerning the alleged offences in complicity with MI, the applicant stressed MI’s role in the events and his greater knowledge of the subject. Two complainants and the defendant MI had still not been summoned. At the request of the Public Prosecutor and the National Board of Customs, which was one of the complainants, the case was adjourned until 29 May 1991.
13. At the third hearing on 29 May 1991 the National Board of Customs submitted claims for damages. The applicant’s lawyer opposed the claims and said he would revert to the question of damages in a later hearing. The defendant MI had still not been summoned to appear before the City Court. The Public Prosecutor requested an adjournment in order to have MI summoned and to submit further clarification to certain questions. His request was not opposed. The next hearing was ordered to be on 16 October 1991.
14. At the fourth hearing on 16 October 1991 the applicant was heard in person. His lawyer also clarified the reply to the claims of the National Board of Customs. The Public Prosecutor stated that MI had not yet been contacted and requested an adjournment in order to have him summoned. The applicant left the request for an adjournment to the City Court’s discretion. The case was adjourned until 4 December 1991.
15. At the fifth hearing on 4 December 1991 the Public Prosecutor stated that MI had still not been summoned and requested a further adjournment. The applicant left the request to the City Court’s discretion. The case was adjourned until 13 May 1992.
16. At the sixth hearing on 13 May 1992 the Public Prosecutor requested the case to be adjourned until further notice since MI’s place of residence was not known. The applicant left the case to be decided for his part. The City Court considered that it was necessary to hear MI before giving a decision on the charges against the applicant. Furthermore, the National Board of Customs had not yet given its decision concerning the appeals against the decisions of the tax authorities after the clearance of the taxes. The City Court, therefore, adjourned the case until further notice of the date of the next hearing would be given.
17. The National Board of Customs and the Supreme Administrative Court gave decisions concerning the appeals against the post-clearance decisions on 20 April 1993 and 15 December 1993 respectively.
18. In March 1994 the applicant lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekansler). The complaint concerned the City Court’s decision to adjourn his case until further notice.
19. The seventh hearing before the District Court (the former City Court) was held on 31 August 1994. MI had been summoned but he was absent from the hearing. At the request of the public prosecutor, which was not objected to, the case was adjourned until 21 September 1994.
20. At the eighth hearing on 21 September 1994 MI appeared before the District Court to reply to the charges. He and the applicant were examined as regards their complicity in the alleged offences. At the request of MI, which was not objected to, the case was adjourned until 9 November 1994.
21. At the last hearing on 9 November 1994 the applicant submitted that the length of the proceedings should be taken into account when assessing his possible punishment. The District Court convicted the applicant of a repetitive offence, consisting of four tax frauds, an aggravated tax fraud and aiding and abetting in two tax frauds and in two aggravated tax frauds, and sentenced him to six months’ suspended imprisonment. In the reasons given for the sentence the length of the proceedings was not mentioned explicitly. It was, however, noted that the fact that the offences had been committed a long time ago was one of the reasons for the court’s decision to impose a suspended sentence.
22. On 17 October 1995 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjoint) gave his decision on the applicant’s complaint, finding no breach of official duties on the part of the City Court’s members or of the public prosecutor nor any reason to take further measures in the matter.
23. The public prosecutor and the defendants appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt). The applicant requested, inter alia, that the length of the proceedings should be taken into consideration when assessing his sentence. On 4 June 1996 the Court of Appeal, as regards the applicant, upheld the District Court’s decision without giving any further reasons.
24. The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen) renewing his request that the length of the proceedings be taken into account in the assessment of his sentence. On 26 November 1996 the Supreme Court refused the applicant leave to appeal.
25. Chapter 16, Section 4, Subsection 1 (30.4.1987/452), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided:
“When a party requests an adjournment in order to submit further evidence or for some other reason, the case must be adjourned, if the court finds grounds for it. The date for a new hearing must be set at the same time. A court cannot adjourn a case of its own motion unless necessary under particular circumstances. ...”
26. As from 1 December 1993 the rules concerning adjournment of cases were amended (amendment 22.7.1991/1052). As regards criminal cases, the above-mentioned provision of law remained essentially unchanged. Furthermore, Chapter 16, Section 5, of the Code of Judicial Procedure provided:
“When it is important to wait for a decision of another tribunal or some other body before a decision is given in a pending case, or when some other long-lasting impediment exists, a court may order that the hearing of the case will not be pursued until that obstacle ceases to exist.”
27. According to Chapter 14, Section 7a (19.4.1991/708), of the Code of Judicial Procedure, which came into force on 1 April 1992, charges against defendants accused of committing the same offence must, in principle, be tried together.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57467
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1970
DOCNAME: CASE OF DELCOURT v. BELGIUM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
TEXT: 9. The purpose of the Commission’s request is to obtain a decision from the Court as to whether the facts of the case do or do not disclose a violation by the Kingdom of Belgium of the obligations binding on it under Article 6 para. 1 (art. 6-1) of the Convention.
10. The relevant facts of the case as they appear from the Commission’s Report and memorial, the Government’s memorial, the documents produced and the addresses of the representatives appearing before the Court may be summarised as follows:
11. Emile Delcourt, a Belgian citizen, born on 28th December 1924, and a company director, has his residence at Waterloo. At the time of lodging his Application with the Commission (20th December 1965), he was imprisoned in the central gaol at Louvain.
12. Proceedings having been instituted against him by the Procureur du Roi at Bruges for obtaining money by menaces, fraud and fraudulent conversion, the Applicant was arrested on 23rd November 1963 and subsequently charged with a number of offences of fraud, fraudulent conversion, forgery and uttering forged documents, issuing uncovered cheques and fraudulent bills as well as obtaining credit by false pretences.
On 21st September 1964, he was found guilty by the Bruges Court of Summary Jurisdiction on thirty-six out of forty-one counts and sentenced to a year’s imprisonment and a fine of two thousand Belgian francs.
On 17th March 1965, the Court of Appeal in Ghent modified this judgment against which both Delcourt and the prosecution had appealed on 25th and 26th September 1964. It found all the charges to be established including those on which Delcourt had been acquitted at first instance, stressed the seriousness of the offences and referred to his previous convictions. It accordingly increased his principal sentence to five years’ imprisonment and further decided that on serving his sentence he should be "placed at the disposal of the Government" for ten years thus granting an application by the prosecution which had been rejected by the Bruges Court.
On 17th and 23rd March 1965, the Applicant appealed to the Court of Cassation against the judgment of the Court of Appeal and against that of the Court at Bruges. He lodged a memorial on 20th May 1965. The Procureur général’s department (parquet) at the Court of Appeal did not avail itself of its right to file a counter-memorial. A public hearing took place before the second chamber of the Court of Cassation on 21st June 1965; the Applicant himself was present at that hearing but not his counsel. The Court of Cassation heard the report of Judge De Bersaques, its rapporteur, and then the submissions of the Avocat général, Mr. Dumon, to the effect that the two appeals should be dismissed. In its judgment delivered the same day, after deliberations held in private the Court dismissed the two appeals.
13. In the Application which he lodged with the Commission on 20th December 1965 (No. 2689/65), Delcourt complained of the judgment of 21st September 1964 and the judgments on appeal of 17th March and 21st June 1965. Protesting his innocence and alleging the violation of Articles 5, 6, 7 and 14 (art. 5, art. 6, art. 7, art. 14) of the Convention, he presented numerous complaints almost all of which were declared inadmissible by the Commission on 7th February and 6th April 1967. On this last date, however, the Commission accepted one complaint which related to the question whether the presence of a member of the Procureur général’s department at the deliberations of the Court of Cassation was compatible with the principle of "equality of arms" and hence with Article 6 para. 1 (art. 6-1) of the Convention.
In fact, the Advocat général, Mr. Dumon, was present at the Court’s deliberations in accordance with Article 39 of the Prince Sovereign’s Decree of 15th March 1815 which provides "... in cassation proceedings the Procureur général has the right to be present, without voting, when the Court retires to consider its decision". It may be observed that this Decree has recently been replaced by certain provisions of the new Judicial Code (Act of 10th October 1967) which was not yet in force when the Belgian Court of Cassation dismissed Delcourt’s appeals. The above-mentioned provision of the 1815 Decree has been re-enacted, in substance, in Article 1109 of this Code.
14. Following the decision of 6th April 1967 declaring this complaint admissible, a Sub-Commission ascertained the facts of the case.
15. Before the Commission and the Sub-Commission, the Applicant maintained that the presence of a member of the Procureur général’s department at the Court of Cassation at the deliberations of 21st June 1965 had violated Article 6 para. 1 (art. 6-1) of the Convention. Without disputing that there is a considerable difference between the respective functions of the Procureur général’s department at the Court of Cassation and the Procureur général’s department at the courts below, he stressed that in accordance with the law the former does sometimes appear as a party even though this did not happen in this case. Furthermore, the Procureur général’s department at the Court of Cassation does, in the view of the Applicant, exercise supervision over the Procureurs généraux at the Court of Appeal (section 154 of the Act of 18th June 1869); a very strong statutory tie, therefore, links him with them, his subordinates, even if in practice the supervision in question is nowadays rather discreet. Again, the Procureur général’s department at the Court of Cassation was, in the great majority of cases, the opponent - at any rate potential - of the convicted persons who appealed to the highest court in Belgium: the Procureur général usually submitted that their appeals should be dismissed and his opinion was nearly always adopted - as in this case - by the judges. Then the Applicant stressed that the Procureur général, after having developed his submissions at the end of the hearing in open court, also participated in its private deliberations from which the parties are excluded. This caused a violation of the rights of the defence and, particularly, of the principle of "equality of arms", as it was defined in the opinions given by the Commission in the Ofner, Hopfinger, Pataki and Dunshirn cases (Applications Nos. 524/59, 617/59, 596/59 and 789/60, Yearbook of the Convention, Vol. 6, pp. 696 to 706 and 730 to 732). The Applicant specified that he did not mean, however, to raise the slightest doubt as to the absolute conscientiousness with which the Court of Cassation fulfils its function or to suggest that the Procureur général’s department might attempt unduly to influence the court in any direction other than that of strict justice. In other words, Delcourt was not criticising persons but rather the institution which gave an advantage to the Procureur général’s department. Admittedly, the legislation in issue dated back for more than a century and a half and the Belgian Parliament had decided on two occasions that it did not need to amend it. The legislation, however, dated from a time of absolute monarchy and carried that stamp; furthermore, the incorporation of the Convention into the domestic law of a Contracting State necessarily "kept bringing to light new controversial points which had not been noticed by the national legislature".
In his observations of 8th December 1967, almost two years after the lodging of the Application, Delcourt further complained that he had not been able to reply to the submissions of the Procureur général’s department at the Court of Cassation: he had not been informed of this submission before the hearing of 21st June 1965 nor did he have the right to the last word at that hearing.
The Applicant applied for the repeal of the legislation under attack and claimed pecuniary damages.
16. On the failure of the attempt made by the Sub-Commission to arrange a friendly settlement, the plenary Commission drew up a Report as required under Article 31 (art. 31) of the Convention. This Report was adopted on 1st October 1968 and transmitted to the Committee of Ministers of the Council of Europe on 5th December 1968. The Commission expressed therein, by seven votes against six, the opinion that Article 6 para. 1 (art. 6-1) of the Convention was not violated in the present case. Two members of the majority expressed a joint concurring opinion and the six members forming the minority expressed their dissent in a joint opinion.
17. After the case was referred to the Court, the Applicant returned to and developed some of his earlier arguments in a document which the Commission appended to its memorial. As regards his main complaint, the Applicant stated that he associated himself with the opinion of the minority of the Commission.
Arguments of the Commission and the Government
18. Unlike the Government, the Commission considers unanimously that Article 6 para. 1 (art. 6-1) of the Convention is applicable in the present case to the proceedings in cassation.
In the view of the majority of the Commission, however, the presence of a member of the Procureur général’s department attached to the Court of Cassation at the deliberations of 21st June 1965 was not incompatible with this text. In actual fact, this highest court in Belgium does not deal with the merits (fond) of cases (Article 95 of the Constitution and Section 17 of the Act of 4th August 1832); save in certain exceptional matters, irrelevant to this case, the Court of Cassation’s sole function is to decide questions of law. The Procureur général’s department is confined to assisting the Court in the exercise of its functions. That department does not, ordinarily, conduct prosecutions and it has not the character of a party (Article 37 of the Prince Sovereign’s Decree of 15th March 1815). In almost all cases it is completely independent of the Minister of Justice and has no right of direction over the Procureur général’s department which is attached to the courts of first instance and appeal and which is the prosecuting authority in normal cases. The participation of the Procureur général’s department at the deliberations of the Court of Cassation does not, therefore, conflict with the principle of "equality of arms", even when it is examined in the light of the precedents set by the Commission (Ofner, Hopfinger, Pataki and Dunshirn cases).
The Delegates of the Commission brought to the attention of the Court the joint dissenting opinion of six members of the Commission: these members of the Commission were of the opinion that the participation of the Procureur général’s department at the deliberations of the Court of Cassation did not comply with the requirements of Article 6 para. 1 (art. 6-1).
The Commission did not deem it necessary to express an opinion on the "new" complaints which appeared in Delcourt’s above-mentioned observations of 8th December 1967 (paragraph 15 above); in the Commission’s view, the Applicant presented them only as special aspects of the principle of "equality of arms" which the majority of the Commission did not consider to be violated.
In its memorial of 22nd May 1969 and at the hearing held on 29th September 1969, the Commission requested the Court:
"to decide whether or not, in the course of the proceedings before the Belgian Court of Cassation in the Delcourt case on 21st June 1965, there was a violation of Article 6 para. 1 (art. 6-1) of the Convention, insofar as this provision requires a fair trial, by reason of the participation of the representative of the Procureur général’s department in the deliberations of the Court of Cassation".
19. The Government does not dispute that a member of the Procureur général’s department at the Court of Cassation, after submitting in open court that the Applicant’s appeals should be refused, was present in a consultative capacity at the deliberations of 21st June 1965, but maintains that this did not involve any violation of the right guaranteed by Article 6 para. 1 (art. 6-1) of the Convention.
That highest court in Belgium does not deal with the merits of cases (Article 95 of the Constitution and Section 17 of the Act of 4th August 1832). In spite of its judicial nature, which has been developed through a long evolution, the Court of Cassation fulfils a function which has never ceased to have some relation with the work of the legislature. Established in the interests of the law itself, the Court of Cassation judges judgments and not persons, save in certain exceptional matters which are irrelevant to the present case. It is not therefore the function of that Court to decide disputes concerning civil rights and obligations or to determine criminal charges (décider, soit des contestations sur ses droits et obligations de caractère civil, soit du bien-fondé de toute accusation en matière pénale) within the meaning of Article 6 para. 1 (art. 6-1), as that provision has been interpreted in a series of decisions by the bodies set up to ensure the observance of the Convention.
As regards the Procureur général’s department at the Court of Cassation, it must be distinguished fundamentally from the Procureur général’s department attached to the courts below. As a general rule, it has not the character of a party (Article 37 of the Decree of 15th March 1815); in the very rare cases where under the relevant law the department assumes the position of a party and institutes prosecutions the Procureur général is not present at the deliberations (Article 39 of the Decree of 15th March 1815). As the Procureur général is not concerned with the question of the guilt of the accused, he is neither their adversary nor the tool of the prosecution. For example, there is nothing to prevent him from submitting to the Court that an appeal in cassation brought by the Procureur général’s department at the Court of Appeal should be dismissed or from putting forward on his own initiative grounds for setting aside a conviction; and there are statistics to show that this is often the case. The Procureur général’s department attached to the Court of Cassation is not, therefore, in alliance with the Procureur général’s department attached to the courts below; besides, the Procureur général at the Court of Cassation exercises, in practice, over that department supervision of a purely doctrinal and scientific nature without the least power of direction (Section 154 of the Act of 18th June 1869). Furthermore, the Procureur général at the Court of Cassation is entirely independent in his relations with the Minister of Justice.
In short, the role of the Procureur général is of the same kind as the functions of the Court of Cassation itself: it consists, ordinarily, in no more than giving technical and objective assistance to the Court in order to ensure the observance of the law, consistency in judicial precedent and good drafting of the judgments. To sum up, the Procureur général attached to the Court of Cassation "forms part of, and is identified with", the Court like the judges. In these circumstances, the presence of one of the members of the Procureur général’s department at the deliberations did not upset the "equality of arms" to the detriment of the Applicant. There was some inequality in this case but it worked to the advantage of Delcourt; unlike him, the Procureur général’s departments attached to the lower courts whose decisions were challenged in cassation did not have an opportunity to put forward their arguments in open court on 21st June 1965 (Article 34 of the Decree of 15th March 1815); those departments did not even avail themselves of their right to reply in writing to the memorial filed by the appellant on 20th May 1965. In the Government’s view, the Delcourt case cannot be compared with the Pataki and Dunshirn cases; the present case is closer to the Ofner and Hopfinger cases in which the Commission and the Committee of Ministers did not find any violation of Article 6 (art. 6).
For the rest, the legislation in dispute is more than a century and a half old, in which time it has never been subjected to criticism in Belgium by writers or the Bar who are, however, most attentive to everything which relates to the rights of the defence. On two occasions, Parliament decided explicitly to maintain this legislation, the first time without any change (at the time of the passing of the Act of 19th April 1949), the second time in substance and after examination of the question from the point of view of the Convention (Article 1109 of the 1967 Judicial Code). These circumstances raise something like a presumption in favour of the compatibility of the legislation in question with Article 6 para. 1 (art. 6-1); they also show that the participation of the Procureur général’s department at the deliberations of the Court of Cassation does not open the door to abuse.
As to Delcourt’s "new" complaints, they are inadmissible because they were not included in the original Application. The Government considers that they are in any event unsustainable; in its view, it is just because the Procureur général’s department is not a party that its submissions are made at the end of the oral proceedings without being communicated in advance to the parties.
In its memorial of 17th July 1969 and at the oral hearing held on 30th September 1969, the Government asked the Court:
"to hold that, having regard to the role which Belgian law confers on the Procureur général attached to the Court of Cassation and to his special position in Belgian judicial procedure, his presence in a non-voting capacity at the Court’s deliberations as expressly provided for in that legislation is not of such a nature as to violate the principle of ‘equality of arms’ where, as in the present case, the Procureur général is not himself a party to the proceedings as applicant;
to decide in consequence that, in the proceedings which took place in the Delcourt case before the Court of Cassation of Belgium on 21st June 1965, there was no violation of Article 6 para. 1 (art. 6-1) of the Convention by reason of the presence of the representative of the Procureur général’s department, Mr. Dumon, Avocat général, at the deliberations of the judges".
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59880
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF WERNER v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Antonio Pastor Ridruejo
TEXT: 9. On 15 December 1993 the Koszalin District Court appointed the applicant to the function of a judicial liquidator of a limited liability company H. located in Koszalin.
10. On 19 March 1994 the insolvency judge M. requested the commercial division of the Koszalin District Court to dismiss the applicant from his function. She submitted that the applicant had been involved in civil proceedings relating to his failure to pay salaries to employees of a company that he owned and that the court had found against him. Therefore he did not comply with the legal requirements that a judicial liquidator had to satisfy since he could not be considered trustworthy. Furthermore, until the end of January 1994 he had failed to give notice to all the employees of the H. company. Consequently, he had not been performing his obligations in a satisfactory manner as required by law.
11. On 21 March 1994 the Koszalin District Court, at a session held in camera, dismissed the applicant and appointed a new liquidator. The insolvency judge sat on the bench composed of three professional judges that gave this decision. No party to the insolvency proceedings attended the session and the applicant was, likewise, not present, not having been informed of the session or summoned to attend it, as the law did not provide for it.
12. On 28 March 1994 the applicant appealed against this decision. He submitted that, while it was true that no appeal could be filed against the decision to appoint a new liquidator, the law was not clear as to whether an appeal was available against his dismissal from his function. Furthermore, his good reputation as a lawyer and as an employer had been damaged both by the contents of judge M.’s motion of 19 March 1994 and by his subsequent dismissal. He argued that certain statements in the motion were incorrect as to the facts. Therefore he had to lodge an appeal in order to challenge them. He contested both the allegations that he was untrustworthy and that he had not been carrying out his duties properly. He further submitted that the insolvency judge, considering her own motion for his dismissal, had acted both as a claimant and as a member of the court, which called into question the court’s impartiality.
13. By a decision of 30 March 1994 the Koszalin District Court rejected the applicant’s appeal. The court considered that the Insolvency Act did not provide for an appeal against a dismissal of the judicial liquidator. Judge M. was entitled to sit on the bench of the commercial court, deciding about the applicant’s dismissal, because the Insolvency Act excluded participation of the insolvency judge in that court only in cases in which an appeal was available against a decision of that judge given in the insolvency proceedings.
14. The applicant appealed to the Koszalin Regional Court, submitting that the District Court was wrong to hold that there was no appeal against his dismissal. He reiterated that he had been denied a possibility to have the allegations against him reviewed by an impartial court.
15. On 8 July 1994 the Koszalin Regional Court dismissed the applicant’s appeal, considering that under the Insolvency Act, no appeal was possible against a decision by which a liquidator was dismissed and a new one appointed.
16. On 29 April 1996 the Słupsk Regional Court convicted the applicant of misappropriation of the H. company’s assets, sentenced him to one year’s imprisonment and stayed the enforcement of the sentence for two years.
17. On 26 September 1996 the Koszalin Court of Appeal quashed this judgment and ordered that the case be reconsidered.
18. On 10 March 1997 the Słupsk Regional Court convicted the applicant of misappropriation of the assets of H. company, sentenced him to one year imprisonment and stayed the enforcement of the sentence for a probationary period of one year.
19. On 16 October 1997 the Gdańsk Court of Appeal upheld this judgment.
20. The Ordinance of the President of Republic of Poland of 24 October 1934 on Insolvency Act, as amended, sets out the rules governing insolvency proceedings. Article 1 of the Insolvency Act, insofar as relevant, provides:
“1. Any business enterprise which is unable to pay its debts shall be declared insolvent....
3. Any public enterprise, co-operative ... [or] joint-stock company shall be declared insolvent if its assets are not sufficient to cover its liabilities."
21. According to Article 8 of the Insolvency Act, proceedings relating to an insolvency petition shall be instituted before the district commercial court, sitting as a bench of three professional judges, in whose jurisdiction the insolvent debtor has its registered office.
22. Pursuant to Article 14 of the Insolvency Act, the commercial court in insolvency proceedings shall call on creditors to submit their claims within a fixed time-limit and assign the insolvency judge to the case. The insolvency judge shall, first, appoint the judicial liquidator of the company, who shall take possession of the insolvent company’s assets and, subject to certain prior decisions of the insolvency judge, distribute it among creditors so as to ensure that their debts be paid to the highest possible degree. The judge shall conduct the subsequent insolvency proceedings, supervise the actions of the liquidator of the company and determine in which instances the liquidator shall not be authorised to act without the judge’s prior permission.
23. According to Article 60 of the Insolvency Act, the liquidator alone has the capacity to sue or to be sued in all proceedings concerning claims against an insolvent estate.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5480
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: KONIARSKA v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Nicolas Bratza;Paul Mahoney
TEXT: The applicant is a British citizen, born on 11 July 1978 and living in Derbyshire. She is represented before the Court by Mr A. Wilson, solicitor, of Messrs. Wilson and Kirwan, Derby.
A.
A chronology of the applicant, from her birth in 1978 until she reached her majority in 1996, submitted by the Government and not contested by the applicant, is attached to the present decision. In March 1995, the applicant was convicted of common assault, criminal damage and affray. On 17 May 1995, an interim hospital order was made under Section 38 of the Mental Health Act 1983, and the applicant was transferred to Rampton Hospital for assessment. Whilst at Rampton, Dr. Sarna, a consultant psychiatrist, took the view that the applicant suffered from a psychopathic disorder within the meaning of Section 1 of the Mental Health Act, but that that condition was not treatable. An assessment from the applicant's solicitors' own psychiatrist, Dr. Sashidaran, did not reveal criteria for psychopathic disorder. The applicant was discharged from Rampton to Glenthorne Centre on 30 August 1995.
On 23 November 1995 the Birmingham Family Proceedings (Magistrates) Court under Section 25 of the Children Act 1989, granted an application made by the Derbyshire County Council, that the applicant be kept in secure accommodation until 22 February 1996. An order under Section 25 may only be made in respect of a child who is being looked after by a local authority; the applicant had been subject to a full care order since 3 October 1994. The magistrates stated in their reasoning that if she was kept in any other accommodation the applicant was "likely to injure herself or other persons".
The secure accommodation order was due to expire on 23 February 1996. On 22 February 1996 two applications came before Mr Justice Stuart-White in the High Court. The applications were an application by the local authority for a further secure accommodation order to last up to the applicant's eighteenth birthday, and an application by the applicant for revocation of a care order. After considerable discussion about whether the court had jurisdiction to deal with both applications, the judge made a limited secure accommodation order for 24 hours so that the case could be dealt with the next day by the Sutton Coldfield Family Proceedings Court. Directions concerning the future conduct of the care proceedings were given.

On 23 February 1996 an application for a secure accommodation was made by the Derbyshire County Council with the support of the guardian ad litem before the Sutton Coldfield Family Proceedings (Magistrates) Court. Prior to the hearing a psychiatric hospital had refused to accept the applicant as a patient. Glenthorne Centre to which the applicant had first been admitted in August 1995 and where she was detained at the time of the application, provided a report for the Sutton Coldfield Family Proceedings Court. This report, dated 9 February 1996, stated under the heading "Future Recommendations":
"We are unable to recommend that [the applicant] remains at Glenthorne as we cannot provide a suitable environment for her. She is the oldest member of a mixed group. We have nothing further to offer in terms of treatment."
Under the heading "Education" the report states, in so far as relevant, as follows:
"[The applicant] does have access to a Studies programme. Since the granting of a further Secure Order in November 1995, [the applicant] attended Studies regularly until recently when following an altercation with another young person [she] was required to remain on her corridor when the other young person was on the unit. [The applicant] was able to attend Studies and to be out on the unit in the absence of the other young person who was at work all day but, for the most part, she has chosen not to attend studies."
The Glenthorne Centre Report also stated:
"It is acknowledged that [the applicant] has been subject to a great deal of uncertainty concerning her future, the possibility of her being sectioned under the Mental Health Act if Stockton Hall offer her a place and the likely renewal of a Secure Accommodation Order. It is accepted that these uncertainties have had a direct effect on her behaviour."
This passage of the report echoed the sentiments of the guardian ad litem, who in a report of 20 August 1995 (the identity of the guardian ad litem subsequently changed) stated that she was "appalled" by the lack of advance planning or preparation with regard to the future care of the applicant and that some forward planning and identification of a treatment programme was essential. This guardian ad litem proposed a phased plan whereby there would be a final placement in a non secure therapeutic setting prior to the applicant's eighteenth birthday.
The application on 23 February 1996 for a secure accommodation order was opposed by the applicant and her parents. The application was however successful and a further secure accommodation order was made which authorised the applicant's detention in secure accommodation for a period of five months until midnight 10 July 1996, the day before the applicant's eighteenth birthday. In their reasoning the magistrates stated as follows:
"(1) We find that there has been a long history of aggressive behaviour and self harm, which is only controlled whilst under close supervision within a secure environment.
(2) We find although there have been fewer incidents of self harm recently, we believe that there exists a danger of her injuring herself and others.
(3) We find it is clear that all avenues open to help [the applicant] have been closed for one reason or another, leaving the Local Authority with the only option, that being to rehabilitate [the applicant] into the community.
Great emphasis has been put on the fact that if an order is made there will be no time to prepare a rehabilitation place before [the applicant's] eighteenth birthday. This is not our concern ... our duty is to consider if the criteria to make the order under Section 25 [of the Children Act 1989] are made out. On the evidence we have read and heard we are satisfied that the criteria are made [out] and therefore we make an order to midnight on 10 July 1996."
The applicant appealed against the order of 23 February 1996. The appeal was allowed by the High Court on 18 March 1996. Mr Justice Kirkwood varied the order so that it expired at midnight on 5 May 1996. This new order was accepted by the applicant and her parents.
Four days previously, on 12 March 1996, the applicant had been given liberty to withdraw her application for a discharge of the care order as a care plan had been agreed.
On her release from secure accommodation the applicant went to live with her parents.
B. Relevant domestic law
Section 25 of the Children Act 1989, so far as relevant, provides as follows:
"(1) Subject to the following provision of this section, a child who is being looked after by a local authority may not be placed, and if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears-
(a) that-
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons."


ITEMID: 001-91701
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: YERLIKAYA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 1. The applicant, Mr Cengiz Yerlikaya, is a Turkish national who was born in 1971 and lives in Istanbul. He was represented before the Court by Mrs F. Karakaş Doğan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 26 April 2003 the applicant was arrested, together with four other persons, by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Workers’ Party of Kurdistan), an illegal organisation, and was taken into custody.
4. On the same day, the applicant underwent medical examination at the Istanbul Forensic Institute. He told the doctor that he had not been subjected to any form of ill-treatment. Having examined the applicant, the doctor stated the following:
“On the bottom external part of the right gluteus (buttock) there is an ecchymosis of 6x6 cm. The person stated that this ecchymosis had occurred when he had fallen down some fifteen to twenty days ago.
There is also an old incision scar on the right inguinal area. The person stated that he had undergone an appendix operation ten months ago. There is hernia in the operated area.”
5. On 28 April 2003, upon the request of the anti-terrorist police, the Public Prosecutor at the Istanbul State Security Court extended the custody period for two more days.
6. The applicant was allegedly beaten and kicked by police officers during that custody. Cold and dirty water was poured on him several times. He was insulted and sworn at and made to stand up for three days without sleep. The officers allegedly stamped on his scar from a previous operation which left him in great pain. They also allegedly gave the applicant a medication which made him more exhausted.
7. On 30 April 2003 the applicant was taken to the Forensic Medicine Institute, where he was examined by a doctor. The applicant told the doctor that he had been beaten by the police. However, the medical report drafted on that occasion indicated that there were no signs of physical violence on the applicant’s body.
8. Later that day, the applicant was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. Before both he denied the statement he had made to the police. He further alleged that he had been ill-treated and had signed the statement under pressure without reading it. The investigating judge remanded him in custody the same day. He was put in Sağmalcılar Prison.
9. On 1 May 2003, he was examined by a doctor at the Sağmalcılar Prison. The applicant’s medical report of that day noted a bruise of 5x10 cm on his right buttock and an old scar from an appendix operation.
10. On an unspecified date, the Fatih public prosecutor launched an investigation into the applicant’s allegation of ill-treatment. In due course, on 5 June 2003 he took a statement from the applicant, in which the latter repeated the above-mentioned account of the facts with regard to the alleged illtreatment.
11. On various dates between July and October 2003, the prosecutor took statements from the police officers who had allegedly participated in the questioning of the applicant. Two police officers stated that they had been present when a statement was taken from the applicant. However, they claimed that they had not treated him badly. They also submitted that the applicant had been medically examined upon arrest and before being taken into their custody. They maintained that the medical report prepared on that day showed that the injuries found on his body were between fifteen and twenty days old and had occurred because of a fall. They further stated that the report of 30 April 2003 given by the Forensic Medicine Institute after the end of the police custody noted no signs of ill-treatment.
12. On 13 October 2003 the Fatih Public Prosecutor decided not to prosecute the police officers in question, for a lack of sufficient evidence. In his decision, the public prosecutor relied on the accused police officers’ statements and the medical report dated 30 April 2003 indicating the absence of any sign of ill-treatment on the applicant’s body.
13. On 17 October 2003 the applicant’s lawyer challenged this decision before the Beyoğlu Assize Court. Referring to the applicant’s medical report dated 1 May 2003, she maintained that there was sufficient evidence for prosecution of the police officers.
14. On 5 April 2004, having regard to reasons given by the Public Prosecutor’s office and the content of the investigation file, the Beyoğlu Assize Court dismissed the applicant’s objection and upheld the decision.
15. A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV).


ITEMID: 001-85312
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF UÇMA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 4. The applicants were born in 1979 and 1982 respectively and live in Izmir.
5. On 28 April 2001 the applicants were taken into police custody.
6. On 30 April 2001 the applicants were brought before the investigating judge, who ordered their detention on remand.
7. On 3 May 2001 the Izmir State Security Court public prosecutor filed an indictment against the applicants He accused the first applicant of aiding and abetting an illegal organisation, and the second applicant of being a member of an illegal organisation.
8. On 13 September 2001 the Izmir State Security Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment and a fine.
9. On 6 December 2001 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the appeal. He advised that the appeal be rejected and that the first-instance judgment be upheld.
10. On 24 January 2002 the Court of Cassation quashed the first-instance court’s judgment on the ground that the applicants should have been sanctioned under Article 169 of the Criminal Code for aiding and abetting an illegal armed organisation.
11. On 16 May 2002 the Izmir State Security Court adhered to the reasoning of the Court of Cassation and convicted the applicants pursuant to Article 169 of the Criminal Code.
12. On 13 November 2002 the Principal Public Prosecutor submitted his written opinion on the merits of the case and stated that the Court of Cassation should uphold the judgment of the State Security Court.
13. On 28 November 2002, the Court of Cassation, in conformity with the opinion of the Principal Public Prosecutor, upheld the first instance judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-88520
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ZAKHAROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Yevgeniy Yukhymovych Zakharov, is a Ukrainian national who was born in 1952 and lives in Kharkiv. He is a co-chairman of the Kharkiv Human Rights Group (a human rights NGO registered in Kharkiv), and an Editor-in-Chief of a “Human Rights Bulletin” (human rights magazine).
On 31 August 2001 the applicant, in his capacity as the Editor-in-Chief of “Human Rights Bulletin”, the co-Chairman of the Kharkiv Human Rights Group and referring to Articles 34 and 35 of the Information Act, requested the Prosecutor General to provide this non-governmental organisation with statistical data as to a number of judges and/or law enforcement officers convicted of bribery, ill-treatment of private persons and defamation in 1998 – 2000 and the first semester of 2001. He further requested the Prosecutor General to confirm or to deny information disseminated in the 2000 US State Department Report on Ukraine. This report referred to statistical information disseminated by the Ministry of Justice of Ukraine in 1997.
On 13 September 2001 the First Deputy Prosecutor General replied that such data was not available at the General Prosecutor’s Office (hereafterGPO) and recommended the applicant to request it from the Ministry of Justice that was dealing with the judicial statistics.
On 4 December 2001 the applicant, again acting in his official capacity as the Editor-in-Chief and the co-chairman of the Human Rights Group, requested the Prosecutor General to ensure that the regional prosecutor’s offices provided responses to similar to the above requests that were sent to these offices. In particular, he mentioned that the Volyn, Zakarpattia, Mykolayiv, Poltava, Rivne and Chernigiv regional prosecutor’s offices had replied to his requests. However, others did not reply or refused to provide such information.
On 24 December 2001 the First Deputy Prosecutor General informed the applicant, as Editor-in-Chief of the “Human Rights Bulletin”, that such statistical data was given not only by the regional prosecutor’s offices, but by the Ministry of the Interior and the Ministry of Justice, which transfer it to the State Committee on Statistics. He recommended the applicant to request this information from that committee on the grounds specified in the Statistics Act (Articles 8 and 9), which presumed that the applicant’s organisation had to pay for this information, on the basis of the tariffs approved by the Cabinet of Ministers.
On 14 January 2002 the applicant, acting in his official capacity, requested the State Statistics Committee to provide him with information of interest to the “Human Rights Bulletin”. In reply, on 18 January 2002 the Deputy Head of the State Statistics Committee stated that such information, which was provided to the Committee by the law enforcement authorities, was not processed and regrouped in accordance with the previous employment of a convicted person at a law enforcement authority or prosecution service. As to the number of sentenced persons, the Deputy Head mentioned that this information was exclusively available from the Ministry of Justice.
On 24 January 2002 the applicant, acting as a representative of the “Human Rights Bulletin” and a co-chairman of the Kharkiv Human Rights Group, again requested the Prosecutor General to provide their mass media source with information he initially requested on 31 August 2001. He referred to Article 40 of the Constitution and Article 21 of the Information Act. He maintained that this information should be available from the General Prosecutor’s Office as its function, under Article 121 of the Constitution, was to supervise lawfulness of functioning of the inquiry and pre-trial investigation bodies.
On 8 February 2002 the First Deputy Prosecutor General refused to provide information requested by the applicant as it was not available from the prosecution bodies, but could be requested from the State Statistics Committee, under Articles 8 and 9 of the State Statistics Act. He also stated that therefore there were no grounds for instituting disciplinary proceedings against the officials of the regional prosecutor’s offices who refused to provide this information.
On 15 January and 9 February 2004, the applicant received information from four regional prosecutor’s offices, which were unable to satisfy the applicant’s information requests in full (because the information was unavailable, or not accessible as requested, or because the regional prosecutor’s offices were not responsible for such matters). Only the Rivne Regional Prosecutor’s Office previously informed the applicant, on 25 October 2001, about measures taken by them with regard to the investigation and prosecution of the crimes referred to in the request.
On 27 March 2002 the applicant, as a private person, represented by an advocate and acting under Articles 248-1 and 248-3 of the Code of Civil Procedure, lodged an administrative complaint with the Pechersky District Court of Kyiv seeking to declare the failure of the GPO to provide him with information on convictions (mentioned above) unlawful. He also sought court orders compelling the GPO to provide him with this information on his request. He maintained that his right to receive information from the GPO had been violated.
On 4 April 2002 the Pechersky Court refused to examine the applicant’s claim as it was not substantiated by relevant evidence (Article 137 of the Code of Civil Procedure). Furthermore, the applicant was asked to provide relevant legal substantiation for his administrative action. In particular, the court asked the applicant to state how his rights and freedoms had been infringed by the refusal of the GPO to reply to information request. The applicant was allowed time to rectify these shortcomings and re-lodged his administrative complaint with the assistance of his legal representative. However, on 19 April 2002 the Pechersky Court rejected his complaint as it found inter alia that the applicant failed to establish a link between infringement of his rights and the refusal of the prosecution authorities to provide information to the human rights magazine.
The applicant appealed to the Kyiv City Court of Appeal, which on 27 June 2002 rejected the appeal as unsubstantiated. In particular, the Court of Appeal held that the applicant should indicate specifically, in his complaints, which public official or administrative body had infringed his personal rights. He had also failed to mention which of his rights and freedoms were violated. The court also referred to the judicial practice recommendation contained in the Resolution no. 13 of the Plenary Supreme Court of 3 December 1997 (sees domestic law and practice below).
The applicant appealed in cassation, but on 11 October 2002 the Pechersky Court refused the applicant leave to appeal in cassation as the cassation appeal did not comply with the requirements envisaged by Articles 322 and 323 of the Code of Civil Procedure. The applicant was invited to rectify these shortcomings. He lodged his appeal in cassation anew and on 23 October 2002 the Pechersky Court refused leave to appeal in cassation as the applicant again failed to comply with the court’s previous ruling. The applicant lodged a cassation appeal for the third time and on 23 March 2003 the Pechersky Court rejected it for failure to comply with the requirements of the law.
The cassation appeal was re-lodged, examined and rejected by the Supreme Court on 12 March 2004. In particular, the Supreme Court found no infringements of the domestic substantive and procedural law, which would allow it to institute cassation proceedings in the case.
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...”
“...The jurisdiction of the courts extends to all legal relations that arise within the State. ...
Pursuant to Article 137 of the Code of Civil Procedure, any claim lodged with the court should be lodged in writing and should contain inter alia the exact name of the claimant and the respondent, merits of the claim, the circumstances underlying and proving the claim, evidence that supports the claim.
Article 139 of the Code provided that the judge should grant a time-limit to rectify any shortcomings in a claim.
In accordance with Article 248-1 of the Code citizens had a right to apply to a court with a complaint, if he/she considered that a State body, legal person or official had infringed by its decision, act or omission his/her rights or freedoms. Complaints could be made against executive bodies and their officials, who exercise organisational and managerial functions, administrative and commercial functions and functions specially accorded to them by law.
Under Article 248-3 of the Code the courts’ jurisdiction does not extend to the acts or omissions of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a non-judicial procedure for considering complaints has been established.
In accordance with Article 322 of the Code, a cassation appeal should contain inter alia the reference to the judicial decision or ruling that is being appealed against and the limits for an appeal in cassation, substantiation of the appeal in cassation, including the name of the law that was allegedly violated by an unlawful judgment or ruling and the references to incorrect application of that law or its infringement, the purpose of the appeal in cassation.
Under Article 323 of the Code, an appeal in cassation should be lodged with the first instance court, where the case-file shall be archived. Rules of Article 139 applied to appeals in cassation that failed to meet the requirements of Article 322 of this Code.
In accordance with Articles 34 and 35 of the Information Act, persons (this list includes private persons, legal entities and State bodies, as provided by the Article 9 of the Act) who were refused access to official documents should receive a written reply formulating reasons for such a refusal or explaining delaying in providing requested information. They should be allowed to appeal against this reply to a higher administrative authority or to a court. The court, to enable it to rule on the request, should be allowed to request additional documents from the parties.
Articles 48 and 49 of the Information Act establish a right to complain about unlawful acts or omissions of the State bodies to the higher administrative authorities and then to a court. This includes requests for compensation.
Articles 8 and 9 of the State Statistics Act provide that State bodies responsible for storage and updating of the statistical date should be allowed to provide paid services on the basis of the Regulation on the conduct statistical research and services provided by the bodies of State statistics approved by the Cabinet of Ministers.
In its decision of 23 May 2001 concerning the constitutionality of Article 248-3 §§ 3, 4 and 5 of the Code of Civil Procedure the Constitutional Court decided:
“To declare Article 248-3 § 4 of the Code of Civil Procedure as not in compliance with the Constitution of Ukraine (unconstitutional), concerning the lack of jurisdiction of the courts as regards – ... the actions or acts of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a non-judicial procedure for considering complaints has been established...”
In accordance with paragraph 4 of the Resolution, only private persons, who consider that their own rights and freedoms were infringed, should have the right to lodged complaints with the courts based on Article 55 of the Constitution and Article 248-1 of the Code of Civil Procedure.
Under paragraph 10 of the Resolution complaints against acts or omissions of the entities against which they are directed should be lodged with the courts at the place of these entities registration. They should correspond to the requirements of Articles 137 and 138 of the Code of Civil Procedure. Taking into account specific issues arising out of examination of these cases, provided by the Articles 248-1 – 248-4, the claimants should indicate which particular decisions, acts or omissions he/she wishes to complain about and which specific rights and freedoms had been violated. These complaints should be legally substantiated and proposals for restoring allegedly the infringed rights should be given. It should be also indicated whether a similar complaint had been lodged with the hierarchically superior administrative body or a public official and what kind of response had been received. The courts should apply rules of Article 139 of the Code of Civil Procedure to the complaints not corresponding to these criteria.


ITEMID: 001-75845
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KUKSA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1951 and lives in Yakutsk.
5. On 1 October 1999 the Yakutsk Town Court of Sakha (Yakutiya) Republic allowed the applicant’s claim against the Yakutsk Town Administration for provision of housing. The Town Court ordered that the administration:
“...provide Mr Kuksa and his family members with living premises that meet sanitary and technical requirements”.
6. The judgment of 1 October 1999 was amended on appeal by the Supreme Court of the Sakha (Yakutiya) Republic on 14 September 2000. The Supreme Court ordered that the administration:
“...provide Mr Kuksa and his family members with well-equipped living premises in a stone building constructed after 1994”.
7. On 22 December 2000 the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic, by way of supervisory-review proceedings and upon the applicant’s request, amended the judgment of 14 September 2000 and ordered that the administration:
“...provide Mr Kuksa with a three-room well-equipped flat in a new stone block of flats”.
8. The judgment entered into force on the same day.
9. In November 1999 the bailiffs’ service opened enforcement proceedings and in February 2000 charged 17 flats belonging to the Yakutsk Town Administration.
10. On 31 May 2000 the Yakutsk Town Court, upon the complaint from the Town Administration, quashed the bailiffs’ charging order.
11. After the decision of 31 May 2000 had been quashed on appeal and the case had been remitted for a fresh examination, the Yakutsk Town Court reconsidered the matter and discontinued the proceedings.
12. In December 2000 the bailiffs charged 7 flats of the Town Administration and deposited them with the administration’s creditors. The applicant was not among them. The bailiffs also fined the Town Administration for its failure to enforce the judgment in the applicant’s favour. Those decisions were quashed by the Yakutsk Town Court, upon the administration’s appeal.
13. On an unspecified date liquidation proceedings were instituted against the Yakutsk Town Administration and in February 2003 the bailiffs sent the writ of execution to the liquidation commission.
14. At the time the application was lodged with the Court, the judgment of 1 October 1999, as amended on 22 December 2000, remained unenforced because the Town Administration possessed no available housing or financial resources to purchase a flat.
15. On 14 November 2005 the Ministry of Building of the Sakha (Yakutiya) Republic offered the applicant to purchase a three-room flat at the Ministry’s expense. Four days later the applicant bought a three-room flat and submitted a copy of the contract to the Government of the Sakha (Yakutiya) Republic.
16. On 22 November 2005 the Ministry of Finance of the Sakha (Yakutiya) Republic paid the purchase price to the construction company and on 6 December 2005 the company provided the applicant with keys to the flat and he and his family members moved into it.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1