ITEMID: 001-87144
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SOLOMOU AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim rejected;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicants are Cypriot citizens, born in 1941, 1964, 1966, 1972, 1975, 1974 and 1971 respectively. They all reside in Paralimini, Cyprus.
8. The first applicant is the father of Solomos Solomou, a Greek Cypriot who died on 14 August 1996. The remaining applicants are the first applicant’s children and Solomos Solomou’s siblings. Solomos Solomou was not married and did not have any children.
9. The parties disagree as to the facts of the case.
10. On 14 August 1996 Solomos Solomou attended the funeral of a man who had been killed during a demonstration against the Turkish occupation of part of Cyprus. With other persons, he entered the UN buffer zone near the spot of the killing. A road passed the buffer zone at that point, leading to checkpoints guarded by the Cypriot National Guard on the southern side and by officials of the “Turkish Republic of Northern Cyprus” (“TRNC”) on the northern side. At the Turkish checkpoint there were two military sentry boxes, one on either side of the road leading into the occupied territory. There was also a Turkish flag on a pole situated just behind the Turkish sentry box. Near the sentry box there was a Turkish observation post on a two-storey house.
11. Notwithstanding the efforts of the United Nations Force in Cyprus (UNFICYP) and the United Nations Civil Police (UNCIVPOL), some demonstrators, including Solomos Solomou, entered the buffer zone. Solomos Solomou and a handful of other demonstrators ran to the Turkish side of the buffer zone, pursued by UNFICYP personnel. Solomos Solomou crossed the barbed wire at the Turkish ceasefire line and entered the occupied territory. He was pursued by a British soldier from UNFICYP, who attempted to pull him back.
12. Solomos Solomou broke free from the British soldier and attempted to climb the pole where the Turkish flag was flying. He was unarmed, was not acting in a manner which could have been considered threatening and was smoking a cigarette. While he was approximately three metres up the pole he was hit by five shots fired by at least three persons from the Turkish side and was fatally injured. He died almost instantly. The Turkish forces then opened fire in an indiscriminate manner, wounding two members of UNFICYP, a civilian in the buffer zone and a civilian who was standing behind the Cypriot Government’s ceasefire line.
13. In order to support their version of facts, the applicants produced the following evidence:
(a) five statements from eyewitnesses (Lance Bombardier Sanders, Garda O’Reilly, Sergeant Hayward, Sergeant Whiley and Garda Brennan – see paragraphs 15-20 below);
(b) a collection of photographs prepared by the Cyprus police (see paragraph 31 below);
(c) a video film of the shooting (see paragraph 31 below);
(d) a pathologist’s report (see paragraph 29 below).
14. As to the identity of the perpetrators, the evidence pointed, in particular, to three persons: a man in civilian clothes who fired from the balcony of the Turkish observation post; a man in uniform standing near the Turkish check point; and a third man in Turkish uniform who fired from a distance of approximately 10 metres.
15. Before the Court, the applicants produced a number of statements from eyewitnesses. The relevant parts of these statements read as follows.
16. Statement of Lance Bombardier Michael John Sanders from UNFICYP:
“... Between two and three hundred Greek-Cypriot demonstrators were in the buffer zone and approached our formation. These people were in an agitated state, abusive, were singing patriotic songs and several were carrying Greek flags. I also saw several television cameras amongst the crowd. ...
The demonstrators were becoming more agitated and were throwing missiles towards UN personnel and Turkish forces. ...
A short time later ... I saw a male person previously unknown to me, this person was between myself and the road and was jogging towards the Turkish-Cypriot fire line [TCFL]. This person was wearing black jeans and a black T shirt ... I also saw that this person was smoking.
This person appeared to be extremely agitated and was verbally abusing UN and Turkish troops. I saw Lance Bombardier Booth run after this person and heard Booth yell out to the person to ‘stop’ and also to ‘get back’. The male person ran to a Turkish sentry box on the western side of Dherynia road where he got in between the coiled barbed wire and the sentry box. Booth caught the male person at this stage and held him by the shirt with one hand. The male person then broke free of this hold and run around the eastern side of the sentry box where I briefly lost sight of him. I next saw this person attempting to climb on the top of the sentry box which was unsuccessful. I then turned my back and attempted to prevent another person from going towards the TCFL. I heard a shot fired and turned around and saw the same male person attempting to climb a flagpole on the Turkish side of the TCFL.
I saw a Turkish Police officer with a drawn handgun aimed at the male person standing on Dherynia road, I saw this officer walk towards the male person and saw several muzzle flashes from the gun and heard several shots, I saw a wound on the male person’s neck and a large amount of blood from that wound. The male person then slid down the flagpole where I lost sight of him. The same police officer was firing at this time.
A volley of shots then rang out from the Turkish side of the TCFL. I ran towards the cover of two UN barrels, about 40 to 50 metres south of my location. I lay prone next to the barrels with my head turned and facing the TCFL. At this time I saw numerous muzzle flashes emanating from one or two positions within a grove of trees on the western side of the Derenyia road behind the TCFL. ...
Several rounds hit the barrels and the ground close to us whilst the volley of shots continued. .. I ... saw that Hudson had sustained a wound to his buttock. At this time shots were still being fired from the Turkish side of the TCFL. I administered first aid.
The volley of shots ceased. I estimate that the volley of shots lasted between ten and twenty seconds ...
I approached the TCFL where I saw the male person who had attempted to climb the flagpole being carried under the TCFL coiled wire by members from IRCIVPOL. I saw that the person had sustained wounds on either side of the neck and chest.
The Greek-Cypriot crowd that were still in the buffer zone became very aggressive towards UN personnel claiming that they could not get the required medical assistance for the person who had been shot. The situation did not settle until an ambulance had arrived and conveyed the person from the scene.”
17. Statement of Garda Pauroic O’Reilly, from UNFICYP:
“... A large crowd of people had gathered at this stage and the crowd was hostile. ... At this stage the crowd of people were making efforts to break through the barrier. The crowd were also throwing stones and other missiles at the UN personnel. They were advised on several occasions not to enter the buffer zone. A number of people then broke through the barrier and stated they wanted to lay a wreath where Tassos Isaak had died. They were advised they could not.
At this time more people came through the barrier and started to head towards the ceasefire line. Efforts were been made to try and stop them but they continued onwards and would not listen to anybody. Some of the crowd carried iron bars, stones, sticks and flags. When the crowd got close to the Turkish position they started to throw stones at the Turkish position.
I would say there were 300 people in the buffer zone. A group of these people got to the murder scene and planted a Greek and Cyprus flag where he had been killed. They also removed the iron stakes which had marked the murder scene. The crowd [was] still hostile and angry.
They started to sing and shout insults towards the Turkish forces. After planting the wreath and flags they moved over towards the road which leads to the Turkish checkpoint. They were still throwing stones and chanting insults. One of the group broke through and run up to the barbed wire and planted a Greek flag on it. When the flag was planted, Turkish forces appeared from a group of trees. I removed this flag ... The Turkish forces members returned to the trees when the flag was removed. I was continually telling people not to enter the buffer zone as it was dangerous and to return behind the UN barrier.
I noticed a man break through the UN lines and run towards the Turkish forces checkpoint. A member of BRITCON was in pursuit and caught the man at the barrier, the soldier appeared to lose his grip and let this man go and he crossed into [the] Turkish occupied area. He started to climb the flagpole with the Turkish [flag] on it. I then saw a Turkish soldier with a pistol fire shots, maybe two towards this man.
I saw blood spurt from this man’s neck and he slumped on the pole and fell to the ground. There was a burst of firing as this man fell to the ground and I saw two other Turkish soldiers firing rifles. I was 10 to 15 metres approximately from the shooting. I then took cover and remained on the ground till the shooting stopped. When I got up after the shooting I noticed members of BRITCON attending one of the men who had been shot. ...
We removed the body from its position under the flagpole and passed it under the barrier to members of the UN and people in the crowd of demonstrators. The crowd took the body out of my view and placed it in a jeep ... When the body was passed under the barrier there was a Cyprus doctor there [who] started to render aid to this man who had been shot. ... There were no further incidents after the shooting ...”
18. Statement of Acting Station Sergeant Bruce Ihian Hayward, from UNFICYP:
“... I noticed that a group of Greek-Cypriot demonstrators, in my estimation to be in excess of 300, were at the CYPOL line attempting to break through. After a token effort by CYPOL, the demonstrators broke through the line with ease and approached the Southern barrier of the buffer zone. This barrier was manned by members of BRITCON and AUSCON. After numerous attempts to breach this line, the demonstrators were eventually successful and at the same time a large group of these demonstrators had run around the Western flank of the UN members and ran into the buffer zone. I saw that the majority of these demonstrators were carrying pieces of wood, metal and other objects.
... On numerous occasions, I was spat upon, verbally abused and pushed out of the way by the Greek-Cypriot demonstrators. In one instance I was threatened by a male demonstrator carrying a 10cm bladed knife, whom I have no doubt would have used it if I had not relinquished my position. At this stage, I saw a red flare overhead that had been fired from a southerly direction towards the Turkish side. When the demonstrators reached an area about 30 metres from the Turkish lines, they commenced to throw a barrage of rocks at the Turkish soldiers and police and at a building situated on the eastern side of the entrance barrier. All attempts to negotiate with the demonstrators by the UN personnel within the buffer zone failed both verbally and physically.
I was positioned at an area approximately 20 metres’ distance from the northern entrance barrier and 10 metres from the barbed wire barrier on the northern extremity of the buffer zone, when I saw a male demonstrator wearing black trousers and a black T-shirt with white writing on the front, run towards the entrance barrier of the Turkish-Cypriot side, closely pursued by a member of BRITCON.
As the male person attempted to get between the barbed wire and a guard box on the western side of the entrance, a member of BRITCON grabbed hold of his shirt and attempted to pull him back. However, the BRITCON member was struck on his helmet by a rock thrown by one of the demonstrators and as a result, released his hold of the male demonstrator.
The male demonstrator then attempted to climb onto the guard box but was unable to, so then started to climb a flagpole flying the Turkish flag which was situated on the western side of the entrance, several metres inside Turkish-Cypriot territory. I saw the male climb about three metres up the flagpole when I noticed a Turkish Army officer remove his pistol and commence shooting towards the male person on the flagpole. This Turkish officer was standing in the middle of the road facing in a southerly direction about 30 metres distance from the buffer zone barrier. I then saw two other Turkish army soldiers step out of some bushes on the western side of the barrier, about 25 metres away, and started firing their rifles in the direction of the male person on the flagpole. At this stage I saw an amount of blood appear on the male person’s neck just below the jaw line on the left hand side. The male then appeared to slide back down the flagpole onto the ground. I remember seeing the Turkish army officer who had fired his pistol running off into some bushes on the eastern side.
At this stage, myself and other UN personnel immediately lay down on the ground. I believe I heard continual gunfire for a period of between 10 and 15 seconds and on several occasions, heard bullets passing over my head. At no time did I hear bullets being fired from the direction of the Greek-Cypriot demonstrators, nor did I see any of the demonstrators with firearms. The majority of the demonstrators then ran back towards the southern barrier of the buffer zone. When the gunfire had ceased, I saw that the Turkish army officers and police had left their original locations and could not be sighted.
Shortly after, I saw IRCIVPOL members ... enter through the Turkish barrier and remove the body of the male person whom I had seen climbing the flagpole and had been subsequently shot. ...
... I was made aware that two BRITCON members had sustained gunshot wounds.”
19. Statement of Sergeant Geoffrey William Whiley, from UNFICYP:
“... After numerous attempts to breach this line [the UN barriers], the demonstrators were eventually successful and at the same time a large group of these demonstrators, numbering approximately 100 persons ran around the western flank of the UN members and into the buffer zone. I saw that many of these demonstrators were carrying pieces of wood, metal stakes, rocks and other objects. There were no visible firearms amongst the demonstrators.
All UN members including all CIVPOL continually formed lines in an attempt to prevent the demonstrators from reaching the northern side of the buffer zone ... The Greek-Cypriot demonstrators were extremely agitated and violent towards UN members. I saw several UN soldiers get hit by rocks thrown from south to our position. The demonstrators then forced their way to a position about 15 metres south of the Turkish barbed wire barriers. There two flags were planted using a small rock cairn, apparently as a memorial. The demonstrators paused briefly at this point singing and shouting before moving generally back towards the roadway and continuing their yelling and rock throwing at the Turkish positions. There were many rocks thrown at Turkish positions which hit the buildings just north of the Turkish forces barriers.
... The UN soldiers and CIVPOL made many attempts to push the demonstrators back ..., all to no avail. I saw a red flare come from the demonstration group, fired into the sky over Turkish positions.
I was standing about 10 metres to the south of the Turkish barbed wire demarcation, approximately 15 metres to the west of the roadway. The roadway passes to the north between two guard posts located on either side of the roadway. There was a barbed wire barrier between the two guard posts. Beyond this position there were no further barriers to the Turkish positions.
I saw a demonstrator who was wearing a black shirt run towards the guard house located at the Turkish checkpoint. A BRITCON UN member chased this person. The demonstrator made his way through a gap between the guard house and [the] barbed wire gate. The BRITCON soldier grabbed hold of the demonstrator; however [he] lost his grip. The demonstrator ran past the barbed wire gate and was briefly lost from my sight. I then had a partial view of the demonstrator as he stood beside a flagpole located to the north of the guardhouse on the western side of the roadway. I saw a Turkish forces soldier approach from bushes further to the north and walk to a position about 10 metres from the flagpole. I saw he was carrying a firearm, which appeared to be some form of assault rifle. I saw him drop to one knee and raise his rifle to his right shoulder. I heard two spaced shots as this was happening.
At this point the demonstrator had begun to climb up the flagpole and I had a clear view of him as he climbed higher. He did not appear to react to the first two shots as he continued to climb. I then heard a third shot and saw the demonstrator fall from the flagpole to the ground. I turned away at this point to look for some cover to move to. As I did this I heard a volley of rapid fire shots and I moved a few steps away from the firing line to a depression in the ground where I sought cover. After the firing ceased I stood up and moved back to the roadway area, I saw a BRITCON soldier lying on the ground and being attended by several other BRITCON soldiers. Myself and other UN soldiers began forcing media persons away to clear the area of the casualty. A short time later UN ambulances arrived.
... I saw the body of the wounded demonstrator taken by demonstrators who gradually moved off to the south.”
20. Statement of Garda Fidelma Brennan, from UNFICYP:
“... I saw approximately 25 uniformed Turkish police and 50 Turkish riot police in the area around the Turkish checkpoint. I also saw that these troops were well armed.
[At] about 13h56 I saw between thirty and forty demonstrators moving towards the Greek National Guard checkpoint on Dherynia Road. ... I saw no Cyprus police in that area.
... This group was joined by other demonstrators. As the number of demonstrators grew they eventually got past UN personnel at that location.
... [At] about 14h05 I saw the Greek-Cypriot demonstrators throw rocks towards the Turkish forces. The demonstrators at this stage were on the southern side of UN personnel deployed in crowd control formation. The demonstrators were throwing stones that were landing in the building TK34. UN soldiers and UNICIVPOL members were making every effort to prevent demonstrators getting past their position.
At this time I was advised by Major Ilerici from the Turkish forces that if demonstrators went past the Turkish ceasefire line they would be shot. I attempted to relay this information but could not do so as I could not use my portable radio. I believe the reason for this was interference from Cyprus police channels.
I saw a man I would describe as fit and well built run towards a sentry box at the Turkish checkpoint on the right hand side of Dherynia road. This man attempted to climb the roof of the sentry box and then got down. I then saw this same man run towards the flagpole, I took cover and heard a shot fired. A short time later I heard a volley of shots fired. I made a note that I heard shots fired at 14h25. After the shots had ceased I looked down to the flagpole area, I saw the same man lying on the ground with his head pointing towards the Greek national guard checkpoint, he was facing towards UN OP 142.
After 14h30 I saw IRCIVPOL members ... remove the body of the man.”
21. According to the Government, the chain of events which led to the death of Solomos Solomou might be described as follows.
(a) On 11 and 14 August 1996 serious disturbances occurred in the buffer zone.
(b) The Greek-Cypriot Motorcycle Federation, with the support of the Greek-Cypriot authorities, had organised a rally which was meant to cross the ceasefire line and perform an illegal entry into the territory of the “TRNC”. The organisers had used abusive and degrading language and expressed violent intentions against the Turkish people in general.
(c) These acts, accompanied by media coverage, led to tensions on both sides of the border.
(d) The Turkish-Cypriot side repeatedly invited the Greek-Cypriot leadership to persuade the organisers of the rally to abandon the idea of illegally trespassing across the border and to enter the “TRNC” through the official entry point. These appeals were ignored.
(e) The “TRNC” announced that it would stop such a provocative and aggressive action in order to protect its citizens.
(f) The UN Deputy Special Representative in Cyprus and the UN Secretary-General called for respect for the integrity of the buffer zone. However, UNFICYP did not have sufficient personnel or means to effectively control and prevent large-scale demonstrations.
(g) On 11 August 1996 thousands of Greek-Cypriot demonstrators, escorted by the Greek-Cypriot police, arrived at the Greek-Cypriot ceasefire line in Dherynia. The Greek-Cypriot police deliberately left the checkpoint unguarded in order to allow the demonstrators to enter the UN buffer zone. The situation developed into a violent riot when the demonstrators entered Turkish-Cypriot territory. They became involved in clashes with TurkishCypriot counter-demonstrators. Hundreds of people were injured and a Greek Cypriot died.
(h) The funeral of that person took place on 14 August 1996, in a climate of anti-Turkish feeling. The same day, at about 10 a.m., hundreds of Greek-Cypriot demonstrators once again entered the buffer zone and approached the ceasefire line.
(i) In order to avoid further clashes, the “TRNC” authorities prevented counter-demonstrators from approaching the area. They also took all necessary measures to prevent forcible entry into their territory.
(j) The Greek-Cypriot demonstrators carried the Greek flag and started throwing missiles into the Turkish-Cypriot area. As a precautionary measure, a Turkish-Cypriot police team was positioned, out of sight, in the vicinity of the ceasefire line.
(k) The Greek-Cypriot demonstration developed into a riot and the demonstrators started rushing towards the Turkish-Cypriot ceasefire line. One of them unsuccessfully tried to run towards a sentry post, then started to climb the flagpole marking the Turkish-Cypriot ceasefire line. The other demonstrators threw stones, bottles, iron rods and other missiles. According to eyewitnesses, shots were also fired from the Greek-Cypriot side and at least one demonstrator posing as a cameraman was seen with an automatic pistol firing shots. At this stage, the Turkish-Cypriot police team came out from their position and fired in the air in order to stop the advance of the demonstrators and to prevent the situation getting out of control. There was then a crossfire as shots were fired from the Greek-Cypriot side.
(l) Solomos Solomou was injured during the crossfire and was immediately picked up by UN personnel. Greek-Cypriot demonstrators prevented the UN from bringing an ambulance to the scene, thus hindering any chance of his survival. After having waited in the buffer zone, Mr Solomou was eventually picked up by a jeep and taken across to the Greek-Cypriot side. He later died from his injuries.
22. The Government of Cyprus observed that the Cypriot police had conducted an in-depth investigation into the circumstances surrounding the killing of Solomos Solomou, in cooperation with UNFICYP. Having regard to the results of these investigations, the facts of the case can be described as follows.
23. On 11 August 1996 demonstrations occurred in the Dherynia area of Cyprus. Many of the demonstrators were Greek-Cypriot motorcyclists. At one of those demonstrations, which took place inside the UN buffer zone, a certain Anastasios Isaak was bludgeoned to death by persons who had entered the buffer zone in circumstances making Turkey responsible for that death.
24. The funeral of Anastasios Isaak took place on 14 August 1996 at 11 a.m. A crowd of 3,000 people attended the funeral, including about 100 motorcyclists. At about 1.47 p.m. around 700 demonstrators came into the southern side of the buffer zone area, following the funeral service. A group of demonstrators sought to enter the buffer zone in order to lay a wreath at the site of the killing, but was refused permission by the UN forces. The group forced its way past the UN barrier and went into the buffer zone near the site of Mr Isaak’s death. Around 200 to 400 demonstrators entered the buffer zone, but almost all were contained by the security forces. Some demonstrators had sticks or iron bars; one was seen to have a knife. No demonstrator had a firearm. Stones were thrown at the Turkish forces.
25. Solomos Solomou, who was unarmed and not carrying a stick, bar or other implement, broke through a line of UN personnel and ran towards the Turkish ceasefire line. He was chased by a member of UNFICYP, Mr Booth, who tried to prevent him from going further. Mr Solomou escaped Mr Booth’s grip. He then ran around the sentry box inside the Turkish ceasefire line. He started to climb a pole holding the Turkish flag which was positioned six metres behind the sentry box. When he was about 3 metres up the pole (less than one-quarter of the way to the top) he was shot and fell to the ground. He was hit by five bullets and died almost instantaneously.
26. The Turkish forces then opened fire indiscriminately. Four other persons (two UN personnel and two civilians) were wounded. From the balcony of the Turkish observation post (a two-storey house), Lieutenant General Hasan Kundakci (the Commander of the Turkish occupation forces), Major General Mehmet Karli (Commander of the 28th Turkish Division) and Attila Sav (the Chief of Police) were surveying the operations. Next to them was Kenan Akin, a minister in the “TRNC” administration.
27. According to the Cypriot Government, at least three persons from the Turkish side (two of whom were wearing Turkish military uniforms) fired directly at Solomos Solomou. Even if it was not possible to say who inflicted the fatal wound, each of them intended to kill him.
28. In support of their version of facts, the Government of Cyprus produced the following evidence: a pathological report, a ballistic report, photographs, a videotape and witnesses’ statements. Their content may be summarised as follows.
29. A forensic investigation established that: (a) Solomos Solomou had been struck by five bullets; (b) one bullet had entered his head behind the right ear, and exited to the left of the nose. The position of the firearm must have been above ground level at a point higher that the victim’s head and behind the victim. This was not the fatal bullet; (c) one bullet had entered the deceased’s body behind the left nipple and had come to rest by the right scapula. This wound was the direct cause of death; (d) another bullet had been recovered from below the skin of the middle of the back; it had entered by the upper left buttock; and (e) bullet fragments had been recovered from the right thigh. The forensic doctors came to the conclusion that the bullets had been fired with an intention to kill, that the first wound had been inflicted while the victim was climbing the flagpole and that the other bullet had hit him while he was falling or while he was lying on the ground.
30. The bullets and fragments recovered from Mr Solomou’s body were of 9 mm P calibre. This type of bullet is used by the Turkish-Cypriot forces and by the Turkish military forces.
31. One photograph showed Mr Solomou starting to climb the pole and with one foot still on the ground. A man in Turkish uniform (Mr Erdal Emanet, who was the Commander of the Special Forces of the Turkish-Cypriot police) was aiming his pistol at him. Other photographs and extracts from the videotape showed Mr Emanet levelling his pistol, cocking it and aiming it at Mr Solomou. Another man in civilian clothes (Mr Kenan Akin) was on the balcony of the Turkish observation post and had not yet drawn a weapon. In another picture, Mr Solomou had climbed about one metre up the flagpole and Mr Akin was aiming a pistol directly at him. The videotape showed a uniformed soldier, whose identity was not established, shooting directly at Mr Solomou with an automatic weapon (a rifle).
32. Numerous eyewitnesses (Nectarios Zalistis, Tasos Anastasiou, Floros Constanti and Kyriakis Pomilorides) declared that they had seen Mr Akin shooting at Mr Solomou from the balcony of the observation post. Other witnesses (Lance Bombardier Michael Sanders, Garda Pauroic O’Reilly, Garda Michael Fitzpatrick, Acting Sergeant Hayward, Photis Photiou, Nectarios Zalistis and Kyriakos Pomilorides) identified Mr Emanet as one of the shooters. The soldier with an automatic rifle was seen or heard firing at Mr Solomou by Sergeant Geoffrey Whiley, Acting Sergeant Brian Hayward, Georgios Aresti and Costas Charalambous.
33. The Government of Cyprus underlined that no witness had reported any warning being issued to the demonstrators by the Turkish forces either verbally or by warning shots. Nor was any warning apparent from the filmed footage.
34. On 26 August 1996, AUSTCIVPOL sought the assistance of the Turkish forces in providing information about the incident involving the killing of Solomos Solomou. A list of detailed questions was forwarded to the “TRNC” authorities. The Government of Cyprus were not aware of any answer given to these questions or of any investigation carried out by the “TNRC” authorities. The latter had denied access to the crime scene.
35. The Government of Cyprus furthermore drew the Court’s attention to the following statements and press articles.
At the beginning of August 1996, Lieutenant-General Kundakci (the Commander in Chief of the Turkish Forces in Cyprus) declared to a local newspaper:
“No one can cross our borders by motorcycle. Those who try pay the price. What is necessary shall be done.
Without permission it is not possible to cross the TRNC borders, either by motorcycles or by any other means, and if they come, of course we will not welcome them with flowers. If they want to try let them do so. Those who try pay the price.”
On 7 August 1996 the Turkish-Cypriot newspaper Kibris reported that Turkish military sources had said:
“Our basic aim is to deter the Greek Cypriots from resorting to such provocations. However, if the Greek Cypriots insist on the action, then we will teach them a lesson so that they will never ever attempt such a thing again.”
On 13 August 1996 the Turkish-Cypriot newspaper Halkin Sesi published the following declaration by Mrs Çiller, the Turkish Foreign Minister and Acting Prime Minister:
“If an attempt is made not to recognise the TRNC borders, we will do whatever is necessary. Those who attempt to cross over the border will be immediately pushed back and the legitimacy of our borders shall be re-established again.”
On 15 August 1996 the Turkish-Cypriot newspaper Yeni Demokrat wrote:
“Lieutenant-General Kundakci has said that the Turkish side did not issue any invitation to anybody, and that it had no eyes on others’ territory. Against this, stressed Lieutenant-General Kundakci, ‘we do not let anybody with bad intentions enter our territory. Those who force their way in get their punishment. Everybody should know this.”
On the same day, a recording by Mrs Çiller was played on Turkish television. It contained, inter alia, the following passage:
“The world should know that we will not allow anyone to raise his hand against the flag. We will break the hands that are raised against the flag. For us, this is a matter of honour.”
36. The Government of Cyprus also underlined the following passages of UNFICYP’s report on the events surrounding the demonstration of 14 August 1996:
“As a result of the indiscriminate shooting by Turkish or Turkish-Cypriot soldiers, two British UNFICYP soldiers were shot from behind and two Greek-Cypriot civilians were also hit by gunfire. Three were inside the buffer zone and one of the civilians, who sustained a serious gun shot wound to the abdomen, was standing outside the UN buffer zone close to the National Guard checkpoint.
The Force Commander of UNFICYP accompanied by the Chief of Staff met with the Commander of the Turkish Forces in Cyprus late in the afternoon of 14 August to strongly protest the totally unwarranted use of force by Turkish or Turkish-Cypriot military personnel which resulted in the killing of Solomou and in injuries to two peace keepers and two civilians.”
VIOLATED_ARTICLES: 2


ITEMID: 001-97847
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ZUREJ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Vojko Žurej, is a Slovenian national who was born in 1960 and lives in Dramlje. He was represented before the Court by Ms M. Končan Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 31 December 2001 an insurance company (Zavarovalnica Triglav d.d.) instituted proceedings against the applicant.
4. On 1 February 2006 the Celje District Court (Okrožno sodišče v Celju) gave a first-instance judgment. An appeal was lodged.
5. On 1 February 2007 the Celje Higher Court (Višje sodišče v Celju) gave a judgment upholding the first-instance court’s judgment. The applicant lodged an appeal on points of law.
6. On 22 June 2009 the applicant lodged a supervisory appeal under the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) with the Supreme Court. The supervisory appeal was rejected.
7. On 19 August 2009 the applicant lodged a motion for deadline.
The proceedings are still pending before the Supreme Court.
8. On 15 December 1994 the applicant instituted proceedings against an insurance company (Zavarovalnica Triglav d.d.) seeking compensation for damages occurred at the working place.
9. On 25 May 1996 the Celje District Court issued a judgment. The applicant appealed.
10. On 13 February 1997 the Celje Higher Court issued a decision and remitted the case for re-examination.
11. On 7 December 1998 a first-instance judgment was issued. The applicant appealed.
12. On 16 December 2001 the Celje Higher Court upheld the first-instance court’s judgment. The applicant lodged an appeal on points of law.
13. On 8 May 2001 the Supreme Court gave a judgment. The judgment was served on the applicant on 8 June 2001.
14. For relevant domestic law see the Court’s decision Žunič v. Slovenia (no. 24342/04, 18 October 2007).
15. In addition, the Amendments to the Act on the Protection of the Right to a Trial without undue Delay (Zakon o spremembah in dopolnitvah Zakona o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 58/2009) came into effect on 11 August 2009. Section 8 provides that a just satisfaction claim can be lodged after the termination of the proceedings before the Supreme Court, provided that the acceleratory remedies, that is supervisory appeal and a motion for a deadline, have been exhausted.


ITEMID: 001-94768
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: AYKUT AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicants, Mr Ahmet Siyavuş Ataç Aykut, Mr Feridun Gürbüz Aykut and Ms İstiklal Türkan Semercioğlu, were Turkish nationals who lived in Istanbul. By a letter of 2 July 2008 the Court was informed that Mr Feridun Gürbüz Aykut had died on 23 May 2006 and that his heirs, Ms Altan Aykut, Ms Mihriban Tulu Kortel (Aykut) and Ms Tuba Hacer Öztürk (Aykut), wished to pursue his application. 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.
In 1999 the Municipality of Eyüp (“the Municipality”) expropriated a plot of land belonging to the applicants (block no. 34, plot no. 9) in Eyüp, Istanbul.
On 3 December 1999 the applicants brought an action before the Eyüp Civil Court of First Instance for additional compensation.
On 19 October 2000 the Eyüp Civil Court awarded the applicants additional compensation of 135,252,529,000 Turkish liras (TRL) plus interest at the statutory rate, running from 3 December 1999.
On 20 February 2001 the Court of Cassation upheld the judgment of the first-instance court.
The administration subsequently requested rectification of the decision of the Court of Cassation.
On 18 May 2001 the Court of Cassation dismissed the administration’s rectification request.
On 19 November 2002 the applicants signed a document of discharge (ibraname; “the discharge”) indicating that they had received three separate cheques from the Municipality in the amounts of TRL 75,752,483,879, TRL 4,130,202,850 and TRL 300,000,000,000 respectively as additional expropriation compensation, and releasing the Municipality from all liability in relation to the compensation claim. The applicants thereby stated that they had no outstanding rights or claims against the Municipality which might become the subject matter of further legal or enforcement proceedings.
On 16 December 2002 the applicants collected the cheque of TRL 300,000,000,000.
The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (9 July 1997, Reports of Judgments and Decisions 1997IV); Aka v. Turkey (23 September 1998, Reports 1998VI); and Gaganuş and Others v. Turkey (no. 39335/98, §§ 1519, 5 June 2001).


ITEMID: 001-91090
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TURNER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1954 and lives in Liverpool.
6. His wife died on 3 February 2001 leaving dependent children. His claim for widows’ benefits under the new scheme was made on 30 April 2001 and was rejected on 9 May 2001 on the ground that his wife died before 9 April 2001. The applicant applied for reconsideration and on 30 May 2001 he was informed that the decision remained unchanged. This decision was confirmed by an appeal tribunal on 20 October 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
7. On 6 June 2001 the applicant was awarded Widowed Parent’s Allowance from and including 10 April 2001.
8. The relevant domestic law and practice are described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-89859
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SVERSHOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (ratione personae);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1985 and is currently detained in prison no.105, the Kherson region.
6. On 19 January 2002 the applicant, a minor at the time, was arrested on suspicion of having killed his grandmother and robbed her apartment together with a Mr G.
7. On 22 January 2002 the applicant was formally charged with murder and aggravated robbery.
8. The Kerch Town Court (Керченський міський суд – “the Kerch Court”) held a hearing on 22 January 2002, in the presence of the applicant and his lawyer. It ordered the applicant’s pre-trial detention on the ground that he might abscond if released because he was suspected of having committed serious crimes.
9. On 15 March 2002 the Kerch Court extended the applicant’s pre-trial detention for up to a total of four months. It found that there was sufficient evidence on which to found a reasonable suspicion that the applicant had committed serious offences.
10. In April 2002 the applicant’s lawyer requested the investigator to replace the applicant’s detention with a less restrictive preventive measure. By a ruling of 28 April 2002, the request was rejected on the ground that the applicant was suspected of having committed serious crimes and might prevent the establishment of the truth in the case.
11. On 13 May 2002 the Kerch Prosecutor (Прокурор міста Керч) sent the case file, together with the bill of indictment, to the Kerch Court for the trial proceedings.
12. On 27 May 2002 the judge of the Kerch Court held a committal hearing at which the applicant’s lawyer lodged a new request for release, stating that the applicant was a minor; had no previous convictions; could not obstruct the collection of evidence or destroy it; had positive aspects to his character; permanently resided in Kerch; did not – and could not – try to abscond due to the lack of resources or relatives in other parts of the country; and, lastly, that there was no indication that he would reoffend if released. The Kerch Court committed the applicant for trial on charges of murder and aggravated robbery. In its committal order the court also rejected the applicant’s request for release and extended his detention during the trial proceedings without giving any grounds.
13. On 23 August 2002 the applicant’s lawyer lodged another request with the Kerch Court for the applicant’s release on the same grounds as the one of 27 May 2002. According to the Government, it was considered and rejected on the same day.
14. On 16 October 2002 the Kerch Court referred the case back for additional pre-trial investigation. The court also rejected the applicant’s request for release, noting that he was suspected of having committed serious crimes and there were no grounds for applying a less restrictive preventive measure to him.
15. In December 2002 the applicant’s lawyer lodged two requests with the investigator for the applicant’s release. Both requests were rejected on the ground that the applicant was suspected of having committed serious crimes and might prevent the establishment of the truth in the case.
16. On 28 December 2002 the Crimea Court of Appeal (“the Crimea Court”) considered the investigator’s request for the applicant’s further detention. The court decided that further investigative actions were required in respect of the applicant and his co-accused and, given that the applicant was accused of serious crimes, there were sufficient grounds for his further detention. The court accordingly extended the applicant’s detention to 10 March 2003.
17. On 23 February 2003 the applicant’s lawyer submitted a request to the investigator for the applicant’s release.
18. On 24 February 2003 the request was rejected on the ground that the applicant was suspected of having committed serious crimes and might prevent the establishment of the truth in the case.
19. In March 2003 the investigation was completed and the case was referred to the Kerch Court.
20. On 27 March 2003 the applicant’s lawyer requested the Crimea Court to replace the applicant’s detention with an obligation not to abscond as there was not enough evidence on which to found a reasonable suspicion that the applicant had committed a crime. He also reiterated the arguments in support of the applicant’s release set out in his previous requests of 27 May and 23 August 2002 (see paragraphs 12 and 13 above).
21. At a committal hearing of 3 April 2003, the Crimea Court rejected the request on the ground that the reasonableness of the suspicion could be verified only during the trial proceedings. It committed the applicant for trial on charges of aggravated murder and aggravated robbery and maintained his detention during the trial proceedings, noting that there were no grounds for replacing the applicant’s detention by a different preventive measure.
22. On 7 May 2003 the Crimea Court convicted the applicant and Mr G. of aggravated murder and aggravated robbery and sentenced them to thirteen and ten years’ imprisonment respectively.
23. On 2 October 2003 the Supreme Court quashed that judgment and remitted the case to the Kerch Prosecutor’s Office for further investigation. The court did not make any ruling on the applicant’s further detention.
24. In December 2003 the applicant’s lawyer submitted a request to the investigator for the applicant’s release. The request was rejected on the ground that the applicant was suspected of having committed serious crimes.
25. On 12 January 2004 the Crimea Court committed the applicant for trial. The court further maintained the applicant’s detention without giving any grounds.
26. On 12 January 2004 the applicant lodged a request for his release with the Crimea Court, based on the same arguments as in his requests of 27 May and 23 August 2002 and 27 March 2003. His request was rejected by the Crimea Court on the same day without any reasons.
27. On 6 February 2004 the Crimea Court found the applicant and Mr G. guilty of aggravated murder and aggravated robbery and sentenced them to thirteen and ten years’ imprisonment respectively.
28. On 13 May 2004 the Supreme Court upheld the judgment of 6 February 2004.
29. On 20 May 2002 the applicant’s lawyer filed a request for the applicant’s release with the Governor of the Simferopol Pre-Trial Detention Centre (the Simferopol SIZO). The request was based on the argument that the term of the applicant’s detention pending trial, as authorised by the Kerch Court in the detention order of 15 March 2002, had expired on 19 May 2002 (four months after his arrest) and that no new decision had been taken extending this term.
30. In a letter of 30 May 2002 the Governor of the Simferopol SIZO informed the applicant’s lawyer that the applicant had been moved to the Kerch temporary detention centre (“the Kerch ITU”) on 20 May 2002. He further stated – referring to Article 156 of the Code of Criminal Procedure – that in any event there were no grounds for the applicant’s release as the time-limit referred to in the above request was applicable only to pretrial proceedings. However, as from 13 May 2002, the date when the bill of indictment was sent to the court (see paragraph 11 above), the applicant’s detention had been classified as detention during trial. Consequently, the applicant could not be released on the ground of the expiry of the four-month time-limit referred to.
31. On 29 May 2002 the applicant lodged two administrative complaints: one with the Simferopol Zheleznodorozhny District Court against the Simferopol SIZO and the other with the Kerch Court against the Kerch ITU in respect of his allegedly unlawful detention after 19 May 2002.
32. On 1 October 2002 the Simferopol Zheleznodorozhny District Court rejected the applicant’s administrative complaint against the administration of the Simferopol SIZO about his allegedly unlawful detention after 19 May 2002 on the ground that a complaint of that nature should be considered in the criminal proceedings and not in administrative proceedings.
33. On 26 March 2003 the Crimea Court upheld the decision of the first-instance court.
34. On 26 September 2007 the Higher Administrative Court quashed the decisions of the lower courts and remitted the case to the first-instance court for consideration on the merits on the ground that criminal procedural law did not provide for the possibility of challenging the failure of a prison administration to release a suspect or accused.
35. The proceedings are still pending.
36. On 10 October 2003 the Kerch Court considered the administrative complaint brought by the applicant against the Kerch Police Department for being held in their temporary detention centre (“the Kerch ITU”) from 20 to 27 May 2002. The court found in part for the applicant, having established that his detention there without a valid court order was contrary to Article 29 of the Constitution and Article 5 of the Convention and therefore unlawful. The court rejected the applicant’s request for release, however, stating that at the time of consideration of the case the applicant’s detention was maintained by a court order and that it could not decide the issue in civil (administrative) proceedings.
37. On 12 July 2004 the Crimea Court set aside the decision of the first-instance court on the ground that Article 156 of the Code of Criminal Procedure obliged the head of a penitentiary institution to free a detainee only if no decision on continued detention was made during the pre-trial investigation. It further noted that:
“The law does not require the head of the pre-trial detention facility to free an accused in respect of whom the term of pre-trial detention has expired but no decision of the court has arrived imposing a preventive measure in the form of detention during the trial proceedings in the case.”
The court concluded that the administration of the Kerch ITU could act only within its competence and had done so. The court further noted that the reference by the first-instance court to a violation of Article 5 of the Convention was unsubstantiated and that the applicant’s detention between 20 and 27 May had not been contrary to Article 29 of the Constitution and Article 5 of the Convention.
38. On 30 November 2007 the Zaporizhzhzya Court of Appeal, acting as a court of cassation, upheld the decision of the Crimea Court.
39. The relevant provision of the Constitution reads as follows:
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody.
Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.
Everyone who has been detained has the right to challenge his or her detention in court at any time.
Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
40. The pertinent provisions of the Code provide, in so far as relevant, as follows:
“Detention during pre-trial investigation shall not exceed two months.
In cases in which it is impossible to complete the investigation of the case within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure, the period of detention may be extended:
(1) up to four months - ...by a judge of the court which issued the order for the application of the preventive measure;
(2) to nine months - in cases of serious and especially serious crimes ... by a judge of an appellate court;
(3) to eighteen months - in particularly complex cases involving especially serious crimes ... by a judge of the Supreme Court of Ukraine;...
...The period of detention during pre-trial investigations shall expire on the day the court receives the case file; however, the time taken by the accused and his representatives to study the criminal case file shall not be included in the calculation of the period of detention...
...In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article.
Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay.
Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation”
Article 241
Terms of committal proceedings
“A committal hearing shall be held within ten days or, in complex cases, thirty days of receipt of the case file by the court.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-76501
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BELYATSKAYA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (enforcement delay);Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1958 and lives in the town of Arkhangelsk.
5. The applicant instituted proceedings against the Social Security Department and the Finance Department of the Arkhangelsk Regional Administration (Управление социальной защиты населения и Финансовое управление администрации Архангельской области), seeking to recover unpaid child allowance for the period between June 1998 and December 1999.
6. On 16 February 2001 the Oktyabrskiy District Court of Arkhangelsk (Октябрьский районный суд г. Архангельска) granted the applicant’s claims in so far as they concerned the Finance Department and ordered the latter to pay 2,244.16 Russian roubles (approximately 85 euros at the material time) to the applicant.
7. No appeal was lodged and this judgment became final on 26 February 2001.
8. On 9 April 2001 the Oktyabrskiy District Bailiff’s Office of Arkhangelsk (Служба судебных приставов по Октябрьскому району г. Архангельска) received the execution writ in respect of the judgment.
9. By letter of 13 March 2002 the Regional Prosecutor’s Office (прокуратура Архангельской области) informed the applicant that the unpaid child allowances were paid by the Finance Department in turns, depending on the availability of funds.
10. On 19 May 2003 the amount due was paid to the applicant by the Social Security Department.
11. On 16 September 2003 the Bailiff’s Office terminated the enforcement proceedings on the ground that the judgment had been enforced. As indicated in a letter of the Bailiff’s Office of 13 September 2004, the delayed enforcement of the judgment had been caused by lack of funds.
12. On 22 April 2002 the applicant instituted proceedings in the Lomonosovskiy District court of Arkhangelsk (Ломоносовский районный суд г. Архангельска) against the Oktyabrskiy District Bailiff’s Office and the State Treasury, seeking pecuniary and non-pecuniary damages for the non-enforcement of the judgment.
13. She claimed that the Bailiff’s Office had failed to take the necessary actions to enforce the judgment and requested that damages be recovered from the State Treasury.
14. On 23 April 2002 the Lomonosovskiy District Court of Arkhangelsk refused to deal with her claim for lack of territorial jurisdiction. The court found that, since the applicant in her claim insisted that damages be recovered from the State Treasury, she should have applied to the relevant court in Moscow where the office of the State Treasury was situated.
15. On 8 May 2002 the applicant filed an appeal against this decision which was received by the court on 13 May 2002. In her appeal she argued that, as long as in her claim she had indicated both the Bailiff’s Office and the State Treasury as defendants, she was free in her choice as to which of the two courts, which had territorial jurisdiction over the defendants, to apply. Since the Oktyabrskiy District Bailiff’s Office was situated under the territorial jurisdiction of the Lomonosovskiy District Court, she had chosen to apply to this court.
16. On 14 May 2002 the District Court found that the appeal had been filed out of time and no request for leave to appeal out of time had been made. It advised the applicant to submit such request by 24 May 2002, indicating the reasons for missing the appeal time-limit. Otherwise, her appeal would be returned.
17. On 20 May 2002 the applicant submitted such request. In her request she argued that she had not missed the appeal time-limit as the decision of 23 April 2002 was received by her only on 30 April 2002. The appeal was filed on 8 May 2002, i.e. within the required ten days.
18. The court scheduled a hearing on the applicant’s request on 4 June 2002. The Government submitted that the applicant had been properly notified of that hearing but failed to appear.
19. The applicant did not comment on that point.
20. Accordingly, by letter of 4 June 2002 the District Court returned the applicant’s appeal on the ground that she had failed to comply with the instructions given in its decision of 14 May 2002.
21. The outcome of the proceedings remains unclear.
22. According to Articles 13, 209 and 338 of the Code of Civil Procedure (Гражданский процессуальный кодекс РСФСР), in force at the material time, a court judgment, which has become final, is binding and must be executed.
23. Section 9 of the Law on Enforcement Proceedings of 21 July 1997 (Закон об исполнительном производстве) provides that a bailiff’s order on the institution of enforcement proceedings shall fix a time-limit for the defendant’s voluntary compliance with the writ of execution. The time-limit cannot exceed five days. The bailiff shall also warn the defendant that coercive action will follow, should the defendant fail to comply within the time-limit.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58003
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF AKSOY v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 13;Not necessary to examine Art. 6-1;No violation of Art. 25-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award
TEXT: 7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above).
8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.
9. At the time of the Court’s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.
10. The facts in the case are in dispute.
11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.
12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.
13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters.
He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day.
14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: "If you don’t know him now, you will know him under torture."
According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as "Palestinian hanging". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes.
During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive.
15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission.
16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident.
17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody.
18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor.
According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured.
The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands.
19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back.
He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him.
20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged.
21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant.
22. Mr Aksoy was shot dead on 16 April 1994.
According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application.
The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.
A suspect, allegedly a member of the PKK, has been charged with the murder.
23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995.
After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts:
a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days.
b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged.
c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital.
d) The Commission noted that the medical evidence indicated that the applicant’s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as "Palestinian hanging".
e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police.
f) The Government offered no alternative explanation for Mr Aksoy’s injuries.
g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant’s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation.
24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).
25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:
"No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification."
26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).
27. Article 125 of the Turkish Constitution provides as follows:
"All acts or decisions of the administration are subject to judicial review ...
The administration shall be liable to indemnify any damage caused by its own acts and measures."
By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.
28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.
29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.
The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).
In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983).
30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.
31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that:
"The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15).
During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.
The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak] of South East Anatolia and partly also in adjacent provinces.
Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.
To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey.
The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.
This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights."
Attached to this letter was a "descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows:
"The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ..."
32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425.
33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that:
"As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation."
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 25
NON_VIOLATED_PARAGRAPHS: 25-1


ITEMID: 001-93107
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PILIPEY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk
TEXT: 4. The applicant was born in 1946 and lives in the town of Rivne, Ukraine.
5. In March 1976 the Executive Committee of the Rivne Local Council instituted proceedings against the applicant’s father and the applicant’s uncle in the Rivne People’s Court. The Committee sought confiscation of the house owned by them because there had been serious breaches of building regulations. The case was considered on several occasions. On 22 March 1977 the People’s Court ruled that the house should be confiscated. On 28 April 1977 the Rivne Regional Court upheld that judgment. Following that decision the house was confiscated.
6. The applicant’s father died in 1985. In 1990 the Rivne Local Council sold a part of the house (“the disputed property”) to Ms K.
7. On 27 January 1993 the Presidium of the Rivne Regional Court, upon an objection (протест) by its President, quashed the judgment of 22 March 1977 and remitted the case to the same court for fresh consideration.
8. On 12 April 1993 the Rivne Court dismissed a claim lodged by the Executive Committee of the Rivne Local Council.
9. On 24 January 1994 the applicant and Mr P. instituted proceedings against Ms K. and the Executive Committee of Rivne Local Council in the Rivne Court, seeking to have the above-mentioned contract of sale declared null and void and claiming ownership of the disputed property.
10. On 12 April 1994 Mr K., husband of Ms K., lodged a counterclaim, seeking recognition of ownership of the disputed property.
11. On 25 January 1995 Ms S. and Ms Ko. instituted proceedings against Mr and Ms K., claiming ownership of the disputed property.
12. In the period from 26 January 1994 to 3 November 1996 the first-instance court scheduled ten hearings.
13. On 4 November 1996 the court granted a request by the applicant’s lawyer to suspend the proceedings on the ground that the applicant was undergoing treatment. After that date the next hearing was scheduled by the court only for 18 May 1998.
14. On 25 March 1998 Ms. K died. On 18 May 1998 the court decided to suspend the proceedings until Ms K.’s successors joined the proceedings.
15. On 18 March 1999 the court decided to join Mr K. as a defendant in the case. On the same day the court joined the consideration of the above proceedings.
16. Between 19 May 1998 and 22 March 2000 the court scheduled one hearing.
17. Between 23 March 2000 and 15 October 2001 the court scheduled no hearings.
18. On 21 March 2002 the court found against the applicant. In particular, the court found unsubstantiated the applicant’s allegation that he could claim inheritance rights over the disputed property.
19. On 26 June 2002 the Rivne Regional Court of Appeal upheld that judgment.
20. Between 16 October 2001 and 26 June 2002 the first-instance court and the court of appeal scheduled six hearings. Four hearings were adjourned on account of the one of the parties’ failure to appear or at their request.
21. On 22 January 2003 the Supreme Court dismissed an appeal in cassation by the applicant.
VIOLATED_ARTICLES: 6


ITEMID: 001-66852
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: FREDERIKSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Frank Clarence Provstgaard Frederiksen, is a Danish national, who was born in 1953 and lives in Haslev. He is represented before the Court by Mr Henrik Karl Nielsen, a lawyer practising in Copenhagen.
The respondent Government are represented by their Agent, Ms Nina Holst-Chritensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits earmarked for payment of corporation tax. Often the persons involved systematically acquired the inactive, solvent companies for the companies’ own fund. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts. According to surveys made by the customs and tax authorities, approximately 1,600 companies with a total tax debt exceeding 2 billion Danish kroner (DKK) were stripped in the period from the late 1980’s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased completely in the summer of 1993.
On 4 June 1993 the tax authorities reported to the police that allegedly the applicant, who worked as an accountant, and a number of other named persons had committed tax asset stripping.
Unknown to the applicant, on 22 April and 25 May 1994 a City Court granted warrants to the police to search inter alia his premises.
On the latter date the applicant was charged with tax asset stripping and the police carried out a search at his premises, and at forty-five other localities, which led the attention to almost five-hundred inactive solvent private limited companies.
It appeared that the largest group of companies were part of a corporate group owned by companies registered in the Isle of Man. Consequently, on 1 July 1994 the authorities of the island were contacted in order to obtain information on the ownership of the group. The request was an informal letter as the Isle of Man has not signed the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. In August 1994 the authorities of the Isle of Man provided the material which showed that a large part of the funds of some of the groups was transferred to Swiss banks.
In the spring of 1996 the applicant and two other persons lodged objections with Her Majesty’s Attorney General of the Isle of Man, claiming that the letter of request had been executed without authority. The case was brought before the City Court of Douglas on the Isle of Man, but was dismissed by a decision of 23 August 1999.
In the meantime, on 15 November 1994 the police requested a court order for an international letter of request to Switzerland. By a City Court order of 6 December 1994, upheld on appeal by the High Court of Eastern Denmark (Østre Landsret) on 23 December 1994, the Swiss authorities were requested to grant assistance to procure evidence for the police investigation. In March 1995 the Swiss authorities requested more detailed information. This was submitted by the Ministry of Justice in Denmark in May 1995. By letter of 9 April 1996 the City Court in Korsør (Retten i Korsør) was notified of a decision from the Swiss authorities according to which the letter of request could be substantially accommodated. Due to objections, the international letter of request was tried by three judicial instances in Switzerland. Subsequently, on request of the Swiss examining magistrate a supplement to the international letter of request was submitted in relation to some of the bank accounts concerned. Beforehand, since on 20 September 1996 counsel for the applicant had objected to the supplement, it was approved by the City Court in Korsør on 11 October 1996 and on appeal by the High Court on 29 November 1996. During the summer and autumn 1997 numerous persons were interviewed in Switzerland by the Swiss authorities. The Danish police, the prosecutor and counsel for some of the persons charged in the case were present during some of the interviews. In March 1998 the Swiss authorities sent the investigation material obtained in the case to the Ministry of Justice in Denmark, which forwarded it to the police in April 1998.
In the meantime, investigations had been pursued in France, Gibraltar and the United Kingdom. Several hundred court orders were issued, including approximately forty discovery orders against Danish banks. A large number of the said court orders were tried by appeal instances. Furthermore, material was procured from company sellers, the National Customs and Tax Administration (Told- og Skattestyrelsen) and the National Commerce and Companies Agency (Erhvervs- of Selskabsstyrelsen).
During the investigation, the police was assisted inter alia by a firm of accountants in order to untangle intricate corporate structures and ownership structures of companies and to enlighten tax technicalities as regards numerous financial and liquid transactions.
On 30 November 1998 the Public Prosecution issued an indictment against the applicant and seven co-accused, one of whom died before the trial commenced. The indictment contained six counts of tax assets stripping as to 225 private limited companies, of which the applicant was indicted of five counts involving 157 private limited companies. The indictment was submitted to the City Court of Copenhagen (Københavns Byret) to which, by a final Supreme Court order of 28 April 1998, the case had been transferred from the City Court in Korsør on the latter’s request of March 1997 after having been addressed by the police as to scheduling of court hearings in the case.
In the beginning of 1999 several procedural matters were determined by the City Court of Copenhagen e.g. that the prosecution was allowed to use the material received from the Swiss authorities as evidence in the case, and that an accountant who had assisted the prosecutor was not disqualified from the case. The former issue was appealed against to the High Court, which upheld the decision on 29 June 1999, and leave to appeal to the Supreme Court was refused on 4 August 1999.
On 2 March 1999 a hearing was held in order to plan the course of the proceedings. It appears from the court records that the City Court expected to have premises available in October/November 1999 as it was necessary to lease premises to accommodate the court sitting with lay judges and deputies, seven co-accused, counsel with deputies, and an archive room with space for about 15 sets of exhibits expected to take up 250 A4 binders per set. Counsel requested that the trial be scheduled with two weekly court days in consideration of those accused, who were living abroad.
On 20 April 1999 the City Court scheduled the case for trial every Tuesday and Wednesday starting on 16 November 1999 and ending in June 2001.
Accordingly, in the period between 16 November 1999, when the trial commenced, and 13 June 2001, when the case was set down for judgment, about 105 court hearings were held. The applicant, the six coaccused, and a very large number of witnesses gave evidence. In addition, statements of accounts and a considerable amount of other documentary evidence were presented including outlines of corporate structures and money transactions. Each set of exhibits for the case took up 270 A4 binders and the court records ran to approximately 1170 pages.
By judgment of 31 August 2001, which ran to 432 pages, the City Court convicted the applicant of tax assets stripping as to an amount evaded for tax purposes calculated at DKK 252,851,859 (equal to approximately € 33,713,581) and attempted tax assets stripping as to DKK 2,714,169 (equal to approximately € 361,889). He was sentenced to six years’ imprisonment and an amount of DKK 1,835,000 was seized. In addition for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director’s board in a private limited company, or in a company or an association which would require public approval, and of his right to practise as an accountant. The six co-accused were convicted by the same judgment.
The City Court rejected the applicant’s complaint that the length of the proceedings had exceeded a reasonable time, finding among other things:
“In count I, count II A and count IV a large number of companies have been traded. The structure included foreign companies with impenetrable ownership structures, and money transactions have mainly taken place in Switzerland. These circumstances are a good reason for a lengthy investigation. Thus, the right to a trial within a reasonable time ... has not been violated.”
By notice of appeal of 7 September 2001 the applicant appealed against the judgment to the High Court of Eastern Denmark. The co-accused also appealed against the judgment, and by notice of appeal of 1 October 2001 the prosecution cross-appealed.
During pre-trial reviews held on 2 and 26 November 2001 the High Court stated that the trial could start in May 2002, however since several counsel were prevented by other trials until the autumn 2002, the trial was set to commence on 18 September 2002.
From that date and until December 2003, approximately 75 court hearings were held.
During a hearing on 19 June 2003 the applicant stated that he did not have the mental energy required to be present. Also, he wished that one of his two counsel be released. The High Court stated that the medical certificate that had been submitted by the applicant was inadequate, and it thus requested that the applicant submitted a more detailed one. The following day the High Court assigned another attorney as co-counsel for the applicant. Hearings scheduled for 27 and 28 August, and 3, 4, 10 and 11 September 2003 were cancelled due to pleaded illness on the applicant’s behalf, and his counsel requested an adjournment of the case for at least four months. The issue of the applicant’s illness was discussed, and a medical certificate was submitted to the Medico-legal Council (Retslægerådet) for an assessment. On the basis of the latter’s opinion, on 17 September 2003, the High Court found that the applicant had no lawful cause for being absent from the trial. Since then the applicant appeared before the High Court.
Court hearings scheduled for 12, 13, 19, 20, 26 and 27 November, and 3 and 4 December 2003 had to be cancelled in that in the period from 6 November 2003 until 2 December 2003 a claim by one of the coaccused, joined by the applicant, had to be determined, namely as to whether the presiding judge in the High Court should vacate his seat on the bench due to disqualification. The question was answered in the negative by the High Court on 10 November 2003, and leave to appeal against this decision to the Supreme Court was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 2 December 2003.
During the following court hearing on 10 December 2003 counsel for the same co-accused claimed an adjournment of the trial due to his client’s illness. Thus, hearings scheduled for 10, 11, 17 and 18 December 2003 had to be cancelled. The court hearings ended in January 2004. Before the High Court the applicant, the six co-accused, and sixty-six witnesses were heard. Also, statements during the City Court trial from twenty-nine witnesses were read out. In addition, statements of accounts and a considerable amount of other documentary evidence were presented, including outlines of corporate structures and money transactions. Each set of exhibits for the case took up 127 A4 binders and the court records ran to approximately 550 pages. By judgment of 5 April 2004, which ran to 101 pages, the High Court upheld the City Court’s judgment.
Also, the High Court rejected the applicant’s complaint that the length of the proceeding had exceeded a reasonable time. It stated inter alia:
“Counsel have claimed, as [they did] before the City Court, that Article 6 § 1 of the European Convention on Human Rights has been violated due to the extension of the trial’s duration.
The prosecution has contested that there has been a violation of Article 6 § 1.
As a starting point, a length of proceedings in a criminal trial, which last almost ten years - from charges and searches in 1994 – presumably entails a breach of the requirement of a trial within a reasonable time as set out in Article 6 § 1 of the Convention. Thus, it is incumbent on the authorities to prove that the duration was reasonable, and that the case proceeded with duly expedition without the existence of any “dead periods”. In this assessment, the nature of the case and its importance, its complexity, and the conduct of the accused and that of the authorities must be taken into account.
A chronological account of the proceedings has been submitted before the High Court. ...
The case has necessitated investigation of entangled constructions of companies and group of companies with associations abroad. Furthermore, it has required an extremely comprehensive accountant work to go through the complex financial circumstances of the case and untangle the money transactions for each company. Thus and necessarily, it had to take some time to work up the investigation material and consider the matter of indictment in the case. The Danish authorities have had no influence on the proceedings in Switzerland as to the international letter of request, or on the process on the Isle of Man. The High Court finds that the general investigation; the consideration of the case; the work on accounting matters; and the determination of procedural questions; all have moved forward in parallel, thus avoiding any dead periods during the investigation, during the periods of scheduling of the trial or during the proceedings before the City Court and the High Court.
Accordingly, making an overall assessment, the High Court finds that the length of the proceedings does not entail a breach of the accused’s rights under Article 6 § 1 of the Convention.”
On 19 April 2004 the applicant requested that the Leave to Appeal Board grant him leave to appeal against the High Court judgment to the Supreme Court (Højesteret). The case is at present pending before the Leave to Appeal Board.


ITEMID: 001-92346
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: JUSUFOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Abdula Jusufoski, is a Macedonian national who lives in Ohrid. He was represented before the Court by Mr M. Popeski, a lawyer practising in Ohrid.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a manager and co-owner of ZZ Monter (“the company”).
On 7 March 2003 Mr P. (“the defendant”) took heavy construction machinery through property (“the property”) which the company used for its own purposes (it had constructed a hard standing for car parking and a waste container). The defendant caused damage to the fence and the concrete hard standing.
On 17 March 2003 the applicant, represented by Mr Popeski, brought, in his own name, an action for disturbance of possessions (смеќавање на владение). He claimed to have had the last peaceful enjoyment of the property and fence, which had been disturbed by the defendant. He requested the Ohrid Court of First Instance to prevent the defendant from creating further disturbance and to order him to reinstate the property to its previous state. The applicant based his claim on sections 181-184 of the Ownership and other Property Rights Act (“the Act”, see “Relevant domestic law” below).
On 5 December 2003 the Ohrid Court of First Instance dismissed the applicant’s claim for lack of standing to bring such an action. It based its decision, inter alia, on his statement that the property had been adjacent to the company’s main building and that the company had constructed the fence and the concrete hard standing nine years before. The applicant further stated that the company had actually possessed and used the property ever since. Lastly, he maintained that he had title to the property, even though it was irrelevant to the subject matter of the case. The court ruled that the company, as a distinct legal entity, had been in possession (владение) of the property and that accordingly it had been the only person entitled to seek its protection. It held that the applicant had not had possession of the property and accordingly lacked the requisite standing to seek protection under section 184 of the Act.
On 21 February 2004 the applicant appealed, claiming that the first-instance court’s approach had been too formalistic and that it should instead have taken into consideration the fact that he had title to the property. In this later context, he presented a non-certified copy of a sales contract of 1998 under which he had allegedly obtained the title, and a receipt slip for the price.
On 27 April 2004 the Bitola Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. Relying on sections 167 (direct possession) and 184 of the Act, it reiterated that the applicant lacked the requisite standing to bring the proceedings. In this connection, it observed that the company had the actual possession of the property. It also dismissed the applicant’s argument that he had title to the property, since the dispute concerned enjoyment of possessions (владение).
Under section 161 of the Act, an owner or a purported owner is entitled to request that disturbance, which does not concern seizure of a property, of his of her ownership is brought to an end. The owner is also entitled to claim damage under the general compensation rules.
Section 167 §§ 1 and 2 of the Act provides that every person who has control of a property, directly or through a representative, can claim to have possession (владение) of it (direct possession). A person who has control of a property through another person who enjoys direct possession on the basis of a contract or another legal act can also claim to have possession of that property (indirect possession).
Section 182 § 1 of the Act provides that a possessor (владетелот) or a holder of a proprietary right is entitled to protect his or her possession from disturbance or deprivation.
Section 184 of the Act provides that a possessor whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place, to order reinstatement and to proscribe any such further or similar actions. Court protection is offered in special proceedings according to the last peaceful possession, regardless of the conduct of the possessor and whether the disturbance was lawful and in the public interest.
Under section 185 § 1 of the Act, a person in indirect possession of a property can seek judicial protection of possession if the person in direct possession has not availed him or herself of it.
Under section 2 of the 1998 Act, a court decides upon a claim as submitted before it.