ITEMID: 001-90407
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GUDJONSSON v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Björn Guðni Guðjonsson, is an Icelandic national who was born in 1950 and lives in Kaldrananeshreppur. At the material time, in April and May 2003, he was registered as being domiciled at Bakkagerði, in the neighbourhood of Drangsnes, a village in the north-western corner of Iceland. He was represented before the Court by Mr Ragnar Aðalsteinsson, a lawyer practising in Reykjavik. The Icelandic Government were represented by their Agent, Mr Thorsteinn Geirsson, of the Ministry of Justice and Ecclesiastical Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The present application has its background in criminal proceeding brought against the applicant on account of his having fished lumpfish on certain dates in April and May 2003 in the net zone of the Bjarnarnes farm in Kaldrananeshreppur in the western part of Iceland. At the time he was one of six co-owners of the farm. His sister, two brothers – including Gudmundur Heidar Gudjonsson (GHG) - and the applicant each owned 12.5% of the property; the remaining half was owned by two other individuals. The applicant and his siblings had acquired their shares in the property as a result of a gift from their father, GG, according to a Deed of Transfer to this effect dated 16 August 1999.
GG at one time owned the vessel Sæfinnur ST 34, a boat which had been allocated a catch permit for lumpfish on the basis of the Fisheries Management Act and the Regulation applying to such permits. GG had used the boat Sæfinnur ST 34 for catching lumpfish since 1987, and on 1 January 1991 a catch permit for lumpfish was issued in respect of the vessel under the new system when the Fisheries Act came into force. On 1 April 1999 this catch permit for lumpfish was transferred from the Sæfinnur ST 34 to another boat, the Díva ST 18 (6715), also owned by GG. On 18 January 2002, he sold the Díva to the company Innra-Nes, together with all its fishing permits; in addition, it was stated specifically that all the boat’s catch experience was to be the property of the purchaser. The purchase price was ISK 3 million. The Deed of Transfer identified GHG as the owner of all the share capital in Innra-Nes.
The lumpfish catch permit in question was assigned yet again on 12 March 2002, and is currently attached to the boat Sævar Guðjóns ST 45 (2032), which is also owned by GHG’s company Innra-Nes.
In the spring of 2003 the applicant was working in Reykjavík. As the volume of his work there declined and his income dropped, he acquired a new 5.60 m long boat and started fishing for lumpfish from the Bjarnarnes farm in April 2003.
On 10 June 2003 a check by fisheries inspectors of the fish-processing plant Fiskvinnslan Drangur ehf. in Drangsnes revealed entries in the company’s weight records showing that the boat Sæfinnur ST 34 had landed nearly two tons of lumpfish roes in April and May, which the processing plant had purchased from it. On 11 June, the fisheries inspectors visited the applicant at Bakkagerði. It was then found that the boat, Sæfinnur ST 34, which belonged to the applicant’s father, lay upside down on dry land, and had been replaced by the plastic boat that the applicant had bought in the spring.
On 8 March 2004, the Hólmavík District Commissioner issued an indictment against the applicant for violations of the fisheries legislation by having, on specified dates in April and May 2003, caught lumpfish from his unregistered boat without a general commercial fishing permit and without a permit to catch lumpfish; these catches of lumpfish produced 1,880.5 kg of lumpfish roes, which he had sold to Fiskvinnslan Drangur ehf. in Drangsnes, in violation of section 4 of the Fisheries Management Act No. 38/1990, section 7 of the Act No. 79/1997 on Fishing in Iceland’s Fishing Jurisdiction (hereinafter “the 1997 Act”) and section 1 of Regulation No. 129/2003 on Lumpfish Fishing. The Public Prosecutor requested that the applicant be sentenced for these violations and be made to suffer confiscation of the proceeds obtained through them.
The applicant, for his part, maintained that the owners of land adjacent to the sea had an exclusive right to fish lumpfish within the net zone as it was an inseparable part of the farm and the owners had not been deprived of their property rights in the net zone. In his view, the provision concerning fisheries jurisdiction (section 2 of the Act on Fishing in Iceland’s Fisheries Jurisdiction, No. 79/1997, hereinafter “the 1997 Act”) extending from the water’s edge to the outer limits of the economic zone ought to be interpreted with reference to the rights that already existed and which had not been overruled despite a definition in ordinary legislation. Section 7 of the 1997 Act ought to be interpreted with consideration being given to the more extensive rights of other parties which were valid before the Act took effect; otherwise, it would have been necessary to state that the Act was intended to prevail over rights of ownership that were protected under Article 72 of the Constitution.
It was undisputed that on the dates indicated in the indictment the applicant had been fishing lumpfish without a permit within the net zone of the Bjarnarnes farm. Nor was it disputed that he was co-owner of the farm and that he had obtained the permission of other co-owners to fish lumpfish within the net zone of the farm.
On 28 September 2004 the West Fjords District Court convicted the applicant of the offences and sentenced him to pay a fine of ISK 400,000 to the Treasury, failing which he was to serve 45 days’ imprisonment. It further ordered the confiscation of ISK 730,320 corresponding to the value of the 1,880.5 kg lumpfish that the applicant had caught. In addition, he was ordered to pay the entirety of the court costs.
The District Court’s judgment contained the following reasons:
“In the absence of any proof to the contrary, the accused’s assertion that he caught all the lumpfish within the net zone of the property in question will be used as a basis for this judgment.
Ever since ancient times, there have been legal provisions on the rights of landowners to make catches within net zones in Iceland. Grágás [the ancient law code of Iceland] states that all men have the right to catch without incurring a penalty outside the net zone, the outermost boundary of the net zone being where a seal-net, from mainland or skerry, touches the bottom at a depth of twenty meshes with the floats on the surface at low tide, with the footline touching bottom. Article 2 of the Chapter on Drift Rights in the Jónsbók law code [ from the year 1281] stated that all men had the right to catch without incurring a penalty outside the net zone, the outermost boundary of the net zone being where a seal-net touched bottom at a depth of twenty meshes with the floats on the surface.
The most recent provisions in Icelandic law regarding net zones are to be found in Act No. 81/2004. Pursuant to section 2, the outermost boundary of the net zone means, for the purposes of the Act, 115 m out from the shore of a lake to which a property is adjacent, and the sea-floor 115 m out from the high-water mark of a property during spring tides. Net zones are defined in the same way in section 1 of the Act No. 64/1994. Its section 8 states that only landowners have the right to hunt animals on their land. Under the same article, persons other than the landowners do not have the right to hunt animals in Iceland’s economic zone except outside the net zones.
A judgment by the Supreme Court of Iceland, reported in Court Reports 1996 p. 2518, describes how section 1 of the Decree on Hunting issued in 1849 stated that from that time forth, only landowners in Iceland had the right to hunt animals and birds unless otherwise stated in the Decree. Furthermore, section 21 stated that all statutory articles on fishing and whaling that were not amended by the Decree were to remain unchanged for the time being. The Court took the view that it could not be considered that the provisions of section 3 of the Decree, on the landowners’ right to make catches up to 60 fathoms out to sea from the high-water mark at spring tides, involved a different and more ample right for the landowners regarding catches than the right provided for in section 1 of the Decree.
The same judgment went on to say that it could not be seen, from the ancient laws, that net zones in the sea had been regarded as being subject to the same authority of ownership by land owners as the land above them. Nor had the land owners, under the legislation of recent times, been granted all the same ownership rights over net zones in the sea that they enjoyed regarding the properties that were adjacent to them. Under legislation postdating the aforementioned Decree, property owners had not been unequivocally granted an exclusive right to catch marine fish in net zones based on a distance out from the high-water mark during spring tides. Nor had the provisions of the Chapter of Jónsbók concerning the definition of net zones based on the depth of the sea been repealed by any act of the legislature, though they were not incorporated in the 1919 edition, or subsequent editions, of the statute book.
Although it is therefore not clear in law whether land owners possess all the same rights in the net zones as they do on the land above them, and whether their right to catch marine fish should be based on a distance out from the land or on the depth of the sea, it must be considered that it is not evident that the accused caught lumpfish at a greater depth than is specified in the Article 2 in the Chapter on Drift Rights in the Jónsbók. In this judgment, the provision of that Chapter stating that the landowner owns all fishing rights in the net zone and catch rights on the beach will be taken as a basis.
Under section 2(2) of the 1997 Act, the marine area from the water’s edge to the outer limits of Iceland’ s economic zone is considered as constituting its fisheries jurisdiction. Thus, the net zone is included in the fisheries jurisdiction. The same definition can be found in section 2 of Act No. 38/1990.
Section 1 of the 1997 Act states that its aim is to promote the prosperity and efficient utilisation of the economically exploited stocks within Iceland’s fisheries jurisdiction and so to ensure firm employment and human settlement in the country. The same aim on the part of the legislature can be found in section 1 of Act No. 38/1990, which also states that the commercially exploited stocks in Icelandic waters are the common property of the Icelandic people.
Notwithstanding the aforementioned rights of landowners in the net zone, and taking into account the Supreme Court’s judgment in case no. 12/2000 (Court Reports 2000 p. 1534), the Court is not able to concur with the view that the legislature may not protect the commercially exploited stocks in the fisheries jurisdiction and promote their efficient utilisation by prohibiting landowners from making catches from these stocks, both within the net zone and outside it, except with special permits. The accused, who had the permission of the landowner to catch lumpfish within the net zone, was therefore nevertheless obliged to respect the prohibition contained in section 7(1) of the 1997 Act on the catching of lumpfish without a special permit from the Fisheries Agency. Section 2 of Regulation No. 129/2002 on Lumpfish Fishing states that the condition for obtaining a special permit is the possession of a commercial fishing permit.
Accordingly, the accused violated the provisions of section 4 of the Act No. 38/1990, which prohibits fishing for commercial purposes off Iceland’s coasts by persons other than those who have received a general fishing permit, and has incurred punishment under section 25 of the same Act (see section 12 of Act No. 85/2002 and section 27 of Act No. 57/1996). Furthermore, his actions constitute a violation of section 7 of the 1997 Act and section 1 (see section 12) of the Regulation No. 129/2002 (see section 17 of the 1997 Act).”
The applicant appealed to the Supreme Court, which on 28 April 2005 upheld the District Court’s judgment in extenso and ordered the applicant to pay the entirety of the legal costs in the appeal.
Icelandic law concerning the rights of landowners in respect of the catching or hunting of fish, birds, whales and seals and ownership of driftwood in their net zones may be found in the provisions set out below (the different legislative definitions of the net zone boundaries are not in issue in the present case).
The ancient Icelandic law code, Jónsbók, dating from 1281, stated in Chapter 2 of the Drift Rights Section:
“The landowner shall also own [a whale in which a missile or a marked harpoon is fixed ...] and all drift materials, and all those whales which swim ashore fleeing from men and all catches in the net zone and on the beach.”
The Decree on Hunting in Iceland of 20 June 1849 provided:
Article 1
Landowners in Iceland shall henceforth own exclusive rights to catch animals [and birds] unless other provisions are made in this Decree. Furthermore, the catch rights they have acquired by law outside their properties shall remain completely intact.
Article 3
... the owner shall own the right to make catches in an area extending 60 fathoms out into the sea from the low spring tide mark; this is his net zone
Under Article 11 of the Decree, hunting animals on the land properties of other persons without their permission, or making catches in their net zones, is a criminal offence that is punishable by a fine.
Section 8(1) and (2) of Act No. 64/1994 on the Conservation, Protection and Hunting of Wild Birds and Wild Mammals read:
“All Icelandic citizens, and also foreign nationals who are domiciled in Iceland, may hunt animals on common land, on pastureland lying outside the property boundaries of legally-defined farms, providing that no one is able to demonstrate his right of ownership over them, and also in Iceland’s economic zone outside the net zones of land properties. They shall have obtained licences for this purpose under this Act and regulations issued hereunder.
Landowners shall have an exclusive right to hunt animals on their properties and dispose of such rights unless other provisions are made in law.”
According to the Government, the above-mentioned provisions, in particular that of Jónsbók, had been interpreted to the effect that ownership of the net zone in the sea conferred on the landowner an exclusive right to make catches of all types, including fish. However, in so far as relevant for the present case, such rights were restricted by the statutory provisions referred to below.
The Fisheries Management Act, No. 38/1990 (hereinafter referred to as “the 1990 Act”), Iceland’s first comprehensive piece of legislation covering fisheries management, as in force at the material time (later replaced by Act No. 116/2006, without substantive amendments) contained the following provisions of relevance:
Article 1
“The exploitable marine stocks of the Icelandic fishing banks are the common property of the Icelandic nation. The objective of this Act is to promote their conservation and efficient utilisation and thus to ensure stable employment and settlement throughout the country. The allocation of harvest rights provided for by this Act endows individual parties neither with the right of ownership nor irrevocable jurisdiction over harvest rights.”
Article 2
“For the purposes of this Act, exploitable marine stocks shall include marine animals and marine plants found within the Icelandic exclusive fishing zone which are or may be exploited commercially and are not covered by special laws.
Iceland’s exclusive fishing zone includes the ocean area extending from the low-water line to the outer limits of Iceland’s exclusive economic zone (EEZ) as defined by Act No. 41, of 1 June 1979, concerning the Icelandic territorial sea, exclusive economic zone and continental shelf.”
Article 4
“No one may pursue commercial fishing in Icelandic waters without having a general fishing permit. Fishing permits shall be issued for a period of one year at a time.”
Article 5
“Commercial fishing permits may only be granted to fishing vessels holding certificates of seaworthiness and registered in the Registry of Vessels of the Directorate of Shipping or the special registry of the Directorate for boats shorter than 6 metres in length. Their owners and operators must fulfil the requirements to pursue fishing in Iceland’s exclusive fishing zone, as provided for in the Act on Investment by Foreign Parties in Industrial Operations and the Act concerning Fishing and Processing by Foreign Vessels in Iceland’s exclusive fishing zone. A fishing vessel may, however, only be issued one type of commercial permit for a single fishing year, i.e. a fishing permit with general catch quota, fishing permit with cod catch maximum, cf. Temporary Provisions I of this Act, a fishing permit with catch quota awarded in accordance with Temporary Provisions II of this Act (hook catch quota) or fishing permit with pursuit days.”
Article 6a
“Leisure fishing for personal consumption is authorised without special permit. Such fishing may only be pursued with handline without automatic jigger. Any catch obtained as provided for by the provision of this paragraph may not be sold nor used for financial gain by any other means. [...]”
Article 25
“Violations of the provisions of this Act, or of rules issued hereunder, and of the conditions stated in permits, shall be punishable by fines, irrespective of whether they were committed intentionally or through negligence. In the case of gross or repeated violations committed intentionally, they shall also be punishable by up to six years’ imprisonment.”
The other principal piece of legislation, the Act on Fishing in Iceland’s Fisheries Jurisdiction, No. 79/1997 (hereinafter referred to as “the 1997 Act”), included the following provisions:
Section 1
“The objective of this Act is to promote the well-being and efficient utilisation of the exploitable stocks within Iceland’s fisheries jurisdiction, so ensuring reliable employment and settlement in the country.”
Section 2
“For the purposes of this Act, the term ‘exploitable stocks’ shall include marine animals, and also marine plants, which are exploited, or may be exploited, within Iceland’s fisheries jurisdiction and which are not covered by separate legislation.
Iceland’s fisheries jurisdiction includes the ocean area extending from the low-water line to the outer limits of Iceland’s exclusive economic zone (EEZ) as it is defined in the Act No. 41 of 1 June 1979 on the Icelandic Territorial Sea, Exclusive Economic Zone and Continental Shelf.”
Section 7
“Catches of lumpfish shall be subject to special permits issued by the Fisheries Agency, and only those vessels which were entitled to permits during the lumpfish season of 1997, according to the rules applying thereto, shall qualify for such permits. The Minister shall issue regulations containing further provisions on the arrangements regarding lumpfish catches and the fishing season according to this paragraph. Amongst other things, the Minister may determine that permits will be confined to a specific area and that permits for fishing in a particular area will be granted only to vessels registered in that area. The Minister may also set rules authorising the transfer of lumpfish fishing permits between vessels.”
Section 17
“Violations of other provisions of this Act, or of regulations issued hereunder, or of the conditions of fishing permits, shall be punishable by fines of not less than ISK 400,000 and not exceeding ISK 4,000,000, depending on the nature and scope of the violation.”
The Government submitted that the requirement in section 7 of a special permit for commercial fishing of lumpfish had formerly been contained in and transferred from the 1990 Act. According to an explanatory note the rational for the special rule in section 7 was:
“It is proposed in the first paragraph of this Article that catches of lumpfish be subject to special permits and that only those who were entitled to such permits under the current rules will qualify for permits. Regulation No. 58 of 18 January 1996, on catches of lumpfish, contains provisions on lumpfish fishing in Iceland, specifying what vessels will qualify for lumpfish catch permits. The issue of permits has been limited for many years, and is restricted to those parties who made catches during a particular period of years. It should be pointed out here that marine biologists have not proposed that lumpfish catches be limited; on the other hand, it has been felt that there is reason to impose limits on these catches, first and foremost because the number of small fishing boats is now so great that without limits, catches could get completely out of control in a short time. In this context, attention must also be given to conditions on the market and the right of those persons who have engaged in catches of this species and as a result of doing so have smaller quotas in other fish species. The Regulation on catches of lumpfish was issued under the second paragraph of Article 4 of the ... 1990 Act; here it is proposed that it be stated clearly that these catches are to be subject to permits, and also that provisions be laid down authorising the Minister to control these matters in the way that this has been done up to now.”
The Regulation on lumpfish catches, No. 129/2002 (hereinafter referred to as “the 2002 Regulation”), stated inter alia:
Article 1
“All catches of lumpfish within Iceland’s exclusive fishing zone are forbidden without prior special permits from the Fisheries Agency.”
Article 2
“Permits for lumpfish catches may only be granted to those vessels which were entitled to such permits in the 1997 fishing season according to the Regulation No. 58/1996, providing that they hold commercial fishing permits (see the 1990 ... Act). Vessels larger than 12 GRT may not be granted permits for lumpfish catches if they did not hold permits for lumpfish catches during the previous fishing season. The issue of permits, and permits for lumpfish catches, may be made subject to such conditions as are considered necessary, including conditions regarding the submission of reports on the catches.”
Article 4
“When a vessel which has held a permit for lumpfish catches is sold, the permit shall accompany the vessel unless other provisions are made in the purchase contract.”
Under other provisions of the Regulation on lumpfish catches, the fishing grounds around Iceland were divided into seven catch areas, and each permit was restricted to a particular catch area and catch period. In most of these areas, the catch period lasted from 20 April to 10 July. The regulation contained further rules on the maximum number of lumpfish nets that permit-holders could lay in the sea, and rules on the minimum mesh size of lumpfish nets.
Section 1 of the Act on the Treatment of Commercial Marine Stocks, No. 57/1996 stated that its object was to improve the treatment of commercial marine stocks and to promote their renewable utilisation so as to ensure maximum productivity for the benefit of the Icelandic nation in the long term. The Act laid down rules on catch gear, the monitoring of the utilisation of catch quotas and the weighing and recording of marine catches; it also states that the application and supervision of fisheries legislation is to be in the hands of a special institution, the Fisheries Agency.


ITEMID: 001-97268
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BOCK v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Stephan Bock, is a German national who was born in 1951 and lives in Frankfurt (Oder). The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 July 2002 the applicant, a civil servant with a monthly salary of more than 4,500 euros (EUR) at the time in question, made a request for aid (Beihilfe) to the Brandenburg Land, his employer. He asked to be reimbursed part of the cost, namely 7.99 EUR, he had paid for magnesium tablets prescribed by his physician.
On 14 August 2002 the Land refused this request.
On 20 August 2002 the applicant instituted preliminary administrative proceedings (Widerspruchsverfahren) by lodging an objection to the decision of 14 August 2002.
On 4 November 2002 the Land dismissed the applicant’s objection.
On 13 November 2002 the applicant brought an action against the Brandenburg Land with the Frankfurt (Oder) Administrative Court claiming that the magnesium tablets in question were eligible for aid, and requested a renewed decision by the Land.
By letter dated 2 April 2004 the Administrative Court informed the applicant at his request that all cases were dealt with in chronological order, that there was a backlog of cases and that for the time being he could not expect a date for an oral hearing to be set.
On 6 January 2005 the Administrative Court replied to another information request by the applicant that a decision was expected to be reached that year.
On 4 January 2006 the applicant lodged an extraordinary complaint, that the Frankfurt (Oder) Administrative Court was taking no action, with the Berlin-Brandenburg Administrative Court of Appeal. By a letter dated 9 January 2006 the Administrative Court of Appeal informed the applicant that his extraordinary complaint was not admissible since the Code of Administrative Procedure did not provide for such a remedy and, furthermore, he was not, as prescribed by the relevant law, represented by counsel. On 22 January 2006 the applicant withdrew the complaint of inactivity he had lodged with the Administrative Court of Appeal. With decision dated 25 January 2006 the Administrative Court of Appeal discontinued the complaint proceedings.
On 1 February 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court that the Administrative Court was taking no action. On 24 April 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination (file no. 2 BvR 267/06).
On 26 November 2007 the Frankfurt (Oder) Administrative Court referred the case to a single judge for a decision. By a judgment of 19 December 2007 the Frankfurt (Oder) Administrative Court dismissed the applicant’s action.
The judgment was served on the applicant on 29 December 2007 and has since become final.


ITEMID: 001-69022
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF ÖCALAN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);No violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms;Impartial tribunal;Independent tribunal);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);No violation of Article 2 - Right to life (Article 2-1 - Death penalty) (Substantive aspect);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2-1 - Death penalty;Article 2 - Right to life);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 13. The applicant was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey). Prior to his arrest, he was the leader of the PKK (Workers' Party of Kurdistan).
The facts of the case, as submitted by the parties, may be summarised as follows.
14. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities asked him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision.
15. On 12 November 1998 the applicant went to Rome, where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia, he returned to Greece, probably on 1 February 1999. The following day (2 February 1999), the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek embassy and accommodated at the ambassador's residence. He lodged an application with the Greek ambassador for political asylum in Greece, but never received a reply.
16. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed in Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. It added that the Kenyan Minister for Foreign Affairs had summoned the Greek ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the person concerned was not Mr Öcalan, on being pressed by the Kenyan authorities the Greek ambassador had gone on to acknowledge that it was in fact him. The Kenyan Minister for Foreign Affairs had been informed by the Greek ambassador that the authorities in Athens had agreed to arrange for Mr Öcalan's departure from Kenya.
The Kenyan Minister for Foreign Affairs also stated that Kenyan diplomatic missions abroad had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan government was surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek ambassador's role in the events, the Kenyan government indicated that it had serious reservations about his credibility and requested his immediate recall.
The Kenyan Minister for Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in the choice of his final destination. The Minister had not been informed of any operations by Turkish forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish governments on the subject.
17. On the final day of his stay in Nairobi, the applicant was informed by the Greek ambassador after the latter had returned from a meeting with the Kenyan Minister for Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands were prepared to accept him.
On 15 February 1999 Kenyan officials went to the Greek embassy to take Mr Öcalan to the airport. The Greek ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport, this car left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m.
18. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice (Red Notice) had been circulated by Interpol. In each of those documents, the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the Turkish State and of instigating various terrorist acts that had resulted in loss of life.
On the flight from Kenya to Turkey, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons.
19. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed as soon as the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace.
The applicant was taken into custody at İmralı Prison on 16 February 1999. On the journey from the airport in Turkey to İmralı Prison, he wore a hood. In photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek embassy in Nairobi.
20. From 16 February 1999 onwards, the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed.
21. Judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999.
22. According to the applicant, on 22 February 1999 sixteen lawyers instructed by his family applied to the National Security Court for permission to see him. They were informed verbally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval.
23. As soon as the applicant's detention began, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life, and it was for security reasons that lawyers were searched.
24. On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK had used violent methods against civilians, in particular from 1987 onwards, but that he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted part of their pressure on the Kurdish population; some of these warlords had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services.
25. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him as founder and leader of the organisation for final approval. In the period from 1973 to 1978, the PKK's activities had been political. In 1977 and 1978, the PKK had organised armed attacks on the ağalar (major landowners). In 1979, following a visit by the applicant to Lebanon, the PKK had begun its paramilitary preparations. Since 1984, the PKK had carried on an armed struggle within Turkey. The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions.
26. On the day after the applicant's arrival in Turkey, his Turkish lawyer, Mr Feridun Çelik, asked to visit him. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers.
27. At Istanbul Airport on 17 February 1999, Ms Böhler, Ms Prakken and their partner Mr Koppen were refused leave to enter Turkey to visit the applicant, on the grounds that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) created a risk of prejudice to public order in Turkey.
28. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later.
29. During the preliminary investigation between 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve meetings in private with his lawyers. The dates and duration of the meetings were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour).
30. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits, the applicant's contact with his lawyers was restricted to two visits per week, lasting an hour each. On each visit, the lawyers were searched five times and required to fill in a very detailed questionnaire. He and his advisers were not allowed to exchange documents or take notes at their meetings. The applicant's representatives were unable to give him either a copy of his case file (other than the bill of indictment, which was served by the prosecution) or any other material that would allow him to prepare his defence.
31. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the meetings were held subject to the restrictions provided for in the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. According to the Government, no restrictions were placed on the applicant's correspondence.
32. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Government, they indicated that the applicant was physically in good health and his cell was comfortable. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically.
33. The CPT delegates next visited İmralı Prison, where the applicant is the sole inmate, as part of their mission to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. However, he received twice daily medical checks by doctors and, in principle, was visited by his lawyers once a week.
34. On its visit of 16-17 February 2003, the CPT noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport.
35. In a bill of indictment preferred on 24 April 1999 (and joined to several others that had been drawn up in the applicant's absence by various public prosecutors' offices between 1989 and 1998), the public prosecutor at the Ankara National Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.
36. The case file ran to 17,000 pages and had been prepared by joining the files in seven sets of proceedings that were pending against the applicant in various national security courts. The applicant's lawyers were given access to the case file and the bill of indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had omitted to include certain documents in it, such as those concerning the applicant's arrest in Kenya and his transfer to Turkey.
37. The first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's absence, were taken up with procedural matters, such as third-party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public to attend the trial. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 have been the subject of a criminal investigation.
38. From 31 May to 29 June 1999, the National Security Court held eight hearings attended by the applicant on the island of İmralı. The applicant told the court, among other things, that he stood by his statements to the prosecutor and the judge. He confirmed that he was the most senior PKK agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts. He said that he had not been ill-treated or verbally abused since his arrest. The applicant's representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction.
39. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been in reaction to the political pressure the government had exerted on the Kurdish population. When circumstances changed, he had decided on a different approach and limited his demands to autonomy or to a recognition of the Kurds' cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy, but disclaimed criminal liability for acts of violence which went beyond the PKK's stated policy. In order to highlight the rapprochement between the PKK and the government, he applied to have the government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court.
40. The applicant's lawyers' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics.
41. The applicant's lawyers complained to the National Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the National Security Court at a hearing on 1 June 1999.
The lawyers did not appear at the hearing on 3 June 1999. At their request, transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the National Security Court for having established a dispassionate atmosphere.
42. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant under Article 125 of the Criminal Code.
The applicant's advisers requested a one-month adjournment to enable them to prepare their final submissions. The National Security Court granted them fifteen days, the statutory maximum allowed.
43. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution to exclude both military judges and military prosecutors from national security courts. Similar amendments were made on 22 June 1999 to the law on national security courts.
44. At the hearing on 23 June 1999, the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The National Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and had followed the proceedings from the outset and attended the hearings.
Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the National Security Court.
45. At the same hearing, counsel for the applicant set out the applicant's substantive defence to the charges.
46. On 29 June 1999, after hearing the applicant's final representations, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of the organisation, whose aim was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed.
47. The applicant appealed on points of law against the above judgment, which, on account of the severity of the sentence, was in any event automatically subject to review by the Court of Cassation.
48. In a judgment adopted on 22 November 1999 and delivered on 25 November, the Court of Cassation upheld the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds, among other reasons.
49. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and president of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory that Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces, industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK) and a military wing (the ARNK), which operated under its control. Its income was derived mainly from “taxes”, “fines”, donations, subscriptions, and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groups. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his supporters to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action. As a result of the acts of violence carried out by the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians, 3,874 soldiers, 247 police officers and 1,225 village guards had died.
50. The Court of Cassation held that the PKK, founded and led by the applicant, represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order for that provision to apply, for the applicant – the founder and president of the PKK and the instigator of the acts of violence committed by that organisation – personally to have used a weapon.
51. In October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.
By Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.
By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant had been accused had been committed in peacetime and constituted terrorist acts.
The Nationalist Action Party (MHP – Milliyetçi Hareket Partisi), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002.
52. Before the Constitution was amended on 18 June 1999, Article 143 provided that national security courts were to be composed of a president, two other full members and two substitute members. The president of the national security court, one of the full members and one of the substitute members were to be civilian judges, and the other full member and substitute member were to be military judges.
53. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:
“... National security courts shall be composed of a president, two other full members, a substitute member, a public prosecutor and a sufficient number of assistant prosecutors.
The president, two full members, a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the Council of the National Legal Service, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable ...”
54. The necessary amendments concerning the appointment of the judges and public prosecutors were made to Law no. 2845 on national security courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the national security courts on the date of publication of the Law were to continue from the stage they had reached by that date.
“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”
55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released.
56. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons:
(1) who have been arrested or detained under conditions or in circumstances incompatible with the Constitution or statute;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial;
(7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...”
57. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, whether or not the latter has an authority to act. The version of Article 144 that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of 18 November 1992. It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings.
58. Protocol No. 6 to the Convention provides (Article 1): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides:
“A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”
Protocol No. 6 has been ratified by forty-four member States of the Council of Europe and signed by two others (Monaco and Russia).
Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads:
“The member States of the Council of Europe signatory hereto,
Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;
Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as 'the Convention');
Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;
Being resolved to take the final step in order to abolish the death penalty in all circumstances,
Have agreed as follows:
...”
Article 1 of Protocol No. 13 states:
“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”
Protocol No. 13 has been signed by forty-three member States of the Council of Europe and ratified by twenty-nine. It came into force on 1 July 2003 after the tenth ratification. Three member States of the Council of Europe (Armenia, Azerbaijan and Russia) have not yet signed it.
In its Opinion No. 233 (2002) on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, the Parliamentary Assembly of the Council of Europe referred to:
“2. ... its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death-penalty free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law.”
It further noted:
“5. The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions.”
59. Article X § 2 of the “Guidelines on human rights and the fight against terrorism”, issued by the Committee of Ministers of the Council of Europe on 11 July 2002, reads:
“Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.”
60. In a number of cases involving the application of the death penalty, the United Nations Human Rights Committee has observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant, that sets out the circumstances in which it is permissible to give effect to the death penalty.
In Reid v. Jamaica (no. 250/1987), the Committee stated as follows:
“[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of Article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that 'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.”
Similar observations were made by the Committee in Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40, [A/38/40], at 134 [1983]) and Wright v. Jamaica (Communication no. 349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]).
In an advisory opinion on the right to information on consular assistance in the framework of the guarantees of due process of law (Advisory Opinion OC-16/99 of 1 October 1999), the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure for Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated:
“134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that '[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to 'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it.
135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life.
136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.”
In Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (judgment of 21 June 2002), the Inter-American Court stated:
“Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake.” (paragraph 148)
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c
NON_VIOLATED_ARTICLES: 14
2
3
34
5
NON_VIOLATED_PARAGRAPHS: 2-1
5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-61412
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF BAARS v. NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant was born in 1928 and lives in Maaseik (Belgium).
10. On 15 February 1993 the applicant was arrested and taken into police custody (verzekering) on suspicion of forgery and of being an accessory to bribery of a public official. The public official concerned was a Mr B. The applicant was released from police custody on 19 February 1993. On 7 June 1995 the applicant was informed that the preliminary judicial investigation (gerechtelijk vooronderzoek) into the case had been closed.
11. By summons of 24 August 1995, the applicant was ordered to appear on 7 September 1995 before the Maastricht Regional Court (arrondissementsrechtbank) on charges of forgery committed together with others between 5 October 1991 and 5 November 1992.
12. Criminal proceedings had already been brought before the Maastricht Regional Court against Mr B. in relation to the same facts. Although both sets of criminal proceedings concerned the same facts, the criminal proceedings brought against Mr B. and the applicant were conducted separately.
13. In its judgment of 11 October 1995 in the applicant's case, the Maastricht Regional Court declared the prosecution inadmissible. It held that the judicial authorities had failed to deal with the applicant's case with the required diligence and that therefore the applicant's right to a trial within a reasonable time under Article 6 § 1 of the Convention had been violated. The public prosecutor lodged an appeal with the 's-Hertogenbosch Court of Appeal (gerechtshof), but informed the applicant on 17 August 1996, before the appeal proceedings had commenced, that this appeal had been withdrawn.
14. On 20 January 1997, in the course of the criminal proceedings on appeal in the case of Mr B., the applicant was heard as a witness before the 'sHertogenbosch Court of Appeal. In its judgment of 3 February 1997, the 'sHertogenbosch Court of Appeal convicted Mr B. of, inter alia, participating in forgery. It was found established that a receipt dated 9 October 1991 in relation to an alleged payment of NLG 7,414 by Mr B. to the applicant had been fraudulently written out in co-operation with Mr B.
15. In the meantime, on 18 November 1996, the applicant had lodged a request under Article 591a of the Code of Criminal Procedure (Wetboek van Strafvordering) for the reimbursement of costs and expenses incurred in the course of the criminal proceedings against him. His total claim amounted to NLG 104,708.80. On the same day he had lodged a request under Article 89 of the Code of Criminal Procedure for compensation for pecuniary and non-pecuniary damage caused by his having been kept in police custody. This claim amounted to NLG 205,000.
16. In its decision of 2 April 1997 in respect of the applicant's claim for costs and expenses incurred, the Maastricht Regional Court awarded the applicant an amount of NLG 114.60 for travel expenses and rejected his claims for the remainder. In a separate decision of the same date, the Maastricht Regional Court rejected the applicant's claim for compensation for the time spent in pre-trial detention. The applicant lodged appeals against both decisions with the 's-Hertogenbosch Court of Appeal.
17. In two separate decisions of 19 March 1998, the Court of Appeal rejected the applicant's appeals against the two decisions of 2 April 1997 in relation to his claim for costs and expenses and his claim for the time spent in pre-trial detention. Its reasoning in both decisions included the following:
“It appears from the case against the co-accused B., in which the Court of Appeal delivered its final judgment on 3 February 1997 convicting B. of, amongst other things, 'participating in forgery', that the document referred to under a. above is a receipt.
The Court of Appeal takes the view that this receipt was forged by the applicant together with B. who was then an alderman of Maastricht. Given the following circumstances:
a. It is stated on this receipt that it was drawn up on 9 October 1991, whereas B. has stated that he was not in the Netherlands on that date and the applicant, heard as a witness at the appeal hearing on 20 January 1997 in the criminal case against B., has stated that the receipt was drawn up and signed after the journey to Egypt, i.e. after 27 or 28 November 1991;
b. B. initially stated that he had received the sum allegedly paid to him by the applicant from his son, which his son confirmed;
c. B. stated, after he and his son had withdrawn these statements, that he had received that money from his mother-in-law;
d. B.'s mother-in-law stated unambiguously on 12 February 1993 that she had never given her son-in-law any money, nor given any into his safe-keeping;
e. all the expenses for the journey to Egypt billed by the ... travel agency were debited to the account of 'travel, accommodation and representation expenses' of Baars Contractors and Road Builders Ltd. (Aannemings- en wegenbouwmaatschappij Baars B.V.) – that is, as business expenses – and were only debited to the private current account of the applicant, on the applicant's instructions, on 21 January 1992,
the Court of Appeal finds in its judgment of 3 February 1997 that B. did not at any time, and in particular, did not on 9 October 1991 pay the sum of NLG 7,414 to the applicant.
Based on these circumstances, from which it follows that the applicant – if the prosecution department had not forfeited the right to prosecute by exceeding a reasonable time and [the prosecution] had not been declared inadmissible by the Regional Court for that reason – would in all likelihood (met grote mate van waarschijnlijkheid) have been convicted, the Court of Appeal finds no reasons in equity for awarding compensation, and it will therefore dismiss the appeal.”
18. At the time of the events complained of, the relevant provisions of the Code of Criminal Procedure provided as follows:
Article 89
“1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former suspect, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody, clinical observation or detention on remand (voorlopige hechtenis). Such damage may include non-pecuniary damage. ...”
Article 90
“1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so.
2. In the determination of the amount, the personal circumstances (levensomstandigheden) of the former suspect shall also be taken into account. ...”
Article 591
“1. Compensation shall be paid to the former suspect or his heirs out of State funds for costs borne by the former suspect under or pursuant to the provisions of the Act on Fees in Criminal Cases (Wet tarieven in strafzaken), in so far as the appropriation of these costs has served the investigation or has become devoid of purpose by the withdrawal of summonses or legal remedies by the public prosecution service (openbaar ministerie).
2. The amount of compensation shall be determined at the request of the former suspect or his heirs. This request must be submitted within three months following the termination of the case. The determination shall be made in the court with jurisdiction as to both facts and law before which, at the time of its termination, the case was or would have been prosecuted or else was last prosecuted, by the District Court judge or by the presiding judge as the case may be. The presiding judge may appoint one of the judges of the Court of Appeal or the Regional Court who have dealt with the case to do so. The District Court judge or the [Regional Court or Court of Appeal] judge shall issue an order of payment (bevelschrift van tenuitvoerlegging) for the amount of the compensation. ...”
Article 591a
“1. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs shall be granted compensation out of State funds for his travel and subsistence expenses incurred for the investigation and the examination of his case, calculated on the basis of the Act on Fees in Criminal Cases.
2. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs may be granted compensation out of State funds for the damage which he has actually suffered through loss of time as a result to the preliminary investigation and the examination of his case at the trial, as well as the costs of counsel. This will include compensation for the costs of counsel during police custody and detention on remand. Compensation for such costs may furthermore be granted when a case ends with the imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed. ...
4. Articles 90 and 591, paragraphs 2 to 5, shall apply by analogy. ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-57873
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF SILVA PONTES v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (six month period);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 7. Mr Virgílio da Silva Pontes, a Portuguese national born in 1917, was at the material time a bank employee. He lives in Évora.
8. On 12 November 1975 the car he was driving, in which Mr José Gonçalves Martins Moreira was a passenger, was in collision with another vehicle, belonging to Mr António dos Reis and driven by Mr Francisco Techana.
As a result of his injuries Mr Silva Pontes remained in hospital until 31 May 1976. He underwent several operations, including one in London in December 1978. Since the accident he has one leg 5cm shorter than the other and suffers from a 58% permanent disability, which has made it impossible for him to return to work.
9. The Public Prosecutor’s Department at the Évora Court of First Instance was notified of the accident by the local police and instituted criminal proceedings against both drivers for unintentionally causing physical injury. The file on the case was closed in 1976 following an amnesty under a legislative decree.
10. On 20 December 1977 Mr Silva Pontes and Mr Martins Moreira ("the plaintiffs") brought a civil action in the Évora Court of First Instance against Mr Techana, Mr dos Reis, the Gestetner company, on whose behalf the journey was made, and the insurance company "Imperio", whose liability was contractually limited to 200,000 escudos, ("the defendants"). The applicant sought compensation of 536,345 escudos, together with various amounts to be calculated during the enforcement proceedings (liquidação em execução de sentença) in respect of future expenses stemming from the accident.
Pursuant to Article 68 of the Road Traffic Code, the action fell to be heard under a summary procedure, which entailed shorter time-limits (Articles 783 to 792 of the Code of Civil Procedure and see the Guincho v. Portugal judgment of 10 July 1984, Series A no. 81, p. 8, para. 10).
11. On the conclusion of the preliminary proceedings and the hearing (for a detailed description of the proceedings see the Martins Moreira v. Portugal judgment of 26 October 1988, Series A no. 143, pp. 8-13, paras. 11-29), the Évora Court of First Instance gave judgment on 1 October 1982. It declared the action brought by Mr Silva Pontes and Mr Martins Moreira well-founded in part and ordered the defendants, jointly and severally, to pay the applicant compensation of 540,000 escudos - 140,000 for pecuniary damage, taking into account inflation, and 400,000 for non-pecuniary damage.
The court reserved for the subsequent enforcement proceedings, in accordance with Article 661 para. 2 of the Code of Civil Procedure (see paragraph 20 below), the question of the transport costs incurred by the plaintiffs to enable them to receive treatment after the accident.
12. On 13 October 1982 the applicant and Mr Martins Moreira appealed from that judgment to the Évora Court of Appeal. They did not dispute the facts as established by the first-instance court, but they complained that the sums awarded were inadequate.
13. Their appeals and that of the Gestetner company were declared admissible on 19 October 1982. On 30 May 1985 the Court of Appeal dismissed Mr Silva Pontes’s appeal, whereas it increased the sum awarded to his co-plaintiff.
14. On 13 June 1985 the defendant company, Gestetner, appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça). The plaintiffs lodged a "secondary" appeal ("recurso subordinado") with the same court on 11 July.
15. The Supreme Court gave judgment on 5 February 1987. Taking into account the permanent disability from which the plaintiffs suffered after the accident, it found in their favour on this point and awarded them additional compensation, to be determined in the enforcement proceedings, for the damage flowing from their reduced capacity to work and diminished ability to move, damage which it had not been possible to assess at first instance. Its judgment was notified to the applicant on 9 February.
16. On 28 October 1987, since the defendants refused to make a payment of their own accord, the applicant and Mr Martins Moreira asked the Évora court to enforce payment of the part of the damages that had already been calculated, "without prejudice to the remainder once the details necessary for its calculation have been established (Article 810 of the Code of Civil Procedure)" ("sem prejuizo de logo que recolhidos os necessários elementos, deduzirem liquidação da restante (arto 810o do C.P. Civil)"). They listed the attachable assets of the Gestetner company. However, a writ issued for service in Lisbon ordering the attachment of the goods in question proved impossible to execute; on 18 January 1988 the court found that the company was subject to insolvency proceedings.
17. On 23 December 1988 the applicant indicated to the judge at the Évora court the attachable assets of Mr dos Reis and asked him to make a formal request to the Vila Franca de Xira court for the seizure of assets situated within its jurisdiction.
On 4 January 1989 the same judge ordered the seizure of movable goods and a building situated within the jurisdiction of the Évora court; this took place on 8 March and 17 March 1989. He also made the formal request to the Vila Franca de Xira court.
18. On 30 March 1989 Mrs dos Reis, whose marriage was subject to the rules on community of property (comunhão geral de bens), requested the judge, in accordance with Article 825 para. 3 of the Code of Civil Procedure (see paragraph 20 below), to order the separation of her assets from those of her husband. She further sought to have the proceedings stayed until the couple’s property had been divided up.
19. The process of dividing up the property continued until 19 December 1989, on which date the applicant and Mr Martins Moreira concluded an out-of-court settlement with the defendants, pursuant to which Mr dos Reis paid to them 8,500,000 escudos as full compensation.
20. A translation of the main provisions of the Code of Civil Procedure referred to in this case is set out below:
(Correspondence between the right and the action)
"For each right, except as provided otherwise, there is a corresponding action whose purpose is to secure judicial recognition of the right in question or to enforce it, accompanied by measures to ensure the effectiveness of the action."
(Classification of actions according to their purpose)
"1. There are two types of actions: declaratory actions (declarativas) and enforcement actions (executivas).
2. Declaratory actions may have as their purpose (a) a mere assessment, (b) an order or (c) the creation of a right (constitutivas). They seek to obtain respectively:
(a) a mere declaration as to whether a right or fact exists;
(b) an order, presupposing or aimed at preventing the violation of a right, for the handing over of an article or the accomplishment of an act;
(c) the authorisation for a modification of an existing legal situation.
3. Enforcement actions are those by which the plaintiff seeks adequate measures to secure effective reparation for the right infringed."
(Limits of the action for an order)
"1. ...
2. If insufficient information is available to determine the nature or the amount [of the reparation], the court shall make its order in respect of a sum to be fixed in subsequent enforcement proceedings, without prejudice to its power to make an immediate order in respect of the part of the award already calculated."
Article 806
(Calculation by the court)
"1. Where the damages have not been calculated and their calculation is not merely a matter of simple arithmetic, the plaintiff must mention in his application instituting the enforcement proceedings the sums which he considers to be included in the damages owed and submit a final claim for a specific amount.
2. ..."
(Rules applicable where part of the damages has been calculated and the rest not)
"1. If part of the damages awarded has not been calculated, but the rest has, the order in respect of the calculated damages shall be immediately enforceable.
2. Where the enforcement proceedings concern solely the part of the award which has been calculated, the payment of the remaining damages, if it is sought while the enforcement proceedings are in progress, shall be requested by an interlocutory application; where an appeal is lodged, a certified copy of the enforcement decision must be attached together with, if the enforcement is founded on a judgment, the memorials and submissions of the parties."
(Attachment of half the assets of a couple)
"1. ...
2. ... the common property may be attached immediately provided that the creditor has included the goods in question in the list of attachable assets and has asked that the debtor’s spouse be summoned so that he or she may, if they wish, seek the division of the assets.
3. Within ten days of being summoned, the spouse must request the division of the property or submit a certificate proving that such division has already been requested in connection with other proceedings pending, failing which the attachment order shall be enforced in respect of the goods in question.
4. Once that request has been made or the relevant certificate lodged, enforcement shall be suspended until the division of the property has been effected ..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97792
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ARAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Ms Türkan Aras, is a Turkish national who was born in 1951 and lives in Bursa. She was represented before the Court by Mr E.H. Özdemir, Ms H. Günaydın and Ms N. Çengel, lawyers practising in Bursa. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 February 2000 the applicant brought a case before the Bursa Administrative Court.
On 16 November 2000 the Bursa Administrative Court dismissed the applicant's case.
On 26 March 2003 the Supreme Administrative Court upheld the judgment of the administrative court and on 26 October 2004 it rejected the applicant's rectification request. That decision was served on the applicant on 23 December 2004.


ITEMID: 001-90779
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ROMUALD KOZLOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1947 and lives in Mieścisko. He is a retired police officer who had formerly been employed in the Civil Militia (Milicja Obywatelska). In 1974 the applicant had been dismissed from service for a disciplinary offence. He was rehired by the Police in 1991. He retired in 1994.
5. On 27 September 1993 the applicant brought a civil action against the State Treasury for compensation on the grounds that in 1974 he had been unlawfully dismissed from his post at the Civil Militia and banned from working there until 1990. In addition the applicant claimed that he had not been hired by the new police services immediately after the change of the political regime, as he should have been, but only in April 1991.
6. The applicant sought compensation, which comprised damages for lost earnings from 1974 to 1990, for lost earnings and benefits from 1990 to 1991, and for alleged moral suffering due to the loss of employment.
7. On 9 November 1993 the Poznań Regional Court (Sąd Wojewódzki) rejected the claim on the ground that the civil court did not have jurisdiction over a dispute arising out of an employment relationship between a civil servant and the State (niedopuszczalność drogi sądowej).
8. As a result of an interlocutory appeal by the applicant, on an unspecified date the Poznań Court of Appeal (Sąd Apelacyjny) quashed that decision and remitted the case to the Poznań Regional Court.
9. On 10 August 1995 the Poznań Regional Court rejected the claim on the ground of lack of jurisdiction.
10. On 6 March 1996 the Poznań Court of Appeal quashed that decision and remitted the case indicating that the applicant's claim was of a civil character as it had arisen out of relations between a civil servant and the State which were of an administrative and legal character rather than from a bond of special trust and loyalty between the two.
11. On 4 November 1997 the Poznań Regional Court dismissed the applicant's claim.
12. On 25 February 1998 the Poznań Court of Appeal quashed the first-instance judgment in the part concerning the claim for compensation for lost earnings from 1990 to 1991 and remitted the case in this part to the lower court.
13. On 15 March 2001 the Poznań Regional Court dismissed the case. The applicant appealed.
14. It appears that on 25 April 2006 the appellate court issued an order to hold a hearing on 11 May 2006.
15. On 11 May 2006 the Poznań Court of Appeal delivered a judgment varying the judgment of the Poznań Regional Court of 15 March 2001 and ordering that the respondent pay the applicant a certain amount of compensation for lost earnings and benefits from 1990 to 1991.
A cassation appeal in the case was inadmissible in law.
16. On 29 April 2006 the applicant lodged a complaint about the unreasonable length of proceedings for compensation for lost earnings and benefits from 1990 to 1991 under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant submitted that his civil case had been pending for over twelve years.
17. On 26 July 2006 the Supreme Court discontinued the proceedings under the 2004 Act on the ground that the civil proceedings which were the subject of the complaint had meanwhile terminated.
18. The court observed that the main purpose of the complaint about the unreasonable length of proceedings was to accelerate the proceedings before a trial court. In circumstances where the proceedings which were the subject of the complaint had already terminated it was no longer necessary for the court to examine the complaint under the 2004 Act. The Supreme Court noted that the applicant had admittedly lodged his complaint under the 2004 Act while the civil proceedings in question were still pending. Nevertheless, the appellate hearing, which turned out to be final, had been scheduled prior to the applicant's complaint. That, in the Supreme Court's opinion, constituted a decisive argument for holding that the proceedings under the 2004 Act ought to be discontinued without a ruling on the merits.
19. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6