ITEMID: 001-5209
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: TROOST v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1955, and resides in Dinteloord. He is represented before the Court by Ms K.T.J.M. Pijls-olde Scheper, a lawyer practising in Roosendaal.
On 31 March 1992, the Regional Court (Arrondissementsrechtbank) of Breda pronounced the divorce between the applicant and his wife, Ms H. The care and custody (voogdij) of their two children was awarded to Ms H. The applicant was appointed as co-guardian (toeziend voogd). It was further decided that the applicant was to pay NLG. 500 per month for child support.
The determination of an access arrangement for the applicant formed the subject of separate subsequent proceedings. On 13 October 1994, in proceedings on appeal against an initial decision, the Court of Appeal (Gerechtshof) of ‘sHertogenbosch decided to adjourn its proceedings pending the submission of the results of an examination of the children and their parents to be carried out by the Pedagogical Psychological Advice Bureau (Pedagogisch Psychologisch Advies Bureau; “PAR”).
In its decision of 23 February 1995, the Court of Appeal noted Ms H.’s refusal to co-operate with the investigation by the PAR as well as her refusal to co-operate in exploring possibilities to start an access arrangement. It rejected as insufficiently weighty the arguments submitted by Ms H to the effect that the applicant should be denied access to his children. It held that, moreover, the mother’s uncooperative attitude as to the examination by the PAR had resulted in a situation that it could not be established whether the applicant’s access to both children would possibly be contrary to the children’s interests. The Court of Appeal determined an access arrangement according to which the applicant had access to the children one weekend per fortnight as well as half of the children’s holidays.
As Ms H. refused to comply with this access arrangement, the applicant took summary proceedings (kort geding) against her before the Regional Court of Breda seeking a judicial compliance order with a penalty of NLG. 500 for each time Ms H. would fail to comply.
In its judgment of 16 June 1995, following proceedings in which Ms H. had been declared in default of appearance, the Regional Court ordered Ms H. to comply with the access arrangement determined by the Court of Appeal on 23 February 1995. It further determined a penalty of NLG. 150 for each weekend or part thereof that Ms H. would not comply. This penalty was limited to a maximum of NLG. 6,000. The Regional Court finally declared its judgment to be immediately enforceable (bij voorraad uitvoerbaar).
The applicant filed an appeal with the Court of Appeal of ‘s-Hertogenbosch in respect of the determination of the penalty and the maximum limitation thereof. He requested the Court of Appeal to fix the penalty at NLG. 500 for each time of non-compliance and to allow him to off set the penalties incurred by Ms H. with the child support that he had to pay.
In its judgment of 2 November 1995, the Court of Appeal accepted the applicant’s argument that, given the fact that Ms H. had as yet failed to comply with the judgment of 16 June 1995, the penalty determined by the Regional Court was an insufficient means of pressure. Consequently, it decided to fix the penalty for non-compliance at NLG. 500 for each weekend or part thereof.
As to the maximum limitation of the penalty, the Court of Appeal considered that, as Ms H. had failed to appear before both the Regional Court and the Court of Appeal and thus did not find it even necessary to submit facts or circumstances in justification of her position and, therefore, rendered a judicial examination thereof impossible, Ms H.’s behaviour should not be sanctioned. On this basis it decided not to determine a maximum limit for the penalty.
The Court of Appeal did, however, reject the applicant’s request to be allowed to off set the penalty for non-compliance with the child support he had to pay. It held that Ms H., in her capacity as the children’s guardian, received the child support which by its very nature was fully intended for the children. It noted that the applicant had never disputed the children’s need of this support. The penalties, however, were due by Ms H. in her personal capacity. The applicant and Ms H. could, therefore, not be regarded as reciprocal debtors within the meaning of Article 6:127 of the Civil Code (Burgerlijk Wetboek). It further held that, also on the basis of Article 6:135 of the Civil Code - which deals with two situations in which a debtor is not competent to off set - in conjunction with Article 475c under (e) of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), according to which payments for maintenance are exempted from seizure, compensation was not possible in this case.
Consequently, the Court of Appeal quashed the judgment of 16 June 1995 in respect of the determination of the penalty and the maximum limitation thereof, fixed the penalty to NLG. 500 for each weekend or part thereof of non-compliance without setting a maximum limit and declared its judgment to be immediately enforceable.
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), complaining that the Court of Appeal had incorrectly held that to off set the penalties with the child support was not possible. He submitted that Ms H., in refusing to comply with the access arrangement, did not only act in her personal capacity, but also in her capacity as the children’s guardian.
In its judgment of 24 January 1997, the Supreme Court rejected the appeal in cassation. It held that, by judgment, Ms H. had been ordered, in her personal capacity, to comply with the access arrangement and that therefore, in case of non-compliance, she forfeited, also in her personal capacity, the penalty determined.


ITEMID: 001-106291
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LADYGIN v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicant, Mr Oleg Vyacheslavovich Ladygin, is a Russian national who was born in 1964 and lives in Moscow.
On 26 April 2004 the applicant arrived at the Savelovskiy District Court of Moscow to meet with the president of that court. It appears that the applicant attempted to enter the president’s waiting room ahead of the queue of visitors causing their dissatisfaction. The president’s assistant called an usher who invited the applicant to leave the waiting room and to wait in the corridor. As the applicant refused to comply, the usher forced him out and drew up a report stating that the applicant had committed an offence punishable under Article 17.3 § 2 of the Russian Code of Administrative Offences, that is, disobeyed the usher’s order aimed at maintaining public order on the court’s premises.
According to the applicant, he was unable to meet the president of the court on that date as a result of those events.
On 28 April 2004 the applicant lodged a claim against the bailiffs’ service with the Savelovskiy District Court. It appears that he sought compensation for non-pecuniary damage.
In a decision of 31 May 2004 the Savelovskiy District Court declined to examine the applicant’s claim, stating that it fell outside its territorial jurisdiction and that the applicant should apply to the Golovinskiy District Court of Moscow. The Golovinskiy District Court of Moscow also declined to examine the applicant’s claim in a decision of 1 July 2004, stating that it fell within the jurisdiction of the Savelovskiy District Court.
In a letter of 1 June 2004 the prosecutor’s office of the Northern Administrative District of Moscow informed the applicant that they had examined his complaint and established that the usher’s actions had been lawful and that he had acted within his competence.
On 18 September 2004 the applicant again filed a claim with the Savelovskiy District Court. It appears that he complained that he had endured emotional and physical suffering as a result of the usher’s actions on 26 April 2004 and requested that the court hold the usher liable under administrative and criminal law and to award the applicant compensation for non-pecuniary damage.
On 24 March 2005 the Savelovskiy District Court declined to examine the applicant’s claim, stating that it could not be examined in civil proceedings, as the applicant had asked the court to hold the usher liable for abuse of power, that is, for a criminal offence. The court noted that the applicant should thus lodge his request with a prosecutor’s office.
On 16 May 2005 the Moscow City Court upheld the above decision on appeal.
Article 46 of the Russian Constitution of 1993 provides that decisions and actions or lack of action of state bodies, bodies of local self-government, public associations and officials may be appealed against in court.
Article 53 of the Constitution provides for the right to be compensated by the state for damage caused as a result of the unlawful actions (or omission) of state bodies and their officials.
Article 151 of the Russian Civil Code provides that compensation in respect of non-pecuniary damage is payable only in the event that physical or psychological damage has been inflicted on a person in violation of his rights.


ITEMID: 001-91022
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LENSKAYA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1;No violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1955 and lives in the town of Tomsk. She works as a deputy head of the Tomsk Regional Hospital.
7. On 25 November 2000 the applicant asked the Kirovskiy District police department to institute criminal proceedings against her former husband, Mr Ch., complaining that he had assaulted her. She provided a police investigator with a certificate from the Tomsk Town Hospital no. 1. According to that certificate, on 25 November 2000 the applicant presented herself at the hospital, where she was examined and diagnosed with injuries to the soft tissues of the head. The certificate also stated that the applicant did not have concussion.
8. Two days later a forensic medical expert examined the applicant and issued a report which, in the relevant part, read as follows:
“1. On the day of the examination, on 27 November 2000, [the applicant] has: two bruises on the face, [and] an injury to the soft tissues on the left side of the parietal tuber. As it follows from medical documents, from 29 November to 16 December 2000 [the applicant] underwent treatment in the neurological department of the Tomsk Regional Hospital; following her dismissal from the hospital she underwent outpatient treatment, consulting a therapist until 23 December 2000 in respect of her diagnosis: “concussion”.
2. The concussion, bruises on the face, the injury to the soft tissues of the head sustained by [the applicant] were caused by blunt firm objects and are considered to have caused “minor health damage” requiring treatment for no more than twenty-one days....
It cannot be excluded that those injuries could have been caused in the period indicated by [the applicant]”.
9. On 15 December 2000 the Kirovskiy District Prosecutor instituted criminal proceedings, finding as follows:
“On 25 November 2000 [the applicant] applied to the Kirovskiy District police department seeking institution of criminal proceedings against her husband, Mr Ch., on the ground that he had injured her on 24 November 2000, at 8.30 p.m., in their place of residence...
I see particular social importance in the fact that the injuries were caused by a man to a woman who cannot offer adequate resistance”.
10. On an unspecified date Mr Ch. was committed to stand trial before the Kirovskiy District Court of Tomsk.
11. The District Court held several hearings at which it heard the applicant, Mr Ch. and a number of witnesses and examined documentary evidence, including two reports by forensic medical experts. The applicant insisted on her description of events as given to the police and prosecution authorities. Mr Ch. disputed the accusations, denying that he had even visited the applicant on the day of the alleged assault. He claimed that he had visited his female friend, Ms P., on that day and spent the night at her house. Ms P. confirmed Mr Ch.’s statement in open court. The defendant’s alibi was also corroborated by his son, who claimed that he had spent the whole day with his father before the latter had gone to see Ms P. One witness testified to having heard the applicant and Mr Ch. arguing in the applicant’s flat on the day of the alleged assault. Two witnesses stated that they had seen the applicant in the evening of the day of the alleged assault or on the following day. The applicant had complained to them that Mr Ch. had beaten her up. One witness, the applicant’s neighbour, stated that the applicant had unsuccessfully asked two persons to lie in court about Mr Ch. assaulting her. The District Court also heard a doctor who had examined the applicant immediately after the alleged assault. The doctor insisted that the applicant had not had concussion.
12. On 15 July 2002 the Kirovskiy District Court found Mr Ch. guilty of assault and sentenced him to six months of correctional labour. The sentence was suspended on probation. The District Court also partly accepted the applicant’s tort action against Mr Ch. and awarded her 4,782.68 Russian roubles (RUB) in compensation for pecuniary damage and RUB 10,000 in compensation for non-pecuniary damage.
13. Mr Ch. and his lawyer appealed, arguing that there was no evidence that the defendant had beaten the applicant. He had an alibi which had been confirmed by two witnesses. However, no witnesses testified to seeing the defendant hitting the applicant. The witnesses also did not state that they had seen the defendant in the vicinity of the applicant’s flat at the alleged time of the assault. Furthermore, the lawyer argued that the presiding judge had unlawfully dismissed his request to step down from the case as the applicant’s lawyer had supervised the presiding judge’s Ph.D. work.
14. On 12 September 2002 the Tomsk Regional Court reduced the amount of compensation for non-pecuniary damage to RUB 3,000 and upheld the remainder of the judgment, endorsing reasons given by the District Court.
15. On 30 September 2002 Mr Ch. and his lawyer applied to the President of the Tomsk Regional Court, seeking institution of supervisory review proceedings. They once again insisted on the partiality of the presiding judge and the unavailability of evidence proving Mr Ch.’s guilt.
16. In October 2002 the President of the Tomsk Regional Court lodged an application for a supervisory review of the judgment of 15 July 2002, as amended on 12 September 2002.
17. On 1 November 2002 the Registry of the Presidium of the Tomsk Regional Court notified the applicant by letter that a hearing was scheduled for 13 November 2002 at 10.00 a.m. The applicant was also invited to study the case file materials and to submit her observations in response to Mr Ch.’s and his lawyer’s applications for a supervisory review. On 10 November 2002 the applicant lodged her written arguments with the Presidium.
18. On 11 December 2002 the Presidium of the Tomsk Regional Court, relying on Article 378 of the RSFSR Code of Criminal Procedure (the CCP), quashed the judgments of 15 July and 12 September 2002 and acquitted Mr Ch. The compensation claims were accordingly dismissed. The Presidium held, inter alia, that the district and regional courts had not established what constituted the criminal conduct under the particular head of the criminal charge, whether it had in fact taken place and whether it had been committed by the former husband. The District and Regional courts, without proper assessment of evidence, presumed that the applicant’s injuries had been caused by her former husband. Thus, Mr Ch.’s guilt was not proven and the principle of presumption of innocence was violated.
19. The applicant and her representative attended the supervisory review hearing and submitted their arguments. On 10 January 2003 the applicant was served with a copy of the judgment of 11 December 2002.
20. Section VI, Chapter 30, of the RSFSR Code of Criminal Procedure (in force at the material time) allowed certain officials to challenge a judgment which had entered into force and have the case reviewed on points of law and procedure. The supervisory review procedure was to be distinguished from proceedings which review a case because of newly discovered facts.
21. Pursuant to Article 356 of the CCP, a judgment entered into force and was subject to execution as of the day when the appeal (cassation) instance pronounced its judgment.
22. Article 371 of the CCP provided that the power to lodge an application for supervisory review could be exercised by the Prosecutor General, the President and the Vice-President of the Supreme Court of the Russian Federation, in respect of any judgment other than those of the Presidium of the Supreme Court, and by the president of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review.
23. Article 373 of the CCP laid down a limitation period of one year during which an application for supervisory review of an acquittal judgment could be brought. This period also applied to an application for supervisory review of a conviction, if such application sought a harsher punishment to be imposed. The period ran from the date when the judgment entered into force. In all other cases, there was no time-limit prescribed for lodging such applications.
24. According to Articles 374, 378 and 380 of the CCP, the application for supervisory review was to be considered by the judicial board of the competent court which examined the case on the merits, not being bound by the scope and grounds of the application. The board could either dismiss the application and thus uphold the earlier judgment, or grant the application. In the latter case it had to decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to modify and uphold any of the earlier judgments.
25. According to Article 377 of the CCP, the relevant prosecutor was to participate in the supervisory review hearing. If necessary, the convicted person and his counsel could be summoned to the hearing to make submissions. If summoned to the hearing, the convicted person, the victim and their counsel were to have the opportunity to familiarise themselves with the application for supervisory review and written submissions in reply. At the hearing, the case was to be presented by a judge rapporteur, following which the parties, if present, were to be entitled to make oral submissions.
26. Articles 342 and 379 of the CCP identify grounds for quashing or amending earlier judgments. In particular, such judgments were to be quashed or modified if a court performing the supervisory review had found that the judgments were unlawful or groundless; or if the pre-trial and judicial investigation had been one-sided and inadequate; or if the lower-instance courts had come to conclusions which did not correspond to the facts of the case; or if the courts had violated criminal procedural law or had incorrectly applied criminal law; or if the sentence did not correspond to the gravity of the crime and the character of the convicted person.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57714
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF WIESINGER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 8. Mr Konrad Wiesinger and his wife Klara are Austrian farmers residing at Hartkirchen, Upper Austria. They complain of consolidation measures (Zusammenlegungsverfahren) taken in respect of their land since July 1975.
9. On 22 July 1975 the Linz District Agricultural Authority (Agrarbezirksbehörde, "the District Authority") opened the Hacking land consolidation proceedings, pursuant to section 29 of the Upper Austrian Agricultural Land Planning Act 1972 (Flurverfassungs-Landesgesetz, "the 1972 Act"). The measures concerned at least 67 landownersand covered approximately 172 hectares, including the applicants’ property at Hartkirchen.
On 15 July 1976 Mr and Mrs Wiesinger made a "declaration of wishes" (Wunschaufnahme), expressing their wish to receive parcels situated near their farmhouse. On 13 August 1976 the District Authority adopted the land valuation schedule, against which the Wiesingers did not appeal.
10. On 13 October 1978 the District Authority ordered the provisional transfer of compensatory plots (Grundabfindungen) on the basis of a draft consolidation scheme (Neueinteilungsplan), pursuant to section 22 of the 1972 Act (see paragraph 36 below). The applicants had agreed to this plan, which provided them with a parcel of 23,219 square metres near their farm, and did not contest the transfer decision. While they lost the ownership of land formerly belonging to them (including the five plots mentioned in paragraph 12 below), which passed to the association of landowners (see paragraph 33 below), they acquired the provisional ownership of certain plots subject to a condition subsequent, namely that they would be dispossessed of them under the final consolidation scheme, if it did not confirm the allocation thereof to the applicants (section 22 of the 1972 Act).
11. On 1 September 1978 the municipal council of Hartkirchen had adopted an area zoning plan (Flächenwidmungsplan; see paragraphs 42-43 below), which was approved on 10 October by the government of the Land. The Wiesingers’ property, which was covered by the consolidation scheme, retained its designation as agricultural land, although certain adjoining plots had been redesignated as building land in 1976 and 1978.
12. At the request of the new (provisional) owners, the municipal council amended the area zoning plan on 16 November 1979. It classified as building land five plots covering a surface of 25,206 square metres which had previously belonged to the applicants. On 16 April 1980 the Land government approved the decision, which became final on 6 May.
Subsequently the five plots were divided into parcels and sold to several persons who were granted building permits in respect of them.
13. On 10 August 1982 Mr and Mrs Wiesinger asked the District Authority to return to them the five plots by withdrawing them from the consolidation scheme. In their view the plots in question were now to be regarded as land of special value which under the relevant legislation was in principle to be left to the previous owners. In the alternative, they asked to be allocated building land or to be accorded financial compensation (Geldwertentschädigung). They also sought compensation (Schadensersatz) on account of loss of interest (Zinsverlust) arising from the fact that they had not themselves been able to sell the five plots after the amendment of the area zoning plan; they estimated this amount at 1,600,000 schillings on the basis of a price of 400 schillings per square metre at an interest rate of 10%.
14. The District Authority replied by a letter of 17 January 1983. It referred to the Upper Austrian Agricultural Land Planning Act 1979 ("the 1979 Act"), which had replaced the 1972 Act, and drew their attention to the fact that claims for compensation had to be submitted within six months of the date on which the consolidation scheme became final (section 20(6); see paragraph 37 below). It therefore requested the applicants to await the publication of the scheme which was scheduled for July.
15. The Wiesingers took the view that the District Authority had failed to resolve within the statutory time-limit of six months the questions which they had raised with it and, on 23 August 1983, filed with the Provincial Land Reform Board (Landesagrarsenat, "the Provincial Board") an application for a ruling on the matter (section 73 of the General Administrative Procedure Act, Allgemeines Verwaltungsverfahrensgesetz; see paragraph 41 below).
The Provincial Board gave its decision on 17 November. It dismissed the request for the five plots to be withdrawn from the consolidation scheme. It considered that, in order to attain its objective, the scheme had to include the land in question and the fact that the plots were now building land made no difference in this respect. It found that the District Authority’s refusal to rule on the applicants’ other claims was justified since the merits of such claims could not be determined until the consolidation scheme had become final. The Provincial Board ordered the District Authority not to approve or authorise any further division into parcels of the land in question or to allow any further conversion into building land or any further issue of building permits.
16. The Wiesingers appealed to the Supreme Land Reform Board (Oberster Agrarsenat, "the Supreme Board"), which declared their appeal inadmissible on 1 February 1984. Its decision was upheld on 27 June by the Constitutional Court (Verfassungsgerichtshof) and on 25 September 1984 by the Administrative Court (Verwaltungsgerichtshof).
17. Previously, on 10 January 1984, the applicants had contested the Provincial Board’s decision of 17 November 1983 (see paragraph 15 above) directly in the Administrative Court, which gave its decision on 20 March 1984. It upheld the impugned decision in so far as the Provincial Board had refused to return the five plots to the applicants, but at the same time declared the appeal well-founded on the other points. As the District Authority had not ruled within the statutory period of six months on the alternative claims filed by the applicants, the Provincial Board ought to have decided them itself.
18. In new proceedings before it, the Provincial Board gave its decision on 18 October 1984. In its view it was not possible under the 1979 Act to afford compensation for the alleged damage. The Act provided that the owners of plots of special value covered by a consolidation scheme should in principle be compensated by the allocation of land of the same type. As regards the building land claimed by the Wiesingers, the Board noted that the provisional transfer of the plots precluded altering their allocation for the time being. However, the provisional transfer did not prejudge the consolidation scheme which would determine definitively the question of land of special value. Furthermore, the building plots were referred to only in the area zoning plan for Hartkirchen and there was therefore an inseparable link between that plan and the question of statutory compensation for land of special value. Accordingly, the area zoning, which was the responsibility of the municipal authorities and not the agricultural authorities, was a precondition. The municipal council of Hartkirchen had announced that it proposed to convert into building land certain of the compensatory plots allocated to the applicants, but their area and location had not yet been fixed. The Provincial Board concluded that it could not rule on the merits of the question until an appeal had been filed concerning the consolidation scheme, once the latter had been adopted and published.
19. Mr and Mrs Wiesinger then appealed to the Constitutional Court, which on 24 June 1985 refused to entertain their appeal as the case did not raise any specific questions of constitutional law. It remitted the case to the Administrative Court, in accordance with the applicants’ alternative plea.
20. The Administrative Court dismissed the appeal on 19 November 1985. It noted in the first place that the applicants had themselves obtained the plots which they had wished and whose designation as agricultural land had not been changed. They had thus suffered no temporary disadvantage for which they could claim financial compensation. It was true that the area zoning plan had reclassified a part of their former land after its provisional transfer. However, the consolidation scheme, which was to fix the statutory compensation, would have to take into account any changes in the value of the land occurring in the course of the proceedings, for example following a new area zoning plan as in this instance. Consequently, the contested decision was not unlawful.
21. Relying on section 7a(4) of the Federal Agricultural Proceedings Act 1950 (Agrarverfahrensgesetz, "the 1950 Federal Act"), according to which the consolidation scheme is to be published not later than three years after the final decision on the provisional transfer of plots, the Wiesingers asked the Provincial Board on 17 January 1984 to take jurisdiction over the case in accordance with section 73 of the General Administrative Procedure Act (see paragraphs 37 and 41 below).
On 7 June the Board refused. It considered that it was empowered to adopt the consolidation scheme only if the failure to comply with the statutory time-limit of three years was exclusively the fault of the District Authority. This was not the case.
Since the provisional transfer the District Authority had made every effort to draw up the consolidation scheme. Its work had been delayed on account, in particular, of the proposed route for a new major road and its link roads across the area in question, which made it necessary to revise the position of 43 owners. Furthermore, a substantial part of the file had had to remain for several months with the Provincial Board in connection with appeal proceedings instituted by a landowner; likewise, the Wiesingers’ application of 23 August 1983 had required the file to be sent to the Provincial Board, then to the Supreme Board and to the Administrative Court, and had therefore prevented a decision from being taken during this period. The District Authority could have adopted and published the consolidation scheme in 1983 if further consideration, inquiries and interviews had not been necessary following the alteration to the Hartkirchen area zoning plan. With a view to expediting the final adoption of the area zoning plan, it had held discussions with the municipal council as early as 8 September 1983, and then with the authorities with competence in the field of land development on 25 January, 22 February, 5 March and 10 April 1984.
As the area zoning plan had still not been settled, it had not been possible to adopt the consolidation scheme, because the District Authority could not yet determine whether the allocation of land provided the applicants with sufficient compensation, thereby satisfying the statutory criteria. It was, moreover, contrary to the principles of efficient administration to finalise the consolidation scheme before the adoption of the area zoning plan. The conduct of the District Authority had thus been justified. Under section 38 of the General Administrative Procedure Act, it was possible to stay (aussetzen) proceedings pending a definitive decision on a preliminary question which was the subject of other proceedings. In this case the area zoning constituted a preliminary question for the consolidation proceedings.
22. The applicants appealed to the Supreme Board, which dismissed their appeal on 6 March 1985.
It began by upholding the Provincial Board’s decision that the latter had competence to adopt a consolidation scheme solely where the failure to comply with the statutory time-limit of three years was exclusively the fault of the District Authority. According to the established case-law of the Administrative Court, there was no such fault where the delay resulted from the conduct of one of the parties or from an insurmountable obstacle. In the present case it had not been suggested that the applicants’ conduct had been in any way reprehensible, nor could the failure to comply with the statutory three-year time-limit be blamed on the District Authority. Throughout the consolidation proceedings, it had to take account of the area zoning plans and any amendments thereto. It was therefore impossible, and indeed contrary to the principles of efficient administration, to adopt a consolidation scheme where no final land-development plan or area zoning plan existed, and where negotiations for the adoption of such plan were in progress. Even before the Wiesingers’ appeal had been filed, the competent authority had conducted further inspections of the land and had had contacts with the Hartkirchen municipal council, which was considering the possibility of converting some of the plots allocated to them into building land. In those circumstances, there was no justification for adopting a consolidation scheme which would probably have been defective as from its adoption, if the municipal authority subsequently fixed an amended area zoning plan. The finalisation of such a plan in fact constituted a precondition for the adoption of the consolidation scheme. For all these reasons, the District Authority had been right to stay the proceedings pending the final decision of the municipal council and was not responsible for the delay in the consolidation proceedings.
23. Mr and Mrs Wiesinger contested this decision before the Constitutional Court, which, on 23 November 1985, refused to entertain their appeal on the same grounds as those set out in its judgment of 24 June (see paragraph 19 above). It remitted the case to the Administrative Court in accordance with the applicants’ alternative plea.
The Administrative Court dismissed the applicants’ appeal on 8 April 1986. It found, inter alia, that the Provincial Board’s refusal to assume jurisdiction had been justified, since the failure to comply with the statutory time-limit was not exclusively attributable to the District Authority. Furthermore, the applicants’ claims concerning the nature and extent of the compensatory plots related to the question of the statutory compensation, which would be dealt with by the consolidation scheme.
24. On 16 July 1986 the District Authority published the consolidation scheme (see paragraph 37 below); it returned to the Wiesingers 9,680 square metres of their former land and allocated to them plots covering an area of 19,909 square metres classified as a zone capable of being redesignated as building land (Bauerwartungsland). It pointed out that the applicants had already received monetary compensation, in 1974, for certain plots that they had had to give up in connection with the construction of the new major road. It dismissed their claim for compensation for the increased value of their former land following its reclassification, because that had been taken into consideration when the compensatory plots were allocated definitively. Finally, the District Authority found that the applicants had not suffered any temporary damage and were not entitled to any financial reparation.
25. The applicants contested the scheme before the Provincial Board. They argued that the land which they had ultimately received was of a lower value than their former land; they had, they claimed, sustained a loss of more than 4,000,000 schillings.
26. The different agricultural authorities attempted first to secure a friendly settlement of the dispute: the District Authority, between 20 October 1986 and 8 July 1987, during which period twelve meetings were held, and the Provincial Board, between 28 September 1987 and 28 August 1989, at eignteen meetings with the parties concerned, the local authorities, the highways department and the land designation supervisory authority. In the course of these meetings the Provincial Board invited the municipal authorities in question to redesignate a particular plot which they were proposing to allocate to the applicants as building land.
However, the authorities’ efforts were in vain.
27. After the attempts to reach a friendly settlement had failed, the Provincial Board held a hearing on 28 September 1989.
On 24 January 1990 it allowed in part the Wiesingers’ appeal. It awarded to them a part of their former land, now reclassified, and other plots converted or to be converted into industrial sites. On the other hand, it dismissed once again their claim for financial compensation.
28. The applicants appealed against this decision to the Supreme Board, which dismissed their appeal on 5 December 1990.
After having examined in detail the Wiesingers’ objections, the Supreme Board concluded that they had received compensatory plots of a value equivalent to that of their former land, as was required under the 1979 Act. Accordingly, the impugned decision did not infringe their statutory rights. Furthermore, according to the Supreme Board, if the new situation of agriculture in the area was compared to the old one, it could be said that the consolidation scheme had been a success and had achieved its goals.
In the meantime the applicants had appealed to the Constitutional Court, which has not yet ruled.
29. Prior to the adoption of the consolidation scheme, the Wiesingers applied to the civil courts for an order directing the cessation of the construction work which had begun on their former land.
On 16 October 1985 the Wels Regional Court (Kreisgericht) found that it lacked jurisdiction. Its decision was overturned on 21 February 1986 by the Linz Court of Appeal (Oberlandesgericht), but on 19 June 1986 the Supreme Court (Oberster Gerichtshof) confirmed that the civil courts were not competent to decide the matter. The Supreme Court declined, on account of the exclusive powers vested in the District Authority under Austrian law (section 102(2) of the 1979 Act; see paragraph 33 below), to follow its previous case-law, although it concerned similar facts.
30. The applicants also requested authorisation to construct two animal feed silos on their compensatory plots near their farm. However, the authorities refused on the ground that they were only provisionally owners of the land in question.
31. The basic rules applying to the consolidation of agricultural land are embodied in the Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. The Länder have regulated the matters for which they are made responsible under the Federal Legislation in provincial agricultural land planning Acts (Flurverfassungs-Landesgesetze).
In Upper Austria, consolidation is governed by the Agricultural Land Planning Act 1979 ("the 1979 Act"). This replaced an Act of 1972, which had itself replaced an Act of 1911 that had been brought into force again in 1954. The proceedings in the present case were instituted under the 1972 Act, on the basis of which the provisional transfer was ordered. However, the subsequent proceedings were governed by the 1979 Act.
32. The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area (section 1(1) of the 1979 Act). It comprises communal measures and facilities and redistribution of land. The operation takes place in the following stages:
- the initial proceedings;
- ascertainment of the occupiers of the land in question and assessment of its value;
- planning of communal measures and facilities;
- provisional transfer of land, where appropriate;
- adoption of the consolidation plan.
None of these stages may begin until the previous stage has been terminated with a final decision.
33. The initial proceedings, which are instituted of the authorities’ own motion, serve to determine the consolidation area, which, in addition to farmland and forest, may include land voluntarily offered for consolidation and land required for communal facilities (sections 2 and 3). Land which is not needed for the purposes of consolidation may subsequently be withdrawn from the area (section 4(2)). The owners form an association (Zusammenlegungsgemeinschaft), which is a corporate body governed by public law.
The institution of proceedings means that land use is restricted until the proceedings are concluded; any change in use must be approved by the appropriate agricultural authority. This authority has exclusive jurisdiction, inter alia, over disputes concerning ownership and tenure of land in the consolidation area (section 102).
34. Once the decision to open proceedings has become final, the agricultural authority ascertains who are the occupiers of the land and assesses its value (sections 11 and 12). Its decision (Besitzstandsausweis und Bewertungsplan) determines the value of the land in accordance with precise statutory criteria (section 13). Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others. Once the agricultural authority’s decision has become final, however, it is binding on all of them.
35. Communal measures (e.g. soil improvement, alterations to terrain or landscape) and communal facilities (e.g. private roads, bridges, ditches, drainage and irrigation) are ordered, where they are needed, in a specific decision by the relevant authority (Plan der gemeinsamen Massnahmen und Anlagen), which must also settle the question of costs, these usually being shared by the landowners.
36. Under section 22, in both the 1972 and the 1979 Act, land may be provisionally transferred before the adoption of the consolidation scheme, even if some owners object.
Decisions by the competent authorities ordering provisional transfers are not appealable; but section 7 of the Federal Agricultural Authorities Act 1950 (Agrarbehördengesetz, as amended in 1974, "the 1950/1974 Federal Act") provides that the final decision shall lie with the Provincial Board, except in cases where an appeal lies to the Supreme Board (see paragraph 39 below).
The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period. The land transferred becomes the property of the transferees subject to a condition subsequent: ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation plan (Eigentum unter auflösender Bedingung, section 22(2)). This provisional, conditional ownership is, as a rule, not entered in the land register, since it is subject to a resolutive condition and it is possible that the parties concerned may be allotted other parcels once the proceedings are completed. The District Authority has to authorise any entry in the land register (sections 94 et seq.).
37. At the end of the proceedings, the agricultural authority adopts the consolidation scheme (Zusammenlegungsplan, section 21). Since 1977 this has to be published within three years of the final decision provisionally to transfer parcels of land (section 7a(4) of the 1950 Federal Act), failing which the person concerned may request the higher authority to assume jurisdiction. The adoption of the plan is an administrative act which is supported by maps and other technical data, and whose main function is to determine the compensation due to the landowners who are parties to the proceedings. The 1979 Act includes the following regulations on this matter:
- when compensatory parcels are being determined, regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme;
- any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or, if that is not possible, to be reallocated his previous parcels, including building land (section 19);
- changes in the value of land which come about in the course of the proceedings, including those occurring after the provisional transfer, must be taken into account in the final allocation under the consolidation scheme (section 14(1));
- claims for compensation have to be submitted within six months from the date on which the consolidation scheme becomes final (section 20(6)).
38. The provincial legislation does not provide for any financial compensation for damage suffered, before a final consolidation plan comes into force, by landowners who successfully challenge the lawfulness of compensation received in the form of land.
39. The first-instance authority in Upper Austria is the District Agricultural Authority, which is a purely administrative body. The higher authorities are the Provincial Board, established at the Office of the Provincial Government (Amt der Landesregierung), and the Supreme Board, set up within the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft). These boards include judges and constitute a kind of "specialised administrative tribunal".
40. Decisions (Bescheide) of the District Authority can be challenged by way of appeal (Berufung) to the Provincial Board, whose decision is final except where it varies the decision in question and where the dispute concerns one of the issues listed in section 7(2) of the 1950/1974 Federal Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board.
The executive can neither set aside nor vary the decisions of these three bodies, but they can be challenged in the Administrative Court (section 8 of of the 1950/1974 Federal Act and Article 12 para. 2 of the Federal Constitution).
41. Procedure before the land reform boards is governed by the 1950 Federal Act, section 1 of which stipulates that the General Administrative Procedure Act - except for one section of no relevance in the instant case - shall apply, subject to the variations and additional provisions made in the 1950 Federal Act.
The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act). By section 9(1) and (2) of the 1950 Federal Act, the boards take their decisions after a private hearing.
Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73(1)). If the board’s decision (Erkenntnis) is not notified to the parties concerned within that time, they may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73(2)). If the latter authority fails to give a decision within the statutory time-limit, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act).
42. In the present case, area zoning planning is governed by the Upper Austrian Land Planning Act (Raumordnungsgesetz).
In Austrian law area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), even if they only concern one individual’s property. Accordingly, the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them.
However, the competent local authorities (Gemeinden) must take into consideration planning proceedings of neighbouring local authorities and other public law corporations, as well as regionally significant measures of other planning organisations (section 15(10)), including the planning projects of the agricultural authorities.
43. The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal Constitution. However, case-law has established that area zoning plans cannot be directly challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings.
This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. Ultimately this question can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution or by a request made by the Administrative Court under Article 89 para. 2 and Article 139 of the Federal Constitution.
44. The decisions of land reform boards can be challenged in the Constitutional Court. The latter will determine whether there has been any infringement of the applicant’s rights under the Constitution and whether the boards have applied a decree (Verordnung) that is unauthorised by statute law, an unconstitutional statute or an international treaty that is unlawful (rechtswidrig) under Austrian law (Article 144 of the Federal Constitution).
45. As an exception to the general rule laid down in Article 133 para. 4 of the Federal Constitution, section 8 of the 1950/1974 Federal Act provides for an appeal to the Administrative Court against the decisions of land reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court. The latter will, if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests, refer the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution).
Under Article 130 of the Federal Constitution, the Administrative Court determines applications alleging the unlawfulness of an administrative act (Bescheid) or a breach by a competent authority of its duty to take a decision. It also hears appeals against decisions of boards whose members include judges - such as the land reform boards (see paragraph 39 above) - where such jurisdiction is conferred on it by statute.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69216
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF YASİN ATEŞ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Feyyaz Gölcüklü
TEXT: 10. The applicant, a Turkish citizen of Kurdish origin, was born in 1931. At the time of the events giving rise to the present application, he lived in the town of Kulp, located within the administrative jurisdiction of the province of Diyarbakır, in south-east Turkey.
11. The facts of the case, particularly concerning events which took place on 13 June 1995, are disputed by the parties.
12. The facts as presented by the applicant are set out in Section B below (see paragraphs 13-33). The Government's submissions concerning the events are summarised in Section C below (see paragraphs 34-41). The documentary evidence submitted by the parties is summarised in Section D below (see paragraphs 42-74).
13. In 1995 the applicant's son, Kadri Ateş, lived in Diyarbakır where he worked for Zahit Trade, a business which sold foodstuffs wholesale to small businesses and security and military establishments in the region.
14. At about 6 a.m. on 13 June 1995 Kadri Ateş, together with his colleague Burhan Afşin, left Diyarbakır to go to the town of Kulp to sell foodstuffs. They used a small lorry owned by Zahit Trade. They were accompanied by Kadri's father-in-law Vehbi Demir, his paternal uncle Kemal Ateş and a man called Memduh Çetin. At Seyrantepe, Kemal Ateş disembarked from the vehicle due to overcrowding and continued his journey in another vehicle.
15. The lorry came off the Diyarbakır-Bingöl highway at the Lice turn-off and headed towards the town of Lice. At about 7.40 a.m., one kilometre before the Lice-Kulp fork, the vehicle slowed to a halt as a result of a police minibus blocking the width of the road. Thereafter, four police officers surrounded the van with firearms and proceeded to carry out an identity check of all the occupants. This resulted in Memduh Çetin and Burhan Afşin being ordered out of the lorry and taken by a police minibus to the police checkpoint at the entrance to the Lice district. The other occupants were told to follow in the lorry.
16. The four men were told to wait at the police checkpoint at Lice without receiving an explanation for their detention. Kemal Ateş, who had by then arrived at the police point in the other vehicle, sought an explanation but was stopped by the police. After about 10-15 minutes a grey-coloured Renault saloon car, with the registration number 06 MEH, arrived. Four plain-clothed police officers with pistols got out. One of the police officers was a 29-30 year old, of medium height, wearing a grey jumper and holding a walkie-talkie. This police officer proceeded to ask who owned the lorry and what names each of the men were known by in the village from where they came. Kadri Ateş replied “Gebooğulları” and Vehbi Demir replied “Galevan”.
17. Thereafter the plain-clothes police officers informed the men that they were to be taken back to Diyarbakır, to the Financial Branch of the Police, as there was a problem concerning some cheques. Vehbi Demir and Memduh Çetin said to the police that they had simply boarded the lorry as passengers and had nothing to do with any cheques. However, they, together with Burhan Afşin, were ordered to drive the lorry back to Diyarbakır, in front of the Renault. Kadri Ateş was placed into the back of the Renault, in between two police officers.
18. The vehicles stopped outside the Regional Traffic Directorate, located at the entrance to Diyarbakır, where the four men were told to remain in their respective vehicles. Three officers then entered the Directorate. About 20 minutes later two more police cars arrived with three men in each vehicle, who proceeded to talk with the police who had detained the men in the Lice District. The two cars were similar to the Renault.
19. At this point Kadri Ateş, who was still in the Renault, indicated to Vehbi Demir and Memduh Çetin that they were in danger by biting his lip. As a result, Memduh became distressed and panicked, saying “They are going to kill me”. He was given permission to go to the toilet, which led to all four men being placed in the hallway of the Directorate.
20. After 10-15 minutes two plain-clothes police officers from the two cars that had arrived later entered the hall, carrying firearms. They asked “Which of you are Kadri Ateş and Vehbi Demir?” Both men identified themselves and were ordered to go with the officers to one of the cars which had arrived later. A tall man next to the officer with the walkie-talkie ordered them to turn to face the car whereupon they were blindfolded by a heavily-built officer who then pushed them into the back of the car and proceeded to sit next to them.
21. The officer with the walkie-talkie sat in the front of the vehicle, and enquired as to whether they knew what offences they had committed to which Vehbi replied, “No”. Kadri said, “It was the Mekap shoes.” The police officer then enquired where they were taking the shoes. Kadri replied, “There were fifty pairs. I was taking them to the mountains”. The officer then proceeded to punch Kadri, stating, “Son of a whore, are there still such macho men left in the south-east?”
22. The car then set off. The officer informed them that they were being taken to the military and added “Do you know what the military do ... you'll find out when you get there.” He then instructed the driver to turn onto the Ergani road. The car eventually stopped outside the Riot Police Directorate where they were taken to a cell in which Vehbi, still blindfolded, was handcuffed to the door. He heard the officer order Kadri to strip.
23. Thereafter, Vehbi heard Kadri's screams and cries which continued for two to four hours. Vehbi was then ordered to strip, after which he was tortured for about an hour: he had his testicles squeezed, was hosed down with cold water and electric shocks were applied to him. He was then interrogated by a “Commander” in front of approximately 15 people.
24. Gürgün Can, Ateş's cousin and business partner, was also placed in custody. On the second day, Vehbi was placed in another cell next to an inmate whom he correctly suspected was Can. His blindfold was removed. Thereafter both men were subjected to noise being played on a tape machine at an unbearably high level.
25. On the 15th day of custody Vehbi was taken for interrogation and again subjected to beatings, during which he continued to deny all accusations. His interrogators then stated, “You're very lucky. Haven't you heard? We have killed Kadri. He kicked the bucket. If they hadn't killed him, we'd have murdered you”. Thereafter they informed him, “Your time is up... You have two choices. Either you will go to join Kadri, or we'll send you to prison and you'll kill ten people with the poison we will give you”. They further added, “Look, there are teams here. If we surrender you to them, they will kill you like Kadri”.
26. Vehbi was taken to an unknown place. At the entrance his interrogators told him, “Don't you know where this is? Look, there are teams here. If we surrender you to them, they will kill you like Kadri”. Vehbi continued to assert his innocence, whereupon his interrogator said, “I'm telling you, you only have two choices. Either I will surrender you to the teams, or you'll agree to go to the prison.” At that point Vehbi was taken inside and placed in a cell where he was told, “If your friend had not died, we'd have killed you now. It appears you are lucky.”
27. On the 16th day of custody Vehbi was given a typed statement to sign. The next evening he was taken to the Dağkapı health clinic where he was threatened and told not to make any allegations, but the doctor, in any event, did not examine him.
28. On 30 June 1995 15 people were brought before the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”); Vehbi, Memduh Çetin and Gürgün Can were among them. The first two were released by the Prosecutor whereas Can was released by a judge. Burhan Afşin was remanded in custody.
29. On 20 June 1995, that is seven days after Kadri Ateş was detained, the applicant applied to the Diyarbakır Court to obtain information concerning the detention of his son. He was informed that his son was not in custody and was referred to the Diyarbakır Security Directorate where he received the same information.
30. The applicant was subsequently informed by the Prosecutor in the town of Lice that Kadri Ateş had died in a clash between security forces and the PKK. The applicant had the body of his son exhumed from the Lice cemetery and buried him in his home town of Kulp.
31. An official Incident and Apprehension Report stated that the four men had been observed at around 7.45 p.m. in an Isuzu lorry, with the registration number 34 ERS 82, travelling along the Bingöl road. They had subsequently been detained for suspected participation in terrorist activities, namely the dropping off of supplies to PKK members at the Aksu petrol station between the Lice turn-off and Duru Gendarmerie Station, at about 9 p.m.
32. The report stated that Vehbi Demir, Memduh Çetin and Burhan Afşin were taken to Diyarbakır for interrogation, while Kadri Ateş was handed over by the Gendarmerie to the Security Special Action Teams to help, voluntarily, set up an ambush at the said petrol station. The report further stated that at about 11.45 p.m. five armed PKK members came to the petrol station and an armed clash ensued in which Kadri Ateş was killed.
33. The applicant is convinced that Kadri Ateş did not die in a clash but was killed in custody under torture. Vehbi Demir witnessed Kadri being taken into custody by the police and heard him being tortured.
34. On 13 June 1995 the Diyarbakır Security Directorate received information to the effect that a small lorry with the registration number 34 ERS 82 would be carrying logistical equipment to PKK terrorists and that the terrorists would meet with Kadri Ateş, Memduh Çetin, Vehbi Demir and Burhan Afşin, who would be travelling in the lorry.
35. Necessary security measures were taken and at about 7.35 p.m. the lorry was stopped at the Lice-Kulp fork and Kadri Ateş was questioned. He stated that he was going to deliver the equipment to the terrorists at a location close to the Aksu petrol station near the Lice-Kulp fork at approximately 9 p.m. Thereafter he was arrested in order to be taken to the meeting point. The others were taken to the Diyarbakır Security Directorate for questioning.
36. Upon reaching the meeting point, the necessary security measures were taken and at approximately 11.45 p.m. five terrorists arrived to collect the equipment from Kadri Ateş. At that point the police asked the terrorists to surrender. However, instead of surrendering, the terrorists opened fire at the security forces and the firing continued for approximately half an hour. Kadri Ateş made an attempt to escape from the security forces but was shot and killed in the crossfire. Two terrorists were also shot and killed but the others managed to escape.
37. A search was carried out at the scene by soldiers from the Lice District Gendarmerie Headquarters. During the search, two Kalashnikov rifles with serial numbers 1971 PO4 and 1977 SS 239119, 81 cartridges and eight chargers were found. Various logistical supplies were also found in the lorry which belonged to Kadri Ateş and these supplies were handed over to the competent judicial authorities.
38. On 14 June 1995 the office of the Lice Prosecutor carried out autopsies on the bodies of the three deceased persons.
39. On 21 June 1995 the applicant went to the Prosecutor's office in Lice where he was shown the photographs of his son. In these photographs, the body of the applicant's son was seen lying next to the bodies of the two terrorists. The applicant formally identified his son.
40. On 30 June 1995 Fetih Aktaş, Cengiz Yılmaz, Burhan Afşin, Gürgün Can and Vehbi Demir were questioned by the Diyarbakır Court Prosecutor, who on 5 July 1995 filed an indictment with that court in which the five men were accused of the offence of membership of a terrorist organisation.
41. On 16 November 1995 the Diyarbakır Court acquitted the five men for a lack of sufficient evidence.
42. The following information appears from the documents submitted by the parties.
43. According to the custody ledgers, Vehbi Demir was arrested at midday, and Gürgün Can at 3 p.m., on 13 June 1995.
44. A handwritten incident report was drawn up and signed by six special police team members and two gendarmes at 5 a.m. on 14 June 1995. There is no information in the document to establish the identities of these officers. According to the report, Kadri Ateş, Vehbi Demir, Memduh Çetin and Burhan Afşin were arrested on 13 June 1995 during an investigation into the actions of the PKK. Kadri Ateş reportedly told the arresting officers that he was planning to meet with members of the PKK at 9 p.m. the same day at the Aksu petrol station and deliver to them the supplies which he had in the back of his lorry (registration number 34 ERS 82). Kadri Ateş was also reported to have told the arresting officers that he was willing to accompany them to the petrol station where they could set up an ambush in order to apprehend the PKK members. The other three arrested persons were then transferred to Diyarbakır for questioning. The police and gendarme officers, together with Kadri Ateş, went to the petrol station where they took up their positions – Kadri Ateş at the place where, according to his agreement with the PKK members, he was supposed to wait, and the police hiding in the vicinity.
45. Five PKK members arrived at the petrol station at 11.45 p.m. When asked by the police officers to surrender, the PKK members opened fire and an armed clash ensued. At that point police officers made an attempt to approach Kadri Ateş in order to take him away from the scene. However, he started running towards the PKK members and was shot in the crossfire. The clash continued for approximately 30 minutes. Bodies of two of the terrorists and their weapons were found at the scene after the clash had ended. The body of Kadri Ateş, who had been shot a number of times, was also lying next to those of the two PKK members.
46. On the same day Mr Özcan Küçüköz, the Prosecutor of the Lice district, in whose jurisdiction the killings had taken place, visited the Gendarme Commando Division in Lice where the three bodies had been taken. He was accompanied by Dr Ömer Varol. The Prosecutor and the doctor examined the bodies and drew up a report in which they recorded their findings. Each of the three bodies was given a number because their identities were not known. (The body of Kadri Ateş was number three.) The bodies were also photographed.
47. Rigor mortis had set in in bodies number one and two but post mortem hypostasis was not observed. As regards body number three, neither rigor mortis nor post mortem hypostasis was observed.
48. Examination of body number one revealed that the right frontal region and the parietal region of the brain were completely destroyed, whereas the occipital region was partly destroyed. There was also an injury below the right knee, caused by a rocket missile. The body bore no marks of blows.
49. In the course of the examination of body number two, two bullet entry wounds on the chest, a number of bullet entry wounds in the throat and one bullet entry wound on the left foot, as well as the corresponding exit wounds were observed. The body bore no marks of blows. The report further states that this person was wearing “terrorist clothing”.
50. Finally, the examination of body number three revealed a bullet entry wound in the occipital region of the brain and a corresponding exit wound on the chin; a bullet entry wound four millimetres below the left collar bone and a corresponding exit wound below the collar bone; an injury on the right shoulder, measuring 10 x 10 centimetres, caused by a firearm, and finally two shrapnel injuries below the right collar bone.
51. The doctor concluded that the cause of death for bodies number one and three was the destruction of vital organs, and for body number two acute blood loss caused by the firearm injuries. He added that the cause of the deaths was so obvious as to leave no doubt in his mind and therefore there was no reason to carry out classical autopsies.
52. The Prosecutor, after having examined the bodies, issued burial licenses and instructed a municipal worker to arrange for the burial of the bodies of the “three terrorists who had no relatives”.
53. Also on 14 June 1995 the Lice Prosecutor sent a letter to the commander of the Lice Gendarme Headquarters and asked for copies to be forwarded to him of the documents pertaining to the investigation which the commander had carried out into the incident. It further appears from this letter that the gendarme commander had informed the Prosecutor by telephone earlier in the day about the “killing of three terrorists whose identities are not known”.
54. On 21 June 1995 the applicant went to the office of the Prosecutor in Lice where he was shown the photographs of the three bodies. He identified body number three as that of his son Kadri Ateş. He also asked for permission to bury his son in his home village.
55. On the same day the Lice Prosecutor had the Lice municipality exhume the body of Kadri Ateş. It was handed over to the applicant.
56. On 23 June 1995 Captain Şahap Yaralı, the commander of the Lice Gendarme Headquarters, sent a letter to the Lice Prosecutor, in reply to the latter's letter of 14 June 1995 (see paragraph 53 above). Mr Yaralı wrote that at 6 p.m. on 13 June 1995 his station had been informed by telephone that a number of logistical supplies would be delivered to members of the PKK at the Aksu petrol station in a lorry. No information had been given about the make or the registration number of the lorry. An operation had been planned by the security forces in the area. At 11.45 p.m. a number of PKK members had arrived at the Aksu petrol station in an Isuzu lorry, with the registration number 34 ERS 82. The terrorists, when asked to stop by members of the security forces, had responded by opening fire. A short armed clash had ensued and, during the search which had been carried out after the clash, the bodies of three terrorists had been found. Two Kalashnikov rifles and ammunition belonging to the terrorists had also been retrieved at the scene. The supplies in the lorry had later been destroyed by the soldiers.
57. Captain Yaralı annexed to his letter, inter alia, an on-site incident report and a number of documents which had apparently been found in the lorry. The Government did not make these documents available to either the Commission or the Court. Captain Yaralı further forwarded to the Prosecutor the Kalashnikov rifles and the ammunition retrieved at the site of the armed clash.
58. On 26 June 1995 the Lice Prosecutor drew up records of confiscation in which the items sent to his office by Captain Yaralı were listed. These items included order forms, consignment ledgers and bills belonging to Zahit Trade (item no. 1995/8), the Isuzu lorry with the registration number 34 ERS 82 (item no. 1995/9), and the rifles and ammunition found at the site of the operation (item no. 1995/7).
59. On 30 June 1995 a statement was taken from Vehbi Demir by the Prosecutor at the Diyarbakır Court. Mr Demir denied being a member of the PKK but added that Kadri Ateş had had connections with them. He also stated that on 13 June 1995 Kadri Ateş had been giving him a lift in his lorry to the town of Kulp when the vehicle had been stopped by members of the security forces near the town of Lice. He, Kadri Ateş, Burhan Afşin and Memduh Çetin had been arrested on the spot.
60. On 5 July 1995 the Prosecutor at the Diyarbakır Court filed an indictment with that court, accusing Fetih Aktaş, Cengiz Yılmaz, Burhan Afşin, Gürgün Can and Vehbi Demir of membership of a terrorist organisation, namely the PKK. In this indictment, Kadri Ateş was referred to as the “terrorist who was arrested on 13 June 1995 together with Gürgün Can by members of the security forces, and who was later killed at the Aksu petrol station while trying to run away from the security forces during the armed clash between the terrorists and the security forces”. Burhan Afşin, Gürgün Can and Vehbi Demir were accused of attempting to take 54 pairs of Mekap shoes to terrorists on 13 June 1995 in a lorry with the registration number 34 ERS 92, before being arrested by members of the security forces. The indictment also made reference to a number of statements taken from Burhan Afşin, Gürgün Can and Vehbi Demir. With the exception of the statement taken from Vehbi Demir, these statements have not been made available to the Convention bodies.
61. On 18 July 1995 the Lice Prosecutor decided that he lacked jurisdiction to prosecute “the three terrorists killed in the operation on 13 June 1995”, and sent the file to the Prosecutor's office at the Diyarbakır Court. According to this decision, a number of terrorists had arrived at the Aksu petrol station at 11.45 p.m. in an Isuzu lorry, with the registration number 34 ERS 92, and three of the terrorists had been killed. The body of one of the deceased had subsequently been identified as that of Kadri Ateş.
62. On 11 August 1995 the Prosecutor at the Diyarbakır Court instructed the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and, finally, the Diyarbakır gendarme headquarters to search for the perpetrators of the incident “during which three of the terrorists were killed in the armed clash between the terrorists and the security forces”. The Prosecutor asked to be kept informed every three months of any possible developments in the investigation.
63. On 20 September 1995 the commander of the Duru gendarme station, near which the incident had taken place, sent a report to the Lice Gendarme Headquarters. According to this report, a group of terrorists had approached the lorry to take delivery of logistical supplies. When asked by members of the security forces to surrender, the terrorists had opened fire. After the incident three of the terrorists had been found dead. The report finally stated that it had not yet been possible to establish the identities of the “perpetrators of the incident”. This report was forwarded to the Prosecutor's office at the Diyarbakır Court on 26 September 1995 by the commander of the Lice Gendarme Headquarters. In his covering letter, the commander referred to a letter apparently sent to him by the Prosecutor on 15 September 1995.
64. On 16 November 1995 the Diyarbakır Court held that there was insufficient evidence to conclude that the five defendants had aided and abetted a terrorist organisation, and it ordered their acquittal. The court noted that the defendants had confessed, in statements taken from them by the police while they were in custody, to having committed the offence in question. The court noted that the defendants had later denied the contents of their earlier statements. Copies of the statements taken from the defendants during the criminal proceedings have not been made available to the Convention bodies. The Diyarbakır Court further ordered the return of the confiscated Isuzu lorry (registration number 34 ERS 82) to its owner because it had not been established that the lorry had been used in the commission of an offence. The decision became final on 23 November 1995.
65. On 27 January 1998 the judge at the Nizip Criminal Court of First Instance asked the Prosecutor at the Diyarbakır Court to forward to him a copy of the report of the examination carried out on the body of Kadri Ateş (see paragraphs 46-52 above). The judge asked for this report to be sent to him “before the forthcoming hearing on 14 April 1998”.
66. On 6 May 1998 the Prosecutor at the Diyarbakır Court sent the requested report to the Nizip judge.
67. On 2 June 1998 the Prosecutor at the Diyarbakır Court repeated the above mentioned instructions to the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and finally the Diyarbakır gendarme headquarters (see paragraph 62 above).
68. On the same day he also sent a letter to the Lice Prosecutor saying that neither the ownership of the Isuzu lorry nor the manner in which the terrorists had acquired and used it had yet been established. He further asked the Lice Prosecutor to carry out a ballistics examination of the rifles and the bullets, numbered as item no. 1995/7 (see paragraph 58 above).
69. On 3 September 1998 the Prosecutor at the Diyarbakır Court asked the Lice Prosecutor to forward to his office the confiscated items registered as nos. 1995/7-9 (see paragraph 58 above).
70. On 29 September 1999 the Diyarbakır branch of the Pensions' Directorate sent a letter to the Prosecutor at the Diyarbakır Court informing him of their intention to bring a civil action against those responsible for the killing of Kadri Ateş to claim compensation. The Prosecutor was asked to send to the Pensions' Directorate the documents pertaining to the investigation into the killing of Kadri Ateş.
71. On 7 October 1999 the Prosecutor at the Diyarbakır Court forwarded to the Pensions' Directorate the documents requested, and informed the latter that the perpetrators had not yet been arrested. The Prosecutor further stated that logistical supplies had been taken to the petrol station by terrorists who had refused to surrender to the security forces.
72. On 4 November 1999 the Prosecutor at the Diyarbakır Court drew the Lice Prosecutor's attention to the fact that the owner of the Isuzu lorry had still not been established (see paragraph 68 above). He also repeated his request of 3 September 1998 and urged the Lice Prosecutor to forward to his office the items registered as nos. 1995/7-9 (see paragraph 58 above). He finally repeated his instructions of 2 June 1998 to carry out ballistics examinations on the rifle and the ammunition.
73. Also on 4 November 1999 the Prosecutor at the Diyarbakır Court repeated his instructions to the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and finally the Diyarbakır gendarme headquarters (see paragraph 62 above). The Prosecutor further instructed the investigating authorities to establish the identities of the three dead terrorists and “to apprehend them”.
74. The applicant submitted to the Court copies of statements taken from the applicant and also from Vehbi Demir by the applicant's Turkish lawyer. The statement taken from Vehbi Demir formed the basis of the applicant's submissions summarised in Section B above (see paragraphs 13-33).
75. A full description of the relevant domestic law and practice, as well as relevant international reports, may be found in Salman v. Turkey ([GC], no. 21986/93, §§ 59-74, ECHR 2000-VII).
VIOLATED_ARTICLES: 13
2
38
5
VIOLATED_PARAGRAPHS: 2-1
5-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-75235
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KUNSTIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1935 and lives in Petrovče.
6. On 19 September 1996 the applicant was injured in a car accident. The company owning the bus that caused the accident had taken out insurance with the insurance company ZT.
7. On 14 October 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,050,000 tolars (approximately 8,550 euros) for the injuries sustained.
On 28 September 1999 and 30 March 2000 the applicant requested that a date be set for a hearing.
Between 4 January 2001 and 16 October 2002 the applicant lodged four preliminary written submissions and/or adduced evidence.
Of the five hearings held between 17 January 2001 and 16 October 2002 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 27 December 2002.
8. On 30 December 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 8 April 2004 the court dismissed the appeals.
The judgment was served on the applicant on 5 May 2004.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95061
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DOVIDYAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1918 and lives in St Petersburg.
6. On 15 October 2001 the applicant brought proceedings before the Oktyabrskiy District Court of St Petersburg (“the District Court”) against the St Petersburg Fuel and Energy Complex, a State energy supply enterprise, for damages. He complained that the defendant had deprived him of his right to a reduced price for heating, to which he was entitled as a disabled veteran of the Second World War.
7. In a judgment of 14 May 2002 the District Court granted the applicant's claim in part and ordered the defendant to repay the sums overpaid by the applicant between December 1998 and November 2001.
8. On 12 February 2003, upon the defendant's appeal, the St Petersburg City Court (“the City Court”) quashed the judgment in part and ordered a fresh examination by the first-instance court.
9. On 31 March 2003 Judge K. of the District Court took up the case and fixed a hearing for 26 June 2003.
10. According to the Government, the applicant modified his claims on 26 May 2003.
11. During the hearing on 26 June 2003 the applicant waived part of his claims and lodged claims against new defendants, with the result that the hearing was postponed until 13 November 2003.
12. In the Government's submission, the applicant modified his claims on 13 October 2003.
13. According to the Government, the hearing scheduled for 13 November 2003 was not held owing to the fact that Judge K. had resigned from office, with the result that on 30 September 2003 the case was transferred to Judge P. The latter was on sick leave between October 2003 and January 2004. Subsequently all cases assigned to Judge P. were transferred to Judge I., who fixed a hearing in the applicant's case for 16 December 2004. On the latter date the hearing was postponed until 7 July 2005 as the judge was engaged in unrelated proceedings.
14. In the Government's submission, the applicant modified his claims on 7 and 11 July 2005.
15. On 7 July 2005 the hearing was adjourned until 11 August 2005 because the defendants and a third party had failed to appear, and then until the following day because the judge was engaged in unrelated proceedings. Then the hearing was postponed until 4 October 2005 in view of the defendant's failure to appear.
16. On 4 October 2005 the hearing was adjourned until 17 November 2005 at the applicant's request; he asked for more time to adduce some evidence and consult his lawyer, and then until 22 December 2005 as the judge was on leave. In the Government's submission, on 22 December 2005 the applicant modified his claims. On the same date the hearing was postponed until 1 February 2006, as the defendants had failed to appear and there was no evidence in the case file that they had been duly notified of the hearing.
17. By a judgment of 1 February 2006 the District Court dismissed the applicant's claims. The applicant's appeal against this judgment was stayed on 3 February 2006 owing to his failure to comply with certain formal requirements and he was invited to remedy the shortcomings by 15 March 2006. On the latter date the applicant lodged an amended appeal.
18. On 17 May 2006 the City Court upheld the judgment of 1 February 2006 on appeal.
VIOLATED_ARTICLES: 6